Judge: Theresa M. Traber, Case: 22STCV11178, Date: 2022-12-19 Tentative Ruling
Case Number: 22STCV11178 Hearing Date: December 19, 2022 Dept: 47
Tentative Ruling
Judge Theresa M. Traber, Department 47
HEARING DATE: December 19, 2022 TRIAL DATE: NOT
SET
CASE: Johnny Smith et al. v. City of Los
Angeles, et al.
CASE NO.: 22STCV11178 
DEMURRER
TO FIRST AMENDED COMPLAINT
MOVING PARTY: Defendant City of Los Angeles,
RESPONDING PARTY(S): Plaintiffs Johnny
Smith, individually and as a Personal Representative of the Estate of Aidan
Smith, and Reily Smith
STATEMENT
OF MATERIAL FACTS AND/OR PROCEEDINGS:
This is an action for negligence and wrongful death that was filed on
April 1, 2022. In their First Amended
Complaint, filed June 2, 2022, Plaintiffs contend that Defendants City of Los
Angeles, County of Los Angeles, and others negligently breached their duties to
act to prevent the suicide of Plaintiffs’ family member, Aidan Smith (“Aidan”).
Defendant City of Los Angeles (“City”)
demurs to the First Amended Complaint in its entirety.
TENTATIVE RULING:
Defendant’s Demurrer to the First
Amended Complaint is SUSTAINED with leave to amend as to the
third cause of action, SUSTAINED without leave to amend as to the
eleventh causes of action, and otherwise OVERRULED.
Plaintiffs
shall have thirty days leave to file a Second Amended Complaint.
DISCUSSION:
Defendant
City of Los Angeles (“City”) demurs to the First Amended Complaint in its
entirety for failure to state facts sufficient to constitute any of the ten
causes of action asserted against it.
Defendant’s Request for Judicial Notice
Defendant
requests that the Court take judicial notice of numerous documents, including (1)
Plaintiff Riley Smith’s Petition for Relief from the Claims Presentation
Requirement of Government Code section 945.4; (2) Plaintiff Johnny Smith’s
Petition for Relief from the Claims Presentation Requirement of Government Code
section 945.4; (3) the March 7, 2022 minute order granting the Plaintiffs’
petitions for relief from section 945.4; (4) the Complaint in this case; (5)
the First Amended Complaint in this case; (6-8) the amendments to the Complaint
substituting out three Doe defendants for the remaining named defendants in
this action; and (9) sections of the LAPD manual governing firearms.
With
respect to Requests Nos. 1 through 8, Defendant’s requests are GRANTED pursuant
to Evidence Code section 452(d) (court records). As to Request No. 9,
Defendant’s request is DENIED as irrelevant to this ruling. (Gbur v. Cohen (1979) 93 Cal.App.3d 296, 301 (“[J]udicial
notice . . . is always confined to those matters which are relevant to the
issue at hand.”].)
Plaintiffs’
Request for Judicial Notice
Plaintiffs
request that the Court take judicial notice of Plaintiff Johnny Smith’s
Petition for Relief from the Claims Presentation Requirement of Government Code
section 945.4 as to his claims against the City of Los Angeles. This document
is distinct from Defendant’s Request No. 2. Plaintiffs’ request is GRANTED
pursuant to Evidence Code section 452(d) (court records).
Legal Standard
A demurrer tests whether the
complaint states a cause of action. (Hahn v. Mirda (2007) 147
Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations
liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and
Power (2006) 144 Cal.App.4th 1216, 1228.) In a demurrer proceeding, the
defects must be apparent on the face of the pleading or via proper judicial
notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968,
994.) “A demurrer tests the pleadings alone and not the evidence or other
extrinsic matters. Therefore, it lies only where the defects appear on the face
of the pleading or are judicially noticed.” (SKF Farms v. Superior Court
(1984) 153 Cal.App.3d 902, 905.) “The only issue involved in a demurrer hearing
is whether the complaint, as it stands, unconnected with extraneous matters,
states a cause of action.” (Hahn, supra, 147 Cal.App.4th at p. 747.) The
ultimate facts alleged in the complaint must be deemed true, as well as all
facts that may be implied or inferred from those expressly alleged. (Marshall
v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403; see also Shields
v. County of San Diego (1984) 155 Cal.App.3d 103, 133 [stating, “[o]n
demurrer, pleadings are read liberally and allegations contained therein are
assumed to be true”].) “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.)
Meet and Confer
Before filing a demurrer, the
demurring party shall meet and confer in person or by telephone with the party
who has filed the pleading subject to the demurrer and file a declaration
detailing their meet and confer efforts. (Code Civ. Proc., § 430.41(a).)
