Judge: Stephen P. Pfahler, Case: 21STCV36657, Date: 2023-09-06 Tentative Ruling

Case Number: 21STCV36657    Hearing Date: September 6, 2023    Dept: F49

Dept. F-49

Date: 9-6-23

Case #21STCV36657 (lead case related to consolidated cases 22STCV07738 and 22STCV02526)

Trial Date: Not Set

DEMURRER

MOVING PARTY: Defendant/Cross-Defendant, Los Angeles County Sheriff

RESPONDING PARTY: Defendant/Cross-Complainant, Estate of Tatone, et al.

RELIEF REQUESTED

Demurrer to the First Amended Cross-Complaint of Estate of Tatone, et al.

·         4^th Cause of Action: Indemnity

SUMMARY OF ACTION

On June 1, 2021, Jonathan Patrick Tatone shot and killed Tory Carlon, then committed suicide, while the two were on the premises of Los Angeles County Fire Department Station 81 in Agua Dulce.

Procedurally, there are three cases currently pending before this court (Dept. F49):

21STCV36657 (Lead Case) (Carlon I)

On October 5, 2021, Larry and Bonnie Carlon, individually and on behalf of the Estate of Tory Carlon, filed a complaint for Assault and Battery, Negligence, and Wrongful Death. On April 21, 2022, Estate of Jonathan Tatone, et al. filed a cross-complaint for Wrongful Death, Negligence, Indemnity, Contribution, and Declaratory Relief against County of Los Angeles. The answer of Estate of Tatone was filed on April 22, 2022.

On June 17, 2022, the court (Dept. 29) found 21STCV36657, 22STCV07738 and 22STCV02526 related. In that same order, the court also designated 21STCV36657 as the lead case.

On June 23, 2022, the court (Dept. 29) transferred the lead case to Dept. F49.

On July 15, 2022, Plaintiffs Larry and Bonnie Carlon filed their first amended complaint for Negligence, Wrongful Death, and Violation of the Bane Civil Rights Act. On March 23, 2023, County of Los Angeles answered the first amended complaint.

On February 8, 2023, Estate of Tatone, et al. filed a first amended cross-complaint for Wrongful Death, Negligence, 42 U.S.C. § 1983, Indemnity, Contribution, and Declaratory Relief against County of Los Angeles. On August 8, 2023, Estate of Tatone, et al. dismissed all but the fourth cause of action for indemnity from the operative cross-complaint.

22STCV02526

On January 21, 2022, Heidi, Joslyn, and B.M. Carlon filed a complaint for wrongful death against County of Los Angeles, and the Estate of Tatone.

On July 20, 2022, Heidi Carlon, et al. filed a first amended complaint for Negligence/Wrongful Death, and Violation of the Bane Civil Rights Act. On September 29, 2022, the parties stipulated to the filing of the second amended complaint. On October 7, 2022, Heidi Carlon, et al. filed their second amended complaint for Wrongful Death, Negligence, and Violation of the Bane Act.

Meanwhile, on September 6, 2022, Heidi Carlon, et al. filed a notice of related cases for 21STPB01615 (In re Estate of Jonathan Tatone), 21STCV36657 (lead case), 22STCV02464 (Sandoval v. County of Los Angeles, et al.), 22STCV07738 (related case), and 22STCV13212 (Seaview Insurance Company v. Estate of Jonathan Tatone, et al.) Los Angeles County objected, and Seaview Insurance Co. filed an objection to the notice of related cases. No action was taken on the filed notice by the Department with the oldest case Dept. ST11 in case no. 21STPB06115.

On February 17, 2023, County of Los Angeles answered the second amended complaint. On June 29, 2023, Estate of Tatone, et al. answewered the second amended complaint.

22STCV07738

On March 2, 2022, Larry and Bonnie Carlon Carlon, individually and on behalf of the Estate of Tory Carlon, filed a complaint for Negligence, and Wrongful Death. On June 17, 2022, the court sustained the demurrer of Los Angeles County with 30 days leave to amend. The court also consolidated 22STCV07738 with 22STCV02526.

On June 23, 2022, Department 29 transferred the action to Department F49.

RULING: Overruled.

