ZELIG v. COUNTY OF LOS ANGELES (1999)

INTRODUCTION

Eileen Zelig was fatally shot by her ex-husband, Dr. Harry Zelig, in the hallway of the Central Civil Courthouse building in downtown Los Angeles where she was waiting for a hearing in the dissolution of the Zeligs' marriage.   Plaintiffs, the Zelig children by their legal guardians, brought this action against the County of Los Angeles and the Los Angeles County Sheriff's Department (together the County) alleging it breached its duty to protect Mrs. Zelig by failing to prevent Dr. Zelig from bringing a gun into the courthouse.   Plaintiffs appeal from the judgment entered after the trial court sustained, without leave to amend, the County's demurrer to the first amended complaint.   We reverse the judgment with directions.

FACTUAL AND PROCEDURAL BACKGROUND

 For purposes of review, we accept as true the factual allegations extracted from the first amended complaint.  (Peterson v. San Francisco Community College Dist. (1984) 36 Cal.3d 799, 804, 205 Cal.Rptr. 842, 685 P.2d 1193.)   Over the course of two years following the dissolution of the Zelig marriage, Dr. Zelig disregarded repeated court orders that he pay support to Mrs. Zelig and plaintiffs and became increasingly abusive and hostile towards his ex-wife.   On September 1, 1995, in connection with a child and spousal support issue before the Family Law Court, Mrs. Zelig, accompanied by her youngest daughter, six-year-old Lisa, appeared at the Los Angeles County Superior Courthouse on Hill Street and was directed to Department 1A on the second floor.   Dr. Zelig followed.   In the hallway of the second floor, Dr. Zelig took a loaded revolver from his clothes and shot Mrs. Zelig, killing her in front of Lisa.

Prior to the murder, Mrs. Zelig repeatedly had expressed her fear of Dr. Zelig to the County.   Mrs. Zelig had obtained restraining orders against Dr. Zelig prohibiting him from carrying firearms, directing him to turn his firearms over to his attorney, and prohibiting him from being within 100 yards of a firearm when in the presence of plaintiffs and Mrs. Zelig.   On at least three occasions, Mrs. Zelig had called the bailiff, Deputy Sheriff Lee A. Carter, before scheduled court appearances to inform him that she was afraid Dr. Zelig might harm or even kill her while she was in the courthouse.   Once, Carter searched Dr. Zelig before allowing him to enter the court.   Mrs. Zelig had also provided the judge and bailiff with letters and telephone recordings in which Dr. Zelig threatened to kill her.

In plaintiffs' ensuing action against the County, the first amended complaint seeks damages against the County for (1) wrongful death, (2) negligence, (3) negligent infliction of emotional distress.¹  In particular, plaintiffs allege the County failed to protect Mrs. Zelig by failing to provide a reasonably safe environment in the courthouse because no barriers, metal detectors, or other safety measures designed to prevent the introduction of weapons into the courthouse were installed, and no signs were posted warning about the lack of security in the courthouse.   In support of their theories of liability, plaintiffs allege the County knew or should have known of the risk of danger posed by those who bring weapons into the courthouse, the fact that parties involved in family law and other matters frequently exhibited violent conduct, and that Dr. Zelig in particular had threatened acts of violence against Mrs. Zelig.²  The trial court sustained without leave to amend the County's demurrer to the first amended complaint, and plaintiffs' appeal followed.

DISCUSSION

1. Standard of review.

 “A demurrer lies only for defects appearing on the face of the complaint or from matters of which the court must or may take judicial notice.  [Citation.]”  (Ramsden v. Western Union (1977) 71 Cal.App.3d 873, 879, 138 Cal.Rptr. 426.)

 “In reviewing the sufficiency of a complaint against a general demurrer ․ we [must] 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.]”  (Blank v. Kirwan (1985) 39 Cal.3d 311, 318, 216 Cal.Rptr. 718, 703 P.2d 58.)  “The burden is on the plaintiff ․ to demonstrate the manner in which the complaint might be amended.  [Citation.]”  (Hendy v. Losse (1991) 54 Cal.3d 723, 742, 1 Cal.Rptr.2d 543, 819 P.2d 1.)

2. Statutory bases for liability.

 In its demurrer, the County argued it owed Mrs. Zelig no duty because (1) it had no special relationship with Mrs. Zelig;  (2) Dr. Zelig's actions were not foreseeable;  (3) there was no dangerous condition present in the courthouse;  and (4) it is immune from liability.   We focus first on whether the County owed a duty here and if so, what that duty entails.   We will then determine whether the claims are barred by the applicable immunity.   (Davidson v. City of Westminster (1982) 32 Cal.3d 197, 201-202, 185 Cal.Rptr. 252, 649 P.2d 894 [must ascertain duty of care before applying immunity].)

