RAMIREZ v. CITY OF GARDENA

Appellant, Irma Ramirez, Petition for Review

Cal.September 26, 2017

1 Supreme Court Case No. ________ IN THE SUPREME COURT OF THE STATE OF CALIFORNIA IRMA RAMIREZ et al., Plaintiff and Appellant, v. CITY OF GARDENA, Defendant and Respondent. Court of Appeal Case No.: B279873 Superior Court Case No.: BC609508 Review Sought of the Opinion of the Court of Appeal, Second Appellate District, Division One Affirming Summary Judgment of The Superior Court of California, County of Los Angeles The Honorable Yvette M. Palazuelos, Judge Presiding _________________________________________ PETITION FOR REVIEW _________________________________________ Abdalla J. Innabi* (S.B. No. 172302) Amer Innabi (S.B. No. 225413) Innabi Law Group, APC 2500 E. Colorado Blvd., Suite 230 Pasadena, CA 91107 T: (626) 395-9555 F: (626) 395-9444 abdalla@innabi-lg.com amer@innabi-lg.com Attorneys for Plaintiff and Appellant IRMA RAMIREZ 2 TABLE OF CONTENTS Page TABLE OF AUTHORITIES…………………………………………..…..……...4 INTRODUCTION………………………………………………….……..………6 STATEMENT OF ISSUES……….…………………………….…………..…….7 GROUNDS FOR REVIEW…………………………………….…………..……..8 PROCEDURAL HISTORY………………………….……………………..……..9 STATEMENT OF THE FACTS…………………………………………..……..10 A. THE INCIDENT………………………………………….….……10 B. THE CITY’S PURSUIT POLICY AND WRITTEN CERTIFICATION PROCESS AT THE TIME OF THE INCIDENT………………………………………..……….……....12 1. The GPD’s Vehicular Pursuit Policy……...……….……....12 2. Promulgation of the Applicable Pursuit Policy…….….......14 ARGUMENT……………………………………………………….….…….…..17 A. LIABILITY FROM INCIDENTS OF PERSONAL INJURY ARISING FROM PURSUITS EXISTS FOR PUBLIC ENTITIES……………………………………...….........................17 B. THE COURT OF APPEAL IMPROPERLY INTERPRETED THE PLAIN LANGUAGE AND INTENT OF SECTION 17004.7(b)(2) IN DIRECT CONTRAVENTION OF MORGAN…………………….………………...….........................18 1. The Plain Language of Section 17004.7(b)(2)…..…….…...20 2. The Legislative History and Purpose………..…………......24 C. THE RAMIREZ OPINION UNDERMINES POST’S AUTHORITY AND DISREGARDS IT’S GUIDANCE FOR PROPERLY “PROMULGATING” A PURSUIT POLICY…………………………………..…………….................29 3 CONCLUSION……………………………………….………………….……..31 CERTIFICATE OF COMPLIANCE………………….…………….….............32 4 TABLE OF AUTHORITIES Page CASES State Apple Inc. v. Superior Court. (2013) 56 Cal.4th 128…………………...….....….21 Brumer v. City of Los Angeles (1994) 24 Cal.App.4th 983……………..…..…...28 Brummett v. County of Sacramento (1978) 21 Cal.3d 880…………....…..……..18 Cequel III Communications I, LLC v. Local Agency Formation Com. of Nevada County (2007) 149 Cal.App.4th 310…………………………………..…..……..21 Colvin v. City of Gardena (1992) 11 Cal.App.4th 1270…………….…..……….18 Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379………………………………………….………..……….21 Morgan v. Beaumont Police Department (2016) 246 Cal.App.4th 14………………………………….………………..……...passim Nolan v. City of Anaheim (2004) 33 Cal.4th 335……………….……..………...21 Nguyen v. City of Westminster (2002) 103 Cal.App.4th 1161.…..…….…...passim Thomas v. City of Richmond (1995) 9 Cal.4th 1154………….…..………....17, 18 Weiner v. City of San Diego (1991) 229 Cal.App.3d 1203……..……….…….…28 Yohner v. California Department of Justice (2015) 237 Cal.App.4th 1...………..24 STATUTES Government Code, section 815………..……………….…………........................17 Government Code, section 815.2, subdivision (b)…..……….…….......................17 Government Code, section 820.2……...…………………….………....................17 Penal Code, section 13500………………………..……….……….......................29 Penal Code, section 13519.8……………………...……….……...........................29 Vehicle Code, section 17001……………………………..……...….....................18 5 Vehicle Code, section 17004……………………………...……….....................17 Vehicle Code, section 17004.7(a)…..…………………………….......................18 Vehicle Code, section 17004.7(b)(1).………………….................................18, 29 Vehicle Code, section 17004.7(b)(2).……………..………...........................19, 20 Vehicle Code, section 17004.7(d).………………..……………....................19, 29 LEGISLATIVE HISTORY Senate Committee on Public Safety, Analysis of Sen. Bill No. 719 (2005–2006 Reg. Sess. April 26, 2005) .......................................................................26, 27, 28 OTHER SECONDARY SOURCES https://post.ca.gov/general-questions.aspx..........................................................30 6 I. INTRODUCTION To the Honorable Chief Justice Cantil-Sakauye and the Honorable Associate Justices of the Supreme Court of the State of California: Plaintiff and Appellant Irma Ramirez (“Ramirez”), individually and on behalf of the Estate of Mark Gamar, respectfully petition for review of the published opinion in Ramirez v. City of Gardena (2017) WL 3614195, which was filed on August 23, 2017. See Exhibit “A.” That case addressed Vehicle Code1 section 17004.7(b)(2), specifically, the manner in which law enforcement pursuit policies are to be implemented by public agencies and certified by peace officers throughout the State of California. As it stands, the opinion of the Second District Court of Appeal in Ramirez is now in conflict with the holding of the Fourth District Court of Appeal reached in the matter of Morgan v. Beaumont Police Dept. (2016) 246 Cal.App.4th 144, a year prior. As a consequence, the review of this opinion by the Supreme Court is now necessary to secure uniformity of decision between two differing districts. More importantly, review of this case by the Supreme Court is necessary to settle important questions of law affecting the safety of California’s citizens and peace officers and the ability to seek legal redress for incidents of personal injury or death caused in the course of a vehicular police pursuit. If the Ramirez opinion stands, the consequences of that decision will not only discourage law enforcement agencies from properly implementing, disseminating, and certifying peace officers in their pursuit policies, but it will inevitably endanger the safety of the motoring public, pedestrians, and the peace officers themselves who engage in such dangerous tactics. The obvious public policy behind Section 17004.7(b)(2) which is clearly articulated in Morgan, is to encourage safe and effective law enforcement through the responsible pursuit and apprehension of criminal suspects. This encouragement of responsible pursuits is manifest in the form of civil immunities available to individual peace officers and their employing 1 All references to “Section” shall refer to the Vehicle Code. 7 agencies when they strictly adhere to the letter and spirit of their respective agency’s pursuit policy, training, and the law. Based upon plain meaning and purpose of Section 17004.7, it is apparent the legislature did not intend to immunize those public agencies from liability which fail to “adopt” and “promulgate” a written pursuit policy pursuant to Section 17004.7 and the guidelines set forth by the Department of Justice’s “Commission on Peace Officer Standards and Training” (“POST”). Therefore, it is imperative for the Supreme Court to review the issues before it in order to protect the public and peace officers of this state and effectuate the legislature’s desire to encourage safe and effective pursuit training and certification in circumstances involving high-speed chases. II. STATEMENT OF ISSUES Plaintiff presents