Silva v. Langford

Filed 5/24/22; Certified for Publication 6/9/22 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

MARAKKALAGE THARAL D. B312660

SILVA et al.,

(Los Angeles County

Plaintiffs and Appellants, Super. Ct.

No. 20STCV04867)

v.

RICHARD SCOTT LANGFORD

et al.,

Defendants and

Respondents.

APPEAL from a judgment of the Superior Court of Los

Angeles County, Huey P. Cotton, Judge. Affirmed in part,

reversed in part, and remanded with directions.

Law Offices of Ali Taheripour and Ali Taheripour; Law

Offices of Les T. Zador and Leslie T. Zador for Plaintiffs and

Appellants.

Rob Bonta, Attorney General, and Danielle F. O’Bannon,

Assistant Attorney General, for Defendants and Respondents

Richard Scott Langford and State of California, acting by and

through the California Highway Patrol.

__________________________

Plaintiffs Marakkalage Tharal D. Silva and Shirin

Ramesha Silva (the Silvas) appeal from a judgment of dismissal

entered as to defendants State of California, acting by and

through the California Highway Patrol (CHP), and CHP Sergeant

Richard Scott Langford (together, the CHP defendants), after the

trial court sustained without leave to amend the CHP defendants’

demurrers to the Silvas’ first amended complaint. The Silvas

asserted on behalf of their deceased son Danuka Neshantha

Silva1 claims for negligence and wrongful death after Langford’s

patrol car struck and killed Danuka while Langford was

responding to an emergency call concerning an altercation on the

freeway. The trial court found the claims against the CHP

defendants were barred by investigative immunity conferred

under Government Code section 821.6 (section 821.6).

On appeal, the Silvas contend the trial court erred in

sustaining the CHP defendants’ demurrers because section 821.6

immunity is limited to claims for malicious prosecution pursuant

to Sullivan v. County of Los Angeles (1974) 12 Cal.3d 710

(Sullivan), and Court of Appeal decisions applying the immunity

1 We refer to Danuka Neshantha Silva by his first name to

avoid confusion.

2

to other torts committed by law enforcement officers in the course

of an investigation were wrongly decided.

We affirm the trial court’s order sustaining Langford’s

demurrer based on the Silvas’ concession at oral argument that

Langford is entitled to immunity as an emergency responder

under Vehicle Code section 17004. However, because Vehicle

Code section 17001 provides an independent statutory basis for

CHP’s liability based on Langford’s alleged negligence, we do not

reach the scope and application of section 821.6 immunity, and

we reverse the judgment as to CHP and remand for further

proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

A. The First Amended Complaint

The Silvas filed this action on February 5, 2020. The

operative first amended complaint alleges causes of action for

negligence and wrongful death, as well as a survival cause of

action (Code Civ. Proc., § 377.10 et seq.) against rideshare driver

Muhammad Ragowo Reiditio, the CHP defendants, Uber

Technologies Inc. (Uber), and Raiser LLC.2 The Silvas also

asserted a cause of action against CHP for public entity liability

for the tort of a public employee (Gov. Code, § 815.2, subd. (a)),3

2 Raiser LLC appears to be related to Uber.

3 All further undesignated statutory references are to the

Government Code. Section 815.2, subdivision (a), provides, “A

public entity is liable for injury proximately caused by an act or

omission of an employee of the public entity within the scope of

his employment if the act or omission would, apart from this

3

in which they allege Langford violated Vehicle Code section

22350 (basic speed law), for which CHP was liable under Vehicle

Code section 17001 (public entity liability for negligent or

wrongful operation of a motor vehicle by a public employee).

As alleged in the first amended complaint, at

approximately 3:37 on the morning of October 14, 2019, Danuka

was riding with another passenger in the back of a rideshare

vehicle driven by Reiditio for Uber. While driving westbound on

U.S. Highway 101 near Encino, Reiditio pulled into the number

one lane of the freeway, abruptly stopped the vehicle, and

demanded that Danuka and the other passenger get out of the

vehicle. Reiditio refused to drive the vehicle onto the shoulder or

to an exit ramp before forcing the passengers to disembark.

