Hernandez v. City of Pomona

• Citation: 49 Cal.App.4th 1492,57 Cal.Rptr.2d 406
• Decision Date: 08 October 1996
• Docket Number: No. B087779,B087779
• Parties: , 96 Cal. Daily Op. Serv. 7530, 96 Daily Journal D.A.R. 12,307 Maria HERNANDEZ, Plaintiff and Appellant, v. CITY OF POMONA et al., Defendants and Respondents.
• Court: California Court of Appeals

Page 406

57 Cal.Rptr.2d 406

49 Cal.App.4th 1492, 96 Cal. Daily Op. Serv. 7530,

96 Daily Journal D.A.R. 12,307

Maria HERNANDEZ, Plaintiff and Appellant, v. CITY OF POMONA et al., Defendants and Respondents.

No. B087779.

Court of Appeal, Second District, Division 4, California.

Oct. 8, 1996.

[49 Cal.App.4th 1495] Lang, Hanigan & Carvalho and Timothy R. Hanigan, Woodland Hills, for Plaintiff and Appellant.

Franscell, Strickland, Roberts & Lawrence, Martin J. De Vries, Riverside, and Chase, Rotchford, Drukker & Bogust and Clay Robbins III, Los Angeles, for Defendants and Respondents.

INTRODUCTION

CHARLES S. VOGEL, Presiding Justice.

Plaintiff and appellant Maria Hernandez appeals from the dismissal ¹ of her complaint for wrongful death after demurrers were sustained without leave to amend on behalf of defendants and respondents, the County of Los Angeles, the City of Pomona, and Officers Gregg Guenther and Raul Camargo (collectively the City of Pomona defendants). ² We affirm the trial court's ruling that, under the circumstances alleged by plaintiff, respondents owed no duty to protect plaintiff's deceased son from retaliation by fellow gang members against whom he provided incriminating evidence.

[49 Cal.App.4th 1496]

FACTUAL AND PROCEDURAL BACKGROUND

The allegations as stated in the operative second amended complaint are as follows. In the spring of 1991, one Mildred Damper was fatally shot. In the course of investigating the murder, the City of Pomona determined that members of the Happy Town gang may have been involved. Plaintiff's 16-year-old son, Moises Torrez, was affiliated with the Happy Town gang.

Detectives Gregg Guenther and Raul Camargo of the Pomona Police Department went to plaintiff's home several times to speak to Torrez about the murder. Torrez was later taken in by the police for questioning. At that time, both plaintiff and Torrez told the police officers that Torrez did not want to be questioned about the murder because he feared retaliation by members of the Happy Town gang. The detectives allegedly assured plaintiff and Torrez that they were only going to question Torrez, and that no harm would come to him as a result of being questioned. ³ Plaintiff alleged that it was well known by defendants that gang members retaliate against witnesses, especially fellow gang members, who testify against other gang members. However, as a result of pressure from the police officers, Torrez gave them a statement implicating fellow gang member Enrique Hernandez in the murder of Mildred Damper.

Torrez was compelled by subpoena to appear at trial on October 12, 1992. When called to testify, he refused to respond to questions and stonewalled the prosecution's examination by asserting his United States Constitution Fifth Amendment privilege. The prosecutor, Deputy District Attorney Dennis Ferris, read to the jury the statement previously given by Torrez to the police. Plaintiff alleged that in doing so, Ferris knew that he was endangering Torrez's life by implicating Enrique Hernandez in the murder of Mildred Damper, thus placing Torrez in harm's way.

One week later, Torrez was killed by fellow gang members for having implicated Enrique Hernandez in the murder.

Thereafter, plaintiff filed the present action, alleging causes of action for wrongful death and deprivation of civil rights pursuant to 42 United States Code section 1983. After defendants demurred to the complaint, plaintiff filed a first amended complaint, alleging only a cause of action for wrongful death.

[49 Cal.App.4th 1497] The City of Pomona and the County of Los Angeles then filed their respective demurrers to the first amended complaint. Plaintiff filed opposition only to the demurrer of the City of Pomona defendants. Hearing on the demurrer took place on March 8, 1994, after which the trial court sustained it with leave to amend. Notice was filed March 14, 1994.

The plaintiff filed a second amended complaint on April 7, 1994, again attempting to state a cause of action for wrongful death against the City of Pomona defendants, the County of Los Angeles, and Deputy District Attorney Ferris.

Hearing on the demurrer filed by the County of Los Angeles to the first amended complaint, which had not been placed off calendar, ⁴ occurred on April 15, 1994. No appearance was made on behalf of the plaintiff. The court sustained the demurrer without leave to amend. Notice was filed on April 28, 1994.

The City of Pomona defendants then filed a demurrer to the second amended complaint, to which plaintiff filed opposition. After a brief hearing on the matter, the demurrer was sustained without leave to amend. An order of dismissal as against the City of Pomona defendants was filed on August 16, 1994, and this appeal ensued.

