K.G. v. S.B.

• Decision Date: 16 March 2020
• Docket Number: D075872
• Citation: 46 Cal.App.5th 625,259 Cal.Rptr.3d 818
• Court: California Court of Appeals Court of Appeals
• Parties: K.G., a Minor, etc., Plaintiff and Appellant, v. S.B., Defendant and Respondent.

46 Cal.App.5th 625

259 Cal.Rptr.3d 818

K.G., a Minor, etc., Plaintiff and Appellant,

v.S.B., Defendant and Respondent.

D075872

Court of Appeal, Fourth District, Division 1, California.

Filed March 16, 2020

Romancore Law, Robert Radulescu; and Robert A. Waller, Jr., Cardiff-by-the-Sea, for Plaintiff and Appellant.

Law Office of Martin N. Buchanan and Martin N. Buchanan for Defendant and Respondent.

McCONNELL, P. J.

IINTRODUCTION

The question posed in this appeal is whether a father who provides financial support for his adult son may be held liable for the death of his son's girlfriend by overdose on methamphetamine allegedly purchased or supplied by the adult son. Plaintiff appeals a judgment of dismissal in favor of S.B. (Father) after the court sustained without leave to amend his demurrer to plaintiff's complaint for wrongful death based on negligence. The trial court concluded no special relationship existed between Father and his adult son such that Father should be held liable for wrongful death of the girlfriend. We agree and affirm the judgment.

IIBACKGROUND

A¹

Father knew his son, C.B., had been addicted to drugs for a number of years, and "had paid on numerous prior occasions" for C.B. to undergo "detox and/or drug rehabilitation and treatment programs to treat his addiction." C.B. was not employed and was "dependent" on Father for financial support. Father provided "regular, consistent, and frequent financial support" to C.B., which included paying for C.B.'s housing and living expenses as well as giving him money for spending and "necessities of life."

Father knew C.B. was in a lengthy relationship with A.C. "which involved a significant amount of drug use between them." Father knew or should have known C.B. used money Father provided to purchase drugs and share them with A.C.

A.C. checked herself out and left a detoxification facility with C.B. the weekend before her death. On several occasions, A.C.'s parents spoke to Father about the drug-related dependency between C.B. and A.C. They told Father that if he did not stop providing C.B. with the financial resources to buy drugs, someone was going to end up dead. Father did not cut off C.B. financially and continued to support him.

Father drove A.C. home from C.B.'s apartment and knew or should have known C.B. supplied A.C. drugs when they were together.

The following day, C.B. picked up A.C. from her parents' home after a confrontation with her parents. C.B. later battered, punched, kicked, or otherwise hit A.C. leaving physical marks. When C.B. was detained on charges of domestic violence against A.C., Father posted bail for C.B.

Two days before her death, C.B. and a friend drove A.C. to an emergency room due to illness. C.B. allegedly supplied A.C. drugs in the emergency room parking lot. A.C. checked herself out of the emergency room after being diagnosed with sepsis.

On the day of A.C.'s death, C.B. drove A.C. to a bank to obtain money from an account provided by Father. When C.B.'s bank card was declined, they waited in the car in the parking lot for the bank to open. They used drugs which C.B. allegedly purchased with money he received from Father. A.C. died as a result of methamphetamine intoxication.

B

Plaintiff, A.C.'s minor son, sued C.B. and Father for the wrongful death of A.C. The complaint asserted a cause of action against both defendants for negligence, a cause of action against Father for negligent entrustment of his vehicle to C.B., and a cause of action against C.B. pursuant to Health and Safety Code section 11700 et seq.

Father filed a demurrer to the complaint contending the complaint failed to state a cause of action against him for negligence because he owed no legal duty to A.C. with respect to her drug use. He also contended plaintiff could not state a claim for negligent entrustment because there was no allegation A.C. died as a result of negligent operation of the vehicle. Plaintiff voluntarily dismissed the negligent entrustment cause of action.

Plaintiff opposed the demurrer contending Father owed a duty to A.C. because C.B. was dependent upon Father, even though C.B. was an adult, and Father failed to take reasonable steps to prevent foreseeable harm. Plaintiff contended Father should have terminated financial support to C.B. or revoked C.B.'s use of Father's car to stop C.B. from supplying A.C. with drugs. Alternatively, plaintiff requested leave to amend to allege additional facts from Father's deposition testimony.

The trial court sustained Father's demurrer without leave to amend. The court stated it was "unwilling to expand the definition of a special relationship between [Father] and his adult son ... under the facts alleged. Although plaintiff has alleged [C.B.] was financially dependent on his father, that is not the same as being a dependent."

IIIDISCUSSION

A

Plaintiff contends the court erred in sustaining Father's demurrer because C.B. was financially dependent upon Father. We disagree.

