Shelton v. City of Westminster

• Decision Date: 24 December 1982
• Citation: 138 Cal.App.3d 610,188 Cal.Rptr. 205
• Court: California Court of Appeals
• Parties: Donald R. SHELTON, et al., Plaintiffs and Appellants, v. CITY OF WESTMINSTER, et al., Defendants and Respondents. Civ. 24979.

Page 205

188 Cal.Rptr. 205

138 Cal.App.3d 610

Donald R. SHELTON, et al., Plaintiffs and Appellants, v. CITY OF WESTMINSTER, et al., Defendants and Respondents.

Civ. 24979.

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

Dec. 24, 1982.

Hearing Denied Feb. 23, 1983.

Marc Creighton Block, Huntington Beach, for plaintiffs and appellants.

Ruston & Nance and Lee P. O'Connor, Tustin, for defendants and respondents.

STANIFORTH, Associate Justice.

Plaintiffs (Sheltons) appeal a judgment of dismissal entered upon an order sustaining, without leave to amend, the general demurrer of defendants City of Westminster and police employee (City) to Sheltons' second amended complaint (complaint). For the reasons set forth we affirm the order.

For purposes of the demurrer and this appeal, the factual allegations of the complaint must be taken as true. (Alcorn v. Anbro Engineering, Inc., 2 Cal.3d 493, 86 Cal.Rptr. 88, 468 P.2d 216.) The complaint alleged in substance the following: ¹ Sheltons' son Mark Duane Shelton was an apparent homicide victim of the "Freeway Killers." Mark had been missing since August 4, 1979 when screams were heard by the Sheltons' neighbors. On October 6, 1979, the Sheltons filed a missing persons report with the Westminster Police Department. Sheltons allege the police officers told them their missing person report would be fully and completely investigated; in fact the City failed to provide them with a form from the California Department of Justice authorizing the release of their son's dental records. Sheltons allege such a procedure-duty is required by Penal Code section 11114. ²

Sheltons' son was found dead on August 11, 1979, in San Bernardino County and was listed by San Bernardino officials as an unknown person--John Doe No. 16-79. Sheltons were not informed John Doe 16-79 was their son until April 1, 1980. Sheltons charged the City's failure to obtain their son's dental record and forward it to the Department of Justice in a timely manner caused damages such as investigation expense, grief and sorrow, shock and injury to the nervous system, mental and physical pain and suffering, permanent disability, medical and other expenses related to these injuries.

DISCUSSION

I

The first cause of action alleges a failure to discharge a mandatory duty required by section 11114 and seeks to impose liability pursuant to Government Code section 815.6. Government Code section 815.6 provides:

"Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty." (Italics added.)

We face the problem of ferreting out legislative intent from a statute whose plain language and legislative history stubbornly refuse to yield even a hint of statutory purpose to create a duty toward the Sheltons or to contemplate a tortious award of damages for the injuries claimed.

Where the statute's plain language is of no assistance, we turn next to the Legislative Counsel's Digest as an aid in ascertaining the intent of the statute. (See Morris v. County of Marin, 18 Cal.3d 901, 136 Cal.Rptr. 251, 559 P.2d 606.) The digest to the 1978 enactment states in part:

"Under existing law, the coroner or medical examiner is required to investigate deaths which occur without medical attendance and under other specified circumstances.

"This bill would require the coroner or medical examiner, when he is unable to establish the identity of the body in the investigation of a death by visual means, fingerprints, or other identifying data, to have a dentist carry out a dental examination of the body. If the coroner or medical examiner with the aid of the dental examination and other identifying findings is still unable to establish the identity of the body, such person would be required to prepare and forward the dental examination records to the Department of Justice, as specified.

"This bill would require a sheriff, chief of police, coroner or medical examiner, or other law enforcement authority to request the family or next of kin of a missing person who has not been found within 30 days to give them written consent to contact and request the missing person's dental records from such person's dentist or dentists and to send such records to the Department of Justice, along with a missing person report, for recordkeeping, after conferring with the coroner or medical examiner, as specified. It would require the sheriff, chief of police, coroner or medical examiner, or other law enforcement authority to report to the Department of Justice when a person reported missing is found, and would require the department to erase specified records with respect to such missing person upon receipt of such report.

