Opinion
E066838
03-20-2018
DANIEL BENNETT et al., Plaintiffs and Appellants, v. KENT GALLACHER et al., Defendants and Respondents.
Alderson Law Firm and James A. Alderson, for Plaintiffs and Appellants. Jean-Rene Basle, County Counsel, and Laura L. Crane, Deputy County Counsel, for Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. CIVVS1301321) OPINION APPEAL from the Superior Court of San Bernardino County. Donald R. Alvarez, Judge. Affirmed. Alderson Law Firm and James A. Alderson, for Plaintiffs and Appellants. Jean-Rene Basle, County Counsel, and Laura L. Crane, Deputy County Counsel, for Defendants and Respondents.
Sherri English called 911 to report a disturbance at the home she shared with her roommates, appellants Daniel Bennett and Keana Felder. Deputy Sheriff Gallacher responded and found English intoxicated and aggressive. However, after talking with the parties and trying to defuse the situation, Gallacher left the home without making an arrest. Shortly after he left, English stabbed both Bennett and Felder. The victims sued Gallacher, the San Bernardino Sheriff's Department, and the County of San Bernardino, claiming Gallacher caused their injuries by negligently failing to arrest English during his first visit. (Gov. Code, §§ 820 [government employee liability], 815.2 [vicarious government employer liability].) They also based a federal civil rights claim (42 U.S.C. § 1983) on the allegation Gallacher didn't protect them due to race and gender bias.
The trial court granted summary judgment in defendants' favor. Bennett and Felder appeal on three grounds. On the negligent protection claim, they argue Gallacher had a heightened duty to protect them because (i) he created a special relationship by protecting them from English initially and (ii) a departmental domestic violence policy required him to treat English as a "cohabitant" and arrest her. They argue both theories were supported by sufficient evidence to survive summary judgment. On the federal civil rights claim, they argue there is a triable issue of material fact whether Gallacher failed to arrest English on his first visit due to racial and gender bias.
We conclude the special relationship and departmental policy theories of negligence liability fail because they rely on misconstruing the facts and there is no evidence Gallacher acted out of bias of any sort. We will therefore affirm.
I
FACTUAL BACKGROUND
A. The Police Visit and the Assault
Bennett and Felder lived with English in a house in Victorville owned by a relative of Felder. Bennett and Felder shared one bedroom and English rented a separate bedroom. Neither Bennett nor Felder had ever been involved in a marital, romantic, sexual, or child-rearing relationship with English; they simply lived for a while in the same house.
On March 13, 2012, English called 911 to report a disturbance. Deputy Gallacher responded to the home about 11:30 a.m., where he found English intoxicated and the residents embroiled in a verbal dispute.
According to Bennett, while Gallacher was present, English picked up a pot of hot water and threatened to throw it on him. He said Gallacher "stepped to the side and grabbed his weapon." He said Gallacher told her to put the pot down and she complied.
Gallacher did not describe such an incident. He said only that English was verbally abusive. Asked whether English had threatened bodily harm to Bennett, Gallacher responded, "A couple of times she said, 'I'm going to have my man come,' quote, 'fuck you up.' [¶] And there were other comments similar to that." According to Gallacher, Bennett told him this was the sort of thing English said to him all the time.
Deputy Gallacher then separated Bennett and Felder from English. According to Gallacher, English said, "if you have to come back, somebody's going to go home in a blanket." Bennett said English told Gallacher he would have to come back "because you are going to need two body bags for these mother-fuckers." Gallacher said he told English to knock it off and go in her room, and she complied. According to Bennett, Gallacher warned English he would arrest her if he had to come back to the house.
According to Gallacher, Bennett said he and Felder would leave the house and go for a walk or go to his mother's house and spend the day there. According to Bennett, he told Gallacher he felt threatened, but Gallacher just walked off, saying, "Good luck."
