Filed 12/23/20 K.C. v. County of Ventura CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

K.C., a Minor, etc., et al.,

 Plaintiffs and Appellants,

v.

COUNTY OF VENTURA et al.,

 Defendants and Respondents.

2d Civ. No. B302229

(Super. Ct. No. 56-2019-

00523653-CU-PO-VTA)

(Ventura County)

Plaintiffs K.C. and K.C. (Plaintiffs) appeal from the 

judgment after the trial court sustained the County of Ventura’s 

(the County) demurrer to the first amended complaint without 

leave to amend. We affirm. 

FACTUAL AND PROCEDURAL HISTORY

Plaintiffs are the children of P.S. and Kevin C. In 

September 2014, a Ventura County Sheriff’s Deputy arrested 

Kevin C. after a domestic dispute in which P.S. suffered injuries. 

Upon arrest, deputies seized Kevin C.’s gun. The District 

Attorney charged Kevin C. with misdemeanor battery. It 

requested the court to “formally” order the gun confiscated. The 
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trial court did so in November 2014. The sheriff did not receive a 

copy of the court’s order from the district attorney until 11 

months later in October 2015. 

In the meantime, the district attorney successfully 

moved to dismiss the battery charge against Kevin C. in January 

2015. Kevin C. subsequently filed an application to the 

Department of Justice (DOJ) for the release of his gun. The DOJ 

then sent him a letter stating he was eligible to possess a gun. 

The sheriff returned the gun to Kevin C. in March 2015. In 

October 2015, the sheriff received a copy of the confiscation order 

for the first time, but took no action to retrieve the gun. Three 

years later, Kevin C. shot and killed P.S. using the same gun. 

Plaintiffs filed a complaint alleging wrongful death against the 

County and other defendants.1

The first amended complaint alleges that the County 

acted negligently when it mishandled the court’s confiscation 

order. (Gov. Code,

2 §§ 815.2, subd. (a), 820, subd. (a)). Plaintiffs

allege the district attorney’s failure to timely transmit the 

confiscation order to the sheriff resulted in the improper release 

of the gun to Kevin C. Plaintiffs also allege that the sheriff failed 

to retrieve the gun after learning of the “mistake.” Plaintiffs 

allege these negligent acts caused P.S.’s death.

The County demurred to the first amended 

complaint. It argued the complaint did not state sufficient facts 

1 The first and second causes of action for negligence were

alleged only against the County. The other causes of action were 

not against the County. 

2 Further unspecified statutory sections are to the 

Government Code. 
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to support the negligence causes of action because the Plaintiffs 

did not establish the elements of duty and causation. The County 

also argued that it was immune from liability pursuant to 

sections 818.2 and 821.6 and Penal Code section 18500. 

The trial court sustained the demurrer without leave 

to amend. The court found that the allegations in the first 

amended complaint do not establish the elements of duty or 

causation and that immunity pursuant to sections 818.2 and 

821.6 and Penal Code section 18500 applies. The court entered 

judgment in favor of the County. 

DISCUSSION

Demurrer

Plaintiffs contend the trial court erred when it 

sustained the demurrer without leave to amend because (1) the 

complaint pled sufficient facts to establish the duty and causation 

elements of the negligence causes of action; (2) immunity 

pursuant to Penal Code section 18500 does not apply; and (3) 

immunity pursuant to sections 818.2 and 821.6 does not apply. 

We conclude the court properly sustained the demurrer. 

We independently review the order sustaining the 

demurrer, accepting as true “‘all material facts properly pleaded, 

but not contentions, deductions or conclusions of fact or law.’ 

[Citation.]” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) We 

interpret the complaint “reading it as a whole and its parts in 

their context.” (Ibid.) A demurrer should be sustained where the 

complaint fails to allege facts sufficient to state a cause of action, 

or discloses a defense that would bar recovery. (Code Civ. Proc., 

§ 430.10; Balikov v. Southern Cal. Gas Co. (2001) 94 Cal.App.4th 

816, 819.)
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To prevail on a negligence cause of action, a plaintiff 

must prove the elements of duty, breach, causation, and injury. 

(Vasilenko v. Grace Family Church (2017) 3 Cal.5th 1077, 1083.) 

“The existence of a duty is a question of law, which we review de 

novo.” (Ibid.) 

Plaintiffs argue the County owed a duty to protect 

P.S. from Kevin C.’s access to the gun. We disagree. “‘Where a 

legal duty is not created by statute, the question of whether a 

legal duty exists is analyzed under general principles of tort law.’ 

[Citation.]” (Frausto v. Department of California Highway Patrol

(2020) 53 Cal.App.5th 973, 989.)

