Opinion
D071271
02-27-2018
RYAN HAWBLITZEL, Plaintiff and Appellant, v. COUNTY OF SAN DIEGO, Defendant and Respondent.
Law Office of Rocky K. Copley, Rocky K. Copley; Williams Iagmin LLP and Jon R. Williams for Plaintiff and Appellant. Thomas E. Montgomery, County Counsel, John P. Cooley and Jennifer M. Stone, Deputy County Counsel, for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2015-00031930-CU-PO-CTL) APPEAL from a judgment of the Superior Court of San Diego County, Joan M. Lewis, Judge. Affirmed. Law Office of Rocky K. Copley, Rocky K. Copley; Williams Iagmin LLP and Jon R. Williams for Plaintiff and Appellant. Thomas E. Montgomery, County Counsel, John P. Cooley and Jennifer M. Stone, Deputy County Counsel, for Defendant and Respondent.
Ryan Hawblitzel, an autistic adult, was severely injured when his family's dog (the Dog) bit his face. When the Dog was adopted by Hawblitzel's parents just a month earlier, no one told them it had severely bitten someone else two weeks earlier.
Hawblitzel sued Labradors and Friends Dog Rescue Group, Inc. (Labradors and Friends), from whom his family obtained the Dog, and also the County of San Diego (County). Against the County, Hawblitzel alleged that a Department of Animal Services (Animal Services) employee, Lori Brown, knew the Dog was a "potentially dangerous and/or a vicious dog"—but negligently failed to warn Hawblitzel.
The trial court sustained the County's demurrer, determining Hawblitzel failed to allege facts creating a "special relationship" between himself and Brown and, therefore, Brown had no duty to warn. Hawblitzel appeals from the resulting judgment dismissing the County.
The judgment dismisses only the County. Labradors and Friends and other defendants remained in the case and are not parties to this appeal.
We affirm. This tragic case involves a public employee's failure to act that did not alter the risk of harm. Brown's failure to warn left Hawblitzel in exactly the same position he already occupied. Moreover, Hawblitzel did not allege that Brown made any representations to him or did any act that induced his detrimental reliance, placed him in harm's way, or lulled him into a false sense of security. Accordingly, the court correctly sustained the County's demurrer.
FACTUAL AND PROCEDURAL BACKGROUND
Because this appeal follows a successful demurrer, the facts are derived from those properly alleged in Hawblitzel's operative complaint. (Gu v. BMW of North America, LLC (2005) 132 Cal.App.4th 195, 200.)
A. The First Bite
Labrador and Friends places certain dogs in permanent homes. On December 8, 2014, Chris J. had temporary custody of the Dog until a permanent home could be found. While at a boarding facility that day, the Dog severely bit a woman's finger, nearly severing it. Chris J. returned the Dog to Labradors and Friends.
The Hawblitzel family changed the Dog's name from Derby to Charlie. To avoid confusion, we refer to the animal as the Dog.
B. County Investigates
On December 12, 2014, Animal Services investigated the dog bite incident. Believing Chris J. owed the Dog, Animal Services "made a decision that [the Dog] was potentially dangerous and/or a vicious dog and had decided to issue an order of quarantine to the owner . . . ."
C. Adoption of the Dog
On December 20, 2014, Hawblitzel's parents, Mark Hawblitzel and Maggie Keller (the Hawblitzels), attended a pet adoption event. There, they explained to Rebecca Kirkwood (an agent or employee of Labradors and Friends) they were interested in a family dog. The Hawblitzels told Kirkwood that one of their adult children, Ryan, was autistic, and they asked if there was any reason the Dog would not be an acceptable pet. Kirkwood assured the Hawblitzels the Dog would make a good family pet; she "concealed the fact that [the Dog] had inflicted a serious injury on someone only twelve days before."
Kirkwood is a named defendant in the trial court, but not a party to this appeal.
On December 23, 2014, Mark Hawblitzel signed a Labradors and Friends adoption agreement. Although Kirkwood knew the Dog had inflicted a severe bite only a few weeks previously, a page in the agreement entitled "Disclosures" was blank. The Hawblitzels would not have adopted the Dog if they had been informed about the prior bite.