Gallacher left without arresting English, but had to return about five minutes later, after hearing a stabbing had occurred. English had stabbed Bennett in the arm and back and Felder in the shoulder. English was arrested for assault with a deadly weapon. (Pen. Code, § 245, subd. (a)(1).)
B. The Lawsuit
In April 2013, Bennett and Felder (together, plaintiffs) filed suit against Deputy Gallacher, the San Bernardino Sheriff's Department, and the County of San Bernardino (together, defendants), and alleged three causes of action: (1) Gallacher acted negligently in failing to arrest English (Gov. Code, § 820), (2) Gallacher failed to protect them because of race and gender bias (42 U.S.C. § 1983), and (3) the sheriff's department and county were liable under the doctrine of respondeat superior (Gov. Code, § 815.2).
Defendants filed a motion for summary judgment arguing (1) Gallacher did not have a duty to protect plaintiffs or arrest English as there was no act on his part to create a special relationship with Bennett and Felder, (2) the parties to the altercation were not "cohabitants" under the domestic violence policy, and (3) there was no evidence Gallacher decided not to arrest English due to racial or gender bias.
In a written decision, the trial court ruled in favor of defendants on all causes of action, and entered judgment in their favor.
Bennett and Felder filed a timely notice of appeal.
II
DISCUSSION
A. Standard of Review on Summary Judgment
A court may grant summary judgment only if there is no triable issue of material fact and the moving party is entitled to judgment in its favor as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) A defendant moving for summary judgment must show one or more elements of the plaintiff's cause of action cannot be established or there is a complete defense. (Id., subd. (p)(2).) Defendant bears the burden to establish no material facts are in dispute. The burden then shifts to plaintiff to produce admissible evidence showing a triable issue of material fact exists. (Ibid.; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 842.)
"Because a summary judgment motion raises only questions of law, we review the supporting and opposing papers independently to determine whether there is a triable issue as to any material fact. [Citations.] In doing so, we apply the same analysis required of the trial court. 'First, we identify the issues framed by the pleadings. . . . [¶] Secondly, we determine whether the moving party's showing has established facts which negate the opponent's claim and justify a judgment in movant's favor. . . . [¶] . . . [T]he third and final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue. [Citation.]' Where there is sufficient legal ground to support the granting of the motion, the order will be upheld regardless of the grounds relied upon by the trial court." (Benavidez v. San Jose Police Dept. (1999) 71 Cal.App.4th 853, 859 (Benavidez).)
B. Special Relationship
The first and third causes of action are based on the premise Gallacher's conduct created a special relationship between plaintiffs and defendants which created a duty for him to protect them from English. In granting summary judgment, the trial court found, as a matter of law, defendants did not owe such a duty to appellants. We agree.
"The existence of a duty is a question of law. [Citation.] As a general rule, a person who has not created a peril has no duty to come to the aid of another 'no matter how great the danger in which the other is placed, or how easily he could be rescued, unless there is some relationship between them which gives rise to a duty to act. [Citations.]' [Citation.] This rule applies to police officers as well as to other citizens: The police owe duties of care only to the public at large and, except where they enter into a 'special relationship,' have no duty to offer affirmative assistance to anyone in particular." (Benavidez, supra, 71 Cal.App.4th at pp. 859-860.)
"Where the gravamen of the complaint is a police failure to act reasonably in protecting members of the public from the harm caused by a third person (i.e., nonfeasance), a series of . . . Supreme Court cases make[s] clear that the liability of the governmental entity is narrowly circumscribed. [Citations.] Generally, there is no legal 'duty,' and hence no liability for negligence, unless there is a special relationship between the police and either the victim or the third person which gives rise to a responsibility to control the third person's conduct. [Citations.] In the usual situations involving the performance of police duties, such a relationship has been held to depend on representations or conduct by the police which cause the victim(s) to detrimentally rely on the police such that the risk of harm as the result of police negligence is something more than that to which the victim was already exposed." (M.B. v. City of San Diego (1991) 233 Cal.App.3d 699, 704 (M.B.).)
