Judge: Michael E. Whitaker, Case: 22STCV02464, Date: 2022-09-21 Tentative Ruling

Case Number: 22STCV02464    Hearing Date: September 21, 2022    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

Plaintiff Arnoldo V. Sandoval sued defendant County of Los Angeles based on injuries Plaintiff alleges he sustained in a shooting incident at Defendant’s fire department.  Plaintiff alleges that he was shot by a fellow firefighter, Jonathan Patrick Tatone (“Tatone”), while Plaintiff was on duty.  Defendant demurs to the first cause of action for assault and battery, second cause of action for negligence, and third cause of action for violation of Civil Code section 52.1 (“Bane Act”) in Plaintiff’s first amended complaint.  Plaintiff opposes the demurrer.

ANALYSIS

“It is black letter law that a demurrer tests the legal sufficiency of the allegations in a complaint.”  (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.)  In ruling on a demurrer, the court must “liberally construe[]” the allegations of the complaint.  (Code Civ. Proc., § 452.)  “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.”  (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.)  

Defendant demurs to the first through third causes of action for failure to state facts sufficient to constitute a cause of action against Defendant as a public entity.  Specifically, Defendant argues it is immune from liability for all three causes of action, and Plaintiff has not pled a statutory basis for Defendant’s liability otherwise.  In opposition, Plaintiff argues the first amended complaint sufficiently pleads (1) a statutory basis for Defendant’s vicarious liability under Government Code section 815.2 for the first cause of action for assault and battery; (2) a special relationship – i.e., employer/employee – between Plaintiff and Defendant to impose liability in the second of action for negligent hiring and supervision; and (3) that Defendant is not statutorily immune from the third cause of action for violation of the Bane Act. 

Government Code section 815 provides that “[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” except as provided by statute. (Gov. Code, § 815, subd. (a); see Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 932.) “[D]irect tort liability of public entities must be based on a specific statute declaring them to be liable, or at least creating some specific duty of care, and not on the general tort provisions of Civil Code section 1714. Otherwise, the general rule of immunity for public entities would be largely eroded by the routine application of general tort principles.” (Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1183.) To state a claim against a public entity, “every fact essential to the existence of statutory liability must be pleaded with particularity, including the existence of a statutory duty.” (Searcy v. Hemet Unified School Dist. (1986) 177 Cal.App.3d 792, 802.)

1. FIRST CAUSE OF ACTION: ASSAULT AND BATTERY

Defendant first argues the first cause of action fails to allege a statutory basis for Defendant’s vicarious liability for Tatone’s tortious conduct.  Specifically, Defendant asserts Tatone’s actions were not within the course and scope of his employment such that Defendant may be held vicariously liable.  In opposition, Plaintiff argues the first cause of action sufficiently alleges Defendant’s liability under Government Code section 815.2. 

Government Code section 815.2, subdivision (a), provides, “[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 . . . have given rise to a cause of action against that employee or his personal representative.” (Gov. Code, § 815.2, subd. (a).)

As our Supreme Court has explained, “the phrase ‘scope of his employment’ is intended to make applicable the general principles that the California courts use to determine whether the particular kind of conduct is to be considered within the scope of employment in cases involving actions by third persons against the employer for the torts of his employee.”  (Farmers Insurance Group v. County of Santa Clara (1995) 11 Cal.4th 992, 1003; see Gov. Code, § 815.2, subd. (a).)  Normally, the question of scope of employment is one of fact; however, where the operable, overt facts are indisputable, the question is one of law.  (Perez v. Van Groningen & Sons, Inc. (1986) 41 Cal.3d 962, 968.) 

“[A]n employer will not be held vicariously liable for an employee’s malicious or tortious conduct if the employee substantially deviates from the employment duties for personal purposes.”  (Farmers, supra, 11 Cal.4th at p. 1003.)  Thus, where an employee “inflicts an injury out of personal malice, not engendered by the employment or acts out of personal malice unconnected with the employment, or if the misconduct is not an outgrowth of the employment, the employee is not acting within the scope of employment.”  (Ibid.)  Put another way, “if an employee’s tort is personal in nature, mere presence at the place of employment and attendance to occupational duties prior or subsequent to the offense will not give rise to a cause of action against the employer under the doctrine of respondeat superior.”  (Ibid.)  But “[v]icarious liability may also be proper where the tortious conduct results or arises from a dispute over the performance of an employee’s duties, even though the conduct is not intended to benefit the employer or to further the employer’s interests.”  (Id. at p. 1006.) 

