Order After Hearing POSCal. Super. - 6th Dist.May 14, 2021©m-l®m¥wwfl MNNNNNNNNp-Ir-Ar-At-AHr-Au-nr-Iw-A OO‘dmthbJNHOOOO‘JmUI-bmwh‘o FEB 17 2022 Eferk of the Court Su - f Cunt erwmB‘WL/ PUTY SUPERIOR COURT OF CALIFORNIA COUNTY 0F SANTA CLARA WILLIAM MAJOR, ct a1.) Case N0. 21CV382451 Plaintiffs, ORDER RE: DEFENDANT CITY OF SUNNYVALE’S DEMURRER TO VS. PLAINTIFF’S FIRST AMENDED ‘ COMPLAINT CITY OF SUNNYVALE, et aL, Defendants. The Demurrer to Plaintiff’s First Amended Complaint by Defendant City 0f Sunnyvale came on for hearing before the Honorable Peter H. Kirwan on February 15, 2022, at 9:00 am. in Department 19. The matter having been submitted, the Court finds and orders as follows: INTRODUCTION This is an action for negligence arising out 0f a motor vehicle collision that resulted in the death 0f Carol Major (“Carol”), the daughter 0f William Maj 0r and Jaya Pathak (“Plaintiffs”). Defendants in this case are the City 0f Sunnyvale (“the City”) and Stop Stick LLC (“Stop Stick”). The initial complaint was filed by Plaintiffs 0n May 14, 2021. It contained the following general allegations: n the early morning hours 0f August 25, 2019, Sunnyvale Police located a stolen car in the parking lot 0f 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 1 ORDER RE: DEFENDANT CITY OF SUNNYVALE’S DEMURRER T0 PLAINTIFF’S FIRST AMENDED COMPLAINT \OOOQOLA-hwww NNNNNNNNNHI-Ir-Ip-nr-ap-nr-‘r-np-np-a muamgmMHoxooo‘Joxmhmeo 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 all defendants; (2) negligent hiring, training and supervision against the City; (3) negligent products liability against Stop Stick and Docs 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 0f 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 (“PAC”). Plaintiffs amended the first and second causes of action to state claims for: (1) failure t0 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. Currently before the Court is the City’s demuITer to the first and second causes of action in the FAC. Plaintiffs opposed the demurrer and the City filed a reply. DISCUSSION 1. Preliminag Matters a. Timeliness “A person against whom a complaint 0r cross-complaint has been filed may, within 30 days afier service of the complaint or cross-complaint, demur to the complaint 0r cross- complaint.” (Code Civ. Proc., § 430.40, subd. (a).)l 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 ofthe parties.’ [Citations.]” (See McAllister v. County ofMonterey (2007) 147 Cal.App.4th 253, 281-282.) l All further undesignated statutory references are to the Code 0f Civil Procedure. 2 ORDER RE: DEFENDANT CITY OF SUNNYVALE’S DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT KOOOQC‘NLh-PUJMH NNNMNNNNNu-Ib-nb-ap-ar-an-th-Hr-up-n MQCNM-wab‘omeONM-hMNHO Here, the FAC was filed 0n 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 t0 this chapter, the demurring party shall meet and confer in person 0r by telephone with the party who filed the pleading that is subj ect t0 dcmun'er for the purpose 0f determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (§ 430.41, subd. (a).) “As part 0f the meet and confer process, the demurring party shall identify all of the specific causes of action that it believes are subject t0 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 t0 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, n0 meet and confer actually occurred. Howéver, 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 Cifl’s Demurrer The City demurs to the first and second causes 0f action on the basis that they fail to state a cause 0f action. (§ 430.10, subd. (6).) A demurrer tests the legal sufficiency of the complaint. (Chen v. PayPal, Inc. (2021) 61 Cal.App.5th 559, 568.) Consequently, it “reaches only to the contents of the pleading and such matters as may be considered under the doctrine ofjudicial notice.” (Weil v. Barthel (1955) 45 Cal.2d 835, 837; see also § 430.30, subd. (a).) “It is not the ordinary function ofa demurrer to test the truth 0f the plaintiff’s allegations 0r the accuracy with which he describes the defendant’s conduct. [T]he facts alleged in the pleading are deemed t0 be true, however improbable they may be.” (Align Technologi, Inc. v. Tran (2009) 179 Cal.App.4th 949, 958, internal citations and quotations omitted.) 