SOVARY v. LOS ANGELES POLICE DEPARTMENT CITY OF LOS ANGELES

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Court of Appeal, Second District, Division 7, California.

Eugene SOVARY, Plaintiff and Appellant, v. LOS ANGELES POLICE DEPARTMENT, CITY OF LOS ANGELES, Defendants and Respondents.

B009942.

Decided: January 23, 1986

Peter J. Ray, Encino, for plaintiff and appellant. James K. Hahn, City Atty., John T. Neville, Sr. Asst. City Atty., and Katherine J. Hamilton, Deputy City Atty., for defendants and respondents.

The appellant appeals from the trial court's sustaining of a demurrer.   The central issues on appeal are whether the respondents owed the appellant any duty of care and whether even if they owed a duty of care, they were immune from liability.   The trial court adopted the respondents' position on both grounds.   We believe the trial court erred in both these determinations and therefore reverse the court's grant of the demurrer.

STATEMENT OF FACTS AND PROCEEDINGS BELOW

On March 14, 1984, the appellant, Sovary, filed a complaint against the respondents Los Angeles Police Department (L.A.P.D.) and City of Los Angeles.   He also named as defendants in his complaint Pet, Inc., Santa Barbara-Crenshaw Parking Company, Vendome Liquors, and Does 1–100.   Sovary filed this action after he was injured by unknown assailants when he was exiting Vendome Liquor Store.   The liquor store is adjacent to his place of business.   Both businesses are part of the Santa Barbara Plaza.   In his complaint,1 Sovary contends in relevant part:

“[The respondents] voluntarily assumed a duty of protection for plaintiff's safety and well being thereby creating a special relationship by meeting with representatives of the co-defendants SANTA BARBARA-CRENSHAW Parking Co. and Vendome Liquors advising them not to hire private security while giving them assurance that the inhabitants of SANTA BARBARA-CRENSHAW Plaza, of which plaintiff is a member, would be protected from vagrants, loiterers and drunkards.

“Plaintiff thereby was dependant [sic] and relied upon the protection of [the respondents] ․ who had expressly promised bicycle and foot patrols thereby a creating a special relationship, but placed plaintiff in danger through a false sense of security since adequate precautions and adequate warnings were not provided by [the respondents]․

“[The respondents] by voluntarily and expressly assuming the protection of the inhabitants of SANTA BARBARA–CRENSHAW Plaza, of which plaintiff is one, and thereby creating a special relationship towards said parties, but by failing to adhere to their representation of providing continuous bicycle and foot patrol after initiating said practice, contributed to, increased the danger, and changed the risk to plaintiff who was mislead by a false sense of security and was thereby attacked and injured by unknown vagrants, loiterers, drunkards or other such persons in, on, or about the premises at 3869 Santa Rosalia, Los Angeles, California which is part of the property known as Santa Barbara-Crenshaw Plaza.”

On August 23, 1984, the respondents filed a demurrer to Sovary's amended complaint contending they owed no duty of care to Sovary and were immune from liability.   After argument, the trial court agreed, sustaining the demurrer without leave to amend.

On September 12, 1984, the action was dismissed.

On November 9, 1984, Sovary filed the appeal now before us.

DISCUSSION

I. THE TRIAL COURT IMPROPERLY SUSTAINED THE RESPONDENTS' DEMURRER TO THE APPELLANT'S COMPLAINT

 A demurrer tests the pleadings alone.   The evidence or other extrinsic matters are not considered.2  It should be granted only where the defects appear on the face of the pleading or are judicially noticed.  (5 Witkin, Cal. Procedure (3rd ed. 1985) Pleading, §§ 895–896, pp. 334–337;  SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905, 200 Cal.Rptr. 497.)   Moreover, “ ‘[i]n determining whether or not the complaint is sufficient, as against the demurrer, upon the ground that it does not state facts sufficient to constitute a cause of action, the rule is, that if upon a consideration of all the facts stated it appears that the plaintiff is entitled to any relief at the hands of the court against the defendants, the complaint will be held good, although the facts may not be clearly stated, or may be intermingled with a statement of other facts irrelevant to the cause of action shown, or although the plaintiff may demand relief to which he is not entitled under the facts alleged.’  (Cites omitted.)”  Gruenberg v. Aetna Ins. Co. (1973) 9 Cal.3d 566, 572, 108 Cal.Rptr. 480, 510 P.2d 1032.)   On appeal, in reviewing the sustaining of a demurrer, all material facts pleaded in the complaint and those which arise by reasonable implication are deemed true.   (Bush v. California Conservation Corps (1982) 136 Cal.App.3d 194, 200, 185 Cal.Rptr. 892.)

