Adkins v. State (50 Cal. App. 4th 1802, 1996)

Opinion

ALDRICH, J.

This case comes to us after the trial court granted a nonsuit in favor of defendant and respondent State of California (the State) at the conclusion of plaintiffs’ opening statement. The court entered judgment finding the State was immune from liability under the Emergency Services Act. The primary issue we address is whether the State is immune from liability under the Emergency Services Act for intentionally lying to persons about the health and safety of chemicals they handled during a state emergency to eradicate an infestation of pests. We conclude in such situations the State is not immune from intentional concealment of known dangers which cause personal injuries. We therefore reverse the judgment.

Introduction

This case arises out of the Mediterranean fruit fly (Medfly) eradication program of 1989. Plaintiffs and appellants (plaintiffs) were hired by the State to hang Medfly traps by the State. Plaintiffs became ill after handling the chemical used in the traps. Plaintiffs’ supervisors knowingly lied to plaintiffs about the effect of the chemical, told plaintiffs the chemical was completely safe and refused to allow plaintiffs to wear protective clothing. As a result of exposure to the chemical, plaintiffs incurred physical injuries. The trial court granted the State’s motion for nonsuit after plaintiffs’ opening statement.

I.

Factual and Procedural Background

A. Facts

In 1989 the Medfly struck Southern California, leading the Governor to declare a state of emergency aimed at stopping the infestation. (Macias v. State of California (1995) 10 Cal.4th 844, 848 [42 Cal.Rptr.2d 592, 897 P.2d 530].) The Governor declared an emergency on August 9, 1989.

Plaintiffs Domingo Dominic Adkins, Dante Anthony Adkins, Dreco L. Adkins, Andre Jerome Adkins and Fernando Terence Snow, collectively referred to as plaintiffs, were hired as Medfly trappers by the California State Department of Food and Agriculture as part of the Medfly project. Plaintiffs worked at the Elysian Park facility. Neil Wright and Marcella Zita supervised plaintiffs.

In 1981 Wright was trained by the State to use the chemical Trimedlure. Wright had used Trimedlure for eight years. Wright had a bachelor’s degree in entomology, the study of insects. Although plaintiffs were high school graduates, they did not have backgrounds in science or entomology. Plaintiffs looked up to and trusted Wright.

Plaintiffs primarily handled Jackson traps. These traps included a basket into which a plug of Trimedlure was placed. When placed into the basket, the plug was in solid form; when opened and exposed to the air, the plug crystallized. The plug was intended to lure Medflies into the trap.

Plaintiffs were first exposed to Trimedlure when employed as Medfly trappers. Plaintiffs baited the traps at the Elysian Park facility, loaded a large number of traps onto vehicles and then put the traps in trees. Since the traps were baited before being placed in the vehicles, plaintiffs breathed escaping fumes as they drove to the various locations.

Packets of Trimedlure have writing on the front and back which read: “ ‘The toxicological properties of this composition have not been studied. Use with appropriate caution. . . . Refer to the material safety sheets.’ ” Wright had material safety sheets; however, at no time did he or anyone else from the State provide them to plaintiffs.

Plaintiffs were not given any protective clothing. Plaintiffs asked if they could wear gloves. Wright told them gloves were not necessary and wearing protective clothing might alarm the public. Plaintiffs offered to buy gloves with their own money, but Wright told plaintiffs they could not wear them. Wright also told plaintiffs they would be fired if they wore any type of protective clothing.

Trimedlure is absorbed rapidly though the skin and by breathing. The longer the exposure, the worse the symptoms. Plaintiffs began to feel ill from the first day of employment. They experienced fatigue, nausea, muscle cramps, breathing problems and stomach cramps. Plaintiffs repeatedly asked Wright and Zita if Trimedlure or any other substances they were handling could be making them ill. Plaintiffs were told constantly Trimedlure was completely safe and could not make them ill. Although they continued to feel ill, plaintiffs continued to work, doing a good job. Plaintiffs’ symptoms became worse, developing into rashes and the loss of hair. Due to the exposure, all plaintiffs developed neuropathy. All of plaintiffs’ symptoms were the result of toxic exposure.

Wright knew plaintiffs’ symptoms could have been caused by exposure to Trimedlure. Wright intentionally withheld this information from plaintiffs. Further, Wright advised Zita not to provide any information to plaintiffs.

While baiting a trap in February 1990, one of the Adkins plaintiffs rubbed his eye with his hand while holding a crystal; the chemicals from the crystal got into his eye severely burning it. Three days after this incident, one of the Adkins brothers was fired. Wright stated the termination was due to falsifying records, but this statement was untrue. The firing was actually because Wright was upset with the eye accident and because of plaintiffs’ repeated complaints about Trimedlure.

