Filed 1/18/24 Long v. City of Exeter CA2/6

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

BETTY LONG, et al.,

 Plaintiffs and Respondents,

v.

CITY OF EXETER, et al.,

 Defendants and Appellants.

2d Civil No. B316324

(Super. Ct. No. 17CV-0529)

(San Luis Obispo County)

A city police department sold an attack-trained police 

service dog to the officer who had been its handler and who was 

resigning from the department to take a job as a police offer in 

another city. Six months later, the dog escaped from the officer’s 

fenced yard and attacked two innocent people on their front 

yards, killing one and permanently injuring the other. A jury 

found the city’s police chief and the supervisor of its canine unit

negligently failed to warn the officer that the dog could not 

unlearn its attack training, would remain dangerous, should be 

confined in a kennel, and could not safely be treated as a pet. It 

awarded the surviving plaintiff $12.5 million in damages and the 
2

deceased victim’s survivors damages of $7 million. It apportioned 

fault for these damages at 42% for the supervisor of the canine 

unit, 41.5% for the police chief and 16.5% for the former officer 

who owned the dog. The city and its employees appeal, 

contending that they owed no duty to the plaintiffs, that the trial 

court erred when it denied leave to amend the city’s answer to 

allege an affirmative defense and that the damages awarded 

were excessive. 

We conclude appellants owed no duty to provide a more 

explicit and robust warning to the officer about the 

dangerousness of the service dog or the conditions under which it 

should be kept. Accordingly, we reverse.

In addition to challenging the judgment, appellants 

contend the trial court abused its discretion when it awarded 

sanctions of $5000 against their counsel after defense counsel 

unsuccessfully opposed motions for protective orders. We 

conclude the trial court did not abuse its discretion and therefore 

affirm the December 11, 2020 order awarding sanctions. 

Facts

The Exeter Police Department’s K9 Program

The City of Exeter police department (the Department) 

hired Alex Geiger as a police officer in August 2014. After 

completing a one-year probationary period, Geiger applied to 

become a canine handler. His application was accepted by the 

supervisor of the canine unit, Sgt. Brett Inglehart.

The Department purchases dogs for its canine unit from 

Jay Brock, the owner and operator of Top Dog Training Center.

Brock also trains both the dogs and the dog handlers. He 

delivered Neo, a young male Belgian Malinois, to Geiger’s home. 

The Department supplied Geiger with a kennel, a food dish, a 
3

special patrol car and other supplies needed for Neo’s training 

and maintenance. 

Along with the dog, Geiger received a set of written 

instructions from Brock detailing how Neo should be treated 

during the “bonding” period, and a separate set of written 

instructions for use during the training courses. During the 

bonding period, Geiger agreed that he would be the only person 

to feed and groom Neo, and that he would spend “‘quiet 

time/bonding time’ with the dog, i.e., sitting quietly with the dog 

(on leash and/or in a strictly controlled environment, i.e., fenced 

yard, etc., but not inside the kennel).” He was warned and 

agreed that Neo would remain kenneled “at all times when the 

handler is not personally present to control the dog . . .” and that 

he would read an article about having a police service dog in the 

home. During the training courses, Geiger agreed that he would 

be the only person to give Neo commands and the only person to 

feed, groom and care for Neo. He was further warned and agreed 

to keep Neo “on lead” at all times unless secured in the patrol 

vehicle or kennel. In addition, he was warned and agreed that 

Neo would remain kenneled while at home and would not have 

“direct interaction with other dogs, pets, etc.” 

Geiger and Neo spent about three weeks bonding before 

beginning the training courses with Brock. Neo was trained both 

to search for narcotics (“search training”) and to search for and 

apprehend people (“patrol training”). According to Brock’s 

syllabus, training in each discipline would consist of 200 hours of 

hands-on work and 40 hours of classroom time. Log sheets from 

Geiger’s training, however, documented only 54 to 70 hours of 

hands-on patrol training with Neo and about 100 hours of 
4

narcotics search training. Geiger received no classroom 

instruction. 

