Arista v. Cnty. of Riverside

• Decision Date: 20 November 2018
• Docket Number: E068432
• Citation: 241 Cal.Rptr.3d 437,29 Cal.App.5th 1051
• Court: California Court of Appeals Court of Appeals
• Parties: Christyna ARISTA, Individually and as Personal Representative, etc., et al., Plaintiffs and Appellants, v. COUNTY OF RIVERSIDE, Defendant and Respondent.

29 Cal.App.5th 1051

241 Cal.Rptr.3d 437

Christyna ARISTA, Individually and as Personal Representative, etc., et al., Plaintiffs and Appellants,

v.COUNTY OF RIVERSIDE, Defendant and Respondent.

E068432

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

Filed November 20, 2018

As Modified on Denial of Rehearing December 13, 2018

Tiedt & Hurd, John E. Tiedt and Marc S. Hurd for Plaintiffs and Appellants.

Disenhouse Law, Bruce E. Disenhouse, Riverside, J. Pat Ferraris; Arias & Lockwood and Christopher D. Lockwood, San Bernadino, for Defendant and Respondent.

OPINION

MILLER J.

In a second amended complaint (SAC), Christyna Arista (Wife), Andres Marin-Arista, Jazmyn Nicole Marin-Arista, Christal Marin Arista, and Julyan Marin Arista sued the County of Riverside (the County) for (1) wrongful death, (2) negligence, (3) negligent infliction of emotional distress, and (4) a deprivation of constitutional rights ( 42 U.S.C. § 1983 ). The trial court sustained the County’s demurrer to the SAC without leave to amend. Wife, Andres, Jazmyn, Christal, and Julyan (collectively, the Family) contend the trial court erred. We reverse in part, and affirm in part.

FACTUAL AND PROCEDURAL HISTORY

A. SAC

The facts in this subsection are taken from the SAC. In 2014, Wife was married to Andres Marin (the victim). Wife and the victim shared four children: Andres, Jazmyn, Christal, and Julyan. On March 1, 2014, at approximately 6:30 a.m., the victim left the Family’s residence in Corona to ride his mountain bike up Santiago Peak in the Cleveland National Forest. The bike ride would be approximately 55 miles. The victim was scheduled to arrive back home at 2:00 p.m.

Temperatures at 6:30 a.m., in Corona, were in the 50s or 60s and there was occasional light rain during the day. The victim was dressed in knee-length bike shorts, bike gloves, a bicycle jersey, calf length socks, shoes, and a helmet. The victim carried $10, water, snacks, and his cell phone. At 3:00 p.m., the victim had not returned home. Wife called the victim’s cell phone and sent text messages with no answer until 5:14 p.m. At that time, Wife spoke to the victim. The victim told Wife that he had fallen and was injured. The victim sounded disoriented and confused, but said that prior to falling he had reached the summit of Santiago Peak and was returning home. At 5:32 p.m., Wife called the Trabuco Ranger Station, but no one answered. At 5:34 p.m., Wife called the Cleveland National Forest Service, but could not reach a human. At 5:36 p.m., Wife called 911 and spoke to an operator, who instructed Wife to wait at home for law enforcement.

At 6:30 p.m., Corona police arrived at the Family’s residence. Wife told the police about the victim’s injury, the victim’s planned route, the amount of clothing he was wearing, and she provided photographs of the victim. At 8:00 p.m., Riverside County Sheriff’s Deputy Zaborowski arrived at the Family’s residence. Wife gave Deputy Zaborowski the same information that she had given to the Corona police officer. Deputy Zaborowski remained at the Family’s residence for most of the evening. Deputy Zaborowski had Verizon ping the victim’s cell phone, which revealed the victim’s phone was near Santiago Peak. Verizon employees were working on a cell tower near Santiago Peak; the Riverside County Sheriff’s Department (Sheriff’s Department) asked the Verizon employees "to be vigilant for [the victim’s] location."

Riverside County Sheriff’s Lieutenant Zachary Hall was the "Incident Commander" for the case. Lieutenant Hall was not trained in search and rescue techniques. At 10:00 p.m., Lieutenant Hall or Riverside County Sheriff’s Detective Holder arrived at the Family’s residence and said "he was the Lieutenant ‘in charge.’ "¹ Lieutenant Hall spoke to Deputy Zaborowski outside. Lieutenant Hall said the victim was likely having an affair, implying that the victim was not missing but was with his girlfriend. Lieutenant Hall questioned why law enforcement needed to be involved. Lieutenant Hall reentered the house and told Wife that the Sheriff’s Department’s search and rescue team would start searching for the victim in the morning.

