Thursday, August 12, 2004
Ruling Barring Suit in Jewish Camp Shooting Left Standing
By KENNETH OFGANG, Staff Writer/Appellate Courts
A ruling by this district’s Court of Appeal that a Jewish organization could not have reasonably foreseen that a white supremacist would shoot a child on its premises, and cannot be held liable for the child’s injuries, was left standing yesterday by the California Supreme Court.
The justices, at their weekly conference in San Francisco, unanimously dismissed their previous order granting review of Div. One’s ruling last October in Kadish v. Jewish Community Centers of Los Angeles.
The justices had deferred briefing in Kadish pending the outcome of Wiener v. Southcoast Childcare Centers, Inc. Wiener involved a wrongful death action by the parents of two children killed by a deranged motorist who deliberately drove his Cadillac through a chain-link fence and plowed into the youngsters on the playground of their day care center.
The high court ruled May 6 that neither the day care center nor its landlord could be held liable for failing to prevent a third party criminal attack that the justices said was unforeseeable.
In Kadish, the Court of Appeal similarly dismissed a suit against the Jewish Community Centers of Greater Los Angeles, resulting from the 1999 attack by Buford Furrow on the North Valley Jewish Community Center in Granada Hills. Five-year-old Benjamin Kadish, whose parents brought the suit, was attending summer camp at the center.
The high court’s action bringing an end to the suit came the day after the fifth anniversary of the shootings.
Furrow, who expressed a hatred of Jews and non-whites and associated with racist groups, pled guilty to 16 federal charges, including the killing of Joseph Ileto, a Filipino American who worked for the U.S. Postal Service, and the wounding of Benjamin Kadish and four others at the Jewish center.
He admitted that the shooting of Ileto and the JCC shootings that preceded it were racially motivated. The North Valley JCC was targeted, he said, because it appeared to have taken fewer security measures than its counterparts in other parts of town.
Furrow was sentenced to life imprisonment with no possibility of parole.
Los Angeles Superior Court Judge William A. MacLaughlin dismissed the Kadishes’ suit, holding that vague threats of violence, communicated in anonymous telephone calls, did not place the JCCGLA on notice of the need to take heightened security measures at its facilities.
The Court of Appeal, in an opinion by Justice Robert Mallano, agreed. Mallano, writing for the Court of Appeal, said there was no duty on the part of the JCC to take greater security measures.
There had been no prior incidents of violence against children at the North Valley center, he noted, adding that the vague threats at the heart of the plaintiffs’ case were not specific enough to place the defendant on notice of any particular risk to the children at the camp.
The complaint, he explained, alleged that in the weeks preceding the shootings, the North Valley JCC received anonymous calls threatening violence against its members. There was also an allegation that other Jewish organizations had warned the staff of the North Valley facility years earlier about the need to take security measures based on general threats against the Jewish community.
The alleged threats to injure JCC members, however, “did not convey the kind or degree of the crime actually committed—a gunman’s attempted murder of children attending Camp Valley Chai,” the justice wrote.
Mallano also concluded that the plaintiffs did not sufficiently explain what security measures would have prevented the shootings, and that the community center could not be held morally blameworthy for “the act of a deranged gunman” in a nation where thousands of hate crimes occur each year.
“An organization composed of individuals who belong to a ‘protected’ group under hate crime statutes or a business that caters to such a group should not be unfairly burdened to protect those individuals from the criminal acts of third persons,” the justice wrote.
In other conference action, the justices:
•Agreed to decide whether a Sacramento Superior Court judge abused his discretion in ordering several groups that fought a Ward Connerly lawsuit attacking state affirmative action programs to pay a portion of Connerly’s attorney fees.
The Third District Court of Appeal ruled on May 4 in Connerly v. State Personnel Board , C043329, that fees were properly awarded under the state’s “private attorney general” statute, Code of Civil Procedure Sec. 1021.5.
The California Business Council for Equal Opportunity, California Teachers Association, California Hispanic Chamber of Commerce, California Coalition of Hispanic Organizations, Hispanic Contractors Association, and Society of Hispanic Engineers, Greater Los Angeles Chapter sought review of the order.
Their attorney said that if the decision stood, they would have to divide up responsibility for about $82,000—one-sixth of the total awarded to Connerly’s lawyers from the Pacific Legal Foundation. The rest of the award was assessed against the state, which did not appeal.
The underlying litigation resulted in a ruling that statutes imposing race- and gender-related outreach requirements on the California Community Colleges, State Personnel Board, the State Lottery, the office of the State Treasurer, and the Department of General Services were wholly or partially invalid under Proposition 209.
The groups argue that a private party is not subject to a Sec. 1021.5 award unless its position is frivolous. Chief Justice Ronald M. George and Justices Joyce L. Kennard, Kathryn M. Werdegar, and Carlos Moreno voted to hear their appeal.
•Agreed to decide whether “entrapment by estoppel” is a defense in California. This district’s Div. Four rejected a contention by former Bell Gardens Councilwoman Maria Chacon that she could not be convicted of violating a conflict-of-interest law if she acted on the advice of the city attorney.
Prosecutors sought that ruling after Los Angeles Superior Court Judge Michael M. Johnson said that he would, if the evidence warranted it, instruct jurors Chacon could not be convicted if she acted in reliance on advice from then-City Attorney Arnoldo Beltran.
Chacon is charged with conspiring with other council members to repeal an ordinance barring council members from accepting the post of city manager until they had been off the council for a year. Chacon got the city manager’s job in December 2000 but later resigned.
The Court of Appeal held that since the city attorney plays no role in enforcing the state conflict-of-interest laws, any advice he gives regarding them cannot bind prosecutors.
The case is People v. Chacon, B164649.
•Depublished a ruling handed down by the Fourth District’s Div. One earlier this year. The panel in Ralphs Grocery Company v. Massie held that a court ruling on a petition to compel arbitration must decide the validity of the contractual arbitration clause before determining whether federal law requires that the dispute be subjected to arbitration.
•Granted a request by a manufacturer of ready mix concrete to depublish a May 4 opinion in a construction defects case. The Fourth District’s Div. Three held that the manufacturer may be held liable when the only damage suffered by the homeowners as of the time of the complaint was submicroscopic damage to the concrete itself.
The trial court, whose ruling was affirmed, found that the concrete comprising the slabs and foundations of the homes would disintegrate in time and awarded damages to cover the cost of applying a protective gel.
The case is Mesa Vista South Townhome Association v. California Portland Cement Company, G031082.
Copyright 2004, Metropolitan News Company