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Court of Appeal, First District, Division 5, California.

Lorraine WILLIAMS, Individually and as Guardian ad Litem of Sharon Williams, Jaquiline Williams, Shontell Williams, Lakisha Williams, Floyd Williams, III and Stephanie Williams, minors, Petitioners, v. CONTRA COSTA COUNTY SUPERIOR COURT, Respondent, CITY OF SAN PABLO and Officer Ed Jelonek, Real Parties in Interest.


Decided: May 29, 1991

Stephen J. Ringhoff, Drivon, Tabak, Winger & Ringhoff, Modesto, for petitioners Lorraine Williams, et al. No appearance for respondent. Stephanie Gray, Sellar, Hazard, Snyder, Kelly & Fitzgerald, Walnut Creek, for real parties City of San Pablo and Officer Ed Jelonek.

Petitioners, Lorraine Williams and her six minor children, are plaintiffs in an action for wrongful death and negligent infliction of emotional distress arising from the shooting death of their husband and father at the hands of San Pablo Police Officer Ed Jelonek.   Real party/defendants, the City of San Pablo and the officer, demurred to petitioners' first amended complaint to the extent that it sought damages for negligent infliction of emotional distress (Dillon v. Legg (1968) 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912), on the ground that the distress allegations were not included in petitioners' government tort claim.   The superior court sustained the demurrer without leave to amend, leaving petitioners only their cause of action for wrongful death.   Petitioners seek a writ of mandate to reinstate the allegations of emotional distress.   Having issued an order to show cause and heard oral argument, we issue the requested writ.


On July 9, 1989, Lorraine Williams was involved in a domestic dispute with the decedent, her husband Floyd.   The San Pablo Police Department was summoned and Officer Jelonek arrived at the Williams home.   Jelonek became involved in an altercation with decedent and shot and killed him.

Petitioners, the decedent's wife and minor children, witnessed the killing.   The children were apparently from one to eight years old at the time of the incident.

Petitioners filed a government tort claim with the City.  (Gov.Code, §§ 905, 910.)   A government tort claim must set forth, inter alia, the “date, place and other circumstances of the occurrence or transaction which gave rise to the claim asserted” and a “general description” of the “injury, damage or loss incurred.”  (Gov.Code, § 910, subds. (c), (d).)   Petitioners' claim identified the claimants as the wife and minor children of the decedent, and recited that:

“4. The place and date of the occurrence giving rise to this claim is SAN PABLO on July 9, 1989.

“5. The circumstances giving rise to this claim are as follows:

“Claimant Lorraine Williams was involved in a domestic dispute with her husband, Floyd Williams.   The San Pablo Police Department was called to intervene.   Officer Ed Jelonek arrived at the scene alone.   An altercation arose between Floyd Williams and [O]fficer Jelonek wherein [O]fficer Jelonek wrongfully shot claimants' husband, and father, Floyd Williams resulting in his death.

“6. [Claimants'] injuries include, but are not limited to emotional harm, and the loss of life and care, comfort, support and society of their said husband and father.”  (Emphasis ours.)

The City denied the claim and petitioners filed suit against real parties.   Petitioners' first amended complaint seeks damages for wrongful death and for the negligent infliction of emotional distress caused by petitioners' witnessing their decedent's violent death.   The complaint alleges:

“Plaintiffs' decedent was shot to death by Ed Jelonek who was in the course and scope of his employment as a police officer of the City of San Pablo at the time of the shooting.   Said officer used extreme and unjustified force on plaintiffs' decedent.

“Those plaintiffs set forth in Attachment B [listing petitioners] were present and witnessed the negligent acts of Officer Jelonek and further witnessed the injury to and death of plaintiffs' decedent.”

Real parties demurred to the emotional distress allegations on the ground that the government tort claim failed to give them notice of petitioners' emotional distress theory of recovery.   Specifically, real parties argued that the claim presented by petitioners “gave absolutely no notice of any Dillon vs. Legg theory of liability,” because it “nowhere assert[s] that the claimants personally witnessed the shooting of decedent.”   At oral argument, the trial court told petitioners' counsel that it wished the claim “was spelled out a little more clearly” with regard to emotional distress.   The court sustained the demurrer without leave to amend.

