Genaro Garcia Leon, et al. v. State of California, et al

Case Number

23CV03682

Case Type

Hearing Date / Time

Wed, 12/13/2023 - 10:00

Nature of Proceedings

Defendant California Highway Patrol’s Demurrer to Complaint

Tentative Ruling

For Plaintiff Genaro Garcia Leon, as successor in interest to Daniel Garcia, deceased, Teresa De. Jesus Garcia, as successor in interest to Daniel Garcia, Deceased: Ariella E. Perry                             

For Defendants State of California by and Through the California Highway Patrol and California Highway Patrol: Clair Leonard

For Defendant Roy T. Begun: Self-Represented

For Defendant Mike Phelan: Christopher M. Cotter

For Defendant Kenneth Lee Tippery: Self-Represented

For Defendants Natalia Kyme Stallworth and The Estate of Natalia Kyme Stallworth: No appearance

 

                                               

RULING

For the reasons set forth herein: The demurrer of California Highway Patrol to Plaintiffs’ complaint is sustained with leave to amend. Plaintiffs shall file and serve their first amended complaint, if any, no later than January 10, 2024.

Background

This action commenced on August 23, 2023, by the filing of the complaint by Plaintiffs Genaro Garcia Leon, as successor in interest to Daniel Garcia, deceased, and Teresa De Jesus Garcia, as successor in interest to Daniel Garcia (collectively “Plaintiffs”) against Defendants State of California (“State”), Natalia Kyme Stallworth, the Estate of Natalie Kyme Stallworth, Roy T. Begun, Mike Phelan, Kenneth Lee Tippery, and California Highway Patrol. (“CHP”) The complaint sets forth causes of action for: (1) Negligence as against Stallworth, Phelan, Tippery, and Begun; (2) Negligence pursuant to Government Code sections 814 and 815 et seq. as against State and CHP; and (3) Negligence pursuant to Vehicle Code section 17001 as against State and CHP.

As alleged in the complaint:

Genaro Garcia Leon and Teresa De Jesus Garcia are the parents of decedent Daniel Garcia. (Complaint, ¶¶ 3, 4.)

On August 25, 2021, decedent Daniel Garcia was travelling on highway 101 southbound in the number one lane north of Dos Pueblos Canyon Road. (Complaint, ¶ 18.) At the same time, Stallworth was being pursued by law enforcement and was speeding in her 2013 Volkswagen Jetta, on highway 101 northbound. (Complaint, ¶ 19.) Stallworth swerved left to avoid a parked commercial vehicle in the number two lane of highway 101 northbound, which was negligently parked by Tippery, causing her to cross the median and begin traveling northbound in the southbound lane. (Ibid.) At the same time, Phelan was traveling on highway 101 southbound, directly in front of Garcia, in the number one lane in a truck and trailer, in violation of California Vehicle Code. (Complaint, ¶ 20.) As Stallworth continued on northbound highway 101, in the southbound lanes, Phelan moved his vehicle to the right causing Stallworth’s vehicle to collide with Garcia’s vehicle head-on causing Garcia’s death. (Ibid.) Stallworth also died. (Complaint, ¶ 21.) At the time of the incident Stallworth was under the influence of drugs and alcohol. (Complaint, ¶ 28.)

CHP officers Daniel Backe and Bodgan Vysochin, while driving in the course and scope of their employment with CHP, “failed to safely operate their vehicle, and engaged in a dangerous and reckless pursuit of [Stallworth] causing her to drive in speeds in excess of 100 mph. As a result of Defendant’s failure to exercise reasonable care, [Stallworth] lost control of her vehicle, causing injuries and death to DANIEL GARCIA and wrongful death damages to Plaintiff.” (Complaint, ¶ 33.) “Because DANIEL BACKE and BODGAN VYSOCHIN were employees of Defendant CALIFORNIA HIGHWAY PATROL at all times described herein, Defendant CALIFORNIA HIGHWAY PATROL is liable for the injuries and death of Decedent DANIEL GARCIA, and the wrongful death damages suffered by Plaintiffs, and proximately caused by DANIEL BACKE and BODGAN VYSOCHIN.” (Complaint, ¶ 43.)

