Opinion
C086700
09-25-2019
KELLY HUBER, Plaintiff and Appellant, v. CITY OF STOCKTON et al., Defendants and Respondents.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. STKCVUPI20164450)
Plaintiff Kelly Huber appeals from a judgment of dismissal after the demurrer of the City of Stockton (the City) to her second amended complaint was sustained without leave to amend. Huber, a bank branch manager, was taken hostage and shot in the leg by robbers as they were attempting to flee from police. She alleges that responding officers violated police department policies by confronting the robbers with guns drawn, rather than remaining out of sight until they were clear of bystanders, thereby escalating a volatile situation and increasing the likelihood that hostages would be taken. She contends the trial court erred in sustaining the City's demurrer because the second amended complaint alleges facts sufficient to state causes of action for assault and battery, intentional infliction of emotional distress, and negligence. We disagree, and conclude the second amended complaint fails to state a cause of action upon which relief may be granted. Because Huber does not address the trial court's denial of leave to amend in her opening brief, and does not show that she could amend the complaint to cure the defects in her reply, we conclude the judgment of dismissal must be affirmed.
I. BACKGROUND
We derive our summary of facts from the second amended complaint.
Huber was the manager of a Bank of the West branch in Stockton. The bank was a frequent target for robbers, known to members of the business and law enforcement communities as the "Rob and Go." As relevant here, the bank was robbed twice, by the same robbers, over a six month period.
The first robbery occurred on January 31, 2014. On this occasion, two men—Gilbert Renteria Jr. and Alex Gregory Martinez—arrived on foot, robbed the bank, and then demanded the keys to a car from a bank employee. Renteria and Martinez left the bank without taking or threatening to take hostages, but were unable to immediately locate the employee's car. Following a brief search, they found the car and made their escape. Although police had reason to suspect that Renteria had been involved in the robbery, he was neither questioned nor arrested.
The second robbery, with which we are primarily concerned, occurred on July 16, 2014. This time, Renteria and Martinez were joined by a third man, Jaime Ramos (together, the robbers). As before, the robbers approached the bank on foot, committed the robbery, and then demanded the keys to an employee's car. On this occasion, however, a silent alarm was activated upon the robbers' arrival, notifying police of the robbery in progress.
Huber recognized Renteria and Martinez from the earlier robbery and offered the keys to her car. To ensure that the car would be found quickly, the robbers demanded that Huber accompany them to the parking lot to point it out. The robbers and Huber left the bank and headed towards the parking lot.
In the meantime, three police cars had arrived in the parking lot with flashing lights announcing their presence. As the robbers and Huber emerged from the bank, they were met by officers with guns drawn "who yelled threatening remarks and forced all three robbers back into the bank." The robbers grabbed Huber and "used her as a human shield as they retreated into the bank." The robbers then took two more hostages—Stephanie and Misty —and headed for the exit a second time, with all three hostages at gunpoint.
The group made their way across the parking lot and got into Huber's car. Huber was ordered to drive. Within two minutes of leaving the bank, Huber was shot in the leg by Ramos, rendering her incapable of driving. She was then forced out of the car by the robbers. Renteria took the wheel and led police on a high-speed chase through city and residential streets in Stockton and Lodi.
Numerous police cars joined the hourlong pursuit. Officers eventually opened fire on the getaway car, which still contained hostages Stephanie and Misty. As the shooting intensified, Stephanie, sensing imminent peril, leapt from the moving car to safety. Moments later, police disabled the car, and thirty-two officers fired more than 600 shots, killing two of the robbers and the remaining hostage, Misty. All of the bullets found in Misty's body were fired by police.
