Munoz v. City of Union City

• Decision Date: 23 July 2004
• Docket Number: No. A095846.,A095846.
• Citation: 16 Cal.Rptr.3d 521,120 Cal.App.4th 1077
• Court: California Court of Appeals Court of Appeals
• Parties: Yvette MUNOZ et al., Plaintiffs and Respondents, v. CITY OF UNION CITY et al., Defendants and Appellants.

16 Cal.Rptr.3d 521

120 Cal.App.4th 1077

Yvette MUNOZ et al., Plaintiffs and Respondents, v. CITY OF UNION CITY et al., Defendants and Appellants.

No. A095846.

Court of Appeal, First District, Division 2.

July 23, 2004.

As Modified on Denial of Rehearing August 17, 2004.

Appeal from the Superior Court of Alameda County, No. H2046727, Yolanda Northridge, J Farmer, Murphy, Smith & Alliston, George E. Murphy, Suzanne M. Nicholson, Sacramento; Ferguson, Praet & Sherman, Bruce D. Praet, Santa Ana, for Appellants.

Gwilliam, Ivary, Chiosso & Brewer, Steven R. Cavalli, Oakland; Law Office of Daniel U. Smith, Daniel U. Smith, Kent field, for Respondents.

RUVOLO, J.

I. INTRODUCTION

Lucilla Amaya was shot and killed by a Union City police officer after her brother summoned police assistance to the house in which Lucilla,¹ under the influence of methamphetamine and armed with two knives, was located with her father and daughter. In a suit by Lucilla's relatives (respondents) against the City of Union City, the Union City Police Department, and the Union City Chief of Police (collectively referred to as Union City or appellants), as well as Union City Police Corporal Tod Woodward (referred to as Woodward or collectively with Union City as appellants) a jury found appellants liable for negligence and battery.

Union City and Woodward contend the judgment must be reversed because they owed no legal duty to Lucilla, principally relying on our 1998 opinion in Adams v. City of Fremont (1998) 68 Cal.App.4th 243, 80 Cal.Rptr.2d 196 (Adams). They further argue that reversal is required because no reasonable juror could have found that the use of deadly force under the circumstances was unreasonable, and the trial court refused to instruct the jury on the objective test for reasonableness as to the alternative excessive force (battery) cause of action.

We affirm in part, concluding that Woodward owed a duty of care not to use deadly force in an unreasonable manner, the breach of which in this case is supported by substantial evidence. Accordingly, Union City is also liable for that portion of the judgment attributable to Woodward's negligence under undisputed principles of vicarious liability. However, we reverse that portion of the jury's verdict against Union City based on its direct negligence under authority of our Supreme Court's recent decision in Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 7 Cal.Rptr.3d 552, 80 P.3d 656 (Eastburn), because the direct negligence theory advanced by respondents was not grounded on a violation of a statutory duty by the public entity (Gov.Code, § 815).

II. STATEMENT OF THE CASE

The incident in which Lucilla was killed occurred on March 7, 1998. A government tort claim against appellants was filed by Lucilla's daughter Yvette Munoz, Lucilla's father Jessie Amaya, and Lucilla's brother J.J. Amaya (collectively referred to herein as respondents). After this claim was rejected, respondents filed a complaint for damages in Alameda County Superior Court on November 25, 1998. The complaint alleged causes of action for negligent and intentional wrongful death, infliction of emotional distress, negligence per se, negligent employment and failure to supervise and train employees, respondeat superior, violation of civil rights and injunctive relief. Union City and Woodward filed a demurrer on April 7, 1999, which was sustained as to the civil rights cause of action, with leave to amend.

Respondents' first amended complaint was filed on June 7, 1999. Union City and Woodward filed their answer on August 9, 1999. Subsequently, respondents dismissed their civil rights and negligence per se causes of action.

Jury trial began on March 28, 2001. On May 10, 2001, the jury returned a special verdict finding Woodward and Union City liable for negligence and battery (unreasonable force). The jury awarded $1,781,200 to Yvette, $131,000 to Jessie and $23,400 to J.J. The jury apportioned the negligence that caused respondents' damage as 50 percent to Woodward, 45 percent to Union City and 5 percent to Lucilla. Judgment was entered on May 14, 2001, and notice of entry of judgment was filed on May 16, 2001. A motion by all appellants for a new trial was denied on July 11, 2001. A remittitur was issued to correct a clerical error in the judgment regarding the damages awarded to Jessie. Union City and Woodward's notice of appeal was timely filed on July 31, 2001.

