Filed 8/14/17 (unmodified opn. attached)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

GLENN TOWERY,

Plaintiff and Appellant,

v.

STATE OF CALIFORNIA et al.,

Defendants and Respondents.

 B269387

 (Los Angeles County

 Super. Ct. No. BC534872)

ORDER MODIFYING OPINION

[NO CHANGE IN JUDGMENT]

THE COURT:

It is ordered that the opinion filed herein on August 10, 

2017, and certified for publication in the Official Reports be 

modified as follows:

On page 5 of the as-filed opinion, last sentence of the 

second full paragraph, the word ―denied‖ is changed to 

―overruled‖ so the sentence reads:

The trial court sustained the demurrer with respect to 

Towery‘s federal civil rights claim and overruled it with 

respect to the Bane Act claim.

There is no change in the judgment.

CHANEY, Acting P. J. JOHNSON, J. LUI, J.
Filed 8/10/17 (unmodified version)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

GLENN TOWERY,

Plaintiff and Appellant,

v.

STATE OF CALIFORNIA et al.,

Defendants and Respondents.

 B269387

 (Los Angeles County

 Super. Ct. No. BC534872)

APPEAL from a judgment of the Superior Court of Los 

Angeles County. Stuart M. Rice, Judge. Affirmed.

Desai Law Firm, Aashish Y. Desai and Adrianne De Castro 

for Plaintiff and Appellant.

Xavier Becerra, Attorney General, William C. Kwong, 

Acting Senior Assistant Attorney General, Thomas S. Patterson, 

Jay C. Russell and Jon S. Allin, Supervising Deputy Attorneys 

General, and Jill Vander Borght, Deputy Attorney General, for 

Defendants and Respondents.

__________________________________
2

Plaintiff and appellant Glenn Towery brought this action 

alleging claims for damages against various defendants arising 

from his contraction of coccidioidomycosis (commonly known as 

valley fever) while incarcerated in the Kern Valley State Prison. 

After several iterations of his complaint, the remaining 

defendants—respondents in this appeal—are the State of 

California and the California Department of Corrections and 

Rehabilitation (collectively, the State). Towery is AfricanAmerican, and alleges that the State assigned him to the Kern 

Valley prison and failed to take preventative measures against 

valley fever, despite knowing that Kern Valley is a high risk area 

for the disease and that African-Americans are more susceptible 

to contracting a serious version of it. The only remaining cause of 

action at issue in this appeal is Towery‘s claim under the Bane 

Act (Civ. Code, § 52.1), which creates a claim for an individual 

whose constitutional rights have been violated through ―threat, 

intimidation, or coercion.‖ (Civ. Code, § 52.1, subds. (a)–(b).)

The trial court granted judgment on the pleadings against 

Towery on his Bane Act cause of action on the ground that the 

State is immune from liability under Government Code section 

844.6.1 We affirm. Under section 844.6, subject to some 

statutory exceptions not relevant here, a public entity is not 

liable for ―[a]n injury to any prisoner.‖ (§ 844.6, subd. (a)(2).) 

The Bane Act does not create any exception to this rule. Thus, 

regardless of the merits of Towery‘s claim, he may not assert it 

against the State.

 

1 Subsequent undesignated statutory references are to the 

Government Code.
3

BACKGROUND

1. Factual Allegations2

Valley fever is an infectious disease contracted by inhaling 

an airborne fungus present in various areas of the Southwestern 

United States. The disease causes serious illness in less than 

5 percent of persons who are infected. However, the serious, 

―disseminated‖ version of the illness can result in debilitating 

conditions, such as bone and joint infections, skin disease, soft 

tissue abscesses, and meningitis. If untreated, the disease is 

fatal once it progresses to meningitis.

Epidemiological studies have shown that, for unknown 

reasons, certain races are at higher risk of developing the 

disseminated version of the disease. The risk for AfricanAmericans is 10 times greater than for the general population. 

From 1991 to 1993, 70 percent of the reported cases of valley 

fever in California occurred in Kern County. 

In 2006, the State Department of Public Health published a 

formal study on valley fever and recommended various 

preventative measures. The majority of those measures were not 

implemented in any State prison facility. Then, in April 2013, 

the federal receiver that is currently overseeing the state prison 

system issued a policy that directs California prisons to exclude 

all inmates who are at a higher risk of contracting valley fever, 

including African-American inmates. The stated reason for the 

receiver‘s analysis was because the State had ―  ̳moved slowly‘ ‖ to 

develop a reasonable plan to respond to the valley fever problem.

