Opinion
Undеr the facts of this case we decide that the failure of California Highway Patrol (CHP) officers to stop and inspect or to stop and remove a vehicle parked alongside the traveled roadway does not create a basis for liability on the part of the CHP, and thereby the State of California *841 (State), in that there is neither a mandatory duty nor a special relationship which obligates these officers to do the aforesaid acts.
Mary Ann Posey (Posey), appeals from the judgment of dismissal entered upon the trial court’s sustaining of a demurrer to the second amended complaint without leave to amend.
Pursuant to the сourt’s order sustaining the demurrer and allowing the State to recover all allowable costs, the State filed a memorandum of costs and disbursements. Thereafter, Posey filed a motion to tax costs which was granted. State appeals from the trial court’s order granting Posey’s motion to tax costs.
I
As we are reviewing a judgment entered pursuant to an order sustaining a demurrer, we accept the material facts as set forth in the complaint as true.
(Schneider
v.
Union Oil Co.
(1970)
On December 7, 1979, at approximately 11:30 a.m., a 1966 Chrysler was parked on Highway 280 in San Jose, near the Winchester Boulevard entrance. The car was parked off the traveled roadway but on the shoulder next to the far right lane.
CHP officers drove past the 1966 Chrysler as they patrolled Highway 280 but failed to stop and inspect the vehicle or remove the vehicle. California Highway Patrol General Order (HPGO) No. 100.58 provides: “1. (a) Each Officer performing patrol duty shall inspect all vehicles which appear to be abandoned, unlawfully parked, or disabled within the geographical area of Departmental responsibility. [¶] (b) Vehicles shall be removed when authorized by law. [¶] (c) CHP 422 [a form] may be used as a warning for parking violations.”
At approximately 12:45 a.m. on December 8,1979, Posey was a passenger in a 1974 Mercury which collided with the 1966 Chrysler. As a result of the collision, Posey suffered physical and emotional injuries.
Posey alleges that the State of California, through its agents and employees, certain CHP officers, is liable for her injuries in that HPGO No. 100.58 created a mandatory duty on the part of the CHP officers to stop and inspect and to remove the 1966 Chrysler and that the failure to perform this duty constituted negligence. The State successfully demurred to Posey’s second amended complaint on the ground that it fails to state a cause of *842 action. Posey argues on appeal that a cause of action is stated as the CHP’s failure to inspect and failure to remove the рarked vehicle created liability pursuant to Government Code section 815.6.
II
Preliminarily we note that on appeal from an order sustaining a demurrer, an appellate court is required to construe the complaint liberally to determine whether, assuming the facts pleaded to be true, a cause of action has been stated.
(Jones
v.
Oxnard School District
(1969)
In the instant case we are presented with the threshold question of whether, under the circumstances of this case, the State owes a duty of due care to Posey. We must consider whether a cause of action is stated on the theory alleged by Posey, i.e., that the CHP owes her a mandatory duty by virtue of HPGO No. 100.58. We must also consider whether a cause of action is stated on the theory that because of a special relationship between the parties, the State owed a duty of due care to Posey.
A. Liability Pursuant to the Special Relationship Doctrine.
“As a rule, one has no duty to come to the aid of another. A person who has not created a peril is not liable in tort merely for failure to take affirmative action to assist or protect another unless there is
some relationship
between them which gives rise to a duty to act.”
(Williams
v.
State of California
(1983)
This rule that one owes no duty to come to the aid of another is equally applicable to law enforcement personnel in their conduct of routine traffic investigations.
(Williams
v.
State of California, supra,
In the case at bench, the alleged misconduct is the failure of the CHP officers to either stop and inspect or to stop and remove the vehicle parked adjacent to the roadway. Where the purported injury is a result of an omission, or nonfeasance, the State may be held liable for the negligent omission if a special relationship existed between the State’s employee and the plaintiff.
(Bonds
v.
State of California
ex rel.
Cal. Highway Patrol
(1982)
The cases that have found a special relationship to exist have involved situations of the dependency or reliance by the plaintiff upon the defendant, or some conduct on the part of the defendant that either created or changed the risk to a known person.
In
Mann
v.
State of California, supra,
A few minutes later the motorists were injured when a passing car struck one of the stalled cars. (Id., at p. 777.) The plaintiff was one of the injured motorists.
The Court of Appeal ruled that liability may attach to the State for the officers’ negligent omissions because a special relationship had been created between the plaintiff and the officers when the officers stopped to investigate the plight of the motorists and apprised themselves of the foreseeable danger to the motorists by passing traffic. This special relationship imposes a duty upon the highway patrolmen to protect these specific persons from this specific foreseeable risk of harm about which they were informed.
