RAMIREZ v. CITY OF GARDENA

Amicus Curiae Brief of League of California Cities

Cal.March 29, 2018

IN THE SUPREME COURTOF THE STATE OF CALIFORNIA IRMA RAMIREZ,individually and as Case No. 8244549 Representative, Plaintiffs and Appellants, Second Appellate District, Division One VS. No. B279873 CITY OF GARDENA, Los Angeles County Superior Court Defendant and Respondent. No. BC609508 SUPREME COURT FILE APPLICATION OF LEAGUE OF CALIFORNIA CITIES FOR LEAVE TO MAR 9 FILE AMICUS CURIAE BRIEFIN 9 2018 SUPPORT OF CITY OF GARDENA; Jorge N PROPOSED AMICUS CURIAE BRIEF avarrete Clerk Rn a eDeputy The Honorable Yvette M. Palazuelos DENNIS J. HERRERA,State Bar#139669 City Attorney , YVONNER. MERE,State Bar #173594 Chief of Complex and Affirmative Litigation CHRISTINE VAN AKEN,state Bar #241755 Chief of Appellate Litigation NATALIE M. ORR,State Bar #290590 Deputy City Attorney Fox Plaza, 1390 Market Street, 7th Floor San Francisco, California 94102-5408 Telephone: (415) 554-3849 Facsimile: (415) 437-4644 E-Mail: natalie.orr@sfcityatty.org COUNSEL FOR AMICUS CURIAE, RECEIVED THE LEAGUE OF CALIFORNIA - CITIES kan 212018 SLERK SUPREME COURT n:\cxlit\i2018\1 80905\01261394.docx CERTIFICATE OF INTERESTED ENTITIES OR PERSONS (<1 Thereare nointerested entities or personstolist in this Certificate per California Rules of Court, rule 8.208. [-] Interested entities or persons are listed below: Nameof Interested Entity or Person Nature of Interest 1, 2 3. 4 Please attach additional sheets with person or entity informationif necessary. Dated: March 21, 2018 Printed Name: Address: State Bar #: Party Represented: DENNIS J. HERRERA City Attorney YVONNE MERE Chief of Complex and Affirmative Litigation CHRISTINE VAN AKEN Chief of Appellate Litigation NATALIE M. ORR Deputy City Attorney NATALIE M. ORR NATALIE M. ORR Deputy City Attorney 1390 Market Street, 7" Floor San Francisco, California 94102-5408 290590 League of California Cities, as Amicus Curiae APPLICATION TO FILE AMICUS CURIAE BRIEF Pursuant to California Rules of Court, rule 8.520(f), the League of California Cities (the “League’”’) hereby respectfully submits this application to file an amicus curiae brief in support of Defendant and RespondentCity of Gardena(“the City’). The Leagueis an association of 474 California cities dedicated to protecting and restoring local control to provide for the public health, safety, and welfare of their residents, and to enhance the quality oflife for all Californians. The League is advised by its Legal Advocacy Committee, comprised of 24 city attorneys from all regions of the state. The Committee monitors litigation of concern to municipalities, and identifies those cases that have statewide or nationwide significance. The Committee has identified this case as having such significance. The 474 cities in the League administer local police departments throughout the state of California. The Court’s decision in this case regarding the certification requirement in Vehicle Code section 17004.7 (“Section 17004.7”) will apply not just to the City of Gardena,butto all police departments and other public agencies employing peaceofficers across the state. It will have a significant impact on those departments in determining whether they can count on immunity under Section 17004.7, or whether they will be vulnerable to suit on a case by case basis for injuries resulting from vehicular collisions by fleeing suspects. Moreover, while the City of Gardena hasa police force of 92 sworn officers, many police departments in California are substantially larger. The San Francisco Police Department has a force of 2,291 sworn officers as of February, 2018, and the Los Angeles Police Departmenthasa force of 10,029. The League has a particular interest in ensuring that the Court considers the impact of its decision on larger police departments in California, to which the immunity should be equally available. The League andits counsel are familiar with the issues in this case, and have reviewed the lower court proceedings and the briefs on the merits filed with this Court. As a statewide organization of cities responsible for administering police departments throughout California, the League believes that it can provide important perspective on the issues before the Court. Pursuantto rule 8.520(f)(4) of the California Rules of Court, no party nor counsel for any party in the pending appeal has either authored any part of the attached amicus brief or made a monetary contribution toward funding the preparation or submissionofthe brief. The only persons who played a role in authoring the accompanyingbrief are salaried attorneys from the San Francisco City Attorney’s Office and the League. No personor entity other than the San Francisco City Attorney’s Office and the League has made a monetary contribution toward funding the preparation or submission of the attached amicusbrief. Dated: March 21, 2018 DENNIS J. HERRERA City Attorney YVONNER. MERE Chief of Complex and Affirmative Litigation CHRISTINE VAN AKEN Chief of Appellate Litigation NATALIE M. ORR Deputy City Attorney By NATALIE M. ORR Attorneys for Amicus Curiae, League of California Cities IN THE SUPREME COURT OF THE STATE OF CALIFORNIA IRMA RAMIREZ,individually and as Case No. S244549 Representative, Plaintiffs and Appellants, VS. CITY OF GARDENA, Second Appellate District, Division One No. B279873 Los Angeles County Superior Court Defendant and Respondent. No. BC609508 