Judge: Cynthia A Freeland, Case: 37-2022-00008578-CU-PA-NC, Date: 2023-10-06 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - October 05, 2023

10/06/2023  01:30:00 PM  N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

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Civil - Unlimited  PI/PD/WD - Auto Summary Judgment / Summary Adjudication (Civil) 37-2022-00008578-CU-PA-NC CARLISLE VS SCHMIDT [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment and/or Adjudication, 08/01/2023

Defendants Robert Schmidt ('Officer Schmidt') and the State of California, by and through the California Highway Patrol (the 'CHP' and, together with Officer Schmidt, 'Defendants')'s motion for summary judgment or, in the alternative, summary adjudication, is denied.

Plaintiff Christopher Carlisle ('Plaintiff')'s objection based on Defendants' failure to file Officer Schmidt's declaration with the moving papers is overruled. Plaintiff is correct that the declaration was omitted from the moving papers – indeed, it was submitted as part of the reply papers. On September 25, 2023, Defendants filed an ex parte application to continue the hearing on this motion to give Plaintiff time to consider the declaration and fully oppose the motion. See ROA No. 136. At the ex parte hearing, Plaintiff's counsel represented that Plaintiff did not object to the court considering the declaration for purposes of ruling on the motion because, in Plaintiff's view, the declaration did not dispose of any issue and thus there was no need to continue the hearing. Toward that end, Plaintiff agreed to waive the argument in his opposition that there was no evidence in support of the motion to the extent that the argument was based solely on the lack of timely submission of the declaration. However, Plaintiff reserved his right to object to the content of the declaration. See ROA No. 143.

Although Plaintiff subsequently submitted no evidentiary objections to the Declaration of Robert Schmidt, the court, on its own, concludes that the declaration has no evidentiary value. This is because the declaration does not comport with the prerequisites of California Code of Civil Procedure section 2015.5 because the declaration was not signed under penalty of perjury and, therefore, is evidence of nothing.

Factual Background and Procedural History Officer Schmidt is employed as a police officer with the CHP. On August 31, 2023, Officer Schmidt, who was on duty in the Moreno Street Park-and-Ride facility in Oceanside, received a call from CHP dispatch concerning a ladder that was laying in the carpool lane of the I-5 freeway southbound just north of the Via de la Valle exit in Solana Beach. As Officer Schmidt approached the location of the ladder, he activated his patrol vehicle's rear amber lights in preparation to conduct a traffic break. He first saw the ladder when it was approximately 100-150 yards out. Officer Schmidt then turned on his amber directional lights to direct traffic away from the center divider and entered the carpool lane, slowing to a stop about 25 feet in front of the ladder. Officer Schmidt parked his cruiser next to the K-rail in the center divider with just enough room for him to open the door and exit the cruiser. In so doing, roughly half of Officer Schmidt's cruiser was parked in the carpool lane with the other half on the narrow shoulder of the freeway. Officer Schmidt exited the cruiser quickly while looking back at oncoming traffic. At the time, Plaintiff was traveling southbound on the I-5 freeway on his motorcycle. Plaintiff testified that he was not Calendar No.: Event ID:  TENTATIVE RULINGS

3029373 CASE NUMBER: CASE TITLE:  CARLISLE VS SCHMIDT [IMAGED]  37-2022-00008578-CU-PA-NC sure what speed other motorists were traveling; however, he estimated that he was going roughly 60 miles per hour in the left lane nearest the carpool lane while keeping up with traffic. Suddenly and emergently Plaintiff and the vehicles around him had to brake hard and take evasive action upon seeing Officer Schmidt's cruiser stopped in the carpool lane. Plaintiff braked as hard as he could while moving to the far left of the traffic lines in hopes of finding a safe outlet on the shoulder to safely come to a stop or avoid a collision. Officer Schmidt, for his part, observed a white sedan using its blinker and exiting the carpool lane, after which he heard and then saw Plaintiff's motorcycle behind it. Despite Plaintiff's best efforts, he was unable to stop in time and collided with Officer Schmidt's cruiser. Officer Schmidt, upon realizing that Plaintiff would be unable to stop in time, jumped over the K-rail and into the bushes to avoid Plaintiff and the motorcycle, though Officer Schmidt was still struck in the leg. Plaintiff suffered various injuries in the accident.

