Greenwood v. City of L.A.

Filed 3/27/23 (see concurring opinion)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
ELIZABETH GREENWOOD, B313852
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 19STCV39849)
v.
CITY OF LOS ANGELES,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Daniel M. Crowley, Judge. Affirmed.
McNicholas & McNicholas, Matthew S. McNicholas,
Douglas D. Winter, Jeffrey R. Lamb; Esner, Chang & Boyer,
Stuart B. Esner and Kathleen J. Becket for Plaintiff and
Appellant.
Michael N. Feuer, City Attorney, Scott Marcus, Senior
Assistant City Attorney, and Shaun Dabby Jacobs, Deputy City
Attorney, for Defendant and Respondent.
Plaintiff and appellant Elizabeth Greenwood appeals
from a judgment in favor of defendant and respondent City of
Los Angeles (the City), in a lawsuit alleging the City knowingly
failed to remedy a dangerous condition on public property
adjacent to Greenwood’s place of work, as a result of which
Greenwood contracted typhus. The trial court entered this
judgment after sustaining a demurrer on the basis that, under
Government Code 1 section 855.4, the City was immune from
liability. We agree with the trial court.
Because the court correctly sustained the City’s demurrer
and did not abuse its discretion in denying leave to amend, we
affirm the judgment.
FACTS AND PROCEEDINGS BELOW
A. Allegations in the Operative Complaint
In reviewing an order sustaining a demurrer, “we must
accept the facts pleaded as true and give the complaint a
reasonable interpretation.” (Mathews v. Becerra (2019) 8 Cal.5th
756, 762.) The operative complaint alleges the following facts:
Greenwood began working as a deputy city attorney
in 1996. In approximately October 2018, her office was located
in a city building at 200 North Main Street in Los Angeles
(City Hall East). Since September 2018 “there was a typhus
epidemic in the downtown Los Angeles area, and the County of
Los Angeles designated an area . . . almost immediately adjacent
to” and “only two blocks outside” of City Hall East “as the ‘typhus
zone.’ ” (Capitalization omitted.) “[T]here was an accumulation
of trash and other items at and adjacent to [City Hall East] that
1Unless otherwise indicated, all further statutory
references are to the Government Code.
2
caused and contributed to the outbreak of typhus.” “[T]he City
was on notice of this serious disease and its potential deadly
consequences” and was “aware of the dangerous condition of
[City Hall East] for a few months . . . yet ignored this knowledge
and failed to take measures to protect against this dangerous
condition.”
Greenwood “was exposed to typhus because she commuted
to [City Hall East] in a car and was exposed in the parking
area connected to [City Hall East] and/or [she] was exposed
outside [City Hall East] at or adjacent to the [Los Angeles] Mall,
which is itself adjacent to [City Hall East].” In November 2018,
Greenwood “contracted typhus . . . arising from or otherwise
caused by the dangerous conditions of [City Hall East].”
Specifically, she “became violently ill,” including having a “high
fever, stiff neck and severe headache, and [dizziness],” for which
she was treated with multiple medications. Lab work and an
infectious disease specialist ultimately diagnosed the source
of these symptoms as “typhus fever Group IgG, IgM” and
meningitis. Typhus can cause viral meningitis. “From the
date she contracted typhus, and continuing for several months
thereafter, [Greenwood] continued to suffer from extreme vertigo,
dizziness, and disequilibrium, each of which are symptoms of
typhus. Although [her] condition has somewhat improved, she
continues to suffer such symptoms.”
In December 2018, Greenwood “learned that the City was
not planning to fumigate the City Hall East building or take any
action to address the typhus outbreak in the adjacent areas.”
The City was also Greenwood’s employer, and “[she] made a
complaint to the California Division of Occupational Safety and
Health . . . , better known as Cal/OSHA, regarding the typhus
outbreak, and the fact that she contracted typhus.” Cal/OSHA is
3
investigating her complaint. Greenwood also “filed for workers’
compensation benefits with the City.” (Capitalization omitted.)