AMICUS CURITAE BRIEF OF LEAGUE OF CALIFORNIA CITIES IN SUPPORT OF CITY OF GARDENA The Honorable Yvette M. Palazuelos DENNISJ. HERRERA,State Bar #139669 City Attorney , YVONNER. MERE,State Bar #173594 Chief of Complex and Affirmative Litigation CHRISTINE VAN AKEN,State Bar #241755 Chief of Appellate Litigation NATALIE M.ORR,State Bar #290590 Deputy City Attorney Fox Plaza, 1390 MarketStreet, 7th Floor San Francisco, California 94102-5408 Telephone: (415) 554-3849 Facsimile: (415) 437-4644 E-Mail: natalie.orr@sfcityatty.org COUNSEL FOR AMICUS CURIAE, THE LEAGUE OF CALIFORNIA CITIES TABLE OF CONTENTS TABLE OF AUTHORITIES ooo.eeeeeneesene eens stietnecsaeeneseaaeees 7 I. QUESTION FOR REVIEW 0... eeceeeeteeeteeeteenneeetnaeees 9 I. INTRODUCTION 0.0ccecenceseeeesneeeenaneesneeenesnetenteesenees 9 TI. ARGUMENT0ceeereeeeneeeeeesaeeeeesenaeteeenaeeeneeeees 1] A. Pursuant to the Plain Language of Section 17004.7, Agencies Must Have a Policy of Requiring Signed Certifications but Need Not Prove Perfect Compliance with That Policy. ...0....0.... 11 B. The POST Guidelines Are Irrelevant to the Certification Requirement.......0.....cc:cceesecseeesseeeteees 15 C. A Perfect Compliance Requirement Would Be Inconsistent with the Administrative Realities Facing California Police Departments, Particularly Larger Departments. ..........0ccceeeeeeees 17 D. Petitioner’s Interpretation of the Statute Would Create Administrative Problems in Proceedings Where Agencies Attempt to Invoke the TimUmity. oo... ec ccececeeceeeeeeeeaeessseeeenseeeseeeseeseeteeeeeaeess 18 E. Petitioner’s Reading Would Lead to Absurd and Unfair Results. 2... eccecceeeccesseeeeececeseeseettenesessaees 20 F, Petitioner’s Reading Undermines the Legislative Intent and Purposes Behind the TIMMY,oeeect eceeeececeeeeenecaeeeesesessesensesensasas 21 TV. CONCLUSION(0cceeceeecectceeeeeecnseeeesaeesiestseensesteeecas 24 CERTIFICATE OF COMPLIANCE1... .ccccccceeccssecseececeeeeeeeeseesteseeseseeenses 25 CERTIFICATE OF ELECTRONIC SERVICE.0.....cceesceeeseesseeteeeteeneeeees 26 TABLE OF AUTHORITIES Cases Billester v. City ofCorona (1994) 26 Cal.App.4th 1107... ccccceeseeeeeeneeceeecesesecessseesseesseetensaes 22 Day v. City ofFontana (2001) 25 Cal.4th 26800... ceeeseeeeceeesetenseceneeneceseesessseesseeneecses 11 Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379cccceseeceenecereeteecneesteeceesercceseeesieeeeeeeneeaees 12 Genlyte Group, LLC v. Workers’ Comp. Appeals Bd. (2008) 158 Cal.App.4th 705 oo. ccecceeeeseeceeeeeeeeneeseeeseseieenetsecseesneiees 15 Hoffman v. Smithwoods RV Park, LLC (2009) 179 Cal.App.4th 390...ccc ccccccscccsseccecssssssesssescsteccsserecessaeseaes 14 Kaufman & Broad Communities, Inc. v. Performance Plastering, Inc. (2005) 133 Cal.App.4th 26.0... eceeccceseeceeeeeceeeeeeeeeeeeeseeeeeasetsesenseeseesees 23 Kishida v. State of California (1991) 229 Cal.App.3d 329... eeccecceceseeceeeeseeneeeeeeeseeeteseetntsteesaeens 22, 24 Lewis v. County ofSacramento (2001) 93 Cal.App.4th 107.0...cccseceeeees eteeeeceeevsneseceeeetaeetensetenes 23 Morgan v. Beaumont Police Dept. (2016) 246 Cal.App.4th 1440ecceeeeeeteeetseeeseees 14, 15,17, 21, 22 Nguyen v. City of Westminster (2002) 103 Cal.App.4th 1161 oiececereeeceeeeeeeeeeeseceeeeteeeensees 13, 14 People v. Jones (1988) 46 Cal.31d 585 oiiicc ceeeeceseeeeeeeeeeceeseeeceeeseeteeetieeeeseeenseees 14 Ramirez v. City ofGardena (2017) 14 Cal.App.Sth 811 oocccceeeeeseseceeseeeeeneeneenseeeetaees 12, 13, 21 Sacks v. City ofOakland (2010) 190 Cal.App.4th 1070...ceeccceeseeeeeneeeseeeeeesesesseseetseeeneseneteses 21 Yohnerv. California Dept. ofJustice (2015) 237 CalApp.4th bicceceeeceeseeceeeeeseeeseeseeeneeeeesesesseessseees 20 Statutes Evidence Code SCCTION 1043 occ cccceccececenesecersssececceeseestseveceeeececeecetersntesttttttatstenseerss 18 SOCTION 1046...cles cisssecssececeeesevsrsrsreseseesevestecstrtteettsstesseensrseres 18 Penal Code SECTION 832.7 ooo iecccccccccccccecsssscccesecsecccsseseessesttsnseaeeeesseentssateeseesteerttettnes 19 SECTION 135 19.8 oii ccccccccccceecsscccsssceseseesnssnsttaseeesesersttseresseettertrttstes 16 Vehicle Code section 17004.7 000.0... 9, 10, 11, 12, 13, 15, 16, 17, 18, 19, 20, 21, 22 SECHON 17004.7(a) oo. eccccessecccccssseseessneesesecsseeesessesesseensaseessseessrtseeeeees 12 Section 17004.7(D)(1) oo. ccccccccccccsecsccsseteesecesteseesessssecseescseuessinesens 9, 14, 23 Section 17004.7(D)(2) ....ccccccccccccccesseesereeesseeeesensees 9,10, 11, 12, 13, 14, 16 SECHION 17004.7(C) oo. eecceeccecessccecsceeseceessecseccseececsaeceseeecsecseeessseseerssssueiteess 9 Section 17004.7(d) 0... eceeceescceecceceeeceesessseeeetseeeceessseesseeeseees 9, 10, 14, 16 Other References Assem. Bill No. 1912 (1987-1988 Reg. Sess.) as amended Aug. 20, 1987 oo... ccccccccesccessecesteetccseessesesseenseeecceeseeeteees 24 Sen. Bill No. 719 (2005-2006 Reg. Sess.) as amended May 5, 2005 .........ccccccccsecssseseccsecsseecessesssessseeeesecssensiaees 14, 19 Sen. Bill No. 719 (2005-2006 Reg. Sess.) May 10, 2005 oo. cceececnceeeeeeesceeceeceeeeeeaeensessesecaseneesseesesssessetseeenseeees 13 I. QUESTION FOR REVIEW Is the immunity provided by Vehicle Codesection 17004.7 available to a public agencyonly if all peace officers of the agencycertify in writing that they have received, read, and understand the agency’s vehicle pursuit policy? IL. INTRODUCTION California Vehicle Code section 17004.7 (“Section 17004.7”) provides a limited immunity to any “public agency employing peace officers that adopts and promulgates a written policy on, and provides regular and periodic training on an annualbasis for, vehicular pursuits complying with subdivisions (c) and (d)....” (Section 17004.7(b)(1).) An agency meeting the above requirements is “immune from liability for civil damagesfor 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” in the course of a real or perceived police pursuit. (/bid.) Subdivision (c) of the statute defines the substantive requirements for a vehicular pursuit policy, while subdivision (d) defines what constitutes “regular and periodic training.” Subdivision (b)(2) — the part of the statute most directly at issue here — defines what constitutes adequate “promulgation”of a vehicular pursuit policy. Subdivision (b)(2) states in full: “Promulgation of the written policy under paragraph (1) shall include, but is not limited to, a requirement that all peace officers of the public agencycertify in writing that they have received, read, and understand the policy. The failure of an individual officer to sign a certification shall not be used to impose liability on an individual officer or a public entity.” In other words, an agencyasserting the immunity must not only have a written policy meeting the requirements 9 of subdivision (c), and provide training meeting the requirements of subdivision (d), but must also have a “requirement” that all of its officers sign a certification acknowledging receipt and comprehensionofthe policy. Petitioner argues that Section 17004.7 requires a public agency to prove that every single one ofits peace officers actually signed a certification pursuant to subdivision (b)(2) , and to additionally produce every single one of those certifications in court, in order to availitself of the immunity. Petitioner’s position conflicts with the clear language ofthe statute, which defines promulgation by referenceto a certification requirement and expressly states that “[t}he failure of an individual officer to sign a certification shall not be used to imposeliability on an individual officer or a public entity.” (Section 17004.7(b)(2) .) Petitioner’s interpretation is also unreasonable in light of the administrativerealities facing California’s police departments, and would be particularly onerous and impracticable for larger departments. Indeed, Petitioner’s reading would lead to absurd consequences and create administrative problemsin proceedings where agencies attempt to invoke the immunity. Finally, Petitioner’s interpretation directly underminesthe legislative purposes behind the adoption and amendmentof Section 17004.7. For the foregoing reasons, and as discussed below, the Court should affirm the decision of the Court of Appeal and hold that public agencies need not prove perfect compliance with the certification requirementin order to invoke immunity under Section 17004.7. // / // 10 Ii. ARGUMENT A. Pursuantto the Plain Language of Section 17004.7, Agencies Must Havea Policy of Requiring Signed Certifications but Need Not Prove Perfect Compliance with That Policy. Subdivision (b)(2) provides that “[p|romulgation of the written policy under paragraph(1) shall include, but is not limited to, a requirement that all peace officers of the public agency certify in writing that they have received, read, and understand the policy. The failure of an individual officer to sign a certification shall not be used to imposeliability on an individual officer or a public entity.” Petitioner argues that the above language requires agencies to demonstrate that /00% of their officers have actually executed certification forms as of the date of a given incident. (Petitioner’s Opening Brief on the Merits (“Opening Brief’) at pp. 6-7.) However, Petitioner’s argumentis belied bythe statutory languageitself, whichcenters on the existence of a requirement and not the extent of compliance with that requirement. More importantly, the statute expresslystates that perfect compliance with the certification requirement is not required. Subdivision (b)(2) providesthat “[t]he failure of an individual officer to sign a certification shall not be used to impose liability on an individualofficer or a public entity.” This sentence fully and conclusively answers the question before the Court, and should be the end of the inquiry. (See Dayv. City of Fontana (2001) 25 Cal.4th 268, 272 [“We begin by examiningthe statutory language, giving the words their usual and ordinary meaning. [Citation.] If there is no ambiguity, then we presume the lawmakers meant what they said, and the plain meaning of the language governs. [Citations.]”].) The Legislature could not have been clearer that any individual officer’s failure 1] to actually sign the certification does not vitiate the immunityfor the agency. Petitioner contends that the above language says nothing about what constitutes adequate “promulgation” underthe statute, but rather clarifies that failure to sign a certification is not independently actionable against an officer or agency. Petitioner’s argumentis nonsensical. Section 17004.7 establishes an immunity, as evidencedbyits first sentence: “The immunity provided by this section is in addition to any other immunity provided by law.” (Section 17004.7(a) .) Nothing in Section 17004.7 can plausibly be read to create a new causeof action against an officer or agencyforfailing to sign a certification — particularly