 In general, public entities in California are not liable for an injury caused by an act or omission of the public entity or public employee unless provided by statute.  (Gov.Code, § 815.)   Hence, ․ all government tort liability must be based on statute.  [Citation.]  ․ (Rodriguez v. Inglewood Unified School Dist. (1986) 186 Cal.App.3d 707, 716, 230 Cal.Rptr. 823, original italics.)   Plaintiffs have attempted to state causes of action against the County based on various code provisions:  Government Code sections 814, 815.2, 815.6, 820, and 835,³ as well as Civil Code section 1714, and 42 United States Code section 1983.   We address each of these statutory bases for liability in ascertaining whether the County owed a duty in this case.   We conclude, under an amended complaint, that plaintiffs would be able to allege the duty element of negligence under two theories:  Civil Code section 1714 (negligence) and section 835 (defective condition of property).   Plaintiffs have also successfully alleged negligent infliction of emotional distress.   Lastly, after examining the scope of the police protection immunity, we conclude based on the allegations pleaded, that these causes of action are not barred by section 845.

a. Negligence (Civil Code, § 1714 against the County only).

(i) Special relationship.

 Although public-entity liability is a creature of statute, [i]ts provisions ․ are to be read against the background of general tort law.   (Peterson v. San Francisco Community College Dist., supra, 36 Cal.3d at p. 809, 205 Cal.Rptr. 842, 685 P.2d 1193.)

 As a general rule one has no duty to control the conduct of another, and no duty to warn those who may be endangered by such conduct.   [Citations.]  (Id., at p. 806, 205 Cal.Rptr. 842, 685 P.2d 1193.)   A duty may nonetheless be found, however, where “․ ‘(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.’   [Citations.]”  (Ibid.;  MacDonald v. State of California (1991) 230 Cal.App.3d 319, 333-334, 281 Cal.Rptr. 317.)

Among the special relationships recognized in the law, a landowner stands in a special relationship with people coming on the land for business purposes.  (6 Witkin, Summary of Cal. Law (9th ed.1988) § 859, p. 223;  Civ.Code, § 1714 ⁴ .)

 This special relationship gives rise to a particular duty:  “․ ‘a possessor of land who holds it open to the public for entry for business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent or intentionally harmful acts of third persons ․ and by the failure of the possessor to exercise reasonable care to (a) discover that such acts are being done or are likely to be done, or (b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it.’   [Citations.]”  (Peterson v. San Francisco Community College Dist., supra, 36 Cal.3d at p. 807, 205 Cal.Rptr. 842, 685 P.2d 1193.)

 Within the context of the landowner's duty to those who come onto its land, policy considerations lead us to conclude that the County, as the party controlling the courts, owes a duty to take reasonable steps to provide safe courthouses to those who enter.

We take our cue first from Boddie v. Connecticut (1971) 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113, where indigent plaintiffs were found to state a claim under the Fourteenth Amendment for the denial of their right of access to the courts because they were unable to pay the filing fees needed to initiate divorce proceedings.   In view of the state's monopoly over the means for dissolving marriages and the fundamental right involved in decisions concerning marriage, the Court held, due process prohibited the state from denying the plaintiffs access because of their inability to pay the filing fees.  (Id., at p. 382, 91 S.Ct. 780.)   Recognizing some legitimate abridgment of access to the courts occurs, such as where alternative means for civil-dispute resolution exist, the Supreme Court observed that in certain proceedings parties have no alternative but to appear in court or use the courts.   For example, in criminal proceedings, the state maintains a monopoly over the judicial apparatus.   In civil disputes, private resolution is encouraged, “subject only to the caveat that the formal judicial process, if resorted to, is paramount. ”  (Id., at p. 375, 91 S.Ct. 780, italics added.)   Most important for our purposes, divorces, which involve interests of fundamental importance in our society, can only be obtained by “invoking the State's judicial machinery.”  (Id., at p. 376, 91 S.Ct. 780.)   Because use of the judicial process by divorcing parties “․ is no more voluntary in a realistic sense than that of the defendant called upon to defend his interests in court,” (id., at pp. 376-377, 91 S.Ct. 780), the Supreme Court held that right could not be abridged.  (Id., at pp. 380-381, 91 S.Ct. 780.) ⁵

Second, in California, the Judicial Council, which is the rule and policy making body for this State's courts, promulgated Standards of Judicial Administration that evince a policy that recognizes the necessity for safe courthouses.   These standards outline, among other things, the requirements for court security.   In pertinent part, section 7, subdivisions (b) and (c) recommend,⁶ (1) that courts should require the Court Security Officer to prepare a Court Security Plan for achieving security for courtrooms, buildings and grounds, and assess the adequacy of equipment, especially in areas of high risk (Cal. Standards Jud. Admin., § 7, subd. (b));  and (2) that no Court Security Plan should be approved that does not “limit the wearing of firearms in the courthouse or courtrooms to peace officers and proscribe the wearing of firearms in such places by all other persons.”  (Cal. Standards Jud. Admin., § 7, subd. (c).) ⁷  While this standard establishes a goal or policy rather than a mandatory requirement, the promulgation of the standard reflects a recognition of the need for safe courthouses.

The policy behind the Supreme Court's enunciations in Boddie concerning the right to unabridged access in certain circumstances, combined with the recognition of a need for safe courts embodied in the Judicial Council's standards, apply in the civil as well as in the criminal courthouses of our State:  Attendance at judicial proceedings is frequently compulsory.   The judicial process is often the sole avenue open to those, such as Mrs. Zelig, whose interests can only be vindicated or safeguarded through resort to the state's judicial machinery, or others who are compelled to appear in courts, either as witness under subpoena, or defendants who must protect their rights.   Also, litigants pay fees to utilize the services of the court.   For these reasons, we think the County has an obligation to take reasonable steps to discover criminal acts that are or are likely to be committed in its courthouses and to warn about or protect against (Peterson v. San Francisco Community College Dist., supra, 36 Cal.3d at p. 807, 205 Cal.Rptr. 842, 685 P.2d 1193) foreseeable harm because many have no choice but to utilize the courts.

