Filed 1/8/20 Biscotti v. City of Yuba City CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sutter)

—-

MATTHEW BISCOTTI et al.,

Plaintiffs and Appellants,

v.

CITY OF YUBA CITY et al.,

Defendants and Respondents.

C086870

(Super. Ct. No. CVCS161593)

This case arises out of a police shooting that resulted in the death of Victoria Rogers-Vasselin (Vasselin). Police officers went to Vasselin’s residence to investigate a report that a female occupant there had brandished a firearm at a census worker. When an officer knocked on the door, Lonnie Patterson answered while holding a firearm. One of the officers demanded he disarm and Patterson complied. Vasselin then appeared at the door, naked and carrying a shotgun. Vasselin did not disarm in response to the officers’ demands to do so. Two of the officers felt threatened and discharged their firearms. Vasselin was shot and killed.

Vasselin’s sons, Matthew and Christian Biscotti (collectively plaintiffs), sent a government tort claim to the City of Yuba City (City) alleging personal injury arising out of their mother’s death and later filed an action in federal court. After the federal case was dismissed, plaintiffs filed this action in state court against the City and City police officers David Krause and David Santanna (collectively defendants). Plaintiffs sued in two capacities — as Vasselin’s successors in interest and individually, as her heirs — asserting four causes of action: (1) violation of Vasselin’s rights “under the Fourth Amendment to the United States Constitution to be free from unreasonable seizures”; (2) violation of the Bane Act under Civil Code section 52.1; (3) assault and battery; and (4) negligence arising from Vasselin’s wrongful death. The causes of action against the City were asserted under the doctrine of respondeat superior.

Defendants removed the state action to federal court and filed a motion to dismiss and a motion to strike the complaint. The district court granted defendants’ motion to dismiss with regard to the Fourth Amendment cause of action, declined to exercise supplemental jurisdiction over the remaining state law claims, and remanded the action to state court. The district court did not consider the motion to strike.

Following remand of the action to state court, defendants filed a demurrer challenging all four causes of action. As explained more fully herein, the trial court sustained and overruled the demurrer in part. Defendants then filed a motion for summary judgment as to the wrongful death cause of action. The trial court granted defendants’ motion. Plaintiffs appeal from the order sustaining the demurrer and the judgment in favor of defendants on the motion for summary judgment. We affirm.

DISCUSSION

I

Motion To Strike Appellants’ Reply Appendix

Plaintiffs filed a three-volume appellants’ appendix with their opening brief. Defendants did not file a respondents’ appendix. In the respondents’ brief, defendants argue plaintiffs failed to include in the appellants’ appendix the documents necessary to adjudicate the appeal arising from the motion for summary judgment and “the lack of a demurrer record [wa]s problematic” as well.

In response, plaintiffs filed a two-volume reply appendix concurrent with their reply brief. The reply appendix contains 36 documents filed in the trial court and comprises almost entirely of documents filed in support of and opposition to the demurrer and the motion for summary judgment.

Defendants filed a motion to strike the reply appendix arguing: (1) California Rules of Court, rule 8.124(b)(6) permits the filing of a reply appendix only if a respondent’s appendix was filed; (2) “the vast majority of [the] 400 pages would go to the panel without the benefit of citations from either side”; (3) plaintiffs should have sought leave to augment their appellants’ appendix instead; and (4) “[s]hould the Court choose to allow the reply appendix, it should also allow [defendants] to file a sur-reply or supplemental brief addressing the significance of the appendix’s contents to the appeals.”

Plaintiffs filed an opposition to the motion to strike stating they provided the documents pertinent “for de novo review of the errors [p]laintiffs allege” in the appellants’ appendix and provided the additional documents in the reply appendix out of an abundance of caution to respond to defendants’ assertion that the appellants’ appendix was incomplete. Plaintiffs further assert that “[n]one of the documents in the [r]eply [a]ppendix [we]re used to support any new affirmative argument” and a sur-reply is unnecessary because defendants “had the opportunity to make the arguments that they request to make on sur-reply — and in fact made them.”

We deferred ruling on the motion to strike until we considered the merits of the case. We now deny the motion.