since the adoption of a vehicular pursuit policy under Section 17004.7 is entirely discretionary. (/bid.) As such, there is no plausible need for the Legislature to “clarify” that failure to sign a certification does not give rise to liability. Petitioner’s interpretation renders the last sentence of subdivision (b)(2) surplusage. (See Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1387 [“A construction making some words surplusageis to be avoided.”].) Petitioner insists that the City and the Court of Appeal have 999“confused the legal concepts of ‘liability’ and ‘immunity’” in interpreting the last sentence of subdivision (b)(2). (Opening Brief at p. 19.) However, Petitioner’s attempt to distinguish between imposing lability and vitiating immunity is specious. As practical matter, finding the immunity inapplicable exposes the agencyto liability. (See Ramirez v. City of Gardena (2017) 14 Cal.App.Sth 811, 822 [The failure of an individual officer to execute a written certification does in fact operate to ‘impose liability’ on a public agency when it makes immunity unavailable for a claim on which the agency would otherwisebeliable.’’].) Petitioner’s 12 attempt to wave awaya critical sentencein the statute’s definition of promulgation is unavailing.! The only conceivable purposeofthe last sentence in subdivision (b)(2) 1s to clarify that perfect compliance with the certification requirementis not necessary to demonstrate adequate promulgation, and does not expose the agencyto liability for which it would otherwise be immune. The City’s reading of subdivision (b)(2) is consistent with the Legislature’s intent to condition immunity onthe actions of the agency rather than those of individual officers. The Senate Committee on the Judiciary noted that Section 17004.7 as amended “would enact the measures suggested by law enforcement groups, attaching immunity when public entities adopt and promulgate appropriate policies andinstitute sufficient training requirements, regardless ofofficers’ behavior in a particular pursuit.” (Sen. Com. on Judiciary, Analysis of Sen. Bill No. 719 (2005-2006 Reg. Sess.) May 10, 2005, p. 6 [emphasis added]; see also Ramirez, supra, 14 Cal. App. Sth at p. 824 [“Conditioning an agency’s entitlement to immunity on the behaviorofparticular officersis inconsistent with the approach that the Legislature adopted in amending section 17004.7 to ensure that agencies took appropriate steps to implement their pursuit policies.”].) The emphasis on agency policy as opposed to officer compliance is equally applicable to the certification requirement as it is to any other directive in an agency’s vehicularpursuit policy.’ ' The specific phrasing that the failure of an officerto sign a certification “shall not be used to” imposeliability on an individual officer or a public entity further supports the City’s interpretation. (Section 17004.7 (b)(2) .) Such phrasing would bestrangeif the Legislature meant to convey that failure to sign a certification does not directly giverise to liability. +The Legislature amended Section 17004.7 in part to address the concerns articulated by the court in Nguyenv. City of Westminster (2002) 103 Cal.App.4th 1161, superseded by statutory amendmentasstated in 13 If the Legislature intended to condition immunity on perfect compliance with the certification requirement, it could easily have doneso. For example, subdivision (b)(2) could have been drafted to read, “An agency’s policy shall be deemed promulgated only ifall peace officers of the public agency have certified in writing that they have received, read, and understood the policy.” Alternatively, the Legislature could have used the same verbal construction as in subdivision (d), which states that “Regular and periodic training’ under this section means annualtraining that shall include [certain substantive requirements]” (emphasis added). The Legislature’s use of the same grammatical construction in subdivision (b)(2) would have supported Petitioner’s argument. (See, e.g., Hoffmanv. Smithwoods RVPark, LLC (2009) 179 Cal.App.4th 390, 404-05, quoting People v. Jones (1988) 46 Cal.3rd 585, 596 [“[W]hen different words are used in... adjoining subdivisionsofa statute, the inference is compelling that a difference in meaning was intended.”|; Gen/yte Group, LLC v. Morgan v. Beaumont Police Dept. (2016) 246 Cal.App.4th 144. The Nguyencourt noted that the statute as written required only that the agency adopt a vehicular pursuit policy, even if the policy was never disseminated or taught to officers. (/d. at p. 1168 [“[T]he law in its current state simply grants a “get out of liability free card’ to public entities that go through the formality of adopting such a policy. There is no requirement the public entity implement the policy through training or other means.”].) In response to these concerns, the Legislature added the requirements that agencies “promulgate[]” and provide “regular and periodic training” on their vehicular pursuit policies in addition to “adopt[ing]” them. (Section 17004.7(b)(1).) At the sametime, the Legislature rejected several more “extreme” proposed amendments that would have made immunity contingent on the behavior of individual officers. (Sen. Com. on Judiciary, Analysis of Sen. Bill No. 719 (2005-2006 Reg. Sess.) as amended May 5, 2005, p. 2.) The language ultimately adopted was intended as “a more moderate approach to balance the variousinterests... .” bid.) The City’s interpretation of the certification requirement is more consistent with the Legislature’s intent to encourage agencies to disseminate their policies and provide regular training, but without adopting a harsh standard that would condition immunity on individual officers’ compliance with agency policies. 