Here, the first cause of action alleges, in pertinent part:

“Defendant, JONATHAN PATRICK TATONE (Deceased), assaulted Plaintiff at Los Angeles County Fire Department Station 81 located at 8710 Sierra Highway, in the City of Agua Dulce, State of California. Plaintiff served as a Fire Captain whereas Defendant, JONATHAN PATRICK TATONE (Deceased), served as a Firefighter Engineer. Defendant TATONE had, a longstanding job-related workplace dispute with his co-worker, Tory Carlon (Deceased), who also served as a Firefighter Engineer at Station 81, but worked a different shift than JONATHAN PATRICK TATONE (Deceased). The workplace dispute and TATONE'S anger towards his fellow employee Carlon arose out of what TATONE perceived to be incompetence by his fellow employee Carlon, which TATONE believed negatively affected TATONE'S ability to properly perform his duties. For years prior to the subject shooting, TATONE exhibited threatening, bullying, combative, bullying, and unstable behavior toward his fellow employee Tory Carlon, and said conduct was made known TATONE'S employer COUNTY OF LOS ANGELES and its supervisors, including made known to the responsible Battalion Fire Chief Michael Halverson. Fire Chief Halverson was fully apprised of the threatening, etc. behavior exhibited by TATONE towards his fellow worker Tory Carlon, and Chief Halverson even threatened to separate TATONE and Carlon by way of assigning the two to different Fire Stations, but Chief Halverson never acted on his intention, instead leaving the disgruntled TATONE working alongside Carlon on the daily shift change despite the known daily animus shown by TATONE toward his co-worker Carlon. Chief Halverson even issued a written reprimand to TATONE for his inability to work efficiently and cooperatively with his fellow employee during shift change, which only exacerbated the animus TATONE exhibited toward Carlon before the shooting (in fact, upon killing Carlon at Station 81, TATONE declared, 'payback," presumably for the escalating and known work-related issues between the employees that ultimately got TATONE disciplined by his Fire Chief). Chief Halverson's March 15,2021 Notice of Instruction to Captain Sandoval read, in part, as follows: "two employees . . . have shown inappropriate behavior towards each other. . . ." After a shift change on the morning of June 1, 2021, TATONE returned to the fire station where he shot and killed Tory Carlon, and then shot and critically wounded Plaintiff (before killing himself).

Defendant COUTNTY OF LOS ANGELES, and DOES 26 through 50 are responsible for the wrongful conduct of employee TATONE as alleged herein pursuant to California Government Code section 815.2 (a), which expressly 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." In this case, the defendant COUNTY OF LOS ANGELES employee TATONE was acting with the course and scope of his employment when he shot is co-worker Carlon and plaintiff because the shooting incident as alleged herein clearly arose from a workplace dispute, and resulted from a dispute over the performance or lack of performance of the co-employee’s duties.  The tortious acts of the County’s employee TATONE were clearly engendered by events and conditions relating to employee TATONE’S employment with defendant COUNTY OF LOS ANGELES as the facts reveal that the employee TATONE had a work-related, not personal, dispute with his fellow firefighter, namely, the employee's belief that his co-worker's perceived incompetence was directly affecting TATONE's ability to perform his work as a firefighter, which caused employee TATONE to be disciplined by his County Fire Department Chief for not working efficiently and cooperatively with his co-worker Carlon, which in turn resulted in an ongoing and escalating workplace dispute that ultimately turned violent and deadly.”

(First Amended Complaint, ¶¶ 14-15.) 

            For pleading purposes, the Court finds the first amended complaint sufficiently alleges Tatone’s conduct was engendered by or connected with his employment with Defendant such that Defendant may be held vicariously liable for his actions under Government Code section 815.2.  In particular, Plaintiff’s allegations that Tatone’s tortious conduct arose from a dispute over the performance of his duties is sufficient at the pleading stage to show vicarious liability may attach.  The Court therefore overrules the demurrer to the first cause of action.

2. SECOND CAUSE OF ACTION: NEGLIGENCE

Defendant next argues the second cause of action for negligence fails to state a cause of action because Defendant did not owe a duty to Plaintiff to protect him from Tatone’s conduct.  In opposition, Plaintiff asserts the second cause of action alleges a special relationship between Plaintiff and Defendant such that Defendant was able to control Tatone’s conduct to impose liability against Defendant for negligent supervision under Government Code section 815.2 and C.A. v. William S. Hart Union High School (2012) 53 Cal.4th 861 (hereafter, William). 

The elements of a cause of action for negligence are: (1) a duty on the part of defendant toward plaintiff; (2) defendant’s breach of that duty; and (3) harm to the plaintiff caused by that breach.  (Kesner v. Superior Court  (2016) 1 Cal.5th 1132, 1142.)  “[R]ecovery in a negligence action depends as a threshold matter on whether the defendant had a duty to use due care . . . .”  (Southern California Gas Leak Cases (2019) 7 Cal.5th 391, 397 [cleaned up].) 

