The opinion
Filed 12/6/23 Daves v. City of Cathedral City CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
CHERYLYN DAVES, D082253
Plaintiff and Appellant,
v.
(Super. Ct. No. PSC1902338)
CITY OF CATHEDRAL CITY et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Riverside, Kira L.
Klatchko, Judge. Reversed and remanded.
Walter Clark Legal Group and Jessica A. Albert, for Plaintiff and
Appellant.
Graves & King, Harvey W. Wimer III, Michael D. Sargent, and
Brendan J. Coughlin, for Defendants and Respondents.
Cherylyn Daves, a phlebotomist, was struck and injured by a car as she
prepared to assist police officers in obtaining a blood sample from a DUI
suspect. Seeking redress for her injuries, Daves sued four of the officers and
their employer—Jesse Borrego, Steven Lara, Jesse Vela, Ryan Schroeder,
and the City of Cathedral City (the City)—alleging a cause of action for
negligence against the officers and a cause of action for vicarious liability
against the City. The officers and the City filed a motion for summary
adjudication, and the trial court granted the motion and entered judgment in
their favor. Daves now appeals the judgment, arguing the trial court erred
in: (1) concluding that Daves could not establish the essential element of a
duty on which to premise her negligence and vicarious liability causes of
action as against Borrego and the City and (2) concluding that the immunity
that Government Code sections 820.2 and 815.2, subdivision (b) confer upon
public employees and public entities for discretionary acts insulated Borrego
and the City from liability in any event. We agree with Daves. Hence we
reverse.
I.
BACKGROUND
A. The Evening on Which Daves Sustained Her Injuries
The genesis of this case is a pair of collisions that occurred late one
night in Cathedral City, near the intersection of Cathedral Canyon Drive and
Dinah Shore Drive. The first of the two collisions drew Borrego, Vela, Lara,
and Schroeder (the four officers) to the scene. Suspecting that a driver
involved in this collision had been driving while under the influence of drugs
or alcohol (DUI), Borrego asked for a forensic evidence collection service to be
sent to the scene to draw blood; and the City contractor to which the request
was relayed—American Forensic Nurses—sent Daves.
When Daves arrived at the scene, Borrego told her the officers wanted
to collect a blood sample from the DUI suspect in a “grassy area adjacent to
the sidewalk and curb” “at the southeast corner of the subject intersection.”
Depending on whose version of the interaction is to be believed, Borrego also
pointed out (or did not point out) a nearby marked police car parked in a
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northbound lane of Cathedral Canyon Drive and directed (or did not direct)
Daves to proceed to that location and park her car there.
Daves then drove to the location that she says Borrego had designated,
parked her car there, and began preparing the materials she would need to
complete the blood draw. But “[w]hile [she] was standing in front of her
vehicle and preparing to collect the blood evidence, another
vehicle . . . collided with [her] vehicle, pushing it into [her]” and causing her
injuries.
B. Proceedings Below
1. Causes of Action Alleged Against the Officers and the City
Daves and her husband, Thom Daves, filed claims against the City,
Thereafter, they initiated this lawsuit.
During the lawsuit, the Daveses filed a second amended complaint
against the four officers, the City, the two drivers who were understood to
have caused the collisions, and unnamed Does. Although the record is
somewhat unclear, the parties appear to agree that, subsequent to the filing
of the second amended complaint, the case was pared down such that:
Schroeder was no longer a defendant; the only cause of action remaining
against the other three officers was Daves’s negligence cause of action; and
the only cause of action remaining against the City was her vicarious liability
cause of action.
2. The Summary Adjudication Motion
Approximately two years into the lawsuit, the four officers and the City
filed a motion for summary adjudication targeting the two remaining causes
of action alleged against them—negligence and vicarious liability.
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a. He Said / She Said, Between Borrego and Daves,
Regarding Whether the Location Where Daves Was
Struck and Injured Was a Location to Which Borrego
Had Directed Her
In the separate statement of undisputed material facts that they filed
in support of their motion for summary adjudication, the four officers and the
City claimed it was undisputed that the location where Daves had parked
was a location of her own choosing, and that Borrego had not directed her to
park there:
Undisputed Fact No. 13: “Upon arriving at the scene,
[Daves] parked her car without . . . Borrego instructing her
where to park.” (Italics added.)