Huber filed the operative second amended complaint on May 26, 2017. The second amended complaint alleges that responding officers violated police department policies and procedures for responding to robbery alarms. These policies were allegedly memorialized in a Model Policy for a Bank Alarm Response promulgated by the International Association of Chiefs of Police (IACP) National Law Enforcement Policy Center and the Stockton Police Department's General Order for Robbery Alarms, both of which are excerpted in the second amended complaint. The model policy counsels that responding officers should not use sirens within hearing range of the reported robbery, and should take a position outside that "provides good observation without being easily visible to those inside." The general order directs responding officers to discontinue the use of red lights and sirens when close to the scene of a robbery, but leaves the exact time to discontinue such use to the responding officer, "taking into consideration the fact a hostage situation could be initiated by police response being recognized by the robbers." The second amended complaint alleges that responding officers violated these policies by arriving with lights on, taking positions outside the bank in view of the robbers, and confronting them with guns drawn, rather than remaining out of sight until they were clear of any potential hostages. According to the second amended complaint: "This failure to follow established general orders and protocol caused the robbers to take hostages and allowed the robbers to use hostages to become human shields in an effort to escape. Had the police followed general orders and proper protocol and remained inconspicuous until the robbers were away from the innocent victims, none of the victims would have been taken hostage and made to suffer the physical, emotional and permanent harms sustained as alleged more particularly below. In fact, the robbers would have driven away without any hostages as they had in the first robbery." The second amended complaint asserts causes of action for assault and battery, intentional infliction of emotional distress, and negligence.
The second amended complaint advises that Stephanie has filed her own action against the City. The second amended complaint attaches an unsigned copy of the first amended complaint in that action, which is substantially similar to Huber's complaint herein. The second amended complaint also attaches a copy of an order overruling the City's demurrer to Stephanie's first amended complaint, which was entered by a different judge (the Hon. Barbara A. Kronlund) on May 18, 2017.
The parties devote considerable attention to the Stephanie case in their briefs. We need not consider the sufficiency of Stephanie's first amended complaint, or express an opinion on the merits of the order overruling the demurrer to that pleading, as these matters are not now before us.
The City demurred to the second amended complaint, arguing that Huber failed to state a cause of action for which relief can be granted. Huber opposed the motion, arguing the second amended complaint adequately stated a cause of action, or could be amended to do so. The trial court sustained the demurrer without leave to amend. This appeal timely followed.
II. DISCUSSION
A. Standard of Review
On appeal from a judgment based on an order sustaining a demurrer, we assume all the facts alleged in the complaint are true. (Pineda v. Williams-Sonoma Stores, Inc. (2011) 51 Cal.4th 524, 528.) We accept all properly pleaded material facts but not contentions, deductions, or conclusions of fact or law. (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6.) We determine de novo whether the complaint alleges facts sufficient to state a cause of action under any legal theory. (Committee for Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 42.) We read the complaint as a whole and its parts in their context to give the complaint a reasonable interpretation. (Evans v. City of Berkeley, supra, at p. 6.)
When a trial court has sustained a demurrer without leave to amend, "we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm." (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) "The burden of proving such reasonable possibility is squarely on the plaintiff." (Ibid.) B. Assault and Battery
Huber argues the second amended complaint adequately states causes of action for assault and battery arising from the initial confrontation between responding officers and the robbers. Specifically, she argues that the elements of assault and battery are met by the following allegations: "As the robbers left the bank with only Plaintiff, they were met by defendant Stockton police officers with guns drawn who yelled threatening remarks and forced all three robbers back into the bank. In response to the verbal and physical threats of the defendants, the robbers grabbed Plaintiff and used her as a human shield as they retreated into the bank where other bank customers and employees safely remained until the robbers were forced back into the bank." (Italics added). We are not persuaded that these allegations satisfy the elements of either cause of action. We begin with Huber's assault cause of action, and then consider the battery cause of action.
1. Assault
" 'Generally speaking, an assault is a demonstration of an unlawful intent by one person to inflict immediate injury on the person of another then present.' [Citation.] A civil action for assault is based upon an invasion of the right of a person to live without being put in fear of personal harm." (Lowry v. Standard Oil Co. (1944) 63 Cal.App.2d 1, 6-7 (Lowry) [pointing a gun at another constitutes assault unless the plaintiff knows the gun is, in fact, unloaded].) "The essential elements of a cause of action for assault are: (1) defendant acted with intent to cause harmful or offensive contact, or threatened to touch plaintiff in a harmful or offensive manner; (2) plaintiff reasonably believed she was about to be touched in a harmful or offensive manner or it reasonably appeared to plaintiff that defendant was about to carry out the threat; (3) plaintiff did not consent to defendant's conduct; (4) plaintiff was harmed; and (5) defendant's conduct was a substantial factor in causing plaintiff's harm." (So v. Shin (2013) 212 Cal.App.4th 652, 668-669; see also CACI No. 1301.)