California Rules of Court, rule 8.124(b)(1)(B) provides that an appellant’s appendix must contain all documents filed or lodged in the superior court “necessary for proper consideration of the issues, including . . . any item that the appellant should reasonably assume the respondent will rely on.” Subdivision (b)(5) of the rule provides “[a] respondent’s appendix may contain any document that could have been included in the appellant’s appendix or a joint appendix.” And, subdivision (b)(6) states “[a]n appellant’s reply appendix may contain any document that could have been included in the respondent’s appendix.”

The appellants’ appendix did not include all documents necessary for proper consideration of the issues raised in the opening brief, as defendants appropriately noted. Plaintiffs were not, however, precluded from filing the reply appendix to provide the missing documents. Nothing in California Rules of Court, rule 8.124 provides that a reply appendix may be filed only if a respondent’s appendix was filed, as defendants contend. The documents included in the reply appendix consisted of documents filed in the trial court — documents equally available to each party — i.e., documents “that could have been included in the respondent’s appendix.” (Cal. Rules of Court, rule 8.124(b)(6).) Accordingly, the appellants’ reply appendix did not violate California Rules of Court, rule 8.124.

We see no reason for a sur-reply or supplemental brief relating to the reply appendix. Plaintiffs raised no new issues or arguments in their reply brief, and defendants do not contend otherwise. Defendants merely assert they would cite to “portions of the reply appendix that refute [plaintiffs’] assignments of error.” But defendants had the opportunity to file their own appendix to support their arguments and failed to do so. Defendants’ decision to not file a respondent’s appendix does not necessitate a sur-reply or supplemental brief in the absence of new issues or arguments raised by plaintiffs.

II

Demurrer

On August 22, 2017, the trial court sustained defendants’ demurrer “[a]s against Matthew Biscotti and Christian Biscotti as successors in interest to Victoria Rogers-Vasselin” without leave to amend. “As against Matthew Biscotti and Christian Biscotti as individuals seeking wrongful death damages,” the court sustained the demurrer in part and overruled it in part. The court sustained the demurrer as to the first cause of action because, “under the doctrine of res judicata, the prior federal court decisions bar liability under federal law.” The court further found the second and third causes of action “untimely under Government Code [section] 911.2, subd[ivision] (a).” As to the fourth cause of action, the court overruled the demurrer, stating “the applicability of Penal Code [section] 196(2) involves factual questions not resolvable on the pleadings.”

On August 23, 2017, the trial court entered a judgment of dismissal “against the Complaint of MATTHEW BISCOTTI and CHRISTIAN BISCOTTI, as successors in interest to Victoria Rogers-Vasselin, and in favor of [defendants].” Plaintiffs did not appeal the judgment.

Plaintiffs assert the trial court erred in sustaining defendants’ demurrer by finding: (1) the Bane Act and assault and battery causes of action were time barred; and (2) the Fourth Amendment cause of action was barred by res judicata. Defendants disagree with plaintiffs, addressing each of their arguments, and assert that any argument pertaining to the successor in interest claims was forfeited because plaintiffs did not appeal the judgment following the sustaining of the demurrer as to those claims. Plaintiffs do not respond to the latter argument in their reply brief.

We conclude the Fourth Amendment, Bane Act, and assault and battery causes of action were brought in plaintiffs’ successors in interest capacity and, because plaintiffs did not appeal the judgment of dismissal following sustaining of the demurrer, plaintiffs are time barred from raising those arguments in this appeal.

A survivor cause of action is one that belonged to the decedent before death and survived in her successor in interest by statute. (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1264; see Code Civ. Proc., § 377.30.) “The survival statutes do not create a cause of action. Rather, ‘[t]hey merely prevent the abatement of the cause of action of the injured person, and provide for its enforcement by or against the personal representative of the deceased.’ ” (Quiroz, at p. 1264.) In contrast, a cause of action for wrongful death “ ‘ “does not effect a survival of the decedent’s cause of action,” ’ ” but instead, by statute, vests a new right of action in the decedent’s heirs. (Id., at p. 1263; see Code Civ. Proc., § 377.60.)
Although plaintiffs’ complaint did not delineate the specific capacities pertinent to each cause of action, it is clear the Fourth Amendment, Bane Act, and assault and battery causes of action were brought solely in plaintiffs’ successor in interest capacity based on injury to Vasselin’s rights.