While Danuka was attempting to cross the eastbound lanes of

traffic on the freeway to get to safety, he was struck and killed by

the CHP patrol vehicle driven by Langford in the scope of his

employment. Langford was driving at an excessive speed without

activating his patrol car’s lights and sirens at the time he struck

Danuka.

The Silvas’ original complaint also alleged Langford had a

duty to operate the patrol vehicle “when responding to a call to a

standard of reasonable care associated with officers who

routinely respond to such calls” and “it was the duty of an officer

to exercise even greater and more reasonable care . . . when

section, have given rise to a cause of action against that employee

or his personal representative.” However, section 815.2,

subdivision (b), provides, “Except as otherwise provided by

statute, a public entity is not liable for an injury resulting from

an act or omission of an employee of the public entity where the

employee is immune from liability.”

4

responding to a call.” These allegations were omitted from the

first amended complaint.

B. The CHP Defendants’ Demurrers

Langford and CHP each demurred to the first amended

complaint, arguing the complaint was barred by investigative

immunity conferred under section 821.6. Section 821.6 provides,

“A public employee is not liable for injury caused by his

instituting or prosecuting any judicial or administrative

proceeding within the scope of his employment, even if he acts

maliciously and without probable cause.” They argued the

original complaint alleged Langford was “‘responding to a call’”

when he struck Danuka, and although the allegations were

omitted from the first amended complaint (after defense counsel

raised section 821.6 immunity during the meet and confer

process), the Silvas were bound by their original allegations

under the sham pleading doctrine.4 Langford’s “call-response

[was] the quintessence of embarking upon an investigation of the

circumstances prompting the call for law enforcement

assistance,” and was immunized under section 821.6. Langford

also argued the claims against him were barred by emergency

responder immunity under Vehicle Code section 17004. CHP

asserted the Silvas’ claims against it were barred under

Government Code sections 821.6 and 815.2, subdivision (b).

4 See Deveny v. Entropin, Inc. (2006) 139 Cal.App.4th 408,

425 (“Under the sham pleading doctrine, plaintiffs are precluded

from amending complaints to omit harmful allegations, without

explanation, from previous complaints to avoid attacks raised in

demurrers or motions for summary judgment.”).

5

In opposition, the Silvas argued section 821.6 immunity did

not apply because Langford “was not instituting or prosecuting

any judicial or administrative proceeding within the scope of his

employment,” and he was not yet investigating anything when he

struck Danuka. The Silvas requested the trial court take judicial

notice of the investigative report as evidence their amendment

was not a sham pleading because the report found that two other

CHP officers were on patrol the morning of the accident and

responded to emergency calls of a stopped vehicle and potential

fight on the freeway, whereas Langford heard the emergency

calls while inside CHP’s West Valley Office, and on his own

initiative he drove to the scene to see if the first-responding

officers “needed an additional hand.”5 Because Langford was not

responding to a call, he was not entitled to immunity under

Vehicle Code section 17004, nor was he exempt from immunity as

an emergency responder under Vehicle Code section 21055

because he failed to activate his patrol car’s lights and sirens.

After a hearing, on April 15, 2021 the trial court sustained

the CHP defendants’ demurrers without leave to amend. The

court found the CHP defendants were immune under section

821.6 because Langford “by plaintiffs’ own admission and

evidence was responding to a call.” The Silvas failed to meet

their burden to show the original allegations were a mistake

5 The investigative report found Langford was responding to

a physical altercation between two Uber passengers, when

Danuka crossed the traffic lanes of the freeway and ran into the

path of the patrol car. The report concluded Danuka caused the

accident, but Langford operated his car in excess of 65 miles per

hour without activating his patrol car’s lights and sirens, in

violation of Vehicle Code section 22349, subdivision (a).

