        IN THE SUPREME COURT OF
               CALIFORNIA

           REBECCA MEGAN QUIGLEY,
              Plaintiff and Appellant,
                          v.
  GARDEN VALLEY FIRE PROTECTION DISTRICT et al.,
            Defendants and Respondents.

                          S242250

                   Third Appellate District
                          C079270

               Plumas County Superior Court
                       CV1000225



                        July 15, 2019

Justice Kruger authored the opinion of the Court, in which
Chief Justice Cantil-Sakauye and Justices Chin, Corrigan, Liu,
Cuéllar, and Groban concurred.
    QUIGLEY v. GARDEN VALLEY FIRE PROTECTION
                    DISTRICT
                            S242250


              Opinion of the Court by Kruger, J.


      The Government Claims Act (Gov. Code, § 810 et seq.)
authorizes plaintiffs to bring certain tort claims against public
entities, while also immunizing public entities from liability in
particular circumstances. One of the act’s immunity provisions
bars any statutory liability that might otherwise exist for
injuries resulting from the condition of firefighting equipment
or facilities. (Id., § 850.4.) The question presented is whether
this immunity provision constitutes an affirmative defense that
may be forfeited if not timely raised or instead serves as a
limitation on the fundamental jurisdiction of the courts, such
that the issue can never be forfeited or waived. We conclude
that Government Code section 850.4 immunity does not deprive
a court of fundamental jurisdiction but rather operates as an
affirmative defense to liability.
                               I.
                               A.
      Enacted in 1963, the Government Claims Act (GCA or Act)
is a comprehensive statutory scheme governing the liabilities
and immunities of public entities and public employees for torts.
(Kiser v. County of San Mateo (1991) 53 Cal.3d 139, 145.) For
many decades before the Act, tort liability for public entity
defendants was barred by a common law rule of governmental
immunity. Over time, however, the common law rule became


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    QUIGLEY v. GARDEN VALLEY FIRE PROTECTION DISTRICT
                  Opinion of the Court by Kruger, J.


“riddled with exceptions,” both legislative and judge-made, and
in 1961 this court abolished the rule altogether. (Muskopf v.
Corning Hospital Dist. (1961) 55 Cal.2d 211, 216 (Muskopf).) In
response to Muskopf, the Legislature temporarily suspended the
decision’s effect (Stats. 1961, ch. 1404, pp. 3209–3210) and
directed the California Law Revision Commission to complete a
study of the issue it had begun some years earlier (see Assem.
Conc. Res. No. 22, Stats. 1957 (1956-1957 Reg. Sess.) res.
ch. 202, p. 4590; Cal. Government Tort Liability Practice
(Cont.Ed.Bar 4th ed. 1999) Legislative Response: Government
Claims Act, § 1.40; DeMoully, Fact Finding for Legislation: A
Case Study (1964) 50 A.B.A. J. 285). The end product of the
commission’s study was a series of recommendations (see, e.g.,
Recommendation Relating to Sovereign Immunity, No. 1—Tort
Liability of Public Entities and Public Employees (Jan. 1963) 4
Cal. Law Revision Com. Rep. (1963) p. 801), on which the
Legislature relied in enacting the GCA (see DeMoully, at
p. 286).1
      The basic architecture of the Act is encapsulated in
Government Code section 815. Subdivision (a) of that section
makes clear that under the GCA, there is no such thing as
common law tort liability for public entities; a public entity is
not liable for an injury “[e]xcept as otherwise provided by
statute.” (Gov. Code, § 815; see Guzman v. County of Monterey
(2009) 46 Cal.4th 887, 897.) The GCA provides several grounds

1
      When first enacted, the statute was known as the Tort
Claims Act; the Legislature later retitled it the Government
Claims Act. (Stats. 2012, ch. 759, § 5; see also Recommendation:
Statutory Cross-References to “Tort Claims Act” (June 2011) 41
Cal. Law Revision Com. Rep. (2011) p. 285; City of Stockton v.
Superior Court (2007) 42 Cal.4th 730, 740–742.)


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     QUIGLEY v. GARDEN VALLEY FIRE PROTECTION DISTRICT
                   Opinion of the Court by Kruger, J.


for public entity liability, including, as relevant here, for injuries
caused “by a dangerous condition of [a public entity’s] property”
that was created through an employee’s negligence. (Gov. Code,
§ 835, subd. (a).)
       But even when there are statutory grounds for imposing
liability, subdivision (b) of section 815 provides that a public
entity’s liability is “subject to any immunity of the public entity
provided by statute.” (Gov. Code, § 815, subd. (b).) Government
Code section 850.4 (section 850.4), the provision at issue in this
case, establishes one such immunity: “Neither a public entity,
nor a public employee acting in the scope of his employment, is
liable for any injury resulting from the condition of fire
protection or firefighting equipment or facilities or,” with the
exception of certain motor vehicle accidents, “for any injury
caused in fighting fires.” Section 850.4 was enacted at the
recommendation of the Law Revision Commission.                 The
commission’s report to the Legislature explained section 850.4’s
purpose as follows: “There are adequate incentives to careful
maintenance of fire equipment without imposing tort liability;
and firemen should not be deterred from any action they may
desire to take in combatting fires by a fear that liability might
be imposed if a jury believes such action to be unreasonable.” (4
Cal. Law Revision Com. Rep., supra, at p. 862; see Heieck and
Moran v. City of Modesto (1966) 64 Cal.2d 229, 233, fn. 3 (Heieck
and Moran).)2