the following issue: 1. Has a public agency proffered sufficient evidence of “promulgation” of a vehicular pursuit policy within the meaning of Section 17004.7(b)(2) and POST’s minimum guidelines to be granted immunity from civil liability for an incident of personal injury or death arising from a high-speed police pursuit if that agency has not produced any signed attestation forms from any of their peace officers certifying in writing that have received, read, and understand the policy at the time of an incident? This question should have been answered with a resounding “no!” Surprisingly, the Court of Appeal answered this questions in the affirmative, misconstruing the plain language and legislative intent behind Section 17004.7(b)(2) and ignoring POST’s guidance on the subject matter. Based upon the Ramirez Court’s reasoning, the court came to the conclusion that it did presumably because it thought the opposite outcome would be unfair to law enforcement agencies and present an undue burden to them with regard to the certification of their peace officers. Unfortunately, in reaching that conclusion the Ramirez Court disregarded highly persuasive authority addressing the same issues 8 before this Court in Morgan and ignored POST’s standards for satisfying the “promulgation” requirement under Section 17004.7(b)(2). III. GROUNDS FOR REVIEW The Supreme Court may order review of a Court of Appeal decision: (1) when necessary to secure uniformity of decision or to settle an important question of law.” (Rule of Court, Rule 8.500(b).). Given Ramirez Court’s decision to not follow Morgan v. Beaumont Police Dept. (2016) 246 Cal.App.4th 144 and the guidelines for promulgation set by POST, a split in authority has been created as to meaning of “promulgation” and the sufficiency evidence required to establish it under Section 17004.7(b). See Ramirez v. City of Gardena (2017) (2017) WL 3614195. The two issues presented by plaintiff are important in that they touch upon the public safety of California’s citizens and their ability to seek legal redress for incidents of personal injury or death caused in the course of a vehicular police pursuit. Consequently, the above issues should be resolved by this Court to protect the public, including the state’s peace officers, and effectuate the legislature’s desire to encourage safe and effective pursuit training and certification of peace officers in circumstances involving high-speed chases while providing an avenue for redress to victims and their families. High-speed police chases create a significant danger for the public, whether they occur in cities, towns, or rural areas. In their portrayal of police pursuits, films, television shows, and news programs often assume that this risk is necessary for the police to catch and apprehend dangerous criminals. However, such pursuits have perilous consequences: Data from the National Highway Traffic Safety Administration (“NHTSA”) shows that approximately 100 peace officers, pedestrians, and occupants of other cars are killed each year in chase-related crashes. (National Center for Statistics & Analysis, Fatalities in Motor Vehicle Traffic Crashes Involving Police in Pursuit 37-56 (2010) (reporting 1,269 such deaths between 2000 and 2009).) These deaths can and should be prevented at all reasonable costs. 9 As a consequence, it is no surprise that the legislature intended for public law enforcement agencies to ensure that their peace officers are properly trained and certified giving POST the authority to establish those guidelines to ensure compliance. As it currently stands, the Ramirez opinion would thwart the legislative intent and statutory purpose of Section 17004.7 and undermine the authority, experience, and guidance of POST. The Ramirez opinion now provides an incentive to public agencies by providing them civil immunity even when they have failed to demonstrate that each of their peace officers have been trained and certified in their pursuit policy as required Section 17004.7(b) and POST’s guidelines. Further, the Ramirez opinion eviscerates the promulgation requirement Section 17004.7(b) making a simple declaration of a single peace officer sufficient to satisfy the promulgation requirement. For the foregoing reasons, review by this Court is now essential for guidance on the issue of promulgation. IV. PROCEDURAL HISTORY On February 5, 2016, Irma Ramirez, the mother of Mark Gamar, filed a lawsuit asserting a wrongful death action, against Defendant and Respondent the City of Gardena (the “City”) based on theories of 1) General Negligence, 2) Motor Vehicle Negligence, and 3) Intentional Tort supported by the Vehicle and Government Codes, for the death of her son. [1 AA 2-14.]. On July 29, 2016, the City filed a motion for summary judgment or, in the alternative, a motion for summary adjudication on the basis that: (1) it is civilly immune under California Vehicle Code section 17004.7 and (2) it was not negligent because Officer Nguyen’s conduct was reasonable under the circumstances as a matter of law. [1 AA 31-72.]. Section 17004.7(b)(1) sets forth a narrowly circumscribed immunity, which is available to a public agency if it demonstrates that it has adopted and promulgated a written pursuit policy where all peace officers certify in writing that 10 that have received, read, and understand the policy at the time of a particular incident. On November 15, 2016, the trial court granted the City’s motion for summary judgment in its entirety, finding as a matter of law that the City was civilly immune under Section 17004.7 despite finding that there were triable issues of fact as to whether Officer Nguyen’s actions were reasonable under the circumstances. [5 AA 1165-1201.] Judgment was eventually entered by the trial court on December 8, 2016 and Ramirez filed her Notice of Appeal on January 3, 2017. [5 AA 1240-1246.] Ultimately, the Court of Appeal filed its opinion on August 23, 2017, affirming summary judgment in favor of the City, finding that the City provided sufficient evidence to establish that it “promulgated” and “adopted” a written pursuit policy within the meaning of Section 17004.7. Consequently, Ramirez has filed the instant Petition for Review. V. STATEMENT OF FACTS A. THE INCIDENT This action relates to a two car collision following a brief vehicular pursuit which occurred on February 15, 2015 at approximately 11:17 p.m., Sunday evening, in a commercial section of the City of Gardena during a time when there was virtually no traffic on the streets. [1 AA 2-19, 3 AA 673-675, 723-729, 809- 814.]. At the time, Gamar was a passenger in a small, 1984 Toyota pick-up truck being driven by Arellano when a marked City of Gardena Police Ford Explorer SUV (Vehicle P-13), driven by Officer Nguyen of the GPD, intentionally rammed into the rear quarter panel of the pick-up truck in an attempt to conduct a PIT maneuver. [1 AA 2-19, 3 AA 673-675, 723-729, 809-814.]. The City contends that Arellano was fleeing from the scene of an armed robbery that originated in the City of Hawthorne, allegedly involving Gamar, in which two (2) cellular phones were stolen prior to the collision. [1 AA 46-47, 76, 126, 134.] 11 During the one minute and 10 second pursuit, Officer Nguyen attempted a PIT maneuver at nearly 50 mph on the pick-up truck which was traveling at approximately 40 mph while both vehicles headed westbound on Rosecrans Avenue where there was virtually no traffic at the time. [3 AA 673-675, 723-726, 809-814.]