6

justifying correction in the amended pleading, and to the

contrary, the investigative report showed that although

“[Langford] was likely not specifically dispatched to the scene,” he

was “on his way to the call to provide back up if needed, [and]

[t]his is not a case where [Langford] was merely driving around

on patrol and happened upon [Danuka].” The court concluded

that although the Courts of Appeal had primarily applied section

821.6 to immunize prosecuting attorneys, the section had been

construed broadly to immunize torts committed in the course of

police investigations, including by police officers, citing Lawrence

v. Superior Court (2018) 21 Cal.App.5th 513, 526 (section 821.6

immunized CHP from liability for releasing a vehicle impounded

during an investigation to the wrong claimant). The trial court

did not address the parties’ arguments under the Vehicle Code.

On May 12, 2021 the trial court entered a judgment of

dismissal in favor of the CHP defendants. The Silvas timely

appealed.6

6 On May 11, 2021, prior to the entry of the judgment of

dismissal, the Silvas filed a notice of appeal from a “[j]udgment of

dismissal after an order sustaining a demurrer,” attaching the

trial court’s April 16, 2021 ruling. We consider the Silvas’

premature notice of appeal a valid “notice of appeal filed after

judgment is rendered but before it is entered,” and treat the

notice as filed immediately after entry of judgment. (Cal. Rules

of Court, rule 8.104(d)(1); see Valdez v. Seidner-Miller, Inc. (2019)

33 Cal.App.5th 600, 607.)

7

DISCUSSION

A. Standard of Review

“‘In reviewing an order sustaining a demurrer, we examine

the operative complaint de novo to determine whether it alleges

facts sufficient to state a cause of action under any legal theory.’”

(Mathews v. Becerra (2019) 8 Cal.5th 756, 768; accord, T.H. v.

Novartis Pharmaceuticals Corp. (2017) 4 Cal.5th 145, 162.)

When evaluating the complaint, “we assume the truth of the

allegations.” (Brown v. USA Taekwondo (2021) 11 Cal.5th 204,

209; accord, Lee v. Hanley (2015) 61 Cal.4th 1225, 1230.) “A

judgment of dismissal after a demurrer has been sustained

without leave to amend will be affirmed if proper on any grounds

stated in the demurrer, whether or not the court acted on that

ground.” (Carman v. Alvord (1982) 31 Cal.3d 318, 324; accord, Ko

v. Maxim Healthcare Services, Inc. (2020) 58 Cal.App.5th 1144,

1150 (Ko).)

A trial court abuses its discretion by sustaining a demurrer

without leave to amend where “‘there is a reasonable possibility

that the defect can be cured by amendment.’” (Loeffler v. Target

Corp. (2014) 58 Cal.4th 1081, 1100; accord, City of Dinuba v.

County of Tulare (2007) 41 Cal.4th 859, 865; Ko, supra,

58 Cal.App.5th at p. 1150.) “‘“The plaintiff has the burden of

proving that [an] amendment would cure the legal defect, and

may [even] meet this burden [for the first time] on appeal.”’”

(Sierra Palms Homeowners Assn. v. Metro Gold Line Foothill

Extension Construction Authority (2018) 19 Cal.App.5th 1127,

1132; accord, Ko, at p. 1150; see Aubry v. Tri-City Hospital Dist.

(1992) 2 Cal.4th 962, 971.)

8

“‘“[A] demurrer based on an affirmative defense will be

sustained only where the face of the complaint discloses that the

action is necessarily barred by the defense.”’” (Heshejin v.

Rostami (2020) 54 Cal.App.5th 984, 992; accord, Aryeh v. Canon

Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1191 [application

on demurrer of affirmative defense of statute of limitations based

on facts alleged in a complaint is a legal question subject to de

novo review]; Favila v. Katten Muchin Rosenman LLP (2010)

188 Cal.App.4th 189, 223 [“‘It must appear clearly and

affirmatively that, upon the face of the complaint [and matters of

which the court may properly take judicial notice], the right of

action is necessarily barred.’”].)

