Opinion
22cv278-JO-WVG
06-14-2023
THE ESTATE OF DEVON RIDEOUT, by and through LESLIE WOODS as successor-in-interest; and LESLIE WOODS as an individual, Plaintiffs, v. THE UNITED STATES OF AMERICA, Defendant.
ORDER DENYING DEFENDANT'S MOTION TO DISMISS
Honorable Jinsook Ohta, United States District Judge
Eduardo Arriola, a mentally incompetent individual and former Marine, purchased a gun and shot and killed his neighbor, Devon Rideout. Ms. Rideout's mother, Leslie Woods, filed a Federal Tort Claims Act, 28 U.S.C. § 2674 (“FTCA”) lawsuit against the United States of America alleging that it failed to report Mr. Arriola's mental incompetency to the federal background check system for gun purchasers. Dkt. 15 (FAC). Plaintiff alleges that, properly reported, such information would have prevented Mr. Arriola from purchasing the gun he used to shoot and kill her daughter.
While Ms. Woods files this lawsuit on behalf of both her daughter's estate and her own behalf, the Court will refer to her as “Plaintiff” throughout this order.
On September 28, 2022, the United States filed a motion to dismiss the complaint for lack of subject matter jurisdiction and failure to state a claim. Dkt. 16. For the reasons stated below, the Court denies the United States' motion.
I. BACKGROUND
A. The Shooting of Devon Rideout
On July 20, 2018, Eduardo Arriola, a former United States Marine, shot and killed Devon Rideout with a gun he purchased from Iron Sights Shooting Range, a federally licensed gun retailer in Oceanside, California. FAC ¶¶ 14, 20. Ms. Rideout, a 24-year-old Navy hospital corpsperson, was walking her dog outside her apartment when she was killed. FAC ¶ 14. She did not have any relationship or connection to Mr. Arriola aside from living in the apartment one floor below him. FAC ¶ 14. Mr. Arriola told police he shot Ms. Rideout because “she was trespassing.” FAC ¶ 18.
From Mr. Arriola's time in military service, the United States Marine Corps possessed a substantial record of his mental illness. See FAC ¶¶ 21, 24-26. Mr. Arriola served in the Marine Corps from August 16, 2011, through September 29, 2017. FAC ¶ 21. In December 2014, Mr. Arriola was hospitalized for “bizarre behavior and hyper religiosity.” FAC ¶ 21. After his release from the hospital, he went absent from the military without authorization. FAC ¶ 22. In April 2016, the military located Mr. Arriola and arrested and charged him with desertion. FAC ¶¶ 22, 78. However, after a psychiatric review of Mr. Arriola's mental state, the military court determined that he was incompetent to stand trial. FAC ¶¶ 23-24. On July 20, 2016, the military court committed Mr. Arriola to a Federal Bureau of Prisons (“FBOP”) psychiatric facility for mental health treatment to regain his competency. See FAC ¶ 24. After three months of treatment, the FBOP psychiatric facility confirmed his mental incompetency and diagnosed Mr. Arriola as schizophrenic with disorganized thoughts and behavior, auditory hallucinations, and delusions. FAC ¶¶ 25-26. Ultimately, the military discharged him due to this mental incompetency. FAC ¶ 26.
B. Federal Reporting and Background Check System Surrounding Gun Purchases
Mr. Arriola's mental incompetency rendered him ineligible to purchase a gun under federal law. Federal law disqualifies people with certain characteristics from buying or owning firearms. 18 U.S.C. § 922(g), amended by Brady Handgun Violence Prevention Act, Pub. L. No. 103-159, 107 Stat. 1536. Disqualifying characteristics include having a criminal record, being convicted of domestic violence, or, as relevant here, being adjudicated as “mental[ly] defective” (e.g., being found incompetent to stand trial). See 27 C.F.R. § 478.11; 18 U.S.C. § 922(d)(4), (g)(4). Gun dealers therefore cannot sell firearms to people with these disqualifications. 18 U.S.C. § 922(g).
