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Court of Appeal, Second District, Division 6, California.

Ken HOOSIER, Plaintiff and Appellant, v. Jon LANDER, et al., Defendants and Respondents.

No. B065031.

Decided: March 17, 1993

James R. Murphy, Jr., Arroyo Grande, for appellant Kenneth Hoosier. Gary L. Bostwick and R. Lance Belsome, Santa Monica, Dennis A. Henigan and Judith Bonderman, Washington, DC, for amicus curiae, Center to Prevent Handgun Violence Legal Action Project, for appellant. Archbald & Spray, Karen Burgett, and William Stewart, Santa Barbara, for respondents Jon Lander and Eddie Silveria, individually and dba The Outdoorsman.

Ken Hoosier, plaintiff and father of the decedent, Bryan Hoosier, appeals from a summary judgment granted in favor of defendants and respondents, Jon Lander, Eddie Silveria, and “The Outdoorsman.”   We reverse.   Triable material facts exist on the issue of whether respondents negligently sold a handgun to 19–year–old Jeff Randa in violation of Penal Code section 12072, subdivision (b).   That section provides:  “No person licensed under Section 12071 shall sell, deliver, or transfer any pistol, revolver, or firearm capable of being concealed upon the person to any person under the age of 21 years or any other firearm to a person under the age of 18 years.” 1

On February 1, 1990, Jeff Randa shot and killed Bryan Hoosier.   The incident occurred at a party at the residence of Norma Hamilton.   Randa brought the new nine millimeter Smith & Wesson handgun to the party to show it off.   The weapon was passed around, loaded, and unloaded.   Late in the evening, Hoosier told Randa to point the handgun at him and pull the trigger.   When he did so, the weapon discharged, fatally wounding Hoosier.

Although the facts and circumstances surrounding the actual shooting are not clear, Randa was criminally prosecuted and was convicted, by plea, of voluntary manslaughter.  (§ 192, subd. (a);  People v. West (1970) 3 Cal.3d 595, 604–605, 91 Cal.Rptr. 385, 477 P.2d 409.)   During the investigation, Officer John Tooley discovered that the handgun had been purchased from “The Outdoorsman” 12 days earlier by Randa's 75–year–old grandmother, Thelma Williams with whom Randa lived.

Respondents were interviewed by the police and stated that Randa visited their store several times before the shooting.   Randa showed a keen interest in firearms and advised them that he planned to enroll in the police academy at Alan Hancock College.   He had a list of items that he wanted to purchase:  the Smith & Wesson handgun, six boxes of ammunition, a pistol rest, a magazine pouch, and a police style holster.

Randa was told that he could not purchase the handgun because he was under 21 years of age.   Although Randa could legally own, possess, keep and carry the handgun in his residence, (§ 12026, subd. (a)) a licensed firearms dealer could not sell it to him.   State and federal laws prohibit the sale of concealable firearms to anyone under 21 years of age.  (§ 12072, subd. (b);  18 U.S.C. § 922, subd. (b)(1).  [“It shall be unlawful for any ․ licensed dealer, ․ to sell or deliver—[¶] (1) any firearm or ammunition to any individual who the licensee knows or has reasonable cause to believe is less than eighteen years of age, and, if the firearm, or ammunition is other than a shotgun or rifle, ․ to any individual who the licensee knows or has reasonable cause to believe is less than twenty-one years of age.”] )

Randa asked Silveria if his grandmother could buy the handgun.   Silveria replied that she could if she was a qualified buyer but that he could not sell the handgun “․ just so she could give the gun to him.” 2  Several days later, Randa and his grandmother showed up at the store.   Williams purchased the handgun and accessories, signed the necessary forms, and returned with Randa 16 days later to take delivery.3

After the shooting, Officer Tooley searched Williams' residence and found the store receipt, the box the weapon came in, and other firearm items in Randa's room.   Williams was interviewed and stated that she purchased the handgun for Randa because he needed it for the police academy.

Appellant filed a wrongful death action alleging, inter alia, negligence.   The gravamen is that respondents participated in a “strawman” sale to circumvent federal and state gun control laws.4

Respondents denied liability and filed a motion for summary judgment contending that no duty of care was owed or breached.   Appellant opposed the motion on the ground that the sale to Williams was a “strawman” purchase, designed to circumvent section 12072.   The trial court found that facts 8, 9, 10 and 12 in respondents' separate statement of undisputed facts were disputed and raised the inference of a “strawman” sale.   It nonetheless granted summary judgment because it could not “find any theory under which liability accrues to defendants.”

