Wu v. County of Los Angeles CA2/8 ( 2024 )

Filed 9/26/24 Wu v. County of Los Angeles CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
ERICA WU et al., B320175
Plaintiffs and Appellants, Los Angeles County
Super. Ct. No. 19STCV26712
v.
COUNTY OF LOS ANGELES et
al.,
Defendants and
Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Mark H. Epstein, Judge. Affirmed in part;
reversed in part.
Law Offices of Victor L. George, Victor L. George, Meylin P.
Alfaro; Esner, Chang & Boyer, Stuart B. Esner, Holly N. Boyer,
and Kathleen J. Becket for Plaintiffs and Appellants.
Rob Bonta, Attorney General, Elizabeth S. Angres, Acting
Assistant Attorney General, Donna M. Dean and Mark A. Brown,
Deputy Attorneys General for Defendant and Respondent State
of California.
Hurrell Cantrall, Thomas C. Hurrell and Melinda Cantrall
for Defendants and Respondents County of Los Angeles, Los
Angeles County Sheriff’s Department, John S. Benedict,
Commander Patrick Nelson and Captain Joshua Thai.
_________________________
INTRODUCTION
On June 22, 2018, Tristan Beaudette and his two young
daughters, ages two and four, were camping in Malibu Creek
State Park when Beaudette was shot and killed at 4:44 a.m. as he
slept in the tent between his two daughters. At the time of the
shooting, park employees were aware of other recent shootings in
and near the campground, the most recent being four days before
Beaudette was killed. No one warned Beaudette or any campers
of the recent shootings, despite employees having been warned
not to enter that area of the park after dark. Beaudette’s spouse,
Erica Wu, on behalf of herself and as guardian ad litem for their
daughters (plaintiffs), brought an action against the State of
California Department of Parks and Recreation, California State
Park Police, California State Park and Recreation Commission,
and employees of the various entities (the State defendants); the
County of Los Angeles, Los Angeles County Sheriff’s Department,
Division Chief John S. Benedict, Captain Josh Thai, and
Commander Patrick Nelson (the County defendants); and the
alleged shooter for wrongful death, dangerous condition of public
property, wrongful death (negligence), negligent infliction of
emotional distress, intentional infliction of emotional distress.
2
The trial court sustained the State and County defendants’
demurrers to the operative complaints without leave to amend.
The trial court held the State defendants and County defendants
owed no duty of care to plaintiffs. We now affirm as to the
County defendants and reverse as to the State defendants.
BACKGROUND
I. The Allegations of the Third Amended Complaint
Because judgments were entered upon demurrers, our
factual summary is based on allegations in the complaints. We
take as true properly pleaded material facts alleged in one or
both operative pleadings, disregarding contentions, deductions,
and conclusions of law. (Southern California Gas Leak Cases
(2019) 7 Cal.5th 391, 395.)
The County defendants’ demurrer was sustained without
leave to amend as to the Third Amended Complaint. The State
defendants’ demurrer was sustained without leave to amend as to
the Fourth Amended Complaint. We draw the facts stated below
from the allegations of the Third Amended Complaint (TAC),
filed May 24, 2021. Facts added later in the Fourth Amended
Complaint as to the State defendants only are stated in Section
IV, below. We do not discuss the second and fifth causes of action
for dangerous condition of public property and intentional
infliction of emotional distress because the dismissal of those
claims has not been challenged on appeal.
The State defendants owned, maintained, and operated
Malibu Creek State Park, which has 63 campsites numbered
1-63. On June 21, 2018, Beaudette, his two daughters, his
brother-in-law, and his two nephews set up camp at a campsite at
Malibu Creek State Park. Beaudette had reserved campsite
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No. 49 but upon arrival they were reassigned to campsite No. 51
by park staff. No park employee warned them of a series of
shootings and prior incidents that had occurred mere feet from
campsite No. 51 to which the Beaudette family had been
assigned. Beaudette and his daughters slept in one tent and
Beaudette’s brother-in-law and two nephews slept in a separate
tent next to the Beaudette family. At 4:44 a.m. Beaudette was
shot. He died where he was sleeping in the tent between his
daughters who, awakened by the gunshot, saw their father die as
he lay between them.
During the 19 months before Beaudette’s murder, the State
and County defendants were aware of at least seven to nine
unsolved prior shootings at humans and vehicles in and adjacent
to the park between November 2016 and Beaudette’s death on
June 22, 2018. These other shootings included:
• November 3, 2016. James Rogers was shot while sleeping
in his hammock around 3:00 a.m. in Tapia Park. After
reporting the shooting, a park employee told Rogers “there
was a lot of weird activity” in the park and the rangers
“had been told not to be there by themselves and not to go
there at night.”
