Long v. City of Exeter CA2/6

Filed 1/18/24 Long v. City of Exeter CA2/6
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

BETTY LONG, et al., 2d Civil No. B316324
(Super. Ct. No. 17CV-0529)
Plaintiffs and Respondents, (San Luis Obispo County)

v.

CITY OF EXETER, et al.,

Defendants and Appellants.

A city police department sold an attack-trained police
service dog to the officer who had been its handler and who was
resigning from the department to take a job as a police offer in
another city. Six months later, the dog escaped from the officer’s
fenced yard and attacked two innocent people on their front
yards, killing one and permanently injuring the other. A jury
found the city’s police chief and the supervisor of its canine unit
negligently failed to warn the officer that the dog could not
unlearn its attack training, would remain dangerous, should be
confined in a kennel, and could not safely be treated as a pet. It
awarded the surviving plaintiff $12.5 million in damages and the
deceased victim’s survivors damages of $7 million. It apportioned
fault for these damages at 42% for the supervisor of the canine
unit, 41.5% for the police chief and 16.5% for the former officer
who owned the dog. The city and its employees appeal,
contending that they owed no duty to the plaintiffs, that the trial
court erred when it denied leave to amend the city’s answer to
allege an affirmative defense and that the damages awarded
were excessive.
We conclude appellants owed no duty to provide a more
explicit and robust warning to the officer about the
dangerousness of the service dog or the conditions under which it
should be kept. Accordingly, we reverse.
In addition to challenging the judgment, appellants
contend the trial court abused its discretion when it awarded
sanctions of $5000 against their counsel after defense counsel
unsuccessfully opposed motions for protective orders. We
conclude the trial court did not abuse its discretion and therefore
affirm the December 11, 2020 order awarding sanctions.
Facts
The Exeter Police Department’s K9 Program
The City of Exeter police department (the Department)
hired Alex Geiger as a police officer in August 2014. After
completing a one-year probationary period, Geiger applied to
become a canine handler. His application was accepted by the
supervisor of the canine unit, Sgt. Brett Inglehart.
The Department purchases dogs for its canine unit from
Jay Brock, the owner and operator of Top Dog Training Center.
Brock also trains both the dogs and the dog handlers. He
delivered Neo, a young male Belgian Malinois, to Geiger’s home.
The Department supplied Geiger with a kennel, a food dish, a

2
special patrol car and other supplies needed for Neo’s training
and maintenance.
Along with the dog, Geiger received a set of written
instructions from Brock detailing how Neo should be treated
during the “bonding” period, and a separate set of written
instructions for use during the training courses. During the
bonding period, Geiger agreed that he would be the only person
to feed and groom Neo, and that he would spend “‘quiet
time/bonding time’ with the dog, i.e., sitting quietly with the dog
(on leash and/or in a strictly controlled environment, i.e., fenced
yard, etc., but not inside the kennel).” He was warned and
agreed that Neo would remain kenneled “at all times when the
handler is not personally present to control the dog . . .” and that
he would read an article about having a police service dog in the
home. During the training courses, Geiger agreed that he would
be the only person to give Neo commands and the only person to
feed, groom and care for Neo. He was further warned and agreed
to keep Neo “on lead” at all times unless secured in the patrol
vehicle or kennel. In addition, he was warned and agreed that
Neo would remain kenneled while at home and would not have
“direct interaction with other dogs, pets, etc.”
Geiger and Neo spent about three weeks bonding before
beginning the training courses with Brock. Neo was trained both
to search for narcotics (“search training”) and to search for and
apprehend people (“patrol training”). According to Brock’s
syllabus, training in each discipline would consist of 200 hours of
hands-on work and 40 hours of classroom time. Log sheets from
Geiger’s training, however, documented only 54 to 70 hours of
hands-on patrol training with Neo and about 100 hours of