B. Langford Is Immune from Suit Under Vehicle Code

Section 17004 as an Emergency Responder

Langford contends, the Silvas concede, and we agree

Langford is immune from suit under Vehicle Code section 17004

as an emergency responder. Vehicle Code section 17004 provides,

“A public employee is not liable for civil damages on account of

personal injury to or death of any person or damage to property

resulting from the operation, in the line of duty, of an authorized

emergency vehicle while responding to an emergency call . . . , or

when responding to but not upon returning from a fire alarm or

other emergency call.” At oral argument, the Silvas’ attorney

conceded the first amended complaint adequately alleged

Langford was operating his patrol car in the line of duty and was

responding to an emergency call when he struck Danuka, and the

Silvas’ action against Langford is therefore barred by emergency

responder immunity under Vehicle Code section 17004.

Accordingly, although the trial court sustained Langford’s

9

demurrer on a different basis, Langford’s dismissal was proper.

(Carman v. Alvord, supra, 31 Cal.3d at p. 324; Ko, supra,

58 Cal.App.5th at p. 1150.)

C. The Trial Court Erred in Sustaining CHP’s Demurrer

1. Investigative immunity under section 821.6

Section 821.6 was adopted in 1963 as part of the California

Government Claims Act and was intended to codify governmental

immunities recognized at common law. (See Sullivan, supra,

12 Cal.3d at p. 720.) As the Senate Judiciary Committee report

on Senate Bill No. 42 (1963 Reg. Sess.) explained as to

section 821.6, “The California courts have repeatedly held public

entities and public employees immune from liability for this sort

of conduct. [Citations.] This section continues the existing

immunity of public employees; and, because no statute imposes

liability on public entities for malicious prosecution, public

entities likewise are immune from liability.” (Sen. Com. on

Judiciary, Rep. on Sen. Bill No. 42, 2 Sen. J. (1963 Reg. Sess.)

p. 1890.) The Senate Judiciary Committee cited to four cases,

including White v. Towers (1951) 37 Cal.2d 727 (White), in which

the Supreme Court addressed the public policy behind common

law investigative immunity. As the White court reasoned, “When

the duty to investigate crime and to institute criminal

proceedings is lodged with any public officer, it is for the best

interests of the community as a whole that he be protected from

harassment in the performance of that duty. The efficient

functioning of our system of law enforcement is dependent largely

upon the investigation of crime and the accusation of offenders by

properly trained officers. A breakdown of this system at the

10

investigative or accusatory level would wreak untold harm.” (Id.

at pp. 729-730.)

In 1973 the Supreme Court considered section 821.6 for the

first time in Sullivan, supra, 12 Cal.3d 710. In Sullivan, the

plaintiff brought an action for false imprisonment against the Los

Angeles County Sheriff, asserting the plaintiff was jailed for

longer than his sentence due to administrative errors. (Id. at

pp. 713-714.) The Supreme Court reversed the judgment for the

county entered by the trial court based on section 821.6

immunity, holding the section did not immunize the sheriff for

liability for false imprisonment, and accordingly, the county could

be liable for the sheriff’s conduct under section 815.2,

subdivision (b). (Sullivan, at p. 717.) The Supreme Court

reasoned, “[T]he history of section 821.6 demonstrates that the

Legislature intended the section to protect public employees from

liability only for malicious prosecution and not for false

imprisonment. . . . [T]he suits against government employees or

entities cited by the Senate Committee in commenting upon

section 821.6 all involve the government employees’ acts in filing

charges or swearing out affidavits of criminal activity against the

plaintiff. No case has predicated a finding of malicious

prosecution on the holding of a person in jail beyond his term or

beyond the completion of all criminal proceedings against him.”

(Id. at pp. 719-720, italics and footnote omitted.) The court’s

“narrow interpretation of section 821.6’s immunity, confining its

reach to malicious prosecution,” was supported by the

governmental immunity provision in section 820.4 for executing

or enforcing the laws, which contained an exception that

“‘[n]othing in this section exonerates a public employee from

11

liability for false arrest or false imprisonment.’” (Sullivan, at p.

721.)

