Set within in a classic constitutional power struggle between the legislature and the judiciary, the 2019 California Supreme Court opinion in Quigley v. Garden Valley Fire Protection District (7 Cal. 5th 798) held statutory immunities for public entities are affirmative defenses and may be waived if not timely raised. The broad holding categorically overturns a line of cases which held statutory immunities, which shield public entities from liability, is jurisdictional and cannot be waived. On its surface, the Quigley opinion deals with a rather banal procedural issue but a deeper analysis reveals a fundamental policy conflict between sovereign immunity and judicial power, a power struggle which dates back to the founding days of our judicial system.
The Case Below
The particular immunity at issue in Quigley arises under California Govt. Code § 850.4, which immunizes public entities from liability for injuries caused by the condition of fire protection, equipment or facilities. Plaintiff Rebecca Megan Quigley was a United States Forest Service firefighter who sustained serious and permanent injuries when she was run over by a water service truck at a base camp while fighting a 2009 wildfire in northern California commonly known as the Silver Fire in Plumas National Forrest.
The defense Answered the Complaint raising numerous statutory immunities but did not specifically raise the 850.4 immunity. However, the defense did include a catchall affirmative defense in its Answer raising all statutory immunities in the government code. The case proceeded to trial. After Plaintiff’s counsel finished his opening statement, counsel for the defense presented a written motion for non-suit raising the 850.4 immunity for the first time. The trial court determined the immunity applied because plaintiff was seeking damages based on the condition of firefighting facilities and over Plaintiff’s objection ruled the defense could not have waived 850.4 “because governmental immunity is jurisdictional and can’t be waived.”
Plaintiff renewed her objection in a motion for new trial. In denying Plaintiff’s motion, the trial court used a different rationale relying on the catchall affirmative defense in the Answer. Plaintiff’s appeal was likewise denied. The Court of Appeal agreed with the trial court’s initial rationale holding the defense could not have waived the immunity because it is jurisdictional and may be raised at anytime and affirmed the award of nonsuit to the defendants. However, the Court of Appeal did not address the issue of whether the catchall affirmative defense was proper. The California Supreme Court granted Plaintiff’s writ of certiorari to decide whether the CGA immunities are jurisdictional and cannot be waived or an affirmative defense which must be raised in the Answer.
The Eleventh Amendment to the United States Constitution is a designed limitation on federal power granting the states sovereign immunity form suits by citizens of any foreign state. Prior to the enactment of the Government Claims Act (“GCA”), California followed the common law rule of governmental immunity which shielded public entities from any tort liability even from its own citizens. This rule was subsequently eroded by exceptions created by both the courts and the legislature. In 1963, California enacted the GCA, a statutory scheme designed to balance the rights of the individual with the policy of sovereign immunity by allowing certain lawsuits against the State to specific enumerated statutory claims while simultaneously shielding the government from any common law tort liability. (CGA § 815). For example, the CGA provides for public entity liability when its employees, through negligence, create a dangerous condition of public property, the claim at issue in Quigley. (See CGA § 835). But the CGA also sets up a number of statutory immunities intended to shield the government from liability under the CGA so government action is not chilled by the threat of potential liability particularly with regard to the State’s compelling interest in providing for the public health and safety of its citizens. Section 850.4 being one such immunity.
Jurisdiction and the Scope of Judicial Power
The real issue addressed by the California Supreme Court in Quigley concerns the nature of judicial power and the power of the legislative and executive branches to define and limit it, a conflict which dates back to the landmark 1803 Marbury v. Madison decision which first established the concept of judicial review and established the power of the courts to say what the law is. (5 U.S. 137). The California Supreme Court decided to hear the Quigley matter ostensibly to resolve a conflict of law crated by the Court of Appeal’s decision but also to mark its territory and re-establish the boundaries of judicial power by effectively overruling an entire line of cases which held that governmental tort liability was jurisdictional.
The Court of Appeal’s holding in Quigley that GCA immunities are jurisdictional was seemingly in conflict with (McMahan’s of Santa Monica v. City of Santa Monica (1983) 146 Cal. App. 3d 683) which held the 850.4 immunity was an affirmative defense which could be waived by failing to plead and prove the defense at trial. The Court of Appeal in Quigley attempted to distinguish McMahan’s by criticizing the opinion’s failure to distinguish between qualified immunities with elements requiring proof from absolute immunities which do not require any proof. In the view of the Court of Appeal, absolute immunities like CGA 850.4 are a jurisdictional bar to recovery and essentially deprive a court of its fundamental power to hear a case, a defense which traditionally may be raised at any time.
The California Supreme Court did not find the distinction between qualified and absolute immunity to be persuasive and instead essentially avoids the implications of the distinction by framing the issue as one involving legislative intent and the definition of the term jurisdiction. The Court made its agenda clear when it states: “Although the legislature may impose reasonable restrictions on the fundamental jurisdiction of the courts, our cases reflect ‘a preference for the resolution of litigation and the underlying conflicts on their merits by the judiciary’” (Quigley, 7 Cal. 5th at 808, citations omitted). The Court continues stating “The power of the courts to resolve cases is the essential underpinning of the judiciary’s ability to ‘effectively…function as a separate department of government.’” (Ibid, citations omitted). Thus, the Court reasons if the legislature intends to deprive a general jurisdiction court of the power to hear a class of cases “we expect it will make that intention clear.” (Ibid.).
Finding no such clear legislative intent in 850.4, the Supreme Court overruled the Court of Appeal and overturned a line of cases relied on by the defense which describe governmental tort immunity as “jurisdictional.” To rationalize its holding, the Court reasons the cases which discuss governmental tort liability as jurisdictional fail to distinguish between fundamental jurisdiction and acts in excess of jurisdiction. (Quigley, at 813). To illustrate its point, the Court discusses the case (State of California v. Superior Court (Rodenhuis) (1968) 263 Cal. App. 2d 396). The relevant procedural issue in Rodenhuis was whether the state could file a writ of prohibition to address its sovereign immunity defense and thereby avoid a trial on the merits when the Plaintiff’s evidence could not establish liability for dangerous condition under CGA 835. The Rodenhuis Court held the defense of sovereign immunity is properly raised by a writ of prohibition. Buttressed by the Rodenhuis case, the Supreme Court argues the writ of prohibition as a means to address sovereign immunity in essence creates a meta-jurisdiction whereby the courts have jurisdiction to determine whether they have acted without or in excess of their jurisdiction. Thus, the Supreme Court concludes CGA immunities are not jurisdictional in the fundamental sense such that they cannot be waived or forfeited and are affirmative defenses which must be pleaded in an Answer even when the immunity is absolute requiring no proof elements.
The Supreme Court remanded the case back to the Court of Appeal to address the issue of whether the catchall affirmative defense provided sufficient notice to the Plaintiff regarding the CGA 850.4 immunity. Even if the Court of Appeal finds it was not properly raised by the catch all affirmative defense, the case is to be remanded to the trial court which has discretion to allow an amended pleading at the time of trial. As the issue of the appropriateness of a catchall affirmative defense is still unresolved, those defending public entities should plead each relevant immunity in the CGA separately in its Answer to avoid a lack of notice argument from the Plaintiff.