Opinion
A129875
08-30-2011
RUBEN MEDRANO et al., Plaintiffs and Appellants, v. COUNTY OF CONTRA COSTA et al., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Contra Costa County Super. Ct. No. MSC0902607
Ruben Medrano and Victor Medrano appeal from a judgment entered after the trial court sustained demurrers and dismissed their complaint seeking damages due to personal injury. Appellants contend the trial court applied the principles of governmental liability incorrectly. We disagree and will affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
We set forth the facts as alleged in appellants' complaint.
On August 20, 2008, Victor Medrano was driving westbound on Interstate 80 in Contra Costa County. Victor's son Ruben, who is blind and disabled, was a passenger in the vehicle. California Highway Patrol Officer J. Farmer was on patrol that day and he initiated a stop of appellants' vehicle. As directed, Victor exited the freeway and stopped on West Willow Avenue in Rodeo. Farmer approached the vehicle. Victor told him that his son "has a brain tumor, is blind and slow" and "cannot stand for long periods." Around this time, a deputy from the Contra Costa County Sheriff's Department arrived on the scene to assist. Farmer learned that a warrant had been issued for Victor's arrest. He told Victor he was going to impound his vehicle, but that he would not arrest him because of his son's condition. The deputy sheriff initially had a different idea. He arrested Victor and placed him in handcuffs. However, after speaking with Farmer, the deputy removed the handcuffs and told Victor he was free to go.
Victor asked Farmer if he would call the phone number of someone who could pick Ruben up. Farmer responded that unless Victor had a cell phone he was "out of luck[.]" Victor then said he would walk to a nearby gas station and he asked Farmer if he would give Ruben a ride there. Farmer declined.
Victor and Ruben then began walking toward the gas station with Ruben holding Victor's arm. On the way, Ruben fell and injured himself.
Based on these facts Victor and Ruben filed a complaint seeking personal injury damages against the County of Contra Costa, the Contra Costa County Sheriff's Department, the State of California, the California Highway Patrol, and Officer Farmer. As amended, the complaint contained three causes of action: negligence, "failure to arrest" and "deprivation of statutory rights of [a] disabled person."
The County defendants filed a demurrer arguing the complaint failed to state a cause of action against them. The State defendants filed a similar demurrer based on similar grounds. The trial court sustained both demurrers and dismissed the appellants' complaint.
II. DISCUSSION
A. Timeliness of the Appeal from the Ruling in Favor of the County Defendants Before we turn to the merits, we must first address a procedural problem. The County of Contra Costa and the Contra Costa County Sheriff's Department argue appellants' appeal must be dismissed because it is not timely. They are correct.
As we have stated the County defendants and State defendants each filed a separate demurrer to the complaint. The court conducted argument on both motions on July 27, 2010, but then issued separate rulings. The court sustained the County defendants' demurrer and dismissed the complaint as to them in an order that was filed on July 27, 2010. The court then sustained the State defendants' demurrer in an order that was filed on August 3, 2010. The County defendants served appellants with notice of entry on July 29, 2010; therefore under California Rules of Court, rule 8.104(a)(2), appellants had 60 days from that date to file their notice of appeal. Appellants' notice, filed on October 1, 2010, was simply too late. As to the County defendants, the appeal must be dismissed because it is not timely.
B. Negligence
Appellants contend the trial court erred when it sustained the defendants' demurrer to their negligence cause of action.
"In reviewing the sufficiency of a complaint against a general demurrer, we are guided by long-settled rules. 'We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.' [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff. [Citation.]" (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
With this background, we turn to the specific arguments advanced.
Appellants sought damages based on a negligence cause of action that has three elements: (1) a legal duty to use due care, (2) a breach of that duty, and (3) damages that are proximately caused by the breach. (Seo v. All-Makes Overhead Doors (2002) 97 Cal.App.4th 1193, 1202.) Whether a legal duty exists is a question of law that this court must decide de novo on appeal. (Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 770.)
When determining whether a party has a legal duty, a distinction is drawn between claims of liability based on misfeasance and those based on nonfeasance. (Seo v. All-Makes Overhead Doors, supra, 97 Cal.App.4th at p. 1202.) Misfeasance exists when the defendant is responsible for making the plaintiff's situation worse, i.e., the defendant has created a risk. Conversely nonfeasance is found when the defendant has failed to aid the plaintiff through beneficial intervention. Liability for nonfeasance is limited to situations where there is a special relationship that creates a duty to act. (Ibid.)
