Rasmussen v. City of L.A.

• Decision Date: 15 November 2012
• Docket Number: B234731
• Court: California Court of Appeals Court of Appeals
• Parties: NELS RASMUSSEN et al., Plaintiffs and Appellants, v. CITY OF LOS ANGELES, Defendant and Respondent.

NELS RASMUSSEN et al., Plaintiffs and Appellants,

v.CITY OF LOS ANGELES, Defendant and Respondent.

B234731

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT

DATED: November 15, 2012

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County

Super. Ct. No. BC442329)

APPEAL from a judgment of the Superior Court of Los Angeles County. Elizabeth Allen White, Judge. Affirmed.

Taylor & Ring and John C. Taylor; Esner, Chang & Boyer, for Plaintiffs and Appellants.

Carmen A. Trutanich, City Attorney, Amy Jo Field, Supervising City Attorney and Blithe S. Bock, Deputy City Attorney, for Defendant and Respondent.

The statute of limitations serves the salutary policy of preventing the revival of stale claims at a time when evidence may have become lost and witnesses unavailable or forgetful. On the other hand, as our colleagues in the Fourth District recently wrote, "Its operation in particular cases, however, can be sadly inequitable." (Estate of Ziegler (2010) 187 Cal.App.4th 1357, 1359.) If the alleged facts are true, they call out for redress on the merits, subject to the other affirmative defenses raised by respondents. We nevertheless are constrained by law to uphold the trial court's decision to dismiss this case because of the statute of limitations. We thus affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. Introduction

Plaintiffs and appellants Nels and Loretta Rasmussen (the Rasmussens) brought this action against the City of Los Angeles (the city) for violation of Civil Code section 52.1, subdivision (b) (§ 52.1(b)), and other torts.¹ The gravamen of the action is that Los Angeles Police Department (LAPD) detectives conspired for some 25 years to conceal that the Rasmussens' daughter, Sherri, was murdered by an LAPD officer in 1986.²

The city filed a demurrer to the operative first amended complaint, which the trial court sustained without leave to amend. The Rasmussens appeal from the ensuing judgment of dismissal.

B. Factual Summary

In accord with the usual rules of appeal from a judgment of dismissal following the sustaining of a demurrer without leave to amend, we assume as true the facts as alleged in the complaint. (R.S. v. PacifiCare Life & Health Ins. Co. (2011) 194 Cal.App.4th 192, 195.)

Sherri was 29 years old when she was murdered on February 24, 1986, by her husband's ex-girlfriend, LAPD officer Stephanie Lazarus. The next day, the Rasmussens met with LAPD detectives about their daughter's death. They told the investigating officers of their suspicions that the former girlfriend of their daughter's husband (whose name they did not then know) had killed their daughter. They told detectives that the girlfriend had been stalking Sherri for several months and had confronted Sherri more than once. Sherri's husband, John Ruetten, told LAPD officers that Lazarus was his ex-girlfriend and that she was an LAPD officer. Disregarding the Rasmussens' suspicions of Lazarus, the LAPD identified Sherri's killers as two unknown male Hispanics who were suspected of several burglaries in the area. Over the next several years, the Rasmussens were repeatedly rebuffed in their efforts to have the LAPD investigate Lazarus. By 1998, the conduct of the investigating officers had dissuaded the Rasmussens from further communication with the LAPD about their daughter's murder. But the "unknown male Hispanics" theory was discredited in 2005 after DNA obtained from a bite mark on Sherri's body was tested and found to have been left by a woman. In June 2009, after Lazarus's DNA was matched to that on the bite mark, Lazarus was arrested and charged with Sherri's murder. At the time she was an LAPD detective. When this lawsuit was filed in July 2010, Lazarus was still awaiting trial.

C. Summary of Pleadings

1. The Original Complaint

The original complaint had three causes of action, only the first and second of which named the city as a defendant. The gist of the first cause of action for violation ofsection 52.1(b) was that LAPD detectives engaged in a conspiracy to divert attention away from Lazarus as a suspect in the murder in order to avoid embarrassing the LAPD; as a result, the Rasmussens were denied their constitutional right of access to the courts to prosecute a civil wrongful death action against Lazarus.³ The second cause of action alleged that the same conduct violated 42 United States Code section 1983. The third cause of action for wrongful death was alleged against Lazarus only, not the city.

