Judge: Anne Hwang, Case: 19STCV07742, Date: 2024-04-04 Tentative Ruling

Case Number: 19STCV07742    Hearing Date: April 4, 2024    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court.   

TENTATIVE RULING

MOVING PAPERS:

1. Notice of Motion for Summary Judgment, or in the Alternative Summary Adjudication; Memorandum of Points and Authorities
2. Separate Statement of Defendants
3. Declaration of Erin Dunkerly
4. Defendants’ Compendium of Evidence in Support

OPPOSITION PAPERS:

1. Plaintiffs’ Memorandum of Points and Authorities in Opposition
2. Plaintiffs’ Separate Statement in Opposition and Plaintiffs’ Statement of Additional Undisputed Facts
3. Plaintiffs’ Objections to Defendants’ Evidence in Support
4. Compendium of Evidence in Support of Plaintiffs’ Opposition

REPLY PAPERS:

1. Defendants’ Reply in Support of Motion for Summary Judgment
2. Defendants’ Response to Plaintiffs’ Separate Statement
3. Defendants’ Objections to Evidence Submitted by Plaintiffs in Opposition
4. Supplemental Declaration of Erin Dunkerly in Support

BACKGROUND

On March 5, 2019, Plaintiffs Matthew Newells, Tevye Nguyen, Taviere N., and Matthew N. filed a complaint in Los Angeles Superior Court against Defendants County of Los Angeles, Los Angeles County Sheriff’s Department, Unidentified Deputies, and Does 1 to 100 for negligence, wrongful death, and a violation of Due Process under the Fourteenth Amendment (42 U.S.C. § 1983).

On September 27, 2019, the case was removed to federal court. (Notice of Removal to Federal Court, filed 10/1/19.)

While in federal court, Plaintiffs filed the operative second amended complaint (“SAC”) alleging the same causes of action. (See Plaintiffs’ Appendix of Federal Court Filings Prior to Remand, Volume 4, 1758–1778, filed 6/8/23.) The SAC alleges that on February 18, 2018, Plaintiff Matthew Newells was driving a vehicle with his wife, Decedent Christine Newells, and children, Plaintiffs Tevye, Taviere, M.N. (all minors at the time), as passengers. (SAC ¶ 24.) Plaintiffs were stopped at a red-light arrow in the left-hand turn lane of Tierra Subida Avenue, waiting to turn left onto westbound Elizabeth Lake Road, in the City of Palmdale. While the light was still red, a marked Sheriff’s vehicle with its sirens on, drove to the left of Plaintiffs’ vehicle, and stopped in front of Plaintiffs’ vehicle. Deputies George Hanley (“Hanley”) and/or William Warner (“Warner”) were within the vehicle and gestured to Plaintiff Newells to stop. (Id.) Newells remained stopped. Then, two additional police cars drove around Plaintiffs’ vehicle and turned left onto Elizabeth Lake Road, traveling westbound. After this occurred, Deputies Hanley and/or Warner proceeded to follow the other vehicles westbound on Elizabeth Lake Road. Shortly after this occurred, the red arrow turned green and Plaintiff Newells began turning left. However, while turning left, Plaintiffs’ vehicle was struck by a vehicle fleeing patrol units that was traveling eastbound on Elizabeth Lake Road. (Id. ¶ 25.) Due to the impact, Plaintiffs suffered injuries and Christine Newells died.

Plaintiffs allege that Deputies Hanley and Warner breached their duty of care by making an order for Newells to stop his car, and then leaving without further instruction which led Newells to believe it was safe to turn left. (SAC ¶ 29–34.) Against the County of Los Angeles (“County”), Plaintiffs allege that the County negligently hired, trained, supervised, and retained Hanley and Warner. (SAC ¶ 37.) Plaintiffs also allege that the County did not adopt or promulgate a written policy on motor vehicle pursuits or conduct periodic training, and thus are not entitled to the immunities under Vehicle Code section 17004.7. (SAC ¶ 42.)