After receiving certificates of completion for the initial 

training, Geiger and Neo participated in weekly training with 

other canine teams in the Department. In addition, Brock 

scheduled and conducted monthly training sessions for canines 

and handlers in the Department and other police departments in 

the area. Geiger attended these sessions. 

Brock explained that dogs are trained to search for a 

suspect on their handler’s command and then to “bite and hold” 

the suspect. This means that, when the dog reaches the suspect

and is commanded to bite, it will “bite the location that’s closest 

to them, and they hold onto that spot until the handler orders 

them to release.” Dogs are taught to use their full mouth to bite 

and grasp the suspect and then continue to hold the suspect until 

commanded to release. Because patrol trained dogs are taught 

that it is acceptable to bite a human, they are potentially 

dangerous and unpredictable when not under the direct control of 

their handler. 

Geiger began patrolling with Neo in December 2015. He 

was never required to deploy Neo to apprehend a person during 

that time. Geiger testified that he understood Neo needed to 

remain in his kennel unless he was working or exercising with 

Geiger. Neo was trained to understand that he was working 

whenever he was outside his kennel; when he was in the kennel, 

Neo knew it was time to relax. Geiger testified that Sgt. 

Inglehart never said anything to him about allowing Neo to play 

with other dogs. So, when Neo was not in his kennel, Geiger 

would allow him to play with his pet German Shepherd, a female 

named Rolo. 
5

Geiger Resigns and Purchases Neo

In the summer of 2016, Geiger accepted a police officer 

position with the Grover Beach Police Department. He wanted to 

continue working as a canine handler, but learned before he left 

the Department that Grover Beach was not interested in forming 

a canine unit. Sgt. Inglehart initially told Geiger that he could 

buy Neo from the Department, they could try to pair Neo with 

another handler, or they could euthanize Neo. Geiger was later 

told that Brock did not think Neo would bond with a new 

handler, so the only options were for Geiger to purchase the dog, 

or for Neo to be euthanized. 

Brock testified that Inglehart never spoke to him about 

pairing Neo with a different handler. He learned about Geiger’s 

purchase of Neo only after it was completed. Brock believed it 

was not unusual for a police service dog to be retrained to work 

with a new handler. He opined that Neo could have bonded with 

a new handler.

Sgt. Inglehart testified that a retired police service dog

should be handled and cared for in the same way as a working 

canine. In Inglehart’s opinion, a retired police service dog should 

be kept in a kennel or crate unless in the direct control or 

presence of the handler. A retired police service dog should not, 

Inglehart believed, be treated as a pet. 

Inglehart testified that Geiger was warned, “through his 

training and the fact that the dog was living with him, and his 

experience,” that Neo would continue to be a potentially 

dangerous animal, even if Neo was no longer working. “The 

training constitutes warning.” When Inglehart was asked 

whether he gave any warnings to Geiger, he replied, “I believe he 

was warned.” The Department admitted in discovery that 
6

Inglehart did not further warn Geiger that Neo would continue to 

be dangerous after he was retired as a working canine. 

Inglehart did not know whether anyone from the 

Department expressly warned Geiger that Neo should not be 

treated like a pet or that he should be kept in a kennel unless 

under Geiger’s direct control. He believed Geiger “had training 

and the knowledge,” but also acknowledged there would have 

been “no harm” in giving Geiger further warnings. Inglehart 

acknowledged that he keeps his own retired police service dog 

kenneled. 

Clifton Bush, then the Department’s Chief of Police, never 

warned Geiger about the dangers of keeping a retired police 

service dog or the conditions in which Neo should be kept, nor did 

he know whether anyone else warned Geiger. Bush did not 

believe Geiger required any further warnings. 

Bush made the final decision to sell Neo to Geiger. He 

directed Inglehart to prepare the written sales contract. 

Inglehart copied the contract from a previous one. It stated that 

Geiger agreed “to continue the quality of care that Neo has been 

accustomed to and accept that neither the City of Exeter nor the 

Police K9 Association shall have no further financial liability for 

Neo.” The contract did not, however, specify any warning against 

treating Neo as a pet, that Neo’s patrol training could not be 

reversed, that Neo would remain dangerous, or that Neo needed 

to be kenneled when not under Geiger’s direct control. 