Undisputed Fact No. 16: “Without prompting or instruction
by . . . Borrego, [Daves] drove her [car] to a position along
the east curb of Cathedral Canyon Drive approximately ten
feet behind Officers Lara’s and Vela’s marked patrol SUV.”
(Italics added.)
But, in her response to the motion, Daves presented evidence that—if
believed—would contradict these purportedly undisputed facts. That
evidence came in the form of passages from Daves’s deposition testimony in
which she repeatedly and specifically testified that the location where she
had parked her car (and where she had been struck and injured) was a
location to which Borrego had directed her to proceed and park.
b. The Trial Court’s Ruling on the Motion
Following oral argument, the trial court issued a ruling on the motion.
The court denied the motion as to Schroeder because it said Schroeder had
been dismissed from the case before the motion was heard, thus “making the
[m]otion moot as to him;” however, it granted the motion as to Borrego, Vela,
Lara, and the City.
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i. The Trial Court’s Duty Analysis
In the portions of its ruling focusing on the negligence cause of action
and the question of whether any of the officers owed Daves a duty of care, the
trial court acknowledged and quoted case law addressing circumstances in
which a “special relationship” creating such a duty is deemed to arise
between a police officer and an individual with whom the officer interacts. As
the trial court correctly stated:
“ ‘Under some circumstances, a defendant may have an
affirmative duty to protect the plaintiff from harm at the
hands of a third party, even though the risk of harm is not
of the defendant’s own making.’ ” ([Brown v. USA
Taekwondo (2021) 11 Cal.5th 204], at p. 215.) “In that
circumstance, the defendant’s ‘affirmative duty’ may arise
where they have a ‘special relationship’ with . . . the
plaintiff. (Ibid.) ‘A special relationship between the
defendant and the victim is one that ‘gives the victim a
right to expect’ protection from the defendant. (Id. at
p. 216.) [¶ . . . ¶]
“In the case of police officers, the special relationship may
arise where an officer ‘create[d] the peril in which plaintiff
found herself’ or where they took an ‘affirmative action
which contributed to, increased or changed the risk which
would have otherwise existed.’ ” (Williams [v. State of
California (1983) 34 Cal.3d 18] at pp. 27–28.)” (Italics
added.)
Then, to illustrate this concept, the trial court quoted Lugtu v. California
Highway Patrol (2001) 26 Cal.4th 703, 717 (Lugtu), as follows: “ ‘[A] police
officer who exercises his or her authority to direct another person to proceed
to—or stop at—a particular location, owes such a person a duty to use
reasonable care in giving that direction, so as not to place the person in
danger or to expose the person to an unreasonable risk of harm.’ ” Then the
trial court ruled: that “[t]he evidence is that Daves . . . was not told to park
[where she parked], and . . . that she moved freely into that area absent
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direction . . . from any of the Officer Defendants,” that Borrego and the City
“ha[d] met their burden to demonstrate that Borrego owed no duty to Daves,”
and that “Daves ha[d] not met her burden to show the existence of a triable
issue of fact.”
ii. The Trial Court’s Immunity and Vicarious
Liability Analyses
In the portions of its ruling focusing on Borrego and the City’s
immunity defenses and Daves’s cause of action against the City for vicarious
liability, the trial court ruled that (1) “even if the Court could find a duty, it
[nonetheless] would find that Borrego was immune from liability under the
Government Code for exercising his discretion in suggesting generally where
Daves should park in the course of investigating the initial accident at the
intersection,” and (2) “[b]ecause the Officer Defendants are not individually
liable for their acts, the City of Cathedral City cannot be held vicariously
liable.”
3. The Judgment and a Further Paring Down of the Parties
On the basis of its summary adjudication ruling, the trial court entered
judgment in favor of Borrego, Vela, Lara, and the City, and against Daves.
Daves timely appealed the judgment—but then withdrew the appeal as to
Vela and Lara, leaving Borrego and the City as the sole remaining
defendants who are parties to this appeal.
II.
