Zuniga v. Housing Authority

• Decision Date: 14 December 1995
• Docket Number: No. B075700,B075700
• Citation: 41 Cal.App.4th 82,48 Cal.Rptr.2d 353
• Court: California Court of Appeals Court of Appeals
• Parties: , 95 Cal. Daily Op. Serv. 9689, 95 Daily Journal D.A.R. 16,797, 95 Daily Journal D.A.R. 17,063 Juan ZUNIGA, et al., Plaintiffs and Appellants, v. HOUSING AUTHORITY OF the CITY OF LOS ANGELES, et al., Defendants and Respondents.

Page 353

48 Cal.Rptr.2d 353

41 Cal.App.4th 82, 95 Cal. Daily Op. Serv. 9689,

95 Daily Journal D.A.R. 16,797,

95 Daily Journal D.A.R. 17,063

Juan ZUNIGA, et al., Plaintiffs and Appellants, v. HOUSING AUTHORITY OF the CITY OF LOS ANGELES, et al., Defendants and Respondents.

No. B075700.

Court of Appeal, Second District, Division 4, California.

Dec. 14, 1995.

Review Denied April 11, 1996.

Litt & Marquez, Barrett S. Litt, Mercedes M. Marquez, Jason R. Litt, Vicki Cody and Brenda E. Sutton, Los Angeles, for Plaintiffs and Appellants.

Gen Fujioka, San Francisco, and Maeve Elise Brown, Los Angeles, Amicus Curiae, on behalf of Plaintiffs and Appellants.

Engstrom, Lipscomb & Lack, Paul W. Engstrom, Elizabeth L. Crooke, Los Angeles, and Cynthia L. Choate, Tucson, AZ, for Defendant and Respondent Housing Authority of the City of Los Angeles.

James K. Hahn, City Attorney, Thomas C. Hokinson, Assistant City Attorney, and Katherine J. Hamilton, Deputy City Attorney, for Defendant and Respondent City of Los Angeles.

Thomas E. Campagne and Sarah A. Wolfe, Fresno, Amicus Curiae, on behalf of Defendants and Respondents.

HASTINGS, Associate Justice.

Juan Zuniga and his extended family were residents of the Jordan Downs public housing project in the City of Los Angeles, which was operated by the Housing Authority of the City of Los Angeles (the Authority). After a fire set by arsonists killed five members of the family, the surviving members (appellants) filed a lawsuit against the Authority and the City of Los Angeles (the City) for: (1) negligence; (2) negligent supervision; (3) intentional infliction of emotional distress; (4) negligent infliction of emotional distress; (5) wrongful death; (6) loss of consortium; (7) breach of covenant of quiet enjoyment; (8) nuisance, and (9) federal civil rights violations pursuant to Title 42, United States Code section 1983. The Authority and the City each filed separate demurrers to the complaint which were sustained without leave to amend on March 5, 1993. ¹ Appellants filed a notice of appeal on April 23, 1993, from the order "sustaining the Demurrer of Defendant Housing Authority ... and the Demurrer of Defendant City of Los Angeles entered on March 5, 1993." We reverse.

FACTUAL BACKGROUND

For purposes of this appeal, we accept the facts alleged in the complaint as true. (O'Hara v. Western Seven Trees Corp. (1977) 75 Cal.App.3d 798, 802, 142 Cal.Rptr. 487; Moncur v. City of Los Angeles (1977) 68 Cal.App.3d 118, 121, 137 Cal.Rptr. 239.)

According to the complaint, in June 1991, Juan Zuniga Sr. and six other members of his family were placed in unit 481 of the Jordan Downs project, and entered into a written lease with the Authority. Shortly thereafter, thirteen other family members moved into the unit. Prior to and during the family's occupancy, the area in front of unit 481 was a hub of illegal drug activity. Previous tenants and guests of the unit had reported threats and harassment from drug dealers and their associates to the Authority. From the time the Zuniga family moved in, they were subjected to constant threats of violence, vandalism to their unit and physical assaults and confrontations by the various drug dealers. Family members were constantly warned by the offenders not to call the police, but nevertheless, they reported the incidences on a weekly basis. No action was taken to alleviate the situation, and their repeated requests for a transfer to another unit were denied. In fact, after one of the family members was beaten, the Housing Authority Police visited the home twice to prepare a report, and each time, they paused to exchange greetings with the drug dealers and associates who were congregated outside. After these visits, the harassment escalated.

On September 7, 1991, arsonists poured gasoline through the unit's mail slot and set fire to the unit. Five members of the family died.

Appellants are the surviving family members.

PROCEDURAL BACKGROUND

Following the filing of the First Amended Complaint, the Authority filed a motion to strike and a demurrer. The demurrer was based on the following arguments: (1) that appellants did not allege the requisite statutory basis for liability; (2) that the Authority is immune to this action; (3) that the Authority owed appellants no special duty; (4) that the claim is untimely under the Tort Claims Act; (5) that emotional distress is not actionable; (6) that loss of consortium damages are not available to the majority of the appellants, and (7) that no cause of action for violation of federal civil rights had been stated. No issue of causation was raised and the parties have not addressed the issue on appeal.

