The opinion
Filed 5/22/25 Davallou v. County of Santa Clara CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
FIROOZEH DAVALLOU et al., H051963
(Santa Clara County
Plaintiffs and Appellants, Super. Ct. No. 22CV399418)
v.
COUNTY OF SANTA CLARA,
Defendant and Respondent.
TERRA FRITCH et al., H051964
(Santa Clara County
Plaintiffs and Appellants, Super. Ct. No. 22CV399095)
v.
COUNTY OF SANTA CLARA,
Defendant and Respondent.
G.M. et al., H051972
(Santa Clara County
Plaintiffs and Appellants, Super. Ct. No. 22CV399096)
v.
COUNTY OF SANTA CLARA,
Defendant and Respondent.
VICKI LANE et al., H052003
(Santa Clara County
Plaintiffs and Appellants, Super. Ct. No. 22CV398848)
v.
COUNTY OF SANTA CLARA,
Defendant and Respondent.
On May 26, 2021, Samuel Cassidy, an employee of the Santa Clara Valley
Transportation Authority (VTA), walked into the VTA’s Guadalupe Division facility
during the change between the overnight and morning shifts, the facility’s busiest time.
He carried three semiautomatic handguns and 32 high-capacity magazines, and he
proceeded to fire nearly 40 rounds, killing nine VTA employees, including Abdolvahab
Alaghmandan, Jose Hernandez III, Timothy Romo, Alex Fritch, Paul Megia, Michael
Rudometkin, Taptejdeep Singh, and Lars Kepler Lane.
The estates of these slain employees and their surviving family members have
sued, claiming, among other things, wrongful death and breach of contract. These
plaintiffs indisputably have suffered grievous injury. However, the person most directly
responsible for that injury—the shooter Samuel Cassidy—killed himself during the
May 26, 2021 incident, and his estate is presumably incapable of compensating plaintiffs
for the injury and damage he caused. Accordingly, plaintiffs have sued other parties: the
VTA, the private companies responsible for providing security at the Guadalupe Division
facility, the County of Santa Clara (County), and the Santa Clara County Sheriff’s Office
(Sheriff’s Office).
Although plaintiffs’ claims against the private security companies and, in one
case, against the VTA appear to be proceeding, the trial court dismissed the wrongful
death and contract claims against the County and the Sheriff’s Office. The court did so
without considering the merits of plaintiffs’ allegations that the County and the Sheriff’s
2
Office acted deficiently in failing to prevent Cassidy from entering the Guadalupe
Division facility armed with semiautomatic weapons. Instead, the court held that
government immunity bars the wrongful death claims against the County and the
Sheriff’s Office. In addition, the court denied plaintiffs’ contract claims because those
claims are based on a contract between the County and the VTA and the court concluded
that plaintiffs are not third party beneficiaries entitled to enforce the contract.
Plaintiffs now appeal the dismissal of their wrongful death and contract claims
against the County and the Sheriff’s Office. We acknowledge that this is a harsh result,
which, despite plaintiffs’ tragic loss, denied recovery without considering the merits of
their allegations of deficient conduct by the County and the Sheriff’s Office.
Nonetheless, for the reasons explained below, we conclude that the trial court correctly
applied the law in dismissing plaintiffs’ claims and therefore affirm the judgments in
favor of the County and the Sheriff’s Office.
I. BACKGROUND
Because we are reviewing orders sustaining demurrers, we accept all properly
pleaded allegations and draw the summary of the facts below from the allegations in
plaintiffs’ pleadings and attached documents. (See, e.g., Gu v. BMW of North America,
LLC (2005) 132 Cal.App.4th 195, 200.)
A. The Supplemental Law Enforcement Contract
In addition to contracting with Allied Barton Security Services “for security and
protective services,” VTA entered into a contract with the County for “supplemental law
enforcement support services” provided through the Sheriff’s Office (the Supplemental
Law Enforcement Contract). The Supplemental Law Enforcement Contract noted that,
“[i]n order to provide for overall public safety and security for VTA’s patrons,
employees, equipment and facilities, VTA has established a Transit Patrol Division, to be
staffed by the Office of the Sheriff.” The contract also stated that the Sheriff’s Office
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would provide “public safety, law enforcement, security support, and communications,
and dispatch services and equipment.”
The Supplemental Law Enforcement Contract required the Sheriff’s Office to
provide “sworn law enforcement personnel” for a number of tasks, such as to
(1) “respond to calls for service,” (2) “enforce all applicable state and local laws,
including VTA ordinances,” (3) “conduct explosive ordnance detection sweeps,”
(4) “issue VTA parking citations,” (5) “conduct investigations into criminal and security-
related incidents,” and (6) “act as law enforcement liaison(s) between VTA and other law
enforcement agencies.” The Supplemental Law Enforcement Contract also required the
Sheriff’s Office to “[c]ollect and provide crime reports and statistics,” “[o]btain access to
all online law enforcement and regulatory databases,” “[c]oordinate all required law
enforcement serves,” provide “non-transit specific law enforcement training, and other
appropriate equipment and services,” and “[p]rovide special enforcement units.” Finally,
the contract required the Sheriff’s Office to provide sworn law enforcement personnel “to
support VTA’s Protective Services and private security teams” by, among other things,
reviewing sensitive security information, “providing relevant training to private security
teams,” and “providing investigative support” for reviewing CCTV footage.
