Zelig v. County of Los Angeles

• Decision Date: 21 July 1999
• Docket Number: No. B112568,B112568
• Citation: 86 Cal.Rptr.2d 695,73 Cal.App.4th 741
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 73 Cal.App.4th 741 73 Cal.App.4th 741, 74 Cal.App.4th 478D, 99 Cal. Daily Op. Serv. 5837, 1999 Daily Journal D.A.R. 7413 Dana E. ZELIG et al., Plaintiffs and Appellants, v. COUNTY OF LOS ANGELES et al., Defendants and Respondents.

Page 695

86 Cal.Rptr.2d 695

Previously published at 73 Cal.App.4th 741

73 Cal.App.4th 741, 74 Cal.App.4th 478D,

99 Cal. Daily Op. Serv. 5837,

1999 Daily Journal D.A.R. 7413

Dana E. ZELIG et al., Plaintiffs and Appellants, v. COUNTY OF LOS ANGELES et al., Defendants and Respondents.

No. B112568.

Court of Appeal, Second District, Division 3, California.

July 21, 1999.

As Modified on Denial of Rehearing Aug. 13, 1999.

Talcott, Lightfoot, Vandevelde, Sadowsky, Medvene & Levine, John D. Vandevelde and Melissa N. Widdifield, Los Angeles, for Plaintiffs and Appellants.

DeWitt W. Clinton, County Counsel, S. Robert Ambrose, Assistant County Counsel, Dennis M. Gonzales, Principal Deputy County Counsel, Steven J. Renick and Manning, Marder & Wolfe for all Defendants and Respondents.

ALDRICH, J.

INTRODUCTION

Eileen Zelig was fatally shot by her ex-husband, Dr. Harry Zelig, in the hallway of the Central Civil Courthouse building in downtown Los Angeles where she was waiting for a hearing in the dissolution of the Zeligs' marriage. Plaintiffs, the Zelig children by their legal guardians, brought this action against the County of Los Angeles and the Los Angeles County Sheriff's Department (together the County) alleging it breached its duty to protect Mrs. Zelig by failing to prevent Dr. Zelig from bringing a gun into the courthouse. Plaintiffs appeal from the judgment entered after the trial court sustained, without leave to amend, the County's demurrer to the first amended complaint. We reverse the judgment with directions.

FACTUAL AND PROCEDURAL BACKGROUND

For purposes of review, we accept as true the factual allegations extracted from the first amended complaint. (Peterson v. San Francisco Community College Dist. (1984) 36 Cal.3d 799, 804, 205 Cal.Rptr. 842, 685 P.2d 1193.) Over the course of two years following the dissolution of the Zelig marriage, Dr. Zelig disregarded repeated court orders that he pay support to Mrs. Zelig and plaintiffs and became increasingly abusive and hostile towards his ex-wife. On September 1, 1995, in connection with a child and spousal support issue before the Family Law Court, Mrs. Zelig, accompanied by her youngest daughter, six-year-old Lisa, appeared at the Los Angeles County Superior Courthouse on Hill Street and was directed to Department 1A on the second floor. Dr. Zelig followed. In the hallway of the second floor, Dr. Zelig took a loaded revolver from his clothes and shot Mrs. Zelig, killing her in front of Lisa.

Prior to the murder, Mrs. Zelig repeatedly had expressed her fear of Dr. Zelig to the County. Mrs. Zelig had obtained restraining orders against Dr. Zelig prohibiting him from carrying firearms, directing him to turn his firearms over to his attorney, and prohibiting him from being within 100 yards of a firearm when in the presence of plaintiffs and Mrs. Zelig. On at least three occasions, Mrs. Zelig had called the bailiff, Deputy Sheriff Lee A. Carter, before scheduled court appearances to inform him that she was afraid Dr. Zelig might harm or even kill her while she was in the courthouse. Once, Carter searched Dr. Zelig before allowing him to enter the court. Mrs. Zelig had also provided the judge and bailiff with letters and telephone recordings in which Dr. Zelig threatened to kill her.

In plaintiffs' ensuing action against the County, the first amended complaint seeks damages against the County for (1) wrongful death, (2) negligence, (3) negligent infliction

                of emotional distress. 1  In particular, plaintiffs allege the County failed to protect Mrs. Zelig by failing to provide a reasonably safe environment in the courthouse because no barriers, metal detectors, or other safety measures designed to prevent the introduction of weapons into the courthouse were installed, and no signs were posted warning about the lack of security in the courthouse.  In support of their theories of liability, plaintiffs allege the County knew or should have known of the risk of danger posed by those who bring weapons into the courthouse, the fact that parties involved in family law and other matters frequently exhibited violent conduct, and that Dr. Zelig in particular had threatened acts of violence against Mrs. Zelig. 2  The trial court sustained without leave to amend the County's demurrer to the first amended complaint, and plaintiffs' appeal followed
                

DISCUSSION

1. Standard of review.

"A demurrer lies only for defects appearing on the face of the complaint or from matters of which the court must or may take judicial notice. [Citation.]" (Ramsden v. Western Union (1977) 71 Cal.App.3d 873, 879, 138 Cal.Rptr. 426.)

