Gray v. State of California, H002979

Citation207 Cal.App.3d 151,254 Cal.Rptr. 581
Decision Date13 January 1989
Docket NumberNo. H002979,H002979
CourtCalifornia Court of Appeals
PartiesDeanna M. GRAY, et al., Plaintiffs and Appellants, v. SAN FRANCISCO GUN EXCHANGE, INC. et al., Defendants and Respondents. *

E. Elizabeth Summers, Oakland, Craig Needham, Susan L. Zwick, Needham, Hull & Dykman, San Francisco, Phillip A. Passafuime, Dawson, Rose & Passafuime, Scotts Valley, for plaintiffs, Deanna M. Gray, et al.

John K. Van de Kamp, Marvin Goldsmith, Tyler B. Pon, Michael D. Whelan, Office of the Atty. Gen., San Francisco, Cal., for defendants, State of Cal.

ELIA, Associate Justice.

Plaintiffs, Deanna Gray, her son, and the estate of her husband, Michael Gray, sued the State of California (and others not relevant to this appeal) for the wrongful death of Michael Gray. The trial court granted summary judgment for the State. The plaintiffs appeal.

FACTUAL AND PROCEDURAL BACKGROUND

On January 3, 1983, Santa Cruz Deputy Sheriff Michael Gray was shot by Leslie Grover Wyman. Gray died as a result of the injuries inflicted by the shooting.

The 9-millimeter "Star" handgun which Wyman used to kill Gray was purchased by Wyman at the San Francisco Gun Exchange, Inc. The purchase transaction began on June 22, 1982 when Wyman filled out a form titled "Dealer's Record of Sale of Revolver or Pistol." This form contained certain pertinent information. First, it stated that "Falsification of information on this form is a misdemeanor." Second, it asked four questions of the purchaser. These were (1) whether the purchaser had ever been convicted of a felony; (2) whether the purchaser was addicted to the use of narcotics; (3) whether the purchaser was a patient at a mental hospital or on leave of absence from a mental hospital; and (4) whether the purchaser had ever been adjudicated by a court to be a danger to others as a result of a mental disorder or mental illness. Finally, the form asked for certain identifying information such as Wyman's place of birth and driver's license number. Wyman answered "no" to each of the four questions, completed the rest of the form and signed it. However, Wyman did not receive the handgun at this time.

The form was forwarded by the San Francisco Gun Exchange, Inc. to the California Department of Justice. The Department of Justice was to investigate Wyman's eligibility to purchase the handgun. If the Department of Justice determines that an individual is ineligible to purchase a handgun, it notifies the gun dealer.

The Department of Justice checked Wyman's California state criminal record to determine whether Wyman was eligible to purchase the handgun. The Department did not discover any information indicating that Wyman was ineligible.

However, on December 5, 1973, the Board of Commissioners of Mentally Ill in South Dakota had found Wyman to be a "mentally ill" person and committed him to the South Dakota Hospital for the Mentally Ill in Yankton, South Dakota. This information was not discovered by the California Department of Justice because the Department only searched Wyman's California criminal record.

On or about July 8, 1982, the San Francisco Gun Exchange, Inc. delivered the handgun to Wyman. Approximately six months later, Wyman used the gun to shoot Deputy Sheriff Gray.

Plaintiffs filed this action for wrongful death in the Superior Court for the County of Santa Cruz. Plaintiffs argue that the Department of Justice had a mandatory duty under Penal Code section 12076 to conduct an investigation which was reasonably designed to reveal whether an individual was eligible to purchase a handgun. Plaintiffs claim that the Department's investigation of Wyman's California state criminal record fell short of this standard because it did not reveal Wyman's commitment for mental illness in South Dakota.

The Department of Justice filed a motion for summary judgment raising five reasons why there were no triable issues of fact. (Code Civ.Proc. § 437c.) Those were (1) the Department did not owe plaintiffs a duty; (2) the Department did not breach a duty; (3) any breach of duty was not the In reviewing an order entered granting summary judgment, we must strictly construe the affidavits of the moving party and resolve all disputed factual issues in favor of the opposing party. (Wynner v. Buxton (1979) 97 Cal.App.3d 166, 158 Cal.Rptr. 587.) However, we must also independently determine the construction and effect of the facts as a matter of law. (Zeilman v. County of Kern (1985) 168 Cal.App.3d 1174, 214 Cal.Rptr. 746.) With these standards in mind, we next turn to the issues presented.

                proximate cause of Gray's death;  (4) the Department was immune from liability and (5) plaintiffs' action was barred by the "Fireman's Rule."   The trial court granted the Department's motion on all five grounds and entered judgment against the plaintiffs.  Plaintiffs bring this appeal
                
DISCUSSION

The tort liability of public entities is governed exclusively by statute. (Gov.Code § 815; State of California v. Superior Court (1984) 150 Cal.App.3d 848, 854, 197 Cal.Rptr. 914.) Government Code section 815.6, relied upon by plaintiffs, is one statute which creates a basis for imposing liability upon a public entity. It provides: "Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty."

