Minute Order

Cal. Super. - 6th Dist.May 14, 2021

SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER William Major et alvs City of Sunnyvale et al Hearing Start Time: 9:00 AM 21CV382451 Hearing Type: Hearing: Demurrer Date of Hearing: 02/15/2022 Comments: 4 Heard By: Kirwan, Peter Location: Department 19 Courtroom Reporter: - No Court Reporter Courtroom Clerk: Audrey Nakamoto Court Interpreter: Court Investigator: Parties Present: Future Hearings: Exhibits: - No Appearance. Tentative Ruling Not Contested. Adopted. See Below: INTRODUCTION This is an action for negligence arising out of a motor vehicle collision that resulted in the death of Carol Major ( Carol ), the daughter of William Major and Jaya Pathak ( Plaintiffs ). Defendants in this case are the City of Sunnyvale ( the City) and Stop Stick LLC ( Stop Stick ). The initial complaint was filed by Plaintiffs on May 14, 2021. It contained the following general allegations: n the early morning hours of August 25, 2019, Sunnyvale Police located a stolen car in the parking lot of a bar. Sunnyvale police officers placed a tire deflation device under the tires of the car. Defendant Stop Stick manufactured the deflation device. The officers watched Claudio Perez ( Perez ) exit the bar, enter the car and drive away. Police then tried unsuccessfully to activate the deflation device. The officers then attempted to conduct a police stop, but Perez failed to comply and fled the scene in the car. The officers chose not to pursue Perez. About two miles from where the officers attempted to deploy the deflation device, Perez drove into an intersection and struck a vehicle in which Carol was a passenger, causing Carol s death. The initial complaint stated claims for: (1) negligence, against a|| defendants; (2) negligent hiring, training and supervision against the City; (3) negligent products liability against Stop Stick and Does 1-50; and (4) strict products liability against Stop Stick and Does 1-50. On October 14, 2021, this Court sustained with leave to amend the City s demurrer to the first and second causes of action in the initial complaint on the ground that they failed to state a statutory basis for their claims against the City. On October 22, 2021, Plaintiffs filed their first amended complaint ( FAC ). Plaintiffs amended the first and second causes of action to state claims for: (1) failure to perform a mandatory duty under Government Code section 815.6 and (2) violation of Vehicle Code section 17001. The third and fourth causes of action remained the same. Printed: 2/22/2022 02/15/2022 Hearing: Demurrer - 21CV382451 Page 1 of 7 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER Currently before the Court is the City s demurrer to the first and second causes of action in the FAC. Plaintiffs opposed the demurrer and the City filed a reply. DISCUSSION 1. Preliminary Matters a. Timeliness A person against whom a complaint or cross-complaint has been filed may, within 3O days after service of the complaint or cross-complaint, demur to the complaint or cross-complaint. (Code Civ. Proc., 430.40, subd. (a).) Even if a demurrer is untimely filed, the Court has discretion to hear the demurrer so long as its action . . . does not affect the substantial rights of the parties. [Citations.] (See McAllister v. County of Monterey (2007) 147 Cal.App.4th 253, 281-282.) Here, the FAC was filed on October 22, 2021 and served that same day. The demurrer was filed on November 19, 2021. Therefore, the demurrer is timely. b. Meet and Confer Before filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. ( 430.41, subd. (a).) As part of the meet and confer process, the demurring party shall identify all of the specific causes of action that it believes are subject to demurrer and identify with legal support the basis of the deficiencies. ( 430.41, subd. (a)(l).) Any determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer. ( 430.41, subd. (a)(4).) Here, counsel for the City represents that she called Plaintiffs counsel and that her call was never returned. Thus, no meet and confer actually occurred. However, because the Court may not overrule a demurrer for insufficient meet and confer efforts and because neither party argues that further meet and confer efforts would be fruitful, the Court will reach the merits of the demurrer. 