We believe, applying the above standards, Sovary's cause of action for negligence should have withstood the respondents' demurrer.

II. APPELLANT ALLEGED SUFFICIENT FACTS TO SHOW RESPONDENTS OWED A DUTY OF CARE TO APPELLANT

 While as a general rule in California, one owes neither a duty to control the conduct of another nor a duty to warn those endangered by such conduct, “[s]uch a duty may arise, however, if ‘(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct, or (b) a special relation exists between the actor and the other which gives the other a right to protection.’ ”  (Cites omitted.)  (Davidson v. City of Westminster (1982) 32 Cal.3d 197, 203, 185 Cal.Rptr. 252, 649 P.2d 894.)   A law enforcement agency or officer will have the duty to protect a private party due to their special relation in two main contexts—when the officer promises to protect that party from harm thereby inducing reliance or when the government increases the citizen's risk of criminal harm without providing reasonable protection.

A. The Two Bases of Law Enforcement Duty to Protect Private Citizens Under California Law

 First, such a duty will arise “when the state, through its agents voluntarily assumes a protective duty toward a certain member of the public and undertakes action on behalf of that member, thereby inducing reliance․”  (Williams v. State of California (1983) 34 Cal.3d 18, 24, 192 Cal.Rptr. 233, 664 P.2d 137.)   However, no duty will arise to prevent “injuries caused by the failure of police personnel to respond to requests for assistance, the failure to investigate properly, or the failure to investigate at all, where the police had not induced reliance on a promise, express or implied, that they would provide protection.  (Cites omitted.)”  (Id., at p. 25, 192 Cal.Rptr. 233, 664 P.2d 137.)

In Morgan v. County of Yuba (1964) 230 Cal.App.2d 938, 41 Cal.Rptr. 508, a deputy sheriff promised to warn a decedent if a prisoner who had threatened the decedent's life was released.   However, such a warning was not given and the decedent was killed by the prisoner.   A wrongful death action was brought by the decedent's children.   The trial court sustained a demurrer against the complaint without leave to amend.   The appellate court reversed.   The court held a voluntary promise by the sheriff to warn coupled with reliance by the decedent on the promise is actionable if the sheriff fails to carry through with his promise (Id., at pp. 944–945, 41 Cal.Rptr. 508;  see also Johnson v. County of Los Angeles (1983) 143 Cal.App.3d 298, 311–312, 191 Cal.Rptr. 704.)

In contrast, the plaintiff in Williams was a passenger injured in an automobile accident.   In her complaint, she alleged a highway patrolman arrived at the scene of the accident and undertook to investigate the cause and nature of the accident.   The plaintiff contended the patrolman negligently failed to secure information and evidence which she could have used in a civil action against the parties who caused the accident.   She alleged the patrolman's negligence virtually destroyed her opportunity to bring such an action.   The trial granted the respondent's motion for judgment on the pleadings.

The Supreme Court affirmed the trial court's decision.   The Court rejected the plaintiff's claim the patrolman had a duty to assist the plaintiff in the manner described above.   As the court stated in part:  “There are no allegations that the officers assured her, either expressly or impliedly, that they would do any of the acts she faults them for not doing, no allegations that they conducted themselves in such a manner as to warrant reliance upon them to do the acts which the plaintiff alleges they should have done nor, finally, is there any hint that they prevented plaintiff from conducting an investigation of her own.”  (Williams v. State of California, supra, 34 Cal.3d at p. 27, 192 Cal.Rptr. 233, 664 P.2d 137 italics added;  see also Hartzler v. City of San Jose (1975) 46 Cal.App.3d 6, 10, 120 Cal.Rptr. 5 [police had no duty to respond to plaintiff's call in which she informed them her estranged husband was coming to her residence to kill her.   There was no indication the police induced the plaintiff's reliance on a promise they would provide her with protection.].)