As to all Defendants, Plaintiffs also allege “the pursuit itself was initiated, continued, and conducted in a grossly negligent and improper manner. Defendants did not follow proper policy nor industry standard in initiating, continuing, and conducting the pursuit. The policies and procedures that allowed for the pursuit to be initiated, continued, and conducted were improper, unsafe, and failed to conform to the industry standard.” (SAC ¶ 39.)

While this case was in federal court, Defendants County of Los Angeles, and Deputies Hanley and Warner filed a motion for summary judgment. Judge Fernando L. Aenlle-Rocha granted summary judgment as to the third cause of action for a violation of due process under the Fourteenth Amendment. (See Plaintiffs’ Appendix of Federal Court Filings Prior to Remand, Volume 6, 2747–2764, filed 6/8/23.) The Court then set an OSC for Defendants to show why the Court should continue to exercise supplemental jurisdiction over the remaining state law claims. On July 20, 2022, the Court declined to exercise supplemental jurisdiction, and the case was remanded to the Los Angeles Superior Court. (See Plaintiffs’ Appendix of Federal Court Filings Prior to Remand, Volume 6, 2782–2785, filed 6/8/23.)

Defendants County of Los Angeles (erroneously sued as Los Angeles County Sheriff’s Department), and Deputies Hanley and Warner (collectively, “Defendants”) now move for summary judgment, or in the alternative, summary adjudication, as to the first and second causes of action in the SAC: negligence and wrongful death. Defendants seek adjudication of the following issues for each cause of action: (1) Defendants are not liable for common law negligence; (2) Defendants did not breach a duty to Plaintiffs; (3) Defendants did not cause Plaintiffs’ injuries; (4) Deputies Warner and Hanley are immune under Vehicle Code section 17004; and (5) County is immune under Vehicle Code section 17004.7.

Plaintiffs oppose and Defendants reply.

OBJECTIONS

The Court declines to rule on the evidentiary objections by Plaintiffs and Defendants as they have no effect on the ruling herein.

LEGAL STANDARD

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs.” (Code Civ. Proc., § 437c, subd. (f)(1).) “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Id.) The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Ibid.; Smith v. Wells Fargo Bank, N.A. (2005) 135 Cal.App.4th 1463, 1474 [summary judgment standards held by Aguilar apply to summary adjudication motions].)  Further, in line with Aguilar v. Atlantic Richfield Company, “[o]n a motion for summary adjudication, the trial court has no discretion to exercise.  If a triable issue of material fact exists as to the challenged causes of action, the motion must be denied. If there is no triable issue of fact, the motion must be granted.” (Fisherman's Wharf Bay Cruise Corp. v. Superior Court (2003) 114 Cal.App.4th 309, 320.) 

“On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues.  Only when the inferences are indisputable may the court decide the issues as a matter of law. If the evidence is in conflict, the factual issues must be resolved by trial.” (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839 [cleaned up].)  Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true.  Nor may the trial court grant summary judgment based on the court's evaluation of credibility.” (Id. at p. 840 [cleaned up]; see also Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].) 

DISCUSSION

1. Negligence and Wrongful Death

“The elements of a negligence cause of action are the existence of a legal duty of care, breach of that duty, and proximate cause resulting in injury.” (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998 [citation omitted].) Under Code of Civil Procedure section 377.60, a decedent’s surviving spouse and children may bring a cause of action for the death of a person caused by the wrongful act or neglect of another.

Government Code section 815 provides that “[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” except as provided by statute. (Gov. Code, § 815, subd. (a); see Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 932.) “[D]irect tort liability of public entities must be based on a specific statute declaring them to be liable, or at least creating some specific duty of care, and not on the general tort provisions of Civil Code section 1714. Otherwise, the general rule of immunity for public entities would be largely eroded by the routine application of general tort principles.” (Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1183.) Consequently, “public entities may be liable only if a statute declares them to be liable.”  (Tuthill v. City of San Buenaventura (2014) 223 Cal.App.4th 1081, 1088 [emphasis in the original].) It has been recognized that it is impermissible to sue a public entity for common law negligence. (Torres v. Department of Corrections and Rehabilitation (2013) 217 Cal.App.4th 844, 850.)  