Plaintiffs must meet a three-prong test to recover under Government Code section 815.6. First, plaintiffs must establish that Penal Code section 12076 imposes a mandatory, and not discretionary, duty. (Nunn v. State of California (1984) 35 Cal.3d 616, 624, 200 Cal.Rptr. 440, 677 P.2d 846; Morris v. County of Marin (1977) 18 Cal.3d 901, 907-909, 136 Cal.Rptr. 251, 559 P.2d 606.) Second, plaintiffs must prove that section 12076 is designed to guard against the type of injury suffered by plaintiffs. (Ibarra v. California Coastal Com. (1986) 182 Cal.App.3d 687, 692-693, 227 Cal.Rptr. 371; Shelton v. City of Westminster (1982) 138 Cal.App.3d 610, 619-620, 188 Cal.Rptr. 205.) Finally, plaintiffs must demonstrate that the breach of the mandatory duty proximately caused their injuries. (State of California v. Superior Court (1984) 150 Cal.App.3d 848, 854, 197 Cal.Rptr. 914; Whitcombe v. County of Yolo (1977) 73 Cal.App.3d 698, 707-708, 141 Cal.Rptr. 189.)

Plaintiffs argue that section 12076 of the California Penal Code imposes a mandatory duty upon the Department of Justice. Section 12076 states in pertinent part: "If the Department determines that the purchaser is a person described in Section 12021 of this code or Section 8100 or 8103 of the Welfare and Institutions Code, it shall immediately notify the dealer of that fact." 1

Plaintiffs contend that Penal Code section 12076 required the Department to conduct an investigation reasonably designed to reveal whether a person is eligible to possess a handgun. Plaintiffs claim the Department breached this mandatory duty by limiting its investigation to Wyman's California criminal record.

We conclude that Penal Code section 12076 does not impose a mandatory duty upon the Department of Justice. Section 12076 permits the Department to exercise its discretion to determine how to investigate potential handgun purchasers. There are three reasons for our conclusion.

The first reason is based upon the plain language of Penal Code section 12076. The express wording of the statute contradicts plaintiffs' claim that the Department of Justice has a mandatory duty to conduct a particular type of investigation into a person's eligibility to possess a handgun. Section 12076 does not describe the type of investigation required. Section 12076 merely states that the gun dealer must be notified if the Department determines the purchaser fits within one of the excluded categories. The statute says nothing about how the determination should be made. The failure of the Legislature to specify what investigation is required suggests that this is a matter left to the discretion of the Department of Justice. If the Legislature had intended the Department to follow a certain procedure when investigating the background of handgun purchasers, it could have so stated.

A second reason is based upon the difference between the wording of Penal Code section 12076 and the wording of statutes which courts have held to impose a mandatory duty. In cases where a mandatory duty has been imposed, the duty was phrased in explicit and forceful language. For example, in Morris v. County of Marin (1977) 18 Cal.3d 901, 136 Cal.Rptr. 251, 559 P.2d 606, the court determined that section 3800 of the Labor Code imposed a mandatory duty upon counties to ensure that applicants for building permits carry workers' compensation insurance. Section 3800 states in relevant part that "every county ... shall require that each applicant ... have on file or file ... a certificate of insurance...." (Italics added.) The court in Morris emphasized that the word "shall" demonstrated that the Legislature intended the statutory requirements to be obligatory rather than permissive. (Morris v. County of Marin, supra, 18 Cal.3d at 907, 136 Cal.Rptr. 251, 559 P.2d 606.)

Similarly, in Sullivan v. County of Los Angeles (1974) 12 Cal.3d 710, 117 Cal.Rptr. 241, 527 P.2d 865, the court found that Penal Code section 1384 imposed upon a county a mandatory duty to release a prisoner once a criminal action was dismissed. Penal Code section 1384 provided that "[i]f the court directs the action to be dismissed, the defendant must, if in custody, be discharged therefrom...." (Italics added.) Again, the court was persuaded by the strong language set forth in the statute. (Sullivan v. County of...

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