In the decades since Sullivan was decided, the Courts of

Appeal have consistently interpreted section 821.6 to provide

immunity beyond the tort of malicious prosecution. (See, e.g.,

Baughman v. State of California (1995) 38 Cal.App.4th 182, 193

[university police officers were immune from claim for conversion

after officers while executing a search warrant destroyed disks

containing software engineer’s work where the engineer was not

a suspect or named in the warrant]; Amylou R. v. County of

Riverside (1994) 28 Cal.App.4th 1205, 1208 (Amylou) [county was

immune from liability on sexual assault victim’s claims for

intentional and negligent infliction of emotional distress where

investigating officers told victim’s friends and neighbors that she

gave an inconsistent and incomplete account of her alleged rape];

Jenkins v. County of Orange (1989) 212 Cal.App.3d 278, 283

[social worker and county were immune from liability for

negligence and negligent infliction of emotional distress based on

removal of minor from his parents’ home during an investigation

into reports of child abuse]; Randle v. City and County of San

Francisco (1986) 186 Cal.App.3d 449, 456 (Randle) [county,

district attorney, and police officer were immune from liability for

negligent performance based on the alleged suppression of

exculpatory evidence].) And in Strong v. State of California

(2011) 201 Cal.App.4th 1439, 1461 this court held section 821.6

immunized a CHP officer (and CHP under section 815.2,

subdivision (b)) against an accident victim’s spoliation claim after

the officer filed a false police report declaring the victim was at

fault for a traffic accident, in an effort to cover up the fact he had

lost information identifying the other vehicle that was involved.

12

The Supreme Court has only once considered section 821.6

immunity in the nearly 50 years since Sullivan was decided. In

Asgari v. City of Los Angeles (1997) 15 Cal.4th 744, 748 the court

held immunity under section 821.6 extended to prevent a plaintiff

from recovering damages for false arrest attributable to the

period in which the plaintiff was incarcerated after he was

arraigned on criminal charges. The court observed that although

section 821.6 had been primarily applied to immunize

prosecuting attorneys and similarly-situated individuals, it also

“‘applies to police officers as well as public prosecutors since both

are public employees within the meaning of the Government

Code.’” (Asgari, at p. 757, quoting Randle, supra, 186 Cal.App.3d

at page 455.) The court also cited Baughman v. State of

California, supra, 38 Cal.App.4th at page 192 and Amylou, supra,

28 Cal.App.4th at page 1211 for the proposition that immunity

under section 821.6 “is dependent on how the injury is caused.”

(Asgari, at p. 757.) Although the Asgari court did not address the

application of section 821.6 beyond the torts of malicious

prosecution, false arrest, and false imprisonment, it is notable

that the court cited Randle, Baughman, and Amylou (as well as

Jenkins v. County of Orange, supra, 212 Cal.App.3d 278)

approvingly, all of which held section 821.6 immunity applied to

other torts. (See Asgari, at pp. 755, fn. 9, 757.)

The Supreme Court will again consider section 821.6

immunity in its pending review of Leon v. County of Riverside

(2021) 64 Cal.App.5th 837, 841, review granted Aug. 18, 2021,

S269672 (Leon).7 In Leon, the widow of a shooting victim brought

7 The Supreme Court granted review on the question, “Is

immunity under Government Code section 821.6 limited to

13

an action for negligent infliction of emotional distress against the

county based on the failure of the responding sheriff’s deputies to

cover the body of her husband, which lay in full public view on

the driveway for more than eight hours with the husband’s

genitals exposed as the deputies investigated the shooting.

(Leon, at p. 841.) In affirming the grant of summary judgment

for the county, Division Two of the Fourth Appellate District

broadly applied section 821.6, concluding “[a]ll of the evidence

adduced on the county’s motion for summary judgment shows

that the deputies’ negligence, if any, in failing to promptly cover

or remove [the victim’s] body from the scene, occurred during the

course of the deputies’ performance of their official duties to

secure the area following the shooting and the deputies’ and

other law enforcement officers’ investigation of the shooting.” (Id.

at p. 848.) The Court of Appeal in Leon rejected arguments

similar to those advanced by the Silvas that Sullivan expressly

limited section 821.6 immunity to claims for malicious

prosecution and that Amylou, Baughman, and other cases

broadly interpreting section 821.6 were wrongly decided. (Leon,

supra, 64 Cal.App.5th at pp. 853-855, review granted.)