2
     The Assembly and Senate Committee reports largely
adopted the commission’s commentary, noting that the
commission’s comments generally “reflect the intent” of the
committees in approving the provisions. (Assem. Com. on Ways



                                   3
     QUIGLEY v. GARDEN VALLEY FIRE PROTECTION DISTRICT
                  Opinion of the Court by Kruger, J.


                                 B.
       In September 2009, a wildfire known as the Silver Fire
broke out in the Plumas National Forest. Employees of two local
fire protection districts managed a base camp set up at a local
fairground for the firefighting response. The base camp
management team allowed firefighters resting in between
firefighting shifts to sleep in tents and sleeping bags near a
portable shower unit. Plaintiff Rebecca Megan Quigley, a
United States Forest Service firefighter, was sleeping in this
area when she was run over by a water truck servicing the
shower unit. She sustained serious and permanent injuries.
      Quigley sued three base camp managers—the facility unit
leader, logistics chief, and camp safety officer—as well as their
employers, the Chester Fire Protection District and the Garden
Valley Fire Protection District.3 She alleged that defendants
were negligent in permitting firefighters to sleep in the area
where she was run over, without roping the area off or posting
signs forbidding vehicles from entering. She claimed defendants
had thereby created a “dangerous condition” of public property,
for which public entities may be held liable under section 835 of
the Government Code.
     In their answer, defendants alleged 38 affirmative
defenses, including 11 defenses asserting immunity under 17



& Means, Rep. on Sen. Bill No. 42 (1963 Reg. Sess.) 3 Assem. J.
(1963 Reg. Sess.) p. 5440; Sen. Com. on Judiciary, Rep. on Sen.
Bill No. 42 (1963 Reg. Sess.) 2 Sen. J. (1963 Reg. Sess.) p. 1885.)
3
      Although defendants initially contended that the three
base camp managers were federal employees, they later
stipulated that these individuals were employees of the local fire
protection districts.


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    QUIGLEY v. GARDEN VALLEY FIRE PROTECTION DISTRICT
                  Opinion of the Court by Kruger, J.


individually cited sections of the GCA. These individually cited
defenses ranged from property inspection immunity (Gov. Code,
§ 818.6) to discretionary act immunity (id., § 820.2). Defendants
did not allege the immunity conferred by section 850.4. They
did, however, raise a fifteenth affirmative defense that cited
inclusively to all immunities under the GCA: “A public entity
and its employees are immune from liability for damages alleged
in the complaint and Defendants assert all defenses and rights
granted to them by the provisions of Government Code sections
810 through 996.6, inclusive.”
       Trial began more than four years after the complaint was
filed. After Quigley’s counsel completed his opening statement,
defense counsel presented a written motion for nonsuit, in which
defendants for the first time invoked section 850.4. Quigley
objected on the ground that defendants had waived any
argument they might have under section 850.4 by failing to
invoke the immunity in their answer. (See Code Civ. Proc.,
§ 430.80, subd. (a).)4



4
       The parties’ use of the term “waiver” tracks the language
of section 430.80, subdivision (a) of the Code of Civil Procedure:
“If the party against whom a complaint or cross-complaint has
been filed fails to object to the pleading, either by demurrer or
answer, that party is deemed to have waived the objection,”
subject to certain exceptions. The statute’s use of the term
“waiver” differs from the way we generally use this term: “As
we have explained in various contexts, ‘ “waiver” means the
intentional relinquishment or abandonment of a known right.’
. . . [¶] . . . [Waiver] differs from the related concept of
forfeiture, which results when a party fails to preserve a claim
by raising a timely objection.” (Lynch v. California Coastal Com.
(2017) 3 Cal.5th 470, 475–476.) Nonetheless, because the
relevant statute uses the term “waiver,” we use it here as well.


                                  5
    QUIGLEY v. GARDEN VALLEY FIRE PROTECTION DISTRICT
                  Opinion of the Court by Kruger, J.


      The trial court overruled Quigley’s objection, reasoning
that defendants could not have waived section 850.4 immunity
because “governmental immunity is jurisdictional and can’t be
waived.” On the merits, the trial court agreed with defendants
that Quigley’s cause of action sought recovery for injuries caused
by a condition of firefighting facilities—namely, the base camp—
and was thus barred by section 850.4 immunity.
       Quigley later renewed her objection in a motion for a new
trial, which the court denied. In ruling on that motion, the court
offered a different rationale for entertaining defendants’ late-
raised section 850.4 argument. It held that defendants did not
waive section 850.4 immunity because defendants’ “general
allegation [in the fifteenth affirmative defense] that [they] were
immune from liability as public entities and public employees is
sufficient to assert governmental immunity under section
850.4.”
      On appeal, Quigley again renewed her objection to
defendants’ belated invocation of section 850.4 immunity. The
Court of Appeal rejected the argument. Without addressing
whether defendants’ omnibus pleading of the entire GCA was
adequate to preserve defendants’ section 850.4 argument, the
Court of Appeal agreed with the trial court that defendants
could not have waived the issue because section 850.4 is
“jurisdictional” and therefore may be raised “at any time.”
Proceeding to the merits, the Court of Appeal also agreed with
the trial court that section 850.4 immunity applies to injuries




