A California state appeals court has reversed a lower court and concluded that the California State Athletic Commission had “a mandatory duty” to test a boxer for HIV before issuing him a license to box and exposing a referee, the plaintiff, to the deadly virus.
The appeals court also concluded that the Commission’s failure to require a current negative HIV test from boxer was not within “statutory licensing immunity.”
Ray Corona, Sr. and his wife, Arlene Corona sued the State of California, California Department of Consumer Affairs, and California State Athletic Commission, for violation of mandatory duty and negligence after Corona learned by letter from the Commission that one of the boxers in a fight that he had refereed had tested positive for HIV.
The State filed a demurrer on May 3, 2007, which the court ruled on three weeks later, siding with the defendants based on governmental immunity under Government Code section 818.4. Specifically, it found the defendants “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.”
The Coronas appealed.
“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,” wrote the appeals court. “This is because, under section 815, a governmental agency is not liable for injuries unless the liability is specifically imposed by statute.
The court continued: “We read Business and Professions Code section 18712 as imposing a mandatory duty upon the Commission to require a boxer to provide a negative HIV test from an approved laboratory before issuing the annual boxing license. The state must also require a negative test before allowing the boxer to participate in a match that takes place more than six months after the date of the previous negative test. Business and Professions Code section 18712 uses mandatory language when it provides that a boxer ‘shall present documentary evidence’ of a negative HIV test. Business and Professions Code section 18712 again uses mandatory language when it provides that ‘[a] negative report for [HIV] shall also be required’ of a boxer prior to competing in a boxing match that will occur more than six months after the date of a previous HIV test. In addition, the statute simply does not grant the Commission any discretion to waive the HIV test requirement or to grant a license or allow a boxer to participate in a later match without providing a negative HIV test.’
“This is quite similar to the statute that was interpreted by our Supreme Court in Morris v. County of Marin (1977) 18 Cal.3d 901, 136 Cal.Rptr. 251, 559 P.2d 606 ( Morris ). In Morris, the Legislature mandated in Labor Code section 3800 that counties require applicants for a building permit to have worker’s compensation insurance. The statute provided that [every] county … which requires [a building permit] … shall require that each applicant for [such] permit have on file a certificate of workmen’s compensation insurance. The court found that, in using this language, the Legislature ‘intended the filing of a certificate of insurance to constitute a condition precedent to the issuance of a building permit’ and thus imposed a mandatory duty under Government Code section 815.6. ( Morris, supra, at p. 907 & fn. 3, 136 Cal.Rptr. 251, 559 P.2d 606, italics added.) In the same way, the Legislature clearly intended that the filing of a negative HIV test with the Commission be a condition precedent to the issuance of a boxing license or authorization to participate in a later boxing match. Just as counties had no discretion to issue a building permit unless the applicant provided a certificate of insurance, the Commission has no discretion to allow a boxer to box unless the boxer provides a negative HIV test.”
The court next turned to whether the Commission “is nevertheless immune under Government Code section 818.4.”
Section 818.4 provides, in part: “A public entity is not liable for an injury caused by the issuance … of … any permit, license … or similar authorization where the public entity … is authorized by enactment to determine whether or not such authorization should be issued….”
The court turned to Morris again for guidance. In that case, the appeals court found that the Legislature “has reached the basic policy decision that a ‘certificate of insurance’ should be a mandatory prerequisite to the issuance of a building permit,” meaning there “is no licensing immunity under the statute at issue.
“Similarly, the Legislature in enacting Business and Professions Code section 18712 has reached the basic policy decision that a negative HIV test is a mandatory prerequisite to granting a boxing license or allowing a boxer to participate in a boxing match that takes place more than six months after a boxer was tested for HIV to obtain the license. The Commission has no discretion to issue a boxing license or authorize a boxer to participate in a match unless the boxer submits a negative HIV test. The Commission thus violated its mandatory duty when, as was alleged in the FAC, it granted the boxer in question a boxing license and allowed him to participate in the June 3, 2005, boxing match without submitting a negative HIV test. For this reason, the State is not entitled to immunity under Government Code section 818.4.
“The trial court’s order sustaining the demurrer without leave to amend and its subsequent judgment of dismissal are reversed. The case is remanded to the trial court with orders to enter a new order overruling the demurrer. The State shall pay the Coronas’ costs on appeal.”
Corona et al. v. State of California et al.; Court of Appeal, Fourth District, Division 2, California; No. E044951; 10/23/09
Attorneys of Record: (for Plaintiffs and Appellants) The Law Offices of John Burton and John Burton, Pasadena. (for Defendants and Respondents) Edmund G. Brown, Jr., Attorney General, James M. Schiavenza, Assistant Attorney General, and Marsha S. Miller, Karen S. Darling, and Donna M. Dean, Deputy Attorneys General.
