County of San Bernardino v. Super. Ct. ( 2022 )

Filed 4/27/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
COUNTY OF SAN BERNARDINO et
al.,
E077884
Petitioners,
(Super. Ct. No. CIVDS2021303)
v.
OPINION
THE SUPERIOR COURT OF
SAN BERNARDINO COUNTY,
Respondent;
THE RED BRENNAN GROUP et al.,
Real Parties in Interest.
ORIGINAL PROCEEDINGS; petition for writ of mandate and/or prohibition.
Petition is granted.
Tom Bunton and Steven O’Neill, County Counsel and Laura L. Crane, Deputy
County Counsel, for Petitioners.
No appearance for Respondent.
The Red Brennan Group and Aaron D. Burden, for Real Parties in Interest.
1
I.
INTRODUCTION
This action arises from the San Bernardino County registrar of voters (ROV)
initially miscalculating the number of signatures needed in support of plaintiffs and real
1
parties in interest’s (RPI) initiative petition to repeal a special tax associated with a fire
protection zone. The ROV told RPI the incorrect number, resulting in RPI incurring
unnecessary costs in obtaining far more signatures than were required.
Defendants and Petitioners County of San Bernadino and its ROV, Bob Page,
(collectively, the County) petition for a writ of mandate directing respondent court to
vacate its order overruling the County’s demurrer and to enter an order sustaining the
demurrer without leave to amend. The County contends that, when RPI requested the
County to inform it of the number of signatures required for its initiative petition, the
County did not owe RPI any statutory or constitutional duty to provide the information
when requested. The County further argues it is immune from liability for
communicating to RPI the incorrect number under Government Code sections 818.8 and
822.2.
We agree that under Government Code sections 815 and 815.6, the County is not
subject to liability because there was no breach of any statutory or constitutional duty. In
addition, even if the County owed RPI such a duty, the County was immune from
liability under Government Code sections 818.8 and 822.2. We therefore conclude the
1
Red Brennan Group, David Jarvi, Charles Pruitt, and Richard Sayers.
2
trial court erred in overruling the County’s demurrer. The County’s peremptory writ of
mandate thus shall issue as requested, directing respondent court to vacate its order
overruling the County’s demurrer and enter a new order sustaining the demurrer without
leave to amend.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Complaint
RPI’s second amended complaint for damages (SAC) includes two causes of
action, both brought under the California Government Claims Act (Gov. Code, § 810, et
seq.) against the County of San Bernardino and its ROV. RPI’s first cause of action is
entitled, “Liability for Injury (Gov. Code, § 815)” and the second cause of action is
entitled, “Liability for Failure to Discharge Statutory Duty (Gov. Code, § 815.6).”
Attached to the SAC are 20 exhibits incorporated in the SAC substantiating RIP’s factual
allegations.
RPI alleges in its first cause of action that the County owed RPI a mandatory
statutory duty under Elections Code section 9107, to ascertain and inform RPI of the
correct number of signatures required for RPI’s initiative to qualify on the ballot. The
County allegedly told RPI in August 2019, that the number of required initiative petition
signatures was 26,183. In February 2020, after RPI submitted its initiative with
supporting signatures, the County ROV conceded the correct number of required
signatures was only 8,110. RPI alleged that the County breached its duty under Elections
3
Code section 9107 to ascertain the number of signatures required for RPI’s initiative
petition, resulting in RPI needlessly spending more than $250,000 to collect the
unnecessary signatures.
RPI alleges in its second cause of action that the County owed RPI a mandatory
duty to ensure the signature requirement for RPI’s initiative petition was consistent with
the state signature requirement (Elec. Code, § 9035), as mandated in Article XIII C,
section 3 of the California Constitution. The County allegedly imposed an initial
signature requirement of more than three times the State-required number of signatures of
8,110, and did not inform RPI of the correct number until after RPI had submitted its
initiative petition with 32,017 signatures. RPI alleges that without being informed of the
correct signature requirement, RPI could not exercise its constitutional right to file an
initiative petition. The County allegedly breached its duties under Elections Code section
9107 and Article XIII C, section 3 of the State Constitution by failing to ascertain the
correct number of signatures required to qualify RPI’s initiative for the ballot. This
resulted in RPI incurring $250,000 in damages from gathering unnecessary signatures.