 This petition followed.1


 Petitioners contend their government tort claim is sufficient to apprise real parties of a claim for emotional distress notwithstanding the claims's failure to mention the fact that petitioners witnessed the shooting.   We agree.

The purpose of the government tort claims statute “is to provide the public entity sufficient information to enable it to adequately investigate claims and to settle them, if appropriate, without the expense of litigation.  [Citations.]”  (City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 455, 115 Cal.Rptr. 797, 525 P.2d 701.)   This is the rationale of Government Code section 910's requirement that a claim generally describe the circumstances of the tortious transaction or occurrence and the resulting injury or loss.  (Blair v. Superior Court (1990) 218 Cal.App.3d 221, 224, 267 Cal.Rptr. 13.)  “Although a claim need not conform to pleading standards, the facts constituting the causes of action pleaded in the complaint must substantially correspond with the circumstances described in the claim[ ] as the basis of the plaintiff's injury.  [Citation.]”  (Loehr v. Ventura County Community College Dist. (1983) 147 Cal.App.3d 1071, 1082–1083, 195 Cal.Rptr. 576.)

 A cause of action is generally considered barred if “it alleges a factual basis for recovery which is not fairly reflected in the written claim.”  (Nelson v. State of California (1982) 139 Cal.App.3d 72, 79, 188 Cal.Rptr. 479.)   Courts that determine whether such a cause of action is or is not “fairly reflected” must do so in light of the overarching policy of liberal interpretation in favor of adjudication.  “ ‘So long as the policies of the claims statute are effectuated, they should be given a liberal construction to permit full adjudication on the merits.  [Citation.]’ ”  (Smith v. County of Los Angeles (1989) 214 Cal.App.3d 266, 280, 262 Cal.Rptr. 754, quoting Minsky v. City of Los Angeles (1974) 11 Cal.3d 113, 123, 113 Cal.Rptr. 102, 520 P.2d 726.)

A number of cases on which real parties rely have held claims barred for “asserting ․ theories of liability based on factual allegations entirely different from those set forth in the claims․”  (Smith v. County of Los Angeles, supra, 214 Cal.App.3d at p. 279, 262 Cal.Rptr. 754.)   In Connelly v. State of California (1970) 3 Cal.App.3d 744, 84 Cal.Rptr. 257, the plaintiff's tort claim was based on state employees' negligence in releasing inaccurate river-level forecasts.   The court barred the complaint's additional allegation that other state employees negligently operated state dams and released too much water into the river.   In Lopez v. Southern Cal. Permanente Medical Group (1981) 115 Cal.App.3d 673, 171 Cal.Rptr. 527, the plaintiff was struck by an epileptic driver.   He was not permitted to premise state liability in his complaint on the state's failure to revoke the driver's license for failure to comply with accident reporting and insurance requirements, when his tort claim only premised liability on the state's failure to revoke the license for epilepsy.

In Nelson v. State of California, supra, 139 Cal.App.3d 72, 188 Cal.Rptr. 479, a prisoner's tort claim was based on the medical malpractice of physicians called to treat him.   He was not permitted to allege in his complaint a cause of action based on a different factual basis, that state prison officials had failed to summon immediate medical care.   In Donohue v. State of California (1986) 178 Cal.App.3d 795, 224 Cal.Rptr. 57, the plaintiff was involved in a car accident with a minor taking his DMV driver's test.   The tort claim premised liability on DMV negligence for permitting an uninsured motorist to drive.   The complaint attempted to premise liability on the DMV examiner's alleged negligence in instructing and controlling the minor driver during the street test.   The court barred this allegation because it was “not reflected” in the tort claim because it was “based on an entirely different set of facts.”  (Id., at p. 804, 224 Cal.Rptr. 57.)