 

2 Because this is an appeal from a judgment on the 

pleadings, we accept the factual allegations in Towery‘s second 

amended complaint (SAC) as true. (Gerawan Farming, Inc. v. 

Lyons (2000) 24 Cal.4th 468, 515 (Gerawan).)
4

Towery was incarcerated in the Kern Valley State Prison 

from March 2009 to April 2013, when he was released. He first 

started experiencing symptoms of valley fever in about 2010, but 

the disease was not diagnosed until shortly after Towery was 

hospitalized in October 2012 for an enlarged heart. Towery 

continues to suffer from the disease. He must take daily 

medication. He is unable to exercise and is susceptible to 

illnesses such as pneumonia and flu. He suffered a seizure in 

January 2014.

Towery alleges that the State intentionally chose to take no 

action to protect African-American inmates against valley fever 

despite knowing that they are at disproportionate risk of 

contracting the serious form of the disease. He claims that the 

State‘s alleged intentional course of conduct occurred ―in 

connection with a well-documented history [of] race-based 

policymaking and discrimination,‖ and that the State chose 

inaction ―because of, not merely in spite of, the fact that [Towery] 

was African-American.‖

2. Procedural History

Towery filed his initial complaint on January 31, 2014. It 

alleged four causes of action: (1) failure to provide inmate with 

safe or habitable prison; (2) premises liability; (3) negligent 

assignment to prison facility; and (4) unfair business practices. 

The State filed a demurrer raising various defenses, including 

public entity immunity under sections 815 and 844.6. The trial 

court sustained the demurrer on the basis of the immunity 

statutes, with leave to amend the first three causes of action.

Towery filed a first amended complaint (FAC) on 

December 19, 2014. The FAC included the first three causes of 

action from the initial complaint as well as two additional causes 
5

of action for: (1) alleged deprivation of constitutional rights 

under color of state law (42 U.S.C. § 1983); and (2) alleged 

violation of the Bane Act (Civ. Code, § 52.1). The State again 

demurred, and the trial court again sustained the demurrer with 

leave to amend.

Towery filed his SAC on April 2, 2015. The SAC dropped 

Towery‘s first three causes of action and realleged his federal 

civil rights and Bane Act claims.

The State again demurred. With respect to the federal civil 

rights claim, the State argued that it was not a ―person‖ that 

could be subject to liability (see 42 U.S.C. § 1983; Venegas v. 

County of Los Angeles (2004) 32 Cal.4th 820, 829 (Venegas I)), 

and that Towery lacked standing to pursue injunctive relief 

because he was no longer an inmate. With respect to the Bane 

Act claim, the State argued that Towery‘s SAC did not allege 

facts amounting to ―threats, intimidation or coercion.‖ (Civ. 

Code, § 52.1, subd. (a).) The trial court sustained the demurrer 

with respect to Towery‘s federal civil rights claim and denied it 

with respect to the Bane Act claim.

The State then filed motions for summary judgment and for 

judgment on the pleadings. In its motion for judgment on the 

pleadings, the State argued that the immunity for public entities 

under section 844.6 applied to Towery‘s Bane Act claim, and that 

its motion was procedurally proper because it had not previously 

raised the issue of immunity with respect to that claim. 

The trial court granted the motion for judgment on the 

pleadings and entered a final judgment on December 22, 2015. 
6

DISCUSSION

1. Standard of Review

A trial court‘s ruling granting judgment on the pleadings is 

―equivalent to a demurrer and is governed by the same standard 

of review.‖ (Mack v. State Bar (2001) 92 Cal.App.4th 957, 961.) 

We review the trial court‘s ruling independently, accepting 

Towery‘s factual allegations as true and giving them a liberal 

construction. (Gerawan, supra, 24 Cal.4th at p. 515.)