The next day, the Hawblitzels picked up the Dog. Before doing so, they met with representatives from Labradors and Friends, who once again failed to tell them the Dog had severely injured someone earlier that month. The Hawblitzels took the Dog home.
About a week later, on approximately January 1, 2015, Keller received an e-mail from Labradors and Friends containing the Dog's veterinary care records and other information. None of these documents disclosed the prior bite.
D. Animal Services Does Not Contact the Hawblitzels
On January 13, 2015, Kirkwood informed Brown that the Hawblitzels now owned the Dog. Kirkwood gave Brown Keller's contact information so Brown could notify the Hawblitzels about the prior bite incident. However, Kirkwood asked Brown to delay contacting the Hawblitzels until the next day because Kirkwood "wanted to explain to the family what was going to happen." Brown agreed to delay contacting Keller.
Animal Services changed the quarantine order to reflect Keller owned the Dog; however, the County failed to serve the quarantine order or otherwise notify Keller about the prior bite. Animal Services never interviewed the Hawblitzels, did not create an incident report, and took no further action in its investigation of the prior bite, contravening its own policies and procedures. Labrador and Friends also never contacted the Hawblitzels to inform them of the prior bite.
E. The Dog Bites Hawblitzel
Eleven days later, on January 24, 2015, the Dog bit Hawblitzel's face so severely it "completely severed [Hablitzel's] nose, which required multiple surgeries and extensive medical care."
F. Original Complaint and First Amended Complaint
After the County denied Hawblitzel's government claim, he filed his original complaint against the County, Labradors and Friends, Kirkwood, and Lauren Dube. Against the County, Hawblitzel alleged two causes of action: (1) Failure to discharge a mandatory duty imposed by enactment, and (2) negligence.
Hawblitzel alleged that Kirkwood and Dube were agents or employees of Labradors and Friends.
The original complaint alleges Animal Services had a mandatory duty under section 5.14.1 of its Policy and Procedural Manual to contact the animal's owner as part of a dog bite investigation, and also under section 62.617 of the "San Diego County Code" regarding dog quarantine.
After the County demurred to the original complaint, Hawblitzel filed a first amended complaint. Against the County, Hawblitzel again alleged the County failed to discharge a mandatory duty to notify the Hawblitzels about the Dog's first bite; however, unlike the original complaint, he now alleged Food and Agricultural Code section 31621, relating to dangerous or vicious dogs, was the source of that duty. In his separate cause of action against the County for negligence, Hawblitzel alleged that "[a] special relationship was established between Lori Brown and Maggie Keller, who was acting as [Hawblitzel's] agent related to [the Dog] in their home." He further alleged, "This special relationship is based on the fact that Lori Brown had the name, address and phone number of Maggie Keller. In addition, Lori Brown stated she would contact Maggie Keller on January 14, 2015 to discuss the [prior] dog bite. This knowledge and statements regarding [Hawblitzel's] agent established a duty to [Hawblitzel] greater than the duty owed to another member of the public." The complaint alleges that Brown "negligently agreed to wait one day before contacting Maggie Keller" about the prior bite, and also negligently failed to contact her either the following day or any day prior to January 24, 2015, when Hawblitzel "was severely injured."
Hereafter, references to the complaint are to the first amended complaint.
G. Demurrer
The County demurred to the complaint, asserting (1) the mandatory duty cause of action failed because Food and Agricultural Code section 31621 did not apply to the County, and (2) the negligence cause of action failed because Hawblitzel had not alleged facts establishing the requisite special relationship required for imposing a duty to warn on a public employee.
In response, Hawblitzel did not oppose the demurrer "to the [s]econd [c]ause of action, regarding a mandatory duty . . . ." Based on that concession, the case against the County was narrowed to one cause of action alleging the public employee negligently failed to warn.
