Gund v. Cnty. of Trinity, C076828

• Decision Date: 04 June 2018
• Docket Number: C076828
• Court: California Court of Appeals Court of Appeals
• Parties: James GUND et al., Plaintiffs and Appellants, v. COUNTY OF TRINITY et al., Defendants and Respondents.

24 Cal.App.5th 185

234 Cal.Rptr.3d 187

James GUND et al., Plaintiffs and Appellants,

v.COUNTY OF TRINITY et al., Defendants and Respondents.

C076828

Court of Appeal, Third District, California.

Filed June 4, 2018

Zwerdling, Bragg & Mainzer, Benjamin H. Mainzer, Eureka, for Plaintiffs and Appellants.

Porter Scott, John R. Whitefleet, Sacramento, for Defendants and Respondents.

HULL, J.

This lawsuit alleges that a Trinity County deputy sheriff phoned citizens James and Norma Gund—who do not work for the County—and asked them to go check on a neighbor who had called 911 for help likely related to inclement weather. The Gunds unwittingly walked into a murder scene and were savagely attacked by the man who apparently had just murdered the neighbor and her boyfriend. The assailant fled.

The Gunds sued the County of Trinity and the deputy—Corporal Ron Whitman—for negligence and misrepresentation, alleging defendants created a special relationship with the Gunds and owed them a duty of care, which defendants breached by representing that the 911 call was likely weather-related and "probably no big deal" and by withholding information known to defendants suggesting a crime in progress—i.e., that the caller had whispered "help me," that the California Highway Patrol (CHP) dispatcher refrained from calling back when the call was disconnected out of concern the caller was in danger, and that no one answered when the county dispatcher called.

Defendants filed a motion for summary judgment on the ground that plaintiffs’ exclusive remedy was workers’ compensation, because Labor Code section 3366 provides that any person "engaged in the performance of active law enforcement service as part of the posse comitatus or power of the county, and each person ... engaged in assisting any peace officer in active law enforcement service at the request of such peace officer , is deemed to be an employee of the public entity that he or she is serving or assisting in the enforcement of the law , and is entitled to receive compensation from the public entity in accordance with the provisions of this division [workers’ compensation]. ..." (Italics added; unless otherwise set forth, statutory references that follow are to the Labor Code.)

Defendants’ motion did not acknowledge or address plaintiffs’ factual allegations that the deputy misled them about the nature of the activity, minimized the risk, lulled them into a false sense of security, and that plaintiffs relied on the deputy’s misrepresentations. Absent section 3366, these allegations potentially support imposing tort liability against defendants. (E.g., Wallace v. City of Los Angeles (1993) 12 Cal.App.4th 1385, 1401-1402, 16 Cal.Rptr.2d 113 ( Wallace ).)

Plaintiffs’ opposition submitted evidence supporting their factual allegations and argued section 3366 is inapplicable in these circumstances.

Defendants’ reply denied that the deputy misrepresented facts or misled plaintiffs (thus displaying factual disputes) but claimed any factual disputes were immaterial because responding to a 911 call is a law enforcement activity. The trial court adopted the defense theory and entered summary judgment.

On appeal, plaintiffs contend section 3366 is inapplicable because they were not engaged in assisting in active law enforcement. We grant plaintiffs’ request that we take judicial notice of a Law Revision Commission Report concerning section 3366.

We conclude section 3366 applies to this case, because responding to a 911 call for help of an uncertain nature is active law enforcement, regardless of the deputy’s misrepresentations. "Active law enforcement" under section 3366 means confronting the risks of dealing with the commission of crime or breach of the peace for the protection of the public. Any 911 call carries such risk, but particularly a 911 call for help of an uncertain nature.

Since we conclude section 3366 bars plaintiffs’ lawsuit on the ground they were assisting in active law enforcement, we need not address alternate defense theories that the lawsuit is barred because (1) plaintiffs were employees because they assisted upon command (posse comitatus); (2) County Resolution No. 163-87 deems volunteers to be employees if they provide "service" to the county; or (3) defendants’ new theory on appeal that the County and Deputy Sheriff have governmental immunity from tort liability for misrepresentation ( Gov. Code, §§ 818.8, 822.2 ).

We affirm the judgment.

