Judge: Stephen P. Pfahler, Case: 22STCV02526, Date: 2023-01-09 Tentative Ruling

Case Number: 22STCV02526    Hearing Date: January 9, 2023    Dept: F49

Dept. F-49

Date: 1-9-23

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

Trial Date: Not Set

 

DEMURRER

 

MOVING PARTY: Defendant County of Los Angeles

RESPONDING PARTY: Plaintiffs, Heidi Carlon, et al.

 

RELIEF REQUESTED

Demurrer to the Second Amended Complaint (22STCV02526)

·         1st Cause of Action: Wrongful Death

·         2nd Cause of Action: Negligence

·         3rd Cause of Action: Violation of the Bane Act

 

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)

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.

 

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.

 

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 in Part/Sustained with Leave to Amend in Part

 

LA County Request for Judicial Notice: Granted.

·         The court takes judicial notice of the Notice of Application issued by the Division of Workers’ Compensation in that the issued notice constitutes an official actual act of the State of California. (Friends of Shingle Springs Interchange, Inc. v. County of El Dorado (2011) 200 Cal.App.4th 1470, 1484.)

 

Plaintiffs’ Request for Judicial Notice

·         Exs. 2, 6: Granted. The court takes judicial notice of the existence of the pleadings but not the content for the truth of the matter asserted.

·         Exs. 3, 4, 8: Denied.

·         Exs. 5, 9: Granted.

 

Defendant County of Los Angeles filed a demurrer against the second amended complaint of Heidi, Joslyn, and B.M. Carlon (in case no. 22STCV02526) for Wrongful Death, Negligence, and Violation of the Bane Act. The identified pleading lists the operative case number as 22STCV02526, which according to the court docket is the Heidi Carlon, et al. complaint.

 

Los Angeles County (County) submits the subject demurrer on grounds that the injury was caused on the job site, and is therefore subsumed within the exclusive remedies of the Workers’ Compensation Act. County next contends any and all claims arise from tort liability due to the individual acts of Patrick Tatone, and the County is therefore immune from said tort liability. County challenges the negligence claim on grounds of lack of duty, and conduct outside the scope of employment by Tatone, which therefore also undermines the wrongful death claim. On the Bane Act, County presents arguments on grounds of immunity, and an overbroad statement of liability. Finally, any claims based on Fourteenth Amendment violations also lack support for any deprivation of due process rights in that the action of Tatone constitute an independent action not on behalf of the government entity.

 

Plaintiffs in opposition counter that the operative complaint is not barred by workers’ compensation exclusivity provisions, due to ratification by Los Angeles County Fire Department leadership/management regarding the behavior of Tatone leading up to the date of the homicide. Any and all claims are not barred under any immunity doctrine, due to the existence of a special relationship between Los Angeles County and decedent Carlon. The shooting occurred within the course and conduct of employment duties. Finally, the operative complaint sufficiently alleges a basis of duty for liability, and a Bane Act claim.

 

LA County in reply challenges Plaintiffs’ citation to unpublished trial court opinions (see Plaintiffs’ request for judicial notice). LA County reiterates the workers’ compensation exclusivity, immunity, and scope of employment arguments, as well as the challenges to the individual causes of action.

 

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.)

 

“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616; Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139 [“[U]nder our liberal pleading rules, where the complaint contains substantive factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty should be overruled or plaintiff given leave to amend.]

 

Workers’ Compensation

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 allegations in the first amended complaint to establish that Carlon “was on duty” at the time of the shooting, though the operative second amended complaint lacks any specific reference to whether Carlon was on a shift, or even residing at Fire Station 81. County also presumably presents the notice of the filed workers’ compensation claim as evidence in support of an inference that the incident took place during a work shift.

 

County otherwise raises no argument of a sham pleading, and the court declines to consider any prior, now moot pleading. The demurrer therefore only addresses the operative second amended complaint. It remains an undisputed allegation in the operative complaint that the shooting took place on the premises of the facility. [Sec. Amend. Comp., ¶ 23.] As addressed below, the existence of the filing of the workers’ compensation claim itself will not undermine the allegations in the second amended complaint regarding the circumstances leading to the homicide.

 

Plaintiffs in their part provide a copy of a ruling to a demurrer in another unrelated case, Sandoval v. County of Los Angeles, et al. (22STCV02464,) for support of the argument that the incident occurred within the course and scope of employment. [See Req. Jud. Not., Ex. 9.] The court also acknowledges another prior court order considering a demurrer to 22STCV07738, whereby the court declined to find workers’ compensation exclusivity due to the paucity of allegations or judicially noticeable information regarding decedent’s presence on the premises, and therefore a determination of whether decedent was acting within the course and scope of job duties at the time of the shooting. [See June 17, 2022 Dept. 29 Minute Order.] While the court can take judicial notice of the orders of other courts, the rulings are in no way binding on this court.

