Towery v. State of California

Filed 8/14/17 (unmodified opn. attached)
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

GLENN TOWERY, B269387

Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC534872)
v.
ORDER MODIFYING OPINION
STATE OF CALIFORNIA et al., [NO CHANGE IN JUDGMENT]

Defendants and Respondents.

THE COURT:
It is ordered that the opinion filed herein on August 10,
2017, and certified for publication in the Official Reports be
modified as follows:
On page 5 of the as-filed opinion, last sentence of the
second full paragraph, the word ―denied‖ is changed to
―overruled‖ so the sentence reads:
The trial court sustained the demurrer with respect to
Towery‘s federal civil rights claim and overruled it with
respect to the Bane Act claim.

There is no change in the judgment.

CHANEY, Acting P. J. JOHNSON, J. LUI, J.
Filed 8/10/17 (unmodified version)
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

GLENN TOWERY, B269387

Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC534872)
v.

STATE OF CALIFORNIA et al.,

Defendants and Respondents.

APPEAL from a judgment of the Superior Court of Los
Angeles County. Stuart M. Rice, Judge. Affirmed.
Desai Law Firm, Aashish Y. Desai and Adrianne De Castro
for Plaintiff and Appellant.
Xavier Becerra, Attorney General, William C. Kwong,
Acting Senior Assistant Attorney General, Thomas S. Patterson,
Jay C. Russell and Jon S. Allin, Supervising Deputy Attorneys
General, and Jill Vander Borght, Deputy Attorney General, for
Defendants and Respondents.
__________________________________
 Plaintiff and appellant Glenn Towery brought this action
alleging claims for damages against various defendants arising
from his contraction of coccidioidomycosis (commonly known as
valley fever) while incarcerated in the Kern Valley State Prison.
After several iterations of his complaint, the remaining
defendants—respondents in this appeal—are the State of
California and the California Department of Corrections and
Rehabilitation (collectively, the State). Towery is African-
American, and alleges that the State assigned him to the Kern
Valley prison and failed to take preventative measures against
valley fever, despite knowing that Kern Valley is a high risk area
for the disease and that African-Americans are more susceptible
to contracting a serious version of it. The only remaining cause of
action at issue in this appeal is Towery‘s claim under the Bane
Act (Civ. Code, § 52.1), which creates a claim for an individual
whose constitutional rights have been violated through ―threat,
intimidation, or coercion.‖ (Civ. Code, § 52.1, subds. (a)–(b).)
The trial court granted judgment on the pleadings against
Towery on his Bane Act cause of action on the ground that the
State is immune from liability under Government Code section
844.6.1 We affirm. Under section 844.6, subject to some
statutory exceptions not relevant here, a public entity is not
liable for ―[a]n injury to any prisoner.‖ (§ 844.6, subd. (a)(2).)
The Bane Act does not create any exception to this rule. Thus,
regardless of the merits of Towery‘s claim, he may not assert it
against the State.

Subsequent undesignated statutory references are to the
1

Government Code.

2
 BACKGROUND
1. Factual Allegations2
Valley fever is an infectious disease contracted by inhaling
an airborne fungus present in various areas of the Southwestern
United States. The disease causes serious illness in less than
5 percent of persons who are infected. However, the serious,
―disseminated‖ version of the illness can result in debilitating
conditions, such as bone and joint infections, skin disease, soft
tissue abscesses, and meningitis. If untreated, the disease is
fatal once it progresses to meningitis.
Epidemiological studies have shown that, for unknown
reasons, certain races are at higher risk of developing the
disseminated version of the disease. The risk for African-
Americans is 10 times greater than for the general population.
From 1991 to 1993, 70 percent of the reported cases of valley
fever in California occurred in Kern County.
In 2006, the State Department of Public Health published a
formal study on valley fever and recommended various
preventative measures. The majority of those measures were not
implemented in any State prison facility. Then, in April 2013,
the federal receiver that is currently overseeing the state prison
system issued a policy that directs California prisons to exclude
all inmates who are at a higher risk of contracting valley fever,
including African-American inmates. The stated reason for the
receiver‘s analysis was because the State had ― ‗moved slowly‘ ‖ to
develop a reasonable plan to respond to the valley fever problem.