. That particular stretch of Rosecrans Avenue is comprised of three lanes in either direction, a painted center median, and is located in an industrial section of Gardena, approximately two city blocks before the Northbound 110 Freeway off-ramp and on-ramps which are directly adjacent to one another. As a result of the PIT maneuver, the pick-up truck lost control and collided passenger side into a street signal pole located on the southeastern corner of Rosecrans Avenue and the Northbound 110 freeway off-ramp contributing to Gamar’s eventual death on February 17, 2015. [1 AA 2-19, 3 AA 673-675, 723-726, 809- 814.]. From the outset of the vehicular pursuit, Officer Nguyen was intent upon conducting a PIT maneuver seconds into initiating this short chase without considering any safer alternative driving or legal intervention tactics. [3 AA 673- 675, 726-727, 791-804, 809-814.]. An investigation into the matter by the Los Angeles Sheriff’s Department revealed that Officer Nguyen formulated his intent to conduct a PIT maneuver as he turned westbound onto Rosecrans Avenue from South Figueroa Street. [3 AA 726-729, 791-804, 809-814.]. During an interview Officer Nguyen admitted that as he made that turn he wanted to conduct a PIT maneuver, but chose not to at the time before the pursuit ended in a collision approximately one block away by the Northbound 110 freeway off-ramp and on- ramps. [3 AA 726-729, 791-804, 809-814.]. Less than a minute into the pursuit Officer Nguyen decided, without watch commander approval, to initiate the maneuver from an opposing lane of traffic knowing that a PIT maneuver over the speed of 35 mph was extremely dangerous and without ever observing a weapon from the fleeing vehicle or encountering any egregious traffic violations which threatened the public’s safety. [3 AA 673-675, 726-727, 791-804, 809-814.]. 12 Officer Nguyen’s decision to conduct the PIT maneuver only appears to have occurred after Gardena Police Officer Michael Balzano (“Officer Balzano”) confirmed with Officer Nguyen that there were “enough [patrol] vehicles [behind him] to initiate a PIT maneuver.” [3 AA 728, 791-804, 809-814.]. Following the collision, Officer Nguyen claimed to have initiated the PIT maneuver at that specific time because he believed the “pick-up truck was beginning to enter the [Northbound 110 freeway] off ramp” despite the fact that dash cam video showed Arellano never applied the brakes or slowed down to make a left turn towards the off-ramp a significant distance from the freeway on and off ramps. [3 AA 728-729, 791-804, 809-814.]. Video footage further revealed that Arellano steered slightly to the left for a split second to block Officer Nguyen’s fast approaching vehicle coming from the left from an opposing lane of traffic. [3 AA 726-729, 791-804, 809-814.]. Officer Balzano later confirmed in an interview with the Los Angeles Sheriff’s Department that it appeared to him that the pick-up truck moved left simply as a reaction to Officer Nguyen’s vehicular move to the left in attempt to “cut off” Officer Nguyen’s fast approaching vehicle. [3 AA 726-729, 791-804, 809-814.]. Ultimately, this testimony and footage from the dash cam videos from the pursuing police vehicles casts serious doubt as to the veracity of Officer’s Nguyen’s claimed justification for conducting the PIT maneuver at the time he chose to execute it. [3 AA 673- 675, 723-729, 791-804, 809-814.]. B. THE CITY’S PURSUIT POLICY AND WRITTEN CERTIFICATION PROCESS AT THE TIME OF THE INCIDENT. 1. The GPD’s Vehicular Pursuit Policy. At the time of the incident the City’s applicable “Pursuit Policy” was contained within Section 5.2.10 of the “Gardena Police Manual” which had been in existence without modification for at least 15 years according to Detective Michael Ross of the GPD who was identified as the Person Most Knowledgeable 13 for the City regarding its pursuit policies. [2 AA 555-562, 3 AA 597-598, 675, 722-723, 730, 817-825.]. At deposition, Det. Ross admitted that the applicable pursuit policy failed to provide any guidance as to the conditions and circumstances under which the driving and legal intervention tactics such as PIT maneuvers and ramming may be utilized, which is the underlying basis for this civil action. [2 AA 555-562, 3 AA 605, 607, 616, 621, 675, 730, 847-848, 851- 852, 722-723, 730, 817-825, 847-849, 851-852.]. Additionally, Det. Ross admitted that under the applicable policy, individual peace officers had full discretion to conduct such driving and legal intervention tactics as they saw fit with or without approval from a supervisor contrary to its current policy. [2 AA 555-562, 3 AA 602-604, 607-608, 675, 730, 847-848, 851-852, 722-723, 730-731, 817-825, 844-846, 848-849.]. A comparative reading of the City’s applicable policy to the current pursuit policy which was coincidentally adopted on February 21, 2016, two (2) weeks after this civil matter was filed, further illustrates the deficiencies in the pursuit policy at the time of the incident. [2 AA 555-562, 3 AA 615, 630, 635, 657, 675- 676, 722-723, 731, 791-794, 817-825, 828-840, 850, 856-879.]. For example, subsection “I” of the applicable policy at the time of the incident entitled “Pursuit Driving Tactics” states that a PIT maneuver may be executed during a pursuit “with Watch Commander approval, if practical” and that forcible stop tactics such as ramming may be used “in keeping with Departmental guidelines regarding use of force and pursuit policy.” [2 AA 555-562, 3 AA 602-603, 605, 607-608, 615- 616, 621-622, 624-625, 675-676, 722-723, 731-732, 791-794, 817-825, 844-845, 847-879.]. The inadequacies of the applicable pursuit policy are further illustrated when compared to that of the City’s current “Gardena Police Department Pursuit 14 Policy, Policy 307” which was drafted by Lexipol2 and adopted by the GPD on February 21, 2016. [2 AA 555-562, 3 AA, 615, 630, 635, 637, 655-667, 675-676, 722-723, 732-733, 791-794, 817-825, 828-841, 850, 856-879.]. Under the current pursuit policy Section 307.7.4, PIT maneuvers “will be authorized …only…with approval of a supervisor upon consideration of the circumstances and conditions presented at the time, including the potential for risk of injury to officers, the public and occupants of the pursued vehicle.” [2 AA 555-562, 3 AA 602-605, 607-608, 615-616, 621-622, 624-625, 630, 635, 637, 655-667, 675-676, 722-723, 733-734, 791-794, 817-825, 828-841, 844-879.]. Additionally, “Ramming a fleeing vehicle should be done only after reasonable tactical means at the officer’s disposal have been exhausted” and “when one or more of the following factors should be present: 1) The suspect is an actual or suspected felon who reasonably appears to represent a serious threat to the public if not apprehended, 2) The suspect is driving with willful or wanton disregard for the safety of other persons or is driving in a reckless and life-endangering manner, and 3) If there does not reasonably appear to be a present or immediately foreseeable serious threat to the public, the use of ramming is not authorized.” [2 AA 555-562, 3 AA 602-605, 607-608, 615-616, 621-622, 624-625, 630, 635, 637, 655-667, 675-676, 722-723, 733-734, 791-794, 817-825, 828-841, 844-879.]