2. The City s Demurrer Printed: 2/22/2022 02/15/2022 Hearing: Demurrer - 21CV382451 Page 2 of 7 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER The City demurs to the first and second causes of action on the basis that they fail to state a cause of action. ( 430.10, subd. (e).) A demurrer tests the legal sufficiency of the complaint. (Chen v. PayPaI, Inc. (2021) 61 Cal.App.5th 559, 568.) Consequently, it reaches only to the contents ofthe pleading and such matters as may be considered under the doctrine ofjudicial notice. (Weil v. Barthel (1955) 45 Ca|.2d 835, 837; see also 430.30, subd. (a).) It is not the ordinary function of a demurrer to test the truth of the plaintiff s allegations or the accuracy with which he describes the defendant s conduct. [T]he facts alleged in the pleading are deemed to be true, however improbable they may be. (Align Technology, Inc. v. Tran (2009) 179 Cal.App.4th 949, 958, internal citations and quotations omitted.) In ruling on a demurrer, the Court must liberally construe the allegations of the complaint, with a view to substantial justice between the parties. (Glennen v. Allergan, Inc. (2016) 247 Cal.App.4th 1, 6.) Nevertheless, while [a] demurrer admits all facts properly pleaded, [it does] not [admit] contentions, deductions or conclusions of law or fact. (George v. Automobile Club of Southern California (2011) 201 Cal.App.4th 1112, 1120.) A demurrer will succeed where the allegations and matters subject to judicial notice clearly disclose a defense or bar to recovery. (Casterson v. Superior Court (2002) 101 Cal.App.4th 177, 183.) a. First Cause of Action: Failure to Perform Mandatory Duties under Government Code Section 815.6 The first cause of action asserts that the City had a mandatory duty under Title 11, sections 1005, subdivision (f) and 1081 ofthe California Code of Regulations to train police officers in conducting vehicle pursuits. (FAC at 20.) It further alleges that the City had a mandatory duty to train its police officers in accordance with Penal Code section 13519.8, et seq. and Vehicle Code section 17004.7, subdivision (d). (FAC at 25.) The FAC alleges that the City did not adopt such a policy, that the City had a policy in place in response to these enactments but that it failed to implement or enforce it, or that the policy the City adopted may not have met the standards required by these enactments. (FAC at 24.) The City asserts that the first cause of action fails to state sufficient facts to constitute a viable claim against it and that it fails to allege a mandatory duty that would subject the City to liability under Government Code section 815.6. Except as otherwise provided by statute [a] public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person. (Gov. Code, 815, subd. (a); see Guzman v. County of Monterey (2009) 46 Cal.4th 887, 897 (Guzman) [ Under the Government Claims Act (Gov. Code, 810 et seq.), there is no common law tort liability for public entities in California; instead, such liability must be based on statute. ].) [D]irect tort liability of public entities must be based on a specific statute declaring them to be liable, or at least creating some specific duty of care, and not on the general tort provisions of Civil Code section 1714. (Eastburn v. Regional Fire Protection Author. (2003) 31 Cal.4th 1175, 1183.) But, [w]here a public entity is under a mandatory duty imposed by an enactment that is designed to protect Printed: 2/22/2022 02/15/2022 Hearing: Demurrer - 21CV382451 Page 3 of 7 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER 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. (Gov. Code, 815.6.) A private cause of action lies against a public entity only if the underlying enactment sets forth the elements of liability set out in section 815.6. [Citations.] (Guzman, supra, 46 Ca|.4th at p. 897.) Enactment means a constitutional provision, statute, charter provision, ordinance or regulation. (Gov. Code, 810.6.) The elements of liability under Government Code section 815.6 are as follows: First and foremost, application of section 815.6 requires that the enactment at issue be obligatory, rather than merely discretionary or permissive, in its directions to the public entity; it must require, rather than merely authorize or permit, that a particular action be taken or not taken. [Citation.] It is not enough, moreover, that the public entity or officer have been under an obligation to perform a function ifthe function itself involves the exercise of discretion. [Citation.] [Citation.] Courts have construed this first prong rather strictly, finding a mandatory duty only if the enactment affirmatively imposes the duty and provides implementing guidelines. [Citations.] (Guzman, supra, 46 Ca|.4th at p. 898.) Second, but equally important, section 815.6 requires that the mandatory duty be designed to protect against the particular kind of injury the plaintiff suffered. The plaintiff must show the injury is one of the consequences which the [enacting body] sought to prevent through imposing the alleged mandatory duty. [Citation.] Our