Towing legally- parked cars for unpaid tickets violates 4th Amendment (Coalition v. SF)

 

Warrantless tows of parked vehicles for past parking violations constitute an unlawful seizure of private property

As do other municipalities, the City and County of San Fransisco tows vehicles that are lawfully-parked at present for past violations of parking rules and resulting unpaid parking fines.  The unstated subtext, of course, is that there may be persons residing in these lawfully-parked vehicles as such vehicles may also be used for purposes of sleeping.  At the same time, such vehicles are often considered abandoned as they be left in a particular spot for several days. 

The Coalition for the Homeless (“Coalition”) sued the City and County of San Francisco, law enforcement, and the local transit authority (“San Francisco”).  The Coalition the towing, and thus seizure and search, of a vehicle violates the Fourth Amendment, which bars warrantless searches unless there are “exigent circumstances” and/or other recognized exceptions to the requirement a warrant is needed.  

The California Court of Appeal for the First District agreed. (Coalition on Homelessness v. City and County of San Fransisco (July 21, 2023) A164180.)  Despite broad-ranging issues involving civil liberties, due process, and the enforcement of parking rules, the appellate court stated the issue succinctly and therefore held a Fourth Amendment analysis was dispositive:

The principal issue on appeal is whether the challenged warrantless tows are permissible under the vehicular community caretaking exception to the Fourth Amendment’s warrant requirement. We conclude respondents have not shown that legally parked cars with unpaid parking tickets that present no threat to “public safety and the efficient movement of vehicular traffic” may be towed under that exception. In particular, we reject respondents’ argument that their interest in deterring parking violations and nonpayment of parking fines justifies warrantless tows under the vehicular community caretaking exception. Such deterrence does not justify warrantless tows of lawfully registered and lawfully parked vehicles. (Id., p. 2; footnote and citation omitted.)

As discussed below, the appellate court also rejected the argument that towing the entire vehicle for unpaid parking tickets was justified as a “forfeiture” of private property.

The supposed “community caretaking” exception to the requirement that a warrant issue before a search and/or seizure does not apply to towing legally-parked vehicles

The First District began by discussing the statute upon which San Francisco relied for the authority to tow vehicles.  Vehicle Code section 22651 permits towing of vehicles where there is notice of multiple parking violations and there is no response within 21 days. Despite this statute, the Coalition filed a Petition for Writ of Mandate and Injunctive and Declaratory Relief.  San Francisco admitted it did not obtain a warrant before towing lawfully-parked vehicles, but argued that under section 22651 no warrant was required.  The trial court found no warrant was required pursuant to the so-called “community caretaking” exception to the Fourth Amendment and the Hon. Ethan P. Schulman of the San Francisco Superior Court therefore entered judgment for San Francisco.  Plaintiff appealed.

California has adopted Federal law as to the scope of the Fourth Amendment, and the Coalition court explained it was readily-apparent that towing a car is a “seizure” as defined by said amendment.  It also held the government has the burden of showing a particular seizure falls under one of the “few” and “specifically established” exceptions to the warrant requirement:

“ ‘A seizure conducted without a warrant is per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well delineated exceptions. The burden is on the Government to persuade the . . . court that a seizure comes under one of a few specifically established exceptions to the warrant requirement.’ ” (Miranda, supra, 429 F.3d at p. 862; see also City of Los Angeles v. Patel (2015) 576 U.S. 409, 419; Ovieda, supra, 7 Cal.5th at p. 1041 [“ ‘The burden is on the People to establish an exception applies.’ ”].)  (Id., p. 7.)

The appellate court found that San Francisco did not meet this burden, as it did not make any showing that a legally parked car was a public safety or health threat.  This is a crucial fact as the “community caretaking” exception has only been applied where there is such a present threat.  In point of fact, Coalition analyzed the scope and history of relevant precedent and found that, in reality, there was no “community caretaking” exception to the requirement that a warrant issue; rather, there is only a “vehicular community caretaking” exception, and such applies only where, at the time of the seizure, the vehicle is parked illegally. (Id., p 11-12; original emphasis.)  Therefore, this exception must serve an “immediate public need.” (Id.)

