Case Number: EC055649 Hearing Date: April 18, 2014 Dept: B

Demurrer

Case Management Conference

The Plaintiff alleges that he suffered personal injuries when Defendant, Jose Borbon, a police officer employed by the Defendant, City of Glendale, committed a battery on the Plaintiff. This was also elder abuse because the Plaintiff was 77 years old.

There are two causes of action the third amended Complaint: 1) Battery and
2) Elder Abuse

This hearing concerns the demurrer of Defendants, Jose Borbon and City of Glendale, to the Third Amended Complaint. The Defendants argue that the pleadings do not state sufficient facts to constitute a cause of action for elder abuse. In addition, the Defendants argue that they are immune from liability under Government Code sections 820.2 and 821.6.

A cause of action for elder abuse is a statutory remedy provided under Welfare and Institutions Code section 15657, which is part of the Elder Abuse and Dependent Adult Civil Protection Act, enacted at Welfare and Institutions Code sections 15600 to 15675 (references to code sections refer to the Elder Abuse Act).

The Legislature stated in section 15600 that it passed this law because elders and dependent adults may be subjected to abuse, neglect, or abandonment. The purpose of the Elder Abuse Act is to protect a particularly vulnerable portion of the population from gross mistreatment in the form of abuse and custodial neglect. Covenant Care, Inc. v. Superior Court (2004) 32 Cal. 4th 771, 787. In order to protect elders, the Legislature added heightened civil remedies for egregious elder abuse, seeking thereby to enable interested persons to engage attorneys to take up the cause of abused elderly persons and dependent adults. Id. These heightened remedies are enacted in section 15657, which permits a plaintiff who proves the elder abuse by clear and convincing evidence to obtain heightened remedies, including attorney’s fees and pain and suffering for elders who have died.

In order to obtain these heightened remedies and show elder abuse under section 15657, the plaintiff must plead and show that the defendant is liable for the following:

1) physical abuse as defined in section 15610.63; or
2) neglect as defined in Section 15610.57.

In addition, section 15657 requires the plaintiff to show that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse. Therefore, the plaintiff must show that the defendant engaged in conduct, either physical abuse or neglect, and that the defendant engaged in the conduct with a specific mental state, either recklessness, oppression, fraud, or malice.

Further, section 15657(c) requires the standards identified in Civil Code section 3294 to be satisfied before any damages or attorney’s fees may be imposed against an employer for the acts of an employee. This requires the plaintiff to establish the following:

1) the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized;
2) the employer ratified the wrongful conduct for which the damages are awarded, or
3) the employer was personally guilty of oppression, fraud, or malice.

With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.

Finally, since this is a statutory cause of action, it must be pleaded with particularity. Covenant Care, Inc. v. Superior Court (2004) 32 Cal. 4th 771, 790.

A review of the pleadings reveals that the Plaintiff does plead the claim with particularity. The Plaintiff alleges in paragraph 17 that Jose Borbon lunged at the Plaintiff and struck him on the left shoulder and body. These allegations indicate that Jose Borbon engaged in a battery of the Plaintiff’s person. This is sufficient to plead that Jose Borbon engaged in elder abuse because section 15610.63 defines physical abuse as including a battery committed on an elder.

The Plaintiff alleges in paragraph 22 that Jose Borbon acted with the intent to cause physical pain and injury to the Plaintiff. This is sufficient to plead that Jose Borbon acted with malice because he acted with intent to injure the Plaintiff.

Moreover, the Plaintiff pleads particular facts demonstrating that the Defendant, City of Glendale, is liable for the acts of its employee. The Plaintiff alleges in paragraph 27 that the City of Glendale ratified the conduct of Jose Borbon after investigating the incident. Further, the Plaintiff alleges in paragraph 27 that an officer, director, or managing agent of the City of Glendale ratified the conduct of Jose Borbon by continuing his employment after an investigation of Jose Borbon’s conduct.. These allegations are sufficient to demonstrate that the City of Glendale may be liable under Civil Code section 3294 for the acts of its employee.