In 1993, Congress passed the Brady Handgun Violence Prevention Act (“Brady Act”), which tasked the United States Attorney General with establishing the National Instant Criminal Background Check System (“NICS”), a federal background check system designed to prevent disqualified people from purchasing firearms. FAC ¶ 27; 34 U.S.C. § 40901. This statutory framework requires every federal department or agency to provide NICS with records containing disqualifying information-such as criminal history or mental incompetency-and to correct and update these records as necessary. 34 U.S.C. § 40901(e)(1)(D). Pursuant to both the Brady Act and the United States military's own internal regulations, these reporting requirements extend to the Department of Defense (“DOD”) and its component agencies. FAC ¶¶ 35-40. Collecting these records from reporting agencies, NICS maintains a database of people disqualified from purchasing guns. FAC ¶ 45. In turn, federally licensed gun dealers are required to consult NICS prior to completing a sale and cannot sell firearms to people who have disqualifying records in the NICS database. FAC ¶ 46; 18 U.S.C. § 922(t).
The United States Department of Defense's (“DOD”) internal policies and operating procedures similarly mandate the DOD's compliance with the Brady Act's reporting requirements to compile, maintain, and manage these records of mentally incompetent or other disqualified individuals. See FAC ¶¶ 37-40.
Although the Federal Bureau of Investigation (“FBI”) administers NICS, some state agencies act as a Point of Contact (“POC”) to manage background check inquiries between in-state arms dealers and NICS. As relevant here, the California Department of Justice (“California DOJ”) serves as the POC for NICS inquiries related to prospective firearms sales in California. Pursuant to Brady Act implementing regulations, “[w]hen the NICS receives an inquiry from a POC, it will search the relevant databases (i.e., NICS Index, NCIC, III) for any matching record(s) and will provide an electronic response to the POC.” FAC ¶ 48; 28 C.F.R. § 25.6(f). In response to a background check request, NICS will provide one of three responses: (1) “Proceed,” if no disqualifying information is found; (2) “Delayed,” if more research is required before a decision can be rendered; and (3) “Denied,” if disqualifying information is found. FAC ¶ 46; 28 C.F.R. § 25.6(c)(1)(iv). State POCs serve as liaisons rather than independent investigators; while they may conduct their own research and examine state records, they rely on NICS to provide them with matching records and disqualifying information. 28 C.F.R. §§ 25.6(f)-(e); FAC ¶¶ 51-52.
C. Reporting Failures by the Department of Defense
Despite the DOD's legal obligations to do so, Plaintiff alleges that it failed to report information about Mr. Arriola's mental incompetency to the FBI. FAC ¶ 71. As a result, “NICS did not possess those records and did not communicate such disqualifying information to the California DOJ after NICS searched its database.” FAC ¶ 76. Because this disqualifying information was not present in the NICS database, NICS did not identify Mr. Arriola to California DOJ as a person prohibited from purchasing a firearm. FAC ¶¶ 73-75. Thus, when Iron Sights Shooting Range reported Mr. Arriola's prospective gun purchase to California DOJ, the NICS system failed to deny the sale of the gun. FAC ¶ 75. Plaintiff alleges that the instant failure by DOD to submit Mr. Arriola's mental incompetency finding is just one example of DOD's pervasive and longstanding failures to report disqualifying information to NICS. See FAC ¶¶ 53-66.
The DOD Office of the Inspector General (“OIG”), the military's official watchdog agency, conducted numerous investigations into the military's reporting failures. For instance, in 2014, the OIG found that the military failed to report criminal records to the FBI despite federal crime reporting laws and DOD's reporting procedures. FAC ¶ 60. An investigation in 2015 revealed that only 72% of fingerprint records and 70% of arrest records made it to the FBI. FAC ¶ 61. In 2017, the OIG found that the Marine Corps failed to submit 29% of the required fingerprint cards and 36% of the final disposition reports. FAC ¶ 62.
After NICS wrongfully approved the gun sale to Mr. Arriola, California DOJ, as the POC for this sale, attempted to gather further information about Mr. Arriola. Plaintiff alleges that a California DOJ employee independently discovered Mr. Arriola's April 26, 2016 arrest warrant and, finding no disqualifying information in the NICS database, contacted a DOD representative for additional information. FAC ¶ 78. In response, the DOD representative provided the California DOJ employee with a package of documents “noting that Arriola was transferred to the [FBOP] due to being found incompetent to stand trial by court martial.” FAC ¶¶ 79-80. However, despite receiving this information regarding Mr. Arriola's incompetence finding, the California DOJ employee did not take follow-up actions to stop the sale. See FAC ¶ 80.
Plaintiff filed a parallel lawsuit in San Diego Superior Court against California DOJ and its employee alleging negligence and wrongful death based on their involvement in these events. See San Diego Superior Court Case No. 37-2022-00008092-CU-PO-CTL (filed March 2, 2022).
