discretionary immunity in California

2024(Ibid.; see also Agua Caliente Band of Cahuilla Indians v. Superior Court (2006) 40 Cal.4th 239 at pp. 247–248 [“The general rule still holds that although Indian tribes are not immune from lawsuits filed against them by the United States, the Indian tribes’ sovereign status affords them immunity from state jurisdiction.”].) “ ‘[S]overeign immunity is not a discretionary doctrine that may be applied as a remedy depending on the equities of a given situation.’ ” (See, e.g., Warburton/Buttner v. Superior Court (2002) 103 Cal.App.4th 1170, 1182 .) Rather, it presents a pure jurisdictional questio

2016Both resolutions are signed by Jaime Naredo as Tribal Chief and John Feliz, Jr. as tribal chairman (Tribal Chairman). 5 Findleton asked about, and the Tribe members explained, the process they had to follow to obtain immunity, including that General Council Resolution 08-01 authorized the Tribal Council to waive immunity by Tribal Council resolution. 6 “It must be recognized that ‘sovereign immunity is not a discretionary doctrine that may be applied as a remedy depending on the equities of a given situation.’ ” (Warburton/Buttner v. Superior Coart (2002) 103 Cal.App.4th 1170, 1182 [ 127 Cal.R

2023The 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 immu

2002In construing the scope of section 820.2 immunity, the court held “[a] semantic inquiry into the meaning of ‘discretionary’ will not suffice as a criterion for interpreting section 820.2.” (Johnson, supra, 69 Cal.2d at p. 787 , italics omitted.) The court instead analyzed the policy underlying a grant of immunity to determine what conduct should be protected by section 820.2. “ ‘Since obviously no mechanical separation of all activities in which public officials may engage as being either discretionary or ministerial is possible, the determination of the category into which a particular activi

2015(Turner v. Martire (2000) 82 Cal.App.4th 1042, 1046 (Turner); see Boisclair, at p. 1157; Larson v. Domestic & Foreign Commerce Corp. (1949) 337 U.S. 682, 695 (Larson).) On the other hand, when “an officer of a sovereign acts beyond his or her delegated authority, his or her actions ‘are considered individual and not sovereign actions.

2015(Turner v. Martire (2000) 82 Cal.App.4th 1042, 1046 (Turner); see Boisclair, at p. 1157; Larson v. Domestic & Foreign Commerce Corp. (1949) 337 U.S. 682, 695 (Larson).) On the other hand, when “an officer of a sovereign acts beyond his or her delegated authority, his or her actions ‘are considered individual and not sovereign actions.

2015“Under federal law, an Indian tribe is a sovereign authority and, as such, has tribal sovereign immunity, not only from liability, but also from suit. [Citations.] Pursuant to tribal sovereign immunity principles, an Indian tribe is subject to suit only where Congress has so authorized or where the Tribe has waived its immunity by consenting to suit. [Citation.] Absent such authorization or consent, the courts do not have subject matter jurisdiction over suits against a tribe. [Citation.]” (Lawrence v. Barona Valley Ranch Resort & Casino (2007) 153 Cal.App.4th 1364, 1368 (Lawrence); see Warbur

2015“Under federal law, an Indian tribe is a sovereign authority and, as such, has tribal sovereign immunity, not only from liability, but also from suit. [Citations.] Pursuant to tribal sovereign immunity principles, an Indian tribe is subject to suit only where Congress has so authorized or where the Tribe has waived its immunity by consenting to suit. [Citation.] Absent such authorization or consent, the courts do not have subject matter jurisdiction over suits against a tribe. [Citation.]” (Lawrence v. Barona Valley Ranch Resort & Casino (2007) 153 Cal.App.4th 1364, 1368 (Lawrence); see Warbur

2015(Turner v. Martire (2000) 82 Cal.App.4th 1042, 1046 (Turner); see Boisclair, at p. 1157; Larson v. Domestic & Foreign Commerce Corp. (1949) 337 U.S. 682, 695 (Larson).) On the other hand, when “an officer of a sovereign acts beyond his or her delegated authority, his or her actions ‘are considered individual and not sovereign actions.

2015(Turner v. Martire (2000) 82 Cal.App.4th 1042, 1046 (Turner); see Boisclair, at p. 1157; Larson v. Domestic & Foreign Commerce Corp. (1949) 337 U.S. 682, 695 (Larson).) On the other hand, when “an officer of a sovereign acts beyond his or her delegated authority, his or her actions ‘are considered individual and not sovereign actions.

