JOSEPH C. SPERO, Chief Magistrate Judge.
This case arises from the tragic death of Kathryn Steinle ("Steinle") in a 2015 shooting. Plaintiffs are Steinle's parents James Steinle and Elizabeth Sullivan—individually, as heirs to Steinle, and as representatives of Steinle's estate. Plaintiffs' remaining claim in this action is against Defendant the United States of America, based on the purported negligence of a federal employee in failing to secure the handgun with which Steinle was shot, which was stolen from his personal vehicle days before the shooting. The United States moves for summary judgment, and the Court held a hearing on December 20, 2019. For the reasons discussed below, the United States' motion is GRANTED.
Most of the facts relevant to the present motion are not in dispute, or at least not disputed for the purpose of the present motion. On June 27, 2015, then-U.S. Bureau of Land Management ("BLM") Ranger John Woychowski was driving his personal Buick SUV with his family from his home and usual duty station near the Mexican border in El Centro, California to Sacramento, California, on the way to a temporary duty assignment in Montana.
Four days later, on July 1, 2015, Steinle was walking with her father on Pier 14 of the Embarcadero, around half a mile from Pier 5, and Juan Francisco Lopez Sanchez
Plaintiffs brought this action against the City and County of San Francisco and its former sheriff Ross Mirkarimi (collectively, the "City Defendants") and against the United States, asserting claims based on the United States and the City Defendants' failure to ensure that Lopez Sanchez, a felon eligible for deportation, was in fact deported when he was released from local custody on drug charges, as well as the claim at issue here based on Woychowski's conduct. Plaintiffs also initially named Lopez Sanchez as a defendant, but voluntarily dismissed their claims against him without prejudice. This Court previously dismissed all claims based on failure to deport Lopez Sanchez with prejudice, which included all claims against the City Defendants and some claims against the United States, and the Ninth Circuit affirmed. See Order re Mots. to Dismiss ("MTD Order," dkt. 48);
The United States now moves for summary judgment, arguing that Plaintiffs have shown neither that Woychowski had a duty to Plaintiffs under California law nor that Woychowski's failure to secure the gun was a proximate cause of Steinle's death. Although the United States also suggests that the record does not show Woychowski acted negligently, it does not move for summary judgment on that basis, and the Court does not reach that issue.
Summary judgment on a claim or defense is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). In order to prevail, a party moving for summary judgment must show the absence of a genuine issue of material fact with respect to an essential element of the non-moving party's claim, or to a defense on which the non-moving party will bear the burden of persuasion at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Once the movant has made this showing, the burden then shifts to the party opposing summary judgment to designate "`specific facts showing there is a genuine issue for trial.'" Id. (citation omitted); see also Fed. R. Civ. P. 56(c)(1) ("A party asserting that a fact . . . is genuinely disputed must support the assertion by . . . citing to particular parts of materials in the record. . . ."). "[T]he inquiry involved in a ruling on a motion for summary judgment . . . implicates the substantive evidentiary standard of proof that would apply at the trial on the merits." Anderson v. Liberty Lobby Inc., 477 U.S. 242, 252 (1986). The non-moving party has the burden of identifying, with reasonable particularity, the evidence that precludes summary judgment. Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996). Thus, it is not the task of the court to scour the record in search of a genuine issue of triable fact. Id.; see Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001); Fed. R. Civ. P. 56(c)(3).
A party need not present evidence to support or oppose a motion for summary judgment in a form that would be admissible at trial, but the contents of the parties' evidence must be amenable to presentation in an admissible form. See Fraser v. Goodale, 342 F.3d 1032, 1036-37 (9th Cir. 2003). Neither conclusory, speculative testimony in affidavits nor arguments in moving papers are sufficient to raise genuine issues of fact and defeat summary judgment. Thornhill Publ'g Co., Inc. v. GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979). On summary judgment, the court draws all reasonable factual inferences in favor of the non-movant, Scott v. Harris, 550 U.S. 372, 378 (2007), but where a rational trier of fact could not find for the non-moving party based on the record as a whole, there is no "genuine issue for trial" and summary judgment is appropriate. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986).
Plaintiffs' remaining claim is for negligence under California law and the Federal Tort Claims Act ("FTCA"). "The FTCA, a limited waiver of the United States' sovereign immunity, provides that the United States shall be liable `in the same manner and to the same extent as a private individual under like circumstances' under applicable state law." Dugard v. United States, 835 F.3d 915, 918-19 (9th Cir. 2016) (quoting 28 U.S.C. § 2674). In California, "[t]he elements of a negligence action are duty, breach of duty, causation, and damages." Carrera v. Maurice J. Sopp & Son, 177 Cal.App.4th 366, 377 (2009) (citing, e.g., Paz v. California, 22 Cal.4th 550, 559 (2000)). The United States seeks summary judgment based on the elements of duty and causation.
