Garcia v. Superior Court

• Decision Date: 03 May 1990
• Docket Number: No. S004813,S004813
• Court: California Supreme Court
• Parties: , 789 P.2d 960 Adrian Bernardo GARCIA, Jr., et al., Petitioners, v. The SUPERIOR COURT of Santa Clara County, Respondent, The STATE of California, et al., Real Parties in Interest

Page 779

268 Cal.Rptr. 779

50 Cal.3d 728, 789 P.2d 960

Adrian Bernardo GARCIA, Jr., et al., Petitioners, v. The SUPERIOR COURT of Santa Clara County, Respondent, The STATE of California, et al., Real Parties in Interest.

No. S004813.

Supreme Court of California

May 3, 1990.

Lucas, C.J., concurred and filed opinion in which Eagleson, J., joined.

Mosk, J., dissented and filed opinion in which Broussard, J., and White, J., assigned, joined.

Garry, McTernan, Stender, Walsh & Schwartzbach, McTernan, Stender, Walsh & Schwartzbach, McTernan, Stender & Walsh, Cliff Weingus and Brian C. Walsh, San Francisco, for petitioners.

No appearance for respondent.

John K. Van de Kamp, Atty. Gen., Marvin Goldsmith, Asst. Atty. Gen., Tyler Pon and Wayman M. Robertson, Jr., Deputy Attys. Gen., for real parties in interest.

Gerrit Jan Buddingh, Manteca, and Jacqueline A. Campbell, Sacramento, as amici curiae, on behalf of real parties in interest.

PANELLI, Justice.

Napoleon Johnson, Jr., a convicted murderer on parole, kidnapped and killed Grace Morales. Plaintiffs, the victim's children, have sued the State of California (State) and Johnson's parole officer for wrongful death and violation of the Civil Rights Act of 1871. (42 U.S.C. § 1983.) In their first amended complaint, plaintiffs alleged that the parole officer, Michael Ybarra, knew that Johnson had threatened to kill Morales but nevertheless told her that the parolee would "not come looking" for her. The superior court sustained demurrers by Ybarra and the State without leave to amend. ¹ The Court of Appeal denied plaintiffs' petition for a writ of mandate. We affirm the Court of Appeal's holding that plaintiffs have not stated a cause of action and the dismissal of plaintiffs' purported cause of action under the Civil Rights Act. However, we hold that plaintiffs should have leave to amend to allege a cause of action for negligent misrepresentation involving a risk of physical harm.

I. FACTS

Our only task in reviewing a ruling on a demurrer is to determine whether the complaint states a cause of action. Accordingly, we assume that the complaint's properly pleaded material allegations are true and give the complaint a reasonable interpretation by reading it as a whole and all its parts in their context. (Phillips v. Desert Hospital Dist. (1989) 49 Cal.3d 699, 702, 263 Cal.Rptr. 119, 780 P.2d 349; Blank v. Kirwan (1985) 39 Cal.3d 311, 318, 216 Cal.Rptr. 718, 703 P.2d 58.) For these purposes we briefly summarize the complaint's pertinent allegations.

According to the first amended complaint, Johnson went to prison in 1974 for the murder of his wife. In August 1985, when he was released on parole, Ybarra became his parole agent. While on parole, Johnson "began a romantic relationship and cohabited with" Morales. In March 1986, when Morales moved out of Johnson's home, he "began a campaign of violence, intimidation and harassment directed at [her], which included attempted stabbings, repeated death threats at knife point, forced sexual relationships at knife point and false imprisonment."

When Ybarra learned that Johnson had threatened Morales's life, the parole officer met with Morales "in the presence of Johnson to inquire regarding the alleged threats." Johnson denied the threats, and Ybarra initially "concluded that the threats had not been made." But Johnson repeated his threats about a week later, telling Ybarra that "he was looking for [Morales]" and that "[he would] kill her if [he] found her." At this point, Ybarra concluded that Johnson was dangerous and placed him in 72 hours' custody for psychiatric observation. Upon Johnson's release, Ybarra "instructed [him] to engage in [further,] intensive treatment with the parole department's staff psychologist."

While Johnson was undergoing psychiatric treatment, an attorney who was representing Morales in a child custody proceeding attempted to obtain information from Ybarra about Johnson's prior murder conviction. The attorney told Ybarra "that she was applying for a temporary restraining order." Ybarra "refused to tell [the attorney] the nature of the crime, ² but advised her that the crime committed was not of the type which would indicate that Johnson represented a danger to [Morales's] children." However, Ybarra "was still of the opinion that Johnson was very jealous and potentially violent," and he told Morales' attorney that he would serve the temporary restraining order and arrest Johnson.