 The second basis of a policeman's duty to an individual citizen arises even if there has not been a promise and reliance thereon.   Here a special relationship is established “when the conduct of a police officer, in a situation of dependency, results in detrimental reliance on him for protection.”  (Williams v. State of California, supra, 34 Cal.3d at p. 25, 192 Cal.Rptr. 233, 664 P.2d 137.)   The conduct of the officer must constitute an affirmative act which created, contributed to, increased, or changed the risk which the injured party faced.  (Davidson v. City of Westminster, supra, 32 Cal.3d at pp. 207–208, 185 Cal.Rptr. 252, 649 P.2d 894;  Williams v. State of California, supra, 34 Cal.3d at p. 27–28, 192 Cal.Rptr. 233, 664 P.2d 137;  Harris v. Smith (1984) 157 Cal.App.3d 100, 105, 203 Cal.Rptr. 541.)

In Johnson v. State of California (1968) 69 Cal.2d 782, 73 Cal.Rptr. 240, 447 P.2d 352, the state placed a parolee in the plaintiff's home.   However, the state failed to warn the plaintiff that the parolee had a propensity for violence.   The plaintiff was subsequently assaulted by the parolee and suffered injuries.   The trial court granted a summary judgment motion in favor of the state.

The Supreme Court reversed.   The Court held the state owed the plaintiff a duty of care.   This duty extended to warning the plaintiff of the parolee's nature.   By placing the parolee in the home without any warning, the state created a foreseeable peril to the plaintiff and was liable for her injuries.   (Id., at p. 785–786, 73 Cal.Rptr. 240, 447 P.2d 352;  see also Clemente v. State of California (1985) 40 Cal.3d 202, 213, 219 Cal.Rptr. 445, 707 P.2d 818 [liability is not precluded when an officer fails to exercise care in investigating an accident whereby his conduct prevents others from providing assistance.];  McCorkle v. City of Los Angeles (1969) 70 Cal.2d 252, 258–260, 74 Cal.Rptr. 389, 449 P.2d 453;  Mann v. State of California (1977) 70 Cal.App.3d 773, 139 Cal.Rptr. 82.)

By contrast, in Davidson, the plaintiff was stabbed in a public laundromat.   At the time of the stabbing, the laundromat was under police surveillance since other women had been stabbed at the same or nearby laundromats.   The most recent stabbing had occurred the night before at this same laundromat while it was under surveillance.   The suspect had escaped while being pursued.   On the night of the plaintiff's stabbing, the police were aware she was in the laundromat.   They also saw a man on the premises closely resembling the attacker of the night before.   They observed him enter and leave the premises on several occasions.   The plaintiff was not warned and the attack eventually occurred.   The plaintiff brought a suit against the city and the officers.   The trial court sustained the respondents' demurrer to the plaintiff's complaint.

The Supreme Court affirmed the trial court's decision finding no special relationship existed between the respondents and the plaintiff such as to give rise to a duty to warn or protect.   The court initially noted no special relationship could be alleged on the basis of a promise to protect since no such promise was made.  (Id., 32 Cal.3d at pp. 206–207, 185 Cal.Rptr. 252, 649 P.2d 894.)   The Court also held no special relationship existed under the second basis since the police did not create the plaintiff's peril, their conduct did not change or increase the risk faced by the plaintiff, and the plaintiff was unaware of the officers' presence and did not rely on them for protection.  (Id., at p. 208, 185 Cal.Rptr. 252, 649 P.2d 894;  see also Jackson v. Clements (1983) 146 Cal.App.3d 983, 987, 194 Cal.Rptr. 553 [police officers had no duty to the decedent to prevent the defendants from driving their cars under the influence of alcohol and to stop the decedent from riding with one of the defendants even though the officers knew the defendants were consuming alcoholic beverages sufficient to render them under the influence, were too intoxicated to drive, and intended to drive.   The officers neither created the peril to the decedent nor altered the risk involved.].)