Cross-Defendant County of Los Angeles submits a demurrer to the fourth cause of action for indemnity in the cross-complaint of Estate of Tatone, and Priscilla Garza-Stewart, as Heir of the Estate. County challenges the indemnity claim on grounds that cross-complainants cannot state an indemnity claim due to the homicide constituting an act committed with malice and/or outside the scope of employment, thereby exempting County. County additionally contends co-tortfeasors cannot sue the victim’s employer, where workers’ compensation statutes otherwise shield the employer from liability. Cross-Complainants in opposition challenge the demurrer as relying on determinations beyond the scope of a demurrer. Cross-Complainants otherwise deny any legal bar under Workers’ Compensation exclusivity rules. County in reply reiterates the action of Tatone committed with malice argument, thereby constituting a basis of exclusion from indemnity. County also reiterates the outside scope of employment argument, workers’ compensation exclusion, and lack of ratification. County concludes that leave to amend would be futile.

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.) The court “ ‘ “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law . . . .” ’ ” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) In applying these standards, the court liberally construes the complaint to determine whether a cause of action has been stated.  (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.)

The subject demurrer constitutes the third demurrer submitted by County of Los Angeles on grounds of Workers’ Compensation exclusion, and the second demurrer regarding government liability for the individual action of an employee, though County presents new and different legal argument from the prior demurrers requiring address of the malice standard in context of a former employee indemnity claim.

Immunity/Direct Liability

County acknowledges its obligation to indemnify civil litigation claims against public employees “upon request,” but maintains the exception to coverage for an action arising in malice and/or outside the scope work conduct, constitutes a basis of exemption. The court addresses the pertinent statutory authority.

“(a) Except as otherwise provided in this section, if an employee or former employee of a public entity requests the public entity to defend him or her against any claim or action against him or her for an injury arising out of an act or omission occurring within the scope of his or her employment as an employee of the public entity and the request is made in writing not less than 10 days before the day of trial, and the employee or former employee reasonably cooperates in good faith in the defense of the claim or action, the public entity shall pay any judgment based thereon or any compromise or settlement of the claim or action to which the public entity has agreed.

If the public entity conducts the defense of an employee or former employee against any claim or action with his or her reasonable good-faith cooperation, the public entity shall pay any judgment based thereon or any compromise or settlement of the claim or action to which the public entity has agreed. However, where the public entity conducted the defense pursuant to an agreement with the employee or former employee reserving the rights of the public entity not to pay the judgment, compromise, or settlement until it is established that the injury arose out of an act or omission occurring within the scope of his or her employment as an employee of the public entity, the public entity is required to pay the judgment, compromise, or settlement only if it is established that the injury arose out of an act or omission occurring in the scope of his or her employment as an employee of the public entity.

Nothing in this section authorizes a public entity to pay that part of a claim or judgment that is for punitive or exemplary damages.

(b) Notwithstanding subdivision (a) or any other provision of law, a public entity is authorized to pay that part of a judgment that is for punitive or exemplary damages if the governing body of that public entity, acting in its sole discretion except in cases involving an entity of the state government, finds all of the following:

(1) The judgment is based on an act or omission of an employee or former employee acting within the course and scope of his or her employment as an employee of the public entity.

(2) At the time of the act giving rise to the liability, the employee or former employee acted, or failed to act, in good faith, without actual malice and in the apparent best interests of the public entity.

…

Gov. Code, § 825

“(a) Subject to subdivision (b), if an employee or former employee of a public entity pays any claim or judgment against him, or any portion thereof, that the public entity is required to pay under Section 825, he is entitled to recover the amount of such payment from the public entity.

(b) If the public entity did not conduct his defense against the action or claim, or if the public entity conducted such defense pursuant to an agreement with him reserving the rights of the public entity against him, an employee or former employee of a public entity may recover from the public entity under subdivision (a) only if he establishes that the act or omission upon which the claim or judgment is based occurred within the scope of his employment as an employee of the public entity and the public entity fails to establish that he acted or failed to act because of actual fraud, corruption or actual malice or that he willfully failed or refused to conduct the defense of the claim or action in good faith or to reasonably cooperate in good faith in the defense conducted by the public entity.”

…

Gov. Code, § 825.2

“(a) A public entity may refuse to provide for the defense of a civil action or proceeding brought against an employee or former employee if the public entity determines any of the following:

(1) The act or omission was not within the scope of his or her employment.

(2) He or she acted or failed to act because of actual fraud, corruption, or actual malice.”

