Alva v. Cook

• Decision Date: 15 July 1975
• Citation: 49 Cal.App.3d 899,123 Cal.Rptr. 166
• Court: California Court of Appeals Court of Appeals
• Parties: Helen ALVA et al., Plaintiffs and Appellants, v. Wilma COOK and Mildred Pinkston, Defendants and Respondents. Civ. 44587.

Page 166

123 Cal.Rptr. 166

49 Cal.App.3d 899

Helen ALVA et al., Plaintiffs and Appellants, v. Wilma COOK and Mildred Pinkston, Defendants and Respondents.

Civ. 44587.

Court of Appeal, Second District, Division 2, California.

July 15, 1975.

Abrams, Fox Gibson & O'Rourke, by Harry D. Fox, El Monte, for appellants.

Wilson, Borror & Dunn, by James R. Dunn, San Bernardino, for respondents.

ROTH, Presiding Justice.

On February 16, 1973, at 3 p.m., Michael Edward Alva, accompanied by his fiancee Julie Gonzales, drove his car into the driveway of premises owned by respondent sisters Wilma Cook and Mildred Pinkston, to effectuate a north to south change in travel, and was shot and killed by Malcolm Pinkston, age 62, for whom respondents provided and had for some years prior thereto provided a home on the premises. Malcolm was later convicted after a guilty plea of murder in the second degree. (Pen.Code, § 189; Superior Court Case No. A 516 180.)

Appellants, Helen Alva, Michael Alva, and Julie Gonzales, the parents and fiance, respectively, of deceased, as a consequence of the death resulting from the shooting sued respondents in ten causes of action ¹ which were successively amended until a general demurrer was sustained without leave to all ten causes (herein referred to as complaint). Appeal is from the judgment of dismissal thereafter entered.

Appellants concede in their reply brief that the respective ten causes, although independently stated on different theories are based on the legal principle '* * * that respondents fall * * * within the * * * class of cases. (which) * * * exemplify an evolution from a rule of 'no duty' to a rule in which imposition of a duty of care depends upon the foreseeability of serious injury * * * a defendant (who) commences to render services, * * * must employ reasonable care * * *.'

The principle is tersely stated in Dillon v. Legg (1968) 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912, '* * * the law of torts holds defendant amenable only for injuries to others which to defendant at the time were reasonably foreseeable.' (68 Cal.2d 728, 739, 69 Cal.Rptr. 72, 79, 441 P.2d 912, 919.)

In addition to Dillon the pertinent cases upon which appellants rely are: Rowland v. Christian (1968) 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561; McGarvey v. Pacific Gas & Elec. Co. (1971) 18 Cal.App.3d 555, 95 Cal.Rptr. 894, and Morgan v. County of Yuba (1964) 230 Cal.App.2d 938, 943--944, 41 Cal.Rptr. 508.)

We gather from the cases that liability is incurred in torts when a person at the time of a negligent act or omission should reasonably foresee that such act or omission could be the proximate cause of damage to another. Applied to the occupier of premises Rowland requires that the occupier of premises in the management of his property must act as a reasonable man in view of the probability of injury to others whether they be invitees, licensees, or trespassers. This rule has been extended to non-occupying landlords with knowledge of a dangerous situation on the premises ignored by a tenant occupier. (Uccello v. Laudenslayer (1975) 44 Cal.App.3d 504, 514, 118 Cal.Rptr. 741.)

"A demurrer reaches only to the contents of the pleading and such matters as may be considered under the doctrine of judicial notice.' (Citations); the material and issuable facts pleaded * * * must be regarded as true (citations); a demurrer does not, however, admit Contentions, deductions or conclusions of fact or law alleged in the complaint (citations), or facts impossible in law (citation), Or allegations contrary to facts of which a court may take judicial knowledge.' (Emphasis added.) (Holmes v. City of Oakland (1968) 260 Cal.App.2d 378, 382, 67 Cal.Rptr. 197, 200.) A general demurrer should be overruled if it appears from such analysis that judicial relief is warranted even though alleged facts are not clearly stated or have been intertwined with irrelevant facts or the wrong relief is prayed. (Hilltop Properties v. State of California (1965) 233 Cal.App.2d 349, 354, 43 Cal.Rptr. 605.)

We first analyze and construe the complaint without its augmentation by judicial notice.