In Fall River Joint Unified School Dist. v. Superior Court (1988) 206 Cal.App.3d 431, 253 Cal.Rptr. 587, the plaintiff was injured when the door of a school building closed suddenly and slammed his head into the metal doorframe.   His tort claim alleged the door was in a dangerous and defective condition.   His complaint added an allegation that the public entity was liable for negligently failing to supervise students engaged in “horseplay.”   The court held this cause of action was barred because it “premise[d] liability on an entirely different factual basis than what was set forth in the tort claim.  [Citation.]”  (Id., at p. 435, 253 Cal.Rptr. 587.)

In contrast to this line of cases barring claims based on theories of liability based on entirely different facts, another line of cases allow claims based on “facts omitted from the claim, where those omitted facts are sufficiently related to those alleged in the claim.”  (Smith v. County of Los Angeles, supra, 214 Cal.App.3d at p. 279, 262 Cal.Rptr. 754.)

In White v. Moreno Valley Unified School Dist. (1986) 181 Cal.App.3d 1024, 226 Cal.Rptr. 742, the plaintiff minor was seriously injured in an automobile accident en route to a school event.   Her tort claim described the injuries suffered as “personal injuries” to the minor plaintiff and “medical expenses” incurred by her mother.   At trial plaintiff introduced evidence of medical expenses incurred by the minor herself.   The trial court barred the evidence because such expenses were not mentioned in the claim.   The White court reversed, holding that “the claim filed on behalf of plaintiff and her mother, while perhaps ambiguous, was sufficient to cover plaintiff's claim for recovery of medical expenses․”  (Id., at pp. 1029–1030, 226 Cal.Rptr. 742.)   Because “[s]ubstantial medical expenses would, of course, naturally and certainly result from serious personal injuries” (id., at p. 1031, 226 Cal.Rptr. 742), “plaintiff's claim was adequate to reasonably enable [the district] to make an adequate investigation and to settle the claim, including the medical expenses which were clearly encompassed within the overall claim.”  (Id., at p. 1032, 226 Cal.Rptr. 742.)

In Smith the plaintiff homeowners filed tort claims against Los Angeles County alleging that the County had eroded a hill to build a road, and had thus created a landslide danger mandating demolition of the plaintiffs' homes.   The subsequent complaint further alleged that the County had also increased landslide danger by removing debris which had supported the hillside and by allowing additional construction which increased destabilizing water runoff.

The Smith court held that these additional allegations were fairly reflected in the tort claim.   Although the tort claims did not expressly encompass the additional allegations, the latter were not based on facts entirely different from those of the claims.   After citation to the principle that the tort claim statute should be given liberal construction in favor of merit review (ante, at pp. 523–524), the court reasoned that “[n]ecessary maintenance of the roadway, such as the clearing of slide debris, and conditions resulting from the presence of the road, such as the channeling of water runoff, are matters closely connected with construction of the road.   We agree with the trial court that the claims were ‘sufficient to put the county on fair notice that the nature of the road, its maintenance and its construction are all covered by the claim[s].’ ”  (Smith v. County of Los Angeles, supra, 214 Cal.App.3d at p. 280, 262 Cal.Rptr. 754.)

In Blair v. Superior Court, supra, 218 Cal.App.3d 221, 267 Cal.Rptr. 13, the plaintiff was a passenger in a pickup truck which lost control, left a state highway and struck a tree.   His tort claim alleged that the highway was iced over due to negligent maintenance and construction of the road surface.   His complaint added allegations that the roadway was dangerous because of a lack of guardrails and warning signs and a defective slope which would effectively channel out-of-control vehicles into large trees near the road.

The Blair court rejected defendant CALTRANS' argument that the suit should be limited to the danger caused by the accumulation of ice.  “We [refuse to] read the claim so narrowly nor do we think the law requires that the claim contain the degree of specificity defendant would have us enforce.”  (Blair v. Superior Court, supra, 218 Cal.App.3d at p. 224, 267 Cal.Rptr. 13.)   The court found that “any variance between the complaint and claim does not approach” that present in Fall River, Donohue, Nelson, Connelly and Lopez.  (Id., at pp. 225–226, 267 Cal.Rptr. 13.)   In each of these cases “the plaintiff did not merely elaborate or add further detail to a claim which was predicated on the same fundamental facts set forth in the complaint.   Rather, there was a complete shift in allegations, usually involving an effort to premise civil liability on acts or omissions committed at different times or by different persons than those described in the claim.   In contrast, the claim and the complaint in this action are premised on essentially the same foundation, that because of its negligent construction or maintenance, the highway at the scene of the accident constituted a dangerous condition of public property.  [Citation.]”  (Id., at p. 226, 267 Cal.Rptr. 13.)