B. The County’s Demurrer
The County filed a general demurrer to RPI’s SAC pursuant to Code of Civil
Procedure section 430.10, subdivision (e), on the grounds (1) RPI failed to allege liability
based on either a violation of Elections Code section 9107 or Article XIII C, section 3 of
the State Constitution and (2) the SAC is barred by misrepresentation immunity under
4
Government Code sections 818.8 and 822.2. RPI filed opposition to the County’s
demurrer.
C. The Trial Court’s Order
On June 30, 2021, the trial court heard the County’s demurrer and overruled it.
The trial court incorporated in its order the written tentative ruling, in which the trial
court concluded that Elections Code section 9107 and Article XIII C, section 3 of the
State Constitution did not require the ROV to ascertain the correct number of signatures
in advance of RPI filing its initiative petition. The court also concluded neither Elections
Code section 9107 nor Article XIII C, section 3 of the State Constitution stated when or
to whom the required number of signatures must be communicated, and the constitution
merely prohibited the Legislature and local government charters from imposing a
signature requirement higher than the requirement applicable to statewide statutory
initiatives. The trial court noted RPI did not assert its initiative was improperly rejected.
The trial court, however, concluded it could not determine whether Elections Code
section 9107 and Article XIII C, section 3 of the State Constitution required the County
to provide initiative proponents, such as RPI, with an accurate signature number early in
the initiative process. In conclusion, the trial court stated in its written tentative ruling
adopted as the court’s final ruling that it was overruling the demurrer because “Presently,
the court cannot make this determination on the limited record before it, specifically, the
lack of discussion or analysis of Elections Code section 9107 and California Constitution,
Article XIII C, section 3. Moreover, the parties’ analyses do not address these questions,
5
and the issue of proper interpretation in any depth. And such a determination is required
to determine whether a duty is owed, or not, and whether it is a mandatory duty, or not.
Moreover, the determination of a duty, whether general or mandatory, and to whom it is
owed, is central to an analysis of the sufficiency of the Second Amended Complaint.”
III.
DISCUSSION
A. Availability of Writ Relief
“An order overruling a demurrer is not directly appealable, but may be reviewed
on appeal from the final judgment. [Citation.] Appeal is presumed to be an adequate
remedy and writ review is rarely granted unless a significant issue of law is raised, or
resolution of the issue would result in a final disposition as to the petitioner. [Citation.]”
(Casterson v. Superior Court (2002) 101 Cal.App.4th 177, 182.)
In the instant case, writ review is warranted for both reasons. The petition raises
the first-impression issue of whether the County has a statutory duty under either
Elections Code section 9107 or Article XIII C, section 3 of the State Constitution to
calculate the number of initiative signatures required and inform an initiative proponent
of that number whenever requested by the initiative proponent before submitting the
initiative petition with signatures. There is also an issue of first impression as to whether,
if there is such a duty, the County and its employees are immune from liability under
Government Code sections 818.8 and 822.2. Resolution of these issues in the County’s
favor will result in a final disposition as to the County and its employees.
6
B. Standard of Review
“The standard of review for an order overruling a demurrer is de novo. The
reviewing court accepts as true all facts properly pleaded in the complaint in order to
determine whether the demurrer should be overruled. [Citation.] A general demurrer
will lie where the complaint ‘has included allegations that clearly disclose some defense
or bar to recovery.’ [Citation.] Thus, a demurrer based on an affirmative defense will be
sustained only where the face of the complaint discloses that the action is necessarily
barred by the defense. [Citation.]” (Casterson v. Superior Court, supra, 101 Cal.App.4th
at pp. 182-183.) “Where written documents are the foundation of an action and are
attached to the complaint and incorporated therein by reference, they become a part of the
complaint and may be considered on demurrer.” (City of Pomona v. Superior Court
(2001) 89 Cal.App.4th 793, 800; Qualcomm, Inc. v. Certain Underwriters at Lloyd’s,
London (2008) 161 Cal.App.4th 184, 191.)
