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Court of Appeal, Sixth District, California.

Adrian GARCIA, Jr., et al., Petitioner, v. The SUPERIOR COURT of Santa Clara County, Respondent; STATE of California, et al., Real Parties in Interest.

No. H004117.

Decided: July 20, 1988

Cliff Weingus, Garry, McTernan, Stender, Walsh & Schwartzbach, San Francisco, for petitioner. No appearance for respondent. John K. Van de Kamp, Atty. Gen., Wayman M. Robertson, Jr., Deputy Atty. Gen., San Francisco, for real parties in interest.

Napoleon Johnson, freed on parole after having served time for murdering his wife, killed Grace Morales.   Plaintiffs, Morales's minor children and heirs, bring both wrongful death claims and a claim under the Federal Civil Rights Act (42 U.S.C. § 1983, hereafter § 1983) against state and local government entities and employees asserted to have helped bring about this tragedy.   The defendants involved in this writ proceeding are Ybarra, who was Johnson's parole agent and who allegedly misled Morales into believing Johnson was not dangerous;  and the State of California, Ybarra's employer, sued both on account of Ybarra's act and also because of the alleged failure of a state-employed psychologist to warn Morales of her danger.   The trial court sustained Ybarra's demurrer to all causes, and sustained State's demurrer to all claims based on Ybarra's conduct, leaving intact as against State only the claim based on the psychologist's failure to warn Morales of the danger.   Plaintiffs seek a writ of mandate to compel reversal of these rulings, and the California Supreme Court has directed that we issue an alternative writ, which we have done.

The wrongful death claims raise the issues whether defendants breached a duty to plaintiffs under these circumstances and in so doing proximately caused Morales's death, and if so, whether defendants are immune by virtue of Government Code sections 845.8 and 820.2 (immunity for acts related to parole release, and for discretionary activity).   The § 1983 claim poses the questions whether the State may be sued under § 1983, and whether the defendants pursued an official policy under color of state law which caused Morales's death.

For reasons which we shall state, we have concluded as follows:  (1) the state law claims do not state causes of action because Ybarra's advice to Morales was not a breach of duty on these facts;  (2) regarding the federal claim, (a) State may not be sued under § 1983 because a state is not a person for purposes of a § 1983 claim and (b) the federal claim against Ybarra states no cause of action because his acts were not the result of an official state policy within the meaning of Oklahoma City v. Tuttle (1985) 471 U.S. 808, 105 S.Ct. 2427, 85 L.Ed.2d 791.   Accordingly we will deny plaintiffs' petition for a writ of mandate.


The first cause of action of the complaint, for wrongful death, alleges that plaintiffs are the minor children and heirs of decedent Grace Morales.   Defendant Ybarra is a parole agent employed by defendant State of California.   (Other defendants, including the County of Santa Clara and a medical treatment facility, are not involved in this proceeding.)

Napoleon Johnson (also a defendant) was convicted of murdering his wife in 1973.   He was released on parole in 1985;  Ybarra was his parole agent.   Johnson began a romantic relationship with Morales, but moved out of her home in March 1986, at which time he began a campaign of violence and harassment of Morales including forced sexual relations at knife point and death threats.

Ybarra learned that Johnson had threatened Morales and her children.   He met with both of them to discuss the situation.   Johnson denied making the threats, and Ybarra believed him.

In April 1986, Johnson told Ybarra that he felt jealous, angry and abandoned by Morales and that he would kill her if he found her.   Ybarra knew that Johnson had murdered his first wife in a jealous fit after their marriage broke up.   He concluded Johnson was dangerous to Morales and had him committed to the custody of a medical facility, pursuant to Welfare and Institutions Code section 5150.   After the facility released Johnson, Ybarra told him to have intensive treatment with the parole department staff psychologist.

During treatment, Johnson made further threats against decedent to the staff psychologist, who did not warn Morales of these threats.

