NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DESIREE MARTINEZ, 

Plaintiff-Appellant, 

 v. 

CITY OF CLOVIS; et al., 

Defendants-Appellees.

No. 17-17492 

D.C. No. 

1:15-cv-00683-JAM-MJS 

MEMORANDUM*

Appeal from the United States District Court

for the Eastern District of California

John A. Mendez, District Judge, Presiding

Argued and Submitted January 15, 2019

San Francisco, California

Before: WALLACE and FRIEDLAND, Circuit Judges, and LASNIK,** District 

Judge.

Desiree Martinez is a victim of domestic violence. In addition to claims 

against her abuser, Kyle Pennington, she brought negligence claims against 

Pennington’s parents, Connie and Kim Pennington, for helping to conceal the 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Robert S. Lasnik, United States District Judge for the 

Western District of Washington, sitting by designation.

FILED

DEC 4 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2

abuse and enabling Pennington to violate a protective order.1 Kim and Connie2

helped prepare statements for Martinez to recite to police officers, intimidated her, 

and encouraged her to lie when testifying.3 They took some of her possessions and 

told her that she could get them back only if she agreed not to testify against 

Pennington. They helped to conceal Martinez’s presence when Pennington was 

with her in violation of the protective order. On one occasion, after Martinez 

overdosed on medication, Connie and Pennington did not call 911 out of concern 

for how it would look for him. Connie also prevented Martinez from calling 911 

after Pennington had physically abused her. 

Martinez brought various claims against Kim and Connie, including for 

negligence under both California Civil Code § 1714 and common law. Kim and 

Connie moved for summary judgment on August 9, 2017. The district court 

granted summary judgment as to the negligence claim.

1 We address the appeal from other claims that Martinez made against 

local police officers and the cities for which they are employed in a concurrently 

filed opinion. Martinez’s claims against Kyle Pennington are not part of this 

appeal.

2 We refer to Connie Pennington as “Connie” and Kim Pennington as 

“Kim” in this disposition. Kim, as of April 27, 2018, was a reserve officer with the 

Sanger Police Department. 

3 Because we are reviewing the district court’s summary judgment, and 

as explained supra, we adopt Martinez’s version of the facts here. See Animal 

Legal Def. Fund v. U.S. Food & Drug Admin., 836 F.3d 987, 989 (9th Cir. 2016) 

(en banc) (citation omitted).
3

We review de novo a district court’s summary judgment. Animal Legal Def. 

Fund, 836 F.3d at 988 (citation omitted). In doing so, we view the evidence in the 

light most favorable to the nonmoving party. See id. at 989 (citing Olsen v. Idaho 

State Bd. of Med., 363 F.3d 916, 922 (9th Cir. 2004)).

“To prevail in a negligence claim under California law, a plaintiff must 

plead the existence of a duty, a breach of that duty, and damages proximately 

caused by the breach.” Mayall on Behalf of H.C. v. USA Water Polo, Inc., 909 F.3d 

1055, 1060 (9th Cir. 2018) (citing Beacon Residential Cmty. Ass’n. v. Skidmore, 

Owings & Merrill LLP, 327 P.3d 850, 853 (Cal. 2014)). Martinez argues that Kim 

and Connie breached their duty to Martinez by helping to conceal Pennington’s 

abuse and allowing it to continue.4

“Whether a legal duty arises ‘is a question of law which is simply an 

expression of the sum total of the policy considerations that lead a court to 

conclude that a particular plaintiff is entitled to protection.’” Ileto v. Glock Inc., 

349 F.3d 1191, 1203 (9th Cir. 2003) (quoting Jacoves v. United Merch. Corp., 11 

Cal. Rptr. 2d 468, 484 (Ct. App. 1992)). A “defendant owes a legal duty of care to 

persons who are foreseeably endangered by the defendant’s conduct, but a 

4 Martinez abandoned her argument that Kim, as a peace officer, “was a 

mandatory reporter and had a duty to report, and he didn’t report.” She also 

abandoned the argument that her negligence claim was based on Martinez and 

Pennington’s living on Kim and Connie’s property. 
4

defendant has no duty to control the conduct of another or to warn others

endangered by another’s conduct.” Jacoves, 11 Cal. Rptr. 2d at 484. 

A defendant may also owe a special duty to control the conduct of others 

when she “stands in some special relationship either with the person whose 

conduct needs to be controlled or with the person who is the foreseeable victim.” 

Id. (citing Tarasoff v. Regents of Univ. of Cal., 551 P.2d 334, 343 (Cal. 1976) and 

Johnson v. Cty. of Los Angeles, 191 Cal. Rptr. 704, 710 (Ct. App. 1983)). But 

Martinez does not even argue that a special relationship existed between Kim and 

Connie and her. See id. at 484–85 (stating examples of a special relationship 

include parent and child, master and servant, and possessor of a chattel who has a 

duty to control the conduct of a licensee). Instead, she contends that any person 

would have had a duty not to commit Kim and Connie’s misconduct. She further 

contends that these duties arise out of various provisions of the California Civil 

Code.

5 See Cal. Civ. Code §§ 1708, 1714(a).

5

In her brief, Martinez also refers to § 3281 and § 3282 of the 

California Civil Code. The former states that “[e]very person who suffers 

detriment from the unlawful act or omission of another, may recover from the 

person in fault a compensation therefor in money, which is called damages.” Cal.

Civ. Code § 3281. The latter defines “detriment.” Id. § 3282. However, these 

provisions do not give rise to a negligence claim, and none of Martinez’s claims 

for relief in her Second Amended Complaint referred to liability under these 

provisions.
5

This is too expansive a view of duty. See Adelman v. Associated Int’l Ins. 

Co., 108 Cal. Rptr. 2d 788, 794 (Ct. App. (2001) (“‘Duty’ is not sacrosanct in 

itself, but only an expression of the sum total of those considerations of policy 

which lead the law to say that the particular plaintiff is entitled to protection. 

Courts, however, have invoked the concept of duty to limit generally the otherwise 

potentially infinite liability which would follow from every negligent act.”

(citations, alterations and internal quotation marks omitted)). The district court 

correctly held that Kim and Connie did not owe a duty of care to Martinez. 

Therefore, the district court did not err in granting summary judgment on the 

negligence claim.

AFFIRMED.