APPEAL from a judgment of the Superior Court of San Diego County, Patricia A. Y. Cowett, Judge. Affirmed. (Super. Ct. No. GIC969962).
The opinion of the court was delivered by: Aaron, J.
CERTIFIED FOR PUBLICATION
Paula Brown, an innocent bystander, was injured by fragments from at least one stray bullet fired by a police officer. At the time shots were fired, law enforcement officers were attempting to apprehend a murder suspect who had just driven up onto the curb at a strip mall, heading in the direction of two police officers. Several officers fired at the suspect, believing that the life of at least one of the officers was in imminent danger. Paula and her son, Jonathan Brown,*fn1 who was with Paula when she was shot, sued a number of the officers who were on the scene, including respondent El Cajon Police Officer Robert Ransweiler. We conclude that under the undisputed facts presented on summary judgment, Ransweiler's shooting at the suspect was objectively reasonable as a matter of law, and that he therefore cannot be held liable for the Browns' injuries.
II. FACTUAL AND PROCEDURAL BACKGROUND
1. The Browns' Experience
On August 5, 2004, Paula and Jonathan were in the lobby of their dentist's office, which was located in a strip mall in Spring Valley. In addition to the dental office, the strip mall housed a Subway restaurant, a plumbing store, and a charter school, all of which were open for business at the time of the incident. Jonathan heard shots being fired, and then heard his mother yell that she had been hit. Glass from a broken window was flying through the lobby of the dental office. Jonathan turned his back to the window and grabbed his mother. At least one bullet went through Paula's breasts. It is possible that Paula was hit by more than one bullet.
2. The VCTF and the shooting of Jorge Ojeda
On August 5, 2004, members of the Violent Crimes Task Force (VCTF) were conducting surveillance on Thomas Miller, a suspected drug dealer, because they believed that Miller was going to meet with Jorge Ojeda, who was a suspect in a murder investigation. The VCTF is a multi-agency task force, of which officers Sean Torphy, Fred James, and Stephen Kinkaide were members.
After learning that Miller was a "person of interest" to the El Cajon Police Department, San Diego Police Department Detective and VCTF leader, Tim Faubel, informed Ransweiler that the VCTF was going to be watching Miller, and asked Ransweiler to assist in the surveillance. Faubel informed Ransweiler that Miller was at a Spring Valley strip mall.
Ransweiler and Ransweiler's partner, Officer Christopher Baldwin, proceeded to the strip mall to assist in the surveillance effort. Ransweiler and Baldwin were not members of the VCTF.*fn2 After Ransweiler and Baldwin arrived at the strip mall, they conducted surveillance of Miller from their vehicle. Faubel and other VCTF members were also at the strip mall, watching Miller.
A man driving a Jeep pulled into the strip mall parking lot and parked next to Miller. Over the police radio, a member of the VCTF identified the man driving the Jeep as Ojeda. Ojeda got out of his Jeep and began talking with Miller. Ojeda spoke with Miller for 10 to 15 minutes.
Faubel contacted the San Diego Police Department and requested additional assistance in arresting Ojeda. Faubel devised a tactical plan to apprehend Ojeda. He ordered "all units" to move in to arrest Ojeda once Ojeda got back into his parked vehicle. Faubel planned to have marked police cars "come in behind the Jeep to block Ojeda's potential escape."
Once Ojeda returned to the Jeep, Faubel ordered all personnel, which included Ransweiler and Baldwin, to converge on Ojeda and arrest him. VCTF members in marked police cars used their vehicles to block Ojeda's Jeep from behind. Other VCTF members, as well as Ransweiler and Baldwin, ran toward Ojeda and ordered him to get out of his vehicle. Ransweiler and Baldwin approached Ojeda from the east on the covered sidewalk that abutted the strip mall. All of the officers were wearing raid gear as they approached Ojeda.
Ojeda refused to turn off the ignition to his vehicle or get out of the vehicle. Instead, he drove the Jeep up over the curb and onto the sidewalk. Ojeda then "gunned" the engine, turned right, and drove on the sidewalk, toward Ransweiler and Baldwin. Ojeda began to drive at a high rate of speed directly at Ransweiler and Baldwin. As Ojeda accelerated toward the two officers, Ransweiler dove to his left, between two parked cars. Baldwin could not make a similar move to get out of the way of the oncoming vehicle due to his position in relation to the parked cars.
As the Jeep was coming straight at him, Baldwin shot his gun in the direction of the Jeep, aiming for the windshield of the vehicle. Baldwin's gunshots hit the Jeep's windshield. After Baldwin fired at the Jeep, the Jeep veered to the right and struck Paula's late-model SUV, which was parked in the parking lot. As Baldwin was backing up in an effort to get away from the Jeep, he tripped and fell to the ground.*fn3
A number of other officers saw Baldwin fall, and feared that Ojeda was about to run him over. Officers Ransweiler, Kinkaide, James, and Torphy all fired rounds at Ojeda. Ransweiler and Baldwin were using .40-caliber handguns, while Kinkaide, James, and Torphy were using nine-millimeter handguns.
At some point Ransweiler had moved from his position between the two parked cars. He was between Ojeda's Jeep and the storefronts of the strip mall, facing away from the dental office and toward the driver's side door of Ojeda's vehicle, when he fired at Ojeda.*fn4 Ransweiler was approximately three feet from Ojeda when he fired at Ojeda.
Ojeda was struck by several rounds fired by Ransweiler, and was pronounced dead at the scene.
Police officers fired a total of 33 or 34 rounds that day. Officer Ransweiler fired five shots, Officer Baldwin fired 14 shots, Officer Kinkaide fired five shots, Officer James fired five, and possibly six, shots, and Officer Torphy fired four shots. Criminalist Lance Martini determined, to a reasonable degree of scientific probability, that Paula was hit by a "projectile core" discharged from Officer Baldwin's firearm. Paula's injuries were consistent with being struck by a fragment or ricochet, not by a stabilized projectile (a bullet). Martini could not rule out the possibility that Paula had been struck by multiple bullet fragments, and could not say to a reasonable degree of scientific certainty that Paula was not struck by a bullet fragment fired from a nine-millimeter weapon.
On July 11, 2006, Paula and Jonathan filed this action against Baldwin, Ransweiler, and other officers,*fn5 alleging causes of action for negligence and for assault and battery.*fn6
After answering the complaint, Baldwin and Ransweiler filed a joint motion for summary judgment, or, in the alternative, summary adjudication. The officers argued that they could not be found liable for their conduct in the performance of their police duties, and that their conduct was not negligent, as a matter of law. The officers further argued that they could not be liable for assault and/or battery because their shooting of ...