 Such a duty does not render the County the insurer of the public's safety.   We hold, therefore, if it is foreseeable that a danger of criminal activity may cause injury to patrons of the courthouses, the County owes a duty to take reasonable steps to implement security measures to protect against it.   We reach this conclusion because of the peculiarly adversarial nature of judicial proceedings, the near monopoly the state has on the judicial forum in some cases, the enunciated policy of encouraging safe courthouses, the extent of the burden to the County and the beneficial consequences to the community of imposing a duty to exercise care in courthouse facilities.  (Rowland v. Christian (1968) 69 Cal.2d 108, 113, 70 Cal.Rptr. 97, 443 P.2d 561.)   This duty is neither “burdensome[ ],” nor “vague[ ].”  (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 679, 25 Cal.Rptr.2d 137, 863 P.2d 207.) ⁸

(ii) Foreseeability.

 The duty of the County, as landowner, to take affirmative steps to control the malfeasance of third parties, is only imposed where the wrongful conduct is reasonably anticipated.  (Ann M. v. Pacific Plaza Shopping Center, supra, 6 Cal.4th at p. 676, 25 Cal.Rptr.2d 137, 863 P.2d 207 (hereinafter, Ann M.);  Lopez v. McDonald's Corp. (1987) 193 Cal.App.3d 495, 506, 238 Cal.Rptr. 436.)   Foreseeability is a “crucial factor in determining the existence of duty.  [Citations.]”  (Ann M., supra.) ⁹  The County contends this shooting was not foreseeable.   We think, with some amendment, plaintiffs can allege this factor.

 Foreseeability is an “elastic” concept with the result that the degree of foreseeability to warrant the finding of a duty will vary from case to case.  (Lopez v. McDonald's Corp., supra, 193 Cal.App.3d at p. 509, 238 Cal.Rptr. 436.)   As our Supreme Court has observed, on the one hand, “ ‘ “in the cases where the burden of preventing future harm is great, a high degree of foreseeability may be required.  [Citation.]  On the other hand, in cases where there are strong policy reasons for preventing the harm, or the harm can be prevented by simple means, a lesser degree of foreseeability may be required.”  [Citation.]’  [Citation.]”  (Ann M., supra, at pp. 678-679, 25 Cal.Rptr.2d 137, 863 P.2d 207.)

Addressing whether a private landlord should be required to hire security guards, Ann M. established “[w]hile there may be circumstances where the hiring of security guards will be required to satisfy a landowner's duty of care, such action will rarely, if ever, be found to be a ‘minimal burden.’   The monetary costs of security guards is not insignificant.   Moreover, the obligation to provide patrols adequate to deter criminal conduct is not well defined.”  (Ann M., supra, at p. 679, 25 Cal.Rptr.2d 137, 863 P.2d 207.)   A “high degree of foreseeability” is required therefore, for the scope of the duty of care of an owner of a shopping mall to include the obligation to hire security guards.  (Ibid.) After all, as our Supreme Court has noted on this point, “[u]nfortunately, random, violent crime is endemic in today's society.   It is difficult, if not impossible, to envision any locale open to the public where the occurrence of violent crime seems improbable.”  (Id., at p. 678, 25 Cal.Rptr.2d 137, 863 P.2d 207.)

In reviewing allegations of foreseeability, “․ emphasis must be on the specific, rather than more general, facts of which a defendant was or should have been aware.   That is, there is little utility in evidence that, for example, [the neighborhood downtown] is a ‘high crime area.’ ”  (Pamela W. v. Millsom (1994) 25 Cal.App.4th 950, 957, 30 Cal.Rptr.2d 690, citing Ann M., supra, 6 Cal.4th at p. 678, 25 Cal.Rptr.2d 137, 863 P.2d 207.)   Thus, where crime is endemic, the cost of protection is high and the duty is not well defined, Ann M. instructs, “․ rarely, if ever, can [such a high degree of foreseeability to require the hiring of guards to deter crime] be proven in the absence of prior similar incidents of violent crime the landowner's premises.”  (Ann M., supra, at p. 679, 25 Cal.Rptr.2d 137, 863 P.2d 207, fn. omitted.)

Under the Ann M. standard, where plaintiffs are seeking to impose a duty to install protective measures which would deter the importation of weapons into the public courthouse, the requisite foreseeability can “rarely if ever” be found (ibid.), it seems to us, without allegations of prior similar incidents on the courthouse property.   Installation of protective devices in the myriad courthouses in Los Angeles County is very costly.   However, in light of the peculiar nature of the judicial system in which the presence of litigants is often required, and the aforementioned policy favoring safe courthouses, and given that divorces must be court-sanctioned further necessitating the parties' appearances in court, we cannot close our eyes to the fact that legal proceedings frequently create highly charged atmospheres at the very least, and sometimes engender acrimonious and violent encounters.   For these reasons, we think “a lesser degree of foreseeability may be” satisfactory.  (See Ann M., supra, 6 Cal.4th at pp. 678-679, and fn. 7, 25 Cal.Rptr.2d 137, 863 P.2d 207, internal quotes omitted.)   Therefore, the allegation of prior similar incidents in any Los Angeles County courthouse would be sufficient in this case to satisfy the pleading requirement of foreseeability.