Geiger also agreed, “to hold harmless, defend and 

indemnify the City of Exeter and the Police K9 Association, from 

and against any and all cost, loss, expense or liability arising out 

of my ownership and control of Neo.” Bush testified the contract 

could have required Geiger to kennel Neo, but did not. He 
7

believed the Department could not control how Geiger treated the 

dog after Geiger resigned from the Department. 

Geiger moved to a rental house in Grover Beach that had a 

fenced back yard. Thereafter, he treated Neo as a pet. During 

the day, Geiger allowed Neo to play in the backyard with his 

German Shepard, Rolo. Geiger testified that he did not 

understand Neo needed to be kept in his kennel and should not 

be treated as a pet. 

The Incident

On the day of the incident, Geiger went to work as a police 

officer, leaving both Neo and Rolo in the backyard. While on 

patrol, he received a text from a roommate, informing him that a 

board in the backyard fence was missing. Geiger went home, 

wedged the board back into place and returned to his patrol 

duties. 

Later, Geiger received a radio call about a dog attack near 

his home. He arrived to find another officer pointing a shotgun 

at Neo who was covered in blood. Rolo was nearby, but had no 

blood on her. Two of Geiger’s neighbors, David Fear and Betty 

Long, were lying on the ground, bleeding and obviously seriously 

injured. Geiger returned the dogs to his backyard. Thereafter, 

he surrendered Neo to an Animal Control officer to be 

euthanized.

The Victims’ Injuries

David Fear was standing in his front yard chatting with his 

neighbor, 85-year-old Betty Long, when Neo and Rolo came 

charging toward them. Fear was holding Long’s little dog in his 

arms. Neo lunged at Fear and started mauling him. Neo bit both 

of Fear’s arms, crushing both forearms and severing both radial 

arteries, causing him to bleed heavily. Neo also bit Fear on his 
8

right inner thigh and chest. Fear died three days after the 

attack, due to massive blood loss caused by these extensive and 

deep bite wounds. 

Fear is survived by three adult children with whom he 

enjoyed a close relationship. Each of his children testified that 

Fear was an important support and friend to them. 

Neo also knocked Ms. Long to the ground, causing her to 

hit her head and break her pelvis. Neo bit Long on her right hip, 

lower abdomen and right upper thigh. Her left arm and shoulder 

were displaced, requiring Long to undergo a complete shoulder 

replacement.

Long’s health and well-being plummeted after the attack. 

She had been living independently, driving, going out with her 

friends, traveling and volunteering as an election worker. After 

the attack, Long was no longer able to live independently. She 

used a walker and required assistance for all of her daily 

activities, including meals, grooming and personal hygiene. 

Long’s adult children took turns staying in her home to provide 

her with round-the-clock care. 

Long developed post-traumatic stress disorder as a result of 

the attack. This condition contributed to a stroke she suffered in 

2018 which left her with a speech impediment. Long continued 

to suffer from nightmares, anxiety and depression, despite taking 

medication. In late 2020, about four years after the incident, 

Long fell while using her walker and fractured her hip. She died 

in May 2023.

Testimony of Expert Witnesses

Two retired officers from the Los Angeles Police 

Department (LAPD) testified as expert witnesses for 

respondents. Adam Bercovici spent part of his career as a canine 
9

handler and kept his service dog after he promoted to another 

assignment. When he decided to keep his service dog, Bercovici 

received instructions from his supervisor and from the City 

Attorney about “the realities of having a retired canine.” 

Bercovici was warned that he needed to maintain the dog’s 

obedience training, keep it kenneled when not in Bercovici’s 

control, and remain in the “alpha” or control position in his 

relationship with the dog. He opined that any canine handler 

who was taking ownership of a retired police service dog should 

be given the same warnings. 

Bercovici acknowledged that POST, the organization that 

establishes and publishes policies for law enforcement agencies in 

California, does not publish standards governing the 

maintenance of retired police service dogs. Lexipol, a risk 

management company that writes policies and manuals for police 

departments, also does not publish policies relating to canine 

units or the maintenance of retired police service dogs.