As to the Fourth Amendment cause of action, plaintiffs specifically pled that the claim was brought in their successor in interest capacity to assert Vasselin’s “survival rights under the Fourth Amendment to the United States Constitution to be free from unreasonable seizures.”

The Bane Act cause of action contains generic references to violations of plaintiffs’ federal and state constitutional rights, but the factual allegations supporting the cause of action reference only specific violations as to Vasselin’s rights. Indeed, plaintiffs alleged that the defendants “used force, intimidation, coercion, and/or the threat of force, intimidation, and coercion directed toward depriving [Vasselin] from being free of unreasonable seizures and unjustified use of force” and “[t]hrough the threat of force, intimidation, and coercion — in violation of the Bane Act — [d]efendants seized and killed [Vasselin].” In their opposition to the demurrer, plaintiffs further argued that the cause of action was a survival claim brought in their successor in interest capacity and not in their individual capacity as heirs, to avoid a standing issue.

Finally, the assault and battery cause of action was grounded in the allegation that the defendants’ “actions in wrongfully using excessive force and killing [Vasselin] constituted a battery under California Law.” In opposition to the demurrer, plaintiffs further acknowledged that the cause of action was a survival claim.

That plaintiffs sought damages for having been deprived of Vasselin’s love, comfort, support, society, care, assistance, affection, and guidance because of violations of Vasselin’s rights does not convert the claims into causes of action brought by plaintiffs in their individual capacity. By statute, the damages recoverable by a successor in interest on a decedent’s cause of action is based on “the loss or damage that the decedent sustained or incurred before death.” (Code Civ. Proc., § 377.34.) Accordingly, plaintiffs would be entitled only to damages provided by statute as to the Fourth Amendment, Bane Act, and assault and battery causes of action, regardless of the damages pled.

For the foregoing reasons, we find plaintiffs’ arguments regarding the Fourth Amendment, Bane Act, and assault and battery causes of action are time barred for failing to appeal the judgment of dismissal following sustaining of the demurrer as to those claims.

III

Motion For Summary Judgment

A

Standard Of Review

Summary judgment is properly granted when no triable issue exists as to any material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) We review the grant of a motion for summary judgment de novo. (Law Offices of Dixon R. Howell v. Valley (2005) 129 Cal.App.4th 1076, 1092.)

We assume the role of the trial court by independently examining the record and evaluating the correctness of the trial court’s ruling, not its rationale. (Moore v. William Jessup University (2015) 243 Cal.App.4th 427, 433.) In doing so, we scrutinize the parties’ trial briefs and evidence to determine the existence of a triable issue of fact. (See Martinez v. County of Los Angeles (1996) 47 Cal.App.4th 334, 341.) “There is a triable issue of material 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.)

“A defendant . . . has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action. Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff . . . shall not rely upon the allegations or denials of [his or her] pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).) We “view the evidence in a light favorable to plaintiff as the losing party [citation], liberally construing [his or] her evidentiary submission while strictly scrutinizing [the defendant’s] own showing, and resolving any evidentiary doubts or ambiguities in plaintiff’s favor.” (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.)

B

Undisputed Material Facts

The following material facts were taken from defendants’ statement of undisputed material facts. None of plaintiffs’ responses to defendants’ statement of undisputed material facts nor plaintiffs’ “additional separate statement of disputed material facts” raised a triable issue as to the facts set forth below.

A census worker told City police officers Catherine Alestra and Anna Williams that a female occupant at a specific residence had pointed a gun at her. Officer Alestra relayed the census worker’s story to City police officers Santanna, Krause, and Todd Wolfe. Officer Alestra initially wanted to make an arrest for assault with a deadly weapon but, after discussing it with the other officers, decided “it would be better fitting to go to the location, find out who was there . . . and see what [they] had.” Officers Krause, Santanna, and Wolfe agreed to provide Officer Alestra “back-up and assistance for the interview and any subsequent investigation.”

