McKenna v. San Miguel Consolidated Fire
Protection Dist.
Filed 4/18/13 McKenna v. San Miguel Consolidated Fire
Protection Dist. CA4/1
California Rules of Court, rule 8.1115(a), prohibits courts and
parties from citing or relying on opinions not certified for publication or
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publication or ordered published for purposes of rule 8.1115
COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THERESA MCKENNA,
Plaintiff and Appellant,
v.
SAN MIGUEL CONSOLIDATED FIRE
PROTECTION DISTRICT,
Defendant and Respondent.
D061316
(Super. Ct. No. 37-2011-00067727- CU-NP-CTL)
APPEAL from
a judgment of the Superior Court
of
County, William S. Dato, Judge. Affirmed.
INTRODUCTION
Theresa
McKenna appeals from a judgment dismissing her complaint for
with prospective economic advantage against the San Miguel Consolidated Fire
Protection District (District) after the trial court sustained the District's
demurrer to the complaint without leave to amend. McKenna contends the trial court erroneously
found her complaint failed to state claims for direct and vicarious liability
based on the unlawful manner in which the District processed her fire
protection plan (fire plan). She
alternatively contends the trial court should have granted her leave to amend
her complaint to state a cause of action.
We agree
with the District that the trial court correctly ruled the codes, regulations,
and ordinances McKenna relied on did not provide any basis for direct liability
because they created no mandatory duty owed to her. We further agree with the District that the
trial court correctly ruled the District did not have direct or vicarious
liability because the District and its employees are immune from liability for
discretionary acts, including decisions in a permitting or approval
process. The District is also immune
from liability for any misrepresentations its employees may have made in
processing the fire plan. As McKenna has
not shown she can successfully amend her complaint, we conclude the trial court
did not err in denying her leave to do so.
Accordingly, we affirm the judgment.
BACKGROUND
According
to the allegations in her complaint, which we assume to be true for purposes of
this appeal (Harshbarger v. City of
Colton (1988) 197 Cal.App.3d 1335, 1338), McKenna owns a 16-acre
residential lot in eastern San Diego County. In April 2004 she began efforts to obtain
approval to split her property into two lots (project). In September 2005 she submitted a tentative
parcel map application (application) to the County
of San Diego's Department of
Planning and Land Use (County). As part
of the application process, the District was required to review McKenna's
proposed fire plan to determine whether it complied with all applicable fire
codes, regulations, and ordinances and then either approve it, approve it with
conditions, or deny it.
In November
2005 McKenna submitted the fire plan for the District's review. Neither the County nor the District had
guidelines for preparing fire plans.
They also did not have a list of recommended consultants or a template
to assist applicants.
In
preparing her fire plan, McKenna relied on recommendations and conditions
contained in letters sent from the District to the County in October and
November 2005. The District approved the
fire plan in December 2005 and again in April 2006.
In August
2006 based on the District's approval of the fire plan, the County also
approved the fire plan. However, more
than a year later, in October 2007, the County withdrew its approval because
the fire plan did not provide for secondary access to the property in case of
fire emergencies.
McKenna met
with the District's fire marshal and the County's fire marshal in early
November 2007 to discuss the secondary access requirement. They suggested McKenna propose using another
roadway as a "same practical effect" alternative. During the meeting, the fire marshal admitted
she did not know she was supposed to be enforcing state fire regulations even
though knowledge of such matters was a requirement for her position.
Immediately
after meeting with McKenna, the two fire marshals met with a County
representative and concluded the "same practical effect" alternative
was not a viable option. They did not,
however, share this information with McKenna.
Meanwhile,
during the remainder of 2007 and into 2008, McKenna developed an alternative
roadway same practical effect proposal.
She obtained easements from her neighbors for the roadway, conditioned
upon gates being installed at both ends of the roadway to prevent unrestricted
access. The District's fire chief denied
the proposal, indicating the gates had to be accessible to the general public.
McKenna appealed
the fire chief's decision to the District's governing board (Board). The Board directed the fire chief to host a
meeting with McKenna and others to attempt to resolve the matter. In a communication to another fire official
to set up the meeting, the District's fire marshal used language suggesting the
outcome of McKenna's appeal hearing had been predetermined. McKenna brought the communication to the
Board's attention. One of the Board
members responded that he was very disturbed by it and would request a formal
investigation into it.
The
resolution meeting was held in October 2008.
During the meeting, the County's fire marshal informed McKenna for the
first time that the maximum length of the alternative roadway could not exceed
1,320 feet. She had previously been told
the maximum was twice that length. The
difference directly impacted the viability of her proposal and prevented
resolution of the gate issue.