Even though the DOD representative provided this package of documents upon request, Plaintiff alleges the package did not satisfy DOD's obligations to properly report information to the NICS background check system. FAC ¶ 81.
D. Procedural History
Plaintiff filed two concurrent actions, one against the United States and the other against the State of California, for the death of her daughter. Plaintiff filed her original complaint against the United States in federal court on March 1, 2022. Dkt. 1. On March 2, 2022, Plaintiff filed a complaint in state court against California DOJ and its employee largely based on the same set of facts. RJN, Ex. 1. As explained above, Plaintiff's state court complaint alleges that a California DOJ employee reached out to the DOD directly after finding no disqualifying information in NICS regarding Mr. Arriola. Ex. 1, ¶¶ 5153. The DOD provided the California DOJ employee with a package of documents noting Mr. Arriola's mental incompetence finding. Ex. 1 ¶¶ 53-54. Plaintiff alleges that despite receiving these materials indicating Mr. Arriola's disqualified status, the California DOJ employee failed to take steps to notify the gun seller to block the sale of the gun. Ex. 1 ¶¶ 53-54.
On September 28, 2022, the United States moved to dismiss the instant federal action for lack of subject matter jurisdiction and failure to state a claim. Dkt. 16.
II. LEGAL STANDARD
A party may challenge a complaint under Rule 12(b)(1) for lack of subject matter jurisdiction. “Federal courts are courts of limited jurisdiction [and] possess only that power authorized by Constitution and statute.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Pursuant to Rule 12(b)(1), a party may seek dismissal of an action for lack of subject matter jurisdiction by asserting a facial challenge or a factual challenge. Fed.R.Civ.P. 12(b)(1) ; Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003). Where the moving party asserts a facial challenge, as it does here, the court limits its inquiry to the allegations set forth in the complaint. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). In such a challenge, the court considers the complaint's allegations to be true and draws all reasonable inferences in the plaintiff's favor. See Doe v. Holy, 557 F.3d 1066, 1073 (9th Cir. 2009). Where the moving party asserts a factual challenge, based on the legal sufficiency of the jurisdictional facts, the court may review any evidence necessary, such as affidavits and testimony, in order to determine whether subject matter jurisdiction exists. McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988). The plaintiff has the burden of showing that the court has subject matter jurisdiction over the action. Ass'n of Am. Med. Colleges v. United States, 217 F.3d 770, 778-79 (9th Cir. 2000).
Relatedly, a party may also challenge the legal sufficiency of the claims asserted in a complaint under Federal Rule 12(b)(6). Fed. R. Civ. P. 12(b)(6); Navarro v. Block, 250 F.3d 729, 731 (9th Cir. 2001). To avoid a Rule 12(b)(6) dismissal, a complaint must plead “enough facts to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547 (2007)). A claim is facially plausible when the factual allegations permit “the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. A court must accept all factual allegations pleaded in the complaint as true and draw all reasonable inferences from them in favor of the nonmoving party. Cahill v. LibertyMut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996).
III. REQUEST FOR JUDICIAL NOTICE
The United States requests that the Court take judicial notice of Plaintiff's filings in her parallel state court lawsuit against California DOJ and its employee for the death of her daughter. Specifically, the United States requests judicial notice of (1) Plaintiff's complaint, Case No. 37-2022-00008092-CU-PO-CTL, filed in San Diego Superior Court on March 2, 2022; and (2) Plaintiff's opposition brief to the State's demurrer. Dkt. 21-1, Exs. 1-2 (Def.'s RJN). Federal Rule of Evidence 201 permits a court to take judicial notice of a fact that is “not subject to reasonable dispute.” Fed.R.Evid. 201(b). A federal court may take judicial notice of related state court orders and proceedings if they directly relate to matters before the court. See United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992) (taking judicial notice of state court proceedings because they “are directly related” to the federal action and may be dispositive). Plaintiff's state court complaint and filings arise from the same set of facts in this action. These documents directly relate to the matters before this Court and, as matters of judicial record, their authenticity is not in question. Accordingly, the Court grants the United States' request and takes judicial notice of the existence of the state court action and the claims and positions asserted by the Plaintiff in that action. In re Bare Escentuals, Inc. Sec. Litig., 745 F.Supp.2d 1052, 1067 (N.D. Cal. 2010) (taking judicial notice of the existence of court documents, but not for the truth of the matters asserted in those documents).