In a concurring opinion in Leon, Justice Raphael observed

that the Ninth Circuit and federal district courts in California

have interpreted Sullivan to limit section 821.6 immunity to

claims for malicious prosecution. (Leon, supra, 64 Cal.App.5th at

p. 859, review granted [conc. opn. of Raphael, J.]; see Sharp v.

County of Orange (9th Cir. 2017) 871 F.3d 901, 920-921; Garmon

v. County of Los Angeles (9th Cir. 2016) 828 F.3d 837, 847.)

actions for malicious prosecution? (See Sullivan v. County of Los

Angeles (1974) 12 Cal.3d 710.)” (Leon, supra, S269672.)

14

Justice Raphael questioned whether the text of section 821.6

supported personal injury tort immunity, noting the statute

refers to injuries “caused by [a public employee] instituting or

prosecuting any judicial or administrative proceeding” but

observed the Courts of Appeal had broadly applied the immunity

to torts that preceded the institution of proceedings and were

“related to” but not “caused by” the institution of proceedings.

(Leon, at p. 863 [conc. opn. of Raphael, J.].) Notwithstanding

these concerns, Justice Raphael concluded the court’s opinion

“correctly articulates the reasoning of decades of opinions that

not only have cabined the Supreme Court’s Sullivan opinion to its

facts, but have also expanded section 821.6’s absolute immunity

to police officer conduct in investigations.” (Id. at pp. 863-864.)

On appeal, the Silvas contend that section 821.6 immunity

does not cover personal injury torts committed in the course of an

investigation, and even if it did, the first amended complaint only

alleged that Langford was on his way to investigate a call of a

vehicle stopped on the freeway when he struck Danuka, not that

the investigation had commenced. We agree this case raises

significant questions concerning both the scope and application of

section 821.6 immunity. However, we need not decide these

issues because Langford is immune from suit under Vehicle Code

section 17004, and as to CHP, it may be liable under Vehicle

Code section 17001. (See Aubry v. Tri-City Hospital Dist. (1992)

2 Cal.4th 962, 970, fn. 7 [because trial court properly sustained

demurrer on grounds that complaint failed to state a claim,

Supreme Court did not need to consider alternative bases for

sustaining demurrer, including public entity immunities].)

15

2. The trial court erred in sustaining CHP’s demurrer

without considering CHP’s liability under Vehicle

Code section 17001

Even if Langford was immune from suit under

section 821.6 (in addition to his immunity under Vehicle Code

section 17004), it does not follow that CHP is immune.

Section 821.6 immunity, like Vehicle Code section 17004

immunity, expressly applies only to a “public employee.”

Government Code section 815.2, subdivision (b), extends an

employee’s immunity to the public entity in certain

circumstances: “Except as otherwise provided by statute, a

public entity is not liable for an injury resulting from an act or

omission of an employee of the public entity where the employee

is immune from liability.” In many cases the Courts of Appeal

have applied section 821.6 to public entities through application

of Government Code section 815.2, subdivision (b). (See, e.g.,

Leon, supra, 64 Cal.App.5th at p. 846, review granted; Strong v.

State of California, supra, 201 Cal.App.4th at p. 1449;

Baughman, supra, 38 Cal.App.4th at p. 191; Amylou, supra,

28 Cal.App.4th at pp. 1208-1209.)

However, this case differs from those applying section 821.6

immunity to public entities in that it involves a vehicular injury.