DISCUSSION
Borrego and the City (hereafter defendants) argue that they cannot be
liable to Daves, directly or vicariously, for each of two reasons. First, they
say Borrego had no duty to prevent harm to Daves. Second, they say the
immunity that Government Code sections 820.2 and 815.2, subdivision (b),
confer upon public employees and public entities for discretionary acts shields
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them from liability. We address each of these arguments in turn, after first
stating the standard of review.
A. The Standard of Review
“ ‘On appeal after a motion for summary [adjudication] has been
granted, we review the record de novo.’ ” (Smith v. Wells Fargo Bank, N.A.
(2005) 135 Cal.App.4th 1463, 1472.) “In performing our de novo review, we
view the evidence in the light most favorable to plaintiff as the losing party.”
(Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64 (Johnson).)
Thus, “we liberally construe plaintiff’s evidentiary submissions and strictly
scrutinize [the] defendant[s’] . . . evidence, in order to resolve any evidentiary
doubts or ambiguities in plaintiff’s favor.” (Ibid.) In evaluating the evidence
and arguments, we make “ ‘an independent assessment of the correctness of
the trial court’s ruling, applying the same legal standard as the trial court in
determining whether there are any genuine issues of material fact or
whether the moving party is entitled to judgment as a matter of law’ ”
(Smith, at p. 1474); and we uphold the summary adjudication of a cause of
action if: (1) any of the cause of action’s elements cannot be established, or
(2) an affirmative defense to it can be established. (See Code Civ. Proc.,
§ 437c, subd. (o).)
B. The Duty Issue
The defendants contend that Daves cannot establish the essential
element of a duty of care on which to premise her negligence and vicarious
liability causes of action. Daves responds by arguing that there arose,
between herself and Borrego, a “special relationship” giving rise to such a
duty.
In addressing these arguments, we begin by noting three fundamental
principles: First, “[u]nder general negligence principles, . . . a person
ordinarily is obligated to exercise due care in his or her own actions so as not
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to create an unreasonable risk of injury to others, and this legal duty
generally is owed to the class of persons who it is reasonably foreseeable may
be injured as the result of the actor’s conduct.” (Lugtu, supra, 26 Cal.4th at
p. 716, citing Civ. Code, § 1714.) Second, “one’s general duty to exercise due
care includes the duty not to place another person in a situation in which the
other person is exposed to an unreasonable risk of harm through the
reasonably foreseeable conduct (including the reasonably foreseeable
negligent conduct) of a third person.” (Lugtu, at 716, italics added, citing
Schwartz v. Helms Bakery Limited (1967) 67 Cal.2d 232, 240–244.) And
third, in the absence of a grant of immunity, public employees and public
entities may be held liable for negligence. (Lugtu, at p. 715, citing Gov. Code,
§§ 815.2 and 820.)
In examining the topic of liability of public employees for negligence,
and the concept of a duty on which such liability can be predicated, our
Supreme Court has noted that duty is a concept that “has confounded courts,
law professors, [and] treatise writers.” (See Walker v. County of Los Angeles
(1987) 192 Cal.App.3d 1393, 1398 (Walker).)
“Drawing a boundary line around one’s duty in the law of tort becomes
even more complicated when we are inquiring into the liability of public
employees . . . . Private citizens ordinarily do not owe an affirmative duty to
save their fellow citizens from harm unless they personally created the risk.
[Citation.] But in a very real sense the general public pays public employees
specifically for the purpose of having them assume an affirmative duty to aid
everyone in that general public. Thus, if ordinary standards applied they
might be held responsible in tort for every injury suffered by every member of
society every time a public employee negligently failed to do something which
could have prevented harm. However, it is feared this concept of duty might
8
expose public employees and especially the public treasury to intolerable
financial burdens.” (Walker, supra, 192 Cal.App.3d at p. 1398; cf. Hardy v.
Vial (1957) 48 Cal.2d 577, 583 [“ ‘There must indeed be means of punishing
public officers who have been truant to their duties; but that is quite another
matter from exposing such as have been honestly mistaken to suit by anyone
who has suffered from their errors. As is so often the case, the answer must
be found in a balance between the evils inevitable in either alternative’ ”];
Leon v. County of Riverside (2023) 14 Cal.5th 910, 927–928).