(Id.,
at p. 780.) “While no special relationship may exist between members of the California Highway Patrol and the motoring public generally, or between
*844
the Patrol and stranded motorists generally” under the set of facts presented in
Mann,
a special relationship will arise which may attach liability to the defendant patrolmen if they fail to exercise ordinary care to protect the motorists.
(Ibid.)
The holding in
Mann
has been characterized as a “simple application of the ‘good Samaritan’ doctrine,” i.e., the duty of care that attaches to one who volunteers assistance.
(Davidson
v.
City of Westminster, supra,
In
Morgan
v.
County of Yuba, supra,
The facts alleged in Morgan were that the Yuba County Sheriff and some of his deputies arrested one Mr. Ashby upon the decedent’s complaint. The individual had threatened the life of plaintiffs’ decedent. The sheriff and the deputies fully cognizant of these threats, promised to warn the decedent immediately upon Mr. Ashby’s release on bail. The decedent was never warned and as a result she was killed by Mr. Ashby. (Id., at pp. 940-941.)
After setting out the general rule that “‘in thе absence of a special relationship between the parties, there is no duty to control the conduct of a third person so as to prevent him from causing harm to another’” the Court of Appeal stated that one exception to the rule is when there has been a voluntary or gratuitous undertaking upon which the plaintiff has reasonably relied to his or her detriment. (Id., at pp. 943-944.) Finding that it is likely that the plaintiffs could allege facts which fall squarely within this exception, the Morgan court held the county may be liable for its employee’s nonfeasance.
Our Supreme Court in
Tarasoff
v.
Regents of University of California
(1976)
In
Johnson
v.
State of California
(1968)
On the other hand, recovery has been denied for alleged negligent omissions where a special relationship has not been found to exist between law enforcement personnel and an individual.
Hartzler
v.
City of San Jose
(1975)
The Court of Appeal held that the facts did not support the theory of liability based on a special relationship between the police department and the decedent. The court found it significant that those cases which had found the existence of a special relationship all had a common theme of the voluntary assumption of a duty by the public entity or official toward the injured party. (Id., at pp. 9-10.) “Absent an indication that the police had induced decedent’s rеliance on a promise, express or implied, that they would provide her with protection, it must be concluded that no special relationship existed and that appellant has not stated a cause of action.” (Id., at p. 10.)
In
Winkelman
v.
City of Sunnyvale
(1976)
*846 The Winkelman court found there to be no duty on the part of the dеfendant to exercise due care on behalf of plaintiff’s interests. The court reasoned that the harm plaintiff suffered because of the truck’s involvement occurred before the officers arrived to begin investigating the accident. The alleged negligence was nonfeasance, the officers’ failure to protect her from the effects of events which had already occurred. Since, absent a special relationship, there is no liability in tort for nonfeasance by one who has not created a peril, the officers in Winkelman owed no duty of due care to the plaintiff. (Id., at p. 512.) A special relationship did not exist there.
Even under an alleged set of facts as egregious as in
Davidson
v.
City of Westminster, supra,
Relying upon the general common law rule set forth in section 315 of the Restatement Second of Torts (ante, p. 842), the Supreme Court held there was neither a special relationship between the assailant and the police officers nor between the plaintiff and the police officers. The Supreme Court reiterated that none of the factors creating a special relationship between the police and the plaintiff were present. The police did not create the peril. Nor did their conduct in any way change the risk of harm to plaintiff. Further, since plaintiff was unaware of their presence, she did not rely on the police for protection. (Id., at pp. 206-208.)
Finally, in
Bonds
v.
State of California
ex rel.
Cal. Highway Patrol, supra,
The appellate court discussed the lack of a special relationship when there is no act or omission on the part of the defendant that either created or changed a risk to a known person. “Here, there is nothing in the actions of the CHP that could have caused Bonds or the other motorists involved to rely on CHP protection. The CHP had not investigated thе plight of specific persons; it merely ticketed an illegally parked car. Its action did not place Bonds in a position of foreseeable danger that would not be readily discoverable by him if he were exercising due care. Nor did the CHP’s actions contribute to, increase or change a risk which otherwise existed. [f] To impose a duty upon the CHP such as pleaded by Bonds would serve to make the CHP virtually an insurer of safety on the highway instead of an enforcer of the vehicle code. Such a duty would be unduly burdensome on the public fisc and next to impossible to implement.” (Id,., at pp. 319-320, fn. omitted.)