Scott Allen DeFoe held numerous positions during his 20-

year tenure in the LAPD, including supervising a canine platoon. 

He testified that neither the POST standards nor the Exeter 

Police Department’s policies provide guidelines for retired service 

dogs. In DeFoe’s opinion, Geiger did not have enough experience 

as a canine handler to understand or appreciate how to handle a 

retired canine. He opined that Geiger should have been given 

warnings concerning the care, maintenance and medical care his 

retired canine required. Geiger should also have been warned 

that Neo could not be socialized with other pets, could not be 

untrained and should be kept in a locked kennel when not under 

Geiger’s direct control. In addition, Geiger should have been told 
10

that the dog would always be a dangerous weapon that could act 

on its own; Neo could not be turned into a pet. 

Ron Cloward, a retired police officer who spent 28 years 

with the Modesto police department, helped to write the POST 

standards for active service canines. He acknowledged that 

POST has no standards relating to training for canine handlers

or the care and maintenance of retired service dogs. Cloward 

believed there was no industry standard requiring a working 

service dog to be confined in a kennel, crate or patrol car except 

when under the handler’s direct control. 

Cloward opined that any competent canine handler would 

also be competent to handle a retired service dog. The handler 

would understand how to keep the dog under the handler’s direct 

control. If the handler is not present, the dog can only be 

controlled by being kept in a locked kennel. Many handlers, 

however, allow retired service dogs to run in a fenced yard 

without them being present. Cloward believed, “Each dog is 

going to act differently.” 

Cloward personally owns a retired service dog. He 

sometimes allows the dog to run in his fenced yard without him 

being present. He would also allow the dog to run in the fenced 

yard while a family member or friend was present. His current 

dog would be fine around a friend, but he has had other dogs that 

would react more aggressively. Cloward testified that, 

“Unfortunately, it is very common,” to have a retired service dog

unkenneled 100 percent of the time. He opined that retired 

service dogs should be kept in a kennel when their handler is not 

present.

Nhut Huynh, a long-time canine handler with the LAPD, 

testified that an officer who keeps a retired service dog accepts
11

responsibility for the dog, which then becomes the officer’s pet. 

He received no training or official warning before adopting his 

own retired service dog. Huynh uses “a degree of caution” with 

his retired service dog because, “we train certain things into 

them.” He is cautious with the dog because the dog has been 

trained to bite and could react to certain behaviors. Although his 

retired service dog is allowed to be around family members, the 

dog is not around friends or neighbors unless under Huynh’s 

direct control. 

Contentions

Appellants contend the judgment must be reversed because 

they owed no duty to protect Long and Fear by warning Geiger 

about the dangers of keeping Neo. Respondents amended their 

complaints to name Bush and Inglehart as defendants in place of 

Doe defendants. Appellants contend the trial court abused its 

discretion when it denied their motion to amend their answer to 

allege the affirmative defense that the Doe amendments were 

untimely. Finally, appellants contend the awards of noneconomic 

damages were excessive. Because we conclude appellants owed 

no duty to warn Geiger, it is not necessary for us to reach the 

latter two issues.

Discussion 

At trial, respondents asserted a single cause of action for 

negligence, alleging the City of Exeter was liable for their injuries 

because its employees, Bush and Inglehart, failed to warn Geiger 

that Neo would remain dangerous after being retired from active 

service, should be kenneled when not under Geiger’s direct 

control, and could not be treated as a pet. Appellants argued 

their conduct in selling Neo to Geiger as he left the Department 

was not negligent because, among other things, they had no duty 
12

to warn Geiger about Neo or to protect Long and Fear from 

Geiger’s negligent care of Neo. 

“[A] public employee is liable for injury caused by his act or 

omission to the same extent as a private person.” (Gov. Code, 

§ 820, subd. (a).) A public entity is liable for injury caused by the 

conduct of its employee within the scope of his or her employment 

“if the act or omission would, apart from this section, have given 

rise to a cause of action against that employee . . . .” (Id., § 815.2, 

subd. (a).)