State, acting by and through the CHP, now demurs to the second and third causes of action based on governmental immunities. The demurrer was served on November 1, 2023.

Plaintiffs have not filed opposition or any other response to the demurrer.

Analysis

1. Requests for Judicial Notice

CHP requests that the Court take judicial notice of the following:

“(1) The CHP has adopted a written pursuit policy in compliance with Vehicle

Code section 17004.7, subdivision (c), that was in effect on August 25, 2021;

“(2) All CHP peace officers are trained on an annual basis on all aspects of the

CHP pursuit policy, which covers all of the subjects in Vehicle Code section 17004.7, and the amount of time that all CHP uniformed peace officers were required to spend in pursuit policy training in the training year prior to August 25, 2021, exceeded the annual minimum one-hour requirement that is mandated by regulation. (Cal. Code Regs., tit. 11, § 1081.); and

“(3) All CHP peace officers are required to certify in writing that they have received, read, and understand the pursuit policy in accidence with Vehicle Code section 17004.7, subdivision. (b) (2).” (Request for Judicial Notice, p. 2, ll. 8-18.)

In support of the request for judicial notice, CHP provides the declaration of Sergeant Joseph Courtney. Courtney is the supervisor of the Emergency Vehicle Operations Course Unit for the CHP. (Courtney Dec., ¶ 1.) Attached as Exhibit A to Courtney’s declaration is a copy of Chapter Five, “Pursuit Policy and Emergency Vehicle Operations,” of Highway Patrol Manual 70.6, Officer Safety Manual, which was in effect on August 25, 2021. (Courtney Dec., ¶ 3 & Exh. A.)

Judicial notice may be taken of: “Regulations and legislative enactments issued by or under the authority of the United States or any public entity in the United States.” (Evid. Code, § 452, subd. (b).); “Facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code, § 452, subd. (h).)

“The trial Court shall take judicial notice of any matter specified in Section 452 if a party requests it and:

(a) Gives each adverse party sufficient notice of the request, through the pleadings or otherwise, to enable such adverse party to prepare to meet the request; and

(b) Furnishes the Court with sufficient information to enable it to take judicial notice of the matter.” (Evid. Code, § 453.)

The Court will take judicial notice of the pursuit policy and emergency vehicle operations of the CHP manual as requested.

2. Demurrer

“When any ground for objection to a complaint, cross-complaint, or answer appears on the face thereof, or from any matter of which the Court is required to or may take judicial notice, the objection on that ground may be taken by a demurrer to the pleading.” (Code Civ. Proc., § 430.30, subd. (a).) “Our consideration of the facts alleged includes ‘those evidentiary facts found in recitals of exhibits attached to [the] complaint.’ [Citation.]” (Alexander v. Exxon Mobil (2013) 219 Cal.App.4th 1236, 1250.)

“[A] Court must treat a demurrer as admitting all material facts properly pleaded, it does not, however, assume the truth of contentions, deductions or conclusions of law.” (Travelers Indem. Co. of Connecticut v. Navigators Specialty Ins. Co. (2021) 70 Cal.App.5th 341, 358, citing Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.)

“To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the Plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.)

CHP argues that Plaintiff’s second and third causes of action fails to state facts sufficient to constitute a cause of action dure to the immunities provided in Vehicle Code sections 17004.7 and 17004, as well as Government Code section 815.2, subdivision (b).

Vehicle Code section 17004.7 provides:

“(a) 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.

“(b)(1) 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.

“(2) 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, 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.

“(c) A policy for the safe conduct of motor vehicle pursuits by peace officers shall meet all of the following minimum standards:

“(1) Determine under what circumstances to initiate a pursuit. The policy shall define a ‘pursuit,’ articulate the reasons for which a pursuit is authorized, and identify the issues that should be considered in reaching the decision to pursue. It should also address the importance of protecting the public and balancing the known or reasonably suspected offense, and the apparent need for immediate capture against the risks to peace officers, innocent motorists, and others to protect the public.

“(2) Determine the total number of law enforcement vehicles authorized to participate in a pursuit. Establish the authorized number of law enforcement units and supervisors who may be involved in a pursuit, describe the responsibility of each authorized unit and the role of each peace officer and supervisor, and specify if and when additional units are authorized.