Applying the general principles of law stated in the deсisions reviewed above, we find that Posey has not stated a cause of action as she fails to establish a duty of care based on a special relationship. The special relationship is a necessary element in the instant case as the alleged misconduct, the failure to remove or inspect the parked vehicle, is clearly nonfeasance. None of the factors which courts have found to be necessary for the creation of a special relationship between parties are present. Under the alleged facts the CHP owed no duty to Posey as a member of the general public tо remove or inspect the parked vehicle. Further, the CHP took no action which allowed Posey to reasonably rely or depend upon their protection. There is no allegation that the CHP determined that the parked vehicle constituted a hazard to traffic on the highway. The CHP did not in any way create or change the risk of harm to Posey as a known individual. Neither did the CHP take any action which would apprise it of the danger presented to Posey as a known individual, by this vehicle. Posey was a member of the general public and as such a special relationship did not exist between her and the CHP. Nor does it appear that the complaint could be amended to state a cause of action in this regard.
B. Statutory Duty to Inspect or Remove Disabled Vehicle.
We next examine the allegation in Posey’s second amended complaint that an internal CHP guideline, HPGO No. 100.58, places a mandatory duty upon the CHP officers, and the State within the meaning of section 815.6 of the Government Code. Posey contends that this internal guideline required the CHP officers to stop and inspect this vehicle and that it required the *848 officers to remove this vehicle. Their failure to do so, Posey argues, created liability on the part of the CHP. The State argues that the CHP owes no mandatory duty to inspect or remove the vehicle, and that stаtutory immunities to liability attach to their decision to remove disabled vehicles.
We hold that HPGO No. 100.58 does not create a mandatory duty, within the meaning of Government Code section 815.6, on the part of the CHP to inspect or remove a vehicle. The inspection and removal of disabled vehicles are discretionary acts and are therefore covered by the statutory immunities as set forth in Government Code section 820.2. 1
Government Code section 815.6 provides that “[w]here a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind рroximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty.”
Liability is found under Government Code section 815.6 only if all three of the requisite elements are met. First, there must be an
enactment
which imposes a mandatory, not discretionary, duty. Second, the enactment must be intended to protect against the kind of risk of injury suffered by the individual asserting liability under section 815.6. Finally, the breach of the mandatory duty must be a proximate cause of the injury suffered.
(State of California
v.
Superior Court
(1984)
The term mandatory duty, as used in Government Code section 815.6, means an obligatory duty which a governmental entity is required to perform, in contrast with a рermissive power which a governmental body may choose or not choose to exercise.
(Morris
v.
County of Marin, supra,
HPGO No. 100.58 does not impose a mandatory duty to inspect and remove vehicles parked at the side of a highway as it is not a regulation having the force of law and is not, therefore, an enactment within the meaning of Government Code section 815.6. This internal guideline has not been adopted by the CHP pursuant to the authority vested in it by statute. Vehicle Code section 2402 provides that the commissioner of the CHP “may make and enforce such rules and regulations as may be necessary to carry out the duties of the department. Rules and regulations shall be adopted, amended, or repealed in accordance with the Administrative Procedure Act, commencing with Section 11370 [now section 11340] of the Government Code.” (Italics added.) As the State points out, it is clear that HPGO No. 100.58 is not a regulation with the force of law as it has not been adopted in accordance with the Administrative Procedure Act. If the commissioner of the CHP had adopted this internal guideline as a regulation, it would appear in the California Administrative Code. 2 It does not appear there. Nor is reference to it made there.
The pertinent enactment which concerns us here is Vehicle Code section 22651, which provides that a peace officer, including a member of the CHP, who is engaged in directing traffic or enforcing parking laws and regulations,
“may
remove a vehicle from a highway located within the territorial limits in which the officer or employee may act under any of the following circumstances: . . . [1Í] (b) When any vehicle is parked or left standing upon a highway in a position so as to obstruct the normal movement
*850
of traffic or in a condition
so as to create a hazard
to other traffic upon the highway.” (Italics added.) Construing this statute in a reasonable fashion and attributing to it its ordinary and proper meaning
(Great Lakes Properties, Inc.
v.
City of El Segundo
(1977)
Like the case at bench, the Court of Appeal in
Bonds
decided the question of the CHP’s duty to either investigate or remove a vehicle parked at the side of the roadway.
(Bonds
v.
State of California
ex rel.