To avoid such a result, California jurisprudence has developed over
time the principle—acknowledged by the trial court—that a “special
relationship” is required to have arisen between a public employee and a
private citizen before that public employee may be held to have owed the
private a citizen a duty:
“California . . . require[es] a ‘special relationship’ between
the public employee and a specific private citizen before a
duty is created. A ‘special relationship’ exists if and only if
an injured person demonstrates the public officer ‘assumed
a duty toward [him] greater than the duty owed to another
member of the public.’ ” (Walker, supra, 192 Cal.App.3d at
p. 1398.)
In this case, Daves argues a “special relationship,” requiring
recognition of a duty of care on the part of Borrego, arose from any one or a
combination of three circumstances that she contends are present in this
case: (1) Borrego requested that the blood draw occur at “a dark roadway in
the middle of the night,” rather than “at a safe location such as the jail,
Cathedral City Police Station or hospital”; (2) Borrego “explicitly directed
[Daves] to park her vehicle in an unsafe location next to where the blood
draw was to occur,” thereby “exposing [her] to the danger of approaching
vehicles” and “significantly increas[ing] the risk of a secondary crash,” when
he instead “could have and should have directed her to park out of the way of
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oncoming traffic in the safety of the adjacent 7-11 parking lot”; and (3)
Borrego “failed” to “put down cones or flares to warn oncoming traffic of
[Daves’s] parked vehicle.”
For reasons we discuss post, we conclude that Supreme Court
precedent makes clear that circumstance number two—if proven at trial—
would suffice by itself to establish a special relationship and corresponding
duty. Indeed, as our Supreme Court stated in Lugtu: “Consistent with the
basic tort principle recognizing that the general duty of due care includes a
duty not to expose others to an unreasonable risk of injury at the hands of
third parties, . . . California cases uniformly hold that a police officer who
exercises his or her authority to direct another person to proceed to—or to stop
at—a particular location, owes such a person a duty to use reasonable care in
giving that direction, so as not to place the person in danger or to expose the
person to an unreasonable risk of harm.” (Lugtu, supra, 26 Cal.4th at p. 717,
italics added.)
The trial court acknowledged the passage we have italicized. But it did
not attempt to distinguish Lugtu, nor did it acknowledge the existence of a
genuine issue of material fact as to whether Borrego had or had not directed
Daves to park in the location where she ended up being injured. And it is
that genuine issue of material fact (an issue that cannot be resolved on
summary adjudication) that compels us to conclude that the defendants have
not established, as a matter of law, that Borrego owed no duty of care to
Daves.
In an effort to distinguish Lugtu, the defendants argue that no special
relationship was established, and thus no duty of care was triggered because
“[h]ere, in contrast to Lugtu, [Daves] was not a private party being stopped
for traffic enforcement purposes,” but instead “admits . . . she was an
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independent contractor on scene to conduct a contracted service.” In making
this argument, they imply that the duty that our Supreme Court has held
should be recognized when an officer tells a detained motorist where to
position her car or herself should not be recognized when that officer tells a
contractor, who has been called to the scene to assist him in performing his
duties, where to position her car or herself. We perceive no rational basis on
which to conclude that “the basic tort principle recognizing that the general
duty of due care includes a duty not to expose others to an unreasonable risk
of injury at the hands of third parties” (see Lugtu, supra, 26 Cal.4th at p. 717)
should not apply with the same force to the contractor who is told where to
park, as it does to the other classes of motorists who are told where to park.
The defendants also argue that Minch v. Department of California
Highway Patrol (2006) 140 Cal.App.4th 895 furnishes a more apt comparison
to the facts in the present case because Minch and this case each pertain to a
situation in which a “vendor” (the vendor in Minch was a tow truck driver)
whose employer had dispatched them to the scene of an accident was struck
by a vehicle in a second collision, sustained injuries, and sued law
enforcement personnel who had been present at the scene. (See Minch, at pp.
