Case Number: MC023375    Hearing Date: September 02, 2014    Dept: A11

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES – NORTH DISTRICT

MARIA ABARCA, )
) Case Number MC 023375
Plaintiff, )
) ORDER AFTER HEARING
V )
) Date of Hearing:
COUNTY OF LOS ANGELES, et al, ) September 2, 2014
) Dept. A-11
Defendants. ) Judge Randolph A. Rogers
____________________________________)

Defendants County of Los Angeles and Deputy Scott Peterson’s motion for summary judgment came on for hearing on September 2, 2014. Plaintiff Maria Abarca appeared through her counsel of record, ______________________. Defendants appeared through their counsel of record, _______________________. The Court, having received and reviewed the pleadings of record and evidence submitted and having considered argument of counsel, it is hereby ORDERED:

Defendants’ motion for summary judgment is GRANTED as to Defendant Peterson and DENIED as to Defendant County of Los Angeles.

SO ORDERED this the _____ day of September, 2014.

______________________
RANDOLPH A. ROGERS,
JUDGE

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES – NORTH DISTRICT

MARIA ABARCA, )
) Case Number MC 023375
Plaintiff, )
) STATEMENT OF DECISION
V )
) Date of Hearing:
COUNTY OF LOS ANGELES, et al, ) September 2, 2014
) Dept. A-11
Defendants. ) Judge Randolph A. Rogers
____________________________________)

The Court bases the Order After Hearing of this date upon the following Statement of Decision:

1. This case arises from a motor vehicle collision that occurred on December 21, 2010. Plaintiff Maria Abarca (“Plaintiff”) was driving in her vehicle, and apparently stopped at a light. Defendant Deputy Peterson (“Peterson”), responding to an emergency, drove into the intersection while Plaintiff was stopped at the light. Sarah Warner (“Warner”) also drove into the intersection at this time, colliding with Peterson’s patrol car. Due to the collision, the patrol car spun out of control and collided with Plaintiff’s vehicle. Plaintiff was injured as a result.

2. Plaintiff brought suit on August 14, 2012, alleging causes of action for negligence and property damage against Peterson and County of Los Angeles (“County”; collectively “Defendants”). Discovery ensued.

3. On June 19, 2014, Defendants brought a motion for summary judgment, contending that the facts as uncovered in discovery render them immune from suit. Plaintiff filed her Opposition on August 19, 2014.

4. Standard for summary judgment or summary adjudication – A party may move for summary judgment in any action or proceeding if it is contended the action has no merit or that there is no defense to the action or proceeding. Cal. Code Civ. Proc. § 437c(a). To prevail on a motion for summary judgment, the evidence submitted must show there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Cal. Code Civ. Proc. § 437c(c). In other words, the opposing party cannot present contrary admissible evidence to raise a triable factual dispute.

5. “For purposes of motions for summary judgment and summary adjudication: [¶] (1) A plaintiff or cross-complainant has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on that cause of action. Once the plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The defendant or cross-defendant may not rely upon the mere allegations or denials of its 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 that cause of action or a defense thereto.” CCP § 437c(p)(1).

6. When ruling on a summary judgment motion, the trial court must consider all inferences from the evidence, even those contradicted by the moving party’s evidence. The motion cannot succeed unless the evidence leaves no room for conflicting inferences as to material facts; the court has no power to weigh one inference against another or against other evidence. Murillo v. Rite Stuff Food Inc. (1998) 65 Cal.App.4th 833, 841. In determining whether the facts give rise to a triable issue of material fact, “‘[a]ll doubts as to whether any material, triable, issues of fact exist are to be resolved in favor of the party opposing summary judgment . . . .’” Gold v. Weissman (2004) 114 Cal.App.4th 1195, 1198-99. “In other words, the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences there from must be accepted as true.” Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 179.