• November 9, 2016. A camper was sleeping in his trailer
vehicle in campsite No. 58 when he heard an explosion
outside his trailer at 3:20 a.m. He noticed a hole in the side
of his trailer about five inches below the window and a
birdshot shotgun round in the side of the trailer. The
camper became scared and drove to the entrance of the
campsite to report the incident. He also called 911 to
report it.
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• January 7, 2017. Meliss Tatangelo’s car was shot at while
parked at campsite No. 57. She and Frank Vargas were
sleeping in the back of their Honda HR-V when they awoke
to a loud sound. Later that morning, Tatangelo discovered
a gunshot hole in the back of the car. When she reported
the shooting to the police, she was told “That’s not our
problem. Call the State Parks guys.” She was later
contacted by the State Park police to whom she explained
what happened. She was told, “This doesn’t happen out
here.” The State Park police walked all over everything at
the scene, including walking over the dirt and any
footprints. The camp host confirmed he awoke to a loud
sound early in the morning that originated in the direction
of campsite No. 57. A shotgun slug was found in the car
and a shotgun wading was located 20 feet from campsite
No. 57. No one contacted Tatangelo again.
• March 12, 2017. Kyle Leveque, a seasonal park aide,
reported hearing two gunshot rounds fired while he was
working at the entrance station to the park.
• Sometime in April 2017. State Parks Peace Officer Dustin
E. Lebrun reported hearing gunshots in the early morning
hours. Lebrun lived on or near the park premises at the
time he heard and reported the gunshots.
• June 8, 2017, at 4:30 a.m. A shooting occurred on Las
Virgenes Road adjacent to Malibu Creek State Park in
which a Porsche vehicle was struck with birdshot pellets.
• July 22, 2017, in the early morning hours. A BMW was
shot at, again on Las Virgenes Road adjacent to the park.
The car was hit by birdshot from an elevated position.
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• July 29, 2017 or July 31, 2017. Campers at the campsite
reported hearing gunfire in the early morning hours.
• On June 18, 2018, four days before Beaudette’s shooting.
A Tesla was struck by a bullet at 4:20 a.m., again on Las
Virgenes Road adjacent to the park.
Sometime between November 2016 and January 2017,
defendant Anthony Rauda (Beaudette’s alleged killer) was
arrested for the first shootings and released without being
charged. On October 10, 2018, after Beaudette’s fatal shooting,
Rauda was rearrested. He is currently charged with Beaudette’s
murder, 10 counts of attempted murder, and five counts of
burglary.
After Beaudette’s murder, the State defendants closed the
park and did not reopen it until May 2019. The State defendants
installed 24-hour video surveillance through the park with signs
warning the “park is under 24-hour video surveillance.” Within a
few months of Beaudette’s death, 31 cameras were installed in
the park and 12 cameras were installed in the subject
campground. The purpose of the video surveillance was to assist
in investigating potential violations of state and local statutes
and ordinances. Well in advance of Beaudette’s death, the State
defendants were on notice and knew of the seven to nine
shootings and were aware that there was a prowler or prowlers
on the park grounds firing a weapon in the park at or near
paying campers, yet the State defendants kept the campground
open.
In January 2017, Los Angeles County Sheriff’s Detective
James Royal became aware of the first three shootings that
occurred on November 3, 2016, November 9, 2016 and January 7,
2017. He advised his supervisors in the Sheriff’s Department
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that the public needed to be warned. No warnings were issued
and the detective was told by his supervisors it was a “State
Park’s problem,” not theirs.
Thereafter, four more shootings occurred in the area, two
on June 8 and July 22, 2017 on Las Virgenes Road adjacent to
the park, one on July 31, 2017 in the campground area, and one
on June 18, 2018, again on Las Virgenes Road. Detective Royal
again insisted that the Sheriff’s Department warn the public
about the series of shootings by issuing a public safety statement
about them. Again, superior officers at the Sheriff’s Department
denied the request and no public safety statement was issued.
After the third or fourth shooting all State and County
defendants knew there was a pattern and the shootings were
related.
After the third incident in January 2017, when Tatangelo’s
car was shot at while she was sleeping in campsite No. 57, state
park officers concluded the shootings were deliberate as no other
surrounding parks had been targeted. State Parks officers noted
there was an old transient camp behind the district office
maintenance area. At that point the State of California and
County of Los Angeles agreed to cooperate and cross-report to
each other information any similar incidents, suspicious persons
or other potentially related information in an effort to coordinate
information and a response to the shootings. However, the
agreed-upon cross-reporting never happened in that the Sheriff’s
Department failed to disclose similar incidents and accurately
inform the State defendants of prior related shootings.