FACTS AND PROCEEDINGS

The operative pleading is the first amended complaint, which asserted claims for vicarious liability for public employee’s act or omission ( Gov. Code, §§ 815.2, subd. (a), 820, subd. (a) ) and misrepresentation with malice ( Gov. Code, § 822.2 ). The Gunds also filed in federal court a lawsuit against Trinity County and Whitman, alleging violation of civil rights ( 42 U.S.C. § 1983 ), which is stayed pending resolution of this case. ( Gund v. County of Trinity (9th Cir. 2015) 624 Fed.Appx. 519 [Ninth Circuit’s unpublished rejection of defendants’ appeal of district court’s denial of motion to dismiss]; Gund v. County of Trinity , 2013 WL 3942030; 2013 U.S. Dist. LEXIS 106823 [unpublished district court opinion denying motion to dismiss § 1983 claim and staying case pending resolution of state court litigation].)

The pleading in state court alleged that, on March 13, 2011, at 3:28 p.m., CHP received a 911 call originating in the vicinity of the Kettenpom airstrip in Trinity County. The female caller, K.C., whispered, "help me" and said she lived at the end of the Kettenpom airstrip. The CHP dispatcher conveyed this information, and an opinion that the caller was attempting to avoid being overheard, to the Trinity County Sheriff’s Office. The county dispatcher tried calling the 911 caller, but there was no answer. The county dispatcher passed the information to Corporal Whitman.

Corporal Whitman telephoned plaintiffs, who lived near the airstrip, and asked them to go check on K. Whitman told plaintiffs that K. had phoned 911 call for help likely related to the inclement weather. He did not tell plaintiffs that the caller had been whispering or that the CHP dispatcher thought it was because the caller did not want to be overheard, but instead told plaintiffs it was "probably no big deal." Plaintiffs alleged Whitman misled them by asserting without basis that the call was likely related to inclement weather, and by concealing information suggesting a crime in progress. Plaintiffs relied on Whitman’s representations and drove to K.’s home, feeling no concern for their own safety. Once there, they were brutally attacked by a man who apparently had just committed murder.

Defendants filed a summary judgment motion on the ground that workers’ compensation was plaintiffs’ exclusive remedy under section 3366 (persons engaged in active law enforcement are deemed to be employees). Defendants purported to accept plaintiffs’ "version of events" for purposes of the motion yet ignored the significant factual allegations of the complaint that plaintiffs were misled into believing they were just checking on a weather-related matter. Omitting these critical allegations, defendants’ separate statement of undisputed facts merely stated that Whitman phoned Mrs. Gund, identified himself and said a "[K.]" had phoned 911 and said, "help me;" that Mrs. Gund "claims" Whitman said he was "hours away" and asked her go to K.’s house to see if she was okay and told Mrs. Gund not to go without her husband; that Mr. Gund understood he was checking on K.’s welfare; that they went together and were attacked and injured by a third party.

Defendants alternatively sought summary judgment on the ground that section 3363.5 authorizes counties to adopt resolutions deeming public agency volunteers to be employees, and Trinity County on December 1, 1987, adopted Resolution No. 163-87, declaring that any person who performs various "services" for the county, including law enforcement, voluntarily or without pay, is deemed to be a county employee for workers’ compensation purposes.

The motion’s omission of the complaint’s factual allegations about plaintiffs being misled is particularly odd, given that defendants’ demurrer was overruled (by a different, assigned judge) on the ground that a factual issue existed as to whether a person asked to check on a neighbor under these circumstances is engaged in assisting in active law enforcement, and the case may depend "not only on what request was made but how it was made."

Plaintiffs nevertheless opposed the summary judgment motion on the merits. The opposition acknowledged that most of defendants’ facts were undisputed but filled in the gaps with their own evidence (mostly deposition testimony) to support their own separate statement of undisputed facts: That Whitman knew but failed to disclose that the 911 caller had whispered for help, that the CHP dispatcher was concerned the caller was trying to summon help secretly, and that there was no answer when the county dispatcher tried to call. Plaintiffs relied on Whitman’s representations—that the neighbor’s call was likely related to inclement weather and was "probably no big deal"—that lulled plaintiffs into a false sense of security.

Plaintiffs’ evidence showed: Whitman did not know the Gunds personally and was not aware of them ever assisting law enforcement in the past, but he knew they lived near the airstrip. According to Mrs. Gund, Whitman phoned and asked if she knew someone named K. who also lived near the airstrip, and Mrs. Gund said yes. Whitman said K. had called 911 for help. Whitman said her call was likely related to inclement weather and was "probably no big deal." He asked if K.’s boyfriend ever seemed violent, and Mrs. Gund said no, he "seems real mellow." Whitman did not disclose that the 911 caller had been whispering, or that the call had been interrupted, or that the CHP dispatcher was concerned the caller whispered so as not to be overheard, or that the...