7. Vehicle Code §17004 – Defendants argue that §17004 of the Vehicle Code provides immunity to Peterson. The section states that “[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.” Cal. Veh. Code §17004. Thus, where a public employee meeting the requirements of §17004 is involved in an incident, “the exemption of the employee does not rest on an adjudication of his freedom from negligence, but on the statutory declaration that he should be free from personal liability for his negligent acts.” Raynor v. City of Arcata (1938) 11 Cal.2d 113, 121. Thus, even when an officer, driving a patrol vehicle without a siren, drove at excessive speed on the wrong side of the street without even sounding a horn until within 200 feet of an intersection and struck a pedestrian, and was found to be grossly negligent, the officer could not, as a matter of law, be found liable. See Eddy v. City of Los Angeles (1938) 28 Cal.App.2d 89. See also City of Sacramento v. Superior Court (1982) 131 Cal.App.3d 395, 400 (officers not liable for alleged negligent failure to initiate siren and lights when engaged in pursuit).

8. “The test for determining whether a publicly owned motor vehicle is at a given time an authorized emergency vehicle responding to an emergency call is not whether an emergency in fact exists at the time but rather whether the vehicle is then being used in responding to an emergency call.” Stucker v. McMains (1945) 71 Cal.App.2d 35, 38. “Whether the vehicle is being so used depends upon the nature of the call that is received and the situation as then presented to the mind of the driver.” Id. at 38-39.

9. The uncontroverted evidence presented before the Court is that Peterson received an emergency call roughly a minute before the accident. Plaintiff’s Exhibit C, Deposition of Peterson at 19:20-20:7; Declaration of Peterson at ¶5. Indeed, Fact #3 in Defendants’ Separate Statement states that “Peterson had activated his LASD vehicle’s lights and sirens in response to an emergency call about an officer-involved shooting.” Defendants’ Separate State, Undisputed Fact #3. Plaintiff’s only evidentiary dispute to this is that neither Plaintiff nor Werner saw the lights or heard a siren. Plaintiff’s Separate Statement, Undisputed Fact #3.

10. It is further uncontroverted that the standard practice by officers on duty when an emergency situation arises is that “only the person that’s involved in the emergency situation and the [Sheriff’s Communication Center] dispatcher to relay all the information out to the responding units. If everyone were to activate their radio and advise they’re responding to the location, it would clutter the air, it would clutter the radio traffic and possibly be detrimental to the deputy that’s actually involved in the situation.” Plaintiff’s Exhibit C, Peterson Deposition 25:3-11. Plaintiff has produced no evidence that suggest an inference that this is not the case, or was not the case in the present accident.

11. As such, on the record presented to the Court, there is no evidence that creates a triable issue of material fact as to whether Peterson was responding to an emergency. As such, he is entitled to immunity under Vehicle Code §17004.

12. Accordingly, summary judgment as to Peterson is GRANTED.

13. County Defendant – Section 17004 provides immunity only to an individual public employee; a public entity is still liable for that employee’s negligence under Vehicle Code §17001. See Brummett v. County of Sacramento (1978) 21 Cal.3d 880, 885. Therefore, to succeed on a summary judgment motion, County must be able to demonstrate that Peterson was not negligent. The vehicle code, in relevant part, exempts a driver of an authorized emergency vehicle from many of its provisions where the vehicle is driven in response to an emergency call and where the driver sounds a siren and the vehicle displays a lighted red lamp visible from the front. Cal. Veh. Code §21055. Thus, County would be entitled to summary judgment if it can demonstrate that there is no triable issue of fact as to whether Peterson met the standards called for in §21055.

14. A necessary component of §21055 immunity is the sounding of sirens and displaying of a lighted red lamp visible from the front of the vehicle. Defendant contends that Peterson did indeed engage these lights prior to entering the intersection where the accident occurred. Defendants’ Separate Statement, Undisputed Fact #3. Plaintiff, on the other hand, suggests that the deposition testimony of Plaintiff and Warner, where neither recalls seeing or hearing lights or sirens before the accident, is evidence that Peterson did not engage his lights or sirens.

15. The absence of recollection is not conclusive proof that Peterson failed to engage his lights and sirens. However, both witnesses’ claims that no lights or sirens were perceived or heard until after the collision may permit an inference that the warning indicators were not activated until after the collision occurred. Because the Court is bound to accept the fact and reasonable inferences of the non-moving party as true on summary judgment, Plaintiff has raised sufficient evidence to defeat Defendants’ claim of immunity under §21055 by summary judgment.

16. Accordingly, County’s motion for summary judgment is DENIED.

SO ORDERED AND ADJUDGED this the ______ day of September, 2014.

___________________________________
RANDOLPH A. ROGERS, JUDGE