Cal. Highway Patrol, supra,
Further, with regard to the removal of the vehicle the court stated “[n]or did the CHP have a mandatory duty to remove the stranded vehicle from the highway. Indeed, Vehicle Code section 22651, subdivision (b) permits rather than requires removal of vehicles that are obstructing traffic or creating a hazard.” (Id., at p. 321, italics added, fn. omitted.) “[The] decision to remove or not to remove a stranded vehicle, without more, is thus a discretionary action and comes within the immunity described in Government Code section 820.2.” (Id., at p. 322.) The CHP has many duties which benefit the public but in most instances it must be vested with discretion as to the priorities to be followed in the performance of those duties.
Posey relies heavily on a case which fails to support her argument that HPGO No. 100.58 bears the “force of law.” In
Peterson
v.
City of Long Beach
(1979)
We also distinguish our Supreme Court’s recent opinion in
Clemente
v.
State of California
(1985)
The presumptive negligence instruction given was as follows: ‘“If you find that defendant Arthur Loxsom violated any provisions of the California Highway Patrol Accident Investigation Manual and that such violation was a legal cause of injury to the plaintiff, you will find that such violation was negligence.’”
(Clemente
v.
State of California, supra,
In holding that the trial court did not err in giving this instruction, the Supreme Court declined to consider the question of whether the investigation manual had the force of law because the issue was raised for the first time on appeal. The Supreme Court stated: “Upon petition for rehearing, defendant contended that the California Highway Patrol Accident Investigation Manual was not adopted in accordance with the Administrative Procedure Act. . . and that, therefore, it did not have the force of law. This contention is made for the first time on appeal on petition for rehearing and, whatever its merits, is untimely. [Citation.]” (Clemente v. State of California, supra, p. 216, fn. 6.)
*852 As the CHP’s inspection and removal of vehicles parked at the side of the roadway is a discretionary act, under Vehicle Code section 22651, subdivision (b), the immunity as provided in section 820.2 of the Government Code is fully applicable. We thus agree with the trial court that a cause of action against the individual officers, the CHP and the State is not stated.
Ill
We now review the State’s appeal from the trial court’s order taxing costs. The memorandum of costs and disbursements filed by the State included the fees charged by Posey’s expert witnesses for the taking of their depositions. Pursuant to Posey’s motiоn the trial court disallowed these fees, which totalled $3,115.90, in its order taxing costs. The State argues on appeal that this order should be reversed as the cost of a deposition, taken in good faith and pursuant to statute, is an allowable cost. Further, the State contends that section 1032.7 of the Code of Civil Procedure, which entitles the prevailing party to recover the reasonable cost of taking and transcribing depositions, enables the State to recover expert witness fees here. The State’s arguments are without merit.
The right to an award of costs is governed wholly by statute.
(La Mesa-Spring Valley School Dist.
v.
Otsuka
(1962)
We also note that a trial court’s order taxing costs is reviewed by this court under the standard of abuse of discretion.
(Kern County
v.
Galatas
(1962)
In making its argument that expert fees should be considered as costs necessarily incurred in the taking of these depositions, the State cites to the court a line of cases which fail to address the question of expert witness fees. The cases of
Simpson
v.
Gillis
(1934)
Neither is the State aided by section 1032.7 of the Code of Civil Procedure. This statute provides: “Any person allowed costs under the provisions of this chapter shall, in addition to other costs, be entitled to the reasonable cost of taking and transcribing depositions, together with the reasonable cost of one copy of each such deposition, unless it shall appear to the court that the taking of such deposition was unnecessary, and in addition the reasonable cost of one copy of all depositions taken by the party or parties against whom such costs are allowed.” The State urges that this phrase “reasonable cost of taking and transcribing depositions” should be construed so as to include the fees paid to the experts herein. Reading the statute in a reasonable light which conforms with the apparent purpose and intent of the Legislature, as we are required
(Clean Air Constituency
v.
California State Air Resources Bd.
(1974)
The judgment of dismissal is affirmed. The order granting motion to tax costs is affirmed. Posey to bear her costs on appeal. State to bear its costs on appeal.
Scott, Acting P. J., and Barry-Deal, J., concurred.
Notes
Government Code section 820.2 provides as follows: “Except as otherwise provided by statute, a public employee is not liable for an injury resulting frоm 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.”
Government Code section 11343 provides in part that “[e]very state agency shall: (a) Transmit to the office for filing with the Secretary of State a certified copy of every regulation adopted by it . . . .”
Government Code section 11344 provides in part that the Office of Administrative Law “shall ... (a) Provide for the publication of the periodic compilation of adoption, amendment, or repeal of regulations, which shall be known as the California Administrative Code. . . . [I] (e) Provide for the incorporation by appropriate reference of regulations which are impractical to include into the Administrative Code.”