Officers Alestra, Williams, Krause, and Wolfe arrived at the residence in question at approximately 10:00 p.m. Officer Alestra knocked on the door. Lonnie Patterson opened the door while holding a firearm; Officer Wolfe yelled at him to drop the firearm, which he did. Officer Santanna arrived at the residence while Officer Wolfe was yelling at Patterson to disarm. Patterson walked out of the house toward the officers. Officers Wolfe, Krause, and Santanna then saw a shotgun barrel protruding from the front doorway. More than one officer, including Santanna, yelled, “drop the gun.”

Vasselin appeared in the doorway, naked and holding a shotgun near her hip at a level to a slightly downward angle. The gun was swaying. Vasselin did not disarm in response to the “drop the gun” commands. As she was moving past the threshold, “the gun slightly dipped and started [mov]ing in [Officer Krause’s] direction.” Officer Krause became afraid and fired two gunshots at Vasselin. He later learned that neither of his gunshots hit her.

Officer Santanna fired four times at Vasselin. He decided to shoot because “[he] believe[d] that if [he] didn’t do something, that somebody was going to get shot, that she was going to shoot somebody.”

In their wrongful death cause of action, plaintiffs allege Officers Krause and Santanna unlawfully shot and killed Vasselin.

C

Summary Judgment Was Appropriate As To Officer Krause

In the motion for summary judgment, defendants argued that Officer Krause could not be liable for the wrongful death of Vasselin because his “shots missed her.” Defendants cited portions of Officer Krause’s deposition testimony as evidence. In his deposition, Officer Krause said he fired two gunshots at Vasselin on the evening of her death, but later learned “the rounds that [he] fired did not” hit her; they “penetrated the wall.” Officer Krause also recalled seeing one of the gunshots penetrate the wall on the evening of the shooting. His deposition testimony, to which plaintiffs raised no evidentiary objection, met his burden of showing that the wrongful death cause of action had no merit because the element of causation relating to Vasselin’s death was negated. (See Code Civ. Proc., § 437c, subd. (p)(2); Quiroz v. Seventh Ave. Center, supra, 140 Cal.App.4th at p. 1264.)

The burden shifted to plaintiffs to “show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).) Plaintiffs did not respond to defendants’ argument that Officer Krause did not shoot Vasselin. They did, however, state the following in their opposition to defendants’ statement of undisputed material facts: “Disputed. The coroner’s record does not describe whose bullets inflicted the harm to Ms. Vasselin. [Citation.] It is undisputed that Officer Krause shot through the wall of the house as Ms. Vasselin was still in her home when the shots were fired.” Plaintiffs cited and introduced no evidence to support the latter contention. Nor did plaintiffs raise any additional disputed facts in this regard in their additional separate statement of disputed material facts submitted in opposition to the motion for summary judgment.

We fail to see how plaintiffs’ opposition served to dispute or counter Officer Krause’s deposition testimony. Plaintiffs’ reliance on nonexistent information in the coroner’s report did not serve this purpose nor did plaintiffs’ unsupported statement that the gunshots went through the wall. “An issue of fact can only be created by a conflict of evidence. It is not created by ‘speculation, conjecture, imagination or guess work.’ [Citation.] Further, an issue of fact is not raised by ‘cryptic, broadly phrased, and conclusory assertions’ [citation], or mere possibilities [citation]. ‘Thus, while the court in determining a motion for summary judgment does not “try” the case, the court is bound to consider the competency of the evidence presented.’ ” (Sinai Memorial Chapel v. Dudler (1991) 231 Cal.App.3d 190, 196-197.)

In their opening brief on appeal, plaintiffs argue: (1) the coroner’s report raised a disputed issue of fact because it noted Vasselin “was hit by five bullets” indicating “Officer Krause must have hit Ms. Vasselin at least once,” given that Officer Santanna fired only four bullets; and (2) Officer Krause’s deposition testimony lacked foundation. We do not consider these contentions.

