Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. CGC-04-432914
Bruiniers, J.
Officers of the California Highway Patrol (CHP) arrested a drunk driver on a city street in the Ingleside district of San Francisco in the early morning hours of July 12, 2003. They did not arrest two intoxicated passengers and left them with the driver’s car in a nearby parking lot to wait for transportation. Shortly after the officers departed the scene, the passengers were ravaged with gunfire in a targeted attack; one died and the other was severely wounded. The survivor and the decedent’s mother (collectively Plaintiffs) sued the patrolmen and the CHP (collectively Defendants) for negligence in leaving the two men unprotected in these circumstances. The trial court granted summary judgment to the Defendants.
We affirm. Although law enforcement officers owe a duty to citizens not to induce detrimental reliance on the officers’ protection and not to increase their risk of harm, Plaintiffs here failed to raise triable issues of fact on breach of that duty.
I. Background
The following facts are based on the evidence submitted on the summary judgment motion, with all factual disputes resolved and all fair inferences drawn in favor of the Plaintiffs. (See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).)
The evidence submitted included excerpts of testimony from the criminal trial of the assailant, as discussed post.
In the early hours of July 12, 2003, Ryan Crowley, Robert Ramirez and Brendan Burke met in San Francisco after a night of drinking and departed together for Daly City. Crowley was driving, Burke was passed out in the front passenger seat, and Ramirez was seated in the rear passenger seat. Their car, which belonged to Crowley’s grandfather, ran out of gas and came to a stop on Highway 280 at the Ocean Avenue exit. Crowley and Ramirez pushed the car onto the off-ramp and Crowley left to purchase gasoline.
While Ramirez was waiting at the car for Crowley to return, he saw an acquaintance, Michael Debergerac and also, he believed, Philip Sands drive by. Both Debergerac and Sands were former friends of Ramirez who had recent serious conflicts with him. Debergerac later testified at Sands’s criminal trial, discussed post, that he was not with Sands when he saw Ramirez, but that he later called Sands to tell him where Ramirez was located. Sands had accused Ramirez of “snitching” on him.
When Crowley returned to the car with gasoline, Ramirez told him he had seen Debergerac and Sands drive by. Ramirez’s demeanor had changed and he seemed eager to leave. Crowley was aware that Ramirez and Sands had a “falling out” and were no longer friends, but did not believe that it was anything serious that would result in harm to Ramirez. Ramirez had never previously expressed fear to Crowley that Sands would harm him. Crowley also later told investigating officers that he had asked Ramirez that night if he was frightened when he saw the men, and that Ramirez had replied “Fuck, I ain’t scared of nobody.”
Crowley and Ramirez added gas to the car and Crowley was able to start the car. He drove onto Ocean Avenue and rolled through a red light because the car was sputtering and he wanted to get to the gas station before it stalled.
CHP Officers Scott McFarlane and Matthew Weber initially saw Crowley’s dark colored Oldsmobile partially blocking the Ocean Avenue off-ramp from Highway 280, with an individual standing at the rear of the car. Minutes later McFarlane and Weber returned to the off-ramp, observed the car leaving and followed it onto Ocean Avenue. They saw Crowley drive through the red light at Ocean Avenue and Howth Street and pulled him over on Ocean Avenue, abutting City College of San Francisco. McFarlane smelled alcohol on Crowley’s breath and saw that he had red eyes, slurred speech, and an unsteady gait. A preliminary alcohol screening test showed Crowley had a blood alcohol level of about 0.10 percent and Crowley failed field sobriety tests. McFarlane arrested him for driving under the influence and placed him in the patrol car. A later breath test confirmed that Crowley’s blood alcohol level was 0.10 percent.
Ramirez and Burke both showed signs of intoxication. Ramirez’s blood alcohol level at the time of his death (about 15 minutes after the officers’ departure) was 0.18 percent, significantly higher than Crowley’s; he also had cocaine in his system. Burke’s blood alcohol level at 4:13 a.m. was 0.28 percent. He was passed out and lying face down in the front seat of the car at the time the vehicle was stopped by the officers. Crowley told Weber that Burke had had too much to drink, but Weber did not open the door or otherwise check on him. McFarlane wrote in his report that “Burke was so intoxicated he was incoherent.”
Defendants dispute whether Ramirez and Burke were obviously intoxicated, but we resolve any conflict in favor of Plaintiffs, as we must on review of the summary judgment order. (See Aguilar, supra, 25 Cal.4th at p. 843.)
As to both Ramirez and Burke, Plaintiffs make representations about the effects of their blood alcohol levels, citing information from the National Institute of Health. The cited exhibit consists of multiple copies of a single page of text that appears to have been printed out from a National Institutes of Health website. The document describes the research mission of the federal agency and does not include any information about alcohol abuse. Therefore, we ignore these unsupported factual representations.
Crowley asked the officers not to tow or impound the vehicle and McFarlane agreed. Ramirez disclosed that he did not have a driver’s license. The officers let him use Crowley’s cell phone to call his brother to come pick him up, and Ramirez told the officers his brother was on his way and would arrive in about ten minutes. Neither Ramirez nor Crowley told the officers about Debergerac or Sands, or that Ramirez had any concern for his personal safety.