STANDARD OF REVIEW

A demurrer tests the legal sufficiency of the complaint, and the granting of leave to amend involves the trial court's discretion. Therefore, an appellate court employs two separate standards of review on appeal. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318, 216 Cal.Rptr. 718, 703 P.2d 58; Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 879, 6 Cal.Rptr.2d 151.) First, the complaint is reviewed de novo to determine whether it contains sufficient facts to state a cause of action. (Hill v. Miller (1966) 64 Cal.2d 757, 759, 51 Cal.Rptr. 689, 415 P.2d 33.) In doing so, we accept as true the properly pleaded material factual allegations of the complaint, together with facts that may be properly judicially noticed. Reversible error exists only if facts were alleged showing entitlement to relief under any possible legal theory. (Crowley v. Katleman (1994) 8 Cal.4th 666, 672, 34 Cal.Rptr.2d 386, 881 P.2d 1083; Blank v. Kirwan, supra, 39 Cal.3d at p. 318, 216 Cal.Rptr. 718, 703 P.2d 58; Platt v. Coldwell Banker Residential Real Estate Services (1990) 217 Cal.App.3d 1439, 1444, 266 Cal.Rptr. 601.)

Second, where the demurrer is sustained without leave to amend, reviewing courts determine whether the trial court abused its discretion in doing so. [49 Cal.App.4th 1498] (Kilgore v. Younger (1982) 30 Cal.3d 770, 781, 180 Cal.Rptr. 657, 640 P.2d 793; Cooper v. Leslie Salt Co. (1969) 70 Cal.2d 627, 636, 75 Cal.Rptr. 766, 451 P.2d 406.) On review of the trial court's refusal to grant leave to amend, we will only reverse for abuse of discretion if we determine there is a reasonable possibility the pleading can be cured by amendment. Otherwise, the trial court's decision will be affirmed for lack of abuse. (Hendy v. Losse (1991) 54 Cal.3d 723, 742, 1 Cal.Rptr.2d 543, 819 P.2d 1; First Nationwide Savings v. Perry (1992) 11 Cal.App.4th 1657, 1662, 15 Cal.Rptr.2d 173.)

DISCUSSION

The heart of plaintiff's case is summarized in her pleading: "Defendants ... negligently and/or intentionally breached [their] duties by placing the Deceased in a position of great danger and not offering and/or providing protection to him." The plaintiff contends that the defendants had a duty to protect her son from the risk of retaliation by his fellow gang members which arose when the incriminatory statement given by him was used at trial. In determining whether such a duty exists, as many courts have done before us, "we bear in mind that legal duties are not discoverable facts of nature, but merely conclusory expressions that, in cases of a particular type, liability should be imposed for damage done." (Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 434, 131 Cal.Rptr. 14, 551 P.2d 334.) " 'The assertion that liability must ... be denied because defendant bears no "duty" to plaintiff "begs the essential question--whether the plaintiff's interests are entitled to legal protection against the defendant's conduct.... [Duty] is not sacrosanct in itself, but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection." (Prosser, Law of Torts [3d ed. 1964] at pp. 332-333.)' " (Tarasoff v. Regents of University of California, supra, 17 Cal.3d at p. 434, 131 Cal.Rptr. 14, 551 P.2d 334, quoting Dillon v. Legg (1968) 68 Cal.2d 728, 734, 69 Cal.Rptr. 72, 441 P.2d 912.)

"In considering whether one owes another a duty of care, several factors must be weighed including among others: '[T]he foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved. [Citations.]' (Rowland v. Christian (1968) 69 Cal.2d 108, 113, 70 Cal.Rptr. 97, 443 P.2d 561.... When public agencies are involved, additional elements include "the extent of [the agency's] powers, the role imposed [49 Cal.App.4th 1499] upon it by law and the limitations imposed upon it by budget; ..." (Raymond v. Paradise Unified School Dist.

(1963) 218 Cal.App.2d 1, 8 [31 Cal.Rptr. 847] ...; see Smith v. Alameda County Social Services Agency [1979] 90 Cal.App.3d 929 [153 Cal.Rptr. 712] ...) Thompson v. County of Alameda (1980) 27 Cal.3d 741, 750 [167 Cal.Rptr. 70, 614 P.2d 728]....)" (Peterson v. San Francisco Community College Dist. (1984) 36 Cal.3d 799, 806, 205 Cal.Rptr. 842, 685 P.2d 1193.)

It is by now well recognized that "[a]s a general rule, one owes no duty to control the conduct of another, nor to warn those endangered by such conduct. Such a duty may arise, however, if '(a) a special relationship exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct, or (b) a special relation exists between the actor and the other which gives the other a right to protection.' (...