(iii) The allegations of the complaint.

 Fairly viewed according to this standard, plaintiffs' allegations in the complaint under section 1714 of the Civil Code are necessary but not sufficient, for they lack the essential allegations of particular risk, such as by prior similar incidents in County courthouses.   The specific allegations with respect to foreseeability are:  (1) the “․ inherently contentious and acrimonious nature of family law matters [that] frequently result[ ] in foreseeable[,] volatile and often violent situations”;  (2) the knowledge of “high ranking County officials,” the Board of Supervisors and judges that “․ the likelihood that violence, including shootings, would occur in the Courthouse”;  (3) that criminal trials are frequently held in the Hill Street courthouse and the presence of defendants and witnesses involved in those trials, “․ creat[es] a potentially dangerous and volatile situation”;  and (4) the County's knowledge that Dr. Zelig had threatened Mrs. Zelig.   Plaintiffs have alleged the generalized knowledge and the legal conclusion from this knowledge that Mrs. Zelig's death was foreseeable.

 There are no allegations of prior ¹⁰ shootings, stabbings or other attacks in courthouses in the County, nor are there any allegations suggesting that the County knew about the prevalence of weapons in courthouses.   Rectifying the omissions is a simple matter of adding facts to the pleading.   Therefore, we think that plaintiffs are entitled to amend their complaint to allege prior similar incidents in County courthouses.

 With such amendment, plaintiffs may successfully state a cause of action based on Civil Code section 1714 liability.   Although verbosely stated, plaintiffs have alleged the County's special relationship with Mrs. Zelig and members of the public who enter into the courthouse on court-related business, because it is a landowner and litigants pay fees and are required to appear.   This special relationship gives rise to a duty of care on the part of the County to take reasonable steps to prevent or forewarn against foreseeable harm.   With the amendments, plaintiffs will have alleged further the foreseeable danger necessary to require the County to take reasonable steps to prevent it.   This duty was breached, the allegations continue, because the County maintained the courthouse in a negligent manner by failing to provide metal detectors or other safety measures, including emergency alarms, to prevent the introduction of weapons into the courthouse and then failing to provide warnings of the lack of security in the courthouse.   Mrs. Zeligs death is alleged to be the proximate result of this negligence.

b. Dangerous condition of property (Government Code, § 835 against the County and Sheriffs Department).11

(i) Defective condition.

Under the Tort Claims Act, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and either:  [ ] (a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition;  or [ ] (b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition. (§ 835, italics added.)

A dangerous condition of property is statutorily defined as a condition of property that creates a substantial ․ risk of injury when such property ․ is used with due care in a manner in which it is reasonably foreseeable that it will be used. (§ 830, subd. (a).)  A condition is dangerous if the risk created by the condition was not minor, trivial or insignificant. (§ 830.2.)

 Whether a dangerous condition of public property within the meaning of the statute has been created is a question of fact that becomes a question of law where on the facts, reasonable minds can come to only one conclusion.   (Turner v. State of California (1991) 232 Cal.App.3d 883, 892, 284 Cal.Rptr. 349.)

 Where the public entity has actual or constructive notice of a dangerous condition, that entity can be held liable for failure to take protective measures to safeguard the public from that danger.  (Peterson v. San Francisco Community College Dist., supra, 36 Cal.3d at p. 811, 205 Cal.Rptr. 842, 685 P.2d 1193, quoting from Ducey v. Argo Sales Co. (1979) 25 Cal.3d 707, 716-717, 159 Cal.Rptr. 835, 602 P.2d 755.)

 However, “[l]iability for a dangerous condition of property cannot be premised upon third party conduct alone.  [Citations.]”  (Turner v. State of California, supra, 232 Cal.App.3d at p. 892, 284 Cal.Rptr. 349.)   Third-party criminal activity is not considered to be the dangerous condition, absent some concurrent contributing defect in the property itself (ibid.;  Hayes v. State of California (1974) 11 Cal.3d 469, 472, 113 Cal.Rptr. 599, 521 P.2d 855), such as where the public-entity defendant maintained the property in such a way so as to increase the risk of criminal activity.  (Peterson v. San Francisco Community College Dist., supra, at p. 812, 205 Cal.Rptr. 842, 685 P.2d 1193 [unpruned trees created dangerous condition allowing criminal activity];  Slapin v. Los Angeles International Airport (1976) 65 Cal.App.3d 484, 490, 135 Cal.Rptr. 296 [inadequate lighting was dangerous condition creating substantial risk of criminal activity].)

Slapin v. Los Angeles International Airport, supra, at page 488, 135 Cal.Rptr. 296, is controlling.   The plaintiff, who was attacked by unknown assailants in an airport parking lot, alleged that insufficient lighting in the garage constituted a dangerous condition of property for which the airport was liable under section 835.   Noting it was common knowledge that muggers thrive in dark places, the appellate court reversed the order sustaining the demurrer because the lighting created a substantial risk of criminal assault and thus constituted a dangerous condition of property.