McFarlane avers that he asked Ramirez “what he wanted to do, and if he wanted us to call a cab.” Crowley stated that he never heard the officer ask Ramirez if he wanted a cab or what he wanted to do. While Plaintiffs contend that these facts are disputed, Crowley’s declaration does not directly contradict the officer’s testimony, and Plaintiffs cited as the basis for dispute that, since Ramirez was dead “a fact finder should determine the veracity of OFFICER McFARLANE’S statements.” Summary judgment may not be denied on grounds of credibility, or on an assertion that cross-examination is necessary. (Code Civ. Proc., § 437c, subd. (e) [subject, however, to the discretion of the court to deny the motion “where the only proof of a material fact offered in support of the summary judgment is an affidavit or declaration made by an individual who was the sole witness to that fact”]; see Lerner v. Superior Court (1977) 70 Cal.App.3d 656, 660.)
The officers directed Ramirez to move Crowley’s car, which was stopped in a traffic lane on Ocean Avenue, to a San Francisco City College parking lot that was immediately adjacent to that section of the street. The officers pulled into the parking lot behind Ramirez. They apparently left the car keys with Ramirez, but instructed him not to drive away. The officers left the parking lot at 3:33 a.m. After leaving the parking lot, the officers took Crowley to the police station. Crowley did not observe the officers doing anything to confirm that Ramirez’s brother had arrived to pick up the two men.
Defendants state more passively that Ramirez moved the car to the parking lot, without attributing the move to an officer’s order or instruction. Some of evidence cited by Defendants, however, indicates that the officers instructed Ramirez to move the car to the parking lot, and none of the evidence cited by Defendants contradicts this fact. In any event, as stated, we resolve all factual disputes in favor of Plaintiffs on review of the summary judgment order. (See Aguilar, supra, 25 Cal.4th at p. 843.)
There is a factual dispute about whether McFarlane asked Ramirez if he needed anything before the officers left and whether Ramirez said he did not. Again, any conflict in the evidence must be resolved in Plaintiffs’ favor.
Ramirez’s brother left his home as soon as he received Ramirez’s phone call. When he arrived at the parking lot about 15 minutes later, he found that both Ramirez and Burke had been shot. Ramirez died, and Burke had multiple gunshot wounds. Thirty spent bullet casings were recovered at the scene and Ramirez alone had been shot 22 times. Phillip Sands was subsequently arrested and charged with the murder and assault. On November 4, 2005, a jury convicted Sands of murdering Ramirez for the purpose of preventing him from testifying in a criminal proceeding, and convicted him of assaulting Burke with a machine gun. We affirmed the conviction October 31, 2008. (People v. Sands (Oct. 31, 2008, A112684) [nonpub. opn.].)
In 2003, the following crimes were committed in the Ingleside area of San Francisco, which includes City College: 10 murders, 18 rapes, 401 robberies, 272 aggravated assaults, 113 weapons violations, as well as numerous property and drug offenses. The Ingleside police station was less than one-half mile away from the City College parking lot; a San Francisco Fire Station was one-tenth of a mile away; the City College police department was half a mile away; and a 24-hour gas station was one-fifth of a mile away.
Plaintiffs sued Defendants for negligence, alleging “that the careless and negligent conduct of Defendant California Highway Patrol and its officers in leaving two obviously intoxicated young men in a parked car at 3:30 a.m., one of whom was under the legal drinking age, was a violation of its own policies and procedures and was the proximate cause” of Ramirez’s death and Burke’s injuries. The trial court overruled Defendants’ demurrer.
The complaint also named Ramirez’s father as a nominal defendant pursuant to Code of Civil Procedure section 382, which provides: “If the consent of any one who should have been joined as plaintiff cannot be obtained, he may be made a defendant, the reason thereof being stated in the complaint; and when the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court, one or more may sue or defend for the benefit of all.” In March 2006, Plaintiffs dismissed their complaint against Ramirez’s father without prejudice.
In May 2007, Defendants moved for summary judgment arguing that, in the absence of a special relationship, there is no duty of care requiring law enforcement officers to protect individuals from the criminal acts of others, and that the evidence could not support a finding of any special relationship. They also argued that the deliberate murder of Ramirez by Sands was not, in any event, reasonably foreseeable to the officers. In opposition, Plaintiffs did not dispute that a special relationship is required to impose a duty of care upon law enforcement, but they asserted that the officers had established such a special relationship with Ramirez and Burke by (1) creating a situation of dependency and inducing the men’s detrimental reliance on the officers for protection, and (2) placing the men in peril or at increased risk of harm.
The trial court granted summary judgment for Defendants. Citing Lugtu v. California Highway Patrol (2001) 26 Cal.4th 703, 716 (Lugtu), the court ruled the officers owed Ramirez and Burke a duty “not to place them in a situation in which they would be exposed to an unreasonable risk of harm through the reasonably foreseeable conduct of a third person.” Citing Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1150 (Wiener), the court ruled that “a higher level of foreseeability [is] required to find negligence for a third party crime in a particular location than is required for ordinary negligence.” The court concluded: “At no time did [O]fficers Mac[F]arlane and Weber have any information about or knowledge of Sands, the person who shot Ramirez and Burke, or Debergerac, the person seen earlier that evening by Ramirez. [¶]... No evidence exists that Officers Mc[F]arlane and Weber knew or had any information that the parking lot was dangerous. [¶]... No evidence exists of violent crime occurring in the parking lot prior to the shooting of Ramirez and Burke. [¶]... No evidence exists that the movement of the car from Ocean Avenue to the abutting parking lot increased the risk of Ramirez and Burke being shot. [¶]... It was not reasonably foreseeable that Ramirez and Burke would be shot in the parking lot.” A judgment was filed in March 2008.