2
Because this is an appeal from a judgment on the
pleadings, we accept the factual allegations in Towery‘s second
amended complaint (SAC) as true. (Gerawan Farming, Inc. v.
Lyons (2000) 24 Cal.4th 468, 515 (Gerawan).)

3
 Towery was incarcerated in the Kern Valley State Prison
from March 2009 to April 2013, when he was released. He first
started experiencing symptoms of valley fever in about 2010, but
the disease was not diagnosed until shortly after Towery was
hospitalized in October 2012 for an enlarged heart. Towery
continues to suffer from the disease. He must take daily
medication. He is unable to exercise and is susceptible to
illnesses such as pneumonia and flu. He suffered a seizure in
January 2014.
Towery alleges that the State intentionally chose to take no
action to protect African-American inmates against valley fever
despite knowing that they are at disproportionate risk of
contracting the serious form of the disease. He claims that the
State‘s alleged intentional course of conduct occurred ―in
connection with a well-documented history [of] race-based
policymaking and discrimination,‖ and that the State chose
inaction ―because of, not merely in spite of, the fact that [Towery]
was African-American.‖
2. Procedural History
Towery filed his initial complaint on January 31, 2014. It
alleged four causes of action: (1) failure to provide inmate with
safe or habitable prison; (2) premises liability; (3) negligent
assignment to prison facility; and (4) unfair business practices.
The State filed a demurrer raising various defenses, including
public entity immunity under sections 815 and 844.6. The trial
court sustained the demurrer on the basis of the immunity
statutes, with leave to amend the first three causes of action.
Towery filed a first amended complaint (FAC) on
December 19, 2014. The FAC included the first three causes of
action from the initial complaint as well as two additional causes

4
of action for: (1) alleged deprivation of constitutional rights
under color of state law (42 U.S.C. § 1983); and (2) alleged
violation of the Bane Act (Civ. Code, § 52.1). The State again
demurred, and the trial court again sustained the demurrer with
leave to amend.
Towery filed his SAC on April 2, 2015. The SAC dropped
Towery‘s first three causes of action and realleged his federal
civil rights and Bane Act claims.
The State again demurred. With respect to the federal civil
rights claim, the State argued that it was not a ―person‖ that
could be subject to liability (see 42 U.S.C. § 1983; Venegas v.
County of Los Angeles (2004) 32 Cal.4th 820, 829 (Venegas I)),
and that Towery lacked standing to pursue injunctive relief
because he was no longer an inmate. With respect to the Bane
Act claim, the State argued that Towery‘s SAC did not allege
facts amounting to ―threats, intimidation or coercion.‖ (Civ.
Code, § 52.1, subd. (a).) The trial court sustained the demurrer
with respect to Towery‘s federal civil rights claim and denied it
with respect to the Bane Act claim.
The State then filed motions for summary judgment and for
judgment on the pleadings. In its motion for judgment on the
pleadings, the State argued that the immunity for public entities
under section 844.6 applied to Towery‘s Bane Act claim, and that
its motion was procedurally proper because it had not previously
raised the issue of immunity with respect to that claim.
The trial court granted the motion for judgment on the
pleadings and entered a final judgment on December 22, 2015.

5
 DISCUSSION
1. Standard of Review
A trial court‘s ruling granting judgment on the pleadings is
―equivalent to a demurrer and is governed by the same standard
of review.‖ (Mack v. State Bar (2001) 92 Cal.App.4th 957, 961.)
We review the trial court‘s ruling independently, accepting
Towery‘s factual allegations as true and giving them a liberal
construction. (Gerawan, supra, 24 Cal.4th at p. 515.)
Here, Towery‘s appeal raises a question of statutory
interpretation: Whether the immunity for public entities
provided under sections 815 and 844.6 applies to a claim under
the Bane Act (Civ. Code, § 52.1). We independently decide that
issue as a matter of law. (See Nelson v. State of California (1982)
139 Cal.App.3d 72, 80–81.)
2. The Bane Act (Civ. Code, § 52.1) Does Not
Provide an Exception to the State’s Immunity for
Conduct That Allegedly Injured Towery
Section 815, subdivision (a) states that, unless an exception
is otherwise provided by statute, a ―public entity is not liable for
an injury, whether such injury arises out of an act or omission of
the public entity or a public employee or any other person.‖3
Under this section, ―in the absence of some constitutional