"A special relationship between the police and an individual has been found in a few narrow circumstances where the police made specific promises to undertake a particular action and failed to do so [citation], where the police created or increased a peril by affirmative acts [citation] or where the police voluntarily undertook to aid an individual, took affirmative steps to aid the individual and by the acts lulled the individual into a false sense of security. [Citation.] [¶] Courts have refused to find a special relationship or impose liability based on the negligence by police personnel in responding to requests for assistance, in conducting or failing to conduct an investigation, in failing to warn of a potential danger or failing to provide sufficient protection where the police have not induced reliance on a specific promise that they would provide specific protection." (M.B., supra, 233 Cal.App.3d at pp. 704-705.)
In this case, Bennett and Felder argue summary judgment was improper because Deputy Gallacher created a special relationship when he grabbed his weapon on seeing English pick up a pot of hot water and threaten to throw it at Bennett. Their argument relies heavily on their characterization of his action as "aiming his gun at Sherri English," which, they argue, "caused her to take the situation more aggressively and thereafter stab [them]." In short, Bennett and Felder argue this is a case where law enforcement created a special relationship by acting to increase their peril. (M.B., supra, 233 Cal.App.3d at p. 705.)
The facts do not support their argument. In the first place, Bennett and Felder never claimed, before briefing this appeal, that Gallacher aimed his gun at English. In deposition testimony, Bennett said only that when English picked up the pot of hot water and threatened him, Gallacher stepped aside and "grabbed his weapon." Grabbing a gun is not the same thing as drawing it and aiming it at a person, and Bennett and Felder cannot make it so by characterization in a legal brief. Bennett's own deposition testimony proves the point. In attempting to explain why he believed Gallacher acted out of bias in deciding not to arrest English, he speculated that if he had been the aggressor instead of English, Gallacher was "going to cuff me up or maybe even shoot me because he didn't draw his gun on her." Thus, Bennett's own testimony directly contradicts the assertion on appeal that Gallacher aggravated the situation in a manner that would create a special relationship. (See Benavidez, supra, 71 Cal.App.4th at p. 862 [refusing to credit on summary judgment plaintiff's declaration contradicting her own deposition testimony in effort to create triable issue of material fact].)
Setting aside the mischaracterization, there is no evidence Gallacher made the situation more volatile. On the contrary, the evidence shows he temporarily defused a tense situation simply by grabbing his gun and ordering English to put the pot down. It is uncontested English complied with Gallacher's directions and then proceeded to follow his further order to separate herself from Bennett and Felder by going to her room. We conclude there is insufficient evidence to support the contention Gallacher created a special relationship by acting in a way that increased plaintiffs' peril.
Nor is there a basis in the record for the contention that Deputy Gallacher by his words or conduct promised to protect Bennett and Felder. On this point, the decision in Benavidez is instructive. Benavidez's live-in boyfriend attacked her, and she fled to a motel with her young son. During a phone conversation, the boyfriend told Benavidez he was going to move out. They returned the next morning, found the boyfriend gone, the house locked, and her car missing. As she was breaking into her house, the boyfriend returned and again attacked her. Her son called 911 and the boyfriend fled the scene. Two officers arrived and offered to have Benavidez transported to a hospital for treatment, but she declined. The officers left the scene, one to search for the boyfriend and the car. Benavidez asked what she should do if the boyfriend returned, and the officers advised her to call 911. Before the officer could find the boyfriend, he returned and stabbed Benavidez in the head and neck with a shard of broken glass. (Benavidez, supra, 71 Cal.App.4th at pp. 857-858.)
Benavidez sued the officer and the sheriff's department, claiming the conduct of the officers had created a special relationship and they therefore had a duty to protect her and her son. To support her claim, she claimed the officers told her, "'Don't worry, we're here!'" which led her to believe they would remain to protect her. (Benavidez, supra, 71 Cal.App.4th at p. 862.) The appellate court rejected the statement as a basis for a special relationship. "Any reliance on the officer's statement, 'Don't worry, we're here!' . . . could only apply when the officers were 'here' (i.e., at plaintiff's house), not when they had left the scene to take on other police assignments" or to find the boyfriend. (Ibid.)