Based on the 42 U.S.C. section 1983 civil rights claim, the city caused the case to be removed to federal court. In the federal court, the Rasmussens stipulated to dismiss with prejudice the second cause of action so that the case could be returned to the state court.

Upon remand to the state court, the city demurred to the first cause of action on grounds of immunity under Government Code sections 821.6, 845, 846 and County of Los Angeles v. Superior Court (2009) 181 Cal.App.4th 218, 229. The Rasmussens countered that, under Bell v. Milwaukee (7th Cir. 1984) 746 F.2d 1205, 1261, overruled on other grounds in Russ v. Watts (7th Cir. 2005) 414 F.3d 783, the city was not immune from liability for violation of section 52.1(b). The trial court sustained the demurrer with leave to amend. It reasoned that a failure to investigate a crime does not constitute the threats, intimidation or coercion required by section 52.1(b). The Rasmussens were given until January 28, 2011, to file an amended complaint.

2. The First Amended Complaint

In the operative first amended complaint (the complaint) filed on January 28, 2011, the wrongful death cause of action against Lazarus became the second cause of action. The Rasmussens also added a third cause of action for intentional infliction of emotional distress and a fourth cause of action for fraudulent concealment, both of whichnamed only the city as a defendant. In a section entitled "Facts Common to All Claims," the complaint alleged the following coercive and threatening conduct by LAPD officers. At the Rasmussens' first meeting with the LAPD, the lead detective " 'got into [Nels'] face,' acted aggressively toward [Nels] and physically bumped Nels and put his hands on Nels, interposing himself as a barrier between Nels and his son-in-law, John Ruetten . . . ." At each meeting with the Rasmussens, LAPD detectives "acted impatiently, were critical of, and sarcastic and openly hostile towards the [Rasmussens] . . . . In various meetings, the LAPD detectives would angrily throw papers around the meeting room table when pushed about whether Lazarus had been interviewed; make statements to [the Rasmussens] that 'If you think you're so good, you can take over the investigation!'; 'You're no help to this case!' and 'You've been watching too much television!' These statements were made in a confrontational and threatening voice and manner intended to prevent [the Rasmussens] from pursuing any action against Lazarus or the LAPD. This conduct did, in fact, intimidate [the Rasmussens] and stifle [their] inquiry." During one meeting in which the Rasmussens questioned whether the detectives were investigating Lazarus, two detectives stood over Nels and one said, " 'You'd better watch yourself in going any farther with this!' " The Rasmussens "reasonably interpreted this as a threat meant to prevent [them] from pursuing any action against Lazarus or the LAPD. This conduct did, in fact, intimidate [the Rasmussens] and stifle [their] inquiry." The Rasmussens "were indeed scared, and frightened for themselves and their family; that if they were to continue their attempts to question LAPD detectives, that they would be harmed in some unforeseeable fashion. Because of the threatening conduct and statements of the LAPD detectives, [the Rasmussens] were coerced into stopping their investigation and ceased all contact with [the LAPD] in 1998, believing their daughter's murderer would never be apprehended."

The First Cause of Action alleged that by such conduct the LAPD denied the Rasmussens their First Amendment rights, as well as their due process rights under the Fifth and Fourteenth Amendments of the United States Constitution, and their rights "under similar clauses in the California Constitution," including the right to have a fairinvestigation of their daughter's murder, to know who killed their daughter, and to obtain civil redress for her wrongful death.

The new Third Cause of Action for Intentional Infliction of Emotional Distress alleged that the conduct complained of was intended to and did cause the Rasmussens to suffer severe emotional distress.

The gist of the new Fourth Cause of Action for "Fraudulent Concealment" was that having undertaken to investigate Sherri's murder, the city had a duty to disclose the killer's identity to the Rasmussens; the city breached that duty by concealing the fact that Lazarus was the killer; had the Rasmussens known Lazarus was the killer, they would have immediately "brought a civil lawsuit against her and they would have achieved some measure of peace over the loss of their daughter. This fraudulent concealment caused [the Rasmussens] to suffer more than 23 years of emotional distress, worry, anger, and frustration and other damages."⁴

The city demurred to the complaint on the grounds that (1) it was filed four days after the date the trial court set for the filing of an amended complaint; (2) all of the causes of action alleged against the city were barred by governmental immunity; (3) the Rasmussens had no standing to bring a claim under section 52.1(b); and (4) the city was not liable for Lazarus's actions which were not taken in the course...