Opinion
Rehearing Denied March 18, 1975.
Opinions on pages 409-431 omitted.
HEARING GRANTED
For Opinion on Hearing, see 129 Cal.Rptr. 453, 548 P.2d 1125.
[119 Cal.Rptr. 415]Hugh R. Manes, Los Angeles, for plaintiffs and appellants.
Burt Pines, John T. Neville, Asst. City Attys., Robert E. Shannon and Burk M. Wiedner, Deputy City Attys., for defendants and respondents.
FLEMING, Acting Presiding Justice.
Does California's Tort Claims Act (Gov.Code, §§ 810 et seq.) control the procedure in an action in the state courts against a public employee for deprivation of federal civil rights? The superior court thought it did, and on demurrer dismissed plaintiffs' complaint for damages against two police officers for lack of compliance with the claim provisions of the Tort Claims Act. This appeal followed.
Plaintiffs' complaint, filed under the federal Civil Rights Act (42 U.S.C.1983), asserts that between midnight and 12:30 a. m. on 30 July 1972, defendants police officers of the City of Los Angeles, acting in the scope of their employment and under color of law, deprived the two plaintiffs of their federal constitutional rights by deliberately assaulting and battering them without just cause or provocation imprisoning them without reasonable cause, and threatening to shoot and injure them. The complaint seeks general, special, and punitive damages.
42 U.S.C.1983: 'Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.'
The superior court sustained defendants' demurrer for lack of compliance with the claim provisions of California's Tort Claims Act--which require as a prerequisite to suit for damages against a public employee and his employer the presentation of a claim within 100 days of accrual of the cause of action (Gov.Code, §§ 905, 911.2, 911.6, and 950.2).
Plaintiffs contend the claim provisions of the Tort Claims Act do not apply to their action because a state may not impose restrictive procedural limitations on actions in its courts to redress deprivations of federal civil rights. Defendants reply that because the federal Civil Rights Act has no express statute of limitation courts apply the appropriate state statute of limitation (See Baker v. F. & F. Investment (7th Cir. 1970) 420 F.2d 1191, 1195-1197), and here the superior court correctly applied the 100-day claim-filing provision of the California Tort Claims Act. Defendants also argue that state courts have no jurisdiction to entertain actions brought under the federal Civil Rights Act.
I
Taking up the latter argument first, we think it clear the superior court, a court of general jurisdiction (Cal.Const., art. VI, § 10), had jurisdiction to entertain an action for damages under the federal Civil Rights Act. Under the Supremacy Clause of the United States Constitution (U.S.Const., art. VI, § 2) state courts are required to enforce both state and federal law. Absent any delegation by Congress of exclusive jurisdiction to a particular court to enforce a particular right, federally [119 Cal.Rptr. 416] created causes of action may be pursued in those state courts competent under state law to adjudicate the type of action involved. The Los Angeles Superior Court is authorized to entertain actions for damages in amounts above $5,000, and, consequently, it had jurisdiction to adjudicate plaintiffs' claim. (Sullivan v. Little Hunting Park (1969) 396 U.S. 229, 238, 90 S.Ct. 400, 24 L.Ed.2d 386 (enforcement of civil rights); Dowd Bow Co. v. Courtney (1962) 368 U.S. 502, 508, 82 S.Ct. 519, 7 L.Ed.2d 483 (enforcement of collective bargaining); Testa v. Katt (1947) 330 U.S. 386, 389-393, 67 S.Ct. 810, 91 L.Ed. 967 (enforcement of price controls); Garrett v. Moore-McCormack Co. (1942) 317 U.S. 239, 245, 63 S.Ct. 246, 87 L.Ed. 239 (enforcement of seamen's benefits); Second Employers' Liability Cases (1912) 223 U.S. 1, 56-59, 32 S.Ct. 169, 56 L.Ed. 327 (enforcement of employers' liability); New Times, Inc. v. Arizona Board of Regents, 110 Ariz. 367, 519, 176 (enforcement of civil rights); The Federalist No. 82 (Hamilton).) The jurisdictional principle has been summarized in Dowd Box. Co. v. Courtney:
'We start with the premise that nothing in the concept of our federal system prevents state courts from enforcing rights created by federal law. Concurrent jurisdiction has been a common phenomenon in our judicial history, and exclusive federal court jurisdiction over cases arising under federal law has been the exception rather than the rule. This Court's approach to the question of whether Congress has ousted state courts of jurisdiction was enunciated by Mr. Justice Bradley in Claflin v. Houseman, 93 U.S. 130, 23 L.Ed. 833, and has remained unmodified through the years. 'The general question, whether State courts can exercise concurrent jurisdiction with the Federal courts in cases arising under the Constitution, laws, and treaties of the United States, has been elaborately discussed, both on the bench and in published treatises * * * [and] the result of these discussions has, in our judgment, been . . . to affirm the jurisdiction, where it is not excluded by express provision, or by incompatibility in its exercise arising from the nature of the particular case.' 93 U.S. at 136.' (368 U.S. at 507-508, 82 S.Ct. at 522.)
