Golick v. State

Docket NumberA162137, A162138
Decision Date08 September 2022
Citation82 Cal.App.5th 1127,299 Cal.Rptr.3d 229
Parties Marc GOLICK, et al., Plaintiffs and Appellants, v. STATE of California, et al., Defendants and Respondents. Donald Loeber, et al, Plaintiffs and Appellants, v. State of California, et al., Defendants and Respondents.
CourtCalifornia Court of Appeals Court of Appeals

Foreman & Brasso, Ronald D. Foreman, San Francisco, for Plaintiffs and Appellants Marc Golick, et al.

Law Office of Scott Righthand, Scott D. Righthand and Brittany D. Rogers, San Francisco; Law Office of Gary Simms, Gary L. Simms for Plaintiffs and Appellants Donald Loeber, et al.

Allen, Glaessner, Hazelwood & Werth, Dale L. Allen, Jr., and John B. Robinson, San Francisco, for Defendants and Respondents County of Napa, Napa County Sheriff's Office, and Steve Lombardi.

TUCHER, P.J.

A troubled veteran murdered three women at the Yountville campus of the Veterans Home of California in March 2018. These consolidated appeals arise from ongoing litigation to establish civil liability for the victims’ deaths. Albert Wong was a former patient of a mental health service provider at the Veterans Home called The Pathway Home (Pathway), when he went to the facility armed and dressed for combat and took hostage three Pathway employees—Jennifer Golick, Christine Loeber, and Jennifer Gonzales Shushereba. After exchanging fire with a Napa County Sheriff's deputy, Wong shot and killed his hostages and then killed himself. Family members of the victims filed wrongful death actions naming multiple defendants, including the California Department of Veterans (CALVET) and related entities (the State defendants), and the County of Napa, the Napa County Sheriff's Office and Deputy Sheriff Steve Lombardi (the County defendants). These cases were consolidated in the trial court for purposes of pretrial proceedings.

The present appeals are from January 2021 judgments dismissing the County defendants from two of the wrongful death actions, filed respectively by the Loebers and the Golicks (collectively, plaintiffs). These judgments were entered after the trial court sustained demurrers to plaintiffs’ third amended complaints on the ground that they fail to allege facts establishing a duty of care upon which to predicate the County defendants’ alleged liability for negligence. We affirm.

BACKGROUND

Because judgments were entered at the demurrer stage, our factual summary is based on allegations in the complaints. We take as true properly pleaded material facts alleged in one or both operative pleadings, disregarding contentions, deductions, and conclusions of fact or law. ( Southern California Gas Leak Cases (2019) 7 Cal.5th 391, 395, 247 Cal.Rptr.3d 632, 441 P.3d 881 ; People ex rel. Gallegos v. Pacific Lumber Co. (2008) 158 Cal.App.4th 950, 957, 70 Cal.Rptr.3d 501.)

I. The Shooting Incident

Pathway is a private corporation that contracted with CALVET to provide mental health services at the Veterans Home. CALVET partnered with Pathway in order to effectuate its "mission to treat traumatized war veterans with PTSD and other mental health disorders." An agreement between CALVET and Pathway included a lease of space at the Veterans Home, where the State agreed to provide security services. During the relevant time, Christine Loeber was the executive director of Pathway and Dr. Jennifer Golick was Pathway's clinical director.

In early 2017, Albert Wong became a patient at Pathway, where he was treated for "psychological conditions following his military service in Afghanistan." In December of that year, Wong was hospitalized in a psychiatric ward after expressing "plans to carry out suicidal and homicidal intentions using a gun." The record does not disclose how long Wong was hospitalized, but he remained a patient of Pathway until the following February.

On February 13, 2018, Wong was terminated from the Pathway program "because he refused to comply with program policies and treatment plans and had brought weapons onto the campus." Wong expressed "extreme anger and frustration" at Pathway's clinical staff due to "numerous prior disagreements" and made specific threats to kill members of the staff by coming onto the campus and shooting them with a gun. These threats were directed at "one or more of the three women that [Wong] ultimately shot to death."

On the morning of March 9, 2018, Wong drove to the Veterans Home in a rental car and parked alongside the building where Pathway is located. Wong gained entry to the facility without having to pass through a gate, security check or any other physical barrier. He was "armed with a .308 caliber semi-automatic rifle loaded with a 20-round magazine and a loaded 12-guage double barrel shotgun." He wore a tactical belt, earplugs, over-the-ear protection, and eye protection, and he carried approximately 100 additional rounds of ammunition. "Wong was combat ready" and "was purposeful, deliberate, open and obvious in all of his actions."