Coalition flatly rejected the argument that such “need” includes deterring future and hypothetical violations of parking regulations by making it possible to seize a legally-parked vehicle as a result of prior parking violations which have not yet been remedied:

We do not doubt that the threat of impoundment may encourage compliance with parking laws, by owners at all income levels. However, respondents cite no authority that such deterrence is a sufficient basis for a warrantless tow of a legally parked car under the vehicular community caretaker exception. To the contrary, the Miranda [v. City of Cornelius (9th Cir. 2005) 429 F.3d 858, at 865] court expressly rejected a deterrence rationale as justification for impoundment of a vehicle that was not “actually ‘impeding traffic or threatening public safety and convenience’ on the streets.” (Id., p. 18; other citations omitted but original emphasis.)

Not surprisingly, San Francisco argued the failure to tow legally-parked vehicles would mean that parking citations could be ignored with “impunity.”  But Coalition explained there in fact other remedies to collect these monies other than towing a legally-parked vehicle.  For example, where there has actually been an adjudicative process as to unpaid fines, the resulting default judgment may result in towing and impoundment of a vehicle even if legally parked. (Id., p. 26.)  Further, Coalition stressed its holding did not apply where, for example, there was an immediate need for a tow, the vehicle was unregistered, or the vehicle was otherwise illegally parked. (Id., p. 20.)

Finally, the First District rejected the claim that towing a legally-parked vehicle in order to collect unpaid parking violations was akin to a “forfeiture” of private property, i.e., a supposed “progressive forfeiture” based upon the fact the vehicle may, at some point, be legally sold in order to pay unpaid parking tickets.  Cases implying a vehicle may be sold after impoundment as a “forfeiture” were not analogous because here the vehicles were not subject to forfeiture at the time of towing and therefore would only be forfeited at a later date if the amounts owed were not paid.

The appellate court’s public policy analysis was less than robust

Other than responding to the arguments set forth in the briefs, the appellate court did not utilize this opportunity to fully discuss the public policy implications of its ruling vis a vis the towing policy.  On the one hand, one may argue that Fourth Amendment protections should not depend on how courts interpret ever-shifting public policy considerations. 

But it cannot be said that exceptions to the Fourth Amendment are not based, at least in part, upon rationales that involve public policy.  For example, the well-recognized “exigent circumstances” exception is rooted in concerns for public safety and the harm to public safety from the delay occasioned by obtaining a warrant, and therefore the application of this exception cannot be divorced from public policy.  

There is no doubt that the public policy issues involved in towing a vehicle which is presumably worth several times the amount of unpaid parking tickets have many dimensions.  For example, to the extent someone lives in the vehicle, such persons may now have nowhere to sleep.  

Further, the primary beneficiary of the towing policy may often be the towing company itself when one considers the increasingly large fees charged to tow and impound vehicles.  At the same time, general knowledge that warrantless tows of legally-parked vehicle are forbidden does nothing to encourage payment of parking tickets.  Further, the due process which a default judgment affords a vehicle owner prior to the vehicle being impounded benefits the owner but not necessarily the municipality.  The rejoinder is that the Fourth Amendment is not designed for the purpose of making law enforcement more efficient but in order to protect private citizens from governmental intrusion, and therefore applies even where its effect is quite the opposite.

Justice Thomas'' concurrence in the landmark case Students for Fair Admissions v. Harvard

Justice Thomas’ concurrence declares “[t]wo discriminatory wrongs cannot make a right” and we should not pick “winners and losers” based upon “the color of their skin”

With Students for Fair Admissions v. Harvard 600 U. S. ____ (2023), a six to three majority held that using race in admissions to universities violates the equal protection clause of the 14th Amendment.  Justice Roberts wrote the majority opinion, and Justices Sotomayor, Kagan, and Jackson dissented.  Much attention has been given to the dissent of Justice Jackson and her citation to facts in turn cited by amicus curie. [1]  

This brief article, however, will focus solely upon the concurrence of Justice Clarence Thomas and his rationale for both supporting the majority and also for writing his strongly-worded concurrence. [2]  Justice Thomas explained that “all such discrimination,” including what is referred to as either race-based admissions or “affirmative action,” has what he called pernicious effects:

Because the Court today applies genuine strict scrutiny to the race-conscious admissions policies employed at Harvard and the University of North Carolina (UNC) and finds that they fail that searching review, I join the majority opinion in full. I write separately to offer an originalist defense of the colorblind Constitution; to explain further the flaws of the Court’s Grutter jurisprudence; to clarify that all forms of discrimination based on race—including so-called affirmative action—are prohibited under the Constitution; and to emphasize the pernicious effects of all such discrimination. (Concurrence by Thomas, p. 2.)