Here, the evidence shows Gallacher arrived at the scene, defused the situation (albeit temporarily), and told Bennett and Felder he was leaving. He did not promise continued protection or even give them the sense their dispute with English was entirely over. In Bennett's version of the story, Gallacher got English to go into her room, she made another threat, and Gallacher walked off, saying only, "Good luck." We conclude from this evidence—the most favorable to plaintiffs—that Gallacher did nothing to promise additional protection or lull plaintiffs into a false sense of security.
We therefore conclude the trial court properly granted summary judgment. The evidence did not create a triable issue of material fact that Gallacher did or said anything to create a special relationship giving rise to a duty to protect them over and above the general duty he owed to the public at large. And he cannot be liable in negligence for exercising his discretion in carrying out that duty. (Gov. Code, § 820.2 ["a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused"].)
Respondents raised and the trial court considered various immunities as a basis for granting summary judgment. Finding no duty, we need not analyze their application as "[c]onceptually, the question of the applicability of a statutory immunity does not even arise until it is determined that a defendant otherwise owes a duty of care to the plaintiff and thus would be liable in the absence of such immunity . . . Absence of duty is a particularly useful and conceptually more satisfactory rationale where, absent any 'special relationship' between the officers and the plaintiff, the alleged tort consists merely in police nonfeasance." (Williams v. State of California (1983) 34 Cal.3d 18, 22-23.)
C. Duty to Arrest
The San Bernardino Sheriff's Department had in effect a policy on domestic violence (policy 3.302), which Bennett and Felder argue mandated the arrest of English. We disagree on two grounds. First, plaintiffs and English were roommates, not cohabitants. Second, there is no evidence the county formally adopted the policy.
The third amended complaint includes the following language from the department's internal policy. "Domestic violence is defined as intentionally causing or attempting to cause bodily injury or placing another person in reasonable apprehension of imminent serious bodily injury . . . The victim of domestic violence must be an adult or an emancipated minor who is the spouse, a former spouse, cohabitant or former cohabitant, or a person with whom the suspect has had a child, or a dating or an engagement relationship. [¶] Members of the Department shall treat all domestic violence as criminal conduct. Domestic violence incidents shall be treated the same as all other requests for law enforcement assistance in cases where there has been physical violence or the threat thereof. In accordance with the state law and Department policy, an arrest shall be made in a domestic violence incident when there is reasonable cause to believe that a felony has occurred, regardless of the victim's desire to prosecute."
1. Appellants and English were roommates, not cohabitants
Appellants argue Family Code section 6211 governs the meaning of domestic violence and provides, in pertinent part: '"Domestic violence' is abuse perpetrated against any of the following persons . . . (b) A cohabitant or former cohabitant, as defined in Section 6209." In turn, Family Code section 6209 defines cohabitant as "a person who regularly resides in the household." They argue because English and plaintiffs regularly resided in the same household, they were cohabitants under the department's internal domestic violence policy, which therefore required Gallacher to arrest English.
The trial court correctly rejected this argument. As it recognized, "[t]hough Family Code section 6209 defines cohabitant broadly, the interpretation of the definition has narrowed it." In O'Kane v. Irvine (1996) 47 Cal.App.4th 207, the Court of Appeal reversed a temporary restraining order issued under the Domestic Violence Prevention Act (Fam. Code, § 6200 et seq.) precisely because the parties were merely roommates. "Irvine and O'Kane did not live together as a group with a common goal. They cannot be described as a social unit living together. The parties plainly cannot be considered cohabitants, within the meaning of section 6209, subdivision (b) and section 6211 as they did not regularly reside in the same household. Further, the statutory definition of cohabitant as someone who 'regularly resides' in the household, implies the Legislature intended the Act protect abuse victims who have some permanency in their living arrangements. The facts of this case establish O'Kane and Irvine had anything but a permanent living arrangement. The connection demonstrated between Irvine and O'Kane was wholly by happenstance. Before subletting rooms . . . [they] were not even acquainted with each other. Although the Act clearly has a broad protective purpose, both in its stated intent and the breadth of the persons protected . . . we find nothing in the Act to indicate a legislative intent to cover the type of residential arrangement that existed between Irvine and O'Kane." (O'Kane v. Irvine, at p. 212.)