Here, Towery‘s appeal raises a question of statutory 

interpretation: Whether the immunity for public entities 

provided under sections 815 and 844.6 applies to a claim under 

the Bane Act (Civ. Code, § 52.1). We independently decide that 

issue as a matter of law. (See Nelson v. State of California (1982) 

139 Cal.App.3d 72, 80–81.)

2. The Bane Act (Civ. Code, § 52.1) Does Not 

Provide an Exception to the State’s Immunity for 

Conduct That Allegedly Injured Towery

Section 815, subdivision (a) states that, unless an exception 

is otherwise provided by statute, a ―public entity is not liable for 

an injury, whether such injury arises out of an act or omission of 

the public entity or a public employee or any other person.‖3 

Under this section, ―in the absence of some constitutional 

 

3 Section 815 was part of the Tort Claims Act (the Act, 

§ 810 et seq.). The Act followed our Supreme Court‘s decision in 

Muskopf v. Corning Hospital Dist. (1961) 55 Cal.2d 211, which 

―abolished the doctrine of governmental tort immunity.‖ 

(Williams v. Horvath (1976) 16 Cal.3d 834, 838.) The intent of 

the Act ―is not to expand the rights of plaintiffs in suits against 

governmental entities, but to confine potential governmental 

liability to rigidly delineated circumstances: immunity is waived 

only if the various requirements of the act are satisfied.‖ (Ibid.)
7

requirement, public entities may be liable only if a statute 

declares them to be liable.‖ (Cochran v. Herzog Engraving Co. 

(1984) 155 Cal.App.3d 405, 409.) Thus, in California ―sovereign 

immunity is the rule‖ and ―governmental liability is limited to 

exceptions specifically set forth by statute.‖ (Ibid.)

Consistent with this principle, a statute of general 

application that merely creates a liability applicable to public 

entities is not sufficient to override a specific immunity provision. 

That is because ―the very purpose of the Act is to afford 

categories of immunity where, but for its provisions, public 

agencies or employees would otherwise be liable under general 

principles of law.‖ (Caldwell v. Montoya (1995) 10 Cal.4th 972, 

985 (Caldwell).) Thus, under the Act, specific immunities prevail 

over general rules of actionable duty. (Ibid.) This priority is 

reflected in section 815, subdivision (b), which states that ―[t]he 

liability of a public entity established by this part . . . is subject to 

any immunity of the public entity provided by statute, including 

this part, and is subject to any defenses that would be available 

to the public entity if it were a private person.‖

Section 844.6 is a specific immunity provision that applies 

to injuries to prisoners. Subject to some specific statutory 

exceptions, section 844.6, subdivision (a)(2) provides that a public 

entity is not liable for ―[a]n injury to any prisoner.‖4

 

4 The full text of section 844.6, subdivision (a) is: 

―Notwithstanding any other provision of this part, except as 

provided in this section and in Sections 814, 814.2, 845.4, and 

845.6, or in Title 2.1 (commencing with Section 3500) of Part 3 of 

the Penal Code, a public entity is not liable for: [¶] (1) An injury 

proximately caused by any prisoner. [¶] (2) An injury to any 

prisoner.‖
8

Towery does not argue that any of the specific statutory 

exceptions apply here.5 Thus, under the plain language of 

sections 815 and 844.6, the State cannot be liable for Towery‘s 

alleged injuries. No other statute contradicts this conclusion.

a. The Bane Act does not override statutory 

immunities

Initially, nothing in the language of the Bane Act indicates 

that it creates even a general rule of actionable duty for public 

entities. Civil Code section 52.1, subdivision (b) provides a 

 

5 One of the statutory exceptions to Government Code 

section 844.6 is section 814, which states that ―[n]othing in this 

part affects liability based on contract or the right to obtain relief 

other than money or damages against a public entity or public 

employee.‖ Towery‘s SAC included injunctive relief in the prayer. 

