Walnut Creek Partner Secures Dismissal of Lawsuit Against Client over Deceased Husband’s Alleged Assault of Neighbor

Walnut Creek, Calif. (July 29, 2024) - Walnut Creek Partner Brooke E. Washburn recently secured a court order sustaining her client’s demurrer to a complaint, without leave to amend. The case concerned allegations of liability for third party torts, wherein the plaintiffs argued that a special relationship exists between neighbors and married persons triggering an exception to the "no duty to protect" rule. The plaintiffs’ complaint alleged that Ms. Washburn’s client was liable for an alleged assault that her client’s late husband committed against a female neighbor. The Court, having considered the recent Brown ruling by the state Supreme Court, ruled that none of the plaintiffs’ claims were legally viable.

A Contra Costa County Superior Court judge sustained the demurrer without leave to amend as to the plaintiffs’ causes of action against Ms. Washburn’s client for negligence, intentional infliction of emotional distress, negligent infliction of emotional distress, and loss of consortium.

The circumstances giving rise to the lawsuit date back to June 2017, when the client and her family moved into a home in Moraga next door to the plaintiffs. According to the plaintiffs’ complaint, they allege that beginning on the day of the move-in and continuing over the next several years, the client communicated a series of complaints to the female neighbor on her husband’s behalf, including concerns about the volume of the neighbor’s air conditioning unit and dust and debris from a tree removal. On one occasion, the client allegedly witnessed her husband shove the neighbor during an argument. The neighbor contacted the city police about the situation but did not request a restraining order.

The plaintiffs went on to allege that in February 2022, the client’s husband entered the neighbor’s side yard and assaulted her with his fists and a metal baseball bat. Police responding to 911 calls confronted the husband, who ultimately committed suicide with a firearm.

The neighbor and her family proceeded to sue Ms. Washburn’s client following the incident. Ms. Washburn filed a demurrer to the complaint on the grounds that none of the plaintiffs’ claims were legally tenable. In early July, Contra Costa County Superior Court Judge Terri Mockler issued a tentative ruling sustaining the demurrer, and later finalized the ruling following a hearing.

With respect to the plaintiffs’ negligence cause of action, Judge Mockler found that the client did not have a “special relationship” with the neighbor that gave rise to a duty of care, such that the neighbor relied on the client to protect her. In fact, the allegations in the complaint indicated “just the opposite”: that the relationship between the two had been “contentious at best” from the beginning. Judge Mockler sustained the demurrer as to the negligent infliction of emotional distress claim on the same basis.

Regarding the plaintiffs’ claim for intentional infliction of emotional distress, Judge Mockler found that the client’s communication of her husband’s complaints and inaction when her husband shoved the neighbor were insufficient to support that claim.

And given the lack of any tortious injury caused to the neighbor by Lewis Brisbois’ client, the judge also sustained the demurrer as to the plaintiffs’ loss of consortium claim.