Opinion
TOBRINER, J. Before issuing a building permit, a county is required by Labor Code section 3800 to ensure that the applicant for the permit possesses adequate workers’ compensation insurance coverage as defined in various provisions of the Labor Code. Plaintiff, a worker who sustained serious injuries while working on a construction site in Marin County, alleges that the county failed to comply with this statutoiy obligation and that, as a consequence, he has been unable to obtain compensation for his injuries; he seeks to recover from the county the damages allegedly caused by the county’s breach of its statutory duty. The trial court ruled in favor of the county, concluding that even if the county had failed to comply with its statutoiy obligation, it could not be held liable for monetary damages. Plaintiff appeals from that adverse ruling.
We have concluded that the judgment of the trial court should be reversed. As we explain, under Government Code section 815.6 a public entity is liable for an injury proximately caused by its failure to discharge a mandatory duty designed to protect against the risk of a particular kind of injury; Labor Code section 3800 embodies just such a duty. Although defendant claims that section 3800 is “directory” rather than “mandatory,” the “directory-mandatory” distinction, as we shall point out, does not apply in this context, and past authorities demonstrate beyond question that section 3800 imposes a “mandatory” duty within the meaning of section 815.6.
Defendant alternatively contends that it is immune from liability under sections 818.4 and 818.2 of the Government Code, provisions which assertedly insulate a public entity from liability for damages caused by any activity related to the issuance of a permit or the failure to enforce a law. As we explain, however, the language, legislative history, and judicial application of sections 818.4 and 818.2 demonstrate that these provisions do not create the “absolute immunity” that defendant urges, but instead only shield a public entity from liability flowing from activities involving the exercise of governmental discretion. Because in [905]the present case the county enjoyed no discretion to ignore the dictates of Labor Code section 3800, we conclude that the specific immunities of sections 818.4 and 818.2 constitute no bar to plaintiff’s cause of action.
1. The facts of the present case.
The facts of this case, as revealed by the allegations of plaintiff’s first amended complaint, are not complex. In July 1972, defendant Marin County issued a building permit to Guy Gaboon authorizing construction work on a building located in Muir Beach. Contrary to the requirements of Labor Code section 3800, the county, in issuing the permit, did not require Gaboon to file a “certificate of insurance” establishing that he had obtained a valid policy of workers’ compensation insurance in a form approved by the Insurance Commissioner. In fact, at the time he received the permit and thereafter Gaboon carried no such insurance.
A little more than a month after the issuance of the permit, plaintiff Richard Morris fell from a platform while performing construction work in the course and scope of his employment for Gaboon. As a result of the fall, Morris sustained severe injuries resulting in permanent paraplegia. If appropriate insurance coverage had been provided as required, Morris would have been entitled to recover more than $200,000 in workers’ compensation benefits; because no such insurance was in force, Morris has been unable to obtain any benefits to compensate him for his injuries.1 Asserting that the county’s failure to fulfill its statutory obligation proximately caused his uncompensated injuries, plaintiff contended that the county should be held liable for such damages.
Defendant county demurred to the complaint, contending that Labor Code section 3800 did not impose a “mandatory” duty on the county, and that, in any event, the county was immune from liability under Government Code sections 818.4 and 818.2. By minute order, the trial court sustained the demurrer without leave to amend, and thereafter entered judgment in favor of defendant.
[9062]. Labor Code section 3800 imposes a “mandatory duty” on counties to ensure that applicants for building permits carry workers’ compensation insurance; under Government Code section 815.6, a county may be held liable for injuries proximately resulting from its failure to discharge such duty.
Labor Code section 3800 provides in relevant part that “[e]very county . . . which requires the issuance of a permit as a condition precedent to the construction, alteration, improvement, demolition or repair of any building . . . shall require that each applicant for such permit have on file or file . . . [a] certificate of insurance [which states] that there is in existence a valid policy of workmen’s compensation insurance in a form approved by the Insurance Commissioner. . . .” (Italics added.)2
In contending that the county may be held liable for damages resulting from its alleged failure to comply with section 3800, plaintiff relies on Government Code section 815.6, a provision of the California Tort Claims Act, which reads in full: “Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge [907]the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty.”