The City filed its own demurrer, which essentially argued that the City was not the proper party to sue and had no liability because it did not operate or own the housing project and was not a signatory to the lease.

After hearing oral argument and taking the matter under submission, the trial court sustained both demurrers without leave to amend as to all causes of action "for the reasons set forth in the moving and reply papers filed by the defendant." The trial court did not delineate any more specific reasons in its minute order or at argument. The minute orders also reflect no ruling on the motion to strike. Therefore, we are only presented with the legal issues raised in the demurrers.

An order for entry of dismissal as to respondent the Authority only was filed on April 8, 1993.

CONTENTIONS ON APPEAL

Appellants contend the trial court erred in sustaining the demurrer because the Authority and the City had a statutory duty to provide safe public housing, that there was no statutory immunity and that a cause of action for federal civil rights violation was stated.

In addition to the grounds raised in its demurrer (i.e., that the City is not a proper defendant), the City contends in its respondent's brief that since no order of dismissal was ever entered as to the City, but only as to the Authority, the appeal as to the City must be dismissed. The City also contends that since appellants did not address the City's demurrer in its opening brief, appellants have abandoned their causes of action against the City.

In its respondent's brief, the Authority raises the same arguments upon which it based its demurrer: (1) that no statutory basis for liability exists; (2) that the Authority is immune from any liability; (3) that the claims alleged in the seventh and eighth causes of action for nuisance and breach of covenant of quiet enjoyment are untimely, and (4) that no cause of action under 42 United States Code section 1983 was alleged.

DISCUSSION

1. Standard of Review

"On appeal, the plaintiff bears the burden of demonstrating either that a demurrer was sustained erroneously or that sustaining a demurrer without leave to amend was an abuse of discretion. [Citation.] A trial court's ruling sustaining a demurrer is deemed erroneous where a plaintiff has stated a cause of action under any possible legal theory. [Citations.]" (Bush v. California Conservation Corps (1982) 136 Cal.App.3d 194, 200, 185 Cal.Rptr. 892.) It must also be borne in mind that in making this determination, we must construe the allegations of the complaint liberally. (Yue v. City of Auburn (1992) 3 Cal.App.4th 751, 757, 4 Cal.Rptr.2d 653.)

We now proceed to examine each argument raised in the Authority's demurrer.

2. The Authority's Demurrer

A public entity is not liable for tortious injury unless the liability is imposed by statute. (Gov.Code, § 815.) ² "Moreover, under subdivision (b) of section 815, the immunity provisions of the California Tort Claims Act [Gov.Code, tit. 1, div. 3.6] will generally prevail over any liabilities established by statute. [Citations.] In short, sovereign immunity is the rule in California; governmental liability is limited to exceptions specifically set forth by statute." (Cochran v. Herzog Engraving Co. (1984) 155 Cal.App.3d 405, 409, 205 Cal.Rptr. 1.)

First, Authority argues that there is no statutory duty to protect occupants of its properties from criminal acts of third persons. Next, the Authority contends that if duty does exist, it is immune from any liability, pursuant to several Government Code sections.

a. Statutory basis for liability

"[A] public entity is liable for injury caused by a dangerous condition of its property if (1) the property was in a dangerous condition at the time of the injury; (2) the dangerous condition proximately caused the injury; (3) the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred; and (4)(a) a negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the condition or (b) the public entity had actual or constructive notice of the dangerous condition in time to have taken measures to protect against it. [Citation; Gov.Code, § 835.]" (Slapin v. Los Angeles International Airport (1976) 65 Cal.App.3d 484, 488, 135 Cal.Rptr. 296.)

A "dangerous condition" is a condition of property that creates a substantial risk of injury when such property is used with due care in a manner which is reasonably foreseeable. (§ 830, subd. (a); Baldwin v. Zoradi (1981) 123 Cal.App.3d 275, 294, 176 Cal.Rptr. 809; Slapin v. Los Angeles, supra, 65 Cal.App.3d at p. 488, 135 Cal.Rptr. 296.) Whether a dangerous condition exists " 'is usually a question of fact and may only be resolved as a question of law if reasonable minds can come to but one conclusion.' [Citations.]" (Peterson v. San Francisco Community College Dist. (1984) 36 Cal.3d 799, 810, 205 Cal.Rptr. 842, 685 P.2d 1193; Rodriguez v. Inglewood Unified School Dist. (1986) 186 Cal.App.3d 707, 720, 230 Cal.Rptr. 823.) However, section 830.2 provides that: "A condition is not a dangerous condition within the meaning of this chapter if the trial or appellate court, viewing the evidence most favorable to the...