Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. BC389914 Ronald M. Sohigian, Judge.
Telleria & Telleria and Anthony F. Telleria for Plaintiff and Appellant.
Law Offices of Tharpe & Howell, Johnna J. Hansen and Calvin S. Rose for Defendant and Respondent.
KITCHING, J.
INTRODUCTION
Plaintiff and appellant Rolando Polanco asserted causes of action for negligence and negligent infliction of emotional distress against defendant and respondent Truck Insurance Exchange. The trial court sustained defendant’s demurrer to plaintiff’s second amended complaint without leave to amend, and then entered an order dismissing plaintiff’s action. We affirm.
ALLEGATIONS IN THE SECOND AMENDED COMPLAINT
Plaintiff alleges the following in his second amended complaint.
Defendant is the workers’ compensation insurance carrier for plaintiff’s employer. On May 3, 2006, plaintiff went to Bank of America (the bank) to cash and deposit a check issued by defendant in payment of disability compensation. The bank, however, refused to cash the check and claimed that the check was stolen.
On that same day, May 3, 2006, plaintiff’s girlfriend called Kathleen M. Quinn, an agent and employee of defendant, and advised Quinn about plaintiff’s “problem.” But Quinn made no effort to contact the bank to inform the bank about the genuineness of the check.
Plaintiff attached as Exhibit A to the second amended complaint and incorporated by reference a copy of defendant’s log entry of the May 3, 2006. Although Exhibit A was not included in the clerk’s transcript, we take judicial notice of the document, which is in the superior court file. The log entry at 5:45 a.m. for Kathleen Quinn stated: “RECEIVED T/C FROM IW’S GIRLFRIEND. SHE STATED IW WENT TO CASH HIS TTD CHECK & WAS ARRESTED & PLACED IN CUFFS. SHE SAID THAT HE WAS ARRESTED FOR STEALING CHECK. IW STATED HE JUST RECEIVED IN THE MAIL. THE ARRESTING OFFICER WOULD NOT SPEAK WITH ME. SAID HE WOULD CALL BACK IN A LITTLE WHILE. (IW WAS BEING ARRESTED AT THIS TIME WAS AT BANK OF AMERICA). COULD HEAR IW IN BACKGROUND, HE WAS EXTREMELY UPSET.” The log entry for 9:46 a.m. for Quinn stated: “RECEIVED T/C FROM OFFICER OROSCO SERIAL 365-48. HE WAS INQUIRING INTO THE CHECK AMOUNT. DID NOT HAVE CHECK # AS HE CALLED WHEN I WAS OUT WITH NO COMPUTER ACCESS. IW’S GIRLFRIEND CALLED BACK, SHE HAS NO NEWS, NOT SURE....”
As a result of defendant’s failure to timely provide information to the bank, plaintiff was arrested, placed in handcuffs, and taken to jail, where he spent several days. Plaintiff was finally released after defendant “belatedly provided information about the genuineness of the check to the Los Angeles Police Department which [it] could easily have provided to the bank when Plaintiff’s friend called Kathleen Quinn on May 3, 2006.”
Plaintiff had a neurological seizure disorder caused by previous trauma. The trauma of this incident caused plaintiff to have a seizure. As a result of defendant’s negligence and failure to act, plaintiff incurred medical bills and severe emotional distress.
ISSUE
The essential issue in this case is whether defendant had a duty to contact the bank to advise it that the check defendant issued to plaintiff was genuine.
DISCUSSION
The court assumes the truth of all of the material facts alleged in the second amended complaint. We do not, however, assume the truth of plaintiff’s contentions, deductions or conclusions of law. (Friedman v. Merck & Co. (2003) 107 Cal.App.4th 454, 463 (Friedman).)
Plaintiff contends that he has stated causes of action for negligence and negligent infliction of emotional distress. “The elements of a cause of action for negligence are: duty; breach of duty; legal cause; and damages. [Citations.] The existence of a duty is the threshold element of a negligence cause of action.” (Friedman, supra, 107Cal.App.4th at p. 463.)
“Duty is also an element of a negligent emotional distress infliction cause of action. [Citations.] The cause of action is not, in general, well defined. However, it is well settled that negligent emotional distress infliction is not an independent tort; rather it is the tort of negligence to which the duty element applies.” (Friedman, supra, 107 Cal.App.4th at p. 463.)
“The existence of a legal duty is a question of law for the court. [Citation.] ‘As [the Supreme Court] has explained, “duty” is not an immutable fact of nature “ ‘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.’ ” [Citations.] In California, the general rule is that all persons have a duty “ ‘to use ordinary care to prevent others being injured as the result of their conduct....’ ” [Citations.]’ [Citation.] Foreseeability of harm is a ‘ “crucial factor” ’ in determining the existence and scope of that duty.” (John B. v. Superior Court (2006) 38 Cal.4th 1177, 1188-1189.)