IV. DISCUSSION
The United States moves to dismiss Plaintiff's claims for lack of subject matter jurisdiction arguing that they fall outside the claims permitted by the FTCA for the following two reasons. First, the United States argues that Plaintiff's claims are barred because they fall within the “misrepresentation exception” of the FTCA. Second, the United States argues that California law would not hold a private citizen liable under similar circumstances-i.e., for failing to prevent the dangerous actions of a third party- and therefore no FTCA liability exists. The Court will examine each of these arguments below.
A. Sovereign Immunity and the FTCA
The FTCA enables private citizens to bring tort claims against the United States for the negligent performance of governmental functions. In general, the United States enjoys sovereign immunity, which means that it cannot be sued “unless it has expressly waived such immunity and consented to be sued.” Dunn & Black, P.S. v. United States, 492 F.3d 1084, 1087-88 (9th Cir. 2007); FDIC v. Meyer, 510 U.S. 471, 475 (1994) (“Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit.”). Thus, a federal court has subject matter jurisdiction over claims against the United States only to the extent an express waiver of sovereign immunity permits those claims. United States v. Mitchell, 445 U.S. 535, 538 (1980). By passing the FTCA, Congress expressly waived sovereign immunity to allow private suits based on the negligent conduct of federal government employees and agencies, including those alleging “personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government...[.]” 28 U.S.C. § 2674; 28 U.S.C. § 1346(b). However, the government can only be liable if a private person would be liable under applicable state law under similar or analogous circumstances. 28 U.S.C. § 2674; see also 28 U.S.C. § 1346(b)(1).
In addition to the requirement that a private citizen must be liable under like circumstances for the United States to be liable, the FTCA also carved out exceptions to a plaintiff's ability to bring suit against the government, including the so-called “misrepresentation exception.” See 28 U.S.C. § 2680(h). The misrepresentation exception bars claims against the government that arise from the communication of misinformation. Block v. Neal, 460 U.S. 289, 296 (1983). The Supreme Court has held that this exception applies equally to misstatements and omissions, whether negligent or deliberate. United States v. Neustadt, 366 U.S. 696, 697 n.4, 702, 704 (1961).
B. FTCA's “Misrepresentation Exception”
The United States argues that Plaintiff premises her claim on the military's failure to adequately communicate information about Mr. Arriola's prohibited status for gun ownership. Construing Plaintiff's claims as a “failure to communicate” Mr. Arriola's dangerousness, the United States argues that the misrepresentation exception bars her claims. See Def.'s Mot. at 14.
To determine whether a claim falls under the misrepresentation exception, courts examine whether the injuries resulted from the communication of information or the performance of operational tasks. Mundy v. United States, 983 F.2d 950, 952 (9th Cir. 1993). The misrepresentation exception bars claims that arise from “the government's failure to use due care in communicating information.” Snyder & Assocs. Acquisitions LLC v. United States, 859 F.3d 1152, 1160 (9th Cir. 2017) (citing Block, 460 U.S. at 297). On the other hand, it does not bar claims for “injuries resulting from negligence and performance of operational tasks even though misrepresentations are collaterally involved.” Mundy, 983 F.2d at 952; see also Life Partners Inc. v. United States, 650 F.3d 1026, 1031 (5th Cir. 2011). Where “the government's misstatements are not essential to plaintiff's negligence claim,” the exception does not apply. Block, 460 U.S. at 297.
In other words, if the “focal point” of the claim is a negligent communication by the defendant, then the misrepresentation exception applies. See Lawrence v. United States, 340 F.3d 952, 958 (9th Cir. 2003) (finding misrepresentation exception barred FTCA claim arising from federal agents' failure to provide certain known information regarding the criminal history of a sex offender; such failure to warn of the offender's dangerousness fell within the misrepresentation exception). By contrast, if the focal point of the claim is an “operational error” with a communication only “collaterally involved,” then the misrepresentation exception does not apply. See Mundy, 983 F.2d at 952 (finding misrepresentation exception did not bar FTCA claim arising from federal agency's failure to properly process security clearance request). Notably, in a case similar to the present one, the Western District of Texas declined to extend the misrepresentation exception to claims alleging the government's failure to provide disqualifying information to NICS. Holcombe v. United States, 388 F.Supp. 3d 777, 795 (W.D. Tex. 2019). There, the court reasoned that, in failing to report disqualifying information under the Brady Act, the U.S. Air Force's conduct “skew[ed] closer to operational negligence-rooted in failure to collect and process information that should have been in its possession-than to communicational failure.” Id.