In April 2008, Plaintiffs moved for a new trial. Plaintiffs argued the court committed legal error in concluding that on the facts presented the officers left Ramirez and Burke at no greater risk of harm than they had been in before the officers arrived: the “CHP officers did increase the risk of harm to the two intoxicated passengers... by taking away the protector who was getting them home and leaving them in a secluded dark lot and ordering the only conscious one not to drive.” They also presented what they alleged to be “newly discovered evidence,” declarations by San Francisco police officers averring that drug deals and violent crimes had occurred in the City College lot prior to the shootings of Ramirez and Burke and that the CHP officers’ conduct was inconsistent with their training and police practices.
The court denied the motion, reiterating its conclusion “that it is simply not foreseeable that a man with a gun would shoot the young men in this parking lot at 3:00 a.m., whether the assailant be a stranger, or as in this case, a man with a gun with a motive to kill one or both of the young men.” As to the “newly discovered evidence,” the court found that “Plaintiffs have not effectively demonstrated why the evidence they seek to introduce was not produced before.” Moreover, the San Francisco officers merely “explain why they would not have left the youth in the parking lot. It is not the court’s conclusion that it was a prudent decision by the CHP officers to leave the young men in the parking lot. In deciding this case, the question is one of the foreseeability of harm....”
Plaintiffs appeal from the order granting summary judgment for the Defendants and from the order denying their motion for a new trial.
II. Discussion
For purposes of judicial economy, we will not analyze separately the order denying the summary judgment motion and the order denying the motion for new trial. Instead, we will consider all of the evidence and argument submitted by Plaintiffs on both motions and explain why we conclude that Plaintiffs have not raised material issues of fact that would preclude summary judgment for Defendants.
Except as otherwise noted in the factual background of this opinion, we also will not consider Defendants’ objections to Plaintiffs’ evidence, which were not ruled on by the trial court and have not been renewed on appeal, or the trial court’s ruling that Plaintiffs failed to demonstrate diligence in producing the police officers’ declarations, an issue Plaintiffs do not raise on appeal. Plaintiffs’ trial court objections to Defendants’ evidence are likewise forfeited because Plaintiffs did not obtain a ruling from the trial court and also because Plaintiffs do not renew the objections on appeal. (City of Long Beach v. Farmers & Merchants Bank (2000) 81 Cal.App.4th 780, 784–785; Ward v. Taggart (1959) 51 Cal.2d 736, 742.)
A. Standard of Review
Summary judgment is appropriate “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) “[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar, supra, 25 Cal.4th at 850, fn. omitted.) When, as here, the plaintiffs bear the burden of proving facts by a preponderance of the evidence and the defendants move for summary judgment, the defendants “must present evidence that would require a reasonable trier of fact not to find any underlying material fact more likely than not....” (Id. at p. 851.) On review of a “trial court’s order granting defendants summary judgment, we independently examine the record in order to determine whether triable issues of fact exist to reinstate the action. [Citation.]” (Wiener, supra, 32 Cal.4th at p. 1142.) We view the evidence in the light most favorable to Plaintiffs as the losing parties, liberally construe Plaintiffs’ evidentiary submissions, and strictly scrutinize Defendants’ own evidence, resolving any evidentiary doubts or ambiguities in Plaintiffs’ favor. (Ibid.)
B. Negligence Principles as Applied to Law Enforcement Officials
“Under the provisions of the California Tort Claims Act, ‘a public employee is liable for injury caused by his act or omission to the same extent as a private person,’ except as otherwise specifically provided by statute. (Gov. Code, § 820, subd. (a), italics added.) In addition, the Tort Claims Act further 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... have given rise to a cause of action against that employee, ’ unless ‘the employee is immune from liability.’ (Gov. Code, § 815.2, subds. (a), (b), italics added.)” (Lugtu, supra, 26 Cal.4th at p. 715.) Because Officers McFarlane and Weber were unquestionably acting within the scope of their employment at the time of these events, Defendants’ liability, if any, turns on ordinary principles of negligence law. (See id. at pp. 715–716.)
“ ‘ “Actionable negligence is traditionally regarded as involving the following: (a) a legal duty to use due care; (b) a breach of such legal duty; (c) the breach as the proximate or legal cause of the resulting injury.” ’ [Citation.] ‘ “While breach of duty and proximate cause normally present factual questions, the existence of a legal duty in a given factual situation is a question of law for the courts to determine. [Citation.]” ’ ” (Seo v. All-Makes Overhead Doors (2002) 97 Cal.App.4th 1193, 1202 (Seo) [citing Jackson v. Ryder Truck Rental, Inc. (1993) 16 Cal.App.4th 1830, 1837–1838].) “ ‘Duty is simply a shorthand expression for the sum total of policy considerations favoring a conclusion that the plaintiff is entitled to legal protection. [Citation.]’ [Citations.]” (Munoz v. City of Union City (2004) 120 Cal.App.4th 1077, 1094 (Munoz).)
In determining whether a party has a legal duty, “a distinction is drawn between claims of liability based upon misfeasance and those based upon nonfeasance. ‘ “ ‘Misfeasance exists when the defendant is responsible for making the plaintiff’s position worse, i.e., defendant has created a risk. Conversely, nonfeasance is found when the defendant has failed to aid plaintiff through beneficial intervention....’ [Citations.]” ’ Liability for misfeasance is based on the general duty of ordinary care to prevent others from being injured by one’s conduct. [Citations.] Liability for nonfeasance is limited to situations in which there is a special relationship that creates a duty to act. [Citations.] ‘The basic idea is often referred to as the “no duty to aid rule”.... “As a rule, one has no duty to come to the aid of another. A person who has not created a peril is not liable in tort merely for failure to take affirmative action to assist or protect another unless there is some relationship between them which gives rise to a duty to act.” ’[Citation.]” (Seo, supra, 97 Cal.App.4th at pp. 1202–1203; see also 6 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 1038, p. 332.)
