DAVID FRANKLIN v. JOSE GOMEZ (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

INTRODUCTION

Plaintiff David Franklin appeals from a judgment entered after the trial court sustained demurrers of defendants Jose Gomez and Maria Gomez, finding defendants not liable for negligence in failing to prevent their son, Joseph Gomez, from injuring Franklin.   When analyzing whether a defendant has a duty to control a third party's conduct, the courts distinguish between misfeasance (making a plaintiff's position worse) and nonfeasance (failing to aid the plaintiff through beneficial intervention).   Liability for misfeasance is based on the general duty of ordinary care to prevent others from being injured by one's own conduct.   Liability for nonfeasance is limited to situations when a special relationship creates a duty to act.   Although generally a person owes no duty to control another person's conduct, exceptions to this rule exist when a defendant has a special relationship with the person whose conduct needs to be controlled or with the foreseeable victim of that conduct.   As parents of an adult child, defendants had a special relationship with Joseph Gomez, but the absence of a parent's ability to control the child is fatal to a claim of legal responsibility.   Here no inference of defendants' ability to control their adult child can be drawn, and the operative complaint does not show that defendants had the ability to control Joseph.   Consequently we conclude that defendants owed no duty to Franklin to control Joseph's conduct.   No special relationship between defendants and Franklin gave rise to defendants' duty to control Joseph's conduct, because Franklin was not the intended, identifiable victim of Joseph.   Because defendants are not shown to have had the ability to control Joseph's conduct and thus had no duty to control that conduct, it is unnecessary to analyze the Rowland v. Christian ¹ factors to determine whether defendants owed a duty of care.   Moreover, because the courts have already weighed the Rowland factors in formulating the “no duty to aid” rule in the context of liability for nonfeasance, it is not necessary to engage in the weighing process in a particular case.  (Seo v. All–Makes Overhead Doors (2002) 97 Cal.App.4th 1193, 1203.)   We affirm the judgment.

PROCEDURAL HISTORY

On January 29, 2009, the trial court sustained, without leave to amend, the demurrers of defendants Joseph Francisco Gomez, the Estate of Joseph Francisco Gomez, Jose Gomez, and Maria Gomez to plaintiff David Franklin's third amended complaint.

Franklin filed a notice of appeal on June 1, 2009.   On July 22, 2009, the trial court ordered the case dismissed as to defendants Jose Gomez and Maria Gomez, which is the final, appealable order.   We construe the notice of appeal to have been filed after entry of the final, appealable order.  (Bravo v. Ismaj (2002) 99 Cal.App.4th 211, 219, fn 6.)

FACTS

Pursuant to the standard of review,² the facts are as follows.   The operative complaint alleged one cause of action for negligence against defendants Jose Gomez and Maria Gomez.³  Jose Gomez and Maria Gomez were the mother and father of decedent Joseph Francisco Gomez (Joseph), and owned property (the Gomez property) adjacent to plaintiff Franklin's residence.

During his life, Joseph was involved in repeated violent incidents.   When he was 14 to 16 years old, Joseph took his parents' vehicle, after which the Los Angeles Police, with Joseph in handcuffs, appeared at a neighbor's home looking for Jose and Maria Gomez.   In the 1990's Joseph was expelled from four Los Angeles area high schools for fighting and other violent incidents, and was a member of a street gang believed to be the 18th Street gang.

In 1998, Joseph began serving a prison sentence for burglary and automobile theft convictions.   Before he was released in January 2006, Jose and Maria Gomez represented to California probation authorities that they lived at the Gomez property, that Joseph could live with them at that property, and that they could and would supervise Joseph during his probation.   The complaint alleged that Jose and Maria Gomez misrepresented the facts to the probation authorities, in that Maria Gomez had the greater ability to control or influence Joseph and she had a second residence where she spent much time, even though she returned to the Gomez property several times each week.

After his release into Jose and Maria Gomez's custody, between January and March 2006, Joseph engaged in a series of altercations that involved increasing levels of violence and culminated in the attack on plaintiff Franklin.