                                  6
     QUIGLEY v. GARDEN VALLEY FIRE PROTECTION DISTRICT
                  Opinion of the Court by Kruger, J.


resulting from the condition of a firefighting base camp, and
thus affirmed the award of nonsuit to defendants.5
      The Court of Appeal recognized that its jurisdictional
ruling created a conflict with McMahan’s of Santa Monica v.
City of Santa Monica (1983) 146 Cal.App.3d 683. In McMahan’s,
a corroded city water main broke, spewing water that damaged
the plaintiff’s store. The city argued for the first time on appeal
that it was immune from the plaintiff’s damages claim under
section 850.4, because the water pipe was “fire protection
equipment.” The appellate court declined to consider the
argument, taking the view that section 850.4 provides an
affirmative defense that the city waived by failing to plead and
prove it before the trial court.
      The Court of Appeal criticized McMahan’s for failing to
distinguish between those sections of the GCA that provide
“qualified” immunity and those that provide “absolute”
immunity. The Court of Appeal reasoned that the first kind of
immunity provision creates an affirmative defense because the
public entity must make some sort of affirmative showing to
establish the immunity applies. The court pointed to De La Rosa
v. City of San Bernardino (1971) 16 Cal.App.3d 739, on which
McMahan’s had relied, as one example of a qualified immunity
in action. De La Rosa did not concern immunity under section
850.4, but instead concerned design immunity under
Government Code section 830.6; to invoke that immunity, a


5
      Whether the Court of Appeal was correct to hold that
Quigley’s alleged injuries “result[ed] from the condition of fire
protection or firefighting equipment or facilities” within the
meaning of section 850.4 is a question that falls outside of the
scope of our grant of review, and we do not address it here.


                                  7
    QUIGLEY v. GARDEN VALLEY FIRE PROTECTION DISTRICT
                  Opinion of the Court by Kruger, J.


public entity must show that it has maintained public property
in conformity with an approved plan or design.
      The Court of Appeal observed that section 850.4 imposes
no similar requirement. The court instead likened section 850.4
to the governmental immunity at issue in Hata v. Los Angeles
County Harbor/UCLA Medical Center (1995) 31 Cal.App.4th
1791 (Hata), which concerned the immunity of public entities for
injuries to inpatients of mental institutions (Gov. Code, § 854.8,
subd. (a)(2)). In Hata, the Court of Appeal reversed the trial
court’s ruling that the county defendant waived this immunity
by failing to raise it before trial. Among the many reasons the
court gave for this conclusion, the Hata court explained that
because the inpatient immunity statute contains “no
requirement the public entity make any type of affirmative
showing” (Hata, at p. 1804), the immunity it provides is
“absolute” (id. at p. 1803), and therefore is “jurisdictional and
may be raised at any time” (id. at p. 1804). Agreeing with Hata
on this point, the Court of Appeal in this case concluded that
because section 850.4 requires no affirmative showing on the
part of defendants, it could be raised at any time and was not
waived.
      We granted review to resolve the conflict between the
Court of Appeal’s decision and McMahan’s about whether the
governmental immunity set forth in section 850.4 is
jurisdictional or instead may be forfeited if not timely raised.




                                  8
    QUIGLEY v. GARDEN VALLEY FIRE PROTECTION DISTRICT
                  Opinion of the Court by Kruger, J.


                                 II.
                                 A.
      We begin with a necessary note about terminology. As we
have long recognized, the term “jurisdiction” has “many
different meanings.” (Abelleira v. District Court of Appeal
(1941) 17 Cal.2d 280, 287 (Abelleira).) Here we are concerned
with jurisdiction in what we typically refer to as its
“fundamental sense”: specifically, the power of the court over
the subject matter of the case. (Id. at p. 288; see Varian Medical
Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 196.) A lack of
fundamental jurisdiction is the “ ‘ “ ‘entire absence of power to
hear or determine the case.’ ” ’ ” (Kabran v. Sharp Memorial
Hospital (2017) 2 Cal.5th 330, 339 (Kabran).) Because it
concerns the basic power of a court to act, the parties to a case
cannot confer fundamental jurisdiction upon a court by waiver,
estoppel, consent, or forfeiture. (Ibid.) Defects in fundamental
jurisdiction therefore “may be raised at any point in a
proceeding, including for the first time on appeal,” or, for that
matter, in the context of a collateral attack on a final judgment.
(People v. Chavez (2018) 4 Cal.5th 771, 780.) By contrast, other
sorts of objections a defendant might have on the merits—
including an objection that liability is barred by an affirmative
defense—are ordinarily deemed “waived” if the defendant does
not raise them in its demurrer or answer to the complaint.
(Code Civ. Proc., § 430.80, subd. (a).)
      Quigley argues that the statutory immunities under the
GCA do not deprive a court of fundamental jurisdiction to hear
a tort case against a government entity, but instead operate as
affirmative defenses that must be pleaded and proved or are
deemed waived. Defendants, for their part, urge that section