Despite the United States' efforts to characterize Plaintiff's claims as arising from misrepresentation, an examination of the operative pleading reveals otherwise. In this case, the complaint makes clear that the essence or “focal point” of Plaintiff's claims is the alleged failure of the DOD to submit Mr. Arriola's disqualifying information to the NICS database-a failure which consequently prevented NICS from reporting Mr. Arriola's disqualified status to California DOJ and the gun dealer. FAC ¶¶ 69-77. Plaintiff alleges that her injury-the death of her daughter-resulted from the DOD's failure to compile and maintain disqualifying information about Mr. Arriola and to submit that information to NICS. These are operational failures distinct from a duty to use due care in communicating information. See Holcombe, 388 F.Supp.3d at 794; Block, 460 U.S. at 297. As in Holcombe, “the gravamen of [Plaintiff's] allegations” here is the DOD's “negligence in handling, processing, and entering . . . background information into [NICS],” not the purported misrepresentation of Mr. Arriola's eligible status. 388 F.Supp.3d at 795. The NICS background check report approving Mr. Arriola for a gun sale was incidental to the central failure to submit and maintain disqualifying information about him: any misrepresentation was itself a consequence of the original operational failure rather than the wrongdoing that caused the injury. Indeed, the NICS report communicated by DOD was not a “misrepresentation” at all, since it accurately conveyed that NICS did not have any record indicating that Mr. Arriola should not be allowed to purchase a gun. See id. Since Plaintiff's injuries stem from an operational failure rather than a communication failure, the “misrepresentation exception” to the FTCA does not bar her claims.
Relying on Lawrence v. United States, 340 F.3d 952 (9th Cir. 2003), the United States argues that the government's failure to adequately warn of Mr. Arriola's dangerousness falls squarely within the misrepresentation exception of the FTCA. In Lawrence, the plaintiff brought an FTCA suit after a convicted felon sexually abused her. 340 F.3d at 954-55. The plaintiff argued that federal officers provided inadequate criminal history information about the felon to a state agency. Id. at 955, 958. The Ninth Circuit held that the plaintiff's claim, which alleged that complete and accurate disclosure of this information would have prevented the abuse, fell under the misrepresentation exception. Id. Here, the United States points to the package of information that the DOD representative provided in response to California DOJ's inquiry as the source of the purported misrepresentation. Based on this package, it argues that any inadequacies in that information to fully warn about Mr. Arriola's dangerousness are errors in communication covered by the misrepresentation exception. The United States' argument, however, contradicts the actual claims in Plaintiff's complaint. Plaintiff does not premise her claims-in either this action or her parallel state lawsuit-on the DOD's failure to adequately communicate Mr. Arriola's dangerousness in the package they provided to California DOJ. As explained above, Plaintiff's complaint in this action focuses on the United States' alleged failure to collect, submit, and process Mr. Arriola's disqualifying information into the NICS database-operational tasks that, performed correctly, would have systematically alerted California DOJ that Mr. Arriola was barred from owning or purchasing a firearm. FAC ¶¶ 35-36, 72, 75. In her parallel state action, Plaintiff focuses her claims on California DOJ's negligent failure to deny the gun sale after receiving information from the DOD representative, not on the inadequacy of the contents of the packet received. Ex. 1 ¶ 54. Given that Plaintiff does not even plead that the DOD's package of documents to California DOJ misrepresented Mr. Arriola's dangerousness, any negligence or inadequacies surrounding such communication are certainly not the “focal point” of Plaintiff's claims. Mundy, 983 F.2d at 952.
Moreover, “[n]either the language nor history of the [FTCA] suggest that when one aspect of the Government's conduct is not actionable under the ‘misrepresentation' exception, a claimant is barred from pursuing a distinct claim arising out of other aspects of the Government's conduct.” Block, 460 U.S. at 298. Even if discovery reveals that the DOD's supplementary communications to California DOJ did constitute misrepresentations, the Court may still consider whether its operational errors relating to its NICS reporting obligations are sufficient to sustain a negligence claim.
C. Analogous State Law Duty
The United States also argues that the Court lacks subject matter jurisdiction over these claims because California law would not hold a private person liable under similar or analogous circumstances. The Court will examine Plaintiff's contention that California's Good Samaritan doctrine, also known as the “negligent undertaking” theory of liability, provides the requisite analogous framework to hold the United States liable for volunteering to provide a system of gun background checks but negligently performing that undertaking.
