Mendoza v. City of Los Angeles

• Decision Date: 02 September 1998
• Docket Number: No. B095945,B095945
• Citation: 78 Cal.Rptr.2d 525,66 Cal.App.4th 1333
• Parties: , 98 Cal. Daily Op. Serv. 7517, 98 Daily Journal D.A.R. 10,407 Rene MENDOZA, a Minor, etc., et al., Plaintiffs and Respondents, v. CITY OF LOS ANGELES, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 525

78 Cal.Rptr.2d 525

66 Cal.App.4th 1333, 98 Cal. Daily Op. Serv. 7517,

98 Daily Journal D.A.R. 10,407

Rene MENDOZA, a Minor, etc., et al., Plaintiffs and Respondents, v. CITY OF LOS ANGELES, Defendant and Appellant.

No. B095945.

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

Sept. 2, 1998.

Rehearing Denied Sept. 29, 1998.

Review Denied Dec. 16, 1998.

James K. Hahn, Los Angeles City Attorney, G. Daniel Woodard and Katherine J. Hamilton, Assistant City Attorneys, for Defendant and Appellant.

Robert Mann and Donald W. Cook, Los Angeles, for Plaintiffs and Respondents.

NOTT, Associate Justice.

The City of Los Angeles (the City) appeals from a judgment entered in favor of Christina Sprague (as guardian ad litem for the minor Rene Mendoza) and Ahna Maglinti (referred to collectively as plaintiffs) in their action for the wrongful death of plaintiffs' mother, Clementina Maglinti. Clementina was shot to death by her fiance, off-duty Los Angeles police officer Edward Mendoza, during a domestic argument in June 1989. The jury found the City 25 percent at fault and assessed economic damages of $300,000 and non-economic damages of $850,000.

The City contends: "[I.] Plaintiffs failed to establish or prove a statutory basis for the City's liability. [II.] [The City's] motions for judgment in this case should have been granted since plaintiffs failed to prove that [the City] owed them a duty of care. [III.] [The City's] motions for judgment in this case should have been granted since plaintiffs failed to prove that [the City] breached a duty of care. [IV.] The trial court erred in instructing the jury pursuant to Evidence Code § 669 that [the City's] actions constituted negligence per se. [V.] [The City's] motions for judgment in this case should have been granted since, as a matter of law, [the City's] negligence did not cause plaintiffs' injuries. [VI.] [The City's] motion for new trial should have been granted on the ground of improper exclusion of evidence."

After an unsuccessful motion for summary judgment and two motions for judgment on the pleadings, one of which was granted with leave to file an amended complaint, plaintiffs filed their first amended complaint against the City and Mendoza. It alleged intentional and negligent wrongful death and intentional infliction of emotional distress against Mendoza, and wrongful death against the City on the theory it negligently hired and supervised Mendoza and negligently entrusted him with the rights of a police officer, including the right to carry a concealable firearm.

FACTS

Mendoza shot and killed Clementina in the presence of Clementina's 13-year-old daughter, Ahna. This shooting occurred late in the evening in the Hawthorne home Mendoza shared with Clementina, Ahna, and Rene, who was the couple's infant son. The couple were arguing about Mendoza's coming home late and drunk. Mendoza had left work at the end of his shift that afternoon and then had gone out drinking with friends. Mendoza was permitted, but not required, to carry a concealed firearm while off duty. He owned a revolver, which he had purchased while a cadet at the police academy. The evening of the shooting he put this revolver on the dining table, intending to clean it. In the course of a verbal argument, Mendoza shot Clementina in the face, killing her.

At the time of the shooting, Mendoza had no history of violence. According to Mendoza, he had never hit or kicked Clementina, and he did not think he would have strangled or beaten her to death. There was no evidence of past violence or difficulty with anger control. According to a Department of Corrections psychologist, the shooting occurred as a result of poor personality insight, shallow emotions, use of alcohol, poor judgment, and carelessness in the use of a firearm.

Mendoza's blood alcohol level was 0.14 percent 90 minutes after the homicide. Mendoza drank three beers that afternoon after work and then consumed more beer plus several shots of tequila at a friend's apartment in the evening.

A Navy colleague of Mendoza's testified that while in the Navy, they drank every chance they got and often got drunk. Mendoza served in the Navy just prior to applying for work with the Los Angeles Police Department (the Department). He denied that he drank on average twice a week while in the Navy, saying there were periods when he was at sea or in schooling when he did not drink. He also testified that he did not get drunk whenever he was on leave but only occasionally.