Huber argues she was assaulted when responding officers confronted the robbers with guns drawn and yelled threatening remarks. Relying on Lowry, she observes that pointing a gun at a person may serve as a predicate for an assault cause of action. We do not disagree. But Lowry does not hold that any use of a gun will support a cause of action for assault. Rather, Lowry makes clear that the act of pointing a gun at another may or may not support an assault cause of action, depending on whether the person at whom the gun was pointed reasonably believed he or she was about to be touched in a harmful or offensive manner. (Lowry, supra, 63 Cal.App.2d at p. 7 ["The pointing of a gun at another in a threatening manner is sufficient to cause fear of personal injury unless it is known by the person at whom the weapon is pointed that the gun is in fact unloaded"], italics added.) Here, though Huber alleges that guns were drawn, she does not allege that she reasonably believed she was about to be touched in a harmful or offensive manner. In the absence of any such allegations, we conclude that the second amended complaint fails to state a cause of action for assault.
Huber argues that a reasonable person in her situation would have been placed in fear of imminent physical harm. That may be so, but we are concerned here with the sufficiency of the pleadings. To state a cause of action for assault, Huber must allege that she reasonably believed she was about to be touched in a harmful or offensive manner, or it reasonably appeared to her that officers were about to carry out their threats. (So v. Shin, supra, 212 Cal.App.4th at p. 668.) This she fails to do.
Huber argues for the first time in her reply brief that the complaint could be amended to allege that officers had shotguns and parked their cars in a way that either impeded or failed to impede the robbers' escape. Specifically, Huber offers to amend her complaint to specify "the type of firearm (i.e. shotguns) used by law enforcement, the exact location of each police vehicle and how [it] announced its presence to the robbers and impeded/failed to impede the robbers' ability to escape, and conversations between the robbers and [Huber] during both robberies."
As noted, the burden of proving a reasonable possibility of amending the complaint to state a cause of action is "squarely on the plaintiff." (Blank v. Kirwan, supra, 39 Cal.3d at p. 318.) This burden is not met where the plaintiff waits until her reply brief to identify new facts that could be pled. (Trustees of Capital Wholesale Electric Etc. Fund v. Shearson Lehman Brothers, Inc. (1990) 221 Cal.App.3d 617, 627; Mathews v. Harris (2017) 7 Cal.App.5th 334, 369.) Absent a showing of good cause, we will not consider an argument raised for the first time in a reply brief. (Authority for California Cities Excess Liability v. City of Los Altos (2006) 136 Cal.App.4th 1207, 1216, fn. 2.) Huber does not even attempt to make the required showing.
In any case, Huber's new allegations do not remedy the pleading defect described above. Although drawn guns may often, or even usually, cause a reasonable apprehension of imminent physical harm, there may be any number of circumstances in which they do not. For example, a person on the receiving end of a gun may be unaware of the threat (see Prosser & Keeton, The Law of Torts (5th ed. 1984) § 10, p. 44 ["Since the interest involved is the mental one of apprehension of contact, it should follow that the plaintiff must be aware of the threat of contact, and that it is not an assault to aim a gun at one who is unaware of it"]), or may know that the gun is unloaded (as suggested by Lowry). Alternatively, she may believe that the person holding the gun does not intend to harm her (as in a rescue attempt), or perceive that she is sufficiently out of range as to be out of harm's way (as, for example, in the case of someone sheltered by a structure or another person).
Here, though Huber argues she was close enough to the robbers to be placed in reasonable fear of imminent physical harm as a result of stray shotgun pellets, she does not propose to amend her complaint to so allege. Instead, she merely proposes to allege that officers had shotguns. This untimely allegation does not, without more, raise a non-speculative inference that Huber was placed in reasonable fear of imminent physical harm. Having failed to provide that something more, we conclude that Huber has failed to carry her burden of showing the trial court abused its discretion by sustaining the City's demurrer to the assault cause of action without leave to amend. (Blank v. Kirwan, supra, 39 Cal.3d at p. 318.)
Huber's other proposed amendments are not relevant to the assault cause of action.
2. Battery
We next consider whether the second amended complaint adequately states a cause of action for battery. Huber does not allege that officers touched her or fired the bullet that struck her leg. Instead, she argues that responding officers committed battery by confronting the robbers, rather than allowing them to escape, thereby causing a chain reaction in which she was grabbed and later shot. We are not convinced.