3
narcotics search training. Geiger received no classroom
instruction.
After receiving certificates of completion for the initial
training, Geiger and Neo participated in weekly training with
other canine teams in the Department. In addition, Brock
scheduled and conducted monthly training sessions for canines
and handlers in the Department and other police departments in
the area. Geiger attended these sessions.
Brock explained that dogs are trained to search for a
suspect on their handler’s command and then to “bite and hold”
the suspect. This means that, when the dog reaches the suspect
and is commanded to bite, it will “bite the location that’s closest
to them, and they hold onto that spot until the handler orders
them to release.” Dogs are taught to use their full mouth to bite
and grasp the suspect and then continue to hold the suspect until
commanded to release. Because patrol trained dogs are taught
that it is acceptable to bite a human, they are potentially
dangerous and unpredictable when not under the direct control of
their handler.
Geiger began patrolling with Neo in December 2015. He
was never required to deploy Neo to apprehend a person during
that time. Geiger testified that he understood Neo needed to
remain in his kennel unless he was working or exercising with
Geiger. Neo was trained to understand that he was working
whenever he was outside his kennel; when he was in the kennel,
Neo knew it was time to relax. Geiger testified that Sgt.
Inglehart never said anything to him about allowing Neo to play
with other dogs. So, when Neo was not in his kennel, Geiger
would allow him to play with his pet German Shepherd, a female
named Rolo.

4
 Geiger Resigns and Purchases Neo
In the summer of 2016, Geiger accepted a police officer
position with the Grover Beach Police Department. He wanted to
continue working as a canine handler, but learned before he left
the Department that Grover Beach was not interested in forming
a canine unit. Sgt. Inglehart initially told Geiger that he could
buy Neo from the Department, they could try to pair Neo with
another handler, or they could euthanize Neo. Geiger was later
told that Brock did not think Neo would bond with a new
handler, so the only options were for Geiger to purchase the dog,
or for Neo to be euthanized.
Brock testified that Inglehart never spoke to him about
pairing Neo with a different handler. He learned about Geiger’s
purchase of Neo only after it was completed. Brock believed it
was not unusual for a police service dog to be retrained to work
with a new handler. He opined that Neo could have bonded with
a new handler.
Sgt. Inglehart testified that a retired police service dog
should be handled and cared for in the same way as a working
canine. In Inglehart’s opinion, a retired police service dog should
be kept in a kennel or crate unless in the direct control or
presence of the handler. A retired police service dog should not,
Inglehart believed, be treated as a pet.
Inglehart testified that Geiger was warned, “through his
training and the fact that the dog was living with him, and his
experience,” that Neo would continue to be a potentially
dangerous animal, even if Neo was no longer working. “The
training constitutes warning.” When Inglehart was asked
whether he gave any warnings to Geiger, he replied, “I believe he
was warned.” The Department admitted in discovery that

5
Inglehart did not further warn Geiger that Neo would continue to
be dangerous after he was retired as a working canine.
Inglehart did not know whether anyone from the
Department expressly warned Geiger that Neo should not be
treated like a pet or that he should be kept in a kennel unless
under Geiger’s direct control. He believed Geiger “had training
and the knowledge,” but also acknowledged there would have
been “no harm” in giving Geiger further warnings. Inglehart
acknowledged that he keeps his own retired police service dog
kenneled.
Clifton Bush, then the Department’s Chief of Police, never
warned Geiger about the dangers of keeping a retired police
service dog or the conditions in which Neo should be kept, nor did
he know whether anyone else warned Geiger. Bush did not
believe Geiger required any further warnings.
Bush made the final decision to sell Neo to Geiger. He
directed Inglehart to prepare the written sales contract.
Inglehart copied the contract from a previous one. It stated that
Geiger agreed “to continue the quality of care that Neo has been
accustomed to and accept that neither the City of Exeter nor the
Police K9 Association shall have no further financial liability for
Neo.” The contract did not, however, specify any warning against
treating Neo as a pet, that Neo’s patrol training could not be
reversed, that Neo would remain dangerous, or that Neo needed
to be kenneled when not under Geiger’s direct control.
Geiger also agreed, “to hold harmless, defend and
indemnify the City of Exeter and the Police K9 Association, from
and against any and all cost, loss, expense or liability arising out
of my ownership and control of Neo.” Bush testified the contract
could have required Geiger to kennel Neo, but did not. He

