Weissich v. County of Marin

• Decision Date: 24 October 1990
• Docket Number: No. A045171,A045171
• Citation: 224 Cal.App.3d 1069,274 Cal.Rptr. 342
• Court: California Court of Appeals Court of Appeals
• Parties: Rosemary WEISSICH et al., Plaintiffs and Appellants, v. COUNTY OF MARIN et al., Defendants and Respondents.

Page 342

274 Cal.Rptr. 342

224 Cal.App.3d 1069

Rosemary WEISSICH et al., Plaintiffs and Appellants, v. COUNTY OF MARIN et al., Defendants and Respondents.

No. A045171.

Court of Appeal, First District, Division 3, California.

Oct. 24, 1990.

Rehearing Denied Nov. 26, 1990.

Review Denied Jan. 30, 1991.

Alvin H. Goldstein, Jr., Mark L. Musto, Lisa P. Foster, Goldstein & Phillips, San Francisco, for plaintiffs and appellants.

Douglas J. Maloney, County Counsel, Mari-Ann G. Rivers, Deputy, San Rafael, Michael D. Senneff, Mark D. Peters, Senneff, Bernheim, Emery & Kelly, Santa Rosa, John K. Van de Kamp, Atty. Gen., Richard D. Martland, Chief Asst. Atty. Gen., Marvin Goldsmith, Sr. Asst. Atty. Gen., Tyler B. Pon, Supervising Deputy Atty. Gen., Wayman M. Robertson, Jr., Deputy Atty. Gen., San Francisco, for defendants and respondents.

STRANKMAN, Associate Justice.

In 1955, William O. Weissich, then District Attorney for the County of Marin (Marin), successfully prosecuted Malcolm Roland Schlette for arson. Over 30 years later, in November 1986, Schlette shot and killed Weissich. Weissich's heirs at law filed a wrongful death action against defendants Marin, the County of Sonoma (Sonoma), and the State of California (the State), among others, alleging breach of a duty to warn Weissich of Schlette's continuing criminal conduct after his 1975 release from prison. Plaintiffs' action against these defendants was dismissed after the trial court sustained their demurrers without leave to amend. ¹ We affirm the judgment.

Plaintiffs' Second Amended Complaint

Plaintiffs' second amended complaint alleged the following facts, which are deemed admitted for purposes of this appeal. (See Thompson v. County of Alameda (1980) 27 Cal.3d 741, 746, 167 Cal.Rptr. 70, 614 P.2d 728.) Weissich was the Marin District Attorney from 1953 to 1960. He prosecuted Schlette for arson in 1955. Schlette was convicted and sentenced to 20 years in prison. At sentencing, Schlette threatened the lives of Weissich, law enforcement personnel, the trial judge, and jurors.

Shortly before his scheduled release on parole, Schlette again threatened the lives of Weissich and other law enforcement personnel involved in his prosecution, and prepared a " 'death list' " identifying Weissich as one of his intended victims. Schlette was released on parole in October 1966, but violated its terms by absconding on the same day. Weissich was warned and security was provided by law enforcement officers from the State and Marin. Eventually Schlette was apprehended and returned to prison; when he was arrested, he had $5,000 in cash, a list of weapons, and a list of the names, addresses and telephone numbers of public officials and witnesses involved in his arson prosecution.

At this time Weissich was in private practice. For some time thereafter, he took special precautions for his personal safety, including procedures for screening clients and the installation of a security door in his downtown San Rafael law office.

Schlette was released from prison in October 1975, after serving the full 20-year term of his sentence. He went to Sonoma to live with his elderly mother.

Shortly before Schlette's release, representatives of the State's Department of Justice and the California Department of Corrections met with law enforcement officials from Marin and Sonoma to discuss Schlette's plan to carry out a " 'vendetta' " against Weissich and others involved in his arson prosecution. Weissich attended the meeting and was warned of the impending release.

At that meeting, defendants "undertook, impliedly promised and agreed to coordinate and share information acquired from their law enforcement intelligence activities relative to Schlette for the purpose of warning the threatened individuals, including decedent Weissich, and interdiction of the continuing threat of violence by Schlette." Weissich "was assured by ... defendants ... that he would be alerted to any threatening behavior on the part of Schlette to the extent such information was known."

In 1976, Weissich moved his law offices to a new location and discontinued the precautions he had taken in his previous office.

Between 1975 and 1983, defendants were informed that Schlette was involved in continuing criminal behavior, including possession of firearms. For example, defendants were informed in October 1976 that Schlette had a stockpile of firearms. Defendants briefed each other as to Schlette's conduct, but did not warn Weissich.