" 'A battery is any intentional, unlawful and harmful contact by one person with the person of another.' " (Fluharty v. Fluharty (1997) 59 Cal.App.4th 484, 497.) "The essential elements of a cause of action for battery are: (1) defendant touched plaintiff, or caused plaintiff to be touched, with the intent to harm or offend plaintiff; (2) plaintiff did not consent to the touching; (3) plaintiff was harmed or offended by defendant's conduct; and (4) a reasonable person in plaintiff's position would have been offended by the touching." (So v. Shin, supra, 212 Cal.App.4th at p. 669; see also CACI No. 1300.) A plaintiff alleging a battery cause of action against a police officer must also plead and prove that the officer used unreasonable force in making a lawful arrest or detention, and that the unreasonable use of force caused the plaintiff injury. (Edson v. City of Anaheim (1998) 63 Cal.App.4th 1269, 1272-1273, citing Pen. Code, § 835a.)
Penal Code section 835a provides as follows: "Any peace officer who has reasonable cause to believe that the person to be arrested has committed a public offense may use reasonable force to effect the arrest, to prevent escape or to overcome resistance. [¶] A peace officer who makes or attempts to make an arrest need not retreat or desist from his efforts by reason of the resistance or threatened resistance of the person being arrested; nor shall such officer be deemed an aggressor or lose his right to self-defense by the use of reasonable force to effect the arrest or to prevent escape or to overcome resistance."
Huber directs our attention to cases in which defendants were found to have committed the touching required for battery indirectly, by causing force to be applied to the person of another. (See, e.g., People v. Dealba (2015) 242 Cal.App.4th 1142, 1152-1153 [evidence was sufficient to sustain conviction for spousal battery where, to counteract force on her hands and arms generated when the defendant repeatedly slammed his car into hers, victim had to grip steering wheel tighter and struggle to keep from crashing into parked cars]; In re B.L. (2015) 239 Cal.App.4th 1491, 1493, 1497 [upholding wardship adjudication based on misdemeanor battery where student slapped walkie-talkie out of teacher's hand]; and see People v. Wright (1996) 52 Cal.App.4th 203, 210, fn. 17 [stating in dicta that force required for battery may be applied indirectly].) We have no quarrel with the principle that an unlawful touching can be accomplished indirectly by intentionally causing force to be applied to another object or person. (People v. Wright, supra, 52 Cal.App.4th at p. 210, fn. 17 ["A defendant can commit a battery indirectly by causing the force to be applied to the person of another"]; see also People v. Hayes (2006) 142 Cal.App.4th 175, 180 [defendant committed battery when he intentionally knocked over a concrete ashtray that fell on victim].) We likewise accept the idea that an unlawful touching can be accomplished indirectly through coercion, as in Rosen v. Martell (E.D. Cal., Feb. 24, 2009, No. 2:08-cv-00284-JWS) 2009 U.S. Dist. Lexis 13944 (Rosen), the case on which Huber primarily relies. But Rosen is readily distinguishable.
In Rosen, the defendant, a police officer, was convicted of multiple counts of assault under color of authority (Pen. Code, § 149) based, in part, on evidence that he ordered the victim to touch his penis. (Rosen, supra, 2009 U.S. Dist. Lexis 13944 at pp. *14-15.) Another panel of this court affirmed the conviction (People v. Rosen (2007) 148 Cal.App.4th 1311), and the California Supreme Court granted review, and later dismissed review in light of People v. Black (2007) 41 Cal.4th 799 and People v. Sandoval (2007) 41 Cal.4th 825. (Rosen, supra, at p. *2.) The defendant then petitioned the federal district court for a writ of habeas corpus (id. at p. *1), arguing, inter alia, that there was insufficient evidence to support the conviction "because the alleged victim touched him and she did not claim that he touched or attempted to touch her, or that he threatened her" (id. at p. *14). The federal district court rejected the defendant's challenge to the sufficiency of the evidence as non-cognizable in a federal habeas proceeding, but nevertheless reproduced several paragraphs from this court's analysis of the same argument. (Id. at pp. *14-20.) As relevant here, the federal district court reproduced our otherwise unciteable conclusion that, "if by coercion a defendant causes an unconsented physical touching of a victim, the defendant is guilty of assault and battery even though the defendant does not do the touching." (Id. at p. *16.) The federal district court also reproduced our citation to People v. Grant (1992) 8 Cal.App.4th 1105, 1112, which we offered for the following proposition: " 'There are many situations where one is compelled, i.e., forced, to do something against one's will but the compulsion does not involve personal violence or threats of personal violence. This is especially true when the person involved in the compulsion is an authority figure or posing as a person in authority. The force is a psychological force compelling the victim to comply with the orders of the authority figure.' " (Rosen, supra, at p. *17.)