Justice Thomas was especially critical of Grutter v. Bollinger, 539 U. S. 306, 326, a decision of 20 years ago, which applied strict scrutiny to policies favoring one race over another in school admissions but noted that such preferences — ostensibly to redress past wrongs by virtue of student admissions today — should have an ending time-limit.  As Griutter held, “[w]e expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” (539 U. S., at 343.)  Thomas made it clear Grutter was wrongfully decided and should be overturned:

I wrote separately in Grutter, explaining that the use of race in higher education admissions decisions—regardless of whether intended to help or to hurt—violates the Fourteenth Amendment. Id., at 351 (opinion concurring in part and dissenting in part). In the decades since, I have repeatedly stated that Grutter was wrongly decided and should be overruled. Fisher v. University of Tex. at Austin, 570 U. S. 297, 315, 328 (2013) (concurring opinion) (Fisher I ); Fisher v. University of Tex. at Austin, 579 U. S. 365, 389 (2016) (dissenting opinion). Today, and despite a lengthy interreg- num, the Constitution prevails.  (Id., p. 3)

After a lengthy discussion of the phrase “equal protection under the law” the enactment of both the post-Civil War constitutional Amendment and the Civil Rights Acts of 1866 and 1875, Justice Thomas then discussed the supposed rationale for allowing admissions to be a deciding factor in school admissions.  Specifically, the arguments that such mesas meet the “strict scrutiny” the Constitution demands where the government itself (or those taking government aid) distinguishes between citizens based on their race.  He therefore discussed the rationale that “racial diversity” improves education, noting the lack of any argument that such improves, for example, text scores, and noting that Harvard and similar universities argue that racial diversity increases the viewpoints students may be exposed to while, at the same time, such schools do not considere diversity of viewpoints important in areas other than race qua race:

More fundamentally, it is not clear how racial diversity, as opposed to other forms of diversity, uniquely and independently advances Harvard’s goal. This is particularly true because Harvard blinds itself to other forms of applicant diversity, such as religion. See 2 App. in No. 20–1199, pp. 734–743. It may be the case that exposure to different perspectives and thoughts can foster debate, sharpen young minds, and hone students’ reasoning skills. But, it is not clear how diversity with respect to race, qua race, furthers this goal. Two white students, one from rural Appalachia and one from a wealthy San Francisco suburb, may well have more diverse outlooks on this metric than two students from Manhattan’s Upper East Side attending its most elite schools, one of whom is white and [sic] other of whom is black. If Harvard cannot even explain the link between racial diversity and education, then surely its interest in racial diversity cannot be compelling enough to overcome the constitutional limits on race consciousness. (Id., pp. 25-26.)

Justice Thomas was therefore critical of the arguments set forth by Harvard and the University of North Carolina which, according to Justice Thomas, used vague goals of societal diversity — without explanation as to any specifics — to justify the use of admissions to disadvantage specific students in their admissions to specific universities. [3]  Justice Thomas therefore concluded that permitting consideration of race by publicly-funded universities gives the impression, and, indeed, constitutes a policy whereby race is used to pick “winners and losers:”

Most troubling of all is what the dissent must make these omissions to defend: a judiciary that picks winners and losers based on the color of their skin. While the dissent would certainly not permit university programs that discriminated against black and Latino applicants, it is perfectly willing to let the programs here continue. In its view, this Court is supposed to tell state actors when they have picked the right races to benefit. Separate but equal is “inherently unequal,” said Brown. 347 U. S., at 495 (emphasis added). It depends, says the dissent. (Id., p. 38.)

Therefore attempts to redress past discriminatory wrongs by virtue of discriminating in the present must do the following in order to withstand Constitutional muster:

First, to satisfy strict scrutiny, universities must be able to establish an actual link between racial discrimination and educational benefits. Second, those engaged in racial discrimination do not deserve deference with respect to their reasons for discriminating. Third, attempts to remedy past governmental discrimination must be closely tailored to address that particular past governmental discrimination.  (Id., p. 23.)

Such a standard is difficult to meet, noted Justice Thomas, where we are applying broad societal goals in a fashion that discriminates against specific students — such a Chinese-American applicant — applying for college today:

How, for example, would JUSTICE JACKSON explain the need for race-based preferences to the Chinese student who has worked hard his whole life, only to be denied college admission in part because of his skin color? If such a burden would seem difficult to impose on a bright-eyed young person, that’s because it should be. History has taught us to abhor theories that call for elites to pick racial winners and losers in the name of sociological experimentation. (Id., p. 53.)