However, an insufficient meet and confer process is not grounds
to overrule or sustain a demurrer. (Code Civ. Proc., §
430.41(a)(4).)
The
Declaration of Hall R. Marston states that the parties met and conferred extensively
both by email and telephone between June 29, 2022 and August 1, 2022.
(Declaration of Hall R. Marston ISO Demurrer ¶¶ 2-6.) The Court therefore finds
the City has satisfied the statutory meet and confer requirement.
First Cause of Action: Breach of Mandatory Duty to Report
In their
first cause of action, Plaintiffs allege that the City, through the Los Angeles
Police Department (LAPD), breached a mandatory duty to cross-report child
neglect under Penal Code section 11166(k), part of California’s Child Abuse and
Neglect Reporting Act (CANRA). (FAC ¶ 41.) The City demurs to the first cause
of action for failure to state facts sufficient to constitute a cause of action,
arguing that no mandatory cross-reporting duty exists here.
“Under the California Government
Claims Act (Gov.Code § 810 et seq.), governmental tort liability must be based
on statute. ‘Except as otherwise provided by statute: [¶] [a] public entity is
not liable for an injury, whether such injury arises out of an act or omission
of the public entity or a public employee or any other person.” (Gov.Code §
815, subd. (a); . . . ) Relevant to this case, Government Code section 815.6
provides a statutory exception to the general rule of public entity immunity: ‘Where
a public entity is under a mandatory duty imposed by an enactment that is
designed to protect against the risk of a particular kind of injury, the public
entity is liable for an injury of that kind proximately caused by its failure
to discharge the duty unless the public entity establishes that it exercised
reasonable diligence to discharge the duty.’ (Gov.Code § 815.6.)” (B.H. v. County of San Bernardino
(2015) 62 Cal. 4th 168, 179 [Citation omitted].) “[S]ection 815.6 has three elements that must
be satisfied to impose public entity liability: (1) a mandatory duty was
imposed on the public entity by an enactment; (2) the enactment was designed to
protect against the particular kind of injury allegedly suffered; and (3) the breach
of the mandatory statutory duty proximately caused the injury.” (Id. [Citations omitted].)
Defendant
first argues that the City had no mandatory duty to cross-report to either the
County’s Department of Child and Family Services (DCFS) or the Los Angeles
Sheriff’s Department (LASD) under Penal Code section 11166(k). Specifically, Defendant
contends that the City was under no obligation to make a cross-report after
receiving information that Aidan had accessed Eric Eppolito’s LAPD service
weapon and had required hospitalization.
(See FAC ¶¶ 20-21.)
Section 11166(k) states, in
relevant part:
A law enforcement agency shall
immediately, or as soon as practicably possible, report by telephone, fax, or
electronic transmission to the agency given responsibility for investigation of
cases under Section 300 of the Welfare and Institutions Code and to the
district attorney’s office every known or suspected instance of child abuse or
neglect reported to it, except acts or omissions coming within subdivision (b)
of Section 11165.2, which shall be reported only to the county welfare or
probation department.
(Penal Code section 11166(k) [emphasis added].)
In B.H. v. County of San
Bernardino, the Supreme Court emphasized use of “shall” and the direction
to act “immediately” to find that subdivision (k) of section 11166 “imposes an
obligatory duty, and not merely a discretionary or permissive authorization,
upon law enforcement agencies to cross-report the child abuse or neglect
reports that it receives.” (Id.,
at pp. 181-182.) The Supreme Court also
noted the breadth of the statutory duty covering “every known or
suspected instance of child abuse or neglect reported to it which is alleged
to have occurred.” (Id.
[Emphasis in original].) In analyzing section 11166(k), the B.H. Court
also likened the mandatory language in subdivision (k) to similar language in
section 11165.9 and contrasted the “shall” nomenclature with the use of the
permissive “may” in other parts of the statute.
(Id., p. 182.)
In
addition, the Supreme Court concluded that the Legislature intended to impose
mandatory cross-reporting duties to protect children from abuse and
neglect. The Court explained:
The purpose of CANRA, of which
section 11166, subdivision (k) is a part, is to protect children from abuse and
neglect. (§ 11164, subd. (b).) California’s child abuse reporting law was
reenacted in 1980 to overhaul an earlier reporting scheme, with the goal of
“increasing the likelihood that child abuse victims would be identified.
(Stats. 1980, ch. 1071, § 4, pp. 3420 et seq.)” (Ferraro v. Chadwick
(1990) 221 Cal.App.3d 86, 90, 270 Cal.Rptr. 379.) The Legislature explained
that “[i]n reenacting the child abuse reporting law, it is the intent of the
Legislature to clarify the duties and responsibilities of those who are
required to report child abuse. The new provisions are designed to foster
cooperation between child protective agencies and other persons required to
report. Such cooperation will insure that children will receive the collective
judgment of all such agencies and persons regarding the course to be taken to
protect the child’s interest.” (Stats. 1980, ch. 1071, § 5, p. 3425.)