…

Gov. Code, § 995.2

County maintains Tatone acted with actual malice in that the murder of Tory Carlon constituted a definitional malicious act. In a case of first impression, the Ninth Circuit undertook a review of the malice standard for purposes of government indemnity, albeit under Government Code section 996.4. (Allen v. City of Los Angeles (9th Cir. 1996) 92 F.3d 842, 847 overruled by Acri v. Varian Associates, Inc. (9th Cir. 1997) 114 F.3d 999 on grounds unrelated to consideration of the malice standard.) Upon review, the court concluded that the standard established by Professor Van Alstyne provided the required definition for malice regarding government indemnity claims: In order to “find … ‘actual malice’ as used in Section 996.4 ‘requires showing personal animosity, malevolence, ill will, or deliberate wrongful intent on the part of the employee.’” (Id. at p. 847 accord A. Van Alstyne, California Government Tort Liability Practice app. 781 (1980).) The court examined the underlying district court action following an order for entry of judgment based on a factual finding of malice established from prior civil and criminal trials of the former Los Angeles Police Department employees. The court determined a legally factual finding of malice based on the doctrine of collateral estoppel from the prior proceedings against the former police officers. (Id. at pp. 848-850.)

County relies on an argument effectively requiring a finding of malice as a matter of law from the allegations of the operative cross-complaint regarding the circumstances of the murder and suicide. [First Amended Cross-Complaint, ¶¶ 23-25.] Cross-Complainants in opposition rely on the argument that the allegations describing the actions of Tatone falls short of facts required to establish the legal malice standard as a matter of law at the demurrer stage.

The court finds the malice standard addressed under Government Code section 996.4 for purposes of indemnity matches, if not mirrors the applicable language and public policy meaning set for in Government Code sections 825, 825.2, and 995.2. While the simple allegations of personal animosity between the decedents and volitional shooting of Carlon meets the threshold pleading requirement for a finding of malice, the court hesitates to make this determination as a matter of law on an area of law with limited review. The lack of an underpinning factually adjudicated finding of malice of the instant action, with such consideration available to the court via claim preclusion or law on the case, and the public policy of a court in reviewing a demurrer “with a view to substantial justice between the parties,” the court in its discretion declines to find malice as a matter of law at the demurrer stage based on three paragraphs of allegations in the operative pleading. The court defers public policy review parameters to the Appellate Division. The demurrer is therefore overruled on this basis.

Scope of Employment

County challenges the subject action on ground that Cross-Complainants cannot state a claim for liability in that the statutory basis of indemnity exempts conduct occurring outside the course and scope of employment. County maintains the shooting constituted an incident outside the course and scope of employment without ratification of the employer. Cross-Complainants in opposition present no specific opposition to the subject argument, and instead apparently merge the argument with the workers’ compensation exclusion argument discussed below, with reliance on a ratification basis of liability.

The standard for determining whether workplace violence constitutes an action within the course and scope of employment brought forth extensive consideration from the California Supreme Court. (Farmers Ins. Group v. County of Santa Clara (1995) 11 Cal.4th 992.) “[T]he law is clear that an employer is not strictly liable for all actions of its employees during working hours. Significantly, an 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. (Citation.) Thus, if the employee ‘inflicts an injury out of personal malice, not engendered by the employment’ (Citation) or acts out of ‘personal malice unconnected with the employment’ (Citation), or if the misconduct is not an ‘outgrowth’ of the employment (Citation), the employee is not acting within the scope of employment. Stated another way, ‘[i]f 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.’ (Citation.) In such cases, the losses do not foreseeably result from the conduct of the employer's enterprise and so are not fairly attributable to the employer as a cost of doing business.” (Id. at pp. 1004–1005.)

County again finds support in the argument based on the factual circumstances alleged in the operative cross-complaint. An alleged workplace homicide of a colleague on the premises of a fire station due to personal animosity between the two constitutes a potential factual basis for a finding of conduct outside the scope of job related duties. Nevertheless, the Farmers Insurance Group court considered additional factors expanding the scope of liability in order to reflect the public policy regarding better insurance of safety for employees on the premises, including protection from workplace violence arising from job disputes.

The distinctions turn on the determination of employer workplace operations management versus personal interests. “[A]n employer may be subject to vicarious liability for injuries caused by an employee's tortious actions resulting or arising from pursuit of the employer's interests.” (Id. at p. 1005.) The court cites to a number examples regarding incidents occurring during the performance of job duties, but also notes “[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.) The operative cross-complaint specifically alleges the relationship between the decedents was the result of disagreements over “job related workplace disputes.” [First Amend. Cross-Comp., ¶¶ 24-25.]