The unverified allegations upon which appellants rely are: respondents' ownership and management of the premises upon which the killing occurred which is conceded; Malcolm was the brother of respondents at the time of the shooting, which is conceded; for many years prior thereto he was unable to care for himself because of mental defects; mental illness manifested itself in the form of a psychosis which created an impression in Malcolm that the usual and ordinary activities of other persons constituted a threat to his existence; extreme propensity of Malcolm to injure or attempt to injure other persons; and respondents with full knowledge of his attitude and propensities and knowledge that he had in his possession and control a high-powered rifle, voluntarily assumed the care, custody, management and control of Malcolm at their home, knowing that Malcolm had a history of injuring persons. The complaint then alleges that on February 16 and for many years prior thereto, respondents negligently failed to supervise Malcolm's access to said high-powered rifle or to remove it from his possession and control, or to control Malcolm so that he could and would not commit a violent or negligent act upon members of the public, and specifically decedent Michael Edward Alva; negligently failed to have Malcolm committed to a proper custodial facility and by voluntarily assuming the care, custody, control and maintenance of Malcolm respondents prevented appropriate public authorities from committing defendant Malcolm to a proper custodial facility. Appellants conclude with the charge that the conduct of respondents above described constituted negligent supervision and as a proximate result thereof Malcolm obtained access to and intentionally discharged a high-powered rifle, proximately causing Michael Edward Alva's death and traumatic injuries to Julie his fiancee.

The allegations in respect of (1) mental defects, (2) mental illness and (3) psychosis, are supported only by conclusionary allegations that usual and ordinary activities of other persons were considered by Malcolm as a threat to his existence; created a propensity to injure and attempt to injure others. Nothing in the foregoing equates with an allegation that Malcolm because of mental defects or illness or psychosis or any state of mind or any imagined propensity or for any reason or lack of it did in fact at any time injure others or that he ever made an attempt to do so. In fact, the vague, uncertain and conclusionary allegations upon which mental defect, mental illness, or a form of psychosis are based is refuted by lack of direct allegation. The allegation that respondents assumed care of Malcolm and allowed him to possess a rifle is factual and is true but the allegation that respondents assumed care with knowledge of the facts can only mean that they had knowledge of the vague allegations theretofore pleaded even assuming respondents can be charged with conclusions of a pleading. Liberally construed such allegations convey at most that in the Opinion of the pleader Malcolm was mentally disturbed. Nothing is alleged by way of probative or ultimate fact which impels or suggests as an ultimate fact that Malcolm had been or was dangerous to himself or others. No attempt is made to allege that Malcolm ever used a rifle as a means of assault or attempted assault or that he used any kind of firearm as a club or even discharged one aimed at or around a person as an offensive weapon on any occasion. Nothing is alleged to suggest that he brandished, displayed, or discharged a firearm in a public place even as a means of calling attention to himself. The allegation that the respondents knew Malcolm had a history of injury to persons is an innocuous recital of knowledge only of the matters alleged, none of which state by way of ultimate or probative fact that Malcolm over the period of his life ever actually assaulted or attempted to actually assault anyone. Nothing is alleged (except the unfortunate shooting) which could furnish a sufficient factual background upon which the respondents or Anyone else, such as a public official or private citizen, could have had Malcolm committed or even detained for evaluation as a mental suspect dangerous to himself and to others. (Lanterman-Petris-Short Act, Welf. & Inst.Code, § 5000 et seq.)

Predicated upon the foregoing vague, uncertain and conclusionary allegations appellants charge respondents with negligence in (a) permitting Malcolm to keep the rifle; (b) permitting Malcolm to have access to the rifle; and (c) failing to have Malcolm committed.

Section 5150 of the Welfare and Institutions Code provides in pertinent part: 'When any person, as a result of mental disorder, is a danger to others, or to himself * * * a peace officer * * * may, upon reasonable cause, take * * * custody and place him in a facility * * * for 72-hour treatment and evaluation.'

Section 5201 of the Welfare and Institutions Code provides that: 'Any individual may apply to the person or agency designated by the county for a petition * * * there is in the county a person who is, as a result of mental disorder a danger to others * * *.' Provision is made for prescreening by such agency and after prescreening, if the agency believes that the person is a danger to others or to himself, then the agency files a petition along with its pre-screening report. (Section 5202.)

Section 5203...