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Home My WebLink About16 ZELIG V COUNTY LA 12-06-99 LAW OFFICES OF ~VOODRUFF~ SPRADL1N & A PROFESSIONAL CORPORATION ,RT lqO. 16 12-06-99 MEMORANDUM DIRECT DIAL: (714) 564-2607 DIRECT FAX: (714) 565-2507 E-MAIL: LEJ~WSS-LAW.COM TO: FROM' DATE: RE: Honorable Mayor and Members of the City Council City of Tustin City Attorney November 30, 1999 Joinder in No Cost Amicus Brief on Behalf of the County of Los Angeles in Zelig v. County of Los Angeles - Supreme Court No. S081791 RECOMMENDATION' Approve Joinder on behalf of the County of Los Angeles at no cost to the City of Tustin in the above-referenced amicus brief. DISCUSSION' This case arises out of a shooting in the Los Angeles County Courthouse. Dr. Zelig shot and killed his wife at the courthouse. An appellate court held that Mrs. Zelig's heir could sue the County for negligence and dangerous condition liability because the County did not use a metal detector to screen persons entering the courthouse. The League of Cities is concerned about this decision and about the expansion of municipal liability for criminal assaults that happen on public property. The appellate decision in Zelig echoes another recent unfortunate decision (Zuniga v. Housing Authority of the City of Los Anoeles (1995) 41 Cai App. 4th 82) where the appellate court found a public entity liable for dangerous condition of public property where a third party criminal assault took place on public property and there was no physical condition of the public property that contributed as a substantial factor to the assault. An excellent summary of the important legal issues involved in this case is found in the letter dated September 30, 1999, from Pollak, Vida & Fisher to the California Supreme Court that is enclosed. Enclosures cc: William A. Huston, City Manager LOIS E. JEFFREY /' 113489\1 MICHAEL M, POLLAK SCOTT J. VIDA GIRARD FISHER WAYNE D. PARISER J. SUSAN GRAHAM GERARD A. LAFOND, JR, DAVID A HADLEN DANIEL P. BARER JUDY L. McKELVEY LAWRENCE J. SliER FRANCINE AMEGA KATHLEEN T. SAENZ JEFFREYA. NEEDELMAN STEVEN T. WLODEK MINDY H. McQUEEN POLLAK, VIDA & FISHER ATTORNEYS AT LAW 1801 CENTURY PARK EAST 26TH FLOOR LOS ANGELES, CALIFORNIA 90067-2343 November 3, 1999 TELEPHONE (310)551-3400 FAX (310) 551-1036 E-MAIL law~pvandf,com OF COUNSEL: MICHAEL R. NEBENZAHL Lois Jeffrey City Attorney Woodruff, Spradlin & Smart 701 S. Parker St., Suite 7000 Orange, CA 92868-4720 Re: REQUEST FOR PARTICIPATION IN ZELIG AMICUS BRIEF Zelig v. County of Los Angeles Supreme Court No. S081791 Review Granted October 20, 1999 [Please respond by December 15, 1999] Dear Ms. Jeffrey: I urge your City to join in the Zelig amicus brief. The League of California Cities and the California State Association of Counties have approved amicus support. They have authorized our firm to write the brief. The League does not submit amicus briefs in its own name. Instead, it encourages cities to lend their individual support. The Case Dr. Zelig shot his wife dead in the Los Angeles County courthouse. The trial court sustained the County's demurrer on the ground that the County owed no duty to Mrs. Zelig. However, the appellate court held that Mrs. Zelig's heir could sue the County for negligence and dangerous condition liability because the County did not use a metal detector to screen persons entering the courthouse. The.. Supreme Cotirt granted review. .: The Supreme Court will hand down an important decision on governmental tort liability. The League seeks to insure that the decision does not expand municipal liability for criminal assaults that happen on public property. November 3, i 999 Page 2 Issues The case poses these core issues: · Whether Civil Code section 1714, enacted in 1872, creates a statutory cause of action for negligence against public entities (improbable as this may seem, that is what the appellate court held); doctrine; Whether a public entity may be held liable under the "special relationship" · Whether the dangerous condition liability statute (Government Code section 835) may impose liability on a public entity for a criminal assault on its property even in the absence of a physical defect in the property; and · Whether Government Code section 845 (the "police protection" immunity) immunizes public entities from liability in a Zelig situation. The decision likely