Kadish ex rel. Kadish v. Jcc

• Citation: 112 Cal.App.4th 711,5 Cal.Rptr.3d 394
• Decision Date: 10 October 2003
• Docket Number: No. B159740.,B159740.
• Court: California Court of Appeals
• Parties: Benjamin KADISH, a Minor, etc., et al., Plaintiffs and Appellants, v. JEWISH COMMUNITY CENTERS OF GREATER LOS ANGELES et al., Defendants and Respondents.

5 Cal.Rptr.3d 394

112 Cal.App.4th 711

Benjamin KADISH, a Minor, etc., et al., Plaintiffs and Appellants, v. JEWISH COMMUNITY CENTERS OF GREATER LOS ANGELES et al., Defendants and Respondents.

No. B159740.

Court of Appeal, Second District, Division 1.

October 10, 2003.

As Modified October 28, 2003.

Review Granted December 23, 2003.

Law Offices of Joseph M. Lovretovich, Woodland Hills, Joseph M. Lovretovich and Sara J. Venteicher for Plaintiffs and Appellants.

Gibson, Dunn & Crutcher, Scott A. Edelman and Michael S. Brophy, Los Angeles, for Defendants and Respondents.

MALLANO, J.

In the summer of 1999, a Jewish organization received vague threats of violence against its members. On August 10, 1999, a self-proclaimed anti-Semite appeared at the organization's summer camp and, armed with a gun, opened fire, wounding at least one child. In this action, the child and his family seek to hold the organization liable for allegedly failing to provide adequate security measures.

The trial court dismissed the action on demurrer, concluding that the organization did not have a duty to prevent such a crime. We affirm because the violent criminal assault was not reasonably foreseeable, and imposing liability based on vague threats of violence, absent prior armed assaults or other incidents of a similar nature, would impose an unfair burden on the organization.

I BACKGROUND

After two successful demurrers, plaintiffs filed a second amended complaint. For purposes of our review, we must accept as true the following allegations. (See Blank v. Kirwan (1985) 39 Cal.3d 311, 318, 216 Cal.Rptr. 718, 703 P.2d 58.)

In June 1999, Eleanor and Charles Kadish (the Kadishes) enrolled their sons, Benjamin (age 5) and Joshua (age 9), in a summer camp, Camp Valley Chai, run by the Jewish Community Centers of Greater Los Angeles (JCC). The JCC operated several centers in the Los Angeles area. The Kadishes' children were to be dropped off at the West Valley Center and bused to the North Valley Center in Granada Hills, where the camp is located. The Kadishes entrusted the JCC with the custody and safekeeping of their children.

Camp Valley Chai, as described in the camp brochure, is "Where the Children Play." The camp offered three programs, each for a different age group. The brochure described the "Aleph" program, for children entering kindergarten and the first grade, as follows: "Activities are evenly paced to provide an all-day program that is exciting but not over-stimulating. With a ratio of one staff to six campers, children will receive close attention and direction. Campers will also participate in camp-wide events. Activities are specifically geared to the interests and abilities of this age group, which include: singing, arts & crafts, Judaica, games, drama, swimming, and more. Campers also participate in specialty days that combine fun and imagination with learning about American and Jewish life."

According to the brochure, the "Bet" program, for children entering the second through the fifth grades, included "sports, dancing, arts & crafts, swimming, singing, cooking, field trips, and Judaic programming. With a ratio of one staff to six campers, children engage in program-wide events, as well as camp-wide events. Bet campers have the opportunity to attend a one-night overnight."

The "Gimmel" program, for children entering the sixth through the eighth grades, provided "an action-packed summer filled with new experiences, field trips, and more! Each session will include a two-night overnight, swimming, trips to the beach, amusement parks, and other cool places. Special camp events and projects encourage a connection to Jewish culture, themes, and values."

The brochure stated that "[a]t Camp Valley Chai, our goal is to find and expose the personal talents within each and every camper. Our staff strives to create an atmosphere of fun, friendship, sharing, group and individual achievement." According to the brochure, campers would enjoy a "safe camping experience" set in a "secure environment" at the camp's "expansive camp site."