Beaudette’s murder, the Sheriff’s Department stated to the public
its official position that the series of shootings were unrelated to
the Beaudette murder.
7
II. The Causes of Action
A. Negligence Against the State Defendants
The first cause of action alleges wrongful death/negligence by
the State defendants. These defendants “owned, leased, rented,
occupied, possessed, designed, constructed, developed,
landscaped, operated, inspected, repaired, maintained, modified,
managed, controlled, patrolled and/or supervised Malibu Creek
State Park. They and their employees were aware of at least
seven to nine unsolved gunshot shootings of humans and vehicles
in and adjacent to Malibu Creek State Park between November
2016 and June 22, 2018. The State defendants owed a duty to
plaintiffs, as invitees, guests, and paid customers, to “keep the
property in a reasonably safe condition and to give adequate
warning of anything that could be reasonably expected to harm
[Beaudette] and his two young daughters.” This duty of care
arose by virtue of a “special relationship” beyond what each
person generally owes and specifically imposes on the State
defendants “the duty to use reasonable measures to protect
patrons from foreseeable injury at the hands of third parties
acting negligently or intentionally.” The special relationship
imposed on the State defendants included “an affirmative duty to
protect them against unreasonable risk of physical harm.”
Plaintiffs allege a special relationship that “exists between a
possessor of land and a paid invitee and this relationship runs
not only to the property owner but its employees and agents.”
“The special relationship between a property owner, and
specifically an innkeeper such as Malibu [Creek] State Park here,
and the guest, paid customers using the property . . . places an
affirmative duty on the property owner and its employees and
agents to take reasonable precautions to protect patrons from
8
reasonably anticipative criminal conduct of unknown third
parties and other such foreseeable harms.”
“This duty further included a duty to maintain the
premises in a reasonably safe condition by, including, but not
limited to, inspecting, supervising, monitoring, controlling,
patrolling, and/or otherwise maintaining [Malibu Creek State
Park] and protecting persons legally on said property from
foreseeable harm, including harm by the serial shooter.”
Specifically plaintiffs allege the State defendants knew the
shooter had repeatedly shot into specific campsites immediately
adjacent to where Beaudette and his daughters were camping,
knew the shooter had previously attempted to shoot at
individuals, and knew the shooter would strike in the early
morning and dark hours when it was foreseeable that Beaudette
and his daughters would be sleeping in a tent. It was only as
“paid patrons of Malibu Creek Park Campground” that Beaudette
and his daughters “were able to use the campsite and spend the
night, thus placing him in harm’s way of the foreseeable shooter
in the early morning hours of June 22, 2018.”
The State defendants “created the very peril by inviting
visitors . . . to its property for a fee to spend the night on its
Campground without taking any protective measures or even
warning visitors . . . of the serial shooter and the prior incidents
occurring mere feet from their campsite.” “By selling patrons a
campsite for the purpose of sleeping outdoors and unprotected,
without any warning of the potential and likely danger posed by
the known serial shooter,” the State defendants provided
Beaudette and plaintiffs “a false sense of security while they
sleep outdoors and exposed to the conditions.” “As an innkeeper,
providing guests with a place to sleep for a fee, the State . . . owed
9
a duty to use utmost care and diligence to protect its patrons
staying on the Campground from known and otherwise
foreseeable criminal conduct.” “In the very least “the State had
“a duty to provide a warning adequate to enable paid
visitors/invitees to avoid the harm, or otherwise to protect
against it, . . . particularly from the harm from the serial shooter
known by . . . Defendants to be terrorizing the park for more than
a year and a half before [Beaudette] was killed.”
This cause of action alleges that the State defendants
breached their duty by failing “to provide any safeguards against
the known dangers of the active serial shooter or even a warning
about the foreseeable dangers posed by the shooter.” They were
aware of the numerous prior shootings at the park and failed to
take reasonable protective measures, including but not limited to,
installing 24 hour surveillance cameras, including signs warning
of the cameras, installing adequate lights of area around the
campsite to protect against non-invitees accessing the campsite,
precluding overnight camping at the specific campsite targets by
the shooters in the area around campsites 50 through 60, and/or
warning Beaudette and plaintiffs of the known dangers posed by
the shooter. Defendants’ failure to do anything created a
reasonably foreseeable risk that Beaudette and plaintiffs would
be injured by the shooter. “By doing nothing in response to at
least seven to nine prior shootings,” State defendants maintained
the property in such a way so as to increase the risk of criminal
activity by this shooter and expose [Beaudette and plaintiffs] to
foreseeable harm.” This cause of action also invoked Government
Code sections 815.2, 815.6 and 820 as a statutory basis for State
defendants’ liability for injury caused by their employees’ acts
and omissions.