                                  9
     QUIGLEY v. GARDEN VALLEY FIRE PROTECTION DISTRICT
                  Opinion of the Court by Kruger, J.


850.4 deprives a court of subject matter jurisdiction where it
applies, such that it may be raised at any time—indeed, even
after judgment has become final.
       In evaluating these competing claims, we begin with the
usual presumption that statutes do not limit the courts’
fundamental jurisdiction absent a clear indication of legislative
intent to do so. (E.g., Kabran, supra, 2 Cal.5th at pp. 342–343.)
California’s superior courts are courts of general jurisdiction,
which means they are generally empowered to resolve the legal
disputes that are brought to them. (Cal. Const., art. VI, §§ 1, 10;
see generally 20 Am.Jur.2d (2015) Courts, § 66, p. 464 [“Courts
of general jurisdiction have the power to hear and determine all
matters, legal and equitable, except insofar as these powers
have been expressly denied.”].) Although the Legislature may
impose reasonable restrictions on the fundamental jurisdiction
of the courts, our cases reflect “a preference for the resolution of
litigation and the underlying conflicts on their merits by the
judiciary.” (Kabran, at pp. 342–343.) The power of the courts to
resolve cases is the essential underpinning of the judiciary’s
ability to “ ‘effectively . . . function as a separate department of
government.’ ” (Id. at p. 343.) “ ‘Consequently an intent to
defeat the exercise of the court’s jurisdiction will not be supplied
by implication.’ ” (Ibid.) If the Legislature means to withdraw
a class of cases from state court jurisdiction, we expect it will
make that intention clear. (See, e.g., International Assn. of Fire
Fighters, Local 188, AFL-CIO v. Public Employment Relations
Bd. (2011) 51 Cal.4th 259, 270 [“This court will not infer a
legislative intent to entirely deprive the superior courts of
judicial authority in a particular area; the Legislature must
have expressly so provided or otherwise clearly indicated such
an intent.”].)


                                 10
     QUIGLEY v. GARDEN VALLEY FIRE PROTECTION DISTRICT
                  Opinion of the Court by Kruger, J.


      On its face, section 850.4 contains no clear indication of a
legislative intent to limit the fundamental jurisdiction of the
courts. Section 850.4 provides, as relevant here: “Neither a
public entity, nor a public employee acting in the scope of his
employment, is liable for any injury resulting from the condition
of fire protection or firefighting equipment or facilities[.]”
Nothing in the language of this provision suggests it was
intended to withdraw a class of cases from the courts’ power to
adjudicate. Unlike some other provisions that have been
understood to have such an effect, section 850.4 makes no
reference to the jurisdiction of the courts, nor does it otherwise
speak to the courts’ power to decide a particular category of
cases. (Cf., e.g., Pub. Util. Code, § 1759, subd. (a) [“No court of
this state, except the Supreme Court and the court of appeal, to
the extent specified in this article, shall have jurisdiction to
review, reverse, correct, or annul any order or decision of the
[Public Utilities Commission][.]”], discussed in San Diego Gas &
Electric Co. v. Superior Court (1996) 13 Cal.4th 893, 916; Bus.
& Prof. Code, § 6100 [“For any of the causes provided in this
article, arising after an attorney’s admission to practice, he or
she may be disbarred or suspended by the Supreme Court.”],
discussed in Jacobs v. State Bar (1977) 20 Cal.3d 191, 196.)
       Section 850.4 instead reads as a substantive bar to tort
liability, much like other privileges or immunities provisions
that shield particular actors or activities from otherwise
applicable liability for tortious conduct. Quigley sued under
Government Code section 835, which makes public entities
liable for injuries arising from a dangerous condition of public
property. Section 850.4 provides a justification or excuse from
liability that would otherwise exist under section 835, based on
considerations of policy. (See Heieck and Moran, supra, 64


                                 11
    QUIGLEY v. GARDEN VALLEY FIRE PROTECTION DISTRICT
                  Opinion of the Court by Kruger, J.


Cal.2d at p. 233, fn. 3.) As a general rule, such matters must “be
pleaded and proved by one who seeks thereby to destroy the
seemingly tortious character of his conduct, and so protect
himself from being subject to liability.” (Rest.2d Torts, § 10,
com. c, pp. 17–18.)
       Consistent with this understanding, we have previously
described other GCA statutory immunities as affirmative
defenses to liability. Government Code section 830.6, for
example, immunizes public entities for injuries caused by a
properly approved plan or design of public property. We have
explained that this design immunity is a “defense” that a public
entity should “raise[] . . . by appropriate pleadings.” (Teall v.
City of Cudahy (1963) 60 Cal.2d 431, 435; see also Cornette v.
Department of Transportation (2001) 26 Cal.4th 63, 66 [“[A]
public entity may avoid [section 835] liability by raising the
affirmative defense of design immunity.” (Italics omitted.)].)
Similarly, Government Code section 835.4 absolves a public
entity of liability for a dangerous condition under Government
Code section 835 where the act or omission that created the
condition was “reasonable.” We have held that this immunity,
too, “clearly creates an affirmative defense.” (Metcalf v. County
of San Joaquin (2008) 42 Cal.4th 1121, 1138; see also Hibbs v.
Los Angeles County Flood Control Dist. (1967) 252 Cal.App.2d
166, 172.)
       It is true, as the Court of Appeal observed, that section
850.4 differs from these other immunity provisions in that it
creates an “absolute,” rather than “qualified,” immunity—that
is to say, the immunity is not conditioned on a showing that the
defendant acted in a reasonable or procedurally proper manner,
or any similar requirement. But absolute privileges and
immunities, too, ordinarily apply only if the defendant invokes