On March 4, 2022, Plaintiff commenced this action by filing a Complaint against Defendants and the California Department of Transportation for motor vehicle negligence, two counts of general negligence, and premises liability. See ROA No. 1. Defendants now move for summary judgment or, alternatively, summary adjudication as to each cause of action asserted against them.

Legal Analysis Motions for summary judgment and adjudication are subject to the same rules and procedures. See Lunardi v. Great-West Life Assurance Co. (1995) 37 Cal. App. 4th 807, 819; Cal. Code Civ. P. § 437c(f)(2). The court applies a three-step analysis when ruling on a motion for summary judgment or adjudication: (1) identify the causes of action, issue(s) of duty or defense framed by the pleadings; (2) determine whether the movant has satisfied his or her burden of showing the defense or causes of action have no merit because one or more elements cannot be established, or that there is a complete defense to the cause or causes of action, or that a duty exists or does not exist; and (3) if the movant has made a prima facie showing that he or she is entitled to judgment as a matter of law, the burden shifts and the court determines whether the opposing party has provided evidence of a triable material fact as to the cause of action, issue of duty or defense. See Linden Partners v. Wilshire Linden Assocs.

(1998) 62 Cal.4th 508, 518; Choi v. Sagemark Consulting (2017) 18 Cal. App. 5th 308, 318 (citing Cal. Code Civ. P. §§ 437c(o), (p)(2); Pipitone v. Williams (2016) 244 Cal. App. 4th 1437, 1449). The opposing party 'must set forth specific facts beyond the pleadings to show the existence of a triable issue of material fact.' Choi, 18 Cal. App. 5th at 318 (citing Cal. Code Civ. P. § 437c(p)(2)). 'There is a triable issue of fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.' Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 850. The court must 'liberally construe the evidence in support of the [opposing party] and resolve doubts concerning the evidence in favor of that party.' Dore v. Arnold Worldwide, Inc. (2006) 39 Cal. 4th 384, 389.

The California Tort Claims Act (Cal. Gov't Code §§ 810 et seq.) 'is a comprehensive statutory scheme governing the liabilities and immunities of public entities and public employees for torts.' Cleveland v. Taft Union High School Dist. (2022) 76 Cal. App. 5th 776, 797. The Act provides that public entity tort liability is exclusively statutory: '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.' Cal. Gov't Code § 815(a). In relevant part, California Government Code ('CGC') § 815.2 provides that: (a) 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, apart from this section, have given rise to a cause of action against that employee or his personal representative.

(b) 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.

Cal. Gov't Code § 815.2. See also O'Toole v. Sup. Ct. (2006) 140 Cal. App. 4th 488, 509 ('A public entity Calendar No.: Event ID:  TENTATIVE RULINGS

3029373 CASE NUMBER: CASE TITLE:  CARLISLE VS SCHMIDT [IMAGED]  37-2022-00008578-CU-PA-NC is not liable for an employee's act if the employee is immune from liability under state law.').

As a threshold matter, the parties disagree as to whether Defendants owed Plaintiff a duty of care in the first place. Defendants contend that no duty of care exists because Plaintiff cannot demonstrate a special relationship between Officer Schmidt and Plaintiff giving rise to such a duty. Plaintiff, for his part, argues that no special relationship is necessary – the court should find that, under general negligence principles, Officer Schmidt owed a duty to exercise reasonable care in operating his cruiser under California Civil Code § 1714(a). Toward that end, the case law is clear that 'the question of the applicability of a statutory immunity does not even arise until it is determined that a defendant otherwise owes a duty of care to the plaintiff and thus would be liable in the absence of such immunity.' Lightman v. Siemens Industry Inc. (2017) 16 Cal. App. 5th 914, 930. Put differently, 'the immunity cart [should not be] placed before the duty horse.' Williams v. State of California (1983) 34 Cal. 3d 18, 22. Consequently, before the court can address the parties' respective immunity arguments, it must first determine whether a duty of care exists in the first place. In this instance, the court agrees with Plaintiff on the issue of duty.