Domingo Adkins went to the news media and discussed plaintiffs’ concerns about Trimedlure. When Wright learned of the contact with the media, Domingo Adkins was fired. A few weeks later, the other plaintiffs were fired. By the end of March 1990, plaintiffs were no longer working for the State.

B. Procedure

Plaintiffs filed charges with the California Department of Fair Employment and Housing and governmental claims with the State. Both were rejected.

Plaintiffs Domingo Dominic Adkins, Dante Anthony Adkins, Dreco L. Adkins and Andre Jerome Adkins filed a civil suit alleging causes of action for wrongful termination, employment discrimination based on physical handicap, defamation, violation of Labor Code section 1050, intentional infliction of emotional distress and fraudulent concealment. In the same lawsuit, plaintiff Fernando Terence Snow alleged causes of action for intentional infliction of emotional distress and fraudulent concealment.

Named as defendants in the civil complaint, and appearing as respondents on appeal, are the State of California, the California Department of Food and Agriculture, Neil Wright and Marcella Zita, collectively referred to as the State.

After plaintiffs’ opening statement, the State brought a motion for nonsuit. The State asserted plaintiffs’ causes of action were barred for a number of reasons, including immunity of a public entity under the Emergency Services Act, Government Code section 8655. The trial court granted the State’s motion for nonsuit ruling plaintiffs’ claims were barred by the immunity contained in the Emergency Services Act.

II.

Standard of Review

“The standard of review for a nonsuit after [the] conclusion of the opening statement is well settled. Both the trial court in its initial decision and the appellate court on review of that decision must accept all facts asserted in the opening statement as true and must indulge every legitimate inference which may be drawn from those facts. [Citations.] A nonsuit at this early stage of the proceedings is disfavored. [Citation.] It can only be upheld on appeal if, after accepting all the asserted facts as true and indulging every legitimate inference in favor of plaintiff, it can be said those facts and inferences lead inexorably to the conclusion plaintiff cannot establish an essential element of its cause of action or has inadvertently established uncontrovertible proof of an affirmative defense. [Citations.]” (Abeyta v. Superior Court (1993) 17 Cal.App.4th 1037, 1041 [21 Cal.Rptr.2d 680]; accord, Di Palma v. Seldman (1994) 27 Cal.App.4th 1499, 1505-1506 [33 Cal.Rptr.2d 219].) On appeal from an order granting a nonsuit, we consider the grounds specified by the moving party in support of the motion, unless there is an incurable defect. (Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 839 [206 Cal.Rptr. 136, 686 P.2d 656]; Lawless v. Calaway (1944) 24 Cal.2d 81, 92-94 [147 P.2d 604] .)

The nonsuit here was granted solely on the grounds the Emergency Services Act provides the State with an immunity. We reverse that conclusion (pt. III). We also conclude, in part V, plaintiffs may not go forward with their cause of action for discrimination based upon physical handicap.

III.

The Emergency Services Act

A. Statutory Scheme and the Medfly Emergency

“The Mediterranean fruitfly (the ‘Medfly’) is a pest not native to California .... The pest poses a severe threat to the economy and welfare of the Sate of California and can infest over 200 varieties of fruit.” (Talevich v. Voss (C.D.Cal. 1990) 734 F.Supp. 425, 427.) The incidents giving rise to this case occurred after the Governor, acting pursuant to his extraordinary powers under the California Emergency Services Act (Gov. Code, § 8550 et seq.), declared a state of emergency due to “. . . conditions of extreme peril to the agricultural industry and the safety of agricultural properties . . . caused by the discovery of an infestation of the Mediterranean Fruit Fly . . . .” (Executive Dept., State of Cal., Proclamation of State of Emergency, Aug. 9, 1989, signed by Gov. George Deukmejian.)

Pursuant to a state’s police powers, it may enact legislation aimed at protecting the life and health of its citizenry. The State’s sovereign powers permit it to promote the order, safety, health, morals and general welfare of society. (McKay Jewelers, Inc. v. Bowron (1942) 19 Cal.2d 595, 600 [122 P.2d 543, 139 A.L.R. 1188]; People v. H & H Properties (1984) 154 Cal.App.3d 894, 900 [201 Cal.Rptr. 687].) Police powers are rooted in the law of necessity. Thus, in an emergency, the scope of permissible regulation may increase. (E.g., Macias v. State of California, supra, 10 Cal.4th at p. 854; Martin v. Municipal Court (1983) 148 Cal.App.3d 693, 698 [196 Cal.Rptr. 218].)