Under the Supplemental Law Enforcement Contract, the VTA compensated the
County for “actual [s]ervices rendered” according to a schedule of labor, overhead, and
other direct costs, up to a maximum of slightly over $25 million for the base term of the
contract.
B. The VTA Shootings
The VTA shootings, the deadliest in Bay Area history, occurred around 6:30 a.m.
on May 26, 2021. Samuel Cassidy, a VTA employee with a history of insubordination
and verbal altercations with other employees who had previously made death threats
against co-workers, entered the Guadalupe Division facility armed with three
semiautomatic handguns and 32 high-capacity magazines. Cassidy began by shooting
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during a power crew meeting in one building, and he then walked across the facility to
another building where he continued firing.
At 6:33 a.m., the San Jose Fire Department received a call requesting that the
department respond to the Guadalupe Division facility, albeit with no mention of an
active shooter. About one minute later, Santa Clara County authorities received 911 calls
reporting shots fired at the facility. Sheriff’s Office deputies, who were in offices nearby,
and police officers arrived at 6:35 a.m. These officers closed in on Cassidy, who, at
approximately 6:43 a.m., killed himself.
C. The Proceedings Below
1. The Initial Complaints
This opinion addresses four cases. In the Davallou case, which was filed on
May 25, 2022, the estates of three victims of the VTA shootings—Alaghmandan,
Hernandez, and Romo—as well as Firoozeh Davallou, Alaghmandan’s widow, and eight
other members of the decedents’ families sued the VTA, the County, the Sheriff’s Office,
and Allied Barton Security Services as well as two related companies (collectively,
Allied). The Davallou plaintiffs claimed wrongful death on the ground that negligent
security allowed Cassidy to enter the Guadalupe Division facility armed with
semiautomatic weapons. That same day, in the Fritch case, the estates of three other
victims—Fritch, Megia, and Singh—and family members of eight of those victims sued
the same defendants, claiming wrongful death on similar grounds. A third suit, the
Megia case, was also brought on May 25, 2022 by the guardian ad litem of Megia’s
minor children, asserting a similar wrongful death claim against the same defendants as
well as assault, battery, and false imprisonment against the VTA.
The fourth suit, the Lane case, was filed on May 26, 2022, the day after the
complaints in the other cases, by the children and widow of Lars Kepler Lane against the
VTA, Allied, the County, and the Sheriff’s Office. Like Megia’s children, the Lane
5
plaintiffs claimed wrongful death against all the defendants as well as assault, battery,
and false imprisonment against the VTA.
2. The Initial Demurrers
The County, on behalf of itself and the Sheriff’s Office, demurred to the Davallou
and Fritch complaints, and in March 2023 the trial court sustained those demurrers with
leave to amend. In so doing, the court reasoned that Government Code section 8151
gives public entities immunity from direct liability unless a statute authorizes such
liability. The trial court recognized that section 814 subjects public entities to liability
based on contract, but noted that plaintiffs had not alleged a contract claim against the
County. The trial court also recognized that public entities may be held vicariously liable
for the tortious conduct of their employees. However, the court found that plaintiffs had
not adequately alleged that Sheriff’s Office employees voluntarily undertook any special
duty to protect decedents because “there are no allegations that individual officers did
anything to induce the decedents to rely on their protection in the time leading up to the
shooting.” Finally, the trial court ruled that the County was immune from any claim for
failing to provide protection under section 845, which bars claims against both public
entities and public employees for failing to provide police protection.
The trial court also considered the County’s demurrer to the second amended
complaint in the Lane case. (The Lane plaintiffs had filed an amended complaint before
any demurrer was filed, and they filed a second amended complaint while a demurrer to
their first amended complaint was pending.) Copying verbatim portions of its order in
the Davallou and Fritch cases concerning wrongful death claims, in the Lane case the
trial court sustained the demurrer with leave to amend.
1
Subsequent undesignated statutory references are to the Government Code.
6
3. The Amended Complaints and the Second Set of Demurrers
In April 2023, the Davallou and Fritch plaintiffs filed amended complaints. These
amended complaints added allegations that, by virtue of the Supplemental Law
Enforcement Contract, the Sheriff’s Office had a special relationship with the decedents
as well as a claim that the contract was breached by the Sheriff’s Office. Several days
later the minor children of Megia filed a similar amended complaint. The Lane plaintiffs
in turn filed a third amended complaint, also adding a claim for breach of the
Supplemental Law Enforcement Contract.
The County demurred to all these pleadings, and in August 2023, in a combined
order the trial court sustained the demurrers without leave to amend as to the wrongful
death claims but granted leave to amend the contract claims.
In sustaining the demurrers to the wrongful death claims, the trial court once again
ruled that plaintiffs had failed to state valid claims based on vicarious liability because
the amended complaints still did not allege that any specific County employee took or
failed to take any action that harmed decedents. The court also assumed, arguendo, that
the amended complaints adequately alleged that the Supplemental Law Enforcement
Contract created a special relationship between the County and decedents, but ruled that
section 815 barred any claim against the County based on direct liability. In so doing, the
trial court held section 814 inapplicable because that section authorizes “ ‘liability based
on contract’ ” and plaintiffs’ wrongful death claims were based in tort, not contract.