                                 12
     QUIGLEY v. GARDEN VALLEY FIRE PROTECTION DISTRICT
                  Opinion of the Court by Kruger, J.


them. Courts have held, for example, that the absolute
litigation privilege in Civil Code section 47, subdivision (b)—a
provision that operates “as a limitation on liability, precluding
use of . . . protected communications and statements as the basis
for a tort action other than for malicious prosecution” (Moore v.
Conliffe (1994) 7 Cal.4th 634, 638, fn. 1, italics omitted)—is an
affirmative defense subject to principles of forfeiture and waiver
(Stevens v. Snow (1923) 191 Cal. 58, 64; see also, e.g., Cruey v.
Gannett Co. (1998) 64 Cal.App.4th 356, 367). Or to take another
example, the common law has long granted judges absolute
immunity from liability for their judicial acts. (Soliz v. Williams
(1999) 74 Cal.App.4th 577, 585–586; see also, e.g., Pierson v. Ray
(1967) 386 U.S. 547, 554 [similarly describing the common law
immunity].) This immunity, too, generally has been understood
to constitute an affirmative defense, not a limitation on court
jurisdiction. (E.g., Boyd v. Carroll (5th Cir. 1980) 624 F.2d 730,
732–733; Plyer v. Burns (S.C. 2007) 647 S.E.2d 188, 194–195;
Dallas County v. Halsey (Tex. 2002) 87 S.W.3d 552, 553; BCL
Enterprises v. Dept. of Liquor Control (Ohio 1997) 675 N.E.2d 1,
4.)6


6
      Even were it otherwise—that is, even if it were the
plaintiff’s burden to plead around an absolute immunity, rather
than the defendant’s burden to invoke the immunity as an
affirmative defense—that would not necessarily mean the
immunity is jurisdictional in nature, as the Court of Appeal in
this case reasoned. The GCA’s provision requiring plaintiffs to
have timely filed a claim for money or damages with a public
entity as a prerequisite to bringing suit (Gov. Code, § 945.4) is a
case in point: In State of California v. Superior Court (Bodde)
(2004) 32 Cal.4th 1234, 1239, we held that a plaintiff’s “failure
to allege facts demonstrating or excusing compliance with the



                                 13
     QUIGLEY v. GARDEN VALLEY FIRE PROTECTION DISTRICT
                  Opinion of the Court by Kruger, J.


      Notwithstanding section 850.4’s resemblance to other
affirmative defenses, defendants argue that the GCA’s roots in
the doctrine of sovereign immunity support affixing the
jurisdictional label instead. As noted, the GCA was enacted
after this court abolished the common law rule of governmental
immunity in Muskopf, supra, 55 Cal.2d 211. Defendants reason
that because the Legislature enacted the GCA to restore
governmental immunity from liability as “the overarching rule,”
subject only to those exceptions created by statute, courts must
lack power to hear a tort claim against a public entity where an
immunity provision like section 850.4 applies.
       Defendants’ argument assumes that the Legislature’s
evident intent to limit the tort liability of public entities in the
GCA (even when there is an applicable statutory basis for
liability, as Government Code section 835 provides here) means
the Legislature must also have intended to withdraw a class of
tort cases from the fundamental jurisdiction of the courts. This
assumption is unfounded, for reasons Muskopf itself made clear:
California law has long distinguished between limitations on
the substantive liability of public entities, on the one hand, and
limitations on the power of the courts to hear cases involving
public entities, on the other. (See Muskopf, supra, 55 Cal.2d at
pp. 217–218.)
     Granted, for some time in our history, the distinction
between these two kinds of limitations had little practical


[GCA’s] claim presentation requirement subjects a claim
against a public entity to a demurrer for failure to state a cause
of action.” But even so, we explicitly rejected the notion that a
plaintiff’s failure to allege compliance “divests the court of
jurisdiction over a cause of action against a public entity.” (Id.
at p. 1239, fn. 7.)


                                 14
    QUIGLEY v. GARDEN VALLEY FIRE PROTECTION DISTRICT
                  Opinion of the Court by Kruger, J.


relevance. At common law, the doctrine of sovereign immunity
had two strands: a procedural immunity from suit without the
government’s consent and a substantive immunity from liability
for the conduct of government. (State Dept. of State Hospitals v.
Superior Court (2015) 61 Cal.4th 339, 347.) Combined, the effect
of these two features was to close California courts to
individuals injured by the negligence of public entities and
employees. (See Welsbach Co. v. State of California (1929) 206
Cal. 556, 558.) For individuals injured by state employees, for
example, the only possible remedy was payment via a private
appropriation bill enacted by the Legislature. (Ibid.; see
generally Van Alstyne, Governmental Tort Liability: Judicial
Lawmaking in a Statutory Milieu (1963) 15 Stan. L.Rev. 163,
168–169.)
      But as Muskopf explained, various legal developments
would disentangle the two strands of sovereign immunity
doctrine in California. (See Muskopf, supra, 55 Cal.2d at
pp. 217–218.) In 1885, the Legislature passed an act permitting
certain named individuals to “institute an action against the
State of California in any Court of competent jurisdiction” for
property damages that the individuals sustained from the
state’s construction of a new canal. (Stats. 1885, ch. 123, § 1,
p. 107, discussed in Green v. State (1887) 73 Cal. 29 (Green).)
The Legislature followed this narrow authorization to file suit
with a broader one, authorizing “[a]ll persons who have, or shall
hereafter have, claims on contract or for negligence against the
State not allowed by the State Board of Examiners . . . to bring
suit thereon against the State in any of the Courts of this State
of competent jurisdiction[.]” (Stats. 1893, ch. 45, § 1, p. 57,
discussed in Denning v. State (1899) 123 Cal. 316 (Denning).)