During this time an attorney, Vides, was representing Morales in connection with custody proceedings involving her children.   Vides was concerned with the possible impact of Morales's relationship with Johnson, a parolee, on the custody dispute, and therefore asked Ybarra the nature of Johnson's crime.   He would not tell her.   However, Vides independently learned that Johnson had been convicted of murder and again contacted Ybarra, who would not give Vides any details but did say the crime was not of the type which would pose a danger to the children.

Vides then learned of Johnson's violence and threats to Morales and Vides told Ybarra these facts in April 1986.   She told Ybarra that Johnson had attempted to stab Morales.   Ybarra then still believed that Johnson was jealous and potentially violent.   Vides said she was going to apply for a temporary restraining order to protect Morales from Johnson, and Ybarra agreed to serve the order and arrest Johnson.   However, instead of doing so, he telephoned Morales in an attempt to reconcile her with Johnson.   In that conversation Ybarra told Morales that “I don't think you have anything to worry about.   He's not going to come looking for you.”   He also told her that Johnson had said he was still in love with her and he repeatedly asked her if she really wanted to end the relationship.   Later, Ybarra told Vides that he considered Morales to be “a lying sack of shit.”

The complaint alleges that as a proximate result of Ybarra's conduct detailed above, as well as the failure of psychologists to warn her of danger, Morales failed to take steps to protect herself from Johnson.

On April 16, 1986, Johnson kidnapped Morales and shot her to death.

In their second cause of action, for violation of civil rights under § 1983, plaintiffs allege Ybarra “and other employees of the STATE OF CALIFORNIA” acted recklessly and with deliberate indifference to Morales's needs, and in a manner that shocked the conscience.   By so acting, Ybarra and other employees of the State (and other defendants) “acted under color of law and deprived Plaintiff [sic] of her life, without due process of law and in violation of the Fourteenth Amendment to the United States Constitution.”  (The complaint further alleges that the defendant Santa Clara Valley Medical Center and its employees engaged in acts and omissions resulting from official policy of that defendant and of defendant County of Santa Clara.   These defendants are not involved in this proceeding.)

The trial court sustained Ybarra's demurrer to both causes, without leave to amend;  sustained without leave to amend State's demurrer to the federal claim;  and overruled State's demurrer to the wrongful death claim, but granted its motion to strike allegations premising liability on Ybarra's conduct, leaving intact as a basis for the action only the claimed failure of the state-employed psychologist to warn Morales of danger.


I. State Law Claims

In cases of this nature raising question both of tort liability and of sovereign immunity we are instructed first to decide whether a private actor would be liable in tort, and then, if so, whether governmental immunity bars the action.  (Williams v. State of California (1983) 34 Cal.3d 18, 22, 192 Cal.Rptr. 233, 664 P.2d 137.)