6
believed the Department could not control how Geiger treated the
dog after Geiger resigned from the Department.
Geiger moved to a rental house in Grover Beach that had a
fenced back yard. Thereafter, he treated Neo as a pet. During
the day, Geiger allowed Neo to play in the backyard with his
German Shepard, Rolo. Geiger testified that he did not
understand Neo needed to be kept in his kennel and should not
be treated as a pet.
The Incident
On the day of the incident, Geiger went to work as a police
officer, leaving both Neo and Rolo in the backyard. While on
patrol, he received a text from a roommate, informing him that a
board in the backyard fence was missing. Geiger went home,
wedged the board back into place and returned to his patrol
duties.
Later, Geiger received a radio call about a dog attack near
his home. He arrived to find another officer pointing a shotgun
at Neo who was covered in blood. Rolo was nearby, but had no
blood on her. Two of Geiger’s neighbors, David Fear and Betty
Long, were lying on the ground, bleeding and obviously seriously
injured. Geiger returned the dogs to his backyard. Thereafter,
he surrendered Neo to an Animal Control officer to be
euthanized.
The Victims’ Injuries
David Fear was standing in his front yard chatting with his
neighbor, 85-year-old Betty Long, when Neo and Rolo came
charging toward them. Fear was holding Long’s little dog in his
arms. Neo lunged at Fear and started mauling him. Neo bit both
of Fear’s arms, crushing both forearms and severing both radial
arteries, causing him to bleed heavily. Neo also bit Fear on his

7
right inner thigh and chest. Fear died three days after the
attack, due to massive blood loss caused by these extensive and
deep bite wounds.
Fear is survived by three adult children with whom he
enjoyed a close relationship. Each of his children testified that
Fear was an important support and friend to them.
Neo also knocked Ms. Long to the ground, causing her to
hit her head and break her pelvis. Neo bit Long on her right hip,
lower abdomen and right upper thigh. Her left arm and shoulder
were displaced, requiring Long to undergo a complete shoulder
replacement.
Long’s health and well-being plummeted after the attack.
She had been living independently, driving, going out with her
friends, traveling and volunteering as an election worker. After
the attack, Long was no longer able to live independently. She
used a walker and required assistance for all of her daily
activities, including meals, grooming and personal hygiene.
Long’s adult children took turns staying in her home to provide
her with round-the-clock care.
Long developed post-traumatic stress disorder as a result of
the attack. This condition contributed to a stroke she suffered in
2018 which left her with a speech impediment. Long continued
to suffer from nightmares, anxiety and depression, despite taking
medication. In late 2020, about four years after the incident,
Long fell while using her walker and fractured her hip. She died
in May 2023.
Testimony of Expert Witnesses
Two retired officers from the Los Angeles Police
Department (LAPD) testified as expert witnesses for
respondents. Adam Bercovici spent part of his career as a canine

8
handler and kept his service dog after he promoted to another
assignment. When he decided to keep his service dog, Bercovici
received instructions from his supervisor and from the City
Attorney about “the realities of having a retired canine.”
Bercovici was warned that he needed to maintain the dog’s
obedience training, keep it kenneled when not in Bercovici’s
control, and remain in the “alpha” or control position in his
relationship with the dog. He opined that any canine handler
who was taking ownership of a retired police service dog should
be given the same warnings.
Bercovici acknowledged that POST, the organization that
establishes and publishes policies for law enforcement agencies in
California, does not publish standards governing the
maintenance of retired police service dogs. Lexipol, a risk
management company that writes policies and manuals for police
departments, also does not publish policies relating to canine
units or the maintenance of retired police service dogs.
Scott Allen DeFoe held numerous positions during his 20-
year tenure in the LAPD, including supervising a canine platoon.
He testified that neither the POST standards nor the Exeter
Police Department’s policies provide guidelines for retired service
dogs. In DeFoe’s opinion, Geiger did not have enough experience
as a canine handler to understand or appreciate how to handle a
retired canine. He opined that Geiger should have been given
warnings concerning the care, maintenance and medical care his
retired canine required. Geiger should also have been warned
that Neo could not be socialized with other pets, could not be
untrained and should be kept in a locked kennel when not under
Geiger’s direct control. In addition, Geiger should have been told

