Modification: Arista v. County of Riverside

CHRISTYNA ARISTA,

Individually and as Personal Representative, etc. et al.,,

Plaintiffs and Appellants,

v.

COUNTY OF RIVERSIDE,

Defendant and Respondent.

No. E068432

(Super.Ct.No. RIC1502475)

California Courts of Appeal

Fourth Appellate District

Division Two

Filed Dec. 13, 2018

ORDER MODIFYING OPINION;

AND DENIAL OF PETITION

FOR REHEARING

[NO CHANGE IN JUDGMENT]

The petition for rehearing filed by respondent on November 29, 2018, is denied. The opinion filed in this matter on November 20, 2018, is modified as follows:

I. The second-to-last sentence of the last paragraph on page 4---"Santiago Trail was a maintained fire access road that accommodates four-wheel drive or off-road vehicles" is modified to read: "Santiago Trail is a maintained fire access road that accommodates four-wheel drive or off-road vehicles."

II. In the Discussion, section B, subsection 2, a new paragraph is inserted at the start of that subsection as follows:

"2. LAW

Under the provisions of the California Tort Claims Act, 'a public employee is liable for [an] injury caused by his act or omission to the same extent as a private person,' except as otherwise specifically provided by statute. [Citation.] In addition, the Tort Claims Act further provides that '[a] public entity is liable for [an] injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would . . . have given rise to a cause of action against that employee,' unless 'the employee is immune from liability.' " (Lugtu v. California Highway Patrol (2001) 26 Cal.4th 703, 715.) In the instant case, because the Family alleged the law enforcement officers were "acting within the scope of [their] employment when [they] engaged in the conduct [and omissions] at issue in this case, the initial question of duty, and [the County's] potential liability . . . turns on ordinary and general principles of tort law." (Id. at pp. 715-716.)"

The subsection then continues with the next paragraph, which begins "The elements of a wrongful death cause of action are . . . ."

III. In the Discussion, section B, subsection 3, the fourth paragraph is modified to read as follows:

"Assuming the foregoing facts are true, Sheriff's Department personnel (the deputies), through their actions, undertook the responsibility of rescuing the victim because the deputies were actively involved in all aspects of locating the victim, and by appointing an Incident Commander, the deputies signaled that they were taking control of the rescue. Therefore, the deputies had the duty to exercise due care in performing the rescue, which means (a) using reasonable care not to increase the risk of harm, and (b) following through in a reasonable manner after inducing reliance on the rescue.

IV. In the Discussion, section B, subsection 3, the first sentence of the seventh paragraph is replaced with the following sentence: "We examine whether the SAC alleges that the deputies induced reliance on their rescue efforts."

V. In the Discussion, section B, subsection 3, the eighth paragraph is modified to read as follows:

"Wife did not organize her own search team until after learning that the deputies would be delaying their efforts. That Wife did not start her efforts until hearing of the deputies' delay suggests Wife was relying on the deputies' search efforts. Accordingly, the Family has sufficiently pled that the deputies undertook rescue efforts and induced reliance on those efforts. In sum, the trial court erred by ruling the deputies did not owe a duty of care."

VI. In the Discussion, section B, subsection 3, the first sentence of the ninth paragraph is replaced with the following sentence: "The County's demurrer to the negligence-based causes of action was focused solely upon the issue of duty; the County did not argue the issues of breach, causation, and damages"

VII. In the Discussion, section D, the second sentence of the second paragraph is replaced with the following sentence: "Thus, the NIED cause of action relies upon the duty to conduct the search with reasonable care. (See generally Huggins v. Long Drug Stores California, Inc. (1993) 6 Cal.4th 124, 129-130 [discussing direct and bystander liability, and the respective duties owed, in NIED claims].)"

VIII. In the Discussion, a new section "E" is added, as follows:

"E. IMMUNITY

The County contends the deputies and the County are immune from liability pursuant to Health and Safety Code, section 1799.107, subdivision (b).

The law provides, "[N]either a public entity nor emergency rescue personnel shall be liable for any injury caused by an action taken by the emergency rescue personnel acting within the scope of their employment to provide emergency services, unless the action taken was performed in bad faith or in a grossly negligent manner." (Health & Saf. Code, § 1799.107, subd. (b).)

"Bad faith" is not defined in the statute. (Health & Saf. Code, § 1799.107.) "[C]ase law has defined gross negligence as ' "the want of even scant care or an extreme departure from the ordinary standard of conduct." ' " (Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1185-1186.) In the SAC, the Family alleged (1) a ping of the victim's cell phone revealed the phone was in the area of Santiago Peak; (2) Lieutenant Hall said to Deputy Zaborowski "he was 'not sure what we're doing here,' that [the victim] was 'probably just running around on his wife' and was 'just covering his tracks,' suggesting that [the victim] was not missing, but instead involved in some adulterous affair"; and (3) Lieutenant Hall told Wife, " '[I]f it was a child, [he] would send a helicopter out there right now.' "

The facts pled by the Family, when accepted as true, support a finding of a want of even scant care. The allegation that Lieutenant Hall would have sent a helicopter for a child reflects there were resources that could have been deployed the night of March 1 to further the search efforts that had been undertaken. The allegation that Lieutenant Hall believed the victim was having an affair reflects that, despite having resources to continue searching for the victim, Lieutenant Hall chose to suspend the search overnight because he believed the victim was not missing. The allegation that the victim's cell phone was in the area of Santiago Peak, reflects there was reason to believe the victim was missing, but Lieutenant Hall carelessly disregarded that evidence and chose to postpone search efforts until the morning. Because the allegations, when accepted as true, support a finding of a want of even scant care, we conclude the immunity of Health and Safety Code section 1799.107 does not apply at this stage of the proceedings."

IX. In the Discussion, section "E" is relettered section "F."

X. In the Discussion, section "F" is relettered "G."

Except for these modifications, the opinion remains unchanged. The modifications do not effect a change in the judgment.

MILLER

J.

We concur:

McKINSTER

Acting P. J.

FIELDS

J.