Clemente v. State of California

Clemente v. State of California (1980) 101 Cal.App.3d 374 involved the reversal of a demurrer sustained without leave to amend in a case in which a highway patrol officer failed to get the name of a motorcyclist who had injured a pedestrian. The trial court ruled that the state was immune as the negligence was merely a failure to enforce a law and, as such, was immune under Government Code sections 818.2 and 821. The Court of Appeal said that while broadly speaking an investigation by a highway patrol officer of a traffic accident is a law enforcement activity, such activity does not constitute law enforcement within the meaning of the Government Tort Liability Act. "This narrow interpretation of the scope of the failure to enforce a law immunity . . . is consistent with the restricted scope of the discretionary immunity ( Gov. Code, 820.2) . . . our Supreme Court enunciated in Johnson v. State of California (1968) 69 Cal.App.2d 782, 793-800 . . . and with that this panel gave to the lack of police protection immunity ( Gov. Code, 845) in Mann v. State of California (1977) 70 Cal.App.3d 773, 778-779 . . . ." (Id., at p. 378.) The court further said that what was involved was negligence in the conduct of a discretionary investigation and that: "Neither the discretionary immunity of Government Code section 820.2, nor the more specific discretionary immunity of failure to enforce a statute ( Gov. Code, 821, 818.2) immunizes the officer and the state from the legal consequences of this negligence . . . . Government, through its agents, is held to the same standard of care the law requires of private citizens in the performance of duties imposed or assumed. (See Sava v. Fuller (1967) 249 Cal.App.2d 281, 290 . . . .)" ( Id., at p. 379.)