9
that the dog would always be a dangerous weapon that could act
on its own; Neo could not be turned into a pet.
Ron Cloward, a retired police officer who spent 28 years
with the Modesto police department, helped to write the POST
standards for active service canines. He acknowledged that
POST has no standards relating to training for canine handlers
or the care and maintenance of retired service dogs. Cloward
believed there was no industry standard requiring a working
service dog to be confined in a kennel, crate or patrol car except
when under the handler’s direct control.
Cloward opined that any competent canine handler would
also be competent to handle a retired service dog. The handler
would understand how to keep the dog under the handler’s direct
control. If the handler is not present, the dog can only be
controlled by being kept in a locked kennel. Many handlers,
however, allow retired service dogs to run in a fenced yard
without them being present. Cloward believed, “Each dog is
going to act differently.”
Cloward personally owns a retired service dog. He
sometimes allows the dog to run in his fenced yard without him
being present. He would also allow the dog to run in the fenced
yard while a family member or friend was present. His current
dog would be fine around a friend, but he has had other dogs that
would react more aggressively. Cloward testified that,
“Unfortunately, it is very common,” to have a retired service dog
unkenneled 100 percent of the time. He opined that retired
service dogs should be kept in a kennel when their handler is not
present.
Nhut Huynh, a long-time canine handler with the LAPD,
testified that an officer who keeps a retired service dog accepts

10
responsibility for the dog, which then becomes the officer’s pet.
He received no training or official warning before adopting his
own retired service dog. Huynh uses “a degree of caution” with
his retired service dog because, “we train certain things into
them.” He is cautious with the dog because the dog has been
trained to bite and could react to certain behaviors. Although his
retired service dog is allowed to be around family members, the
dog is not around friends or neighbors unless under Huynh’s
direct control.
Contentions
Appellants contend the judgment must be reversed because
they owed no duty to protect Long and Fear by warning Geiger
about the dangers of keeping Neo. Respondents amended their
complaints to name Bush and Inglehart as defendants in place of
Doe defendants. Appellants contend the trial court abused its
discretion when it denied their motion to amend their answer to
allege the affirmative defense that the Doe amendments were
untimely. Finally, appellants contend the awards of noneconomic
damages were excessive. Because we conclude appellants owed
no duty to warn Geiger, it is not necessary for us to reach the
latter two issues.
Discussion
At trial, respondents asserted a single cause of action for
negligence, alleging the City of Exeter was liable for their injuries
because its employees, Bush and Inglehart, failed to warn Geiger
that Neo would remain dangerous after being retired from active
service, should be kenneled when not under Geiger’s direct
control, and could not be treated as a pet. Appellants argued
their conduct in selling Neo to Geiger as he left the Department
was not negligent because, among other things, they had no duty

11
to warn Geiger about Neo or to protect Long and Fear from
Geiger’s negligent care of Neo.
“[A] public employee is liable for injury caused by his act or
omission to the same extent as a private person.” (Gov. Code,
§ 820, subd. (a).) A public entity is liable for injury caused by the
conduct of its employee within the scope of his or her employment
“if the act or omission would, apart from this section, have given
rise to a cause of action against that employee . . . .” (Id., § 815.2,
subd. (a).)
“To establish a cause of action for negligence, the plaintiff
must show that the ‘defendant had a duty to use due care, that he
breached that duty, and that the breach was the proximate or
legal cause of the resulting injury.’ [Citation.]” (Brown v. USA
Taekwondo (2021) 11 Cal.5th 204, 213 (Brown).) Whether a
specific defendant owes a duty of care to a specific plaintiff is a
question of law. (Ibid.)
“Under general negligence principles, of course, a person
ordinarily is obligated to exercise due care in his or her own
actions so as not to create an unreasonable risk of injury to
others, and this legal duty generally is owed to the class of
persons who it is reasonably foreseeable may be injured as the
result of the actor’s conduct.” (Lugtu v. California Highway
Patrol (2001) 26 Cal.4th 703, 716.) The general duty of due care
“includes a duty not to expose others to an unreasonable risk of
injury at the hands of third parties . . . .” (Id. at p. 717.)
Civil Code section 1714 “establishes the default rule that
each person has a duty ‘to exercise, in his or her activities,
reasonable care for the safety of others.’” (Brown, supra, 11
Cal.5th at p. 214, quoting Cabral v. Ralphs Grocery Co. (2011) 51
Cal.4th 764, 768 (Cabral).) This broad rule has its limits.