3
Section 815 was part of the Tort Claims Act (the Act,
§ 810 et seq.). The Act followed our Supreme Court‘s decision in
Muskopf v. Corning Hospital Dist. (1961) 55 Cal.2d 211, which
―abolished the doctrine of governmental tort immunity.‖
(Williams v. Horvath (1976) 16 Cal.3d 834, 838.) The intent of
the Act ―is not to expand the rights of plaintiffs in suits against
governmental entities, but to confine potential governmental
liability to rigidly delineated circumstances: immunity is waived
only if the various requirements of the act are satisfied.‖ (Ibid.)

6
requirement, public entities may be liable only if a statute
declares them to be liable.‖ (Cochran v. Herzog Engraving Co.
(1984) 155 Cal.App.3d 405, 409.) Thus, in California ―sovereign
immunity is the rule‖ and ―governmental liability is limited to
exceptions specifically set forth by statute.‖ (Ibid.)
Consistent with this principle, a statute of general
application that merely creates a liability applicable to public
entities is not sufficient to override a specific immunity provision.
That is because ―the very purpose of the Act is to afford
categories of immunity where, but for its provisions, public
agencies or employees would otherwise be liable under general
principles of law.‖ (Caldwell v. Montoya (1995) 10 Cal.4th 972,
985 (Caldwell).) Thus, under the Act, specific immunities prevail
over general rules of actionable duty. (Ibid.) This priority is
reflected in section 815, subdivision (b), which states that ―[t]he
liability of a public entity established by this part . . . is subject to
any immunity of the public entity provided by statute, including
this part, and is subject to any defenses that would be available
to the public entity if it were a private person.‖
Section 844.6 is a specific immunity provision that applies
to injuries to prisoners. Subject to some specific statutory
exceptions, section 844.6, subdivision (a)(2) provides that a public
entity is not liable for ―[a]n injury to any prisoner.‖4

4
The full text of section 844.6, subdivision (a) is:
―Notwithstanding any other provision of this part, except as
provided in this section and in Sections 814, 814.2, 845.4, and
845.6, or in Title 2.1 (commencing with Section 3500) of Part 3 of
the Penal Code, a public entity is not liable for: [¶] (1) An injury
proximately caused by any prisoner. [¶] (2) An injury to any
prisoner.‖

7
 Towery does not argue that any of the specific statutory
exceptions apply here.5 Thus, under the plain language of
sections 815 and 844.6, the State cannot be liable for Towery‘s
alleged injuries. No other statute contradicts this conclusion.
a. The Bane Act does not override statutory
immunities
Initially, nothing in the language of the Bane Act indicates
that it creates even a general rule of actionable duty for public
entities. Civil Code section 52.1, subdivision (b) provides a

5
One of the statutory exceptions to Government Code
section 844.6 is section 814, which states that ―[n]othing in this
part affects liability based on contract or the right to obtain relief
other than money or damages against a public entity or public
employee.‖ Towery‘s SAC included injunctive relief in the prayer.
However, the only discussion of injunctive relief in the body of the
SAC is in connection with Towery‘s 42 United States Code section
1983 claim, which he has not pursued on appeal. In any event, in
opposing the State‘s motion for judgment on the pleadings
Towery did not argue that he asserts any claim for an injunction
under Civil Code section 52.1 that is subject to an exclusion from
public entity immunity under Government Code section 814. On
appeal, although he quarrels with some unidentified holding of
the trial court that he lacks standing to seek injunctive relief to
assert the constitutional rights of others, he does not place that
argument in any context concerning Government Code section
844.6 immunity. We therefore treat any argument under
Government Code section 814 as forfeited. (Planned Protective
Services, Inc. v. Gorton (1988) 200 Cal.App.3d 1, 13, disapproved
on other grounds in Martin v. Szeto (2004) 32 Cal.4th 445, 451,
fn. 7; In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th
814, 830.) Towery provides no other ―cogent legal argument‖ for
his constitutional claim on appeal, and we therefore do not
consider it. (Falcone, at p. 830.)