The trial court also denied plaintiffs’ contract claims on the ground that plaintiffs
failed to adequately allege they were third party beneficiaries of the Supplemental Law
Enforcement Contract. The trial court observed that, under the Supreme Court’s recent
decision in Goonewardene v. ADP, LLC (2019) 6 Cal.5th 817 (Goonewardene), third
parties seeking to enforce a contract must show three things: (1) They are likely to
benefit from the contract, (2) providing them this benefit was a motivating purpose of the
contracting parties, and (3) permitting them to sue for breach of the contract is
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“ ‘consistent with the objectives of the contract and the reasonable expectations of the
contracting parties.’ ” (Id. at p. 830.) The trial court found the third requirement
unsatisfied because plaintiffs failed to sufficiently plead how allowing them to sue for
breach of the Supplemental Law Enforcement Contract comports with the purpose of the
contract or the parties’ expectations. Additionally, the trial court found that plaintiffs had
not adequately alleged how the County breached any portion of the contract.
4. The Final Amended Complaints and Demurrers
In August 2023, plaintiffs in the Davallou, Fritch, and Megia cases amended their
complaints a second time. The next month, the Lane plaintiffs amended their complaint
for a fourth time. These amended complaints expanded the allegations concerning the
Supplemental Law Enforcement Contract. In the Davallou, Fritch, and Megia cases, the
plaintiffs also replaced the wrongful death claims against the Sheriff’s Office with claims
against the County.
In January 2024, in another combined order, the trial court sustained the County’s
demurrers against the second amended complaints in Davallou¸ Fritch, and Megia and
the fourth amended complaint in Lane, this time without leave to amend.
Treating plaintiffs’ wrongful death claims against the County as requests for
reconsideration of its earlier dismissal of the wrongful death claims against the Sheriff’s
Office, the trial court deemed the requests improper because plaintiffs had not filed
formal motions for reconsideration. The trial court also rejected plaintiffs’ amended
contract claims on two grounds. First, it ruled that only nine of the plaintiffs were
successors-in-interest to the decedents and only these plaintiffs had standing to claim
breach of the contractual duties owed decedents. Second, the court ruled that plaintiffs
still had not satisfied Goonewardene’s third requirement. This time the trial court
invoked Martinez v. Socoma Companies, Inc. (1974) 11 Cal.3d 394 (Socoma
Companies), which held that, with government contracts, third party beneficiary claims
are not permitted unless the contract manifested an intent to permit such claims. The trial
8
court found that the Supplemental Law Enforcement Contract contained no provision
manifesting such an intent. Alternatively, the trial court found that permitting third party
claims was not consistent with the objectives of the Supplemental Law Enforcement
Contract and the reasonable expectations of the parties to it because, among other things,
there was no allegation suggesting that the County had reason to expect that it would be
subject to third party claims.
5. The Judgments
On January 29, 2024, the trial court entered judgment in all four cases in favor of
the County, which it defined to include the Sheriff’s Office, and notice of entry of
judgment was served on February 15, 2024.
Plaintiffs subsequently filed timely notices of appeal.
II. DISCUSSION
Plaintiffs appeal the judgments resulting from the orders sustaining the County’s
demurrers and dismissing their wrongful death and contract claims against the County
and the Sheriff’s Office. We review these orders de novo (McCall v. PacifiCare of Cal.,
Inc. (2001) 25 Cal.4th 412, 415), and in so doing “we treat the demurrer[s] as admitting
all material facts properly pleaded” (C.A. v. William S. Hart Union High School Dist.
(2012) 53 Cal.4th 861, 866), but do not assume the truth of “ ‘ “contentions, deductions
or conclusions of fact or law” ’ ” (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6). As
explained below, we conclude that the trial court correctly sustained the demurrers to
plaintiffs’ wrongful death and contract claims.
A. Wrongful Death Claims
Plaintiffs argue that the trial court erred in holding that governmental immunity
bars their wrongful death claims. We disagree for three reasons. First, the trial court
correctly held that the County was immune from direct liability under section 815.
Second, plaintiffs did not assert a valid claim for vicarious liability because they failed to
allege any tortious conduct by any individual. Third, section 814 does not save plaintiffs’
9
wrongful death claims because that section applies to claims seeking to impose liability
based on contract, not tort.
1. Governmental Immunity
Before analyzing plaintiffs’ wrongful death claim, we briefly review the
Government Claims Act (§ 810 et seq.), the statute governing the immunity of public
entities and public officers.2 Although such immunity often produces harsh results in
individual cases, the Legislature nonetheless affords significant immunity to public
entities and public officers on the theory that fear of liability may deter government
entities from performing their functions, and “ ‘[f]ar more persons would suffer if
government did not perform these functions at all than would be benefited by permitting
recovery in those cases where the government is shown to have performed
inadequately.’ ” (Creason v. Dept. of Health Services (1998) 18 Cal.4th 623, 637,
quoting Recommendation Relating to Sovereign Immunity, No. 1—Tort Liability of
Public Entities and Public Employees (Jan. 1963) 4 Cal. Law. Revision Com. Rep.
(1963), p. 831.) Accordingly, the Legislature enacted the Government Claims Act “ ‘to
confine potential governmental liability to rigidly delineated circumstances.’ ”
(DiCampli-Mintz v. City of Santa Clara (2012) 55 Cal.4th 983, 991.)
“Under the Government Claims Act, all government tort liability must be based on
statute,” and “in the absence of some constitutional requirement, public entities may be
liable only if a statute declares them to be liable.” (County of San Bernardino v. Superior
Court (2022) 77 Cal.App.5th 1100, 1107-1108; see also County of Santa Clara v.