In addition to foreseeability, other factors the court considers include “[2] the degree of certainty that the plaintiff suffered injury, [3] the closeness of the connection between the defendant’s conduct and the injury suffered, [4] the moral blame attached to the defendant’s conduct, [5] the policy of preventing future harm, [6] the extent of the burden to the defendant and [7] 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 v. Christian (1968) 69 Cal.2d 108, 113 (Rowland); see also Adams v. City of Fremont (1998) 68 Cal.App.4th 243, 267-268 (Adams).)
A. Defendant Did Not Have a Duty to Take Affirmative Action Because It Did Not Have a Special Relationship With Plaintiff
Although courts often use the seven Rowland factors in determining duty, sometimes courts take a different analytical approach. “In considering whether a party has a legal duty in a particular factual situation, a distinction is drawn between claims of liability based upon misfeasance and those based upon nonfeasance. ‘ “ ‘Misfeasance exists when the defendant is responsible for making the plaintiff's position worse, i.e., defendant has created a risk. Conversely, nonfeasance is found when the defendant has failed to aid plaintiff through beneficial intervention....’ [Citations.]” ’ [Citation.] Liability for misfeasance is based on the general duty of ordinary care to prevent others from being injured by one’s conduct. (Civ. Code, § 1714, subd. (a); [Citation].) Liability for nonfeasance is limited to situations in which there is a special relationship that creates a duty to act. [Citations.] ‘The basic idea is often referred to as the “no duty to aid rule, ” which remains a fundamental and long-standing rule of tort law.... “As a rule, one has no duty to come to the aid of another. A person who has not created a peril is not liable in tort merely for failure to take affirmative action to assist or protect another unless there is some relationship between them which gives rise to a duty to act.” ’ [Citation.] Because the traditional weighing process using the seven factors set forth in [Rowland] ‘has already been done by courts over the centuries in formulating the “no duty to aid” rule’ in the context of liability for nonfeasance, it is not necessary to engage in the weighing process in a particular case. [Citation.]” (Seo v. All-Makes Overhead Doors (2002) 97 Cal.App.4th 1193, 1202-1203 (Seo).)
A special relationship may arise out of a statutory duty or a contractual duty. (Seo, supra, 97 Cal.App.4th at p. 1204.) Plaintiff argues that defendant had a statutory duty to call the bank pursuant to Labor Code section 4651, subdivision (a), which provides in part: “No disability indemnity payment shall be made by any written instrument unless it is immediately negotiable and payable in cash, on demand, without discount at some established place of business in the state.” This statute, however, says nothing about an insurance carrier’s obligation to call a bank. Rather, it deals with the manner of payment. The statute therefore did not create a duty on behalf of defendant to call the bank and advise it about the genuineness of the check.
Plaintiff does not allege that the check defendant issued was not immediately negotiable and payable in cash, or that the manner of payment otherwise violated Labor Code section 4651, subdivision (a).
Plaintiff argues that defendant had a contractual duty to contact the bank and confirm that the check was genuine. He contends that, as the employee of defendant’s insured, he was a third party beneficiary of the insurance contract. We reject plaintiff’s argument. Plaintiff did not attach the contract to the second amended complaint or make any allegations regarding its contents. Therefore, there are no facts alleged in the second amended complaint that indicate that defendant had a contractual duty to contact the bank.
Under the common law, the courts have also found that a special relationship exists in light of the particular nature of the relationship between the parties. Examples of special relationships include the relationships between common carriers and passengers, innkeepers and guests, and psychotherapists and patients. (Seo, supra, 97 Cal.App.4th at p. 1203; 6 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 1049, p. 354.) Plaintiff does not appear to contend, and we find no basis to conclude, that defendant had a special relationship with plaintiff under the common law.
Accordingly, because defendant is accused of nonfeasance-not misfeasance-and because defendant did not have a special relationship with plaintiff, defendant did not owe a duty to plaintiff.
B. Defendant Did Not Owe a Duty to Plaintiff Under the Rowland Factors
Having determined that defendant did not owe a duty to plaintiff for its alleged nonfeasance, we need not weigh the traditional factors set forth in Rowland. (Seo, supra, 97 Cal.App.4th at p. 1203.) Nonetheless, if we do consider these factors, we come to the same conclusion-defendant had no duty.
1. Foreseeability
“The court’s task in determining duty is not to decide whether a particular plaintiff’s injury was reasonably foreseeable in light of a particular defendant’s conduct. Instead the court evaluates more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may be appropriately imposed on the negligent party. [Citation.] What is ‘sufficiently likely’ means what is ‘ “likely enough in the setting of modern life that a reasonably thoughtful [person] would take account of it in guiding practical conduct.” ’ ” (Martinez v. Bank of America (2000) 82 Cal.App.4th 883, 895 (Martinez).)