“To establish a cause of action for negligence, the plaintiff 

must show that the ‘defendant had a duty to use due care, that he 

breached that duty, and that the breach was the proximate or 

legal cause of the resulting injury.’ [Citation.]” (Brown v. USA

Taekwondo (2021) 11 Cal.5th 204, 213 (Brown).) Whether a 

specific defendant owes a duty of care to a specific plaintiff is a 

question of law. (Ibid.)

“Under general negligence principles, of course, a person 

ordinarily is obligated to exercise due care in his or her own 

actions so as not to create an unreasonable risk of injury to 

others, and this legal duty generally is owed to the class of 

persons who it is reasonably foreseeable may be injured as the 

result of the actor’s conduct.” (Lugtu v. California Highway 

Patrol (2001) 26 Cal.4th 703, 716.) The general duty of due care 

“includes a duty not to expose others to an unreasonable risk of 

injury at the hands of third parties . . . .” (Id. at p. 717.)

Civil Code section 1714 “establishes the default rule that 

each person has a duty ‘to exercise, in his or her activities, 

reasonable care for the safety of others.’” (Brown, supra, 11 

Cal.5th at p. 214, quoting Cabral v. Ralphs Grocery Co. (2011) 51 

Cal.4th 764, 768 (Cabral).) This broad rule has its limits. 
13

“Where the defendant has neither performed an act that 

increases the risk of injury to the plaintiff nor sits in a relation to 

the parties that creates an affirmative duty to protect the 

plaintiff from harm, however, our cases have uniformly held the 

defendant owes no legal duty to the plaintiff.” (Brown, at p. 216.) 

As our Supreme Court clarified in Brown, the question 

whether a defendant has a duty to protect a plaintiff from 

injuries caused by a third party “is governed by a two-step 

inquiry. First, the court must determine whether there exists a 

special relationship between the parties or some other set of 

circumstances giving rise to an affirmative duty to protect. 

Second, if so, the court must consult the factors described in 

Rowland [v. Christian (1968) 69 Cal.2d 108 (Rowland)] to 

determine whether relevant policy considerations counsel 

limiting that duty.” (Brown, supra, 11 Cal.5th at p. 209.)

“A duty to control, warn, or protect may be based on the 

defendant’s relationship with ‘either the person whose conduct 

needs to be controlled or [with] . . . the foreseeable victim of that 

conduct.’” (Regents of University of California v. Superior Court

(2018) 4 Cal.5th 607, 619, quoting Tarasoff v. Regents of 

University of California (1976) 17 Cal.3d 425, 435.) The 

defendant’s duty to control a third party may arise where the 

defendant has a special relationship with a foreseeably 

dangerous third party “that entails an ability to control that 

person’s conduct.” (Regents, supra, at p. 619.) A special 

relationship between the defendant and a victim is one that 

“gives the victim a right to expect protection” from the defendant. 

(Ibid.) Examples of these relationships include parents and 

children, colleges and students, employers and employees and 
14

common carriers and passengers. (Brown, supra, 11 Cal.5th at p. 

216.) 

The conclusion that a defendant did not have a legal duty 

toward a plaintiff “constitutes a determination by the court that 

public policy concerns outweigh, for a particular category of cases, 

the broad principle” established in Civil Code section 1714. 

(Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1143 (Kesner).) 

Rowland, supra, 69 Cal.2d at pp. 112-113, articulates the factors 

we should consider in determining whether public policy concerns 

support creating “an exception to the statutory presumption of 

duty set forth in Civil Code section 1714.” (Modisette v. Apple 

Inc. (2018) 30 Cal.App.5th 136, 144.) Those factors are: “the 

foreseeability of harm to the plaintiff, the degree of certainty that 

the plaintiff suffered injury, the closeness of the connection 

between the defendant’s conduct and the injury suffered, the 

moral blame attached to the defendant’s conduct, the policy of 

preventing future harm, the extent of the burden to the 

defendant and consequences to the community of imposing a duty 

to exercise care with resulting liability for breach, and the 

availability, cost and prevalence of insurance for the risk 

involved.” (Rowland, supra, at pp. 112-113; see also Brown, 

supra, 11 Cal.5th at p. 217.) Because Civil Code section 1714 

establishes a general duty to exercise ordinary care, we rely on 

the Rowland factors “not to determine ‘whether a new duty

should be created, but whether an exception to Civil Code section 

1714 . . . should be created.’” (Kesner, supra, at p. 1143.)