Superior Court (2023) 14 Cal.5th 1034, 1045 [noting that the Government Claims Act
“ ‘abolishes all common law or judicially declared forms of liability for public entities,
2
Although earlier Supreme Court decisions referred to this statute as the
California Tort Claims Act (see, e.g., Zelig v. County of Los Angeles (2002) 27 Cal.4th
1112, 1127 (Zelig), more recently the Court has referred to the statute as the Government
Claims Act. (See, e.g., City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 741-
742, fn. 7.)
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except for such liability as may be required by the state or federal constitution’ ”].) This
rule of general or presumptive immunity is contained in section 815: “Except as
otherwise provided by statute . . . [a] public entity is not liable for an injury, whether such
injury arises out of an act or omission of the public entity or a public employee or any
other person.” (§ 815, subd. (a).)
The general immunity afforded by section 815 is significantly qualified by
section 814. Under that section, “[n]othing in this part”—which includes all of the
Government Claims Act’s immunity provisions (§§ 814-895.8)—“affects liability based
on contract or the right to obtain relief other than money or damages against a public
entity or public employee.” (§ 814.) Thus, public entities are subject to claims “for
“liability based on contract” as well as claims for non-monetary relief. As a
consequence, the general immunity created by section 815 is largely limited to tort claims
seeking damages.
In addition, the general immunity against tort claims is limited to claims based on
direct liability. Under section 815.2, “[a] public entity is liable for injury proximately
caused by an act or omission of an employee of the public entity within the scope of his
employment if the act or omission would, apart from this section, have given rise to a
cause of action against that employee or his personal representative.” (§ 815.2,
subd. (a).) In addition, under section 820, a public employee is generally “liable for
injury caused by his act omission to the same extent as a private person.” (§ 820,
subd. (a).) Thus, under the Government Claims Act, while public entities are generally
immune from direct tort liability, they are subject to tort liability “through their potential
vicarious liability for the negligence of their employees.” (Zelig, supra, 27 Cal.4th at
p. 1132.)
This vicarious liability is in turn limited by the immunity granted public
employees. Where a public employee is immune from liability, public entities are
immune from vicarious liability for that officer’s actions. (§ 815.2, subd. (b) [“Except as
11
otherwise provided by statute, a public entity is not liable for an injury resulting from an
act or omission of an employee of the public entity where the employee is immune from
liability.”].) In addition, while public employees generally are “liable for injury caused
by [their] act or omission to the same extent as a private person” (§ 820, subd. (a)), they
enjoy a number of specific immunities (§§ 820.2-823). For example, public employees
are generally immune from liability based on the exercise of discretion entrusted to them.
(§ 820.2 [“Except as otherwise provided by statute, a public employee is not liable for an
injury resulting from his act or omission where the act or omission was the result of the
exercise of discretion vested in him, whether or not such discretion be abused.”].)
Finally, the Government Claims Act contains some immunities covering both
public entities and public employees. Most pertinently here, section 845 provides
immunity against claims concerning the establishment of police departments and
provision of police protection services: “Neither a public entity nor a public employee is
liable for failure to establish a police department or otherwise to provide police protection
service or, if police protection service is provided, for failure to provide sufficient police
protection service.” (§ 845.)
2. Direct Tort Liability
The trial court ruled that the County was immune from direct tort liability in this
case because no statute authorizes plaintiffs’ wrongful death claims. We agree. Because
section 815 grants public entities immunity against claims for injury “except as otherwise
provided” in the Government Claims Act, “direct tort liability of public entities must be
based on a specific statute declaring them to be liable, or at least creating some specific
duty of care, and not on the general tort provisions of Civil Code section 1714.”
(Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1183, italics
added; see also Zelig, supra, 27 Cal.4th at p. 1131 [“a public entity may be liable for
injury directly as a result of its own conduct or omission . . . only ‘as . . . provided by
statute.’ ”].) Plaintiffs have not pointed to any statute imposing direct tort liability on
12
public entities for either wrongful death or common law negligence. Nor are we aware of
any. Accordingly, under section 815 the County and the Sheriff’s Office are immune
from direct tort liability for plaintiffs’ wrongful death claims, which in turn are based on
negligence.
At one point in their briefs, plaintiffs appear to suggest that, far from being
generally immune from direct tort liability, public entities are generally subject to such
liability. Specifically, relying on Arista v. County of Riverside (2018) 29 Cal.App.5th
1051 (Arista), plaintiffs state that “ ‘ “a public entity is liable for [an] injury caused by his
act or omission as a private person,” except as specifically provided by statute.’ ” Arista
did not say that. Instead, in the passage invoked and partially misquoted by plaintiffs,
Arista described section 820’s general rule concerning public employees: “ ‘ “[A] public
employee is liable for [an] injury caused by his or her act or omission to the same extent
as a private person,” except as otherwise provided by statute.’ ” (Arista, supra, at
p. 1060, italics added; see also § 820, subd. (a) [“Except as otherwise provided by
statute . . . a public employee is liable for injury caused by his act or omission to the same
extent as a private person.”].)