The California Supreme Court has explained that '[a] person does not, by becoming a police officer, insulate himself from any of the basic duties which everyone owes to other people, but neither does he assume any greater obligation to others individually. The only additional duty undertaken by accepting employment as a police officer is the duty owed to the public at large.' Williams, 34 Cal. 3d at 35, fn. 3 (emphasis in original). Courts 'apply general principles of tort law to determine the duty of CHP officers acting within the scope of their employment and the potential liability of the CHP and its officers arising out of the officers' conduct.' Catsouras v. Department of California Highway Patrol (2010) 181 Cal. App. 4th 856, 867 (citing Lugtu v. California Highway Patrol (2001) 26 Cal. 4th 703, 715-716). The applicable standard of care by which an officer's conduct must be measured is that of a reasonably prudent person under like circumstances. See Lugtu, 26 Cal. 4th at 720; Gibson v. City of Pasadena (1978) 83 Cal. App. 3d 651, 658. That being said: In assessing the question of duty in cases challenging the conduct of law enforcement personnel generally, appellate courts in this state ... have employed a variety of standards drawn from broad principles of tort law. Arguably, the more common approach has been to apply the multifactor duty analysis first articulated in the landowner liability case of Rowland, supra, 69 Cal.2d 108. [Citations.] Other courts have relied on the more amorphous special relationship' doctrine ... which has been used to explain cases that imposed a duty on police officers to protect individual members of the citizenry in some contexts. [Citations.] [¶] In some instances, our Supreme Court has engaged in a duty analysis under both standards [citations]. However, the interrelationship between the traditional duty analysis and the special relationship' doctrine has never been clearly defined. (Adams, supra, 68 Cal.App.4th at pp.

266-267.) Catsouras v. Department of California Highway Patrol (2010) 181 Cal.App.4th 856, 876.

Against this backdrop, Defendants, by way of their motion, contend that a special relationship must be demonstrated before a duty of care can be imposed under the circumstances of this case. The Second District Court of Appeal has explained: A duty of care may arise where the evidence demonstrates 'the requisite factors to a finding of a special relationship, namely detrimental reliance by the plaintiff on the officers' conduct, [or on] statements made by them which induced a false sense of security and thereby worsened [the plaintiff's] position.' (Williams v. State of California, supra, 34 Cal.3d at p. 28, 192 Cal.Rptr. 233, 664 P.2d 137.) A special relationship is not established 'simply because police officers responded to a call for assistance and took some action at the same.' (Adams v. City of Fremont, supra, 68 Cal.App.4th at p. 279, 80 Cal.Rptr.2d 196.) Nor is it 'enough to assert that the law enforcement officers took control of the situation.' (Minch v. California Highway Patrol, supra, 140 Cal.App.4th at p. 905, 44 Cal.Rptr.3d 846.) Instead, special relationships have been found only in 'a limited class of unique cases' involving 'police officers who made misrepresentations that induced a citizen's detrimental reliance [citations], placed a citizen in harm's way [citations], or lulled a citizen into a false sense of security and then withdrew Calendar No.: Event ID:  TENTATIVE RULINGS

3029373 CASE NUMBER: CASE TITLE:  CARLISLE VS SCHMIDT [IMAGED]  37-2022-00008578-CU-PA-NC essential safety precautions [citation].' (Id. at pp. 279-280, 80 Cal.Rptr.2d 196.) Camp v. State of California (2010) 184 Cal. App. 4th 967, 976-977. Defendants present undisputed evidence that Plaintiff and Officer Schmidt did not have a preexisting relationship before the subject accident. Additionally, there is no evidence that Officer Schmidt made any misrepresentations to Plaintiff before the accident or lulled Plaintiff into a false sense of security. Officer Schmidt was responding to a call from CHP dispatch to remove a ladder from the freeway – he was not undertaking a protective duty toward Plaintiff or any specific member of the public. Nor did Plaintiff rely on Officer Schmidt's conduct to his detriment. As a result, Defendants have demonstrated that there was no duty arising out of a special relationship. That, however, is not the end of the analysis.

