Thursday, February 07, 2008

People v. Superior Court (Cal. Ct. App. - Feb. 4, 2008)

I disagree with this one.

It's a total shortie -- seven double-spaced pages. And very easy to understand.

Defendant causes a fire and the State sues (as it can) to recover the costs of fighting the fire. Defendant admits that it caused the fire but says -- quite plausibly, I might add -- that the fire would have been out in the first two days but for the State's incompetence in fighting the fire; in particular, that the State had basically put the thing out after it had burned out 1200 acres, but due to the State's failure to douse the flames completely, the fire restarted and burned for 10 more days and destroyed 64,000 acres. I'm liable for the first two days, defendant says, but not the subsequent 10. Those are on you.

The State respondes, however, with the time-honored phrase: "Sovereign immunity." "You can't sue me for failure to fight a fire properly," the State (rightly) says. "I'm not," responds the defendant. "I'm just saying that the last 10 days are your fault. It's merely a defense. Failure to mitigate or comparative negligence or whatever." "Tough," says the State. "You can't sue us, either directly or through a backdoor. Even if we were negligent, you've got to pay for all 12 days."

There's a lot at stake here; we're talking about the Piru Fire (back in 2003), so there's almost $4 million in firefighting costs at issue. The trial court, Judge Riley (up in Ventura), agreed with the defendant, and thus denied the State's motion for judgment on the pleadings on defendant's affirmative defenses. But the Court of Appeal, in an opinion by Justice Yegan, grants a writ and reverses.

I understand and appreciate both sides of the dispute. But I think that the trial court got this one right. Sovereign immunity shouldn't, I think, apply to defenses like this.

You're not suing or impleading the State. Rather, you're just paying for only what you caused. There's a reason for not draining the public fisc. But when that fisc has been depleted not from what you did, but rather from the State itself did, that's on them, not you. You can't get money from the State. But neither should you have to pay. If you're responsible for 40% and the State is responsible for 60%, the State shouldn't recover 100%. It's a matter of equity. It's a matter of justice.