In 1982, Schlette went to a gun shop owned by a Sonoma deputy sheriff and asked about making alterations to a rifle and an automatic pistol. The deputy recognized Schlette and informed his superiors and the State Department of Corrections. In January 1983, Schlette was arrested by agents of the United States Bureau of Alcohol, Tobacco and Firearms (ATF); several weapons were seized during the arrest. Members of the Sonoma Sheriff's Department participated in the arrest and search, and were aware of the weapons seized. ATF informed the Marin Sheriff's Department of the arrest.

Schlette pled guilty in federal district court to being a felon in possession of firearms. In May 1983, he was sentenced to a two-year suspended sentence and five years of supervised probation, so that he could care for his elderly mother. Defendants knew or were on actual or constructive notice of the terms of his sentencing disposition. Weissich was not given any information about Schlette's 1983 arrest and conviction.

Between 1983 and 1985, Schlette cared for his mother, who died in 1985. He then moved to Santa Rosa. Plaintiffs alleged that defendants knew or should have known that in the absence of familial ties, Schlette was likely to activate his plan of revenge against Weissich and others. However, there was no allegation that defendants knew of either Schlette's mother's death, or his move.

While still on federal probation, Schlette obtained firearms. In May 1986, Sonoma acquired information that Schlette again had possession of firearms, but took no action to detain him or warn Weissich.

Schlette went to Weissich's San Rafael law office on November 18, 1986, and shot and killed him. Schlette then committed suicide.

Based on those factual allegations, plaintiffs alleged negligent breach of a duty to warn. They alleged that defendants voluntarily assumed a duty to warn Weissich of Schlette's continuing criminal behavior, and that Weissich reasonably relied on that promise to his detriment. More specifically the complaint alleged that as a proximate result of Weissich's dependence on defendants' assurances, he failed to take additional measures to protect himself because he was misled into believing that Schlette was no longer a significant threat. In a second cause of action, the complaint alleged a civil rights claim under 42 United States Code section 1983 (hereafter section 1983), based on the same alleged duty.

Defendants demurred, on the grounds that the complaint did not allege facts giving rise to the existence of a duty, and that any failure to warn was not the proximate cause of decedent's death. The trial court sustained the demurrers without leave to amend and dismissed the action as against defendants. Plaintiffs appealed.

Proposed Third Amended Complaint

While the appeal was pending, the Supreme Court decided Garcia v. Superior Court (1990) 50 Cal.3d 728, 268 Cal.Rptr. 779, 789 P.2d 960. Garcia involved an action for wrongful death and violation of section 1983, filed after a parolee killed a woman with whom he had once lived. Her children sued the state and the parole officer, alleging that although the officer knew that the parolee had threatened to kill the woman, he told her not to worry because the parolee would not come looking for her. The trial court sustained demurrers without leave to amend. The Supreme Court agreed that plaintiffs had not stated a cause of action under section 1983, but reversed insofar as leave to amend was denied. (Garcia, supra, at p. 741, 268 Cal.Rptr. 779, 789 P.2d 960.) But instead of considering plaintiffs' duty-to-warn theory, the court held that plaintiffs should be permitted to amend to allege negligent misrepresentation involving a risk of physical harm. (Id., at pp. 734-738, 268 Cal.Rptr. 779, 789 P.2d 960.)

At this court's invitation, the parties have submitted supplemental briefs on the applicability of Garcia to this appeal. Plaintiffs have also submitted a proposed third amended complaint, purporting to state causes of action both for negligent misrepresentation as defined in Garcia and for breach of the duty to warn. We will discuss the allegations of that complaint later in this opinion.

Duty to Warn

Plaintiffs contend that the facts alleged were sufficient to state a cause of action for breach of duty to warn, and that the trial court erred when it ruled on the question of duty as a matter of law. However, it is settled that the existence of duty is a question of law for the court, not the jury. (Ballard v. Uribe (1986) 41 Cal.3d 564, 572, fn. 6, 224 Cal.Rptr. 664, 715 P.2d 624; Thompson v. County of Alameda, supra, 27 Cal.3d at p. 750, 167 Cal.Rptr. 70, 614 P.2d 728.) " '[L]egal duties are not discoverable facts of nature, but merely conclusory expressions that, in cases of a particular type, liability should be imposed for damage done.' [Citation.]" (Thompson, supra, at p. 750, 167 Cal.Rptr. 70, 614 P.2d 728.)

Plaintiffs' assertion that duty is a question of fact may reflect confusion about the variety of roles played by the concept of foreseeability in tort law. As was explained recently by the Supreme Court in Ballard v. Uribe, supra, 41 Cal.3d 564, 224 Cal.Rptr. 664, 715 P.2d 624, in some contexts foreseeability is a fact question for the jury, but in other contexts it is part of the calculus used by a court in defining the boundaries of duty. In the latter situation, the court does not decide whether a particular plaintif...