State ex rel. Department of Rehabilitation v. Superior Court

Opinion

CHRISTIAN, J. The State of California, through the Department of Rehabilitation, and the Attorney General of the State of California seek a writ directing respondent court to grant a motion by petitioners for judgment on the pleadings. We grant the writ.

Keith Kellum, a physically handicapped person, sued the Silver Dragon Restaurant, Inc., alleging failure to provide at a place of public accommodation restroom facilities and an access ramp for the handicapped. (Health & Saf. Code, § 19955 et seq. and Civ. Code, § 54 et seq.) The Silver Dragon settled with Kellum but cross-complained for indemnity against the architects who designed the building, the contractor, and the City of Oakland, alleging that each cross-defendant had negligently failed to advise the restaurant management of handicap accessibility requirements. Cross-complainants further alleged that the city had been under a mandatory duty to prevent the construction of buildings which failed to meet these requirements.

Oakland answered and cross-complained against the state and the Attorney General, alleging that the Department of Rehabilitation knew that the city was not exacting compliance with the handicap access requirements of the Health and Safety Code in issuing building permits and failed to advise the city to refuse to issue those building permits. The city alleged that the Attorney General also knew that the city was not denying the building permits and that the Attorney General had neglected official duty by not informing the city of its obligation to refuse to issue building permits for structures not meeting standards for accommodation of handicapped persons.

The department and the Attorney General answered and moved for judgment on the pleadings. Respondent court denied the motion, and the present writ proceeding ensued.

[285]Mandate will lie in appropriate cases to challenge an order made at the pleading stage of an action. (Babb v. Superior Court (1971) 3 Cal.3d 841, 851 [92 Cal.Rptr. 179, 479 P.2d 379].) We are informed that other similar lawsuits are pending; no case law on issues argued here exists for the guidance of trial courts. Review by extraordinary relief is therefore appropriate. (See People v. Superior Court (1970) 13 Cal.App.3d 672, 676 [91 Cal.Rptr. 651].)

Action Against the Department of Rehabilitation. In the absence of a statutory assumption of liability, “[a] public entity is not liable for an injury, . . . aris[ing] out of an act or omission of the public entity or a public employee or any other person.” (Gov. Code, § 815.) Such an assumption of liability is provided for by Government Code section 815.6: “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 the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty.” The City of Oakland alleges that the Department of Rehabilitation breached such a mandatory duty when it failed in the present instance to meet its statutory responsibilities of “educating the public and working with officials of cities, counties, municipalities, and other political subdivisions, private architects, designers, planners, and other interested parties in order to encourage and help them make all buildings, facilities and improved areas accessible to and usable by handicapped persons for purposes of rehabilitation, employment, business, recreation, and all other aspects of normal living.” (Gov. Code, § 4455.)