 Unfortunately, separating the two questions is not as straightforward as might at first appear.   Those cases which have thoughtfully examined what is meant by the concept of “duty” in tort law have accurately discerned that the concept is not an accurate analytic tool but is no more than a shorthand expression of the sum total of relevant factors leading a court to conclude that on the particular facts presented a plaintiff's interests are entitled to legal protection against the defendant's acts.  (Dillon v. Legg (1968) 68 Cal.2d 728, 734, 69 Cal.Rptr. 72, 441 P.2d 912;  Myers v. Quesenberry (1983) 144 Cal.App.3d 888, 891, 193 Cal.Rptr. 733;  Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 434, 131 Cal.Rptr. 14, 551 P.2d 334.)   Included in those factors is concern over need for governmental immunity to prevent impairment of public functions.  (Myers v. Quesenberry, supra, 144 Cal.App.3d at p. 893, 193 Cal.Rptr. 733;  Davidson v. City of Westminster (1982) 32 Cal.3d 197, 185 Cal.Rptr. 252, 649 P.2d 894;  Thompson v. County of Alameda (1980) 27 Cal.3d 741, 750, 167 Cal.Rptr. 70, 614 P.2d 728.)   It is thus not possible to consider “duty” in isolation from “immunity” issues.   Similarly circular is an attempt to discuss “duty” before considering causation, because again, foreseeability of the risk is an element to be considered in deciding whether a duty is owed.   (See, e.g., Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 46, 123 Cal.Rptr. 468, 539 P.2d 36;  Myers v. Quesenberry, supra, 144 Cal.App.3d 888, 892, 193 Cal.Rptr. 733;  Rowland v. Christian (1968) 69 Cal.2d 108, 112, 70 Cal.Rptr. 97, 443 P.2d 561.)   We agree with the analysis of the court in Myers v. Quesenberry, and similarly reasoned decisions, that the question of negligence liability is best analyzed by eliminating labels such as “duty” which beg the question and by focusing on the issue whether liability should be imposed.  (Myers v. Quesenberry, supra, 144 Cal.App.3d at p. 891, 193 Cal.Rptr. 733.)   The general rule in this jurisdiction is liability, that is, that defendants are liable for injuries caused by their failure to exercise reasonable care.  (Rowland v. Christian, supra, 69 Cal.2d at p. 112–113, 70 Cal.Rptr. 97, 443 P.2d 561;  see also Elam v. College Park Hospital (1982) 132 Cal.App.3d 332, 339, 183 Cal.Rptr. 156.)   However, public policy considerations may justify exceptions to this general rule.  (Ibid.)

 The decision in Rowland v. Christian states the major relevant factors to be considered in deciding whether tort liability should be imposed:  the foreseeability of harm to plaintiff, the degree of certainty that plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty, and the availability of insurance for the risk involved.  (Rowland v. Christian, supra, 69 Cal.2d at p. 113, 70 Cal.Rptr. 97, 443 P.2d 561.)

 In our opinion, tort liability should not be imposed on the parole agent and State here.   Of the above factors, these are central and determinative:  it is not plainly forseeable that because of Ybarra's ill advised statements, Morales would be murdered;  there is not a demonstrably close connection between Ybarra's advice and Morales's death;  and there is a burden upon the community if we impose too great a duty upon parole officers and agents to control the conduct of parolees, as well as an expressed statutory policy preventing imposition of such liability, except under limited conditions.  (Gov.Code, §§ 845.8 and 820.2.)   We shall explain these conclusions.

First, it is plain that the primary agent of Morales's death was Johnson.   If we infer from the complaint that because of Ybarra's advice, Morales decided to disregard her fears and to continue to associate with Johnson, then a concurring cause of her harm was that personal decision, made despite her own knowledge that Johnson was dangerous and had threatened her.   A third contributing cause is alleged to be Ybarra's advice.   Although it is impossible in theory entirely to eliminate Ybarra's contribution to this conjunction of causes, plainly his input does not loom large.   We believe that it was not reasonably foreseeable that as a result of Ybarra's statement to Morales, Johnson would murder Morales;  too many other factors intervene and bear on the tragic result.

 Our conclusion in this regard is in harmony with that of many appellate decisions which, on somewhat differing reasoning, conclude that a defendant should not be liable for the conduct of a third party.   Although such liability may be imposed under the rubric of “special relationship,” when the facts suggest it is reasonable to expect the defendant either to control the tort-feasor or to protect the victim, liability for the conduct of a third party is still the exception and the general rule is not to impose liability for the act of another, particularly when that act is a violent crime.  (See, e.g., Megeff v. Doland (1981) 123 Cal.App.3d 251, 261, 176 Cal.Rptr. 467;  Kane v. Hartford Accident & Indemnity Co. (1979) 98 Cal.App.3d 350, 159 Cal.Rptr. 446;  Hooks v. Southern Cal. Permanente Medical Group (1980) 107 Cal.App.3d 435, 165 Cal.Rptr. 741.)