In his characteristic style, Justice Thomas reinforces this point by noting the persons the dissenting Justices argue may be discriminated against today — Asian-Americans — have historically been discriminated against just as African-Americans have, noting law specifically targeting Asians and, of course, the forced internment and theft of property from Japanese-Americans during World War II. Indeed, the irony of the negative effect of Harvard’s admissions policies upon Asian-Americans should not go unnoticed:

As the Court’s opinion today explains, the zero-sum nature of college admissions—where students compete for a finite number of seats in each school’s entering class—aptly demonstrates the point. Ante, at 27. Petitioner here represents Asian Americans who allege that, at the margins, Asian applicants were denied admission because of their race. Yet, Asian Americans can hardly be described as the beneficiaries of historical racial advantages. To the contrary, our Nation’s first immigration ban targeted the Chinese, in part, based on “worker resentment of the low wage rates accepted by Chinese workers.” 

In subsequent years, “strong anti-Asian sentiments in the Western States led to the adoption of many discriminatory laws at the State and local levels, similar to those aimed at blacks in the South,” and “segregation in public facilities, including schools, was quite common until after the Second World War.” Indeed, this Court even sanctioned this segregation—in the context of schools, no less. In Gong Lum v. Rice, 275 U. S. 78, 81–82, 85–87 (1927), the Court held that a 9-year-old Chinese-American girl could be denied en- try to a “white” school because she was “a member of the Mongolian or yellow race.” 

Also, following the Japanese attack on the U. S. Navy base at Pearl Harbor, Japanese Americans in the American West were evacuated and interned in relocation camps.  Over 120,000 were removed to camps beginning in 1942, and the last camp that held Japanese Americans did not close until 1948. . . . In the interim, this Court endorsed the practice. Korematsu v. United States, 323 U. S. 214 (1944). 

Given the history of discrimination against Asian Americans, especially their history with segregated schools, it seems particularly incongruous to suggest that a past history of segregationist policies toward blacks should be remedied at the expense of Asian American college applicants. But this problem is not limited to Asian Americans; more broadly, universities’ discriminatory policies burden millions of applicants [4] who are not responsible for the racial discrimination that sullied our Nation’s past. (Id., p.  42-44; citations and footnotes omitted but emphasis added.)

____________________________

1 - Justice Jackson’s dissent makes several points worthy of further discussion, including her citation to the claims in amici briefs, which are worthy of further discussion.

2- Where this opinion will lead us in the future is also outside the scope of this relatively brief article and is also worthy of further discussion.

3 - As the majority opinion discussed, the current use of race lessens the percentage of certain racial groups, such as Asian-American or European-American students, in order to increase the number of members of other racial groups, such as African-American or Hispanic students.  However, it must be noted that the two universities at issue in Students for Fair Admissions have admitted their current practices are not based upon remediation of any specific past harm at their institution.

4 - There is no doubt the majority of such students of Asian-American and European-American ancestry were born in years from the late 1990's to the early 2000's.

Employer owes no duty to employee's spouse to prevent employee's exposure to COVID-19 (Kuciemba v. Victory)

Though an employee’s wife may sue the employer in tort, no duty is owed to the spouse to prevent COVID exposure to the employee

A unanimous California Supreme Court has ruled in favor of an employer whose alleged negligence caused the employee to become exposed to COVID-19 who in turn exposed his wife. (Kuciemba v. Victory Woodworks, Inc. (July 6, 2023) S274191.)  Plaintiff and appellant Corby Kuciemba brought suit and defendant and respondent Victory Woodworks filed a demurrer arguing, inter alia, that the wife’s“exclusive remedy” against the employer was a claim under the Worker’s Compensation system.  After the United States District Court for the Northern District of California granted a motion to dismiss the action under Federal Rules of Civil Procedure, rule 12(b)(6), plaintiff appealed to the Ninth Circuit Court of Appeal certified the following questions of law to the California Supreme Court which it deemed necessary to decide the appeal:

(1) If an employee contracts COVID-19 at the workplace and brings the virus home to a spouse, does the California Workers’ Compensation Act (WCA; Lab. Code, § 3200 et seq.) bar the spouse’s negligence claim against the employer? (2) Does an employer owe a duty of care under California law to prevent the spread of COVID-19 to employees’ household members? (Id., p. 1.)