12
“Where the defendant has neither performed an act that
increases the risk of injury to the plaintiff nor sits in a relation to
the parties that creates an affirmative duty to protect the
plaintiff from harm, however, our cases have uniformly held the
defendant owes no legal duty to the plaintiff.” (Brown, at p. 216.)
As our Supreme Court clarified in Brown, the question
whether a defendant has a duty to protect a plaintiff from
injuries caused by a third party “is governed by a two-step
inquiry. First, the court must determine whether there exists a
special relationship between the parties or some other set of
circumstances giving rise to an affirmative duty to protect.
Second, if so, the court must consult the factors described in
Rowland [v. Christian (1968) 69 Cal.2d 108 (Rowland)] to
determine whether relevant policy considerations counsel
limiting that duty.” (Brown, supra, 11 Cal.5th at p. 209.)
“A duty to control, warn, or protect may be based on the
defendant’s relationship with ‘either the person whose conduct
needs to be controlled or [with] . . . the foreseeable victim of that
conduct.’” (Regents of University of California v. Superior Court
(2018) 4 Cal.5th 607, 619, quoting Tarasoff v. Regents of
University of California (1976) 17 Cal.3d 425, 435.) The
defendant’s duty to control a third party may arise where the
defendant has a special relationship with a foreseeably
dangerous third party “that entails an ability to control that
person’s conduct.” (Regents, supra, at p. 619.) A special
relationship between the defendant and a victim is one that
“gives the victim a right to expect protection” from the defendant.
(Ibid.) Examples of these relationships include parents and
children, colleges and students, employers and employees and

13
common carriers and passengers. (Brown, supra, 11 Cal.5th at p.
216.)
The conclusion that a defendant did not have a legal duty
toward a plaintiff “constitutes a determination by the court that
public policy concerns outweigh, for a particular category of cases,
the broad principle” established in Civil Code section 1714.
(Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1143 (Kesner).)
Rowland, supra, 69 Cal.2d at pp. 112-113, articulates the factors
we should consider in determining whether public policy concerns
support creating “an exception to the statutory presumption of
duty set forth in Civil Code section 1714.” (Modisette v. Apple
Inc. (2018) 30 Cal.App.5th 136, 144.) Those factors are: “the
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.” (Rowland, supra, at pp. 112-113; see also Brown,
supra, 11 Cal.5th at p. 217.) Because Civil Code section 1714
establishes a general duty to exercise ordinary care, we rely on
the Rowland factors “not to determine ‘whether a new duty
should be created, but whether an exception to Civil Code section
1714 . . . should be created.’” (Kesner, supra, at p. 1143.)
Respondents contend appellants had a special relationship
with Geiger because he was employed by the Department when
he and Inglehart signed the purchase agreement. The agreement
states that Geiger will purchase Neo “and take him with me

14
when I leave the department.” Geiger’s resignation, and his
ownership of Neo, took effect one week after he signed the
purchase agreement. At that point, appellants were no longer
Geiger’s employer and were no longer in a special relationship
with him.
Respondents contend appellants’ conduct created and
contributed to the risk of harm posed by Geiger’s negligent
handling of Neo. They contend Inglehart and Bush convinced
Geiger to purchase Neo by threatening to euthanize him after
Geiger left the Department. Even though they knew Geiger’s
training had not included any information relating to retired
service dogs, Bush and Inglehart failed to include any warnings
or instructions on maintaining or caring for Neo in the purchase
agreement. Their misrepresentations regarding Neo’s being
euthanized and their failure to warn Geiger increased the risk
that Neo would injure an innocent person.
But this argument is just a restatement of respondents’
central contention that appellants had a duty to warn Geiger
about the dangers of keeping Neo. The conduct respondents rely
on as the basis for imposing a duty is appellants’ failure to
instruct or warn Geiger about the danger posed by Neo. As we
have noted, however, a person generally has no duty to protect
others from a peril the person did not create, unless that person
has a special relationship with either the victim or the person
who created the harm. (Brown, supra, 11 Cal.5th at pp. 213-214;
see also Jane Doe No. 1 v. Uber Technologies, Inc. (2022) 79
Cal.App.5th 410, 424.) “A special relationship between the
defendant . . . and the dangerous third party is one that ‘entails
an ability to control [the third party’s] conduct.’” (Brown, supra,
at p. 216.) Here, appellants had no special relationship with