2015“Under federal law, an Indian tribe is a sovereign authority and, as such, has tribal sovereign immunity, not only from liability, but also from suit. [Citations.] Pursuant to tribal sovereign immunity principles, an Indian tribe is subject to suit only where Congress has so authorized or where the Tribe has waived its immunity by consenting to suit. [Citation.] Absent such authorization or consent, the courts do not have subject matter jurisdiction over suits against a tribe. [Citation.]” (Lawrence v. Barona Valley Ranch Resort & Casino (2007) 153 Cal.App.4th 1364, 1368 (Lawrence); see Warbur

2015“Under federal law, an Indian tribe is a sovereign authority and, as such, has tribal sovereign immunity, not only from liability, but also from suit. [Citations.] Pursuant to tribal sovereign immunity principles, an Indian tribe is subject to suit only where Congress has so authorized or where the Tribe has waived its immunity by consenting to suit. [Citation.] Absent such authorization or consent, the courts do not have subject matter jurisdiction over suits against a tribe. [Citation.]” (Lawrence v. Barona Valley Ranch Resort & Casino (2007) 153 Cal.App.4th 1364, 1368 (Lawrence); see Warbur

2024(Jameson v. Desta, supra, 5 Cal.5th at pp. 608-609; see County of Imperial v. Superior Court, supra, 152 Cal.App.4th at p. 35 [appellant analyzes each § 389, subd. (b) factor to “present a scenario in which the discretionary factors could be balanced” to permit a different result, “but . . . failed to demonstrate why the[ ] factors must be balanced in this manner”].) DISPOSITION The judgment is affirmed.

2018Pomona does suggest, however, that the other factors listed in section 389, subdivision (b)-which it maintains the trial court did not address-"support a finding of indispensability." Pomona "analyzes each factor to present a scenario in which the discretionary factors could be balanced [in its favor], but ... has failed to demonstrate why these factors must be balanced in this manner." ( County of Imperial v. Superior Court , supra , 152 Cal.App.4th at p. 35, 61 Cal.Rptr.3d 145 .) We accordingly are not persuaded.

2022(McCorkle v. City of Los Angeles (1969) 70 Cal.2d 252, 261-262 (McCorkle).) Section 820.2 immunity thus applies only to “deliberate and considered policy decisions, in which a ‘[conscious] balancing [of] risks and advantages . . . took place.’” (Caldwell v. Montoya (1995) 10 Cal.4th 972, 981 .) “Discretionary immunity under section 820.2 has been found to apply to many areas of police work.” (Conway v. County of Tuolumne (2014) 231 Cal.App.4th 1005, 1015 (Conway).) Law enforcement’s discretionary decisions that have received section 820.2 immunity include the decision to pursue a fleeing vehic

2014(Susag v. City of Lake Forest (2002) 94 Cal.App.4th 1401, 1408 [ 115 Cal.Rptr.2d 269 ].) Discretionary immunity “In California, all government tort liability must be based on statute.” (Becerra v. County of Santa Cruz (1998) 68 Cal.App.4th 1450, 1457 [ 81 Cal.Rptr.2d 165 ]; see Wilson v. County of San Diego (2001) 91 Cal.App.4th 974, 979-980 [ 111 Cal.Rptr.2d 173 ].) “Under the provisions of the California [Government] Claims Act, ‘a public employee is liable for injury caused by *1014 his act or omission to the same extent as a private person,’ except as otherwise specifically provided by sta

2021(West Valley- Mission Community College District v. Concepcion (1993) 16 Cal.App.4th 1766, 1773 (West Valley).) Education Code section 87732 provides, pertinent to this appeal that, “No regular employee or academic employee shall be dismissed except for one or more of the following causes: [¶] (a) Immoral or unprofessional conduct. [¶] (b) Dishonesty. [¶] . . . [¶] (d) Evident unfitness for service. [¶] . . . [¶] (f) Persistent violation of, or refusal to obey, the school laws of the state or reasonable regulations prescribed for the government of the community colleges by the board of governo

2021(West Valley- Mission Community College District v. Concepcion (1993) 16 Cal.App.4th 1766, 1773 (West Valley).) Education Code section 87732 provides, pertinent to this appeal that, “No regular employee or academic employee shall be dismissed except for one or more of the following causes: [¶] (a) Immoral or unprofessional conduct. [¶] (b) Dishonesty. [¶] . . . [¶] (d) Evident unfitness for service. [¶] . . . [¶] (f) Persistent violation of, or refusal to obey, the school laws of the state or reasonable regulations prescribed for the government of the community colleges by the board of governo