In Peterson v. San Francisco Community College Dist., supra, at page 812, 205 Cal.Rptr. 842, 685 P.2d 1193, another plaintiff, attacked in a parking garage, alleged that the thick and untrimmed foliage and trees around the parking lot and stairway was a dangerous condition of property because it enabled the assailant to commit his crime.   The Supreme Court agreed that knowing of this danger, the defendants inaction in failing to trim the trees created a reasonably foreseeable risk that the plaintiff could be attacked.   (Id., at pp. 812-813, 205 Cal.Rptr. 842, 685 P.2d 1193.)

Finally, in Zuniga v. Housing Authority (1995) 41 Cal.App.4th 82, 48 Cal.Rptr.2d 353, the plaintiff family were tenants in a public housing unit, the area in front of which was the focus of illegal drug activity.   Although threats and harassment were reported weekly to the Housing Authority, no action was taken by the authority and so arsonists poured gasoline through the apartments mail slot, setting fire to the unit and killing five members of the family.  (Id., at p. 90, 48 Cal.Rptr.2d 353.)   The Zuniga court held with respect to section 835, that the plaintiffs had alleged a dangerous condition of property.   The successful allegations were the ․ inadequate security measures taken by respondents in face of the existence of a centralized location where drug dealers with violent tendencies congregated.   (Id., at p. 93, 48 Cal.Rptr.2d 353.)   The plaintiffs further successfully alleged ․ the City and the Authority failed to warn the residents, failed to transfer residents, failed to expel criminal tenants, failed to place security barriers, and failed to otherwise take appropriate security measures.  (Ibid.) Concluding the congregation of those with criminal tendencies who regularly assaulted tenants was not minor or trivial, the Zuniga court held a dangerous condition of property was alleged.  (Id., at pp. 93-94, 48 Cal.Rptr.2d 353.)

(ii) The allegations of the complaint.

 Based on Slapin, Peterson and Zuniga, and with the amendments suggested above outlining the requisite notice to the County, we conclude plaintiffs can state a cause of action under the provisions of section 835.   Just as in Zuniga, the dangerous condition of property alleged here is the County's failure to “take[ ] measures to prevent ․ violent conduct from occurring in the Hill Street Courthouse” in light of its knowledge of volatile conduct in courthouses in the County and the generally volatile nature of family law in particular and litigation in general.   A reasonable person could easily conclude that the lack of security measures created a substantial risk of injury when the courthouse is used with due care in the manner in which it was foreseeable it would be used.  (Peterson v. San Francisco Community College Dist., supra, 36 Cal.3d at p. 810, fn. 9, 205 Cal.Rptr. 842, 685 P.2d 1193.) As in Slapin and Peterson, plaintiffs allege the dangerous condition was the lack of reasonable preventative measures which increased the likelihood of violence by allowing the introduction of weapons into the courthouse.   Moreover, this defective condition, combined with the presence of a sheriff's station and signs warning that weapons are prohibited in the courthouse, both lulled Mrs. Zelig into believing it was safe to sit in the corridor outside the courtroom and enabled Dr. Zelig to carry a gun into the courthouse knowing that the County would not prevent him.   This risk was neither minor nor trivial nor insignificant. (§ 830.2.)

Plaintiffs are not seeking to hold the County liable for Dr. Zeligs violent tendencies.   Rather, they assert, given the knowledge of the risk of some attack combined with the failure to take steps to prevent that risk, the County created the opportunity for Mrs. Zelig to be shot.   Nor do the allegations, properly stated, invoke the immunity under section 845.   (Infra.)  Rather, we simply hold that with the requisite amendments, plaintiffs can allege a cause of action for the failure to take the reasonable security precautions of a “ ‘vital first line of defense.’ ”  (Gomez v. Ticor (1983) 145 Cal.App.3d 622, 632, 193 Cal.Rptr. 600.)   The complaint properly alleges that Mrs. Zelig was at risk of harm by virtue of using the courthouse for its intended purpose, and therefore ․ the lack of safety measures created the dangerous condition of property and proximately caused the death of [Mrs. Zelig].   Plaintiffs may state a cause of action under section 835.¹²

c.  Negligent infliction of emotional distress.

 This claim is brought by Mrs. Zeligs daughter Lisa, against the County and Sheriffs Department, alleging as a direct and proximate result of the Countys negligence, Lisa, who was present and saw and heard her mother being shot, suffered severe emotional distress and mental anguish.   Plaintiffs have alleged the necessary elements to state a claim against the County for Lisa's emotional distress in contemporaneously seeing and hearing the shooting.  (Zuniga v. Housing Authority, supra, 41 Cal.App.4th at pp. 102-103, 48 Cal.Rptr.2d 353.) ¹³

3. Sovereign Immunity (Government Code, § 845).

The demurrer was sustained below in major part because, reduced to its essence, plaintiffs complaint seeks to hold the County, by itself and through its Sheriffs Department, liable for failure to provide police protection or adequate police protection, for which the County points out, it is immune under section 845.

Section 845 states:  “Neither a public entity nor a public employee is liable for failure to establish a police department or otherwise to provide police protection service or, if police protection is provided, for failure to provide sufficient police protection services.”  (Italics added.)