8
damage claim for any ―individual whose exercise or enjoyment of
rights secured by the Constitution or laws of the United States,
or of rights secured by the Constitution or laws of this state, has
been interfered with, or attempted to be interfered with, as
described in subdivision (a).‖ Subdivision (a) in turn applies ―[i]f
a person or persons, whether or not acting under color of law,
interferes by threat, intimidation, or coercion, or attempts to
interfere by threat, intimidation or coercion, with the exercise or
enjoyment by any individual or individuals‖ of constitutional
rights. (Civ. Code, § 52.1, subd. (a), italics added.) The section
does not define ―person.‖ However, section 14 of the Civil Code
states that, as used in that code, ―the word person includes a
corporation as well as a natural person.‖ Thus, Civil Code section
52.1 does not on its face provide any claim against the State
itself.
Nor does Towery allege claims against a specific State
employee or employees for which the State might be vicariously
liable as an employer.6 (See, e.g., O’Toole v. Superior Court
(2006) 140 Cal.App.4th 488, 493, 509 (O’Toole) [plaintiffs‘ Bane
Act claim against a community college district was based on the
conduct of police officers employed by the district that allegedly
deprived plaintiffs of their First Amendment rights].) Towery‘s
claim is against the State only.

6
Section 815.2, subdivision (a) provides that ―[a] public
entity is liable for injury proximately caused by an act or
omission of an employee of the public entity within the scope of
his employment if the act or omission would, apart from this
section, have given rise to a cause of action against that employee
or his personal representative.‖

9
 Most important, any general theory of liability against
public entities is subordinate to the specific immunity provision
for injuries to prisoners in section 844.6. As discussed above, ―[i]f
a specific immunity statute applies, it ‗cannot be abrogated by a
statute which simply imposes a general legal duty or liability.‘ ‖
(Creason v. Department of Health Services (1998) 18 Cal.4th 623,
635, quoting Caldwell, supra, 10 Cal.4th at p. 986.) For example,
in Caldwell, the plaintiff sued a school board and individual
board members under the California Fair Employment and
Housing Act (FEHA; § 12900 et seq.) for allegedly dismissing him
as district superintendent on racial grounds. (Caldwell, supra,
10 Cal.4th at p. 976.) The court noted that the FEHA includes
― ‗the state or any political or civil subdivision thereof‘ ‖ in the
definition of an employer that is subject to the FEHA, and
assumed that the ―FEHA imposes individual tort liability on both
public and private employees who cause or assist their covered
‗employers‘ to violate the statute.‖ (Id. at pp. 978–979, fn. 3.)
The court nevertheless concluded that the FEHA claim could not
proceed against the individual defendants because of the specific
immunity provision in section 820.2, which applies to the exercise
of discretion by a public employee.7
Make no mistake, we recognize the human and social
significance of this case; however, we are bound by the law. Civil
Code section 52.1 does not address the immunity established by
Government Code section 844.6. Nothing in Civil Code section
52.1 indicates an intent to abrogate this specific immunity

7
The issue of whether the district itself was immune from
liability under a direct FEHA claim against it was not before the
court, and the court therefore did not decide it. (Caldwell, supra,
10 Cal.4th at p. 989, fn. 9.)

10
provision. The immunity that it creates therefore applies to
Towery‘s Bane Act claim. (See Caldwell, supra, 10 Cal.4th at p.
986 [the specific immunity provided by Government Code section
820.2 ―cannot be abrogated by a statute which simply imposes a
general legal duty or liability on persons, including public
employees‖].)8
Government Code section 844.6 provides an even stronger
case than the immunity provision at issue in Caldwell for the
conclusion that it prevails over any statute, such as Civil Code
section 52.1, that simply establishes a general legal duty or
liability. (See Caldwell, supra, 10 Cal.4th at p. 986.) Unlike
Government Code section 820.2, section 844.6 does not contain
the general statement that it applies ―[e]xcept as otherwise
provided by statute.‖ (Gov. Code, § 820.2.) Rather, Government
Code section 844.6 contains a more limited exception, stating that
it applies ―except as provided in this section‖ and in several other
specific statutes. (See Gov. Code, § 844.6, subd. (a).) Thus,
Government Code section 844.6 does not leave any ambiguity
about its applicability to a claim against a public entity under
some other statute, such as Civil Code section 52.1, that simply
creates a general legal duty.