Wong entered the building through a boiler room door that he had propped open the previous day. He went to a " ‘Group Room’ " on the second floor, where 10 to 15 people were attending a going away party for a Pathway staff member. At approximately 10:19 a.m., Wong entered the Group Room, brandishing his weapons. He ordered veterans to leave and then released some staff members, one-by-one. Ms. Loeber, Dr. Golick, and Dr. Gonzales Shushereba remained in the Group Room with Wong.

At 10:21 a.m., all available Napa County Sheriff deputies were dispatched to the Veterans Home pursuant to reports of an " ‘active shooter’ " and " ‘possible shooting.’ " Through radio updates, the dispatcher broadcast background information about Wong, reporting that he was armed with an assault rifle and a lot of ammunition, and had taken hostages. At approximately 10:26 a.m., Deputy Lombardi was the first officer to arrive at the scene. A person who had been released by Wong told Lombardi that Wong was holding three women and gave directions to the Group Room. Lombardi was also told that Wong had not fired his guns.

Lombardi reached the Group Room at approximately 10:31 a.m., partially pushed open a closed metal door and saw Wong with a rifle. Then Lombardi "let go of the door, let it close, backed up and took up a position covering the doorway." At approximately 10:32 a.m., Lombardi fired his .223 caliber rifle through the closed door into the Group Room. Wong fired back. During the shooting sequence, which lasted approximately 10 seconds, Lombardi fired 13 rounds and Wong fired 22 rounds.

Law enforcement officers had no further engagement with Wong. After the shooting stopped, Lombardi "held his position of cover" for approximately six minutes, until other officers arrived and relieved him. Hours later, at approximately 6:30 p.m., an FBI SWAT team entered the Group Room and found Wong and the three victims dead.

An investigation by the California Highway Patrol concluded that Wong killed his hostages after he exchanged fire with Lombardi. According to autopsy reports, none of the bullets that Lombardi fired hit Wong or any of Wong's victims. Acknowledging these facts, plaintiffs allege expressly that Wong shot his hostages after he exchanged gunfire with Lombardi. The Loebers allege further that Wong killed his hostages within "seconds" after he exchanged gunfire with Lombardi.

II. Negligence Claims Against the County Defendants

Plaintiffs allege that the County defendants are liable for the wrongful death of Wong's victims because these defendants failed to exercise reasonable care in preparing for and responding to the shooting incident at Pathway. Both complaints allege that Lombardi is personally liable for his own negligence and the other County defendants are vicariously liable for acts and omissions of their employees, including but not limited to Lombardi.

The Loebers divide their negligence claim into two causes of action alleging distinct theories of liability. First, they allege Lombardi failed to act reasonably when using deadly force. According to this theory, Lombardi breached his duty of care by firing the first shots of the day, and by firing into a closed door, thereby "precipitating" Wong to kill the hostages and himself. The Loebers’ second pleaded theory is that the County defendants had a special relationship with Christine Loeber, which gave rise to an affirmative duty to protect her from harm. This relationship was purportedly created by verbal assurances and offers of protection as well as a formal inter-agency agreement to provide security services at the Veterans Home. The Loebers allege the County defendants breached their affirmative duty to protect Ms. Loeber from harm in failing to prevent Wong from shooting Ms. Loeber.

The Golicks use essentially the same legal theories to support their negligence claim against the County defendants. They allege that these defendants owed Pathway employees a duty to exercise reasonable care to protect them from violent patients because the defendants had a special relationship with employees of Pathway. The Golicks allege this duty was breached because Lombardi failed to exercise reasonable care when using deadly force against Wong, and made unreasonable tactical decisions "sparking" Wong to kill the hostages and himself.

III. The Demurrer Rulings

The trial court sustained the County defendantsdemurrers to the third amended complaints, concluding plaintiffs fail to state facts establishing the duty element of their negligence claims. This ruling was based on three material findings.

First, the court found that plaintiffs failed to allege facts establishing a duty of care under authority requiring law enforcement officers to act reasonably when using deadly force. (See e.g. Hayes v. County of San Diego (2013) 57 Cal.4th 622, 160 Cal.Rptr.3d 684, 305 P.3d 252 ( Hayes ).) This finding is based on the undisputed fact that it was Wong, not Deputy Lombardi, who shot and killed the victims and...

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1 books & journal articles
  • Case Summaries
    • United States
    • California Lawyers Association Public Law Journal (CLA) No. 45-4, August 2023
    • Invalid date
    ...conflict with religious beliefs, including the criticism of religions.CIVIL RIGHTS / POLICE LIABILITY Golick v. State of California, 82 Cal.App.5th 1127, filed Sept. 8, 2022Family members of murder victims failed to allege facts showing that the duty to act reasonably when using deadly forc......

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