Especially pertinent here is a decision of the United States Supreme Court, holding that plaintiff could not state a cause of action in tort (under § 1983) for the act of releasing a dangerous sex offender who later murdered a victim, because the parolee and not the parole board was the sole cause of the victim's death.  (Martinez v. California (1980) 444 U.S. 277, 285, 100 S.Ct. 553, 559, 62 L.Ed.2d 481, affirming Martinez v. State of California (1978), 85 Cal.App.3d 430, 149 Cal.Rptr. 519.)   Although Martinez may be distinguished because there the parolee had articulated no threat to the person he later victimized whereas here, a known and identifiable potential victim, Morales, existed, that fact is not significant because here Morales already knew of her danger, and needed no warning.   Both in Martinez and here, the defendant parole board or agent does not owe the victim a duty to control the parolee;  at most, here, he may owe a duty to warn, but there is no nexus here between lack of warning and harm.

The weakness of the connection between Ybarra's bad advice and Morales's death is illustrated by the difficulty in showing concretely how Ybarra's act resulted in the murder.   Plaintiffs do not say that Morales followed Ybarra's advice in any way, as by reconciling with Johnson, resuming the relationship, opening the door to him when she would not otherwise have done so, or in any way making herself more accessible to him because Ybarra told her she had nothing to fear.   It cannot be said with any degree of probability beyond pure speculation that had Ybarra not misadvised her, Morales would not have been murdered.   Not only does the complaint reveal Morales's awareness of the danger to herself, but it fails to assert any course of action upon which she might have embarked to protect herself, nor any precaution she did not take, because of Ybarra's outrageous advice.   In the less than two-week period that elapsed between Ybarra's conversation with Morales and her death, it is highly speculative to assume that she could have accomplished any improvement in her security.   The frightening reality is that for one in Morales's position there frequently is nothing she can do to protect herself.   Despite the general allegations of reliance and proximate cause, it is clear that the true agent of her death here was Johnson.   Without in any way condoning Ybarra's clearly outrageous conduct, we conclude that in this case, the sum total of considerations bearing on the question of duty require the result that Ybarra owed no duty to Morales to prevent this murder.   Even if his ill-advised statements to her may be viewed as a violation of his duty to warn, that breach is not legally germane to the resultant damage.

 Nothing short of confining Johnson could probably have prevented this death.   However, the decision to leave him at large is not actionable by virtue of the immunity statutes.   Although it could be plausibly argued that the decisions to release Johnson and to leave him at large played a significant part in causing this murder, those decisions are protected by the Government Code section 845.8, which provides immunity from liability for all aspects of Ybarra's conduct which constituted part and parcel of his function of supervising Johnson's parole, or were integral to the decision to release Johnson or to leave him at large.  (Martinez v. State of California, supra, 85 Cal.App.3d 430, 436, 149 Cal.Rptr. 519;  Duffy v. City of Oceanside (1986) 179 Cal.App.3d 666, 672, 224 Cal.Rptr. 879;  Whitcombe v. County of Yolo (1977) 73 Cal.App.3d 698, 713, 141 Cal.Rptr. 189.)   The immunity extends to all determinations affecting the timing and conditions of the release of a parolee, including selection of placement and determination of the appropriate degree of supervision.  (See Thompson v. County of Alameda, supra, 27 Cal.3d 741, 749, 167 Cal.Rptr. 70, 614 P.2d 728.)

Plaintiffs cite decisions which hold that when a defendant knows that a third party poses a specific danger to an identified potential victim, and the victim is unaware of his danger, that defendant is under a legal duty to warn the potential victim, and possibly also to control the third party under appropriate circumstances.  (See Duffy v. City of Oceanside, supra, 179 Cal.App.3d 666, 672, 224 Cal.Rptr. 879, and authorities there cited;  see also Tarasoff v. Regents of University of California, supra, 17 Cal.3d 425, 131 Cal.Rptr. 14, 551 P.2d 334.)   Here Ybarra had a special relationship with Johnson as parole agent, knew or should have known of his threats regarding Morales, and therefore was aware that Morales in particular was a target.   These facts are urged as sufficient to form a basis for a duty on Ybarra's part to warn.   Nor, is it argued, that there would be immunity for such failure to warn.  (See generally Johnson v. State of California (1968) 69 Cal.2d 782, 73 Cal.Rptr. 240, 447 P.2d 352.)