(Id., pp. 182-183.) The Legislature made clear its goal of
ensuring the involvement of the collective expertise of law enforcement and
social welfare agencies to investigate child abuse and neglect and specifically
“to rectify the problem of inadequate child abuse reporting by mandating
cross-reporting between law enforcement and child welfare agencies.” (Id., p. 183 [Citation omitted].)
The City’s demurrer rests, in part,
on the contention that there is no duty to report an incident of suspected
abuse or neglect to DCFS when the agency has already been apprised of the
alleged abuse or neglect. In support of
this contention, Defendant relies on Oakes v. Chapman, a 1958 case addressing
whether a duty to warn arose under a negligence theory to apprise someone of a
fact of which they were already aware. (Oakes v. Chapmant (1958) 158
Cal.App.2d 78, 85). Defendant also contends that B.H. stands for the proposition
that there is no obligation under CANRA to report the same incident multiple
times. However, that conclusion was in reference to section 11166(a), a
provision which is not at issue in this case. (B.H., supra, 62
Cal.4th at 186.) As both cases relied on by the City are distinguishable from
the facts at hand, the Court is unmoved by the City’s contention that it had no
duty to cross-report.
The Court is similarly unpersuaded
by Defendant’s argument that the FAC does not establish proximate cause stemming
from the LAPD’s failure to cross-report. Defendant argues that any intervening
steps that could have been taken by DCFS are inherently discretionary, and
thus, the chain of causation between any mandatory report by LAPD and Aiden’s
suicide is severed. (See State Dept. of State Hospitals v. Superior Court
(2015) 61 Cal.4th 339, 353-54.) This argument
ignores the fact that both the LAPD and DCFS violated their mandatory, non-discretionary
duties to cross-report Aidan’s dangerous situation as a means of
coordinating their efforts to address his needs.
The Complaint alleges that
Plaintiff Johnny Smith learned on November 21, 2019 that Aidan had secured
possession of LAPD officer Eric Eppolito’s service weapon and required
hospitalization and then disclosed that information to the LAPD, which did nothing
to cross-report the information to the DCFS.
(FAC, ¶¶ 20-21.) According to the
Complaint, the DCFS conducted an investigation on December 4, 2019, five days
after Aidan was hospitalized, based on information about his access to the
service weapon and his mental health symptoms, but it too failed to
cross-report the information it received to law enforcement. (FAC ¶¶ 24-31.) In a separate minute order issued today, the
Court holds that this allegation gave rise to a mandatory duty held by DCFS to
cross-report suspected child neglect to law enforcement. (Minute Order, entered
December 19, 2022.) Because of both
agencies’ failures to comply with their mandatory reporting duties, Aidan was
deprived of the cooperative efforts of the two agencies intended by the
Legislature to “insure that children will receive the collective judgment of
all such agencies and persons regarding the course to be taken to protect the
child’s interest.” (B.H. v. County of
San Bernardino, supra, 62 Cal. 4th at 183.) Defendants’ violations of their mandatory
duties stripped Aidan of the joint decision-making and problem-solving that
should have protected him from harm.
Because of Defendants’ mandatory duties to cross-report and pursue the
collaboration engendered by those communications, the Court cannot find that
there is a clear discretionary decision that disrupted the chain of
causation. As the Supreme Court noted State
Department of State Hospitals v. Superior Court, “[o]rdinarily, proximate
cause is a question of fact which cannot be decided as a matter of law from the
allegations of a complaint.” (Ibid., 61
Cal. 4th at p. 353.) Here,
the Court cannot say that the “only reasonable conclusion is an absence of
causation,” so sustaining the City’s demurrer finding no causation as a matter
of law would be improper. (Id.)
Accordingly, Defendant City’s
Demurrer to the First Cause of Action is OVERRULED.
Third Cause of Action: Mandatory Duty to Seize Firearms
The City
demurs to the third cause of action for failure to state facts sufficient to
constitute a cause of action. Specifically, Defendant contends that it did not
have a mandatory duty to seize the LAPD service weapons of the Eppolito
Defendants under Welfare and Institutions Code section 8102.
Welfare and Institutions Code
section 8102 states:
Whenever
a person, who has been detained or apprehended for examination of his or her
mental condition or who is a person described in Section 8100 or 8103, is found
to own, have in his or her possession or under his or her control, any firearm
whatsoever, or any other deadly weapon, the firearm or other deadly weapon
shall be confiscated by any law enforcement agency or peace officer, who shall
retain custody of the firearm or other deadly weapon . . .