                                 15
     QUIGLEY v. GARDEN VALLEY FIRE PROTECTION DISTRICT
                   Opinion of the Court by Kruger, J.


       In subsequent cases interpreting these statutes, this court
held that the statutes eliminated the state’s procedural
immunity to suit, thus opening the courts to the adjudication of
the specified claims. (Green, supra, 73 Cal. at pp. 32–33;
Denning, supra, 123 Cal. at p. 319.) But we rejected the idea
that the Legislature, by offering the state’s consent to suit, also
intended to eliminate the state’s substantive immunity from
liability. (Green, at p. 33; Denning, at p. 319; see also Melvin v.
State (1898) 121 Cal. 16, 22–23; Chapman v. State (1894) 104
Cal. 690, 693–694.) Instead, we held, the state could rely on the
common law principles that states are immune from liability for
damages caused by the negligence or misfeasance of their
employees (Denning, at p. 324) and that states are not liable for
remote and consequential damages to property stemming from
public works (Green, at pp. 34–39).
       By the time of Muskopf, similar provisions granting
legislative consent to suit were not uncommon. As Muskopf
noted, the California Constitution itself contemplates the
granting of such consent in suits against the state (Cal. Const.,
art. III, § 5, former art. XX, § 6), and the Legislature had enacted
a “ ‘sue and be sued’ ” statute applicable to hospital districts, the
subject of the particular controversy in Muskopf. (Muskopf,
supra, 55 Cal.2d at p. 217, citing Health & Saf. Code, § 32121,
subd. (b).) But Muskopf acknowledged that such provisions did
not displace common law limitations on the substantive liability
of the relevant public entities. The court explained that
“[p]revious cases . . . have differentiated between the state’s
consenting to be sued and its substantive liability, and have held
that the language used in [Health and Safety Code] section
32121, subdivision (b), and in article [III], section [5], gives only



                                  16
    QUIGLEY v. GARDEN VALLEY FIRE PROTECTION DISTRICT
                  Opinion of the Court by Kruger, J.


the state’s consent to be sued and does not waive any defenses
or immunities.” (Muskopf, at p. 217.)
       The Muskopf court therefore held that, notwithstanding
an applicable grant of legislative consent to bring suit against a
public entity, it was a separate question whether the common
law barred courts from imposing substantive liability.
Ultimately it answered the latter question in the negative,
discarding the common law rule of “governmental immunity
from tort liability” as “mistaken and unjust” insofar as it
operated to deny compensation to individuals harmed by a
public entity’s wrongs. (Muskopf, supra, 55 Cal.2d at p. 213; see
id. at pp. 216–217.)
      When the California Law Revision Commission made its
recommendations about legislative responses to Muskopf, it
likewise focused primarily on questions of substantive public
entity liability, and it dealt separately with questions
concerning the amenability of public entities to suits in state
courts. The commission proposed what ultimately became
Government Code section 945, which provides simply: “A public
entity may sue and be sued.” The commission’s comment on the
proposed section explains: “Section 945 is new. This section will
eliminate any doubt that might otherwise exist as to whether a
tort action might be defeated on the technical ground that a
particular local public entity is not subject to suit. The section
does not, however, impose substantive liability; some other
statute must be found that imposes such liability.”
(Recommendation Relating to Sovereign Immunity, No. 2—
Claims, Actions and Judgments Against Public Entities and
Employees (Jan. 1963) 4 Cal. Law Revision Com. Rep. (1963)
p. 1042.)



                                 17
     QUIGLEY v. GARDEN VALLEY FIRE PROTECTION DISTRICT
                  Opinion of the Court by Kruger, J.


      In sum, the history indicates that the GCA’s liability and
special immunity provisions, like section 850.4, were addressed
to questions of substantive liability. As for the separate
question whether public entities are amenable to suit in state
courts, it appears the Legislature sought to put any doubts to
rest when it broadly waived common law immunity from suit for
all public entities in Government Code section 945.
       Given this background, there is little basis for defendants’
assumption that the Legislature intended the immunity
conferred by section 850.4 to function as a partial withdrawal of
the state’s consent to suit when a plaintiff brings a claim under
a liability-providing section of the Act. In the absence of clearer
indication that such was the Legislature’s intent, we presume
the opposite: that is, that the Legislature did not intend to limit
the fundamental power of the courts to hear the legal disputes
that are brought to them. (Kabran, supra, 2 Cal.5th at pp. 342–
343.)7
                                 B.
      In arguing that section 850.4 creates a jurisdictional bar,
defendants rely heavily on a series of cases that generally
describe governmental tort immunity as “jurisdictional.” These
cases, however, appear to conflate lack of fundamental
jurisdiction with acts in excess of jurisdiction. “ ‘Even when a
court has fundamental jurisdiction . . . the Constitution, a

7
      The parties present competing arguments about the
nature of sovereign, or governmental, immunity based on semi-
analogous law from other jurisdictions. We are not bound by
any of these approaches in interpreting our own law, and the
unique features and history of the GCA and the state’s sovereign
immunity in our courts temper the conclusions we may draw
from these arguments.