Under the FTCA, the United States is liable for negligence only “if a private person[] would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1). In other words, a plaintiff can bring an FTCA claim against the United States only if state law would hold a private person liable for similar conduct. See United States v. Olson, 546 U.S. 43, 46 (2005). For FTCA liability to exist, a breach of federal statutes or regulations on its own cannot form the grounds of a viable claim. Love v. United States, 60 F.3d 642, 644 (9th Cir. 1995). A defendant must breach a duty arising under state law-here, California law-analogous to a duty created by federal law. Delta Savings Bank v. United States, 265 F.3d 1017, 1024 (9th Cir. 2001). “Although the federal government could never be exactly like a private actor, a court's job in applying the standard is to find the most reasonable analogy.” Dugard v. United States, 835 F.3d 915, 919 (9th Cir. 2016) (internal quotations omitted).
In Indian Towing, the Supreme Court instructed that the closest analogy between the government's breach of its functions and a private citizen's liability is often provided by the “Good Samaritan” doctrine. Indian Towing Co., 350 U.S. 61, 64 (1955). There, a plaintiff's tugboat crashed into shore after a Coast Guard-operated lighthouse ran out of power. Id. The plaintiff brought a negligence claim against the United States pursuant to the FTCA based on the Coast Guard's negligent maintenance of the lighthouse. Id. at 6465. The court concluded that the Coast Guard voluntarily undertaking to provide lighthouse services was akin to a Good Samaritan citizen who voluntarily undertakes to help a third party. See id. Like the Good Samaritan, the Coast Guard thus assumed a duty to use reasonable care in providing that help-namely, the duty to maintain the lighthouse in proper working condition. Id. at 69. Under these circumstances, the Supreme Court held that if the Coast Guard breached this duty and caused injury to the plaintiff, then the United States was liable under the FTCA. Id.
The Court therefore turns to whether the Good Samaritan or negligent undertaking theory of liability provides an appropriate state law analog to the United States' negligent failure to carry out its statutory obligations to maintain a viable system of gun background checks. In California, a person ordinarily has no duty to help another or prevent the misconduct of third parties. Paz v. State of California, 22 Cal.4th 550, 559 (2000). However, such a duty arises when a person voluntarily undertakes to help another person. Known as the “negligent undertaking” theory, a person who volunteers to render services to another has a duty to exercise reasonable care in their actions and may be liable to third persons for harm resulting from a failure to do so. Id. at 553 (citing Restatement (Second) of Torts § 324A). Under California law, a plaintiff must show five elements for a negligent undertaking claim:
The Court notes that California law also imposes a legal duty to protect against the conduct of a third party if there is a “special relationship” between the defendant and the person in danger. A “special relationship” can rest on various grounds-some are inherently “special,” others are contract-based, and others arise by statute or regulation. Lopez v. Southern Calif. Rapid Transit Dist., 40 Cal.3d 780, 78889 (1985); see Restatement (Second) of Torts §§ 314, 315. No matter the basis, California law is clear that in certain situations, a person may have a duty to protect against harm by a third party and thus face liability for the crime of another. See, e.g., Delgado v. Trax Bar & Grill, 36 Cal.4th 224 (2005) (finding restaurants, bars, and shopping centers have affirmative duty to reasonably secure premises against reasonably foreseeable criminal acts of third parties); Myers v. Quesenberry, 144 Cal.App.3d 888 (1983) (finding doctor has duty to warn foreseeable third-party potential victims if patient's condition may be dangerous to others); Regents of Univ. of Calif. v. Sup. Ct., 4 Cal. 5th 607 (2018) (finding university had duty to student assaulted by another student where university staff knew of the assailant's schizophrenia and violent tendencies).
(1) [T]he actor undertook.. .to render services to another; (2) ...of a kind the actor should have recognized as necessary for the protection of [the plaintiff]; (3) the actor failed to exercise reasonable care in the performance of the undertaking; (4) the actor's failure to exercise reasonable care resulted in physical harm to the [plaintiff]; and (5) either (a) the actor's carelessness increased the risk of such harm, or (b) the actor undertook to perform a duty that the other owed to the third persons, or (c) the harm was suffered because either the other or the third persons relied on the actor's undertaking.Paz, 22 Cal.4th at 559; Dent v. National Football League, 968 F.3d 1126 (9th Cir. 2020). Under these elements, a plaintiff establishes a duty of care by satisfying the first, second, and fifth elements. Peredia v. HR Mobile Services, Inc., 25 Cal.App. 5th 680, 691 (2018).
