Huber v. City of Stockton

• Decision Date: 25 September 2019
• Docket Number: C086700
• Court: California Court of Appeals Court of Appeals
• Parties: KELLY HUBER, Plaintiff and Appellant, v. CITY OF STOCKTON et al., Defendants and Respondents.

KELLY HUBER, Plaintiff and Appellant, v. CITY OF STOCKTON et al., Defendants and Respondents.

C086700

COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin)

September 25, 2019

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. STKCVUPI20164450)

Plaintiff Kelly Huber appeals from a judgment of dismissal after the demurrer of the City of Stockton (the City) to her second amended complaint was sustained without leave to amend. Huber, a bank branch manager, was taken hostage and shot in the leg by robbers as they were attempting to flee from police. She alleges that responding officers violated police department policies by confronting the robbers with guns drawn, rather than remaining out of sight until they were clear of bystanders, thereby escalating a volatile situation and increasing the likelihood that hostages would be taken. She contends the trial court erred in sustaining the City's demurrer because the second amended complaint alleges facts sufficient to state causes of action for assault and battery, intentional infliction of emotional distress, and negligence. We disagree, and conclude the second amended complaint fails to state a cause of action upon which relief may be granted. Because Huber does not address the trial court's denial of leave to amend in her opening brief, and does not show that she could amend the complaint to cure the defects in her reply, we conclude the judgment of dismissal must be affirmed.

I. BACKGROUND¹

Huber was the manager of a Bank of the West branch in Stockton. The bank was a frequent target for robbers, known to members of the business and law enforcement communities as the "Rob and Go." As relevant here, the bank was robbed twice, by the same robbers, over a six month period.

The first robbery occurred on January 31, 2014. On this occasion, two men—Gilbert Renteria Jr. and Alex Gregory Martinez—arrived on foot, robbed the bank, and then demanded the keys to a car from a bank employee. Renteria and Martinez left the bank without taking or threatening to take hostages, but were unable to immediately locate the employee's car. Following a brief search, they found the car and made their escape. Although police had reason to suspect that Renteria had been involved in the robbery, he was neither questioned nor arrested.

The second robbery, with which we are primarily concerned, occurred on July 16, 2014. This time, Renteria and Martinez were joined by a third man, Jaime Ramos (together, the robbers). As before, the robbers approached the bank on foot, committed the robbery, and then demanded the keys to an employee's car. On this occasion,however, a silent alarm was activated upon the robbers' arrival, notifying police of the robbery in progress.

Huber recognized Renteria and Martinez from the earlier robbery and offered the keys to her car. To ensure that the car would be found quickly, the robbers demanded that Huber accompany them to the parking lot to point it out. The robbers and Huber left the bank and headed towards the parking lot.

In the meantime, three police cars had arrived in the parking lot with flashing lights announcing their presence. As the robbers and Huber emerged from the bank, they were met by officers with guns drawn "who yelled threatening remarks and forced all three robbers back into the bank." The robbers grabbed Huber and "used her as a human shield as they retreated into the bank." The robbers then took two more hostages—Stephanie and Misty —and headed for the exit a second time, with all three hostages at gunpoint.

The group made their way across the parking lot and got into Huber's car. Huber was ordered to drive. Within two minutes of leaving the bank, Huber was shot in the leg by Ramos, rendering her incapable of driving. She was then forced out of the car by the robbers. Renteria took the wheel and led police on a high-speed chase through city and residential streets in Stockton and Lodi.

Numerous police cars joined the hourlong pursuit. Officers eventually opened fire on the getaway car, which still contained hostages Stephanie and Misty. As the shooting intensified, Stephanie, sensing imminent peril, leapt from the moving car to safety. Moments later, police disabled the car, and thirty-two officers fired more than 600 shots, killing two of the robbers and the remaining hostage, Misty. All of the bullets found in Misty's body were fired by police.

Huber filed the operative second amended complaint on May 26, 2017. The second amended complaint alleges that responding officers violated police department policies and procedures for responding to robbery alarms. These policies were allegedlymemorialized in a Model Policy for a Bank Alarm Response promulgated by the International Association of Chiefs of Police (IACP) National Law Enforcement Policy Center and the Stockton Police Department's General Order for Robbery Alarms, both of which are excerpted in the second amended complaint. The model policy counsels that responding officers should not use sirens within hearing range of the reported robbery, and should take a position outside that "provides good observation without being easily visible to those inside." The general order directs responding officers to discontinue the use of red lights and sirens when close to the scene of a robbery, but leaves the exact time to discontinue such use to the responding officer, "taking into consideration the fact a hostage situation could be initiated by police response being recognized by the robbers." The second amended complaint alleges that responding officers violated these policies by arriving with lights on, taking positions outside the bank in view of the robbers, and confronting them with guns drawn, rather than remaining out of sight until they were clear of any potential hostages. According to the second amended complaint: "This failure to follow established general orders and protocol caused the robbers to take hostages and allowed the robbers to use hostages to become human shields in an effort to escape. Had the police followed general orders and proper protocol and remained inconspicuous until the robbers were away from the innocent victims, none of the victims would have been taken hostage and made to suffer the physical, emotional and permanent harms sustained as alleged more particularly below. In fact, the robbers would have driven away without any hostages as they had in the first robbery." The second amended complaint asserts causes of action for assault and battery, intentional infliction of emotional distress, and negligence.²

The City demurred to the second amended complaint, arguing that Huber failed to state a cause of action for which relief can be granted. Huber opposed the motion, arguing the second amended complaint adequately stated a cause of action, or could be amended to do so. The trial court sustained the demurrer without leave to amend. This appeal timely followed.

II. DISCUSSION

A. Standard of Review

On appeal from a judgment based on an order sustaining a demurrer, we assume all the facts alleged in the complaint are true. (Pineda v. Williams-Sonoma Stores, Inc. (2011) 51 Cal.4th 524, 528.) We accept all properly pleaded material facts but not contentions, deductions, or conclusions of fact or law. (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6.) We determine de novo whether the complaint alleges facts sufficient to state a cause of action under any legal theory. (Committee for Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 42.) We read the complaint as a whole and its parts in their context to give the complaint a reasonable interpretation. (Evans v. City of Berkeley, supra, at p. 6.)

When a trial court has sustained a demurrer without leave to amend, "we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm." (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) "The burden of proving such reasonable possibility is squarely on the plaintiff." (Ibid.)

B. Assault and Battery

Huber argues the second amended complaint adequately states causes of action for assault and battery arising from the initial confrontation between responding officers and the robbers. Specifically, she argues that the elements of assault and battery are met by the following allegations: "As the robbers left the bank with only Plaintiff, they were met by defendant Stockton police officers with guns drawn who yelled threatening remarks and forced all three robbers back into the bank. In response to the verbal and physical threats of the defendants, the robbers grabbed Plaintiff and used her as a human shield as they retreated into the bank where other bank customers and employees safely remained until the robbers were forced back into the bank." (Italics added). We are not persuaded that these allegations satisfy the elements of either cause of action. We begin with Huber's assault cause of action, and then consider the battery cause of action.

1. Assault

" 'Generally speaking, an assault is a demonstration of an unlawful intent by one person to inflict immediate injury on the person of another then present.' [Citation.] A civil action for assault is based upon an invasion of the right of a person to live without being put in fear of personal harm." (Lowry v. Standard Oil Co. (1944) 63 Cal.App.2d 1, 6-7 (Lowry) [pointing a gun at another constitutes assault unless the plaintiff knows the gun is, in fact, unloaded].) "The essential elements of a cause of action for assault are: (1) defendant acted...