We agree with the general proposition but not with its application to these facts.   Plaintiffs' claim is not really a claim of failure to warn.   On the contrary, the victim here already knew of her danger.   Plaintiffs allege that Morales is the person who told Ybarra of the threats to her;  she was fully aware of her peril.   The claim is that Ybarra misled her into a feeling of safety by telling her that Johnson was not a danger.   For the reasons we have stated, the connection between his acts and her death is too nebulous to permit of imposing tort liability upon Ybarra for Johnson's murder of Morales.

We conclude that Ybarra is not liable in tort for his act in misadvising Morales.   Other aspects of his supervision of the parolee, such as the degree of control or the failure to have him committed, are immune from tort liability.   For these reasons the trial court correctly sustained demurrers as to Ybarra and as to the State regarding liability for the former's conduct.

II. Federal Claims

 By virtue of the Eleventh Amendment, states are immune in the federal courts from suit under § 1983.  (E.g., Quern v. Jordan (1979) 440 U.S. 332, 341, 99 S.Ct. 1139, 1145, 59 L.Ed.2d 358;  Mohler v. State of Miss. (5th Cir.1986) 782 F.2d 1291;  Kristensen v. Strinden (N.D.1983) 343 N.W.2d 67, 76–77.)   There has been some conflict in the state court decisions as to whether states are likewise immune from § 1983 claims in state courts.   The Eleventh Amendment does not apply to state courts, but it has been argued that the federal remedy should be no greater because brought in a state court.  (See discussion in Kristensen v. Strinden, supra, at pp. 76–77;  Brody v. Leamy (1977) 90 Misc.2d 1, 393 N.Y.S.2d 243, 262.)   However, other decisions have found immunity on a different basis, namely, that a state is not a “person” who can be sued within § 1983.   The California decisions are committed to this position.  (Pyne v. Meese (1985) 172 Cal.App.3d 392, 401–403, 218 Cal.Rptr. 87;  Mezey v. State of California (1984) 161 Cal.App.3d 1060, 1065, 208 Cal.Rptr. 40;  Taylor v. Mitzel (1978) 82 Cal.App.3d 665, 670, 147 Cal.Rptr. 323.)   According to Pyne v. Meese, the majority of state decisions, for one or another of these reasons, hold a state immune from § 1983 claims.  (Pyne v. Meese, supra, 172 Cal.App.3d at p. 402, 218 Cal.Rptr. 87.)   Having no good reason to reject this body of precedent, we agree that the State cannot be sued for a § 1983 claim.

 Ybarra does not necessarily share this immunity.   However, recovery under § 1983 requires demonstration of an official state policy or custom to satisfy the statutory requirement that the conduct be under color of law.   (Oklahoma City v. Tuttle, supra, 471 U.S. 808, 816, 105 S.Ct. 2427, 2432.)   As the Oklahoma City decision states, “it can never hurt to embark on statutory construction with the Act's precise language in mind․” (Ibid.), and that language provides redress when a person “under color of any statute, ordinance, regulation, custom, or usage, of any State ․, subjects, or causes to be subjected, any citizen of the United States ․ to the deprivation of any rights, privileges, or immunities secured by the Constitution․”  (§ 1983.)   Accordingly the acts complained of must be traced to some systematic set of decisions directly resulting in such conduct;  they may not be fortuitous, albeit reprehensible, conduct of government employees which has not been authorized by policy makers.   The Oklahoma City decision holds that the requisite policy cannot be inferred from a single incident of unconstitutional activity, with no showing linking it to an existing, unconstitutional policy.  (Oklahoma City v. Tuttle, supra, 471 U.S. at pp. 823–824, 105 S.Ct. at pp. 2436–2437.)   It was there held that a single act of excessive force by a police officer was insufficient to show a municipal policy of gross negligence or indifference in the training and supervision of police officers.   Similarly here, the single instance of conduct by the parole agent, however ill conceived, does not demonstrate any state policy regarding the training, supervision or practices of parole agents.   No such policy is alleged.   The only allegations of unconstitutional policy are directed at the county and medical facility defendants, not here involved.

