California Supreme Court Rules Public Entities Must Explicitly Plead Statutory Immunities or Face Waiver or Forfeiture
On July 15, 2019, the California Supreme Court decided Quigley v. Garden Valley Fire Protection District, to answer whether Government Code section 850.4 constituted an affirmative defense that could be forfeited if not timely raised or instead served as a limitation on the fundamental jurisdiction of the courts, which can never be forfeited or waived. The Supreme Court determined that the immunity operates as an affirmative defense to liability so that it could be waived if not properly invoked.
In September 2009, a wildfire known as the Silver Fire broke out in the Plumas National Forest. Employees of two fire protection districts managed a base camp, where firefighters who were in between shifts could sleep in tents and sleeping bags near a portable shower unit. Plaintiff Rebecca Megan Quigley (“Plaintiff”), a United States Forest Service firefighter, was sleeping in the area when she was run over by a water truck servicing the shower unit. She sustained serious and permanent injuries.
Plaintiff sued the three base camp managers as well as their employers, the Chester Fire Protection District and the Garden Valley Fire Protection District (“Defendants”). She claimed the Defendants created a dangerous condition of public property when they negligently permitted firefighters to sleep in the area where she was run over by not roping the area off or posting signs forbidding vehicles from entering.
Defendants filed an answer, alleging 38 affirmative defenses, including 11 defenses asserting immunity under 17 individually cited sections of the California Government Code. Defendants did not explicitly allege the immunity conferred by section 850.4. However, their answer included a “whole-act” affirmative defense which stated, “A public entity and its employees are immune from liability for damages alleged in the complaint and Defendants assert all defenses and rights granted to them by the provisions of Government Code sections 810 through 996.6, inclusive.”
Four years after the complaint was filed, trial began. After Plaintiff’s counsel completed his opening statement, Defendants presented a written motion for nonsuit, in which Defendants invoked, for the first time, Government Code section 850.4 immunity. Plaintiff objected on the ground that Defendants had waived the immunity because they did not include it in their answer. The trial court overruled Plaintiff’s objection, finding that Defendants cannot waive the immunity because “governmental immunity is jurisdictional and can’t be waived”.
Plaintiff renewed her objection in a motion for new trial, which was denied. There, the trial court held that Defendants had not waived the section 850.4 immunity because they had pleaded the “whole-act” affirmative defense, which was sufficient to assert immunity under Government Code section 850.4.
On appeal, Plaintiff again renewed her objection to the belated invocation of section 850.4 immunity. The Court of Appeal rejected her argument, finding that Defendants could not have waived the immunity because section 850.4 is “jurisdictional” and can be raised “at any time”. The Court of Appeal did not address whether Defendants’ “whole-act” pleading of immunity was sufficient to preserve invocation of section 850.4.
The California Supreme Court began its opinion with a discussion about the term “jurisdiction”, explaining that the issue in this case dealt with the term “jurisdiction” as used to determine “the power of the court over the subject matter of the case”. Under this definition, jurisdiction concerns the “basic power of a court to act” so defects in “fundamental jurisdiction” may be raised at any point in a proceeding.
The Supreme Court went on to examine the language of Government Code section 850.4 with the presumption that statutes generally do not limit the courts’ fundamental jurisdiction without “clear indication of legislative intent to do so”. The Supreme Court noted that the wording of Government Code section 850.4 provided no clear indication that the Legislature intended to limit the fundamental jurisdiction of the courts. There was nothing to suggest that the Legislature intended to withdraw a class of cases from the courts’ power to adjudicate.
Instead, the Supreme Court recognized that Government Code section 850.4 reads as “a substantive bar to tort liability”, like other privileges and immunities that shield actors and activities from potential tort liability. It further noted that the legislative history of the Government Claims Act supported a finding that the Legislature did not intend to limit the fundamental power of the courts and explicitly disapproved of prior decisions to the extent that they suggested that the statutory immunities in the Government Claims Acts deprived courts of fundamental jurisdiction. As such, the Supreme Court determined that that section 850.4 immunity operated as an affirmative defense, which must be pleaded in an answer or it may be waived or forfeited.
Ultimately, the Supreme Court returned the case back to the Court of Appeal to determine whether the “whole-act” affirmative defense that the Defendants had pleaded sufficiently raised the immunity, and if not, the case was to be sent back to the trial court to decide whether to allow a belated assertion of the defense after the commencement of trial.
While this case addresses a single immunity – Government Code section 850.4 – the analysis of the California Supreme Court applies to other statutory immunities found in the Government Code. As with section 850.4, many statutory immunities do not contain language that suggests that the Legislature intended them to limit the fundamental jurisdiction of the courts so that they act as a jurisdictional bar that can be raised at any time. Instead, many immunities found in the Government Code read as bars to tort liability, and as such, public entities should take care to plead all applicable immunities in their answers. While the Supreme Court did not decide whether a “whole-act” affirmative defense was sufficient, public entities, as a matter of best practice, should plead each affirmative defense with a citation to a specific code section in their answers to ensure that immunities are not waived or forfeited.
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