inquiry in this regard goes to the legislative purpose of imposing the duty. That the enactment confers some benefit on the class to which plaintiff belongs is not enough; if the benefit is incidental to the enactment's protective purpose, the enactment cannot serve as a predicate for liability under section 815.6. [Citation.] [Citations.] If these two prongs are met, the next question is whether the breach of the duty was a proximate cause of the plaintiff's injury. [Citations.] (Guzman, supra, 46 Ca|.4th at p. 898.) Sections 1005 and 1081 of title 11 of the California Code of Regulations provide standards for training of peace officers. Neither regulation, by its terms, purports to impose on the City any duty to do anything and Plaintiffs do not quote to any language that could be read as imposing any mandatory duty on the City. Further, both sections are contained in the division of title 11 governing the Commission of Peace Officer Standards and Training ( the Commission ), a separate entity from the cities that may employ police officers. Accordingly, these regulations do not impose a mandatory duty on the City and, therefore, they cannot be qualifying enactments for the purposes of Government Code section 815.6. Penal Code section 13519.8, subdivision (a)(l) provides, The [C]ommission shall implement a course or courses of instruction for the regular and periodic training of law enforcement officers in the handling of high- speed vehicle pursuits and shall also develop uniform, minimum guidelines for adoption and promulgation by California law enforcement agencies for response to high-speed vehicle pursuits. It further explains that the guidelines promulgated by the Commission shall be a resource for each agency executive to use in the creation of a specific pursuit policy that the agency is encouraged to adopt and promulgate, and that reflects the needs of the agency, the jurisdiction it serves, and the law. (Pen. Code, 13519.8, subd. (a)(l).) However, Plaintiffs point to no language in Penal Code section 13519.8 which imposes a mandatory duty on the City. As mentioned above, the Commission is a separate entity from the City. Vehicle Code section 17004.7, subdivision (d), on which Plaintiffs rely, provides for periodic training of police Printed: 2/22/2022 02/15/2022 Hearing: Demurrer - 21CV382451 Page 4 of 7 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER officers but subdivision (a) of that same section expressly provides that [t]he adoption of a vehicle pursuit policy by a public agency pursuant to this section is discretionary. (Veh. Code, 17004.7, subd. (a).) Thus, Vehicle Code section 17004.7 imposes no mandatory duty on the City to adopt a vehicle pursuit policy. And, if the City has adopted such a policy, if it complies with the requirements of the statute, the result is that is it immune from liability under certain circumstances: A public agency employing peace officers that adopts and promulgates a written policy on, and provides regular and periodic training on an annual basis for, vehicular pursuits complying with subdivisions (c) and (d) is immune from liability for civil damages for personal injury to or death of any person or damage to property resulting from the collision of a vehicle being operated by an actual or suspected violator of the law who is being, has been, or believes he or she is being or has been, pursued in a motor vehicle by a peace officer employed by the public entity. (Veh. Code, 17004.7, subd. (b)(l); see Ramirez v. City of Gardena (2018) 5 Ca|.5th 995, 997 [Vehicle Code section 17004.7 limits the liability Vehicle Code section 17001 would otherwise impose on public agencies by providing immunity to agencies that adopt and implement vehicle pursuit policies. ].) Thus, section 17004.7 does not impose a mandatory duty on the City within the meaning of Government Code section 815.6. The Court concludes that the FAC fails to plead an enactment from which liability might be imposed on the City for the purposes of Government Code section 815.6. (See Lehto v. City of Oxnard (1985) 171 Cal.App.3d 285, 292-293 [ Based upon the manifest intent underlying section 815.6, we think it obvious that a litigant seeking to plead the breach of a mandatory duty must specifically allege the applicable statute or regulation. Only by so doing may the public entity be advised of the factual and legal basis of the claim against it. ].) Accordingly, the demurrer is SUSTAINED as count one. b. Second Cause of Action: Violation of Vehicle Code Section 17001 Plaintiffs second cause of action is for a violation of Vehicle Code section 17001, which provides that [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. The