Riley v. Alameda County Sherif's Office

          Superior Court of Alameda County, No. RG15791353, Hon. Ioana Petrou, Judge.

          Timothy P. Rumberger and Law Offices of Timothy P. Rumberger, for Plaintiff and Appellant.

          Haapala, Thompson & Abern, Rebecca S. Widen, Jody Struck, and Christopher M. Wolcott, for Defendant and Respondent.

          SIMONS, J.

         Vehicle Code section 17004.7^[1] provides a public agency immunity from liability for collisions involving vehicles being pursued by peace officers if the agency “adopts and promulgates a written policy on, and provides regular and periodic training on an annual basis for, vehicular pursuits....” (§ 17004.7, subd. (b)(1); see also Ramirez v. City of Gardena (2018) 5 Cal.5th 995, 997 (Ramirez).) Plaintiff and appellant William Riley (Riley) was injured when a car being pursued by officers employed by defendant and respondent Alameda County Sheriff's Office (Sheriff) ran a red light and collided with Riley's motorcycle. The trial court granted the Sheriff summary judgment under section 17004.7. On appeal, Riley contends the court erred, arguing the Sheriff's policy, promulgation of the policy, and training did not comply with section 17004.7. We affirm.

         Background

         Because our decision does not turn on the circumstances of the underlying incident, we provide only a brief summary. On October 29, 2014, Riley was riding a motorcycle through a green light on High Street at International Boulevard in Oakland, when he was struck by a car fleeing from Sheriff's deputies in marked cars.^[2] The suspects in the car that struck Riley were suspected of theft and the car had been reported as stolen. Riley traveled on the hood of the car for some distance, until the car crashed. Riley suffered serious bodily injury.

         In October 2015, Riley filed suit against the Sheriff, individual deputies, and the suspects and other persons associated with them. In February 2016, Riley filed his Second Amended (and operative) Complaint (Complaint). In June 2016, defaults were entered against the suspects and others associated with them. In July 2016, the trial court sustained the Sheriff's demurrer without leave to amend as to three of the causes of action in the Complaint. The court also dismissed the individual officers from the action.

         In April 2018, Riley filed a motion for summary adjudication, and, in May, the Sheriff filed a motion for summary judgment or adjudication. In December, the trial court granted the Sheriff's motion for summary judgment and denied Riley's motion, concluding the Sheriff is entitled to immunity under section 17004.7.

         The trial court entered judgment in favor of the Sheriff and this appeal followed.

         Discussion

         Riley contends the trial court erred in granting summary judgment because the Sheriff's pursuit policy, promulgation of the policy, and training did not comply with section 17004.7. We reject his contentions.

         I. Summary of Section 17004.7

         “ ‘Except as otherwise provided by statute,' a ‘public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.' (Gov. Code, § 815, subd. (a).) [S]ection 17001 creates a statutory exception to public entities' general tort immunity: ‘A public entity is liable for death or injury to person or property proximately caused by a negligent or wrongful act or omission in the operation of any motor vehicle by an employee of the public entity acting within the scope of his employment.' ‘Section 17004.7 in turn limits the liability that... section 17001 otherwise permits by affording immunity to public agencies that adopt and implement appropriate vehicle pursuit policies.' ” (Ramirez, supra, 5 Cal.5th at p. 999.)

         Subdivision (b) of section 17004.7 provides: “(1) A public agency employing peace officers that adopts and promulgates a written policy on, and provides regular and periodic training on an annual basis for, vehicular pursuits complying with subdivisions (c) and (d) is immune from liability for civil damages for personal injury to or death of any person or damage to property resulting from the collision of a vehicle being operated by an actual or suspected violator of the law who is being, has been, or believes he or she is being or has been, pursued in a motor vehicle by a peace officer employed by the public entity. [¶] (2) Promulgation of the written policy under paragraph (1) shall include, but is not limited to, a requirement that all peace officers of the public agency certify in writing that they have received, read, and understand the policy. The failure of an individual officer to sign a certification shall not be used to impose liability on an individual officer or a public entity.”

         Subdivision (c) of section 17004.7 contains “detailed requirements” for pursuit policies. (Ramirez, supra, 5 Cal.5th at p. 999, fn. 1.) The section specifies twelve “minimum standards” that “[a] policy for the safe conduct of motor vehicle pursuits by peace officers shall meet....” (§ 17004.7, subd. (c).) As relevant in the present case, minimum standard number seven is “Determine the factors to be considered by a peace officer and supervisor in determining speeds throughout a pursuit. Evaluation shall take into consideration public safety, peace officer safety, and safety of the occupants in a fleeing vehicle.” (Ibid.) And minimum standard number eight is “Determine the role of air support, where available. Air support shall include coordinating the activities of resources on the ground, reporting on the progress of a pursuit, and providing peace officers and supervisors with information to evaluate whether or not to continue the pursuit.”