In William, our Supreme Court held that a theory of vicarious liability for negligent hiring, retention, and supervision against a school district under section 815.2 for negligently exposing a plaintiff to a foreseeable danger of molestation by a school employee is legally viable. (William, supra, 53 Cal.4th at p. 865.) The William Court reasoned that a special relationship between “school personnel and students under their supervision a protective duty of ordinary care, for breach of which the school may be held vicariously liable.” (Ibid.) Thus the key to a public entity’s vicariously liability for negligent hiring, supervision, and retention of an employee under section 815.2 is the existence of a special relationship giving rise to a particular duty. Consequently, absent “a special relationship, there can be no individual liability to third parties for negligent hiring, retention or supervision of a fellow employee, and hence no vicarious liability under section 815.2.” (William, supra, 53 Cal.4th at 709.)

“To state a cause of action for negligence, a plaintiff must establish the defendant owed a legal duty of care. Generally speaking, all persons have a duty to take reasonable care in their activities to avoid causing injury, though particular policy considerations may weigh in favor of limiting that duty in certain circumstances.”  (Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 209 [hereafter, “Brown”].)  In general, “[e]veryone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.”  (Civ. Code, § 1714.)  Section 1714 “establishes the default rule that each person has a duty to exercise, in his or her activities, reasonable care for the safety of others.”  (Brown, supra, 11 Cal.5th at p. 214.) 

The issue before the Brown court concerned “[h]ow courts should decide whether a defendant has a legal duty to take action to protect the plaintiff from injuries caused by a third party.”  (Brown, supra, 11 Cal.5th at p. 209.)  “Duty is not universal; not every defendant owes every plaintiff a duty of care. A duty exists only if the plaintiff’s interests are entitled to legal protection against the defendant's conduct.  Whether a duty exists is a question of law to be resolved by the court.”  (Id. at p. 213 [cleaned up].)  “[W]hether to recognize a duty to protect is governed by a two-step inquiry.  First, the court must determine whether there exists a special relationship between the parties or some other set of circumstances giving rise to an affirmative duty to protect.  Second, if so, the court must consult the factors described in Rowland[1] to determine whether relevant policy considerations counsel limiting that duty.”  (Id. at p. 209.) 

“Section 1714 states a broad rule, but it has limits. We have explained that the law imposes a general duty of care on a defendant only when it is the defendant who has created a risk of harm to the plaintiff, including when the defendant is responsible for making the plaintiff's position worse.   The law does not impose the same duty on a defendant who did not contribute to the risk that the plaintiff would suffer the harm alleged.  Generally, the person who has not created a peril is not liable in tort merely for failure to take affirmative action to assist or protect another from that peril.”  (Brown, supra, 11 Cal.5th at p. 214 [cleaned up].)

Further, “as a general matter, there is no duty to act to protect others from the conduct of third parties.”  (Brown, supra, 11 Cal.5th at p. 214.)   But “[t]he no-duty-to-protect rule is not absolute . . . .”  (Id. at p. 215.)  “In a case involving harm caused by a third party, a person may have an affirmative duty to protect the victim of another's harm if that person is in what the law calls a “special relationship” with either the victim or the person who created the harm.”  (Ibid.)  

A special relationship between the defendant and the victim is one that “gives the victim a right to expect” protection from the defendant.”  (Brown, supra, 11 Cal.5th at p. 216.) “Relationships between parents and children, colleges and students, employers and employees, common carriers and passengers, and innkeepers and guests, are all examples of special relationships that give rise to an affirmative duty to protect. The existence of such a special relationship puts the defendant in a unique position to protect the plaintiff from injury. The law requires the defendant to use this position accordingly.”  (Ibid. [cleaned up].) 

Here, the second cause of action alleges, in relevant part:

“Defendant COUNTY OF LOS ANGELES and Does 26 through 50 had a duty to properly supervise its employees, including TATONE, so as to reasonably protect co-workers from the dangerous propensities shown by TATONE towards his co-workers. Said defendants were charged with taking all reasonable and appropriate preventative action to remove the bullying, combative, angry, and unstable employee TATONE from Station 81 and the Fire Department, and away from co-workers such as plaintiff who were the known targets of TATONE'S dangerous animus. Brown vs USA Taekwondo (202I) 11 Cal. 5th 204, 216, states that a special relationship exists between employers and employees giving rise to a duty to protect: "Relationships between parents and children, colleges and students, employers and employees, common carriers and passengers, innkeepers and guests are all examples of special relationships that give rise an affirmative duty to protect." (emphasis added.) In Hart Union High School District (2012) 53 Cal. 4th 861, 865-866, the California Supreme Court found that Government Code section 8l5.2 vicarious liability against public entities exists for negligent hiring, retention, and supervision where a special relationship exists giving rise to a duty to protect. In Hart, the special relationship was between school personnel and students (protection by school personnel against molestation by a Guidance Counselor employee). The Hart court expressly recognized that the school district may be liable through respondeat superior for the negligence of its employees who were responsible for hiring, supervising, training , or retaining the Guidance Counselor molester: “Because school personnel were in a special relationship with plaintiff, they owed him a duty of taking reasonable care to prevent the abuse, [and] the failure of a school administrator to exercise ordinary care in protecting students from harm should render a school liable under [Government Code] section 815.2 where...after hiring...the administrator...learns about the employee's sexual misconduct and does not properly supervise, train, or discharge her." Hart at 868. In Colonial Von & Storage vs, Superior Court (2022) 76 Cal. App. 5tn 487, 501 (Second Appellate District), the court expressly recognized that the affirmative duty to protect imposed by a special relationship generally applies to the risk to an employee of a criminal attack that occurs at the place of employment, and, that the special relationship exception may also apply when the defendant is able to control the conduct of the dangerous third party. The court in Colonial Van stated that imposing a duty to protect must be warranted under the factors enumerated in Rowland vs Christian (1968) 69 CaL2d 108, and, that, "whether the injury was foreseeable is the most important in determining whether an exception should exist to the duty to protect." Colonial at 496, 502.

As alleged herein, the bullying, combative, angry , and unstable behavior of employee TATONE towards his fellow employees, especially Carlon, was made fully known to Fire Chief Halverson, therefore making it foreseeable to Halverson/COUNTY OF LOS ANGELES that if TATONE was not transferred away from Station 81, that a “Going Postal" violent event could likely occur (as regularly happens in the workplace where an unstable employee is not properly supervised, trained, or counseled, or is retained rather than discharged or transferred).

… 

Defendant COUNTY OF LOS ANGELES and Does 26 through 50 are responsible and liable for the subject assault and battery upon plaintiff SANDOVAL by TATONE as the COLINTY OF LOS ANGLELES and Does 26 through 50 were themselves guilty of positive misconduct, and were joint participants in the subject assault and battery by TATONE because the COUNTY OF LOS ANGELES and Does 26 through 50 purposefully ratified the employee TATONE'S tortious conduct by knowing of the employee shooter's longstanding threatening, bullying, combative, angry, and unstable behavior as a COUNTY OF LOS ANGELES employee at Station 81 for years prior to the June 1, 2021 shooting incident, and purposely failing to take preventative action to remove the bullying, combative, angry, and unstable employee TATONE from Station 81 and the Fire Department, and away from co-workers such as plaintiff was among the known targets of TATONE'S dangerous animus.”

(First Amended Complaint, ¶¶ 30, 32-33.) 

            For pleading purposes, the Court finds the first amended complaint sufficiently alleges a special relationship of employer and employee between Plaintiff and Defendant as well as Defendant and Tatone such that Defendant may be vicariously liable for Tatone’s tortious conduct under Government Code section 815.2 and William.  Accordingly, the Court overrules the demurrer to the second cause of action.

3. THIRD CAUSE OF ACTION: VIOLATION OF THE BANE ACT

Civil enforcement of the Bane Act is brought under Civil Code section 52.1. (See Civ. Code, § 52.1, subds. (b), (c).) The elements for a cause of action under Civil Code section 52.1 are: (1) That the defendant interfered with or attempted to interfere with the plaintiff’s constitutional or statutory right by threatening or committing violent acts; (2) That the plaintiff reasonably believed that if he exercised his constitutional right the defendant would commit violence against him or his property or that the defendant injured the plaintiff or his property to prevent him from exercising his constitutional right or retaliate against the plaintiff for having exercised his constitutional right; (3) That the plaintiff was harmed; (4) That the defendant’s conduct was a substantial factor in causing the plaintiff’s harm. (See Austin B. v. Escondido Union School District (2007) 149 Cal.App.4th 860, 882.)

The Court finds that Plaintiff’s third cause of action against Defendant fails as a matter of law.  As the Court of Appeal has explained, Civil Code section 52.1 does not, on its face, provide any claim against a public entity, and there is no specific statutory exception with respect to the Bane Act to overcome public entity immunity under Government Code section 815.  (Towery v. State of California (2017) 14 Cal.App.5th 226, 231-232.)  The Court therefore sustains the demurrer to the third cause of action.  

CONCLUSION AND ORDER

Therefore, the Court overrules Defendant’s demurrer to the first and second causes of action in the first amended complaint, and sustains the demurrer to the third cause of action in the first amended complaint, without leave to amend. [2]  The Court orders Defendant to file and serve an answer to the first amended complaint within 20 days of the hearing.

            The Clerk of the Court shall provide notice of the Court’s ruling.