10
As an alternate ground for negligence liability, plaintiffs
allege the State employees directed Beaudette and his daughters
to campsite No. 49, very close to where earlier shootings had
taken place, and then re-directed Beaudette to campsite No. 51, a
location even closer to where those earlier shootings had
occurred, without telling him of the risks they were encountering
in that campsite, even though the State employees knew of the
risk associated with camping in the area. Neither did the State
employees prevent access to the campsite to which they directed
Beaudette and his daughters. Nor did the State defendants
adequately train and supervise their managerial employees,
rangers, peace officers, other employees, agents and volunteers in
the control and direction of warning procedures.
The TAC alleges that had Beaudette been warned of the
risk, he would have declined to stay at the park to avoid exposing
himself and his young children to the risk. Alternatively, if the
State employees had prevented access to the areas of Malibu
Creek State Park in the zone of danger created by the known
shooter, Beaudette would not have been killed.
B. Wrongful Death/Negligence Against County
Defendants
The third cause of action for negligence/wrongful death is
against the County defendants. This cause of action alleges the
County defendants were all aware of least seven to nine unsolved
gunshot shootings of humans and vehicles between November
2016 and June 22, 2018. They owed a duty of care to overnight
campers and the public not to conceal from the public their
knowledge that there was a serial shooter terrorizing Malibu
Creek State Park, and to warn the public and overnight campers
of the series of shootings and the foreseeable danger at the state
11
park. Instead, they intentionally concealed that prior shootings
had occurred in and adjacent to the campsite and then
negligently and carelessly allowed Beaudette to camp there
without such warnings and then to be shot while asleep in his
tent with this children next to him.
Further, the County defendants knew that publicity about
specific criminal activity in a specific locale acts as a deterrent to
criminals, causes the law-abiding public in those areas to be more
vigilant, watchful and observant of suspicious behavior, scares
the criminal element from re-committing such crimes or causes
them to move off to another less publicized area, and would have
acted as a deterrent to camping in such a dangerous locale. The
County defendants willfully or maliciously disregarded the safety
of campsite patrons by failing to warn of the known perils of the
shootings. As a result, Beaudette in ignorance camped with his
children and was killed.
Alternatively, the County defendants agreed to cross-report
information to the State defendants to facilitate responding to the
shootings, yet failed to timely and accurately report the prior
related shootings, including the vehicular shootings adjacent to
the park on June 8, 2017, July 22, 2017 and June 18, 2018. Had
the County defendants performed their agreed-upon reporting
obligation, the State defendants, who relied on the cross-
reporting, would have taken appropriate measures to protect
patrons. The special relationship between the State defendants
and County defendants as to their cross-reporting agreement
imposed upon the County defendants a duty to take reasonable
steps to protect Beaudette and warn of foreseeable danger posed
to them at the campsite.
12
Plaintiffs allege statutory duties under Government Code
sections 815.2, subd. (a), 815.6 and 820, subd. (a), that is, public
employees have a statutory duty and are statutorily liable for
injury caused by their acts or omissions to the same extent as a
private person as provided by Government Code sections 820,
subd. (a) and 815.2, subd. (a). Further, under Government Code
section 815.6, the County defendants were liable for failing to
discharge their mandatory duty to protect Beaudette. The
burden to warn paying campers of the danger was “minuscule”
compared to the great harm of failing to do so.
C. Negligent Infliction of Emotional Distress/Bystander
Against All Defendants
The fourth cause of action alleges plaintiff daughters
witnessed the killing of their father and have suffered
immeasurably severe emotional distress under Dillon v. Legg
(1968) 62 Cal.2d 728. Plaintiffs seek to hold all defendants liable
under Government Code sections 815.2, 815.6 and 820.
III. The Order Sustaining the Demurrers to the Third
Amended Complaint
A. The County Defendants
The County defendants demurred to the third (wrongful
death—negligence) and fourth (negligent infliction of emotional
distress—bystander) causes of action in the Third Amended
Complaint.
The trial court sustained the demurrer of the County
defendants without leave to amend. In a meticulously detailed
opinion, the trial court concluded that the County defendants,
sued in their capacity as law enforcement agencies and agents,
had no duty to warn plaintiffs of the dangers posed by third
13
parties where the County defendants were not in a special
relationship with plaintiffs, as they might had been if they had,
for example, made an explicit promise to Beaudette and his
daughters that lulled them into a false sense of security. As the
trial court stated: “[T]he County defendants’ argument that
there was no duty to warn is dispositive.”