3 ORDER RE: DEFENDANT CITY OF SUNNYVALE’S DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT \OOOQQUl-PUJMH NNNNNNNNNH-‘r-Ir-ir-IHr-‘b-HHp-A OONCNMvRWNHONOOONONM-DWNHO In ruling 0n 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 0r conclusions 0f law or fact.” (George v. Automobile Club ofSouthern California (201 1) 201 Cal.App.4th 1112, 1 120.) A demurrer will succeed where the allegations and matters subj ect to judicial notice clearly disclose a defense 0r bar t0 recovery. (Casterson v. Superior Court (2002) 101 Cal.App.4th 177, 183.) a. First Cause 0f Action: Failure t0 Perform Mandatory Duties under Government Code Section 815.6 The first cause of action asserts that the City had a mandatory duty under Title 1 1, sections 1005, subdivision (f) and 1081 of the California Code of Regulations to train police officers in conducting vehicle pursuits. (FAC at 1] 20.) It further alleges that the City had a mandatory duty t0 train its police officers in accordance with Penal Code section 135 1 9.8, et seq. and Vehicle Code section 17004.7, subdivision (d). (FAC at 1] 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, 0r that the policy the City adopted may not have met the standards required by these enactments. (FAC at 1] 24.) The City asserts that the first cause of action fails t0 state sufficient facts t0 constitute a viable claim against it and that it fails t0 allege a mandatory duty that would subject the City t0 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 0r omission of the public entity or a public employee or any other person.” (Gov. Code, § 815, subd. (a); see Guzman v. County ofMonrerey (2009) 46 Ca1.4th 887, 897 (Guzman) [“Under the Government Claims Act (Gov. Code, § 810 ct seq), there is n0 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 t0 be liable, 0r at least creating some specific duty 0f care, and not on the 4 ORDER RE: DEFENDANT CITY OF SUNNYVALE’S DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT \OOO‘QQLAAUJN 10 11 12 13 14 15 16 17 18 I9 20 21 22 23 24 25 26 27 28 general tort provisions 0f Civil Code section 1714.” (Eastburn v. Regional Fire Protection Author. (2003) 31 Ca1.4th 1175, 1183.) But, “[w]here a public entity is under a mandatory duty imposed by an enactment that is designed t0 protect against the risk of a particular kind of injury, the public entity is liable for an injuly 0f 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, § 8 1 5.6.) “A private cause 0f 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 Ca1.4th at p. 897.) “ ‘Enactment’ means a constitutional provision, statute, charter provision, ordinance or regulation.” (Gov. Code, § 810.6.) “The elements 0f 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 t0 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 t0 perform a function if the 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 Cal.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 t0 prevent 3 through imposing the alleged mandatory duty. ” [Citation] Our inquiry in this regard goes t0 the legislative purpose 0f imposing the duty. That the enactment “confers some benefit” on the class t0 which plaintiff belongs is not enough; if the benefit is “incidental’ to the enactment's protective pulpose, 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 0f 5 ORDER RE: DEFENDANT CITY OF SUNNYVALE’S DEMURRBR TO PLAINTIFF’S FIRST AMENDED COMPLAINT \DOOHQLh-PUJN-a NNNMMMMMNHH-nr-nHr-np-np-np-Ap-a OONJQU’I-PWNHOKDOO‘QQM-RUJNHO the duty was a proximate cause of the plaintiff’s injury. [Citations.]” (Guzman, supra, 46 Cal.4th at p. 898.) Sections 1005 and 1081 0f title 1 1 0f the California Code of Regulations provide standards for training 0f peace officers. Neither regulation, by its terms, purports to impose on the City any duty to do anything and Plaintiffs do not quote t0 any language that could be read as imposing any mandatory duty on the City. Further, both sections are contained in the division 0f title 11 governing the Commission 0f 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 0f Government Code section 8 15.6. Penal Code section 13519.8, subdivision (a)(l) provides, “The [Cjommission shall implement a course 0r courses of instruction for the regular and periodic