Gund v. County of Trinity

IN THE SUPREME COURT OF
CALIFORNIA

JAMES GUND et al.,
Plaintiffs and Appellants,
v.
COUNTY OF TRINITY et al.,
Defendants and Respondents.

S249792

Third Appellate District
C076828

Trinity County Superior Court
11CV080

August 27, 2020

Justice Cuéllar authored the opinion of the Court, in which
Chief Justice Cantil-Sakauye and Justices Corrigan, Liu, and
Kruger concurred.

Justice Groban filed a dissenting opinion, in which Justice
Chin concurred.
 GUND v. COUNTY OF TRINITY
S249792

Opinion of the Court by Cuéllar, J.

We entrust to police officers the enormous responsibility
of ensuring public safety with integrity and appropriate
restraint, a mission they sometimes pursue by requesting help
from the very public they’re sworn to protect. When members
of the public engage in “active law enforcement service” at a
peace officer’s request, California law treats those members of
the public as employees eligible for workers’ compensation
benefits. (Lab. Code, § 3366, subd. (a).)1 While this allows such
individuals to receive compensation for their injuries without
regard to fault, it comes with a catch: Workers’ compensation
then becomes an individual’s exclusive remedy for those injuries
under state law. (§ 3602, subd. (a); Shoemaker v. Myers (1990)
52 Cal.3d 1, 16 (Shoemaker).) That can make a difference for
some members of the public who answer a peace officer’s call to
help with “active law enforcement,” because workers’
compensation benefits are narrower in scope than the menu of
damages available in tort claims. Whether compensation for a
member of the public injured in the course of responding to a
request for assistance from law enforcement is limited to
workers’ compensation, or whether civil damages are available,
depends on the question at the heart of this case: What does it

1 All statutory references are to the Labor Code unless
otherwise noted.

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Opinion of the Court by Cuéllar, J.

mean for an individual to engage in “active law enforcement
service”?
Norma and James Gund received a call from Trinity
County Sheriff’s Corporal Ronald Whitman, who asked them to
assist law enforcement by checking on a neighbor who had called
911 requesting help. When the Gunds did so, they walked into
an active murder scene and suffered a violent attack. What we
must resolve is whether Mr. and Mrs. Gund engaged in active
law enforcement service and are limited to workers’
compensation benefits for their injuries based on Corporal
Whitman’s request for assistance, which they allege
misrepresented the potential danger.
We conclude the Gunds were indeed engaged in “active
law enforcement service.” When the Gunds provided the
requested assistance, they delivered an active response to the
911 call of a local resident pleading for help. A response of this
kind unquestionably falls within the scope of a police officer’s
law enforcement duties. Whether or not any alleged omissions
in Corporal Whitman’s request could conceivably prove relevant
to legal actions alleging malfeasance, they do not change our
conclusion about the scope of workers’ compensation in this
tragic case. We affirm the judgment of the Court of Appeal.
I.
On the afternoon of March 13, 2011, the California
Highway Patrol (CHP) received a phone call from Kristine, a
female caller. 2 Kristine whispered, “Help me,” and said she

2 Because we are reviewing a motion for summary
judgment, “we view the evidence in the light most favorable to

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Opinion of the Court by Cuéllar, J.

lived at end of the Kettenpom airstrip. Kettenpom is situated
in the southwest corner of Trinity County, a mountainous
expanse of 3,200 square miles. (Trinity County, About Trinity
County [as of Aug. 24,
2020].)3 The County is inhabited by fewer than 15,000 people.
(U.S. Census Bureau, Population of Trinity County, California:
Census 2010 and 2000 Interactive Map, Demographics,
Statistics, Graphs, Quick Facts
[as
of Aug. 24, 2020].) The CHP dispatcher relayed the content of
Kristine’s call to the Trinity County Sheriff’s Department. The
Sheriff’s Department is in Weaverville, almost 100 miles away
from Kettenpom. (Trinity County, California, Sheriff
Department [as of Aug. 24, 2020].) The CHP dispatcher
explained she was hesitant to call Kristine back in case she was
trying to avoid being overheard. Twice, a Trinity County
dispatcher nonetheless attempted to contact Kristine, but the
calls went straight to voicemail. The county dispatcher relayed
this information to Trinity County Sheriff’s Corporal Ronald
Whitman.
Corporal Whitman knew the Gunds lived in the vicinity of
the Kettenpom airstrip. En route to Kristine’s home but still
some distance away, he called Norma Gund and explained that

