2016-00201894-CU-PO

Susan Oliver vs. Sy Arden Way, LLC

Nature of Proceeding: Hearing on Demurrer to Plaintiffs’ Amended Complaint and Joinder by

Filed By: Reusch, Mark S.

Defendants Sy Arden Way, LLC, Syufy Enterprises, Sywest Development, LLC, Sywest Holdings, LLC and Arden Way Hospitality LLC dba Motel 6 Cal Expo Sacramento’s (collectively “Defendants”) demurrer to Plaintiffs’ First Amended Complaint (“FAC”) is ruled upon as follows.

Defendants’ request for judicial notice is GRANTED.

Defendant G6 Hospitality LLC’s joinder is GRANTED.

Overview

This action arises from the death of Sacramento County Sheriff’s deputy Danny Oliver and personal injuries to his partner, Scott Brown (collectively “Deputies”).

Plaintiffs allege that the Deputies were at a Motel 6 parking lot where they had stopped on their way back to their office from downtown Sacramento. It was the Deputies’ intention to stop by that location in order to “run” license plates, which is an activity

they commonly performed at various parking lots throughout Sacramento County. Plaintiffs allege that independent of the Deputies’ conduct, Defendants created a dangerous condition by allowing the shooter to stay at the Motel 6 and rent a room to a person who should not be at that Motel and should not be allowed to stay there. They violated the industry standard by allowing the shooter to stay at that hotel and created a dangerous condition to those on its premises. As a result of that independent negligence, the shooter was on the subject property at the same time that the Deputies were there performing unrelated tasks. As the Deputies pulled around to the rear of the Motel 6, a gunshot was fired from the front of the vehicle striking Mr. Oliver who passed away from the wound.

The FAC asserts causes of action for: (1) wrongful death, (2) premises liability, (3) negligence, and (4) personal injury.

Defendants demur to each cause of action on the ground that Plaintiffs’ claims are barred by the firefighter’s rule.

Under the firefighter’s rule, “a member of the public who negligently starts a fire owes no duty of care to assure that the firefighter who is summoned to combat the fire is not injured thereby.” (Neighbarger v. Irwin Industries, Inc. (1994) 8 Cal.4th 532, 538.) The firefighter’s rule also is applicable to police officers and bars their recovery for injuries incurred as a result of conduct that necessitated their presence at the scene. (Walters v. Sloan (1977) 20 Cal.3d 199, 202.) The firefighter’s rule applies to intentional acts, as well as to negligent and reckless acts, if they could reasonably have been foreseen by the firefighter or police officer when he or she embarked on a course of action. (See City of Los Angeles v. O’Brian (1984) 154 Cal. App. 3d 904, 906-907; Holden v. Chunestudey (1980) 101 Cal.App.3d 959, 961-962.)

Firefighters and police officers who respond to perceived risks in their professional capacity in order to protect the public cannot claim, simply because their presence at the scene was fortuitous rather than the result of a radio call or other summons, that their presence was independent of or unrelated to the cause of their injuries. (Kelhi v. Fitzpatrick (1994) 25 Cal. App. 4th 1149, 1158-1159; Seibert Sec. Servs., Inc. v. Superior Court (1993) 18 Cal. App. 4th 394, 411.)

However, recovery is proper if the officer’s or firefighter’s injury resulted from the defendant’s separate and independent act that was not the original circumstance for which the officer or firefighter was called. (Rose v. City of Los Angeles (1984) 159 Cal. App. 3d 883, 889.)

The demurrer is OVERRULED. The California state cases upon which Defendants’ rely, Holden v. Chunestudey (1980) 101 Cal.App.3d 959, Kelhi v. Fitzpatrick (1994) 25 Cal.App.4th 1149, Seibert Sec. Servs., Inc. v. Superior Court (1993) 18 Cal. App.4th 394, and Hodges v. Yarian (1997) 53 Cal.App.4th 973, do not support their position. All the cases are in the context of a motion for summary judgment and not a challenge

to the pleadings.

The cases are also distinguishable.