1. The “Special Relationship” Doctrine
Plaintiffs argue the officers’ duty of care in this case required them to either transport Ramirez and Burke to a safe location or to wait with them until Ramirez’s brother arrived to pick them up. In addressing the threshold question here of whether the CHP officers owed a duty to Ramirez and Burke, both sides appear to blur the distinction between a legal duty arising from a “special relationship” imposing liability for a failure to protect, assist or warn (nonfeasance), and that created by the voluntary undertaking doctrine, which imposes liability for affirmative conduct (misfeasance). “ ‘[M]isfeasance exists when the defendant is responsible for making the plaintiff’s position worse, i.e., defendant has created a risk. Conversely, nonfeasance is found when the defendant has failed to aid plaintiff through beneficial intervention.’ ” (Lugtu, supra, 26 Cal.4th at p. 716 [quoting Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 49].)
Police officers, like other members of the public, generally may not be held liable in damages for failing to take affirmative steps to come to the aid of, or prevent an injury to, another person. (Lugtu, supra, 26 Cal.4th at pp. 716–717.) A duty to take affirmative steps may arise if “ ‘(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or (b) a special relation exists between the actor and the other which gives the other a right to protection.’ [Citation.]” (Davidson v. City of Westminster (1982) 32 Cal.3d 197, 203 (Davidson) [citing Rest.2d. Torts, § 315].) “ ‘ “This rule derives from the common law’s distinction between misfeasance and nonfeasance, and its reluctance to impose liability for the latter.” ’ [Citation.]” (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1129 (Zelig).) Therefore, “[i]n most instances, these general rules bar recovery when plaintiffs, having suffered injury from third parties who were engaged in criminal activities, claim that their injuries could have been prevented by timely assistance from a law enforcement officer. [Citations.]” (Ibid.)
Special relationships imposing affirmative duties of protection also arise in contexts unrelated to law enforcement, including the landlord-land user relationship (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674 (Ann M.); Sharon P. v. Arman, Ltd. (1999) 21 Cal.4th 1181, 1189; Wiener, supra, 32 Cal.4th at p. 1146; Castaneda v. Olsher (2007) 41 Cal.4th 1205, 1213) and the business proprietor-patron relationship (Delgado v. Trax Bar & Grill (2005)36 Cal.4th 224, 229 (Delgado)).
Thus, in Zelig a county was not liable for failing to protect a litigant from a violent attack by her husband in a courthouse because there was no such special relationship. (Zelig, supra, 27 Cal.4th at pp. 1118–1119, 1128–1131.) Police officers have been held not liable for failing to warn a victim of a crime unfolding at a site under police surveillance (Davidson, supra, 32 Cal.3d at pp. 201, 203, 206–208), for failing to warn neighbors that a released juvenile offender had threatened to kill an unspecified child upon his release (Thompson v. County of Alameda (1980) 27 Cal.3d 741, 746, 753), and for failing to respond promptly or adequately to reports of criminal activity (Davidson, at pp. 206–207 [discussing Hartzler v. City of San Jose (1975) 46 Cal.App.3d 6 (no liability for homicide where police failed to respond to victim’s plea for help)]; see also Benavidez v. San Jose Police Dept. (1999) 71 Cal.App.4th 853, 859–862, 868 [no liability when the police responded to domestic violence call but failed to protect victim after her subsequent call for assistance]; Hernandez v. City of Pomona (1996) 49 Cal.App.4th 1492, 1503–1505 [person who was aware of danger arising from his testimony at a criminal trial involving a gang was not entitled to damages for the failure of the police to warn the witness or supply special protection]; Antique Arts Corp. v. City of Torrance (1974) 39 Cal.App.3d 588 [no liability where police dispatcher delayed in broadcasting burglary alert]).
“[I]t is settled that the rules concerning the duty—or lack thereof—to come to the aid of another are applicable to law enforcement personnel in carrying out routine traffic investigations.” (Williams v. State of California (1983) 34 Cal.3d 18, 24 (Williams).) Plaintiffs argue the officers established a special relationship with Ramirez and Burke that gave rise to a duty to protect the men, but they presented no evidence of the “ ‘requisite factors to a finding of special relationship, namely detrimental reliance by the plaintiff[s] on the officers’ conduct, [or] statements made by them which induced a false sense of security and thereby worsened [plaintiffs’] position.’ ([Id. at pp.] 27–28, fn. omitted.)” (Zelig, supra, 27 Cal.4th at p. 1130.) The officers made no promise of protection upon which Ramirez or Burke could detrimentally rely, and there were neither statements made by the officers nor any conduct of the officers which could induce in them any false sense of security. The evidence presented shows that Burke was either unconscious or incoherent throughout the encounter with the officers, and that Ramirez conveyed nothing to the officers about any concerns for his safety, or that he viewed himself in peril. Plaintiffs could not prevail under a theory of a duty created by a special relationship, and no triable issue was presented under such a theory of liability.
2. The Voluntary Undertaking Doctrine
As discussed above, one ordinarily owes no duty to protect, assist or warn someone in peril one has not personally created. (Williams, supra, 34 Cal.3d at p. 23.) If, however, one voluntarily undertakes to assist another person in peril (i.e., acts as a “good Samaritan”), one must exercise reasonable care in doing so. (Ibid.; Delgado, supra, 36 Cal.4th at pp. 248–250 & fn. 28.)