plaintiffs as the losing parties, resolving evidentiary doubts and
ambiguities in their favor.” Elk v. Hills Power, LLC v. Bd. of
Equalization (2013) 57 Cal.4th 593, 606.)
3 All Internet citations in this opinion are archived by year,
docket number and case name at .

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Opinion of the Court by Cuéllar, J.

her neighbor, Kristine, had called 911. He asked Mrs. Gund if
she would go check on Kristine, as they were much closer to
Kristine’s home and he was still hours away. After Mrs. Gund
agreed, Corporal Whitman asked if Mr. Gund was home, and
Mrs. Gund said no. He instructed Mrs. Gund not to go to
Kristine’s home by herself. Mrs. Gund asked what Kristine said
on the call, and Corporal Whitman responded that she said,
“Help me.” Mrs. Gund then inquired: “Are you sure? Is that all
she said?” Corporal Whitman responded, “She said two words,
‘Help me.’ ” Mrs. Gund told Corporal Whitman that Mr. Gund
had just arrived home, and Corporal Whitman said, “Good.”
Corporal Whitman did not tell Mrs. Gund that Kristine had
whispered on the phone, that the CHP dispatcher believed she
had been trying to call secretly, or that the county dispatcher’s
return calls to Kristine went straight to voicemail.
Mrs. Gund confirmed for Corporal Whitman that she’d
been to Kristine’s property before, to help the previous owner
with snow and fallen trees. Corporal Whitman mentioned the
impending arrival of a major storm, which “must be what this is
all about.” “It’s probably no big deal,” he continued. Corporal
Whitman then asked if Mrs. Gund had ever met Kristine’s
boyfriend and if he seemed violent. Mrs. Gund confirmed that
she had met Kristine’s boyfriend. In response to whether he
ever seemed violent, Mrs. Gund indicated she “didn’t know. He
seemed real mellow.” Corporal Whitman gave Mrs. Gund his
cell phone number and instructed her to call him as soon as she
and her husband had checked on Kristine. Believing the
emergency to be weather related, the Gunds drove to Kristine’s
home. They speculated that maybe a tree had fallen or that

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Opinion of the Court by Cuéllar, J.

Kristine, a young city girl, was having trouble with her wood
burning stove.
After arriving at Kristine’s home, Mrs. Gund went in first,
while Mr. Gund stayed in the truck. Immediately after entering
Kristine’s home, Mrs. Gund was attacked by the man who had
just murdered Kristine and her boyfriend. Mr. Gund, hearing
some of the commotion, entered the home and saw the man
holding down his wife and cutting her throat with a knife. The
man then attacked Mr. Gund, as well — tasing him, punching
him, and cutting his throat. During the attack, Mr. Gund saw
on the floor a motionless body with a bag over the head. Mrs.
Gund escaped to the truck and drove to a nearby store for help.
Mr. Gund managed to disarm the attacker and flee on foot to his
home. He got another vehicle and reunited with Mrs. Gund at
the store.
The Gunds filed this action against Trinity County (the
County) and Corporal Whitman. The First Amended Complaint
alleges causes of action for: liability for the act or omission of a
public employee; vicarious liability for the act or omission of a
public employee; misrepresentation by a public employee, with
actual malice; and vicarious liability for misrepresentation by a
public employee, with actual malice. The Gunds contend
Corporal Whitman sought to secure their assistance by falsely
assuring them that Kristine’s call was probably weather related
and knowingly withholding the following facts: Kristine
whispered, the CHP dispatcher thought Kristine was calling
secretly, and the county dispatcher’s return calls went straight
to voicemail.
The County and Corporal Whitman moved for summary
judgment. Workers’ compensation, they argued, was the Gunds’