. 2. Promulgation of the Applicable Pursuit Policy. Despite knowing the strict promulgation requirements of Section 17004.7(b)(1) and (2), the City also failed to proffer any evidence showing that all of its peace officers certified in writing on an annual basis that they have received, read, and understood the GPD pursuit policy. [2 AA 335-341, 344-346, 348-349, 356-359, 381-382, 388, 407, 413-415, 417, 477-562, 3AA 677-678, 722-723, 735- 736, 778-784, 791-792, 794-795, 4 AA 883-979.] In fact, Lt. Michael Saffell, the 2 Lexipol is America’s leading provider of policies and training for public safety organizations, delivering their services through a unique, web-based development system. Lexipol offers state-specific policy manuals, regular policy updates and daily scenario based training. 15 custodian of records for the GPD at the time of the incident, declared that “he is informed and believes” that “approximately” 92 active-duty police officers were employed at the time of the incident and claimed all officers completed certifications for the City’s “Pursuit Policy Training” without actually producing any signed written attestation certificates for each officer after 2010 as required by Section 17004.7(b)(1) and (2). [2 AA 335-341, 344-346, 348-349, 356-359, 381-382, 388, 407, 413-415, 417, 477-562, 3AA 677-678, 722-723, 735-736, 778- 784, 791-795, 4 AA 883-979.] As part of the City’s motion for summary judgment, the City attached signed “SB 719 Pursuit Policy Training Attestation” certificates from only 2009 and 2010 for various officers within the GPD, with none of the names in 2009 actually repeating the following year in 2010. [2 AA 335-341, 344-346, 348-349, 356-359, 381-382, 388, 407, 413-415, 417, 477-562, 3AA 677-678, 722-723, 735- 736, 778-784, 791-795, 4 AA 883-979.] Lt. Vicente Osorio, the GPD’s current custodian of records, testified in deposition that after 2010, the City did away with the “SB 719 Pursuit Policy Training Attestation” forms and required its peace officers to sign “roster sheets” proving their attendance in pursuit policy training, with those signed roster sheets later being “shredded” after the names of the respective attending officers were entered into a GPD data base by an unidentified female clerk. [2 AA 335-341, 344-346, 348-349, 356-359, 381-382, 388, 407, 413-415, 417, 477-562, 3AA 677-678, 722-723, 735-736, 778-784, 791-795, 4 AA 883-979.] Attempting to demonstrate some type of written certification of pursuit training, the City produced in discovery in response to a request, a GPD “Course Attendance Report” which it had generated in 2016 with a date range of July 1, 2013 to June 30, 2016 showing “new training” acquired or provided to the City’s officers for “Driving (PSP).”3 [2 AA 335-341, 344-346, 348-349, 356-359, 381- 3 Plaintiff objected to the use of this report because it is inadmissible hearsay evidence which is not exempted as a business or public record given that the report was generated by the City in direct response to a discovery request 16 382, 388, 407, 413-415, 417, 477-562, 3AA 677-678, 722-723, 735-736, 778-784, 791-795, 4 AA 883-979.] During that three (3) year span of time which only lists training allegedly completed by officers in 2014, Lt. Osorio could not say for certain that all of the City’s active-duty peace officers acquired updated training in 2014. More importantly, the GPD “Course Attendance Report” did not contain the signatures of any of the individual peace officers or a statement certifying that the officers “received, read, and understand” the agency’s pursuit policy.” [2 AA 335-341, 344-346, 348-349, 356-359, 381-382, 388, 407, 413-415, 417, 477-562, 3AA 677-678, 722-723, 735-736, 778-784, 791-795, 4 AA 883-979.] To attempt to support the written certification of the City’s pursuit training, Lt. Saffell declared that GPD was not required to maintain written certifications “prior to 2016” claiming any unproduced records reflecting training and certification that have not been produced in discovery allegedly “may have been lost during [his] Department’s transition to a new police station.” [2 AA 335-341, 344-346, 348-349, 356-359, 381-382, 388, 407, 413-415, 417, 477-562, 3AA 677- 678, 722-723, 735-736, 778-784, 791-795, 4 AA 883-979.] Ultimately, Lt. Saffell declared only upon “information and belief” that the applicable vehicle pursuit policy was “regularly” taught to all Gardena police officers and that GPD provided training on an annual basis without producing any written evidence that all its peace officers “certify in writing that they have received, read, and understand the policy” as required by Section 17004.7. [2 AA 335-341, 344-346, 348-349, 356- 359, 381-382, 388, 407, 413-415, 417, 477-562, 3AA 677-678, 722-723, 735-736, 778-784, 791-795, 4 AA 883-979.] in 2016 after the incident in question and the alleged training and certification that took place in 2014. [3 AA 778-784, 4AA 388, 407, 477-479.] 17 VI. ARGUMENT A. LIABILITY FROM INCIDENTS OF PERSONAL INJURY ARISING FROM PURSUITS EXISTS FOR PUBLIC ENTITIES. The tort liability of public entities in California is governed by statute. (Thomas v. City of Richmond (1995) 9 Cal.4th 1154, 1157.) “Except as otherwise provided by statute: [¶](a) 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.) (emphasis added). “Government Code section 810 et seq., referred to as the California Tort Claims Act of 1963, generally define the liabilities and immunities of public entities and public employees. While the act is the principal source of such liabilities, other statutory sources exist.” (Id.) Government Code section 815.2, subdivision (b) states: “Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability.” (Gov. Code § 815.2(b).) (emphasis added.) Section 17004 confers broad immunity upon public employees responding to emergency calls or in the pursuit of an actual or suspected violator of the law. (See Veh. Code § 17004.) (emphasis added.) Similarly, Government Code section 820.2 provides a broad immunity to public employees for discretionary acts. Government Code section 820.2 sets forth except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused. (Gov. Code § 820.2.) (emphasis added.) One statutory source outside the California Tort Claims Act of 1963 (hereafter Tort Claims Act) is Section 17001, which provides: “A public entity is liable for death or injury to person or property proximately caused by a negligent or wrongful act or omission in the operation of any motor vehicle by an employee 18 of the public entity acting within the scope of his employment.” (Id. citing Veh. Code § 17001.) As a consequence of Section 17001, “a public entity has liability for vehicle pursuits even though the public employee is immune.” (Colvin v. City of Gardena (1992) 11 Cal.App.4th 1270, 1276.) (emphasis added.) “Vehicle Code 17001 is not a general liability statute, but one that specifically imposes liability upon a ‘public entity.’” (Thomas, supra at p. 1159.) Thus, Section 17001 “otherwise provides” for public entity liability and comes within the exception of Government Code section 815.2, subdivision (b). (Id. citing Brummett v. County of Sacramento (1978) 21 Cal.3d 880, 885.) Reading Sections 17001, 17002 and 17004 together, the inescapable conclusion is that the legislature intended to allow public