Huber relies on these passages to argue that responding officers' allegedly inappropriate show of force left the robbers with no choice but to take hostages, resulting in acts of battery by grabbing and shooting. But the second amended complaint does not allege facts from which we could infer that officers coerced or compelled the robbers to commit battery. Although officers are alleged to have confronted the robbers with drawn guns and "yelled threatening remarks," they are not alleged to have commanded or directed the robbers to grab or shoot Huber. To the contrary, Huber's opening brief and other court submissions indicate that officers ordered the robbers to " '[f]reeze' " or "get on the ground." Nothing in the second amended complaint or the record suggests that officers used their positions of authority to demand that the robbers grab or shoot Huber, and Huber does not seek leave to amend to so allege. Under the circumstances, we conclude that Rosen is inapposite.
To the extent Huber contends responding officers indirectly committed battery by confronting the robbers with guns, thereby prompting them to take hostages, we reject the contention. Neither Rosen nor any other case cited by Huber suggests that hostage-taking can or should be viewed as the natural and probable consequence of an armed confrontation with law enforcement and, on the record before us, we decline to so hold. We therefore conclude that the trial court properly sustained the demurrer to the battery cause of action without leave to amend. C. Intentional Infliction of Emotional Distress
Huber next challenges the trial court's order sustaining the City's demurrer to her cause of action for intentional infliction of emotional distress. The elements of a cause of action for intentional infliction of emotional distress are: " ' "(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct." ' " (Melorich Builders, Inc. v. Superior Court (1984) 160 Cal.App.3d 931, 935 (Melorich).)
"The standard set for measuring outrageous conduct indicates the qualifying conduct must be so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized community. [Citation.]" (Melorich, supra, 160 Cal.App.3d at p. 936.) "Generally, conduct will be found to be actionable where the 'recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, "Outrageous!" ' " (KOVR-TV, Inc. v. Superior Court (1995) 31 Cal.App4.th 1023, 1028.)
To support a cause of action, "[i]t is not enough that the conduct be intentional and outrageous. It must be conduct directed at the plaintiff, or occur in the presence of a plaintiff of whom the defendant is aware." (Christensen v. Superior Court (1991) 54 Cal.3d 868, 903.) "The requirement that the defendant's conduct be directed primarily at the plaintiff is a factor which distinguishes intentional infliction of emotional distress from the negligent infliction of such injury." (Id. at p. 904.) In circumstances in which a plaintiff seeks to recover for emotional distress suffered as the result of conduct directed primarily at another, recovery—to the extent it has been allowed at all—"has been limited to ' "the most extreme cases of violent attack, where there is some especial likelihood of fright or shock." ' " (Id. at p. 905, quoting Ochoa v. Superior Court (1985) 39 Cal.3d 159, 165, fn. 5.)
Huber argues responding officers acted outrageously by violating police department policies, thereby increasing the likelihood that a hostage situation would develop. We assume, as we must, that responding officers violated police department policies by arriving with lights on, taking positions outside the bank in view of the robbers, and confronting them with guns drawn, rather than remaining out of sight until they were clear of any potential hostages. Even so assuming, the alleged violations of police department policy do not rise to the level of extreme and outrageous conduct required for a cause for intentional infliction of emotional distress.
Huber implies on appeal that responding officers also violated police department policies by arriving with sirens on. This allegation does not appear in the second amended complaint, and Huber does not seek leave to amend her opening brief to so allege. Accordingly, we decline to consider it.
Although the police response to the robbery alarm may have been ill-considered, we cannot say that the responding officers' conduct was " ' "so extreme as to exceed all bounds of that usually tolerated in a civilized community." ' " (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1001.) Responding to a crime in progress in marked cars with flashing lights and confronting robbers with guns drawn are not acts that would cause an average member of the community "to exclaim, ' "Outrageous!" ' " (KOVR-TV, Inc. v. Superior Court, supra, 31 Cal.App.4th at p. 1028.) Likewise, yelling threatening remarks at the robbers and pursuing them as they tried to make their escape with the hostages are not acts alleged to have been intentionally directed at Huber and do not suggest an extreme case of a violent attack where there is some special likelihood of fright or shock. To the contrary, the second amended complaint suggests that the responding officers' actions were directed at the robbers and only incidentally affected Huber by virtue of her ostensible proximity to them.