                                 18
    QUIGLEY v. GARDEN VALLEY FIRE PROTECTION DISTRICT
                  Opinion of the Court by Kruger, J.


statute, or relevant case law may constrain the court to act only
in a particular manner, or subject to certain limitations.’
[Citation.] We have described courts that violate procedural
requirements, order relief that is unauthorized by statute or
common law, or otherwise ‘ “fail[] to conduct [themselves] in the
manner prescribed” ’ by law as acting ‘ “in excess of
jurisdiction.” ’ ” (Kabran, supra, 2 Cal.5th at pp. 339–340.)
Attending to this “distinction is important because the remedies
are different.” (People v. Lara (2010) 48 Cal.4th 216, 225.)
Again, when a court lacks fundamental jurisdiction, it has no
power to hear or determine the case, and the parties cannot cure
that fundamental absence of power. But so long as a court
possesses fundamental jurisdiction, an act that it takes in excess
of jurisdiction is “ ‘valid until set aside, and parties may be
precluded from setting it aside by such things as waiver,
estoppel, or the passage of time.’ ” (Kabran, at p. 340.)
      The cases on which defendants rely do not acknowledge
this distinction or explain why the application of a statutory
immunity ought to rank as jurisdictional in the fundamental
sense. Each case simply cites the last for the proposition that
governmental immunity is jurisdictional and thus cannot be
waived and may be raised for the first time on appeal. (Paterson
v. City of Los Angeles (2009) 174 Cal.App.4th 1393, 1404, fn. 5
[“Appellants contend that this defense was waived because it
was not sufficiently asserted in the answer. Governmental
immunity is a jurisdictional question [citation], and thus is not
subject to the rule that failure to raise a defense by demurrer or
answer waives that defense.”]; Richardson-Tunnell v. Schools
Ins. Program for Employees (SIPE) (2007) 157 Cal.App.4th
1056, 1061 [“Government tort immunity is jurisdictional and
may be raised for the first time on appeal.”]; Inland Empire


                                 19
     QUIGLEY v. GARDEN VALLEY FIRE PROTECTION DISTRICT
                  Opinion of the Court by Kruger, J.


Health Plan v. Superior Court (2003) 108 Cal.App.4th 588, 592
[“[G]overnmental immunity from liability is a jurisdictional
matter that can be raised for the first time on appellate
review.”]; Hata, supra, 31 Cal.App.4th at p. 1795
[“[G]overnmental tort immunity . . . is a jurisdictional issue that
may be raised at any time, even for the first time on appeal.”];
Hooper v. City of Chula Vista (1989) 212 Cal.App.3d 442, 454,
fn. 11 [reasoning that a GCA immunity raises “a jurisdictional
question subject to judicial determination” that “may be reached
on appeal even if not adequately asserted in the trial court”];
Kemmerer v. County of Fresno (1988) 200 Cal.App.3d 1426, 1435
[“[G]overnmental immunity is a jurisdictional question and may
be raised on appeal even though not used as a basis for the
general demurrer in the lower court.”]; Buford v. State of
California (1980) 104 Cal.App.3d 811, 826 [“[T]wo defects of
substance—lack of jurisdiction and failure to state a cause of
action—are not waived by a failure to demur and may be raised
for the first time on appeal. [Citations.] Since governmental
immunity is jurisdictional [citation] and can properly preclude
a cause of action, we can appropriately address the applicability
of section 854.8.”].)
      The apparent root of this doctrinal branch is State of
California v. Superior Court (Rodenhuis) (1968) 263 Cal.App.2d
396, a case decided soon after the enactment of the GCA. There,
the court considered a petition for a writ of prohibition filed by
the State of California, which sought to restrain the superior
court from proceeding to trial on a claim seeking damages for
personal injuries sustained on a state beach. The state argued
that it was immune from liability because the plaintiff’s
evidence could not establish the requisite elements of a
dangerous condition of public property claim under Government


                                 20
     QUIGLEY v. GARDEN VALLEY FIRE PROTECTION DISTRICT
                  Opinion of the Court by Kruger, J.


Code section 835. Before considering the merits of the state’s
argument, the Court of Appeal first addressed the plaintiff’s
preliminary contention that prohibition was inappropriate to
address this issue and that the state should instead be required
to raise the issue on appeal. (Rodenhuis, at p. 398.) In rejecting
this argument, the Rodenhuis court reasoned that “[i]t is well
established that the defense of sovereign immunity presents a
jurisdictional question properly raised by prohibition.” (Ibid.)
For that proposition, it relied on this court’s decision in People
v. Superior Court (Pierpont) (1947) 29 Cal.2d 754, a case
preceding both Muskopf and the GCA, in which we held that the
defense of common law sovereign immunity “presents a
jurisdictional question” properly addressed by prohibition.
(Pierpont, at p. 756; Rodenhuis, at p. 398.)
      Whatever the merits of Rodenhuis’s reasoning, its
conclusion did not amount to a holding that sovereign immunity
deprives a court of fundamental jurisdiction, because
prohibition is proper to address judicial action taken either
without jurisdiction or in excess of jurisdiction. (Code Civ. Proc.,
§ 1102; Abelleira, supra, 17 Cal.2d at pp. 287–291 [explaining
that prohibition lies to restrain judicial acts taken in excess of
jurisdiction and without jurisdiction, but not to correct mere
errors of law].) In deciding that the state could raise its defense
of sovereign immunity by application for writ of prohibition, the
Rodenhuis court had no need or occasion to determine whether
governmental immunity divests a court of fundamental
jurisdiction.
     The Courts of Appeal that have held that statutory
immunities in the GCA are jurisdictional in the fundamental
sense have done so only by removing Rodenhuis’s statement
about the jurisdictional nature of governmental immunity from