“[T]he City denied [the] claim, asserting that it was lacking
evidence to support industrial causation for [Greenwood’s]
injur[ies].”
B. Greenwood’s Lawsuit Against the City
Greenwood sued the City, alleging, under the theory
of premises liability, that the City was responsible for her
contracting typhus. The City demurred, arguing only that
Greenwood’s claim was barred by Worker’s Compensation
Act exclusivity. 2 The trial court sustained the demurrer with
leave to amend.
Plaintiff then filed a first amended complaint (the FAC),
alleging a single cause of action for dangerous condition of
public property. The City demurred and, citing section 855.4
immunity, the court sustained the demurrer with leave to amend.
Greenwood then filed a second amended complaint (the
SAC), the operative complaint in this action, again alleging a
single cause of action for dangerous condition of public property.
The City again demurred, arguing it was immune under both
section 855.4 and other code sections, and that Greenwood’s claim
was barred by Workers’ Compensation Act exclusivity. The trial
court sustained the demurrer without leave to amend, ruling:
2 Under the “Workers’ Compensation Act [(Lab. Code,
§ 3200 et seq.),] . . . all employees are automatically entitled to
recover benefits for injuries ‘arising out of and in the course of . . .
employment[,]’ . . . [and] [w]hen the conditions of [such]
compensation exist, recovery under the workers’ compensation
scheme ‘is the exclusive remedy against an employer for injury
or death of an employee.’ ” (Privette v. Superior Court (1993)
5 Cal.4th 689, 696–697; see Lab. Code, § 3600, subd. (a).)
4
“By failing to materially amend the FAC and making the same,
previously rejected, arguments regarding the applicability of . . .
section 855.4, [Greenwood] has demonstrated she is incapable of
stating a viable cause of action against [the City]. [Citation.] [¶]
The [c]ourt declines to consider [the City’s] remaining arguments
because the demurrer to the SAC is properly sustained pursuant
to the applicability of . . . section 855.4.”
On June 7, 2021, the court entered judgment for the City.
Greenwood timely appealed.
DISCUSSION
On appeal, Greenwood argues that the court reversibly
erred in sustaining the demurrer to the SAC, and that neither
section 855.4 immunity, nor Workers’ Compensation Act
exclusivity, defeats her claim on the facts alleged. In the
alternative, she argues that she can allege additional facts to
address any of the deficiencies in the SAC, and thus the trial
court abused its discretion in denying her leave to amend. We
review the ruling on the demurrer de novo, and the denial of
leave to amend for an abuse of discretion. (See T.H. v. Novartis
Pharmaceuticals Corp. (2017) 4 Cal.5th 145, 162 [“[i]n reviewing
an order sustaining a demurrer, we examine the operative
complaint de novo to determine whether it alleges facts sufficient
to state a cause of action under any legal theory”]; Aubry v. Tri-
City Hospital Dist. (1992) 2 Cal.4th 962, 971 [denial of leave to
amend following sustained demurrer reviewed for abuse of
discretion].)
We agree with the lower court that section 855.4 renders
the City immune to liability for the conduct alleged in the SAC.
Because we can affirm the judgment solely on this basis, we need
not and do not reach the parties’ remaining arguments regarding
5
other potential bases for immunity or Workers’ Compensation Act
exclusivity.
Because Greenwood has not identified additional facts she
could allege that would render her complaint viable, the court
also did not abuse its discretion in denying her leave to amend.
6
A. Law Relevant to Greenwood’s Arguments
1. Section 855.4
The Tort Claims Act (§ 810 et seq.) (the Act) “establishes
the basic rules that public entities are immune from [non-
contractual] liability except as provided by statute (§ 815,
subd. (a)), [and] that public employees are liable for their
torts except as otherwise provided by statute (§ 820, subd. (a)).”
(Caldwell v. Montoya (1995) 10 Cal.4th 972, 980 (Caldwell),
italics omitted.)
