Russell v. Dept. of Corrections and Rehabilitation

Filed 12/16/21
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(San Joaquin)
----
STEVEN E. RUSSELL, C087916
Plaintiff and Appellant, (Super. Ct. No. STK-CV-UPI-
2013-0008086)
v.
DEPARTMENT OF CORRECTIONS AND
REHABILITATION,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Joaquin County,
Barbara A. Kronlund, Judge. Reversed in part and affirmed in part.
Law Offices of Kenneth N. Meleyco, Kenneth N. Meleyco; The Ehrlich Law
Firm, Jeffrey I. Ehrlich for Plaintiff and Appellant.
* Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified
for publication with the exception of Part II.
1
Rob Bonta, Attorney General, Danielle F. O’Bannon, Senior Assistant Attorney
General, Pamela J. Holmes and Catherine Woodbridge, Supervising Deputy Attorneys
General, Jeremy C. Thomas, Deputy Attorney General for Defendant and Appellant.
This appeal arises out of the tragic rape and murder of Rachel Renee Russell,
perpetrated by her grandson, Sidney DeAvila. DeAvila suffered from severe mental
illness, and at the time of the murder he was on parole. Following her death, Russell’s
son, Steven Russell,1 brought an action against the California Department of Corrections
and Rehabilitation (Department), alleging that the Department’s parole agents had a
special relationship with Russell, and they failed to warn her of DeAvila’s dangerous
propensities. The jury agreed; it found the Department 60 percent at fault for Russell’s
death by failing to warn her of a foreseeable danger that was unknown to her, and
DeAvila 40 percent at fault. It awarded plaintiff $4.5 million in noneconomic damages,
which the trial court reduced to $2.7 million given the Department’s 60 percent of fault.
The Department appeals; it asserts it had no duty to warn Russell of DeAvila’s
dangerous propensities and, even if it had a duty to warn, it is immunized from liability.
Plaintiff claims on cross-appeal that the trial court erred in reducing the judgment
and imposing sanctions against trial counsel.
Although it is clear that the agents certainly could have done more to warn Russell
about the danger posed by her parolee grandson as well as to encourage her to take steps
to mitigate that danger, here we are compelled to agree with the Department that because
the facts presented were not sufficient to establish that there was a special relationship
between the agents and Russell, no duty to warn arose. Accordingly, we must reverse the
judgment, as we explain in the published portion of our opinion. Because we find no
duty to warn, we need not and do not discuss the immunity issue.
1Due to their shared surnames, we refer to Steven Russell as “plaintiff” and victim
Rachel Renee Russell as “Russell.”
2
In the unpublished portion of our opinion, we conclude the trial court did not
abuse its discretion in imposing sanctions against plaintiff’s counsel. We uphold the
sanctions order and reverse the judgment.
FACTS AND PROCEEDINGS
Pretrial Procedure
On February 23, 2013, DeAvila raped and murdered Russell at her home in
Stockton. DeAvila was on parole at the time of his crime.
In August 2013, plaintiff filed a complaint alleging that the negligence of the
Department’s agents contributed to the murder. Plaintiff later amended the pleading to
include allegations that DeAvila’s parole agents knew he intended to rape and kill Russell
but failed to warn her. Plaintiff abandoned those allegations after discovery revealed no
evidence anyone knew DeAvila intended to harm Russell. In March 2017, plaintiff filed
a second amended complaint alleging DeAvila was “released on parole and placed by
parole [agents] into the home of [Russell] where he was to live.” The complaint alleged
two parole agents, Roy Lacy and Adolfo Romero, formed a special relationship with
Russell that gave rise to a duty to warn her of DeAvila’s dangerous propensities.
The Department demurred to the second amended complaint; it asserted plaintiff
failed to plead facts sufficient to constitute a cause of action because: (1) plaintiff failed
to plead facts sufficient to demonstrate special relationship had been established; (2)
parole agents did not “place” DeAvila with Russell; (3) Russell did not rely on any
representation by Romero that DeAvila was safe to be around her; and (4) there was no
evidence any parole agent was aware of a specific threat to Russell such that they had a
duty to warn her. The Department further claimed immunity under Government Code
sections 820.2 and 845.8.
The trial court overruled the demurrer. The court concluded as relevant here that
the second amended complaint alleged a special relationship between Romero and
Russell, and plaintiff alleged the Department released DeAvila knowing he was going to
3
Russell’s residence and failed to warn her of his dangerousness. The Department then
moved for summary judgment in part based on its assertion that plaintiff could not
establish that the Department’s agents owed a duty of care to Russell, and therefore they
had no duty to warn her. The trial court denied the motion. The court found the
following triable issues of fact: (1) whether Russell had a special relationship with
Romero; (2) whether Romero’s instruction to DeAvila and Russell that DeAvila could
remain at Russell’s home during the day was the equivalent of “placing” DeAvila in
Russell’s home; (3) whether Romero’s conduct of telling DeAvila he could be at
Russell’s home during the daytime, but had to leave at night, created an unreasonable risk
of harm to Russell; (4) whether Russell was a foreseeable victim; (5) whether the
Department had a duty to warn Russell of DeAvila’s dangerousness; (6) whether the
Department’s conduct of telling Russell that DeAvila could be at her home during the
daytime, but not at night, created a foreseeable risk to Russell; (7) whether the
Department was negligent in monitoring DeAvila; and (8) whether the Department’s
failure to warn Russell of DeAvila’s dangerousness was a substantial factor in Russell’s
death.
During the hearing on the motion, the trial court stated that the issue of whether
Russell had a special relationship with one or both of the parole agents is “clearly a
factual issue” that is “not something the Court can decide here.” Neither party disagreed
with that assertion. During motions in limine, the court again asserted that the existence
of a special relationship was a question for the jury.
Jury trial commenced in June 2018. As relevant here, the jury was tasked with
determining whether a special relationship existed that gave rise to a duty to warn.
4
Background
Russell raised DeAvila and treated him as her son. DeAvila first received
psychiatric services at age 12 and was prescribed anti-psychotic medication at age 19.
He began to engage in criminal behavior and started receiving treatment from the
Department in 2004.
Lacy was DeAvila’s parole agent from 2007 to early May 2012, and Romero was
DeAvila’s parole agent from May 2012 to February 2013, the month of Russell’s murder.
Lacy’s Supervision of DeAvila and Contact with Russell
In July 2007, DeAvila was arrested while on parole for assaulting a co-resident;
Lacy documented the incident and noted DeAvila was a danger to himself and others. In
August, Lacy discovered that DeAvila tested positive for cocaine use.
In October 2008, DeAvila was arrested and charged with assault with a deadly
weapon on his girlfriend. He was found incompetent to stand trial and received
treatment. He was tried and convicted in June 2009 and was released on parole in
December 2009. In January 2010, DeAvila tested positive for cocaine, and Lacy
recommended that DeAvila continue on parole subject to increased drug testing. Lacy
checked a box indicating DeAvila’s risk level as “high-violent.” In November 2010,
DeAvila tested positive for methamphetamine.
Because DeAvila lived with Russell while on parole, Lacy went to Russell’s house
at least twice a month to check on and drug test DeAvila. These visits were never longer
than 10 to 15 minutes. Sometimes Lacy would see Russell in her yard while he was in
the area visiting other parolees, and he would stop, say hello, and see how she was doing.
Lacy could not estimate how many times he checked in at Russell’s house during the
years he supervised DeAvila.
Lacy had a good rapport with Russell, and plaintiff testified Russell had warm
feelings toward Lacy and trusted him because he seemed to care about DeAvila’s well-
being. According to Lacy, he considered Russell to be a “very nice lady,” although he
5
did not describe them as friends. Lacy never gave Russell his personal cellphone
number, he never sat on her porch and drank coffee with her, he never hugged her, and he
addressed her as “Ms. Russell” and she addressed him as “Mr. Lacy.”
