Plaintiff Henry O'Hagan appeals from a summary judgment denying him recovery for damages in a mandamus action.
The pertinent facts reveal that on February 8, 1961, one Vernon Rose ("Rose"), the owner of the property located at 1207 Fourth Street in Santa Rosa, applied for a use permit for the purpose of constructing a drive-in restaurant at said location. On February 16, 1961, the board of zoning adjustment ("Board") issued a temporary use permit. The use permit specifically stated that the establishment, maintenance or operation of the use applied for would not be detrimental to the health, safety, peace, morals, comfort and general welfare of the persons residing in the neighborhood or to the general welfare of the city. The use permit was reissued on February 21, 1963, and upon the above stated conditions it was renewed on a permanent basis on March 17, 1966.
On March 1, 1967, Rose leased the premises to appellant for a term of 10 years. Appellant used the premises to operate a drive-in restaurant named the "Burger King." Both before and after the execution of the lease complaints were received by the city with regard to the operation and activities of the "Burger King." In order to remedy the situation, meetings and hearings were held. On February 15, 1968, appellant consented to a resolution of the Board limiting the operation of his business from 11 a.m. to 9 p.m. for a period of six months. The resolution contained other conditions pertaining to the physical condition of the drive-in to which appellant also agreed. On August 15, 1968, the Board passed another resolution increasing the hours of operation from 9 a.m. to 10 p.m. during daylight saving time but reverting back to the original closing hour of 9 p.m. upon the return to standard time. On August 29, 1968, appellant filed an appeal with the city council refusing to continue with the closing hours established in the August 15, 1968 resolution. On September 10, 1968, the city council referred the matter to the Board. After a hearing held on September 26, 1968, the Board revoked appellant's use permit on the ground that the operation of the business constituted a public nuisance (Santa Rosa Zoning Ordinance, art. IV, § 61 ("Ordinance")). Appellant appealed the decision to the city council which affirmed the decision of the Board on October 1, 1968.
Appellant nonetheless continued to operate his business and on October 31, 1968, an action to abate a public nuisance was filed by the city against appellant. During the pendency of the nuisance action, on February 18, 1969, appellant filed a petition for a writ of mandamus under
On November 13, 1969, the superior court denied appellant's petition for a writ of mandamus. On appeal, this court reversed the lower court's judgment on the ground that the trial court should have given res judicata effect to the decision rendered in the nuisance action (O'Hagen v. Board of Zoning Adjustment (1971) 19 Cal.App.3d 151 [96 Cal.Rptr. 484]).
On November 8, 1971, pursuant to stipulation by counsel, appellant was granted leave to amend his original mandamus petition to add a claim for damages allegedly arising from loss of good will, profit, employment and from incurring financial obligations (taxes, legal fees, loans, insurance premimus, etc.). Respondents thereafter filed a motion for summary judgment which was granted on the basis that the governmental tort immunity as a matter of law barred appellant's claim to any possible damages resulting from the revocation of the use permit.
Thus, the issue before us, broadly stated, is whether a public entity may be held liable for damages arising from an allegedly wrongful revocation of a use permit.
In answering this question, we point out that codifying the law existing prior to the 1963 California Tort Claims Act ("Tort Claims Act") (Lipman v. Brisbane Elementary Sch. Dist. (1961) 55 Cal.2d 224 [11 Cal.Rptr. 97, 359 P.2d 465]; Hardy v. Vial (1957) 48 Cal.2d 577 [311 P.2d 494, 66 A.L.R.2d 739]; White v. Towers (1951) 37 Cal.2d 727 [235 P.2d 209, 28 A.L.R.2d 636]), Government Code
In the case at bench, the use permit was revoked by respondents pursuant to the Ordinance, which provided in part that "Use permits may be revoked by the Planning Commission for breach of condition or other good cause upon notice and hearing." Since under section 810.6 enactment means, among other things, ordinance or regulation, the revocation of the use permit was clearly authorized under section 821.2.
We further note that general immunity for discretionary acts and specific immunity for licensing activities are also provided for the public entities. While section 815.2, subdivision (b),
Appellant contends, however, that in the case at bar the immunities granted in the Tort Claims Act are inapplicable because (1) he obtained a vested property right in the use permit which could not be revoked; (2) the injuries referred to in the Tort Claims Act embrace only personal injuries not property rights; and (3) at any rate under section 1095 of Code of Civil Procedure damages are recoverable for prejudicial abuse of discretion by an administrative agency. We disagree.
Appellant's attempt to classify the right in the use permit as a nonconforming use or variance is unavailing. A variance is not entitled to greater protection than a vested property right and it may also be revoked for good cause, viz., menace to the health, welfare or safety of the public, etc. (cf. Tustin Heights Assn. v. Bd. of Supervisors (1959) 170 Cal.App.2d 619, 626-627 [339 P.2d 914]).