Section 835, pursuant to which Greenwood alleged her
dangerous condition cause of action, is one such statutory basis
for imposing liability on a public entity, but it again recognizes
this liability exists “[e]xcept as provided by statute.” (§ 835.)
Section 855.4, the primary subject of this appeal, provides
one such exception to a public entity’s liability under section 835
(or any other statute). It provides in full: “(a) Neither a public
entity nor a public employee is liable for an injury resulting
from the decision to perform or not to perform any act to promote
the public health of the community by preventing disease or
controlling the communication of disease within the community if
the decision whether the act was or was not to be performed was
the result of the exercise of discretion vested in the public entity
or the public employee, whether or not such discretion be abused.
[¶] (b) Neither a public entity nor a public employee is liable for
an injury caused by an act or omission in carrying out with due
care a decision described in subdivision (a).” (§ 855.4.)
Only two published California cases interpret section 855.4.
One case is Wright v. City of Los Angeles (2001) 93 Cal.App.4th
683 (Wright), in which the appellate court considered the
application of section 855.4 to a claim for dangerous condition
of public property against a city. (See Wright, supra, at pp. 688,
7
690.) In Wright, the plaintiffs lived near an abandoned hospital
building that was not open to the public. (Id. at pp. 685, 690.)
The plaintiffs’ daughter “would often explore in and around
the old hospital building.” (Id. at p. 686.) After doing so, she
“contracted hantavirus pulmonary syndrome and died.” (Ibid.,
fn. omitted.) “The hantavirus is spread via contact with infected
deer mice feces and dried urine.” (Id. at p. 686, fn. 2.) The
plaintiffs sued the City, and the trial court sustained a demurrer
without leave to amend. (Id. at pp. 686–687 & 687, fn. 5.)
Based on the immunity provided by section 855.4, the
appellate court concluded that the trial court had properly
sustained the City’s demurrer. (See Wright, supra, 93
Cal.App.4th at pp. 687, 689.) Wright expressly rejected the
argument that section 855.4 immunity should apply only “ ‘in
situations where a public entity acts in response to an outbreak
of a disease which affects the community as a whole such as
small pox or tuberculosis, not situations where a public entity’s
substandard maintenance of public property is the sole cause in
fact of an individual[’]s exposure to and contraction of a deadly
disease.’ ” (Wright, supra, at p. 689.) The court explained that,
“ ‘to hold that the immunity provided by . . . Section 855.4 is not
applicable to public property would be to subject public health
facilities and all other owners of any public property, improved or
unimproved, to be sued for failure to adequately keep the facility
or unimproved property germ, bacteria and virus-free. There is
no showing that this was the intent of the [L]egislature in the
statutory scheme of . . . Sections 835 and 855.4. [¶] The presence
of germs, bacteria and viruses and the like, many of which are
microscopic, and which may or may not be contained in saliva,
animal droppings, or any multitude of other forms, upon the
vast public property of this state, cannot . . . be viewed as
8
liability events, without some specifically stated intent of the
[L]egislature.’ ” (Wright, supra, at pp. 689–690.)
The second case, City of Los Angeles v. Superior Court
(2021) 62 Cal.App.5th 129 (Wong), decided after Greenwood
filed the SAC, involves facts similar to those alleged here. The
plaintiff in Wong sued the City for negligence and a dangerous
condition of public property, claiming “that her husband, [a]
Los Angeles Police Department (LAPD) [o]fficer . . . , contracted
typhus from unsanitary conditions in and around the Central
Community Police Station where he worked,” and that she
then contracted it from living with him. (Id. at pp. 132–133.)
“[Plaintiff] alleged that the City had actual or constructive notice
that the property ‘was the subject of a typhus epidemic and that
proactive conduct was required in order to ensure safety,’ but
the City ‘permitted the conditions to remain unabated.’ ” (Id. at
p. 148.) Plaintiff further alleged that Cal/OSHA “issued citations
to the [LAPD] Central Division and ordered the City to vacate
and abate the unsanitary . . . [and] unhygienic . . . conditions on
the City’s property,” but the City failed to do so. (Id. at p. 134.)