(Welf.
& Inst. Code § 8102(a).) The City argues that there was no mandatory duty
to seize the Eppolitos’ firearms because section 8102 is discretionary, not
mandatory. Defendant cites no legal authority supporting this proposition,
relying on dicta that characterizes this section as “authorizing” or
“permitting” the seizure of firearms. (See Folsom Police Dept. v. M.C. (2021)
69 Cal.App.5th 1052, 1057; City of San Diego v. Kevin B. (2004) 118
Cal.App.4th 933, 942.) This contention is not persuasive. The City offers no basis
for ignoring the plain language of the statute that, whenever the requisite
determinations are made, LAPD shall confiscate the firearms so long as
the prerequisite conditions are in effect.
The City also contends that the FAC
does not allege what information was conveyed or to whom so as to trigger any
duty under this section. This contention is similarly unpersuasive. Construing
the allegations in the light most favorable to Plaintiff, the FAC alleges that
Johnny Smith disclosed the incident (i.e., that Aidan had attempted suicide
with Plaintiff’s LAPD service pistol and was hospitalized) to senior members of
his command staff. (FAC ¶ 21.) Assuming, for the moment, that the underlying
facts of the incident were sufficient to trigger section 8102, this allegation
is sufficient to establish what information was conveyed to whom with
sufficient specificity to survive a demurrer.
Finally, the City also argues that Plaintiffs
do not allege that Aidan ever owned or had control over the Eppolitos’ firearms
so as to trigger the requirements of section 8102. Defendants contend that,
because the FAC alleges that Amira Eppolito confronted the decedent about
accessing the weapon (FAC ¶ 17), and that the firearms were locked in a gun
safe by December 2019 (FAC ¶ 31), the allegations show that the decedent did
not own or control the firearms.
In opposition, Plaintiffs contend
that, because the password to the gun safe was so easily guessed, and because Aidan
was able to deduce the password, he had effective possession of the weapons. In
support of this contention, Plaintiffs cite to Reida v. Lund, a 1971
negligence case concerning whether a parent was liable for negligence because
his son knew where the keys to his gun safe were and then used a rifle in a
mass shooting. (See Reida v. Lun, (1971) 18 Cal.App.3d 698.) Although
the Reida Court found that evidence of the negligent safeguarding of a
firearm based on another person’s access to keys was sufficiently probative to
require resolution by a trier of fact, it did so in the context of liability on
a negligence claim. (Reida, supra, 18 Cal.App.3d at 707.) Here, however,
the question is not whether the allegedly insufficient protections on the
firearms create negligence liability, but whether they mandate seizure under
section 8102 of the Welfare and Institutions Code. The Court is hesitant to
adopt the position, absent any precedent, that this section can be applied to authorize
seizure of firearms belonging to another person who has taken active steps to
exclude the person subject to the involuntary hold from exerting control over
those firearms, even if those steps are not sufficient.
The Court therefore finds that, as
alleged in the FAC, the third cause of action does not state facts sufficient
to constitute a cause of action, because it does not allege facts sufficient to
establish a mandatory duty to seize firearms under Welfare and Institutions
Code section 8102 under the facts alleged. Accordingly, Defendant’s demurrer to
the third cause of action is SUSTAINED.
Timeliness
of Government Claim
Defendant contends that the fourth
through eleventh causes of action fail to state facts sufficient to constitute
a cause of action collectively because they are time-barred.
The
California Tort Claims Act states that no person may sue a public entity or
public employee for money or damages unless a timely written claim has been
presented to and denied by the public entity. (Gov. Code § 945.4.) A claim must
be presented to the public entity within six months after the accrual of the
cause of action. (Gov. Code. § 911.2.) Under Government Code section 946.6,
when an application for leave to present a late claim is denied, a party may
petition a court for relief from section 945.4. (Gov. Code § 946.6(a).) The
court “shall relieve the petitioner from the requirements of Section 945.4 if
the court finds that the application to the board under Section 911.4 was made
within a reasonable time not to exceed that specified in subdivision (b) of
Section 911.4 and was denied” and is subject to at least one of several
enumerated reasons for failure to present a timely claim. (Gov. Code §
946.6(c).)
Under the
doctrine of respondeat superior, if an employee cannot be held liable to a
plaintiff, the employer cannot be held liable for the employee’s actions. (de
Villers v. County of San Diego (2007) 156 Cal.App.4th 238, 249.)