Russell received DeAvila’s monthly social security checks, and Lacy advised
Russell against giving DeAvila all of these funds at once so he would have money to last
through the month. Lacy knew at the time of that advisement that DeAvila was using
cocaine, and he probably told Russell that DeAvila tested positive for cocaine. Lacy was
aware DeAvila had tested positive for methamphetamine use in November 2010, but he
did not remember informing Russell of that fact.
Lacy testified that he was never aware that DeAvila posed a threat to Russell, and
Russell never told him that she was concerned for her safety. He never told her DeAvila
was classified as a “high-violent” parolee, but he never told Russell that it was safe for
DeAvila to live in her house.
Plaintiff saw Lacy at Russell’s house twice in 2010 or 2011. The first time Lacy
was drug testing DeAvila, and Lacy told DeAvila, “ ‘you better make sure you’re doing
what your grandma says or else.’ ” The second time, plaintiff saw Lacy sitting on
Russell’s porch; he did not see Lacy drinking coffee, but there were two coffee cups. He
overheard Lacy call Russell “Mother Russell,” and Russell called him “Lacy.” Russell’s
neighbor testified she saw Lacy give Russell a “side hug” as he was leaving her house,
and she heard Lacy call Russell “Rachael,” and Russell say “okay, Roy.”
In February 2011, Russell told Lacy that DeAvila appeared unstable. Lacy noted
DeAvila “was talking fast and upset,” and he ordered DeAvila to report to the outpatient
clinic where parolees can obtain mental health treatment and medication.
In March 2011, Lacy reported that DeAvila was “doing much better” “so long as
he takes his meds.” Days later, Russell told Lacy that she wanted DeAvila to find his
own place to live. Four days after that, DeAvila was arrested for inappropriately
touching and soliciting sex from several minors aged eight to 16; he was convicted of a
6
sex offense requiring lifetime sex offender registration under Penal Code section 290 and
was sent to prison. Lacy again described DeAvila as “High Violent.”
Psychological Reports
In December 2011, DeAvila was transferred to Atascadero State Hospital. In
February 2012, psychologist Dr. Michael Selby concluded DeAvila had a severe mental
illness, noted DeAvila’s admission that he experienced auditory hallucinations, and
observed DeAvila had a history of paranoid delusional thought process. He diagnosed
DeAvila with schizoaffective disorder and alcohol dependence. Selby noted DeAvila’s
severe mental disorder was a cause or aggravating factor in the commission of the crimes
that resulted in his imprisonment in 2008, he was not taking his medication at the time of
his crime, and his mental illness was not in remission despite treatment in a highly
structured setting. Selby noted DeAvila had a history of treatment noncompliance, and
that DeAvila stated he was not planning to take his medication following his release.
Finally, Selby concluded DeAvila “represent[ed] a substantial danger of physical harm to
others by reason of his severe mental disorder.”
Two days later, psychologist Dr. Robert Suiter evaluated DeAvila and concluded
he suffered from a severe mental disorder. Suiter noted DeAvila’s history of treatment
noncompliance and concluded “there is no reasonable likelihood he would follow
through with treatment” if released. Suiter observed DeAvila demonstrated homicidal
ideation specific to his delusional system, and he had indicated he would act out
aggressively towards others he perceived as persons who would harm him. Suiter
concluded: “In total, there is more than sufficient data to conclude [DeAvila] presents a
significant risk of harm to others.”
Neither report discussed whether DeAvila posed a threat to Russell specifically.
In April 2012, DeAvila was released from Atascadero State Hospital, and Lacy
transported him to the parole office in Stockton. Upon release, DeAvila went to stay with
Russell at her house.
7
Romero’s Supervision of DeAvila and Contact with Russell
In May 2012, Romero began supervision of DeAvila; Romero worked in a unit
that supervised sex-offender parolees and supervised 20 to 30 parolees. Romero did not
read the psychological reports written by Selby and Suiter, although they were available
to him in DeAvila’s file. Romero agreed that, had he been aware of the information
contained in the reports written by Selby and Suiter, he would have spoken to his
supervisor and potentially prohibited DeAvila from being in Russell’s home. DeAvila’s
file contained a post-it note stating “Racheal” was DeAvila’s “Grandma” and listed her
telephone number.
As a registered sex offender, DeAvila was prohibited from residing within 2,000
feet of a school or a park where children regularly congregate. (Pen. Code, § 3003.5.)
He was also prohibited from establishing a residence not preapproved by his parole agent
or consuming alcohol, and was required to comply with curfew restrictions of 7:00 p.m.
to 7:00 a.m. and appear at the parole outpatient clinic and a mental health program as
directed by his parole officer. He was monitored by an electronic global positioning
systems (GPS) unit.
On May 4, DeAvila informed the parole office that he was homeless, and the
office issued him a voucher to stay at a local inn. On May 5, DeAvila was out of his
approved residence past curfew. On May 7, Romero went to find DeAvila at the inn
where he stayed; DeAvila smelled of alcohol and had cut off his GPS device. Romero
arrested him for parole violations, and he was released from jail on May 22.
On May 23, DeAvila reported to the parole office accompanied by Russell.
DeAvila stated he was transient, and Russell said she wanted DeAvila to stay at her
house. Romero explained that DeAvila could not live with Russell due to the proximity
of her house to a school. Russell said that DeAvila was “doing fine,” that she was
“happy with him,” and was not happy that he could not live with her.
8
On May 24, DeAvila reported to the parole office smelling of alcohol and
marijuana. DeAvila had failed to report to the parole outpatient clinic and violated
curfew the night before. Romero arrested DeAvila and took him to jail; the jail released
him on June 12.
On June 13, DeAvila arrived at the parole office accompanied by Russell. The
parole agent on duty again explained to Russell that DeAvila could not live with her
because her house was too close to a school.
On June 29, Russell and Romero had a conversation about DeAvila at Russell’s
house. Russell said DeAvila was doing “fine,” and she did not understand why he could
not live with her. Romero replied that DeAvila could be there during the day to charge
his tracking device, eat, and shower, but he had to leave at night. Romero told Russell
that DeAvila could live at Mormon Slough, a dry creek bed where homeless people live
and where other sex offenders who Romero supervised live. Russell did not want
DeAvila living at Mormon Slough, but she agreed not to allow him stay in her house at
night.
Plaintiff testified that, at some point in 2012--possibly at the same time Romero
advised Russell that DeAvila could stay with her during the daytime--Romero promised
Russell that he would find DeAvila his own place to live. Plaintiff believed that Romero
made the promise because Russell expressed concern about DeAvila living on the streets.
Romero denied making such a promise.
On July 3, Romero requested a warrant because DeAvila’s tracking device was not
charged and he could not find DeAvila; Romero noted DeAvila was transient, unstable,
had just been released from a mental hospital, and had a history of assaulting peace
officers. On July 9, DeAvila was arrested; he was released the next day with instructions
to report to the parole office. DeAvila did not report, and Romero requested another
warrant. Romero noted DeAvila’s continued presence in the community posed a threat to
public safety.
9
On July 13, DeAvila was admitted into the County Mental Health Department
after he said he wanted to kill himself. On July 23, Romero received a call that DeAvila
was scheduled to be released the following day. DeAvila reported to Romero on July 24,
and the parole office issued a voucher for DeAvila to stay at a local inn for a week.
On July 31, DeAvila reported to the parole office and admitted to using
methamphetamine for the past few days. Romero instructed him to attend a literacy class
the following day, and DeAvila arrived at the class smelling of alcohol and admitted to
using methamphetamine for the past week. Romero saw blisters in DeAvila’s mouth that
he recognized as a symptom of methamphetamine use; Romero knew that
methamphetamine use can increase the dangerousness of an unstable person.