8
Section 844.6 also precludes any theory of vicarious
liability against the State under the Bane Act, even if Towery
had alleged such a theory. Section 844.6, subdivision (d) provides
that ―[n]othing in this section exonerates a public employee from
liability for injury proximately caused by his negligent or
wrongful act or omission.‖ However, except for medical
malpractice claims, a public entity ―may but is not required to
indemnify any public employee, in any case where the public
entity is immune from liability under this section.‖ (§ 844.6,
subd. (d), italics added.)

11
 Several courts have concluded that Civil Code section 52.1
does not abrogate other specific immunity provisions. In O’Toole,
the court held that the specific immunity provided by
Government Code section 820.6 for good faith conduct under the
apparent authority of an unconstitutional enactment precluded a
claim against community college law enforcement officers.
(O’Toole, supra, 140 Cal.App.4th at p. 504.) The officers had
enforced an allegedly unconstitutional campus permit
requirement for distributing literature. (Id. at pp. 501–502.) The
court cited Caldwell and other authority for the ―general rule‖
that a statutory immunity overrides a statute imposing liability,
and concluded that ―Civil Code section 52.1 contains no indicia
reflecting an intent that public employees may be sued despite a
statutory immunity that would otherwise apply.‖ (Id. at p. 504.)
In County of Los Angeles v. Superior Court (2009) 181
Cal.App.4th 218, the court concluded that the immunity provided
to public employees under Government Code section 821.6 for
―instituting or prosecuting any judicial or administrative
proceeding‖ precluded a claim under the Bane Act for alleged
wrongful seizure and retention of property. (§ 821.6; County of
Los Angeles, at pp. 222, 231.) Citing O’Toole, the court rejected
the plaintiffs‘ contention that ―Civil Code section 52.1 prevails
over the Government Code section 821.6 immunity.‖ (Id. at
p. 231; O’Toole, supra, 140 Cal.App.4th at p. 504.)
Towery‘s reliance on Venegas v. County of Los Angeles
(2007) 153 Cal.App.4th 1230 (Venegas II) is misplaced. That case
concerned claims against police officers and the County of Los
Angeles under 42 United States Code section 1983 (hereafter
U.S.C. section 1983) and the Bane Act based upon an allegedly
unlawful detention and a warrantless search. (Id. at pp. 1238–

12
1240.) The court rejected the defendants‘ claim that the
―qualified immunity‖ afforded to public officers for alleged
violations of U.S.C. section 1983 also applies to state law claims
under the Bane Act.9 The court noted that qualified immunity is
a feature of federal law that was created by the United States
Supreme Court. (Venegas II, at p. 1242.) The court found no
basis in the legislative history of Civil Code section 52.1 to
conclude that the Legislature intended the federal doctrine of
qualified immunity to apply to claims under that section. (Id. at
pp. 1243–1244.)
Venegas II is not relevant here, as it dealt specifically with
judicially created qualified immunity under federal law and not
with statutory immunity under California law. The court
distinguished O’Toole, supra, 140 Cal.App.4th 488, and other
cases that applied statutory immunities under California law,
and expressly stated that ―we have no occasion to determine
whether a statutory immunity might apply here.‖ (Venegas II,
supra, 153 Cal.App.4th at p. 1246; id. at p. 1243.)
Towery nevertheless argues that Venegas II supports the
conclusion ―that Section 52.1 does not provide immunity to
governmental agents‖ because, in concluding that qualified
immunity did not apply to the plaintiffs‘ Bane Act claims in that
case, the court relied in part on the fact that the California

9
The court explained that the current scope of this
qualified immunity ―shields a public officer from an action for
damages under 42 United States Code section 1983 unless the
officer has violated a ‗clearly established‘ constitutional right.‖
(Venegas II, supra, 153 Cal.App.4th at pp. 1241–1242, quoting
Saucier v. Katz (2001) 533 U.S. 194, 201, overruled on other
grounds in Pearson v. Callahan (2009) 555 U.S. 223.)

