Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. VCVVS044599, Kyle Bodie, Judge.
Stanley W. Hodge and Arshak Bartoumian for Plaintiff and Appellant.
Ruth E. Stringer, County Counsel, and Teresa M. McGowan, Deputy County Counsel, for Defendants and Respondents.
OPINION
Gaut, Judge.
All statutory references are to the Government Code unless stated otherwise.
Plaintiff John Sullivan appeals from an order by the trial court sustaining defendants’ demurrer without leave to amend. Plaintiff filed suit against the County of San Bernardino and Sheriff Gary Penrod for negligence and willful failure to protect after he was assaulted by fellow prisoners when he was in custody at the West Valley Detention Center. We agree Sullivan cannot state a statutory basis for liability and defendants are immune from liability for injuries to a prisoner. (§§ 815 & 844.6.) We affirm the judgment.
2. Standard of Review
Sullivan’s opening brief devotes seven pages to the standard of review. But the standard is well-known and may be stated more simply. For purposes of reviewing the trial court’s ruling: “‘“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.’ [Citations.]” (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126; Cabesuela v. Browning-Ferris Industries of California, Inc. (1998) 68 Cal.App.4th 101, 107.)
3. The Second Amended Complaint
After two previously successful demurrers, defendants demurred again to Sullivan’s second amended complaint. Sullivan asserted, in substance, that defendants knew he would be assaulted in a gang unit. Sullivan is a “middle aged white man of small stature.” He was placed in the gang unit and attacked on January 16, 2006. He suffered serious physical and emotional injuries, including a fractured vertebrae and head injuries. Sullivan presented the defendants with a government tort claim on June 22, 2006. Defendants denied the claim on July 12, 2006.
In defendants’ demurrer to the second amended complaint, defendants again argued, as they had twice before, that Sullivan had failed to allege a statutory basis for liability (§ 815) and that defendants are immune under section 844.6 for injuries to a prisoner. The trial court sustained the demurrer without leave to amend. (Code Civ. Proc., §§ 430.10 & 430.30.)
3. Discussion
Section 815 provides a public entity is only liable for injury as provided by statute. (Cochran v. Herzog Engraving Co. (1984) 155 Cal.App.3d 405, 409.) A public entity’s liability is also subject to statutory immunity, such as that provided by section 844.6: “[S]ection 815, subdivision (b) states that statutory liabilities are subordinated to statutory immunities.” (Universal By-Products, Inc. v. City of Modesto (1974) 43 Cal.App.3d 145, 154.) Thus, the immunity provisions of section 844.6 prevail over any statutory liability. Section 844.6, subdivision (a)(2), makes a public entity like the county immune from liability for injury to a prisoner.
Section 844.6, subdivision (d), states a different rule for public employees: “Nothing in this section exonerates a public employee from liability for injury proximately caused by his negligent or wrongful act or omission.” Theoretically, Sheriff Penrod might have been liable for “his negligent or wrongful act or omission.” But, after making three attempts, Sullivan was quite unable to allege factual grounds or another statutory basis for liability against Sheriff Penrod. Although Sullivan named Sheriff Penrod as an individual defendant, Sullivan could not attribute any negligence or wrongful act or omission to him particularly. Nor could Sullivan identify anyone else as being responsible. As Sullivan’s attorney acknowledged, Sullivan could not allege facts showing a connection between Penrod and any other person concerning the events occurring at the jail.
As announced in Susman v. City of Los Angeles (1969) 269 Cal.App.2d 803, 809, “In view of the fact that tort causes of action against public entities are now based on statute, the general rule that statutory causes of action must be pleaded with particularity is applicable. Every fact essential to the existence of statutory liability must be pleaded.” Where plaintiff cannot plead such facts, a demurrer is properly sustained. (Id. at pp. 811, 812-822.)
In his original complaint, Sullivan had also alleged a civil rights cause of action. (28 U.S.C. § 1983.) Sullivan makes another, rather poorly-articulated, argument, about the existence of a special relationship defeating statutory immunity: “[C]ourts have recognized that a special relationship may give rise to a duty by a public entity to protect a person falling within that special relationship. (MacDonald v. State of California (1991) 230 Cal.App.3d 319.) A special relationship will be found where (1) there is a voluntary assumption by the public official of a duty toward the injured party; (2) where the public entity or official induced the victim’s reliance on a promise, express or implied, that it would protect him, or (3) where the victim was dependent upon the public entity or official for protection because the official either created the peril or increased or changed the risk which would have otherwise existed by lulling the victim into a false sense of security and perhaps preventing other assistance from being sought. [Citations.]” (Zuniga v. Housing Authority (1995) 41 Cal.App.4th 82, 95.)
Here, based upon the facts alleged, we conclude that the complaint insufficiently alleges facts constituting detrimental reliance from which a special relationship could be found to exist. Neither the County nor Sheriff Penrod voluntarily assumed a duty toward Sullivan or induced his reliance on an express or implied promise that they would protect him. Defendants did not lull Sullivan into a false sense of security or prevent him from seeking other assistance. (Stone v. State of California (1980) 106 Cal.App.3d 924, 929-930.) There exist no allegations of detrimental reliance and a special relationship overcoming the protections accorded defendants by sections 815 and 844.6.
4. Disposition
We affirm the judgment. Defendants are the prevailing parties, entitled to recover their costs on appeal.
We concur: McKinster Acting P. J., Miller J.