The court rejected as “patently incorrect” the state's position that liability was limited to failure to keep the roadway ice-free.  “A charge of negligent construction may reasonably be read to encompass defects in the placement of highway guard rails, slope of the road, presence of hazards adjacent to the roadway or inadequate warning signs.   The trial court hinged its decision [to bar the additional allegations] in part on the fact that plaintiff's claim of negligent construction and maintenance uses the phrase ‘of highway surface.’   The word ‘surface’ was apparently read as precluding plaintiff from presenting evidence of flaws beyond the icy condition of the pavement itself.   In view of the policies served by the claims statute, such a crabbed construction of the language of the claim is not warranted.”  (Blair v. Superior Court, supra, 218 Cal.App.3d at p. 226, 267 Cal.Rptr. 13, emphasis added.)

In White v. Superior Court (1990) 225 Cal.App.3d 1505, 275 Cal.Rptr. 706 2 the court reached a similar conclusion.   The plaintiff, a San Francisco Muni bus driver, was assaulted and brutally beaten without provocation by a San Francisco police officer, falsely imprisoned and arrested, and then denied medical attention.   Her tort claim against the City and County of San Francisco stated these facts.   Her complaint alleged corresponding causes of action for assault and battery and false imprisonment.   The complaint added causes of action for negligent hiring, training and retention of the officer involved, and for intentional failure to supervise and discipline the officer.   The trial court granted San Francisco summary adjudication of the issue that the two causes of action were barred because the claim “did not mention alleged problems with San Francisco's hiring, training, retention, supervision and discipline of employees.”  (Id., at p. 1507, 275 Cal.Rptr. 706.)   The White court reversed.

After reviewing the Connelly to Fall River line of cases, the White court distinguished that line from the holdings in the more recent cases of Smith and Blair.   The court found Ms. White's case to be closer to the Smith/Blair than the Connelly/Fall River line.  “Both plaintiff's complaint and her claim were predicated on the same fundamental facts—[the officer's] alleged mistreatment of plaintiff.   The causes of action for negligent hiring, training, and retention and for failure to train, supervise, and discipline merely sought to show direct responsibility of San Francisco” for its officer's actions.  “Plaintiff did not shift the fundamental facts about her injury.”  (White v. Superior Court, supra, 225 Cal.App.3d at p. 1511, 275 Cal.Rptr. 706.)

In the present case, real parties argue that the Dillon cause of action is not fairly reflected in the tort claim because the claim does not specifically mention that anyone, including petitioner Lorraine Williams, witnessed the shooting.   Because contemporaneous observance of the injury-causing event is a requirement of Dillon recovery (see Thing v. La Chusa (1989) 48 Cal.3d 644, 257 Cal.Rptr. 865, 771 P.2d 814), real parties argue that petitioners fail to give notice of an emotional distress claim.   Real parties rely chiefly on the Connelly/Fall River line of cases.

The present case, however, falls under the Smith/White line of decisions.   Unlike the plaintiffs in Connelly/Fall River, petitioners are not adding allegations based on factual theories entirely different from those in their claim.   They are not adding premises of liability based on the acts of different persons than Jelonek, or acts occurring at a different time.   The Dillon claim is based on the fundamental facts alleged in the tort claim, i.e., Jelonek's shooting and killing the decedent.   A Dillon claim is not an unusual consequence of the shooting of a man known, and identified in a tort claim, as having a family.   That is, one charged with committing a negligent fatal tort should not be surprised at being sued for inflicting emotional distress upon the immediate family members who might have witnessed the event.   Like the plaintiffs in the Smith/White line of cases, petitioners have not fundamentally shifted the facts of their claim.3