McKenna's
appeal of the gate issue appeared on the Board's November 13, 2008 agenda.
McKenna was not given notice of this and did not attend the
meeting. The Board subsequently denied
the appeal and upheld the fire chief's decision not to allow private gates on
the alternative roadway.
In August
2009 the Board conducted another appeal hearing. The precise topic of the appeal is not clear
from McKenna's complaint, but in her opening brief she states it was the appeal
of the fire chief's denial of her same practical effect proposal. In preparation for the hearing, the
District's fire marshal submitted McKenna's proposal to an outside fire marshal
for an independent review. However, the
outside fire marshal was not independent, as he had previously voted to deny
McKenna's proposal at a county peer review committee meeting. The District's fire chief used the outside
fire marshal's report without success in his attempt to persuade the Board to
uphold his denial of McKenna's proposal.
The Board overturned the fire chief's decision and approved her proposal. Nonetheless, then the proposal was infeasible
because McKenna's neighbors could no longer provide the necessary easements for
the alternative roadway.
Two months
later, the District's legal counsel sent McKenna a letter informing her the
District was conducting a formal investigation.
He also informed her the District's fire chief and fire marshal would no
longer be handling her project pending the investigation's conclusion.
She
subsequently filed a claim with the District and the District rejected it. She then filed this action for negligence and
intentional interference with prospective economic advantage. The gravamen of her complaint is somewhat
counterintuitive. She asserts her
original fire plan did not comply with state and local fire codes and
ordinances. However, because District
failed to properly hire, train and supervise its employees and because these
employees failed to properly enforce state and local fire codes and ordinances,
the District negligently approved the fire plan in December 2005 and again in
April 2006. This approval, along with
the District's later withholding and intentional misrepresentation of material
facts, induced her to fruitlessly continue expending time and money processing
her application instead of abandoning it.
The
District demurred to McKenna's complaint, arguing her causes of action failed
to state a claim because she did not allege "a statute or enactment upon
which liability may be based against [the District], or which provided a duty
or mandatory duty for [the District] to perform the acts alleged." The trial court sustained the demurrer
without leave to amend, finding McKenna failed to allege a basis for direct
liability "because she has not identified any mandatory duties created by
an enactment." The trial court
further found McKenna failed to allege a basis for derivative liability because
"[n]either [the District] nor its employees can be sued in tort for injury
caused in connection with the adoption or enforcement of an enactment, or the
decision to issue or deny a permit, license or similar authorization. [Citations.]" As the trial court found these defects could
not be cured by amendment, it sustained the demurrer without leave to amend.
DISCUSSION
I
Standard of
Review
" '
"On appeal from an order of dismissal after an order sustaining a
demurrer, our standard of review is de novo, i.e., we exercise our independent
judgment about whether the complaint states a cause of action as a matter of
law." ' [Citation.] 'A judgment of dismissal after a demurrer has
been sustained without leave to amend will be affirmed if proper on any grounds
stated in the demurrer, whether or not the court acted on that ground.' [Citation.]
In reviewing the petition/complaint, 'we must assume the truth of all
facts properly pleaded by the plaintiffs, as well as those that are judicially
noticeable.' [Citation.]
"Further,
'[i]f the court sustained the demurrer without leave to amend, as here, we must
decide whether there is a reasonable possibility the plaintiff could cure the
defect with an amendment.
[Citation.] If we find that an
amendment could cure the defect, we conclude that the trial court abused its
discretion and we reverse; if not, no abuse of discretion has occurred. [Citation.]
The plaintiff has the burden of proving that an amendment would cure the
defect. [Citation.]' [Citation.]
'[S]uch a showing can be made for the first time to the reviewing court
[citation] . . . .' "
(Firefighters,
II
McKenna
seeks to hold the District accountable for her damages under both direct and
vicarious liability theories. We
conclude neither theory is viable.
A
Direct Liability
"[A]
public entity may be liable for an injury directly as a result of its own
conduct or omission, rather than through the doctrine of respondeat superior,
'as . . . provided by statute.' (Gov. Code, § 815, italics added.)" (Zelig
v. County of Los Angeles (2002) 27 Cal.4th 1112, 1131.) One statutory source of direct liability for
a public entity, "Government Code section 815.6 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, the 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.' Thus, 'Government Code section
815.6 contains a three-pronged test for determining whether liability may be
imposed on a public entity: (1) an
enactment must impose a mandatory, not discretionary, duty [citation]; (2) the
enactment must intend to protect against the kind of risk of injury suffered by
the party asserting [Government Code] section 815.6 as a basis for liability
[citations]; and (3) breach of the mandatory duty must be a proximate cause of
the injury suffered.' " (
18 Cal.App.4th 49, 54.) McKenna's
complaint fails to state a cause of action under Government Code section 815.6
because it fails the first prong of this test.
