Filed 9/27/19 Ellis v. Office of the San Francisco Sheriff CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

GIGI ELLIS,

Plaintiff and Appellant,

v.

OFFICE OF THE SAN FRANCISCO SHERIFF et al.,

Defendants and Respondents.

A151542

(San Francisco County

Super. Ct. No. CGC-15-543878)

The San Francisco Sheriff executed a writ of possession for the property where Gigi Ellis lived. Ellis then sued the Sheriff and the City and County of San Francisco (collectively, the City) alleging tort claims arising from the eviction. Her Second Amended Complaint alleged four causes of action: breach of her right to quiet enjoyment, breach of policy, violation of the automatic stay imposed in bankruptcy proceedings, and intentional infliction of emotional distress. The trial court sustained the City’s demurrer without leave to amend, and Ellis now appeals. Finding no error, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. Allegations in the Second Amended Complaint

According to the allegations in the Second Amended Complaint, from which we draw these facts, in March 2014 Ellis was in possession of a single-family residence in San Francisco (the Property), where she lived with her uncle (William Bailes) and a tenant. Although Ellis claimed to own the Property, Deutsche Bank National Trust Company (Deutsche Bank) had already held a nonjudicial foreclosure sale, by which it claimed to have acquired title, which it then transferred to Junying Yu.

Yu secured a writ of possession for the Property. The Sheriff then served Ellis and Bailes, both of whom were named in the writ, with proper legal notice that the writ would be executed on Wednesday, March 12, 2014.

On March 10, 2014, Bailes filed a Chapter 7 bankruptcy petition. In light of Ellis’s understanding that the Sheriff’s established policies provide that if one of the occupants named in a writ of possession has filed a bankruptcy, the Sheriff will not evict any of the occupants at that address without further order or instructions from the bankruptcy court, Ellis and a friend went to the Sheriff’s office on March 11 to inform the Sheriff of Bailes’s bankruptcy filing. They spoke with Deputy Sheriff Mallett (the Deputy), who was on duty, and showed him evidence of Bailes’s recent bankruptcy filing. The Deputy reviewed that evidence, consulted with his superiors, and then informed Ellis that the eviction had been “cancelled” and that no new date for eviction would be set until the Sheriff heard from the bankruptcy court and determined that the writ could be lawfully executed. The Deputy gave Ellis a “receipt” indicating that the eviction scheduled for March 12 was “cancelled.” Because she understood that it is the policy of the Sheriff’s office to perform residential evictions only on Wednesdays, Ellis believed she had at least a week to make arrangements before being evicted.

Soon after Ellis met with the Deputy, the Sheriff’s office contacted Yu’s attorneys to inform them that the March 12 eviction had been cancelled because Bailes had filed a bankruptcy petition. The attorneys informed the Sheriff that a separate bankruptcy proceeding for Ellis was already in progress, and they faxed the Sheriff an order from that bankruptcy providing in rem stay relief: by its terms, the order prevented any further automatic bankruptcy stays from affecting the Property (the In Rem Order). Yu’s attorneys did not inform the Sheriff’s office that Ellis had appealed from the In Rem Order, and the Sheriff’s office did not further investigate the status of the In Rem Order.

Without providing any further notice to Ellis or the other occupants of the Property, the Sheriff executed the writ of possession on March 12 by locking the occupants out of the premises. Ellis alleged that she suffered severe shock, physical and emotional injury, and financial loss as a result.

B. Procedural Posture

In January 2015, Ellis filed a complaint against the City in superior court. After the trial court sustained two demurrers with leave to amend, Ellis filed a Second Amended Complaint in August 2016, alleging four causes of action: “Tortious Breach of Plaintiff’s Right to Quiet Enjoyment of the Premises; Eviction Without Notice and Without Due Process of Law, Resulting in Damages to Plaintiff”; “Breach of the Sheriff’s Own Internal Policies”; “Violation of 11 U.S.C. 362(a), the Automatic Stay Imposed by the United States Bankruptcy Code”; and “Intentional Infliction of Emotional Distress.” The City filed a demurrer accompanied by a request for judicial notice. The trial court subsequently sustained the demurrer without leave to amend, and entered judgment in the City’s favor. Ellis timely appealed.

