Von Batsch v. American Dist. Telegraph Co.

CourtCalifornia Court of Appeals
Writing for the CourtTHOMPSON; LILLIE, P.J., and JOHNSON
Citation175 Cal.App.3d 1111,222 Cal.Rptr. 239
PartiesLucy VON BATSCH, an Individual, and the Check Service Company, a California corporation, Plaintiffs and Appellants, v. AMERICAN DISTRICT TELEGRAPH COMPANY, a California corporation, and the County of Los Angeles, Defendants and Respondents. B008743.
Decision Date19 December 1985

Zimmerman, Rosenfeld & Gersh, and Sandy Ethan Tandler, Beverly Hills, for plaintiffs and appellants.

Lawler, Felix & Hall, and Wayne S. Grajewski, Los Angeles, for defendant and respondent American Dist. Telegraph Co.

Chase, Rotchford, Drukker & Bogust, John A. Daly, and Ladell Hulet Muhlestein, Los Angeles, for defendant and respondent County of Los Angeles.

THOMPSON, Associate Justice.

In this opinion, we hold that the County was properly dismissed as a defendant because its officers owed no duty of care to the decedent.

Plaintiffs Lucy Von Batsch and Check Service Company filed a complaint for wrongful death against American District Telegraph Company (ADT), a burglar alarm company, and the County of Los Angeles (County). The decedent, the husband of Von Batsch and president of Check Service, was killed by unknown intruders on his business premises. Check Service appeals from its dismissal as a plaintiff after the trial court sustained ADT's demurrer without leave to amend to Check Service's sole cause of action. Von Batsch appeals from the order dismissing the County as a defendant following the sustaining of County's demurrer without leave to amend to the sole cause of action against the County. 1

I Factual and Procedural Background

The allegations of the second and third causes of action of the complaint which we must accept as true show the following: At the time of decedent's death, ADT provided burglar alarm service to Check Services for its business premises in Compton pursuant to a written contract which provided that if the alarm indicated an unauthorized entry, ADT would contact local police and dispatch its own employee to investigate the cause of the alarm. On January 14, 1983, at 4:49 a.m., ADT received such an indication and notified the County Sheriff's Department. At about 5:15 a.m., the deputies arrived at the premises and investigated the premises. After their investigation they told Check Service employees that they had investigated the premises and there were no intruders there. At about 6:55 a.m., ADT employees arrived to conduct their investigation. They examined the front and rear doors and all windows. However, neither the ADT employees nor the deputies inspected the roof although directly adjacent to the premises was a stairway leading to a platform which would have given an unimpeded view of the roof. Had they examined the roof, "they would have discovered five separate holes in which intruders attempted to, and eventually did, gain unauthorized access to the [p]remises, and would have been put on alert that such intruders were still lurking on the [p]remises." At about 7:10 a.m., the ADT employees reported to ADT that there had been no break-in at the premises. Even though the alarm continued to indicate the presence of intruders, ADT undertook no further action to contact the sheriff's department, did not send other employees to investigate nor inform Check Service employees. At about 8 a.m., decedent entered the premises to begin work and was killed by intruders.

In the second cause of action for "negligence," Check Service further alleged that as a result of ADT's "gross negligence," which contributed to the death of decedent, it was deprived of the financial benefits of the services of a key employee. In the third cause of action for "wrongful death," Von Batsch further alleged that as a result of County's "gross negligence," which contributed to the death of decedent, she had lost his society, comfort, attention, services and support.

ADT demurred to the second cause of action on the ground that an employer has no cause of action for the wrongful death of its employee. County demurred to the third cause of action on the grounds of governmental immunity and lack of a causal relationship between its alleged omission and decedent's death. This appeal followed the entry of orders of dismissal upon the sustaining of demurrers without leave to amend.

II Standards of Review

In reviewing a judgment of dismissal entered upon the sustaining of a demurrer without leave to amend, we treat the demurrer as admitting all material facts properly pleaded and all reasonable inferences which can be drawn therefrom. (Buckaloo v. Johnson (1975) 14 Cal.3d 815, 828, 122 Cal.Rptr. 745, 537 P.2d 865; Service Employees International Union v. Hollywood Park, Inc. (1983) 149 Cal.App.3d 745, 757, 197 Cal.Rptr. 316.) The function of a demurrer is to test the sufficiency of a pleading by raising questions of law. (Buford v. State of California (1980) 104 Cal.App.3d 811, 818, 164 Cal.Rptr. 264; Whitcombe v. County of Yolo (1977) 73 Cal.App.3d 698, 702, 141 Cal.Rptr. 189.) It is error to sustain a demurrer where a plaintiff has stated a cause of action under any possible legal theory. (Barquis v. Merchants Collection Assn. (1972) 7 Cal.3d 94, 103, 101 Cal.Rptr. 745, 496 P.2d 817; Service Employees International Union v. Hollywood Park, Inc., supra, 149 Cal.App.3d 757, 197 Cal.Rptr. 316.) But it is not an abuse of discretion to sustain a demurrer without leave to amend if there is no reasonable possibility that the defect can be cured by amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349, 134 Cal.Rptr. 375, 556 P.2d 737; Keyes v. Santa Clara Valley Water Dist. (1982) 128 Cal.App.3d 882, 885, 180 Cal.Rptr. 586.) Plaintiff bears the burden of demonstrating that the trial court abused its discretion by showing in what manner it can amend its complaint and how that amendment will change the legal effect of its pleading. (Johnson v. County of Los Angeles (1983) 143 Cal.App.3d 298, 306, 191 Cal.Rptr. 704.)