1
McKenna's
complaint alleged the District violated its mandatory duty to hire qualified
employees and to train, supervise, investigate, and discipline them. Although McKenna has not focused on this allegation
on appeal, we are uncertain whether she has wholly abandoned a claim based on
it. Assuming she has not, she
nonetheless fails to state a cause of action for negligent hiring, training,
supervision, and retention because she has not cited a statutory basis for it
as required by Government Code section 815.6.
"[A] direct claim against a governmental entity asserting negligent
hiring and supervision, when not grounded in the breach of a statutorily imposed
duty owed by the entity to the injured party, may not be maintained." (de
Villers v. County of San Diego (2007) 156 Cal.App.4th 238, 255-256.)
2
McKenna's
complaint also alleges the District violated its mandatory duty to apply
applicable fire codes, regulations, and ordinances when it reviewed her fire
plan. To support a claim based on this
allegation, she cites to state regulations, a County general plan amendment and
several Health and Safety Code sections.
The state
regulations she cites are sections 1270.04 and 1270.05 of title 14 of the
California Code of Regulations, which are part of the California Board of
Forestry and Fire Protection's basic wildland fire protection standards. (Cal. Code Regs., tit. 14, § 1270.) The first cited regulation requires
"local jurisdictions" to notify the "Director" of
applications for tentative maps. The
"Director" then may review the maps and make fire protection
recommendations. In addition, the
"local jurisdictions" must ensure the regulatory standards become
conditions of approval of the maps. (Cal.
Code Regs., tit. 14, §1270.04.) The
second cited regulation indicates that either the "Director" or
certain "local jurisdictions" have authority to inspect for
compliance with the standards. (Cal.
Code Regs., tit. 14, §§ 1270.05, subd. (a), 1270.06.) For purposes of these regulations,
"Director" means the "Director of the Department of Forestry and
Fire Protection or his/her designee" and "[l]ocal jurisdiction"
means "[a]ny county, city/county agency or department, or any locally
authorized district that issues or approves building permits, use permits,
tentative maps or tentative parcel maps, or has authority to regulate
development and construction activity." (Cal. Code Regs., tit. 14,
§ 1271.00.) As the District does
not fall within either definition, the cited regulations do not impose any
duty, mandatory or otherwise, on the District.
McKenna
similarly cites to provisions in a County general plan amendment discussing
certain County responsibilities in the land use approval process (i.e., to
refer a project to appropriate fire protection agencies for review and to
require the availability of sufficient fire protection and emergency services
facilities). As these provisions do not
discuss any corresponding responsibilities of the District's, they do not
establish any mandatory duty on the District's part.
In her
opening brief, McKenna also cites to three sections of the Fire Protection
District Law of 1987 (Health and Saf. Code, § 13800 et seq.). Two of the cited sections identify certain
express and implied powers the District "shall" have. (Health and Saf. Code, §§ 13861, 13862.) The other section identifies a circumstance
in which the District's governing board "shall" be deemed a
legislative body and the District "shall" be deemed a local
agency. (Health and Saf. Code, §
13869.) None of these sections requires
the District to exercise any particular power in any particular way. To the contrary, the first cited section
expressly states the District "may" exercise the specified powers,
indicating the District has the discretion whether to do so. (Health and Saf. Code, § 13861;
Cal.3d 901, 908 ["As used in [Government Code] section 815.6, the term
'mandatory' refers to an obligatory duty which a governmental entity is
required to perform, as opposed to a permissive power which a governmental
entity may exercise or not as it chooses"], criticized on another point in
Caldwell v. Montoya (1995) 10 Cal.4th
972, 987, fn. 8.)
For the
first time in her reply brief, McKenna cites to another Health and Safety Code
section. This cited section provides
that the chief of a fire protection district or authorized representatives
"shall enforce in their
respective areas building standards relating to fire and panic safety adopted
by the State Fire Marshal and published in the California Building Standards
Code and other regulations that have been formally adopted by the State Fire
Marshal for the prevention of fire or for the protection of life and property
against fire or panic." (Health
& Saf. Code, § 13145, italics added.)