Wife knew that temperatures on Santiago Peak would be in the 30s or 40s overnight. Wife asked Lieutenant Hall, " ‘[W]hat are the chances he dies of hypothermia ?’ " Lieutenant Hall replied that the victim "was ‘a grown man’ and that ‘he can survive the night.’ When further questioned about why the department was not searching given the dangers of the cold, [Lieutenant Hall] replied that ‘if it was a child, [he] would send a helicopter out there right now."

On March 1, 2014, the Sheriff’s Department had an "Off-Highway Vehicle Enforcement" team (ROVE) that was equipped with all-terrain vehicles. The vehicles were equipped with lights and could operate at night. The ROVE team was not dispatched to search for the victim on the night of March 1.

After the Sheriff’s Department said it would delay its search until the morning of March 2, Wife organized six family members to search for the victim. The Sheriff’s Department advised Wife "not to initiate any search on her own, and was told that the [the Sheriff’s Department] would take care of that task." Nevertheless, at 3:45 a.m. on March 2, Wife and her family members began searching on foot for the victim.

Pat Killam was a member of the "Riverside Mountain Rescue Unit" (RMRU), a group of volunteer deputies trained to respond to wilderness emergencies. Killam was "contacted by another member of RMRU" after Lieutenant Hall decided to wait until the morning to search for the victim. Early in the morning on March 2, Killam awoke to search for the victim. During midmorning, before deputies began searching the roads and trails, Killam, using a motorcycle, located the victim’s body on Santiago Trail near Santiago Peak. Santiago Trail is a maintained fire access road that accommodates four-wheel drive or off-road vehicles. The victim had died of hypothermia.

The Family’s first cause of action was for wrongful death. Sheriff’s Department personnel told Wife "they would ‘handle’ the search, and requested that [Wife] not initiate any search on her own." Thus, the County assumed the responsibility of searching for the victim and rescuing him. Wife relied on the Sheriff’s Department’s search efforts because the Sheriff’s Department "took control of the situation." The Sheriff’s Department delayed the search in bad faith based upon its conclusion that the victim was not missing, but was having an affair. The victim "could have been rescued" if rescuers "used four wheel drive cars/trucks or other off road vehicles to access [the victim] who was lying on a maintained fire access road."

The Family’s second cause of action was for negligence, and it included allegations similar to the wrongful death cause of action. The Family’s third cause of action was for negligent infliction of emotional distress, and it included allegations similar to the wrongful death cause of action.

The Family’s fourth cause of action was for a deprivation of constitutional rights. ( 42 U.S.C. § 1983.) The victim had a right to life and liberty under the 14th Amendment of the United States Constitution. The Sheriff’s Department had trained search and rescue teams, such as the ROVE team; RMRU, which was a group of volunteer deputies trained for wilderness emergencies; and "Riverside County Search Dogs," a non-profit canine search and rescue organization.

Lieutenant Hall, who was placed in charge of the victim’s case, was not trained in search and rescue techniques. Due to the lack of training, Lieutenant Hall was unable to formulate a proper search plan. Additionally, Lieutenant Hall was unaware of the County’s resources that were available for search and rescue, such as the ROVE team. If Lieutenant Hall had been properly trained, he would have contacted the ROVE team so as to have the ROVE team assess the possible rescue options. Lieutenant Hall did not know the terrain of the Cleveland National Forest, he did not check the elevation of Santiago Trail, and he did not check the temperature at Santiago Peak to assess the danger of hypothermia.

Deputies were assigned to watch the trailheads, but those deputies had no search and rescue training. The deputies at the trailheads had four-door sedans that were unable to traverse off-road trails. If properly trained search and rescue personnel had been deployed on the night of March 1 to search in the area where the victim’s cell phone was pinged, then he would have been found alive.

Further, the County was aware that its personnel were not properly trained in search and rescue techniques because, prior to March 1, 2014, a report was prepared by a sheriff’s lieutenant and given to the Sheriff’s Department executive team reflecting that relying on volunteer groups for search and rescue operations could lead to " ‘failure.’ " The County’s failure to properly train personnel demonstrated a deliberate indifference to the rights of the public, and, in particular, the rights of the victim.

The Family sought general damages; special damages for medical expenses; loss of earnings for the financial support the Family would have received from the victim; funeral and burial expenses; costs; interest; and any other proper relief.

B. DEMURRER

The County demurred to the SAC. As to the first, second, and third causes of action, i.e., the negligence claims, the County asserted there was no duty to rescue another person. Additionally, the County contended that a government agency can only be held liable for statutory violations. The County asserted there was no statute mandating one person rescue another, absent a special relationship. The County explained that a special relationship could be found if the County had taken affirmative actions that placed the victim in greater danger. The County contended no facts were alleged that the County took affirmative actions that placed the victim in greater danger.

The "good...