In January 2006, Joseph held a loud party at the Gomez property.   The neighbor of the property adjoining the rear of the Gomez property called to Joseph from his back yard and asked him to lower the noise.   Joseph walked to that neighbor's residence, yelled at and berated that neighbor, and threatened him with physical harm.   The neighbor phoned the police about the noise, and police arrived at the Gomez property and forced Joseph to reduce the noise.

Joseph retaliated against the neighbor by periodically throwing bricks from the backyard of the Gomez property against the wall of the neighbor's home.   In January or February 2006, the neighbor spoke to Mr. or Mrs. Gomez about Joseph's conduct, informing them of Joseph's actions, the danger to the neighbor's family, and the damage to the neighbor's home caused by Joseph's brick throwing, which included a window shattered by a brick Joseph threw.   Joseph, however, continued throwing bricks against the neighbor's property.

In January 2006 Joseph threw a brick, rock, or other large object through the front window of a house across the street from the Gomez property, and stood in front of the house yelling epithets against these neighbors because of their sexual orientation.   The Los Angeles police were again called and responded to this incident.

In February 2006, Joseph had another loud party at the Gomez property, causing an unknown neighbor to call the police.   When a police helicopter shined a searchlight on the Gomez property, many attending the party scattered and the music died down.   A police cruiser later arrived, and police entered the Gomez property while either Mr. or Mrs. Gomez was present.

In early March 2006, plaintiff Franklin and his wife were awakened at 1:00 or 2:00 a.m. by a commotion in front of the Gomez property.   They observed Joseph threatening two women with a baseball bat, smashing the bat against the street pavement, and yelling at the two women.   Police again arrived, and one officer drew his weapon.

On Wednesday, March 29, 2006, Joseph again threw bricks at his rear neighbor's house, causing that neighbor to call the police, who spoke to Mrs. Gomez at the Gomez property.   Later that day, Franklin's assistant, Wilburn, saw Joseph seated on the curb in front of the Gomez property holding a tequila bottle.   When Wilburn asked Joseph if he was OK, Joseph confronted Wilburn, the two exchanged heated words and came close to fighting each other.   Defendant Maria Gomez came out from the Gomez property, stood between Wilburn and Joseph to prevent a fight, and was able to control Joseph from attacking Wilburn.   Wilburn observed Joseph to be either drunk or stoned.   Mrs. Gomez excused Joseph's behavior because he had been “partying” for three days.

Mrs. Gomez knew Joseph was intoxicated or under the influence of a narcotic and was in a violent state of mind because of his encounter with Wilbur.   The rear neighbor had also informed Mrs. Gomez of Joseph's earlier conduct.   Despite this knowledge, Mrs. Gomez did not bring Joseph inside the Gomez property or force him to dispose of the tequila bottle, and instead left Joseph in front of the Gomez property holding the tequila bottle.   One hour later, as Franklin was taking mail to the mailbox in front of his house, Joseph ran from the Gomez property toward Franklin carrying the tequila bottle.   Without warning, Joseph swung the bottle toward Franklin, striking him on the side of his head and smashing the bottle in the process.

In the ensuing scuffle between Franklin, Wilburn, and Joseph, Mrs. Gomez appeared and pleaded with Franklin not to call police because Joseph was “sick.”   The police nonetheless arrived and arrested Joseph for his attack on Franklin.

The next day, March 30, 2006, Joseph's brother and uncle came to Franklin's residence and asked Franklin's wife to change the story about the attack because they did not want Joseph to go to jail again.

Joseph was 28 years old at the time of these incidents.   Joseph died in 2007 or 2008 from an overdose of illegal narcotics.

The complaint alleged that before March 29, 2006, Jose Gomez and Maria Gomez knew that Joseph had a violent disposition, was involved in violent altercations with persons living adjacent to the Gomez property, had prior criminal arrests and convictions for bodily assault and battery on persons living adjacent to the Gomez property and on other persons, represented a threat, danger, and hazard to persons living adjacent to the Gomez property, and verbally threatened other persons living adjacent to the Gomez property with personal injury, assault, or battery.