Opposing the demurrer, Hawblitzel asserted the requisite special relationship was adequately alleged because "Brown stated she would contact a member of the plaintiff's family (Maggie Keller, plaintiff's mother) regarding a previous bite by [the Dog] in their home and then failed to do so." Additionally, Hawblitzel asserted Brown "contributed to, increased or changed the risk of harm to plaintiff." Hawblitzel conceded that he did not rely on Brown's statement to Kirkwood that she would wait one day to notify the family about the prior bite. However, Hawblitzel asserted that Kirkwood "very likely did rely on Officer Brown's statement" in failing to contact them herself.
Hawblitzel did not ask for leave to amend in the event the court disagreed with his contentions.
The court sustained the County's demurrer, stating that Hawblitzel "did not oppose the demurrer to the second cause of action" and "cited no authority that would support a special relationship between Officer Brown and [Hawblitzel] under the facts of this case." The court concluded "the County owed no duty to [Hawblitzel]" and entered judgment dismissing the complaint against the County.
DISCUSSION
I. THE COURT CORRECTLY SUSTAINED THE COUNTY'S DEMURRER
A. The Standard of Review
"The standards for reviewing a judgment of dismissal following the sustaining of a demurrer without leave to amend are well settled. '"'We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.' [Citation.] Further, we give the [complaint] a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the [complaint] states facts sufficient to constitute a cause of action. [Citation.] And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff."'" (Finch Aerospace Corp. v. City of San Diego (2017) 8 Cal.App.5th 1248, 1251-1252.)
B. The Special Relationship Rule
The existence of a duty of care "is simply a shorthand expression for the sum total of policy considerations favoring a conclusion that the plaintiff is entitled to legal protection." (Camp v. State of California (2010) 184 Cal.App.4th 967, 975.) "What relationship must one person have with another and in what context before she must pay money to the other for her negligent action (or inaction). That is the basic question." (Walker v. County of Los Angeles (1987) 192 Cal.App.3d 1393, 1398 (Walker).) "The existence of a duty of care is a question of law to be determined by the court alone." (Camp, at p. 975.)
The duty issue becomes "complicated when we are inquiring into the liability of public employees and most especially when what is involved is something those employees failed to do rather than something they did—their omissions not their acts." (Walker, supra, 192 Cal.App.3d at p. 1398.) Generally, a private citizen has no duty to come to the aid of another. "The general rule is that one owes no duty to control the conduct of another, nor to warn those endangered by such conduct." (Von Batsch v. American Dist. Telegraph Co. (1985) 175 Cal.App.3d 1111, 1121 (Von Batsch).) "But in a very real sense the general public pays public employees specifically for the purpose of having them assume an affirmative duty to aid everyone in that general public. Thus, if ordinary standards applied they might be held responsible in tort for every injury suffered by every member of society every time a public employee negligently failed to do something which could have prevented harm. However, it is feared this concept of duty might expose public employees and especially the public treasury to intolerable financial burdens. To avoid this possibility, most jurisdictions have required something extra before public employees owe a duty in tort to do something to prevent injury to any member of the general public. [¶] In California this concern is addressed by requiring a 'special relationship' between the public employee and a specific private citizen before a duty is created." (Walker, supra, 192 Cal.App.3d at p. 1398.)
The "special relationship rule is not expansive . . . ; rather, it is narrow, to be applied in a limited class of unusual cases." (Minch v. California Highway Patrol (2006) 140 Cal.App.4th 895, 905 (Minch).) "[T]o create a special relationship and a duty of care, there must be evidence that [the public employee] '"made misrepresentations that induced a citizen's detrimental reliance [citation], placed a citizen in harm's way [citations], or lulled a citizen into a false sense of security and then withdrew essential safety precautions."'" (Greyhound Lines, Inc. v. Department of California Highway Patrol (2013) 213 Cal.App.4th 1129, 1136 (Greyhound Lines).)