899–900.) The court of appeal in Minch concluded that the “undisputed
evidence demonstrate[d] the CHP officers did not have a duty of care toward
plaintiff because they did not create or increase the risk of harm that led to
plaintiff’s injuries, and [that] the circumstances did not establish a special
relationship between the officers and plaintiff such that the officers would
have had a duty to protect him.” (Id. at p. 898.) But, in focusing on the
holding in Minch, the defendants overlook facts in that case that distinguish
it from the case at hand. Perhaps chief among such overlooked facts is that,
in Minch, unlike the present case, it was undisputed that “[t]he officers did
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not direct [the tow truck driver] . . . where to park.” (Minch, supra, 140
Cal.App.4th at pp. 899, 906.) In addition, the tow truck driver was not struck
and injured until after the services for which he had been called to the scene
had been performed. (Id. at pp. 899, 906.)
In like fashion, the defendants argue that Daves’s presence in front of
her car at the moment of impact was voluntary (“[a]ppellant . . . solely chose
to prepare her blood draw materials on the hood of her car while standing in
the roadway,”) as if to liken her presence in that location at that moment to
the presence of the tow truck driver in Minch, who had lingered at the scene
after having completed the services that he had been dispatched there to
perform. But this ignores the evidence that Borrego had directed Daves to
park her car in that location—a location that it probably would be reasonable
for Daves to presume would be safe for her car and safe for her because
Borrego had directed her there.
The defendants further argue that Borrego had no special relationship
with Daves, and thus owed her no duty of care, because “[t]here is no
evidence or authority suggesting that Borrego had the ability to control the
conduct of other drivers at the intersection” and “no evidence . . . that the
[second] accident . . . was reasonably foreseeable to Borrego.” But this
argument misapprehends the nature of the nexus between the concept of
foreseeability and the existence of a duty. “[A] court’s task—in determining
‘duty’—is not to decide whether a particular plaintiff’s injury was reasonably
foreseeable in light of a particular defendant’s conduct, but rather to evaluate
more generally whether the category of negligent conduct at issue is
sufficiently likely to result in the kind of harm experienced that liability may
appropriately be imposed on the negligent party.” (Ballard v. Uribe (1986) 41
12
Cal.3d 564, 572, fn. 6.) In performing such general evaluations, courts
routinely conclude that:
“In the generalized sense of foreseeability pertinent to the
duty question, that a vehicle parked by the side of a
freeway may be struck by another vehicle leaving the
freeway, resulting in injury to either vehicle’s occupants, is
clearly foreseeable. Drivers are supposed to control their
vehicles and keep them on the traveled roadway, but
common experience shows they do not always do so.
Freeway drivers may be intoxicated, distracted, blinded by
the weather or sun, sleepy or sick, and for any of these
reasons or others may drive off the roadway. Mechanical
problems with their vehicles can also force motorists to
suddenly leave the freeway. If they do so at freeway speeds
and collide with another vehicle parked alongside the road,
they are likely to be injured or injure other occupants of the
vehicles, or both. This general foreseeability is reflected in
the Official Reports [i.e., case law], in that numerous
decisions have involved collisions between vehicles leaving
a highway and vehicles or other obstacles on the roadside.”
(See Cabral v. Ralphs Grocery Company (2011) 51 Cal.4th 764, 775 (italics
added); see also ibid., fn. 4 [citing opinions]; Jackson v. Ryder Truck Rental,
Inc. (1993) 16 Cal.App.4th 1830, 1840 [“the danger of an intoxicated or
otherwise out-of-control driver veering off course on a highway in darkness
and crashing into whatever lay in her path” is “reasonably foreseeable”];
Bigbee v. Pacific Telephone & Telegraph Company (1983) 34 Cal.3d 49, 58
[“Swift traffic on a major thoroughfare late at night is to be expected.
Regrettably, so too are intoxicated drivers. [Citation.] Moreover, it is not
uncommon for speeding and/or intoxicated drivers to lose control of their cars
and crash into . . . whatever . . . may be standing alongside the road they
travel.”].)
The defendants argue that “[t]here is no evidence or authority
suggesting that [Borrego] acted to increase potential risks to [Daves]” and
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they point out that, to the contrary, Daves “expressly admits that neither
Borrego . . . nor any other officer . . . told her that he would protect her.” But
howsoever true this may be, it disregards the fact that a police officer telling
a motorist to park her car in a particular location generally carries with it an
implication that the officer either deems that location to be safe (or at least
less vulnerable to foreseeable harms than other nearby locations) or has
undertaken to make it so.