         Subdivision (b) of section 17004.7 requires a public agency to provide “regular and periodic training” regarding its pursuit policy, and section 17004.7, subdivision (d), defines that as “annual training that shall include, at a minimum, coverage of each of the subjects and elements set forth in subdivision (c) and that shall comply, at a minimum, with the training guidelines established pursuant to Section 13519.8 of the Penal Code.” Penal Code section 13519.8 provides that the Commission on Peace Officer Standards and Training (POST Commission) “shall implement a course or courses of instruction for the regular and periodic training of law enforcement officers in the handling of high-speed vehicle pursuits.” (See also Pen. Code, § 13500, subd. (a); Ramirez, supra, 5 Cal.5th at p. 999, fn. 1.) Penal Code section 13519.8, subdivision (b), provides that “The course or courses of basic training for law enforcement officers and the guidelines shall include adequate consideration of” 15 specific subjects, including “speed limits.”^[3]

         Penal Code section 13519.8, in addition to providing for development of the training guidelines referenced in Section 17004.7, subd. (d), also provides for the development of vehicle pursuit guidelines (Guidelines). Thus, section 13519.8, subdivision (a)(1) of the Penal Code states, “The commission shall implement a course or courses of instruction for the regular and periodic training of law enforcement officers in the handling of high-speed vehicle pursuits and shall also develop uniform, minimum guidelines for adoption and promulgation by California law enforcement agencies for response to high-speed vehicle pursuits. The guidelines and course of instruction shall stress the importance of vehicle safety and protecting the public at all times, include a regular assessment of law enforcement's vehicle pursuit policies, practices, and training, and recognize the need to balance the known offense and the need for immediate capture against the risks to officers and other citizens of a high-speed pursuit. These guidelines shall be a resource for each agency executive to use in the creation of a specific pursuit policy that the agency is encouraged to adopt and promulgate, and that reflects the needs of the agency, the jurisdiction it serves, and the law.” The POST Commission's Guidelines are available online; they were published in 1995 and most recently revised in February 2007.^[4] Section 17004.7, subdivision (e) references the Guidelines, stating “The requirements in subdivision (c) are consistent with the 1995 California Law Enforcement Vehicle Pursuit Guidelines developed by the Commission on Peace Officer Standards and Training pursuant to Section 13519.8 of the Penal Code that will assist agencies in the development of their pursuit policies.”

         “The requirement of adoption of a written policy [that] complies with section 17004.7, subdivision (c) obviously was intended to provide entity control over the pursuing officers during a pursuit. [Citation.] The requirement of entity control, we believe, in turn was intended to reduce the number and frequency of unreasonably dangerous pursuits and the resulting accidents.” (Payne v. City of Perris (1993) 12 Cal.App.4th 1738, 1747 (Payne); see also McGee v. City of Laguna Beach (1997) 56 Cal.App.4th 537, 542 (McGee) [“The immunity is designed to encourage police departments to adopt express safe pursuit guidelines, thereby reducing the frequency of accidents.”].)

         In 2005, section 17004.7 was amended to its current form, partially in response to a court of appeal decision that observed that the statute granted “a ‘get out of liability free card' to public entities that go through the formality of adopting such a policy. There is no requirement the public entity implement the policy through training or other means. Simply adopting the policy is sufficient under the current state of the law.” (Nguyen v. City of Westminster (2002) 103 Cal.App.4th 1161, 1168 (Nguyen); see also Ramirez, supra, 5 Cal.5th at pp. 999-1000; Stats. 2005, ch. 485, § 11, pp. 3825-3827 [Sen. Bill 719 (2005-2006 Reg. Sess.)]; Sen. Comm. on Judiciary, Analysis of Sen. Bill 719, as amended May 5, 2005, at p. 7 [discussing Nguyen]; Sen. Comm. on Pub. Safety, Analysis of Sen. Bill 719, as amended May 19, 2005, at p. K [same].) In Ramirez, at page 1000, the California Supreme Court observed that “The current section 17004.7 does contain requirements that the public entity implement the policy through training and other means to ensure it is not a mere formality.” The 2005 amendments also substantially expanded the list of minimum standards in Section 17004.7, subdivision (c). (Stats. 2005, ch. 485, § 11, pp. 3825-3827.)

         II. Standard of Review

         A trial court must grant a summary judgment motion when the evidence shows that there is no triable issue of material fact and that the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) We apply a de novo standard in reviewing a grant of summary judgment. (Aguilar, at p. 860.) In making this determination, we view the evidence in the light most favorable to the nonmoving party. (Id. at p. 843.)