In Williams our Supreme Court recognized that officers, in carrying out routine traffic enforcement duties or investigations, do have a duty of care when the officer engages in “an affirmative act which places the person in peril or increases the risk of harm....” (Williams, supra, 34 Cal.3d at p. 24.) In Williams, the plaintiff alleged that officers negligently conducted an accident investigation and that, as a result, she was denied an opportunity to obtain compensation for her injuries. (Id. at p. 21.) The court concluded that she failed to state a cause of action in that there were no allegations of the requisite factors to a finding of special relationship, the officers did not create her peril, and “they took no affirmative action which contributed to, increased, or changed the risk which would have otherwise existed....” (Id. at pp. 27–28.) That rule was again applied in Lugtu, the court confirming that “under California law, a law enforcement officer has a duty to exercise reasonable care for the safety of those persons whom the officer stops, and that this duty includes the obligation not to expose such persons to an unreasonable risk of injury by third parties.” (Lugtu, supra, 26 Cal.4th at p. 718.) In Lugtu, the plaintiffs were “passengers in an automobile that had been pulled over by a California Highway Patrol officer into the center median strip of a highway for a traffic violation, and were injured when a pickup truck ran into their automobile from behind while the automobile was stopped in the median strip.” (Id. at p. 707.) The court found that the ordinary negligence standard of care applied. (Id. at p. 722; see also McCorkle v. City of Los Angeles (1969) 70 Cal.2d 252, 259–262 [liability for negligence where an officer investigating an accident directed the plaintiff to follow him into the middle of the intersection where the plaintiff was hit by another car].)
In Mann v. State of California (1977) 70 Cal.App.3d 773 (Mann), cited by Plaintiffs here, the plaintiff was struck by a car on a freeway while standing by two stalled cars after an investigating traffic officer departed the scene once a tow truck arrived, “without advising anyone he was leaving, without placing any protective flares on the freeway, and without waiting for the tow truck with its rearward flashing lights to assume the protective position [the officer’s] patrol car was vacating.” (Ibid.) Reversing a directed verdict for defendants, the Second District concluded that liability could be imposed for nonfeasance in that instance, opining that the “expanding concept” of special relationship under the Restatement of Torts (citing Rest.2d Torts, § 314A, coms. a, b) “appears to be heading toward a recognition of the duty to aid or protect in any relation of dependence or of mutual dependence.” (Id. at pp.779–780.) We are aware of no other case that has adopted that broad proposition, and the Supreme Court in Williams distinguished Mann as a situation in which the conduct of a police officer, in a situation of dependency, induced a false sense of security, resulting in detrimental reliance on him for protection, and thereby worsening the plaintiff’s position. (Williams, supra, 34 Cal.3d at pp. 25, 27–28.) The officer “contributed to, increased and changed the risk which would have otherwise have existed [by taking] affirmative steps to provide assistance, lulling the injured parties into a false sense of security and perhaps preventing other assistance from being sought.” (Id. at p. 25.) In Davidson, the high courtstated that,“Mann, properly read, is a simple application of the ‘good Samaritan doctrine.’ [Citations.]” (Davidson, supra, 32 Cal.3d at p. 208.)
Plaintiffs nevertheless argue, citing Williams and Mann, that there was a “relation of dependence” resulting from Burke’s and Ramirez’s intoxication and lack of mobility in a potentially hazardous location in the early morning hours, imposing on the officers an affirmative duty to provide protection. Attempting to analogize this case to Mann, Plaintiffs assert that the officers “stopped the Oldsmobile to investigate, they arrested the driver and then took affirmative steps to provide ‘assistance’ by moving Burke and Ramirez to a remote parking lot of City College and then withdrew. The victims[—]too intoxicated to fully appreciate that they had been moved and left in a dangerous situation[—]were lulled into a false sense of security by the officers’ actions.... [¶]... Ramirez was not able to seek other assistance because both he and Burke were required to remain in the car.” In contrast to the situation presented in Mann, Ramirez neither acted nor declined to act in reliance on the officers’ protection. He called his brother to come pick him up and waited for his arrival, and the evidence does not support an inference that he would have taken any different action had the officers not been present and they had instead found themselves stranded in a stalling car with an intoxicated driver on nearby Ocean Avenue, or in the City College parking lot. Although the officers withdrew the protection of their physical presence, that withdrawal does not give rise to liability in the absence of detrimental reliance. An argument to the contrary is an attempt to impose on the officers an affirmative duty to protect, which is unsupported by the case law.
We find Mann distinguishable on its facts and that Williams fails to support Plaintiffs’ position. Absent evidence of detrimental reliance on words or conduct of the officers promising or implying such protection, and consequently worsening their position, the officers had no affirmative duty to provide Ramirez and Burke protection. Defendants may be liable, if at all, only on the basis of misfeasance rather than nonfeasance. (Lugtu, supra, 26 Cal.4th at pp. 716–717.)
3. Application of the Voluntary Undertaking Doctrine
As in Lugtu, supra, 26 Cal.4th 703, the officers here pulled Crowley’s car over to investigate a traffic violation. Although they had no duty to undertake that investigation, once they did so they had a duty to use reasonable care not to create or increase a forseeable risk of harm. If they breached this duty and it was foreseeable that Ramirez and Burke could be victims of violent crime as a result of the breach, Defendants may be held liable for Ramirez’s death and Burke’s injuries.