B. The State Defendants
The State defendants demurred to the first (wrongful
death—negligence) and fourth (negligent infliction of emotional
distress—bystander) causes of action in the Third Amended
Complaint. The trial court sustained the demurrer of the State
defendants with leave to amend.
As to the first and fourth causes of action, plaintiffs argued
that State employees directed Beaudette and his daughters
specifically to Campsite No. 51, knowing it was in the “zone of
danger” and without telling them about the active shooter. The
trial court sustained the demurrer on this point with leave to
amend to allow plaintiffs to further develop the notion that the
state employees’ actions constituted misfeasance. The trial court
stated in the order: “At the hearing, plaintiffs indicated that they
could allege that the State defendants’ employees’ actions
constituted misfeasance. Specifically, plaintiffs stated that they
could and would allege the following: (1) the physical relationship
between the in-park shootings to Campsite No. 51, as well as the
physical relationship between a shooting just outside the park
days before Beaudette was shot; and (2) the particular State
employee who assigned Beaudette to Campsite No. 51 (and
perhaps No. 49) personally believed that it was dangerous and
the employees would not go there at night specifically because
there was an active shooter at that time. Based on these
14
statements, the [c]ourt granted leave to amend on this specific
point, subject to additional restrictions . . . . The [c]ourt
emphasizes it is not saying these new allegations will pass
muster.”
Nevertheless, the trial court found that the State
defendants did not have a special relationship with Beaudette
and his daughters and therefore had no duty to warn them. The
trial court sustained the demurrer as to the first and fourth
causes of action on the ground that plaintiffs failed to allege a
duty. The only basis upon which the trial court granted plaintiffs
leave to amend was to allege misfeasance.1 On November 29,
2021, plaintiffs filed a Fourth Amended Complaint as to the State
defendants only.
IV. The Fourth Amended Complaint
In the Fourth Amended Complaint, plaintiffs added
allegations: Beaudette reserved campsite No. 49 but after
arriving at the park, he requested that his campsite be moved.
The State employees moved him and his daughters to campsite
No. 51 without telling them of a series of prior incidents (of which
the employees were aware) concerning a serial shooter that took
place approximately 100 feet from campsite No. 51, at campsite
1 We note our Supreme Court has disapproved the use of the
terminology “misfeasance” and “nonfeasance” in analyzing duty.
“ ‘The proper question is not whether an actor’s failure to exercise
reasonable care entails the commission or omission of a specific
act.’ (Rest. 3d Torts, [Liability for Physical and Emotional Harm
(2012)] § 37, com. c, p. 3.) Rather, it is ‘whether the actor’s entire
conduct created a risk of harm.’ (Ibid.)” (Brown v. USA
Taekwondo (2021) 11 Cal.5th 204 at p. 215, fn. 6. (Brown).)
15
Nos. 57 and 58. Two of the prior shootings were approximately
135 to 150 feet from campsites 49 and 51. The State employees,
supervisors, and managerial staff had allegedly discussed these
dangers with each other before and after the June 18, 2018
shooting of the Tesla and just before the shooting that killed
Beaudette on June 22, 2018. Consequently, the State employees
and agents were advised before and after the June 18, 2018
shooting and before Beaudette was shot on June 22, 2018 by
managerial staff and supervisors at Malibu Creek State Park not
to go alone to places within the park and not to go at night into
the park, including the campground area where Beaudette was
shot. “Despite the fact that these State Employees would not go
to that area, including campsites Nos. 49 and 51, alone or at
night because of the prior shootings, and had been warned not to
do so by STATE DEFENDANTS’ supervisors and managerial
staff, those State employees sent TRISTAN BEAUDETTE and
his daughters to the very place they were afraid to go and would
not go because of the shooter lurking in that zone of danger.” In
the meantime the State employees continued to sell patrons
campsites for the purpose of sleeping outdoors and unprotected
without warning of the potential and likely danger posed by the
serial shooter. The State employees provided plaintiffs with a
false sense of security while they slept outdoors exposed to the
conditions. The State employees affirmatively placed Beaudette
in harm’s way, lulling him into believing that he was not
subjecting himself and his children to risk of harm beyond what
was ordinarily associated with camping.
16
The trial court found that these allegations were predicated
on a “zone of danger” theory. The court believed that phrase is
shorthand for whether the June 22, 2018 shooting was a
“foreseeable risk.” The trial court found that it “is not required to
accept the legal conclusion that there was a ‘zone of danger’ (i.e.,
foreseeable risk of shooting) around Campsite Nos. 49 and 51.”