Summary judgment is properly granted only when “․ all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”  (Code Civ.Proc., § 437c, subd. (c).)  As an appellate court, we must independently review the supporting and opposing papers to determine whether there are any issues of material fact.  (AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1064, 225 Cal.Rptr. 203.)  “Summary judgment is a drastic measure that deprives the losing party of a trial on the merits.  (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 35 [210 Cal.Rptr. 762, 694 P.2d 1134].)   It should therefore be used with caution, so that it does not become a substitute for trial.  (Rowland v. Christian (1968) 69 Cal.2d 108, 111 [70 Cal.Rptr. 97, 443 P.2d 561, 32 A.L.R.3d 496].)   The affidavits of the moving party should be strictly construed, and those of the opponent liberally construed.   (Stationers Corp. v. Dun & Bradstreet (1965) 62 Cal.2d 412, 417 [42 Cal.Rptr. 449, 398 P.2d 785].)   Any doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion.   (Slobojan v. Western Travelers Life Ins. Co. (1969) 70 Cal.2d 432, 437 [74 Cal.Rptr. 895, 450 P.2d 271].)”  (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107, 252 Cal.Rptr. 122, 762 P.2d 46.

The only issue tendered at the motion for summary judgment was whether respondents owed a legal duty to decedent.   We interpret the trial court's statement of “no liability” to be a legal determination of “no duty.”  “Under traditional tort law principles, one is ordinarily not liable for the actions of another and is under no duty to protect another from harm, in the absence of a special relationship of custody or control.  (Davidson v. City of Westminster (1982) 32 Cal.3d 197, 203 [185 Cal.Rptr. 252, 649 P.2d 894];  Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 435 [131 Cal.Rptr. 14, 551 P.2d 334, 83 A.L.R.3d 1166].)   Moreover, in determining the existence of a duty of care in a given case, we must consider several factors, including [1] the ‘foreseeability of harm to [the injured party], [2] the degree of certainty that [he] suffered injury, [3] the closeness of the connection between [defendants] conduct and the injury suffered, [4] the moral blame attached to [defendants'], [5] the policy of preventing future harm, [6] the extent of the burden to the defendant[s] and consequences to the community of imposing a duty to exercise care with resulting liability for breach, [7] and the availability, cost, and prevalence of insurance for the risk involved.’  (Rowland v. Christian (1968) 69 Cal.2d 108, 113 [70 Cal.Rptr. 97, 443 P.2d 561, 32 A.L.R.3d 496].)”  (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 293, 253 Cal.Rptr. 97, 763 P.2d 948.)

In Jacoves v. United Merchandising Corp. (1992) 9 Cal.App. 4th 88, 11 Cal.Rptr.2d 468, the Big 5 sporting goods store sold a rifle to 20–year–old Jonathan Jacoves who was confused and distraught.   Shortly after the purchase, he used the rifle to commit suicide.   The decedent's heirs brought a wrongful death action against Big 5 on the theory of negligent entrustment.

The Jacoves court held that no legal cognizable duty was breached absent some allegation that Big 5 knew or had reason to know the customer was reasonably likely to use the rifle to harm himself.  (Id. at p. 118, 11 Cal.Rptr.2d 468.)  “Jonathan's alleged demeanor was not on such a scale so as to manifest to the ordinary observer that Jonathan was mentally impaired, incompetent or irresponsible with regard to the handling of firearms.   In the circumstances alleged in this case, there was, as a matter of law, no reason for Big 5 to anticipate a violent act on the part of Jonathan.”  (Id. at p. 119, 11 Cal.Rptr.2d 468.)

Jacoves is distinguishable because it did not involve the sale of a handgun to an under-age purchaser.   There the sale was lawful.   Here, by contrast, triable facts exist on the issue of whether section 12072 subdivision (b) was violated.   We must determine whether the statute, when considered in conjunction with 18 United States Code, section 922, was intended to protect shooting victims.  (See Evid.Code, § 669, subds. (a)(3)(4);  Capolungo v. Bondi (1986) 179 Cal.App.3d 346, 349–350, 224 Cal.Rptr. 326.)