training 0f law enforcement officers in the handling 0f 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 t0 use in the creation of a specific pursuit policy that the agency is encouraged t0 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 n0 language in Penal Code section 135 19.8 which imposes a mandatory duty 0n 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 0f police 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. (3).) Thus, Vehicle Code section 17004.7 imposes no mandatory duty 0n the City t0 adopt a vehicle pursuit policy. And, ifthe 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 peaée officers that 6 ORDER RE: DEFENDANT CITY OF SUNNYVALE’S DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT ©00NJONLI1$WNH WQCNM-PUJNP-‘ONOOOQONU‘IbMMHO adopts and promulgates a written policy 9n, and provides regular and periodic training 011 an annual basis for, vehicular pursuits complying with subdivisions (c) and (d) is immune from liability for civil damages for personal injury t0 0r death 0f any person 0r damage t0 property resulting from the collision 0f a vehicle being operated by an actual or suspected Violator of the law who is being, has been, 0r believes he or she is being 0r 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 ofGardena (2018) 5 Ca1.5th 995, 997 [“Vehicle Code section 17004.7 limits the liability Vehicle Code section 17001 would otherwise impose 0n public agencies by providing immunity to agencies that adopt and implement vehicle pursuit policies.”].) Thus, section 17004.7 does not impose a mandatory duty 0n the City within the meaning 0f Government Code section 815.6. The Court concludes that the FAC fails to plead an enactment from which liability might be imposed 0n the City for the purposes of Government Code section 815.6. (See Lehto v. City 0f 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 0f a mandatory duty must specifically allege the applicable statute or regulation. Only by so doing may the public entity be advised 0f the factual and legal basis of the claim against it.”].)2 Accordingly, the demurrer is SUSTAINED as count one. b. Second Cause of Action: Violation 0f Vehicle Code Section 17001 Plaintiffs’ second cause 0f action is for a violation 0f 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 0r wrongful act or omission in the operation of any motor vehicle by an employee 0f the public entity acting within the scope of his employment.” The City contends that the officers in question were not in operation 0f a motor vehicle at the time 0f 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 2 Because the court has sustained the demurrer on this ground and Plaintiffs have not explained how they can amend the FAC t0 cure this issue with the FAC, the court will not reach the City’s additional arguments. 7 ORDER RE: DEFENDANT CITY OF SUNNYVALE’S DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT \OOONJOfiU’I-PUJNH NNNNMNNNNr-r-nr-Au-Iv-‘HHr-Ap-AH OOQONLh-bUJNF-‘ODOO-QQUIALAMI-‘O Plaintiffs cannot prove that the officers involved in this case acted negligently 0r in a wrongful manner because the officers owed no duty t0 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. (PAC atfl 1 1.) Perez fled. (FAC at 1] 11.) “[S]econds 1ater[,]” the officers decided not t0 pursue Perez. (PAC atfl 12.) About two miles from where the officers attempted t0 deploy the device, Perez was involved in the fatal collision. (FAC atfl 12.) With respect to the officers, the FAC alleges that they were negligent in deciding t0 allow Perez to drive the car away in violation 0f the City’s Vehicle Pursuit policy. (FAC at1] 13.) With respect to the City, the FAC alleges that it failed t0 “implement, teach, instruct, enforce, and/or document regular and periodic training of their law enforcement officers, DOES 1 through 25, in the handling 0f 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 1] 14.)3 Here, the FAC does not allege any negligent or wrongful conduct 0n the part 0f any police officer in the operation ofa motor vehicle. For Vehicle Code section 17001 to apply, it is not sufficient that a motor vehicle somehow be involved in the sen’es of events that results in the injury; rather the inj ury must be proximately caused