14 Workers’ Comp. Appeals Bd. (2008) 158 Cal.App.4th 705, 719, quoting Jn re Zacharia D. (1993) 6 Cal.4th 435, 451 [Weare reluctant to conclude that the Legislature’s use of different terms, at different times in the statutory scheme, is meaningless.”’].) Instead, the statute defines promulgation by the existence ofa certification “requirement” and not the act of signing — in addition to expressly clarifying that the failure of any officer to actually sign a certification does not deprive the agency of immunity. B. The POST Guidelines Are Lrrelevant to the Certification Requirement. Petitioner attempts to invoke the Police Officer Standards and Training (“POST”) guidelines in arguing that an agency must proveperfect compliance with the certification requirementin order to qualify for Section 17004.7 immunity. Petitioner’s primary if not sole authority for that argument is an excerpt from the Question and Answersection of the POST website, which states: “[A]gencies must provide all peace officers with a copy of the agency pursuit policy ... [p]eace officers must also sign an attestation form (doc) that states they have ‘received, read, and understand’ the agency pursuit policy. The agency mustretain this form.” (Opening Brief at pp. 29-30, italics omitted.) The above excerpt does not support Petitioner’s argumentfor a numberof reasons. First, the languagecited is informal content from the POSTwebsite andnotthe text of actual guidelines.* Second, though the website advises agencies to keep copiesof the attestation forms, it does not 3 The guidelines themselvesare simply “a resource for each agency executive to use in the creation of a specific pursuit policy,” as the court in Morgan v. Beaumont Police Department acknowledged. (supra, 246 Cal.App.4th at p. 154.) 15 state that proof of perfect compliance with the certification requirementis necessary as a predicate for the immunity. Finally, and most importantly, Section 17004.7 does not incorporate POSTguidelines with respect to promulgation. The only mention of the POST guidelines in Section 17004.7 is in subdivision (d), which addresses the type oftraining necessary to qualify for the immunity. Subdivision (d) states: “‘Regular and periodic training’ under this section means annualtraining thatshall include, at a minimum, coverage of each of the subjects and elements set forth in subdivision (c) and that shall comply, at a minimum,with the training guidelines established pursuant to Section 13519.8 of the Penal Code [known as the POST guidelines].” Accordingly, vehicular pursuit training must comply with the POST guidelines in order for an agency to qualify for immunity. By contrast, subdivision (b)(2), which addresses promulgation, makes no mention of the POST guidelines whatsoever.* The Legislature could easily have incorporated the POST guidelines with respect to promulgation in subdivision (b)(2) or other subdivisions of the statute, but declined to do so. As such, it would be improperto import the POSTguidelines into other subdivisions of Section 17004.7 whenthe statutory language expressly limits the relevance of the POST guidelines to the training requirementin subdivision (d). / / * Petitioner blatantly mischaracterizes the statute in stating that agencies “must ‘adopt and promulgate a written policy’ based upon ‘guidelines established pursuant to Penal Code section 13519.8.’” (Opening Briefat p. 28, italics omitted.) The above sentence misleadingly combinesclauses from two entirely different subdivisions of the statute ~ subdivision (b)(2) and subdivision (d) — andis not an accurate summary of the statute. 16 Cc. A Perfect Compliance Requirement Would Be Inconsistent with the Administrative Realities Facing California Police Departments, Particularly Larger Departments. According to Petitioner, public agencies mustprovethatliterally every single one of their officers has signed a certification at the time of a given incidentin order to establish Section 17004.7 immunity. In addition to the fact that Petitioner’s reading is inconsistent with the statutory language, such a requirement would be so onerousas to be impracticable, particularly for larger departments. California’s police forces have constantly changingrosters as officers retire, join the force, and depart or return from various types of leave. At any given pointin time, officers may be out on vacation, mandatory furlough, family medical leave, sick leave, disability leave, paid or unpaid administrative leave, paid or unpaid suspension, or military leave, among other reasons. Moreover, many police departments onboard new officers throughout the year. For example, the San Francisco Police Department (“SFPD”) adds approximately 75 to 100 new officers in three or four different “classes” annually. Giventhe constantly revolving roster, it would be difficult for police departments to ensure that every single officer had signed certification at all ttmes. By way of illustration, the SFPD has approximately 2,291 sworn police officers on the force. As of February 16, 2018, 58 of those officers were out on disability leave, 41 were out on family and medical leave, and 7 were out on military leave (not to mention other types of leave, which were omitted for purposes of simplicity). The effect of these numbersis that SFPD officers join the force or return from leave on a moreorless weekly basis. According to the statutory construction urged by Petitioner and the Morgan Court, even if an agency were to ensure that each new recruit or 17 returning officer did not operate a vehicle until he or she had received the vehicularpursuit training and signed a certification, his or her mere presence on the force in the hours or days prior to signing a certification would void the immunity for the entire department. This nonsensical scenario illustrates the untenable nature of Petitioner’s argument.