The defendants further argue that Borrego owed Daves no duty of care
because Daves was merely “directed generally where her patient was and
where the blood would be drawn” and that whatever Borrego said to her
“cannot be understood as a command requiring [her] to park, as she did,” in
the location where she ended up being struck and injured. But this
characterization of Borrego’s interaction with Daves is contradicted by the
evidence (discussed ante) that Daves has presented to the contrary. (See
Johnson, supra, 43 Cal.4th at p. 64 [“we view the evidence in the light most
favorable to plaintiff as the losing party”].)
In a similar vein, the defendants point out that Daves “admits that it
would have been possible for her to have parked instead at the parking lot of
the nearby 7-Eleven and to have used the crosswalks that are at that
intersection of Dinah Shore and Cathedral Canyon to walk over to the spot
where the blood draw was going to be conducted.” This acknowledgment by
Daves, the defendants argue, is tantamount to an “admi[ssion] that no one,
including Borrego, told her that she had to park where she did.” But, again,
these arguments overlook the fact that Daves has presented evidence
supporting an inference that a uniformed officer at the scene of a traffic
collision and a suspected crime had directed her to park in the location where
she parked. So, too, does it ignore the fact that it would have been unlawful
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for her to disobey a directive from the officer. (See Vehicle Code section 2800,
subdivision (a) [“It is unlawful to willfully fail or refuse to comply with a
lawful order . . . or direction of a peace officer . . . when that peace officer is in
uniform and is performing duties pursuant to any of the provisions of this
code.”].)
The defendants also argue that “[t]here is no . . . evidence that [Daves]
herself specifically was requested to attend [the accident scene]” (italics
added). Presumably they mean that Daves was not specifically requested by
Borrego. But, irrespective of their meaning, this detail is of no import. It
does not change the fact that Borrego called for a blood draw. It does not
change the fact that an individual with the skills to perform a blood draw was
sent at Borrego’s request. And it does not change the fact (if Daves’s, and not
Borrego’s, testimony is to be believed) that Borrego told Daves she was to
park in a specific location or the fact that Daves complied by parking in that
location (and ended up being struck and injured there).
Lastly, the defendants emphasize that “Borrego disputes that he
directed [Daves] where to park her vehicle. He maintained that he merely
thanked her for coming and explained that he planned to have her draw [the
suspect]’s blood on the grassy area of the southeast corner of the intersection”
(italics added). But of course the defendants’ outright acknowledgment that
Borrego disputes a fact that is plainly material to each of the remaining
causes of action serves only to reinforce why it is that—at this stage in the
proceedings—we cannot conclude that Daves will be unable to establish the
existence of a special relationship and a duty. Thus we must conclude that
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the trial court erred in concluding that Daves could not establish a special
relationship and duty of care.1
Having concluded that the alleged conduct of Borrego may have created
a special relationship and a duty to Daves, we ordinarily would be required to
“ ‘consider whether the policy considerations set out in Rowland [v. Christian
(1968) 69 Cal.2d 108 (Rowland)] warrant a departure from that duty in the
relevant category of cases.’ ”2 (See Doe v. Lawndale Elementary School Dist.,
(2021) 72 Cal.App.5th 113, 129, italics omitted.) In this case, our
contemplation of those considerations (the Rowland factors) arguably is
rendered unnecessary by the fact that the Supreme Court presumably was
mindful of those factors when it acknowledged and reaffirmed, in Lugtu, the
1 Our conclusion that the defendants have not succeeded in refuting the
existence of a duty does not mean that Daves has succeeded in establishing
one. Indeed, as held in Laabs v. Southern California Edison Company (2009)
175 Cal.App.4th 1260, we do not here hold that any one or more defendants
did or did not owe Daves a duty of care as a matter of law; “rather, we hold
[only] that triable issues of fact exist as to the relevant considerations
underlying duty in this case, and that [the defendants] failed to establish
that [they were] entitled to judgment as a matter of law.” (Id. at p. 1269.)
2 The policy considerations set out in Rowland were “the foreseeability of
harm to the plaintiff, the degree of certainty that the plaintiff suffered injury,
the closeness of the connection between the defendant’s conduct and the
injury suffered, the moral blame attached to the defendant’s conduct, the
policy of preventing future harm, the extent of the burden to the defendant
and consequences to the community of imposing a duty to exercise care with
resulting liability for breach and the availability, cost, and prevalence of
insurance for the risk involved.” (Rowland, supra, 69 Cal.2d, at p. 113.)