“As a general rule, absent a special relation or 

circumstance, ‘one has no duty to control the conduct of another.’ 

[Citation.]” (Baker v. City of Los Angeles (1986) 188 Cal.App.3d 

902, 906-907 (Baker).) A “‘person who has not created a peril is 

not liable in tort merely for failure to take affirmative action to 

assist or protect another unless there is some relationship 

between them which gives rise to a duty to act.’ [Citations.]” (Id. 

at p. 907.) As it pertains to this case, “‘law enforcement officers, 

like other members of the public, generally do not have a legal 

duty to come to the aid of [another] person . . . .’ [Citation.]” 

(Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1129.) 

Moreover, a person who volunteers aid is not obligated to 

continue that aid indefinitely. (City of Santee v. County of San 

Diego (1989) 211 Cal.App.3d 1006, 1015, 1018 (City of Santee) 

[extending the duration and scope of a duty to require indefinite 

future aid would be “particularly inappropriate” if applied to law 

enforcement officers because it could discourage voluntary aid to 

imperiled citizens].) 
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Here, there was no special relationship between the 

County and P.S. after the County confiscated Kevin C.’s gun. In 

Baker, supra, 188 Cal.App.3d 902, the Court of Appeal held

under similar circumstances that a city was not liable for a wife’s 

gunshot injuries inflicted by her husband because there was no 

special relationship between the wife and the City. There, police 

officers responded to the wife’s 911 call after her husband 

threatened to shoot her. After they arrived, a police officer 

confiscated the husband’s gun. (Id. at p. 905.) The next night, 

different police officers responded to another domestic dispute at 

the home and arrested the husband. He was convicted and 

placed on three years’ probation with a condition prohibiting 

weapons possession. (Ibid.) 

A month after his sentence, the police released the 

gun back to the husband. (Id. at p. 905.) Seven months later, the 

husband shot the wife. (Ibid.) The wife sued the City, alleging 

that the police acted negligently when they returned the gun to 

her husband. (Ibid.) The jury found in favor of the wife, but the 

Court of Appeal reversed. (Id. at pp. 906-907.) 

The Court of Appeal determined that the City did not 

owe a duty to the wife. (Baker, supra, 188 Cal.App.3d at p. 907.) 

The City could only have owed a duty under the “‘good 

Samaritan’” rule, pursuant to which the “‘good Samaritan’ has a 

duty to exercise due care in rendering aid and is liable if ‘his 

failure to exercise such care increases the risk of harm or if harm 

is suffered because of another’s reliance on the undertaking.’ 

[Citation.]” (Ibid.) The court noted that the duty of a “‘good 

Samaritan’” is a limited one. Once they have performed a 

voluntary act, they are “not required to continue to render aid 

indefinitely.” (Ibid.) Thus, when the first officer confiscated the 
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husband’s gun, he voluntarily entered into a special relationship 

with the wife for “the limited purpose of protecting her from the 

potential harm that threatened her at the moment”; but, he “did 

not become a guarantor of her future safety.” (Ibid., emphasis 

added.) His duty ended once the gun was transported to the 

police station. (Id. at pp. 907-908.)

The court further explained that “the relationship 

established by the voluntary act of a ‘good Samaritan’ is also 

limited.” (Baker, supra, 188 Cal.App.3d at p. 908.) The 

voluntary conduct of one officer does not impose a duty of care on 

all other officers in the police department. (Id.; see also Weissich 

v. County of Marin (1990) 224 Cal.App.3d 1069, 1077-1078 

(Weissich).) 

Here, like Baker, the sheriff owed no duty to protect 

P.S. beyond the initial domestic violence incident. Any limited 

duty to protect P.S. from Kevin C.’s threats ended once the gun 

was removed from the home. (Baker, supra, 188 Cal.App.3d at 

pp. 907-908.) There was no continuing obligation to protect P.S., 

especially under these circumstances where the fatal shooting 

took place years after the underlying domestic violence charges 

were dismissed and the gun returned. (City of Santee, supra, 211 

Cal.App.3d at p.1015; see also Weissich, supra, 224 Cal.App.3d at 

p. 1079 [“it would be unreasonable” to interpret an implied 

promise made eleven years prior as imposing a duty that 

obligated the defendants “in perpetuity”].) Furthermore, any 

special relationship between the deputy who confiscated the gun

and P.S. did not extend to all County workers. (Baker, supra, at 

pp. 908-909.) 

Plaintiffs argue that Baker is distinguishable because 

the statutory sections governing the seizure of a gun during a 
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domestic violence incident (Pen. Code, § 18250, et seq.), have 

changed since Baker was decided. Assuming the gun was seized 

under Penal Code section 18250, et seq.,3 Plaintiffs do not show 

how the new statutory scheme distinguishes this case from 

Baker. 