 

In considering the plain language of the operative complaint, as well as inferences from the four corners of said pleading, the court can only definitively determine that the firefighters were required to reside on the premises during their work shifts and the shooting took place on the premises. [Sec. Amend. Comp., ¶¶ 12, 23.] According to Plaintiffs, the shooting occurred within the course and scope of the decedents’ work duties (e.g. while the two were present on the fire station premises for work purposes and/or over work related conduct). [Sec. Amend. Comp., ¶¶ 31, 43.] The court therefore finds no workers’ compensation preclusion based on the plain language of the operative complaint regarding work shift time and duties.

 

County further argues against any exemption from workers’ compensation preclusion, due to the individual action of Tatone. Plaintiffs challenge the argument on grounds of the physical violence exception and doctrine of ratification. Labor Code section 3601 provides in relevant part:

 

(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

 

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.) County specifically challenges the sufficiency of the ratification theory on grounds County never explicitly approved the use of deadly violence itself, and Plaintiffs cannot ex post facto rely on such a conclusion. (Rakestraw v. Rodrigues (1972) 8 Cal.3d 67, 73-74.)

 

The second amended complaint extensively alleges County’s notice of hostility by Tatone towards Carlon. The decedent specifically requested separate assignments of the two individuals, which was rejected. [Sec. Amend. Comp., ¶¶ 13-20, 32-33, 44-45.]

 

“‘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.)

 

The allegations of the operative complaint sufficiently allege ratification through the failure to act upon multiple sources of notification regarding the increasingly hostile rhetoric and violent threats from Tatone. The failure to act upon said notice allows for the finding of an inference of consent to the potential violent threatened conduct. The court finds no requirement under the ratification standard for specific approval of the use of deadly violence to plead a case for ratification based on inaction upon notice of a potentially violent threat. (Herrick v. Quality Hotels, Inns & Resorts, Inc. (1993) 19 Cal.App.4th 1608, 1617–1618; see Hart v. National Mortgage & Land Co. (1987) 189 Cal.App.3d 1420, 1432.)

 

Immunity

County challenges the subject action on ground that Plaintiffs cannot state a claim for liability based on negligent supervision. County additionally contends that even if the operative complaint states a basis of statutory liability, the shooting occurred outside the course and scope of employment. Plaintiffs in opposition challenge any denial of a duty of care on grounds that the Los Angeles Fire Department undertook a special duty of care towards decedent, and the shooting took place within the course and scope of employment conduct.

 

“Except as otherwise provided by statute: (a) 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.” (Gov. Code, § 815, subd. (a).) “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.” (Gov. Code, § 815.2, subd. (a).)

 

A claim against a government entity must rely on a direct, statutory claim of liability. (de Villers v. County of San Diego (2007) 156 Cal.App.4th 238, 253-255.) Government Code Section 815.2 subdivision (a) "codifies the doctrine of respondeat superior as it applies to public entities," and provides that they are liable for injuries proximately caused by acts or omissions of their employees within the scope of employment, if those would have given rise to a cause of action against the employees based upon law apart from the Section. (Miklosy v. Regents of the Univ. of Cal. (2008) 44 Cal.4th 876, 900; Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1128-1229.)

 

The respondeat superior basis of liability specifically negates any challenges to the lack of a basis of direct liability. Still, the claim requires a finding of a special basis of duty for the protection of the employee, as government entities are otherwise protected from a generalized basis of liability. (Van Ort v. Estate of Stanewich (9th Cir. 1996) 92 F.3d 831, 840-841; Zelig v. County of Los Angeles, supra, 27 Cal.4th at pp. 1128-1129.)

 

Neither party cites to cases specifically considering the imposition of a special duty on fire station management personnel for the safety of resident firefighters required to remain on the premises during assigned work periods. The court assumes no such particular cases exist. Certain cases relied upon by County specifically distinguish the subject action from more precisely statutorily articulated duties involving entities like school districts assigned to the safety of pupils in attendance. (See C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 869.) The court acknowledges the validity of this discussion, but as referenced above, also finds the lack of a statutorily defined duty involving fire station personnel in no way ends the question. “A court considers whether the parties have a special relationship by considering the particular facts and circumstances of their association with one another.” (Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 221.)

 

The court therefore considers the circumstances regarding the existence of a special duty of care regarding employee safety developing from an employee required to maintain a substantial residential presence on the assigned premises for purposes of remaining immediately available in response to emergency calls. The operative complaint specifically alleges the existence of a special relationship for the safety of firefighters given the residential nature of their shifts. [Sec. Amend. Comp., ¶¶ 30, 42].

 

The court finds the unique nature of the firefighter requirements imposes a high level of control over the employees, thereby imposing a heightened sense of safety concerns, which may include consideration of the residential structure itself, food and hydration provisions, equipment reliability, and potential violence from fellow employees. A simple random act in and of itself would not necessarily impose a duty of care under the law, but a known threat based on both the prior conduct of the alleged perpetrator as well as the victim, establishes a significant record of notice. The alleged decision to disregard or not act on the notice constitutes, at a minimum, an omission, and therefore supports the finding of a breach of duty for purposes of ruling on the subject demurrer. (Id. at pp. 221-222; Regents of University of California v. Superior Court (2018) 4 Cal.5th 607, 619 [“[A] duty to control may arise if the defendant has a special relationship with the foreseeably dangerous person that entails an ability to control that person's conduct”].)