There was no evidence presented that the officers created the risk to Ramirez and Burke, and we find that Plaintiffs have failed to raise a material issue of fact about whether the officers increased a foreseeable risk of violent crime to Ramirez and Burke by these actions, as compared to Ramirez and Burke’s circumstances one-half hour earlier on Ocean Avenue in a stalling car operated by an intoxicated driver.
Plaintiffs allege that the officers placed Ramirez and Burke at an increased risk of foreseeable harm first by taking away Crowley, their driver, and second by directing Ramirez to move to and remain in an isolated parking lot in a high-crime area of the city at 3:30 a.m. Plaintiffs contend Sands would not have attacked them had the police either transported Ramirez and Burke to a safe location or stayed with them until someone arrived to pick them up.
The trial court found that the violent assault that night upon Ramirez and Burke was not foreseeable. We analyze the question of foreseeability de novo in determining the existence and scope of any duty to which the Defendants would be subject. (Ann M., supra, 6 Cal.4th at p. 678.) Foreseeability is a crucial factor in determining the existence of duty (id. at pp. 666–667), and is part of the calculus to which a court looks in defining the boundaries of duty (Ballard v. Uribe (1986) 41 Cal.3d 564, 573, fn. 6).
Elements to be assessed in deciding whether a defendant owed a tort duty to a plaintiff include: (1) the foreseeability of harm to the injured party; (2) the degree of certainty that the injured party suffered harm; (3) the closeness of the connection between the defendant’s conduct and the injury suffered; (4) the moral blame attached to the defendant’s conduct; (5) the policy of preventing future harm; (6) the extent of the burden to the defendant; and (7) the consequences to the community of imposing a duty to exercise care, with resulting potential liability. (Rowland v. Christian (1968) 69 Cal.2d 108, 112–113.) “The most important of these considerations in establishing duty is foreseeability.” (Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 434.)
Defendants argue here, and the trial court accepted below, that a heightened level of foreseeability is required to find negligence for third party crime. The cases applying this rule typically address premises liability issues. (See Delgado, supra, 36 Cal.4th at pp. 242–244; Wiener, supra, 32 Cal.4th at p. 1149–1150; Ann M., supra, 6 Cal.4th at pp. 678–679; but cf. De Villers v. County of San Diego (2007) 156 Cal.App.4th 238, 250–251 [applying the rule where a wife stole toxic chemical from a county medical laboratory to poison her husband].) We need not decide if the rule has application here, because we find the evidence does not show that the attack would have been foreseeable even in the absence of its application.
To establish the risk of violent crime in the parking lot, Plaintiffs rely on the crime statistics mentioned previously and on declarations by one active and three retired San Francisco police officers. The officers aver that “the Ingleside residential district of San Francisco, and the adjacent Ocean View residential district which are both near this location [where Ramirez and Burke were shot], have a higher rate of criminal activity and gang activity as compared with other areas of San Francisco. There has historically been substantial gang activity in the Ingleside district, and a July 2003 early Sunday morning is no exception. This freeway off-ramp which connects to Ocean Avenue where the parking lot is located... is a primary freeway off-ramp to the Ingleside district and is also used by criminals and gang members to travel to and from the Ingleside district, Excelsior district (which also has substantial gang activity) and to some extent, the Cow Palace districts, which has some of the most notorious gangs located in the public housing there. [¶]... It would not be unusual for criminals and gang members involved in criminal activity at about 3:00 a.m. to be in this area....”
To support their position that the configuration of the parking lot posed a particular foreseeable risk of violent crime, Plaintiffs rely on the officers’ declarations and an aerial photograph of the parking lot. The officers aver that the parking lot, which has since been replaced by a building, “was surrounded on two sides (North and West) by buildings and hills which leave it out of the view and not easily detected by anyone if there was [sic] people in the area. It did not have lighting in that area. It had a football field (to the East) which would naturally be deserted at 3:00 a.m. on a Sunday morning, and it has [a] smaller entrance from the freeway (to the South) and Ocean Avenue with lots of passing traffic to cover noise such as gun shots. Unlike much of the other areas of San Francisco, there are no residences immediately adjacent to the area and little likelihood of being detected if someone wanted to shoot, harm, or murder another.” The aerial photograph shows the parking lot is lined with trees on its east and west sides, which are perpendicular to Ocean Avenue. No trees or other barriers separate the lot from Ocean Avenue.
This evidence does not support a finding that Ramirez and Burke were at any foreseeably greater risk of violent crime in the parking lot than they were on the section of Ocean Avenue that immediately abutted the parking lot. The officers’ descriptions of gang and criminal activity in “the area” apply equally to that section of Ocean Avenue and to the parking lot. Their descriptions of the perils of the parking lot do not distinguish the lot from the adjacent street. Both the street and the parking lot were remote from residential areas and surrounded by freeway noise that would mask the sound of gunfire. Barriers blocked visibility from the north and west of the parking lot (and possibly from the east, as suggested by the aerial photograph), but not from the south, which is the location of the street and the place most likely to be traveled by passersby. The officers state there was no lighting “in that area.” The reference is vague and nothing in the declarations or Plaintiffs’ other exhibits suggests that there was any greater lighting at the section of Ocean Avenue where Crowley was pulled over than in the parking lot where Ramirez and Burke were shot. Importantly, the officers never aver that Ramirez and Burke were at a greater risk of violent crime in the parking lot than they were in on Ocean Avenue. We agree with the conclusions of the trial court that “[n]o evidence exists of violent crime occurring in the parking lot prior to the shooting of Ramirez and Burke,” and that “[n]o evidence exists that the movement of the car from Ocean Avenue to the abutting parking lot increased the risk of Ramirez and Burke being shot.”