Although Huber undoubtedly experienced a terrifying ordeal, the second amended complaint fails to allege facts sufficient to state a cause of action for intentional infliction of emotional distress, and Huber does not suggest that the deficiencies can be cured by amendment. Accordingly, we conclude the trial court properly sustained the demurrer to Huber's cause of action for intentional infliction of emotional distress without leave to amend. D. Negligence
Finally, Huber challenges the trial court's order sustaining the City's demurrer to her negligence cause of action. The City's potential liability for negligence can be premised on two grounds: (1) direct liability, based on the City's "own conduct and legal obligations;" and (2) vicarious "liability, based on respondeat superior principles, for the misconduct of [the City's] employees that occurred in the scope of their employment." (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1127.) Huber argues the second amended complaint states a negligence cause of action under two theories of vicarious liability. First, she argues the second amended complaint states a cause of action for the negligent acts of responding officers. Second, she argues the second amended complaint states a cause of action for negligent hiring, training, and supervision. We consider each theory in turn.
1. Vicarious Liability for Negligent Acts of Responding Officers
"Government Code section 815.2, subdivision (a), provides that 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 give rise to a cause of action against that employee." (Kisbey v. State of California (1984) 36 Cal.3d 415, 418; see also Zelig v. County of Los Angeles, supra, 27 Cal.4th at p. 1128 ["Vicarious liability is a primary basis for liability on the part of a public entity, and flows from the responsibility of such an entity for the acts of its employees under the principle of respondeat superior"].) "When assessing a claim for vicarious liability against a governmental employer based on the acts or omissions of its employee, a court must examine whether the employee who acted or failed to act would have been personally liable for the injury." (de Villers v. County of San Diego (2007) 156 Cal.App.4th 238, 249; see Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1180.)
Undesignated statutory references are to the Government Code.
The well-established elements of a cause of action for negligence are duty, breach of duty, proximate cause, and damages. (Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 614.) The City effectively conceded the sufficiency of the second amended complaint's negligence allegations in the trial court, arguing only that the officers' conduct, if negligent, was immunized by section 845.8, subdivision (b). On appeal, the City invites us to affirm the trial court's order on the alternative ground that the second amended complaint fails to allege the existence of a legal duty. (See generally Greyhound Lines, Inc. v. Department of California Highway Patrol (2013) 213 Cal.App.4th 1129, 1132-1133 [law enforcement officers have no general duty to come to the aid of another "unless a special relationship exists between the injured party and the officers. Such a special relationship arises if an officer's affirmative act creates the peril, or contributes to, increases, or changes the risk that otherwise exists"].) Although " '[a]n appellate court may . . . consider new theories on appeal from the sustaining of a demurrer to challenge or justify the ruling,' " (Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal.App.4th 1356, 1396) we deem it unnecessary to reach the City's new arguments for affirmance, as we conclude section 845.8, subdivision (b) provides a clear bar to liability, whether or not the second amended complaint adequately alleges the elements of a negligence cause of action.
Our Supreme Court has explained that where, as here, a case poses questions regarding the existence of a duty of care and the availability of immunity, "logic suggests that unless the first is answered in the affirmative, the second does not even arise." (Kisbey v. State of California, supra, 36 Cal.3d at p. 418; see also Williams v. State of California (1983) 34 Cal.3d 18, 22 [cautioning against placing "the immunity cart" before "the duty horse"].) However, California courts have also recognized that "a court may turn first to a statutory immunity where its application provides a clear bar rather than wrestle with a murky duty issue, 'suggesting, perhaps, that the life of the law is not logic, but expedience.' " (Rombalski v. City of Laguna Beach (1989) 213 Cal.App.3d 842, 858, fn. 3, quoting Kisbey v. State of California, supra, at p. 418.)