Plaintiffs assert for the first time in their reply brief 

that the court’s confiscation order was made pursuant to Penal 

Code section 18400, and that the County was prohibited from

returning the gun unless “there is further court action ordering 

its return.” But, a “party may not raise an issue for the first time 

on appeal [citation], and points raised for the first time in a reply 

brief on appeal will not be considered, absent good cause for 

failure to present them earlier [citation].” (Nordstrom Com.

Cases (2010) 186 Cal.App.4th 576, 583.) Plaintiffs have not 

demonstrated good cause here. In any event, Penal Code section 

18400 describes the process by which law enforcement can 

petition the court, in instances where the agency believes the 

return of the firearm would create a danger, to determine 

whether a firearm should be returned. That was not done here, 

and Plaintiffs fail to establish that the County had a duty to file 

such a petition.

Plaintiffs also assert that the “specific procedures 

governing the seizure and return of firearms” required the 

district attorney to timely file the confiscation order with the 

sheriff. Plaintiffs do not specify what these procedures were, and 

how they relate to the release of the gun. They do not show the 

3 Penal Code section 18250 states that a sheriff “shall take 

temporary custody” of a gun discovered at the scene of a domestic 

violence incident. 
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confiscation order or any “specific procedures” imposed a duty 

upon the County to prevent the release of the gun. 

Plaintiffs further contend the County created a 

special relationship with P.S. because it “lulled” P.S. into a false 

sense of security. Plaintiffs rely on Wallace v. City of Los Angeles 

(1993) 12 Cal.App.4th 1385 (Wallace), and Carpenter v. City of 

Los Angeles (1991) 230 Cal.App.3d 923 (Carpenter). These cases 

are distinguishable. In both of those cases, there was sufficient 

evidence to show a special relationship between the City and the 

victims because the victims assisted the prosecution as witnesses 

in pending criminal cases. (Wallace, supra, at pp. 1397-1398 

[victim was set to testify as a witness in a homicide trial before 

she was murdered]; Carpenter, supra, at pp. 927-928 [robbery 

victim testified in the preliminary hearing and was shot before he 

testified at trial].) The courts held that a special relationship is 

created when a public employee asks a private citizen to assist in 

a public function which involves a foreseeable risk of injury. 

(Wallace, supra, at p. 1400; Carpenter, supra, at p. 933.) Where 

such a special relationship exists, the public employee has a duty 

to warn of threats known to the employee. In both cases, the 

officers either failed to tell the victims about threats or 

minimized them, and the officers assured the victims of their 

safety. Such actions “lulled” the victims into a false sense of 

security. (Wallace, supra, at p. 1401; Carpenter, supra, at p. 933-

934.) 

Unlike Wallace and Carpenter, there was no special 

relationship here. The County did not make any assurances of 

P.S.’s safety, and Plaintiffs do not allege that she relied upon any. 

Because we conclude the complaint does not establish 

the element of duty, we need not address the issues of causation
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and statutory immunities. “A judgment of dismissal after a

demurrer has been sustained without leave to amend will be 

affirmed if proper on any grounds stated in the demurrer, 

whether or not the court acted on that ground.” (Carman v.

Alvord (1982) 31 Cal.3d 318, 324.) 

Leave to Amend

Plaintiffs contend the trial court erred when it did 

not grant them leave to amend the first amended complaint. We 

again disagree. 

We review the court’s order for abuse of discretion, 

“which is demonstrated if there is a reasonable possibility that 

the pleading could be cured by amendment.” (Ochs v. PacifiCare 

of California (2004) 115 Cal.App.4th 782, 796.) “The plaintiff has 

the burden of showing that the pleading can be cured, but may 

make this showing for the first time on appeal.” (Ibid.) 

Plaintiffs have not carried their burden to show that 

the pleading could be cured by an amendment. In fact, Plaintiffs 

had an opportunity to cure the complaint in the court below. 

After filing their initial complaint, the County demurred on 

similar grounds, and Plaintiffs did not include any additional 

facts in their first amended complaint to cure the defects raised. 

The trial court did not abuse its discretion.

DISPOSITION

The judgment is affirmed. The County shall recover 

costs on appeal. 

NOT TO BE PUBLISHED.

TANGEMAN, J.

We concur:

GILBERT, P. J. YEGAN, J.
Vincent J. O'Neill, Jr., Judge

Superior Court County of Ventura

______________________________

The Wallace Firm, Bradley S. Wallace; and Joseph S. 

Socher for Plaintiffs and Appellants. 

Lawrence Beach Allen & Choi, Paul B. Beach, James 

S. Eicher, Jr. and Rocco Zambito, Jr. for Defendants and 

Respondents.