As our Supreme Court has observed, “[u]nfortunately, random, violent crime is endemic in today’s society. It is difficult, if not impossible, to envision any locale open to the public where the occurrence of violent crime seems improbable.” (Ann M., supra, 6 Cal.4th at p. 678.) “[I]t is difficult if not impossible in today’s society to predict when a criminal might strike. Also, if a criminal decides on a particular goal or victim, it is extremely difficult to remove his every means for achieving that goal.” (Weiner, supra, 32 Cal.4th at p. 1150.) In this instance, the officers certainly had no knowledge of Sands intended vendetta against Ramirez, and no ability to foresee his homicidal actions that morning, and the evidence does not support a conclusion that the officers could reasonably foresee that either Ramirez or Burke were at any greater risk of criminal victimization than when they found them, whether on the street or in the parking lot.
We also conclude Plaintiffs have failed to raise a triable issue of fact about whether removing Crowley from the scene placed Ramirez and Burke at a greater risk of foreseeable harm. Although Crowley had been driving the car and neither Ramirez nor Burke could safely do so, the officers determined and it is undisputed that Crowley himself was unable to drive the car safely. There was a readily apparent risk of foreseeable harm to Ramirez and Burke, including fatal or permanently debilitating injuries, if they had continued to be passengers in a vehicle driven by Crowley. (See Veh. Code, § 23593, subd. (a) [“it is extremely dangerous to human life to drive while under the influence of alcohol or drugs, or both”]; see also Taylor v. Superior Court (1979) 24 Cal.3d 890, 896–897 [discussing potentially lethal effects of driving while intoxicated].) In any event, the car was still stalling even after Crowley added gasoline, and appeared unlikely to be able to transport the occupants even if a competent driver had been present. In other words, Ramirez, Burke and Crowley were either effectively stranded on Ocean Avenue before the police arrived, or at risk of serious injury or death with an impaired driver. The arrest of Crowley removed one potential, and self-evidently foreseeable, lethal risk. Ramirez and Burke remained temporarily stranded in the same area after the police intervened. No trier of fact could reasonably find on this evidence that the officers placed Ramirez and Burke at a greater risk of harm by removing Crowley from the scene, ordering Ramirez to move the car out of a traffic lane, and instructing him remain there for an anticipated 10 minutes until someone came to pick him up.
C. Relevance of CHP Orders
Finally, we reject Plaintiffs’ argument that the officers’ alleged violations of CHP general and area orders on how to handle traffic stops raise a triable issue of fact about whether the officers breached a duty of care. Plaintiffs argue the alleged violations raised a triable issue that the officers were “negligent.” As discussed above, “negligence” consists of three elements: duty, breach of the duty, and causation of harm. While violations of the orders might create a triable issue as to the officers’ breach of a duty, they do not create a legally recognized duty apart from that already identified—the duty not to induce detrimental reliance or increase the risk of harm to Ramirez and Burke.
The CHP orders are not in the class of statutes and regulations that impose mandatory duties of care even in the absence of a common law duty of care. (See Gov. Code, § 815.6; Alejo v. City of Alhambra (1999) 75 Cal.App.4th 1180, 1185 & fn. 3 (Alejo) [while common law does not impose duty to come to aid of others, former Pen. Code, § 11166, subd. (a) and Gov. Code, § 815.6 “create[] such a duty”].) CHP orders are not “enactment[s]” within the meaning of the statute. (Posey v. State of California (1986) 180 Cal.App.3d 836, 847–850 (Posey).)
Government Code section 815.6 provides: “[w]here a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty.”
Nor do the orders fall within the analogous negligence per se rule, which establishes a presumption of negligence when a person violates a statute, ordinance or public entity regulation that is intended to benefit plaintiff and prevent the type of harm that occurred to the plaintiff. (Evid. Code, § 669; see Alejo, supra, 75 Cal.App.4th at p. 1185, fn. 3 [“as a practical matter the standard for determining whether a mandatory duty exists [under Gov. Code, § 815.6] is ‘virtually identical’ to the test for an implied statutory duty of care under Evidence Code section 669”].) CHP orders fall within a statutory exception to Evidence Code section 669, which is set forth in section 669.1. (See Evid. Code, § 669.1; Lugtu, supra, 26 Cal.4th at p. 720 [§ 669 inapplicable because no evidence CHP Officer Safety Manual was adopted pursuant to the Administrative Procedure Act]; Posey, supra, 180 Cal.App.3d at p. 849 [CHP general orders not adopted pursuant to the Administrative Procedure Act].)
Evidence Code section 669.1 provides: “A rule, policy, manual, or guideline of state or local government setting forth standards of conduct or guidelines for its employees in the conduct of their public employment shall not be considered a statute, ordinance, or regulation of that public entity within the meaning of Section 669, unless the rule, manual, policy, or guideline has been formally adopted as a statute, as an ordinance of a local governmental entity in this state empowered to adopt ordinances, or as a regulation by an agency of the state pursuant to the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Division 3 of Title 2 of the Government Code), or by an agency of the United States government pursuant to the federal Administrative Procedure Act (Chapter 5 (commencing with Section 5001) of Title 5 of the United States Code). This section affects only the presumption set forth in Section 669, and is not otherwise intended to affect the admissibility or inadmissibility of the rule, policy, manual, or guideline under other provisions of law.”