Plaintiffs also assert that Arista and two other cases, Carpenter v. City of Los
Angeles (1991) 230 Cal.App.3d 923 (Carpenter) and Morgan v. City of Yuba (1964) 230
Cal.App.2d 938 (Morgan), rejected an immunity defense under section 815, because the
sheriff in each of those cases promised to protect a particular individual. In fact, none of
these cases mentioned section 815. Moreover, contrary to plaintiffs’ assertion, Arista did
not find the county in that case subject to direct liability because the sheriff’s department
in that case “voluntarily assume[d] a protective duty toward a certain member of the
public.” (Arista, supra, 29 Cal.App.5th at p. 1061.) Instead, after noting that the
Government Claims Act imposes vicarious liability upon public entities (ibid.), Arista
held the County of Riverside subject to such liability because “Sheriff’s Department
personnel (the deputies), through their actions, undertook the responsibility of rescuing
13
the victim.” (Ibid., italics added; see also id. at p. 1060 [noting allegation that department
personnel were working within the scope of their employment].) Morgan similarly held
the County of Riverside subject to vicarious liability under section 815.2. (Morgan,
supra, at pp. 942-943.) And while Carpenter did not expressly mention vicarious
liability, it held the City of Los Angeles subject to liability based on assurances given by
a police detective. (Carpenter, supra, at pp. 931-932; see also id. at p. 927 [describing
alleged assurance].) Thus, none of the cases cited by plaintiffs suggest that the County is
subject to direct tort liability here.
We therefore conclude that the County and the Sheriff’s Office are immune from
direct liability for plaintiffs’ wrongful death claims under section 815.
3. Vicarious Liability
Plaintiffs also argue that the County is vicariously liable in connection with their
wrongful death claims. As the trial court recognized, this argument fails because
plaintiffs did not plead a prerequisite to vicarious liability: an act or omission by an
employee.
As noted above, section 815.2 authorizes vicarious liability for public entities. It
states that a public entity may be held liable for acts or omissions of “an employee of the
public entity within the scope of his employment”: “A public entity is liable for injury
proximately caused by an act or omission of an employee of the public entity within the
scope of his employment if the act or omission would, apart from this section, have given
rise to a cause of action against the employee or his personal representative.”3 (§ 815.2,
subd. (a).)
Section 815.2 does not apply here because plaintiffs have not alleged any action or
inaction by the sheriff, the sheriff’s deputies, or any other individuals that led to the tragic
3
In what presumably was a clerical error, in their opening brief plaintiffs omit
section 815.2’s first reference to employee in quoting the section. Plaintiffs make a
similar, also presumably clerical, error in their reply brief in quoting section 820.
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shootings on May 26, 2021. Vicarious liability for an employee’s actions “attaches if and
when it is adjudged that the employee was negligent as well.” (Munoz v. City of Union
City (2004) 120 Cal.App.4th 1077, 1113 (Munoz), disapproved on other grounds in
Hayes v. County of San Diego (2013) 57 Cal.4th 622, 639, fn. 1.) Consequently “in order
for vicarious public entity liability to attach, a public employee, either named as a
defendant or at least ‘specifically identified’ by the plaintiff, must have engaged in an act
or omission giving rise to that employee’s tort liability.” (Koussaya v. City of Stockton
(2020) 54 Cal.App.5th 909, 945; see also Munoz, supra, at p. 1113 [“[U]nless the
employee is identified, the trier of fact will not be able to determine if the elements
needed to assert vicarious liability have been proved.”].) Although the trial court pointed
out the absence of any allegations concerning the actions or inactions of individual
officers in initially sustaining the County’s demurrers, plaintiffs’ subsequent pleadings
failed to allege any action or inaction by individual officers or employees.
In their wrongful death claim against the Sheriff’s Office, the Lane plaintiffs did
allege that the Sheriff’s Office is liable “for the negligent acts of their employees in the
course and scope of their employment.” However, they failed to allege what those
negligent acts were. Additionally, in their third (but not their fourth) amended complaint,
the Lane plaintiffs alleged that the Supplemental Law Enforcement Contract was
breached by, among other things, failing to use metal detectors and other security
measures, but they attributed these failures to “Defendants,” not to any individual
employees or specific actions. Plaintiffs contend that some individual must have been
involved and responsible for the alleged failures. While that is true, claims under the
Government Claims Act “ ‘must be pleaded with particularity.’ ” (Lopez v. Southern Cal.
Rapid Transit Dist. (1985) 40 Cal.3d 780, 795.) Such particularity is needed in part to
ensure that public entities and officers can determine whether alleged actions are
protected by specific grants of immunity—a consideration that is especially relevant here
because the Supreme Court has held that the decision whether to install metal detectors in
15
a building concerns police protection and is protected by section 845’s immunity for
decisions whether to provide police protection services. (Zelig, supra, 27 Cal.4th at
p. 1130.).
The remaining plaintiffs argue the County may be held vicariously liable under
section 815.2 based on the actions of the Sheriff’s Office. This argument turns
section 815.2 on its head. Under that section, “[a] public entity” may be held vicariously
liable for injuries caused by the actions or inactions “of an employee of the public entity.”
(§ 815.2, subd. (a), italics added.) However, an employee is normally an individual, and
the Sheriff’s Office is a “public entity.” (Streit v. County of Los Angeles (9th Cir. 2001)
236 F.3d 552, 565-566 [construing section 811.2]). Moreover, at oral argument, far from
explaining how a public entity such as the Sheriff’s Office falls within any plausible
definition of the term employee, plaintiffs asserted that the Sheriff’s Office is an
employee because it is an agent of the County. That is wrong. Not all agents are
employees. (See, e.g., Rest.3d Agency, § 1.01, cmt. g [“The common law of agency
encompasses employment as well as nonemployment relations.”].) And, far from
deeming all agents employees under the Government Claims Act, the Legislature
expressly decided not to include agents within the Act’s definition of employee in
section 810.2. (Sen Com. on Judiciary, Analysis of Sen. Bill No. 42 (1962-1963 Reg.