 

Again, the finding of a pled existence of a special duty of care will not end the inquiry. The court also considers the argument regarding the conduct as outside the scope of employment. County relies on the argument that the shooting in and of itself constitutes an act outside the scope of employment. Plaintiffs counter that the circumstances putting the shooter and victim together at the fire station established an action within the scope of employment. 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.” (Farmers Ins. Group v. County of Santa Clara, supra, 11 Cal.4th at pp. 1004–1005.)

 

County again finds support in the argument based on the factual circumstances alleged in the complaint. An alleged workplace homicide of a colleague on the premises of a fire station 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 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.” (Ibid. at p. 1005.) The court cites to a number of 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.” (Ibid. at p. 1006.) The operative complaint specifically alleges the relationship between the decedents was the result of disagreements over job performance. [Sec. Amend. Comp., ¶¶ 31, 43.]

 

Thus, for purposes of the subject demurrer, 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. 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 arguments on workers compensation exclusivity, immunity, and failure to state a state a statutory basis of liability are therefore overruled.

 

1st Cause of Action, Wrongful Death: Overruled.

To the extent Plaintiffs fail to state a negligence cause of action (see below), County challenges the validity of the wrongful death claim. As addressed above, the court finds a sufficient basis of duty alleged in the second amended complaint. (Brown v. USA Taekwondo, supra, 11 Cal.5th at pp. 221-222.)

 

2nd Cause of Action, Negligence: Overruled.

County challenges the negligence (and wrongful death) cause(s) of action on grounds of lack of duty. County contends the mere threat of workplace violence and the alleged omission in failing to reassign Tatone and the decedent in no way establishes a basis of duty to protect employees. Plaintiffs reiterate the basis of special duty alleged in the operative complaint. As addressed above, the court finds a sufficient basis of duty alleged in the second amended complaint. (Brown v. USA Taekwondo, supra, 11 Cal.5th at pp. 221-222.)

 

3rd Cause of Action, Violation of the Bane Act: Sustained with Leave to Amend.

County brings multiple arguments: government immunity extends to the instant claim (see above); a Bane Act violation cannot be premised on inaction; the operative complaint fails to allege a violation by Tatone; the operative complaint remains vague and uncertain; the murder itself was not a state action; and, the operative complaint lacks a claim of an actual interference with constitutional rights. The cause of action arises from the Tom Bane Civil Rights Act codified in Civil Code section 52.1, which provides in relevant part:

 

(b) If a person or persons, whether or not acting under color of law, interferes by threat, intimidation, or coercion, or attempts to interfere by threat, intimidation, or coercion, with the exercise or enjoyment by any individual or individuals of rights secured by the Constitution or laws of the United States, or of the rights secured by the Constitution or laws of this state, the Attorney General, or any district attorney or city attorney may bring a civil action for injunctive and other appropriate equitable relief in the name of the people of the State of California, in order to protect the peaceable exercise or enjoyment of the right or rights secured. An action brought by the Attorney General, any district attorney, or any city attorney may also seek a civil penalty of twenty-five thousand dollars ($25,000). If this civil penalty is requested, it shall be assessed individually against each person who is determined to have violated this section and the penalty shall be awarded to each individual whose rights under this section are determined to have been violated.

…

(o) Sections 825, 825.2, 825.4, and 825.6 of the Government Code, providing for indemnification of an employee or former employee of a public entity, shall apply to any cause of action brought under this section against an employee or former employee of a public entity.

 

Civ. Code, § 52.1

 

County first contends the “assault and battery” committed by Tatone fails to rise to the level of a Bane Act violation. The argument lacks support. The operative complaint not only alleges a threat of violence, but the commitment of an extremely violent act ending the life of Tatone. [Sec. Amend. Comp., ¶¶ 14-17, 23, 47, 49.] (Jones v. Kmart Corp. (1998) 17 Cal.4th 329, 338; City and County of San Francisco v. Ballard (2006) 136 Cal.App.4th 381, 408.) The court declines to consider any qualitative distinctions raised by County.

 

Unlike the special duty established above, however, a Bane Act claim requires a specific basis of statutory liability. (Gov. Code, § 820.2; Towery v. State of California (2017) 14 Cal.App.5th 226, 233–234.) The court finds an insufficient basis of liability for a Bane Act claim against County, a government entity. The court finds no other basis of liability under the Bane Act itself based on the Fourteenth Amendment. (See Wallisa v. City of Hesparia (C.D. Cal. 2019) 369 F.Supp.3d 990, 1020-1021.) The demurrer is sustained with leave to amend.

 

The demurrer is therefore overruled on all arguments except the Bane Act claim. The court sustains the demurrer on the Bane Act claim with 30 days leave to amend. Plaintiffs may only add facts to the third cause of action, and may not otherwise add or substitute new or different causes of action. (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.) If Plaintiffs declines or fails to file a third amended complaint within the 30-day window, County is ordered to answer the remaining causes of action in the second amended complaint within 10 days of the lapsed deadline.

 

Demurrer to the First Amended Complaint (lead case, 21STCV36657) set for February 9, 2023.

 

Los Angeles County to provide notice to all parties.