by the negligent operation of a motor 3 “ ‘When a party is inj ured by a tortfeasor and seeks t0 affix liability 0n the tortfeasor’s employer, the inj ured pany ordinarily must demonstrate either (1) the employer violated a duty of care it owed t0 the inj ured party and this negligence was a proximate cause of the resulting injury (the direct liability theory), or (2) the tortfeasor-employee was liable for committing the tortious conduct that caused the injury while acting within the course and scope of his 0r her employment (the vicarious liability theory). [Citation] When the employer is a governmental agency, the statutory framework permits the injured party t0 pursue the vicarious liability theory in accordance with these general common law principles. [Citation.] However, the statutory framework requires, as a condition t0 the injured party’s recovery 0n a direct liability theory against a governmental agency, that the inj ured party identify a ‘specific statute declaring [the entity] t0 be liable, or at least creating some specific duty of care’ by the agency in favor 0f the injured party. [Citations.]’ [Citati0n.]” (Koussaya v. City ofStockron (2020) 54 Cal.App.5th 909, 943, quoting de Villers v. County ofScm Diego (2007) 156 Cal.App.4th 238, 247-248.) 8 ORDER RE: DEFENDANT CITY OF SUNNYVALE’S DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT OOOHONM-hwmhn NNNNNNNMNr-tp-‘t-‘Hr-r-Ar-Ip-IHH WQQMAWNHOWWQQMQWNHO vehicle. (Champion v. County ofSan Diego (1996) 47 Cal.App.4th 972, 978.) It has been held that, “ ‘the vehicle must be in a “state 0f being at work” 0r “in the exercise 0f 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 OfVeh. Code, § 17001, Civ. Code, former § 1714 1/2].)” (Hernandez v. City 0f Pomona (2009) 46 Ca1.4th 501, 520 (Hernandez).) The Hernandez court held that this requirement was not met as a matter oflaw 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 0n foot. (Ibid) 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 t0 stop Perez from driving the vehicle, not in the operation 0f their own motor vehicles or any actions they may have taken while in pursuit of Perez. Accordingly, the FAC fails t0 allege that the police officers committed a negligent or wrongful act that occurred while the officers were operating a motor vehicle. “[I]f a specific individual officer has not engaged in an act 0r omission giving rise to that officer’s tort liability, the City cannot be held vicariously liable. [Citation.]” (Koussaya v. City ofStockron, supra, 54 Cal.App.5th at p. 945.) With respect t0 direct liability, Plaintiffs’ allege that the City failed to “implement, teach, instruct, enforce, and/or document regular and periodic training” of the officers. (FAC atfl 14.) But, any failure to train 0r otherwise supervise the officers would not have resulted in negligence 0r wrongful conduct that occurred in the operation 0f 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 0n 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 0f action. 4 The Court notes that the FAC also mentions Vehicle Code section 17004.7 in the second cause 0f action. (FAC at fl 38 [“Whether the CITY’S policy satisfied minimum statutory requirements is a question of law to be determined by the court pursuant t0 Veh. Code § 9 ORDER RE: DEFENDANT CITY OF SUNNYVALE’S DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT \omqo‘u‘lgwwb-I NNNNNNNNNv-Ih-It-b-IHHHi-IHH mflQM-PWNHOKOWNJCNUlngN-‘O 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. $3.. x4. LL...“ Hon. Peter H. Kirwan Judge 0f the Superior Court Dated: 2.1 \‘5- 1’267‘2- 17004.7(f).”].) But, as discussed above, Vehicle Code section 17004.7 does not provide for a mandatory duty in and of itself. Rather, Vehicle Code section 17004.7 limits the liability Vehicle Code section 17001 would otherwise impose 0n public agencies by providing immunity to agencies that adopt and implement vehicle pursuit policies. (Riley v. Alameda County Sherifl’s Office (2019) 43 Cal.App.5th 492, 499.) Because the Court finds that Vehicle Code section 17001 does not apply as a matter 0f law, Vehicle Code section 17004.7 does not provide a basis for liability. 10 ORDER RE: DEFENDANT CITY OF SUNNYVALE’S DEMURRER TO PLATNTIFF’S FIRST AMENDED COMPLAINT