DISCUSSION

A. Standard of Review

“When reviewing a judgment dismissing a complaint after the granting of a demurrer without leave to amend, courts must assume the truth of the complaint’s properly pleaded or implied factual allegations. [Citation.] Courts must also consider judicially noticed matters. [Citation.] In addition, we give the complaint a reasonable interpretation, and read it in context. [Citation.]” (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081 (Schifando).) “We do not, however, assume the truth of contentions, deductions, or conclusions of fact or law.” (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125 (Moore).)

“[W]e determine whether the complaint states facts sufficient to state a cause of action.” (Schifando, supra, 31 Cal.4th at p. 1081.) “If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer.” (Quelimane Company v. Stewart Title Guaranty Company (1998) 19 Cal.4th 26, 38.)

Although our review is de novo, the fundamental principles of appellate review still apply: it is appellant’s burden to demonstrate error (Denham v. Superior Court (2970) 2 Cal.3d 557, 564), and our review is limited to the issues that are adequately raised and supported in appellant’s brief. (Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6.)

If we conclude that the complaint does not state a cause of action, “we must decide whether there is a reasonable possibility the plaintiff could cure the defect with an amendment. [Citation.]” (Schifando, supra, 31 Cal.4th at p. 1081.) It is the plaintiff’s burden to “demonstrate the manner in which the complaint might be amended.” (Hendy v. Losse (1991) 54 Cal.3d 723, 742.) The demonstration “need not be made in the trial court so long as it is made to the reviewing court. [Citations.]” (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1386 (Careau).)

B. Governmental Immunity

Because Ellis alleges that the City is liable to her for tortious conduct, we begin by summarizing the relevant principles of government tort liability and immunity.

“Except as otherwise provided by statute . . . [a] public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.” (Gov. Code, § 815, subd. (a). ) One statute that provides for public entity liability is section 815.2, subdivision (a): “A public entity is liable for 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, apart from this section, have given rise to a cause of action against that employee or his personal representative.”

But, “[e]xcept as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability.” (§ 815.2, subd. (b).) As relevant here, “a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of discretion vested in him, whether or not such discretion be abused.” (§ 820.2.)

C. Analysis

The gravamen of Ellis’s complaint is that the City is liable to her for injuries she sustained by relying on the Deputy’s alleged “promise” that a validly noticed writ of possession would not be executed on the noticed date, and that a date for execution would not be set until after he heard from the bankruptcy court that the writ was valid. She advances several theories of liability, but none of them states a cause of action on which she can recover. We consider them in turn.

1. First Cause of Action: Tortious Breach of Right to Quiet Enjoyment

Ellis’s first tort claim rests on her allegation that in view of the Deputy’s statement on March 11, 2014, that the March 12 eviction was cancelled and that no new date would be set until after the Sheriff received word from the bankruptcy court, she was entitled to five days’ notice of a new eviction date under the Code of Civil Procedure. She did not receive such notice and therefore, she argues, was deprived of her immediate right to the premises and is entitled to recover damages.

To the extent Ellis’s claim rests upon the Sheriff’s failure to provide notice as required by Code of Civil Procedure section 715.010, the claim fails because the Sheriff has a mandatory duty to execute facially valid writs and is immune for the actions it takes in executing writs that are regular on their face. (Code Civ. Proc., § 262.1; George v. County of San Luis Obispo (2000) 78 Cal.App.4th 1048, 1054.) Ellis does not allege that the writ of possession was not regular on its face, and she concedes that notice of the eviction was properly provided to her in compliance with Code of Civil Procedure section 715.010 in advance of the scheduled March 12 eviction. Although Ellis suggests that she was entitled to further notice under Code of Civil Procedure section 715.010 after the “cancellation” of the eviction, she points to nothing in the statute that so states. And she provides no authority that a Sheriff’s “cancellation” of an eviction could effectively revoke the court-issued writ of possession that the Sheriff had the duty to enforce. (Code Civ. Proc., § 262.1.)