Accordingly, the Plaintiff has pleaded sufficient particular allegations to support the claim for elder abuse against Jose Borbon and the City of Glendale.

The Defendants also argue that they are immune under Government Code sections 821.6 and 820.2. Government Code section 821.6 provides the following

A public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause.

Section 821.6 immunity is generally perceived as prosecutorial immunity and immunity from malicious prosecution. Kayfetz v. State of California (1987) 156 Cal.App.3d 491, 497. However, this prosecutorial immunity can apply to acts by police officers during the course of an investigation. Johnson v. City of Pacifica (1970) 4 Cal. App. 3d 82, 86. In Johnson, the police officers investigated a claim that the plaintiff was engaged in forgery and then reported their determination to the district attorney. The plaintiff was arrested, but the charges were dropped. When the plaintiff then filed a complaint against the police officers, the trial court sustained a demurrer on the ground that the police officers were immune under section 821.6 from the claim that they had engaged in negligence when they reported a determination that the plaintiff had engaged in forgery because the plaintiff’s claim arose from the police’s officers conduct during an investigation. The Court of Appeal affirmed.

In the pending case, the Plaintiff alleges in paragraphs 5 and 6 that the Defendant, Jose Borbon, while investigating a motor vehicle accident, began to claim that the Plaintiff had bumped into him. The Plaintiff alleges that Jose Borbon grabbed the Plaintiff’s arm, screamed at the Plaintiff about his attitude, and struck the Plaintiff on his left shoulder and body.

The act of striking the Plaintiff on the left shoulder does not arise from the investigation of the motor vehicle accident. It does not arise from a determination on the cause of the motor vehicle accident or from a report related to the motor vehicle accident. Instead, it arises from a separate act, i.e., the allegations that Jose Borbon engaged in an act of retaliation because he believed that the Plaintiff had bumped into him. The immunity of section 821.6 does not apply to this claimed battery because it is not related to the investigation of or report on the motor vehicle accident.

Section 820.2 immunity provides that 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 the discretion vested in him, whether or not such discretion was abused. Section 820.2 immunity is reserved for “basic policy decisions” which have been expressly committed to certain branches of the government, as to which judicial interference would be “unseemly” and interfere with that body’s decision-making process. Zuniga v. Housing Authority (1995) 41 Cal. App. 4th 82, 97-98. It does not apply to lower level or ministerial decisions that merely implement the basic policy decisions. Id.

For example, in Tarasoff v. Regents of University of California (1976) 17 Cal. 3d 425, a patient undergoing psychotherapy at a state university hospital made threats against a young woman during the course of psychotherapy. The patient was confined temporarily at a mental hospital, but was then released, and killed the girl. The girl’s parents filed a complaint naming the therapists. The causes of action against the therapists were dismissed on a demurrer by the trial court on the ground that they were immune. The Supreme Court concluded that the therapists were not immune from liability for their failure to warn the girl and her parents because a “basic policy decision” was not involved.

Similarly in Lopez v. Southern Cal. Rapid Transit District (1985) 40 Cal. 3d 780, the court found a public transit district not immune from liability for injuries sustained by passengers when a fight broke out on a bus. The Supreme Court found that no immunity existed because the bus driver’s decision not to protect passengers was not a basic policy decision and it did not rise to the level of governmental decisions calling for judicial restraint.

In the pending case, there are no allegations that the Defendants were engaged in any type of basic policy decision for which judicial interference would interfere with the Defendant’s decision-making process. Instead, the allegations indicate a lower level decision by Jose Borbon to engage in a battery against the Plaintiff in retaliation for the Plaintiff bumping into him. There is no immunity under section 820.2 for this claim.

Therefore, the Court overrules the demurrer to the second cause of action for elder abuse because it states sufficient facts and because the Defendants are not immune under Government Code sections 821.6 or 820.2 from this claim.

RECOMMENDED RULING:
OVERRULE demurrer to second cause of action.