Government Immunity Is an Affirmative Defense that Must Be Plead

Quigley v. Green Mt. Fire Protection Dist., No. S242250 (Cal. Jul. 15, 2019)

The Supreme Court holds that the governmental tort immunities in the Government Claims Act (Gov. Code § 810, et seq.) are non-jurisdictional affirmative defenses that can be forfeited* if not alleged in the defendant’s answer. That seems pretty straightforward.

In the case, the Defendant had plead a generic affirmative defense that it was immune as a government entity, and then made reference to the entire GCA. It did not, however, specifically reference Gov. Code § 850.4, an immunity for firefighting that seemingly applied to the facts of the case. The case was then litigated for four years and went to trial. Defendants first referenced § 850.4 in a nonsuit motion at the end of Plaintiff’s opening statement. The trial court erroneously held that the immunity was jurisdictional and could be raised at any time.

Other than the jurisdiction issue, the Supreme Court does not want to deal with any of that. So on remand, the Court of Appeal needs to decide if the reference to the whole act was adequate to allege the basis of an “intelligibly distinguished” affirmative defense under Code of Civil Procedure § 431.30(g). And if not, it needs to decide if the trial court abused its discretion by permitting Defendant to first raise an unplead affirmative defense after the onset of trial.

Reversed.

*Footnote 4 makes a nomenclature point about the difference between a forfeiture and a waiver. A forfeiture is the sacrifice of a right by failing to timely raise it. A waiver, on the other hand, is the intentional surrender of a known right. For instance, a failure to object to evidence is a forfeiture, but a guilty plea is a waiver. People frequently, however, refer to forfeiture scenarios as waivers. Even the Courts and the Legislature. But California courts have recently been pointing out the distinction, so it would do well to be more precise in our terminology.

Coming Around, Slowly

Whitehall v. Cnty. of San Bernardino, No. E065672 (D4d2 Nov. 15, 2017)

Plaintiff sued her employer—a government Agency—for retaliating against her for being a whistleblower. The Agency responded with an anti-SLAPP motion asserting that the case arose from its internal investigation, which was an “other proceeding” protected under Code of Civil Procedure § 425.16(e)(1) and (2). Plaintiff then did something you should never, ever do. She conceded the “arising from” element was met, but argued that she could win on the merits. In a pleasant departure from the many cases that have gone wrong on that move, however the Court of Appeal here steps in to say that notwithstanding the concession, arising from isn’t met. 

Plaintiff isn’t claiming that the Agency defamed her or something during the investigation. She’s claiming it fired her for blowing the whistle. Under the Supreme Court’s recent decision in Park, official employment decisions like that are not, in themselves, protected activity, even if they might be proceeded by “official proceedings” like internal investigations. Because the element of the claim sounds in the termination for retaliatory reasons, and not the Agency’s investigation, the claim does not actually arise from anything protected.

And in any event, this time, Plaintiff did make out a prima facie case of wrongful termination, including by disputing the various immunity and privilege defenses raised by the Agency. 

Affirmed.