However, the only discussion of injunctive relief in the body of the 

SAC is in connection with Towery‘s 42 United States Code section 

1983 claim, which he has not pursued on appeal. In any event, in 

opposing the State‘s motion for judgment on the pleadings 

Towery did not argue that he asserts any claim for an injunction 

under Civil Code section 52.1 that is subject to an exclusion from 

public entity immunity under Government Code section 814. On 

appeal, although he quarrels with some unidentified holding of 

the trial court that he lacks standing to seek injunctive relief to 

assert the constitutional rights of others, he does not place that 

argument in any context concerning Government Code section 

844.6 immunity. We therefore treat any argument under 

Government Code section 814 as forfeited. (Planned Protective 

Services, Inc. v. Gorton (1988) 200 Cal.App.3d 1, 13, disapproved 

on other grounds in Martin v. Szeto (2004) 32 Cal.4th 445, 451, 

fn. 7; In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 

814, 830.) Towery provides no other ―cogent legal argument‖ for 

his constitutional claim on appeal, and we therefore do not 

consider it. (Falcone, at p. 830.)
9

damage claim for any ―individual whose exercise or enjoyment of 

rights secured by the Constitution or laws of the United States, 

or of rights secured by the Constitution or laws of this state, has 

been interfered with, or attempted to be interfered with, as 

described in subdivision (a).‖ Subdivision (a) in turn applies ―[i]f 

a person or persons, whether or not acting under color of law, 

interferes by threat, intimidation, or coercion, or attempts to 

interfere by threat, intimidation or coercion, with the exercise or 

enjoyment by any individual or individuals‖ of constitutional 

rights. (Civ. Code, § 52.1, subd. (a), italics added.) The section 

does not define ―person.‖ However, section 14 of the Civil Code 

states that, as used in that code, ―the word person includes a 

corporation as well as a natural person.‖ Thus, Civil Code section 

52.1 does not on its face provide any claim against the State 

itself.

Nor does Towery allege claims against a specific State 

employee or employees for which the State might be vicariously 

liable as an employer.6 (See, e.g., O’Toole v. Superior Court 

(2006) 140 Cal.App.4th 488, 493, 509 (O’Toole) [plaintiffs‘ Bane 

Act claim against a community college district was based on the 

conduct of police officers employed by the district that allegedly 

deprived plaintiffs of their First Amendment rights].) Towery‘s 

claim is against the State only.

 

6 Section 815.2, subdivision (a) provides that ―[a] public 

entity is liable for injury proximately caused by an act or 

omission of an employee of the public entity within the scope of 

his employment if the act or omission would, apart from this 

section, have given rise to a cause of action against that employee 

or his personal representative.‖
10

Most important, any general theory of liability against 

public entities is subordinate to the specific immunity provision 

for injuries to prisoners in section 844.6. As discussed above, ―[i]f 

a specific immunity statute applies, it  ̳cannot be abrogated by a 

statute which simply imposes a general legal duty or liability.‘ ‖ 

(Creason v. Department of Health Services (1998) 18 Cal.4th 623, 

635, quoting Caldwell, supra, 10 Cal.4th at p. 986.) For example, 

in Caldwell, the plaintiff sued a school board and individual 

board members under the California Fair Employment and 

Housing Act (FEHA; § 12900 et seq.) for allegedly dismissing him 

as district superintendent on racial grounds. (Caldwell, supra, 

10 Cal.4th at p. 976.) The court noted that the FEHA includes 

―  ̳the state or any political or civil subdivision thereof‘ ‖ in the 

definition of an employer that is subject to the FEHA, and 

assumed that the ―FEHA imposes individual tort liability on both 

public and private employees who cause or assist their covered 

 ̳employers‘ to violate the statute.‖ (Id. at pp. 978–979, fn. 3.) 

The court nevertheless concluded that the FEHA claim could not 

proceed against the individual defendants because of the specific 

immunity provision in section 820.2, which applies to the exercise 

of discretion by a public employee.7

Make no mistake, we recognize the human and social 

significance of this case; however, we are bound by the law. Civil 

Code section 52.1 does not address the immunity established by 

Government Code section 844.6. Nothing in Civil Code section 

52.1 indicates an intent to abrogate this specific immunity 

 

7 The issue of whether the district itself was immune from 

liability under a direct FEHA claim against it was not before the 

court, and the court therefore did not decide it. (Caldwell, supra, 

10 Cal.4th at p. 989, fn. 9.)
11

provision. The immunity that it creates therefore applies to 

Towery‘s Bane Act claim. (See Caldwell, supra, 10 Cal.4th at p. 