“(3) Determine the communication procedures to be followed during a pursuit. Specify pursuit coordination and control procedures and determine assignment of communications responsibility by unit and organizational entity.

“(4) Determine the role of the supervisor in managing and controlling a pursuit. Supervisory responsibility shall include management and control of a pursuit, assessment of risk factors associated with a pursuit, and when to terminate a pursuit.

(5) Determine driving tactics and the circumstances under which the tactics may be appropriate.

“(6) Determine authorized pursuit intervention tactics. Pursuit intervention tactics include, but are not limited to, blocking, ramming, boxing, and roadblock procedures. The policy shall specify under what circumstances and conditions each approved tactic is authorized to be used.

“(7) Determine the factors to be considered by a peace officer and supervisor in determining speeds throughout a pursuit. Evaluation shall take into consideration public safety, peace officer safety, and safety of the occupants in a fleeing vehicle.

“(8) Determine the role of air support, where available. Air support shall include coordinating the activities of resources on the ground, reporting on the progress of a pursuit, and providing peace officers and supervisors with information to evaluate whether or not to continue the pursuit.

“(9) Determine when to terminate or discontinue a pursuit. Factors to be considered include, but are not limited to, all of the following:

“(A) Ongoing evaluation of risk to the public or pursuing peace officer.

“(B) The protection of the public, given the known or reasonably suspected offense and apparent need for immediate capture against the risks to the public and peace officers.

“(C) Vehicular or pedestrian traffic safety and volume.

“(D) Weather conditions.

“(E) Traffic conditions.

“(F) Speeds.

“(G) Availability of air support.

“(H) Procedures when an offender is identified and may be apprehended at a later time or when the location of the pursuit vehicle is no longer known.

“(10) Determine procedures for apprehending an offender following a pursuit. Safety of the public and peace officers during the law enforcement effort to capture an offender shall be an important factor.

“(11) Determine effective coordination, management, and control of interjurisdictional pursuits. The policy shall include, but shall not be limited to, all of the following:

“(A) Supervisory control and management of a pursuit that enters another jurisdiction.

“(B) Communications and notifications among the agencies involved.

“(C) Involvement in another jurisdiction’s pursuit.

“(D) Roles and responsibilities of units and coordination, management, and control at the termination of an interjurisdictional pursuit.

“(12) Reporting and postpursuit analysis as required by Section 14602.1. Establish the level and procedures of postpursuit analysis, review, and feedback. Establish procedures for written postpursuit review and followup.

“(d) “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.

“(e) The requirements of subdivision (c) represent minimum policy standards and do not limit an agency from adopting additional policy requirements. The requirements in subdivision (c) are consistent with the 1995 California Law Enforcement Vehicle Pursuit Guidelines developed by the Commission on Peace Officer Standards and Training pursuant to Section 13519.8 of the Penal Code that will assist agencies in the development of their pursuit policies. Nothing in this section precludes the adoption of a policy that limits or restricts pursuits.

“(f) A determination of whether a public agency has complied with subdivisions (c) and (d) is a question of law for the Court.

“(g) This section shall become operative on July 1, 2007.”

The Court has thoroughly reviewed the pursuit policies of which it has taken judicial notice. The Courtney declaration, and the attached pursuit policies, establish that CHP exceeds the requirements of Vehicle Code section 17004.7. Plaintiffs’ failure to oppose the demurrer implies that Plaintiffs concede to the merit of the demurrer. The immunity of Vehicle Code section 17004.7 appears to bar Plaintiffs’ action against the CHP.

In addition, Government Code section 815.2 provides:

“(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.”

“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.” (Veh. Code, § 17004.)

Because the CHP officers are immune from liability, the CHP is immune from liability pursuant to Government Code section 815.2 and Vehicle Code section 17004.

CHP’s demurrer to Plaintiffs’ complaint will be sustained. However: “[F]or an original complaint, regardless of whether the Plaintiff has requested leave to amend, it has long been the rule that a trial Court’s denial of leave to amend constitutes an abuse of discretion unless the complaint ‘shows on its face that it is incapable of amendment.’ [citations]” (Eghtesad v. State Farm General Insurance Company (2020) 51 Cal.App.5th 406, 411.) Plaintiffs will be given leave to amend.