Russell v. Dep't of Corr. & Rehab.

• Decision Date: 16 December 2021
• Docket Number: C087916
• Citation: 72 Cal.App.5th 916,287 Cal.Rptr.3d 778
• Parties: Steven E. RUSSELL, Plaintiff and Appellant, v. DEPARTMENT OF CORRECTIONS AND REHABILITATION, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

72 Cal.App.5th 916

287 Cal.Rptr.3d 778

Steven E. RUSSELL, Plaintiff and Appellant,

v.DEPARTMENT OF CORRECTIONS AND REHABILITATION, Defendant and Appellant.

C087916

Court of Appeal, Third District, California.

Filed December 16, 2021

Certified for Partial Publication.^*

Law Offices of Kenneth N. Meleyco, Kenneth N. Meleyco ; The Ehrlich Law Firm, Jeffrey I. Ehrlich for Plaintiff and Appellant.

Rob Bonta, Attorney General, Danielle F. O'Bannon, Senior Assistant Attorney General, Pamela J. Holmes and Catherine Woodbridge, Supervising Deputy Attorneys General, Jeremy C. Thomas, Deputy Attorney General for Defendant and Appellant.

Duarte, J.

This appeal arises out of the tragic rape and murder of Rachel Renee Russell, perpetrated by her grandson, Sidney DeAvila. DeAvila suffered from severe mental illness, and at the time of the murder he was on parole. Following her death, Russell's son, Steven Russell,¹ brought an action against the California Department of Corrections and Rehabilitation (Department), alleging that the Department's parole agents had a special relationship with Russell, and they failed to warn her of DeAvila's dangerous propensities. The jury agreed; it found the Department 60 percent at fault for Russell's death by failing to warn her of a foreseeable danger that was unknown to her, and DeAvila 40 percent at fault. It awarded plaintiff $4.5 million in noneconomic damages, which the trial court reduced to $2.7 million given the Department's 60 percent of fault.

The Department appeals; it asserts it had no duty to warn Russell of DeAvila's dangerous propensities and, even if it had a duty to warn, it is immunized from liability.

Plaintiff claims on cross-appeal that the trial court erred in reducing the judgment and imposing sanctions against trial counsel.

Although it is clear that the agents certainly could have done more to warn Russell about the danger posed by her parolee grandson as well as to encourage her to take steps to mitigate that danger, here we are compelled to agree with the Department that because the facts presented were not sufficient to establish that there was a special relationship between the agents and Russell, no duty to warn arose. Accordingly, we must reverse the judgment, as we explain in the published portion of our opinion. Because we find no duty to warn, we need not and do not discuss the immunity issue.

In the unpublished portion of our opinion, we conclude the trial court did not abuse its discretion in imposing sanctions against plaintiff's counsel. We uphold the sanctions order and reverse the judgment.

FACTS AND PROCEEDINGS

Pretrial Procedure

On February 23, 2013, DeAvila raped and murdered Russell at her home in Stockton. DeAvila was on parole at the time of his crime.

In August 2013, plaintiff filed a complaint alleging that the negligence of the Department's agents contributed to the murder. Plaintiff later amended the pleading to include allegations that DeAvila's parole agents knew he intended to rape and kill Russell but failed to warn her. Plaintiff abandoned those allegations after discovery revealed no evidence anyone knew DeAvila intended to harm Russell. In March 2017, plaintiff filed a second amended complaint alleging DeAvila was "released on parole and placed by parole [agents] into the home of [Russell] where he was to live." The complaint alleged two parole agents, Roy Lacy and Adolfo Romero, formed a special relationship with Russell that gave rise to a duty to warn her of DeAvila's dangerous propensities.

The Department demurred to the second amended complaint; it asserted plaintiff failed to plead facts sufficient to constitute a cause of action because: (1) plaintiff failed to plead facts sufficient to demonstrate special relationship had been established; (2) parole agents did not "place" DeAvila with Russell; (3) Russell did not rely on any representation by Romero that DeAvila was safe to be around her; and (4) there was no evidence any parole agent was aware of a specific threat to Russell such that they had a duty to warn her. The Department further claimed immunity under Government Code sections 820.2 and 845.8.