The same relationship exists here. English and plaintiffs lived as roommates, not a coherent group in the nature of a family or couple; the fact they resided under the same roof was happenstance. Felder's family member owned the house and rented rooms to separate tenants. Bennett and Felder lived in one room and English lived in another. Bennett testified the relationship to English was "just roommate, tenant." Felder testified she did not know English before they resided at the same home, she had no romantic relationship with her, and did not have permission to go into the room English occupied. In other words, they were roommates as that word is commonly understood. Disputes between roommates, even those that become assaultive, do not implicate Family Code sections 6209, 6211, or the department's domestic violence policy.
2. There was no duty to arrest English under Government Code section 815 .6
Bennett and Felder argue Gallacher had a duty to arrest English under Government Code section 815.6, which provides "[w]here 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." (Strong v. State of California (2011) 201 Cal.App.4th 1439, 1450.) They argue the department's domestic violence policy 3.302 is an official enactment under section 815.6.
For Government Code section 815.6 to apply, plaintiffs must establish "(1) the existence of an enactment that imposes a mandatory, not discretionary, duty on the public entity and (2) that the enactment is intended to protect against the particular kind of injury the plaintiff suffered. [Citation.] 'Whether an enactment creates a mandatory duty is a question of law.'" (Tuthill v. City of San Buenaventura (2014) 223 Cal.App.4th 1081, 1089, italics added.)
Plaintiffs' argument fails because there is no indication the department's policy qualifies as an enactment. Government Code section 810.6 defines enactment as a "constitutional provision, statute, charter provision, ordinance or regulation." A regulation is "a rule, regulation, order or standard, which has the 'force of law,' which has been adopted by an employee or agency . . . of a public entity pursuant to authority vested by constitution, statute, charters or ordinance in such employee or agency to implement, interpret, or make specific the law enforced or administered by the employee or agency. [Citation.] . . . This excludes informal 'guides,' 'policy manuals,' and 'recommended procedures' helpful in establishing the standards of statutes, but lacking the force of law." (Posey v. State of California (1986) 180 Cal.App.3d 836, 849.) Further, Evidence Code section 669.1 specifically provides "[a] . . . policy . . . of a state or local government setting forth standards of conduct or guidelines for its employees in the conduct of their public employment shall not be considered a statute, ordinance, or regulation of that public entity . . . unless, the . . . policy . . . has been formally adopted . . . as an ordinance of a local governmental entity in this state empowered to adopt ordinances."
Bennett and Felder attempt to make their stand on the department's policy, but they have provided no basis for determining that policy was ever formally adopted as an ordinance of the County of San Bernardino or otherwise given the force of law. Accordingly, they have not carried their appellate burden of showing, as a threshold matter, that the internal department policy created a duty.
D. Evidence of Discrimination
Bennett and Felder argue Deputy Gallacher discriminated against them by failing to arrest English. They contend he based his decision on their race and gender. Both Bennett and Felder are African-American and Bennett is male. Gallacher is white and English, the aggressor, is female. They contend Gallacher would have followed the department's domestic violence policy and arrested English had they been white or had they both been female and the aggressor male.
There is no evidence to support plaintiffs' contention. First, as we explained above, the domestic violence policy did not apply to their circumstances, and Gallacher testified he did not believe the policy applied to conflicts between roommates. "They're not cohabitants. They're roommates . . . There was no relationship between the two of them, other than one rented a room from the house . . . if they're just roommates - no relationship between the two, if there was a - there would be no domestic violence attachment to that because that's not a domestic relationship." His testimony undermines plaintiffs' premise that Gallacher would have followed the policy if the parties' race or gender had been different. He testified the policy simply didn't apply. Nothing Bennett and Felder have submitted contradicts that evidence.