Respondents contend appellants had a special relationship 

with Geiger because he was employed by the Department when 

he and Inglehart signed the purchase agreement. The agreement 

states that Geiger will purchase Neo “and take him with me 
15

when I leave the department.” Geiger’s resignation, and his 

ownership of Neo, took effect one week after he signed the 

purchase agreement. At that point, appellants were no longer 

Geiger’s employer and were no longer in a special relationship 

with him.

Respondents contend appellants’ conduct created and 

contributed to the risk of harm posed by Geiger’s negligent 

handling of Neo. They contend Inglehart and Bush convinced 

Geiger to purchase Neo by threatening to euthanize him after 

Geiger left the Department. Even though they knew Geiger’s 

training had not included any information relating to retired 

service dogs, Bush and Inglehart failed to include any warnings 

or instructions on maintaining or caring for Neo in the purchase 

agreement. Their misrepresentations regarding Neo’s being 

euthanized and their failure to warn Geiger increased the risk 

that Neo would injure an innocent person. 

But this argument is just a restatement of respondents’ 

central contention that appellants had a duty to warn Geiger 

about the dangers of keeping Neo. The conduct respondents rely 

on as the basis for imposing a duty is appellants’ failure to 

instruct or warn Geiger about the danger posed by Neo. As we 

have noted, however, a person generally has no duty to protect 

others from a peril the person did not create, unless that person 

has a special relationship with either the victim or the person 

who created the harm. (Brown, supra, 11 Cal.5th at pp. 213-214;

see also Jane Doe No. 1 v. Uber Technologies, Inc. (2022) 79 

Cal.App.5th 410, 424.) “A special relationship between the 

defendant . . . and the dangerous third party is one that ‘entails 

an ability to control [the third party’s] conduct.’” (Brown, supra, 

at p. 216.) Here, appellants had no special relationship with 
16

Geiger because he was not their employee and they had no ability 

to control his conduct after he resigned from the Department. 

Consequently, they had no duty to protect third parties from the 

peril, and potentially catastrophic damage, created by Geiger’s 

negligent treatment of Neo. 

Consideration of the Rowland factors supports this result. 

There can be no doubt that an unsupervised retired police service 

dog may pose a foreseeable risk of serious harm to anyone 

encountering it. Appellants were obviously aware of this risk 

because they were trained canine handlers and were familiar 

with the propensities of these dogs, and Neo in particular. But 

foreseeability “‘alone is not sufficient to create an independent 

tort duty. “‘. . . [The] existence [of a duty] depends upon the 

foreseeability of the risk and a weighing of policy considerations 

for and against imposition of liability.’”’” (Kesner, supra, 1 

Cal.5th at pp. 1149-1150, quoting Erlich v. Menezes (1999) 21 

Cal.4th 543, 552.) These policy considerations include the 

closeness of the connection between the defendant’s conduct and 

the injury suffered, the moral blame attached to the defendant’s 

conduct, the policy of preventing future harm, “‘“the extent of the 

burden to the defendant and consequences to the community”’” of 

imposing a duty of care in this context, and the availability of 

insurance for the risk involved. (Kesner, at p. 1150; Rowland, 

supra, 69 Cal.2d at p. 113.)

While it is certain that respondents were grievously injured 

by Neo, the connection between those injuries and appellants’ 

failure to provide more detailed warnings to Geiger is far from

certain. “In determining whether one has a duty to prevent 

injury that is the result of third party conduct, the touchstone of 

the analysis is the foreseeability of that intervening conduct.” 
17

(Kesner, supra, 1 Cal.5th at p. 1148.) Here, the training 

appellants provided to Geiger included the instruction to keep 

Neo in his kennel unless he was under Geiger’s direct 

supervision. Geiger was also instructed that Neo should not be 

socialized with other pets. Appellants had no reason to foresee or 

believe that Geiger would immediately abandon these warnings 

and instructions after he left the Department and retired Neo 

from active service. The connection between appellants’ failure to 

warn Geiger and his negligent treatment of Neo is not close.