"This bill would require the Department of Justice to maintain a file containing, among other things, the information from the dental records obtained from a missing person's dentist or dentists. It would require the Department of Justice, upon receipt of dental examination records of an unidentified body submitted by a coroner or medical examiner, as discussed above, to compare such records with those dental records of missing persons on file with the department and determine which scoring probabilities are the highest for purposes of identification, and send such information to the pertinent coroner or medical examiner, as specified." (Italics added.)

As is now apparent, the digest statement totally lacks any support for the conclusion this statute was enacted to protect the Sheltons from the type of injury alleged in their first cause of action. Rather, this statute appears to have been enacted to aid the coroner in identifying bodies in the criminal investigation of a death. This statute may incidentally benefit friends, and relatives of a decedent by aiding in identification process but the statute simply does not give an inkling it was enacted to provide decedent's friends, relatives or next of kin notification of a death in a more timely fashion or contemplate a cause of action for damages for the injuries claimed here.

In the first place, no particular or specific person or body is charged with the duty; rather several departments are assigned common duties and a variety of duties. In short, a whole host of duties are assigned at various levels of government. The joint duties are interrelated and contingent upon the performance of other governmental departments. The plain words of the statute can be scrutinized in part or in whole in vain. There is no hint that plaintiffs are (1) owed a duty (Davidson v. City of Westminster, 32 Cal.3d 197, 203, 185 Cal.Rptr. 252, 649 P.2d 894) or (2) among the class of persons the statute was designed to protect, or (3) the statute was designed to protect against the particular injury caused. (Gov.Code, § 815.6.)

Secondly, not all statutes using direct obligatory language create a "mandatory duty." (Morris v. County of Marin, supra, 18 Cal.3d 901, 910, fn. 6, 136 Cal.Rptr. 251, 559 P.2d 606.) ³ It is arguable in this case the obligatory language creating the police duty is merely administrative instruction but we accept a heavier burden on this appeal. We assume section 11114 imposed a "mandatory duty" upon the City within the meaning of section 815.6. (See Morris v. County of Marin, supra, 18 Cal.3d 901, 907-908, 136 Cal.Rptr. 251, 559 P.2d 606; Bradford v. State of California, 36 Cal.App.3d 16, 18, 111 Cal.Rptr. 852; Bossi v. State of California, 119 Cal.App.3d 313, 174 Cal.Rptr. 93; Department of Motor Vehicles v. Superior Court, 105 Cal.App.3d 537, 164 Cal.Rptr. 379; Slagle Constr. Co. v. County of Contra Costa, 67 Cal.App.3d 559, 136 Cal.Rptr. 748.) Such determination however does not resolve our issue. The nature and extent of the duty mandated is the difficult question here.

II

In face of a total lack of judicial precedent for their cause of action and a statute which does not expressly or by rational inference contemplate their claim the Sheltons ask this court to undertake the delicate and difficult task of fashioning a new cause of action, to find a duty owed them.

The Supreme Court (Rowland v. Christian, 69 Cal.2d 108, 112, 70 Cal.Rptr. 97, 443 P.2d 561) has declared:

"Although it is true that some exceptions have been made to the general principle that a person is liable for injuries caused by his failure to exercise reasonable care in the circumstances, it is clear that in the absence of statutory provision declaring an exception to the fundamental principle enunciated by section 1714 of the Civil Code, no such exception should be made unless clearly supported by public policy. [Citations.]" (Italics added.)

Assuming as an established premise the absence of a clear statutory directive, under what circumstances should a wholly new cause of action be judicially created?

In Smith v. Alameda County Social Services Agency, 90 Cal.App.3d 929, 933, 153 Cal.Rptr. 712, the court faced this precise question. The appeal court held, whether in a general negligence action or an action based on section 815.6, the ascertainment of the existence of a cause of action must begin with the determination of the presence of a duty owed to the plaintiff.

Smith explained:

"Decisions as to whether to tighten or enlarge 'the circle of rights and remedies' are often phrased in terms of 'duty of care.' The existence or absence of a duty cannot be determined by mechanical or formal tests. Rather 'judicial recognition of such duty in the defendant with the consequence of his liability in negligence for its breach, is initially to be dictated or precluded by considerations of public policy.' [Citations.]" (Id., at p. 935, 153 Cal.Rptr. 712; fn. omitted.)

How "duty" is to be found:

" ' "[D]uty" is ......