On August 14, Romero arrested DeAvila for a curfew violation and for using
marijuana and methamphetamine; he was released from jail the following day. He was
arrested again on August 16 for using methamphetamine. Romero took him to jail; this
was the last time Romero saw DeAvila. DeAvila was released on August 20, but was
held by San Joaquin Behavioral Health Services until the following day because he was
suicidal.
DeAvila absconded, was arrested, was released, and absconded again. Romero
requested warrants each time he absconded, noting DeAvila’s continued presence in the
community posed a threat to public safety.
On November 21, DeAvila was arrested at Russell’s house by an agent from the
Department’s fugitive apprehension team who was armed and wearing a bulletproof vest,
and was accompanied by additional law enforcement. Russell answered the door and
gave the officers permission to enter. A report to Romero about the arrest noted that it
appeared DeAvila was living at Russell’s house. The report also stated Russell said
DeAvila stayed with her because he refuses to live on the street. Romero did not check to
see if DeAvila was living at Russell’s house or report to the parole board that DeAvila
10
was living at Russell’s house because he did not approve of DeAvila living there, and
DeAvila was only authorized to be there during the daytime.
On November 22, the jail released DeAvila, and later that day Romero received an
alert that DeAvila had removed his tracking device. Romero requested a warrant, which
noted that DeAvila’s whereabouts were unknown, and he posed a threat to public safety.
Russell’s Murder
Sometime in December 2012 or January 2013, Russell called plaintiff and told
him DeAvila was at her house, under the influence of cocaine, and acting out. Unable to
control him, Russell “had to pull [out] a knife” to force him to leave. According to
plaintiff, Russell told him: “It wasn’t a big thing, you know, because he never was a
threat. He was just like a deranged spoiled teenager when he was under the influence.”
At that point, Russell did not want DeAvila at her house because she was tired of the “in-
and-out mess” and wanted to live alone. Plaintiff testified that Russell did not attempt to
find DeAvila housing because Romero had promised that he would do so. He added that,
at some point, he asked Russell to kick DeAvila out of her home, but she did not do so
because Romero was helping to find him a place to live.
On February 13, 2013, authorities located and arrested DeAvila and took him to
jail. DeAvila was released on February 20.
On February 23, DeAvila raped and murdered Russell at her home. DeAvila put
Russell’s covered but naked body in a wheelbarrow, which he left in the back yard.
Plaintiff discovered her body three days later.
Expert Testimony
Retired police officer Ron Martinelli testified for the plaintiff as a law
enforcement expert. Martinelli trained parole agents, but he had no experience
supervising parolees or working as a parole agent. Martinelli testified that DeAvila’s
parole violations dating back to May 2012 demonstrated DeAvila was spiraling out of
control, indicating his condition was worsening. According to Martinelli, “[t]he only
11
impact strategy that would now work” would be involuntary commitment in a psychiatric
facility under Welfare and Institutions Code section 5150. Martinelli opined that the
parole agents were obligated to inform Russell that DeAvila had a mental disorder that
was not in remission, and to warn her that she was at risk because DeAvila “presented a
dangerous circumstance.”
Motion for Nonsuit and Subsequent Jury Instructions and Questions
At the conclusion of plaintiff’s evidence, the Department moved for a nonsuit. It
again argued no evidence supported a finding of the existence of a special relationship
between either agent and Russell, and immunity. The trial court denied the motion,
concluding that “the standards for granting nonsuit have not been met.”
The jury was given an instruction stating: “There is no general duty to warn
others of third party’s conduct. There is a limited exception to this rule if a special
relationship exists between the defendant or the third person creating the danger. A
special relationship and thus a duty to warn may arise: [¶] [(1)] where the defendant
engages in conduct that creates or increases the peril to an individual and the peril is not
known or readily discoverable[;] [¶] [or (2)] where the defendant induces detrimental
reliance or lulls an individual into a false sense of security.” The jury was also given an
instruction that read: “A special relationship between one parole agent and another
person does not impose a duty of care on the employing agency or any subsequently
involved employees.”
During deliberations, the jury asked the court to provide a definition of “special
relationship.” The trial court gave the jury a list of eight factors for it to consider in
determining if a special relationship existed. The list was not exclusive, but included:
(1) whether agents of the Department used special names to refer to Russell; (2) whether
agents would stop by to visit Russell when checking on other parolees; (3) whether
agents gave Russell their personal telephone numbers and told her to call them if she had
any problems with DeAvila; (4) whether agents had knowledge of the sex offender laws
12
and instructed Russell that DeAvila could stay in her home during the day, but had to
leave at night; (5) whether agents led Russell to believe that her permitting DeAvila to
stay in her home was safe, when the agents knew that to be false; (6) whether the agents’
actions caused Russell to trust and rely on the agents’ advice about DeAvila’s propensity
or lack of propensity for violence toward Russell; (7) whether Russell was dependent on
the agents having superior control or knowledge concerning DeAvila, and if so, whether
the agents did or did not act reasonably in advising her or protecting her from such
violence; and (8) whether the agents “placed” DeAvila in Russell’s home by allowing
DeAvila to reside in Russell’s home.
Verdict and Post-Trial Procedure
The jury found: (1) a Department agent or agents knew or should have known that
DeAvila was a foreseeable danger to Russell; (2) the agent or agent’s instruction to
Russell that DeAvila could remain in Russell’s home during the day did not amount to
“placing” DeAvila in Russell’s home; (3) there was a special relationship “between
[Department] Parole Agents or an Agent and [Russell]”; (4) an agent or agents failed to
warn Russell of the foreseeable danger that was unknown to her; (5) the failure to warn
was a substantial factor in causing Russell’s death; (6) DeAvila’s dangerousness was not
known or readily discoverable to Russell before February 23, 2013; and (7) DeAvila was
at fault for and a substantial factor in causing Russell’s death. The jury found plaintiff’s
total damages were $4.5 million, that DeAvila was 40 percent at fault, and the
Department’s agents were 60 percent at fault. The trial court entered judgment against
the Department for $2.7 million plus costs, which reflected the jury’s finding that the
Department was 60 percent at fault for Russell’s death.
Plaintiff and the Department each moved for new trial and judgment
notwithstanding the verdict (JNOV). Plaintiff moved for a new trial as to $1,500 in
sanctions imposed by the court against his trial counsel for his failure to follow a court
13
order during his opening statement at trial.2 The trial court denied that motion.
Plaintiff’s motion for JNOV sought to reinstate the $4.5 million jury award; the court
denied that motion as well.3
The Department’s motion for JNOV asserted there was no substantial evidence to
support the jury’s special verdict findings that (1) the Department’s agents knew or
should have known that DeAvila was a foreseeable danger to Russell; (2) a special
relationship existed between the Department’s agents and Russell; and (3) failure to warn
Russell was a substantial factor in causing her death.
Applying the substantial evidence standard, the trial court denied the Department’s
motion for JNOV. The court stated it could not “say that there was no substantial
evidence offered during trial that supported the jury finding a special relationship existed
supporting a duty by [the Department] to warn [Russell] about DeAvila’s known
dangerous propensities which created a foreseeable risk of harm to [Russell].” The court
then stated it “does believe [p]laintiff has established a special relationship and duty
under a theory of defendant having engaged in conduct that increased the peril to
[Russell], and/or the theory of defendant having made representations or otherwise
having engaged in conduct that included detrimental reliance or that lulled [Russell] into
a false sense of security.”
The Department’s motion for new trial similarly asserted that plaintiff failed to
produce sufficient evidence to support a special relationship, a duty to warn, or a causal
relationship between the Department’s actions and Russell’s murder. The trial court
denied the motion, finding the Department’s motion procedurally deficient, but noting it
2 We discuss this sanction in detail in the unpublished portion of our opinion, post.
3 We omit any discussion of the propriety of this holding given our reversal of the
judgment.
14
would have denied the motion even if it were properly before the court for reasons
similar to those providing the basis for denying the Department’s motion for JNOV.
