Superior Court of Alameda County, No. RG03127404, Steven A. Brick, Judge.
The opinion of the court was delivered by: Pollak, J.
CERTIFIED FOR PUBLICATION
(Alameda County Super. Ct. No. RG03127404)
The Department of the California Highway Patrol (CHP) appeals from a judgment declaring invalid and enjoining enforcement of certain provisions of its policy for recovering emergency response costs from persons causing incidents while driving under the influence of alcohol or drugs. We conclude that the CHP's policy is not inconsistent with the language or purpose of the authorizing legislation, Government Code section 53150 et seq.*fn1 and, therefore, shall reverse the judgment.
In this court's decision reviewing an earlier order in this litigation, we summarized: "Sections 53150 through 53159 establish the statutory framework allowing public agencies to recover emergency response expenses from persons who intentionally or negligently cause incidents requiring an emergency response. Section 53150 defines the circumstances under which a person driving a motor vehicle may be liable for the expense of an emergency response, and section 53156, subdivision (a) defines 'expense of an emergency response.' " (California Highway Patrol v. Superior Court (2006) 135 Cal.App.4th 488, 497 (Allende I)).*fn2
This action began in November 2003 when Esteban Allende and Michelle Grundhoeffer filed a complaint alleging that under the CHP's emergency response cost billing policy, drivers were being charged for costs not authorized by the statute. Following the entry of an order summarily adjudicating issues in favor of the two plaintiffs, this court issued a writ of mandate reversing that order and deciding primarily two issues. First, addressing the meaning of an "incident" as used but not defined in the statute, we concluded that "an 'incident' is any event that proximately causes an emergency response by a public agency. Although an accident is not necessary to trigger the right to reimbursement, an ordinary arrest, even for driving under the influence of alcohol or drugs, is not sufficient." (Allende I, supra, 135 Cal.App.4th at p. 502.) Secondly, we concluded that "the trial court erred when it excluded from the 'expense of an emergency response' in section 53156(a) the costs of activities related to enforcement of the DUI laws. An 'appropriate emergency response' to an incident includes the cost of providing police services at the scene, including, among other possible items, salary costs related to ensuring public safety at the scene of the incident, obtaining appropriate medical assistance, removing vehicles, investigating the cause of the incident, conducting field sobriety tests, and if appropriate arresting and detaining the subject. [¶] Reimbursement may also be obtained for time spent away from the scene by responding public agency personnel, provided the response is reasonable and arises from the incident." (Allende I, supra, at pp. 508-509.) However, "[t]time spent by responding personnel on activities that are not customarily required as a consequence of investigating and mitigating a DUI incident is not eligible for reimbursement. Thus, salary costs incurred after a subject is booked and required reports prepared are not recoverable as expenses of an emergency response." (Id. at p. 509.)
Following issuance of the opinion in Allende I, the CHP modified its policy defining the circumstances under which reimbursement of emergency response costs would be demanded. When the original complaint was filed, the CHP policy provided that cost recovery would be sought only following the arrest of a driver under the influence of alcohol or drugs who had caused an accident. Shortly after the decision in Allende I, the Highway Patrol Manual (HPM) was revised to, inter alia, delete the limitation of cost recovery to situations involving an accident (HPM § 11.1, ch. 20, § 3(b)(3) (Nov. 2002 rev.)) and to insert the requirement that "[t]he arrested party was determined by the investigating officer to have caused a response to an incident." (HPM § 11.1, ch. 20, § 3(b)(2) (Aug. 2006 rev.))*fn3 A "Management Information Systems Communications Network" (COMNET) message was distributed to all commands on April 20, 2006, clarifying that henceforth "the department shall seek cost recovery for every DUI related emergency response resulting in an arrest." The message gave three "examples of DUI incidents resulting in arrest in which the department would seek cost recovery: [¶] response to a party slumped over the wheel; [¶] response to a report of a possible 23152 V.C. driver; [and] [¶] response to a disabled vehicle when the arrest is in accordance with 40300.5(b) V.C." The directive also provided that cost recovery should not be sought "when an incident is encountered during normal patrol duties." On December 7, 2006, "to clarify policy" the department distributed another COMNET directive to all commands, stating that the CHP "will seek cost recovery for any incident in which an officer is dispatched to a call resulting in a DUI arrest of a driver with a supporting blood alcohol concentration."*fn4
In their second amended complaint, filed after remand, plaintiffs allege that the revised CHP policy defines an "incident" justifying cost recovery more broadly than permitted by the statute as interpreted in our prior opinion. The amended complaint adds a new plaintiff, Steven Kurashima, who was billed under the CHP's amended policy and who sought to represent a subclass of persons billed "for the costs of their DUI arrests in cases where there has been no emergency response to an 'incident.' " The amended complaint also challenges the department's policy in a second respect, alleging that the CHP improperly calculates an officer's salary for the purpose of cost recovery under section 53156 by including the cost of benefits in addition to the wages paid directly to the officer and by overstating the number of hours allocated to the response to an incident.