To the extent her claim rests upon the alleged “promise” by the Deputy that the March 12, 2014 eviction had been cancelled and the Sheriff’s subsequent determination that the cancellation was an error and the eviction would be carried out as originally scheduled, Ellis’s claim fails because the actions of which she complains are discretionary. (§ 820.2; McCorkle v. City of Los Angeles (1969) 70 Cal.2d 252, 261 [discretionary act is one that requires “ ‘personal deliberation, decision and judgment’ ”].) The Deputy exercised discretion in examining the bankruptcy filing that Ellis showed him on March 11, consulting with his superiors and then informing Ellis that the eviction was cancelled. And similarly, the Deputy, or other Sheriff’s office employees, exercised discretion in contacting Yu’s attorneys to inform them about the cancellation, reviewing the In Rem Order provided by Yu’s attorneys, determining that the In Rem Order was valid, and concluding that the March 12 eviction should go forward as originally scheduled.

Ellis does not dispute the City’s position that the Deputy’s promise or assurance that the eviction was cancelled did not create a contractual obligation that was binding on the City. She argues instead that the City may be held liable in tort when a Sheriff makes a promise that is relied upon, and then fails to act upon the promise, and the failure is the proximate cause of damages. Her argument relies entirely upon Morgan v. County of Yuba (1964) 230 Cal.App.2d 938 (Morgan). The case is inapposite, as we shall explain, and we conclude that it does not support liability for the City in the circumstances here.

In Morgan, the plaintiffs stated a cause of action for wrongful death where a deputy sheriff failed to provide promised notification of the release of a dangerous prisoner who, upon his release, killed plaintiffs’ decedent. (Morgan, supra, 230 Cal.App.2d at pp. 941-942.) The Court of Appeal declined to apply section 820.2 immunity, concluding that once the decision has been made to make a promise to warn and the promise has been given, the carrying out of that promise is not discretionary. (Id. at p. 943.) As our Supreme Court explained in Williams v. State of California (1983) 34 Cal.3d 18, 23-26 (Williams), the imposition of a mandatory duty to carry out the promise in Morgan rests in the “Good Samaritan” doctrine: if a volunteer who has no initial duty to act nevertheless undertakes to come to the aid of another, the volunteer is under a duty to exercise due care and is liable if harm is suffered because the other person relies upon the undertaking. (See also Von Batsch v. American Dist. Telegraph Co. (1985) 175 Cal.App.3d 1111, 1125 [discussing Morgan as case that involved the application of the Good Samaritan doctrine and the undertaking of an officer “to provide specific future protection”]; Morgan, supra, 230 Cal.App.2d at p. 944-945 [discussing a case that is “indistinguishable from the case at bench” and turns on the application of the Good Samaritan doctrine].) Thus, if a highway patrol officer “voluntarily assumes a protective duty toward a certain member of the public and undertakes action on behalf of that member, thereby inducing reliance, it is held to the same standard of care as a private person or organization.” (Williams, supra, 34 Cal.3d at p. 24.)

The Good Samaritan doctrine has no application here. The Deputy here did not assume any protective duty toward Ellis or undertake any action on her behalf. To the contrary, the Deputy simply took information from her to determine whether the writ of possession was valid and the eviction could go forward. He evaluated the information Ellis provided and exercised his judgment in determining that the eviction could not legally take place. This was a discretionary act that was based on the Sheriff’s understanding of the law, not on any protective duty to Ellis and not on Ellis’s behalf. The Sheriff subsequently received additional information from Yu’s attorneys, which he evaluated, and then he exercised his judgment in reinstating the properly-noticed eviction. That, too, was a discretionary act.