The complaint alleged that defendants knew Joseph suffered from a mental illness or a drug or alcohol addiction that made him prone to violent outbursts and violent conduct, took custody of Joseph and allowed him to live at their home with knowledge of his condition and of his threats to Franklin, but made no attempt to obtain treatment for Joseph, condition Joseph's continued residence with them on his obtaining treatment, take action to insure that Joseph did not present a threat to Franklin or other neighbors, or take action to control or curb Joseph's misconduct.

After being attacked by Joseph, Franklin experienced severe headaches and was diagnosed with an increase in inter-cranial pressure due to internal bleeding in his head.   Physicians drilled holes in his skull in an attempt to relieve the pressure, forcing Franklin to undergo a craniotomy to address the internal bleeding.   Franklin suffered permanent brain damages from the effects of Joseph's attack.

ISSUES

Franklin claims on appeal that the trial court:

1. Erroneously found that defendants did not owe Franklin a duty;

2. Erroneously failed to use a balancing test to determine that defendants owed Franklin a duty;  and

3. Franklin is part of an identifiable group of potential victims.

DISCUSSION

Franklin claims that the trial court erroneously found that defendants did not owe him a duty, should not have analyzed the case according to whether a special relationship existed, and should instead have determined the existence of defendants' duty by balancing factors in Rowland v. Christian, supra, 69 Cal.2d 108.

A. Duty

Negligence is conduct falling below the standard established by law for the protection of others against unreasonable risk of harm.  (Bonner v. Workers' Comp. Appeals Bd. (1990) 225 Cal.App.3d 1023, 1033.)   Its essential elements include (i) a legal duty to exercise due care;  (ii) breach of that duty;  (iii) the breach as the proximate or legal cause of resulting injury to plaintiff.   The existence and scope of duty are legal questions for the court.  (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 477.)

“Duty” is an expression of those policy considerations which lead the law to say that a particular plaintiff is entitled to protection.   The existence of a legal duty expresses the conclusion that in cases of a particular type, liability should be imposed for damage done.  (Merrill v. Navegar, Inc., supra, 26 Cal.4th at p. 477.)

Civil Code section 1714, subdivision (a) states the general rule of duty:  “Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person[.]”

The courts distinguish between misfeasance and nonfeasance when analyzing whether a defendant has a duty to control a third party's conduct.   “ ‘Misfeasance exists when the defendant is responsible for making the plaintiff's position worse, i.e., defendant has created a risk.   Conversely, nonfeasance is found when the defendant has failed to aid plaintiff through beneficial intervention.’  “ (Melton v. Boustred (2010) 183 Cal.App.4th 521, 531.)  “Liability for misfeasance is based on the general duty of ordinary care to prevent others from being injured by one's own conduct.  [Citations.]  Liability for nonfeasance is limited to situations in which there is a special relationship that creates a duty to act.”  (Seo v. All–Makes Overhead Doors, supra, 97 Cal.App.4th at p. 1202.)   The general rule is that one has no duty to come to the aid of another.   A person who has not created a peril is not liable in tort for failing to act affirmatively to assist or protect another unless some relationship between them gives rise to a duty to act.  (Id. at pp. 1202–1203.)

There are, however, exceptions to the “no-duty-to-protect” rule of nonfeasance.   One such exception is the special relationship doctrine.   Although generally a person owes no duty to control another person's conduct, the courts have created exceptions based on “special relationships” between a defendant and (1) the person whose conduct needs to be controlled or (2) the foreseeable victim of that conduct.  (Wise v. Superior Court (1990) 222 Cal.App.3d 1008, 1013;  Mel ton v. Boustred, supra, 183 Cal.App.4th at pp. 531–532.)