° Petitioner asserts that all of the types of leave discussed aboveare “typical for all employers and should always be anticipated as time off for whatever reason must be requested and approved in advance.” (Opening Brief at p. 20.) Petitioner is simply incorrect. Many types of leave are unanticipated, including illness, medical leave, disability leave, and disciplinary leave. Even if the only possible cause of absence werepre- scheduled vacations, however, large agencies would haveto routinely cross-check the vacation schedules of thousandsofofficers to ensure complete compliance with the certification requirementatall times. Petitioner’s reading is simply untenable in light of the administrative realities facing California police departments and should be rejected. D. Petitioner’s Interpretation of the Statute Would Create Administrative Problems in Proceedings Where Agencies Attempt to Invoke the Immunity. Petitioner additionally argues that Section 17004.7 requires an agency to producethe actual certification forms for every single officer on the force in order to establish the agency’s entitlement to immunity. Petitioner’s reading would have the extremeeffect of forcing large police > In addition, a perfect compliance requirement would disincentivize revisions to an agency’s vehicular pursuit policy. Agencies would have to scramble to train their entire force and obtain certifications immediately upon revising the policy to avoid the risk of hability. According to Petitioner, even one officer’s absenceat the time ofa policy revision would expose the whole agencyto suit. 18 departments to produce up to 10,000 individualcertification forms in court. Those 10,000 forms would then have to be cross-checked against a master roster of officers on the force at the time of the incident in order to ensure that not a single officer was unaccounted for. Such a process would be hugely burdensomenotjust for the agencies but also for the courts. Petitioner’s argument runs counter to the purpose of the immunity, which1sto relieve agencies from protracted and expensivelitigation where the agency has metthe threshold requirements laid out in Section 17004.7.° In considering the 2005 amendmentto Section 17004.7, the Legislature considered several proposed amendmentsthat would have made immunity contingent on officers’ compliance with the pursuit policy. However, the Legislature rejected those proposals out of concern that they would lead to “protracted litigation regarding every pursuit that results in injury to a third party.” (Sen. Com.on Judiciary, Analysis of Sen. Bill No. 719 (2005-2006 Reg. Sess.) as amended May 5, 2005, pp. 2, 7-8.) Similarly, a perfect compliance requirementfor certifications would lead to a trial within trial with voluminous documentary evidence and detailed factual findings. That is the exact opposite of the Legislature’s intended goalto relieve agencies from fact-specific litigation once they have complied with the overarching policy-level predicates outlined in Section 17004.7.’ ® Indeed, Section 17004.7 (f) provides that whether an agency has met the predicates for the immunity 1s a question of law for the courts, renderingit susceptible to resolution at preliminary stage of proceedingsiin the interests of minimizing governmental and taxpayer expense. 7 Tn addition, requiring agencies to produceofficers’ individual certifications could‘implicate privacy concerns, as peace officer personnel files in California are confidential by statute. (See, e.g., Evid. Code, § 1043; Pen. Code, § 832.7 [providing that “[p]eace officer [] personnel records . . are confidential and shall not be disclosed in any criminal or civil proceeding except by discovery pursuant to Sections 1043 and 1046 of the Evidence Code.”].) These provisions could pose complications for 19 Moreover, Petitioner’s demandthat agencies produce individual certifications in court is entirely unsupported by the languageofthe statute. Section 17004.7 does not dictate any particular method of proofin establishing that the predicates for the immunity have been met. Nothing in the statutory language precludes agencies from proving the existence of a certification requirement through printouts of departmental records or a declaration from a custodian with knowledge, for example. Petitioner attempts to impose a specific evidentiary burden on agenciesthat finds no basis in the statutory language. In sum,Petitioner’s argument that agencies must produce individual certifications in court is impractical, unsupported bythe statutory language, and contrary to the purpose of the immunity. Fortunately, the statute only requires agenciesto establish the existence of a certification requirement as a matter of policy and not perfect complianceas a factual matter. As such, agencies may establish the predicates for immunity by proving the existence of a certification requirement, the contents of their pursuit policy, and the frequency and contentof their trainings.