Ellis observes that Morgan is well-settled law, and refers to two different cases that have cited Morgan, but the issue before us is not whether Morgan is good law. The issue is whether Morgan is properly extended to apply to the facts here. We conclude it is not, and the cases that Ellis mentions do not convince us otherwise.

The first of those cases is Williams v. State of California, supra, 34 Cal.3d 18, which discussed Morgan and other cases applying the Good Samaritan doctrine. (Id. at pp. 23-27.) The holding of Williams, however, has no bearing here. The case holds that a highway patrol officer who comes to the aid of an injured or stranded motorist does not thereby create a special relationship “that creates an affirmative duty to secure information or preserve evidence for civil litigation between the motorist and third parties.” (Id. at p. 21.)

The second case that Ellis cites was vacated upon a grant of rehearing. (Posey v. State of California (1985) 173 Cal.App.3d 835). In the subsequent opinion, Posey v. State of California (1986) 180 Cal.App.3d 836, the Court of Appeal affirmed a judgment of dismissal after the sustaining of a demurrer. Posey was injured in a collision with a car that was parked on the shoulder of a highway. (Id. at p. 841.) Highway patrol officers had previously driven past the parked car, but failed to stop, inspect, and remove it. (Ibid.) The Court of Appeal considered whether Posey had stated a cause of action on the theory that because of a special relationship between the parties, the State owed a duty of due care to her. (Id. at p. 842.) After observing that Morgan outlines an exception to the general rule that, absent a special relationship between parties, there is no duty to control the conduct of a third person so as to prevent that third person from harming another (id. at p. 844), the Court of Appeal in Posey concluded that there was no special relationship between Posey and highway patrol officers, and therefore there could be no liability for the officers’ nonfeasance in failing to remove or inspect the parked vehicle. (Id. at p. 847.)

In sum, we conclude that Ellis has not stated a claim against the City for tortious breach of her right to quiet enjoyment of the Property. This does not mean that we condone the Sheriff’s alleged failure to even attempt to contact Ellis to inform her that the “cancelled” eviction would go forward. It simply means that Ellis cannot state a tort claim against the City in these circumstances.

2. Second Cause of Action: Breach of Duty to Follow Internal Policies

Ellis argues that she was damaged by the Sheriff’s failure to follow its own internal policies, specifically its policy of not performing evictions at a residential address after being informed that a person named on the writ of possession has filed a bankruptcy proceeding, until receiving further directions from the bankruptcy court concerning the case; its policy that noticed evictions will not be performed if they have been cancelled for any reason until a new date is set and new notice is provided; and its policy to honor the word of its deputies, which means that if a deputy promises an occupant of property that no eviction will occur on the date previously noticed, the promise will be honored. She argues that she was entitled to rely on the Sheriff’s compliance with its own policies, and was damaged by its failure to so comply.

Even if we assume that Ellis has adequately alleged the existence and violation of the purported internal policies, Ellis has not stated a cause of action for that violation. Under Government Code section 815, subdivision (a), the Sheriff is not liable for any injury except as otherwise provided by statute, yet Ellis points to no statute that creates tort liability for a public entity when it fails to follow its internal policies. The only authority that Ellis cites in arguing that the Sheriff’s failure to follow its own policies is actionable, Bull v. City and County of San Francisco (9th Cir. 2010) 595 F.3d 964 (Bull), is of no help to her. Bull was a facial challenge to a policy that authorized strip searches of arrestees in certain circumstances. (Id. at p. 967.) The Ninth Circuit concluded that the policy did not violate plaintiffs’ Fourth Amendment right to be free from unreasonable searches or their Fourteenth Amendments rights to due process and privacy and reversed the trial court’s denial of the Sheriff’s motion for summary judgment and the grant of plaintiffs’ motion for partial summary judgment as to Fourth Amendment liability. (Id. at pp. 966, 969.) The court noted that “[f]or purposes of this narrow appeal,” where it was called on to assess the constitutionality of the strip search policy, it would assume, as the trial court had done, that the challenged policy was followed scrupulously. (Id. at p. 967.) The court further noted that if it were proved that strip searches were conducted in an abusive and violent manner, as had been alleged in the complaint, such searches would be in violation of the policy that required searches to be conducted in a professional manner, and that the victims of the abuses would have strong claims against the City of San Francisco. (Ibid.) We do not infer from these statements in Bull that as a general matter the Sheriff’s failure to follow an internal policy constitutes a cause of action.

