Trewin v. State of California

• Citation: 150 Cal.App.3d 975,198 Cal.Rptr. 263,41 ALR4th 104
• Court: California Court of Appeals
• Decision Date: 17 January 1984
• Parties: , 41 A.L.R.4th 104 Allan TREWIN and Patricia Trewin, Plaintiffs and Appellants, v. STATE OF CALIFORNIA, Department of Motor Vehicles of the State of California; State Board of Control of the State of California, Defendants and Respondents. Civ. 68966.

Page 263

198 Cal.Rptr. 263

150 Cal.App.3d 975, 41 A.L.R.4th 104

Allan TREWIN and Patricia Trewin, Plaintiffs and Appellants, v. STATE OF CALIFORNIA, Department of Motor Vehicles of the State of California; State Board of Control of the State of California, Defendants and Respondents.

Civ. 68966.

Court of Appeal, Second District, Division 5, California.

Jan. 17, 1984.

Law Offices of Karl Seuthe, by Joseph N. Kornowski, Los Angeles, for plaintiffs and appellants.

John K. Van de Kamp, Atty. Gen., Nelson Kempsky, Chief Deputy Atty. Gen., Richard D. Martland, Chief Asst. Atty. Gen., Marvin Goldsmith, Asst. Atty. Gen., and Robert H. Francis and Vera Fisch, Deputy Attys. Gen., for defendant and respondent State.

HASTINGS, Associate Justice.

Allan and Patricia Trewin, appellants, were seriously injured when an automobile driven by Harvey Foster Wood, age 87, crossed the center divider of a highway and collided with their automobile. Appellants sued the State of California, respondent, which issued a driver's license through the Department of Motor Vehicles (DMV) to Wood before the accident. Their complaint alleged that DMV knew Wood was unable to safely operate a motor vehicle upon the streets and highways. The trial court entered a Judgment on the Pleadings in favor of respondent State of California and this appeal followed.

The Judgment on the Pleadings was granted to appellants' first amended complaint. On the day of trial, appellants made a motion for leave to amend the first amended complaint to insert additional allegations. The motion was granted.

The DMV issued the driver's license to Wood on November 24, 1976. On January 9, 1977, less than two months later, at or near Imperial Highway, near the intersection of Meyer in La Mirada, or Santa Fe Springs, California, Wood was operating his motor vehicle on the wrong side of the road after jumping a divider. It collided with appellants' vehicle which was traveling westbound on Imperial Highway. The collision caused appellant Patricia Trewin to be projected through the windshield of their automobile and resulted in both of the appellants suffering skull fractures and multiple fractures, including fracture of Allan Trewin's ribs, right foot and right ankle.

The first amended complaint with interlineated amendments in summary alleged the following: Respondent negligently, tortiously, unlawfully, et al., issued a California driver's license to Wood (1) after ascertaining that Wood was a person of advanced years and diminished physical and mental agility to the point of senility and knowing that issuance of driving privileges to him would endanger the lives of other persons lawfully upon the streets and highways, (2) performed their ministerial duties mandated by section 12805 of the Vehicle Code and section 815.6 of the Government Code by (a) issuing and renewing a driver's license to Wood after being informed and determining that he was unable to safely operate a motor vehicle upon the streets and highways, and (b) failing to revoke Wood's driver's license after being informed and having notice that he was unable to safely operate a motor vehicle on the streets and highways. ¹ The conduct of respondent proximately caused and contributed to plaintiffs' injuries.

Section 815.6 of the Government Code provides:

"Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, that public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty."

Section 12805(e) of the Vehicle Code provides in relevant part:

"The department shall not issue a driver's license to, or renew a driver's license of any person:

"...

"(e) When it is determined, by examination or other evidence, that the person is unable to safely operate a motor vehicle upon a highway (1) because of experiencing, within the last three years, either a lapse of consciousness or an episode of marked confusion caused by any condition which may bring about recurrent lapses or (2) because of any other disability, disease, or disorder or (3) because of lack of skill."

In the hearing on the Motion for Judgment on the Pleadings, the court listened to appellants' counsel's statement concerning the evidence to support the allegations of the first amended complaint, including deposition testimony from a DMV driver's license examiner that he noted on Wood's driver's license application in November of 1976 that Mr. Wood was suffering from "general debilities." After counsel's statements, the court made the following comments:

"It seems to me that what you are asking me to do is to say that the words 'general debilities,' as you have suggested were noted by the examiner on whatever document he uses to report his decision on the driving ability of the individual, come within these terms, 'any disability, disease, or disorder.'

"...

"So, even though I am going to take judicial notice of the fact of this document, and your statement that you will, of course, on trial be able to establish that these words, 'general debilities,' were noted, I don't see how I can get the extra inch that is necessary to say that those words, by themselves, mean that there has been a decision which takes this out of discretion and says that a determination having been made, then the mandatory portion, quote, not to issue, close quote, applies. I don't see how I can do that ....

"[I]t is as easy to say that he made a determination that there was nothing that was the matter with this man. And that is easier for me to stomach ..."

Appellants contend that the first amended complaint pleaded a cause of action, and therefore the court erred in granting a Motion for Judgment on the Pleadings. Appellants also contend that in granting the motion, the court heard evidence and decided issues of fact which in turn persuaded the court to improperly grant the motion.

Respondent counters that the facts pleaded in the amended complaint were similar to those set forth in Papelian v. State of California, 65 Cal.App.3d 958, 135 Cal.Rptr. 665, where the court ruled in favor of the State of California. Papelian held that determination by the DMV to issue or not to issue a driver's license pursuant to Vehicle Code section 12805 was a discretionary act, and therefore the State of California was immune from liability for any damages resulting from issuance of the license under the provisions of Government Code section 818.4. ²

DISCUSSION

Appellants argue that the facts pleaded in their first amended complaint sufficiently allege that respondent had a mandatory duty to refrain from issuing or renewing Wood's license, whereas in Papelian the duty was discretionary. The distinction is outlined by appellants as follows:

Citing A. Van Alstyne, California Tort Liability Practice, section 2.41 (CEB 1980), appellants argue that Government Code section 815.6 makes a public entity liable for its failure to discharge " 'a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury,' unless the entity establishes that 'it exercised reasonable diligence to discharge the duty.' " The term "enactment" means a constitutional provision, statute, charter provision, ordinance or authorized rule or regulation having the force of law. (Gov.Code, §§ 810.6, 811.6.)

Vehicle Code section 12805 is an enactment that imposes a "mandatory duty" upon the State of California, Department of Motor Vehicles within the meaning of Government Code section 815.6. This section provides that DMV shall not issue to, or renew a driver's license of, any person when it is...