Whitcombe v. County of Yolo

Citation141 Cal.Rptr. 189,73 Cal.App.3d 698
CourtCalifornia Court of Appeals
Decision Date26 September 1977
PartiesHarry J. WHITCOMBE and Carlos Hernandez, Plaintiffs and Appellants, v. COUNTY OF YOLO, the Yolo County Probation Department, Chuck Cobb and Richard Meyers, Defendants and Respondents. Civ. 16225.

Johnson, Greve, Clifford & Diepenbrock and Thomas N. Cooper, Sacramento, for plaintiffs and appellants.

Memering, Stumbos, DeMers, Ford & Norris and John J. Roman, Sacramento, for defendants and respondents County of Yolo (sued as The Probation Department), John C. Cobb (sued as Chuck Cobb), and Richard Meyers.

Roberts & Buchman, Sacramento, for defendant and respondent Richard Meyers.

REYNOSO, Associate Justice.

In this case we deal with the extent of the freedom from liability the California Tort Claims Act accords public entities and public officials with regard to the administration of prisoner probation programs. We also confront two ancillary issues: (1) whether the existence of a "special relationship" serves to bypass a legislative grant of immunity; and (2) whether the breach of certain mandatory administrative duties gives rise to governmental liability.

Appellants Harry J. Whitcombe and Carlos Hernandez (hereinafter "appellants") appeal from a judgment of dismissal after the trial court sustained defendants' demurrer to their amended complaint, based on a failure to state a cause of action. (Code Civ.Proc., § 430.10, subd. (e).)

On appeal, all intendments weigh in favor of the regularity of the trial court proceedings and the correctness of the judgment. Unless clear error or abuse of discretion is demonstrated, the judgment will be affirmed. (Walling v. Kimball (1941) 17 Cal.2d 364, 365, 110 P.2d 58; Banerian v. O'Malley (1974) 42 Cal.App.3d 604, 610, 116 Cal.Rptr. 919.)

The function of a demurrer is to test the sufficiency of appellants' pleading by raising questions of law. (3 Witkin, Cal.Procedure (2d ed. 1971) Pleading, § 796, at p. 2409.) As such, the question before us is whether the trial court erred when it found that appellants failed to state a cause of action. We hold it did not.

Appellants' complaint alleges facts as follows: In September 1973, Daniel Gibson pled guilty to a charge of first degree robbery. Because of the bizarre factual circumstances surrounding the offense, 1 he was ordered to undergo psychiatric evaluation prior to sentencing. A team of three psychiatrists reported to the court and the Yolo County Probation Department that Gibson had a schizoid personality; a probable neurotic compulsion; that he tended to project and act out great anger towards people; that he exhibited hysterical reactions to stressful situations; and that he extracted compensation in a direct and inappropriate manner from those who he believed had harmed him. Gibson was subsequently placed on probation under the supervision of probation officers Meyers and Cobb of the Yolo County Probation Department. While on probation Gibson was again arrested and charged with the theft of beehives, frames, and bees owned by appellant Whitcombe. Both Whitcombe and his employee, appellant Hernandez, assisted in the investigation of the theft. After being held for several days, Gibson was released from custody on bail.

Six days later Gibson assaulted and severely injured both appellants. Forcing Whitcombe to lie down, he crushed his skull with the butt end of a shotgun, and repeatedly struck him with a hammer. Similarly, forcing Hernandez to the ground, he bound his hands and feet; and with a rope wrapped around his neck, strangled him into unconsciousness.

Appellants subsequently filed their complaint for damages alleging ten causes of action. (Causes one through five refer to appellant Whitcombe. Causes six through ten are identical, but refer to appellant Hernandez.) They allege: first, that defendants Yolo County, Yolo County Probation Department, Richard Meyers, and Chuck Cobb neglected to undertake the ministerial acts of investigating the accusations leading to Gibson's second arrest, neglected to confer with anyone for the purpose of determining whether to revoke his probation, and neglected to ascertain whether Gibson constituted a danger to society. Second, that defendants Yolo County, Yolo County Probation Department, and Officers Meyers and Cobb failed to discharge mandatory duties established by Penal Code sections 1203.10 and 1203.12, to wit: probation officers shall investigate alleged activities of their probationers which may violate the terms of their probation and report to the court any actual violations. Third, that defendants Yolo County, Yolo County Probation Department, and Officers Meyers and Cobb breached a special relationship between defendants and appellants which arose due to the assistance provided by appellants in investigating the theft and identifying the stolen goods. Fourth, that defendants Yolo County and the Yolo County Probation Department wrongfully retained Officer Meyers, Gibson's principal probation officer. Fifth, Meyers' willful and malicious disregard for the safety of appellants. The complaint prays for punitive damages against Meyers in his individual capacity.