The City contends that Plaintiffs’
late filed claim, authorized on March 7, 2022, does not name the Eppolitos as
responsible parties. The claim must include, among other things, the name of
the employee causing the alleged damage. (Gov. Code § 910(e).) However, the judicially
noticed evidence which Defendant cites includes Reily Smith’s initial claim to
the City, which was attached to the request to file a late claim. This initial
claim explicitly names the Eppolitos, states the incident occurred at their
residence and that Aidan shot himself with his stepfather’s LAPD service
pistol. (Defendant’s RJN Exh. A. p.41.) Plaintiff Johnny Smith’s petition is
identical. (Plaintiff’s RJN Exh. A. p. 43.) As Plaintiffs contend and Defendant
concedes, substantial compliance with the requirements for the contents of a
government claim is sufficient. (See, e.g, Elias v. San Bernardino County
Flood Control Dist. (1977) 68 Cal.App.3d 70, 74 ["The primary function
of the claims act is to apprise the governmental body of imminent legal action
so that it may investigate and evaluate the claim and where appropriate, avoid
litigation by settling meritorious claims."].) Based on these facts, the
Court concludes that Plaintiffs substantially complied with this requirement as
to the Eppolitos. Thus, the Court concludes that Plaintiffs’ claims, though
filed late, were sufficient as to the Eppolitos so as to escape a limitations
bar as to the fourth through eleventh causes of action.
Defendant also argues, briefly,
that the claims are also insufficient as to Plaintiffs’ superiors, who are not named.
However, the claim filed against the City references Johnny Smith’s supervisors,
even though it does not identify them by name. For the foregoing reasons, the
Court concludes that Plaintiffs’ claims are substantially compliant so as to
escape any limitations bar as to the LAPD supervisors.
Scope of Employment
Defendant contends that the
Eppolitos’ conduct concerning the storage and handling of the firearm at home
is outside the scope of their employment.
Under the doctrine of respondeat
superior, an employer is liable for the torts of its employees arising in the
scope of that individual’s employment. (Hinman v. Westinghouse Elec. Co.
(1970) 2 Cal.3d 956, 959.) The policy objectives of the doctrine are (1) to
prevent the reoccurrence of tortious conduct; (2) to provide greater assurance
of compensation to the victim, and (3) to spread the risk of loss among the
beneficiaries of the enterprise. (Mary M. v. City of Los Angeles (1991)
54 Cal.3d 202, 214.) Vicarious liability will attach if the risk of the conduct
is one that may be fairly regarded as typical of or broadly incidental to the
enterprise undertaken by the employer. (Perez v. Van Groningen & Sons,
Inc. (1986) 41 Cal.3d 962, 968.) “The question of scope of employment is
ordinarily one of fact for the jury to determine.” (Perez v. City and County
of San Francisco (2022) 75 Cal. App. 5th 826, 833 [Citation omitted].)
Defendant contends that the storage
of the Eppolitos’ LAPD firearms at home while off duty is outside the scope of
their employment. Defendant cites numerous cases in support of their position,
all of which Defendant preemptively concedes are not exactly on point because
they address liability for off-duty firearm carry by police officers,
not gun storage. That said, as Defendant points out, mere issuance of
property by an employer which subsequently causes harm by an off-duty employee
does not per se render the conduct within the scope of that individual’s employment.
(See, e.g., Brindamour v. Murray (1936) 7 Cal.2d 73.)
The Court is not persuaded,
however, by Defendant’s conclusory assertion that, simply because all
Californians must safely store firearms, firearm storage is not an incident of
the Eppolittos’ employment or of the LAPD’s operations. As alleged in the FAC, “LAPD Policy No.
3.610.10, 3.610.11, 3.610.70, 3.610.90 and 3.611.50 require, authorize, and/or
encourage officers, including Eric Eppolito and Amira Eppolito, to care a
concealed firearm 24 hours a day, 7 days a week,” including when they were not
working, and both Eppolitos “did in fact own, possess and/or control firearms
pursuant to that policy.” (FAC ¶
15.) Given LAPD policies encouraging its
officers to have access to approved firearms at all times, it is reasonable to
conclude that the LAPD “knows or reasonably should know that officers transport
these firearms on their commutes to and from work.” (Perez v. City and County of San Francisco
(2002) 75 Cal. App. 5th 826, 841.) Similarly, given its policies, the LAPD is on
notice that its officers will be required to store their approved service
firearms at home, as a customary incident of their employment. Just like the Court in Perez, this
Court must consider these factual allegations and the inferences to be drawn
from them “in the context of the enterprise of policing, the centrality of
firearms to that enterprise, and the underlying rationale for respondeat
superior that ‘losses fairly attributable to an enterprise – those which
foreseeably result from the conduct of the enterprise – should be allocated to
the enterprise as a cost of doing business.’” (Perez, supra, at p. 841
[Citation omitted].) “Given this
context, a jury could reasonably find a nexus between the [LAPD’s] enterprise
of policing and the risk that one of its officers would negligently fail to
secure a Department-approved . . . firearm upon returning home from work.” (Ibid. [Citation omitted].)