Many decisions agree with the Oklahoma City case that an official policy must be shown under § 1983.  (E.g., Monell v. New York City Dept. of Social Services (1978) 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 [partly relied on in Oklahoma City, and holding also that liability under § 1983 cannot rest on a respondeat superior basis];  Guillory v. County of Orange (9th Cir.1984) 731 F.2d 1379, 1381;  Languirand v. Hayden (5th Cir.1983) 717 F.2d 220;  Jackson v. City of Joliet (7th Cir.1983) 715 F.2d 1200 [malicious conduct under the protection of local law].)

It should also be noted that the United States Supreme Court decision in Martinez v. California, supra, held that a released parolee's action is not state action within § 1983, because the victim's death there was too remote a consequence of the parole release.  Martinez premised the lack of causality on the circumstance that the release of the parolee did not endanger any known victim;  here, by analogy, as we discussed above, the alleged tortious act, the wrongful advice, did not produce the danger to the victim.   In both cases, it cannot be truly said that state action caused the harm.

Plaintiffs have called our attention to the fact that the United States Supreme Court recently granted certiorari in a decision holding that reckless failure by Wisconsin welfare authorities to protect a child from a parent's physical abuse does not deprive the child of liberty or property within the meaning of the Fourteenth Amendment (hence does not give rise to a § 1983 claim), because a constitutional tort requires deprivation by the defendant, not merely a failure to protect the plaintiff from a danger created by others.  (DeShaney v. Winnebago Cty. Dept. of Soc. Services (7th Cir.1987) 812 F.2d 298, 302, cert. granted (1988) 485 U.S. 958, 108 S.Ct. 1218, 99 L.Ed.2d 419;  contra, Estate of Bailey by Oare v. County of York (3d Cir.1985) 768 F.2d 503, 510–511;  and compare, under state law, the recent California decision in Ebarb v. County of Stanislaus (1988) 201 Cal.App.3d 39, 246 Cal.Rptr. 845 holding a county may be sued for failure to protect an abused child.)   Here, however, the allegations are stronger than in DeShaney;  plaintiffs claim not a mere failure to protect Morales from Johnson, but rather, an affirmative act misleading her.   Accordingly, if causation could be shown, this case would not be controlled by DeShaney even if we were otherwise persuaded by its reasoning, and we do not rest our decision here on the principle of the DeShaney decision that third party conduct is never actionable under § 1983.   We need not decide in this case whether DeShaney, or Estate of Bailey, correctly interprets the federal statute.   It is instructive, however, to read the following comment by the dissenting judge in Estate of Bailey as to the proper function of the federal civil rights statute:  “Inasmuch as § 1983, which was designed to vindicate the fourteenth amendment, reaches only conduct under color of state law, formidable causation issues may be raised when the facts alleged suggest that the state action may have consisted essentially of a failure to prevent the misconduct of a private third party.  [¶] ․ [W]hen a person suffers injury as an incidental and unintended consequence of official action or inaction, the abuse of power by a state official which constitutes ‘an essential element of a § 1983 action’ will often be absent.”  (Estate of Bailey by Oare v. County of York, supra, 768 F.2d 503 at p. 512 (dis. opn. of Adams, J.).)   So here, we deal with grossly negligent private conduct rather than an abuse of official power such as § 1983 was designed to redress.

We conclude the trial court properly sustained demurrers as to both defendants on the § 1983 claim.


The petition for writ of mandate is denied.

CAPACCIOLI, Associate Justice.

AGLIANO, P.J., and BRAUER, J., concur.