In Kelhi, the plaintiff was an on duty motorcycle highway patrol officer. Two tires suddenly broke off the truck in front of him. He immediately braked, turned on his flashers and began checking traffic behind him. He was then injured when one of the tires bounced off the retaining wall and struck him. The Court of Appeal affirmed the trial court’s granting of summary judgment against the officer. The court applied the firefighter’s rule, concluding that despite his presence being fortuitous, he was “injured by the very risk to which he responded in the line of duty to protect the public.” (Kelhi at 1159.) He “responded immediately and professionally to a hazard which fortuitously appeared in front of him. Officer Kelhi’s injuries were caused by the exact risk he was attempting to minimize in the interest of public safety.” (Id. at 1160.) Thus, the firefighter’s rule applied because it involved an officer “responding” to an incident and encountering the risk to which he responded. Here, as alleged, the Deputies were not responding to an incident when they were attacked. The Deputies were at the parking lot to “run” license plates. Additionally, they did not encounter the risk to which they were responding. Rather, they pulled around to the rear of the motel and a gunshot was first from the front of the vehicle.

In Seibert, the officer was fortuitously present at a hospital when he heard a cry for help by a private security guard who was being attacked by a mental patient. The Court of Appeal vacated the trial court’s order denying the defendant’s motion for summary judgment. The court explained that although the officer was initially at the hospital completing paperwork, the alleged negligence of the security guard caused him “to initiate a new and different law enforcement action to subdue the patient. Thus, while the conduct of Seibert’s employees may have been ‘independent and unrelated to’ the conduct which originally brought plaintiff to the hospital, it is factually undisputed that it was the immediate cause of the officer’s presence in or near the holding cell” where the attack occurred. (Seibert at 411 [emphasis in original].) Here, as alleged, Defendants’ negligence was not the “immediate cause” of the Deputies’ presence at the motel.

In Holden, the officer was called to investigate an accident in which a truck driven by defendant left the freeway and hit a tree and came to rest on the bushy side of a hill. In negotiating the hill near the scene of the accident, plaintiff fell and injured his back and tailbone. Evidence produced on the motion for summary judgment, including the defendant’s blood alcohol content, showed the defendant to be under the influence of intoxicating beverages. (Holden v. Chunestudey (1980) 101 Cal.App.3d 959, 961.) Here, as alleged, the Deputies were not “called” to investigate anything at the motel or the shooter.

In Hodges, an off-duty deputy sheriff was injured when he confronted and struggled with, then shot and killed, a suspected burglar who had broken into the garage of the

apartment building where the deputy lived. The deputy was aware that the intruder could be armed, and that a confrontation could result in injury to himself or to the intruder. When he found the suspect, the deputy repeatedly identified himself as a “deputy sheriff.” (Hodges v. Yarian, 53 Cal. App. 4th 973, 977.) The Court of Appeal held as a matter of law that the firefighter’s rule barred the deputy’s claims against the apartment building. The court explained that the deputy “acted in response to suspected criminal activity in the garage. He acted as a California peace officer, utilizing his professional training to confront and subdue the intruder. He specifically and repeatedly asserted his authority as a California peace officer while attempting to effectuate an arrest of the suspect.” (Id. at 981.) Here, as alleged, the Deputies did not “act in response” to criminal activity at the motel or when they pulled around to the rear of the motel and were shot.

Orozco v. County of Yolo (E.D.Cal. 1992) 814 F.Supp. 885 is also inapposite. In Orozco, the officer was injured while executing a search warrant on the defendants’ home. He “was called to the scene because drug activity was suspected. He knew that drug activities present a significant risk that an officer will be shot.” (Id. at 898.) “The firefighter’s rule will apply in circumstances ‘where a police officer. . . should reasonably anticipate that one of the persons whom he was called on to subdue might resist him by the use of the firearms involved.’” (Id.) Here, as alleged, the Deputies were not called upon the motel, nor called to upon to subdue the shooter.

Taking Plaintiffs’ allegations as true, Plaintiffs’ complaint survives demurrer.

Defendants shall file and serve an answer by no later than March 19, 2018.