Here, Plaintiff has adequately pled an analogous “negligent undertaking” duty of care by alleging that (1) the United States undertook to provide background checks for gun purchasers; (2) when it did so, it recognized that these services were necessary for the protection of citizens like Ms. Rideout; and (3) its negligence in performing this undertaking increased the risk of people like Ms. Rideout suffering harm. First, Plaintiff alleged that by establishing the NICS background check system, the United States undertook to prevent firearms from ending up in the hands of dangerous individuals, such as those with criminal records or who are mentally incompetent. See FAC ¶¶ 27-33. In addition, Plaintiff pointed to several other federal statutes, DOD regulations, and policies which demonstrate that the United States voluntarily assumed the specific duty to submit disqualifying information, properly compile, correct, and manage data, and run a system of background checks for gun safety. FAC ¶¶ 37-42; 34 U.S.C. § 40911(b)(2).
Second, Plaintiff has adequately alleged that the United States should have known the NICS system was necessary to protect California residents from gun violence. Plaintiff points to federal statutes and Congressional findings which indicated that the purpose of NICS was to protect the public from mentally incompetent individuals, as well as other dangerous, disqualified persons, having access to firearms. See FAC ¶¶ 37-42; 34 U.S.C. § 40902. Plaintiff alleges that in passing such federal statutes and regulations, the United States recognized the need to prevent dangerous individuals from accessing firearms and thereby protect the public from gun violence resulting from this access. FAC ¶ 74.
Finally, Plaintiff has alleged that the United States' failure in carrying out its assumed duty to submit and maintain disqualifying information for gun background checks increased the risk of harm to Ms. Rideout. A negligent undertaking claim requires “that the actor's carelessness increased the risk of harm to [the plaintiff].” Dent, 968 F.3d at 1134 (finding NFL undertook to implement a medication distribution program for injured NFL players but its carelessness in distributing painkillers to the players increased the risk of harm to them); Scott v. C.R. Bard, Inc., 231 Cal.App.4th 763, 776 (2014) (finding medical device manufacturer volunteered to provide physician training but its “improper training could increase the risk of harm to the physician's patients”). To measure increased risk, the Court compares the risk of harm to Ms. Rideout that existed on the day of the shooting with the risk that would have existed had the United States provided no services. See Toomer v. United States, 615 F.3d 1233, 1239 (9th Cir. 2010); Paz, 22 Cal.4th at 560 (finding that although the city undertook to install a traffic signal at a blind intersection, the negligent delay in installing the signal “did not increase the risk of physical harm to plaintiff beyond that which allegedly existed at the intersection”).
Here, Plaintiff's complaint adequately alleges facts supporting the inference that the United States' negligent operation of the NICS system created greater risk to Ms. Rideout than if no federal system of gun background checks existed. First, Plaintiff alleges that by undertaking a federal background check system, the United States created public reliance on its efficacy. FAC ¶ 77. Through a system of federal laws and regulations, including the Brady Act, the federal government undertook to provide a system of background checks designed to collect and maintain information about dangerous persons in order to bar gun sales to these individuals. See, e.g., FAC ¶¶ 27-33, 70. The federal government also positioned itself as the centralized source of this information for all federally licensed gun dealers, in effect acting as the primary enforcer of federal prohibitions on gun access for disqualified people. See FAC ¶¶ 45-49. In doing so, the United States created public reliance on a federally regulated regime that would keep guns out of the hand of dangerous people and provided an implicit assurance that this system would function to protect the public. See FAC ¶¶ 74, 77.
By alleging public reliance on this federal system of background checks for gun purchases, Plaintiff also adequately creates an inference that Ms. Rideout was subject to increased risk when the government failed in its undertaking to keep guns away from mentally incompetent persons. Courts have recognized the commonsense principle that public reliance on government protections and the proper functioning of government systems necessarily impacts individual choices and courses of action. As articulated by the court in Cuffy v. City of New York, reliance on the government's undertaking of certain protections can “lull[] the injured party into a false sense of security and.. .thereby induce[] him to either relax his own vigilance or to forgo other available avenues of protection.” 69 N.Y 2d 255, 261 (1987). In Moch Co. v. Rensselaer Water Co., Judge Cardozo also recognized the principle that a benefit provided poorly may cause more harm than if not provided at all. 247 N.Y. 160, 167 (1928) (discussing duty of city water company where a plaintiff's warehouse burned down after the water company failed to provide adequate water supply). He cautioned that an actor's poor execution of a volunteered undertaking does not merely “withhold a benefit” but would result “positively or actively in working an injury” and “launch[] a force or instrument of harm.” Id. at 168.