B. Defendants Owed No Duty to Plaintiff Franklin to Control Joseph's Conduct

The first category—special relationships between the defendant and the person whose conduct needs to be controlled—includes the relationship between parent and child.   In a parent-child “special relationship,” however, the parent's ability to control the child is essential.  (Wise v. Superior Court, supra, 222 Cal.App.3d at p. 1013.)   It is not the parent-child relationship as such, but instead the parent's ability to control the child, that forms the basis for a finding of liability on the part of a parent.   The absence of the parent's ability to control the child is fatal to a claim of legal responsibility.   (Megeff v. Doland (1981) 123 Cal.App.3d 251, 261.)  “The ability to control is inferred from the relationship of parent to minor child, as it is from the relationship of custodian to charge;  yet, it may be disproved by the circumstances surrounding a particular situation.   Where ․ the natural relationship between the parties (that of adult daughter and father) creates no inference of an ability to control, the actual custodial ability must affirmatively appear.”  (Ibid, fn.omitted.)

In the instant case, no inference of defendants' ability to control their adult child can be drawn from the natural relationship between the defendant parents and Joseph, who was not a minor child but was instead 28 years old when he attacked the plaintiff.  (Megeff v. Doland, supra, 123 Cal.App.3d at p. 261;  see also Todd v. Dow (1993) 19 Cal.App.4th 253, 259 [parents had no ability to control adult child].)

As was the case in Wise, the operative complaint does not show that defendants had the ability to control Joseph.  “It is [defendants'] lack of control which is apparent, and in fact the picture painted by [Franklin's complaint] is of an individual whose behavior was beyond the control of anyone, including himself.”  (Wise v. Superior Court, supra, 222 Cal.App.3d at p. 1014.)

We conclude that defendants owed no duty to Franklin to control the conduct of Joseph.

C. Defendants Owed No Duty Arising From a Special Relationship to Franklin

The second category—special relationships between the defendant and the foreseeable victim of the person whose conduct needs to be controlled—does not apply to the defendants and plaintiff Franklin.   Plaintiff, indeed, does not argue that a special relationship existed between himself and defendants.

A duty owed by defendants to a plaintiff arising from such a special relationship, moreover, “is imposed only where the injury is foreseeable and the intended victim is identifiable.”  (Rice v. Center Point, Inc. (2007) 154 Cal.App.4th 949, 955.)   Negligence must be founded on the foreseeability of harm to the person who was in fact injured.  (Wise v. Superior Court, supra, 222 Cal.App.3d at p. 1014.)  “The custodian must have knowledge of a specific risk to an identifiable and foreseeable victim.  [Citations.]”  (Megeff v. Doland, supra, 123 Cal.App.3d at p. 257.)

A series of incidents preceded Joseph's attack on Franklin.   When a rear neighbor complained about loud noise at a party, Joseph yelled at the neighbor and threatened him with physical harm, and later threw bricks against the neighbor's house.   Joseph threw a brick, rock, or other large object through the front window of a house across the street from defendants' house, and yelled epithets against those neighbors because of their sexual orientation.   Franklin observed Joseph smashing a baseball bat against the street pavement in front of the Gomez house and yelling at two women.   On the day he attacked Franklin, Joseph threw bricks against a neighbor's house, and later in the day, when Franklin's assistant Wilburn, observing Joseph seated on the curb in front of the Gomez house, asked him if he was “OK,” Joseph confronted Wilburn, the two exchanged heated words, and they came close to fighting each other.   These incidents, however, did not make Franklin the intended, identifiable victim of Joseph.   Because of this, defendants had no special relationship with Franklin and thus owed no duty to him.