Construing all factual inferences
in Plaintiffs’ favor, as required on a demurrer, the Court cannot conclude, as
a matter of law, that harm arising from allegedly improper off-duty storage of
an LAPD-issued service pistol is outside the scope of a police officer’s
employment. (Id.) Accordingly,
the City’s demurrer on the ground that the alleged conduct falls outside the
scope of employment is OVERRULED.
Vagueness
as to Supervisor Conduct
Defendant also contends that the
allegations as to any liability on the part of the LAPD supervisors are insufficient
because the pleadings do not adequately allege what the supervisors knew or
should have known. According to Defendant, because the FAC admits that Plaintiff
Johnny Smith had no knowledge that Aidan was suicidal until after his death
(FAC ¶¶ 23-24), his disclosure to LAPD staff could not have included that
information. The Court agrees with Defendant in that respect. However,
Defendant’s contention that the City had no way of knowing that Aidan had
access to a firearm because it was locked up is belied by the essential
allegation that Plaintiff reported that Aidan had accessed a firearm.
(FAC ¶ 21.) Further, based on the allegations in the FAC, it appears that Plaintiff
Johnny Smith knew that Aidan required hospitalization in connection with his access
to the firearm and reported this to the LAPD.
(FAC ¶¶ 20-21.) Thus, the Court
concludes that the allegations are sufficient to establish knowledge on the
part of the LAPD supervisors.
Special
Relationship
Defendant contends that the
allegations of a special relationship between LAPD, the supervisors, and
Plaintiffs, are insufficient to establish liability under the sixth, seventh,
and eighth causes of action.
Absent a special relationship,
police do not have a duty to offer affirmative assistance. (Benavidez v. San
Jose Police Dept. (1999) 71 Cal.App.4th 853, 859-60.) To establish a
special relationship in a police context, a plaintiff must allege a situation
of dependency on the police, lulling the plaintiff into a false sense of
security, thereby inducing reliance, and then withdrawing essential safety
precautions. (Adams v. City of Fremont (1998) 68 Cal.App.4th 243, 277, disapproved
on other grounds in Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 222.)
Defendant contends that the FAC does
not allege any dependence on the City, a false sense of security inducing
Johnny Smith not to act, or a withdrawal of precautions. The Court disagrees. Construing
the allegations in the light most favorable to Plaintiffs, the Complaint
alleges that LAPD, through Plaintiff’s supervisors, provided extensive
assurances that action would be taken when informed that Aidan had accessed the
firearm. (FAC ¶ 21.) The FAC then alleges that Plaintiffs relied on LAPD to conduct
an investigation into the acquisition of the weapon, only for them to fail to
do so. (See, e.g., FAC ¶¶ 98-99.) In the Court’s view, these allegations are
sufficient to allege a special relationship between LAPD and Johnny Smith, who
is the only party to bring these claims.
The Court therefore finds that the
sixth, seventh, and eighth causes of action are not deficient on this basis.
Fourth
Cause of Action: Negligent Failure to Report (Vicarious Liability)
Defendant demurs to the fourth cause
of action for failure to state facts sufficient to constitute a cause of
action.
As the Court has rejected
Defendant’s arguments concerning the timeliness of Plaintiffs’ government
claims, the scope of the Eppolitos’ employment, and the sufficiency of the
allegations against the unnamed supervisors, the Court finds that the fourth
cause of action states facts sufficient to constitute a cause of action against
the City.
Accordingly, Defendant’s Demurrer to
the fourth cause of action is OVERRULED.
Fifth
Cause of Action: Negligent Failure to Seize Firearms (Vicarious Liability)
Defendant demurs to the fifth cause
of action for failure to state facts sufficient to constitute a cause of
action.
As the Court has rejected
Defendant’s arguments concerning the timeliness of Plaintiffs’ government
claims, the scope of the Eppolitos’ employment, and the sufficiency of the
allegations against the unnamed supervisors, the Court finds that the fifth
cause of action states facts sufficient to constitute a cause of action against
the City.
Accordingly, Defendant’s Demurrer to
the fifth cause of action is OVERRULED.
Sixth
Cause of Action: Negligent Investigation
Defendant demurs to the sixth cause
of action for failure to state facts sufficient to constitute a cause of
action.