At the threshold we dispose of the theory, advanced by both parties, that a finding of a "special relationship" between governmental entity and litigants necessarily abrogates the discretionary immunity doctrine.

The parties assume that if we conclude the alleged facts establish as a matter of law the existence of a "special relationship" (a relationship giving rise to the County's duty to act prudently, and appellants' justifiable reliance thereon) we will obviate the need to consider whether respondents are immune from liability under sovereign immunity principles. Implicit in this exception theory is the assumption the "special relationship" creates an affirmative governmental responsibility which when breached gives rise to governmental liability notwithstanding the discretionary (immunized) character of the tortious act.

The purported exception is advanced in only three cases: Hartzler v. City of San Jose (1975) 46 Cal.App.3d 6, 120 Cal.Rptr. 5; Antique Arts Corp. v. City of Torrance (1974) 39 Cal.App.3d 588, 114 Cal.Rptr. 332; and McCarthy v. Frost (1973) 33 Cal.App.3d 872, 109 Cal.Rptr. 470. In Hartzler the court stated "(e)ven though there is initially no liability on the part of the government for its acts or omissions, once it undertakes action on behalf of a member of the public, and thereby induces that individual's reliance, it is then held to the same standard of care as a private person or organization." (Id., 46 Cal.App.3d at p. 10, 120 Cal.Rptr. at p. 7.) Nevertheless, neither party challenges the basis of the exception; they differ only in their conclusions as to whether the requisite relationship exists in this case.

Two reasons compel us to reject the theory. First, it purports to impose liability for discretionary governmental acts or omissions granted unqualified immunity by the California Tort Claims Act. (Gov.Code, §§ 810 et seq.) Sanctioning a special relationship exception would ignore this touchstone of sovereign immunity law. This we refuse to do. The theory creates an unresolvable paradox for it is axiomatic that governmental liability cannot exist when the complained of act falls within the realm of discretionary immunity. By definition, an immunity "avoids liability in tort under all circumstances, within the limits of the immunity itself; it is conferred, not because of the particular facts, but because of the status or position of the favored defendant; and it does not deny the tort, but (rather) the resulting liability. (Fn. omitted.)" (Prosser, Torts (4th ed. 1971) Governmental Immunity, § 131, p. 970.) Thus, the dispositive question is not whether the existence of a special relationship operates to bypass the grant of immunity, but rather whether the act itself comes under the doctrine of discretionary immunity.

Second, the special relationship exception is without persuasive precedent. Close scrutiny shows that McCarthy, Antique Arts and Hartzler are not adequately supported by the authority they cite. 2

In Johnson v. State of California (1968), 69 Cal.2d 782, footnote 2, 73 Cal.Rptr. 240, 447 P.2d 352, the Court defined immunized (discretionary) acts as those basic policy decisions entrusted to a coordinate branch of government. The Court made it clear that only subsequent "ministerial" actions implementing the basic policy decisions may form the basis for negligence. " '(O)nce the determination has been made that a service will be furnished and the service is undertaken, then public policy demands (except when the Legislature specifically decrees otherwise) that government be held to the same standard of care the law requires of its private citizens in the performance of duties imposed by law or assumed.' " (Id., at p. 796, 73 Cal.Rptr. at p. 250, 447 P.2d at p. 362, quoting Sava v. Fuller, supra, at p. 290, 57 Cal.Rptr. 312.) (Emphasis added.) 3 Again, in McCorkle v. City of Los Angeles (1969) 70 Cal.2d 252, 74 Cal.Rptr. 389, 449 P.2d 453, the Court stated "the act of a public employee . . . will not produce immunity . . . if the injury . . . results, not from the employee's exercise of 'discretion vested in him' to undertake the act, but from his negligence in performing it after having made the discretionary decision to do so." (Id., at p. 261, 74 Cal.Rptr. at p. 396, 449 P.2d at p. 460.) (Emphasis added.)

Accordingly, in every case cited as authority for the "special relationship" exception, the reviewing court recognized the distinction between immune discretionary acts and unprotected subsequent ministerial acts and predicated a finding of liability on the negligent subsequent ministerial implementation of the basic immunized policy act.

The exception theory apparently stems...

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