Plaintiffs forfeited the first contention by failing to identify in their trial brief the additional material facts plaintiffs believed to be in dispute. A party opposing summary judgment is required to provide a separate statement that responds to each material fact that the moving party contends to be undisputed, and that identifies any additional material facts that the opposing party believes to be disputed. (Code Civ. Proc., § 437c, subd. (b)(3).) “Separate statements are required not to satisfy a sadistic urge to torment lawyers, but rather to afford due process to opposing parties and to permit trial courts to expeditiously review complex motions for . . . summary judgment to determine quickly and efficiently whether material facts are disputed.” (United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 335.)

Plaintiffs were required to “direct the court’s attention to any different factual basis of liability on which [plaintiffs] might rely,” to explain the factual significance of the “five bullets” fact they now raise, and to specify such facts in their separate statement to preserve the argument for appeal. (North Coast Business Park v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 28-30.) Plaintiffs failed to do so and, accordingly, forfeited the issue for consideration on appeal. Indeed, in their “additional separate statement of disputed material facts submitted in opposition to the motions [sic] for summary judgment,” plaintiffs stated that Officer Santanna shot Vasselin; they did not assert that Officer Krause shot Vasselin. (Capitalization omitted.)

Plaintiffs also forfeited the second contention that Officer Krause’s deposition testimony lacked foundation because plaintiffs did not raise the evidentiary objection in opposition to the motion for summary judgment. Indeed, plaintiffs raised no evidentiary objections to Officer Krause’s deposition testimony. They may not raise such evidentiary objections for the first time on appeal. (Code Civ. Proc., § 437c, subd. (b)(5) [“Evidentiary objections not made at the hearing shall be deemed waived”]; Reid v. Google, Inc. (2010) 50 Cal.4th 512, 525, 531 [to preserve evidentiary issues on appeal, litigants must object to specific evidence in writing before the summary judgment hearing or orally at the hearing, as specified in California Rules of Court, rule 3.1352].)

To the extent plaintiffs attempt to argue Officer Krause can be liable for Vasselin’s death based on his preshooting conduct alone, we disagree. As in Hayes, the case upon which plaintiffs rely, “the only injury plaintiff[s] alleged [in their wrongful death cause of action] is the loss of [their mother]”; they did not allege an additional injury as a result of the conduct of law enforcement personnel preceding their mother’s shooting. (Hayes v. County of San Diego (2013) 57 Cal.4th 622, 630.) “Therefore, this case involves only a single indivisible cause of action, seeking recovery for a single wrong — the shooting itself.” (Ibid.) Under those circumstances, preshooting conduct is a factor in the totality of the circumstances surrounding an officer’s use of deadly force. (Id. at p. 639.) Here, however, Officer Krause did not shoot and kill Vasselin — in other words, Officer Krause did not use deadly force. Accordingly, the preshooting conduct is irrelevant to determining whether Officer Krause is entitled to summary judgment.

We uphold the trial court’s grant of summary judgment in favor of Officer Krause.

D

Summary Judgment Was Appropriate As To Officer Santanna

In the motion for summary judgment, defendants argued that Officer Santanna could not be liable for the wrongful death of Vasselin because the homicide was privileged under Penal Code section 196, subdivision 2. Section 196, subdivision 2 provides a “[h]omicide is justifiable” when “necessarily committed [by public officers] in overcoming actual resistance to the execution of some legal process, or in the discharge of any other legal duty.” “The test for determining whether a homicide was justifiable under Penal Code section 196 is whether the circumstances ‘reasonably create[d] a fear of death or serious bodily harm to the officer or to another.’ ” (Martinez v. County of Los Angeles, supra, 47 Cal.App.4th at p. 349.)

Defendants argued the homicide was justified because Officer Santanna “attempted to assist [in the] investigation of a felony assault report,” “Vasselin’s appearance at the door with a shotgun constituted actual resistance to the attempt to interview her,” and the undisputed material facts establish that the circumstances created reasonable fear that, absent use of deadly force against Vasselin, she would have killed or seriously injured someone. They further argued that “most of the alleged negligent acts d[id] not bear on the privilege” and the “pre-shooting negligence by others d[id] not here avoid immunity.” (Capitalization omitted.)