In granting a subsequent motion for summary adjudication by Kurashima and Grundhoeffer, the trial court held that the CHP's amended policy is not consistent with the definition of an "incident" under section 51350 as interpreted in Allende I. The court explained that the CHP's policy authorizes billing for all incidents in which an officer was dispatched to the scene rather than only those incidents that resulted in an emergency response. The court relied on "undisputed evidence . . . that not all dispatches are emergency dispatches that call for an 'appropriate emergency response.' " With respect to Kurashima's individual claim the court stated, "The undisputed facts are that the responding officer was dispatched because CHP received a call from a private citizen about a disabled vehicle at the side of the road. Under the CHP's dispatch system, a vehicle off the side of the road would be a Priority 3 dispatch rating and the responding officer would respond in the normal flow of traffic and without lights or siren. The record suggests that the CHP dispatched the responding officer with a Priority 3 dispatch rating and that the responding officer responded in the normal flow of traffic and without lights or siren. Nothing suggests that the responding officer actually responded on an emergency basis. The law does not suggest that the CHP can respond to an incident on an non-emergency basis and then, on arrival, deem the incident to require an emergency response." (Fns. omitted.)
In a subsequent order, the court reiterated that "[t]he undisputed evidence shows that the CHP's Incident Policy is overbroad in that it permits assessment of a charge under [section] 53150 even when a dispatch was not triggered by an appropriate emergency response." In the final judgment entered on November 19, 2010, the court incorporated its prior ruling on the declaratory relief claims as follows: "[T]he court declares that the CHP violated the law in the following respects: (a) it treated as 'incidents' within the meaning of section 53150 events when officers were dispatched to a location regardless of whether the officer was dispatched on an emergency basis and without regard to whether the event included a collision or other 'incident' within the meaning of the statute, leaving determination thereof to the responding officer . . . ." The court entered a permanent injunction prohibiting the CHP "from sending notice of any emergency response expenses it intends to collect pursuant to section 53150 except in the following limited circumstances: [¶] . . . [¶] (c) A collision has occurred as a result of the negligent operation of a motor vehicle caused by the driver being under the influence of an alcoholic beverage or drug; provided that defendant CHP may apply for a modification of this judgment to include other qualifying incidents after demonstrating to the court a reasonable basis for distinguishing incidents, such as collisions, from non-incidents, such as simply arresting a driver on DUI charges."
The issues concerning the proper calculation of an officer's salary were decided based on stipulated facts. According to the stipulation, the CHP calculates the standard hourly rate for a traffic officer each year by taking the monetary wages paid to a mid-step traffic officer, adding to that amount the cost of benefits, including retirement contributions, health insurance, workers compensation and Medicare, and dividing that amount by an officer's total actual working time, which includes the hours an average officer works after subtracting paid time off for holidays, vacations and other leave.
In ruling on the motion for summary adjudication, the trial court rejected this approach. The court concluded that "[t]he term 'salaries' is limited to monetary compensation and does not include the cost of benefits." The court explained, "As an exception to the general rule that limits recoverable costs to 'those costs directly arising because of the response to the particular incident,' the term salaries should be read narrowly so as not to swallow the rule." The court also held that the hourly rate should be calculated based on a standard work week without regard to whether employees are actually working or are on some form of paid time off.
In the final judgment the court incorporated its prior ruling on this issue as follows: "[T]he court declares that the CHP violated the law in the following respects: . . . . (b) it calculated 'salary' for purposes of . . . section 53156(a) improperly by (1) including benefits earned by responding officers providing an 'appropriate emergency response' in addition to the value of the time reasonably spent responding; and (2) calculating the hourly rate to be charged by dividing the total annual salary plus benefits of a mid-step CHP officer by the average number of hours worked per fiscal year. The result of the CHP policy was to wrongly assess incorrect charges . . . ." The court's permanent injunction prohibits the CHP from sending notice of any emergency response expense it intends to collect unless "(a) The salary of responding officers is correctly calculated in accordance with the judgment by calculating the appropriate hourly rate using a fraction with the numerator corresponding to the 'salary of responding officers' for the hours worked (i.e., 'not including . . . compensation for hours paid but not worked') divided by the denominator, corresponding to the 'mid-step officer's average hours actually worked' as follows: [¶] 1. The numerator 'salary of responding officers' is the mid-step officer's salary (which does not include overtime pay and the cost of benefits) less all compensation for hours ...