Two California Supreme Court cases vividly illustrate the extent and occasionally harsh impact of this special relationship rule. In Davidson v. City of Westminster (1982) 32 Cal.3d 197 (Davidson), the plaintiff was stabbed in a laundromat that was under police surveillance. Police officers knew of other stabbings in the same or nearby laundromats, knew that plaintiff was in the laundromat, and identified a man on the premises as a likely perpetrator of a stabbing that occurred the evening before. As officers watched, the suspect entered and left the laundromat several times. The officers knew of the plaintiff's presence in the laundromat through their surveillance, but neither intervened nor warned plaintiff—and as a result, she was stabbed four times. (Id. at p. 201.) The California Supreme Court, determining the officers owed no duty to intervene or warn, held no special relationship existed "'[a]bsent an indication that the police had induced [plaintiff's] reliance on a promise, express or implied, that they would provide her with protection . . . .'" (Id. at p. 206.) Moreover, "the peril to [plaintiff] was not created by the officers. She was unaware of their presence and did not rely on them for protection. Their conduct did not change the risk which would have existed in their absence . . . ." (Id. at p. 208.) The Davidson court distinguished cases where the public employee had created the risk or contributed to, increased, or changed the risk that would otherwise have existed. (Id. at pp. 207-208.)
Applying the same legal principles, in Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112 (Zelig), a woman was fatally shot by her ex-husband in a courthouse where she was awaiting a family court hearing. Her minor children sued the sheriff's department and the county, alleging their mother had repeatedly informed court personnel that her ex-husband had threatened to kill her and she believed he would attempt to kill her in the courthouse. (Id. at p. 1119.) On at least one prior occasion, the bailiff searched the ex-husband for weapons before permitting him to enter the courtroom. The decedent also had provided the bailiff and a judge with letters and telephone messages where the ex-husband threatened to kill her. (Ibid.) In the courthouse, the ex-husband shot the decedent in the chest at point-blank range. Their six-year old daughter witnessed the shooting. (Ibid.)
The Zelig court held the plaintiffs did not allege facts establishing a negligence cause of action against the public employees. (Zelig, supra, 27 Cal.4th at p. 1128.) No special relationship existed to create a duty of care because plaintiffs had not alleged that "any officer or employee did anything . . . to induce [the decedent] in particular to rely upon a promise of special protection. At most, employees of the defendants county and sheriff's department failed to take affirmative steps to protect [the decedent]." (Id. at p. 1130.) Moreover, the public employees "'did not create the peril [and] took no affirmative action which contributed to, increased, or changed the risk which would have otherwise existed; there is no indication that they voluntarily assumed any responsibility to protect [her] . . . ; and there are no allegations of the requisite factors to a finding of special relationship, namely, detrimental reliance by the plaintiff on the officers' conduct [or] statements made by them which induced a false sense of security and thereby worsened her position.' [Citation]. Nor does the complaint allege facts demonstrating that any officer engaged in an affirmative act that increased the risk of harm to [the decedent]." (Ibid.)
Other courts have reached similar results when determining whether a public employee had a duty to act to prevent foreseeable harm. For example, in Greyhound Lines, supra, 213 Cal.App.4th 1129, during early morning hours, a vehicle struck a center divider, landed on its side, and blocked traffic lanes. The vehicle's headlights and taillights were out and its dark undercarriage faced oncoming traffic. (Id. at p. 1133.) A truck driver reported the collision to a 911 operator as a rollover accident blocking traffic lanes. However, when inputting the information into the dispatch system, the 911 operator did not include that the vehicle was blocking traffic lanes. Due to this error, the call was assigned to an officer some distance away, rather than one located only one off ramp away from the accident. (Ibid.) Three minutes later, a Greyhound bus collided with the disabled vehicle, killing and injuring bus passengers. (Ibid.) The accident led to complaints for personal injury and wrongful death against Greyhound and others. Greyhound cross-complained against the highway patrol, asserting the 911 operator negligently failed to include the crucial lane blockage information in the original accident description, which resulted in an unreasonable delay in the police response to the emergency. (Id. at p. 1134.)