“[T]he requisite degree of foreseeability rarely, if ever, can be proven in the absence of prior similar incidents. [Citations.] A duty to take affirmative action to control a third party’s wrongful acts will be imposed only where such conduct can be reasonably anticipated.” (Martinez, supra, 82 Cal.App.4th at p. 895.)
Here, it was not reasonably practical for a workers’ compensation insurance company such as defendant to take affirmative action in response to calls placed by “friends” of employees of its insureds. Friends of employees of its insureds have no relationship with defendant. Further, there is no allegation that defendant experienced a similar previous situation with plaintiff or any other person who received one of its checks. Accordingly, for purposes of duty, it was not reasonably foreseeable to defendant that harm would result to plaintiff if it did not call the bank after receiving a call from plaintiff’s friend.
2. Certainty That Plaintiff Suffered Injury
For purposes of appellate review, we must accept as true that plaintiff suffered injury as alleged in the second amended complaint.
3. Closeness of Connection Between Defendant’s Conduct and the Harm Suffered
Defendant’s alleged conduct has no close connection to the injury plaintiff suffered. Rather, the bank’s accusation that plaintiff presented a stolen check was the immediate reason why plaintiff was arrested and suffered harm.
4. Moral Blame
“ ‘Moral blame has been applied to describe a defendant’s culpability in terms of the defendant’s state of mind and the inherently harmful nature of the defendant’s acts. To avoid redundancy with the other Rowland factors, the moral blame that attends ordinary negligence is generally not sufficient to tip the balance of the Rowland factors in favor of liability. [Citation.] Instead, courts have required a higher degree of moral culpability such as where the defendant (1) intended or planned the harmful result [citation]; (2) had actual or constructive knowledge of the harmful consequences of their behavior [citation]; (3) acted in bad faith or with a reckless indifference to the results of their conduct [citations]; or (4) engaged inherently harmful acts [citation].’ ” (Martinez, supra, 82 Cal.App.4th at p. 896, quoting Adams, supra, 68 Cal.App.4th at p. 270.)
Here, there is no allegation that defendant’s conduct fell within any of these four exceptional circumstances. Defendant did not intend or plan for plaintiff to be arrested and did not engage in inherently harmful acts. Further, there is no allegation that defendant had knowledge that it needed to call the bank in order to prevent plaintiff from being arrested or that it acted in a recklessly indifferent manner. In fact, defendant’s log entry, which was incorporated by reference into the second amended complaint, indicates that when Kathleen Quinn received a call from plaintiff’s girlfriend, the arresting officer would not speak to Quinn. (See fn. 1, ante.) The log further indicates that when the officer later called Quinn, he did not have the check number and Quinn did not have computer access at the time. (Ibid.) These facts do not indicate that defendant’s employee knew that a telephone call to the bank would keep plaintiff from being arrested, or that Quinn was recklessly indifferent to plaintiff’s plight.
5. Preventing Future Harm, The Burden to the Defendant and the Consequences to the Community of Imposing a Duty to Exercise Care with Resulting Liability
A policy that decreases the risk of false arrest would of course be beneficial. The question is whether imposing liability on defendant would advance that policy in any concrete or practical way, particularly given the remote connection between defendant’s conduct and plaintiff’s harm. (See Martinez, supra, 82 Cal.App.4th at p. 897.)
Imposing a duty on workers’ compensation insurance companies to call banks in response to calls by friends of employees of their insureds when there is a question about the genuineness of a check the company issued might have some marginal impact on reducing the likelihood of false arrest. However, any benefit of imposing such a duty is outweighed by the heavy burden it would place on companies and the community at large.
We do not decide whether defendant would have had a duty to plaintiff if the bank had called defendant directly and inquired about the genuineness of the check. (See Weaver v. Bank of America (1963) 59 Cal.2d 428 [holding that payor bank’s wrongful dishonor of a check was the legal cause of the plaintiff’s damages].)
In light of privacy and security concerns, workers’ compensation insurance companies cannot freely communicate with people claiming to be friends of employees of their insureds. Further, it would be a great burden on such companies if they were required to take affirmative action or risk liability each time a person with no relationship to the company calls and claims there is an emergency that must be addressed. Imposing such a burden could expose insurance companies to abuse and mischief. Moreover, it seems likely that costs of various kinds, including insurance, would rise as a result of imposing a duty.
In sum, the application of the facts of this case to the factors used to determine whether there is a legal duty leads us to conclude that defendant had no duty to plaintiff. The absence of duty ends the analysis of liability. (Martinez, supra, 82 Cal.App.4th at p. 897.) We therefore conclude that the trial court correctly sustained defendant’s demurrer without leave to amend.
DISPOSITION
The order of dismissal is affirmed. Defendant is awarded costs on appeal.
We concur: KLEIN, P. J. ALDRICH, J.