The Department timely appealed; plaintiff timely cross-appealed. After multiple
extensions of time for record preparation and numerous continuances in the briefing
schedule, the case was fully briefed on December 23, 2020, calendared for argument on
September 8, 2021, and argued and submitted on November 19, 2021.
DISCUSSION
I
The Department’s Duty to Warn Russell
The Department contends the trial court erred by denying its motions for nonsuit
and JNOV because there is insufficient evidence the parole agents had a duty to warn
Russell of DeAvila’s dangerous propensities. As we will explain, we agree that the
evidence elicited at trial did not establish that either agent had a duty to warn Russell of
the danger posed by her grandson.
A. Legal Background
Whether the Department had a duty to warn Russell turns on ordinary and general
principles of tort law. (Lugtu v. California Highway Patrol (2001) 26 Cal.4th 703, 715-
716.) “It is a fundamental principle of tort law that defendants are liable for injuries
caused by their failure to exercise reasonable care.” (Myers v. Quesenberry (1983) 144
Cal.App.3d 888, 891.) However, “ ‘[t]here must be a legal duty to exercise care under
the circumstances, owed to the person injured, and a breach of that duty must be the
proximate cause of the resulting injury. [Citations.] Thus, the determination that a duty
of care exists is an essential precondition to liability founded on negligence.’ ” (Ibid.)
Our Supreme Court recently clarified that determining whether to recognize a duty
to warn is governed by a two-step inquiry. (Brown v. USA Taekwondo (2021) 11 Cal.5th
204, 209.) “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
15
to [warn]. 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.) As we will explain, because we conclude there was
no special relationship or any other set of circumstances giving rise to a duty to warn, we
end our analysis there and do not apply the Rowland factors.
“As a general rule, one owes no duty to control the conduct of another, nor to warn
those endangered by such conduct. Such a duty may arise, however, if ‘(a) a special
relation exists between the actor and the third person which imposes a duty upon the
actor to control the third person’s conduct, or (b) a special relation exists between the
actor and the other which gives the other a right to protection.’ ” (Davidson v. City of
Westminster (1982) 32 Cal.3d 197, 203 (Davidson); see also Tarasoff v. Regents of
University of California (1976) 17 Cal.3d 425, 435 (Tarasoff) [“When the avoidance of
foreseeable harm requires a defendant to control the conduct of another person, or to
warn of such conduct, the common law has traditionally imposed liability only if the
defendant bears some special relationship to the dangerous person or to the potential
victim”]; Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1129 [duty to warn may
be found if the defendant has a special relationship with the potential victim that gives the
victim a right to expect protection].) “ ‘ “This rule derives from the common law’s
distinction between misfeasance and nonfeasance, and its reluctance to impose liability
for the latter.” ’ ” (Zelig, at p. 1129.)
“Relationships that have been recognized as ‘special’ share a few common
features. Generally, the relationship has an aspect of dependency in which one party
relies to some degree on the other for protection.” (Regents of University of California v.
Superior Court (2018) 4 Cal.5th 607, 620-621.) “The corollary of 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
16
defendant who, correspondingly, has some control over the plaintiff’s welfare.” ’ ” (Id. at
p. 621.) “Special relationships also have defined boundaries. They create a duty of care
owed to a limited community, not the public at large.” (Ibid.) Our Supreme Court has
described the circumstances under which the government may be liable based on law
enforcement’s failure to act reasonably in protecting members of the public: the factors
to a finding of a special relationship include “detrimental reliance by the plaintiff on the
officer’s conduct, statements made by them which induced a false sense of security and
thereby worsened her position.” (Williams v. State of California (1983) 34 Cal.3d 18,
28.) “Recovery has been denied, however, for injuries caused by the failure of police
personnel to respond to requests for assistance, the failure to investigate properly, or the
failure to investigate at all, where the police had not induced reliance on a promise,
express or implied, that they would provide protection.” (Id. at p. 25.)
Bearing in mind these principles, we review several cases considering whether an
agent of the government had a duty to warn. In Morgan v. County of Yuba (1964) 230
Cal.App.2d 938, a deputy sheriff voluntarily promised to warn the victim if a prisoner,
who had threatened the victim’s life, was released. The prisoner was released, and he
killed the victim. The appellate court recognized an exception to the general rule of
“nonliability for an unperformed gratuitous undertaking,” or nonfeasance, “ ‘where a
person, in reasonable reliance thereon, suffers harm, as by refraining from securing other
necessary assistance.’ ” (Id. at p. 944.)
In Johnson v. State of California (1968) 69 Cal.2d 782 (Johnson), an agent of the
government requested that the plaintiff provide a foster home for a 16-year-old boy
without warning the plaintiff of the boy’s homicidal tendencies and violent background.
Subsequently the boy attacked and injured the plaintiff. The plaintiff filed suit against
the state for failing to warn her about the boy’s history and propensity for violence. Our
Supreme Court did not discuss the state’s duty in terms of being born of a special
relationship, but concluded that “the state’s relationship to [the] plaintiff was such that its
17
duty extended to warning of latent, dangerous qualities suggested by the parolee’s history
or character.” (Id. at p. 785.) It added that a duty is imposed “upon those who create a
foreseeable peril, not readily discoverable by endangered persons, to warn them of such
potential peril. Accordingly, the state owed a duty to inform [the plaintiff] of any matter
that its agents knew or should have known that might endanger [the plaintiff’s] family; at
a minimum, these facts certainly would have included ‘homicidal tendencies, and a
background of violence and cruelty’ as well as the youth’s criminal record.” (Id. at pp.
785-786, italics added, fn. omitted.)
In Tarasoff, supra, 17 Cal.3d 425, our high court held that a defendant therapist
had a special relationship with the patient giving rise to a duty to warn a potential victim
where the patient made specific threats against the victim. (Id. at p. 436.) However, the
defendant law enforcement who had briefly detained the patient had no duty of care to
the decedent because there was no “special relationship” between them and either the
victim or the patient. (Id. at p. 444.) The court found no facts to support a cause of
action under Restatement Second of Torts (1965) section 321, which provides: “ ‘If the
actor does an act, and subsequently realizes or should realize that it has created an
unreasonable risk of causing physical harm to another, he is under a duty to exercise
reasonable care to prevent the risk from taking effect.’ ” (Id. at p. 444, fn. 18.)
In Thompson v. County of Alameda (1980) 27 Cal.3d 741, the plaintiffs brought an
action against a county after their five-year-old son was killed by a juvenile offender
within 24 hours of the offender’s release on temporary leave. The plaintiffs alleged that
the county was negligent in releasing the juvenile into the community and for failing to
warn parents in the vicinity of the juvenile’s release. The trial court sustained the
county’s demurrer, and our Supreme Court affirmed. The court distinguished Johnson,
supra, 69 Cal.2d 782; it observed that the county neither had a special and continuous
relationship with the plaintiffs nor knowingly placed the decedent into a foreseeably
dangerous position. (Id. at p. 751.) The court distinguished Tarasoff, supra, 17 Cal.3d
18425 on the basis that the decedent was not a foreseeable or readily identifiable target of
the juvenile’s threats. (Id. at p. 753.) The court held: “[P]ublic entities and employees
have no affirmative duty to warn of the release of an inmate with a violent history who
has made nonspecific threats of harm directed at nonspecific victims.” (Id. at p. 754.)
In Davidson, supra, 32 Cal.3d 197, the assailant was under surveillance by two
police officers for the purpose of preventing assaults and apprehending a man who had
previously stabbed other women in the area. The officers were aware of the plaintiff’s
presence and had identified the assailant as the likely perpetrator of the previous assaults,
but they did not warn the plaintiff. Eventually, the assailant stabbed the plaintiff. The
trial court sustained the defendants’ demurrer, and our Supreme Court agreed the officers
had no duty to warn the plaintiff because there was no special relationship between the
officers and the plaintiff. (Id. at p. 203.) The court recognized a common theme running
through cases in which a special relationship had been found “was the voluntary
assumption by the public entity or official of a duty toward the injured party.” (Id. at
p. 206.) “ ‘Absent an indication that the police had induced decedent’s reliance on a
promise, express or implied, that they would provide her with protection, it must be
concluded that no special relationship existed and that appellant has not stated a cause of
action.’ ” (Ibid., quoting Hartzler v. City of San Jose (1975) 46 Cal.App.3d 6, 10.)