In the present case, we must determine whether the affirmative defense of
misrepresentation immunity necessarily bars RPI’s claims against the County. We must
also determine whether, as a matter of law, the County owed RPI any alleged statutory or
constitutional duty that was breached.
C. Public Entity Liability
Under the California Government Claims Act, all government tort liability must be
based on statute. (Gov. Code, § 810, et seq.) “Government Code section 815, enacted in
1963, abolished all common law or judicially declared forms of liability for public
7
entities, except for such liability as may be required by the federal or state Constitution.
Thus, in the absence of some constitutional requirement, public entities may be liable
only if a statute declares them to be liable. Moreover, under subdivision (b) of section
815, the immunity provisions of the California Tort Claims Act will generally prevail
over any liabilities established by statute. [Citations.] In short, sovereign immunity is
the rule in California; governmental liability is limited to exceptions specifically set forth
by statute.” (Cochran v. Herzog Engraving Co. (1984) 155 Cal.App.3d 405, 409.)
Government Code section 815.6 of the California Tort Claims Act adds that a
public entity may be liable for an injury if there is an enactment that imposes upon the
public entity a mandatory duty designed to protect against the risk of such an injury, and
the injury is proximately caused by the public entity’s failure to discharge the duty with
reasonable diligence. The County relies on immunity statutes, Government Code
sections 818.8 and 822.2, which are aimed at protecting public entities and their
employees from liability for making misrepresentations.
D. Absence of Any Breach of a Statutory or Constitutional Duty
1. First Cause of Action
RPI alleges in the first cause of action under Government Code section 815, that
the County breached its statutory duty under Elections Code section 9107 by failing to
ascertain the correct number of signatures required for RPI’s initiative. On August 23,
2019, the ROV told RPI 26,183 signatures were required. Then, on February 11, 2020,
after RPI submitted its initiative petition with signatures, the ROV told RPI that only
8
8,110 signatures were required.
Elections Code section 9107 states that “[t]he county elections official shall
ascertain the number of signatures required to sign the petition by obtaining the number
of votes cast within the county for all candidates for Governor at the last gubernatorial
election preceding the publication of the notice of intention to circulate the initiative
petition.” (Italics added.) Elections Code section 9113 further states that, “[w]hen the
petition is filed, the county elections official shall determine the total number of
signatures affixed to the petition.” (Italics added.)
The first cause of action fails to allege a cause of action because there was no
violation of Elections Code section 9107. First, although in August 2019, the ROV
initially miscalculated the number of required signatures, the County ultimately complied
with Elections Code section 9107 in February 2020, by the County ROV correctly
calculating the number of signatures required. Second, Elections Code section 9107 does
not state when the ROV is required to calculate the number of signatures required for an
initiative petition. Here, the ROV initially provided an incorrect signature number in
August 2019, but then later, in February 2020, provided a correct number. Third,
Elections Code section 9107 does not mandate that the County or ROV inform the
initiative proponent, even upon request, of the number of signatures required. Fourth,
Elections Code section 9107 does not provide for any statutory liability against a public
entity or its employees for telling an initiative proponent an incorrect number of
signatures is required. We therefore conclude the County did not owe RPI a statutory
9
duty under Elections Code section 9107 to inform RPI of the correct number of required
signatures when requested in August 2019.
