Lee v. City of Oakland
Filed 7/24/06 Lee v. City of Oakland CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
| MAURICE LEE et al., Plaintiffs and Respondents, v. CITY OF OAKLAND, Defendant and Appellant. |
A110711
(Alameda County Super. Ct. No. 2002069837)
|
Defendant and appellant City of Oakland (the City) appeals the judgment following a jury trial in favor of plaintiffs and respondents Maurice Lee and minors Carrie and Nicholas Christian, through their guardian ad litem, Rosalyn Lee Basemore, in their action for the wrongful death of their mother. The City contends the court erred in overruling its demurrer and in denying its motion for nonsuit/judgment on the pleadings. Alternatively, it contends there was insufficient evidence of causation.
BACKGROUND
Second Amended Complaint
Pertinent to this appeal, plaintiffs' second amended, and operative, complaint[1] makes the following general allegations:
Plaintiffs are the children of Freddie Marie Christian. On October 12, 2001, Christian filed an order to show cause and temporary restraining order (TRO) to gain protection from the violent assaults of Clarence Brown. The TRO required Brown to stay away from her, her residence, her place of employment, and her children.
On October 21, 2001, Brown entered Christian's house and threatened to harm her. She notified a police emergency dispatcher, and Oakland Police Officer Michael Matous responded. Officer Matous knew Christian and Brown and knew Brown had been violent to her on previous occasions. Officer Matous reviewed the TRO, determined it had not been served on Brown, served it himself, removed Brown from the premises, and instructed Brown on the effect of the TRO. He told Christian to contact the dispatcher if Brown violated the TRO, and he would enforce the TRO against Brown.
The following day, October 22, Christian came home to find Brown hiding in her apartment. She telephoned the police emergency dispatcher, and Officer Matous responded. She made a citizen's arrest, and Officer Matous assured her that Brown would be going to jail for violating the TRO.
At the time of Brown's arrest, the Oakland Police Department was operating under a general order and implementing memorandum which mandated that a person who violated a domestic violence restraining order in the presence of an officer could not be released on a citation but had to be held and presented to a magistrate. The general order was enacted under authority delegated to the city manager by the city council in compliance with the California Penal Code which mandates that all California law enforcement agencies make clear that, in enforcement of restraining orders against domestic violence, officers are mandated to retain violators in custody unless and until released by a judge and which also requires law enforcement agencies to submit their plan to comply, in writing, by a designated date. General Order E-4(I)(2)(c) was an enactment in compliance with Penal Code sections 853.6, subdivisions (a) and (i)(7).[2] â€