California courts "have invoked the concept of duty to limit generally `the otherwise potentially infinite liability which would follow from every negligent act.'" Beacon Residential Cmty. Assn. v. Skidmore, Owings & Merrill LLP, 59 Cal.4th 568, 573 (2014) (quoting Bily v. Arthur Young & Co., 3 Cal.4th 370, 397 (1992)). The California Supreme Court has identified several "major" factors relevant to the existence and scope of a common law duty of care:
Rowland v. Christian, 69 Cal.2d 108, 113 (1968); see also, e.g., Verdugo v. Target Corp., 59 Cal.4th 312, 326 (2014) (citing Rowland with approval). Of those factors, the parties' arguments here (as was also the case for the earlier motions to dismiss) focus primarily on foreseeability, a "concept [that] plays a variety of roles in tort doctrine," including in the context of proximate cause, discussed separately below. See Ballard v. Uribe, 41 Cal.3d 564, 572 n.6 (1986).
California law generally imposes a stringent duty of care for dealing with guns. In light of the "risk incident to dealing with . . . firearms" and other instrumentalities with similar capacity to do harm, "the standard of care required of the reasonable person when dealing with such dangerous articles is so great that a slight deviation therefrom will constitute negligence." Warner v. Santa Catalina Island Co., 44 Cal.2d 310, 317 (1955); see also Jacoves v. United Merch. Corp., 9 Cal.App.4th 88, 116 (1992); Reida v. Lund, 18 Cal.App.3d 698, 704 (1971). On the other hand, as a general rule, "in the absence of a special relationship there is no duty to control the conduct of a third person so as to prevent him from harming another." Palma v. U.S. Indus. Fasteners, Inc., 36 Cal.3d 171, 184-85 (1984).
As noted in the Court's previous order at the pleadings stage, most but not all cases from outside of California have held that a gun owner is not liable for harm caused using a stolen gun. See MTD Order at 41-42 (comparing, e.g., Jones v. Secord, 684 F.3d 1 (1st Cir. 2012), Finocchio v. Mahler, 37 S.W.3d 300 (Mo. Ct. App. 2000), and McGrane v. Cline, 94 Wn.App. 925 (1999), with Pavlides v. Niles Gun Show, Inc., 93 Ohio App.3d 46 (1994)). As far as this Court is aware, however, no court has applied California law to similar circumstances. In perhaps the closest case, a California appellate court reversed summary judgment entered for the defendant on the distinguishable facts of a defendant father having left a rifle where his minor son could access it and the minor son using the rifle to shoot several people, with evidence from which a jury could have concluded that the father should have known his son was prone to violence. Reida, 18 Cal.App.3d 698.
Lacking authority more directly on point, this Court looked to a line of California cases— the "special circumstances" cases—allowing negligence claims to proceed against defendants who failed to secure particularly dangerous vehicles where thieves caused damage using the vehicles. MTD Order at 43-45. These cases represent an exception to the usual rule that "in the absence of a special relationship there is no duty to control the conduct of a third person so as to prevent him from harming another." Palma, 36 Cal. 3d at 184-85.
MTD Order at 43.
In Richardson, the California Supreme Court held that a claim could proceed against defendants who failed to secure a massive bulldozer—which had been a subject of notable public interest—with an effective ignition lock, which allowed a drunk group of trespassers to start the bulldozer and, after joyriding around the construction site, inadvertently set it off on a one-mile unpiloted rampage through a residential area. Richardson, 44 Cal. 2d at 774-76. In Hergenrether v. East, the California Supreme Court reversed a defense judgment-notwithstanding-the-verdict, holding that defendants could be held liable for leaving a two-ton truck parked on the street unlocked with the key in the ignition, where the truck was stolen and late that night collided with another car, causing serious injuries. 61 Cal.2d 440, 441-42 (1964). The California Supreme Court in Palma similarly reversed a grant of summary judgment for defendants who left a large commercial truck unlocked with the keys inside in a lot near the street in a high crime neighborhood, where a former employee stole the truck and ran over the plaintiff. Palma, 36 Cal. 3d at 176, 184-86. More recently, in Carrera v. Maurice J. Sopp & Son, a California appellate court reversed a grant of summary judgment in favor of a defendant who had left a tow truck unattended with the key in the ignition in a high-crime area, holding that the defendant could instead be held liable for the damage caused when a paroled gang member stole the truck and drove through a crowded bus stop, killing three people. Carrera, 177 Cal.App.4th 366, 370-71 (2012). In Reida, the case holding that a father could be liable for deaths and injuries his son caused with the father's rifle, the court cited Hergenrether and its "special circumstances" doctrine as "somewhat analogous." Reida, 18 Cal. App. 3d at 706.