In prior cases courts have concluded the California Emergency Services Act was a valid exercise of the State’s police powers. (Farmers Ins. Exchange v. State of California (1985) 175 Cal.App.3d 494, 501-502 [221 Cal.Rptr. 225]; Macias v. State of California, supra, 10 Cal.4th at pp. 853-856.) “The California Emergency Services Act recognizes and responds to a fundamental role of government to provide broad state services in the event of emergencies resulting from conditions of disaster or of extreme peril to life, property, and the resources of the state. Its purpose is to protect and preserve health, safety, life, and property. ([Gov. Code,] § 8550 et seq.) A state of emergency may be proclaimed by the Governor under the conditions proscribed for any area affected ([Gov. Code,] § 8625). The act confers broad powers on the Governor to deal with emergencies.” (Martin v. Municipal Court, supra, 148 Cal.App.3d at p. 696.) “[T]he Emergency Services Act makes clear that in situations of ‘extreme peril’ to the public welfare the State may exercise its sovereign authority to the fullest extent possible consistent with individual rights and liberties.” (Macias v. State of California, supra, at p. 854.) “[T]here is no question that the State, in prosecuting the Medfly eradication program, was acting pursuant to its authority under the Emergency Services Act to safeguard the property and security of its citizens.” (Id. at pp. 856-857.)

As part of an eradication program, the State is obligated by the Food and Agricultural Code to comply with strict notification requirements expressly designed for such programs. (Food & Agr. Code, §§ 5029, 5771 et seq.) “Under Food and Agricultural Code section 5029, the State Department of Food and Agriculture is required to ‘design and implement a program to provide information to persons who reside in areas scheduled to be treated with pesticides, on an emergency basis in order to eradicate plant pests.’ (Food & Agr. Code, § 5029, subd. (a).) As provided by statute, the purpose of the program ‘is to provide information about the health effects of the pesticides used in eradication projects. The program shall be designed to provide the greatest amount of information practicable to affected citizens. The department shall conduct outreach efforts to inform the public about the existence of this program.’ (Food & Agr. Code, § 5029, subd. (b).)” (Macias v. State of California, supra, 10 Cal.4th at p. 855.)

“Other statutes delineate in precise and detailed terms the nature of the ‘outreach’ efforts required of the State during an eradication project.” (Macias v. State of California, supra, 10 Cal.4th at p. 855.) Before aerially applying a pesticide (or economic poison) to effect the eradication, Food and Agricultural Code sections 5771, 5773 and 5774 require the State to notify residents, physicians, and the local media. Some notices must be hand delivered. (Food & Agr. Code, § 5774.) The State must act promptly in providing notice and must notify if the scheduled date of application is changed. (Food & Agr. Code, §§ 5772, 5775.) “The State’s notices must be in both English and in any other language if over 5 percent of persons receiving the notice speak only that language. (Food & Agr. Code, § 5777.) [H The contents of the State’s notice is also statutorily prescribed. (Food & Agr. Code, § 5776.) It must contain the ‘date and approximate time’ of all proposed pesticide applications, the ‘type of economic poison’ to be applied, any ‘health and safety precautions that should be taken,’ and the address and telephone numbers of ‘public health personnel . . . familiar with the eradication program.’ (Ibid.) In addition, the State is required to establish and operate telephone ‘hot lines’ to ‘provide information to the public on health issues related to application of the economic poison.’ (Food & Agr. Code, § 5778.)” (Macias v. State of California, supra, at p. 856.)

The state and counties are immune from civil actions from the administration of the notice requirements designed for eradication programs if “the director or the commissioner utilizes his or her best efforts to comply with the requirements of the article.” (Food & Agr. Code, § 5780.)

B. Immunity

1. Immunity Under the Emergency Services Act

The State contends it is immune from civil liability under the Emergency Services Act immunity provision, Government Code section 8655. This section reads: “The state or its political subdivisions shall not be liable for any claim based upon the exercise or performance, or the failure to exercise or perform, a discretionary function or duty on the part of a state or local agency or any employee of the state or its political subdivisions in carrying out the provisions of this chapter.” (Italics added.)

A number of cases have addressed the immunity codified in Government Code section 8655 in connection with Medfly eradication programs. In Farmers Ins. Exchange v. State of California, supra, 175 Cal.App.3d 494, insurance companies sought recovery for payments made to their policy holders. The companies paid their insureds after malathion, the chemical mixture used by the State in the Medfly aerial spraying, damaged car surfaces. In discussing the negligence cause of action, Farmers addressed which governmental decisions are discretionary and thus covered under the immunity umbrella: “It is clear that the Governor’s proclamation under express authority of Government Code section 8625, and the subsequent spraying of malathion were policy level decisions. This would be true as well with respect to the myriad decisions regarding the implementation of the program, such as the length of spraying, size of droplets, type of mixture, area to spray, etc. Since plaintiffs’ claim is based directly upon these acts, section 8655 applies to provide the state with immunity from liability. The purpose of the statute is obvious. In those cases where the state must take the steps necessary to quell an emergency, it must be able to act with speed and confidence without fear of incurring tort liability. [Citation.] [