In general, “under the Tort Claims Act, public employees are liable for injuries caused by their acts and omissions to the same extent as private persons. (Gov. Code, § 820, subd. (a).) Vicarious liability is a primary basis for liability on the part of a public entity, and flows from the responsibility of such an entity for the acts of its employees under the principle of respondeat superior. [Citations.] As the Act provides, ‘[a] public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would ... have given rise to a cause of action against that employee,’ unless ‘the employee is immune from liability.’ (Gov. Code, § 815.2, subds.(a), (b).)” (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1128.)

A. Duty

Generally, one does not owe a duty to control the conduct of another or to warn another of third-party conduct or of a peril it has not created, absent a “special relationship.” (Zelig, supra, 27 Cal.4th at 1128-29; Williams v. State of California (1983) 34 Cal.3d 18, 23.) “Such a duty may arise if ‘(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct, or (b) a special relation exists between the actor and the other which gives the other a right to protection.’ [Citations.]” (Zelig, supra, 27 Cal.4th at 1129.)

Applying this principle, public entities are generally not liable for failing to protect individuals against crime. Similarly, law enforcement officers generally do not owe a legal duty to come to the aid of another person. (Zelig, supra, 27 Cal.4th at 1128. [“[P]ast cases establish that police officers and other public security officers, like other persons, generally may not be held liable in damages for failing to take affirmative steps to come to the aid of, or prevent an injury to, another person.”].)

However, “[l]iability may be imposed if an officer voluntarily assumes a duty to provide a particular level of protection, and then fails to do so [citations], or if an officer undertakes affirmative acts that increase the risk of harm to the plaintiff. [Citations.]” (Zelig, supra, 27 Cal.4th at 1129.) Additionally, “the circumstance that an officer may have offered special protection on one occasion does not, by itself, give rise to a continuing special relationship and duty at a later date—or with other officers. [Citation.]” (Id. at 1129–30.)

In Zelig, the California Supreme Court reviewed the sustaining of a demurrer after plaintiffs alleged that the Los Angeles County Sheriff’s Department failed to protect a decedent after she warned them her husband might kill her in a courthouse. (Zelig, supra, 27 Cal.4th at 1118, 1122.) The court affirmed sustaining the demurrer finding there were no facts that an officer undertook special duties to protect the victim. (Id. at 1130.) Quoting Williams v. State of California (1983) 34 Cal.3d 18, the court there found “[t]he officers did not create the peril in which plaintiff found herself; they took no affirmative action which contributed to, increased, or changed the risk which would have otherwise existed; there is no indication that they voluntarily assumed any responsibility to protect plaintiff's prospects for recovery by civil litigation; and there are no allegations of the requisite factors to a finding of special relationship, namely detrimental reliance by the plaintiff on the officers' conduct, statements made by them which induced a false sense of security and thereby worsened her position.” (Zelig, supra, 27 Cal.4th at 1130 [quoting Williams, supra, 34 Cal.3d at 27–28].)

“[P]ast California cases uniformly hold that a police officer who exercises his or her authority to direct another person to proceed to—or to stop at—a particular location, owes such a person a duty to use reasonable care in giving that direction, so as not to place the person in danger or to expose the person to an unreasonable risk of harm.” (Lugtu v. California Highway Patrol (2001) 26 Cal.4th 703, 717.) Liability has been imposed where an officer investigating an accident directed the plaintiff to follow him into the middle of the intersection where the plaintiff was hit by another car (McCorkle v. City of Los Angeles (1969) 70 Cal.2d 252) and where a deputy sheriff promised to warn a decedent if a prisoner, who had made threats on her life, was released (Morgan v. Yuba County (1964) 230 Cal.App.2d 938). (See Williams, supra, 34 Cal.3d at 24; see also Lugtu, supra, 26 Cal.4th at 707 [law enforcement officer owed a duty to exercise reasonable care for the safety of persons whom the officer stopped where officer directed plaintiff to stop in the center meridian of a highway].)