The court also recognized that a special relationship could be predicated on a
victim’s dependence upon the police for protection. (Davidson, supra, 32 Cal.3d at p.
207.) But the court distinguished Johnson, supra, 69 Cal.2d 782 by concluding the
victim’s peril was not created by the officers, and the victim did not rely on the officers
for protection. (Ibid.) The court emphasized: “There is simply no reason to speculate
that anyone . . . would have acted differently had the officers not placed the laundromat
under surveillance.” (Ibid.)
19
In Carpenter v. City of Los Angeles (1991) 230 Cal.App.3d 923 (Carpenter), a
witness testified in criminal proceedings. After the hearing, the witness asked a police
detective if he should be concerned for his safety, and the detective told the witness “he
did not have anything to worry about.” (Id at p. 927.) The witness relied on the
detective’s statement and did not act to protect himself. (Id. at pp. 931-932.) The police
learned that the suspect had put “ ‘a contract hit’ ” on the witness but failed to warn him,
and the witness was later shot. (Id. at pp. 927-929.) The appellate court recognized that
a plaintiff may establish a special relationship by showing reliance on the officers’
conduct and statements, which induced a false sense of security and thereby worsened the
plaintiff’s position. (Id. at p. 931.)
B. Standard of Review
Whether a defendant has a special relationship giving rise to a duty to warn rests
on policy and is a question of law. (Regents of University of California, supra, 4 Cal.5th
at p. 620; see also Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 770-771 [before
deciding whether substantial evidence supports jury verdict as to causation, reviewing
court reviews de novo whether the defendant owed duty of reasonable care]; Parsons v.
Crown Disposal Co. (1997) 15 Cal.4th 456, 465 [existence of duty is a question of law
“particularly amenable to resolution by summary judgment”]; Ballard v. Uribe (1986) 41
Cal.3d 564, 572, fn. 6 [“[A] court’s task—in determining ‘duty’—is not to decide
whether a particular plaintiff’s injury was reasonably foreseeable in light of a particular
defendant’s conduct, but rather to evaluate more generally whether the category of
negligent conduct at issue is sufficiently likely to result in the kind of harm experienced
that liability may appropriately be imposed.”]; Isaacs v. Huntington Memorial Hospital
(1985) 38 Cal.3d 112, 124 [existence of a duty is a question of law to be decided by the
court]; Thompson v. County of Alameda, supra, 27 Cal.3d at p. 750 [“ ‘[L]egal duties are
not discoverable facts of nature, but merely conclusory expressions that, in cases of a
particular type, liability should be imposed for damage done’ ”]; Barenborg v. Sigma
20
Alpha Epsilon Fraternity (2019) 33 Cal.App.5th 70, 76 [whether a duty of care existed
under the special relationship doctrine is a question of law]; Minnegren v. Nozar (2016)
4 Cal.App.5th 500, 507 [“While the existence of a duty of care is a question of law,
breach of that duty and resulting damage are questions of fact”]; Jackson v. Ryder Truck
Rental, Inc. (1993) 16 Cal.App.4th 1830, 1838 [“ ‘While breach of duty and proximate
cause normally present factual questions, the existence of a legal duty in a given factual
situation is a question of law for the courts to determine’ ”]; Clarke v. Hoek (1985) 174
Cal.App.3d 208, 213-216 [trial court must decide whether there was a duty in the first
place, including whether there was some “ ‘special relationship’ ”].)
“Although duty is a legal question, the factual background against which we
decide it is a function of a particular case’s procedural posture. On review of a judgment
of nonsuit, as here, we must view the facts in the light most favorable to the plaintiff.
‘[C]ourts traditionally have taken a very restrictive view of the circumstances under
which nonsuit is proper. The rule is that a trial court may not grant a defendant’s motion
for nonsuit if plaintiff’s evidence would support a jury verdict in plaintiff’s favor.
[Citations.] [¶] In determining whether plaintiff’s evidence is sufficient, the court may
not weigh the evidence or consider the credibility of witnesses. Instead, the evidence
most favorable to plaintiff must be accepted as true and conflicting evidence must be
disregarded. The court must give ‘to the plaintiff[’s] evidence all the value to which it is
legally entitled, . . . indulging every legitimate inference which may be drawn from the
evidence in plaintiff[’s] favor . . . .” ’ ” (Castaneda v. Olsher (2007) 41 Cal.4th 1205,
1214-1215, as modified (Oct. 17, 2007).)
Similarly, “ ‘[an] appeal from the trial court’s denial of [a] motion for [JNOV] is a
challenge to the sufficiency of the evidence to support the jury’s verdict and the trial
court’s decision.’ ” (Paulus v. Crane Co. (2014) 224 Cal.App.4th 1357, 1362.) “ ‘The
purpose of a motion for [JNOV] is not to afford a review of the jury’s deliberation but to
prevent a miscarriage of justice in those cases where the verdict rendered is without
21
foundation.’ [Citation.] ‘The scope of appellate review is to determine whether there is
any substantial evidence, contradicted or uncontradicted, supporting the jury’s
conclusions . . . .’ ” (Sukoff v. Lemkin (1988) 202 Cal.App.3d 740, 743.) “ ‘ “Substantial
evidence” is evidence of ponderable legal significance, evidence that is reasonable,
credible and of solid value.’ [Citation.] But we do not weigh the evidence or judge the
credibility of witnesses.” (IIG Wireless, Inc. v. Yi (2018) 22 Cal.App.5th 630, 639-640.)
“Our determination with respect to the presence of the requisite substantial evidence is de
novo.” (Id. at p. 639.)
Here, the trial court--without objection by the Department--instructed the jury to
make a factual finding regarding the existence of a special relationship between the
Department’s agents and Russell, and later provided the jury with a list of factors for it to
consider when making that determination. This was not correct; as we have explained,
the existence of a legal duty in a given factual situation is a question of law that the trial
court should have determined. But because the Department did not object to this
procedure, on appeal plaintiff contends the jury’s factual finding of a special relationship
is subject to review for substantial evidence, and asserts that the Department forfeited any
argument that we should conduct a de novo review for the existence of a special
relationship. However, plaintiff offers no authority--and we are aware of none--holding a
party may forfeit application of the proper standard of review by failing to object in the
trial court. Further, the Department repeatedly asserted in its briefing below that the
question of duty was a legal question to be decided by the trial court. Accordingly, we
disregard the jury’s actions on this issue and review de novo whether a special
relationship existed, viewing the facts in the light most favorable to plaintiff.
C. Analysis
We analyze whether Lacy or Romero had a duty to warn Russell of DeAvila’s
dangerous propensities, of which they clearly were aware. Based on the forgoing
authorities, had either agent formed a special relationship with Russell, that formation
22
would have given rise to a duty to warn. We examine whether either agent formed that
special relationship by making an express or implied promise of protection to Russell that
caused her to detrimentally rely on that promise, or by otherwise lulling Russell into a
false sense of security, inducing detrimental reliance and causing her to worsen her
position. (Williams v. State of California, supra, 34 Cal.3d at p. 28; Morgan v. County of
Yuba, supra, 230 Cal.App.2d at p. 944; Carpenter, supra, 230 Cal.App.3d at p. 931.) A
duty to warn could also have arisen if one of the agents created a foreseeable peril that
was not readily discoverable by Russell. (See Johnson, supra, 69 Cal.2d at pp. 785-786.)