As is evident from case law and as set forth above, the 'special relationship rule' is 'narrow, to be applied in a limited class of unusual cases.' Minch v. California Highway Patrol (2006) 140 Cal.App.4th 895, 908. Given this limited rule, the special relationship rule is not the only means by which a duty of care arises between law enforcement personnel and the public, and the court respectfully disagrees with the Defendants' implicit suggestion that the traditional duty analysis may be dispensed with in law enforcement settings. As Defendants make no attempt through their moving papers to demonstrate the absence of a duty through the multifactor analysis first articulated Rowland applied to the facts of this case, Defendants have failed to meet their initial burden of demonstrating the absence of any duty owed by Defendants.

Accordingly, the court denies Defendants summary adjudication as to the first issue.

As to the second issue, CGC § 820.2 provides that '[e]xcept 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.' Cal. Gov't Code § 820.2. The Third District Court of Appeal has stated: The immunity for discretionary acts under section 820.2 'confers immunity only with respect to those 'basic policy decision' which have been committed to coordinate branches of government, and does not immunize government entities from liability for subsequent ministerial actions taken in the implementation of those basic policy decisions [citation]. This distinction is sometimes characterized as that between the 'planning' and the 'operational' levels of decision-making [citation].' (Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 793, 221 Cal.Rptr. 840, 710 P.2d 907.) Ortega v. Sacramento County Dept. of Health & Human Services (2008) 161 Cal. Ap. 4th 713, 729-730.

'[T]o be entitled to immunity the state must make a showing that such a policy decision, consciously balancing risks and advantages, took place. The fact that an employee normally engages in 'discretionary activity' is irrelevant if, in a given case, the employee did not render a considered decision.' Johnson v. State of California (1968) 69 Cal. 2d 782, 794-795, fn. 8.

Discretionary immunity has been found to apply to many areas of police work. For example, courts have found the following to constitute discretionary decisions for which police officers are immune under CGC § 820.2: (1) the decision to pursue a fleeing vehicle; (2) the decision to investigate or not investigate a vehicle accident; (3) the failure to make an arrest or to take some protective action less drastic than arrest; (4) the decision whether to use official authority to resolve a dispute; and (5) the decision whether to remove a stranded vehicle. See Hernandez v. City of Pomona (2009) 46 Cal. 4th 501, 519; Bratt v. City and county of San Francisco (1975) 50 Cal. App. 3d 550, 553; McCarthy v. Frost (1973) 33 Cal. App. 3d 872, 875; Michenfelder v. City of Torrance (1972) 28 Cal. App. 3d 202, 206; Watts v. County of Sacramento (1982) 136 Cal. App. 3d 232, 234-235; Posey v. State of California (1986) 180 Cal. App. 3d 836, 850; Bonds v. State of California ex rel. Cal. Highway Patrol (1982) 138 Cal. App. 3d 314, 321-322.

However, police officers are not immune under CGC § 820.2 when their acts are ministerial or public policy dictates against immunity. Courts have determined discretionary immunity does not apply to the following: (1) an officer's conduct of an accident investigation after the officer made the discretionary decision to undertake the investigation; (2) arresting the wrong person while executing a warrant; (3) Calendar No.: Event ID:  TENTATIVE RULINGS

3029373 CASE NUMBER: CASE TITLE:  CARLISLE VS SCHMIDT [IMAGED]  37-2022-00008578-CU-PA-NC deciding to arrest an individual when there was no probable cause to do so; and (4) using unreasonable force when making an arrest or overcoming resistance to it. See Green v. City of Livermore (1981) 117 Cal. App. 3d 82, 87-89; McCorkle v. City of Los Angeles (1969) 70 Cal. 2d 252, 261-262; Bell v. State of California (1998) 63 Cal. App. 4th 919, 929; Gillan v. City of San Marino (2007) 147 Cal. App. 4th 1033, 1047, 1051; Scruggs v. Haynes (1967) 252 Cal. App. 2d 256, 264-268.