Based on section 855.4 immunity, however, Division Four
of this court affirmed an order sustaining the City’s demurrer.
(Wong, supra, 62 Cal.App.5th at pp. 133–134, 144.) The court
held that, at the demurrer stage, the plaintiff had the burden
to allege facts sufficient to establish that the City’s conduct
was not immune under section 855.4. (Wong, supra, at p. 148.)
In reaching this conclusion, the court rejected the plaintiff ’s
argument that cases interpreting the concept of an exercise
of discretion for purposes of section 820.2 also apply to
9
section 855.4. 3 (Wong, supra, 62 Cal.App.5th at p. 148.) The
court opined that plaintiff had failed to meet her burden to
survive the demurrer, because the complaint did not “allege[ ]
facts sufficient to demonstrate that the City’s actions or
omissions do not constitute a ‘decision to perform or not perform
any act’ to ‘control[ ] the communication of disease within the
community’ which was within ‘the discretion vested in’ the City.”
(Id. at p. 149.)
The court also rejected the argument that, “[the
plaintiff] [had] alleged that the City ‘acted without due
care in implementing’ its decision, and therefore the City’s
actions fall outside the immunity provisions in section 855.4,
subdivision (b).” 4 (Wong, supra, 62 Cal.App.5th at p. 149.) The
court reasoned that the plaintiff had not alleged “that the City
carried out any particular ‘act or omission’ without due care,”
but rather “that the decision itself—to not abate the allegedly
dangerous condition of the property—was the cause of her
injury.” (Ibid.)
3 Greenwood likewise raises arguments based on
section 820.2 cases, one of which is virtually identical to the
argument rejected by Wong. We summarize section 820.2
below. (See Discussion post, part A.2.) We also provide further
detail regarding Wong’s analysis of the differences between
section 820.2 and section 855.4 in the context of discussing
Greenwood’s section 820.2 arguments.
4 See section 855.4, subdivision (b) (“[n]either a public
entity nor a public employee is liable for an injury caused by an
act or omission in carrying out with due care a decision described
in subdivision (a),” italics added).
10
2. Section 820.2
Section 820.2 is a governmental immunity statute that
no party argues is directly applicable to the facts alleged in
the SAC. The statute, however, does contain some of the same
key language as section 855.4 that neither Wong nor Wright
expressly interprets. In some of her arguments on appeal,
Greenwood urges us to adopt interpretations of this language
that appear in section 820.2 cases. We therefore provide some
background on this section and the body of case law on which
Greenwood so relies.
Section 820.2, enacted at about the same time as
section 855.4 (see Stats. 1963, ch. 1681, p. 3269 [section 820.2]
& Stats. 1963, ch. 1681, pp. 3281–3282 [section 855.4]), provides
that, “[e]xcept as otherwise provided by statute, a public employee
is not liable for an injury resulting from his act or omission where
the act or omission was the result of the exercise of the discretion
vested in him, whether or not such discretion be abused.”
(§ 820.2, italics added.) “Section 820.2 codified a long-standing
rule to ensure that ‘ “public employees will continue to remain
immune from liability for their discretionary acts within the
scope of their employment.” ’ (Caldwell, supra, 10 Cal.4th at
p. 980 . . . .)” (Wong, supra, 62 Cal.App.5th at p. 147.) Cases
analyzing whether there has been an “exercise of discretion”
under section 820.2 “ ‘draw[ ] the line between “planning” [or]
“operational” functions of government’ ” and “ ‘lower-level, or
“ministerial,” decisions that merely implement a basic policy
already formulated.’ ” (Wong, supra, at p. 147; see Lopez v.
Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 794
(Lopez) [“an individual bus driver’s decision concerning what
form of protective action to take in a particular case” was “the
kind of ministerial, ‘operational’ action . . . that is not immunized
11
by . . . section 820.2,” italics omitted]; Johnson v. State of
California (1968) 69 Cal.2d 782 (Johnson) [parole officer’s failure
to warn a foster parent that child placed in her home had violent
tendencies did not constitute an exercise of discretion, because
what the officer chose to tell the family about the child was an
operational decision in carrying out a mandatory duty to place
the child in a foster home, not a policy decision]; Elton v. County
of Orange (1970) 3 Cal.App.3d 1053, 1058 (Elton) [public
employee’s placement of a dependent child in a home where she
was subject to abuse “may entail the exercise of discretion in a
literal sense, but such determinations do not achieve the level of
basic policy decisions, and thus do not, under the provisions of . . .
section 820.2, preclude judicial inquiry into whether negligence
of public employees was involved and whether such negligence
caused or contributed to plaintiff ’s injuries”].)
In this context, the California Supreme Court in Johnson
held that, because “[i]mmunity for ‘discretionary’ activities serves
no purpose except to assure that courts refuse to pass judgment
on policy decisions in the province of coordinate branches of
government,” “to be entitled to immunity [under section 820.2]
the state must make a showing that such a policy decision,
consciously balancing risks and advantages, took place.”
(Johnson, supra, 69 Cal.2d at pp. 794–795, fn. 8.) Thus, an
exercise of discretion under section 820.2 requires “a policy
decision [by a public employee], consciously balancing risks and
advantages”; put differently, that the employee has “render[ed]
a considered decision.” (Johnson, supra, at pp. 794–795, fn. 8;
accord, Lopez, supra, 40 Cal.3d at pp. 793–795.)
Given the nature of the facts necessary to satisfy such a
requirement, section 820.2 cases have further held that “[s]uch
a showing . . . [cannot be] made by [a defendant] at the demurrer
12
stage” and therefore it “would be error to sustain [a] demurrer
based on . . . section 820.2.” (Lopez, supra, 40 Cal.3d at p. 794;
accord, Elton, supra, 3 Cal.App.3d at p. 1058 [“[s]uch a showing
was not and could not have been made by the county at the
demurrer stage and the trial court’s ruling sustaining the
demurrers by reason of the immunity provisions of . . .
section 820.2 was also erroneous for this reason”].)
B. The Court Properly Sustained the Demurrer
to the SAC Based on Section 855.4 Immunity
Greenwood argues section 855.4 does not provide a basis on
which to sustain the demurrer to the SAC because (1) “[i]t cannot
be determined on the face of the complaint that [Greenwood’s]
harms were the result of an exercise of discretion,” and (2) “[e]ven
if there was an exercise of discretion . . . the City is not immune
as a matter of law because [Greenwood] has alleged that the City
acted without due care in implementing any such exercise of
discretion.” (Boldface omitted.)
1. Exercise of Discretion
In arguing the court could not conclude that the SAC
alleges facts reflecting an exercise of discretion sufficient to
sustain a demurrer based on section 855.4 immunity, Greenwood
urges that we should draw from section 820.2 case law in two
ways. First, she argues that we should define the requisite
“exercise of discretion” under section 855.4 as that term is
defined under section 820.2—namely, as requiring a “considered
decision” and analysis of risks and benefits. Second, she argues
that, in any event, the plaintiff should not bear the burden of
alleging facts establishing that such a considered decision did not
occur in order to survive a demurrer based on section 855.4
13
immunity, just as a plaintiff does not bear such a burden with
respect to section 820.2 immunity. We disagree on both points.
As Division Four of this court noted in Wong, “[a]lthough
section[s] 820.2 and 855.4 include similar language, there are
important differences between them. Section 820.2 addresses
only public employees, while section 855.4 addresses both public
employees and public entities.” (Wong, supra, 62 Cal.App.5th at
p. 148.) This is significant, given that, “[i]n general, the Act [of
which both section 855.4 and 820.2 are a part] ‘establishes the
basic rules that public entities are immune from liability except
as provided by statute (§ 815, subd. (a)), [whereas] . . . public
employees are liable for their torts except as otherwise provided
by statute (§ 820, subd. (a)).’ (Caldwell, supra, 10 Cal.4th at
p. 980.)” (Wong, supra, at p. 148.) “In addition, section 820.2
addresses only the ‘act or omission’ of a public employee, while
section 855.4 . . . [requires] a public employee’s or entity’s
‘decision to perform or not to perform any act.’ ” (Wong, supra,
at p. 148.)