But, during the summer of 1999, all was not safe and secure for Jewish organizations. Attacks at synagogues and Jewish community centers in the United States were planned and carried out. Jewish organizations across the country referred to the summer of 1999 as the "summer of hate." The Anti-Defamation League sent notices to Jewish groups throughout the nation advising them to increase security. The West Coast office of the Anti-Defamation League notified Jewish organizations that there was a "strong potential" of violence against their members.

From June to August 1999, the West Valley Center and the North Valley Center received anonymous telephone calls threatening their members with physical violence. The North Valley Center, located one block from an exit off the 118 Freeway, had a large sign identifying it as a Jewish facility. The center had no locks on the entry door, no security guards, and no emergency evacuation plan, notwithstanding that the JCC had implemented those precautions at other locations. Dating back to at least 1989, the Anti-Defamation League and groups within the JCC had recommended that the North Valley Center adopt security measures.

Beginning in early 1999, Buford Furrow, an individual with publicly avowed anti-Semitic views, began traveling and observing Jewish facilities in Southern California with the purpose of shooting and killing Jews. On the evening of August 9, 1999, Furrow sat outside the North Valley Center watching people come and go. No one asked him why he was there. He chose the North Valley Center as the site for his "war on Jews" because it, unlike other JCC facilities, had no security precautions. On August 10, 1999, Furrow entered the North Valley Center and shot Benjamin. His brother, Joshua, was not shot but "perceived" Benjamin's shooting.

On April 20, 2001, the Radishes filed this action on behalf of themselves and their children, naming as defendants the JCC, the North Valley Center, and the West Valley Center (collectively JCC). Benjamin asserted a cause of action for negligence, alleging that a lack of security measures allowed Furrow to shoot him. Joshua brought a cause of action for negligence, alleging that he had been in the line of fire and had perceived the assault on his brother. The Kadishes alleged a cause of action for negligence based on the emotional distress they suffered as a result of the injury to their children. They also alleged a cause of action for breach of contract, claiming that the JCC failed to provide a safe and secure camping environment.

The JCC demurred to the complaint, contending that it did not have a duty to protect campers from violent criminal assaults. Plaintiffs filed opposition. The trial court sustained the demurrer with leave to amend. A first amended complaint was filed, much like the original. Another demurrer was filed, opposed, and sustained with leave to amend. Plaintiffs filed a second amended complaint, which was also challenged by demurrer. The trial court sustained the demurrer without leave to amend. On May 6, 2002, the trial court entered an order dismissing the case. Plaintiffs filed a timely appeal.

II DISCUSSION

In reviewing the sufficiency of a complaint against a general demurrer that was sustained, we treat the demurrer as admitting all material facts that are properly pleaded and determine whether the complaint states facts sufficient to constitute a cause of action. (Blank v. Kirwan, supra, 39 Cal.3d at p. 318, 216 Cal.Rptr. 718, 703 P.2d 58; accord, Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126, 119 Cal.Rptr.2d 709, 45 P.3d 1171.) "In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties." (Code Civ. Proc, § 452.)

"In order to establish liability on a negligence theory, a plaintiff must prove duty, breach, causation and damages." (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205, 114 Cal.Rptr.2d 470, 36 P.3d 11.) "`To say that someone owes another a duty of care "`is a shorthand statement of a conclusion, rather than an aid to analysis in itself.... "[D]uty" 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...'" ...."' (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 477, 110 Cal.Rptr.2d 370, 28 P.3d 116.) The trial courts determination [as to whether] a duty exists is reviewed de novo by the appellate court as a question of law." (Mendoza v. City of Los Angeles (1998) 66 Cal.App.4th 1333, 1339, 78 Cal.Rptr.2d 525.)

We begin with the fundamental principle, codified in section 1714 of the Civil Code, that "[e]very one is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property...." (Civ.Code, 1714, subd. (a).)

More than three decades ago, in Rowland v. Christian (1968) 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561 (Rowland), our Supreme Court stated that the determination of whether a property owner is liable for injuries to persons on the property "involves the balancing of a number of considerations; the major ones are the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendants conduct and the injury suffered, the moral blame attached to the defendants 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.... [¶] ...

"The proper test to be applied to the...