III. FACTUAL BACKGROUND

At about 5:30 a.m. on March 7, 1998, Jessie Amaya was awakened by his wife, who told him that Lucilla had called and was hallucinating. Jessie went to Lucilla's house and knocked on the front door. Lucilla opened the door and asked what Jessie was doing there, then told him to sit on the couch. After she closed the door, Jessie noticed that Lucilla had a knife in each of her hands. In response to his question why she was holding the knives, Lucilla said she was scared of someone in the back room whom she referred to as "Uncle George." Jessie looked in the back room and tried to assure Lucilla that no one was there, but she did not believe him. He sat back down on the couch and from then on, Lucilla became agitated if he tried to move. Jessie tried to calm her down and she told him to "stay the hell away" from her. Lucilla's hands were hanging at her sides and she refused to put down the knives. Lucilla's daughter, Yvette, tried to coax her mother to go to bed, but Lucilla told her to "stay the hell away" from her. Yvette followed her grandfather's direction to go back to her room and tried to go back to sleep. At some point shortly after Jessie had arrived, Lucilla asked if he had brought a gun; he said he had not and asked why she would need one; and she pointed her finger to her head, simulating a gun.

Meanwhile, Lucilla's brother, J.J. Amaya, having received a call from their mother, had gone to stand outside Lucilla's house and observe what was happening. He saw the wooden front door open and Lucilla standing with her back to the wooden door and right shoulder to the security screen door. He could hear Lucilla yelling, "I am tired of men using me. I am tired of men taking advantage of me. I am tired of men, the men in my life." Lucilla was very upset; J.J. heard her cry and moan and felt she needed help. He returned to his home a short walk away and, after talking to his mother, called his father at Lucilla's house.

On the phone, Jessie confirmed that Lucilla was holding a knife in each hand. J.J. asked for permission to call the police and Jessie reluctantly agreed, because "they were the professionals. They knew how to handle things like that." About six months before, the police had been called and Lucilla had been hospitalized for a couple of days because of an incident in which Lucilla was upset and holding a knife. On that occasion, Lucilla had complied with the police request to come outside and had gone willingly with them.

At some point, Lucilla looked out the door and realized J.J. was outside. She seemed startled. Lucilla was stabbing the door behind her with the knives, as she had been throughout the incident. Jessie tried to stand up from the couch to hug Lucilla but she yelled at him not to move and he sat back down. Jessie did not try to take the knives away from Lucilla because she had not threatened anyone and he thought it would agitate her if he tried to remove the knives.

Believing the situation was not an emergency, J.J. called a nonemergency police line rather than dialing 911. The dispatcher who took his call at 6:12 a.m. testified that J.J. reported his sister was under the influence of something, had been "5150" in the past and was in possession of a knife. He said he thought his sister might harm herself and he was concerned about his father and niece, who were in the house with his sister. He did not say his father or niece was being threatened. The dispatcher did not recall J.J. saying that his sister or anyone else was in possession of a gun. J.J. provided his own and Lucilla's phone numbers, but suggested that the police not call Lucillas house because he was afraid this might escalate the situation. When the dispatcher told J.J. the duty sergeant was on an emergency call, he said he was beginning to think the situation was going to escalate to an emergency and the dispatcher told him to call back on 911 if this occurred.

The acting watch commander on duty at this time was Corporal Tod Woodward, who had assumed this role because the sergeant on duty had gone home early. Woodward had been on the SWAT team for about five years but did not have specific training as a supervisor in a crisis situation. Since assuming the rank of corporal in June 1997, Woodward had responded to a critical situation as a supervising officer on two occasions that he recalled; he had not had occasion to respond as a supervising officer to a call involving a barricaded suspect, a potential "5150" or a person under the influence of a "central nervous stimulant" and he had had no formal training in hostage negotiation.

When he heard the broadcast of a "`5150' with a knife," Woodward had the dispatcher direct Officers Kruger and Housley to respond. The two officers were dispatched to the scene at 6:19 a.m. Officer Kruger directed the dispatcher to get information updating the situation and the dispatcher called Lucilla's house. Jessie told the dispatcher that Lucilla was still at the front door and still held two knives. Kruger recalled the dispatcher informing him that the suspect was at the front door with one knife, although when he reviewed the dispatch tape before his deposition in this case, he heard the dispatcher say the suspect had two knives.

Neither Kruger nor Housley activated their red lights and siren as they approached Lucilla's house, not wanting to aggravate the situation. As Kruger neared the house, he was flagged down by J.J., who said that his sister and father were...