will affect governmental liability for years to come. I enclose the Los Angeles Times' article on the Supreme Court's grant of review. You can find the appellate decision at 73 Cal. App.4th 741; 86 Cal.Rptr.2d 695; 1999 Cal.App. LEXIS 672; or 99 Daily Journal DAR 7413. For more about the issues, see the enclosed letter to Chief Justice George. Request It's important to get the cities on board. Their stance really does influence the court. In a case I argued last year, Chief Justice George turned to the League's amicus counsel and asked pointedly, "Where do the cities stand?" We'd like to make a strong statement about that in this case. If your City is willing to participate, please complete and return the attached authorization. November 3, 1999 Page 3 The form should be mailed to the undersigned by December 15, 1999. Thank you. Very trub,, yours, .~ PoLI, AK, VIDA &FISHER GF:pb . Enclosure cc: Joanne Speers League of California Cities _ G:\WPDOCSkATTYS\GFkamicus briefskzelighMergedltr.gf.,.i 10499.wpd AUTHORIZATION [Please mail by December 15, 1999] To~ Girard Fisher Pollak, Vida & Fisher 1801 Century Park East, 26th Flr. Los Angeles, CA 90067 Re~ Zelig Amicus Brief Please add the City of as a party to the League of California Cities' amicus brief in Zelig v. County of Los Angeles (California Supreme Court Case No. S081791). It is understood that your firm will provide its services Without charge. Please provide a copy of the brief. ( yes.) ( no.) By: [Signature] [Print or type name and title] [State Bar Number if applicable] Address (only if different from our mailing to you): Second Appellate District, Division Three No. B! 1256g S0g1791 IN THE SUPREME COURT OF CALIFORNIA DANA ZELIG et al., Appellants ......o~rn.,=,~m'""--"'--"'"- COURT .. 0¢T~ 0 19.q9.'... Robert. ~,,o.~,~,, ,..~ ,.;,la:k COUNTY OF LOS ANGELES et al., RespondeW~*~--'---~---~~ DEPUTf Resxmdents' petition for review GRANTED. George Chief Justice Kennard Associate Justice Baxter Associate Just~e Chin Associate Justice Brown Associate Justice Associate Justice AssOciate Justice 1 of 1 DOCUMENT Copyright 1999 Times Mirror Company Los Angeles Times October 21, 1999, Thursday, Home Edition SECTION: Part A; Page 33; Metro Desk LENGTH: 316 words HEADLINE: JUSTICES TO DECDE IF COUNTY CAN BE SUED OVER COURTHOUSE KILLING BYLINE: From Associated Press DATELINE: S.~'q FRANCISCO BODY: The state Supreme Court agreed Wednesday to decide whether Los Angeles County can be sued over failing to provide courthouse security measures that might have prevented a fatal shooting. The justices granted the county's request to review a lower-court ruling that allowed a negligence suit by the family of Eileen Zelig, who was shot to death by her husband on a courthouse escalator before a scheduled divorce hearing in 1995. Chief Justice Konald George and Justices Joyce Kennard, Marvin Baxter, Ming Chin and Janice Kogers Brown voted to review the case. Courthouse security has been a particular concern for George, who has lobbied successfully to increase state funding for local court renovation. Harry Zelig, 52, a physician from Woodland Hills, was convicted of first-degree murder and sentenced to 29 years to life in prison. The couple's youngest daughter, Lisa, 6, saw the shooting; she and her brother and sister are plaintiffs in the suit against the county. Judges at the downtown courthouse had talked for years about getting weapons-detecting equipment but had no funding for it at the time of the shooting. The county bought metal detectors for its courthouses two years later, but they weren't installed in the downtown courthouse until this July. The court's presidingjudge at the time, Gary Klausner, was quoted as calling the shooting "an accident waiting to happen." The children's lawsuit was dismissed by Superior CoUrt Judge Emilie Elias, who said the county had no notice of any particular danger at the courthouse and had no duty to install metal detectors or other security devices. But the 2nd District Court of Appeal ruled in July that the c6unty might have had a duty to take protective measures--particularly in family law cases, which are "generally volatile"--if there was evidence of previous violence at other county courthouses, SCOTT J ,/IDA ,~YNE ~ ~SE~ ' ~ Mc~E STEVEN T '~LOCEK POLLAK, VIDA & FISHER ATTORNEYS AT LAW 180! CENTURY PARK EAST 26T,, FLOOR LOS ANGELES. CALIFORNIA 90067-2343 September 30, 1999 TELEmHONE 55~.'235 -MAIL OF COUNSEL MICHAEL R NEBENZAML VIA FEDERAL EXPRESS HOnorable Ronald George, Chief Justice California Supreme Court State Building 350 McAllister St., Room 1295 San Francisco, CA 94102 Re: RECEIVED OCT. 1999 CLERK SUPREME COU~T Zelig v. County of Los Angeles, et al. Supreme Court No.' S08 ! 