We agree with Wong that these differences between
the statutes “are relevant to the scope of liability,” so “cases
interpreting section 820.2 are not directly on point” in
interpreting and applying section 855.4. (Wong, supra,
62 Cal.App.5th at p. 148.) These differences also render
the “considered decision” requirement courts developed for
section 820.2 unnecessary and illogical in the context of
section 855.4, subdivision (a). 5 That requirement makes sense
when determining whether to grant immunity for actions of a
public employee, because a single human’s actions may result
5 Wong did not expressly consider whether to adopt, for
the purposes of a section 855.4 analysis, the approach to defining
exercise of discretion set forth in section 820.2 cases.
14
not only from his or her conscious consideration of options,
but from instructions the employee receives, inadvertence, or
habit. A public entity, by contrast, cannot inadvertently decide
something. And absent a legal mandate to take a particular
course of action, a public entity also cannot make a decision
merely by following instructions.
Further, Johnson required a “considered decision” solely
as a means of assuring that what section 820.2 immunizes is
policymaking of the type government immunity is intended to
insulate. (See Johnson, supra, 69 Cal.2d at p. 795, fn. 8.) This
is necessary in the context of a statute like section 820.2 that
could potentially cover public employee actions in any subject
area, not all of which have relevance to the policymaking
our state Supreme Court has indicated government immunity
is designed to protect. Section 855.4, subdivision (a), by contrast,
immunizes only decisions on how to protect the “public health
of the community” or “prevent[ ] disease or control[ ] the
communication of disease within the community”—areas that
inherently implicate a policy-making function. We thus decline
to blindly graft the “considered decision” requirement developed
in Johnson onto a vastly different statute, in the context of which
the requirement makes little sense.
The more applicable guidance we learn from Johnson and
the body of section 820.2 case law Greenwood cites is the broader
principle that, in interpreting language in government immunity
statutes, we must “concentrat[e] on the reasons for granting
[government] immunity.” (Johnson, supra, 69 Cal.2d at p. 794,
italics added; id. at p. 790 [“ ‘[s]ince obviously no mechanical
separation of all activities . . . as being either discretionary or
ministerial is possible, the determination of the category into
which a particular activity falls should be guided by the purpose
15
of the discretionary immunity doctrine’ ”].) That purpose
is “assur[ing] . . . judicial abstention in areas in which the
responsibility for basic policy decisions has been committed
to coordinate branches of government[,]” because “[a]ny wider
judicial review . . . would place the court in the unseemly position
of determining the propriety of decisions expressly entrusted to a
coordinate branch of government.” (Id. at p. 793, italics omitted.)
Requiring proof of a “considered decision” for immunity under
section 855.4, subdivision (a) does not serve this purpose, for
the reasons set forth above. Instead, to determine whether an
“exercise of discretion” took place for the purposes of granting
a public entity immunity under section 855.4, subdivision (a),
we should consider whether the challenged decision was one
“expressly entrusted to a coordinate branch of government”
(Johnson, supra, 69 Cal.2d at p. 793), rather than the courts,
in an “area[ ] of quasi-legislative policy-making which [is]
sufficiently sensitive to justify a blanket rule that courts will not
entertain a tort action alleging that careless conduct contributed
to the governmental decision.” (Id. at p. 794.) One factor
to consider in assessing this is whether the entity made the
challenged decision based on a specific legal duty, in which case it
is far less likely the entity will be acting pursuant to an “exercise
of discretion.” (See Wong, supra, 62 Cal.App.5th at p. 149; see
Recommendation Relating to Sovereign Immunity (Jan. 1963) 4
Cal. Law Revision Com. Rep. (1963) pp. 830–831 [“when a public
official has a legal duty to act in a particular manner, he should
be liable for his wrongful or negligent failure to perform the duty;
and his employing public entity should be liable if such failure
occurs in the scope of his employment”].)