"A demurrer tests the legal sufficiency of the complaint." ( Berman, supra , 11 Cal.App.5th at p. 470, 217 Cal.Rptr.3d 674, citing Blank v. Kirwan (1985) 39 Cal.3d 311, 318, 216 Cal.Rptr. 718, 703 P.2d 58.) "A demurrer is properly sustained when the complaint ‘does not state facts sufficient to constitute a cause of action,’ or where the court ‘has no jurisdiction of the subject of the cause of action alleged in the pleading.’ ( Code Civ. Proc., § 430.10, subds. (e), (a).) ‘On appeal from a dismissal following the sustaining of a demurrer, this court reviews the complaint de novo to determine whether it alleges facts stating a cause of action under any legal theory....’ " ( Debrunner v. Deutsche Bank National Trust Co. (2012) 204 Cal.App.4th 433, 438, 138 Cal.Rptr.3d 830.)

As a general rule " ‘one owes no duty to control the conduct of another, nor to warn those endangered by such conduct.’ " ( Regents of University of California v. Superior Court (2018) 4 Cal.5th 607, 619, 230 Cal.Rptr.3d 415, 413 P.3d 656 ( Regents ).) "A duty to control, warn, or protect may be based on the defendant's relationship with ‘either the person whose conduct needs to be controlled or [with] ... the foreseeable victim of that conduct.’ [Citations.] Specifically, a duty to control may arise if the defendant has a special relationship with the foreseeably dangerous person that entails an ability to control that person's conduct." ( Ibid. , citing Rest.3d Torts, Liability for Physical and Emotional Harm, § 41.) One example of a special relationship giving rise to a duty to control is that of a parent with "dependent children." (Rest.3d Torts, Liability for Physical and Emotional Harm, § 41, subd. (b)(1).)²

Comment d to section 41 of the Restatement Third of Torts explains the "basis of the parents duty with regard to dependent children is the parents responsibility for child-rearing, their control over their children, and the incapacity of some children to understand, appreciate, or engage in appropriate conduct." (Rest.3d Torts, Liability for Physical and Emotional Harm, § 41, com. d.) The comment recognizes the parental duty of care changes as children reach adolescence and gain independence and concludes, "When children reach majority or are no longer dependent, parents no longer have control, and the duty no longer exists." (Ibid. )

The key issue is control. "A basic requisite of a duty based on a special relationship is the defendant's ability to control the other person's conduct. [Citation.] If the relationship ‘creates no inference of an ability to control, the actual custodial ability must affirmatively appear.’ " ( Smith v. Freund (2011) 192 Cal.App.4th 466, 473, 121 Cal.Rptr.3d 427 ( Freund ).) "Thus, a plaintiff who alleges a defendant had a duty to control another person based on a special relationship must make a twofold showing (1) that the defendant had the ability to control the actor and (2) that the defendant bore a duty of care under a Biakanja / Rowland analysis."³ ( Freund , at p. 474, 121 Cal.Rptr.3d 427.) Plaintiff here has not and cannot show either.

"[I]n order for one to ‘take charge’ of a person such that a legal duty to control his or her conduct is created, one must possess the ability to control. ( Megeff v. Doland [ (1981) ] 123 Cal.App.3d [251, 261, 176 Cal.Rptr. 467 ].) When such ability does not exist, no duty arises, rendering inactionable a civil claim against a defendant for the failure to control the conduct of another. ( Ibid. [defendant adult daughter lacking ability to control conduct of abusive father]; see also Wise v. Superior Court (1990) 222 Cal.App.3d 1008, 1014, 272 Cal.Rptr. 222 [defendant wife lacked ability to control husband's violent conduct]; Hansra v. Superior Court (1992) 7 Cal.App.4th 630, 645, 9 Cal.Rptr.2d 216 [no facts alleged sufficient to show defendant mother and brother of violent individual had ability to control his behavior].)" ( People v. Heitzman (1994) 9 Cal.4th 189, 213, 37 Cal.Rptr.2d 236, 886 P.2d 1229.) "The absence of an ability to control is fatal to a claim of legal responsibility." ( Todd v. Dow (1993) 19 Cal.App.4th 253, 259, 23 Cal.Rptr.2d 490 [parents of adult child not liable for accidental shooting because they had no ability to control the adult child]; see also Smith v. United States (11th Cir. 2017) 873 F.3d 1348, 1352 [control giving rise to a duty is the " ‘ "legal authority" to restrain a person's liberty’ "].)

Although Father provided his son an apartment, money in a bank account, and a car to drive, none of the alleged facts demonstrate Father had an ability to control C.B.'s conduct. C.B. did not live with Father. C.B. made his own choices about how to spend the money his father provided. As the trial court noted, C.B. continued to use drugs even though Father had provided C.B. with multiple opportunities for drug treatment.

Analysis of the Rowland factors also does not support imposition of liability. The Supreme Court has "identified several factors that may, on...