ESTATE OF KRISTOFER FERREYRA, BY AND THROUGH HIS SUCCESSOR IN INTEREST, CHRISTIAN FERREYRA, et al. vs COUNTY OF ALAMEDA’S DEPARTMENT OF CHILDREN AND FAMILY SERVICES, A PUBLIC ENTITY, et al.

25CV138211: ESTATE OF KRISTOFER FERREYRA, BY AND THROUGH HIS SUCCESSOR IN INTEREST, CHRISTIAN FERREYRA, et al. vs COUNTY OF ALAMEDA'S DEPARTMENT OF CHILDREN AND FAMILY SERVICES, A PUBLIC ENTITY, et al. 09/10/2026 Hearing on Demurrer to Plaintiff's Second Amended Complaint; filed by Fremont Police Department, a public entity (Defendant) CRS# 657763421426 in Department 24

Tentative Ruling - 09/09/2026 Rebekah Evenson

The Demurrer filed by Fremont Police Department, a public entity on 07/21/2026 is Sustained without Leave to Amend.

The Demurrer to Plaintiffs’ Second Amended Complaint by Defendant City of Fremont (“the City) is SUSTAINED, WITHOUT LEAVE TO AMEND.

This case arises from the death by Fentanyl overdose of decedent Kristofer Ferreyra on October 18, 2023, shortly before decedent’s second birthday. The overdose occurred while decedent was in the custody of his stepfather Frank Avina.

Plaintiffs again allege, on information and belief, that some unidentified employee(s) or agent(s) of the City’s police department participated in police raids at Avina’s residence on December 12, 2022 and again on June 12, 2023. During those raids, the City employee(s) learned Avina was in possession of, and using, illegal drugs in the presence of decedent. Plaintiffs allege the City employee(s) had a “mandatory duty” to remove decedent from Avina’s residence. (Second Amended Complaint, paragraphs 30-31.)

The First Amended Complaint alleges a single cause of action, for negligence. Second Amended Complaint paragraph 47 alleges 14 mandatory duties that the City employee(s) allegedly breached by failing to remove decedent from Avina’s residence.

Except as otherwise provided by statute, a public entity (like City) is not liable for an injury. (See Government Code § 815(a). A public entity may be vicariously liable for an injury caused by the act or omission of the public entity’s employee within the scope of employment, if the act or omission would give rise to a cause of action against the employee. (Government Code § 815.2.)

Generally, a person who has not created a peril is not liable in tort for failure to take affirmative action to protect another unless there is some relationship between them that gives rise to a duty to act. (See, e.g., Regents of the University of California v. Superior Court (2018) 4 Cal.5th 607, 619.) Plaintiffs do not allege facts suggesting that there was a special relationship between decedent and the unidentified City employee(s) giving rise to a duty to undertake any of the “specific obligations” referenced in Second Amended Complaint, paragraph 47(B)-(N).

None of those “specific obligations” are based on any statutory duty, and virtually all of them appear to be based on actions that involve the exercise of discretion and would be immune from liability. (Government Code § 820.2; see also Christina C. v. County of Orange (2013) 220 Cal.App.4th 25CV138211: ESTATE OF KRISTOFER FERREYRA, BY AND THROUGH HIS SUCCESSOR IN INTEREST, CHRISTIAN FERREYRA, et al. vs COUNTY OF ALAMEDA'S DEPARTMENT OF CHILDREN AND FAMILY SERVICES, A PUBLIC ENTITY, et al. 09/10/2026 Hearing on Demurrer to Plaintiff's Second Amended Complaint; filed by Fremont Police Department, a public entity (Defendant) CRS# 657763421426 in Department 24 1371, 1381, holding that the decision whether or not to remove a child from a parent’s care involves discretionary issues and is immune from liability under § 820.2.)

Plaintiffs’ allegation that unidentified City employees had a special relationship with decedent solely because they purportedly had the legal authority to arrest Avina or decedent’s mother, or to remove decedent from his home after reports of child abuse (see Second Amended Complaint paragraph 46), is not supported by any applicable case law. To the contrary, police officers are not in a special relationship with persons in their jurisdiction even when the officers are aware of the risk to a specific potential victim. (See Regents, supra, 4 Cal.5th at 621 and the cases cited therein.)

The Court will assume, for the purposes of this demurrer, that an alleged violation of the Child Abuse and Neglect Reporting Act (“CANRA”, Penal Code § 11164 et seq.), alleged in Second Amended Complaint paragraph 47(A), may provide a statutory basis for a negligence claim. But Plaintiffs have yet again failed to allege facts demonstrating that any City employee(s) failed to comply with CANRA. Instead, Plaintiffs allege that unidentified Does 1-10 (which may include employees of either the City or of the County of Alameda) violated CANRA because they were aware of drug use in decedent’s home but allowed decedent to stay in the home. (See Second Amended Complaint, paragraph 48.)

CANRA imposes reporting obligations on mandated reporters who know or reasonably suspect a child has been a victim of abuse or neglect; it does not require that the child be removed from the child’s home. Plaintiffs fail to allege facts demonstrating that any City employee or agent violated CANRA, or how any purported violation of CANRA caused or contributed to decedent’s death.

Plaintiffs have already been given two opportunities to amend their pleading. Plaintiffs fail to demonstrate how they would be able to cure the defects identified in this order (and in the two orders on the City’s prior two demurrers.) Plaintiffs’ request for further leave to amend is therefore denied.

The Court will prepare the order. Defendant City of Fremont is DISMISSED from this case, with prejudice.

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SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

25CV138211: ESTATE OF KRISTOFER FERREYRA, BY AND THROUGH HIS SUCCESSOR IN INTEREST, CHRISTIAN FERREYRA, et al. vs COUNTY OF ALAMEDA'S DEPARTMENT OF CHILDREN AND FAMILY SERVICES, A PUBLIC ENTITY, et al. 09/10/2026 Hearing on Demurrer to Plaintiff's Second Amended Complaint; filed by Fremont Police Department, a public entity (Defendant) CRS# 657763421426 in Department 24

Meeting ID: 160 6661 8377