Even were we to assume RPI adequately alleged the County committed common
2
law negligence or negligent misrepresentation by virtue of the ROV miscalculating the
number of required signatures and communicating that incorrect number to RBI in
August 2019, such claim is not based on any statute or constitutional provision providing
for liability against a public entity or its employees. Therefore the trial court’s ruling
overruling the demurrer to RBI’s first cause of action cannot stand as a matter of law. As
stated in the Government Code section 815, “Editors’ Notes, LEGISLATIVE
COMMITTEE COMMENTS—SENATE,” “This section abolishes all common law or
judicially declared forms of liability for public entities, except for such liability as may be
required by the state or federal constitution, e.g., inverse condemnation. In the absence
of a constitutional requirement, public entities may be held liable only if a statute (not
including a charter provision, ordinance or regulation) is found declaring them to be
2
Common law negligent misrepresentation: “‘One who . . . supplies information
for the guidance of others . . . is subject to liability for harm caused to them by their
reliance upon the information if [¶] ‘(a) he fails to exercise that care and competence in
obtaining and communicating the information which its recipient is justified in expecting,
and [¶] ‘(b) the harm is suffered [¶] ‘(i) by the person or one of the class of persons for
whose guidance the information was supplied, and [¶] ‘(ii) because of his justifiable
reliance upon it in a transaction in which it was intended to influence his conduct or in a
transaction substantially identical therewith.’” (U.S. v. Neustadt (1961) 366 U.S. 696,
708, fn. 16 (Neustadt), quoting The American Law Institute's Restatement of Torts
(1938), c. 22, Deceit: Business Transactions, Topic 3, Negligent Misrepresentations.)
10
liable. . . . [T]he practical effect of this section is to eliminate any common law
governmental liability for damages arising out of torts.”
Despite the Elections Code providing detailed instructions and requirements to be
followed during the initiative process, there is no mention of any requirement that a
public entity or its employees provide an initiative proponent with the number of
signatures required for placing an initiative on the ballot. There is also no mention that a
public entity must provide such information to an initiative proponent upon request
before the initiative petition is submitted. This court declines to judicially legislate such
a requirement that does not exist in the Elections Code. There being no alleged statutory
duty owed to RPI or breach, we conclude the first cause of action does not allege a valid
theory of recovery. The trial court thus erred in overruling the County’s demurrer to the
first cause of action.
2. Second Cause of Action
RPI’s second cause of action also fails to allege a viable theory of recovery against
the County. The second cause of action is entitled “Liability for Failure to Discharge
Statutory Duty” under Government Code section 815.6, and alleges the following. The
County has a mandatory duty under Article XIII C, section 3 of the State Constitution to
ensure the signature requirement for local government initiatives affecting local taxes is
3
consistent with the state signature requirement provided in Elections Code section 9035.
3
That statute requires that the proposed initiative measure is “signed by registered
voters equal in number to 5 percent in the case of a statute . . . of the voters for all
candidates for Governor at the last gubernatorial election preceding the issuance of the
[footnote continued on next page]
11
In violation of Article XIII C, section 3 of the State Constitution, Page imposed an initial
signature requirement of more than three times the number of signatures required under
the Elections Code and State Constitution. Page did not state the correct signature
requirement until after RPI filed its initiative petition with signatures. RPI is the intended
beneficiary of Elections Code section 9107 and Article XIII C, section 3, because an
initiative proponent’s knowledge of the correct number of signatures required is essential
to exercising the power of initiative, as the failure to gather the requisite number of
signatures will prevent the proposed initiative from being placed on the ballot. The
County and its ROV breached duties under Elections Code section 9107 and Article XIII
C, section 3, by failing to ascertain the correct number of signatures required to qualify
RPI’s initiative for the ballot. As a result, RPI incurred damages of more than $250,000
from gathering unnecessary signatures.
These allegations are insufficient to support liability against the County under
Government Code section 815.6. The “Editors’ Notes, LAW REVISION
COMMISSION COMMENTS,” for Government Code section 815.6 state: “This section
declares the familiar rule, applicable to both public entities and private persons, that
failure to comply with applicable statutory or regulatory standards is negligence unless
reasonable diligence has been exercised in an effort to comply with those standards.