Defendant county concedes, as it must, that the requirements of Labor Code section 3800 were intended to protect against the very risk of uncompensated injury suffered by plaintiff in the instant case; moreover, because this case arises on demurrer, we must assume, as alleged in the complaint, that defendant failed to use reasonable diligence to comply with section 3800. Defendant contends, nonetheless, that section 815.6 is not applicable here, maintaining that Labor Code section 3800 does hot impose a “mandatory duty” on the county within the meaning of section 815.6.
The explicit language of section 3800 refutes defendant’s contention. As we have seen, the section provides that “[e]veiy county [which issues a building permit] . . . shall require that each applicant. . . have on file or file ... [a] certificate of insurance.” (Italics added.) In turn, Labor Code section 15, one of the general provisions governing the interpretation of specific sections of the Labor Code, explicitly declares that “ ‘[s]hall’ is mandatory and ‘may’ is permissive.” In light of this clear statutory language, and the evident purpose of the provision, there can be no question but that section 3800 imposes a “mandatory duty” on the county within the meaning of section 815.6.3
The numerous cases previously decided under section 815.6, in sustaining the applicability of that section to situations of statutorily mandated duties, uniformly support this conclusion. In Sullivan v. County of Los Angeles (1974) 12 Cal.3d 710 [117 Cal.Rptr. 241, 527 P.2d 865], for example, we held that Penal Code section 1384 imposed upon a county a mandatory duty to release a prisoner when a criminal action was dismissed, and that the county could be held liable for damages resulting from the breach of such a duty. In reaching this conclusion, we relied upon the language of Penal Code section 1384 which provided that “[i]f a court directs the action to be dismissed, the defendant must, if in custody, be discharged therefrom....” (Italics added.)
[908]Similarly, in Bradford v. State of California (1973) 36 Cal.App.3d 16 [111 Cal.Rptr. 852], the Court of Appeal, applying the obligatory language of sections 11116.6 and 11117 of the Penal Code, held that the sections imposed a “mandatory duty” on the county to record the fact that criminal charges against plaintiff had been dismissed. Every other decision decided under section 815.6 has held that comparable statutory language imposed a “mandatory duty” within the meaning of the provision. (See, e.g., Ramos v. County of Madera (1971) 4 Cal.3d 685, 693-696 [94 Cal.Rptr. 421, 484 P.2d 93]; Elson v. Public Utilities Commission (1975) 51 Cal.App.3d 577, 581-582 [124 Cal.Rptr. 305]; Elton v. County of Orange (1970) 3 Cal.App.3d 1053 [84 Cal.Rptr. 27]; Shakespeare v. City of Pasadena (1964) 230 Cal.App.2d 375 [40 Cal.Rptr. 863].)
In an attempt to escape the clear import of section 3800’s explicit language and purpose, defendant invokes a series of cases which discuss the question whether statutory requirements are to be accorded “directory” or “mandatory” effect (Gowanlock v. Turner (1954) 42 Cal.2d 296, 301 [267 P.2d 310]; Castorena v. City of Los Angeles (1973) 34 Cal.App.3d 901, 908 [110 Cal.Rptr. 569]; Adler v. City Council (1960) 184 Cal.App.2d 763, 774-775 [7 Cal.Rptr. 805]); the county contends that under these cases section 3800 should be interpreted as “directory” rather than “mandatory.”