The trial court sustained the highway patrol's demurrer to the cross-complaint because Greyhound failed to allege a special relationship creating a duty of care. (Greyhound Lines, supra, 213 Cal.App.4th at p. 1134.) On appeal, Greyhound argued a special relationship was created between the highway patrol and the bus passengers when the 911 operator assured the 911 callers that emergency help was on the way and then failed to properly input the dispatch codes. Greyhound asserted the 911 callers relied on this promise and were, therefore, dissuaded from stopping and rendering assistance themselves. (Id. at p. 1137.) The appellate court rejected Greyhound's assertions and held the cross-complaint failed to allege the requisite special relationship, stating, "The nonfeasance of the . . . 911 operators, i.e., their failure to include the lane blockage information in the dispatch, left the bus passengers in exactly the same position they already occupied. Without detrimental reliance by, or an increase in the risk of harm to, the bus passengers, there is no special relationship." (Ibid.)
Similarly, no special relationship is created simply because the public employee responds to a call for assistance and "took some action at the scene." (Adams v. City of Fremont (1998) 68 Cal.App.4th 243, 279; Lopez v. City of San Diego (1987) 190 Cal.App.3d 678, 681 [no special relationship between police responding to restaurant massacre and victims where police delayed acting on plan to neutralize the murderer]; Von Batsch, supra, 175 Cal.App.3d at p. 1122 [no special relationship between county and decedent's surviving wife when county's officers responded to a burglar alarm, searched the premises, and erroneously advised decedent's co-employees that no intruders were on the premises]; Williams v. State of California (1983) 34 Cal.3d 18, 24 [no special relationship between stranded or injured motorist and police based on fact police stopped to aid her].)
The fact a citizen is dependent upon the public employee is also insufficient to create a special relationship. Although an "express promise and reliance thereon are not indispensable elements of a special relationship" (Minch, supra, 140 Cal.App.4th at p. 902), in the absence of an express promise there must be conduct by the public employee, in a situation of dependency, that "'results in detrimental reliance on him [or her] for protection.'" (Ibid.) The California Supreme Court has "expressly rejected the view that a special relationship can arise solely from the fact of dependency." (Ibid.)
Recovery has also been denied for injuries caused by the failure of police personnel to respond to requests for assistance, the failure to investigate properly, or the failure to investigate at all, where the police had not induced reliance on a promise, express or implied, that they would provide protection. For example, in Hartzler v. City of San Jose (1975) 46 Cal.App.3d 6, a woman's estranged husband told her he was going to her house to kill her. She called police, who refused to respond right away, and instead told her to call back when the man arrived. Forty-five minutes later, the husband arrived and killed the woman. The police had responded to the family home 20 times in the past year for domestic violence calls, and police had previously arrested the husband for assaulting the woman. Nevertheless, the court held no special relationship existed "[a]bsent an indication that the police had induced decedent's reliance on a promise, express or implied, that they would provide her with protection." (Id. at p. 10; see also Antique Arts Corp. v. Torrance (1974) 39 Cal.App.3d 588, 589 [police dispatcher delayed 10 minutes before broadcasting burglary in progress, no duty].)
C. Hawblitzel's Contentions Regarding Special Relationship
On appeal, Hawblitzel contends a special relationship duty exists on "two alternative theories." The first is based on section 62.674 of the San Diego County Code of Regulatory Ordinances, entitled "Proceedings to Declare a Dog a Dangerous Dog," which provides in part:
Undesignated statutory references are to this Code.
"(a) Whenever [Animal Services] has reasonable cause to believe that a dog is a dangerous dog, it may commence proceedings to declare the dog a dangerous dog as follows:
"(1) [Animal Services] shall serve on the owner or custodian a notice of intent to declare the dog a dangerous dog.
"(2) The notice shall inform the dog's owner or custodian of all of the following:
"(A) [Animal Services'] authority to declare a dog a dangerous dog.
"(B) Each incident that forms the basis for [Animal Services'] proposed action.
"(C) The owner or custodian's right to request a hearing to contest whether grounds exist for [Animal Services'] proposed declaration.
"(D) The potential consequences if [Animal Services] issues a declaration declaring the dog a dangerous dog.