 The Legislature adopted section 845 as drafted by the California Law Revision Commission (see Legis.   History of S.B. 42;  Mann v. State of California (1977) 70 Cal.App.3d 773, 778, 139 Cal.Rptr. 82), and the Journal of the Senate pronounced that the comments of the Law Revision Commission on section 845 “․ reflect the intent of the Senate Committee on Judiciary in approving the various provisions of Senate Bill No. 42.”  (2 Sen. J. (1963 Reg. Sess.) p. 1885.)   Those comments are “․ strong indication of legislative intent.  [Citations.]”  (Mann v. State of California, supra, at p. 779, fn. 5, 139 Cal.Rptr. 82.)

The Law Revision Commission Comment explains that “This section grants a general immunity for failure to provide police protection or for failure to provide enough police protection.  ․” (4 Cal. Law Revision Com. Rep. (1963) p. 860, italics added.)   Continuing, the Law Revision Commission explained, “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.”   (Ibid.) These comments have led to the pronouncement by our Supreme Court that “․ the immunity provided in section 845 ‘is meant to protect the budgetary and political decisions which are involved in hiring and deploying a police force.’ ”  (Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 792, 221 Cal.Rptr. 840, 710 P.2d 907, quoting from Peterson v. San Francisco Community College Dist., supra, 36 Cal.3d at p. 815, 205 Cal.Rptr. 842, 685 P.2d 1193.)

Immunized actions under section 845, therefore, are the provision of a police force or sufficient numbers of police;  training police;  determining where and when the police should patrol;  fighting crime;  responding in a timely manner to calls for help (see generally Zuniga v. Housing Authority, supra, 41 Cal.App.4th at p. 99, 48 Cal.Rptr.2d 353, and cases cited therein);  searching and screening people who use public places (Moncur v. City of Los Angeles, supra, 68 Cal.App.3d at p. 126, 137 Cal.Rptr. 239);  and other services which fall within the rubric of police function.

Police function or services has been held to include anything that involves “law enforcement” (4 Cal. Law Revision Com. Rep., supra, at p. 826), from the “ ‘․ inception of its exercise to the point of arrest, regardless of whether the action be labeled “discretionary” or “ministerial.” ’ [Citations.]”  (Stone v. State of California (1980) 106 Cal.App.3d 924, 929, 165 Cal.Rptr. 339;  Hartzler v. City of San Jose, supra, 46 Cal.App.3d at pp. 8-9, 120 Cal.Rptr. 5;  Antique Arts Corp. v. City of Torrance (1974) 39 Cal.App.3d 588, 592-593, 114 Cal.Rptr. 332.)   Thus, police function embraces every activity from responding to alarms (Antique Arts Corp. v. City of Torrance, supra ) to “․ the detection, arrest and incarceration of violators of the law.”  (4 Cal. Law Revision Com. Rep., supra, at p. 826.)   The utilization of private, armed guards for any of these purposes may also be immunized.  (Stone v. State of California, supra, at p. 930, 165 Cal.Rptr. 339.) ¹⁴

 Not included within the parameters of police function and thus not immunized are “ ‘precautionary measures' ” which are not normally considered “police protection services.”  (Lopez v. Southern Cal. Rapid Transit, supra, 40 Cal.3d at p. 792, 221 Cal.Rptr. 840, 710 P.2d 907.)   In Lopez, the plaintiffs, who were hurt in an altercation with other bus passengers, sued the RTD alleging that it had a duty to protect passengers from harm from unruly passengers.   The Lopez Court concluded the immunity under section 845 did not apply because the plaintiff did not contend that the RTD was negligent in failing to provide “․ police personnel or armed guards on board its buses.  [Citation.]”  (Ibid.) Still the Court observed that the RTD could have taken a number of “․ ‘precautionary measures' to prevent harm to passengers, such as warning unruly passengers to behave, ejecting those who refuse to behave, and summoning the assistance of police.”   (Ibid.) The Court explained, “None of these ‘precautionary measures' involve the kind of ‘budgetary and political decisions which are involved in hiring and deploying a police force.’   Nor do they constitute ‘police services' under any common understanding of that term.”   The Court observed, “[t]he fact that certain ‘precautionary measures' would have the effect of protecting passengers from criminal assaults does not transform them into ‘police protections services.’ ”  (Ibid., original italics.)

 Synthesizing these factors, activities which do not involve “police protection services” under section 845 include warnings (Zuniga v. Housing Authority, supra, 41 Cal.App.4th at pp. 99-100, 48 Cal.Rptr.2d 353), and building maintenance so as to deter criminal activity.  (Peterson v. San Francisco Community College Dist., supra, 36 Cal.3d at pp. 812-813, 205 Cal.Rptr. 842, 685 P.2d 1193 [trimming trees];  Slapin v. Los Angeles International Airport, supra, 65 Cal.App.3d at p. 491, 135 Cal.Rptr. 296 [improved lighting].)   Included in the category of maintenance would be “․ erect[ing] barriers to keep out intruders․”  (Zuniga v. Housing Authority, supra, at p. 100, 48 Cal.Rptr.2d 353.)   Another such activity not immunized, we hold, is the placement of metal detectors at courthouses to detect and deter the introduction of weapons into the courthouses of our communities.¹⁵