In pressing this argument, however, defendant simply confuses the “mandatory duty” terminology of section 815.6 with the entirely distinct and unrelated legal doctrine pertaining to “directory” or “mandatory” provisions. As used in section 815.6, the term “mandatory” refers to an obligatory duty which a governmental entity is required to perform, as opposed to a permissive power which a governmental entity may exercise or not as it chooses. By contrast, the “directory” or “mandatory” designation does not refer to whether a particular statutory requirement is “permissive” or “obligatory,” but instead simply denotes whether the failure to comply with a particular procedural step will or will not have the effect of invalidating the governmental action to which the procedural requirement relates. (See, e.g., Pulcifer v. County of Alameda (1946) 29 Cal.2d 258, 262-263 [175 P.2d 1]; French v. Edwards (1872) 80 U.S. (13 Wall.) 506, 511 [20 L.Ed. 702, 703]; Ricardo v. Ambrose (3d Cir. 1954) 211 F.2d 212, 220-221.)4
[909]Thus, for example, if a court determines that a city council’s failure to comply with a particular procedural step in enacting an ordinance does not invalidate the resulting ordinance, which is the culmination of those steps, the procedural requirement is referred to as “directory.” (See, e.g., Cake v. City of Los Angeles (1913) 164 Cal. 705, 709-710 [130 P. 723] (tax assessment valid though not adopted within time limit prescribed by statute); City and County of San Francisco v. Cooper (1975) 13 Cal.3d 898, 931 [120 Cal.Rptr. 707, 534 P.2d 403] (wage resolution valid though enacted prior to date specified in city charter); Castorena v. City of Los Angeles (1973) 34 Cal.App.3d 901, 908 [110 Cal.Rptr. 569] (reapportionment ordinance valid though enacted subsequent to charter designated deadline); accord Garrison v. Rourke (1948) 32 Cal.2d 430, 434-436 [196 P.2d 884] (judicial decision valid though rendered after statutorily prescribed period).) If, on the other hand, a court concludes that the failure to comply with a procedural requirement does invalidate the ordinance, the requirement is designated “mandatory.” (See, e.g., Pulcifer v. County of Alameda, supra, 29 Cal.2d 258, 262-263 (ordinance increasing compensation of elected official invalid because not enacted at least six months prior to election as provided by city charter); accord French v. Edwards, supra, 80 U.S. (13 Wall.) 506, 511-512 [20 L.Ed. 702, 703-704] (tax sale invalid where statutory requirement calling for sale of smallest quantity of property as possible not fulfilled); Carter v. Seaboard Finance Co. (1949) 33 Cal.2d 564, 573 [203 P.2d 758] (sale transaction invalid because contract did not itemize fees as required by statute).)
As Chief Justice Gibson explained in Pulcifer v. County of Alameda, supra, 29 Cal.2d 258, 262, there is no simple, mechanical test for [910]determining whether a provision should be given “directory” or “mandatory” effect. “In order to determine whether a particular statutory provision ... is mandatory or directory, the court, as in all cases of statutory construction and interpretation, must ascertain the legislative intent. In the absence of express language, the intent must be gathered from the terms of the statute construed as a whole, from the nature and character of the act to be done, and from the consequences which would follow the doing or failure to do the particular act at the required time. [Citation.] When the object is to subserve some public purpose, the provision may be held directory or mandatory as will best accomplish that purpose [citation]... .”5
In the instant case, however, we have no occasion to determine whether section 3800 is to be given “directory” or “mandatory” effect. That issue would be relevant only if we were concerned with whether the county’s failure to comply with section 3800 rendered the employer’s building permit invalid, that is, whether the end result of the procedural steps—the issuance of the permit—would be voided. Of course, the validity or invalidity of the employer’s building permit is completely immaterial to the issue at bar. The relevant question here, instead, is simply whether the county was under an obligatory duty to ensure that a building permit applicant carries workers’ compensation insurance, so that the county may be subjected to civil liability for damage caused by its failure to fulfill that obligation.
As we have already noted, the statutory language makes quite clear that the Legislature intended the statutory requirements to be obligatory rather than permissive; section 3800 does not “request” the county’s assistance, nor “solicit” the county’s aid, in policing compliance with Labor Code provisions, but rather requires the county to ascertain that each applicant for a building permit carries workers’ compensation insurance. (lb) We .conclude that section 3800 imposes a “mandatory duty” within the meaning of section 815.6.6
[911]Accordingly, the county may be held liable under Government Code section 815.6 for damage resulting from its alleged failure to comply with the requirements of Labor Code section 3800.
3. The immunity afforded by Government Code sections 818.4 and 818.2 attaches only to discretionary activities and does not shield the county from liability relating to its failure to comply with the mandatory duty imposed by Labor Code section 3800.
