Buford v. State of California

• Decision Date: 18 April 1980
• Citation: 104 Cal.App.3d 811,164 Cal.Rptr. 264
• Court: California Court of Appeals Court of Appeals
• Parties: Donna BUFORD et al., Plaintiffs and Appellants, v. STATE of California et al., Defendants and Respondents. Civ. 5050.

Page 264

164 Cal.Rptr. 264

104 Cal.App.3d 811

Donna BUFORD et al., Plaintiffs and Appellants, v. STATE of California et al., Defendants and Respondents.

Civ. 5050.

Court of Appeal, Fifth District, California.

April 18, 1980.

Hearing Denied June 12, 1980.

James J. Igoe, San Francisco, for plaintiffs and appellants.

George Deukmejian, Atty. Gen., John M. Morrison and Bruce J. Braverman, Deputy Attys. Gen., Sacramento, Hurlbutt, Clevenger, Long & Vortmann, Paul Vortmann, Philip B. Laird, Jr., Visalia, Chinello, Chinello, Shelton & Auchard, Daniel I. Aller, III and John D. Chinello, Jr., Fresno, for respondents.

OPINION

ZENOVICH, Associate Justice.

In this case we deal with a state mental hospital's potential liability for a person who is released from its confines and who is allegedly known to be a social menace to the community in which he is released. Plaintiffs commenced an action against the State of California (hereinafter referred to as State), the County of Tulare (hereinafter referred to as County), the City of Visalia (hereinafter referred to as City), Atascadero State Hospital, Kenneth Daniels, and numerous doe defendants for damages for injuries resulting from the acts of Daniels, which were allegedly based on the negligent conduct of defendants. The State filed a general demurrer, the City filed a general demurrer and a motion to strike and dismiss, and the County initiated a motion to have portions of plaintiffs' complaint stricken. The superior court sustained the State's and City's general demurrers to the complaint with leave to amend within 15 days, as well as granting the County's motion to strike. Plaintiffs responded by filing an amendment to their complaint, and the aforementioned three defendants demurred to the amended complaint on the ground that it failed to state a cause of action. The superior court sustained the three general demurrers to the complaint without leave to amend, and thereafter entered a judgment of dismissal. ¹

On appeal from a judgment of dismissal following an order sustaining a demurrer without leave to amend, we must treat every material, issuable fact properly pleaded as true (Commercial Standard Ins. Co. v. Bank of America (1976) 57 Cal.App.3d 241, 246, 129 Cal.Rptr. 91) and shall treat pleaded facts as if they were established facts. We therefore begin by setting forth the relevant allegations of the complaints.

Plaintiffs, Donna, Ben and Roy Buford, filed a first amended complaint with virtually identical causes of action. The following facts are material to all the causes of action alleged by the plaintiffs. Defendant Kenneth Daniels was released from Atascadero State Hospital on an indefinite leave of absence on January 12, 1976; subsequently, however, that status was changed, on June 2, 1977, to an unauthorized leave of absence. Daniels had been confined to Atascadero as a result of numerous offenses, the nature of which were unknown at the time of the filing of the complaint. Plaintiffs Donna Buford, an employee of the Pump House Bar in Visalia, and Ben Buford, her son, were kidnaped and abducted from the tavern by Daniels on April 20, 1978. At about 2 a. m. on that date, Daniels placed a hunting knife against the throat of Donna and forced Ben and her into a nearby automobile. The course of the abduction lasted approximately five hours, during which Donna was forced to strip naked, orally copulate Daniels, and drink the defendant's urine. Moreover, Daniels constantly assaulted and battered both Donna and Ben with a hunting knife. Ben was also forced to disrobe and was robbed by Daniels during the kidnaping, which all took place in Daniels' car. Ben was further forced to view the assaults on his mother.