Respondents argue that state and federal gun control laws are only intended to impose criminal penalties.   We disagree.   A statute usually “prohibits certain conduct and makes it a crime, without reference to civil liability.   Obviously, if the legislation was enacted for the protection of others, the criminal penalty implies that its violation constitutes a breach of the duty of care.   Accordingly, the court will accept the legislative determination that such conduct falls below that required of a reasonable person.  [Citations.]”  6 Witkin, Summary of Cal.Law (9th ed. 1988) Torts, § 820, p. 173.)

Although no California court has construed section 12072, subdivision (b) in the context of negligent entrustment, we hold that the statute was intended to protect the general public.  “It is clear ․ that the thrust of the deadly weapon control scheme is to prevent harm to third persons and is not concerned with harm to the gun possessor himself.”  (Katona v. County of Los Angeles, supra, 172 Cal.App.3d 53, 58, 218 Cal.Rptr. 19.)

 We therefore hold that section 12072, subdivision (b) may be invoked to hold a licensed firearms dealer liable for the negligent sale and entrustment of concealable firearms.   The scope of the duty owed may be measured by the factors articulated in Nally v. Grace Community Church, supra, 47 Cal.3d at page 293, 253 Cal.Rptr. 97, 763 P.2d 948  (ante, pp. 520–521).   Considered singly, or in combination, they compel the conclusion that a licensed firearm dealer has a duty to a class of persons of which Hoosier was a member.   The standard of care required of a reasonable person when dealing with firearms “․ is so great that a slight deviation therefrom will constitute negligence [citations].”  (Warner v. Santa Catalina Island Co. (1955) 44 Cal.2d 310, 317, 282 P.2d 12.)

 Respondents claim that no duty was owed to Hoosier because it was lawful for Randa to possess the handgun 12 days after its purchase.  (§ 12026, subd. (a).)  We disagree.   Such a construction of the law would nullify section 12072, subdivision (b), give our imprimatur to a “strawman sale,” and immunize firearms dealers who circumvent the letter and spirit of the firearm control laws.

“We live in a very violent society where careless and violent individuals use guns to kill and maim innocent people.   Those who distribute guns must be held accountable as they are the first step in preventing lawless individuals from obtaining guns.”  (Al's Loan Office, Inc. v. United States Department of Treasury (E.D.Mich.1990) 738 F.Supp. 221, 225.)

The summary judgment is reversed.   Appellant is awarded costs on appeal.


1.   All further statutory references are to the Penal Code unless otherwise indicated.

2.   Amicus Curiae has supplied us with the standard Bureau of Alcohol, Tobacco and Firearm form number 4473, which warns licensed firearms dealers as follows:  “Warning—The sale or delivery of a firearm by a licensee to an eligible purchaser who is acting as an agent, intermediary or ‘straw purchaser’ for someone whom the licensee knows or has reasonable cause to believe is ineligible to purchase a firearm directly, may result in a violation of the Federal firearms laws.”

3.   A seller of concealable firearms must report the sale of a handgun to the California Department of Justice and wait 15 days before delivering it to the purchaser.  (§§ 12072, 12076;  Katona v. County of Los Angeles (1985) 172 Cal.App.3d 53, 58, 218 Cal.Rptr. 19.)

4.   The term “strawman” is defined as follows:  “Straw man or party.   A ‘front’;  a person who is put up in name only to take part in a deal.   Nominal party to a transaction;  one who acts as an agent for another for the purpose of taking title to real property and executing whatever documents and instruments the principal may direct respecting the property.   Person who purchases property for another to conceal identity of real purchaser.”  (Black's Law Dict. (5th ed. 1979) p. 1274, col. 1.)“Men of Straw” are described as follows:  “Men who used in former days to ply about courts of law, so called from their manner of making known their occupation (i.e. by a straw in one of their shoes), recognized by the name of straw-shoes.   An advocate or lawyer who wanted a convenient witness, knew by these signs where to find one, and the colloquy between the parties was brief.  ‘Don't you remember?’ said the advocate (the party looked at the fee and gave no sign;  but the fee increased, and the powers of memory increased with it)—‘To be sure I do.’  ‘Then come into court and swear it.’   And straw-shoes went into court and swore it.   Athens abounded in straw-shoes.   13 L.Quart.Rev. 344.”  (Bouvier's Law Dict. vol. 2 (Rawle's 3d rev. ed. 1984) p. 2191, col 1.)

YEGAN, Associate Justice.

STEVEN J. STONE, P.J., and GILBERT, J., concur.