That leaves little for Bennett and Felder to stand on other than the bare racial and gender facts and their own feelings about Gallacher's motives. Bennett testified Gallacher "acted like he didn't care because when he left, he told me good luck after the lady was threatening me. So I felt if I would have been white or if I would have been [English] and [English] was me . . . I would have went to jail . . . So why didn't she go to jail? Why wasn't I protected because of the way I looked, and my face is tatted and I felt because I was black because he told me good luck and left. He didn't care."
Felder felt similarly. She said, "He should have took her in if she's acting violently like that. If she's trying to throw hot boiling water on somebody, and he's just listening to this woman and watching how she's acting, I think it's his duty to take her in, but he didn't. If the tides were reversed, they would have took him." However, asked whether Gallacher said anything to indicate he was racist or sexist, Felder responded, "his action showed. I got stabbed." And she conceded she did not hear Gallacher make racist or sexist comments. Asked, "other than they were white and they were male, generally . . . is there any other evidence that shows that they were racist or sexist," she responded, "No, that's all I have to say."
To establish a 1983 claim for racial or gender discrimination, Bennett and Felder were required to present evidence Gallacher acted in a discriminatory manner and the discrimination was intentional. (Monteiro v. Tempe Union High School Dist. (9th Cir. 1998) 158 F.3d 1022.) The fact that a plaintiff is African-American and the officer is white does not suffice. (Bingham v. City of Manhattan Beach (9th Cir. 2003) 341 F.3d 939, 948-949, overruled on other grounds by Edgerly v. City and County of San Francisco (9th Cir. 2010) 599 F.3d 946, 956, fn. 14.) Similarly, the fact that Bennett is male and English female is insufficient to establish gender bias. So are the subjective beliefs of Bennett and Felder. Plaintiffs were required to present some evidence, circumstantial or otherwise, from which a reasonable jury could conclude Gallacher acted in a manner plaintiffs did not like on the basis of race or gender. We conclude they did not do so.
Appellants rely on Elliot-Park v. Manglona (9th Cir. 2010) 592 F.3d 1003, but it is not helpful to their position. Elliot-Park, a Korean, was hit by another driver who was Micronesian. The officers who arrived on the scene were also Micronesian. Elliot-Park presented evidence to suggest the other driver was driving under the influence of alcohol, but the officers attempted to cover up the violation. (Id. at p. 1006.) The officers did not perform field sobriety or blood alcohol tests, or otherwise investigate whether the driver was driving in an intoxicated state, and one officer falsely reported the other driver had not been drinking. (Ibid.) She also presented evidence the physician who examined both drivers lodged a complaint when he learned the officers had not charged him with a DUI. (Ibid.) The complaint led to the Department of Public Safety investigating and ultimately to the officers being charged with conspiracy to obstruct the investigation. (Ibid.) This evidence of intentional malfeasance provided a reasonable jury the basis for determining the officers' actions were motivated by race.
We note the officers in Elliot-Park did not dispute that the allegations provided a sufficient basis for a fact-finder to infer racial discrimination. (Elliot-Park v. Manglona, supra, 592 F.3d at p. 1006.) --------
Plaintiffs in this case have supplied no similar evidence. As we discussed above, there is nothing to suggest Deputy Gallacher did anything other than exercise his discretion in deciding whether to detain English. His decision may have been mistaken, but it was not so obviously mistaken that, absent other evidence, a jury could infer he acted out of racial or gender discrimination. Accordingly, we will affirm the trial court's grant of summary judgment in favor of defendants.
III
DISPOSITION
We affirm the judgment. Appellants shall pay costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH
J. We concur: RAMIREZ
P. J. FIELDS
J.