Not only is the Los Angeles Superior Court authorized to entertain a properly filed complaint for damages under the federal Civil Rights Act, but under our federal system it is compelled to do so. (Testa v. Katt (1947) 330 U.S. 386, 394, 67 S.Ct. 810, 91 L.Ed. 967.)
II
The principal issue is whether submission of a claim to the employing public entity within 100 days of its accrual is a condition precedent to an action for damages against a public employee on a federal right of action. The issue is complicated by the existence of separate systems of courts, separate federal and state statutes, and multiple rights of action. Our task is to untangle the various rights of action in order to resolve the procedural issues presented in the maintenance of a federal cause of action in state court.
The federal right of action on which the complaint is based dates from 1871, when Congress created a civil right of action to redress deprivation of federal rights under color of state law, custom, or usage. (42 U.S.C. § 1983), R.S. #1979, 17 Stat. 13.) In 1961 the United States Supreme Court made the remedy applicable to an action for damages against local police officers for acts committed during their police activities. (Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961).) Under the federal statute individuals (but not public entities) may be sued in their private capacities for damages for deprivation of federal rights under color of state authority. An action may be brought in a federal district court (28 U.S.C. § 1343), or, as we have seen, in a state court of general jurisdiction.
[119 Cal.Rptr. 417]Because no period of limitation has been specifically adopted by Congress within which to bring damage actions to redress federal civil rights, federal courts have applied the analogous statute of limitation of the state in which the court sits. (O'Sullivan v. Felix (1914) 233 U.S. 318, 34 S.Ct. 596, 58 L.Ed. 980; Baker v. F. & F. Investment (7th Cir. 1970) 420 F.2d 1191.) In California, the federal courts have adopted a 3-year period of limitation, reasoning that the analogous California statute is the one specifying a 3-year limitation for an action upon a liability created by statute (Code Civ.Proc., § 338(1); Smith v. Cremins (9th Cir. 1962) 308 F.2d 187; Willis v. Reddin (9th Cir. 1969) 418 F.2d 702.) Clearly, plaintiffs could have brought their action in the federal court within three years of its accrual. (Donovan v. Reinbold (9th Cir. 1970) 433 F.2d 738.)
But the facts alleged in the complaint also state a second cause of action for damages against defendant police officers, one in tort for assault, battery, intimidation, and false imprisonment. This right of action may be said to have originated in California in 1850 with the adoption of the common law as a rule of decision. (Civ.Code, § 22.2; Stats.1850, c. 95, p. 219.) For an action based on such torts the period of limitation in California is one year (Code Civ.Proc., § 340(3) actions for assault, battery, and false imprisonment). Thus up to 1963 two liabilities attached to a police officer in California for conduct amounting to assault, battery, and false imprisonment--liability under the federal Civil Rights Act (3-year limitation) and tort liability under the common law (one-year limitation).