The court ruled it “cannot reasonably infer that there was a
foreseeable risk that Beaudette would be shot at Campsite Nos.
49 and 51 at the time he arrived such that the State defendants
placed him in the ‘zone of danger.’ Whether speaking in
geographic or temporal terms, the prior events do not create the
purported risk plaintiffs conclude existed at Campsite Nos. 49
and 51. The State defendants had no reason to believe that
directing Beaudette to those campsites would place him in a
dangerous position and create a serious risk of harm.” The trial
court concluded that “[n]either the campsites in question nor the
park in general was in the “zone of danger” and therefore there
was no alleged misfeasance by the State defendants.
The trial court reiterated its previous rulings that no
special relationship existed between the State defendants and
Beaudette and his daughters and therefore the State defendants
owed no duty to them.
On March 10, 2022 the trial court filed its order and
judgment sustaining the demurrer of the State defendants
without leave to amend. On March 8, 2022, a judgment of
dismissal was filed as to the County defendants. This appeal
followed.
17
DISCUSSION
I. Governing Principles
A. Demurrer and Standard of Review
“A demurrer tests the legal sufficiency of the factual
allegations in a complaint. We independently review the superior
court’s ruling on a demurrer and determine de novo whether the
complaint alleges facts sufficient to state a cause of action or
discloses a complete defense. [Citations.] We assume the truth
of the properly pleaded factual allegations, facts that reasonably
can be inferred from those expressly pleaded and matters of
which judicial notice has been taken. [Citations.] We liberally
construe the pleading with a view to substantial justice between
the parties [citations]; but, ‘[u]nder the doctrine of truthful
pleading, the courts “will not close their eyes to situations where
a complaint contains allegations of fact inconsistent with
attached documents, or allegations contrary to that which are
judicially noticed.” ’ ” (Ivanoff v. Bank of America, N.A. (2017)
9 Cal.App.5th 719, 725–726.)
“On appeal from a judgment of dismissal entered after a
demurrer has been sustained without leave to amend, unless
failure to grant leave to amend was an abuse of discretion, the
appellate court must affirm the judgment if it is correct on any
theory.” (Hendy v. Losse (1991) 54 Cal.3d 723, 742.) The burden
is on the plaintiff, however, to demonstrate the manner in which
the complaint might be amended. (Ibid.) Here, plaintiffs propose
no new factual allegations. Accordingly, they have waived any
claim that the trial court abused its discretion in failing to grant
leave to amend.
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B. Negligence and Standard of Review
In its seminal ruling in Brown, our Supreme Court clarified
“how courts should decide whether a defendant has a legal duty
to take action to protect the plaintiff from injuries caused by a
third party.” (Brown, supra, 11 Cal.5th at p. 209.) “To state a
cause of action for negligence, a plaintiff must establish the
defendant owed a legal duty of care. Generally speaking, all
persons have a duty to take reasonable care in their activities to
avoid causing injury, though particular policy considerations may
weigh in favor of limiting that duty in certain circumstances.”
(Ibid.) The Brown Court set out a two-step inquiry. “First, the
court must determine whether there exists a special relationship
between the parties or some other set of circumstances giving rise
to an affirmative duty to protect. Second, if so, the court must
consult the factors described in Rowland [v. Christian (1968)
69 Cal.2d 108] to determine whether relevant policy
considerations counsel limiting that duty.” (Ibid.)
In addition to stating a legal duty to use due care, a
plaintiff must show breach of such legal duty, and the breach as
the proximate or legal cause of the resulting injury. (Vasilenko v.
Grace Family Church (2017) 3 Cal.5th 1077, 1083.) The existence
of a duty is a question of law, which we review de novo. (Ibid.;
Regents of University of California v. Superior Court (2018)
4 Cal.5th 607, 620 (Regents) [determination whether a particular
relationship supports a duty of care rests on policy and is a
question of law].)
II. The County Defendants Owed No Duty to Plaintiffs.
In the TAC plaintiffs sue the County defendants in their
capacities as law enforcement agencies and law enforcement
19
officials. In the trial court, plaintiffs proffered two theories as to
why the County defendants are liable for Beaudette’s death.
First, they contended the County owed a duty of care to warn
campers, including plaintiffs, of the shootings near and around
Malibu Creek State Park, a duty they negligently failed to
perform. Second, they contended that by agreeing in 2017 to
“cross-report” any shootings outside the park to the State
defendants, the County defendants undertook a separate duty
towards the plaintiffs, a duty they then negligently breached.
Put another way, plaintiffs’ theory in this regard is that if the
County defendants had kept their promise and cross-reported the
three shootings that occurred after January 2017, Beaudette
would not have been killed.