2017The appropriate mode of review in such a case is one in which the judiciary, although taking ultimate responsibility for the construction of the statute, accords great weight and respect to the administrative construction.’ ” (Yamaha, supra, 19 Cal.4th at p. 12 , italics added by Yamaha, quoting International Business Machines v. State Bd. of Equalization (1980) 26 Cal.3d 923, 931, fn. 7 [ 163 Cal.Rptr. 782 , 609 P.2d 1 ].) Yamaha recognized that, unlike quasi-legislative rule making by the agency, an agency’s interpretation of the law does not implicate the exercise of a delegated lawmaking p

1990That comes within our respectful but nondeferential standard of review. “[W]hen the agency is not exercising a discretionary rule-making power, but [is instead] merely construing a controlling statutef,] [t]he appropriate mode of review ... is one in which the judiciary. . . takfes] ultimate responsibility for the construction of the statute, [although] according] great weight and respect to the administrative construction.” (International Business Machines, supra, 26 Cal.3d at p. 931, fn. 7 .) As we further explained in California Beer & Wine Wholesalers Assn. v. Department of Alcoholic Bever

2013Cyr (2001) 533 U.S. 289, 293, 294-295 (St.

2013Cyr (2001) 533 U.S. 289, 293, 294-295 (St.

1989(In re Marriage of Kepley (1987) 193 Cal.App.3d 946, 951 [ 238 Cal.Rptr. 691 ].) “Discretionary factors like the child’s need and the parent’s ability to pay are considerations for an award greater than the mandatory minimum but *1372 [are] not [considered] in determining and allocating the mandatory minimum.” ( In re Marriage of Hanchett (1988) 199 Cal.App.3d 937, 943 [ 245 Cal.Rptr. 255 ]; In re Marriage of Kepley, supra, 193 Cal.App.3d at pp. 951, 953.) Under the Act, child support must be awarded at the mandatory minimum level unless exceptional circumstances are demonstrated. (§ 4720, sub

1989(In re Marriage of Kepley (1987) 193 Cal.App.3d 946, 951 [ 238 Cal.Rptr. 691 ].) “Discretionary factors like the child’s need and the parent’s ability to pay are considerations for an award greater than the mandatory minimum but *1372 [are] not [considered] in determining and allocating the mandatory minimum.” ( In re Marriage of Hanchett (1988) 199 Cal.App.3d 937, 943 [ 245 Cal.Rptr. 255 ]; In re Marriage of Kepley, supra, 193 Cal.App.3d at pp. 951, 953.) Under the Act, child support must be awarded at the mandatory minimum level unless exceptional circumstances are demonstrated. (§ 4720, sub

1968(See, e.g., Sava v. Fuller (1967) 249 Cal.App.2d 281, 290 [ 67 Cal.Rptr. 312 ]; Scruggs v. Haynes (1967) 252 Cal.App.2d 256, 267 [ 60 Cal.Rptr. 355 ].) In particular, in Ne Casek v. City of Los Angeles, supra, 233 Cal.App.2d 131, 135 , the court advanced the following analysis: “Since obviously no mechanical separation of all activities in which public officials may engage 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 of the discretionary immunity doctrine.’ ’ This analysis does

1968(See, e.g., Sava v. Fuller (1967) 249 Cal. App.2d 281, 290 [ 67 Cal. Rptr. 312 ]; Scruggs v. Haynes (1967) 252 Cal. App.2d 256, 267 [60 *790 Cal. Rptr. 355].) In particular, in Ne Casek v. City of Los Angeles, supra, 233 Cal. App.2d 131, 135 , the court advanced the following analysis: "Since obviously no mechanical separation of all activities in which public officials may engage 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 of the discretionary immunity doctrine." [4] This ana

1968(See, e.g., Sava v. Fuller (1967) 249 Cal.App.2d 281, 290 [ 67 Cal.Rptr. 312 ]; Scruggs v. Haynes (1967) 252 Cal.App.2d 256, 267 [ 60 Cal.Rptr. 355 ].) In particular, in Ne Casek v. City of Los Angeles, supra, 233 Cal.App.2d 131, 135 , the court advanced the following analysis: “Since obviously no mechanical separation of all activities in which public officials may engage 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 of the discretionary immunity doctrine.’ ’ This analysis does

1968(See, e.g., Sava v. Fuller (1967) 249 Cal. App.2d 281, 290 [ 67 Cal. Rptr. 312 ]; Scruggs v. Haynes (1967) 252 Cal. App.2d 256, 267 [60 *790 Cal. Rptr. 355].) In particular, in Ne Casek v. City of Los Angeles, supra, 233 Cal. App.2d 131, 135 , the court advanced the following analysis: "Since obviously no mechanical separation of all activities in which public officials may engage 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 of the discretionary immunity doctrine." [4] This ana