[Citations.] In the sections that follow in this division, there are stated some immunities
from this general rule of liability.” Such sections providing immunities from this general
circulating title and summary for the initiative measure by the Attorney General.” (Elec.
Code, § 9035.)
12
rule of liability for mandatory duties include misrepresentation immunity under
Government Code sections 818.8 and 822.2.
To establish liability under Government Code section 815.6, it must be shown
that: “‘(1) an “enactment” imposes a mandatory duty upon the defendant entity; (2)
performance of the duty was intended to protect against the kind of injury suffered by the
plaintiff; and (3) the defendant public entity’s failure to use reasonable diligence to
discharge the mandatory duty proximately caused plaintiff’s injury. [Citations.]’
[Citations.]” (Harshbarger v. City of Colton (1988) 197 Cal.App.3d 1335, 1346.)
As discussed with regard to RPI’s first cause of action, Elections Code section
9107 does not provide any mandatory duty to inform an initiative proponent of the
required number of signatures before submission of the initiative petition. Article XIII C,
section 3 of the State Constitution also does not provide any such mandatory duty.
Article XIII C, section 3 mandates that, “[t]he power of initiative to affect local taxes,
assessments, fees and charges shall be applicable to all local governments and neither the
Legislature nor any local government charter shall impose a signature requirement
higher than that applicable to statewide statutory initiatives.” (Italics added.) The SAC
fails to allege facts establishing that the County violated this constitutional provision.
Furthermore, even if there were such a statutory or constitutional duty, there does
not appear to be any basis for concluding imposing such a duty was intended to protect
against the kind of injury suffered by the plaintiff, of incurring an unnecessary cost of
obtaining signatures in excess of the required number. Also, there was no breach of any
13
such duty to inform RPI of the required number of signatures because, after the initiative
petition was submitted with signatures, the County calculated the number of required
signatures, RPI was in informed of the correct number, and the County determined that
RPI’s initiative qualified for the ballot. The trial court therefore erred in overruling the
County’s demurrer to the second cause of action.
E. Misrepresentation Immunity under Government Code Sections 818.8 and 822.2
Even if the County owed RPI a duty under Elections Code section 9107 or the
State Constitution to inform RPI of the correct number of required signatures, and
breached such duty, the County is immune from liability under Government Code
sections 818.8 and 822.2, commonly known as misrepresentation immunity. We
conclude the SAC and numerous documents attached to the SAC establish, as a matter of
law, that the County is immune from liability under Government Code sections 818.8 and
822.2.
Government Code sections 818.8 and 822.2 provide public entities and public
employees with immunity from liability for misrepresentations unless the employees are
guilty of actual fraud, corruption, or malice. (Tur v. City of Los Angeles (1996) 51
Cal.App.4th 897, 901.) Government Code section 818.8 provides that “[a] public entity
is not liable for an injury caused by misrepresentation by an employee of the public
entity, whether or not such misrepresentation be negligent or intentional.” Section 822.2
provides: “A public employee acting in the scope of his employment is not liable for an
14
injury caused by his misrepresentation, whether or not such misrepresentation be
negligent or intentional, unless he is guilty of actual fraud, corruption or actual malice.”
“The purpose of [Government Code] sections 818.8 and 822.2 is to immunize
public entities and their employees ‘from liability for misrepresentation or deceit, a “tort
distinct from the general milieu of negligent and intentional wrongs, [and which] applies
to interferences with financial or commercial interest.” . . . ’ [Citation.]” (Tur v. City of
Los Angeles, supra, 51 Cal.App.4th at p. 902, quoting Bastian v. County of San Luis
Obispo (1988) 199 Cal.App.3d 520, 533 [Government Code sections 818.8 and 822.2 do
not provide immunity for negligence.].) The Legislature’s goal in enacting Government
Code section 818.8 was to exempt public entities in those cases in which private
defendants typically face liability for misrepresentation. “In short, ‘misrepresentation,’
as a tort distinct from the general milieu of negligent and intentional wrongs, applies to
interferences with financial or commercial interest. The Legislature designed
Government Code section 818.8 to exempt the governmental entity from this type of
liability.” (Johnson v. State of California (1968) 69 Cal.2d 782, 800.)
