M. v. City of San Diego

• Decision Date: 30 July 1991
• Docket Number: No. D012036,D012036
• Citation: 233 Cal.App.3d 699,284 Cal.Rptr. 555
• Court: California Court of Appeals Court of Appeals
• Parties: M.B., Plaintiff and Appellant, v. CITY OF SAN DIEGO, Defendant and Respondent.

Page 555

284 Cal.Rptr. 555

233 Cal.App.3d 699

M.B., Plaintiff and Appellant, v. CITY OF SAN DIEGO, Defendant and Respondent.

No. D012036.

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

July 30, 1991.

As Modified Aug. 26, 1991.

Liebman, Reiner & McNeil and Joseph R. Zamora, Los Angeles, for plaintiff and appellant.

John W. Witt, City Atty., Eugene P. Gordon, Chief Deputy Atty., and Penny Castleman, Deputy City Atty., for defendant and respondent.

KREMER, Presiding Justice.

M.B. appeals a summary judgment in favor of the City of San Diego (City) on her complaint for damages relating to a rape due to police negligence in investigating the case and giving advice. On appeal, M.B. contends actions by the police created a special relationship and a basis for liability. She also seeks permission to amend her complaint to include a cause of action based on negligent misrepresentations by the police officers who handled her case. We affirm.

FACTS

In late August 1987, M.B. hired a roofing company to replace shingles on her roof. One of the employees was Frank Johnson who used M.B.'s bathroom while on duty in September 1987. Sometime in late September, M.B. noticed lingerie missing from her home. The bathroom which Johnson had used connected to a dressing room where M.B. had some lingerie.

On October 2, someone entered M.B.'s bedroom window while she was sleeping and stole some of her underwear. She called the police. Officer Clark responded. M.B. told Clark she suspected one of the roofing employees whom she knew only as "Frank" had committed the burglary. Officer Clark suggested she acquire a stun gun or mace to protect herself but M.B. declined to do so because her two-year-old son lived with her. The police were aware she was taking the precaution of changing her locks because the locksmith was working on the locks while an officer was present. The police detectives involved in the investigation told her "not to worry," that "these guys never come back."

After the burglary, Johnson began making obscene phone calls to M.B. He told M.B. he was the one who had broken into her house and said he was going to return. M.B. contacted the police. When she told them he had said he was going to come over to her house, Detective Torgesen told her "they never do." The detective also asked if she would like him "to get a squad car to come by and check on you?" M.B. said "yes." She waited until 4 a.m. but no squad car arrived. On October 28, a telephone trap was placed on her phone.

Two days later, Johnson returned to M.B.'s home and raped her. Before the rape had occurred, M.B. had contemplated putting in a burglar alarm system, moving to the home of a friend or sending her son to live with his father but did not do so because of the reassurances of the officers.

M.B. sued the City, among others, alleging the City's police officers were negligent in investigating her case and in assuring "such perpetrators never return and need not be feared." She stated she reasonably relied on the investigation and assurances of the police and as a result she failed to "take precautions for her safety that she otherwise would have taken," was injured and incurred damages.

The City moved for a summary judgment on the basis it had no liability because no "special relationship" existed between the officers and M.B. The trial court agreed and granted summary judgment to the City.

DISCUSSION

I Summary Judgment Standard

The summary judgment procedure aims to discover whether there is evidence requiring the fact-weighing procedures of a trial. (Decker v. City of Imperial Beach (1989) 209 Cal.App.3d 349, 257 Cal.Rptr. 356.) "[T]he trial court in ruling on a motion for summary judgment is merely to determine whether such issues of fact exist, and not to decide the merits of the issues themselves." (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107, 252 Cal.Rptr. 122, 762 P.2d 46, cert. den. 490 U.S. 1084, 109 S.Ct. 2110, 104 L.Ed.2d 670.) The trial court decides whether triable issues exist by examining the affidavits and evidence before the court, including any reasonable inference which may be drawn from the facts presented. (Gootee v. Lightner (1990) 224 Cal.App.3d 587, 591, 274 Cal.Rptr. 697.)