In 1963 adoption of the Tort Claims Act (Gov.Code, §§ 810 et seq.), effected two major changes in California law with respect to torts. First, the Act waived sovereign immunity from suit of public entities to the extent of, and under conditions imposed by, the Act's provisions, and not otherwise. (§ 815.) One condition of liability requires presentation of a claim to the public entity within 100 days (§ 911.2), and absent timely presentation (unless excused under circumstances not relevant here) the public entity incurs no liability for damages and retains its immunity from suit. (§ 945.4.) Second, the Act made the public entity liable for acts of its employees within the scope of their employment and responsible for payment of judgments against them (§ 825), a liability and responsibility likewise conditioned on presentation to the public entity of a claim within 100 days (§ 945.4.). As part of the same design suit is barred against a public employee for acts within the scope of his employment if suit is barred against the public entity for failure to present a timely claim (§ 950.2). Thus under the Act both waiver of sovereign immunity and assumption of liability for employee torts within the scope of employment are conditioned on a timely claim.
It is evident that the 1963 Act added another cause of action to the remedies available to a person claiming damages for personal injuries at the hands of a police officer. The claimant now has (1) his federal statutory remedy against the officer, (2) his common-law remedy in tort a against the officer for acts outside the scope of the officer's employment, and (3) his statutory remedy against the employing public entity for acts within the scope of the officer's employment. When we consider the correlative liabilities attached to these remedies we see that allocation of liability between public employee and public entity in connection with remedies (2) and (3) turns on the perennially vexing question of scope of employment. This difficulty, however, does not affect remedy (1), for in that instance liability does not fluctuate between public employee and public entity with the scope of employment. Liability under (1) is personal and individual and does not extend to public entities. Consequently, waiver of sovereign immunity and assumption of liability by a public entity for acts of an employee within the scope [119 Cal.Rptr. 418] of employment bear no relevancy to the liability of a police officer in his individual private capacity for deprivation of federal rights under color of state authority.
Liability under (1), i.e., the federal liability created by Title 42, section 1983, remains unaffected by the Tort Claims Act, for manifestly the enactments of the California Legislature can neither expand nor contract the scope of a right of action created by act of Congress. Nor can the limited waiver of the public entity's sovereign immunity and its limited assumption of liability for acts of as employee within the scope of employment abrogate the statutory liability of the public employee for conduct which violates the federal Civil Rights Act. As the federal court of appeals has said: 'While it may be completely appropriate for California to condition rights which grow out of local law and which are related to waivers of the sovereign immunity of the state public entities, California may not impair federally created rights or impose conditions on them.' (Willis v. Reddin (9th Cir. 1969) 418 F.2d 702, 704-705.)
The distinctive nature of these several causes of action is seen in Ocasio v. Bryan, 374 F.2d 11 (3d Cir. 1967). A trial court in the Virgin Islands dismissed a damage action against three police officers under the Civil Rights Act of 1871 (42 U.S.C. 1983) on the ground that the right of action for damages had been superseded by the 1954 Revised Organic Act of the Virgin Islands, which forbade a tort action against a public employee in his official capacity without the consent of the legislature. On appeal it was argued for affirmance that the 1954 Act, later in time, superseded the absolute remedy of the Civil Rights Act. But the court of appeals reversed, finding no inconsistency in the legislation and construing no application to a civil rights action for damages against a police officer in his individual private capacity:
'Section 2(b) was intended to bar tort actions against the Government of the Virgin Islands without its consent. It therefore provides against evasion of its policy of sovereign immunity in tort through the device of a suit against an officer or employee of the Government in his official capacity. See generally, Block, Suits Against Government Officials and the Sovereign Immunity Doctrine, 59 Harv.L.Rev. 1060 (1964). So construed, the provision envelops government officers with immunity only where the suit is in reality against the Government itself, so that an adverse judgment would require a payment out of public funds, rather than a payment by an individual in his private capacity. See Hart and Wechsler, The Federal Courts and the Federal System, (1953), p. 1177. The immunity provision of § 2(b) therefore does not extend to a police officer who is sued for damages under the Civil Rights Act. For it is well settled that in such cases recovery runs against the officer himself in his private capacity and not against the Government. Indeed, the action for damages may not be maintained against a municipal corporation although it may proceed against a police officer of the municipality in his private capacity. See Monroe v. Pape, 365 U.S. 167, 187, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). Since an award of damages on a recovery under the Civil Rights Act does not directly affect the Government or the public treasury, the immunity of the Government from suit is no bar to the private action. The immunity provision of § 2(b) therefore does not apply to the present action and the consent of the Virgin Islands legislature is not a condition to its institution or maintenance.' (374 F.2d p. 13.)