2002In construing the scope of section 820.2 immunity, the court held “[a] semantic inquiry into the meaning of ‘discretionary’ will not suffice as a criterion for interpreting section 820.2.” (Johnson, supra, 69 Cal.2d at p. 787 , italics omitted.) The court instead analyzed the policy underlying a grant of immunity to determine what conduct should be protected by section 820.2. “ ‘Since obviously no mechanical separation of all activities in which public officials may engage as being either discretionary or ministerial is possible, the determination of the category into which a particular activi

2002In construing the scope of section 820.2 immunity, the court held “[a] semantic inquiry into the meaning of ‘discretionary’ will not suffice as a criterion for interpreting section 820.2.” (Johnson, supra, 69 Cal.2d at p. 787 , italics omitted.) The court instead analyzed the policy underlying a grant of immunity to determine what conduct should be protected by section 820.2. “ ‘Since obviously no mechanical separation of all activities in which public officials may engage as being either discretionary or ministerial is possible, the determination of the category into which a particular activi

2021The parties were asked, on this court’s own motion, to provide supplemental briefing on whether the appeal should be dismissed based on the disentitlement doctrine. “ ‘ “A trial court’s judgment and orders, all of them, are presumptively valid and must be obeyed and enforced. [Citation.]” ’ [Citation.] [¶] ‘An appellate court has the inherent power, under the “disentitlement doctrine,” to dismiss an appeal by a party that refuses to comply with a lower court order.” (Blumberg v. Minthorne (2015) 233 Cal.App.4th 1384, 1390 .) “Appellate disentitlement is a discretionary doctrine that must be ap

2021The parties were asked, on this court’s own motion, to provide supplemental briefing on whether the appeal should be dismissed based on the disentitlement doctrine. “ ‘ “A trial court’s judgment and orders, all of them, are presumptively valid and must be obeyed and enforced. [Citation.]” ’ [Citation.] [¶] ‘An appellate court has the inherent power, under the “disentitlement doctrine,” to dismiss an appeal by a party that refuses to comply with a lower court order.” (Blumberg v. Minthorne (2015) 233 Cal.App.4th 1384, 1390 .) “Appellate disentitlement is a discretionary doctrine that must be ap

1993More particularly, in my mind using the duty discussion in Smith v. Alameda County Social Services Agency (1979) 90 Cal.App.3d 929 [ 153 Cal.Rptr. 712 ] (Smith) as a means of undermining, if not overruling, the immunity holding in Elton, supra, 3 Cal.App.3d 1053 , is simply “too much of a stretch.” Discretionary immunity under Government Code section 820.2 turns on whether a plaintiff was injured by the basic policy decision of a coordinate branch of government, in which case immunity attaches, or whether the injury arose from a ministerial act, which is not immune.

1993More particularly, in my mind using the duty discussion in Smith v. Alameda County Social Services Agency (1979) 90 Cal. App.3d 929 [ 153 Cal. Rptr. 712 ] ( Smith ) as a means of undermining, if not overruling, the immunity holding in Elton, supra, 3 Cal. App.3d 1053 , is simply "too much of a stretch." Discretionary immunity under Government Code section 820.2 turns on whether a plaintiff was injured by the basic policy decision of a coordinate branch of government, in which case immunity attaches, or whether the injury arose from a ministerial act, which is not immune. ( Johnson v. State of

1970Thus, this section nullifies' the suggestion appearing in a dictum in Lipman v. Brisbane Elementary School District, 55 Cal.2d 224 [ 11 Cal.Rptr. 97 , 359 P.2d 465 ] (1961), that public entities may be liable for the acts of their employees even when the employees are immune." The Senate Committee on Judiciary Comment to section 820.2 stated in part: “The discretionary immunity rule is restated here in statutory form to ensure that, unless otherwise provided by statute [italics added], public employees will continue to remain immune from liability for their discretionary acts within the scope

1970Thus, this section nullifies' the suggestion appearing in a dictum in Lipman v. Brisbane Elementary School District, 55 Cal.2d 224 [ 11 Cal.Rptr. 97 , 359 P.2d 465 ] (1961), that public entities may be liable for the acts of their employees even when the employees are immune." The Senate Committee on Judiciary Comment to section 820.2 stated in part: “The discretionary immunity rule is restated here in statutory form to ensure that, unless otherwise provided by statute [italics added], public employees will continue to remain immune from liability for their discretionary acts within the scope