Section 845.8, subdivision (b) provides: "Neither a public entity nor a public employee is liable for: [¶] . . . [¶] (b) Any injury caused by: [¶] (1) An escaping or escaped prisoner; [¶] (2) An escaping or escaped arrested person; or [¶] (3) A person resisting arrest." Our Supreme Court has explained that section 845.8, subdivision (b) was designed "to immunize public entities and employees from the entire spectrum of potential injuries caused by persons actually or about to be deprived of their freedom who take physical measures of one kind or another to avoid the constraint or to escape from it." (Kisbey v. State of California, supra, 36 Cal.3d at p. 419.) "The immunity granted in section 845.8, subdivision (b), is absolute in terms and must be given effect 'unless it clearly appears that the language used is contrary to what, beyond question, was the intent of the Legislature.' [Citation]." (County of Sacramento v. Superior Court (1972) 8 Cal.3d 479, 482.)
The second amended complaint makes clear that Huber seeks recovery for physical and emotional injuries caused by the robbers as they attempted to avoid arrest. The second amended complaint alleges the robbers responded to the police show of force by grabbing Huber and using her as a human shield as they retreated into the bank. They held her at gunpoint as they exited the bank, ordered her to drive, and shot her in the leg within minutes of leaving the scene. These allegations establish that Huber's injuries were caused by persons resisting arrest and are thus within the purview of section 845.8, subdivision (b). It follows that the officers are immune from liability for negligence, and the City cannot be vicariously liable for the officers' negligent acts.
Huber attempts to avoid this conclusion in two ways. First, she argues that section 845.8, subdivision (b) does not apply where officers create the danger that causes harm. Huber directs our attention to Grudt v. City of Los Angeles (1970) 2 Cal.3d 575 (Grudt) and Hayes v. County of San Diego (2013) 57 Cal.4th 622 (Hayes), both of which involved negligence causes of action against police officers. (See Grudt, supra, at p. 587 [preshooting circumstances showed that use of deadly force was unreasonable where plainclothes officer carrying double-barreled shotgun approached car at night in high crime area, prompting driver to accelerate toward second plainclothes officer, leading both officers to shoot and kill driver]; Hayes, supra, at p. 626 [tactical conduct and decisions leading up to use of deadly force showed, as part of the totality of the circumstances, that sheriff's deputies acted unreasonably in conducting welfare check on suicidal man when they failed to ask whether the man was under the influence of alcohol or drugs, ordered the man to show his hands, and then shot and killed him when they saw he was holding a knife in one of his raised hands].) But neither of these cases involved fleeing suspects or the application of section 845.8, subdivision (b), and neither supports Huber's contention that the statute does not apply where police conduct creates or contributes to the peril that causes harm. We therefore reject Huber's attempt to limit section 845.8, subdivision (b), noting, as the trial court did, that her interpretation would render the statute a nullity, as the actions of police can almost always be said to have created the conditions that cause a suspect to flee.
Second, Huber directs our attention to Vehicle Code section 17001, which establishes an exception to the general rule of immunity for injuries caused by fleeing suspects. (Ramirez v. City of Gardena (2018) 5 Cal.5th 995, 1024.) Vehicle Code section 17001 makes a public entity liable for the death or injury of a person proximately caused by an employee's negligent operation of a motor vehicle. For Vehicle Code section 17001 to apply, however, "it is not sufficient that a motor vehicle somehow be involved in the series of events that results in the injury." (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 923 [statute inapplicable where juvenile hall employees failed to properly restrain juvenile detainee in county automobile, allowing detainee to sustain injuries when she leapt from automobile and attempted to board a slow-moving train].) Instead, " 'the vehicle must be in a "state of being at work" or "in the . . . exercise of some specific function" by performing work or producing effects at the time and place the injury is inflicted.' [Citation.]" (Hernandez v. City of Pomona (2009) 46 Cal.4th 501, 520.)
Vehicle Code section 17001 provides: "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."
Huber argues that responding officers violated police department policies "by driving to the bank with sirens on, blocking the exits with their police cars[,] and approaching suspects in a threatening manner using the police cars as a shield." However, these allegations do not appear in the second amended complaint. The second amended complaint alleges that responding officers violated police department policies by arriving with flashing lights and parking in view of the robbers. The second amended complaint does not say anything about sirens, blocked exits, or the use of police cars as shields. But even assuming the second amended complaint could be amended to so allege, we would conclude that Vehicle Code section 17001 was inapplicable. Contrary to Huber's contention, the second amended complaint cannot be fairly read to suggest that her alleged injuries were proximately caused by the negligent operation of a motor vehicle. Rather, the second amended complaint alleges that Huber was injured by responding officers' tactical decisions to make a show of force and confront the robbers, rather than allowing them to escape. That these decisions incidentally involved the use of motor vehicles does not bring Huber's negligence cause of action within the scope of Vehicle Code section 17001. (Ladd v. County of San Mateo, supra, 12 Cal.4th at p. 923.) The trial court correctly concluded that section 845.8, subdivision (b) bars Huber's negligence cause of action based on the negligent acts of responding officers.
