APPEAL from the Superior Court of San Bernardino County. Martin A. Hildreth, Judge*fn1 and Barry L. Plotkin, Judge. Reversed with directions. (Super.Ct.No. RCVRS099902).
The opinion of the court was delivered by: Ramirez P.J.
CERTIFIED FOR PUBLICATION
Plaintiffs and appellants Ray Corona, Sr. and his wife, Arlene Corona, appeal from the trial court‟s judgment dismissing their lawsuit after sustaining the demurrer of defendants and respondents State of California, California Department of Consumer Affairs, and California State Athletic Commission (collectively, the State). Specifically, the Coronas argue the trial court erred when it found that Government Code section 818.4,*fn2 which applies to discretionary decisions by public officials, applies here to immunize the State from liability. As discussed below, we conclude that the California State Athletic Commission (the Commission) has a mandatory duty to license and/or allow to participate in boxing matches only those boxers who present proof of a negative human immunodeficiency virus (HIV) test. Thus, the State can be held liable under section 815.6 for failing to carry out this duty and is not immune from liability under section 818.4.
STATEMENT OF FACTS*fn3 AND PROCEDURE
Ray Corona is a professional boxing referee licensed by the State of California. On June 3, 2005, he refereed a match to which he was assigned by the Commission. By letter dated June 9, 2005, the Commission‟s executive director informed Ray Corona that one of the boxers in the June 3, 2005, match ""was licensed and allowed to fight without having the results of the blood tests for detection of HIV.‟" The fighter at some point did test positive for HIV. The letter also stated, ""you may have unwittingly been exposed to a transmittable blood-borne disease,‟" ""the Commission strongly encourages you to be tested,‟" and ""[y]ou should also think about what might happen if, before you receive your test results, you engage in activities in which you might transmit one of those diseases to someone else.‟"
The FAC alleges that "[l]ike most fights, this one involved numerous cuts and splashing of blood. During the week following the bout, plaintiffs engaged in their regular marital activities, including unprotected sexual intercourse."
After complying with the requirements of the Tort Claims Act (§ 810 et seq.), the Coronas filed the FAC on April 4, 2007. The complaint alleged two causes of action, for violation of a mandatory duty under section 815.6 and vicarious liability for the negligence of state employees, agents, etc. under sections 815.2, subdivision (a), 815.4 and 820, subdivision (a).
The State filed a demurrer to the FAC on May 3, 2007. The Coronas filed their points and authorities in opposition on May 16, 2007. The State replied to the Coronas‟ opposition on May 22, 2007.
At the hearing on the demurrer set for May 29, 2007, the court indicated its tentative ruling was to sustain the demurrer based on governmental immunity under section 818.4, but stated it wanted to more closely examine the issue. The court denied the Coronas‟ motion to file a supplemental memorandum.
At the continued hearing on June 21, 2007, the court confirmed its tentative ruling to sustain the demurrer. The court held that the State did have a mandatory duty to the public and the Coronas under Business and Professions Code section 18712, subdivision (a) to "appropriately license and regulate boxers." However, the court also held that the State‟s actions in sanctioning boxing matches are immune from liability under Government Code section 818.4 because they involved the issuance of a license, permit, approval or authorization. On December 3, 2007, the court entered an order sustaining the demurrer without leave to amend and dismissing the action. This appeal followed.
The Coronas argue that the State was not immune under section 818.4 because the Commission "did not have the authority to issue "a license, permit, approval, or authorization of the fight in question‟ without first obtaining a negative test for HIV/AIDS."
Before determining whether the State was immune under section 818.4, we must first examine, as did the trial court, whether the Commission had a mandatory duty imposed by statute. This is because, under section 815, a governmental agency is not liable for injuries unless the liability is specifically imposed by statute. "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 liable. ...