In reviewing the propriety of a summary judgment, the appellate court must resolve all doubts in favor of the party opposing the judgment. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 183, 203 Cal.Rptr. 626, 681 P.2d 893.) The reviewing court conducts a de novo examination to see whether there are any genuine issues of material fact or whether the moving party is entitled to summary judgment as a matter of law. (Lichty v. Sickels (1983) 149 Cal.App.3d 696, 699, 197 Cal.Rptr. 137.) While "[s]ummary judgment is a drastic procedure, should be used with caution [citation] and should be granted only if there is no issue of triable fact" (Brose v. Union-Tribune Publishing Co. (1986) 183 Cal.App.3d 1079, 1081, 228 Cal.Rptr. 620), it is also true "[j]ustice requires that a defendant be as much entitled to be rid of an unmeritorious lawsuit as a plaintiff is entitled to maintain a good one." (Larsen v. Johannes (1970) 7 Cal.App.3d 491, 507, 86 Cal.Rptr. 744.) "A defendant is entitled to summary judgment if the record establishes as a matter of law that none of the plaintiff's asserted causes of action can prevail. [Citation.]" (Molko v. Holy Spirit Assn., supra, 46 Cal.3d at p. 1107, 252 Cal.Rptr. 122, 762 P.2d 46.)

II Special Relationship

As a general rule, the law does not impose liability on a person for his failure to control the conduct of a third person. (Marois v. Royal Investigation & Patrol, Inc. (1984) 162 Cal.App.3d 193, 199, 208 Cal.Rptr. 384.) "A person who has not created a peril is not liable in tort merely for failure to take affirmative action to assist or protect another unless there is some [special] relationship between them which gives rise to a duty to act. [Citation.]" (Williams v. State of California (1983) 34 Cal.3d 18, 23, 192 Cal.Rptr. 233, 664 P.2d 137.)

We explained in Lopez v. City of San Diego (1987) 190 Cal.App.3d 678, 681, 235 Cal.Rptr. 583:

"Where the gravamen of the complaint is a police failure to act reasonably in protecting members of the public from the harm caused by a third person (i.e., nonfeasance), a series of recent Supreme Court cases make clear that the liability of the governmental entity is narrowly circumscribed. [Citations.] Generally, there is no legal 'duty,' and hence no liability for negligence, unless there is a special relationship between the police and either the victim or the third person which gives rise to a responsibility to control the third person's conduct. [Citations.] In the usual situations involving the performance of police duties, such a relationship has been held to depend on representations or conduct by the police which cause the victim(s) to detrimentally rely on the police such that the risk of harm as the result of police negligence is something more than that to which the victim was already exposed. [Citations.]"

A special relationship between the police and an individual has been found in a few narrow circumstances where the police made specificpromises to undertake a particular action and failed to do so (see Morgan v. County of Yuba (1964) 230 Cal.App.2d 938, 41 Cal.Rptr. 508), where the police created or increased a peril by affirmative acts (McCorkle v. City of Los Angeles (1969) 70 Cal.2d 252, 74 Cal.Rptr. 389, 449 P.2d 453) or where the police voluntarily undertook to aid an individual, took affirmative steps to aid the individual and by the acts lulled the individual into a false sense of security (Mann v. State of California (1977) 70 Cal.App.3d 773, 139 Cal.Rptr. 82).

Courts have refused to find a special relationship or impose liability based on the negligence by police personnel in responding to requests for assistance, ¹ in conducting or failing to conduct an investigation, ² in failing to warn of a potential danger ³ or in failing to provide sufficient protection where the police have not induced reliance on a specific promise that they would provide specific protection. ⁴

M.B. argues summary judgment was improper because there existed a special relationship between herself and the officers. She asserts the officers' actions "increased the peril of the plaintiff as a result of reliance by the plaintiff." The facts offered by M.B., however, do not show any special relationship existed between herself and the police or that the officers increased any peril. The police made neither special promises to protect her nor took affirmative steps to provide her with special protection. The police did not do anything which increased her peril. Nothing that they did made it more likely Johnson would return or harm her, e.g., they did not increase Johnson's ability or encourage him to return or harm her nor did they increase her vulnerability. Rather, the essence of M.B.'s complaint is that the police failed to take affirmative acts--failed to adequately investigate, to uncover Johnson's prior record, to warn her Johnson might return. These failures by the police did not increase the risk Johnson would decide to return to her house and harm her; they merely failed to decrease the risk. The police actions resulted in maintaining the status quo.

During oral argument, M.B. argued a special relationship existed between herself and the police based on Detective Torgesen's promise after the burglary to send a patrol car to check on her. She argues the detective's promise shows the police voluntarily assuming a special protective role. Initially, we note she was the one who called the police and the offer to send a patrol car was in response to her request. Case law does not support the creation of a special relationship based solely on police response to a citizen call for assistance; such responses are basic to police work and not "...