2. Vicarious Liability for Negligent Hiring, Training, and Supervision
Huber argues the second amended complaint states a negligence cause of action under a theory of vicarious liability for negligent hiring, training, and supervision. We disagree.
Our Supreme Court examined the circumstances in which a plaintiff may sue a public entity for negligent hiring, retention, and supervision on the basis of vicarious liability in C.A. v. William S. Hart Union High School District (2012) 53 Cal.4th 861 (William S. Hart). There, the plaintiff, a minor, sued his guidance counselor and school district for damages arising out of the counselor's sexual harassment and abuse. (Id. at p. 865.) The court considered whether the school district could be vicariously liable, consistent with section 815.2, for the conduct of its supervisory and administrative personnel who knew or should have known of the counselor's harassing and abusive propensities. (William S. Hart, supra, at p. 865.)
The court held that the plaintiff could pursue a cause of action against the school district under a theory of vicarious liability for negligent hiring, retention, and supervision where the cause of action was premised on the conduct of supervisory and administrative personnel who knew or should have known of the counselor's propensities for misconduct. (William S. Hart, supra, 53 Cal.4th at pp. 874-875.) However, the court limited the viability of such a cause of action to situations in which supervisory or administrative personnel have a "special relationship" with the plaintiff or class of plaintiffs. (Id. at p. 877.) The court reasoned that "a school district and its employees have a special relationship with the district's pupils, a relationship arising from the mandatory character of school attendance and the comprehensive control over students exercised by school personnel, 'analogous in many ways to the relationship between parents and their children.' [Citations.]" (Id. at p. 869.) The court explained that this special relationship imposes obligations beyond a general duty of ordinary care, such that "the duty of care owed by school personnel includes the duty to use reasonable measures to protect students from foreseeable injury at the hands of third parties acting negligently or intentionally." (Id. at p. 870.)
In discussing duty as a limitation on such causes of action, the court reiterated: "Turning to the duty element, we have explained that the potential legal responsibility of District administrators and supervisors for negligently hiring or retaining [the counselor] arises from the special relationship they had with plaintiff, a student under their supervision, which relationship entailed the duty to take reasonable measures to protect plaintiff from injuries at the hands of others in the school environment. Absent such a special relationship, there can be no individual liability to third parties for negligent hiring, retention or supervision of a fellow employee, and hence no vicarious liability under section 815 .2 . . . ." (William S. Hart, supra, 53 Cal.4th at p. 877, italics added.)
Huber argues that a special relationship arose in the present case because responding officers engaged in affirmative acts that created or increased her peril. (See Greyhound Lines, Inc. v. Department of California Highway Patrol, supra, 213 Cal.App.4th at pp. 1133.) But this argument misstates our inquiry. The question before us, as William S. Hart makes clear, is not whether responding officers had a special relationship with Huber, but whether supervisory or administrative personnel responsible for hiring, training, and supervising those officers had such a relationship. (William S. Hart, supra, 53 Cal.4th at p. 877.) The second amended complaint does not allege facts suggesting the existence of a special relationship between Huber or any other member of the public and the supervisory or administrative personnel responsible for hiring, retaining, or training the officers who responded to the robbery alarm at the bank. Nor does the second amended complaint allege that supervisory or administrative personnel were aware of any responding officer's propensity to violate policies for responding to robbery alarms. In the absence of any such allegations, we conclude, as the trial court did, that the second amended complaint fails to state a cause of action for negligent hiring, retention, or supervision. Because Huber makes no attempt to show that the defects can be cured by amendment, we conclude the trial court properly sustained the demurrer without leave to amend.
III. DISPOSITION
The judgment is affirmed. The City shall recover costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)
/S/_________
RENNER, J. We concur: /S/_________
BLEASE, Acting P. J. /S/_________
HOCH, J.