This Court previously held that a handgun is at least analogous to a heavy vehicle in the potential danger created if it falls into inexperienced and unauthorized hands, MTD Order at 44-45, and stands by that conclusion now. Under California law, a gun owner who fails to secure a loaded handgun from foreseeable theft can be held liable under appropriate circumstances for harm caused by the thief.
In all of the "special circumstances" cases, however, the damage appears to have been caused by the thief or thieves, and in the aftermath of the theft. See Palma, 36 Cal. 3d at 176, 184-86; Richardson, 44 Cal. 2d at 774-76; Carrera, 177 Cal. App. 4th at 373-74.
A California appellate court held that the trial court erred in denying Avis's motion for summary judgment, primarily because the special circumstances doctrine does not apply to "ordinary vehicles" rather than particularly large and dangerous vehicles. Id. at 228-30, 233. Despite that holding, which in itself sheds little light on this case involving theft of a deadly weapon, the Avis court went on to state that the gap in time and space between the theft and the accident would separately be sufficient to nullify any duty:
Id. at 233; cf. Carrera, 177 Cal. App. 4th at 371 ("Further, the injuries . . . occurred shortly after the theft of the tow truck and were not so temporally disparate as to suggest a termination of causation." (distinguishing Avis and a case in which injuries occurred two days after a theft)).
That alternative holding of Avis, while perhaps dicta, is instructive here. Three and a half days elapsed between the theft of Woychowski's handgun and Steinle's shooting. There is no evidence indicating how the gun came to be present on the pier where Steinle was shot. There is no evidence that Lopez Sanchez stole the gun from Woychowski's car, and Plaintiffs do not assert that he did. See Opp'n (dkt. 118) at 11 ("Mr. Lopez-Sanchez . . . was not looking for a gun until he found one a half mile down the street from where it had been stolen . . . [.]" (heading text; capitalization and emphasis omitted)). It is possible that, immediately after breaking into Woychowski's car, the thief walked half a mile and left the gun where Lopez Sanchez found it three and a half days later. It is equally consistent with the evidence in the record, however, that the gun could have passed through the hands of any number of other people, and traveled throughout the San Francisco Bay Area or beyond, before ending up at Pier 14. Aside from the fact that the stolen gun was used, there is no evidence that the shooting was in any way connected to the theft.
Under the "special circumstances" doctrine, Woychowski had a duty to secure his handgun in a manner that did not impose a risk of harm on third parties who might be injured in the course of the foreseeable theft of the gun. Such a duty would perhaps most clearly encompass bystanders injured by an accidental discharge of the gun during the auto burglary. Cf. Richardson, 44 Cal.2d 772 (allowing claims by parties injured when trespassers were unable to stop the bulldozer they had started). It might also encompass someone injured by a thief who, upon finding the gun, wandered the area firing it aimlessly, cf. Carrera, 177 Cal. App. 4th at 370 (applying special circumstances where a thief driving a stolen tow truck struck several vehicles parked near the truck and eventually drove through a crowded bus stop), or even someone injured if, upon finding the gun, the thief set out with it confront some adversary, cf. Palma, 36 Cal. 3d at 176 (applying special circumstances where the thief "had stolen the truck and had driven it to the home of [his] former wife where the injury to [the plaintiff] occurred"). But Woychowski's duty was "not perpetual and unlimited in scope," Avis, 12 Cal. App. 4th at 23, and Plaintiffs have offered no limiting principle that differentiates Steinle's tragic death from any other harm that might be caused by a stolen gun down the line from a theft, after it has changed hands at least once (and perhaps more than once).
In the absence of authority so holding, this Court declines to stretch California's relatively narrow "special circumstances" doctrine to encompass previously-unrecognized liability for any subsequent third-party criminal conduct involving a stolen weapon. The United States' motion is GRANTED.
Although the lack of duty is sufficient to grant the United States' motion, the Court also addresses the issue of proximate cause, which rests on similar considerations and provides a separate and sufficient basis to grant the motion.