For similar reasons, we believe that recognizing a duty to 

provide more robust warnings here is unlikely to further the 

policy of preventing future harm. That policy is “ordinarily 

served, in tort law, by imposing the costs of negligent conduct 

upon those responsible.” (Cabral, supra, 51 Cal.4th at p. 781.) 

The law generally assumes that “internalizing the cost of injuries 

caused by a particular behavior will induce changes in that 

behavior to make it safer.” (Kesner, supra, 1 Cal.5th at p. 1150.) 

But the harmful behavior here is the handler’s conduct in 

keeping a retired police service dog under conditions that are 

contrary to the instructions the handler received during training. 

Recognizing a duty on the part of supervisors and police 

departments to provide more robust warnings to handlers to 

continue following the instructions they have already received is 

unlikely to increase public safety because those parties have little 

or no control over the conditions under which retired police 

service dogs are kept.

Appellants contend that recognizing a duty in this context 

will impose a heavy burden on law enforcement and local 

governments that will ultimately be borne by taxpayers. We 

agree. If police departments are subject to liability for injuries 
18

caused by retired police service dogs they no longer own and that 

are kept under conditions they cannot control, the departments 

will be less likely to form canine units in the first place. 

Departments will also have an incentive to euthanize retiring 

service dogs rather than allow them to live with their former 

handlers. 

The final Rowland factor, availability of insurance, is 

neutral in this case. Many local governments are self insured, 

but it is possible to obtain insurance against many potential 

losses associated government activities. In either case, the costs 

will be borne by taxpayers. 

We conclude appellants had no legal duty to provide more 

robust warnings under these circumstances because there was no 

special relationship between appellants and Geiger sufficient to 

enable appellants to control Geiger’s conduct. Even if appellants 

had a special relationship with Geiger, the Rowland factors do 

not support recognition of a duty to warn under these 

circumstances. In the absence of a legal duty, appellants cannot 

be held liable in negligence for causing or contributing to 

respondents’ harm.

In reaching this conclusion, we wish to emphasize that we 

do not doubt the ghastly nature of Neo’s rampage or the severity 

of respondents’ injuries. But liability sounding in negligence is 

not premised on the depth of sympathy we feel for victims or the

law’s goal to compensate them at the expense of tortfeasors. As 

we have noted, the law does not permit us to impose on 

appellants a duty to control a former employee’s conduct. There 

was no reason to foresee his disastrous lack of judgment and 

common sense. On these facts, we have no choice but to reverse 

the judgment.
19

New Counsel and a New Theory

Appellants obtained new counsel in March 2020, after this 

matter had been pending for nearly three years. Three months 

later, appellants filed their second motion for summary 

judgment, contending respondents’ claims were time-barred 

under the Government Claims Act because they did not “timely 

and truthfully” identify Bush and Inglehart as the allegedly 

negligent City employees. They further contended respondents’ 

claims were barred by the statute of limitations because they did 

not timely substitute Bush and Inglehart for fictitiously named 

defendants. Respondents contended these affirmative defenses 

were waived because they were not pled in appellants’ answer. 

While the motion for summary judgment was pending, 

appellants filed a motion to amend their answer to allege the 

omitted affirmative defenses. They also subpoenaed documents 

from and the depositions of respondents’ counsel, seeking to 

discover when respondents learned about the involvement of 

Bush and Inglehart. Respondents’ counsel moved for protective 

orders and to quash the subpoenas. 