On appeal, plaintiffs have not briefed their contention that
the County defendants, as law enforcement, had a duty to warn
plaintiffs of the shootings near and outside Malibu Creek State
Park. Because it has not been briefed, we deem it waived. (In re
Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133–1134.) The
only ground left supporting their negligence/wrongful death
claims is the contention that when the County defendants
undertook the obligation to “cross-report” shootings near and
outside the park to the State defendants, and then failed to do so,
they created and then breached a duty of care to plaintiffs.
The general duty to exercise due care for the safety of
others is broad, but it has limits. A defendant is generally not
liable for failing to protect another from a peril the defendant did
not create. (Brown, supra, 11 Cal.5th at p. 214.) As a general
rule a legal duty of care applies only when it is the defendant who
has created a risk of harm to the plaintiff, including when the
defendant is responsible for making the plaintiff’s position worse.
20
(Ibid.) The law does not impose a general duty to protect others
from the conduct of third parties. (Williams v. State of California
(1983) 34 Cal.3d 18, 23 (Williams) [no general “duty to come to
the aid of another”].)
The “no-duty-to-protect” rule embodies the principle that
“one owes no duty to control the conduct of another, nor to warn
those endangered by such conduct.” (Davidson v. City of
Westminister (1982) 32 Cal.3d 197, 203.) Nevertheless, there are
exceptions to the rule. One exception is where a person chooses
to “undertake” to come to the aid of another. Another exception
is where a special relationship exists between the parties or the
plaintiff and the third party or some other set of circumstances,
giving rise to an affirmative duty to protect. (Brown, supra,
11 Cal.5th at p. 215.)
Here plaintiffs argue the County defendants owed a duty of
care because they agreed to cross-report shootings outside the
Malibu Creek State Park to the State defendants; and when they
did not cross-report as promised, they increased the danger to
plaintiffs of being shot. This contention plainly implicates the
negligent undertaking exception to the “no-duty-to-protect” rule.
(Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 235, fn. 12.)
Under this doctrine, “one who undertakes to aid another is under
a duty to exercise due care in acting and is liable if the failure to
do so increases the risk of harm or if the harm is suffered because
the other relied on the undertaking.” (Paz v. State of California
(2000) 22 Cal.4th 550, 558–559.)
However, “the scope of any duty assumed depends upon the
nature of the undertaking.” (Delgado v. Trax Bar & Grill, supra,36 Cal.4th at p. 249.) Here, undertaking the duty to “cross-
report” to the State defendants did not create a duty of care to
21
these specific plaintiffs. The TAC does not allege facts showing
that the County defendants assumed a responsibility towards
particular individuals that was distinct from their duty to protect
the citizenry at large. Indeed, the allegation describes no more
than law enforcement’s duty to protect the general public as a
whole. (Lopez v. Southern Cal. Rapid Transit Dist. (1985)
40 Cal.3d 780, 799.)
Nor did the failure to “cross-report” increase the harm to
plaintiffs. It is conjecture to allege the State defendants’
response to the series of shootings depended upon information it
received or did not receive from the County defendants about
shootings near and outside Malibu Creek State Park. The State
defendants did not even respond to shootings within the park;
whether they would have responded to additional shootings
outside the park is speculation unsupported by factual
allegations. Moreover, the operative complaints allege the State
defendants were aware of the other shootings long before
Beaudette was killed. And, as the trial court noted, the County
defendants’ failure to cross-report as agreed was an effort to
alleviate the risk posed by the shootings. Their failure to cross-
report did not increase the harm.
We conclude the County defendants, as law enforcement
agents, owed no duty to plaintiffs separate and apart from the
duty they owe to the general public at large, a duty which, in and
of itself, cannot form the basis of negligence liability. (Lehto v.
City of Oxnard (1985) 171 Cal.App.3d 285, 291–292 [cause of
action for negligence does not encompass law enforcement’s duty
of care to the public at large].) No special relationship with
plaintiffs or increase of harm resulted by virtue of their
agreement and then failure to cross-report other shootings. The
22
trial court properly sustained the demurrer without leave to
amend.2
III. The State Defendants Owed a Duty to Warn of the
Shootings.
The trial court concluded neither the State defendants nor
any employee of the State defendants owed a duty to warn
Beaudette of the danger he was exposed to at the campsite at
which they assigned him to sleep. Plaintiffs contend the trial
court erred in finding no duty. We agree.
The no-duty-to-protect rule yields, as set forth above, to
special relationships. In a case involving harm caused by a third
party, a person may have an affirmative duty to protect the
victim from another’s harm if that person is in what the law calls
a “special relationship” with either the victim or the person who
created the harm. (Brown, supra, 11 Cal.5th at p. 215.) A “duty
to warn or protect may be found if the defendant has a special
relationship with the potential victim that gives the victim a
right to expect protection.” (Regents, supra, 4 Cal.5th at p. 619.)
