California Court of Appeals, First District, Fifth Division
[256
Cal.Rptr.3d 707] Superior Court of Alameda County, No.
RG15791353, Hon. Ioana Petrou, Judge. (Alameda County Super.
Ct. No. RG15791353)
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COUNSEL
Timothy
P. Rumberger, Berkeley, and Law Offices of Timothy P.
Rumberger, for Plaintiff and Appellant.
Haapala,
Thompson & Abern, Rebecca S. Widen, Jody Struck, Oakland, and
Christopher M. Wolcott, for Defendant and Respondent.
OPINION
SIMONS,
J.
Page 497
[256
Cal.Rptr.3d 708] Vehicle Code section 17004.7[1] provides a
public agency immunity from liability for collisions
involving vehicles being pursued by
Page 498
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, 236 Cal.Rptr.3d 374,
422 P.3d 1022');">422 P.3d 1022 (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.
Page 499
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 [256 Cal.Rptr.3d 709] 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, 236 Cal.Rptr.3d 374, 422
P.3d 1022.)
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, 236 Cal.Rptr.3d 374,
422 P.3d 1022');">422 P.3d 1022.) 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
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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, 236
Cal.Rptr.3d 374, 422 P.3d 1022');">422 P.3d 1022.) 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
[256 Cal.Rptr.3d 710] 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
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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, 16 Cal.Rptr.2d 143');">16 Cal.Rptr.2d 143
(Payne ); see also McGee v. City of Laguna
Beach (1997) 56 Cal.App.4th 537, 542, 65 Cal.Rptr.2d 506');">65 Cal.Rptr.2d 506
(McGee ) ["The immunity is designed to
encourage police departments to adopt express safe pursuit
guidelines, thereby reducing the frequency of
accidents."].)
[256
Cal.Rptr.3d 711] 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, 127 Cal.Rptr.2d 388 (Nguyen
); see also Ramirez, supra, 5 Cal.5th at pp.
999-1000, 236 Cal.Rptr.3d 374, 422 P.3d 1022');">422 P.3d 1022; 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, 236 Cal.Rptr.3d 374, 422 P.3d 1022');">422 P.3d 1022, the
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