In arguing that the agents had a duty to warn Russell, plaintiff combines the
conduct and representations of both Lacy and Romero and applies the factors for
establishing a special relationship provided to the jury by the trial court; we recited these
factors ante in our discussion of the trial court’s charge to the jury. As relevant to our de
novo analysis here, plaintiff first contends Lacy’s relationship with Russell gave her the
right to expect his protection in matters related to DeAvila’s parole and wellbeing, and he
argues that Romero lulled Russell into a false sense of security by authorizing DeAvila to
spend his days at Russell’s house and by promising to help find DeAvila a place to live,
which impliedly conveyed that DeAvila was safe to have in her home. Although plaintiff
analyzes the conduct of the agents together, we analyze each agent’s statements and
conduct and any resulting detrimental reliance separately; a special relationship between
Russell and one agent does not transfer to another agent. (See Baker v. City of Los
Angeles (1986) 188 Cal.App.3d 902, 908 [a special relationship established by one
officer’s voluntary act does not obligate the entire department]; Zelig v. County of Los
Angeles, supra, 27 Cal.4th at pp. 1129-1130 [government employee’s conduct
establishing a special relationship “on one occasion does not, by itself, give rise to a
continuing special relationship and duty at a later date—or with other [employees]”].)
At the outset, we acknowledge that both Lacy and Romero were aware or should
have been aware that DeAvila suffered from mental illness, abused drugs, had a history
23
of violence, and posed a danger to those around him. DeAvila was arrested while on
parole in 2007 and 2008 for assault, first on a co-resident, then on his girlfriend. Lacy
categorized DeAvila as a “high-violent” parolee, and was aware DeAvila had tested
positive for both cocaine and methamphetamine. In February 2011, Lacy referred
DeAvila to an outpatient clinic for mental health treatment, and the next month reported
that DeAvila was better, but conditioned on medication.
Between May and November 2012, Romero was aware that DeAvila had
repeatedly violated his parole by using marijuana, methamphetamine, and alcohol,
removing his GPS monitoring device, and absconding. Romero requested multiple
warrants for DeAvila’s arrest, each one asserting that DeAvila’s presence in the
community posed a threat to public safety. Romero was also aware that DeAvila had
undergone mental health treatment due to suicidal ideation.4
There is nothing to suggest, however, that either parole agent was aware that
DeAvila posed a particularized threat of harm to Russell. Russell raised DeAvila from a
young age, and no evidence suggests that either agent was aware of any incident in which
DeAvila had ever been violent toward Russell or threatened her. Even the Selby and
Suiter reports, which concluded that DeAvila posed a general danger of physical harm to
others, did not mention Russell by name.
1. Lacy
With that background in mind, we turn to the nature and extent of the contacts
each agent had with Russell. Plaintiff contends that Russell would go to Lacy if she had
any issues or concerns about DeAvila, and the nature of their relationship gave her the
4 The Selby and Suiter reports were available to Romero in DeAvila’s file, although
Romero did not read them. Plaintiff points to no duty of a parole officer to read all
reports in a parolee’s file. Absent such an argument, we do not conclude that Romero
was required to read those reports. Nevertheless, Romero was aware that DeAvila was a
mentally ill drug user who posed a threat to public safety.
24
right to expect his protection in matters related to DeAvila’s parole and wellbeing.
However, as we will explain, those contacts with Russell were not sufficient to establish a
duty to warn her of DeAvila’s dangerous propensities.
Russell and Lacy interacted at least twice per month and were friendly, Lacy was
aware that DeAvila was living with Russell and authorized that arrangement, and he
checked in on Russell when he was in the neighborhood. Lacy regularly drug tested
DeAvila, he assisted Russell by ordering DeAvila to obtain mental health treatment when
he appeared mentally unstable in February 2011, and he agreed to help DeAvila find his
own place to live in March 2011, just days before DeAvila was arrested for sex crimes.
And Lacy advised Russell, who received DeAvila’s social security checks, to not give
DeAvila all of the funds at once so he would have money through the month.
While we recognize that Lacy and Russell had a positive relationship, these
contacts do not establish that Russell detrimentally relied on any representations by Lacy.
Lacy never expressly represented to Russell that DeAvila was safe or that he would
protect her from DeAvila, and Russell never expressed any concern for her safety or
suggested that she required Lacy’s protection from DeAvila. Russell never called Lacy
for protection from DeAvila while he was under the influence or otherwise, and Lacy
never physically intervened to protect Russell from DeAvila.
Additionally, while Lacy assisted Russell by ordering DeAvila to undergo mental
health treatment in February 2011, that incident demonstrates Russell was not dependent
on Lacy for protection. Russell assessed DeAvila’s mental health status and took
affirmative steps to obtain treatment for him. Lacy neither independently determined that
DeAvila appeared unstable nor was required to intervene because Russell was unable to
manage the situation. Rather, Russell utilized Lacy as a point of contact and an
appropriate resource for obtaining treatment for DeAvila, demonstrating her capability of
managing that situation. There is nothing to suggest that Russell would not have been
25
able to take similar steps to obtain appropriate treatment for DeAvila had Lacy not been
his parole officer, or had he not been on parole.
Similarly, Lacy’s advice to Russell regarding the need to ration DeAvila’s income
does not demonstrate that Russell detrimentally relied on Lacy for protection. Russell did
not indicate that she feared for her safety or ask Lacy for protection regarding the
rationing. There is no evidence that Russell felt comfortable meting out DeAvila’s social
security income only because Lacy was available to protect her from potential violence.
Further, Lacy’s promise to help DeAvila find a place to live in March 2011 did not
induce detrimental reliance; the fact that DeAvila was arrested and taken into custody
four days later belies that suggestion. Following DeAvila’s release from the State
Hospital in April 2012, Lacy drove DeAvila to the parole office, after which time Lacy
was no longer his parole agent. Soon thereafter, in May 2012, Russell requested that
DeAvila be allowed to live with her again. There is no evidence that Russell
detrimentally relied on Lacy’s promise to find DeAvila a place to live.
Thus, the record lacks sufficient evidence to demonstrate that Russell
detrimentally relied on actions or representations by Lacy such that a duty to warn arose.
There is nothing in the record that would suggest Russell allowed DeAvila to live with
her based on anything Lacy did or said, and while Lacy provided Russell with a helpful
resource, Russell never indicated that she feared for her safety or demonstrated that she
relied on Lacy to protect her from DeAvila. Therefore, we conclude that the
requirements for the special relationship that the law requires exist between Lacy and
Russell before Lacy developed a duty to warn her of DeAvila’s propensity for violence
were not met.
2. Romero
We turn next to whether Romero had a duty to warn Russell of DeAvila’s
dangerous propensities. Plaintiff contends that Romero impliedly promised Russell that
DeAvila was safe to be around, lulled her into a false sense of security, and created or
26
increased her peril by authorizing DeAvila to spend his days at her house, but requiring
him to leave at night. Plaintiff also asserts that Romero induced detrimental reliance by
promising Russell that he would help DeAvila find his own place to live.
We first observe that there is no evidence Romero expressly told Russell that
DeAvila did not pose a danger to her, nor is there any evidence that Romero, in
authorizing DeAvila to spend his days at Russell’s house, intended to convey anything
about the safety of the proposed arrangement. Rather, Romero authorized DeAvila to
spend his days, but not his nights, at Russell’s house specifically because he was a
registered sex offender, and she lived too close to a school. (Cf. Carpenter, supra, 230
Cal.App.3d at p. 929 [detective informed the plaintiff that the robbery suspect presented
no danger to his life or safety].)