The County cites Jopson v. Feather River Air Quality (2003) 108 Cal.App.4th 492(Jopson) for the proposition that the County is immune from liability under
misrepresentation immunity provided in Government Code sections 818.8 and 822.2. In
Jopson, supra, 108 Cal.App.4th 492, the plaintiff sued an air quality management district
(District) for negligence based on the District erring in banking and issuing the plaintiff
more marketable pollution credits (ERC’s) than the District actually had earned. The
15
Jopson court affirmed the trial court’s order granting the District’s motion for summary
adjudication of the plaintiff’s negligence cause of action, based on Government Code
section 818.8 immunity. (Id. at p. 494.)
The Jopson court explained that Government Code section 818.8 “grants the
government the following immunity: ‘A public entity is not liable for an injury caused
by misrepresentation by an employee of the public entity, whether or not such
misrepresentation be negligent or intentional.’” (Jopson, supra, 108 Cal.App.4th at pp.
493-494.) The court in Jopson “concluded that the misrepresentation immunity provided
by [Government Code] section 818.8 protected the District from any liability to Jopson
arising from the miscalculation.” (Id. at p. 494.)
In Jopson, the court noted that “[Government code section] 818.8 grants public
entities immunity for negligent misrepresentation but not for negligence. Distinguishing
between the two torts has spawned an eclectic assortment of state and federal cases.”
(Jopson, supra, 108 Cal.App.4th at p. 495.) In Jopson, the court considered whether the
plaintiff’s claim was for misrepresentation or for negligence. (Ibid.) The plaintiff argued
that the District’s miscalculation of ERC’s involved an “‘operational task’” giving rise to
a negligence cause of action, not a misrepresentation claim. (Ibid.)
In addressing the issue, the Jopson court explained that “[t]he term
‘misrepresentation,’ as used in [Government Code] section 818.8, ‘potentially lends itself
to extremely expansive and elusive interpretations.’ [Citation.] The cases cited by both
sides simply reflect the elasticity of the term and the somewhat less-than-clear line of
16
demarcation between a claim of negligence, for which there is no immunity, and a claim
of negligent misrepresentation, for which there is.” (Jopson, supra, 108 Cal.App.4th at
pp. 495-496.)
The court in Jopson began its analysis of Government Code section 818.8
immunity by discussing Neustadt, supra, 366 U.S. 696. The Supreme Court in Neustadt
addressed the issue of whether the United States may be held liable under the Federal
4
Tort Claims Act “to a purchaser of residential property who has been furnished a
statement reporting the results of an inaccurate FHA inspection and appraisal, and who,
in reliance thereon, has been induced by the seller to pay a purchase price in excess of the
property’s fair market value.” (Neustadt, supra, at pp. 697-698.) The Neustadt Court
held the United States was immune from liability under 28 U.S.C. section 2680(h), which
precludes recovery under the federal Tort Claims Act upon any claim arising out of
misrepresentation. (Neustadt, supra, at pp. 698, 710.)
In Neustadt, the United States Supreme Court rejected the notion that the federal
immunity statute, 28 U.S.C. § 2680(h), which is similar to Government Code section
818.8, “does not apply ‘when the gist of the claim lies in negligence underlying the
inaccurate representation . . . .’ (Neustadt, supra, 366 U.S. at p. 703.) “To say . . . that a
claim arises out of ‘negligence,’ rather than ‘misrepresentation,’ when the loss suffered
by the injured party is caused by the breach of a ‘specific duty’ owed by the Government
to him, i.e., the duty to use due care in obtaining and communicating information upon
4
28 U.S.C. s 1346(b), 28 U.S.C.A. section 1346(b)
17
which that party may reasonably be expected to rely in the conduct of his economic
affairs, is only to state the traditional and commonly understood legal definition of the
tort of ‘negligent misrepresentation,’ . . . .” (Id. at p. 706; see also Jopson, supra, 108
Cal.App.4th at p. 496.)