79 t REQUEST FOR REVIEW (California Rules of Court rule 14(b)) Dear Chief Justice George: RECEIVED OCT 0 1 1999 CLERK SUPREME COU~T I write on behalf of four Joint Powers Authorities (YPA's) that provide liability coverage to California cities and. other public entities. These J'PA's are independent public agencies whose governing boards consist of representatives fi.om the covered entities.- They are: the California Joint Powers Insurance Authority (c.rPIA), which provides coverage to 84. cities statewide; the IndePendent Cities' Risk Management Authority (ICRMA), which covers 29 cities in SOuthern Califomia; the Authority for California Cities' Excess Liability (ACCEL), which covers 12 cities Honorable Ronald George, (21~ief Justice September 30, 1999 Page 2 statewide;~ and the Big Independent Cities' Excess Pool (BICEP), which covers 5 cities in Southern California.2 My clients request that the court grant the County of Los Angeles' Petition for Review in Zelig v. County of Los Angeles (1999) 73 Cal.App.4th 741. Depublication would be inadequate, because Zelig compounds the errors of an earlier decision, Zuniga v. Housing Authority of the City of Los Angeles (1995) 41 Cal.App.4th 82. Only review will reach and correct the errors that originated in Zuniga. Zelig and Zuniga address issues that go to the core of the 1963 Tort Claim Act: 1. Whether the 1872 "Field Code" codification of the common law provides statutory causes of action against public entities; 2. Whether'the special relationship doctrine creates a non-statutory cause of action for negligence against a public entity; and The Cities of Santa Monica, Anaheim, Burbank, Ontario, Santa Barbara, Monterey, Bakersfield, Modesto, Visalia, Palo Alto, Mountainview and Santa Cruz. 2 Beach. The Cities of Santa Ana, San Bemardino, Oxnard, Pomona and Huntington Honorable Ronald George, ,_.nief Justice September 30, 1999 Page 3 3. Whether a public entity may be held liable under Government Code section 835 ("dangerous condition of public property") for a third-party criminal assault on a plaintiff on public property even in the absence of some physical condition of the public property that contributes as a substantial factor in causing the assault. Zelig and Zuniga conflict with other appellate decisions on each of the above issues as discussed below. The straightforward facts of Zelig throw each issue into clear-cut relief. Thus, review of Zelig would provide this court with a unique oppommity to resolve conflicts among the appellate courts regarding the interpretation of fundamental aspects of the Tort Claim Act. We will not reiterate the arguments of the other parties who have sought review? It is our hope that, should this court grant review, the following discussion will help define the issues to be reviewed. We have reviewed letters to this court from the following: the Attorney General, dated September 7, 1999; the Department of Transportation, dated September 10, 1999, Arne B. Sandberg of the law firm of Meyers, Nave, Riback, Silver & Wilson, dated September 10, 1999; and the California State Association of Counties and League of California Cities, dated September 20, 1999. Honorable Ronald George, Chief Justice September 30, 1999 Page 4 · Whether Civil Code Section 1714 Creates a Statutory Cause of Action for Direct Governmental Liability (as Opposed to Vicarious Liabili _ty for the Act or Omission of a Public Employee). The courts in both Zelig and Zuniga held that Civil Code section 1714 creates a statutory cause of action for negligence against a public entity. In his September 7, 1999 letter urging this court to review Zelig, the Attomey General explained why section 1714 does not override Government Code section 815(a)'s abrogation of governmental liability based on common law theories of negligence. That analysis will not be repeated here. It should be added, though, that section 1714 comprises only one section of the protean 1872 "Field Code," which sought to codify all common law