3. Third Cause of Action: Violation of the Automatic Stay Imposed

by the United States Bankruptcy Code

Ellis alleges that in evicting her, the Sheriff violated the automatic stay created under 11 United States Code section 362 when Bailes filed for bankruptcy. Ellis concedes that if the In Rem Order that was entered in her bankruptcy on January 27, 2014 was effective, it would have shielded actions concerning the Property from the automatic stay in Bailes’s proceeding and that the eviction could have proceeded. But Ellis argues that the In Rem Order was invalid at the time it was presented to the Sheriff because it was being appealed and was ultimately reversed. The argument is unpersuasive.

After the In Rem Order was entered in January 2014, Ellis filed a motion to stay that order pending appeal. The Bankruptcy Court denied the motion on February 21, 2014. This was the state of affairs when Ellis spoke with the Sheriff on March 11, 2014. In November 2014, the In Rem Order was reversed on appeal. (In re Ellis (9th Cir. B.A.P. 2014) 523 B.R. 673, 687.)

Accordingly, even though the In Rem Order was ultimately reversed in November 2014, it was unquestionably in effect when Bailes filed his bankruptcy petition in March 2014, and therefore it operated to prevent Bailes’s bankruptcy petition from imposing an automatic stay that would bar his eviction from the Property. Ellis offers no authority to suggest that the Sheriff could properly ignore the In Rem Order, which was a facially valid court order that was not stayed. She speculates that the Sheriff’s office would not have proceeded with the eviction if it had been informed that the order had been appealed. But the existence of the appeal is of no matter here, because the order was not stayed pending the appeal. We will not hold that the Sheriff’s office had any duty to try to predict the outcome of Ellis’s appeal or any duty to wait until the appeal was resolved. (See Vallindras v. Massachusetts Bonding & Ins. Co. (1954) 42 Cal.2d 149, 154 [sheriff is executive, not judicial officer; it is the sheriff’s duty to execute court orders “unless they are patently irregular and void”; “ ‘[u]nless there is a clear absence of jurisdiction on the part of the court . . . issuing the [order], it is sufficient if upon its face it appears to be valid in the judgment of an ordinarily intelligent and informed layman’ ”].)

4. Fourth Cause of Action: Intentional Infliction of Emotional Distress

As our Supreme Court has explained, “A cause of action for intentional infliction of emotional distress exists when there is ‘ “ ‘ “(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.” ’ ” ’ [Citations.] A defendant’s conduct is ‘outrageous’ when it is so ‘ “ ‘extreme as to exceed all bounds of that usually tolerated in a civilized community.’ ” ’ [Citation.] And the defendant’s conduct must be ‘ “ ‘intended to inflict injury or engaged in with the realization that injury will result.’ ” ’ [Citation.]” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051.) Ellis contends that the Sheriff acted with reckless disregard.

Ellis relies on section 815.6, which states, “Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty.” Ellis alleges that the Sheriff has a mandatory duty to follow the notice requirements of Code of Civil Procedure section 715.010, subdivision (a)(2) and to follow its own internal policies; it failed to discharge those duties when it executed the writ of possession after the eviction was cancelled and without further notice; and its failure to discharge those duties constitutes outrageous conduct.