Sess.) 2 Sen. J. (1962-1963 Reg. Sess.) p. 1885 [“ ‘Employee’ was originally defined (in
the bill as introduced) to include ‘an officer, agent, or employee,’ ” but “[b]y
amendment, the word ‘servant’ was substituted for ‘agent’ because . . . public entities
feared that to impose liability upon public entities for the torts of ‘agents’ would expand
vicarious liability to include a large, indefinite class of persons . . . .’ ”].) We therefore
conclude that that plaintiffs have failed to allege any vicarious tort liability. As a
consequence, we need not consider whether the County, the Sheriff’s Office, or any
employees of either entity had a special relationship with the decedents or whether
section 845’s immunity for police protection services bars plaintiffs’ claims.
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4. Section 814
Plaintiffs also argue that section 814 authorizes their wrongful death claims
because those claims seek to enforce a duty that exists only because of the Supplemental
Law Enforcement Contract and therefore “arise[] from contract.” (Italics omitted.) We
disagree. Section 814 states that “[n]othing in this part affects liability based on contract
or the right to obtain relief other than money or damages against a public entity or public
employee.” (§ 814, italics added.) Plaintiffs’ wrongful death claims do not seek to
impose “liability based on contract.” Indeed, one of the elements of a wrongful death
claim is the commission of a tort. (See, e.g., Lattimore v. Dickey (2015) 239 Cal.App.4th
959, 968 [“ ‘ “The elements of the cause of action for wrongful death are the tort
(negligence or other wrongful act), the resulting death, and the damages . . . .” ’ ”].)
Accordingly, plaintiffs’ wrongful death claims are based on tort, not contract, law.
Plaintiffs argue that section 814 applies not only to suits for breach of contract, but
also “to any suit that is ‘based on’ a contract.” However, section 814 does not refer to
“suit[s] based on a contract.” It refers to “liability based on contract”—that is,
contractual liability. (§ 814, italics added.) Thus, section 814 does not permit tort claims
against public entities merely because those claims have some factual connection to a
contract. It permits only claims that seek to impose liability based on contract law.
Plaintiffs fail to cite any case holding that section 814 applies to a tort claim
merely because the claim has some factual connection to a contract. They do cite the
Supreme Court’s decisions in Souza v. McCue Construction Co. v. Superior Court (1962)
57 Cal.2d 508 (Souza) and E. H. Morrill Co. v State (1967) 65 Cal.2d 787 (Morrill).
However, while there were allegations of misrepresentation in those cases, there were no
tort claims. To the contrary, the plaintiff in Souza asserted a contract claim based on an
alleged misrepresentation concerning soil conditions that led him to make an unduly low
bid for a municipal construction contract. (Souza, supra, at p. 509.) The Supreme Court
held that governmental immunity against tort claims did not bar this claim because the
17
“furnishing of misleading plans and specifications by the public body constitutes a breach
of an implied warranty” (id. at pp. 510-511), and “[a] contractor of public works . . . may
recover in a contract action for extra work or expenses necessitated by the conditions
being other than as represented” (id. at p. 510, italics added). In other words, far from
permitting a tort claim because of its connection to a contract, Souza permitted a contract
claim despite its connection to tortious conduct. Similarly, Morrill upheld a contract
claim based on alleged misrepresentations concerning subsurface conditions, not a tort
claim connected to a contract. (Morrill, supra, at pp. 793-794.)
It is true that Souza applied the statute of limitations for fraud to the breach of
implied warranty claim in that case. (See Souza, supra, 57 Cal.2d at p. 511.) But
plaintiffs fail to explain why we should follow Souza’s interpretation of the statute of
limitations in applying section 814 rather than Souza’s application of government
immunity principles. (Id. at pp. 510-511.)
We therefore conclude that section 814 does not authorize plaintiffs’ wrongful
death claims and that the general immunity granted public entities under section 815 bars
those claims against the County and the Sheriff’s Office.
B. Breach of Contract
In addition to suing for wrongful death, plaintiffs sued the County for breach of
the Supplemental Law Enforcement Contract. The trial court denied these contract
claims because plaintiffs failed to show that their decedents were third party beneficiaries
entitled to enforce the contract.4 Relying largely on cases from other jurisdictions,
plaintiffs challenge this ruling. Conducting an independent review (see, e.g., The H.N. &
4
The trial court also ruled that most of the plaintiffs lack standing to assert
contract claims because a decedent’s contract claims pass to the decedent’s successor in
interest (see Code Civ. Proc., § 377.30), and only eight of the plaintiffs were successors
interest. As plaintiffs’ opening brief did not challenge this ruling, we deem any challenge
to that ruling forfeited. (United Grand Corp. v. Malibu Hillbillies, LLC (2019) 36
Cal.App.5th 142, 158 [“ ‘We will not ordinarily consider issues raised for the first time in
a reply brief.’ ”].)
18
Frances C. Berger Foundation v. Perez (2013) 218 Cal.App.4th 37, 45), we conclude
that the ruling was correct.
As the trial court recognized in Goonewardene, supra, 6 Cal.5th 817, the Supreme
Court recently reformulated the test for identifying third party beneficiaries. Specifically,
it instructed courts to examine the contract in question “to determine not only (1) whether
the third party would in fact benefit from the contract, but also (2) whether a motivating
purpose of the contracting parties was to provide a benefit to the third party, and
(3) whether permitting a third party to bring its own breach of contract action against a
contracting party is consistent with the objectives of the contract and the reasonable
expectations of the contracting parties.” (Id. at p. 830.) The Supreme Court further
stated that a third party beneficiary claim may proceed only if all three of these elements
are satisfied. (Ibid).