The Silvas contend, and we agree, CHP’s immunity does not

necessarily flow from any investigative immunity Langford may

have under section 821.6 because the language in Government

Code section 815.2, subdivision (b), limiting immunity where

“otherwise provided by statute” applies here. Specifically,

Vehicle Code section 17001 provides a separate statutory basis

for CHP liability: “A public entity is liable for death or injury to

person or property proximately caused by a negligent or wrongful

16

act or omission in the operation of any motor vehicle by an

employee of the public entity acting within the scope of his

employment.”

In closely analogous circumstances, the Supreme Court in

Brummett v. County of Sacramento (1978) 21 Cal.3d 880, at pages

885 through 886 (Brummett) rejected a public entity’s argument

that Government Code section 815.2, subdivision (b), immunized

the entity from liability under Vehicle Code section 17001 for

injuries caused by its police officers during a high-speed chase,

even though the police officers enjoyed first-responder immunity

under Vehicle Code section 17004. The court explained that in

considering whether Government Code section 815.2,

subdivision (b), applies, “[t]he question . . . is whether liability is

‘otherwise provided by statute.’ It must be answered in the

affirmative. Vehicle Code section 17001 makes a public entity

liable for its employee’s negligence in the operation of a motor

vehicle.”8 (Brummett, at p. 883; accord, City of Sacramento v.

Superior Court (1982) 131 Cal.App.3d 395, 400 [city was not

immune from suit under Government Code section 815.2,

subdivision (b), for police officers’ alleged negligence in vehicle

pursuit, explaining “[t]he specific provision for public entity

liability in Vehicle Code section 17001 overrides the general

derivative immunity provided by Government Code section

815.2”].) In reaching this conclusion, the Supreme Court

considered the legislative history of the Government Claims Act

8 The Brummett court observed that the determination

whether the police officers were negligent in the operation of

their vehicles depended on whether they exercised due care, a

question of fact for the jury. (Brummett, supra, 21 Cal.3d at

p. 887.)

17

and observed that the Senate Judiciary Committee commented as

to Government Code section 815.2, “‘The exception appears in

subdivision (b) because under certain circumstances it appears to

be desirable to provide by statute that a public entity is liable

even when the employee is immune. . . .’” (Brummett, at p. 885,

quoting Sen. Com. on Judiciary, Rep. on Senate Bill No. 42,

2 Sen. J. (1963 Reg. Sess.) pp. 1887-1888.) Further, as the

Brummett court explained, the Judiciary Committee specifically

referred to liability of public entities under both Government

Code section 815 (enacted at the same time as Government Code

section 815.2) and Vehicle Code section 17001. (Brummett, at

p. 885 [“‘In other codes there are a few provisions providing for

the liability of governmental entities, e.g., Vehicle Code

section 17001, et seq.’”], quoting Sen. Com. on Judiciary, Rep. on

Senate Bill No. 42, 2 Sen. J. (1963 Reg. Sess.) pp. 1886-1887; see

Thomas v. City of Richmond (1995) 9 Cal.4th 1154, 1165

[observing in context of liability for injuries caused by a police car

chasing a fleeing suspect, that Government Code section 845.8’s

immunity provision applicable to public employees and entities

(for injuries resulting from a person escaping custody or resisting

arrest) “does not provide immunity to public entities for liability

that is predicated on Vehicle Code section 17001”].)

CHP argues Brummett did not decide whether a public

entity’s liability under Vehicle Code section 17001 supersedes the

entity’s immunity derived from the public employee’s immunity

under section 821.6, instead focusing on the public employee’s

immunity under Vehicle Code section 17004. CHP urges us

instead to follow Varshock v. Department of Forestry & Fire

Protection (2011) 194 Cal.App.4th 635, 643, in which the Court of

Appeal held that the Department of Forestry and Fire Protection

18

was immune from tort liability under Government Code section

850.4—which immunizes public entities and employees from

liability “‘for any injury caused in fighting fires,’” “‘except as

provided in’” Vehicle Code section 17000 et sequitur—where the

plaintiffs were engulfed in a wildfire after their vehicle broke

down and the firefighters placed them inside the firefighter’s fire

truck. The court reasoned there was a “latent ambiguity” in

Government Code section 850.4 because “a literal interpretation

of statute would . . . produce absurd consequences the Legislature

did not intend” and “eliminate a very large portion of the

immunity the Legislature intended to confer under

section 850.4.” (Varshock, at p. 644.)