entities, but not individual peace officers, to be held civilly liable for pursuit related injuries sustained by suspects or innocent bystanders. B. THE COURT OF APPEAL IMPROPERLY INTERPRETED THE PLAIN LANGUAGE AND INTENT OF SECTION 17004.7(b)(2) IN DIRECT CONTRAVENTION OF MORGAN. An exception to a public entity’s liability permitted under Section 17001 is set forth in Section 17004.7. The immunity provided by this section is in addition to any other immunity provided by law. The adoption of a vehicle pursuit policy by a public agency pursuant to this section is discretionary. (Veh. Code § 17004.7(a).) (emphasis added). Subdivision (b)(1), provides: “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(b)(1).) (emphasis added). Promulgation of the written policy under 19 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 impose liability on an individual officer or a public entity. (Veh. Code § 17004.7(b)(2).) (emphasis added). “Regular and periodic training” under this section means annual training that shall 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. (Veh. Code § 17004.7(d).) The court in Morgan v. Beaumont Police Department (2016) 246 Cal.App.4th 144, resolved the specific issue as to the type of officer certification and training required to have a vehicular pursuit policy deemed properly “promulgated” under Section 17004.7(b)(1) to allow a public entity to avail itself of the immunity provided under this section. In Morgan, the family of decedent, Mike Wayne Morgan, brought a negligence action against the City of Beaumont and the Beaumont Police Department for wrongful death of decedent following a head on collision with a fleeing suspect who was being pursued by Beaumont Police Department during a vehicle pursuit that lasted nearly 12 minutes. The trial court in Morgan granted defendants’ motion for summary judgment, concluding they were immune from liability pursuant to Section 17004.7. However, the appellate court reversed summary judgment concluding that defendants failed to proffer sufficient evidence to establish as a matter of law that Beaumont Police Department sufficiently “promulgated” its vehicle pursuit policy as required under section 17004.7. (Morgan v. Beaumont Police Department (2016) 246 Cal.App.4th 144, 147.) In Morgan, the Police Commander provided a declaration that its peace officers could directly access the agency’s pursuit policy through the “Lexipol service” or through the “department shared drive” and electronically, through individual work e-mail accounts, acknowledge “receipt” of the pursuit policy instead of certifying in writing that all 20 officers “received, read, and under[stood]” the policy. (Id. at pp. 162-163.) Further, the Police Commander admitted in his declaration that peace officer e- mails acknowledging mere “receipt” of the policy were not kept by the department. Assuming, without deciding, that an e-mail acknowledgement satisfies the “writing” certification requirement in subdivision (b)(2) of section 17004.7, the court concluded that the record is devoid of evidence showing that each peace officer in fact acknowledged he or she “received, read, and under[stood]” the policy. (Id.) Ultimately, the court held that Section 17004.7(b)(2) required more than mere “receipt” of the policy in order for immunity to apply. In sum, the Morgan court found that the Beaumont Police Department did not properly “promulgate” its vehicle pursuit policy, thus the city and police department were not entitled to statutory vehicle pursuit immunity, even if the department disseminated the policy to all of its officers within the department and had in place a policy that required its officers to review and acknowledge any policy disseminated, where the officers used e-mail to acknowledge mere “receipt” of the policy instead of certifying in writing that they received, read, and understood the policy. (Id.) Much like the police department in Morgan, the City in the instant case failed to properly “promulgate” its pursuit policy to all of its peace officers based upon the both plain language and legislative history of Section 17004.7 and the guidelines of the Commission on Peace Officer Standards and Training (POST). [2 AA 335-341, 344-346, 348-349, 356-359, 381-382, 388, 407, 413-415, 417, 477-562, 3AA 677-678, 722-723, 735-736, 778-784, 791-795, 4 AA 883-979.] 1. The Plain Language of Section 17004.7(b)(2). An analysis of Section 17004.7(b)(2) is guided by settled principles of statutory interpretation. (Morgan v. Beaumont Police Department (2016) 246 Cal.App.4th 144, 151.) The Court’s “fundamental task is ‘to ascertain the intent 21 of the lawmakers so as to effectuate the purpose of the statute. [Citation.] As always, we start with the language of the statute, ‘giv[ing] the words their usual and ordinary meaning [citation], while construing them in light of the statute as a whole and the statute's purpose [citation].” (Id. citing Apple Inc. v. Superior Court. (2013) 56 Cal.4th 128, 135.) “The statute’s words generally provide the most reliable indicator of legislative intent; if they are clear and unambiguous, “[t]here is no need for judicial construction and a court may not indulge in it.” [Citation.] Accordingly, “[i]f there is no ambiguity in the language, we presume the Legislature meant what it said and the plain meaning of the statute governs.” (Id. citing Cequel III Communications I, LLC v. Local Agency Formation Com. of Nevada County (2007) 149 Cal.App.4th 310, 318.) “Nonetheless, ‘the “plain meaning” rule does not prohibit a court from determining whether the literal meaning of a statute comports with its purpose or whether such a construction of one provision is consistent with other provisions of the statute. The meaning of a statute may not be determined from a single word or sentence; the words must be construed in context, and provisions relating to the same subject matter must be harmonized to the extent possible. [Citation.]’” “If a statute is susceptible to more than one reasonable interpretation, the court may consider the statute’s purpose, the evils to be remedied, the legislative history, public policy, and contemporaneous administrative construction.” (Id. citing Nolan v. City of Anaheim (2004) 33 Cal.4th 335, 340.) In addition, the court may consider the consequences that will flow from a particular interpretation.” (Id. citing Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1387.) Although Section 17004.7 does not define the word “adopt,” subdivision (b)(2) defines the word “promulgate” as follows: “Promulgation 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, 22 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.” (Veh. Code § 17004.7(b)(2).) (emphasis added). Applying the basic principles of statutory interpretation, the Morgan properly concluded that the promulgation language of section 17004.7, subdivision (b)(2) is unambiguous in its requirement that public agencies claiming immunity must prove that “all peace officers of the public agency certify in writing that they have received, read, and understand” the agency’s vehicle pursuit policy. (Morgan, supra, at p. 154.) (emphasis added.) [2 AA 335-341, 344-346, 348-349, 356-359, 381-382, 388, 407, 413-415, 417, 477-562, 3AA 677- 678, 722-723, 735-736, 778-784, 791-795, 4 AA 883-979.] One can only conclude that “promulgation” is