Defendant alternatively contends that even if liability does attach by virtue of section 815.6, as we have held, the trial court’s decision should still be sustained because the county enjoys immunity from liability by virtue of Government Code sections 818.4 and 818.2. Defendant asserts that these two sections afford the county broad immunity with respect to any injury resulting from the county’s “issuance of a permit” or “failure to enforce a law.” Since the county’s alleged wrongdoing in the instant case relates to its issuance of a building permit and could also be characterized as a failure to enforce the provisions of the Labor Code, the county claims it enjoys an absolute immunity from suit, and may not be held liable even for failing to comply with the mandate of Labor Code section 3800.
Plaintiff disputes the county’s interpretation of sections 818.4 and 818.2, asserting that those provisions only immunize a public entity from liability flowing from discretionary acts. Since the county retained no discretion to ignore the requirements of section 3800, plaintiff maintains that the invoked immunities do not apply. As we shall explain, the language, legislative history and judicial interpretation of the sections all support plaintiff’s construction of the statutes.
a. Section 818.4.
We begin with section 818.4. The section provides in relevant part that “[a] public entity is not liable for an injury caused by the issuance, denial, suspension or revocation of, or by the failure or refusal to issue, deny, suspend or revoke, any permit . . . where the public entity or an [912]employee of the public entity is authorized by enactment to determine whether or not such authorization should be issued, denied, suspended or revoked.” Although defendant reads this language as affording immunity for both discretionary and ministerial acts relating to the granting or denial of a permit, numerous courts and commentators have pointed out that the section’s language explicitly limits immunity to instances “where the public entity of an employee of the public entity is authorized to determine whether or not such [permit] should be issued [or] denied. . . .” (Italics added.) (See, e.g., Elson v. Public Utilities Commission, supra, 51 Cal.App.3d 577, 587-588; Burns v. City Council (1973) 31 Cal.App.3d 999, 1003-1004 [107 Cal.Rptr. 787]; Van Alstyne, Cal. Government Tort Liability (Cont.Ed.Bar 1964) § 5.59, p. 167.)
A public entity, of course, does not have authority to determine “whether or not” to issue a permit when it only performs a ministerial, nondiscretionaiy duty. In such cases, the “basic policy decision” has already been made at a different governmental level. (See Johnson v. State of California (1968) 69 Cal.2d 782, 793-794 [73 Cal.Rptr. 240, 447 P.2d 352].) Thus, the statutory language itself suggests that the section’s immunity attaches only to discretionary activities.
The available legislative -history confirms this interpretation. As Professor Van Alstyne, one of the principal architects of, and commentators upon, the California Tort Claims Act, explains: “As far as public entity immunity is concerned, Government Code section 818.4 appears to be a continuation of prior law under which discretionary licensing activities were deemed ‘governmental’ and thus nonactionable.” (Italics added.) (Van Alstyne, Cal. Government Tort Liability (Cont.Ed.Bar 1964) § 5.59, p. 166; cf. Ellis v. City Council (1963) 222 Cal.App.2d 490, 497-498 [35 Cal.Rptr. 317]; Armstrong v. City of Belmont (1953) 158 Cal.App.2d 641, 642-643 [322 P.2d 999].)
Moreover, in commenting upon section 818.4, the legislative committee declared that: “[T]his section, like section 818.2, would be unnecessary but for a possible implication that might arise from Section 815.6.” Section 818.4 would have been quite “necessary” if the Legislature had intended to immunize public entities from liability arising from ministerial acts, for no other section in the tort claims act provides such immunity for nondiscretionary activities. The section could have been considered “unnecessary” only if the Legislature intended it to apply only, to discretionary activities that were afforded a general immunity through [913]sections 820.2 and 815, subdivision (b).7 Seen in this light, the “possible implication” of section 815.6 which the Legislature desired to disavow was simply an interpretation which would render a public entity liable for a discretionary permit or licensing decision whenever the entity was under a statutory obligation to make such a discretionary decision. The comment demonstrates that the Legislature intended to preserve immunity when the entity retained such discretion. In the absence of such discretion, however, the legislative comment supports the conclusion that no immunity is afforded.8
[914]The cases which have arisen under section 818.4 uniformly support this reading of the section. The recent case of Elson v. Public Utilities Commission, supra, 51 Cal.App.3d 577 is perhaps the most clearly on point. In Elson, the plaintiff was injured when struck by a bus operated by the Blue and White Bus Company; plaintiff recovered a substantial judgment against the company but was unable to collect on the judgment because at the time of the accident, the company was not covered by liability insurance and subsequently had become insolvent. Plaintiff then instituted an action against the Public Utilities Commission, alleging that the commission knew that Blue and White did not carry liability insurance, and that despite a regulation requiring such insurance as a condition to continued operation of a bus company, the commission had failed to revoke Blue and White’s operating authority in violation of its “mandatory duty” to do so.