“ ‘When public agencies are involved,’ ” these typically are supplemented by
such further considerations as: “ ‘ “the extent of [the agency’s] powers, the
role imposed upon it by law and the limitations imposed upon it by
budget.” ’ ” (Catsouras v. Department of California Highway Patrol (2010)
181 Cal.App.4th 856, 881.)
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“uniform[ ] hold[ing]” of California cases that “a police officer who exercises
his or her authority to direct another person to proceed to—or to stop at—a
particular location, owes such a person a duty to use reasonable care in
giving that direction, so as not to place the person in danger or to expose the
person to an unreasonable risk of harm.” (Lugtu, supra, 26 Cal.4th at
p. 717.) But Lugtu notwithstanding, we have duly considered the Rowland
factors and have concluded that—as applied to the category of cases in which
a police officer has directed another person to proceed to, or stop at, a
particular location—those factors do not warrant any departure from the
duty the Supreme Court upheld in Lugtu.
C. The Government Immunity Issue
The second basis for the trial court’s ruling on the defendants’ motion is
the immunity that Government Code sections 820.2 and 815.2, subdivision
(b), confer upon public employees and public entities exercising the discretion
with which they have been vested.3
3 Government Code section 820.2 states in its entirety that: “Except as
otherwise provided by statute, a public employee is not liable for an injury
resulting from his act or omission where the act or omission was the result of
the exercise of the discretion vested in him, whether or not such discretion be
abused.”
Government Code section 815.2, states in its entirety that: “(a) 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 section, have given rise to a cause of
action against that employee or his personal representative. (b) 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.”
All references to code sections in our discussion of government
immunity are to the Government Code.
17
Each of these two provisions of the Government Claims Act was
squarely addressed by our Supreme Court in McCorkle v. City of Los Angeles
(1969) 70 Cal.2d 252 (McCorkle), a case with facts similar to the facts present
here. In that case, the plaintiff—McCorkle—was involved in a night-time
automobile collision at an intersection. (Id. at pp. 255, 258–259.) Lombardo,
“an officer of the Los Angeles Police Department . . . arrived at the scene and
commenced to investigate the collision.” (Id. at p. 255; see also id., at p. 259.)
During the investigation, Lombardo and McCorkle walked into the street to
examine skid marks. (Id. at p. 259.) While they were there for that purpose,
a car entered the intersection and struck McCorkle, severely injuring him.
(Id. at p. 260.). McCorkle sued Lombardo and the City of Los Angeles for
negligence (id. at p. 255); and Lombardo and the city argued that they were
shielded from liability by section 820.2 (which grants immunity from liability
to a public employee “exercis[ing] . . . the ‘discretion vested in him’ ”) and by
section 815.2, subdivision (b) (which extends the immunity of a public
employee to the public entity that employs him). (McCorkle, at p. 260; Gov.
Code §§ 820.2 and 815.2, subd. (b)).
In addressing the government immunity arguments, the court in
McCorkle focused on the fact that the immunity set forth in section 820.2 is
limited to conduct that is “discretionary” rather than “ministerial;” and it
observed that merely “classif[ying] . . . the act of a public employee as
‘discretionary’ will not produce immunity under section 820.2 if the injury to
another results, not from the employee’s exercise of ‘discretion vested in him’
to undertake the act, but from his negligence in performing it after having
made the discretionary decision to do so.” (McCorkle, supra, 70 Cal.2d at
pp. 260–261.) Then, applying that observation to the facts with which it had
been presented, the court distinguished between: (1) on the one hand, an
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officer’s decision to undertake an investigation, which the court characterized
as discretionary; and (2) on the other hand, the officer’s conduct of the
investigation, which the court implicitly characterized as ministerial. (Id. at
p. 262.)