achieved when “all peace officers,” not some peace officers or public agency itself, “certify in writing” that they have “received, read, and understand the policy” on an “annual basis.” Had the legislature meant for some peace officers or public agencies themselves to be able to meet this certification requirement on their own, the legislature would have simply used the terms “some peace officers” or “public agency” instead of “all peace officers.” Rather, the legislature specifically used the terms “all peace officers” to show that public agencies must retain POST certification records for pursuit policy training of all of their peace officers to be allowed to avail themselves of the immunity granted under Section 17004.7(b)(1). The Ramirez Court cited to the last sentence of Section 17004.7(b)(2) for the proposition that “the failure of an individual officer to execute a written attestation does in fact operate to ‘impose liability’ on a public agency” making the public entity not immune. See Ramirez v. City of Gardena (2017) WL 3614195, pg. 14. The Court of Appeal also cited to this sentence in order to demonstrate that the retention of signed attestation forms for all peace officers by a public agency is not a mandatory requirement of Section 17004.7(b)(2). The Ramirez Court reasoned that, “Under [Morgan’s] interpretation, an agency could 23 do all within its power to implement its pursuit policy but still be liable if a single negligent or recalcitrant officer happens to be out of compliance with the agency’s certification requirement at the time the incident occurs.” See Ramirez v. City of Gardena (2017) WL 3614195, pg. 18. The Ramirez opinion clearly confuses the concepts of “liability” and “immunity.” Although subdivision (b)(2) of Section 17004.7 expressly provides liability cannot be imposed on an officer or a public agency merely because a peace officer failed to sign a certification as required by that subdivision, that does not mean that an agency, ipso facto, is nonetheless entitled to immunity as provided under Section 17004.7, even if the agency’s vehicle pursuit policy was not properly promulgated as required by the plain language of the statute. (Morgan, supra, at p. 160.) (emphasis added). The Ramirez Court also concluded that that Section 17004.7(b)(2) should be interpreted to mean that complete compliance of “all peace officers” is not required despite the obvious plain language of the statute because it would be unfair to public law enforcement agencies and an undue burden to maintain such records. This interpretation belies Section 17004.7(b)(2). While section 17004.7(b)(2) may excuse a department from liability where one officer fails to sign a certification, it does not grant immunity where an officer fails to certify that he or she received, read and understood the policy. In other words, liability and immunity are two different concepts. Per the statute, an officer’s failure to sign a certification may not be used to demonstrate negligence on the part of an officer or the department. But this failure is still grounds to deny immunity to the police department. Further, the Ramirez Court’s interpretation of 17004.7(b)(2) would eviscerate the certification requirement under the current amended version of the statute and undermine the important public policy of promulgation of an agency’s vehicle pursuit policy. (Id.) The Morgan Court rejected this proposed interpretation of subdivision (b)(2) of Section 17004.7, which is more consistent 24 with the law under former section 17004.7 as discussed in Nguyen and other pre- 2005 amendment cases. (Morgan, supra, at p. 160; See Yohner v. California Department of Justice (2015) 237 Cal.App.4th 1, 8 [noting we interpret a statute to comport “ ‘ “ ‘with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute’ ” ’ ”].) 2. The Legislative History and Purpose. Morgan’s reasoning is further supported by legislative history of Section 17004.7 and the case law interpreting the former version in response. (See Morgan, supra, at p. 155.) In Nguyen v. City of Westminster (2002) 103 Cal.App.4th 1161, an individual was killed after police officers chased a stolen van into a high school parking lot as classes were ending. The van struck a trash dumpster that hit the decedent. The Nguyen court “reluctantly” concluded summary judgment was properly granted under former section 17004.7. (Id. citing Nguyen v. City of Westminster (2002) 103 Cal.App.4th 1161, 1163.) Former section 17004.7 at issue in Nguyen provided in part as follows: “(b) A public agency employing peace officers which adopts a written policy on vehicular pursuits complying with subdivision (c) 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 by a peace officer employed by the public entity in a motor vehicle. [¶] (c) If the public entity has adopted a policy for the safe conduct of vehicular pursuits by peace officers, it shall meet all of the following minimum standards: [¶] (1) It provides that, if available, there be supervisory control of the pursuit. [¶] (2) It provides procedures for designating the primary pursuit vehicle and for determining the total number of vehicles to be permitted to participate at one time in the pursuit. [¶] (3) It provides procedures for coordinating operations with other jurisdictions. [¶] (4) It provides guidelines for determining when the interests of public safety and effective law enforcement justify a vehicular pursuit and when a vehicular pursuit should not be initiated or should be terminated.” 25 The Nguyen court found the public agency’s vehicle pursuit policy to be “poorly organized” (Nguyen, supra, at p. 1166.) and questioned whether (former) section 17004.7 achieved “all” of its legislative goals (Id. at p. 1165.). The court nonetheless concluded that, “‘if the agency adopts a pursuit policy which meets the statutory requirements, then immunity results.’” (Id. citing Nguyen, supra, at p. 1167.) The court noted that the “‘extent to which the policy was implemented in general and was followed in the particular pursuit is irrelevant.’” (Id.) At the conclusion of its opinion, the Nguyen court suggested the Legislature reconsider (former) section 17004.7, remarking: “In so deciding this case, we wish to express our displeasure with the current version of section 17004.7. As noted, one reason for extending immunity to a public entity that adopts a written policy on vehicle pursuits is to advance the goal of public safety. But the 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. Simply adopting the policy is sufficient under the current state of the law. (Morgan, supra, at pp. 155- 156.) (emphasis added.) “Unfortunately, the adoption of a policy which may never be implemented is cold comfort to innocent bystanders who get in the way of a police pursuit. We do not know if the policy was followed in this instance, and that is precisely the point: We will never know because defendant did not have to prove [the pursuing officer] or the other police officers participating in this pursuit followed the policy….We urge the Legislature to revisit this statute and seriously reconsider the balance between public entity immunity and public safety. The balance appears to have shifted too far toward immunity and left public safety, as well as compensation for innocent victims, twisting in the wind.” (Id. at p. 156 citing Nguyen, supra, at pp. 1168–1169) (italics added.) 