In Regents, our Supreme Court considered the “common
features” of a special relationship. The Regents court observed
that “[g]enerally, the relationship has an aspect of dependency in
which one party relies to some degree on the other for protection.”
(Regents, supra, 4 Cal.5th at p. 620.) Further, “[t]he corollary of
2 Because we find no duty of care under the doctrine of
negligent undertaking as to the County defendants, we need not
reach issues of statutory immunity. (Williams, supra, 34 Cal.3d
at p. 22 [applicability of statutory immunity does not even arise
until it is determined that a defendant otherwise owes a duty of
care to the plaintiff.].)
23
dependence in a special relationship is control. Whereas one
party is dependent, the other has superior control over the means
of protection. ‘[A] typical setting for the recognition of a special
relationship is where “the plaintiff is particularly vulnerable and
dependent upon the defendant who, correspondingly, has some
control over the plaintiff’s welfare.” ’ ” (Id. at p. 621.) In
addition, “[s]pecial relationships also have defined boundaries.
They create a duty of care owed to a limited community, not the
public at large.” (Ibid.) Finally, the court noted that “although
relationships often have advantages for both participants, many
special relationships especially benefit the party charged with a
duty of care,” mentioning retail stores and hotels as examples.
(Ibid.)
Here, campers who pay a fee to sleep overnight in tents at a
state park are dependent on the state park for their security.
This is especially so while they are asleep. Generally speaking,
state park campers are not at the park on daily basis over a
period of time. They are in and out of the state park for their
camping experiences. The state park employees, on the other
hand, are familiar with the daily operation of the park and, as
the operative complaint alleges, operate, maintain, repair,
control, and patrol the state park. The park itself has its own
state park police force to patrol and secure the premises. The
state park employees have superior knowledge about happenings
in and around the park. It is they who assign campsites to
patrons, who cannot otherwise camp in the park without paying a
fee for a particular location to which they are assigned. The state
park employees alone enforce the park’s rules and regulations.
Campers entrust their safety to park police, certainly with the
expectation that the park police will at the very least advise them
24
of security concerns ongoing during their camping experience.
While state employees cannot conclusively control third parties
with criminal intent, they can warn campers of dangers of which
they become aware during the course of their employment, and of
which itinerant campers will not necessarily be cognizant.
Similar to duties placed upon innkeepers, bar owners, and
property owners, the duty to warn overnight campers of a series
of nighttime serial shootings is properly placed on the party with
superior information, superior control over the environment, and
superior ability to monitor the situation. In this case that would
be the State defendants.
Alternatively, we conclude “other circumstances,” in
addition to and distinct from the special relationship between the
State defendants and their overnight campers, warrant imposing
on the State defendants a duty to warn. Where, as alleged here,
State employees had concluded that the nighttime shootings were
deliberately directed at Malibu Creek State Park and no other
property, and where, as alleged here, Malibu Creek State Park
managerial staff had warned their own employees not to go to
that area of the park at night or alone, a duty to warn overnight
campers of the series of shootings is warranted.
How extensive is the duty to warn that we impose, whether
due to a special relationship or other circumstances? We hold
that the point at which the State defendants determine their own
employees’ safety is at risk is also the point at which they have a
duty to warn campers that their safety is at risk as well.
Having imposed a duty to warn, the court may still “depart
from the general rule of duty . . . if other policy considerations
clearly require an exception.” (Regents, supra, 4 Cal.5th at
p. 628.) The second step of the analysis is to determine whether
25
the Rowland factors justify excusing or limiting a defendant’s
duty of care. (Ibid; Doe v. Superior Court (2015) 237 Cal.App.4th
239, 245 [a special relationship must satisfy policy considerations
to obligate a defendant to act proactively as to possible future
harm from a third party].)
Under Rowland v. Christian, a court must determine
whether policy considerations require abrogation of the duty to
warn we have just imposed. Those considerations include:
• 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. (Rowland v. Christian, supra, 69 Cal.3d. at
p. 113)
Here the trial court did not proceed to the second step
because it found no duty. We therefore remand the matter to the
trial court to conduct a Rowland analysis in the first instance.
26
DISPOSITION
The judgment is affirmed as to the County defendants and
reversed as to the State defendants with directions to conduct a
policy consideration analysis under Rowland v. Christian.
Appellants are awarded costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, P. J.
We concur:
GRIMES, J.
VIRAMONTES, J.
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