In this case, the court finds that Defendants have failed to demonstrate entitlement to discretionary immunity under CGC § 820.2. Even if Officer Schmidt's decision to remove the ladder from the freeway were discretionary, that alone does not grant him immunity under CGC § 820.2 if he was negligent in executing upon the removal task. Whether he was negligent in doing so is a question of fact for the jury.

Accordingly, the court denies Defendants summary adjudication as to the second issue.

As to the third and fourth issues, the Complaint alleges that Officer Schmidt was negligent by violating California Vehicle Code ('CVC') § 22400(a), which provides that: No person shall drive upon a highway at such a slow speed as to impede or block the normal and reasonable movement of traffic unless the reduced speed is necessary for safe operation, because of a grade, or in compliance with law.

No person shall bring a vehicle to a complete stop upon a highway so as to impede or block the normal and reasonable movement of traffic unless the stop is necessary for safe operation or in compliance with law.

Cal. Vehicle Code § 22400(a).

Defendants first contend that CVC § 21055 exempts Officer Schmidt from CVC § 22400's requirements.

The court respectfully disagrees. CVC § 21055 provides that the driver of an authorized emergency vehicle is exempt under all of the following conditions: (a) If the vehicle is being driven in response to an emergency call or while engaged in rescue operations or is being used in the immediate pursuit of an actual or suspected violator of the law or is responding to, but not returning from, a fire alarm, except that fire department vehicles are exempt whether directly responding to an emergency call or operated from one place to another as rendered desirable or necessary by reason of an emergency call and operated to the scene of the emergency or operated from one fire station to another or to some other location by reason of the emergency call.

(b) If the driver of the vehicle sounds a siren as may be reasonably necessary and the vehicle displays a lighted red lamp visible from the front as a warning to other drivers and pedestrians.

A siren shall not be sounded by an authorized emergency vehicle except when required under this section.

Cal. Vehicle Code § 21055.

In this case, Defendants have not provided evidence that CVC § 21055's requirements have been satisfied. More specifically, it is undisputed that Officer Schmidt was driving an authorized emergency vehicle at the time of the accident. However, Officer Schmidt testified at his deposition that, in his mind, he was not responding to an emergency call. He further testified that he did not sound his siren or display a lighted red lamp visible from the front of his cruiser; rather, he testified that he displayed his rear amber lights and amber directional lights.

Defendants next argue that Officer Schmidt is immune from liability under CVC § 17004. The court disagrees. CVC § 17004 provides that: Calendar No.: Event ID:  TENTATIVE RULINGS

3029373 CASE NUMBER: CASE TITLE:  CARLISLE VS SCHMIDT [IMAGED]  37-2022-00008578-CU-PA-NC A public employee is not liable for civil damages on account of personal injury to or death of any person or damage to property resulting from the operation, in the line of duty, of an authorized emergency vehicle while responding to an emergency call or when in the immediate pursuit of an actual or suspected violator of the law, or when responding to but not upon returning from a fire alarm or other emergency call.

Cal. Vehicle Code § 17004. Again, Defendants have failed to demonstrate that CVC § 17004's immunity applies because they have not submitted sufficient evidence that Officer Schmidt was responding to an emergency at the time of the accident.

Accordingly, the court denies Defendants summary adjudication as to the third and fourth issues.

Conclusion In light of the foregoing, the court denies Defendants' motion for summary judgment or, in the alternative, summary adjudication.

This is the tentative ruling for the hearing at 1:30 p.m. on Friday, October 6, 2023. If no party appears at the hearing, this tentative ruling will become the order of the court as of October 6, 2023. If the parties are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the court and each other of their intention not to appear, though this notice is not required.

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