causes of action. Under the logic of Zelig and Zuniga, all of the numerous provisions of the Field Code - covering most areas of tort liability - would impose governmental liability. To our knowledge, this court has allowed the 1872 Field Code to serve as the basis for governmental tort liability in only two instances: Nuisance (Civ. Code § 3479; see Nestle v. City ofSanta Monica (1972) 6 Cal.3d 920); and common carrier liability (§ 2100; see Lopez v. Southern California Rapid Trans. Dist. (1985) 40 Cal.3d 780). In Nestle, the court found that the Tort Claim Act did not preclude a statutory action for nuisance only because the legislative history demonstrated that "the Legislature intended to preserve this additional weapon in the Honorable Ronald George, Chief Justice September 30, 1999 Page 5 arsenal available to combat grievous injury to the environment." (Id. at p. 937.) Suffice it to say that a similar case cannot be made for section 1714 or, as a general proposition, the Field Code as a whole. Allowing a cause of action for governmental liability under section 1714, not to mention the plethora of other Field Code sections, would nullify the 1963 Tort Claim Act. · Whether the Special Relationship Doctrine Can Form the Basis for Direct Governmental Liability. The Zelig and Zuniga courts both assumed without analysis that the special relationship doctrine may serve as the basis for direct governmental liability. They ignored that the special relationship doctrine is not an independent cause of action. The doctrine merely serves to establish a duty in negligence where a duty would not otherwise exist. The Tort Claim Act abolished liability for governmental negligence (Gov. Code § 815(a)); fortification of a negligence cause of action with the special relationship doctrine does not create a theory of "super" negligence that surmounts this prohibition. Even if the special relationship doctrine were to constitute a separate cause of action, it is not statutory; therefore, it would be barred as a theory of governmental liability. Honorable Ronald George, Chief Justice September 30, 1999 Page 6 This court has occasionally referred to the special relationship doctrine as a basis of governmental liability? It is submitted that in each case, the court did not distinguish between whether a public employee rather than a public entity entered into the alleged special relationship with the plaintiff. A public employee might very well incur liability pursuant to the special relationship doctrine (Gov. Code § 820(a)), and a public entity might be vicariously liable for that employee's acts or omissions. (§ 815.2(a)). However, in vicarious liability, the relevant special relationship does not abide between the plaintiff and the public entity, but between the plaintiff and the public employee. In Zelig and Zuniga, the appellate courts erroneously based liability on the public entity's presumed special relationship with the plaintiff. The trial courts in those cases did not find, and the appellate courts did not hold, that a public employee breached a duty owed by the employee to the plaintiff pursuant to the special relationship doctrine. None of the facts in those cases suggests that the plaintiffs could have pleaded a special relationship with a public employee. Indeed, the Zelig appellate court specifiCally held that no public employee owed a duty to plaintiff's decedent. (Zelig, 73 Cal.App.4th at 752.)s 4 Johnson v. State (1968) 69 Cal.2d 782; Tarasoffv. Regents of University of California (1976) 17 Cal.3~ 425; Thompson v. County of Alameda (1980) 27 Cal.3d 741;. -~.:.'.'. Davidson v. City oi'Westminster (1982) 32 Cal.3d 197; Williams v. State (1983) 34 Cal.3d 182 5 As the appellate court stated: "Plaintiffs set out another cause of action under section (continued...) Honorable Ronald George, ,...nief Justice September 30, 1999 Page 7 This court's decision in dohnson v. State, supra, 69 Cal.2d 782, "loose[ly]''6 described a special relationship between the plaintiff and the state; however, the appellate court in Rodriguez v. Inglewood Unified School Dist. (1986 ) 186 Cal.App.3d 707, later scrutinized the special relationship doctrine, concluding that such a relationship could not impose common law tort liability on the public entity itself because of the abrogation of public entities' governmental common law