Whether an enactment creates a mandatory duty is a question of law. (Haggis v. City of Los Angeles (2000) 22 Cal.4th 490, 499 (Haggis).) For purposes of argument, we will assume that Code of Civil Procedure section 715.010 is an enactment imposing a mandatory duty on the Sheriff that is designed to protect against the risk of injuries of the sort that Ellis alleges she suffered. But we will not make those assumptions for the Sheriff’s internal policies. To begin, Ellis has not alleged that the Sheriff’s internal policies are “enactments.” Statutory causes of action must be pleaded with particularity; this requirement applies to torts against public entities, which are based on statute. (Susman v. City of Los Angeles (1969) 269 Cal.App.2d 803, 809.) Enactments are generally a matter of public record (Searcy v. Hemet Unified School Dist. (1986) 177 Cal.App.3d 792, 802) but Ellis alleges simply that the Sheriff has internal policies, “written or oral.” She does not point to any public records, nor does she identify how she could amend her complaint to address this shortcoming. And Ellis does not demonstrate that the internal policies establish mandatory duties: her statement that the Sheriff has a mandatory duty to follow its internal policies is a conclusion of law, which we do not accept as true for purposes of a demurrer. (Moore, supra, 51 Cal.3d at p. 125.) Ellis concedes that there are times when the Sheriff must make exceptions to its policies, and nothing suggests that any of the alleged internal policies were, or could be, intended to foreclose the exercise of discretion. (See Haggis, supra, 22 Cal.4th at p. 499 [even where an enactment appears to impose a mandatory duty, other factors may “ ‘indicate that apparent obligatory language was not intended to foreclose a governmental entity’s or officer’s exercise of discretion’ ”].) Nor does Ellis allege except in a conclusory fashion that the Sheriff’s policies were intended to protect against the kind of injuries she suffered.

This means that Ellis’s claim for infliction of emotional distress rests on her allegation that the Sheriff failed to comply with its alleged statutory duty under Code of Civil Procedure section 715.010 to provide her with five days’ notice of eviction. But in light of Ellis’s concession that the Sheriff was executing a facially-valid writ of possession for which the required notice had been provided, Ellis’s claim for infliction of emotional distress fails, just like her claim for tortious breach of her right to quiet enjoyment.

Ultimately, Ellis’s complaint is an attempt to recover in tort for exercises of discretion by the Sheriff: the exercise of discretion in reviewing the filings provided by Ellis and “cancelling” the eviction in reliance upon them, and the exercise of discretion in consulting with Yu’s attorneys, reviewing the bankruptcy court filings (particularly the facially valid In Rem Order), and reinstating the eviction. And because this complaint is based on exercises of discretion, it must fail: the City is immune from liability for injuries resulting from the actions of Sheriff’s office employees who exercise the discretion vested in them, even if the discretion is abused. (§§ 815.2, subd. (b); 820.2.)

5. Leave to Amend

Ellis asks for permission to further amend her Second Amended Complaint, but she does not claim to have demonstrated to the trial court how her complaint could be amended to state a cause of action, nor does she make such a demonstration in her briefs on appeal. (Careau, supra, 222 Cal.App.3d at p. 1386.) The only suggestion she makes about a possible amendment is in connection with her cause of action for intentional infliction of emotional distress, where she notes that although she did not allege a disability in her Second Amended Complaint, she can truthfully allege that she was a disabled person. She does not purport to claim that she suffered any discrimination on account of her disability, and she offers no explanation as to how an allegation of disability would add anything to her existing allegations that the eviction caused her shock, upset, emotional disturbance, emotional distress, “emotional pain and devastation, a debilitating sense of betrayal, depression, and physical illness.” We conclude that her Second Amended Complaint was properly dismissed without leave to amend.

DISPOSITION

The judgment is affirmed.

 

_________________________

Miller, J.

We concur:

_________________________

Richman, Acting P.J.

_________________________

Stewart, J.

A151542, Ellis v. Office of the San Francisco Sheriff, et al.