986 [the specific immunity provided by Government Code section 

820.2 ―cannot be abrogated by a statute which simply imposes a 

general legal duty or liability on persons, including public 

employees‖].)8

Government Code section 844.6 provides an even stronger 

case than the immunity provision at issue in Caldwell for the 

conclusion that it prevails over any statute, such as Civil Code 

section 52.1, that simply establishes a general legal duty or 

liability. (See Caldwell, supra, 10 Cal.4th at p. 986.) Unlike 

Government Code section 820.2, section 844.6 does not contain 

the general statement that it applies ―[e]xcept as otherwise 

provided by statute.‖ (Gov. Code, § 820.2.) Rather, Government 

Code section 844.6 contains a more limited exception, stating that 

it applies ―except as provided in this section‖ and in several other 

specific statutes. (See Gov. Code, § 844.6, subd. (a).) Thus, 

Government Code section 844.6 does not leave any ambiguity 

about its applicability to a claim against a public entity under 

some other statute, such as Civil Code section 52.1, that simply 

creates a general legal duty.

 

8 Section 844.6 also precludes any theory of vicarious 

liability against the State under the Bane Act, even if Towery 

had alleged such a theory. Section 844.6, subdivision (d) provides 

that ―[n]othing in this section exonerates a public employee from 

liability for injury proximately caused by his negligent or 

wrongful act or omission.‖ However, except for medical 

malpractice claims, a public entity ―may but is not required to 

indemnify any public employee, in any case where the public 

entity is immune from liability under this section.‖ (§ 844.6, 

subd. (d), italics added.)
12

Several courts have concluded that Civil Code section 52.1 

does not abrogate other specific immunity provisions. In O’Toole, 

the court held that the specific immunity provided by 

Government Code section 820.6 for good faith conduct under the 

apparent authority of an unconstitutional enactment precluded a 

claim against community college law enforcement officers. 

(O’Toole, supra, 140 Cal.App.4th at p. 504.) The officers had 

enforced an allegedly unconstitutional campus permit 

requirement for distributing literature. (Id. at pp. 501–502.) The 

court cited Caldwell and other authority for the ―general rule‖ 

that a statutory immunity overrides a statute imposing liability, 

and concluded that ―Civil Code section 52.1 contains no indicia 

reflecting an intent that public employees may be sued despite a 

statutory immunity that would otherwise apply.‖ (Id. at p. 504.)

In County of Los Angeles v. Superior Court (2009) 181 

Cal.App.4th 218, the court concluded that the immunity provided 

to public employees under Government Code section 821.6 for 

―instituting or prosecuting any judicial or administrative 

proceeding‖ precluded a claim under the Bane Act for alleged 

wrongful seizure and retention of property. (§ 821.6; County of 

Los Angeles, at pp. 222, 231.) Citing O’Toole, the court rejected 

the plaintiffs‘ contention that ―Civil Code section 52.1 prevails 

over the Government Code section 821.6 immunity.‖ (Id. at 

p. 231; O’Toole, supra, 140 Cal.App.4th at p. 504.)

Towery‘s reliance on Venegas v. County of Los Angeles 

(2007) 153 Cal.App.4th 1230 (Venegas II) is misplaced. That case 

concerned claims against police officers and the County of Los 

Angeles under 42 United States Code section 1983 (hereafter 

U.S.C. section 1983) and the Bane Act based upon an allegedly 

unlawful detention and a warrantless search. (Id. at pp. 1238–
13

1240.) The court rejected the defendants‘ claim that the 

―qualified immunity‖ afforded to public officers for alleged 

violations of U.S.C. section 1983 also applies to state law claims 

under the Bane Act.9 The court noted that qualified immunity is 

a feature of federal law that was created by the United States 

Supreme Court. (Venegas II, at p. 1242.) The court found no 

basis in the legislative history of Civil Code section 52.1 to 

conclude that the Legislature intended the federal doctrine of 

qualified immunity to apply to claims under that section. (Id. at 

pp. 1243–1244.)

Venegas II is not relevant here, as it dealt specifically with 

judicially created qualified immunity under federal law and not 

with statutory immunity under California law. The court 

distinguished O’Toole, supra, 140 Cal.App.4th 488, and other 

cases that applied statutory immunities under California law, 

and expressly stated that ―we have no occasion to determine 

whether a statutory immunity might apply here.‖ (Venegas II, 

supra, 153 Cal.App.4th at p. 1246; id. at p. 1243.)