The trial court overruled the demurrer. The court concluded as relevant here that the second amended complaint alleged a special relationship between Romero and Russell, and plaintiff alleged the Department released DeAvila knowing he was going to Russell's residence and failed to warn her of his dangerousness. The Department then moved for summary judgment in part based on its assertion that plaintiff could not establish that the Department's agents owed a duty of care to Russell, and therefore they had no duty to warn her. The trial court denied the motion. The court found the following triable issues of fact: (1) whether Russell had a special relationship with Romero; (2) whether Romero's instruction to DeAvila and Russell that DeAvila could remain at Russell's home during the day was the equivalent of "placing" DeAvila in Russell's home; (3) whether Romero's conduct of telling DeAvila he could be at Russell's home during the daytime, but had to leave at night, created an unreasonable risk of harm to Russell; (4) whether Russell was a foreseeable victim; (5) whether the Department had a duty to warn Russell of DeAvila's dangerousness; (6) whether the Department's conduct of telling Russell that DeAvila could be at her home during the daytime, but not at night, created a foreseeable risk to Russell; (7) whether the Department was negligent in monitoring DeAvila; and (8) whether the Department's failure to warn Russell of DeAvila's dangerousness was a substantial factor in Russell's death.

During the hearing on the motion, the trial court stated that the issue of whether Russell had a special relationship with one or both of the parole agents is "clearly a factual issue" that is "not something the Court can decide here." Neither party disagreed with that assertion. During motions in limine, the court again asserted that the existence of a special relationship was a question for the jury.

Jury trial commenced in June 2018. As relevant here, the jury was tasked with determining whether a special relationship existed that gave rise to a duty to warn.

Background

Russell raised DeAvila and treated him as her son. DeAvila first received psychiatric services at age 12 and was prescribed anti-psychotic medication at age 19. He began to engage in criminal behavior and started receiving treatment from the Department in 2004.

Lacy was DeAvila's parole agent from 2007 to early May 2012, and Romero was DeAvila's parole agent from May 2012 to February 2013, the month of Russell's murder.

Lacy's Supervision of DeAvila and Contact with Russell

In July 2007, DeAvila was arrested while on parole for assaulting a co-resident; Lacy documented the incident and noted DeAvila was a danger to himself and others. In August, Lacy discovered that DeAvila tested positive for cocaine use.

In October 2008, DeAvila was arrested and charged with assault with a deadly weapon on his girlfriend. He was found incompetent to stand trial and received treatment. He was tried and convicted in June 2009 and was released on parole in December 2009. In January 2010, DeAvila tested positive for cocaine, and Lacy recommended that DeAvila continue on parole subject to increased drug testing. Lacy checked a box indicating DeAvila's risk level as "high-violent." In November 2010, DeAvila tested positive for methamphetamine.

Because DeAvila lived with Russell while on parole, Lacy went to Russell's house at least twice a month to check on and drug test DeAvila. These visits were never longer than 10 to 15 minutes. Sometimes Lacy would see Russell in her yard while he was in the area visiting other parolees, and he would stop, say hello, and see how she was doing. Lacy could not estimate how many times he checked in at Russell's house during the years he supervised DeAvila.

Lacy had a good rapport with Russell, and plaintiff testified Russell had warm feelings toward Lacy and trusted him because he seemed to care about DeAvila's well-being. According to Lacy, he considered Russell to be a "very nice lady," although he did not describe them as friends. Lacy never gave Russell his personal cellphone number, he never sat on her porch and drank coffee with her, he never hugged her, and he addressed her as "Ms. Russell" and she addressed him as "Mr. Lacy."

Russell received DeAvila's monthly social security checks, and Lacy advised Russell against giving DeAvila all of these funds at once so he would have money to last through the month. Lacy knew at the time of that advisement that DeAvila was using cocaine, and he probably told Russell that DeAvila tested positive for cocaine. Lacy was aware DeAvila had tested positive for methamphetamine use in November 2010, but he did not remember informing Russell of that fact.

Lacy testified that he was never aware that DeAvila posed a threat to Russell, and Russell never told him that she was concerned for her safety. He never told her DeAvila was classified as a "high-violent" parolee, but he never told Russell that it was safe for DeAvila to live in her house.

Plaintiff saw Lacy at Russell's house twice in 2010 or 2011. The first time Lacy was drug testing DeAvila, and Lacy told DeAvila, " ‘you better make sure you're doing what your grandma says or else.’ " The second time, plaintiff saw Lacy sitting on Russell's porch; he did not see Lacy drinking coffee, but there were two coffee cups. He overheard Lacy call Russell "Mother Russell," and Russell called him "Lacy." Russell's neighbor testified she saw Lacy give Russell a "side hug" as he was leaving her house, and she heard Lacy call Russell "Rachael," and Russell say "okay, Roy."

In February 2011, Russell told Lacy that DeAvila appeared unstable. Lacy noted DeAvila "was talking fast and upset," and he ordered DeAvila to report to the outpatient clinic where parolees can obtain mental health treatment...