Considering the SAC through this lens, it is apparent
from the face of the complaint that the City’s decision not to
16
take action against the spread of typhus on the public property
adjacent from City Hall East was an exercise of discretion under
section 855.4, subdivision (a). Unlike in Johnson, where “no
plausible [policy] reason for governmental immunity [arose]”
(Johnson, supra, 69 Cal.2d at p. 795), all the above-noted policy
considerations motivating governmental immunity are applicable
on the facts alleged in the SAC. Nor does anything in the SAC
suggest a ministerial performance of a mandatory duty. (See
Wong, supra, 62 Cal.App.5th at p. 149 [because the plaintiff
“ha[d] not identified any mandatory duties the City violated with
respect to its decisions relating to the spread of typhus on City
property,” she “ha[d] not alleged facts sufficient to demonstrate
that the City’s actions or omissions do not constitute” the type
of discretionary decision described in section 855.4].) The SAC
alleged the City’s challenged decision was the result of an
exercise of discretion for the purposes of section 855.4.
Our holding today is not, as Greenwood argues,
inconsistent with the “well-established rule of construction
that when a word or phrase has been given a particular scope
or meaning in one part or portion of a law it shall be given the
same scope and meaning in other parts or portions of the law.”
(Stillwell v. State Bar (1946) 29 Cal.2d 119, 123.) Both the
“exercise of discretion” required by section 855.4 and that
required by section 820.2 are defined by the policy considerations
outlined above. Those policy considerations lead to different
requirements depending on whether the conduct at issue is that
of an individual public employee or a public entity, whether
the alleged liability arises from a decision, rather than an act
or omission, and whether the conduct involves a topic inherently
sensitive and entrusted to the executive branch.
17
Nor does our interpretation “render section 855.4’s
limitation that it only applies where there was an actual
exercise of discretion, a nullity,” as Greenwood argues. Where
a public entity or public employee’s decision to act or not act
in response to a public health emergency is pursuant to a
mandatory duty, such a decision would not be discretionary, but
rather ministerial. (See Wong, supra, 62 Cal.App.5th at p. 149.)
Under such circumstances, the policies underlying the need for
governmental immunity would not apply, and the decision would
not constitute an exercise of discretion. (Johnson, supra, 69
Cal.2d at p. 794.) The “exercise of discretion” requirement thus
still serves a key function under our interpretation of the phrase.
We next consider Greenwood’s second argument based
on section 820.2 case law: that a public entity defendant
should bear the burden of establishing no exercise of discretion
took place in order to justify sustaining a demurrer under
section 855.4, and/or that section 855.4 immunity cannot provide
a basis for sustaining a demurrer. Wong explicitly rejected this
approach, citing the differences between section 855.4 and 820.2.
(Wong, supra, 62 Cal.App.5th at p. 148 [rejecting argument that
public entity bore the burden of “prov[ing] at the demurrer stage
that [section 855.4] immunity applies”].) At least in the context
of a claim against a public entity, rather than a public employee,
we agree. The section 820.2 cases taking this approach do so
based on the nature of a definition of “exercise of discretion” that
we conclude above does not apply here.
For these reasons, under what we hold is the appropriate
approach to assessing the sufficiency of allegations against a
public entity in the face of a demurrer based on section 855.4,
subdivision (a) immunity, the SAC sufficiently alleges an
“exercise of discretion” under section 855.4, subdivision (a).
18
2. Due Care
Greenwood next argues that, even if the SAC alleges an
exercise of discretion falling within the scope of section 855.4,
subdivision (a), sustaining a demurrer on the basis of
section 855.4 immunity is appropriate only if the SAC also
alleges facts reflecting the City acted with the due care
referenced in section 855.4, subdivision (b). We disagree.