5
Citing Neustadt and a long line of California cases following Neustadt, the
Jopson court rejected the plaintiff’s attempt to evade the District’s Government Code
section 818.8 immunity defense by characterizing the District’s misconduct as something
other than intentional or negligent misrepresentation. The Jopson court noted that
essential to each claim in each case was the plaintiff’s reliance upon misinformation
communicated to him by the government. (Jopson, supra, 108 Cal.App.4th at p. 498.)
In Jopson, the plaintiff argued the California cases following Neustadt were
distinguishable and did not support misrepresentation immunity because they merely
addressed “simple misrepresentations of existing facts,” whereas Jopson involved
negligent performance of technical operational tasks of identifying, calculating, and
banking ERC’s. (Jopson, supra, 108 Cal.App.4th at p. 499.) The Jopson court disagreed
the cited cases only concerned simple misrepresentations. In each of the cited California
cases, “the public entity took preliminary steps to ascertain information but, in doing so,
either wrongfully or negligently obtained false information. They either misapplied their
5
Brown v. City of Los Angeles (1968) 267 Cal.App.2d 849, 850-851; Hirsch v.
Department of Motor Vehicles (1974) 42 Cal.App.3d 252, 254-255; Grenell v. City of
Hermosa Beach (1980) 103 Cal.App.3d 864, 867-868; Harshbarger v. City of Colton,
supra, 197 Cal.App.3d at p. 1342; Tokeshi v. State of California (1990) 217 Cal.App.3d
999, 1002.
18
own ordinances and rules to the relevant factual scenarios or failed to process
applications properly.” (Ibid.)
The Jopson court concluded the same was true in Jopson, in which the District
provided false information as a result of incorrectly calculating the ERC’s: “Like an
inflated appraisal, an erroneous building inspection, a mistaken certificate of ownership, a
false zoning report, or ill-advised instructions, the miscalculation of the ERC’s
constituted misinformation communicated by a governmental entity. The miscalculation
may have preceded the communication, but based on analogous facts in the cases cited
above, we conclude the District is shielded from liability for having misrepresented the
true (and indeed existing) fact that Jopson had earned but a small percentage of the
ERC’s it was issued.” (Jopson, supra, 108 Cal.App.4th at p. 499.)
This case is analogous to Jopson in that, here, the County did not merely provide
RPI with a simple misstatement of information, but also based the misstatement on its
underlying miscalculation responsible for the misinformation. In response to RPI’s
request that the County tell RPI how many signatures were needed for RPI’s initiative
petition, the County initially miscalculated the number of signatures needed and then
provided RPI with the incorrect number in August 2019. Under Jopson and its numerous
cited supporting cases, we conclude the County is shielded from liability for having
miscalculated the number of signatures and then communicating that incorrect number to
RPI. (Jopson, supra, 108 Cal.App.4th at p. 499.)
19
We therefore conclude that, under the facts alleged in the SAC and attached
documents, the County is statutorily immune under Government Code sections 818.8 and
822.2, from liability alleged in the first and second causes of action. The trial court thus
erred in overruling the County’s demurrer to the second cause of action.
IV.
DISPOSITION
Let a peremptory writ of mandate issue directing respondent court to vacate its
order overruling the County’s demurrer, and enter a new order sustaining the demurrer
without leave to amend. The temporary stay order is vacated. The County is awarded its
costs in this writ petition proceeding.
CERTIFIED FOR PUBLICATION
CODRINGTON
J.
We concur:
RAMIREZ
P. J.
McKINSTER
J.
20