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Denise Smith et al v. Karen Freund et al

February 2, 2011


(Super. Ct. No.06CC11990) Appeal from a judgment of the Superior Court of Orange County, Geoffrey T. Glass, Judge. Affirmed.

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



In this tragic case, 19-year-old William Freund, who suffered from Asperger's Syndrome and lived as a dependent with his parents (defendants Karen and Dennis Freund), shot and killed two people before going home and committing suicide. The victims were members of the immediate family of plaintiffs Denise Smith and her son, Brandon Smith.*fn1

Plaintiffs sued defendants for wrongful death, alleging defendants negligently supervised their son. Brandon also sued defendants for negligent infliction of emotional distress. Defendants moved for summary judgment, contending "that as a matter of law they had no duty to control/supervise their adult son and could not warn [plaintiffs] of a potential threat they had no knowledge of." Plaintiffs opposed the summary judgment motion and moved for a continuance so they could depose William's doctors. The court denied plaintiffs' continuance motion and granted defendants' summary judgment motion. On appeal, we reversed the judgment, holding the court abused its discretion by denying plaintiffs a continuance to complete their discovery. We explained we could not "say that, regardless of anything plaintiffs could have learned by deposing William's doctors, defendants would still have no duty to supervise William."

After the case was remanded to the trial court, plaintiffs deposed William's doctors and submitted to the court a separate statement of further undisputed material facts. The court again granted defendants' summary judgment motion, concluding they owed no duty of care to third parties to control their adult son's actions. We affirm the judgment because William's shooting of third parties was unforeseeable.


Plaintiffs' counsel deposed Dr. Michael Elliott, William's psychologist, and Dr. Laurence Greenberg, William's psychiatrist. Plaintiffs then filed a separate statement of "further" undisputed material facts, the most recent separate statement of undisputed facts in the record. (Oldcastle Precast, Inc. v. Lumbermens Mutual Casualty Co. (2009) 170 Cal.App.4th 554, 574-577 [relevant facts are limited to those set forth in separate statements of undisputed facts; however, court has discretion to consider evidence not included in separate statements].) That statement of undisputed facts included the following disputed and undisputed facts: Defendants were the adoptive parents of their only son, William, who shot and killed two immediate family members of plaintiffs in October 2005. At the time of the shootings, William was a high school graduate, attended ITT College, and was 19 years old. Despite William's age, plaintiffs challenged defendants' characterization of him as an adult because he "was an autistic teenager who lived at home with his parents and was supported by them."

Several years earlier, in 2001, a pediatric neurologist confirmed "William had 'rages,' and 'physically attack[ed] his parents,'" and suggested he might have to be placed outside the family home. Soon after William started high school, he complained of problems concentrating and understanding other students' conversations, so defendants took him to see Drs. Elliott and Greenberg; both doctors told defendants William suffered from Asperger's Syndrome. "Dr. Greenberg's ultimate diagnosis of William was major depressive disorder with psychotic features, Asperger's [Syndrome], and" attention deficit disorder. Dr. Greenberg prescribed medications for William that could cause "changes" in him. According to plaintiffs, defendants knew the medicines could cause "thoughts of hurting oneself or others." Drs. Elliott and Greenberg told defendants they needed to closely monitor and supervise William.

In November 2002, William stopped seeing Dr. Elliott. But in August 2005, two months before the shootings, he returned for therapy due to a "relapse of his agitation and irritability." Shortly before the shootings, defendants told Dr. Elliott that William exhibited "irritability and nastiness." Less than a month before defendants made this statement, William had started taking a new antidepressant medicine. Dr. Greenberg, who prescribed William's medicines, asked defendants to phone him after William had been taking a new medication for four days. Dr. Greenberg instructed defendants to contact him if "changes" in William became apparent; he told them "to exercise 'extreme vigilance for emergence of acute psychiatric symptoms,' meaning he 'wanted them to keep an eye out for anything sudden.'" A month before the shootings, defendants told Dr. Greenberg that William was "in and out of reality," and exhibited "irritability and nastiness." In the week before the shootings, defendants told Brandon that William was "acting weird."

Also in the month before the shootings, William bought a gun and posted messages on the internet indicating he was going to commit suicide, he might "take others with him," and he had attempted suicide more than once before. William "blamed his mental condition on the medications he was taking." Defendants did not know William had made any threats of violence or suicide on the internet or that he possessed a firearm. Defendants knew of no hostility on William's part, or any threats made by him, against any member of plaintiffs' family.

But plaintiffs alleged defendants "had actual knowledge that William had acted violently in the past," because William had physically attacked defendants, punched his father in the eye because his father interfered with a videogame, and slapped another student at school. Defendants knew William had had "suicidal ideation." Evidence referenced in the separate statement included portions of defendants' declarations and depositions, as well as the depositions of Dr. Elliott, Dr. Greenberg, and the pediatric neurologist.


In defendants' summary judgment motion, they claimed the undisputed fact that William was 19 at the time of the shootings negated "as a matter of law all of the elements of the negligence causes of action and was a complete defense to" those causes of action. They asserted the fact that William was living in defendants' home did not change this conclusion. They further argued that because ...

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