         A defendant moving for summary judgment bears the burden of producing evidence showing that one or more elements of the plaintiff's cause of action cannot be established or, as in the instant case, that there is a complete defense to the cause of action. (Code Civ. Proc., § 437c, subd. (o); Aguilar, supra, 25 Cal.4th at pp. 850-851, 854-855.) Once this burden is met, the burden shifts to the plaintiff to produce specific facts showing a triable issue as to the cause of action or defense. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, at p. 850.) Section 17004.7, subdivision (f), provides that “[a] determination of whether a public agency has complied with subdivisions (c) and (d) is a question of law for the court.”

         Where the issues on appeal turn on statutory interpretation, the applicable principles are clear. “ ‘[O]ur fundamental task... is to determine the Legislature's intent so as to effectuate the law's purpose.' [Citation.] The well-established rules for performing this task require us to begin by examining the statutory language, giving it a plain and commonsense meaning. [Citation.] We do not, however, consider the statutory language in isolation; rather, we look to the statute's entire substance in order to determine its scope and purposes. [Citation.] That is, we construe the words in question in context, keeping in mind the statute's nature and obvious purposes. [Citation] We must harmonize the statute's various parts by considering it in the context of the statutory framework as a whole. [Citation.] If the statutory language is unambiguous, then its plain meaning controls. If, however, the language supports more than one reasonable construction, then we may look to extrinsic aids, including the ostensible objects to be achieved and the legislative history.” (Los Angeles County Metropolitan Transportation Authority v. Alameda Produce Market, LLC (2011) 52 Cal.4th 1100, 1106-1107 (Alameda Produce).)

         III. The Sheriff's Pursuit Policy

         In April 2014 the Sheriff adopted a revised version of General Order 5.01, the Sheriff's policy on vehicle pursuits (Policy). The Policy is ten single-spaced pages in length. The stated “PURPOSE” of the Policy is “[t]o establish guidelines for sworn members during vehicle pursuits.” The stated overall “POLICY” statement is as follows: “It shall be the policy of this agency to apprehend law violators at every opportunity. Deputies engaged in vehicle pursuits of actual or suspected violators shall proceed in a manner consistent with the safety and well being of all persons. It is recognized that all pursuit situations are different and actions taken during any pursuit may reasonably and necessarily vary. When circumstances are such that the safety of any person is gravely endangered because of the pursuit, it shall be terminated in all but the most exigent circumstances. In all cases, a supervisor, if available, shall monitor and control the pursuit.”

         After the statements of purpose and policy, the Policy defines various relevant terms and describes relevant Vehicle Code provisions, including section 17004.7. The Policy makes clear that its intent is to comply with section 17004.7, asserting that “This General Order meets the criteria set forth in [section 17004.7, ] subdivision (c)” and that the minimum standards described therein “are clearly outlined in this order.”

         The Policy then specifies “PROCEDURES” applicable to vehicle pursuits, including, for example: continuous operation of lights and sirens, broadcast of information to dispatch, notification of a supervisor to monitor the pursuit, determination of availability of air support, and limitations on the number of pursuit vehicles. The Policy contains a section entitled “AIRCRAFT SUPPORT PROCEDURES.” It states, “Fixed wing and/or helicopter aircraft may be utilized to support ground operations during a vehicle pursuit.” The Policy explains that aircraft personnel are responsible for reporting “observations concerning the progress and conduct of the pursuit” to be “utilized by responding units and monitoring supervisors for the effective deployment and situational analysis necessary to evaluate whether the pursuit should continue or be terminated.” The Policy then lists the “types of information” the aircraft personnel may relay, including information relevant to determining the safety risks of continuing pursuit. The Policy directs that “The monitoring Sergeant and Watch Commander will closely monitor the supporting aircraft communications to assist in deciding whether or not to continue the pursuit.”

         A section of the Policy called “GUIDELINES FOR INITIATING, CONTINUING OR TERMINATING PURSUITS” lists 17 “factors [that] should be considered to determine whether a pursuit should be initiated, continued, or terminated.” The factors include, “[t]he seriousness of the originating incident or violation, and the relationship to community safety;” “[s]afety of the public in the area of the pursuit;” “[s]afety of the pursuing deputies;” “[v]olume of vehicular traffic;” “[v]olume of pedestrian traffic;” “[s]peeds involved;” “[t]ime of day;” “[w]eather conditions;” “[r]oad conditions;” “[t]ype of area, e.g., rural, urban, suburban, schools, business, residential, etc;” “[f]amiliarity of the deputy and supervisors with the area of the pursuit;” “[q]uality of radio communications;” “[t]he capability of the patrol vehicle;” “[t]he capability of the deputy driving the patrol vehicle;” “[l]ength of the pursuit;” “[p]resence of a hostage in the vehicle being ...