There is little to no evidence that Russell interpreted Romero’s permission to
DeAvila to spend his days at her house as an implied promise that DeAvila posed no
threat to her. Russell never mentioned that she feared for her safety or asked Romero for
his opinion as to whether DeAvila posed any danger to her. As we have discussed,
Russell had raised DeAvila from a young age and presumably knew him well. Despite
his parolee status and whatever else she knew of his history, she repeatedly requested
permission for DeAvila to live with her. She accompanied DeAvila to the parole office
on May 23 and requested that DeAvila be allowed to live with her; she argued that
DeAvila was “doing fine” and asserted that she was “happy with him.” On June 13,
Russell again requested permission from the parole officer on duty to allow DeAvila to
live with her. On June 29, when Romero authorized the daytime arrangement, Russell
again told him that DeAvila was doing “fine” and that she wanted him to live with her.
Thus, Romero’s authorization occurred following repeated efforts by Russell to convince
the agents that DeAvila was doing well and should be allowed to live with her; nothing
suggests that Russell had any safety-based reservations about the arrangement or that she
interpreted Romero’s authorization as a promise that DeAvila was not a threat to her
27
safety. Indeed, Russell would have had little reason to rely on Romero’s representation
that DeAvila posed no threat to Russell, even if given, as Romero had only supervised
DeAvila since April. Accordingly, there is no basis on which to conclude that Romero’s
June 29 authorization of DeAvila spending his days at Russell’s house was either
intended to promise that she would be safe or was interpreted by Russell to include such a
promise.
Plaintiff raises two arguments supporting his contention that Russell relied on
Romero’s authorization as a promise that DeAvila posed no threat to her safety. He
asserts that Russell’s reliance on Romero’s purported promise to her detriment is shown
by the fact that she allowed DeAvila to spend time in her home. But the issue before us
is not whether Russell acted to her detriment by allowing DeAvila to spend time in her
home. Tragically, there is no dispute but that she did. Rather, the issue before us is
whether Russell detrimentally relied on any representation or promise coming from
Romero and regarding Russell’s safety from DeAvila. As we have discussed, the record
does not support the conclusion that Romero made any such representations or promises
or that Russell interpreted Romero’s authorization as such.
Plaintiff also argues that the incident in which Russell threatened DeAvila with a
knife in December 2012 or January 2013 demonstrated that she had internalized
Romero’s promise regarding the absence of any threat posed by DeAvila. But that
assertion is entirely speculative. Even if Romero’s authorization could be construed as a
promise, there is no dispute that it was an implied promise, not one that was explicitly
stated. Moreover, as we have discussed, there was little reason for Russell to interpret
Romero’s authorization as a promise.
Further, there is no evidence that the effect of such a subtle, implied promise--
assuming it was a promise at all--was or even could have been so strong such that Russell
internalized it and relied upon it six or seven months after it was made. That is especially
true give that, after the authorization, DeAvila had repeatedly cut off his GPS device and
28
absconded, had twice been admitted into healthcare facilities due to suicidal ideation, had
been arrested for using marijuana and methamphetamine, and was eventually arrested in
November at Russell’s house by multiple law enforcement officers. In fact, by the end of
2012, Russell was avoiding spending time at her house when DeAvila was there and
stayed with her son instead. We recount these facts not to suggest that Russell
necessarily should have known the full extent to which DeAvila posed a danger to her
and to other members of the community or that her conduct brought about this tragedy in
any way, but rather to contradict the assertion that the evidence showed Russell
internalized a purported promise made in June by Romero that it was safe for her to
spend time alone with DeAvila.
Finally, we conclude Romero’s purported promise to find DeAvila a place to live
did not give rise to a duty to warn. Romero purportedly promised to find DeAvila a place
to live in June 2012, after which he did not speak with Russell again. As we have
discussed, Romero did not make any promise that DeAvila posed no threat to Russell, so
we fail to see how a promise regarding finding DeAvila a place to live could give rise to a
duty to warn Russell of DeAvila’s dangerous propensities. Moreover, even if a promise
to find a person housing could support a duty to warn of dangerousness, by the time of
her murder in February 2013 Russell could not reasonably rely on Romero’s purported
promise from June 2012. Romero spoke with Russell a total of two times; the final time
they communicated was seven months before her murder. In the absence of any
communication whatsoever, Russell could not have reasonably relied on Romero’s
promise to find DeAvila a place to live, to the extent that Romero ever made such a
promise.
We do not suggest in any way that Russell’s actions as a patient and hopeful
grandmother simply trying to help her grandson brought about this terrible tragedy. The
narrow issue before us is whether agents Lacy and Romero developed a duty to warn
Russell of DeAvila’s dangerous propensities due to the forming of a special relationship
29
between the agents and the victim. Our de novo review of the record, considering the
facts in the light most favorable to the plaintiff, does not disclose evidence that supports
imposing such a duty on either agent. Therefore, must we reverse the judgment.
II
Sanctions Against Plaintiff’s Counsel
Plaintiff contends the trial court abused its discretion by imposing sanctions under
Code of Civil Procedure section 177.55 against trial counsel, Kenneth Meleyco, based on
his violation of the court ruling on a defense motion in limine, and for arguing during his
opening statement in violation of a court order prohibiting him from doing so. As we
will discuss, we conclude the court’s $1500 sanction order was not an abuse of discretion.
A. Standard of Review
We review a trial court’s decision to impose monetary sanctions under Code of
Civil Procedure section 177.5 for an abuse of discretion. (People v. Tabb (1991) 228
Cal.App.3d 1300, 1311.) “ ‘ “That discretion must be exercised in a reasonable manner
with one of the statutorily authorized purposes in mind and must be guided by existing
legal standards as adapted to the current circumstances.” ’ [Citations.] Discretion is
abused when it exceeds the bounds of reason, all of the circumstances being considered.”
(People v. Ward (2009) 173 Cal.App.4th 1518, 1527 (Ward).) “[A]n abuse of discretion
will be found on appeal if a sanctions order rests on incorrect legal premises [citation] or
violates due process, matters we decide exercising our independent review.
Alternatively, an abuse of discretion will be found if the findings underlying the order
under review are factually unsupported [citation], which requires us to ‘assess[] the
5 Section 177.5 provides in relevant part: “A judicial officer shall have the power to
impose reasonable money sanctions, not to exceed fifteen hundred dollars ($1,500),
notwithstanding any other provision of law, payable to the court, for any violation of a
lawful court order by a person, done without good cause or substantial justification. This
power shall not apply to advocacy of counsel before the court. . . .”
30
record for substantial evidence to support the court’s express or implied findings.’ ”
(People v. Landers (2019) 31 Cal.App.5th 288, 304.)
It is plaintiff’s burden on appeal to show that the trial court abused its discretion.
(Lockheed Litigation Cases (2004) 115 Cal.App.4th 558, 564.)
B. Procedural History
At trial, the court granted the Department’s motion in limine prohibiting “reptile
theory” arguments, which are improper appeals to a jury’s emotions by arguing a
defendant’s conduct threatens the community’s safety. (Regalado v. Callaghan (2016)
3 Cal.App.5th 582, 599.)
During the first hour of Meleyco’s opening statement, defense counsel objected 20
times on the grounds that Meleyco was “testifying,” 17 of which were sustained, and 20
times that Meleyco was presenting improper argument--three of which also included
objections for testifying--14 of which were sustained and three for which the rulings were
not reported.
At a break in Meleyco’s opening statement, the trial court issued a “cease and
desist order” prohibiting Meleyco from testifying or arguing for the remainder of his
opening statement. The court warned that it could impose sanctions up to $1,500 for
each violation of that order. Following the break, the court sustained two additional
objections to improper argument, and one objection to reptile argument, which we
discuss in greater detail, post.
At the next court session, the trial court held a sanctions hearing “akin to an order
to show cause.” The court determined that Meleyco violated its in limine order regarding
reptile theory arguments--which, the court recognized, were also argumentative
statements--characterized the first hour of Meleyco’s opening statement as “nearly all . . .
argument,” and noted that it sustained two additional objections for arguing after it issued
its “cease and desist” order. After providing Meleyco with the opportunity to be heard,
31
the court imposed sanctions of $1,500 pursuant to Code of Civil Procure section 177.5
“for violation of lawful court order without good cause or substantial justification.”