In the first cause of action (which was incorporated into the amended complaint), plaintiff Donna Buford alleged that defendant State committed several acts or omissions which resulted in her injuries. Her respective theories of negligence were that the proximate cause of her injury was the State's conduct in: (1) failing to adequately diagnose and render treatment for the psychotic tendencies of Daniels: (2) failing to keep adequate records on the treatment and confinement of Daniels at Atascadero; (3) failing to communicate medical and psychiatric findings about Daniels to the authorities in charge of release procedures; (4) releasing Daniels from Atascadero; (5) failing to adequately provide follow-up procedures and psychiatric supervision after Daniels' release; (6) failing to communicate Daniels' change in status to other state agencies; (7) failing to communicate psychiatric findings which might have resulted in Daniels' recommitment; (8) failing to inform state and local law enforcement agencies about both the unauthorized leave and the threat posed to others by Daniels' release; (9) failing to inform the California State Department of Rehabilitation, the City of Visalia, and the County of Tulare about the unauthorized leave and menace posed by Daniels; (10) failing (via employees of the State Department of Rehabilitation) to inform Atascadero about Daniels' whereabouts; (11) failing (via employees of Atascadero) to notify the California Department of Corrections about Daniels' dangerous criminal propensities and his unauthorized leave; (12) failing (via the State Department of Corrections) to notify both the California judicial system and Visalia municipal or judicial district courts about Daniels' unauthorized leave for purposes of probation placement; (13) failing (on the part of the State Department of Corrections and California law enforcement agencies) to apprehend Daniels; and (14) failing to maintain a computer system which made the judicial system aware of Daniels' past criminal record. Plaintiff Donna Buford asserted that these acts or omissions made the State liable under GOVERNMENT CODE SECTION 815.6². Following the disposition on the first set of demurrers and motions, plaintiffs amended their complaint for purposes of suing both the State and its employee, Barry Zolotar. Plaintiffs alleged that Zolotar, an employee in the community planning-orientation and follow-up department of Atascadero, was entrusted with the duty of supervising Daniels after he was allowed to go on home leave (leave of absence). It was further averred that Zolotar negligently performed his duty of informing Atascadero or law enforcement authorities about Daniels' whereabouts and condition; further, he "made no attempts to have Daniels apprehended while full knowing Daniels was a menace to the people of Tulare County and to residents of Visalia, where plaintiff Donna Buford in fact resided." In addition, plaintiffs also alleged that the State was liable for the following acts: (1) the failure of Len Hacker, an employee, to contact Atascadero after meeting with Daniels at the Visalia branch of the State Department of Rehabilitation on March 2, 1978; and (2) failure of A. W. Orton, an officer of the State Parole Authority, to inquire of Daniels' status or to notify Atascadero of his whereabouts after seeing him shortly before the attack on plaintiffs.

Plaintiff Donna Buford also alleged that negligent acts or omissions were committed by defendant County. On April 13, 1978, Daniels was allegedly arrested by a member of the Tulare County Sheriff's office for violation of Vehicle Code section 23102 (misdemeanor drunk driving) and thereafter taken into custody. After being tried in the Exeter-Farmersville Judicial District on April 14, Daniels was not retained in custody and "was allowed to go free . . . ." As a condition of his probation, Daniels agreed to undergo once-a-week sessions at the Visalia Community Services Counseling Center office. Based on these facts, plaintiffs advanced several theories of negligence against defendant County: (1) failure of counseling service employees to notify Atascadero and law enforcement agencies of Daniels' whereabouts; (2) failure of counseling service employees to adequately treat and prevent the subsequent actions of Daniels; (3) failure of county counseling service employees to warn plaintiffs of the dangerous tendencies of Daniels; (4) failure of counseling service employees to keep adequate records of their psychiatric findings about Daniels; (5) failure of county judicial employees to inform Atascadero of Daniels' whereabouts or to inquire about his past criminal record before placing him on probation; (6) failure of county law enforcement agencies to delve into the past criminal record of Daniels or detain him for further custody; (7) failure of law enforcement agencies to inform Atascadero about Daniels' arrest; (8) failure of the Tulare County Probation Department to inquire into Daniels' past criminal record and inform Atascadero about his whereabouts; (9) recommending probation in light of Daniels' past record and absentee status; and (10) failure of Caroline Estrada, clerk of the Tulare court, to ascertain Daniels' status and to so inform the sentencing judge.

Plaintiff Donna Buford also sought damages against defendant City for the first nine reasons listed in her action against defendant County. Based on the sum of her allegations against all defendants (which included Daniels, Zolotar, Hacker, Orton and Estrada), plaintiff prayed for compensatory, incidental and punitive damages relating to injuries suffered during the abduction.

Plaintiff Ben Buford alleged a second cause of action which relied upon the identical arguments advanced by his mother. He also prayed for the assessment of compensatory, incidental and punitive damages. Based on the incidents described above, plaintiff Roy Buford, the husband of Donna, brought a separate cause of action against all the defendants to recover compensatory and punitive damages resulting from a loss of consortium.

The function of a demurrer is to test the sufficiency of plaintiffs' pleading by raising questions of law. (3 Witkin, Cal.Procedure (2d ed. 1971)...