The SAC sufficiently alleges all the requirements for
immunity set forth in section 855.4, subdivision (a). Neither
the statutory language nor case law interpreting it suggests a
defendant must qualify for immunity under both section 855.4
subdivision (a) and section 855.4 subdivision (b) in order to
be immune. To the contrary, each subdivision provides for
immunity from suit for the distinct conduct described therein.
Specifically, subdivision (a) provides immunity against claims
based on certain decisions; subdivision (b), by contrast, provides
immunity from claims based on acts or omissions “in carrying out
with due care a decision described in subdivision (a).” (§ 855.4,
subd. (b), italics added.) As discussed above, the SAC alleges
injury from a decision of the type described in subdivision (a),
and thus alleges a basis for immunity under subdivision (a).
(See Wong, supra, 62 Cal.App.5th at p. 149.) It is thus irrelevant
whether Greenwood has alleged or could allege facts sufficient to
establish a lack of due care, as this is relevant only to immunity
under subdivision (b).
C. The Court Properly Denied Leave To Amend
A trial court abuses its discretion by sustaining a demurrer
without leave to amend where “there is a reasonable possibility
that the defect can be cured by amendment.” (Loeffler v. Target
Corp. (2014) 58 Cal.4th 1081, 1100.) “ ‘ The plaintiff has the
19
burden of proving that [an] amendment would cure the legal
defect, and may [even] meet this burden [for the first time] on
appeal.’ ” (Sierra Palms Homeowners Assn. v. Metro Gold Line
Foothill Extension Construction Authority (2018) 19 Cal.App.5th
1127, 1132.)
Greenwood has not proffered any facts she could allege,
based on which her complaint would no longer describe injury
“resulting from the decision to perform or not to perform any
act to promote the public health of the community by preventing
disease or controlling the communication of disease within the
community” that was “the result of the exercise of discretion
vested in the public entity or the public employee.” (§ 855.4,
subd. (a).) Rather, her arguments that no exercise of discretion
occurred are grounded in a definition of “exercise of discretion”
which, as discussed above, we conclude is inapplicable here.
Further, as noted, because we conclude that the SAC
sufficiently alleges immunity under section 855.4, subdivision (a),
additional allegations Greenwood represents she could add
establishing that the City acted without due care as required by
section 855.4, subdivision (b) would not defeat such immunity.
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DISPOSITION
The judgment is affirmed. Respondent City of Los Angeles
is awarded costs on appeal.
CERTIFIED FOR PUBLICATION.
ROTHSCHILD, P. J.
I concur:
WEINGART, J.
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BENDIX, J., Concurring.
To the extent Wright v. City of Los Angeles (2001)
93 Cal.App.4th 683 holds that Government Code 1 section 855.4,
subdivision (a) immunizes public entities from any disease-
related injury occurring on public property, I question whether it
was correctly decided. There is a difference between
governmental response to an outbreak of disease, which clearly
falls within the ambit of section 855.4, and a public entity’s
responsibility to keep its facilities safe and sanitary.
I nonetheless concur in the disposition of this case for two
reasons. First, appellant has not challenged this particular
holding in Wright; rather, her arguments focus on whether the
City of Los Angeles (the City)’s alleged failure to maintain
disease-free conditions on its property constituted a “decision”
that was “the result of the exercise of discretion vested in the
public entity.” (§ 855.4, subd. (a).) Accordingly, I would deem
any challenge to Wright’s holding forfeited, and leave for another
day whether it was correctly decided.
Second, the allegations in the instant case fit comfortably
within the scope of section 855.4 even if that section is read more
narrowly to apply solely to governmental action or nonaction in
response to outbreaks of disease. Appellant alleges, in essence,
that the City insufficiently insulated its property from the effects
of a typhus outbreak in the nearby area, thus allowing the
disease to spread to appellant and, presumably, others. Put in
terms of section 855.4, appellant alleges the City failed to
“promote the public health of the community by preventing
1 Unspecified statutory citations are to the Government
Code.
disease or controlling the communication of disease within the
community.” (§ 855.4, subd. (a).)
I therefore agree with the majority that the trial court
properly sustained the demurrer.
BENDIX, J.
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