City contends that the officers in question were not in operation of a motor vehicle at the time of the accident because the FAC alleges that the officers ceased their pursuit of Perez and then, after Perez had driven for two additional miles, he was involved in the fatal collision. It also asserts that Plaintiffs cannot prove that the officers involved in this case acted negligently or in a wrongful manner because the officers owed no duty to prevent Perez from driving. The FAC alleges that the police officers attempted to deploy the device designed to stop the car and, when that device failed, they attempted to initiate a traffic stop. (FAC at 11.) Perez fled. (FAC at 11.) [S]econds later[,] the officers decided not to pursue Perez. (FAC at 12.) About two miles from where the officers attempted to deploy the device, Perez was involved in the fatal collision. (FAC at 12.) With respect to the officers, the FAC alleges that they were negligent in deciding to allow Perez to drive the car away in violation of the City s Vehicle Pursuit policy. (FAC at 13.) With respect to the City, the FAC alleges that it failed to implement, teach, instruct, enforce, and/or document regular and periodic training of their law enforcement officers, DOES 1 through 25, in the handling of high-speed vehicle pursuits in violation of Penal Code 13519.8 et seq., Veh. Code 17004.7(c)(12) and (d), and Cal. Code Regs. Title 11 1005(f) and 1081 et seq. (FAC at 14.) Here, the FAC does not allege any negligent or wrongful conduct on the part of any police officer in the operation of a motor vehicle. For Vehicle Code section 17001 to apply, it is not sufficient that a motor vehicle Printed: 2/22/2022 02/15/2022 Hearing: Demurrer - 21CV382451 Page 5 of 7 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER somehow be involved in the series of events that results in the injury; rather the injury must be proximately caused by the negligent operation of a motor vehicle. (Champion v. County of San Diego (1996) 47 Cal.App.4th 972, 978.) It has been held that, 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. (Chilcote v. San Bernardino County (1933) 218 Cal. 444, 445, italics added [construing predecessor of Veh. Code, 17001, Civ. Code, former 1714 1/2].) (Hernandez v. City of Pomona (2009) 46 Ca|.4th 501, 520 (Hernandez).) The Hernandez court held that this requirement was not met as a matter of law where the fatal shooting causing the death occurred after the police had stopped pursuing the suspect had stopped their vehicles and continued to chase the suspect on foot. (|bid.) Here, while Perez was driving a motor vehicle when the fatal collision occurred, the FAC alleges that the police officers were not in pursuit at that time. Further, the FAC alleges that the negligence on the part of the officers was in failing to stop Perez from driving the vehicle, not in the operation of their own motor vehicles or any actions they may have taken while in pursuit of Perez. Accordingly, the FAC fails to allege that the police officers committed a negligent or wrongful act that occurred while the officers were operating a motor vehicle. [l]f a specific individual officer has not engaged in an act or omission giving rise to that officer s tort liability, the City cannot be held vicariously liable. [Citation.] (Koussaya v. City of Stockton, supra, 54 Cal.App.5th at p. 945.) With respect to direct liability, Plaintiffs allege that the City failed to implement, teach, instruct, enforce, and/or document regular and periodic training of the officers. (FAC at 14.) But, any failure to train or otherwise supervise the officers would not have resulted in negligence or wrongful conduct that occurred in the operation of a vehicle within the meaning of Vehicle Code section 17001 because that section does not apply under the facts alleged. As Vehicle Code section 17001 is the only statutory basis alleged for liability on the part of the City, a theory of direct liability must also fail as a matter of law. Accordingly, the demurrer is SUSTAINED to the second cause of action. 3. Leave to Amend In light of the fact that this is the first pleading challenge, the Court will grant leave to amend even though Plaintiffs do not indicate how the FAC could be amended to address the deficiencies discussed above. The Court will grant 10 DAYS LEAVE TO AMEND. 4. Conclusion For the reasons discussed above, the demurrer as to the first and second causes of action in the FAC is SUSTAINED WITH TEN DAYS LEAVE TO AMEND. Printed: 2/22/2022 02/15/2022 Hearing: Demurrer - 21CV382451 Page 6 of 7 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER Printed: 2/22/2022 02/15/2022 Hearing: Demurrer - 21CV382451 Page 7 of 7