The California Supreme Court assumed, for purposes of its opinion, that the facts plead were indeed true.  Plaintiff alleged negligence on the part of the husband’s employer which led to his exposure to COVID at a job site and, in turn, exposure to plaintiff, his wife:

On May 6, 2020, Robert Kuciemba began working for defendant Victory Woodworks, Inc. (Victory) at a construction site in San Francisco. About two months later, without taking precautions required by the county's health order, Victory transferred a group of workers to the San Francisco site from another location where they may have been exposed to the virus. After being required to work in close contact with these new workers, Robert became infected. (Id., p. 3; footnotes omitted.)

Plaintiff also alleged she became ill with COVID and therefore required hospitalization.

The Supreme Court concluded the doctrine of Workers Compensation Exclusivity did not bar the wife’s complaint

While it did not ultimately change the outcome of the case, the Supreme Court agreed with appellant on the issue of workers’ compensation exclusivity.  Kuciemba thus held the suit by the wife was not barred by the fact her husband was the employee of the defendant, meaning the employer could be sued by the wife in a tort action.

Of course, in Kuciemba the wife’s suit was arguably “derivative” of her husband’s exposure to COVID.  Nonetheless, the Supreme Court found workers’ compensation was not her “exclusive remedy.”  Her claim was not “derivative” of his injury because, unlike a claim for loss of consortium, the claim of the wife depended on the husband’s exposure to COVID but not actual work-place injury to the husband: 

Accordingly, Victory's sole focus on viral transmission as a factual “but for” cause is misplaced. For the derivative injury rule to apply, Robert's infection must not only be the factual cause of Corby's illness; Corby's claim must also be “legally dependent on injuries suffered by” Robert. Robert's infection may have been a necessary factual step in the causal chain that led to Corby's illness. But it is not necessary for Corby to allege or prove injury to Robert to support her own negligence claim. The difference becomes clear when her claim is compared to a derivative claim like loss of consortium. If Corby had sought recovery for loss of consortium, she would have been required to prove that an injury to her spouse, Robert, in turn injured her by affecting their marital relationship. To support her negligence claim here against Victory, however, she need only show that Robert was exposed to the virus at the workplace and carried it home to her. (Id., p. 11; emphasis added)

This ruling was in accord with See’s Candies, Inc. v. Superior Court (2021) 73 Cal. App. 5th 66 (review denied April, 13, 2022, S272923).  It should be noted the Court of Appeal opinion in Sees was decided after the Ninth Circuit had already certified its question to the California Supreme Court.

However, dismissal of the suit was proper as no duty of due care was owed to the plaintiff by her husband’s employer

The wife being able to sue her husband’s employer in tort, the case then turned upon the second issue related to duty.  The Supreme Court explained that the scope of duty in California is statutorily-defined by Civil Code section 1714(a), stating broadly that “everyone” owes a duty of care “to another:” 

Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.

In Rowland v. Christian (1968) 69 Cal. 2d 108, the Supreme Court held that not all persons owe a duty of due care to all other persons in all circumstances.  As the Supreme Court later clarified, Rowland provides there are several considerations that, when balanced by the court, may justify an exception to the general duty of reasonable care embodied in section 1714. (Cabral v. Ralphs Grocery Co. (2011) 51 Cal. 4th 764.)  These “Rowland factors” include, as Cabral explained, all of the following: 

. . . [T]he foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved. (Id., p. 771.)

Cabral further explained that despite the landmark holding in Rowland, courts only balance these factors and consider whether or not a duty of due care is owed where there are clear “public policy reasons” for doing so because “in the absence of a statutory provision establishing an exception to the general rule of Civil Code section 1714, courts should create one only where ‘clearly supported by public policy.’ [Citations.]” (Id., quoting Rowland, 69 Cal. 2d at 112.) 