At the outset, it must be underscored that the exoneration of the public entity or employee under the Tort Claims Act is not unqualified. Section 815, which declares a general nonliability of the public entity for injuries arising from the act or omission of the public entity or a public employee, attaches the qualification "Except as otherwise provided by statute." Section 815.2, subdivision (b), likewise underlines that "Except as otherwise provided by statute" a public entity is not liable for its employee's acts where the employee himself is immune from liability. Finally, section 820.2 precludes the responsibility of a public employee for discretionary acts on the same condition, namely, "Except as otherwise provided by statute."
While it is clear from the language of the Tort Claims Act that its liabilities are subject to immunities established by statute whether inside or outside the act (cf. §§ 815, subd. (b); 815.2, subd. (b); 820, subd. (a); Van Alstyne, Cal. Government Tort Liability, supra, § 5.29, at p. 140), it is not entirely evident whether the immunity provisions of the Tort Claims Act extend to liabilities created by statute outside the act (Van Alstyne, Cal. Government Tort Liability, supra, § 5.28, p. 139). Code of Civil Procedure section 1095 is one of the statutes which prescribes liability outside the Tort Claims Act (cf. § 815, legislative committee comment; Van Alstyne, Cal. Government Tort Liability, supra, at pp. 498-499). In essence, Code of Civil Procedure section 1095, provides that if the petitioner for mandamus recovers judgment, he may also recover damages which he has sustained and that such damages shall be recovered and awarded against the public entity represented by such officer but not against the officer.
First, it is apparent that Code of Civil Procedure section 1095 is not limited in scope to administrative mandamus under Code of Civil Procedure section 1094.5, but is a general authority for award of damages and costs in any mandamus action (cf. Colthurst v. Fitzgerald (1922) 56 Cal.App. 740 [206 P. 471]). In other words, this means that the Tort Claims Act is a special statute regulating the tort liabilities and immunities of public entities and employees, while Code of Civil Procedure section 1095 is a general statute providing for damages in mandamus proceedings which embrace a great variety of legal actions (cf. Code Civ. Proc., §§ 1084-1097; 32 Cal.Jur.2d, Mandamus, §§ 1-4, at pp. 116-120). This, of course, calls into play the well established legal principle that where inconsistencies appear in statutes, a special statute dealing expressly with a particular subject controls and takes priority over the general statute (Brill v. County of Los Angeles (1940) 16 Cal.2d 726, 732 [108 P.2d 443]; Tousley v. Dishman (1928) 90 Cal.App. 759, 761 [266 P. 373]).
Secondly, and more importantly, weighty if not overriding policy considerations also impel the conclusion reached above. It is plain that the resolution of the conflict here poses a legal policy question, the determination of which calls for careful deliberation and weighing of the legislative intent underlying the respective statutes (cf. Van Alstyne, Cal. Government Tort Liability, supra, § 5.28, p. 140). Taking this approach, it appears that while the primary purpose of Code of Civil Procedure section 1095 was to codify the general doctrine that once it has taken jurisdiction equity will adjudicate the entire controversy (Sonnicksen v. Sonnicksen
It is readily discernible that a holding that Code of Civil Procedure section 1095 abridges the immunities granted in the Tort Claims Act would destroy the carefully wrought system of liabilities and immunities set forth therein. Since direct review of the licensing activities of the public entities is usually available through writ proceedings or other proceedings to review administrative action (legislative committee comment to § 818.4; Van Alstyne, Cal. Government Tort Liability, supra, at p. 510), all that a plaintiff would have to do to circumvent the immunity provisions of the Tort Claims Act would be to effect a mere change in his pleading designating it a petition for writ of mandamus rather than a complaint for damages. Considering the strongly worded legislative intent, cited above, most certainly the Legislature cannot be deemed to have intended to impose liability and abrogate immunities through writ proceedings or by maneuvering with the rules of pleadings and procedure.
We parenthetically note that in addition to the foregoing general principles, in the case at bench the imposition of damages under Code of Civil
We finally observe that Ellis v. City Council (1963) 222 Cal.App.2d 490 [35 Cal.Rptr. 317] does not militate against, or negate the conclusion reached here. In that case the city building inspector refused to issue a permit even though all conditions precedent to its issuance had been satisfied by appellant. In a mandamus action brought for issuance of permit and damages the court held that since the building inspector was under a mandatory, ministerial duty to issue the permit, he was liable for damages. However, the city council and the city attorney who had also been joined as defendants were held immune because their authority to force the issuance of the permit was discretionary (pp. 498-500).
By contrast, in the case at bench all functions relating to the revocation of the use permit were entirely discretionary. Furthermore, Ellis was decided on the authority of Lipman v. Brisbane Elementary Sch. Dist., supra, and related cases, not upon the Tort Claims Act. As indicated previously, the Tort Claims Act makes it unquestionable that the immunity for licensing activity prevails over the liability established by section 815.6 for failure to discharge a mandatory duty (legislative committee comment to § 818.4; Van Alstyne, Cal. Government Tort Liability, supra, § 5.58, p. 165).
We hold that the specific immunities provided for the public entities and public employees in sections 818.4 and 821.2 take precedence over the liabilities established in Code of Civil Procedure section 1095. Consequently,
The judgment is affirmed.
Taylor, P.J., and Rouse, J., concurred.
Appellant's petition for a hearing by the Supreme Court was denied June 19, 1974.