Thus, consistent with the prior demurrer rulings, the court finds the operative language sufficient for purposes of establishing a basis of liability based on conduct arising out the decedents’ working relationship, and the violent eruption was the direct result of workplace disputes within the purview of liability discussed in Farmers Insurance Group. The court declines to make a finding that the conduct of Tatone was strictly personal in interest. ((Farmers Ins. Group v. County of Santa Clara, supra, 11 Cal.4th at p. 1006.) The demurrer is therefore overruled on the outside the scope of employment argument.

Workers Compensation Exclusivity

County lastly challenges the claim on grounds of Workers’ Compensation exclusivity, and preemptive challenge to any ratification claim. Cross-Complainants challenge the demurrer on grounds of ratification.

“(a) Where the conditions of compensation set forth in Section 3600 concur, the right to recover such compensation, pursuant to the provisions of this division is, except as specifically provided in this section, the exclusive remedy for injury or death of an employee against any other employee of the employer acting within the scope of his or her employment, except that an employee, or his or her dependents in the event of his or her death, shall, in addition to the right to compensation against the employer, have a right to bring an action at law for damages against the other employee, as if this division did not apply, in either of the following cases:

(1) When the injury or death is proximately caused by the willful and unprovoked physical act of aggression of the other employee…”

Lab. Code, § 3601

Injury and wrongful death claims are subject to the exclusive provisions of the Workers’ Compensation statutory provisions, where the injury to the employee occurs as a result of a “service growing out of and incidental” to employment, and the employee is “acting within the course” of employment. (Lab. Code, §§ 3600, subd. (a)(2), 3602; Charles J. Vacanti, M.D., Inc. v. State Comp. Ins. Fund (2001) 24 Cal.4th 800, 813.) “The employee is afforded relatively swift and certain payment of benefits to cure or relieve the effects of industrial injury without having to prove fault but, in exchange, gives up the wider range of damages potentially available in tort.” (Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701, 708; Shoemaker v. Myers (1990) 52 Cal.3d 1, 16.) The exclusive remedies may not apply where “the employer…stepped out of their proper roles.” (Shoemaker v. Myers, supra, 52 Cal.3d at p. 16.)

County relies on the argument that the shooting itself renders the action subject to workers’ compensation exclusivity. The court finds the support of County distinguished in that the cited case law relied on claims of willful misconduct, peculiar risk and alter ego liability, which are not pertinent to the subject action. (Doney v. TRW, Inc. (1995) 33 Cal.App.4th 245; Arendell v. Auto Parts Club, Inc. (1994) 29 Cal.App.4th 1261.)

On the argument against any ratification exemption from workers’ compensation preclusion, County specifically challenges the sufficiency of the ratification theory. Labor Code 3601, subdivision (a) extends the right to bring “an action at law against the employer who personally commits a physical assault on the employee” … or who, by ratifying an assault by an employee, becomes a joint participant therein (citation).” (Hollywood Refrigeration Sales Co. v. Superior Court (1985) 164 Cal.App.3d 754, 757.)

“‘Ratification is the voluntary election by a person to adopt in some manner as his own an act which was purportedly done on his behalf by another person, the effect of which, as to some or all persons, is to treat the act as if originally authorized by him. [Citations.] A purported agent's act may be adopted expressly or it may be adopted by implication based on conduct of the purported principal from which an intention to consent to or adopt the act may be fairly inferred, including conduct which is 'inconsistent with any reasonable intention on his part, other than that he intended approving and adopting it.’” 

(Fretland v. County of Humboldt (1999) 69 Cal.App.4th 1478, 1490–1491.)

In considering the plain language of the operative complaint, the court is required to accept the truth of the pleadings. Cross-Complainants cite to allegations from the now dismissed third cause of action for Unconstitutional Custom or Policy (42 U.S.C. § 1983) [First Amended Cross-Complaint, ¶¶ 52, 54-57.] The allegations allege a custom and practice leading to inadequate supervision, particularly with regard to employee workplace disputes. The allegations of the operative complaint sufficiently allege ratification. The failure to act upon known disputes supports the finding of an inference of consent to the potential violent threatened conduct. As stated above, the court declines to find as a matter of law that the shooting constituted conduct outside the course and scope of employment. The court therefore finds no workers’ compensation preclusion for purposes of this demurrer.

The demurrer is overruled. County to answer within 10 days of this order.

OSC re: Long Cause, Final Status Conference, and Jury Trial remain set for June 18, July 11, and July 15, 2024, respectively.

County of Los Angeles to provide notice to all parties.