The same principles apply here. Conditions attached by California to its waiver of sovereign immunity are not conditions attached to the maintenance of an action for damages against a police officer in his individual private capacity for violation of federal civil rights. Hence there was no necessity for plaintiffs to file a [119 Cal.Rptr. 419] claim within 100 days of accrual of their cause of action in order to maintain suit in the state court.
Defendants argue, however, that the Tort Claims Act effected a change in state law on the time for commencement of actions, that the appropriate period of limitation for tort suits against public employees in state courts is now 100 days. A short answer is that the California Tort Claims Act is not a statute of limitation regulating the time within which to bring suit against a public employee. Essentially, it is a substantive reaffirmation of the state's claim to sovereign immunity (Gov.Code, § 815; cf. Muskopf v. Corning Hosp. Dist., 55 Cal.2d 211, 11 Cal.Rptr. 89, 359 P.2d 457; Lipman v. Brisbane Elementary School Dist., 55 Cal.2d 224, 11 Cal.Rptr. 97, 359 P.2d 465), combined with a conditioned waiver of that immunity under specified terms and a conditioned assumption of liability for certain acts of public employees within the scope of their employment (§ 950.2). In other respects the law, including the general statute of limitations, remains unchanged. The period of limitation for an individual police officer's torts committed in his private capacity remains the same, one year. Similarly, the period of limitation for liability under the federal act remains as before, three years. While it may be illogical and asymmetrical to have a one-year period of limitation for conduct viewed in one aspect and a three-year period for the same conduct viewed in another, the classification of an action for deprivation of federal civil rights an an action upon a liability created by statute (Code Civ.Proc., § 338(1)) has become so widely accepted in California that the issue can no longer be considered open for adjudication. (Smith v. Cremins, 308 F.2d 187 (9th Cir. 1962); Willis v. Redden, 418 F.2d 702 (9th Cir. 1969); Donovan v. Reinbold, 433 F.2d 738 (9th Cir. 1970).)
The circumstances of this cause require one further observation. Just as plaintiffs are not limited by the restrictions of the Tort Claims Act, so they are not entitled to claim its advantages. This for the reason that they brought their action under the federal Civil Rights Act, and under the federal act a municipality is neither liable nor suable. (Monroe v. Pape, 365 U.S. 167, 187-192, 81 S.Ct. 473, 5 L.Ed.2d 492.) Only by reason of the waiver of immunity in the Tort Claims Act is a public entity compelled to pay a judgment against its employee (Gov.Code, § 825). But that waiver of immunity and assumption of liability for acts of an employee within the scope of employment, comes into being only to the extent and under the conditions set out in the Act. As noted earlier, plaintiffs can, as they have done, ignore the Act and pay no heed to its requirements. But when they do so, they are not entitled to enjoy its benefits. A litigant cannot have it both ways. He cannot enjoy the benefits of a statute while simultaneously rejecting its burdens (Arnett v. Kennedy, 416 U.S. 134, 152, 153-155, 94 S.Ct. 1633, 40 L.Ed.2d 15, (1974) and cases there cited.) '[W]here the grant of a substantive right is inextricably intertwined with the limitations on the procedures which are to be employed in determining that right, a litigant in the position of appellee must take the bitter with the sweet.' (pp. 153-154, 94 S.Ct. p. 1644.) Because plaintiffs did not choose to bring their action under the California Tort Claims Act, they will have access to the deep pocket of the City of Los Angeles to satisfy a money judgment.
The order is reversed.
COMPTON and BEACH, JJ., concur.