After determining that the Public Utilities Commission was, indeed, under a mandatory duty to revoke a bus company’s license whenever the company failed to carry adequate liability insurance, the Elson court addressed the commission’s contention that, despite such a mandatory duty, it was immune from liability under section 818.4 because its misconduct arose from a “failure to . . . revoke ... a license.” The Elson court reviewed the statutory language and legislative history which we have noted and then rejected the commission’s contention, concluding that section 818.4’s immunity shields only discretionary activities and that “given the mandatory nature of the Public Utilities Commission’s duty to revoke Blue and White’s license, no immunity attaches by virtue of section 818.4.” (51 Cal.App.3d at p. 589.)
In Elton v. County of Orange (1970) 3 Cal.App.3d 1053 [84 Cal.Rptr. 27], the Court of Appeal reached a similar conclusion. In Elton, a young child who had allegedly been severely mistreated and beaten in a foster home in which she had been placed by the county brought suit against the county, claiming that her injuries were proximately caused by the county’s failure to discharge its mandatory duties of inspection, supervision and control of foster homes. The county sought immunity under section 818.4, contending that its alleged shortcomings were equivalent to the failure to revoke a permit or a license. The Elton court rejected this contention, pointing out that plaintiff’s suit rested not on the county’s neglect with respect to discretionary licensing activities, but rather on the county’s failure to comply with mandatory standards of inspection and supervision dictated by state regulations. (3 Cal.App.3d at p. 1059.) (See, e.g., Shakespeare v. City of Pasadena, supra, 230 [915]Cal.App.3d 375, 386; Ellis v. City Council, supra, 222 Cal.App.2d 490, 497-498; cf. Burns v. City Council, supra, 31 Cal.App.3d 999, 1003-1005.)
Contrary to defendant’s suggestion, the case of O’Hagan v. Board of Zoning Adjustment (1974) 38 Cal.App.3d 722 [113 Cal.Rptr. 501] does not conflict with the interpretation of section 818.4 adopted in the cases cited above. In O’Hagan, a restaurant owner who was dissatisfied with the city’s revocation of his use permit had challenged the revocation in a mandamus action and had succeeded in having the revocation set aside; the owner thereafter sought to recover damages which he had incurred as a result of the erroneous revocation. Unlike the governmental activity involved in the instant case, however, the revocation decision at issue in O’Hagan unquestionably involved a discretionary activity, including adjudication in a quasi-judicial revocation proceeding (38 Cal.App.3d at p. 731); under such circumstances, the O’Hagan court correctly held that the immunity of section 818.4 was applicable.
In the course of the decision, the O’Hagan court stated that “[the] statutory immunity [of section 818.4] is so strong that it even prevails over the liability imposed by section 815.6 for failure to discharge a mandatory duty.” (38 Cal.App.3d at p. 726.) Although defendant interprets this statement as indicating that the statute’s immunity attaches to both discretionary and nondiscretionaiy licensing activities, O’Hagan applied only to a discretionary activity, and thus the passage quoted above goes no further than to state that when such discretionary activity does result in injury, the public entity incurs no liability even if the entity was statutorily required to render such a discretionary decision. Nothing in the O’Hagan opinion indicates that the section’s immunity attaches to a nondiscretionary, ministerial act involved in the licensing or permit process.