In explaining the third element of this test—whether third party beneficiary claims
are “consistent with the objectives of the contract and the reasonable expectations of the
contracting parties”—the Supreme Court relied on Socoma Companies, supra, 11 Cal.3d
394, which the court described as one of its “two most prominent third party beneficiary
decisions.” (Goonewardene, supra, 6 Cal.5th at p. 831.) Much like this case, Socoma
Companies involved government contracts. (Socoma Companies, supra, 11 Cal.3d at
p. 398.) Relying on the Restatement of Contracts, Socoma Companies held that, where
government contracts are at issue, intent to confer upon a third party a right to enforce the
contracts “cannot be inferred simply from the fact that the third person was intended to
enjoy the benefits.” (Id. at p. 401.) Indeed, Socoma Companies denied the third party
beneficiary claim in that case because the government contracts at issue “manifest[ed] no
intent that the defendants pay damages to compensate plaintiffs or other members of the
public for their nonperformance.” (Socoma Companies, supra, at p. 402.) Subsequent
Court of Appeal decisions involving government contracts similarly have denied third
party beneficiary claims for lack of any “manifest intent” to permit such claims. (Lake
19
Almanor Associates L.P. v. Huffman-Broadway Group, Inc. (2009) 178 Cal.App.4th
1194, 1199-1202 [relying on Socoma Companies and the Restatement (Second) of
Contracts, in determining that the plaintiff was not an intended beneficiary because the
terms of the contract in question “are insufficient to demonstrate an intent that respondent
be liable to appellant in the event of breach”]; Dateline Builders, Inc. v. City of Santa
Rosa (1983) 146 Cal.App.3d 520, 527 [relying on Socoma Companies and the
Restatement of Contracts in rejecting third party beneficiary claim on ground that the
contract in question “manifests no intent that the City pay damages to compensate
Builders or other members of the public for nonperformance”]; New Hampshire Ins. Co.
v. City of Madera (1983) 144 Cal.App.3d 298, 307-308 [relying on Socoma Companies
and the Restatement of Contracts in holding that intent to permit third party beneficiary
claim may not be inferred “from the mere fact that the contract confers a benefit upon
appellant”].)
The Lane plaintiffs contend that the Supreme Court implicitly overruled Socoma
Companies’ holding concerning government contracts because of another aspect of the
decision. In concluding that the government contracts at issue did not manifest an intent
to permit third party beneficiary claims, Socoma Companies reasoned that third party
beneficiary claims were inconsistent with the contracts because the contracts provided an
administrative process for dealing with alleged breaches and contained liquidated
damages provisions limiting potential liability under the contracts. (Socoma Companies,
supra, 11 Cal.3d at pp. 402-403.) As the Lane plaintiffs point out, in Goonewardene the
Supreme Court emphasized this reasoning. (Goonewardene, supra, 6 Cal.5th at p. 832.)
In addition, as the Lane plaintiffs also point out, in Goonewardene the Supreme Court
noted that its prior decisions “have not required a showing that the contracting parties
actually considered the third party enforcement question as a prerequisite to the
applicability of the third party beneficiary doctrine.” (Id. at p. 830.) Based on these
statements, the Lane plaintiffs assert that the test announced in Goonewardene is “a direct
20
synthesis” of its earlier case that implicitly rejects the manifest intent requirement for
government contracts in Socoma Companies and the Restatement.
We are not persuaded. Nothing in Goonewardene suggests that the Supreme
Court was in part rejecting Socoma Companies. To the contrary, Goonewardene
endorsed Socoma Companies as one of the court’s most prominent third party beneficiary
decisions (Goonewardene, supra, 6 Cal.5th at p. 831) and described Socoma Companies’
reasoning without suggesting a reservation about other aspects of the decision (id. at
p. 832). Nor did Goonewardene have any reason to consider the rule that Socoma
Companies adopted for government contracts. Goonewardene considered a contract
between two private parties for payroll services rather than a government contract (id. at
p. 820), and “ ‘it is axiomatic that cases are not authority for propositions not
considered’ ” (Sonic-Calabasas A, Inc. v. Moreno (2013) 57 Cal.4th 1109, 1160).
In addition to arguing that Socoma Companies has been implicitly overruled,
plaintiffs assert that third party beneficiary claims are consistent with the objectives of
the Supplemental Law Enforcement Contract because “the County already faces
vicarious tort liability under the special relationship doctrine” and “[a]llowing Plaintiffs
to sue the County is the only way to ensure that they receive full compensation.” Neither
argument is persuasive.
First, the County does not face vicarious tort liability in this case. As concluded
above, plaintiffs have failed to state valid claims for vicarious tort liability because they
have not alleged any action or inaction by individual officers. In addition, even if
plaintiffs had made such allegations, it is unclear that any claim for vicarious liability
could be asserted in connection with the Supplemental Law Enforcement Contract. As
the Supreme Court has observed, “police officers and other public security officers, like
other persons, generally may not be held liable in damages for failing to take affirmative
steps to come to the aid of, or prevent an injury to, another person.” (Zelig, supra, 27
Cal.4th at p. 1128; see also Golick v. State of California (2022) 82 Cal.App.5th 1127,
21
1149 [“Cases finding a special relationship based on the performance of police duties are
rare and involve situations in which the victim detrimentally relied on some conduct or
representation by the officer.”].)