The court in McCorkle observed that Lombardo would have been
“clothe[d] . . . with immunity” if McCorkle’s injury had resulted from
Lombardo’s exercise of discretion in undertaking his investigation of the
accident, but not if it had resulted from Lombardo’s negligence in conducting
the investigation. (McCorkle, supra, 70 Cal.2d at pp. 261-262.) Then the
court held that McCorkle’s injury had not resulted from Lombardo’s exercise
of discretion, but instead had “resulted from [Lombardo’s] negligence after
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the discretion, if any, had been exercised”4 and that, “[b]ecause the essential
requirement of section 820.2—a causal connection between the exercise of
discretion and the injury—did not exist, the statutory immunity does not
apply.” (McCorkle, at p. 262, italics added.) Having thus dispensed with
Lombardo’s immunity defense, the court then proceeded to turn to the city’s
immunity defense and held that: “Since Lombardo was not immune from
liability under section 820.2, the City . . . is not immune under subdivision (b)
of section 815.2.” (McCorkle, at p. 262, italics added.)
Defendants’ efforts to differentiate McCorkle are not persuasive. They
argue that “McCorkle is distinguishable from the instant matter in that
[Daves] cannot establish the general negligence of Borrego.” But any
4 The rationale for drawing a distinction between undertaking an
investigation (a discretionary decision, protected by immunity) and
conducting an investigation (a ministerial function, that is not protected by
immunity) is illuminated in a passage, in Elton v. County of Orange (1970)
3 Cal.App.3d 1053, in which the court explained that: “If the words ‘the
exercise of the discretion’ were to be given a broad, literal interpretation,
section 820.2 could be invoked to establish immunity from liability for every
act and omission of public employees, for, ‘it would be difficult to conceive of
any official act, no matter how directly ministerial, that did not admit of some
discretion in the manner of its performance.’ ” (Elton, at p. 1057.) It is for
this reason that “[s]ections 815.2 and 820.2 confer immunity [only] upon
‘basic policy decisions’ or conduct characterized as within the ‘planning’
rather than the ‘operational’ level of decision-making.” (H & M Associates v.
City of El Centro (1980) 109 Cal.App.3d 399, 406-407; see also Elton, at
p. 1058 [functions “which could be classified as involving basic policy
decisions (such as recommending a child be, or not be, declared a dependent
child) . . . warrant immunity,” whereas “[d]ecisions made with respect to the
maintenance, care or supervision of . . . a dependent child . . . do not]; cf.
Johnson v. State of California (1968) 69 Cal.2d 782, 795–797 [distinguishing
between “determination of whether to place a youth on parole” (discretionary)
and “determination as to whether to warn . . . foster parents [with whom
paroled youth is placed] of latent dangers facing them” (ministerial); citing
additional cases].)
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conclusion as to whether or not Daves will be able to carry the burden of
establishing negligence is premature.
McCorkle is no outlier. Over the course of many years, its rationale has
guided the Supreme Court and courts of appeal in other cases involving
claims of negligence on the part of police officers conducting investigations.
(See, e.g., Clemente v. State of California (1980) 101 Cal.App.3d 374, 379,
disapproved on other grounds in Williams v. State of California (1983)
34 Cal.3d 18 [“What is involved under these allegations is not the discretion
of [the Officer] in deciding whether to investigate the traffic accident,
pursuant to the discretionary authority vested in him by [the] Vehicle
Code . . . [citation], but instead only his negligence in his conduct of the
discretionary investigation. [T]he discretionary immunity of Government
Code section 820.2 . . . [does not] immunize[ ] the officer and the state from
the legal consequences of this negligence.”]; Lugtu v. California Highway
Patrol (2000) 79 Cal.App.4th 359, 381, review granted and superseded by
Lugtu, supra, 26 Cal. App.4th 703 [police officer’s “decision to stop [car] for a
traffic violation and to direct the driver to stop in the median area was an
operational or ministerial decision, rather than a discretionary decision
protected by immunity”].) On the basis of McCorkle and its progeny, we
conclude the trial court erred in concluding that sections 820.2 and 815.2,
subdivision (b), furnished a basis on which to summarily adjudicate the
negligence and vicarious liability causes of action against Daves.
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III.
DISPOSITION
The judgment is reversed and remanded for further proceedings
consistent with this opinion. Appellant is awarded costs on appeal.
KELETY, J.
WE CONCUR:
O’ROURKE, Acting P. J.
CASTILLO, J.
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