A correctional counselor who conducted an intake interview of Mendoza in prison testified that Mendoza told her he had been drinking a six-pack of beer and two shots of tequila daily for the two years preceding the crime. Mendoza denied having told the correctional counselor this. Mendoza considered himself only slightly intoxicated when he killed Clementina. Clementina's relatives described Mendoza as a social drinker; one said he drank all the time, at least at family get-togethers.

At the time of the shooting, Mendoza had been employed by the Department for more than one year. Mendoza testified he owned no guns before he became a police officer, and he purchased the weapon because he had become a police officer. Mendoza usually carried a loaded gun with him while off duty. The Department had no regulation restricting an officer from carrying or handling a firearm while intoxicated.

Mendoza testified that he had never been disciplined while a Department officer for any reason. There was no evidence that Mendoza ever drank on the job or missed time at work because of drinking. Clementina's sister testified that Mendoza once drank beer before he went to work.

When he left the Navy, Mendoza applied to five police agencies. He was rejected by police departments in Santa Ana and Long Beach, failing to score high enough on the written test to receive an interview. Mendoza's applications to the California Highway Patrol and the Department of Corrections were pending when the Department hired him.

When Mendoza was hired, there was no departmental manual setting forth criteria for hiring suitability. Instead, there was a lengthy selection process administered by the City's Personnel Department. The process included a written exam, a Civil Service interview, a medical exam, a physical abilities test, a personal history questionnaire and a Department interview. The applicant was then given a psychological exam which included a personal interview. After an applicant had qualified, a background investigation was conducted by the Department.

As part of the psychological evaluation, Mendoza completed an MMPI (Minnesota Multiphasic Personality Inventory) test. The McAndrews supplementary scale, which is part of the MMPI, tests for alcohol abuse. Mendoza's score on that scale was 26. Dr. Sheldon Kay explained that although using 24 as the indicator for alcohol abuse would identify approximately 82 percent of alcoholic and nonalcoholic psychiatric patients, it would also identify a large segment of false positives. In his use of the scale among non-mental patients, he used a score of 28 as indicating a possible alcohol abuser or a person with an extremely extroverted personality. A second psychologist, Paul Berg, testified that a score of 26 should have raised a red flag regarding possible alcohol abuse, particularly in conjunction with Mendoza's having admitted he first used alcohol before the age of 13 and first became drunk before the age of 16. Dr. Kay failed to maintain any written report of his evaluation of Mendoza and any record of his interview with Mendoza.

Mendoza provided the Department with four personal references. The Department obtained written questionnaires from the four but did not interview them. Neither the primary references nor the past employer check turned up any damaging or critical information. The personal references described Mendoza as a "social drinker" who drank "within reason." Mendoza reported that he consumed three to five drinks per week, an amount the Department considered within normal limits.

The primary references provided secondary references. The City did not contact the secondary references. The California Commission on Peace Officer Standards and Training (POST) in 1987 required background investigators to contact secondary references "within practical limits." Patrick Maher, a personnel consultant, testified that the failure to try to contact secondary references fell below the standard of care of police background investigators in 1989. ¹

The Department's practice in 1987 was to contact secondary references only if they needed more information. The investigator who worked on Mendoza's application testified that he did not have the resources to contact the secondary references, although he would have done so if there had been some reason which required a follow-up, such as negative information.

Under POST standards, the Department also should have determined why two other law enforcement agencies had found Mendoza unacceptable. There was conflicting evidence regarding whether Mendoza's file indicated the Department had contacted the agencies to which Mendoza applied for employment. It is undisputed that Mendoza had not passed the initial written tests for the two agencies which rejected him.

DISCUSSION

I. Duty

The elements of a cause of action for negligence are (1) a legal duty to use reasonable care, (2) breach of that duty, and (3) proximate cause between the breach and (4) the plaintiff's injury. (Wattenbarger v. Cincinnati Reds, Inc. (1994) 28 Cal.App.4th 746, 751, 33 Cal.Rptr.2d 732.) The trial court's determination that a duty exists is reviewed de novo by the appellate court as a question of law. (Koepke v. Loo (1993) 18 Cal.App.4th 1444, 1450-1451, 23 Cal.Rptr.2d 34.)

Duty is the expression of a court's conclusion that a particular plaintiff is entitled to protection. (Rowland v. Christian (1968) 69...