Furthermore, although the concurring opinion suggests that our conclusion in this regard necessarily implies that a governmental entity enjoys no immunity from liability arising, for example, out of its failure to detect inadequate or faulty wiring pursuant to building code regulations, we explicitly disavow any such extension of our holding. Government Code section 818.6 expressly provides that “[a] public entity is not liable for injury caused by its failure to make an inspection, or by reason of making an inadequate or negligent inspection of any property ... for purposes of determining whether the property complies with or violates any enactment or contains a hazard to health or safety.” (See also Gov. [916]Code, § 821.4.)9 As the legislative comment to section 818.6 explains: “Because of the extensive nature of the inspection activities of public entities, a public entity would be exposed to the risk of liability for virtually all property defects within its jurisdiction if this immunity were not granted.” In light of such purpose, we believe that section 818.6 must reasonably be construed to insulate a public entity from any liability which might arise as a result of an entity’s failure to detect noncompliance with one of the myriad safety regulations contained in local or statewide building codes. The county’s alleged wrongdoing in the instant case is, of course, clearly distinguishable from the matters encompassed by section 818.6.
To reiterate, in the instant case, plaintiff seeks to impose liability on the county not for failure to discharge a discretionary governmental function, but rather for failure to perform a mandatory duty which the county could not in its discretion ignore. As we have seen, in enacting Labor Code section 3800 the Legislature has required the county to ensure, before issuing a building permit, that building contractors or other employers carry adequate workers’ compensation insurance to protect their employees. Under the section, counties retain no discretion to waive such a requirement; as noted above, the Legislature has reached the basic policy decision that a “certificate of insurance” should be a mandatory prerequisite to the issuance of a building permit. Under these circumstances, we conclude that the county cannot claim the immunity afforded by section 818.4.
b. Section 818.2.
For similar reasons, the immunity provided by section 818.2 does not apply in this case. Section 818.2 provides in full: “A public entity is not liable for an injury caused by adopting or failing to adopt an enactment or by failing to enforce any law.” Although this statutory language, unlike that of section 818.4, does not specifically refer to the exercise of a discretionary authority, the legislative comment accompanying the provision leaves no doubt that the section was intended to encompass only discretionary law enforcement activity. That comment states: “This section recognizes that the wisdom of legislative or quasi-legislative [917]action, and the discretion of law enforcement officers in carrying out their duties, should not be subject to review in tort for damages if political responsibility for these decisions is to be retained.” (Italics added.)
As we have seen, the instant case does not involve any such exercise of discretion. Thus, even if we assume that the immunity of section 818.2 could in some cases apply to entities other than traditional “law enforcement” agencies (cf. Elton v. County of Orange, supra, 3 Cal.App.3d 1053, 1059), we must still conclude that the section provides no sanctuary for the defendant in this case. In Elson v. Public Utilities Commission, supra, 51 Cal.App.3d 577, 589, the “Blue and White Bus Company” case discussed above, the Court of Appeal reached an identical conclusion in a clearly analogous factual setting.
4. Conclusion.
In enacting Labor Code section 3800, the Legislature has specifically required local entities to assure that workers who are injured on construction projects within their jurisdiction can obtain the benefits guaranteed them by this state’s workers’ compensation law. In light of this statutory requirement, workers may reasonably assume that whenever they agree to work for an employer who has obtained a building permit, they will be protected in the event they are injured in the course of such employment.
In the instant case, however, defendant Marin County allegedly neglected to comply with its statutory duty, and, as a result, plaintiff, now a permanent paraplegic, has been unable to obtain any compensation for his injuries. As we have explained, because section 3800 imposes a “mandatory duty” on the county which is intended to avert just such an uncompensated loss, the county is subject to liability for damages under Government Code section 815.6. Moreover, because the county enjoyed no discretion to ignore the mandate of section 3800, the county can claim no immunity under Government Code sections 818.4 and 818.2.
To uphold the position of the county would not only violate the letter of the statute but nullify its purpose. If we are to bestow immunity upon governmental entities that ignore the statutory requirement that the applicant for a building permit obtain workers’ compensation insurance, the requirement becomes a dead letter. Future workers who rely upon the statute in the expectation that it will be enforced must inevitably find themselves unprotected and uninsured from injuries and [918]losses incurred in devastating accidents. Surely we cannot erase the statute itself from the books and expose workers to such serious harm in the face of the Legislature’s protective concern.
The judgment in favor of the defendant is reversed.
Wright, C. J., Mosk, J., Richardson, J., and Sullivan, J.,* concurred.