26 Following Nguyen, the Legislature in 2005 amended former section 17004.7 (Stats. 2005, ch. 485, § 11), which became operative on July 1, 2007. (See § 17004.7, subd. (g).) In its analysis of Senate Bill 719 (SB 719), which included the proposed amendment to former section 17004.7, the Senate Committee on Public Safety explained that a “public agency that employs peace officers to drive emergency vehicles and authorizes vehicle pursuits shall develop, adopt, promulgate, and provide regular and periodic training for those peace officers in accordance with the agency’s pursuit policy that meets the guideline requirements set forth in section 13519.8 of the Penal Code.” (Sen. Com. on Public Safety, Analysis of Sen. Bill No. 719 (2005–2006 Reg. Sess.) April 26, 2005, p. 3, italics added.) The Senate Committee on Public Safety made clear that in order for a public agency to be immune, “the agency must not only adopt a written policy but promulgate it....” (Id. at p. 156-157.) (emphasis added.) The Senate Committee on Public Safety further explained that SB 719 was designed to “reduce collisions, injuries and fatalities that result when suspects flee from law enforcement agencies. According to the statistics from the National Highway Safety Administration, California has consistently led the nation in the past 20 years in fatalities from crashes involving police pursuits. Pursuit driving is a dangerous activity that must be undertaken with due care and the understanding of specific risks as well as the need for a realistic proportionate response to apprehend a fleeing suspect who poses a danger to the public. SB 719 would help guide the development of minimum statewide pursuit policies that balance the immediate need to apprehend a fleeing suspect and the publics' safety on our roads and highways. SB 719 would also help decrease peace officer pursuits through public education, enforcement, and regular and periodic training of peace officers.... “Under existing law, in order for an agency to have immunity from civil liability arising from injury, death or property damage occurring as a result of a police pursuit, an agency must adopt a policy on peace officer pursuits. The law 27 does not however require the agency to implement the policy nor does it set any minimum standards for the policy. This bill provides that an agency will only get immunity if they not only adopt a policy but also promulgate it and provide regular and periodic training on the policy. The policy must, at a minimum, comply with the guidelines set forth by POST.” (Sen. Com. on Public Safety, Analysis of Sen. Bill No. 719 (2005–2006 Reg. Sess.) April 26, 2005, p. 5, italics added.) In its analysis of SB 719, the Senate Judiciary Committee noted the proposed amendment to (former) section 17004.7 would “narrow the available immunity for public entities that employ peace officers when a third party is injured or killed in a collision with a person fleeing from peace officer pursuit. Such entities would be immune only if they: (1) adopted and promulgated a policy for safe conduct of motor vehicle pursuits that met minimum state standards; and (2) provided regular and periodic training for their officers regarding safe pursuits.” (Sen. Com. on Judiciary, Analysis of Sen. Bill No. 719 (2005–2006 Reg. Sess.) May 10, 2005, p. 1, italics added.) The Senate Judiciary Committee explained the need for the amendment as follows: “SB 719 is the most recent in a series of bills that have attempted to limit the expansive immunity that currently protects public entities from liability when employee peace officers are involved in high speed pursuits that cause injury or death to innocent third parties. The overbreadth of the current doctrine was brought into high relief in a 2002 case where a high school student was killed in a collision on the grounds of his school after a police vehicle chased a stolen van into the school parking lot. [Nguyen v. City of Westminster (2002) 103 Cal.App.4th 1161.] The Nguyen court held it could not consider evidence indicating that the officers’ decision to pursue the van onto school property was ‘unreasonable and reckless,’ and could not consider whether or how the vehicular pursuit policy established by the entity had been implemented. [Id. at 1167–68.] In 28 deciding to grant immunity, the court held it could only consider the fact that a pursuit policy had been ‘adopted’ by the entity. “Previous bills that followed the Nguyen decision, SB 219 (Romero, 2003) and SB 1866 (Aanestad, 2004), sought to rectify this clear imbalance by establishing that public entities are not immune from liability relating to vehicular pursuits unless the officers involved were obeying the entities' pursuit policy at the time of the injury. Law enforcement representatives objected to the proposed solutions in those bills as too extreme. “This bill [i.e., SB 719] is proposed as a more moderate approach to balance the various interests, requiring entities to implement pursuit policies and mandate training of their officers, and requiring that penalties be increased and public information made available regarding those penalties.” (Sen. Com. on Judiciary, Analysis of Sen. Bill No. 719 (2005–2006 Reg. Sess.) May 10, 2005, pp. 1–2.) The Senate Judiciary Committee further explained that SB 719 was “a negotiated alternative to previous proposed [legislative] solutions ” (Sen. Com. on Judiciary, Analysis of Sen. Bill No. 719 (2005–2006 Reg. Sess.), May 10, 2005, p. 4, emphasis in original); and that unlike the holding of Kishida, which interpreted the statute not to “require implementation of such a policy” (Id. at p. 3), SB 719 “establish[ed] that a public entity cannot receive immunity under Section 17004.7 unless it has first adopted and promulgated a written policy for safe motor vehicle pursuits that meets minimum standards established by this bill” (Id. at p. 4, emphasis in original). This legislative history highlights the important public policy underlying the promulgation requirement in (current) section 17004.7 and clearly shows this requirement, among others, was added by our Legislature in response to Nguyen, Kishida and other pre–2005 amendment cases (see, e.g., Brumer v. City of Los Angeles (1994) 24 Cal.App.4th 983, 987; Weiner v. City of San Diego (1991) 229 Cal.App.3d 1203, 1208–1211), after (former) section 17004.7 had been interpreted 29 to provide blanket immunity when an agency merely “adopted” a vehicle pursuit policy that met what were then minimal statutory requirements. (See Nguyen, supra, 103 Cal.App.4th at pp. 1164–1165.) Based upon the legislative history of Section 17004.7, the legislature intended to narrow immunity to only those public agencies that promulgate their pursuit policies pursuant to POST’s guidelines. Moreover, the legislature wanted victims to be able to seek redress for their injuries if public agencies failed to properly implement their written policies. C. THE RAMIREZ OPINION UNDERMINES POST’S AUTHORITY AND DISREGARDS IT’S GUIDANCE FOR PROPERLY “PROMULGATING” A PURSUIT POLICY. In order for a public agency to avail itself of the immunity provided under Section 17004.7(b)(1), that agency must “adopt and promulgate a written policy” based upon “guidelines established pursuant to Penal Code