liability. Similarly, in Baker v. City of Los Angeles (1986) 188 Cal.App.3d 902, the appellate court held that the effect of a police officer's voluntary assistance was limited to him personally; it did not bring the entire police department into a "special relationship" with the plaintiff. The court reasoned that "it is the employee, not the agency, who has entered into a 5(...continued) 1714, which focuses on the duty of the Sheriff's Department to prevent Dr. Zelig from harming Mrs. Zelig and its breach by failing to provide, security or to warn her. This claim then cites section 820 involving the liability of public employees. Elsewhere, the complaint repeatedlY asserts that a deputy had responded to Mrs. Zelig's earlier specific requests, suggesting that a particular duty to protect Mrs. Zelig existed on September 1, 1995. However, that Deputy Carter had in the past aided Mrs. Zelig, does not indicate that the County assumed any additional, particular task on September 1, 1995. Plaintiffs do not allege any official induced Mrs. Zelig to rely on a promise that the Sheriff's Department would protect her that day. (I-Iartzler v. City of San Jose (1975) 46 Cal.App.3d 6, 9-10, 120 Cal.Rptr. 5.) The allegations show that Mrs. Zelig did not request aid from any sheriffon September 1, 1995. Nor have plaintiffs alleged the .... :--.:. :~,:.~.:..; .~ Sheriff s Department had affirmatively assumed the r~sponsibility to protect her that day. (Ibid.)." (Zelig, 73 Cal.App.4th at 752, fn. 8.) 6 AcharacterizationfoundinRolandS. v. CountyofSanDiego(1993) 16 Cal. App.4th 887, 892, fn. 1. Honorable Ronald George, t. mef Justice September 30, 1999 Page 8 special relationship." (Id. at p. 908; see also Roland S. v. County of San Diego, supra, 16 Cal.App.4th 887). 'Roland $. is quoted and discussed at length in the Attorney General's September 7, 1999 letter to this court at pages 7 and 8. It is submitted that Rodriguez, Baker, and Roland S. correctly state the law, and that Zelig and Zuniga should be overruled on this point. · Whether DangerOus Condition Liability (Gov. Code § 835) Can Exist in the Absence of a Physical Defect of Property. On the strength ofPeterson v. San Francisco Community College Dist. (1984) 36 Cal.3d 799, the Zelig and Zuniga courts held that a public entity may be held liable for a third-party criminal assault against a plaintiff on public property pursuant to a "dangerous condition" theory of liability. (Gov. Code § 835.) However, the Peterson court emphasized that aphysical characteristic of the public premises (landscaping that concealed an assailant) served as a contributing factor. Appellate courts in subsequent decisions have held that a public entity can be held liable under section 835 for criminal third-party assault only if some physical characteristic of its property serves as a contributing factor.? In contrast, neither Zelig nor Zuniga ? Rodriguez v. Inglewood Unified School Dist. (1986) 186 Cal.App.3d 707, 717- 718; Gonzales v. City of San Diego(1984) 156 Cal. App.3d 256, 258; Constance B. v. State (continued...) Honorable Ronald George, Chief Justice September 30, 1999 Page 9 require that a physical defect of public property contribute to the assault. At bottom, they stand only for the mistaken proposition that a public entity may be held liable for negligence in failing to police its own premises. That proposition finds no textual support in sections 830 and 835, which refer to a "condition" of property. It also contravenes the Tort Claim Act's general prohibition against governmental negligence (§ 815(a)) and the Act's specific immunity for failure to provide adequate police protection. (§ 845.) Zelig and Zuniga directly contravene the underlying tenets of the Tort Claim Act. They contradict substantial appellate authority in support of the three propositions discussed above. It is respectfully submitted that this court should grant review to resolve the conflict among appellate decisions and to clarify the basic intent of the Tort Claim Act. 7(...continued) (1986) 178 Cal.App.3d 200, 208; Crow v. State of California (1990) 222 Cal.App.3d 192, 206; Turner v. State (1991) 232 Cal.App.3d 883,891. Honorable Ronald George, Chief Justice September 30, 1999 Page 10 Thank you for your consideration of the above. GF:pb G:\WPDOCS\COLA\CSchi¢Oustic¢tl¢org¢.928.wpd Very tr)uly yours, ~-'~") .... /~