"In reviewing the sufficiency of a complaint against a general demurrer ... we [must] determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment; if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.]" (Blank v. Kirwan (1985) 39 Cal.3d 311, 318, 216 Cal.Rptr. 718, 703 P.2d 58.) "The burden is on the plaintiff ... to demonstrate the manner in which the complaint might be amended. [Citation.]" (Hendy v. Losse (1991) 54 Cal.3d 723, 742, 1 Cal.Rptr.2d 543, 819 P.2d 1.)

2. Statutory bases for liability.

In its demurrer, the County argued it owed Mrs. Zelig no duty because (1) it had no special relationship with Mrs. Zelig; (2) Dr. Zelig's actions were not foreseeable; (3) there was no dangerous condition present in the courthouse; and (4) it is immune from liability. We focus first on whether the County owed a duty here and if so, what that duty entails. We will then determine whether the claims are barred by the applicable immunity. (Davidson v. City of Westminster (1982) 32 Cal.3d 197, 201-202, 185 Cal.Rptr. 252, 649 P.2d 894 [must ascertain duty of care before applying immunity].)

In general, public entities in California are not liable for an injury caused by an act or omission of the public entity or public employee unless provided by statute. (Gov.Code, 815.) Hence, ... all government tort liability must be based on statute. [Citation.] ... (Rodriguez v. Inglewood Unified School Dist. (1986) 186 Cal.App.3d 707, 716, 230 Cal.Rptr. 823, original italics.) Plaintiffs have attempted to state causes of action against the County based on various code provisions: Government Code sections 814, 815.2, 815.6, 820, and 835, ³ as well as Civil Code section 1714, and 42 United States Code section 1983. We address each of these statutory bases for liability in ascertaining whether the County owed a duty in this case. We conclude, under an amended complaint,

that plaintiffs would be able to allege the duty element of negligence under two theories: Civil Code section 1714 (negligence) and section 835 (defective condition of property). Plaintiffs have also successfully alleged negligent infliction of emotional distress. Lastly, after examining the scope of the police protection immunity, we conclude based on the allegations pleaded, that these causes of action are not barred by section 845.

a. Negligence (Civil Code, 1714 against the County only).

(i) Special relationship.

Although public-entity liability is a creature of statute, [i]ts provisions ... are to be read against the background of general tort law. (Peterson v. San Francisco Community College Dist., supra, 36 Cal.3d at p. 809, 205 Cal.Rptr. 842, 685 P.2d 1193.)

As a general rule one has no duty to control the conduct of another, and no duty to warn those who may be endangered by such conduct. [Citations.] (Id., at p. 806, 205 Cal.Rptr. 842, 685 P.2d 1193.) A duty may nonetheless be found, however, where "... '(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct, or (b) a special relation exists between the actor and the other which gives the other a right to protection.' [Citations.]" (Ibid.; MacDonald v. State of California (1991) 230 Cal.App.3d 319, 333-334, 281 Cal.Rptr. 317.)

Among the special relationships recognized in the law, a landowner stands in a special relationship with people coming on the land for business purposes. (6 Witkin, Summary of Cal. Law (9th ed.1988) § 859, p. 223; Civ.Code, § 1714 ⁴ .)

This special relationship gives rise to a particular duty: "...'a possessor of land who holds it open to the public for entry for business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent or intentionally harmful acts of third persons ... and by the failure of the possessor to exercise reasonable care to (a) discover that such acts are being done or are likely to be done, or (b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it.' [Citations.]" (Peterson v. San Francisco Community College Dist., supra, 36 Cal.3d at p. 807, 205 Cal.Rptr. 842, 685 P.2d 1193.)

Within the context of the landowner's duty to those who come onto its land, policy considerations lead us to conclude that the County, as the party controlling the courts, owes a duty to take reasonable steps to provide safe courthouses to those who enter.

We take our cue first from Boddie v. Connecticut (1971) 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113, where indigent plaintiffs were found to state a claim under the Fourteenth Amendment for the denial of their right of access to the courts because they were unable to pay the filing fees needed to initiate divorce proceedings. In view of the state's monopoly over the means for dissolving marriages and the fundamental right involved in decisions concerning marriage, the Court held, due process prohibited the state from denying the plaintiffs access because of their...