B. Under the Allegations of This Complaint the Officers Owed a Duty to Sovary Both Because of Their Unfulfilled Promises of Protection and the Increased Risk They Caused

 In the case at bar, Sovary was injured by assailants when he was exiting a business at the Santa Barbara Plaza.   He alleges the respondents had received numerous complaints of vagrants, loiterers, etc. at the plaza but failed to take appropriate action.   The inhabitants had considered hiring private security to deal with this specific problem.   But, prior to the incident, the respondents informed representatives of the plaza they would protect the inhabitants of the plaza from such individuals by initiating a specific program, continuous bicycle and foot patrol and also advised them not to hire private security force.   Sovary alleges the respondents actually initiated this program in keeping with their promise, but failed to carry through with the program.

We believe the allegations of Sovary's complaint are sufficient to establish a special relation existed between the respondents and himself imposing a duty of protection under either of the standards discussed above.   In this case, the respondents voluntarily assumed a protective duty towards Sovary.3  They expressly promised to protect the inhabitants of the Plaza.4  This is not a case in which the respondents simply failed to provide desired protection, no prior agreement having been made.   Moreover, this promise was not simply broad, non-specific assurances of general protection.   Sovary alleges the police discussed a specific plan by which to achieve the protection promised.   They agreed to provide continuous bicycle and foot patrol.

This promise also induced reliance.   As Sovary alleges, the respondents actually initiated the program they had discussed and Sovary expected the foot and bicycle patrols would be continued and would provide the necessary protection.   This latter expectation would seem reasonable given the respondents' assurances this protection would be adequate.   Moreover, aside from inducing reliance, the respondents' actions (and subsequent inaction) arguably contributed to or changed the risk which the plaza's inhabitants faced.   The respondents advised representatives of the plaza not to hire private security guards while at the same time assuring them they would provide the necessary protection.   Thus, this is a case in which the inhabitants did not take certain specific actions based on the representations made by the respondents.   By advising the plaza not to hire private security guards and then not providing the type of protection promised, the respondents clearly altered the risk faced by the inhabitants of the plaza.5

The respondents contend no duty arose citing Antique Arts Corp. v. City of Torrance (1974) 39 Cal.App.3d 588, 114 Cal.Rptr. 332 and Harris v. Smith, supra, 157 Cal.App.3d 100, 203 Cal.Rptr. 541.   However, we believe these cases are readily distinguishable from the case at bar and in fact help illuminate why a duty to protect arose in the case at bar.

In Antique Arts Corp., the plaintiff alleged a police dispatcher was negligent in failing to timely broadcast a burglary alarm which had sounded at Antique Arts.   The plaintiff alleged the robbers, as a result, were able to complete the robbery and escape.   The trial court sustained a general demurrer to the plaintiff's second amended complaint.

The appellate court affirmed.   The court held the delay in dispatching the information did not proximately cause the robbery, sovereign immunity applied, and no special relationship existed.  (Antique Arts Corp. v. City of Torrance, supra, 39 Cal.App.3d at pp. 590–593, 114 Cal.Rptr. 332.)

In Antique Arts Corp., unlike the case at bar, there was no promise of protection.   The police gave no assurances they would protect the plaintiff against intruders.   This was simply a case of the police failing to respond in time to a call for assistance.   As discussed in Williams v. State of California, supra, no duty arises unless there has been a previous promise to protect against the harm which has occurred.   Moreover, in Antique Arts Corp. the police did not affirmatively undertake any action (and tell the plaintiff not to undertake certain additional actions) which created the risk, increased the risk, or changed the risk faced by the plaintiff.

In Harris v. Smith, a legal malpractice action, a police officer stopped a vehicle after determining the driver was speeding.   The officer detected alcohol on the driver's breath and administered field sobriety tests.   The officer determined he lacked probable cause to arrest the driver and let him proceed.   Only 20 minutes later, the plaintiff's automobile was struck by the driver and the plaintiff was seriously injured.   The driver, who died in the accident, was found to have alcohol in excess of the legal limit.   The trial court granted the respondent's motion for nonsuit since the officer had no legal duty to the plaintiff.

