Lehto v. City of Oxnard

• Decision Date: 20 August 1985
• Court: California Court of Appeals Court of Appeals
• Parties: Gary LEHTO, Plaintiff and Appellant, v. CITY OF OXNARD, Defendant and Respondent. Civ. B006073.

Page 450

217 Cal.Rptr. 450

171 Cal.App.3d 285

Gary LEHTO, Plaintiff and Appellant, v. CITY OF OXNARD, Defendant and Respondent.

Civ. B006073.

Court of Appeal, Second District, Division 2, California.

Aug. 20, 1985.

Review Denied December 5, 1985.

Ronald Dean, a Law Corp., Greene, O'Reilly, Broillet, Paul, Simon, McMillan, Wheeler & Rosenberg by Browne Greene, Los Angeles, Horvitz & Levy by Barry R. Levy, Encino, Andrew N. Chang, Janice M. Corsino, Alhambra, for plaintiff and appellant.

Lawler & Ellis by Korman Dorsey Ellis, Margot Davis, Ventura, for defendant and respondent.

COMPTON, Associate Justice.

Plaintiff Gary Lehto, severely injured in a collision between an automobile in which he was a passenger and the vehicle driven by one Raul Carbajal, instituted this action to recover damages from defendant City of Oxnard, et al. (City) for the alleged negligence of certain police officers in failing to prevent Carbajal from driving while under the influence of alcohol. The trial court granted the City's motion for judgment on the pleadings and this appeal follows. ¹ We affirm.

A judgment on the pleadings is similar to a judgment following the sustaining of a demurrer and the standard of appellate review is the same. Like the demurrer, the motion for judgment on the pleadings is confined to the face of the pleading under attack, and the properly pleaded operative facts must be accepted as true. (Kathleen K. v. Robert B. (1984) 150 Cal.App.3d 992, 994, 198 Cal.Rptr. 273; Baillargeon v. Department of Water & Power (1977) 69 Cal.App.3d 670, 675-676, 138 Cal.Rptr. 338.) However, contentions, deductions and conclusions of fact or law alleged in the complaint are not considered in judging the sufficiency of the pleading. (See Loehr v. Ventura County Community College Dist. (1983) 147 Cal.App.3d 1071, 195 Cal.Rptr. 576.) The fundamental question for the reviewing court is whether, disregarding imperfections of form which could be cured by amendment, the facts alleged entitle the plaintiff to any relief. (Cohen v. Ratinoff (1983) 147 Cal.App.3d 321, 195 Cal.Rptr. 84.)

Plaintiff's first amended complaint alleged seven causes of action, only one of which concerns this appeal. The pertinent alleged facts may be summarized as follows. On May 18, 1980, police officers employed by the City of Oxnard, and acting within the scope of their employment, stopped a vehicle being driven by defendant Carbajal for a traffic violation. During the course of the stop, according to the complaint, the officers knew, or should have known that "Raul Carbajal was under the influence of intoxicating liquor and that he was totally incapable of safely operating a motor vehicle."

Based upon the foregoing, the complaint further alleged: "Under the statutory and decisional law of the State of California, together with the enactments, regulations, and customs of defendant CITY OF OXNARD and its Department of Police said defendants, and each of them, were under a mandatory duty to use due care to take precautions to prevent said RAUL CARBAJAL from further driving the automobile in his intoxicated condition." (Emphasis added.) The officers, however, allowed Carbajal to continue driving.

At some undisclosed later time, Carbajal was involved in a head-on collision with the vehicle in which plaintiff was a passenger. The complaint thus alleged that plaintiff sustained severe personal injuries as a result of the officers' negligence in failing to discharge their "mandatory duty " to prevent Carbajal from driving.

Government Code section 846 provides: "Neither a public entity nor a public employee is liable for injury caused by the failure to make an arrest or by the failure to retain an arrested person in custody." The trial court based its ruling in favor of the City squarely on the immunity provided by that statute.

Under our system of law the power to make an arrest of another individual is a power grudgingly given in furtherance of the public interest in preventing crime. It is a power which is strictly limited and the abuse of such power can result in civil liability. It would be contrary to public policy, simultaneously, to permit the imposition of civil liability for a failure to exercise the power. Hence the immunity is a logical adjunct to the public policy.

Plaintiff, in apparent recognition of this fact, has, on this appeal, eschewed any claim that the officers had a duty to arrest Carbajal but instead has attempted to create a duty on the part of the officers to take some other action to prevent Carbajal from continuing to drive. The suggested alternatives were to disable the vehicle, confiscate the keys or force Carbajal to depart the scene by some other mode of transportation.