* E. Petitioner’s Reading Would Lead to Absurd and Unfair Results. It is axiomatic that statutes must be construed to avoid impractical or absurd consequences. (See, e.g., Yohner v. California Dept. ofJustice (2015) 237 Cal.App.4th 1, 8 [Courts should “avoid an interpretation that would lead to absurd consequences.”]; Sacks v. City ofOakland (2010) 190 agencies that attempt to invoke Section 17004.7 immunity while still assiduously protecting their officers’ privacyrights. ’ Requiring agenciesto prove the existenceof a certification requirement is not a mere formality. If an agency had a requirement on paper but made no bonafide attempt to obtain signatures in practice, it is questionable whether the agency could meet its burden of establishing that certifications were actually required. 20 Cal.App.4th 1070, 1082, as modified on denial of reh’g (Jan. 5, 2011) [statutes “should be interpreted to make them workable andreasonable[], ... practical [], in accord with commonsenseandjustice, and to avoid an absurdresult [].”].) As discussed above, given the administrative realities inherent in providing trainings andcollecting certifications from a force of 10,000 officers, requiring proof of perfect compliance for an agency to availitself of the immunity would be unreasonably punitive. Petitioner’s reading is also unfair in that it would render the immunity contingent on conduct outside the agency’s control and allow a single officer to destroy the immunity for an entire agency. While an agency can require its officers to sign certifications, and even impose disciplinary consequencesfor failure to do so, the agency cannotforceits officers to sign the form as Petitioner suggests. Even if the agency wereto initiate disciplinary proceedings against an officer who failed or refused to sign a certification, such proceedings must comply with procedural mandates and cannot be completed overnight. In the meantime, Petitioner would have the entire agency stripped of immunity based on the actions of one officer. As the Court of Appeal noted below, “Under [Morgan’s] interpretation, an agency could doall within its power to implementits pursuit policy butstill be lable if a single negligent or recalcitrant officer happensto be out of compliance with the agency’s certification requirement at the time an incident occurs.” (Ramirez, supra, 14 Cal.App.Sth at p. 824.) F. Petitioner’s Reading Underminesthe Legislative Intent and Purposes Behind the Immunity. Both parties acknowledge that a major motivation behind the 2005 amendmentto Section 17004.7 was to incentivize better vehicular pursuit policies and training in the hopes of minimizing civilian injuries. (Opening 2] Brief at p. 22; Respondent’s Answer Brief on the Meritsat p. 26.) However, Petitioner’s reading of the certification requirement renders the immunity effectively unattainable for larger police forces, thereby undermining any incentive to comply with the statute. Nothing in the legislative history suggests that the immunity was intendedto apply only to smaller police forces. To the contrary, the interest in incentivizing sound vehicular pursuit policies and training may be even more important for larger departments. To concludethat one officer’s failure to sign a certification voids the immunity for the entire department would undercut the legislative purpose behind the 2005 amendment. Furthermore, for Section 17004.7 to operate as an effective incentive for agencies, the immunity mustbe not only attainable but also predictable. UnderPetitioner’s reading, an agency’s eligibility for immunity would be a moving target. An agency could be entitled to the immunity on one day and not the next because a single new officer joined the force. Agencies would have no way of knowing in advance whether they could count on the immunity without undertaking a new cross-checkof signed certifications against an ever-changingroster. The unpredictability of a perfect compliance requirement would also underminethe original purpose behind Section 17004.7, which wasto grant officers discretion to undertake vehicular pursuits without the threat ofcivil liability. (See Billester v. City ofCorona (1994) 26 Cal.App.4th 1107, 1122, 1132 [noting that a central purpose behind the original immunity was to “free police officers from the fear of exposing their employersto liability when engaging in high-speed pursuits”; Kishida v. State ofCalifornia (1991) 229 Cal.App.3d 329, 338, superseded by statutory amendment as stated in Morgan, supra, 246 Cal.App.4th 144 [noting that Section 17004.7 22 was adoptedin orderto “free the officers from the fear of exposing the entity to liability when making the determination of whether to engage in such a pursuit or to terminate it once it has begun’’].) Officers cannot be free of the threat of agencyliability if the availability of the immunity varies from dayto day.’ Finally, the limited scope of Section 17004.7 evidencesa policy determination by the Legislature that agencies should be relieved from liability under the limited factual scenarios covered bythestatute. Petitioner consistently mischaracterizes Section 17004.7 as a broad immunity for “incidents of injury or death caused in the course of a police pursuit.” (Opening Briefat p. 7.) In fact, Section 17004.7 only provides immunity to police departments for injury or property damage caused by the collision of a vehicle operated by afleeing suspect. (17004.7(b)(1) [providing that a public agency meeting certain requirements “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... .”].) The statute does not provide immunity for injuries caused bycollision with officers’ vehicles, or injuries caused in any other manner during the course of a vehicular pursuit. (/bid.; see also Lewis v. County ofSacramento (2001) 93 Cal.App.4th 107, 128, disagreed with on other grounds by Kaufman & Broad Communities, Inc. v. Performance Plastering, Inc. (2005) 133 Cal.App.4th 26 [“[T]he critical question is whetherthe plaintiffs injuries resulted from the collision of a vehicle being operated bya fleeing suspect.”].) While Section 17004.7 requires certain policy andtraining ” By contrast, an immunity contingent on the agency’s overarching policies and practices is predictable and within the agency’s control. 23 requirements in an attempt to encourage safer police practices, the immunity was intended to be reasonably available to departments, and reflects the Legislature’s view that immunity in such factual scenariosis appropriate. (See Kishida, supra, 229 Cal.App.3dat p. 338,italics omitted [noting that the original purpose of Section 17004.7 was to “confer immunity on governmentalentities”]; Assem. Com., Statement on Assem. Bill No. 1912 (1987-1988 Reg. Sess.) as amended Aug. 20, 1987 [concluding that “the ability of peace officers to pursue criminal suspects should not be curtailed on the basis of potential tort liability for injury caused bythe fleeing party”].) The immunity was intendedto be available for agencies in the limited factual scenarios that it covers, and should be interpreted consistently with that intent. Iv. CONCLUSION Forthe foregoing reasons, the League urges the Court to affirm the decision of the Court of Appeal andtrial court below. Dated: March 21, 2018 DENNIS J. HERRERA City Attorney . YVONNE R. MERE Chief of Complex and Affirmative Litigation CHRISTINE VAN AKEN Chief of Appellate Litigation NATALIE M. ORR Deputy City Attorney By: NATALIE M. ORR Attorneys for Amicus Curiae, League of California Cities 24 CERTIFICATE OF COMPLIANCE I hereby certify that this brief has been prepared using proportionately double-spaced 13 point Times New Roman typeface. According to the “Word Count” feature in my Microsoft Word for Windowssoftware, this brief contains 4,666 words up to and including the signature lines that follow the brief’s conclusion. I declare under penalty of perjury that this Certificate of Compliance is true and correct and that this declaration was executed on March 21, 2018. DENNISJ. HERRERA City Attorney , YVONNE R. MERE Chief of Complex and Affirmative Litigation CHRISTINE VAN AKEN Chief of Appellate Litigation NATALIE M. ORR Deputy City Attorneys By glHh NATALIE M. ORR Attorneys for Amicus Curiae, League of California Cities 25 CERTIFICATE OF SERVICE I, Alison Lambert, declare asfollows: I am a citizen of the United States, over the ageof eighteen years and not a pa to the above-entitled action. I am employedatthe City Attorney’s Office of San Francisco, Fox Plaza Building, 1390 Market Street, Sixth Floor, San Francisco, CA 94102. On March 21, 2018, I served the attached APPLICATION OF LEAGUE OF CALIFORNIA CITIES FOR LEAVETO FILE AMICUS CURIAEBRIEF IN SUPPORT OF CITY OF GARDENA; PROPOSED AMICUS CURIAE BRIEF on the interested parties in said action, by placing a true copy thereofin sealed envelope(s) addressed as follows: Abdalla Jiries Innabi Innabi Law Group, APC 107 South Fair Oaks Avenue Suite 208 Pasadena, CA 91105 Attorneysfor Plaintiffs and Appellants — Mildred K. O’Linn Tony M.Sain Ladell H. Muhlestein Manning & Marder Kass Ellrod Ramirez Trester LLP - 801 S Figueroa St 15FL Los Angeles, CA 90017 Attorneys for Defendant and Respondent California Court ofAppeal, Second Appellate District, Division One Ronald Reagan State Building 300 S. Spring Street 2nd Floor, North Tower Los Angeles, CA 90013 Clerk of the Supreme Court California Supreme Court 350 McAllister Street San Francisco, CA 94102 (1 Original & 8 copies) (Hand Delivery) Amer Innabi Innabi Law GroupInc 2500 East Colorado Blvd. Suite 230 Pasadena, CA 91107 Attorneys for Plaintiffs and Appellants The Honorable Yvette M. Palazuelos Los Angeles County Superior Court Stanley Mosk Courthouse 111 North Hill Street, Dept. 28 Los Angeles, CA 90012 Office of the California Attorney General 300 S Spring St #1700 Los Angeles, CA 90013 Following ordinary business practices, I sealed true and correct copies of the above documents in addressed envelope(s) and placed them at 26 my workplace for collection and mailing with the United States Postal Service. I am readily familiar with the practices of the San Francisco City Attorney's Office for collecting and processing mail. In the ordinary course of business, the sealed envelope(s) that I placed for collection would be deposited, postage prepaid, with the United States Postal Service that same ay. I declare under penalty of perjury pursuant to the laws ofthe State of California that the foregoingis true and correct. Executed March 21, 2018, at San Francisco, California. ALISON LAMBERT 27