"(E) That a request for a hearing must be in writing and must be received by [Animal Services] within 10 days from the date of notice."
Hawblitzel's complaint alleges that after the Dog's first bite, Animal Services "made a decision that [the Dog] was potentially dangerous and/or a vicious dog and had decided to issue an order of quarantine to the owner . . . ." Hawblitzel contends that once Animal Services made the decision "to proceed with that declaration and quarantine of that dog," it was "required" to notify the dog's owner "of that intended action" because section 62.674, subdivision (a)(1) and (2) provide the Department "shall serve on the owner or custodian a notice of intent to declare the dog a dangerous dog" and the notice "shall" include certain specified information. Hawblitzel concedes that Animal Services has discretion to decide whether it would initiate "dangerous dog" proceedings regarding the Dog, but asserts that once Animal Services "made the decision to move forward with those proceedings," as alleged in the complaint, "it was under an absolute obligation" to notify the Hawblitzels of that intended action and the reasons behind it.
Hawblitzel's argument fails because it is based on a misinterpretation of section 62.674. Under section 62.674, subdivision (a), where there is "reasonable cause to believe that a dog is a dangerous dog," then Animal Services "may" commence proceedings to declare the dog a dangerous dog. Animal Services thus has discretion whether to commence that administrative proceeding—and if it chooses to do so—commencement is effected by providing notice to the dog's owner under section 62.674, subdivision (a)(1).
Under the plain language of this ordinance, the mandatory duty to provide notice to the dog's owner is not triggered by a determination or decision by Animal Services that a dog is dangerous. Rather, the notice is the means of commencing the proceedings to declare the dog a dangerous dog under section 62.674, a proceeding that is not alleged to have occurred here without notice.
Hawblitzel's complaint alleges that Animal Services "had decided to issue an order of quarantine" to the Dog's owner. On appeal, Hawblitzel contends this quarantine decision also triggered a mandatory duty to notify him about the prior bite under County "ordinances" that Hawblitzel's brief does not specifically identify. However, as the County correctly states, section 62.616 provides Animal Services "may" order the owner of a suspected rabid animal to deliver the animal to be confined and isolated and section 62.617 provides that Animal Services "may" order any dog that has bitten or exposed a person to rabies to be impounded and isolated. The County's quarantine ordinance cited by Hawblitzel does not impose a mandatory duty.
Hawblitzel's original complaint alleged the County failed to discharge a mandatory duty under section 62.617 by not quarantining the Dog after its first bite and by not notifying the Hawblitzels of the need for quarantine. In response to the County's demurrer to that complaint, Hawblitzel filed a first amended complaint that jettisoned reliance on section 62.617 and instead cited Food and Agricultural Code section 31621 as the source of the alleged mandatory duty to notify. When the County demurred again, Hawblitzel conceded his theory under Food and Agricultural Code section 31621 had no merit by not opposing the County's demurrer to that cause of action.
The theory Hawblitzel presents on appeal—that Animal Services had a mandatory duty imposed by enactment to notify him the Dog was dangerous—bears a striking similarity to the two theories advanced and later expressly abandoned by him in the trial court. However, the County does not assert that Hawblitzel's appellate argument is precluded by this litigation history and, therefore, we do not consider that issue.
The County's unopposed request to take judicial notice of sections 62.616, 62.617, and 62.618 is granted.
Hawblitzel's other argument focuses on Brown's agreement to delay notifying the Hawblitzels for a day, apparently to give Labradors and Friends the opportunity of giving them the bad news about the Dog. Citing Lugtu v. California Highway Patrol (2001) 26 Cal.4th 703 (Lugtu) and Mann v. State of California (1977) 70 Cal.App.3d 773 (Mann), Hawblitzel contends Brown effectively delegated her duty to notify the Hawblitzels, which Hawblitzel characterizes as an "affirmative act which placed the Hawblitzels in peril or increased their risk of harm, each day that dog remained in their home without receiving critical notice of its recent bite history." (Italics omitted.) Hawblitzel asserts this "affirmative act" was "tantamount to the police investigating a crime only to delegate the task of notifying unwitting victims to the person they knew had committed that crime in the first place." He adds, "By that affirmative act of delegation, [Animal Services] all but made certain that the Hawblitzels would never be notified of [the Dog's] recent bite history."