Towery nevertheless argues that Venegas II supports the 

conclusion ―that Section 52.1 does not provide immunity to 

governmental agents‖ because, in concluding that qualified 

immunity did not apply to the plaintiffs‘ Bane Act claims in that 

case, the court relied in part on the fact that the California 

 

9 The court explained that the current scope of this 

qualified immunity ―shields a public officer from an action for 

damages under 42 United States Code section 1983 unless the 

officer has violated a  ̳clearly established‘ constitutional right.‖ 

(Venegas II, supra, 153 Cal.App.4th at pp. 1241–1242, quoting 

Saucier v. Katz (2001) 533 U.S. 194, 201, overruled on other 

grounds in Pearson v. Callahan (2009) 555 U.S. 223.)
14

Legislature knows how to create governmental immunity when it 

wants to do so. That argument does not help Towery because the 

Legislature did create the statutory immunities at issue here. 

The relevant question is not whether Civil Code section 52.1 itself 

provides immunity, but whether that section creates an exception 

to the statutory immunity that otherwise expressly applies. 

Nothing in Venegas II supports the conclusion that Civil Code 

section 52.1 creates such an exception.10

b. Section 844.6 immunity is not limited to 

“ordinary” tort claims

Towery argues that the legislative history of Government 

Code section 844.6 indicates that the Legislature intended it to 

apply only to ―ordinary‖ torts such as wrongful death and not to 

alleged hate crimes under Civil Code section 52.1. As discussed 

above, there is no ambiguity in the language of Government Code 

section 844.6 concerning its scope. There is therefore no reason 

to resort to legislative history to determine whether it applies to 

Towery‘s claim. (Day v. City of Fontana (2001) 25 Cal.4th 268, 

272 [―If there is no [statutory] ambiguity, then we presume the 

lawmakers meant what they said, and the plain meaning of the 

language governs‖].)

 

10 Towery also cites Doe v. Petaluma City Sch. Dist. 

(N.D.Cal. 1993) 830 F.Supp. 1560. Like the court in O’Toole, we 

do not find the opinion in Petaluma persuasive. The district 

court in that case relied on the language in Civil Code section 

52.1, subdivision (a), stating that individuals may be liable 

―whether or not acting under color of law.‖ (Petaluma, at p. 1582; 

Civ. Code, § 52.1, subd. (a).) However, as the court concluded in 

O’Toole, this language simply means that the Legislature 

intended the Bane Act to apply to private as well as public actors. 

(See O’Toole, supra, 140 Cal.App.4th at pp. 504–505.)
15

In any event, Towery‘s legislative history argument is not 

persuasive. Citing Reed v. City & County of San Francisco (1965) 

237 Cal.App.2d 23 (Reed) and Lowman v. County of Los Angeles 

(1982) 127 Cal.App.3d 613 (Lowman), Towery argues that the 

purpose of section 844.6 is to ―allow the orderly administration of 

the prison system and to immunize governmental entities [from] 

wrongful death actions; not from hate crimes.‖ Neither of those 

cases supports the limitation that Towery suggests.

Reed held that section 844.6 was constitutional, rejecting 

the argument of the plaintiff (a prisoner) that there was no 

reason to classify prisoners differently from other citizens who 

might have a claim against a public entity. The court found such 

a reason in the fact that ―[i]mposition of liability in cases such as 

this would increase the cost of law enforcement and add to the 

difficulties of orderly prison administration.‖ (Reed, supra, 237 

Cal.App.2d at p. 25.) Nothing in that finding suggests that the 

Legislature intended to limit public entity immunity to only some 

categories of prisoner claims.

Lowman simply held that the immunity established by 

section 844.6 applied to wrongful death claims by a prisoner‘s 

heirs as well as to injury claims by prisoners. (Lowman, supra, 

127 Cal.App.3d at pp. 615–617.) The court‘s holding that section 

844.6 immunity includes wrongful death claims does not mean 

that it is limited to wrongful death or other ―ordinary‖ tort 

claims, nor did the court suggest any such limit.

We therefore reject Towery‘s argument that the Legislature 

intended to exclude claims under Civil Code section 52.1 from the 

public entity immunity provided by Government Code section 

844.6. If the Legislature had intended such an exclusion, it could 

have explicitly said so when enacting the Bane Act, either by 
16

including such a provision in that act or by amending 

Government Code section 844.6. It did not do so, and we 

therefore give effect to the plain language of Government Code 

section 844.6.

DISPOSITION

The judgment is affirmed. The State is entitled to its costs 

on appeal.

CERTIFIED FOR PUBLICATION.

LUI, J.

We concur:

CHANEY, Acting P. J.

JOHNSON, J.