C. Analysis
“ ‘ “The purpose of the opening statement is to inform the jury of the evidence the
[party] intends to present. . . .” [Citation.] “Nothing prevents the statement from being
presented in a story-like manner that holds the attention of lay jurors and ties the facts
and governing law together in an understandable way.” ’ [Citations.] In turn, ‘[c]losing
argument presents a legitimate opportunity to “argue all reasonable inferences from
evidence in the record.” ’ ” (People v. Seumanu (2015) 61 Cal.4th 1293, 1342; see also
People v. Dennis (1998) 17 Cal.4th 468, 518 [function of opening statement “is not only
to inform the jury of the expected evidence, but also to prepare the jurors to follow the
evidence and more readily discern its materiality, force, and meaning”].)
After the trial court issued its “cease and desist” order, it sustained objections to
the following two passages of Meleyco’s opening as argumentative:
“Now, the other thing I want to talk about is the defenses that [the Department]
will have here. [¶] They’ll tell you that, number one, that you can’t predict future
violence. They’ll also tell you that they are not responsible for him; and, number three,
she should have known, and our position to their defenses is ‘Yeah, she knew him well.
Did she know he was homicidal’ --”
“Now, I want to talk a little bit about damages because we are asking, as you heard
yesterday, for an award of 20 million dollars and so the key to what the award should be
is the relationship between [Russell] and her son, [plaintiff].”
Plaintiff asserts that these passages did not provide the trial court with a
reasonable basis to impose sanctions because they were not argumentative. He adds that
even if Meleyco argued, his violation of the court order was inadvertent or done with
good cause or substantial justification because the line between proper discussion of the
facts and improper argument is “hazy.”
32
At the outset, we observe that whether a violation of a court order is inadvertent is
irrelevant to the issue of whether the trial court abused its discretion by imposing
sanctions. (People v. Tabb, supra, 228 Cal.App.3d at p. 1311 [standard for imposing
sanctions is violation of a court order done without good cause or substantial justification,
not willfulness].) Here, although we do not consider these passages to be egregiously
argumentative, we conclude the trial court did not abuse its discretion by sustaining the
objections. (See Garcia v. Rehrig Internat., Inc. (2002) 99 Cal.App.4th 869, 874 [trial
court’s determination as to whether attorney misconduct took place is reviewed for abuse
of discretion].)
In the first passage, Meleyco set forth the arguments he expected the defense to
make: that the harm to Russell was not foreseeable, that the Department had no duty to
control DeAvila, and that Russell should have known that DeAvila posed a danger to her.
But rather than inform the jury of the expected evidence, or prepare the jury to follow the
evidence and “discern its materiality, force, and meaning” (People v. Dennis, supra, 17
Cal.4th at p. 518), Meleyco then argued plaintiff’s position as to why the jury should
reject those defense arguments. In doing so, he strayed beyond proper opening statement
into improper argument. The trial court did not abuse its discretion in sustaining the
objection to that passage.
In the second passage, Meleyco argued that the “key” factor for determining
whether to award plaintiff $20 million was the close relationship between him and
Russell. Plaintiff concedes that Meleyco’s discussion of how the relationship between
plaintiff and Russell constitutes the “key” for determining the amount of the award could
be improper argument, but he contends that, here, Meleyco was simply making a
preliminary reference to the point that Russell and plaintiff had a close relationship.
While we agree that Meleyco’s statement straddles the line between properly tying the
facts and law together, and improperly arguing for a specific jury award, we do not
conclude that the trial court abused its discretion in sustaining the objection.
33
The trial court also sustained an objection to the following statement as a violation
of the court’s in limine ruling prohibiting reptile arguments: “[W]e as citizens rely on
[the Department] and peace officers. We give them extraordinary rights --.” Following
the sustained objection, Meleyco continued: “What we are saying is that they didn’t read
these reports, that I mentioned, the Selby and Suiter reports, and the evidence will show
they betrayed her trust.” At the sanctions hearing, the court also recognized that these
statements are argumentative.
These statements are not comparable to the reptile theory arguments in
Regalado v. Callaghan, supra, 3 Cal.App.5th at pages 597 to 598, to which the trial court
analogized. In Regalado, an attorney in closing argument argued that the jury is “ ‘the
conscience of this community,’ ” that it will “ ‘speak on behalf of all the citizens,’ ” and
that it will “ ‘make a decision what is right and what is wrong; what is acceptable, what is
not acceptable; what is safe, and what is not safe.’ ” (Ibid.) Meleyco’s statements did not
inform the jurors that they are the conscience of the community, that they will decide
what is right and wrong or safe and unsafe, or make any similar argument.
However, we agree with the trial court that the statements were argumentative.
That citizens rely on peace officers and give them extraordinary rights is a point properly
reserved for summation. Additionally, while defense counsel did not object, Meleyco’s
statement that “they betrayed her trust” is also an argument properly reserved for closing.
We further conclude the trial court did not abuse its discretion in concluding that
Meleyco lacked good cause or substantial justification for violating its order. In
determining whether the court abused its discretion, we do not substitute our judgment of
the correct result for the decision of the trial court. (McClain v. Kissler (2019)
39 Cal.App.5th 399, 414.) When considering that the court had only just issued its order
prohibiting Meleyco from arguing during his opening statement, the court was within its
discretion to conclude that these multiple argumentative statements supported sanctions.
34
Plaintiff raises multiple other arguments, which we conclude lack merit. He
argues that the trial court improperly imposed sanctions based on Meleyco’s conduct
before the court issued its order. But although the court stated that Meleyco had
repeatedly argued his case during opening “despite numerous warnings, admonitions,
instructions, and finally lawful court order to cease and desist argument in opening
statement,” the court expressly imposed sanctions for Meleyco’s “violation of a lawful
court order without good cause or substantial justification.” We do not agree that
Meleyco’s “violation of a lawful court order” could refer to conduct occurring before the
order was issued.
Plaintiff also contends that the sanctions order was impermissibly based on
Meleyco’s advocacy. But sanctions were imposed based on his violation of a court order,
not for Meleyco’s “persistently and vehemently arguing his point or for being wrong in
his arguments.” (Ward, supra, 173 Cal.App.4th at p. 1531.)
Next plaintiff argues he was denied due process because the trial court had
decided to impose sanctions before it conducted the hearing, which was a mere formality.
(See People v. Hundal (2008) 168 Cal.App.4th 965, 970 [due process requires “ ‘an
objective hearing at which the person is permitted to address the lawfulness of the order,
the existence of the violation, and the absence of good cause or substantial justification
for the violation’ ”].) But Meleyco was given an opportunity to respond, and there is no
indication that the court did not consider Meleyco’s argument. Accordingly, we conclude
the court did not violate plaintiff’s due process rights. (Ward, supra, 173 Cal.App.4th at
pp. 1524-1525.)
Finally, plaintiff contends that the trial court lacked a valid basis for ordering
Meleyco to preface every factual reference in his opening statement with the phrase “the
evidence will show.” Plaintiff overstates what the court required; the court stated that
Meleyco could preface “a big narrative” with, for example, “[t]he evidence will show,”
“[t]he witnesses will say,” or “X witness will testify to.” Further, the sanctions order was
35
based on Meleyco’s argumentative statements made after the court issued its “cease and
desist” order, not on any improper testifying.
DISPOSITION
The judgment against the Department is reversed. The trial court’s order imposing
sanctions against defense counsel Kenneth Meleyco under Code of Civil Procedure
section 177.5 is affirmed. The parties are ordered to pay their own costs of this appeal.
(Cal. Rules of Court, rule 8.278(a)(5).)
/s/
Duarte, J.
We concur:
/s/
Raye, P. J.
/s/
Mauro, J.
36