 In our view, plaintiffs complaint can be cast to avoid the immunity, as long as they seek to recover for damages resulting from omissions that do not involve the failure to provide police protection services.   Insofar as plaintiffs have alleged the failure of the County as landowner to implement “precautionary measures” that do not involve the police or rise to the level of “police services,” and that do not involve political and budgetary decisions about hiring and deploying police, they can avoid the immunity.   However, to the degree plaintiffs are seeking to hold the County and the Sheriff's Department liable for failure to deploy deputies to protect Mrs. Zelig, the complaint cannot avoid the immunity.   Plaintiffs' success in avoiding the immunity, of course, will also depend on how they present their case at trial.  (Zuniga v. Housing Authority, supra, 41 Cal.App.4th at p. 99, 48 Cal.Rptr.2d 353.)

DISPOSITION

The judgment is reversed.   The trial court is directed to allow the plaintiffs one more opportunity to amend to state causes of action in conformity with this opinion.   Costs on appeal awarded to plaintiffs.

FOOTNOTES

1.   Plaintiffs also alleged claims for (1) violating Mrs. Zelig's civil rights and (2) breach of contract.

2.   Dr. Zelig, who was also named as a defendant in the complaint, is serving time in state prison and is not a party to this appeal.

3.   Hereinafter, all statutory references shall be to the Government Code unless otherwise noted.

4.   Civil Code section 1714, subdivision (a), states in pertinent part, Every one is responsible, not only for the result of his willful acts, but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself.

5.   Mrs. Zelig was present in the Downtown Central Courthouse in connection with her divorce.   We do not address here other civil litigants' rights to access where alternative means of dispute resolution are available.

6.   Section 7, subdivisions (a) through (c) of the California Standards of Judicial Administration states in relevant part:  “(a) Each trial court should designate a specified peace officer as Court Security Officer to be responsible to the court for all matters relating to its security, including security of ․ buildings and grounds ․ [¶] (b) Each court should require the Court Security Officer to prepare a Court Security Plan for its review and consideration.   The Court Security Plan:  (1) should be the operational plan for achieving the desired level of security for courtrooms, buildings and grounds, including the planned allocation of security forces and equipment;  (2) ․ and propose plans for maintaining ․ safety within courthouses and grounds in high risk situations;  and (3) should include an evaluation of the court's security needs, and an assessment of the adequacy and effectiveness of the equipment and forces available to meet those needs.   Each trial court should adopt, reject or request modification for the proposed Court Security Plan after giving due consideration to all local conditions affecting its security and to the effect of the plan on the conduct of trials and other proceedings ․ [¶] (c) No trial court should approve a Court Security Plan that does not limit the wearing of firearms in the courthouse or courtrooms to peace officers and proscribe the wearing of firearms in such places by all other persons.”

7.   Notwithstanding our reliance on the Judicial Administration Standards as indicative of a recognition of the need for safe courthouses, we disagree with plaintiffs that they have stated a cause of action for wrongful death premised on the County's alleged breach of a mandatory duty. (§ 815.6.)   Nothing in the language of the Judicial Administration Standards, above described, nor in section 68073, subdivision (a) involving the construction of court facilities, upon which plaintiffs also rely, indicates a mandatory requirement that the County protect against the risk of third-party criminal acts.  (MacDonald v. State of California, supra, 230 Cal.App.3d at p. 327, 281 Cal.Rptr. 317.)

8.   Plaintiffs set out another cause of action under section 1714, which focuses on the duty of the Sheriff's Department to prevent Dr. Zelig from harming Mrs. Zelig and its breach by failing to provide security or to warn her.   This claim then cites section 820 involving the liability of public employees.   Elsewhere, the complaint repeatedly asserts that a deputy had responded to Mrs. Zelig's earlier specific requests, suggesting that a particular duty to protect Mrs. Zelig existed on September 1, 1995.   However, that Deputy Carter had in the past aided Mrs. Zelig, does not indicate that the County assumed any additional, particular task on September 1, 1995.   Plaintiffs do not allege any official induced Mrs. Zelig to rely on a promise that the Sheriff's Department would protect her that day.  (Hartzler v. City of San Jose (1975) 46 Cal.App.3d 6, 9-10, 120 Cal.Rptr. 5.)   The allegations show that Mrs. Zelig did not request aid from any sheriff on September 1, 1995.   Nor have plaintiffs alleged the Sheriff's Department had affirmatively assumed the responsibility to protect her that day.  (Ibid.)

9.   Additional factors relevant to a determination of the existence and scope of a duty are found in Rowland v. Christian, supra, 69 Cal.2d at page 113, 70 Cal.Rptr. 97, 443 P.2d 561:  “․ the degree of certainty that the 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 to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.  [Citations.]”  (See also, Peterson v. San Francisco Community College Dist., supra, 36 Cal.3d at p. 806, 205 Cal.Rptr. 842, 685 P.2d 1193.)

10.   We underscore “prior” because plaintiffs have proposed to amend their complaint to refer to subsequent courthouse shootings, based on newspaper articles.   However, it is prior shootings which give the requisite notice.  (Ann M., supra, 6 Cal.4th at p. 679, 25 Cal.Rptr.2d 137, 863 P.2d 207.)