While plaintiff concedes that the choice of a course of action was within the officers' "discretion" he contends that they had a duty to take some action. This duty, as noted, is said to repose in some unspecified provision of California statutory and decisional law augmented by regulations, policies and customs of the Oxnard Police Department.

Plaintiff's emphasis of the "mandatory" nature of the duty is an obvious attempt to plead around the provisions of Government Code section 820.2 ² and into Government Code section 815.6. ³ This attempt was undoubtedly prompted by language in Green v. City of Livermore (1981) 117 Cal.App.3d 82, 172 Cal.Rptr. 461, which we will discuss infra.

Two recent cases, Davidson v. City of Westminster (1982) 32 Cal.3d 197, 185 Cal.Rptr. 252, 649 P.2d 894, and Williams v. State of California (1983) 34 Cal.3d 18, 192 Cal.Rptr. 233, 664 P.2d 137, cases which are factually dissimilar but conceptually similar to the case at bench, have served to delineate the applicable principles.

In approaching the issue raised by this appeal, we first note that "the question of the applicability of a statutory immunity does not even arise until it is determined that a defendant otherwise owes a duty of care to the plaintiff and thus would be liable in the absence of such immunity." (Davidson v. City of Westminster, supra; Williams v. State of California, supra.) In the case at bench, the negligence claim against the City rests on the officers' nonfeasance in their failure to prevent Carbajal from driving while intoxicated. Accordingly, we first consider the threshold question of duty.

As 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 exist, however, if "(a) a special relation 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 to the other a right to protection." (Rest.2d Torts, § 315, p. 122; Davidson v. City of Westminster, supra, 32 Cal.3d at p. 203, 185 Cal.Rptr. 252, 649 P.2d 894; Thompson v. County of Alameda (1980) 27 Cal.3d 741, 751-752, 167 Cal.Rptr. 70, 614 P.2d 728; Bonds v. State of California Ex Rel. Cal. Highway Patrol (1982) 138 Cal.App.3d 314, 318, 187 Cal.Rptr. 792.) Other than cases involving landowners and their invitees, those cases finding the existence of a special relationship most frequently involve some act or omission on the part of the defendant that either created a risk or increased an existing risk to a known person. (See Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 131 Cal.Rptr. 14, 551 P.2d 334; Johnson v. State of California (1968) 69 Cal.2d 782, 73 Cal.Rptr. 240, 447 P.2d 352; Mann v. State of California (1977) 70 Cal.App.3d 773, 139 Cal.Rptr. 82.)

It has been recognized by the California Supreme Court that "[a]pplication of these general principles in the area of law enforcement and other police activities has produced some confusion and conflict. To an extent, the concepts are muddied by widely held misconceptions concerning the duty owed by police to individual members of the general public." (Williams v. State of California, supra, 34 Cal.3d at pp. 23-24, 192 Cal.Rptr. 233, 664 P.2d 137.)

In Williams v. State of California, supra, the plaintiff was injured when a piece of heated brake drum from a passing truck was propelled through the windshield of her automobile. She brought suit against the state alleging nonfeasance--failure to test for the heat of the object which struck her, failure to secure identification of witnesses, and failure to attempt investigation or pursuit of the owner or occupant of the truck whose brake drum had caused her injuries.

The Williams court concluded that the plaintiff had not stated a cause of action because she failed to establish a duty of care owed by the state. The court held that a plaintiff in order to create a duty, must show an affirmative act which created or increased a risk of harm to plaintiff, an omission or failure to act after a promise was made to plaintiff, or the creation of a special dependency relationship in which plaintiff relied on official conduct. None of those circumstances were present there.

In Davidson v. City of Westminster, supra, the plaintiff was stabbed in a laundromat that was under police surveillance. Her complaint alleged that the investigating officers knew of other stabbings in the same or nearby laundromats, knew that plaintiff was in the laundromat, and identified a man on the premises as a likely perpetrator of a stabbing that had occurred the evening before. As officers watched, the suspect entered and left the laundromat several times. They neither intervened nor warned the plaintiff, and she was stabbed. Her complaint alleged causes of action for intentional and negligent infliction of emotional distress, negligent investigation, failure to protect, and failure to warn.

Concluding that the complaint stated no cause of action for negligence, the court held that a police officer does not act affirmatively to increase the risk of harm by failing to stop an...