13
Legislature knows how to create governmental immunity when it
wants to do so. That argument does not help Towery because the
Legislature did create the statutory immunities at issue here.
The relevant question is not whether Civil Code section 52.1 itself
provides immunity, but whether that section creates an exception
to the statutory immunity that otherwise expressly applies.
Nothing in Venegas II supports the conclusion that Civil Code
section 52.1 creates such an exception.10
b. Section 844.6 immunity is not limited to
“ordinary” tort claims
Towery argues that the legislative history of Government
Code section 844.6 indicates that the Legislature intended it to
apply only to ―ordinary‖ torts such as wrongful death and not to
alleged hate crimes under Civil Code section 52.1. As discussed
above, there is no ambiguity in the language of Government Code
section 844.6 concerning its scope. There is therefore no reason
to resort to legislative history to determine whether it applies to
Towery‘s claim. (Day v. City of Fontana (2001) 25 Cal.4th 268,
272 [―If there is no [statutory] ambiguity, then we presume the
lawmakers meant what they said, and the plain meaning of the
language governs‖].)

10
Towery also cites Doe v. Petaluma City Sch. Dist.
(N.D.Cal. 1993) 830 F.Supp. 1560. Like the court in O’Toole, we
do not find the opinion in Petaluma persuasive. The district
court in that case relied on the language in Civil Code section
52.1, subdivision (a), stating that individuals may be liable
―whether or not acting under color of law.‖ (Petaluma, at p. 1582;
Civ. Code, § 52.1, subd. (a).) However, as the court concluded in
O’Toole, this language simply means that the Legislature
intended the Bane Act to apply to private as well as public actors.
(See O’Toole, supra, 140 Cal.App.4th at pp. 504–505.)

14
 In any event, Towery‘s legislative history argument is not
persuasive. Citing Reed v. City & County of San Francisco (1965)
237 Cal.App.2d 23 (Reed) and Lowman v. County of Los Angeles
(1982) 127 Cal.App.3d 613 (Lowman), Towery argues that the
purpose of section 844.6 is to ―allow the orderly administration of
the prison system and to immunize governmental entities [from]
wrongful death actions; not from hate crimes.‖ Neither of those
cases supports the limitation that Towery suggests.
Reed held that section 844.6 was constitutional, rejecting
the argument of the plaintiff (a prisoner) that there was no
reason to classify prisoners differently from other citizens who
might have a claim against a public entity. The court found such
a reason in the fact that ―[i]mposition of liability in cases such as
this would increase the cost of law enforcement and add to the
difficulties of orderly prison administration.‖ (Reed, supra, 237
Cal.App.2d at p. 25.) Nothing in that finding suggests that the
Legislature intended to limit public entity immunity to only some
categories of prisoner claims.
Lowman simply held that the immunity established by
section 844.6 applied to wrongful death claims by a prisoner‘s
heirs as well as to injury claims by prisoners. (Lowman, supra,
127 Cal.App.3d at pp. 615–617.) The court‘s holding that section
844.6 immunity includes wrongful death claims does not mean
that it is limited to wrongful death or other ―ordinary‖ tort
claims, nor did the court suggest any such limit.
We therefore reject Towery‘s argument that the Legislature
intended to exclude claims under Civil Code section 52.1 from the
public entity immunity provided by Government Code section
844.6. If the Legislature had intended such an exclusion, it could
have explicitly said so when enacting the Bane Act, either by

15
including such a provision in that act or by amending
Government Code section 844.6. It did not do so, and we
therefore give effect to the plain language of Government Code
section 844.6.
DISPOSITION
The judgment is affirmed. The State is entitled to its costs
on appeal.
CERTIFIED FOR PUBLICATION.

LUI, J.
We concur:

CHANEY, Acting P. J.

JOHNSON, J.

16