After instituting the present action, plaintiff filed an application for compensation with the Workers’ Compensation Appeals Board, seeking to obtain benefits through the Uninsured Employers Fund. (See Lab. Code, § 3715 et seq.) The board awarded plaintiff temporary total disability of $105 per week and permanent disability of $70 per week to continue indefinitely, plus reasonable medical benefits. Although his employer has not paid the award, and harinee been adjudicated a bankrupt, plaintiff had not obtained payment from the Uniria|red Employers Fund at the time this appeal was filed because, as of that date, the fu® was bankrupt. In September 1976, the Legislature [906]appropriated additional money for the fund (Stats. 1976, ch. 1036, § 21, No. 5, Deering’s Adv. Legis. Service, p. 536), but nothing in the record suggests that plaintiff has as yet received any such benefits.
Section 3800 provides in full:
“Every county or city which requires the issuance of a permit as a condition precedent to the construction, alteration, improvement, demolition or repair of any building or structure shall require that each applicant for such permit have on file or file
“(1) A certificate of consent to self-insure issued by the Director of Industrial Relations, or
“(2) A certificate of workmen’s compensation insurance issued by an admitted insurer, or
“(3) An exact copy or duplicate thereof certified by the director or the insurer.
“The certificate of insurance shall state that there is in existence a valid policy of workmen’s compensation insurance in a form approved by the Insurance Commissioner. The certificate shall show the expiration date of the policy. No insurer shall issue such certificate unless the full deposit premium on the policy has been paid, and the insurer shall give the county or city at least 10 days’ advance notice of the cancellation of the policy.
“This section shall not apply if
“(1) The permit is for one hundred dollars ($100) or less, or
“(2) The applicant for the permit signs a certificate which reads as follows, or the wording of which has been approved by the Director of Industrial Relations:
“ T certify that in the performance of the work for which this permit is issued I shall not employ any person in any manner so as to become subject to the workmen’s compensation laws of California.’
“If, after making such certificate, the applicant for the permit should become subject to the workmen’s compensation provisions of this code, he shall forthwith comply with the provisions of Section 3700 or his permit shall be deemed revoked.”
Defendant asserts that not only does section 3800 not embody a “mandatory” duty, but, indeed, that it does not even authorize a county to deny a building permit to an applicant who fails to file a certificate of insurance. This contention is patently frivolous, for such an interpretation would render the provision entirely meaningless. The concluding sentence of section 3800 leaves no doubt that the Legislature intended the filing of a “certificate of insurance” to constitute a condition precedent to the issuance of a building permit.
Many statutory provisions which are “mandatory” in the obligatory sense are accorded only “directory” effect. For example, while a governmental entity has an obligatory duty to observe the provisions of California’s “open meeting” law (Gov. [909]Code, § 54950 et seq.), and can be enjoined from violating or mandated to follow such provisions (Gov. Code, § 54960), California decisions to date have uniformly construed such provisions as having “directory” effect, and thus have refused to invalidate governmental acts, such as the promulgation of an administrative regulation, even when the governmental entity improperly discussed the matter at a nonpublic meeting. (See, e.g., Stribling v. Maillard (1970) 6 Cal.App.3d 470, 474-475 [85 Cal.Rptr. 924]; Old Town Dev. Corp. v. Urban Renewal Agency (1967) 249 Cal.App.2d 313, 329 [57 Cal.Rptr. 426].)
It is true that courts have not always been careful to confine the use of the “directory-mandatory” terminology to its proper context, and have sometimes referred to the doctrine in cases in which it was completely inapposite. (See, e.g., Gowanlock v. Turner, supra, 42 Cal.2d 296, 301.) The great bulk of the cases which have invoked the doctrine, however, do recognize that the “directory-mandatory” distinction is concerned only with whether a particular remedy—invalidation of the ultimate governmental action—is appropriate when a procedural requirement is violated; even when invalidation is not appropriate, other remedies—such as injunctive relief, mandamus or monetary damages—may be available to enforce compliance with the statutory provision. Indeed, the availability or unavailability of alternative remedies may have an important bearing on whether a procedure is to be accorded “directory” or “mandatory” effect.