15
Geiger because he was not their employee and they had no ability
to control his conduct after he resigned from the Department.
Consequently, they had no duty to protect third parties from the
peril, and potentially catastrophic damage, created by Geiger’s
negligent treatment of Neo.
Consideration of the Rowland factors supports this result.
There can be no doubt that an unsupervised retired police service
dog may pose a foreseeable risk of serious harm to anyone
encountering it. Appellants were obviously aware of this risk
because they were trained canine handlers and were familiar
with the propensities of these dogs, and Neo in particular. But
foreseeability “‘alone is not sufficient to create an independent
tort duty. “‘. . . [The] existence [of a duty] depends upon the
foreseeability of the risk and a weighing of policy considerations
for and against imposition of liability.’”’” (Kesner, supra, 1
Cal.5th at pp. 1149-1150, quoting Erlich v. Menezes (1999) 21
Cal.4th 543, 552.) These policy considerations include 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 of care in this context, and the availability of
insurance for the risk involved. (Kesner, at p. 1150; Rowland,
supra, 69 Cal.2d at p. 113.)
While it is certain that respondents were grievously injured
by Neo, the connection between those injuries and appellants’
failure to provide more detailed warnings to Geiger is far from
certain. “In determining whether one has a duty to prevent
injury that is the result of third party conduct, the touchstone of
the analysis is the foreseeability of that intervening conduct.”

16
(Kesner, supra, 1 Cal.5th at p. 1148.) Here, the training
appellants provided to Geiger included the instruction to keep
Neo in his kennel unless he was under Geiger’s direct
supervision. Geiger was also instructed that Neo should not be
socialized with other pets. Appellants had no reason to foresee or
believe that Geiger would immediately abandon these warnings
and instructions after he left the Department and retired Neo
from active service. The connection between appellants’ failure to
warn Geiger and his negligent treatment of Neo is not close.
For similar reasons, we believe that recognizing a duty to
provide more robust warnings here is unlikely to further the
policy of preventing future harm. That policy is “ordinarily
served, in tort law, by imposing the costs of negligent conduct
upon those responsible.” (Cabral, supra, 51 Cal.4th at p. 781.)
The law generally assumes that “internalizing the cost of injuries
caused by a particular behavior will induce changes in that
behavior to make it safer.” (Kesner, supra, 1 Cal.5th at p. 1150.)
But the harmful behavior here is the handler’s conduct in
keeping a retired police service dog under conditions that are
contrary to the instructions the handler received during training.
Recognizing a duty on the part of supervisors and police
departments to provide more robust warnings to handlers to
continue following the instructions they have already received is
unlikely to increase public safety because those parties have little
or no control over the conditions under which retired police
service dogs are kept.
Appellants contend that recognizing a duty in this context
will impose a heavy burden on law enforcement and local
governments that will ultimately be borne by taxpayers. We
agree. If police departments are subject to liability for injuries

17
caused by retired police service dogs they no longer own and that
are kept under conditions they cannot control, the departments
will be less likely to form canine units in the first place.
Departments will also have an incentive to euthanize retiring
service dogs rather than allow them to live with their former
handlers.
The final Rowland factor, availability of insurance, is
neutral in this case. Many local governments are self insured,
but it is possible to obtain insurance against many potential
losses associated government activities. In either case, the costs
will be borne by taxpayers.
We conclude appellants had no legal duty to provide more
robust warnings under these circumstances because there was no
special relationship between appellants and Geiger sufficient to
enable appellants to control Geiger’s conduct. Even if appellants
had a special relationship with Geiger, the Rowland factors do
not support recognition of a duty to warn under these
circumstances. In the absence of a legal duty, appellants cannot
be held liable in negligence for causing or contributing to
respondents’ harm.
In reaching this conclusion, we wish to emphasize that we
do not doubt the ghastly nature of Neo’s rampage or the severity
of respondents’ injuries. But liability sounding in negligence is
not premised on the depth of sympathy we feel for victims or the
law’s goal to compensate them at the expense of tortfeasors. As
we have noted, the law does not permit us to impose on
appellants a duty to control a former employee’s conduct. There
was no reason to foresee his disastrous lack of judgment and
common sense. On these facts, we have no choice but to reverse
the judgment.

