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Bonner v. City of Santa Ana5/31/1996
SILLS, P. J.
BACKGROUND
Marshone Bonner kept all of his worldly goods in a trash bag. He stored the bag behind some bushes near city hall. When city workers tossed the bag into the trash, Bonner might have sued the city for conversion. (See Collin v. American Empire Ins. Co. (1994) 21 Cal. App. 4th 787, 812 [26 Cal. Rptr. 2d 391] ["The tort of conversion is an 'act of dominion wrongfully exerted over another's personal property in denial of or inconsistent with his rights therein.' "].) A city is, after all, not immune from conversion claims. (See Tallmadge v. County of Los Angeles (1987) 191 Cal. App. 3d 251, 254 [236 Cal. Rptr. 338] [county could be held liable on conversion theory for destruction of confiscated firearms without prior notice]; Kane v. County of San Diego (1969) 2 Cal. App. 3d 550, 552-553 [83 Cal. Rptr. 19] [county held liable on conversion theory for immediate destruction of 28 greyhound dogs taken to animal shelter because county should have waited 72 hours].)
In point of fact, Bonner did sue the city for conversion, but, for some reason, dismissed his conversion claim prior to trial. Instead, he sought damages based strictly on the violation of two state constitutional provisions: He claimed the city, by tossing his bag into the trash, denied him both equal protection of the laws and due process of law. (See Cal. Const., art. I, ยง 7.)
Bonner prevailed on these two causes of action. A jury awarded him $9,300: $1,300 for the contents of the bag, $8,000 for the emotional distress of losing it. The city then appealed.
In a prior opinion, we held that Bonner could not prevail as a matter of law on his equal protection claim, because money damages are not available for equal protection violations. Nevertheless, we also held that Bonner could prevail on his due process claim, but was limited, like any other owner whose property is taken by the government, to just the value of the property; he could not recover for his emotional distress.
We remanded the case because of a problem with one of the jury instructions. Bonner's due process claim required proof that the destruction of his property was city policy, as distinct from, say, simple negligence. The trial court had given an instruction which had precluded the jury from considering the evidence presented by the city that it did not have such a policy. Bonner then petitioned the California Supreme Court for review; it granted review and transferred the matter back to this court, concluding that our previous decision had rested on grounds not briefed by the parties. The interim has afforded us not only an opportunity to consider the arguments of the parties specifically targeted at the rationales set forth in our prior opinion, but also to consider an important new case in the area, Gates v. Superior Court (1995) 32 Cal. App. 4th 481 [38 Cal. Rptr. 2d 489], a decision arising out of the mob violence that occurred in Los Angeles in April 1992. Gates squarely holds, as did we in our earlier opinion, that money damages are not available for violations of the state equal protection clause. Bonner tries to distinguish Gates on the ground that the alleged equal protection violation in that case involved government in action, while the violation here involved affirmative mis action. The distinction, as we will later explain, is unconvincing.
As to the due process violation, we have also (at the city's remonstrance) taken the Gates decision to heart. Gates demonstrated that in construing our state Constitution, the California Supreme Court has mandated that courts look to the intent of the voters who ratified the document. And when we do, we find we must reappraise
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