As the Court has rejected
Defendant’s arguments concerning the timeliness of Plaintiffs’ government
claims, the scope of the Eppolitos’ employment, the sufficiency of the
allegations against the unnamed supervisors, and the sufficiency of the
allegations of a special relationship, the Court finds that the sixth cause of
action states facts sufficient to constitute a cause of action against the
City.
Accordingly, Defendant’s Demurrer to
the sixth cause of action is OVERRULED.
Seventh
Cause of Action: Negligent Failure to Secure Weapons
Defendant demurs to the seventh
cause of action for failure to state facts sufficient to constitute a cause of
action.
As the Court has rejected Defendant’s
arguments concerning the timeliness of Plaintiffs’ government claims, the scope
of the Eppolitos’ employment, the sufficiency of the allegations against the
unnamed supervisors, and the sufficiency of the allegations of a special
relationship, the Court finds that the seventh cause of action states facts
sufficient to constitute a cause of action against the City.
Accordingly, Defendant’s Demurrer to
the seventh cause of action is OVERRULED.
//
Eighth
Cause of Action: Negligent Entrustment
Defendant demurs to the seventh
cause of action for failure to state facts sufficient to constitute a cause of
action.
As the Court has rejected
Defendant’s arguments concerning the timeliness of Plaintiffs’ government
claims, the scope of the Eppolitos’ employment, the sufficiency of the
allegations against the unnamed supervisors, and the sufficiency of the
allegations of a special relationship, the Court finds that the seventh cause
of action states facts sufficient to constitute a cause of action against the
City.
Accordingly, Defendant’s Demurrer to
the seventh cause of action is OVERRULED.
Ninth
Cause of Action: Survivor Action
Defendant demurs to the ninth cause
of action for failure to state facts sufficient to constitute a cause of
action.
Defendant contends that this cause
of action is duplicative of the other causes of action because a survivor cause
of action merely “prevent[s] the abatement of the decedent’s cause of action.”
(San Diego Gas & Electric Co. v. Superior Court (2007) 146
Cal.App.4th 1545, 1553.) As Plaintiffs correctly state, San Diego Gas &
Electric does not stand for the proposition that, as Defendant contends, a
survival claim is not a distinct cause of action that may be asserted. Further,
a review of the First Amended Complaint shows that each of the other causes of
action are asserted as claims under Code of Civil Procedure section 377.60,
which allows for claims for wrongful death. As expressly stated in San Diego,
wrongful death claims are separate from survival claims. (San Diego, supra, 146
Cal.App.4th at 1553.) The Court therefore finds that Defendant’s contention is
not sufficient to establish that the FAC does not state facts sufficient to
constitute a cause of action in this respect.
Accordingly, Defendant’s Demurrer is
OVERRULED as to the ninth cause of action.
Tenth
Cause of Action: Negligent Infliction of Emotional Distress (Reily Smith)
Defendant demurs to the tenth cause
of action for failure to state facts sufficient to constitute a cause of
action.
Defendant contends that this cause
of action is duplicative of Plaintiffs’ other negligence claims. The California
Supreme Court has repeatedly stated that “[t]he negligent causing of emotional
distress is not an independent tort, but the tort of negligence.” (Burgess
v. Superior Court (1992) 2 Cal.4th 1064, 1072.) The tenth cause of action
incorporates all the preceding allegations (FAC ¶ 138), including the
allegations of negligence addressed above. Thus, California precedent and
Plaintiffs’ own allegations show that this cause of action is duplicative of
the other causes of action for negligence.
In response, Plaintiff Reily Smith
argues that she has adequately stated a cause of action under a bystander
theory of negligence. Under Thing v.
La Chusa (1989) 48 Cal. 3d 644, the Supreme Court recognized that a
bystander may recover via a negligence claim if the bystander: “(1) is closely related to the injury victim,
(2) present at the scene of the injury-producing event at the time it occurs
and is then aware that it is causing injury to the victim and, (3) as a result
suffers emotional distress beyond that which would be anticipated by in a
disinterested witness.” (Ibid.,
at p. 667-668.) The allegations of the
FAC satisfy this standard. Plaintiff
Reily Smith is Aidan’s sister who lived with him and was present at the time of
the shooting. (FAC, ¶¶ 4, 35, 143.) She was aware of the injury-producing event
at the time it occurred and of the injury it was causing to Aidan, because she
sought mental health treatment for Aidan after the first firearm incident and
heard the gunshot that ended his life. (Id.,
¶¶ 19, 143-145.) These facts are
sufficient to withstand a demurrer based on a bystander theory of negligence.
Accordingly, Defendant’s Demurrer to
the tenth cause of action is OVERRULED.