Our conclusion is consistent with the tort claim act's purpose:  to provide the public entity with sufficient facts to investigate the claim and, if possible, settle it.   In this case, the most rudimentary investigation would certainly have revealed the presence of witnesses.   A certain amount of common sense is helpful here.   Jelonek was called to the Williams home on a report of a domestic dispute.   Such a call would have been an oddity if the decedent were alone.   Thus, at least Lorraine Williams' presence is easily inferred and would have been easily revealed by investigation.   Moreover, we take judicial notice (Evid.Code, § 451) that July 9, 1989 was a Sunday.   Decedent's minor children, who were identified as such in the claim, might reasonably be expected to be in the company of their mother.   Again, a basic investigation (perhaps no more involved than perusing Jelonek's incident report) would have revealed the presence of witnesses—who are (or should be) routinely noted on police reports in this state.   But one wonders if the investigative purposes of the tort claim is honored in practice.   At oral argument, real parties' counsel made the astounding assertion that a public entity could properly investigate a claim without in any way communicating with the claimants.

Moreover, the tort claim included “emotional harm” on the part of all petitioners as an ingredient of damages.   While Dillon is not the only cause of action for which such damages may be awarded, the mention of “emotional harm” reinforces the fair reflection of a Dillon allegation in the general facts of the tort claim.

The tort claim in this case is not a model of precision legal drafting.   But, as at least one court has pointed out, it is not meant to be:  it is only meant to provide a general description of the circumstances of the injury and the damage incurred.  (Blair v. Superior Court, supra, 218 Cal.App.3d at pp. 224–225, 267 Cal.Rptr. 13.)   It would not be fair to hold petitioners to the quality of craftsmanship expected of a formal pleading;  this is why courts have fashioned the “fair reflection” doctrine.  (Id., at p. 224, 267 Cal.Rptr. 13.)   Real parties' argument against the Dillon cause of action seems very close to the sort of “crabbed construction” condemned in Blair.   (Id., at p. 226, 267 Cal.Rptr. 13.)

Petitioners' Dillon cause of action was fairly reflected in their tort claim.   Accordingly, let a peremptory writ of mandate issue commanding respondent superior court to vacate its order sustaining real parties' demurrer to the Dillon allegations and to enter a new and different order overruling the demurrer and reinstating the allegations.   Petitioners shall recover costs.


1.   Real parties raise three procedural challenges to the petition.   We reject their contention that the record is inadequate to enable informed review.  (Sherwood v. Superior Court (1979) 24 Cal.3d 183, 186–187, 154 Cal.Rptr. 917, 593 P.2d 862.)   Petitioners have provided this court with all pertinent documentation necessary to resolution of the issue raised.We reject the assertion that extraordinary relief is inappropriate because petitioners retain their cause of action for wrongful death, and thus have an adequate remedy at law by appeal from the eventual final judgment.   On the contrary, a writ may issue, even at the pleading stage, where the trial court has removed a substantial portion of the plaintiff's case from ever reaching the trier of fact.  (Taylor v. Superior Court (1979) 24 Cal.3d 890, 894, 157 Cal.Rptr. 693, 598 P.2d 854;  see Vasquez v. Superior Court (1971) 4 Cal.3d 800, 807, 94 Cal.Rptr. 796, 484 P.2d 964;  Nazaroff v. Superior Court (1978) 80 Cal.App.3d 553, 557–558, 145 Cal.Rptr. 657.)   In Golstein v. Superior Court (1990) 223 Cal.App.3d 1415, 273 Cal.Rptr. 270, this court concluded review of a writ petition on the merits was appropriate where petitioners had lost their Dillon cause of action but retained an unchallenged cause of action for wrongful death.We also reject real parties' arguments apparently based on waiver and “unclean hands.”   These concern a second tort claim filed by persons not parties to this petition, and that claim is not at issue here.

2.   All further references to a “White” decision are to the 1990 case of White v. Superior Court.

3.   Indeed, petitioners have a stronger case than the beaten bus driver in White who was allowed to allege negligent supervision and failure to train, causes of action which—while related to the beating—went a step beyond the direct factual context of the injury.

HANING, Associate Justice.

LOW, P.J., and KING, J., concur.