Williams v. State of California

• Decision Date: 21 October 1976
• Citation: 62 Cal.App.3d 960,133 Cal.Rptr. 539
• Court: California Court of Appeals Court of Appeals
• Parties: Obie WILLIAMS, Plaintiff and Appellant, v. STATE of California, BOARD OF CONTROL, and David D. Swoap, as Director, State Department of Benefit Payments, Defendants and Respondents. Civ. 37258.

Page 539

133 Cal.Rptr. 539

62 Cal.App.3d 960

Obie WILLIAMS, Plaintiff and Appellant, v. STATE of California, BOARD OF CONTROL, and David D. Swoap, as Director, State Department of Benefit Payments, Defendants and Respondents.

Civ. 37258.

Court of Appeal, First District, Division 1, California.

Oct. 21, 1976.

Hearing Denied Dec. 22, 1976.

Thomas W. Pulliam, Jr., San Francisco Neighborhood Legal Assistance Foundation, San Francisco, for appellant.

Evelle J. Younger, Atty. Gen., Robert L. Bergman, Asst. Atty. Gen., Leonard M. Sperry, Jr., Deputy Atty. Gen., San Francisco, for respondent.

MOLINARI, Presiding Justice.

Plaintiff appeals from a judgment dismissing his action for damages against defendant State of California (hereinafter 'the State') following the sustaining of a demurrer to the complaint without leave to amend.

The complaint alleges as follows: On August 23, 1972, plaintiff applied for benefits under the Aid to the Totally Disabled Program (hereinafter 'ATD'); his application was denied on December 7, 1972. On January 10, 1973, plaintiff requested a fair hearing which took place on March 12, 1973. On March 21, 1973, the referee submitted his proposed decision finding plaintiff eligible for ATD benefits. Defendant, David Swoap, the director of the California State Department of Benefit Payments failed to issue a final decision within the mandatory period provided for by law. On December 7, 1973, plaintiff presented to the State Board of Control a claim for damages in the sum of $10,000 for injury proximately caused by defendants failing to perform their mandatory duty. On January 29, 1974, plaintiff received notice that on January 23, 1974, the Department of Social Welfare had adopted the proposed decision of the referee that plaintiff was entitled to ATD benefits. On February 5, 1974, plaintiff's claim for damages was denied by the Board of Control.

The gist of the charging allegations of the complaint is that by the failure of defendants' delay in granting him ATD assistance plaintiff's health was injured and he suffered mental pain and suffering and emotional distress.

The State demurrer to the complaint on the grounds that it failed to state facts sufficient to constitute a cause of action and there is another action pending between the same parties on the same cause of action. In the points and authorities in support of the demurrer the State argued that plaintiff cannot maintain this action for damages because the State is immune from liability for damages. The lower court sustained the demurrer without leave to amend and noted in its order that the demurrer was sustained on the ground that there is another action pending between the same parties on the same cause of action and noted that it was overruling the general demurrer on the ground that the State is immune from liability. Following the sustaining of the State's demurrer plaintiff voluntarily dismissed, without prejudice, the action against all of the named defendants other than the State. Accordingly, this action is proceeding solely against the State and our inquiry on appeal is concerned solely with the propriety of the sustaining without leave to amend of plaintiff's complaint against the State.

We consider whether the lower court properly sustained the demurrer on the ground that there is another action pending between the same parties on the same cause of action. In so doing we note that the other pending action referred to in the lower court's order is the case of King v. Martin, Alameda County Superior Court No. 398769. The King case was a class action which resulted in a reversal by the Court of Appeal on December 3, 1971, of a judgment denying mandate in 21 Cal.App.3d 791. ¹ The reversal was with directions to grant relief compelling compliance with the requirement of the regulation that fair hearing decisions be rendered within 60 days.

In Cartwright v. Swoap, 40 Cal.App.3d 567, 115 Cal.Rptr. 402, the appellate court noted, in reviewing the propriety of the issuance of a writ of mandate directing David Swoap, Director of Benefit Payments, 'to render final decisions within 60 days in his administrative hearings,' that King was a class action to compel the then Director of Social Welfare to comply with federal and state law to issue decisions upon administrative hearings within the time prescribed by law. The court in Cartwright held that the petitioners in that case were members of the class in King, and that a writ of mandate will not issue if there is a plain, speedy, and adequate remedy in the ordinary course of law, and that the petitioners' remedy was to establish their membership in the class recognized and embraced in the King case. (At p. 571, 115 Cal.Rptr. 402.)