Eleventh
Cause of Action: Negligent Infliction of Emotional Distress (Johnny Smith)
Defendant demurs to the eleventh
cause of action for failure to state facts sufficient to constitute a cause of
action.
Defendant contends that this cause
of action is duplicative of Plaintiffs’ other negligence claims. The California
Supreme Court has repeatedly stated that “[t]he negligent causing of emotional
distress is not an independent tort, but the tort of negligence.” (Burgess
v. Superior Court (1992) 2 Cal.4th 1064, 1072.) The eleventh cause of
action incorporates all the preceding allegations (FAC ¶ 147), including the allegations
of negligence addressed above. Thus, California precedent and Plaintiffs’ own
allegations show that this cause of action is duplicative of the other causes
of action for negligence.
The Court declines to address the
question of whether Plaintiffs are entitled to claim emotional distress damages
for negligence at this time.
Accordingly, Defendant’s Demurrer to
the eleventh cause of action is SUSTAINED.
Uncertainty
Defendant also demurs to the entire
First Amended Complaint as uncertain.
A demurrer for uncertainty is
strictly construed, even where a pleading is in some respects uncertain,
because ambiguities can be clarified under modern discovery procedures. (See Khoury
v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.) A
demurrer for uncertainty will be sustained only where the pleading is so bad
that defendant cannot reasonably respond--i.e., he or she cannot
reasonably determine what issues must be admitted or denied, or what counts or
claims are directed against him or her. (See Weil & Brown, Civil
Procedure Before Trial (The Rutter Group) § 7:85 (emphasis in original).)
"The objection of uncertainty does not go to the failure to allege
sufficient facts." (Brea v. McGlashan (1934) 3
Cal.App.2d 454, 459.)
Defendant contends that the First
Amended Complaint is uncertain because it refers to the City generally, through
LAPD, and thus is unclear whether it refers to the Eppolitos, the command
staff, or the Doe defendants. Defendant argues that this ambiguity is material because
it has defenses that can be raised at the demurrer stage. The Court is unmoved.
As should be evident from the Court’s ruling on this matter, the Court
encountered no difficulty in determining which essential allegations relate to
which individuals. Further, the fact that Defendant could potentially raise
defenses on demurrer with more detail in the pleadings is not sufficient to
establish that the pleading is uncertain as a matter of law. Indeed, the
issues that Defendant raises appear to the Court to be precisely the kind of
ambiguities that can be resolved under modern discovery procedures. Thus, for
the foregoing reasons, the Court finds that Defendant has not shown that the
First Amended Complaint is sufficiently uncertain to be subject to demurrer.
Leave
to Amend
When a demurrer is sustained, the
Court determines whether there is a reasonable possibility that the defect can
be cured by amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311,
318). When a plaintiff “has pleaded the general set of facts upon
which his cause of action is based,” the court should give the plaintiff an
opportunity to amend his complaint, since plaintiff should not “be deprived of
his right to maintain his action on the ground that his pleadings were defective
for lack of particulars.” (Reed v. Norman (1957) 152 Cal.App.2d 892,
900.) Accordingly, California law imposes the burden on the plaintiffs to
demonstrate the manner in which they can amend their pleadings to state their
claims against a defendant. (Goodman v. Kennedy (1976) 18
Cal.3d 335, 349.) “Denial of leave to amend constitutes an abuse of discretion
unless the complaint shows on its face it is incapable of amendment.
[Citation.] Liberality in permitting amendment is the rule, if a fair
opportunity to correct any defect has not been given." (Angie M. v.
Superior Court (1995) 37 Cal.App.4th 1217, 1227.)
Plaintiffs have not clearly shown how
the allegations in the FAC might be amended to cure the defective cause of
action. In light of the broad presumption in favor of leave to amend, however, the
Court is inclined to exercise its discretion to permit amendment with the
exception of the tenth and eleventh causes of action. With respect to the tenth
and eleventh causes of action, the Court has held that these claims are
duplicative of Plaintiffs’ other negligence claims, and therefore leave to
amend is not appropriate as to these causes of action. However, in so ruling,
the Court emphasizes that this determination is made without prejudice as to
Plaintiffs’ ability to assert a claim for emotional distress damages in
connection with any viable negligence claim in this matter.
CONCLUSION:
For
the reasons explained above, Defendant’s Demurrer to the First Amended
SUSTAINED with leave to amend as to the third cause of action,
SUSTAINED without leave to amend as to the eleventh causes of
action, and otherwise OVERRULED.
Plaintiffs
shall have thirty days leave to file a Second Amended Complaint.
Moving
Party to give notice.
IT IS SO ORDERED.
Dated: December 19,
2022 ___________________________________
Theresa
M. Traber
Judge
of the Superior Court