Filed 1/3/20 Quigley v. Garden Valley Fire Protection CA3

Opinion on remand from Supreme Court

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Plumas)

—-

REBECCA MEGAN QUIGLEY,

Plaintiff and Appellant,

v.

GARDEN VALLEY FIRE PROTECTION et al.,

Defendants and Respondents.

C079270

(Super. Ct. No. CV1000225)

OPINION ON REMAND

“While assigned to fight a wildfire, plaintiff . . . Rebecca Megan Quigley was severely injured when a water truck ran over her as she slept at the fire base camp. She sued, inter alia, defendants . . . Garden Valley Fire Protection District, Chester Fire Protection District . . . [and several individual defendants] for damages, claiming she was injured as a result of their negligence, a dangerous condition of public property, and defendants’ failure to warn. The trial court granted nonsuit against plaintiff[] . . . on the bases” of statutory immunity and the firefighter’s rule. (Quigley v. Garden Valley Fire Protection Dist. (2017) 10 Cal.App.5th 1135, 1138, review granted Aug. 9, 2017, S242250 (Quigley I).) As a preliminary matter, we concluded briefly that defendants had not forfeited their defense of a particular statutory immunity as a result of their failure to plead it as an affirmative defense, because it appeared to us that there was a decisional consensus that immunity was a jurisdictional issue that a defendant could raise at any time (rejecting some authority to the contrary); as a result, we did not have any occasion to analyze the actual averments in the answer. (Id. at pp. 1141-1143.) We then spent the balance of the opinion discussing the substantive issue of whether the claimed immunity applied, ruling in favor of defendants. (Id. at pp. 1143-1148.)

On review, Quigley v. Garden Valley Fire Protection Dist. (2019) 7 Cal.5th 798 (Quigley II) held that sovereign immunity is not a fundamental jurisdictional issue but is instead a garden-variety affirmative defense subject to forfeiture for failure to raise it in a timely fashion, finding unpersuasive the body of decisional law to the contrary. (Id. at pp. 803, 808-815 & fn. 8.) It did not address the substantive issue of whether the immunity applied to the facts of this case. (Id. at p. 806, fn. 5.)

We now backtrack to procedural details that were not material to our original decision. Although defendants’ answer invoked 17 other specific statutory bases for immunity under the Government Claims Act (Gov. Code, § 810 et seq.), these did not include the particular immunity at issue in the present case for injuries resulting from the condition of firefighting equipment or facilities (Gov. Code, § 850.4 (hereafter § 850.4)); however, defendants’ answer also included a global reference to all immunities available to government entities under the Government Claims Act (Quigley II, supra, 7 Cal.5th at pp. 802, 805). Defendants did not assert this immunity under section 850.4 until their written motion for nonsuit four years later, filed after the opening statement of plaintiff’s counsel at trial. As noted above, the trial court concluded this was a jurisdictional matter not subject to forfeiture and granted the nonsuit motion. (Quigley II, at p. 805.) When plaintiff renewed her objection in a motion for new trial to defendants’ belated invocation of section 850.4, the trial court offered an alternative rationale that the global invocation of all immunities was sufficient to incorporate section 850.4 and on that basis denied the motion. (Quigley II, at pp. 805-806.)

In the conclusion of its opinion, the Supreme Court declined to address whether the trial court’s ruling on the motion for new trial was correct and, even though this is a question of law, remanded the matter to us to evaluate the arguments of the parties on the issue and—if we concluded the global incorporation of all immunities under the Government Claims Act was inadequate to prevent forfeiture—to remand the matter to the trial court for it to exercise its discretion as to whether it should permit defendants nonetheless to amend their answer at trial to assert the section 850.4 immunity. (Quigley II, supra, 7 Cal.5th at pp. 815-816.)

The Supreme Court directed us to determine “whether defendants’ whole-act pleading in the 15th affirmative defense sufficiently raised the defense provided by . . . section 850.4, in light of the requirements of Code of Civil Procedure section 431.30, subdivision (g) and the general notice purposes of our pleading rules.” (Quigley II, supra, 7 Cal.5th at p. 816.) If we decide the section 850.4 defense was not adequately raised, the trial court is then empowered under the Supreme Court’s remand to exercise its discretion to allow amendment of the answer at trial. (Ibid.) And, indeed, we conclude the “whole-act pleading” of defendants’ 15th affirmative defense was not adequate notice to plaintiff of the specific immunity set forth in section 850.4.

“[W]here particularity in pleading is necessary in a complaint, it is equally necessary in an affirmative defense involving the issue.” (5 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 1082, p. 516.) With respect to immunity under the Government Claims Act, “[t]he [answer] should contain specific allegations to show that the facts fall within [a] statutory provision.” (Id. § 1107, p. 535, italics added.)

In the peculiar context of an action pursuant to the Government Claims Act, a global invocation of all immunities puts a plaintiff in a box. A plaintiff is obliged to plead particular facts to avoid an anticipated immunity defense, or must request leave to amend in response to a challenge to the complaint. (Cf. Whelihan v. Espinoza (2003) 110 Cal.App.4th 1566, 1576 [cannot defeat primary assumption of the risk as a defense with a theory of reckless conduct unsupported in pleading]; Distefano v. Forester (2001) 85 Cal.App.4th 1249, 1264-1265; see Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2019) ¶ 10:257, p. 10-116.) A complaint is subject even to a demurrer for failure to include allegations to avoid an immunity that its allegations otherwise suggest would apply. (2 Cal. Gov. Tort Liability Practice (Cont.Ed.Bar 4th ed. 2014) § 12.137, p. 1039, citing inter alia Giannuzzi v. State of California (1993) 17 Cal.App.4th 462, 467, Keyes v. Santa Clara Valley Water Dist. (1982) 128 Cal.App.3d 882, 886.) The answer in the present case thus must also plead the specific nature of the claimed immunity under the general principles cited above. Otherwise, this would require a plaintiff to allege every fact that would defeat any possible immunity in order to forestall any subsequent attack on the complaint. We thus cannot countenance the trial court’s ruling that the particular determinative immunity in the present case was lodged somewhere in the invocation of every government immunity in the answer.

We shall therefore reverse the judgment and the order denying the motion for new trial, and remand for the trial court to consider the exercise of its discretion in allowing the amendment of the answer to state the particular immunity that has been at issue in this appeal. If the trial court grants leave to amend, and reapplies its resolution of the substance of the immunity issue, this should put an end to this matter under the principle of law of the case (9 Witkin, supra, Appeal, § 459, p. 515), other than a claim that the trial court abused its discretion in allowing amendment of the answer.

DISPOSITION

The matter is reversed and remanded to the trial court to exercise its discretion in deciding whether to allow defendants to amend their answer at trial to assert Government Code section 850.4 as a defense. Neither party shall recover costs of the proceeding in this court. (Cal. Rules of Court, rule 8.278(a)(5).)

/s/

Butz, Acting P. J.

We concur:

/s/

Duarte, J.

/s/

Hoch, J.