The instant case presents a different situation from that in Cartwright. Plaintiff is not seeking a writ of mandate to compel compliance with the requirement that a decision by the director be rendered within the time required by law but for damages alleged to have been proximately caused by the director's failure to render his decision within the mandatory time. In sum, he is seeking a remedy other than that afforded him in King. The remedy in King is for mandate to compel action and does not provide an adequate remedy for compensation for damages.

The underlying theory of the plea that there is another action pending is that the first action normally will be an ample remedy and that the second action is therefore unnecessary and vexatious. (Wulfjen v. Dolton,24 Cal.2d 891, 896, 151 P.2d 846; Colvig v. RKO General, Inc., 232 Cal.App.2d 56, 70, 42 Cal.Rptr. 473.) Such a plea does not challenge plaintiff's claim on the merits, but merely objects to the particular proceeding to enforce it. (Colvig v. RKO General, Inc.,supra; see Nevills v. Shortridge, 146 Cal. 277, 278, 79 P. 972.) For this reason this ground of demurrer, regarded as a plea in abatement, is not favored. (Lord v. Garland, 27 Cal.2d 840, 848, 168 P.2d 5; Colvig v. RKO General, Inc., supra.)

A demurrer on the ground of another action pending will not be sustained if the former action is no longer pending. (Colvig v. RKO General, Inc., supra, 232 Cal.App.2d 56, 71, 42 Cal.Rptr. 473; Hational Auto. Ins. Co. v. Winter, 58 Cal.App.2d 11, 16, 136 P.2d 22.) An action is deemed pending only from the time of its commencement until its final determination on appeal, or until the time for appeal has passed, unless the judgment is sooner satisfied. (Ex parte Joutsen, 154 Cal. 540, 543, 98 P. 391; Colvig v. RKO General, Inc., supra.) In the instant case the asserted prior action was finally determined on appeal prior to the commencement of the instant action. We apprehend that although judgments in class actions will be binding on all members of the class, including persons coming subsequently into the class (Cartwright v. Swoap, supra, 40 Cal.App.3d 567, 570, fn. 5, 115 Cal.Rptr. 402; Diaz v. Quitoriano, 268 Cal.App.2d 807, 812, 74 Cal.Rptr. 358), the effect of the class action decree is that it is a judgment which can be availed of by every member of the represented class, present or future. (See Weaver v. Pasadena Tournament of Roses Assn., 32 Cal.2d 833, 842, 198 P.2d 514; Diaz v. Quitoriano, supra.) Accordingly, the effect of the King case is that every member of the class is entitled to compliance by the director that he render his final decision within the time provided by federal and state law. It did nothing more. There is nothing in King which adjudicates whether a member of the class may sue the director for damages if the director delays his decision and the member of the class has sustained injury by reason of the delay.

It is also fundamental that in order to sustain the plea of another action pending it is essential that it shall appear, in addition to the requirement that both suits are pending, that both suits are predicated upon the same cause of action and that both suits are contested by the same parties. (Colvig v. RKO General, Inc., supra, 232 Cal.App.2d 56, 70, 42 Cal.Rptr. 473; Hanrahan v. Superior Court, 81 Cal.App.2d 432, 435, 184 P.2d 157.) We do not perceive that the King case and the instant case are predicated on the same cause of action. In King the action merely sought to compel compliance by the director with federal and state law. It did not seek damages as does the instant case for damages for personal injuries allegedly sustained by the plaintiff by reason of defendants' delay in granting him ATD assistance. Both suits are not contested by the same parties. While all persons similarly situated as the petitioner in King are parties to that action, all of such persons have not necessarily suffered personal injuries because of the delay in receiving ATD assistance.

The trial court erred, therefore, in sustaining the demurrer on the ground that there is another action pending between the same parties on the same cause of action. The sustaining of the demurrer on this ground alone does not, however, preclude our determining whether the demurrer should have been sustained on the ground that the complaint does not state cause of action. The trial court's ruling should be upheld if it can be sustained on any of the grounds upon which the demurrer is based. (Elton v. County of Orange, 3 Cal.App.3d 1053, 1058--1059, 84 Cal.Rptr. 27.)

The State's demurrer on the ground that the complaint does not state a cause of action is predicated upon the basis that the State is immune from liability. In considering this contention we first observe that public entities are liable in tort only to the extent declared by statute and that such liability where it exists is subject to certain statutory immunities and defenses. (Gov.Code, § 815.) ² We also note vicarious liability is imposed upon public entities for the tortious acts and omissions of their employees and that, except as otherwise provided by statute, a public entity cannot be held liable for an employee's act...