Instead, CHP orders are admissible evidence on the issue of whether a defendant officer breached his or her duty of care. (Evid. Code, § 669.1; Lugtu, supra, 26 Cal.4th at pp. 720–721.) In Lugtu, for example, the court held that a CHP officer who pulled over a motorist for a traffic violation owed a duty not to place a motorist in a new peril or to increase his risk of harm. (Lugtu, supra, 26 Cal.4th at p. 717.) On the issue of whether the officer breached that duty, the Court held that the CHP Officer Safety Manual constituted evidence that raised a triable issue of fact. (Id. at pp. 722–723.) The Court concluded that provisions in the manual instructing CHP officers to pull motorists over to the right shoulder rather than to the center median “constituted evidence from which a jury could find that stops in the center median, as a general matter, create a greater risk of injury than stops on the right shoulder, and that, absent unusual circumstances, an officer in the exercise of reasonable care ordinarily should stop a vehicle on the right shoulder.” (Id. at p. 723; see also Minch v. Department of the California Highway Patrol (2006) 140 Cal.App.4th 895, 898, 908–909 [CHP Officer Safety Manual “admissible evidence on the question of breach of duty” but did “not establish a duty of care”].)
Here, the CHP general orders cited by Plaintiffs do not support an inference that the officers breached their duty of care toward Ramirez and Burke by inducing detrimental reliance or increasing their risk of harm. General Order 100.6 provides that officers who have established a special relationship with passengers should not place the passengers in a position of foreseeable danger. It defines “special relationship” as one “established when peace officers place a person in peril or increase the risk of harm to a person by specific conduct....” For the reasons already stated, the evidence does not raise a triable issue of fact about whether the officers increased the risk of harm to Ramirez and Burke. Therefore, General Order 100.6 is irrelevant. General Order 100.45 prescribes when officers should transport vehicle passengers after the driver is arrested. It generally provides that officers should transport the passengers if a foreseeable danger exists. This order cannot alone establish a duty to protect stranded passengers from reasonably foreseeable harm; it is admissible only on the issue of whether the officers breached their duty not to increase Ramirez and Burke’s peril. The order does not support a reasonable inference that leaving Ramirez and Burke in the parking lot rather than transporting them to another location increased their risk of harm as compared to their circumstances before the officers intervened. Similarly, San Francisco Area Order 4.1.0, which explains when officers should impound vehicles after arresting a motorist and when they should leave the vehicles with passengers, does not support an inference that leaving the vehicle with Ramirez and Burke increased their risk of harm.
California Highway Patrol General Order 100.6, section 3(b) which is entitled “Special Relationships,” provides: “Uniformed personnel shall not place motorists, passengers, or pedestrians in a position of foreseeable danger from either traffic or other potentially hazardous factors after contact has been made.”
California Highway Patrol General Order 100.45, section 4(a)(1)(c) provides: “Officers shall transport or remain with occupants of disabled vehicles if they (the officers) believe a foreseeable danger exists, and no higher priority emergency requiring their attention exists.”
San Francisco Area Order 4.1.0, section I.D. provides: “To ensure the safekeeping of an arrested person’s vehicle, and any property it may contain, the vehicle shall be stored and a CHP 180 completed. Vehicles may be released to a passenger under the following conditions: [¶] 1. When the passenger has a valid driver’s license; [¶] 2. Is not intoxicated or emotionally distraught. [¶] 3. S/he is the registered owner of the vehicle. OR [¶] 4. The driver is the registered owner of the vehicle, and the driver concurs with the release of the vehicle.”
The orders, therefore, do not raise a triable issue precluding summary judgment.
Plaintiffs also reference, without analysis, Penal Code section 647, subdivisions (f) and (g), which provide that when a person is found in a public place intoxicated to the point of being unable to exercise care for his safety, a peace officer “shall place the person... in civil protective custody” and take the person to a facility “for the 72-hour treatment and evaluation of inebriates.” In Stout v. City of Porterville, the court held that section 647, subdivision (f) and former subdivision (ff) (which, as relevant, is identical to current subdivision (g)) does not impose a duty to confine a person in order to protect against the harm that person would suffer or pose in public. (Stout v. City of Porterville (1983) 148 Cal.App.3d 937, 945, 947.) Nor does the existence of this statute support an inference that the officers exposed Ramirez and Burke to a new peril or increased their risk of harm by arresting Crowley and leaving them in the parking lot.
III. Disposition
The judgment is affirmed. Plaintiffs shall pay Defendants’ costs on appeal.
We concur: Jones, P. J., Simons, J.
“ ‘Where a public entity is involved, the court considers the following additional factors: the availability, cost, and prevalence of insurance for the risk involved; the extent of the agency’s powers; the role imposed on it by law; and the limitations imposed on it by budget. [Citations.]’ [Citation.]” (Munoz, supra, 120 Cal.App.4th 1095.)
Evidence Code section 669 provides: “(a) The failure of a person to exercise due care is presumed if: [¶] (1) He violated a statute, ordinance, or regulation of a public entity; [¶] (2) The violation proximately caused death or injury to person or property; [¶] (3) The death or injury resulted from an occurrence of the nature which the statute, ordinance, or regulation was designed to prevent; and [¶] (4) The person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted.
(b) This presumption may be rebutted by proof that: [¶] (1) The person violating the statute, ordinance, or regulation did what might reasonably be expected of a person of ordinary prudence, acting under similar circumstances, who desired to comply with the law; or [¶] (2) The person violating the statute, ordinance, or regulation was a child and exercised the degree of care ordinarily exercised by persons of his maturity, intelligence, and capacity under similar circumstances, but the presumption may not be rebutted by such proof if the violation occurred in the course of an activity normally engaged in only by adults and requiring adult qualifications.”