2023Courts have found the following to constitute discretionary decisions for which police officers are immune under section 820.2: (1) the decision to pursue a fleeing vehicle [citations]; (2) the decision to investigate or not investigate a vehicle accident [citation]; (3) the failure to make an arrest or to take some protective action less drastic than arrest [citation]; (4) the decision whether to use official authority to resolve a dispute [citation]; and (5) the decision whether to remove a stranded vehicle [citations].” (Conway v. County of Tuolumne (2014) 231 Cal.App.4th 1005, 1015 , itali

2022(McCorkle v. City of Los Angeles (1969) 70 Cal.2d 252, 261-262 (McCorkle).) Section 820.2 immunity thus applies only to “deliberate and considered policy decisions, in which a ‘[conscious] balancing [of] risks and advantages . . . took place.’” (Caldwell v. Montoya (1995) 10 Cal.4th 972, 981 .) “Discretionary immunity under section 820.2 has been found to apply to many areas of police work.” (Conway v. County of Tuolumne (2014) 231 Cal.App.4th 1005, 1015 (Conway).) Law enforcement’s discretionary decisions that have received section 820.2 immunity include the decision to pursue a fleeing vehic

2022(Alvarado v. Dart Container Corp. of California (2018) 4 Cal.5th 542, 558 (Alvarado).) Neither party argues the CHP adopted the Bulletin pursuant to a delegation of legislative power and that it constitutes a quasi-legislative regulation.12 (See Yamaha, supra, 19 Cal.4th at p. 12 [“quasi-legislative standard of review ‘is inapplicable when the agency is not exercising a discretionary rule-making power, but merely construing a controlling statute’ ”].) The Bulletin provides interpretive guidance regarding Regulations section 1212(k), and because that regulation restates section 34501.2 verbatim

2017The appropriate mode of review in such a case is one in which the judiciary, although taking ultimate responsibility for the construction of the statute, accords great weight and respect to the administrative construction.’ ” (Yamaha, supra, 19 Cal.4th at p. 12 , italics added by Yamaha, quoting International Business Machines v. State Bd. of Equalization (1980) 26 Cal.3d 923, 931, fn. 7 [ 163 Cal.Rptr. 782 , 609 P.2d 1 ].) Yamaha recognized that, unlike quasi-legislative rule making by the agency, an agency’s interpretation of the law does not implicate the exercise of a delegated lawmaking p

2022Co., Ltd. (2020) 47 Cal.App.5th 924 , 939 (501 East 51st Street).) “‘Where a plaintiff cannot make the showing required under section 437c, subdivision (h), a plaintiff may seek a continuance under the ordinary discretionary standard applied to requests for a continuance. [Citation.] This requires a showing of good cause. [Citation.]’ [Citation.]” (Levingston v. Kaiser Foundation Health Plan, Inc., supra, 26 Cal.App.5th at p. 315 .) 12 2.

2020The application to continue the motion to obtain necessary discovery may also be made by ex parte motion at any time on or before the date the opposition response to the motion is due.” ’ ” (§ 437c, subd. (h); Levingston v. Kaiser Foundation Health Plan, Inc. (2018) 26 Cal.App.5th 309, 315 (Levingston).) “ ‘Where a plaintiff cannot make the showing required under section 437c, subdivision (h), a plaintiff may seek a continuance under the ordinary discretionary standard applied to requests for a continuance.’ ” (Levingston, supra, 26 Cal.App.5th at p. 315 .) “ ‘This requires a showing of good c

2014(Susag v. City of Lake Forest (2002) 94 Cal.App.4th 1401, 1408 [ 115 Cal.Rptr.2d 269 ].) Discretionary immunity “In California, all government tort liability must be based on statute.” (Becerra v. County of Santa Cruz (1998) 68 Cal.App.4th 1450, 1457 [ 81 Cal.Rptr.2d 165 ]; see Wilson v. County of San Diego (2001) 91 Cal.App.4th 974, 979-980 [ 111 Cal.Rptr.2d 173 ].) “Under the provisions of the California [Government] Claims Act, ‘a public employee is liable for injury caused by *1014 his act or omission to the same extent as a private person,’ except as otherwise specifically provided by sta

2014(Susag v. City of Lake Forest (2002) 94 Cal.App.4th 1401, 1408 [ 115 Cal.Rptr.2d 269 ].) Discretionary immunity “In California, all government tort liability must be based on statute.” (Becerra v. County of Santa Cruz (1998) 68 Cal.App.4th 1450, 1457 [ 81 Cal.Rptr.2d 165 ]; see Wilson v. County of San Diego (2001) 91 Cal.App.4th 974, 979-980 [ 111 Cal.Rptr.2d 173 ].) “Under the provisions of the California [Government] Claims Act, ‘a public employee is liable for injury caused by *1014 his act or omission to the same extent as a private person,’ except as otherwise specifically provided by sta