Although
the statute uses the word "shall," "[i]n determining whether a
mandatory duty actionable under [Government Code] section 815.6 had been
imposed, the Legislature's use of mandatory language (while necessary) is not
the dispositive criteria. Instead, the
courts have focused on the particular action required by the statute, and have
found the enactment created a mandatory duty under [Government Code] section
815.6 only where the statutorily commanded act did not lend itself to a
normative or qualitative debate over whether it was adequately fulfilled. (de
Villers v. County of San Diego, supra,
156 Cal.App.4th at p. 260.) Thus, courts
have held that where compliance with the statute requires the public entity to
render a considered decision based on its expertise and judgment, the statute
imposes a discretionary rather than a mandatory duty. (Guzman
v. County of Monterey (2009) 46 Cal.4th 887, 899-900; Sonoma AG Art v. Department of Food & Agriculture (2004) 125
Cal.App.4th 122, 128 [even if a statute contains mandatory language creating a
duty, the duty is discretionary if the public entity must exercise significant
discretion to perform it].)
In this
case, while McKenna's complaint inarguably portrays bureaucracy at its worst,
it simply does not present an actionable claim.
McKenna's complaint and brief consistently describe the District's task
as determining whether her submittal complied with applicable codes,
regulations, and ordinances. As this
determination required expertise and judgment, it was discretionary and
Government Code section 818.4 immunizes the District for liability for damages
arising from it, even if the District was negligent or otherwise erred in
making it. (See, e.g.,
Cal.App.3d 999, 1003-1005.)
B
Vicarious Liability
In addition
to being directly liable for breaches of mandatory duties, " '[a] public
entity is liable for injury proximately caused by an act or omission of an
employee of the public entity within the scope of his [or her] employment if
the act or omission would, apart from this section, have given rise to a cause
of action against that employee or his [or her] personal representative'
[citation], except 'where the employee is immune from liability'
[citation]. This '[v]icarious liability
is a primary basis for liability on the part of a public entity, and flows from
the responsibility of such an entity for the acts of its employees under the
principle of respondeat superior.' "
(Firefighters,
1
To the
extent McKenna's claims against the District are based on allegations the
District's employees' negligently approved her initial fire plan, her claims
fail to state a cause of action against the District. Public employees, like public entities, are
not liable for injuries caused by the issuance or denial, or the failure to
issue or deny a permit, approval or similar authorization where they are
authorized by enactment to determine whether the authorization should be issued
or denied. (Gov. Code, § 821.2;
33 Cal.App.4th 1472, 1480; O'Hagan v. Bd.
of Zoning Adjustment (1974) 38 Cal.App.3d 722, 726-727.)
The fact
the District's employees may not have applied the appropriate codes,
regulations, and ordinances in their review of the fire plan does not abrogate
their immunity. As the Supreme Court has
explained, cases cannot be read "to hold that a public employee acts
beyond his [or her] discretion, or breaches a 'mandatory duty,' whenever he or
she commits a statutory violation while performing public duties. [Citation.]
Such a rule would vastly undermine the immunity for discretionary
acts." (Caldwell v. Montoya, supra,
10 Cal.4th at p. 987-988, fn. 8; see also Downer
v. Lent (1856) 6 Cal. 94, 95 ["Whenever, from the necessity of the
case, the law is obliged to trust the sound judgment and discretion of an
officer, public policy demands that he should be protected from any
consequences of an erroneous judgment."].)
2
To the
extent McKenna's claims against the District are based on negligent or
intentional misrepresentations by the District's employees, the claims also
fail to state a cause of action against the District. While public employees have only qualified
immunity for injuries caused by their misrepresentations, a public entity has
absolute immunity for such injuries. (Gov. Code, §§ 818.8, 822.2;
C
Leave to Amend
McKenna
contends that even if the trial court properly sustained the District's
demurrers, the trial court erred by denying her leave to amend her
complaint. We review the decision to
deny leave to amend under the abuse of discretion standard. (Schifando
v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.) McKenna has not shown the trial court abused
its discretion in this case because she has not established there is a
reasonable probability she can amend her complaint to state a claim for which
the District does not have immunity. (
DISPOSITION
The
judgment is affirmed. The parties are to
bear their own appeal costs.
McCONNELL,
P. J.
WE CONCUR:
NARES, J.
McINTYRE, J.
name="_ftn1" title="">[1] Along with its respondent's brief, the District filed a
request for judicial notice of excerpts from the 2001 and 2007 versions of the
California Fire Code absolving fire officials from individual liability for
damages arising from their performance of their official duties under the
code. We deny the request as this
information is not necessary to our resolution of this appeal. (San
Diego City Firefighters, Local 145 v. Board of Administration etc. (2012)
206 Cal.App.4th 594, 600, fn. 3 (Firefighters.)
name="_ftn2" title="">[2] Although not entirely clear from the complaint, the
investigation appears to have been initiated by correspondence McKenna filed
with District the day before. The
District ultimately found the allegations against the fire marshal and fire
chief unfounded.