Second, plaintiffs’ limited ability to recover compensation from the VTA does not
require that third party beneficiary claims be permitted where, as here, a government
contract is involved. Under the Restatement, a third party member of the public is
permitted to seek damages under a government contract, not where the member of the
public’s ability to recover compensation is limited, but where “the promisee is subject to
liability to the member of the public for the damages” and a direct action is consistent
with the contract and relevant legal policies. (Rest.2d Contracts, § 313(2)(b).) Indeed,
where, as here, a government promisor (the County) is immune from tort liability and the
liability of the promisee (VTA) is limited, permitting third party claims under the contract
would increase the promissor’s potential lability and add unexpected costs to the
contract—thereby upsetting the reasonable expectations of the parties in violation of
Goonewardene’s last requirement for third party beneficiary status. (Goonewardene,
supra, 6 Cal.5th at p. 830.)
Plaintiffs cite several cases from other jurisdictions ruling that employees and
tenants may sue as third party beneficiaries of security contracts. These cases are
distinguishable. Although three of these cases involved government contracts to provide
security (see Stickle v. City-Wide Security Services, Inc. (S.D.N.Y. 1993) 839 F.Supp.
207, 210 (Stickle) [contract with Port Authority of New York]; Locke v. Ozark City
Board of Education (Ala. 2005) 910 So.2d 1247, 1249-1250 (Locke) [presumed contract
between board of education and high school athletic association]; Wooldridge v. Echelon
Service Co. (Va.Cir.Ct. 1988) 13 Va. Cir. 323, 325 (Wooldridge) [contract with federal
government]), none of these cases applied the Restatement of Contracts or any rule
requiring a manifest intent to pay damages to third parties. Indeed, the cases did not even
require that third party suits be consistent with the objectives of the contract at issue or
22
the reasonable expectations of the contracting parties, as Goonewardene requires. They
merely required that the parties “intended to confer a direct benefit” on a third party.
(Stickle, supra, at p. 210; see also Locke, supra, at p. 1250 [requiring that the “ ‘ “ ‘the
contracting parties intended, at the time the contract was created, to bestow a direct
benefit upon a third party’ ” ’ ”]); Wooldridge, supra, 13 Va. Cir. at p. 325 [“A clear and
definite intent to benefit the plaintiff is required to confer standing to bring a third party
beneficiary action.”].) The other two cases cited by plaintiffs involved private contracts
to provide security, and they similarly analyzed only whether the contract “was intended
for the benefit of the third party” (FPI Atlanta, L.P. v. Seaton (Ga.Ct.App. 1999) 524
S.E.2d 524, 531) or “ ‘intended to confer a direct benefit on the alleged third party
beneficiary’ ” (Kotchina v. Luna Park Housing Corp. (N.Y.App.Div. 2006) 815 N.Y.S.2d
594, 594). Thus, none of the cases cited by plaintiffs suggest that third party beneficiary
claims are permitted here under the standard applied in California.
We therefore conclude that plaintiffs have failed to show that they are entitled to
bring third party beneficiary claims under Goonewardene and Socoma Companies. In
light of this conclusion, we need not reach the County’s argument that the economic loss
rule bars plaintiffs’ contract claims.
C. Leave to Amend
Finally, plaintiffs contend the trial court abused its discretion in denying them
leave to amend their complaints for a third (or, in the case of the Lane plaintiffs, a fifth)
time. Although “ ‘ “ ‘great liberality should be exercised in permitting a plaintiff to
amend his complaint’ ” ’ ” (City of Torrance v. Southern California Edison Co. (2021)
61 Cal.App.5th 1071, 1091), plaintiffs bear the burden of proving that there is a
reasonable possibility that amendments may cure the defects in their claims. (See Blank
v. Kirwan (1985) 39 Cal.3d 311, 318.) Plaintiffs have not satisfied that burden. They
argue that they should have been granted leave to amend their wrongful death claims to
allege additional facts showing that “the Sheriff through its employees had a special
23
relationship with plaintiff’s decedents that created a duty by the Sheriff to protect
plaintiffs’ decedents.” However, as shown above, plaintiffs’ wrongful death claims fail
whether or not there was a special relationship because the County and the Sheriff’s
Office are immune from direct tort liability and plaintiffs have failed to allege vicarious
liability. We therefore conclude that the trial court did not abuse its discretion in refusing
to grant plaintiffs leave to amend their complaints another time.
We recognize that this conclusion prevents plaintiffs from seeking compensation
against the County and the Sheriff’s Office without any consideration whether deficient
conduct by the County or the Sheriff’s Office led to the tragedy that plaintiffs have
experienced and the grievous loss that they have suffered. However, this result is
compelled by the immunity that the Legislature has afforded public entities, and the
limits on government contracts recognized by the Supreme Court. As a consequence,
plaintiffs must seek compensation for their injuries from other parties.
III. DISPOSITION
In Case Nos. H051963, H051964, H051972, and H052003, the judgments entered
upon the orders of dismissal are affirmed.
24
____________________________
BROMBERG, J.
WE CONCUR:
____________________________________
DANNER, ACTING P. J.
____________________________________
LIE, J.
Davallou et al. v. County of Santa Clara
H051963
Fritch et al. v. County of Santa Clara
H051964
G.M. et al. v. County of Santa Clara
H059172
Lane et al. v. County of Santa Clara through the Office of the Sheriff
H052003