In Gowanlock v. Turner, supra, 42 Cal.2d 296, 301; the court stated in dictum that: “The requirements of a statute are directory, not mandatory, unless means be provided for its enforcement.” Although this passage has, on occasion, been relied on by other courts (see Castorena v. City of Los Angeles, supra, 34 Cal.App.3d 901, 908; Adler v. City Council, supra, 184 Cal.App.2d 763, 774) it is not an accurate expression of the applicable California caselaw on the subject. (See, e.g., Carter v. Seaboard Finance Co., supra, 33 Cal.2d 564, 573.) The test enunciated by Chief Justice Gibson in Pulcifer (quoted in text above) provides a more accurate statement of the prevailing doctrine.
In concluding that Labor Code section 3800 embodies a “mandatory” duty, we do not hold that every statute which uses the word “shall” is obligatory rather than permissive. Although statutory language is, of course, a most important guide in determining [911]legislative intent, there are unquestionably instances in which other factors will indicate that apparent obligatory language was not intended to foreclose a governmental entity’s or officer’s exercise of discretion. (See, e.g., Gov. Code, § 26501 (“[a] district attorney shall institute proceedings ... for the arrest of persons ... reasonably suspected of public offenses when he has information that such offenses have been committed”), construed in Taliafferro v. Locke (1960) 182 Cal.App.2d 752, 757 [6 Cal.Rptr. 813].) Our observations here, of course, pertain only to the case before us.
It may be argued that in interpreting section 818.4 as immunizing only “discretionary” activities, we render the section superfluous since such discretionary activities are already immunized by virtue of sections 820.2 and 815, subdivision (b). As the Legislature itself explicitly recognized, however, many of the individual immunity provisions which it enacted simply represent specific applications of the general “discretionary” immunity principle; the legislative committee explained that “[t]hese specific immunities are stated in statutory form so that the liability of public entities and employers may not be expanded by redefining ‘discretionary immunity’ to exclude certain acts that had previously been considered as discretionary.” (Legislative committee com. to Gov. Code, § 820.2.) Section 821.2, which parallels the language of section 818.4 but refers to public employees rather than public entities, is one of the provisions which the Legislature recognized as a specific application of the discretionary immunity principle; in like fashion it appears that section 818.4 was also intended to encompass only discretionary activities.
Although the concurring opinion argues that a later portion of the legislative comment, indicating that the section affords immunity for negligence in the issuance of a building permit, conflicts with our interpretation of section 818.4, nothing in the cited portion of the comment specifies that immunity was intended to attach to negligence in both ministerial and discretionary permit decisions. As we explain in text, both the statutory language itself and the cases interpreting that language demonstrate that the section applies only to discretionary permit and licensing decisions.
Defendant’s reliance on an isolated passage of the California Law Revision Commission’s commentary on this section is equally unavailing. The passage in question states: “Public entities and public employees should not be liable ... for negligent or wrongful issuance or revocation of licenses and permits. The government has undertaken these activities to insure public health and safety. . . . Far more persons would suffer if government did not perform these functions at all than would be benefitted by permitting recovery in those cases where the government is shown to have performed inadequately.” (Cal. Law Revision Com., Recommendation Relating to Sovereign Immunity (1963) pp. 817-818.)
Contrary to defendant’s contention, this passage does not indicate that section 818.4’s immunity was intended to attach to both discretionary and nondiscretionary actions in this area. The passage quoted above is simply one segment of a general comment which states: “[t]he remedy for officials who ... do not adequately enforce existing law, or who do not provide the people with services they desire, is to replace them with other officials. But their discretionary decisions in these areas cannot be subject to review in tort suits for damages if government is to govern effectively.” (Italics added.) (Id., at p. 817.) Moreover, in suggesting that liability should not be imposed because the public entity might choose to abandon its protective activities if it were held liable for negligence in providing such protection, the comment clearly refers only to discretionary activities which the public entity has the option of pursuing or not. When a mandatory duty is imposed by state law, the county cannot choose to abandon its protective role.
Significantly, unlike section 818.4, section 818.6 contains no language limiting immunity to situations in which an entity has discretion to determine “whether or not” a safety or health hazard is present. In light of this difference in language and the purpose of the section, the immunity afforded by section 816.6 would attach to both ministerial and discretionary conduct in this area.
Retired Associate Justice of the Supreme Court sitting under assignment by the Chairman of the Judicial Council.