section 13519.8.” (See Veh. Code § 17004.7(b)(1) and (d); Morgan, supra, at pp. 152-153.) (emphasis added). Pursuant to Penal Code section 13519.8(a)(1), the Department of Justice’s POST commission, “The commission 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.” (See Pen. Code § 13519.8(a)(1); Id. at p. 154.) (emphasis added). The “commission,” for purposes of Penal Code section 13519.8, is defined in Penal Code section 13500, subdivision (a) as the Department of Justice’s “Commission on Peace Officer Standards and Training” (“POST”). (Pen. Code § 13500; Id.) POST was established by the California Legislature in 1959 to set minimum standards for law enforcement. The passage of Senate Bill 601 (Marks) in 1993 added to the Penal Code section 13519.8, which required POST to establish guidelines and training for law enforcement’s response to vehicle 30 pursuits. Representatives of more than 120 law enforcement agencies contributed their experience, ideas, and suggestions in the development of the guidelines. Draft guidelines were reviewed by law enforcement executives and trainers, legal advisors, communication center managers and public representatives several times before they were approved by POST and published in 1995. In order to assist in the compliance, training, and certification of law enforcement agencies and their peace officers, POST maintains a website () which provides the minimum requirements law enforcement agencies and their peace officers must follow to be compliant with the law. POST’s website at the link () provides series of general questions and answers related specifically to vehicular pursuit guidelines under the title, “Home/General Questions/Vehicle Pursuit Guidelines.” Question number 7 specifically asks, “Does an agency need to do anything besides provide training?” POST unequivocally responds, “Yes, agencies must provide all peace officers with a copy of the agency pursuit policy.” () (emphasis added.) POST’s response then goes on to say, “[p]eace officers must also sign an attestation form (doc) that states they have ‘received, read, and understand’ the agency pursuit policy. The agency must retain this form. Please DO NOT send attestation forms to POST.” () (emphasis added). (See Exhibit “B”). The “attestation form” recommended on POST’s website is a document entitled “SB 719 Pursuit Policy Training Attestation.” () This form includes boxes for “Officer Identification”; “Training Specifications”; and “Attestation.” Under “Attestation,” the form states that pursuant to “Vehicle Code § 17004.7(b)(2),” the officer has “received, read, and understand[s] [his or her] agency’s vehicle pursuit 31 policy.” The form requires the officer to sign, print his or her name, and date the form. (emphasis added). (See Exhibit “C”). For whatever reason, the Ramirez Court chose to disregard and not address POST’s guidelines, thereby undermining POST’s authority and years of experience on the subject matter. Here, the Ramirez Court implicitly takes the position that signed “SB 719 Pursuit Policy Training Attestation” forms are not required to establish promulgation by “all peace officers.” Based upon its website, POST makes it clear that a public agency must retain “this” attestation form with the signatures of each and every peace officer. Furthermore, the Ramirez Court wants to take the position that Section 17004.7 is so broad that either a declaration by a single officer or a spreadsheet such as the “Course Attendance Report” is sufficient to establish promulgation. In sum, the Morgan Court’s conclusion that an agency’s vehicle pursuit policy is not “promulgated” within the meaning of subdivision (b)(2) of section 17004.7 unless, at a minimum, “all” of its peace officers “certify in writing that they have received, read and understand the policy” is supported by POST’s guidelines. VII. CONCLUSION For the forgoing reasons, Plaintiff and Appellant Irma Ramirez respectfully requests that this Court review the Opinion in this matter. Respectfully submitted, DATED: September 25, 2017 By _______/s/______________ Abdalla J. Innabi* Amer Innabi INNABI LAW GROUP, APC Attorneys for Plaintiff and Appellant IRMA RAMIREZ 32 CERTIFICATE OF COMPLIANCE I, Abdalla J. Innabi, declare that: I am an attorney in the law firm of Innabi Law Group, APC, which represent Plaintiff and Appellant Irma Ramirez, individually and on behalf of the Estate of Mark Gamar. This Petition for Review was produced with a computer using Microsoft Word. It is proportionately spaced in 13-point Times Roman typeface. The brief contains 8,399 words including footnotes, excluding the tables and this certificate. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on September 25, 2017 at Pasadena, California. ____________/s/_______________________ Abdalla J. Innabi 33 PROOF OF SERVICE CASE NAME: Ramirez v. City of Gardena COURT OF APPEAL CASE NUMBER: B279873 SUPERIOR COURT CASE NUMBER: BC609508 I, the undersigned, declare as follows: 1. At the time of service, I was at least 18 years of age and not a party to this legal action. I am a Citizen of the United States and resident of the County of Los Angeles where the within-mentioned service occurred. 2. My business address is 2500 E. Colorado Blvd., Suite 230, Pasadena, California 91107. 3. On September 26, 2017, I served the PETITION FOR REVIEW by overnight courier or personal service as follows: I enclosed a copy in separate envelopes, with postage fully prepaid, addressed to each individual addressee named below, and Federal Express picked up the envelopes in Pasadena, California, for delivery as follows: Tony M. Sain Clerk of the Court Manning & Kass, Ellrod, Ramirez, Trester California Supreme Court 801 South Figueroa St. 350 McAllister Street 15th Floor San Francisco, CA 94102 Los Angeles, CA 90017 (1 original & 1 copy) (1 copy) Honorable Yvette M. Palazuelos, Judge Clerk of the Court Superior Court of California Court of Appeal Los Angeles County – Department 28 Second Appellate District, 111 N. Hill St. Division One Los Angeles, CA 90012 300 S. Spring St., (1 copy) 2nd Floor, North Tower Los Angeles, CA 90013 (1 copy) I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Date: September 26, 2017 ________Abdalla Innabi___________ _____________/s/______________ Print Signature STATE OF CALIFORNIA Supreme Court of California PROOF OF SERVICE STATE OF CALIFORNIA Supreme Court of California Case Name: Ramirez v. City of Gardena Case Number: TEMP-DGRRM578 Lower Court Case Number: 1. At the time of service I was at least 18 years of age and not a party to this legal action. 2. My email address used to e-serve: abdalla@innabi-lg.com 3. I served by email a copy of the following document(s) indicated below: Title(s) of papers e-served: Filing Type Document Title PETITION FOR REVIEW PETITION FOR REVIEW Service Recipients: Person Served Email Address Type Date / Time Abdalla Innabi Innabi Law Group, APC 172302 abdalla@innabi-lg.com e-Service 09-26-2017 2:18:09 PM This proof of service was automatically created, submitted and signed on my behalf through my agreements with TrueFiling and its contents are true to the best of my information, knowledge, and belief. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 09-26-2017 Date /s/Abdalla Innabi Signature Innabi, Abdalla (172302) Last Name, First Name (PNum) Innabi Law Group, APC Law Firm