14 Cal. App. 5th 811
Cal. Ct. App. 5th2017Background
- On Feb. 15, 2015 Officer Nguyen pursued a truck suspected in an armed robbery; he used a PIT maneuver, the truck crashed, and passenger Mark Gamar died. Plaintiff Ramirez (Gamar’s mother) sued the City of Gardena for wrongful death alleging negligence and battery.
- The City moved for summary judgment asserting (1) officers’ conduct was reasonable and (2) statutory immunity under Vehicle Code § 17004.7 because the City had a written pursuit policy and provided regular training and promulgation.
- The trial court found disputed facts on reasonableness but granted summary judgment based on § 17004.7 immunity, concluding the City’s policy complied with subdivision (c) and the City adequately promulgated and trained per subdivision (b) and (d).
- Ramirez appealed, arguing: (a) the City’s policy failed to specify adequate objective criteria for use of pursuit intervention tactics (PIT, ramming, etc.) under § 17004.7(c)(5)-(6); and (b) the City failed to adequately promulgate the policy because it could not prove every officer signed a written certification as required by § 17004.7(b)(2).
- The City presented evidence of annual training, electronic certifications for most officers, POST-form certifications for many, and a custodian declaration stating all officers were required to certify; some individual signed forms were unavailable due to record loss.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether City satisfied § 17004.7 promulgation requirement (b)(2) | Ramirez: immunity requires proof every officer signed written certification; City failed to prove 100% compliance | City: statute requires agencies to require certifications but does not make 100% compliance a condition of immunity; other evidence of implementation suffices | Court held agency must require written certifications but immunity does not depend on 100% officer compliance; City’s evidence of promulgation/training sufficed |
| Whether City’s policy provided adequate objective guidance on driving tactics and pursuit intervention tactics under § 17004.7(c)(5)-(6) | Ramirez: policy left full discretion and lacked criteria limiting use of forcible tactics/PIT | City: policy lists objective factors (type of violation, speeds, traffic, identification, indicators of unreasonable danger) and directs forcible tactics be last resort with supervisory approval | Court held policy met § 17004.7(c) — factors and cross-references controlled and channeled discretion; not impermissibly unfettered |
| Whether evidence offered to prove promulgation was admissible | Ramirez: training log and summary declarations insufficient; certifications themselves required | City: summary records, POST forms, training logs, and custodian declaration admissible and show implementation; Ramirez waived hearsay objection to log by using it | Court held evidence was admissible and sufficient; Ramirez waived objection to training log |
| Whether disputed factual issues on officer reasonableness defeat summary judgment | Ramirez: factual disputes preclude summary judgment on negligence | City: argued immunity independent of factual disputes on negligence | Court: factual disputes existed on reasonableness but immunity under § 17004.7 resolved as a question of law; therefore summary judgment for City sustained on immunity grounds |
Key Cases Cited
- Lonicki v. Sutter Health Central, 43 Cal.4th 201 (Cal. 2008) (standard of review for summary judgment in favor of nonmoving party)
- Morgan v. Beaumont Police Dept., 246 Cal.App.4th 144 (Cal. Ct. App. 2016) (interpreting § 17004.7 promulgation requirement; court required officer acknowledgments in that case)
- Colvin v. City of Gardena, 11 Cal.App.4th 1270 (Cal. Ct. App. 1992) (policy invalid where it supplied no objective standards and conferred unfettered discretion)
- McGee v. City of Laguna Beach, 56 Cal.App.4th 537 (Cal. Ct. App. 1997) (policy adequate where factors guide officer discretion)
- Payne v. City of Perris, 12 Cal.App.4th 1738 (Cal. Ct. App. 1993) (insufficient policy that merely memorializes unfettered officer judgment)
- Ketchum v. State of California, 62 Cal.App.4th 957 (Cal. Ct. App. 1998) (policy sufficient where it sets circumstances that usually require aborting a pursuit)
- Alcala v. City of Corcoran, 147 Cal.App.4th 666 (Cal. Ct. App. 2007) (policy adequate when it identifies specific criteria rather than general exhortations)