18
 New Counsel and a New Theory
Appellants obtained new counsel in March 2020, after this
matter had been pending for nearly three years. Three months
later, appellants filed their second motion for summary
judgment, contending respondents’ claims were time-barred
under the Government Claims Act because they did not “timely
and truthfully” identify Bush and Inglehart as the allegedly
negligent City employees. They further contended respondents’
claims were barred by the statute of limitations because they did
not timely substitute Bush and Inglehart for fictitiously named
defendants. Respondents contended these affirmative defenses
were waived because they were not pled in appellants’ answer.
While the motion for summary judgment was pending,
appellants filed a motion to amend their answer to allege the
omitted affirmative defenses. They also subpoenaed documents
from and the depositions of respondents’ counsel, seeking to
discover when respondents learned about the involvement of
Bush and Inglehart. Respondents’ counsel moved for protective
orders and to quash the subpoenas.
The trial court granted the protective orders and imposed
sanctions of $5,000 on appellants’ counsel. It concluded
appellants failed to show “extremely good cause” for deposing
opposing counsel. (Fireman’s Fund Ins. Co. v. Superior Court
(1977) 72 Cal.App.3d 786, 790 (Fireman’s Fund).) Appellants did
not, in the trial court’s view, demonstrate that counsel’s
testimony was crucial to the preparation of their affirmative
defenses or that they had no other means of obtaining the
information sought.
Appellants contend the trial court abused its discretion
when it imposed sanctions. We are not persuaded.

19
 Code of Civil Procedure section 2025.420, subdivision (h)
mandates the imposition of sanctions against a party or counsel
that unsuccessfully opposes a motion for protective order, unless
the trial court finds “that the one subject to the sanction acted
with substantial justification or that other circumstances make
the imposition of the sanction unjust.” We review the trial court’s
order imposing sanctions for abuse of discretion. (New
Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403,
1422.) A “substantial justification” is one that is “‘well grounded
in both law and fact.’” (Diepenbrock v. Brown (2012) 208
Cal.App.4th 743, 747.)
As the trial court noted, depositions of opposing counsel
“should be severely restricted, and permitted only upon a
showing of extremely good cause . . . .” (Fireman’s Fund, supra,
72 Cal.App.3d at p. 790.) Such depositions should be permitted
only when the party seeking discovery shows, “‘that (1) no other
means exist to obtain the information than to depose opposing
counsel, [citation]; (2) the information sought is relevant and
nonprivileged; and (3) the information is crucial to the
preparation of the case.’ [Citation.]” (Spectra-Physics, Inc. v.
Superior Court (1988) 198 Cal.App.3d 1487, 1494-1945.) Here,
the trial court imposed sanctions because it concluded appellants
had not carried their burden to show they had no other means to
obtain the information sought or that the information was
“crucial” to their case. These findings were not an abuse of
discretion.
The trial court was well within its broad discretion when it
concluded that information relating to the timeliness of
respondents’ claims was not crucial to appellants’ case.
Appellants did not plead any affirmative defenses relating to the

20
timeliness of respondents’ claims and never explained their
extreme delay in seeking leave to do so. (P&D Consultants, Inc.
v. City of Carlsbad (2010) 190 Cal.App.4th 1332, 1345 [leave to
amend properly denied based on unwarranted delay]; Hulsey v.
Koehler (1990) 218 Cal.App.3d 1150, 1159 [discretion to reject
proposed amendment to answer “‘when offered after long
unexplained delay or on the eve of trial’”].) Without leave to
amend to plead these affirmative defenses, information relating
to the timeliness of respondents’ claims was not “crucial” to
appellants. These defenses were forfeited when appellants failed
to properly assert them in a demurrer or plead them in an
answer. (Save the Agoura Cornell Knoll v. City of Agoura Hills
(2020) 46 Cal.App.5th 665, 681; Gov. Code, § 911.)
Similarly, appellants failed to show that subpoenaing
documents from opposing counsel and taking their depositions
were the only means appellants had of discovering when
plaintiffs learned the identities of Bush and Inglehart. Public
documents, were available to identify these city employees.
Other documents could have been obtained from third parties
such as the District Attorney’s office and Animal Services.
We conclude the trial court did not abuse its discretion
when it imposed sanctions on appellants’ counsel for opposing the
motions without substantial justification. (Code Civ. Proc, §
2025.420, subd. (h).)
Conclusion
The December 11, 2020 order granting sanctions is
affirmed. In all other respects, the judgment is reversed.
Appellants shall recover their costs on appeal.

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 NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P. J.

CODY, J.

22
 Barry T. LaBarbera, Judge

Superior Court County of San Luis Obispo

______________________________

Suzanne M. Nicholson and Chester E. Walls, for
Defendants and Appellants.
Lee H. Roistacher and Dean Gazzo Roistacher, for Amicus
Curiae on behalf of Appellants.
Steven B. Stevens; Frederick Law Firm and Jacqueline
Frederick; Cheong & Denove and John F. Denove, Alicia S.
Curran, for Plaintiffs and Respondents.