Plaintiffs did not dispute that the privilege applied to Officer Santanna’s conduct. They instead argued: (1) the officers’ conduct in planning and performing the interview was unreasonable and negligent; (2) the officers “voided the privilege by creating the dangerous situation in the first place” because they “surprised Ms. Vasselin at home, though they knew she was armed, and likely intoxicated” and, had they “followed appropriate procedures and tactics, her death could have been avoided”; and (3) to apply the justifiable homicide privilege, the trial court would have had to decide issues of fact due to conflicting testimony regarding “how long the officers’ meeting at Station 3 lasted; how many times Officer Alestra knocked on the door at [the residence], and what she said as she knocked; how slowly Mr. Patterson opened the door, whether he was aware the people on the porch were police officers, how he was holding the gun, and how he put it down when the officers ordered him to do so; how many times the officers told Ms. Vasselin to drop the gun, whether any officer told Ms. Vasselin they were the police, how she held the weapon, and how much time elapsed between her appearance at the door and when the officers shot her.”

We conclude defendants met their burden of showing Officer Santanna’s conduct was justified under section 196, subdivision 2. Officer Santanna was assisting Officer Alestra in the investigation of a reported criminal offense, Vasselin resisted the investigation by approaching the officers with a shotgun, and Officer Santanna reasonably feared for his and his fellow officers’ safety considering the shotgun pointed in their direction and Vasselin’s failure to disarm in response to “put the gun down” commands. Indeed, Officers Krause and Santanna both testified they feared she would shoot.

Plaintiffs raised no objections to defendants’ evidence and introduced no evidence “to show that a triable issue of one or more material facts exists as to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) Plaintiffs did not explain, and we fail to see, how the alleged conflicting testimony identified in the opposition pertained to the section 196 inquiry. None of the allegedly disputed facts bore on elements of the defense; that is, whether Officer Santanna committed the homicide “in overcoming actual resistance to the execution of some legal process” (§ 196, subd. (2)) or whether “the circumstances ‘reasonably create[d] a fear of death or serious bodily harm to the officer or to another’ ” (Martinez v. County of Los Angeles, supra, 47 Cal.App.4th at p. 349).

Whether there was a triable issue of fact as to Officer Santanna’s negligence is immaterial. Plaintiffs argue that, “[u]nder the plain text of [section] 196[,] it absolves only killings that were ‘necessarily committed’ ” and, therefore, does not apply to “negligent killings.” We disagree.

Nearly three decades ago, this court considered whether section 197 — section 196’s analogue applicable to private citizens — applied to an action for wrongful death. (Gilmore v. Superior Court, supra, 230 Cal.App.3d at pp. 419-421.) We concluded a wrongful death claim could not be premised on a homicide justifiable as a matter of law under section 197. (Gilmore, at pp. 419-421; see Horwich v. Superior Court (1999) 21 Cal.4th 272, 285 [citing Gilmore as authority for “when the defendant has been justified in the use of deadly force against the decedent, the privileged nature of the conduct is a defense to all civil liability regardless of the plaintiff’s status”].)

We explained that a justifiable homicide “is, in legal effect, a privileged act” and “[a] privileged act is generally defined as one that would ordinarily be tortious, but which, under the circumstances, does not subject the actor to liability.” (Gilmore v. Superior Court, supra, 230 Cal.App.3d at p. 420.) Thus, “[a] privileged act is by definition one for which the actor is absolved of any tort liability, whether premised on the theory of negligence or of intent.” (Id. at p. 421.) And, “a finding that defendant’s act was justifiable, and therefore privileged, is fatal to [a] plaintiff’s [wrongful death and intentional tort] claim[s].” (Ibid.; accord Martinez v. County of Los Angeles, supra, 47 Cal.App.4th at p. 349 [applying section 196 and citing Gilmore as authority for “[t]here can be no civil liability under California law as the result of a justifiable homicide”].)

Plaintiffs attempt to distinguish Gilmore on its facts, arguing “there was no allegation of wrongfully creating the circumstances requiring the killing” or “that the shooting was unreasonable or inconsistent with common law self-defense.” The legal principle espoused in Gilmore — that a statutorily justifiable homicide is privileged and fatal to a wrongful death claim — was not limited or confined to the underlying facts of that case. Any factual distinction between Gilmore and this case is therefore immaterial.