“Recovery has been denied, however, for injuries caused by the failure of police personnel to respond to requests for assistance, the failure to investigate properly, or the failure to investigate at all, where the police had not induced reliance on a promise, express or implied, that they would provide protection.” (Williams, supra, 34 Cal.3d at 25.)

2. Analysis

Here, it is undisputed that on “Sunday, February 18, 2018, at approximately 2:23 p.m. Preciosa Lerena carjacked a woman in a Walmart parking lot in Palmdale, California; stole a white Toyota RAV4 SUV; and fled.” (UMF 1.) “Callers to 911 reported that the white Toyota RAV4 SUV was being driven erratically and at high rates of speed throughout Palmdale and the surrounding area.” (UMF 2.) “At approximately 3:00 p.m., Los Angeles County Sheriff’s Department dispatch broadcast that the carjacking suspect had been seen recently by a witness driving eastbound on Elizabeth Lake Road passing Ranch Center Drive and dispatch put out a call for deputies to respond.” (UMF 3.)

“Los Angeles County Sheriff’s deputies Hanley and Warner, who were in separate marked Sheriff’s vehicles, each responded to dispatch with their locations and the Sheriff’s communication center in turn authorized them to proceed with their lights and sirens activated, toward the last known location of the suspect on Elizabeth Lake Road.” (UMF 4.) “Deputies Hanley and his female partner passenger followed by Deputy Warner headed north on Tierra Subida Avenue to where it intersects Elizabeth Lake Road, which at the time was west of the last reported location of the suspect.” (UMF 5.) “Matthew Newells Sr. was in his Ford Flex SUV with his three children (the other plaintiffs) and his wife, stopped at a red-light arrow in the left turn lane on northbound Tierra Subida Avenue waiting to turn left onto Elizabeth Lake Road.” (UMF 6.) “Matthew Newells heard sirens coming from behind him and observed two Los Angeles County Sheriff’s Department vehicles enter the intersection on his left with their lights and sirens activated.” (UMF 7.) “Matthew Newells alleges he observed two Los Angeles County Sheriff’s Department Crown Victoria vehicles enter the intersection and the first one turned right in front of Newells’ car and stayed there for a period of not more than four seconds.” (UMF 8.) “Matthew Newells alleges that a male deputy in the Los Angeles County Sheriff’s Department Crown Victoria stopped in front of him put up his hand as though to gesture to Newells to remain stopped at the red light, while a second Sheriff’s vehicle turned left.” (UMF 9.) After this occurred, “the first vehicle in front of Newells made a U-turn and continued west of Elizabeth Lake Road.” (UMF 10.)

“At his deposition on February 24, 2020, and in written discovery verified on April 1, 2021, Newells stated that during the U-turn onto westbound Elizabeth Lake Road by the Sheriff’s vehicle, the light for his direction of travel turned from red to a green arrow and so he continued to yield to the vehicle because it had its lights and sirens activated.” (UMF 11.) “Once law enforcement was no longer present at the intersection, Mr. Newells proceeded to turn left on the green arrow.” (UMF 13.)

Defendants offer the following additional facts:

-          After Deputy Hanley and then Warner turned left onto Elizabeth Lake Road, they continued west for approximately one quarter to a half a mile when they first saw the stolen SUV heading toward them, driving eastbound on Elizabeth Lake Road, and driving past them. (UMF 16.)

-          Deputies Hanley and Warner then made U-turns to pursue the stolen SUV and traveled eastbound on Elizabeth Lake Road back towards the intersection with Tierra Subida Avenue. (UMF 17.)

It is also undisputed that “as the Plaintiffs proceeded into the intersection to make their left turn, the stolen vehicle drove onto the opposite side of the road, through a red light, and collided with Plaintiffs’ vehicle.” (UMF 18.) “The deputies and other law enforcement arrived at the intersection seconds later and began to render aid and help take the criminal suspect into custody.” (UMF 19.)