11.   Plaintiffs' cause of action is entitled wrongful death, but is premised on section 835.

12.   The cases upon which the County rely are distinguished because they do not involve allegations of a physical defect created or maintained by the defendants which enabled third-party crime to occur.  (Rodriguez v. Inglewood Unified School Dist., supra, 186 Cal.App.3d at pp. 718-719, 230 Cal.Rptr. 823;  Moncur v. City of Los Angeles (1977) 68 Cal.App.3d 118, 124, 137 Cal.Rptr. 239 [nothing about public lockers in airport which enabled the crime to occur];  Hayes v. State of California, supra, 11 Cal.3d at p. 472, 113 Cal.Rptr. 599, 521 P.2d 855 [no allegation defect in governmentally-owned beach property in its natural condition which contributed to assault].)   Here, the crime occurred in this courthouse, plaintiffs allege, because the County maintained the courthouse in such a manner, namely without reasonable security measures, as to create a defect that contributed to the attack.   Also distinguished is Hartzler v. City of San Jose, supra, 46 Cal.App.3d 6, 120 Cal.Rptr. 5, because there the plaintiff was not killed on County property and the case did not involve a the special duty the landowner owes to invitees or under section 835.

13.   Plaintiffs have also alleged that the County and Sheriffs Department, under color of state law, deprived Mrs. Zelig of her right to liberty and access to the courts without due process of law by failing to implement reasonable warning and safety measures in the Courthouse.  (42 U.S.C.1983, 1988.)   Ordinarily, the Due Process Clause does not ․ require [ ] the State to protect the life, liberty, and property of its citizens against invasion by private actors.  (DeShaney v. Winnebago County DSS (1989) 489 U.S. 189, 109 S.Ct. 998, 1003, 103 L.Ed.2d 249.)   To successfully state a claim, plaintiffs would have to rely on a recognized exception to this general rule, namely the danger creation exception, where the state has affirmatively placed the plaintiff in a dangerous situation.  (L.W. v. Grubbs (9th Cir.1992) 974 F.2d 119, 121 (Grubbs I).)   Under this exception, “the plaintiff must show that the state official participated in creating a dangerous condition, and acted with deliberate indifference to the known or obvious danger in subjecting the plaintiff to it.”  (L.W. v. Grubbs (9th Cir.1996) 92 F.3d 894, 900.)   Plaintiffs have alleged the legal conclusion that the County acted with deliberate indifference.   As a matter of pleading, plaintiffs should be given the opportunity to amend the complaint, if they can, to bring themselves within the danger creation exception.  (Wood v. Ostrander (9th Cir.1989) 879 F.2d 583, cert. den. sub. nom. Ostrander v. Wood (1990) 498 U.S. 938, 111 S.Ct. 341, 112 L.Ed.2d 305.)Plaintiffs additionally alleged breach of an implied contract against the County but not the Sheriffs Department.   In accordance with Government Code section 814, plaintiffs allege that in exchange for Mrs. Zelig paying fees, being required to utilize the superior court to resolve her marital difficulties and to appear in the courthouse, the County impliedly promised it would provide Mrs. Zelig with a reasonably safe environment during her appearances.   This implied contract was evidenced, plaintiffs allege, by the apparent presence of security at the courthouse, the prohibition against bringing weapons into the courthouse, and the response of the court personnel to Mrs. Zeligs earlier complaints about her ex-husband.   The first amended complaint then alleges the County breached this implied contract by failing to provide a safe environment for Mrs. Zelig at the Hill Street courthouse.   No contract can be implied as characterized by plaintiffs.   At best, the fees charged in connection with the use of the courthouse are to provide adjudicatory services.   They cannot be construed as a basis for an implied contract to provide security.   Also, the cases upon which plaintiffs rely for inferring a contract involve the breach of the warranty of habitability implied in residential leases.  (Penner v. Falk (1984) 153 Cal.App.3d 858, 869, 200 Cal.Rptr. 661;  Kwaitkowski v. Superior Trading Co. (1981) 123 Cal.App.3d 324, 333, 176 Cal.Rptr. 494.)

14.   Of course, section 845 does not immunize ․ negligent or wrongful acts or omissions committed in the actual implementation of police protection service.  [Citation.]  Other immunities may, however, then apply.  [Citing § 846 immunizing the police for the failure to make an arrest or to retain an arrestee in custody.]”  (Van Alstyne, Cal. Government Tort Liability (Cont.Ed.Bar 1964) p. 601, italics added.)   However, that is not what plaintiffs allege here.

15.   The County points to a Los Angeles Times article dated February 23, 1997, which shows that the County had purchased metal detectors, but because of budgetary constraints did not install them.   Based on that article, the County argues that the failure to install the detectors is immunized as a budgetary consideration.  (Lopez v. Southern Cal. Rapid Transit Dist., supra, 40 Cal.3d at p. 792, 221 Cal.Rptr. 840, 710 P.2d 907.)   However, it is the budgetary decisions related to the deployment of a police force which is specifically immunized under section 845.   Metal detectors, we hold, are precautionary measures which do not involve police services.  (Ibid.)

ALDRICH, J.

KLEIN, P.J., and CROSKEY, J., concur.