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Danielle Bologna et al v. City and County of San Francisco et al

January 31, 2011


Trial Court: Superior Court of the City and County of San Francisco Trial Judge: Honorable Charlotte Woolard

The opinion of the court was delivered by: Siggins, J.


(San Francisco City & County Super. Ct. No. CGC09486928)

This case arises from the tragic and senseless killings of Anthony Bologna and his sons Michael and Matthew, who were stopped in traffic in San Francisco when Edwin Ramos, an illegal immigrant, allegedly shot and killed them. Plaintiffs Danielle, Andrew, and Francesca Bologna are decedents' survivors and next of kin, and appeal from a judgment entered after the trial court sustained the demurrer of defendants the City and County of San Francisco, Gavin Newsom, Heather Fong, and William Sifferman (jointly, the City) without leave to amend. The narrow question posed in this appeal is whether the surviving family members can proceed in tort against the City under a theory that San Francisco's policy to provide sanctuary to illegal immigrants was a legal cause of decedents' murders because it shielded Ramos from deportation in violation of state and federal statutes. We conclude, as did the trial court, that the alleged breaches of those statutes support neither a legally viable claim of negligence per se under Evidence Code section 669 nor breach of mandatory duties under Government Code section 815.6. We therefore affirm the judgment.


The trial court accurately summarized the relevant allegations of the complaint as follows: "Plaintiffs' complaint alleges that on June 22, 2008, Edwin Ramos fatally shot Anthony Bologna, 48, and two of his sons, Michael, 20, and Matthew, 16, as they sat in their family car. A third son, Andrew, 18, also sat in the car and witnessed the murders, but he was not shot. These tragic and horrific crimes occurred in San Francisco. . . .

"The complaint alleges that Edwin Ramos is a citizen of El Salvador but has lived in San Francisco for years before the June 22 incident. He was in this country in violation of the Immigration and Nationality Act ('INA'), 8 U.S.C. § 1101, et seq. When he murdered the decedents, Ramos was a member of the Mara Salvatrucha (or 'MS-13') street gang and had belonged for years. MS-13 is known to traffic in illegal drugs and narcotics throughout the United States including in San Francisco, and its members are known to ruthlessly maintain and increase the gang's share of the illegal drug market by committing murder and other crimes of violence, sometimes for no purpose other than to cause terror and fear. Plaintiffs allege that Ramos was heavily involved in the illegal drug trade in San Francisco for years before the Bologna murders, and that the murders were related to his membership in MS-13.

"The complaint alleges that Ramos has been arrested by San Francisco police officers on multiple occasions for violent crimes and drug offenses and has been identified as a suspect in other serious crimes, including murder. Ramos was an adult when he murdered the Bolognas, but he had also committed within San Francisco many drug offenses and crimes of violence when he was a minor. As a result, he had multiple referrals to, and contacts with, the San Francisco Police Department and the Juvenile Probation Department before he committed the Bologna murders. As a minor, City officials transported Ramos to and kept him at a group home for juveniles and the Log Cabin Ranch School, which is a post adjudication facility for male juveniles who have been adjudged delinquent. Defendants knew that Ramos and MS-13 targeted for death Latino-appearing males who were not members of MS-13.

"The complaint alleges that prior to the Bologna murders, the City and County of San Francisco adopted 'sanctuary polices,' whereby City officials harbored individuals they knew to be illegal aliens who had committed drug offenses and violent crimes. Plaintiffs contend that San Francisco's sanctuary policies violated state and federal laws. Plaintiffs also allege that if at the time of any of Ramos's prior arrests San Francisco officials had reported Ramos to United States Immigration and Customs Enforcement ('ICE'), it is a certainty that ICE would have initiated removal proceedings against him and that Ramos would have been deported. Plaintiffs claim that although San Francisco police officers knew that they were required by state law to report Ramos's drug-related arrests and detentions to federal immigration officials, they were prevented by the sanctuary policies from doing so. Plaintiffs assert that it was reasonably foreseeable that Ramos would commit violence upon San Francisco citizens including the decedents, and would likely murder males simply because they appeared to be Latino."

Plaintiffs alleged claims for general negligence, negligent infliction of emotional distress, and violation of mandatory duties imposed by law.*fn1


I. Standard of Review

"On appeal from a judgment dismissing an action after sustaining a demurrer without leave to amend, the standard of review is well settled. The reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. [Citations.] The court does not, however, assume the truth of contentions, deductions or conclusions of law. [Citation.] The judgment must be affirmed 'if any one of the several grounds of demurrer is well taken. [Citations.]' [Citation.] However, it is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. [Citation.] And it is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any ...

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