Defendants have met their burden of establishing no triable issue of fact as to whether Defendants owed Plaintiffs a legal duty of care. There are no facts that the deputies assumed a duty to provide a particular level of protection, and then failed to do so, or that they took an affirmative act that increased the risk of harm to Plaintiffs. Therefore, the burden shifts to Plaintiffs to establish a triable issue of fact.

Plaintiffs offer the following relevant facts:

-          Both vehicles had their sirens and lights on. The officer in the vehicle that stopped directly in front of plaintiff additionally provided the non-verbal command of looking directly at plaintiff and holding up his hand to signify “stop.” (PAMF 6.)

-          After the first law enforcement vehicle turned left onto Elizabeth Lake Road, the other vehicle that was blocking plaintiff’s vehicle made a U-turn and followed the first vehicle eastbound on Elizabeth Lake Road. (PAMF 7.)

-          While the officer that was stopped in front of Plaintiff made his U-turn, the traffic signal light changed from red to a green arrow. (PAMF 8.)

-          After the traffic signal changed to green, Plaintiff Newells remained at the intersection because the officer was still controlling the intersection. Plaintiff waited for the law enforcement vehicle to clear the intersection and then without any further instructions not to go, proceeded on the green turn light. (PAMF 9.)

-          Plaintiff made it approximately a half to a quarter through the intersection when his vehicle was hit on the driver’s side. (PAMF 10.)

Here, Plaintiffs do not dispute the relevant facts surrounding the stop at the red arrow. The vehicle in front of Plaintiffs stayed for a period of no more than four seconds and left while the light was still red. (Pl. Response to UMF 8.) Therefore, the undisputed evidence shows that the vehicle released control of the intersection and was continuing the pursuit westbound on Elizabeth Lake Road. Therefore, Plaintiffs fail to show a triable issue of fact that the conduct of the deputies created the peril or changed the risk Plaintiffs would have already faced.

This case is distinguishable from the cases cited by Plaintiffs. Lugto and Whitton v. State of California (1979) 98 Cal.App.3d 235 involved injuries that occurred while the plaintiff was directed by law enforcement officers to stop and pull over. Here, Plaintiffs did not change their position, and remained temporarily stopped while deputies went through the intersection. Plaintiffs offer no authority to support their argument that a duty to protect Plaintiffs arose after the light turned green and when the deputies left the intersection.

Plaintiffs also appear to argue for the first time in their opposition that the County’s 911 dispatch staff were grossly negligent by asking a civilian to follow the stolen vehicle. Plaintiffs have not properly alleged this fact in the operative complaint. Papers filed in response to a summary judgment motion “may not create issues outside the pleadings and are not a substitute for an amendment to the pleadings.” (Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4th 486, 493.) “Declarations in opposition to a motion for summary judgment are no substitute for amended pleadings.... If the motion for summary judgment presents evidence sufficient to disprove the plaintiff's claims, as opposed to merely attacking the sufficiency of the complaint, the plaintiff forfeits an opportunity to amend to state new claims by failing to request it.” (Conroy v. Regents of University of California (2009) 45 Cal.4th 1244, 1254 [internal quotations omitted].) However, even if alleged, Plaintiffs fail to show how this conduct caused their injuries.

Accordingly, viewing the evidence in the light most favorable to Plaintiffs including any reasonable inferences, there is no triable issue of fact that the deputies owed Plaintiffs a legal duty of care. Plaintiffs have also not articulated a statutory basis for direct liability by the County. (See Gov. Code § 815(a).) Therefore, Defendants’ motion for summary judgment is granted. Because the motion is granted, the Court declines to address Defendants’ remaining arguments based on causation and immunity under the Vehicle Code.

CONCLUSION AND ORDER

            Based on the foregoing, Defendants County of Los Angeles, Deputies George Hanley and William Warner’s Motion for Summary Judgment is GRANTED. Defendants shall file and serve a proposed judgment within 10 days.

Moving Defendants shall provide notice of this ruling and file a proof of service of such.