Plaintiffs’ reliance on our Supreme Court’s opinion in Peterson fares no better. (Peterson v. City of Long Beach (1979) 24 Cal.3d 238.) They cite the case for the proposition that “[w]here officers are negligent[,] [s]ection 196 does not bar liability.” They state that, in that case, our Supreme Court “expressly noted the officers’ claim that they could not be liable given [section] 196” and “held that any objection as to [section] 196 was irrelevant given that [section] 196 could not immunize conduct if police officers were negligent.” Peterson stands for no such proposition.

In Peterson, a police officer shot and killed a male running from his apartment after receiving an erroneous burglary-in-progress report, mistakenly believing the man was a felon fleeing the scene of a burglary; there had been “no report of, nor did [the officer] see, any weapons, violence, or threat of violence at the apartment.” (Peterson v. City of Long Beach, supra, 24 Cal.3d at p. 241.) The trial court dismissed his parents’ wrongful death suit, ruling the officer’s use of deadly force was justified. (Ibid.) Our Supreme Court reversed because the trial court failed to consider the rebuttable presumption of failure to exercise due care under Evidence Code section 669 after the trial court found the police officer failed to comply with a police department manual policy and the victim’s death resulted from circumstances of the kind the policy was designed to prevent. (Peterson, at pp. 241-244, 247.)

In a footnote, our Supreme Court noted the defendants’ argument that “under section 196 homicide by a police officer is justifiable when any felony is involved, not just the ‘violent’ felonies to which the police manual restricts the use of firearms.” (Peterson v. City of Long Beach, supra, 24 Cal.3d at p. 247, fn. 8.) The court said it need not consider the argument because, “[e]ven if section 196 permitted deadly force under these facts, it did not compel its use. Thus a desire to comply with that section could not rebut the presumption of negligence raised by a violation of section 4242 of the manual,” under Evidence Code section 669. (Peterson, at p. 247, fn. 8.) It said that “[e]ven had section 196 referred to any felony, [the police officer] could still be liable for violating the police manual regulation, which clearly forbade the shooting in this case.” (Peterson, at p. 247, fn. 8.)

Our court considered the impact of the foregoing Peterson footnote in Gilmore. We explained our Supreme Court tangentially considered whether “the officer’s use of deadly force was justifiable under the provision applicable to homicides committed by police officers, Penal Code section 196, the analogue of Penal Code section 197 applicable to private citizens” and found the case distinguishable because “the liability of the officer there turned on the effect of his violation of a department regulation imposing a more stringent standard of conduct than imposed by Penal Code section 196.” (Gilmore v. Superior Court, supra, 230 Cal.App.3d at p. 422.) Plaintiffs’ wrongful death claim against defendants here, as in Gilmore, does not arise out of a violation of a statute, regulation, or ordinance, implicating Evidence Code section 669. Accordingly, Peterson is inapplicable.

Plaintiffs also argued in their opposition and argue on appeal that the common law principle that “ ‘one who negligently creates a situation threatening harm to another person may be held liable for injury to that person or a third party resulting from the threatened party’s efforts to avoid the peril . . . .’ ” applies because “a person who is at fault in bringing about the circumstances making a homicide purportedly necessary thereafter may not then claim justification for the acts.” (Citing Sparks v. City of Compton (1976) 64 Cal.App.3d 592; People v. Lamb (1861) 17 Cal. 323; People v. Holt (1944) 25 Cal.2d 59.) And, they state section 196 does “ ‘no more than codify the common law and should be read in the light of it.’ ” (Citing Kortum v. Alkire (1977) 69 Cal.App.3d 325.)

As we understand it, plaintiffs maintain summary judgment was inappropriate because there is a triable issue of fact as to whether Officer Santanna created a dangerous situation, nullifying his immunity under section 196, subdivision 2. Even assuming the common law principle applies to the immunity statute — something we need not and do not decide — plaintiffs have failed to show error because they have not, with authority and analysis, explained how Officer Santanna created a dangerous situation threatening harm to Vasselin. (See United Grand Corp. v. Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 153 [“We may and do ‘disregard conclusory arguments that are not supported by pertinent legal authority or fail to disclose the reasoning by which the appellant reached the conclusions he wants us to adopt’ ”].)