Later, however, Ybarra apparently changed his mind. At some point "he telephoned decedent in an attempt to reconcile the relationship [sic ] between Johnson and [Morales]." The subject of the telephone conversation was death threats. Morales told Ybarra what she feared: "Johnson knew where [she] was living" and "still intended to physically harm her." However, Ybarra told Morales: "I don't think you have anything to worry about. He's not going to come looking for you." ³ "Ybarra further assured [Morales] of her safety by emphasizing to her that Johnson had told him that he was still in love with [Morales], and repeatedly asking her if she really wanted to end the relationship."

Plaintiffs do not allege, however, that Morales believed Ybarra or actually and reasonably relied on his assurances. Instead, plaintiffs conclude their pleading with this general allegation of causation: "As a proximate result of the foregoing statements by Ybarra to decedent and the failure of psychologists and medical personnel to advise her of the danger Johnson represented to her, [Morales] failed to take steps to protect herself from Johnson." Subsequently, "Johnson kidnapped and shot [her]."

II. DISCUSSION

A. The State Law Claim

In their first amended complaint, plaintiffs have labelled their claim under state law simply one for "wrongful death." The Court of Appeal held that plaintiffs had not stated a cause of action because their allegations did not establish that Ybarra occupied a "special relationship" with either Johnson or Morales. (See Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 433-435, 131 Cal.Rptr. 14, 551 P.2d 334.) However, the court's search for a special relationship was unnecessary. A special relationship is a prerequisite for liability based on a defendant's failure to act. (See Tarasoff v. Regents of University of California, supra, 17 Cal.3d at p. 435, 131 Cal.Rptr. 14, 551 P.2d 334; see also Rest.2d, Torts (1965) § 315.) In contrast, plaintiffs in this case assert that Ybarra is liable because his allegedly negligent representations about Morales's physical safety induced her to be less careful. ⁴ Accordingly, it is unnecessary to look beyond the ordinary rules that determine when misrepresentations are actionable.

Negligent misrepresentations involving a risk of physical harm are actionable under the circumstances described in Restatement Second of Torts, supra, section 311. Under that section, "(1) One who negligently gives false information to another is subject to liability for physical harm caused by action taken by the other in reasonable reliance upon such information, where such harm results (a) to the other.... (2) Such negligence may consist of failure to exercise reasonable care (a) in ascertaining the accuracy of the information, or (b) in the manner in which it is communicated." California courts, in holding that plaintiffs have stated causes of action for negligent misrepresentations causing physical harm, have relied both on section 311 (Hanberry v. Hearst Corp. (1969) 276 Cal.App.2d 680, 683-688, 81 Cal.Rptr. 519) and on Civil Code section 1710, subdivision 2 (Barbara A. v. John G. (1983) 145 Cal.App.3d 369, 375-376, 193 Cal.Rptr. 422). ⁵ Scholars have also recognized the theory. (Prosser & Keeton on Torts (5th ed. 1984) ch. 5, § 33, at pp. 205, fn. 26, 205-208.)

Accordingly, we examine whether plaintiffs have stated a cause of action for negligent misrepresentation involving a risk of physical harm. First, plaintiffs must allege that Ybarra had a duty to exercise reasonable care in giving Morales information about Johnson. As Prosser has observed, "[i]n all cases of negligent misrepresentation ... the circumstances must be such that the defendant is under a duty to the plaintiff to exercise reasonable care in giving the information, and that reliance upon what he says, with resulting danger, is reasonably to be expected." (Prosser &amp Keeton on Torts, supra, ch. 5, § 33, at p. 207.) In this context, "duty" and "reasonable reliance" are closely connected. The likelihood that one's statements about personal safety will be taken seriously is a primary factor in determining whether one has a duty to exercise care in making such statements. As the Restatement puts it, such a duty "extends to any person who, in the course of an activity which is in furtherance of his own interests, undertakes to give information to another, and knows or should realize that the safety of the person or others may depend on the accuracy of the information." (Rest.2d Torts, supra, § 311, com. b, at p. 106.)

Misrepresentations involving a risk of physical harm constitute an exception to the ordinary rule that "liability [for negligent misrepresentations] is imposed only on those who supply information for business purposes in the course of a business or profession." (See 5 Witkin, Summary of Cal.Law, supra, Torts, § 721, at p. 820.) The ordinary rule is based on the principle that, in financial matters, a plaintiff "cannot expect the defendant to exercise the same degree of care [in social meetings] as he would when acting in a business or professional capacity." (Ibid.) The misrepresentations in this case, of course, were not made in a financial context. However, the duty to use reasonable care in giving information applies more broadly when physical safety is involved. In cases "[w]here ... the harm which results is bodily harm to the person, or physical harm to the property of the...