This argument fails because the alleged "affirmative act" left Hawblitzel in exactly the same position he occupied before Brown told Kirkwood she would wait a day to notify the Hawblitzels about the prior bite. Before the alleged "affirmative act," Hawblitzel was unaware the Dog had previously bitten someone. After the alleged "affirmative act," Hawblitzel was in the same position, unaware of the Dog's bite history. (See Davidson, supra, 32 Cal.3d at p. 208.) Hawblitzel asserts that each day notice was not given, the risk of harm increased. But the passage of time alone in this case does not increase the risk of harm. For example, in Davidson, supra, 32 Cal.3d 197, as minutes passed while the assailant was in the laundromat, the police did not intervene to warn of or prevent the harm from occurring. The California Supreme Court held there was no duty to warn or act to prevent the harm because the public employees' conduct did not change the risk that would have existed in their absence. (Id. at p. 208.) Similarly here, Brown's alleged promise to not notify the Hawblitzels left them in the same position (ignorance of the Dog's bite history) as would have existed had she done nothing.
Moreover, Hawblitzel could not have detrimentally relied on Brown's alleged conduct because he did not know about the conversation between Kirkwood and Brown. To establish a tort duty under these circumstances, affirmative conduct "that induces reliance or changes the risk of harm is required." (Greyhound Lines, supra, 213 Cal.App.4th at p. 1136.) Hawblitzel has not alleged such reliance or change in risk.
The cases Hawblitzel upon which relies, Lugtu, supra, 26 Cal.4th 703 and Mann, supra, 70 Cal.App.3d 773, differ in significant respects from the instant case. In Lugtu, a highway patrol officer directed the driver to stop in the center median of a freeway and another vehicle then struck the stopped car. The officer's decision to effect the traffic stop in the median was affirmative conduct that altered the risk of being struck by passing motorists. In Mann, the public employee (police officer) stopped to provide a motorist assistance. After calling for a tow truck, the officer withdrew without telling those present he was leaving, withdrawing the protection of his patrol car's flashing lights. Thus, the conduct increased or changed the risk that would have otherwise existed. (See discussion in Davidson, supra, 32 Cal.3d at pp. 207-208.)
D. No Leave to Amend
Hawblitzel offered no second amended complaint in the trial court. On appeal, he contends that if given the opportunity, he could "plead with more elaboration" the nature of the County's duty to notify him "arising from the County's own [a]nimal [c]ontrol ordinances . . . ." He adds, "The same is true with respect to the related theory that by ceding to Labrador [and] Friends the obligation to notify the Hawblitzels, the [County] committed an affirmative act which increased the risk of foreseeable harm." He contends he could provide "additional detail" concerning "how (and why) that agreement between" the County and Labrador and Friends occurred.
To meet his burden of showing it would be an abuse of discretion to sustain the demurrer without leave to amend, Hawblitzel must "enumerate the facts and demonstrate how those facts establish a cause of action." (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 890.) He fails to do so. We have rejected his theory based on animal control ordinances, and Hawblitzel fails to specify what different or additional provisions he would allege in a second amended complaint to state a cause of action against the County. His offer to provide unspecified "additional detail" regarding his alternative theory falls wells short of the requirement that he "enumerate the facts and demonstrate how those facts establish a cause of action." (Ibid.)
Having offered no second amended complaint below, and on appeal adducing no specific facts that could be alleged to cure the complaint as to the County, the court properly denied leave to amend. (See Stein v. Axis Insurance Co. (2017) 10 Cal.App.5th 673, 685.)
DISPOSITION
The judgment is affirmed. In the interest of justice, each party is to bear its own costs on appeal.
NARES, Acting P. J. WE CONCUR: HALLER, J. AARON, J.