In his answers to Defendant's First Set of Interrogatories, Patel contends, inter alia, that the DEA was negligent in the following respects: (1) conducting the raid, (2) allowing the raid to proceed when there was inadequate cover at the site, (3) deploying flammable tear gas projectiles, (4) supplying the unit with an inadequate supply of non-flammable tear gas projectiles, (5) not controlling the number and type of projectiles fired, (6) allowing flammable projectiles to be fired into a house suspected of containing volatile chemicals, and (7) not ordering a cease fire to allow Brookins to surrender. Patel argues that these actions did not involve weighing of public policy considerations, and were not rooted in social, economic or political policy.
The decisions made and the actions taken by the officers in the course of serving the search warrant did involve matters of judgment or choice. The officers at the scene clearly had a choice as to what specific actions to take in the course of serving the warrant.
However, some of the decisions made and actions taken by the officers in the course of serving the search warrant were not based on considerations rooted in economic, social, or political policy. Defendant argues that, consistent with its mission, the DEA endeavors to make cases exposing illegal narcotics activities on the strongest possible evidence. However, the employment of a method which resulted in the total destruction of all evidence at the scene, including Mr. Brookins, the target of the investigation, can hardly be said to be in furtherance of that mission or based on considerations of public policy. The facts of this case are analogous to the situation in Arizona Maintenance, supra. The DEA's decisions to investigate the alleged illegal activity, to obtain the search warrant, when and where to serve the warrant, and to use the MERGE unit personnel to execute the warrant are of the sort that are based on public policy considerations. However, the officers' decisions to use flammable tear gas projectiles (instead of non-flammable projectiles) in an amount sufficient to completely destroy the structure at the scene were not based on considerations rooted in social, economic or political policy just as the decision regarding the amount of dynamite used at the site in Arizona Maintenance was not grounded in social, economic, or political policy. To follow defendant's reasoning would be to hold that all actions taken in the course of serving a search warrant are protected by the discretionary function exception. Defendant cites no authority for such a proposition and the court has found none.
IV. Defendant's 12(b)(6) Motion - Plaintiff's Claim for Emotional Distress
A. Applicable Law
Prior to 1968, under California law, a plaintiff could not recover damages for negligent infliction of emotional distress where the plaintiff fell outside the zone of danger flowing from the defendant's conduct. Amaya v. Home Ice, Fuel and Supply Co., 59 Cal. 2d 295, 29 Cal. Rptr. 33, 379 P.2d 513 (1963). However, in Dillon v. Legg, the California Supreme Court rejected the so-called "zone of danger rule" in favor of a rule which allows recovery for emotional distress in a broader range of cases. 68 Cal. 2d 728, 69 Cal. Rptr. 72, 441 P.2d 912 (1968). In Dillon, the court held that a bystander could recover damages for emotional distress if the defendant should have reasonably foreseen the potential injury to the plaintiff. Id. The court further held that in making this determination three factors should be considered: (1) whether or not the plaintiff was at or near the scene of injury, (2) whether the shock resulted because of sensory or contemporaneous observance of the accident (as opposed to learning about the incident later), (3) whether the plaintiff and the victim were closely related. Id. at 740-741. Subsequently, the California Supreme Court also allowed recovery for emotional distress unaccompanied by physical injury. Molien v. Kaiser Foundation Hospitals, 27 Cal. 3d 916, 167 Cal. Rptr. 831, 616 P.2d 813 (1980). In Molien, the court held that even though neither plaintiff nor his wife suffered any physical injury, the defendant's conduct "foreseeably elicited serious emotional responses in the plaintiff and hence serve as a measure of the validity of plaintiff's claim for emotional distress." Id. at 930-931.
However, no California court "has ever allowed recovery for emotional distress arising solely out of property damage absent a threshold showing of some preexisting relationship or intentional tort. Cooper v. Superior Court, 153 Cal. App. 3d 1008, 200 Cal. Rptr. 746 (2d Dist. 1984); See also, Sher v. Leiderman, 181 Cal. App. 3d 867, 226 Cal. Rptr. 698 (6th Dist. 1986). The preexisting relationship must involve an aspect of trust and confidence giving rise to a duty of care. Sher, at 884. Preexisting relationships giving rise to such a duty include that between an insurer and an insured, Jarchow v. Transamerica Title Ins. Co., 48 Cal. App. 3d 917, 122 Cal. Rptr. 470 (1975); Crisci v. Security Ins. Co., 66 Cal. 2d 425, 58 Cal. Rptr. 13, 426 P.2d 173 (1967), and that between a bailor and a bailee, Windeler v. Scheers Jewelers, 8 Cal. App. 3d 844, 88 Cal. Rptr. 39 (1st Dist. 1970).
All of Patel's losses in this action arise solely out of the damage to his property at 14555 Mount Hamilton Road. Patel contends that the agreement between the City of San Jose Police Department and the DEA providing for cooperation between the two law enforcement agencies in the investigation of drug trafficking (which provided the mechanism for the DEA search on March 19, 1991) was entered into for the benefit of the citizens of San Jose. Patel argues that this is sufficient to establish the preexisting relationship required by Cooper and Sher. Patel does not contend that he had any prior knowledge of the agreement between the City and the DEA, or that he relied on it in any way. Simply put, the attenuated relationship between Patel and the DEA is not the sort of relationship of trust and confidence contemplated by Cooper and Sher. Accordingly, Patel has failed to state a claim for emotional distress upon which relief may be granted.
In light of the principles discussed above, the court finds that some of the choices made and the actions taken by the officers at 14555 Hamilton Road in San Jose on March 19, 1991 were not grounded in social, economic, or political policy as required by Gaubert, supra. Hence, the DEA's conduct is not protected by the discretionary function exception to liability under the FTCA. Accordingly, Defendant's Motion to Dismiss for Lack of Subject Matter Jurisdiction is DENIED. However, Patel has failed to state a claim for emotional distress upon which relief may be granted. Accordingly, Defendant's Motion to Dismiss Plaintiff's Claim for Emotional Distress pursuant to Rule 12(b)(6) is GRANTED.
IT IS SO ORDERED.
Dated: November 13, 1992
Edward A. Infante
United States Magistrate Judge