Here, appellants' concede there was no special relationship between themselves and the officers involved. Therefore, defendants' liability, if any, must be based on misfeasance. Thus, the dispositive question becomes whether appellants have alleged any facts that support the conclusion that defendants made their situation worse.
Appellants allege defendants made their situation worse by impounding their car. This is so, appellants contend, because Ruben Medrano is blind and disabled. However, we are unwilling to accept the conclusion defendants made appellants' situation worse based simply on the allegation defendants impounded appellants' car. To be sure, appellants were in a different position after their car was impounded. Before the impoundment, they had a car to transport Ruben, and afterwards they did not. But appellants have not alleged any facts that support the conclusion that their changed situation was worse than it was before, i.e., that it created a risk of injury. Ruben was left on a public street with his father. Appellants do not contend that the street was somehow unsafe for pedestrians, even one in Ruben's position. They do not contend the time of day, weather conditions, or lighting made their position unsafe. They do not contend the place where they were left made it impossible (or even difficult) for them to obtain any assistance they might need. Because appellants have failed to allege defendants placed them in a position that was in any material way worse than it was before defendants impounded their car, we conclude there are no allegations to establish defendants owed a duty to appellants. The trial court correctly sustained the demurrer.
The conclusion we reach on this point is supported by prior case law. For example, in Hernandez v. City of San Jose (1993) 14 Cal.App.4th 129 (Hernandez), the plaintiff's son Robert was a passenger in a vehicle that was occupied entirely by minors who did not have driver's licenses. The vehicle was stopped by police and the driver was cited for speeding and for driving without a license. The officers impounded the vehicle and the occupants subsequently got a ride home in another vehicle. That vehicle was then in an accident and plaintiff's son died. (Id. at pp. 131-132.) The plaintiff sued alleging her son's death was caused by the negligence of the officers in failing to provide or arrange safe transportation for her son after the car in which he was riding was impounded. (Id. at p. 132.) The Hernandez court disagreed: "The police had no duty to take charge of the young men or to make other transportation arrangements for them . . . . That the officers impounded the vehicle did not create any peril to Robert and the other young men as none of them could have lawfully driven the vehicle." (Id. at p. 135.)
We reach a similar conclusion here. When the defendants impounded appellants' car they did not place them into a new and more dangerous position. As in Hernandez, "That the officers impounded the vehicle did not create any peril to [plaintiffs] . . . ." (Hernandez, supra, 14 Cal.App.4th at p. 135.)
The primary case upon which appellants rely Lugtu v. California Highway Patrol (2001) 26 Cal.4th 703 (Lugtu), does not compel a different conclusion. The plaintiffs in that case were pulled over by an officer working for the California Highway Patrol. The officer directed the plaintiffs to stop in the highway median where the plaintiffs' vehicle subsequently was struck by a passing truck. (Id. at pp. 708-709.) The plaintiffs filed suit alleging the officer was negligent in directing them to stop in the center median rather than the right shoulder. Our Supreme Court agreed a legal duty existed under those circumstances stating, "a law enforcement officer has a duty to exercise reasonable care for the safety of those persons whom the officer stops, and that this duty includes the obligation not to expose such persons to an unreasonable risk of injury by third parties." (Id. at p. 718.)
Here, appellants do not claim that Officer Farmer directed them to stop in an unsafe location and that they were injured as a result. Rather, appellants contend that the mere act of impounding their car placed them in peril. As we have explained, that is not correct. Lugtu is not controlling under the facts alleged here.
We conclude the trial court correctly sustained the demurrer.
C. Other Causes of Action
As we have stated, appellants' complaint also contained causes of action described as "failure to arrest" and "deprivation of statutory rights of [a] disabled person." Appellants have not argued on appeal that the court erred when it sustained the demurrer to those causes of action. Accordingly they have forfeited the right to assert the trial court erred. (Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6.)
III. DISPOSITION
The judgment is affirmed.
Jones, P.J. We concur:
Needham, J.
Bruiniers, J.