D. Analysis of the Rowland Factors Is Not Necessary

Plaintiff argues that the trial court should have engaged in balancing the factors in Rowland v. Christian, supra, 69 Cal.2d 108 to determine that defendants owed a duty to Franklin.  “[A] plaintiff who alleges a defendant had a duty to control another person based on a special relationship must make a twofold showing (1) that the defendant had the ability to control the actor and (2) that the defendant bore a duty of care under a Biakanja/Rowland ⁴ analysis.”  (Smith v. Freund (2011) 192 Cal.App.4th 466, 474.)   Because Franklin has not made the first showing, we do not proceed to the Rowland analysis.   Moreover, because the traditional weighing process using the Rowland factors “ ‘has already been done by the courts over the centuries in formulating the “no duty to aid” rule’ in the context of liability for nonfeasance, it is not necessary to engage in the weighing process in a particular case.”  (Seo v. All–Makes Overhead Doors, supra, 97 Cal.App.4th at p. 1203.)

DISPOSITION

The judgment is affirmed.   Costs on appeal are awarded to defendants Maria Gomez and Jose Gomez.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. Rowland v. Christian (1968) 69 Cal.2d 108..  FN1. Rowland v. Christian (1968) 69 Cal.2d 108.

FN2. “A demurrer tests the legal sufficiency of factual allegations in a complaint.  [Citation.]  In reviewing the sufficiency of a complaint against a general demurrer, this court treats the demurrer as admitting all material facts properly pleaded, but not contentions, deductions, or conclusions of fact or law.   This court also considers matters that may be judicially noticed.   When a demurrer is sustained, this court determines whether the complaint states facts sufficient to constitute a cause of action.  [Citation.]“On appeal, a plaintiff bears the burden of demonstrating that the trial court erroneously sustained the demurrer as a matter of law.   This court thus reviews the complaint de novo to determine whether it alleges facts stating a cause of action under any legal theory.   Because a demurrer tests the legal sufficiency of a complaint, the plaintiff must show the complaint alleges facts sufficient to establish every element of each cause of action.   If the complaint fails to plead, or if the defendant negates, any essential element of a particular cause of action, this court should affirm the sustaining of a demurrer.”  (Rakestraw v. California Physicians' Service (2000) 81 Cal.App.4th 39, 42–43.).  FN2. “A demurrer tests the legal sufficiency of factual allegations in a complaint.  [Citation.]  In reviewing the sufficiency of a complaint against a general demurrer, this court treats the demurrer as admitting all material facts properly pleaded, but not contentions, deductions, or conclusions of fact or law.   This court also considers matters that may be judicially noticed.   When a demurrer is sustained, this court determines whether the complaint states facts sufficient to constitute a cause of action.  [Citation.]“On appeal, a plaintiff bears the burden of demonstrating that the trial court erroneously sustained the demurrer as a matter of law.   This court thus reviews the complaint de novo to determine whether it alleges facts stating a cause of action under any legal theory.   Because a demurrer tests the legal sufficiency of a complaint, the plaintiff must show the complaint alleges facts sufficient to establish every element of each cause of action.   If the complaint fails to plead, or if the defendant negates, any essential element of a particular cause of action, this court should affirm the sustaining of a demurrer.”  (Rakestraw v. California Physicians' Service (2000) 81 Cal.App.4th 39, 42–43.)

FN3. The complaint also alleged causes of action for negligence, assault, and battery against defendants Joseph Francisco Gomez and the Estate of Joseph Francisco Gomez.   This appeal does not involve these causes of action or these defendants..  FN3. The complaint also alleged causes of action for negligence, assault, and battery against defendants Joseph Francisco Gomez and the Estate of Joseph Francisco Gomez.   This appeal does not involve these causes of action or these defendants.

FN4. The Rowland factors were previously articulated in Biakanja v. Irving (1958) 49 Cal.2d 647, 650.   The Rowland factors are:  “ ‘the foreseeability of harm to the plaintiff, 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.’  “ (Cabral v. Ralphs Grocery Co. (2011) 52 Cal.4th 764, 771.).  FN4. The Rowland factors were previously articulated in Biakanja v. Irving (1958) 49 Cal.2d 647, 650.   The Rowland factors are:  “ ‘the foreseeability of harm to the plaintiff, 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.’  “ (Cabral v. Ralphs Grocery Co. (2011) 52 Cal.4th 764, 771.)

CROSKEY, Acting P. J. ALDRICH, J.