                                 21
    QUIGLEY v. GARDEN VALLEY FIRE PROTECTION DISTRICT
                  Opinion of the Court by Kruger, J.


its proper context. Rodenhuis did not hold that GCA immunities
are jurisdictional in the fundamental sense, such that they
cannot be waived or forfeited, and for the reasons given above,
we reject that conclusion.8
                                III.
     Having determined that section 850.4 immunity operates
as an affirmative defense and not a jurisdictional bar, the
question remains whether defendants in this case adequately
invoked the immunity in their answer and, if they did not,
whether the defense should be deemed waived or forfeited.
       Defendants maintain that they raised the immunity in
their answer, when, in their fifteenth affirmative defense, they
claimed to “assert all defenses and rights granted to them by the
provisions of Government Code sections 810 through 996.6,
inclusive.” They suggest that this citation to the entire GCA was
sufficient to raise section 850.4 as an affirmative defense and
put Quigley on notice that they intended to rely on it. In denying
Quigley’s motion for a new trial, the trial court accepted this
argument, ruling that defendants’ “general allegation that
[they] were immune from liability as public entities and public
employees” in their answer was sufficient to assert section

8
      We disapprove of Paterson v. City of Los Angeles, supra,
174 Cal.App.4th 1393, Richardson-Tunnell v. Schools Ins.
Program for Employees (SIPE), supra, 157 Cal.App.4th 1056,
Inland Empire Health Plan v. Superior Court, supra, 108
Cal.App.4th 588, Hata v. Los Angeles County Harbor/UCLA
Medical Center, supra, 31 Cal.App.4th 1791, Hooper v. City of
Chula Vista, supra, 212 Cal.App.3d 442, Kemmerer v. County of
Fresno, supra, 200 Cal.App.3d 1426, and Buford v. State of
California, supra, 104 Cal.App.3d 811, to the extent they
suggest that statutory immunities in the GCA deprive courts of
fundamental jurisdiction.


                                 22
    QUIGLEY v. GARDEN VALLEY FIRE PROTECTION DISTRICT
                  Opinion of the Court by Kruger, J.


850.4. Quigley counters that “[t]he primary function of a
pleading is to give the other party notice so that it may prepare
its case” (Harris v. City of Santa Monica (2013) 56 Cal.4th 203,
240), and she argues that defendants’ whole-act pleading
provided insufficient notice that defendants intended to rely on
the affirmative defense provided by section 850.4, given the 50-
plus immunity provisions contained in the Act.
      The Court of Appeal has yet to consider these arguments,
as it upheld the trial court’s decision to entertain defendants’
assertion of section 850.4 immunity solely on the basis that the
immunity is jurisdictional and may be raised at any time.
Having rejected that conclusion, we will remand the case so the
Court of Appeal may address the parties’ remaining arguments
in the first instance. Specifically, assuming the issue is
adequately preserved, the court must determine whether
defendants’ whole-act pleading in the fifteenth affirmative
defense sufficiently raised the defense provided by section 850.4,
in light of the requirements of Code of Civil Procedure section
431.30, subdivision (g) and the general notice purposes of our
pleading rules. If the Court of Appeal determines that section
850.4 immunity was not adequately raised in defendants’
answer, the case should be remanded to permit the trial court to
decide whether to exercise its discretion to allow the belated
assertion of the defense after the commencement of the trial.
(See Moss Estate Co. v. Adler (1953) 41 Cal.2d 581, 585
[“[W]hether the filing of an amended pleading should be allowed
at the time of trial is ordinarily committed to the sound
discretion of the trial court.”].)




                                 23
    QUIGLEY v. GARDEN VALLEY FIRE PROTECTION DISTRICT
               Opinion of the Court by Kruger, J.


                              IV.
      We reverse the judgment of the Court of Appeal and
remand for further proceedings not inconsistent with this
opinion.


                                                    KRUGER, J.


We Concur:
CANTIL-SAKAUYE, C. J.
CHIN, J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
GROBAN, J.




                              24
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Quigley v. Garden Valley Fire Protection District
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 10 Cal.App.5th 1135
Rehearing Granted

__________________________________________________________________________________

Opinion No. S242250
Date Filed: July 15, 2019
__________________________________________________________________________________

Court: Superior
County: Plumas
Judge: Janet Hilde

__________________________________________________________________________________

Counsel:

Jay-Allen Eisen Law Corporation, Downey Brand, Jay-Allen Eisen; Law Offices of Reiner & Slaughter,
Reiner, Slaughter, McCartney & Frankel, Russell Reiner, Todd E. Slaughter and April K. Gesberg for
Plaintiff and Appellant.

Alan Charles Dell’Ario for Consumer Attorneys of California as Amicus Curiae on behalf of Plaintiff and
Appellant.

Lewis Brisbois Bisgaard & Smith, Joseph A. Salazar, Jr., Jeffry A. Miller, Lann G. McIntyre and Jonna D.
Lothyan for Defendants and Respondents.

Pollak, Vida & Barer and Daniel P. Barer for League of California Cities, California State Association of
Counties, California Association of Joint Powers Authorities, California Special Districts Association and
International Municipal Lawyers Association as Amici Curiae on behalf of Defendants and Respondents.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Jay-Allen Eisen
Downey Brand
621 Capitol Mall, 18th Floor
Sacramento, CA 95814-4731
(916) 444-1000

Jeffry A. Miller
Lewis Brisbois Bisgaard & Smith
701 B Street, Suite 1900
San Diego, CA 92101
(619) 699-4971