Kuciemba grouped these Rowland factors into two categories, to wit, those that involved the foreseeability of harm and those involving public policy.  “Foreseeability” factors are forward-looking and the “public policy” factors are backward-looking. (Id., p. 30.)  The Supreme Court found the Rowland factors involving foreseeability indicated a duty of due care was owed to the plaintiff, but that this was not dispositive.  Rather, the factors related to public policy must also be considered, and these factors did not indicate a duty of due care was owed.  For example, consideration of “prevention of future harm” indicated no duty was owed: 

The next Rowland factor, the “policy of preventing future harm is ordinarily served, in tort law, by imposing the costs of negligent conduct upon those responsible.”  . . . This factor thus examines both the positive and the negative societal consequences of recognizing a tort duty. Public policy strongly favors compliance with health orders to prevent the spread of COVID-19. Recognizing a duty of care beyond the workplace could enhance employer vigilance in this regard. However, there is only so much an employer can do. Employers cannot fully control the risk of infection because many precautions, such as mask wearing and social distancing, depend upon the compliance of individual employees. Employers have little to no control over the safety precautions taken by employees or their household members outside the workplace. Nor can they control whether a given employee will be aware of, or report, disease exposure. There is also a possibility that imposing a tort duty not covered by workers’ compensation could lead some employers to close down. . . . (Id., p. 38; citations omitted.) 

In summary, the economic and other consequences of imposing a duty upon employers to prevent COVID transmission from their employees to third parties indicated no such duty was owed.  As Justice Corrigan stated succinctly, such a duty could not be imposed because of the broad swatch of potential liability which would result:

. . . [A] duty to prevent secondary COVID-19 infections would extend to all workplaces, making every employer in California a potential defendant. (Id., p. 38; original emphasis.)

Why the discussion of public policy in Kuciemba is important

The Supreme Court opinion in Cabral has been interpreted by many courts something like this: as a general rule, everyone owes everyone else a duty of due care unless there is a crystal-clear public policy reason for not imposing a duty.  In particular, this approach has been used by many trial courts as an excuse to not consider public policy vis a vis the facts of the case even though such is required to rule upon a demurrer and or motion for summary judgment.

Trial courts therefore refuse to dismiss claims by way of demurrer or motion under the rubric the defendant broadly owes the plaintiff a duty of due care, no matter the tenuous nature of fatal causation.  Causation being a question of fact for the jury, the trial court does not conduct any detailed analysis of the facts of the case in terms of whether public policy indicates there should be liability, instead simply finding the case must proceed to a jury trial. 

As discussed in our prior post, one such example is Razoumovitch v. Hudson Ave. LLC (May 1, 2023) B316606.  The Second District, Division Seven held a tenant who accesses a roof area after being locked out of their apartment is owed a “duty of care” by their landlord to prevent injury from re-entering their apartment by attempting to “swing” up to roof ledge not designed to be accessed by tenants.  Razoumovitch concluded the general duty of due care applied because the defense had not shown there were clear public policy considerations that indicated otherwise.  Razoumovitch discussed the oft-cited proposition that someone is not owned a duty of due in regards to warning of an obvious defect.  But it also noted that this rule had a crucial exemption and does not apply where the injury is “foreseeable” because plaintiff has a “necessity” to encounter the harm, citing to Kinsman v. Unocal Corp. (2005) 37 Cal. 4th 659, at 673.

While it would be speculative to say whether or not Razoumovitch would have been decided differently had Kuciemba been decided first, there is considerable language in the latter opinion which may be cited to rebut the contention that every defendant owes a duty of due care to every plaintiff with no exception.  Specifically, the Supreme Court in Kuciemba made it plain the burden to society caused by imposing a duty of due care, and, in particular, imposing a duty under novel circumstances, is an important factor for courts to consider.

Defendants may therefore wish to cite to Kuciemba’s discussion as to the scope of the potential liability imposed, as the Supreme Court aptly noted that virtually every employer in the state would become a potential defendant if a duty were owed by employers to family members to prevent employee exposure to COVID.  

The court continued this analysis by noting the impracticability of imposing liability upon employers given they “cannot fully control the risk of infection because many precautions, such as mask wearing and social distancing, depend upon the compliance of individual employees.” (Id., p. 38.)  Moreover, even though imposing such liability night encourage employers to enact more stringent safety measure, it is also true that measures taken by employers to lessen their liability might impede the delivery of essential services. (Id., p. 43.)  

Courts deciding issues of duty in other contexts should be asked to undertake a detailed public policy analysis -- as part of their ruling upon a demurrer or motion for summary judgment -- with similar rigor rather than simply finding the defendant owes anyone and everywhere a duty of due care under Civil Code section 1714(a).  Where a trial court refuses to do so and the economics of the case warrant such, a writ petition, such as a Petition for Peremptory Writ made pursuant to Code of Civil Procedure section 437c(m)(1), may be filed arguing the trial court did not properly consider the issue of duty as it did not undertake the analysis required by Rowland, Cabral, and Kuciemba.