The appellate court affirmed the trial court's decision.   The court stated the officer who stopped the driver of the vehicle did not create the peril;  he took no affirmative action which contributed to, increased, or changed the risk that otherwise existed for the plaintiff;  he made no promises of protection;  and he did not voluntarily assume a responsibility to protect the plaintiff.   (Harris v. Smith, supra, 157 Cal.App.3d at p. 105, 203 Cal.Rptr. 541.)   As discussed in detail above, the actions of the respondents in the case at bar are readily distinguishable from the actions of the police officer in Harris.   Here, the respondents made an express promise of protection and described a specific plan to fulfill this promise.   Moreover, the respondents began to implement this plan.   Sovary justifiably relied on these actions.   In addition, the respondents told the inhabitants of the plaza not to undertake certain additional precautions, the hiring of private security guards.6

Based on the above analysis, we conclude the respondents owed Sovary a duty of care.

III. GOVERNMENT CODE SECTION 845 DOES NOT IMMUNIZE THE RESPONDENTS FROM LIABILITY

 Government Code section 845 provides:  “Neither a public entity nor a public employee is liable for failure to establish a police department or otherwise provide police protection service or, if police protection service is provided, for failure to provide sufficient police protection service.”   The respondents argue, based on this provision, they are immune from liability even if they had a duty of care.   We disagree.

The California Law Revision Commission, the originator of the section, stated in its comment to the section:  “This section grants a general immunity for failure to provide police protection or for failure to provide enough police protection.   Whether police protection should be provided at all, and the extent to which it should be provided, are political decisions which are committed to the policy-making officials of government.   To permit review of these decisions by judges and juries would remove the ultimate decision-making authority from those politically responsible for making the decisions.”   (Italics added.)  (4 Cal. Law Revision Com. Rep. (1963) 827, 860.)   Thus the purpose of this section is “to protect the budgetary and political decisions which are involved in hiring and deploying a police force.”  (Peterson v. San Francisco Community College Dist. (1984) 36 Cal.3d 799, 815, 205 Cal.Rptr. 842, 685 P.2d 1193;  accord Lopez v. Southern California Rapid Transit District (1985) 40 Cal.3d 780, –––*, 221 Cal.Rptr. 840, 710 P.2d 907;  Williams v. State of California, supra, 34 Cal.3d at p. 35, 192 Cal.Rptr. 233, 664 P.2d 137 (Bird dissenting.)  [“This statute (Gov. Code, § 845) merely immunizes a public entity's or employee's political decision concerning the extent to which police protection should be provided.”  (Cites omitted.) ];  Mann v. State of California, supra, 70 Cal.App.3d at p. 778–779, 139 Cal.Rptr. 82 [section 845 immunizes budgetary decisions of policy-making officials but does not immunize negligence by an officer in the performance of his investigation.];  Van Alstyne, California Government Tort Liability Practice (Cont.Ed.Bar 1980) § 4.21, pp. 361–362, appen. § 845, pp. 659–660. [this section immunizes basic policy decisions but does not immunize police negligence in the implementation of these decisions.];  cf. Johnson v. State of California, supra, 69 Cal.2d at pp. 795–797, 73 Cal.Rptr. 240, 447 P.2d 352;  McCorkle v. City of Los Angeles, supra, 70 Cal.2d 252, 260–262, 74 Cal.Rptr. 389, 449 P.2d 453.).)7

In the case at bar, Sovary alleges the respondents made the decision to provide foot and bicycle patrol and began to implement this decision.   However, the respondents failed to continue to carry through with this program at the level and to the extent promised.   It was as a result of this failure in implementation that he was injured.   Thus, Sovary is not challenging a policy decision not to provide police protection or to provide only limited assistance.   The political decision to provide the resources had already been made.   Sovary instead alleges negligence in the implementation of this decision.   The respondents made the decision to allocate sufficient resources to protect the inhabitants of the plaza but failed to deploy the amount of resources promised.   We do not believe section 845 was intended to immunize police actions in this context.