The causation element of a negligence claim generally "has two aspects": (1) whether the defendant's action or inaction was a "cause in fact" of the plaintiff's injury, also known as "but for" causation; and (2) whether, based on "the degree of connection between the conduct" and considerations of public policy, it would be "unjust to hold [the defendant] legally responsible," often referred to as "proximate" causation. State Dep't of State Hosps. v. Superior Court, 61 Cal.4th 339, 352-53 (2015) (citations and internal quotation marks omitted).
Plaintiffs contend that the proximate cause standard is not applicable here because they rely on the "substantial factor" test for multiple concurrent causes. See Opp'n at 20. But the case on which Plaintiffs rely—indeed, the passage that Plaintiffs quote in their brief—does not distinguish the substantial factor test from the policy-based proximate cause test requiring a sufficient connection between the defendant's conduct and plaintiff's injury, but instead draws a contrast between the substantial factor test and the but-for test. See id. ("`[I]n cases where concurrent independent causes contribute to an injury, we apply the "substantial factor" test . . . . This case does not involve concurrent independent causes, so the "but for" test governs questions of factual causation.'" (quoting State Dep't of State Hosps., 61 Cal. 4th at 352 n.12) (ellipsis in original)). A plaintiff must show proximate cause even where the plaintiff relies on the substantial factor test of factual causation; the two tests are not distinct and can overlap. See, e.g., Grotheer v. Escape Adventures, Inc., 14 Cal. App. 5th 1283, 1303 (2017) ("To be considered a proximate cause of an injury, the acts of the defendant must have been a "substantial factor" in contributing to the injury." (emphasis added)).
Both parties cite a Texas case holding that plaintiffs had not shown proximate cause with respect to a shooting that took place days after the gun used was stolen from the defendant gun store. Ambrosio v. Carter's Shooting Ctr., Inc., 20 S.W.3d 262 (Tex. App. 2000); Mot. (dkt. 115) at 20; Opp'n at 23. That court addressed the issue as follows:
Ambrosio, 20 S.W.3d at 268-69.
Plaintiffs distinguish Ambrosio on the grounds that there, "the murder would have occurred regardless of the particular gun the murdered [sic] used" and "[r]egardless of whether or not the original theft had occurred," while according to Plaintiffs, "[t]he same is not true here." Opp'n at 23. Without any evidence of what transpired in the days between the theft and the shooting, however, there is no way to tell whether the same is true. The gun at issue here moved at least approximately half a mile after it was stolen, or perhaps significantly further if it took a circuitous route in the intervening period; it was not simply left on the ground at the scene of the break-in. Perhaps whoever left the gun where Lopez Sanchez found it would have been carrying a gun that he or she wished to dispose of regardless of whether that gun had been the one stolen from Woychowski's car. Or perhaps not; there is no evidence either way. This Court finds Ambrosio's reasoning persuasive here to the extent that Plaintiffs have not been able to show whether there is anything "more than causation in the `philosophic sense.'" See Ambrosio, 20 S.W.3d at 269.
At the hearing, Plaintiffs' counsel characterized a New Jersey case, which was cited in the United States' motion but not addressed in Plaintiffs' opposition brief, as holding that the owner of a stolen gun could be held liable under similar circumstances. In that case, a New Jersey state trial court
In this case, the gun traveled at least some distance from the theft, three and a half days elapsed, the gun changed hands once at the very least, and there is no way to know what else transpired during that time. Even if the gun was taken directly to Pier 14 by the thief and left there until Lopez Sanchez found it days later—facts that, again, cannot be determined on the record presented—that separation in time, space, actors, and conduct would be sufficient in this Court's view to break the chain of proximate causation between Woychowski's purportedly negligent storage of the gun and Steinle's death. Accordingly, for reasons similar to those addressed above in the context of duty, the Court concludes that Plaintiffs have not met their burden to show a sufficient causal connection between the theft and the shooting such that "`the various considerations of policy that limit an actor's responsibility for the consequences of his conduct'" weigh in favor of holding the United States liable for the harm caused by a negligently unsecured gun days after its theft. See State Dep't of State Hosps., 61 Cal. 4th at 353 (quoting Ferguson v. Lieff, Cabraser, Heimann & Bernstein, 30 Cal.4th 1037, 1045 (2003)). Although the underlying considerations are similar, this failure to establish proximate cause is a second reason, separate from the lack of duty, to grant the United States' motion for summary judgment.
For the reasons discussed above, the United States' motion for summary judgment is GRANTED. The Clerk is instructed to enter judgment in favor of the United States and close the case.