At best, it appears plaintiffs believe Officer Santanna’s liability turns on failing to object to Officer Alestra’s plan to conduct the investigation that evening and failing to call for a supervisor’s intervention based on information that Vasselin may have been under the influence of alcohol. We fail to see, and plaintiffs do not explain, how those allegations created a dangerous situation threatening harm to Vasselin such that it was foreseeable she would take efforts to avoid the peril. The cases cited by plaintiffs are not analogous.

Finally, we do not address plaintiffs’ argument that section 196 does not apply to unreasonable uses of force, such as a violation of the Fourth Amendment, because plaintiffs have no viable Fourth Amendment cause of action (see ante).

For the forgoing reasons, we conclude summary judgment was appropriately granted in favor of Officer Santanna.

E

Summary Judgment Was Appropriate As To The City

The wrongful death cause of action was asserted against the City on respondeat superior grounds alone. In opposition to the motion for summary judgment, plaintiffs asserted the City “is vicariously liable for the actions of all its employees, whether named defendants or not.” They argued the City was liable in three ways: (1) “the lack of supervisor involvement shows that the [City police department] tacitly authorized the officers’ conduct” which “unnecessarily exposed the participants to an unreasonable risk of harm”; (2) the officers were acting in the course and scope of their employment for the City; and (3) the City ratified the officers’ conduct after the fact because “[a]t the de-briefing of the incident, the [City police department] did not criticize the officers’ handling of the . . . incident.” Plaintiffs cited no evidence in support of the foregoing contentions.

As we explained ante, summary judgment was appropriate as to Officers Krause and Santanna. Because plaintiffs have no viable claims against Officers Krause and Santanna, there is no basis for respondeat superior liability against the City based on those claims. (Gov. Code, § 815.2, subd. (b) [public entity not liable for acts of employee if the employee is immune from liability].)

Plaintiffs assert “[a] claim of negligence may proceed against the city for the negligence of any of its officers even if not named,” citing Perez. (Perez v. City of Huntington Park (1992) 7 Cal.App.4th 817, 819-820.) They argue the trial court erred in failing to “consider the city as liable for the acts of all the officers.” It is true that, as explained in Perez, “[a] plaintiff seeking to hold an employer liable for injuries caused by employees acting within the scope of their employment is not required to name or join the employees as defendants” as long as “the evidence establishes that some employee in the scope of employment committed the wrongful act.” (Id. at p. 820.) Here, however, plaintiffs introduced no evidence and made no argument in opposition to the summary judgment motion to establish that any unnamed employee committed the alleged wrongful act in the scope of employment. Any argument in that regard has therefore been forfeited.

We conclude summary judgment was appropriately granted in favor of the City.

F

We Do Not Consider Plaintiffs’ Oral Request To Amend The Complaint

Plaintiffs argue the trial court erred in denying them leave to amend their complaint to name additional City police officers as defendants. It appears they made the motion for leave to amend orally at the hearing on the motion for summary judgment. Plaintiffs did not provide a reporter’s transcript of the hearing or any written motion. They merely point to the trial court’s superseded order on the motion for summary judgment, in which the trial court denied an “oral motion to amend the complaint to allege against [the City] vicarious liability for negligent acts by non-defendant officers prior to the shooting.”

Denial of leave to amend a complaint is reviewed for abuse of discretion (Los Angeles Memorial Coliseum Com. v. Insomniac, Inc. (2015) 233 Cal.App.4th 803, 819) and a plaintiff forfeits a challenge to the denial of leave to amend by failing to provide a record of the oral proceedings at the hearing (McAllister v. Los Angeles Unified School Dist. (2013) 216 Cal.App.4th 1198, 1210-1211). In the absence of an adequate record of the oral proceedings at the summary judgment hearing, plaintiffs have forfeited any claim that they should have been granted leave to amend.

DISPOSITION

The judgment is affirmed. Defendants shall recover their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)

/s/

Robie, Acting P. J.

We concur:

/s/

Butz, J.

/s/

Hoch, J.