The Supreme Court’s decision in Brummett is directly on

point; Varshock is not. Varshock involved immunity under the

Government Code provision applicable to firefighters and their

public employers, not derivative immunity under Government

Code section 815.2, subdivision (b), and the case was atypical in

that the plaintiffs’ injuries did not arise from a vehicular tort as

generally envisioned under Vehicle Code section 17001. (See

Varshock v. Dept. of Forestry & Fire Prot., supra, 194 Cal.App.4th

at pp. 649-650 [Government Code section 850.4 immunity exists

“when a firefighter operates a motor vehicle at the scene of a fire

as part of efforts to rescue persons or property from the fire or

otherwise combat the fire,” but “immunity under section 850.4

does not apply, and potential liability under the Vehicle Code

section 17001 exception exists, if injury results from a

firefighter’s tortious act or omission in the operation of a motor

vehicle while proceeding from another location to a fire in

response to an emergency call”].) By contrast, Brummett

instructs that derivative entity immunity under Government

19

Code section 815.2, subdivision (b), does not overcome the entity’s

liability under Vehicle Code section 17001. We see no reason why

the nature of the employee’s underlying immunity—whether the

employee is responding to an emergency (Veh. Code, § 17004) or

investigating a crime (§ 821.6)—would support a different result.

Here, the first amended complaint specifically alleged CHP

was liable under Vehicle Code section 17001. Thus, it was CHP’s

burden in its demurrer to establish its affirmative defense of

governmental immunity. (Heshejin v. Rostami, supra,

54 Cal.App.5th at p. 992; Ivanoff v. Bank of America, N.A. (2017)

9 Cal.App.5th 719, 726; Casterson v. Superior Court (2002)

101 Cal.App.4th 177, 183.) Yet CHP’s only argument in its

demurrer with respect to Vehicle Code section 17001 was that it

was shielded by the investigatory immunity applicable to

Langford under section 821.6 and public entity immunity under

Government Code section 815.2, subdivision (b). Because

Government Code section 815.2, subdivision (b), does not

immunize CHP from liability under Vehicle Code section 17001,

the trial court erred in sustaining CHP’s demurrer as to the

Silvas’ fourth cause of action for public entity liability for injuries

caused by its employees.

20

DISPOSITION

The judgment is affirmed as to Langford and reversed as to

CHP. The matter is remanded for the trial court to vacate its

order sustaining the demurrers of Langford and CHP and to

enter a new order sustaining Langford’s demurrer and overruling

CHP’s demurrer, and to enter a new judgment in favor of only

Langford. The parties are to bear their own costs on appeal.

FEUER, J.

We concur:

PERLUSS, P. J.

SEGAL, J.

21

Filed 6/9/22

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

MARAKKALAGE THARAL D. B312660

SILVA et al.,

(Los Angeles County

Plaintiffs and Appellants, Super. Ct. No. 20STCV04867)

v. ORDER CERTIFYING

OPINION FOR PUBLICATION

RICHARD SCOTT LANGFORD [NO CHANGE IN APPELLATE

et al., JUDGMENT]

Defendants and Respondents.

THE COURT:

The opinion in this case filed on May 24, 2022 was not

certified for publication. It appearing the opinion meets the

standards for publication specified in California Rules of Court,

rule 8.1105(c), appellants’ request for publication pursuant to

California Rules of Court, rule 8.1120(a) is granted.

IT IS HEREBY CERTIFIED that the opinion meets the

standards for publication specified in California Rules of Court,

rule 8.1105(c); and

ORDERED that the words “Not to be Published in the

Official Reports” appearing on page 1 of said opinion be deleted

and the opinion herein be published in the Official Reports.

This order does not change the appellate judgment.

PERLUSS, P. J. SEGAL, J. FEUER, J.

2