III Check Service Cannot State A Cause of Action Under Civil Code Section 49 For Death of Its Employee

Check Service contends that sustaining ADT's demurrer was an abuse of discretion because (1) it sufficiently stated a cause of action pursuant to Civil Code section 49, subdivision (c), for damages resulting from the death of an employee caused by a third party's negligence; and (2) in any event, it should have been granted leave to amend to state a cause of action for breach of contract against ADT.

Civil Code Section 49, originally enacted in 1872 and last amended in 1939, provides in pertinent part: "The rights of personal relations forbid: .... (c) Any injury to a servant which affects his ability to serve his master, other than seduction, abduction or criminal conversation."

In I.J. Weinrot & Son, Inc. v. Jackson (1985) 40 Cal.3d 327, 341, 220 Cal.Rptr. 103, 708 P.2d 682, our Supreme Court recently held that "section 49, subdivision (c) does not provide a right of action for a corporate employer seeking recovery for expenses and lost profits incurred as a result of negligent injury to its employees." A fortiori, that statute does not create a cause of action which would allow a corporate employer to sue for the death, not injury, of an employee.

Indeed, even before the decision in Weinrot, such a claim had been uniformly rejected by courts considering this precise issue. (See, e.g. Knowlton v. Pacific Southwest Airlines (1980) 113 Cal.App.3d 152, 169 Cal.Rptr. 668; Owens v. United States (9th Cir.1983) 713 F.2d 1461, 1468 [applying California law]; Harris Corp. v. Comair, Inc. (6th Cir.1982) 712 F.2d 1069, 1071 [applying Kentucky law]; Preiser Scientific, Inc., of Ohio v. Piedmont Aviation, Inc. (4th Cir.1970) 432 F.2d 1002 [applying West Virginia law]; Bowen v. Pan Am. World Airways, Inc. (D.C.N.Y.1979) 474 F.Supp. 563, 565 [applying Alaska law]; Fuksman v. General Motors Corporation (La.App. 4 Cir.1984) 447 So.2d 74, 75; Arrow Electronics, Inc. v. Stouffer Corp. (N.Y.Supreme Ct., 1982) 117 Misc.2d 554, 458 N.Y.S.2d 461, 462-463; Snow v. West (Ore.1968) 250 Or. 114, 440 P.2d 864, 865.)

The complaint filed herein was "for wrongful death," and the second cause of action by Check Service against ADT was labeled "negligence." Check Service, however, cannot state a cause of action for wrongful death. (Knowlton v. Pacific Southwest Airlines, Inc., supra, 113 Cal.App.3d at p. 154, 169 Cal.Rptr. 668.)

A wrongful death action in California is wholly statutory. (Steed v. Imperial Airlines (1974) 12 Cal.3d 115, 119-120, 115 Cal.Rptr. 329, 524 P.2d 801.) "Because it is a creature of statute, the cause of action for wrongful death 'exists only so far and in favor of such person as the legislative power may declare.' " (Justus v. Atchison (1977) 19 Cal.3d 564, 575, 139 Cal.Rptr. 97, 565 P.2d 122; Garcia v. Douglas Aircraft Co. (1982) 133 Cal.App.3d 890, 893, 184 Cal.Rptr. 390.) Thus, the right to bring an action for the wrongful death of a human being is strictly limited to only those persons described in Code of Civil Procedure section 377. (Steed v. Imperial Airlines, supra, 12 Cal.3d 115, 115 Cal.Rptr. 329, 524 P.2d 801 [dependent stepchild denied recovery because at that time stepchild not listed in § 377]; Nieto v. City of Los Angeles (1982) 138 Cal.App.3d 464, 470, 188 Cal.Rptr. 31 [fiancee denied recovery]; Garcia v. Douglas Aircraft Co., supra, 133 Cal.App.3d 890, 184 Cal.Rptr. 390 [meretricious spouse denied recovery].) Since employers are not listed in section 377, they do not have standing to sue for the wrongful death of an employee. Accordingly, the cause of action herein was demurrable.

The trial court, however, abused its discretion in granting the demurrer without leave to amend. In their opposition to the demurrer, Check Service had specifically requested leave to amend their complaint to state a cause of action for breach of contract. This was the original complaint. There had...

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