DISPOSITION

The trial court's decision is reversed.8

FOOTNOTES

1.   The allegations discussed are based on Sovary's second amended complaint.   The respondents filed a demurrer to Sovary's original complaint on April 24, 1984.   The demurrer was sustained with thirty days leave to amend.   Sovary filed his first amended complaint on May 16, 1984.   The respondents demurred on June 21, 1984.   The court once more sustained the demurrer with thirty days leave to amend.   The appellant filed his second amended complaint, at issue here, on August 6, 1984.

2.   Based on this principle, we do not consider exhibits filed by Sovary which were never made part of the complaint.

3.   The respondents argue the problem faced by the store owners and the police was the presence of “winos and drunks” on the property.   They contend any promise made as a result of this problem was simply to protect against the presence of the above individuals and not to protect against possible physical assault.   However, we find it impossible to read the allegations in Sovary's complaint so narrowly.

4.   While this promise of protection was not made directly to Sovary, his complaint suggests he was soon privy to this agreement.   As he stated in his complaint, he relied on the protection of the respondents who had promised bicycle and foot patrols.   One cannot rely on that of which one has no knowledge.   Equally important, Sovary was undoubtedly a direct, intended beneficiary of the respondents' promise.   The agreement covered all the inhabitants of the plaza.   Given this context, we think it would be inappropriate to conclude no duty arose simply because the promise was not made directly to Sovary.   Additionally, it should be noted, Sovary alleges a foot patrolman on several occasions assured him he would be protected.

5.   The respondents argue they did not alter the risk.   True, they failed to rid the premises of the dangerous individuals as promised.   But that just meant the danger that existed after the promise was made remained the same as before it was made.   Hence, respondents argue it cannot be said they increased the risk faced by the inhabitants.   However, this argument fails to take into account Sovary's allegation the inhabitants were considering alternative plans for providing protection.   As discussed above, prior to the assurances given by the respondents, the inhabitants of the plaza were considering hiring private security guards to deal with the problem.   The respondents advised against it.   It is more than mere speculation the presence of these guards would have acted as a deterrent to the type of harm which befell Sovary.We also reject the respondents' contention their promise could not have fostered a false sense of security since their efforts failed to rid the premises of the dangerous individuals.   This argument simply misses the point.   The sense of security arose from the representation by the respondents that they would provide the necessary protection and their initial implementation of this promise.   An individual would seem quite justified in gaining a sense of security when authorities promise to provide protection and begin to act on this promise.

6.   The respondents also rely on Davidson v. City of Westminster, supra, and Jackson v. Clements, supra, discussed in some detail previously.   In neither of these cases did the officers involved promise to protect the party injured, affirmatively undertake action which increased or changed the risk to the party injured, or voluntarily assume a duty to protect.   These cases are simply inapposite to the case at bar in which the respondents promised to protect the inhabitants of the plaza, undertook actions and made suggestions which increased the risk, and voluntarily assumed a duty to protect.

FOOTNOTE.  FN* Typed opinion pages 17–18.

7.   We recognize several court decisions can be read to interpret section 845 to immunize not only policy-making decisions but also implementation of these decisions.  (See Antique Arts Corp. v. City of Torrance, supra, 39 Cal.App.3d at pp. 592–593, 114 Cal.Rptr. 332;  Hartzler v. City of San Jose, supra, 46 Cal.App.3d at p. 9, 120 Cal.Rptr. 5;  Stone v. State of California (1980) 106 Cal.App.3d 924, 929, 165 Cal.Rptr. 339.)   However, in light of the above discussed authorities, we disagree with this broadened interpretation of section 845.

8.   Sovary also alleges a cause of action based on nuisance.   He contends the presence and actions of the vagrants and loiterers on the plaza constituted such a nuisance.   However, even assuming the above is sufficient to constitute a nuisance, a party cannot be held liable for a nuisance unless he created or maintained it.   Since Sovary's allegations do not establish the respondents created or maintained the alleged nuisance, as these terms have traditionally been understood, the trial court properly sustained the respondents' demurrer to this cause of action.

JOHNSON, Associate Justice.

LILLIE, P.J., and THOMPSON, J., concur.

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