Based on similar principles, the United States' failed undertaking of its gun control system did not merely withhold a benefit to Ms. Rideout, but actively increased the risk to her. Not only did a mentally incompetent person obtain a gun that killed her, but Ms. Rideout's general expectation and reliance on federal gun control measures, FAC ¶ 77, deprived her of the precautions and alternative measures that she and other entities may have taken if they did not exist. Because the general public's reliance that the federal system would keep guns out of the hands of the mentally incompetent caused the public to forgo other choices and protections, the negligent operation of these gun control measures put Ms. Rideout in a worse situation than if no protective framework existed. Plaintiff has therefore sufficiently alleged that the United States' negligent undertaking to provide these services increased Ms. Rideout's risk of harm.
Based on the foregoing, the Court thus finds that Plaintiff has adequately alleged that the United States undertook to maintain a background check service for gun purchases, recognizing that this service was necessary for the protection of public citizens like Ms. Rideout, and its negligence in providing the service increased the risk of harm to Ms. Rideout. By doing so, she has established that the United States had an analogous duty under California negligent undertaking law to use reasonable care in maintaining and reporting disqualifying information to the NICS background check system. S.A. Empresa De Viacao Aerea Rio Grandense (Varig Airlines) v. United States, 692 F.2d 1205, 1208 (9th Cir. 1982) (finding FAA voluntarily undertook airplane inspection and certification duties), rev'd on other grounds, 467 U.S. 797 (1984).
The United States relies on a series of distinguishable cases to argue that no analogous state law duty exists. See Def.'s Mot. at 8-10. In each of these cases, the tort defendant had neither undertaken a specific duty nor had a special relationship with the injured party; thus, they did not owe a duty to the plaintiffs under their particular circumstances. See Wise v. Superior Court, 222 Cal.App.3d 1008 (1990) (finding wife of a shooter did not undertake specific duty to prevent husband from shooting plaintiffs); Cardenas v. Eggleston Youth Ctr., 193 Cal.App.3d 331 (1987) (finding operator of group home did not undertake specific duty to prevent residents from committing assault); Davis v. Gomez, 207 Cal.App.3d 1401 (1989) (finding landlord did not undertake specific duty to control behavior of tenant); Smith v. Freund, 192 Cal.App. 4th 466 (2011) (finding killer's parents did not undertake specific duty to prevent their son from attacking others). Here, unlike the above cases, Plaintiff has adequately alleged that the United States undertook the specific duty to provide federal gun protection services to the public in order to prevent the mentally incompetent from accessing firearms, as explained above.
Having determined that Plaintiff's allegations established a duty of care on the part of the United States, the Court turns to whether Plaintiff has also sufficiently alleged a breach of that duty, an actual injury, and a causal connection between the two. Paz, 22 Cal.4th at 559. Plaintiff alleged that the DOD failed to exercise reasonable care in its NICS undertaking by failing to submit Mr. Arriola's disqualifying information. FAC ¶ 71. Plaintiff also sufficiently alleged that the missing data in NICS caused Mr. Arriola to be able to purchase a gun, and Ms. Rideout was shot and killed by that gun. FAC ¶ 75. The Court therefore concludes that Plaintiff has adequately pled that the United States' actions satisfy all the elements of a California negligent undertaking cause of action. Because Plaintiff has demonstrated that the United States would be liable under state law, the Court finds that it can be liable under the FTCA. See Olson, 546 U.S. at 46 (finding plaintiff can bring an FTCA claim against the United States only if state law would hold a private person liable for similar conduct).
In doing so, Plaintiff has also adequately pled the elements of a wrongful death action, premised on the negligent undertaking theory. See Norgart v. Upjohn Co., 21 Cal.4th 383, 390 (1999) (citing Cal. Code Civ. P. § 377.60) (finding elements of a wrongful death claim are (1) a wrongful act, including a tort, that (2) causes (3) the death of another person). The parties do not dispute that if Plaintiff establishes liability under the negligent undertaking theory, that she also does so under the wrongful death claim.
V. CONCLUSION
For the reasons discussed above, the Court DENIES the United States' motion to dismiss Plaintiff's First Amended Complaint [Dkt. 16].
IT IS SO ORDERED.