The trial court granted the protective orders and imposed 

sanctions of $5,000 on appellants’ counsel. It concluded 

appellants failed to show “extremely good cause” for deposing 

opposing counsel. (Fireman’s Fund Ins. Co. v. Superior Court 

(1977) 72 Cal.App.3d 786, 790 (Fireman’s Fund).) Appellants did 

not, in the trial court’s view, demonstrate that counsel’s 

testimony was crucial to the preparation of their affirmative 

defenses or that they had no other means of obtaining the 

information sought. 

Appellants contend the trial court abused its discretion 

when it imposed sanctions. We are not persuaded. 
20

Code of Civil Procedure section 2025.420, subdivision (h) 

mandates the imposition of sanctions against a party or counsel 

that unsuccessfully opposes a motion for protective order, unless 

the trial court finds “that the one subject to the sanction acted 

with substantial justification or that other circumstances make 

the imposition of the sanction unjust.” We review the trial court’s 

order imposing sanctions for abuse of discretion. (New 

Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 

1422.) A “substantial justification” is one that is “‘well grounded 

in both law and fact.’” (Diepenbrock v. Brown (2012) 208 

Cal.App.4th 743, 747.)

As the trial court noted, depositions of opposing counsel 

“should be severely restricted, and permitted only upon a 

showing of extremely good cause . . . .” (Fireman’s Fund, supra, 

72 Cal.App.3d at p. 790.) Such depositions should be permitted 

only when the party seeking discovery shows, “‘that (1) no other 

means exist to obtain the information than to depose opposing 

counsel, [citation]; (2) the information sought is relevant and 

nonprivileged; and (3) the information is crucial to the 

preparation of the case.’ [Citation.]” (Spectra-Physics, Inc. v. 

Superior Court (1988) 198 Cal.App.3d 1487, 1494-1945.) Here, 

the trial court imposed sanctions because it concluded appellants 

had not carried their burden to show they had no other means to 

obtain the information sought or that the information was 

“crucial” to their case. These findings were not an abuse of 

discretion.

The trial court was well within its broad discretion when it 

concluded that information relating to the timeliness of 

respondents’ claims was not crucial to appellants’ case. 

Appellants did not plead any affirmative defenses relating to the 
21

timeliness of respondents’ claims and never explained their 

extreme delay in seeking leave to do so. (P&D Consultants, Inc. 

v. City of Carlsbad (2010) 190 Cal.App.4th 1332, 1345 [leave to 

amend properly denied based on unwarranted delay]; Hulsey v. 

Koehler (1990) 218 Cal.App.3d 1150, 1159 [discretion to reject 

proposed amendment to answer “‘when offered after long 

unexplained delay or on the eve of trial’”].) Without leave to 

amend to plead these affirmative defenses, information relating 

to the timeliness of respondents’ claims was not “crucial” to 

appellants. These defenses were forfeited when appellants failed 

to properly assert them in a demurrer or plead them in an 

answer. (Save the Agoura Cornell Knoll v. City of Agoura Hills

(2020) 46 Cal.App.5th 665, 681; Gov. Code, § 911.) 

Similarly, appellants failed to show that subpoenaing 

documents from opposing counsel and taking their depositions 

were the only means appellants had of discovering when 

plaintiffs learned the identities of Bush and Inglehart. Public 

documents, were available to identify these city employees. 

Other documents could have been obtained from third parties 

such as the District Attorney’s office and Animal Services. 

We conclude the trial court did not abuse its discretion 

when it imposed sanctions on appellants’ counsel for opposing the 

motions without substantial justification. (Code Civ. Proc, § 

2025.420, subd. (h).) 

Conclusion

The December 11, 2020 order granting sanctions is 

affirmed. In all other respects, the judgment is reversed. 

Appellants shall recover their costs on appeal.
22

NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P. J.

CODY, J.
Barry T. LaBarbera, Judge

Superior Court County of San Luis Obispo

______________________________

Suzanne M. Nicholson and Chester E. Walls, for 

Defendants and Appellants.

Lee H. Roistacher and Dean Gazzo Roistacher, for Amicus 

Curiae on behalf of Appellants.

Steven B. Stevens; Frederick Law Firm and Jacqueline 

Frederick; Cheong & Denove and John F. Denove, Alicia S. 

Curran, for Plaintiffs and Respondents.