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Opinion of the Court by Cuéllar, J.

exclusive remedy because they sustained their injuries while
engaged in active law enforcement service under section 3366.4
The Gunds argued that section 3366 did not apply because,
given Corporal Whitman’s alleged misrepresentations, they did
not understand themselves to be engaged in “active law
enforcement service” when they complied with his request, nor
would a reasonable person have understood this to qualify under
that standard.
The trial court granted the summary judgment motion.
Despite the Gunds’ contention that they relied on Corporal
Whitman’s alleged misrepresentations, the trial court found
that section 3366 applied because a response to a 911 call under
the circumstances in this case amounts to assisting a peace
officer in active law enforcement. The Gunds appealed.
Although the Court of Appeal agreed that the Gunds provided
active law enforcement service at Corporal Whitman’s request,
it noted the trial court’s failure to acknowledge factual
contentions that Corporal Whitman misled them about the
nature of the requested activity. The Court of Appeal ultimately
found the misrepresentations did not change the outcome in the
trial court. The appellate court reasoned that because Corporal
Whitman’s direct response to Kristine’s 911 call would have
been considered active law enforcement, so too should the

4 The County and Corporal Whitman alternatively argued
that the Gunds’ suit was barred for the following reasons:
(1) the Gunds were employees because they assisted upon
command under section 3366; (2) County Resolution No. 163-87
deems volunteers to be employees if they provide “service” to the
county; and (3) they have governmental immunity from tort
liability. The Court of Appeal did not reach these arguments;
neither do we.

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Gunds’ response on his behalf. The Court of Appeal concluded
that responding to a 911 call for unspecified help — which the
Gunds did here — “is clearly active law enforcement” and
section 3366 applies, rendering workers’ compensation benefits
the Gunds’ exclusive remedy. (Gund v. County of Trinity (2018)
24 Cal.App.5th 185, 195 (Gund).)
We ordered review on the court’s own motion to decide the
scope of workers’ compensation coverage available to the
plaintiffs in this situation, as the availability of such coverage
would constrain them in seeking other redress for their injuries.
Specifically, we address whether plaintiffs engaged in active law
enforcement under section 3366 after a peace officer asked them
to check on a neighbor who dialed 911 for help and the officer
allegedly misrepresented the situation.
II.
Workers’ compensation spreads the cost of injuries
associated with the risks of employment even as it also limits
the extent of recovery a covered worker could have gained
through ordinary civil litigation. (§ 3600, subd. (a); Shoemaker,
supra, 52 Cal.3d at p. 16.) In a typical workers’ compensation
claim, benefits are available for an employee’s injury “arising
out of and in the course of the employment” where “the injury is
proximately caused by the employment.” (§ 3600, subds. (a),
(a)(3).) But volunteers are typically not eligible for these
benefits. (See § 3352, subd. (a)(9) [volunteers are not
employees].) Civilians like the Gunds who volunteer to assist
law enforcement only become “employee[s]” — whose exclusive
remedy lies in the workers’ compensation scheme — if they fall
within the scope of section 3366’s coverage. (§ 3366, subd. (a);

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see § 3602, subd. (a) [workers’ compensation is “the sole and
exclusive remedy of the employee”].)
Section 3366, subdivision (a) provides the following: “For
the purposes of this division, each person engaged in the
performance of active law enforcement service as part of the
posse comitatus or power of the county, and each person . . .
engaged in assisting any peace officer in active law enforcement
service at the request of such peace officer, is deemed to be an
employee of the public entity that he or she is serving or
assisting in the enforcement of the law, and is entitled to receive
compensation from the public entity in accordance with the
provisions of this division.”
To determine whether a civilian is an “employee,” we
approximate the typical workers’ compensation inquiry in the
atypical context defined by the terms of this statute. First, we
consider whether a peace officer asked for assistance with a task
that qualifies as active law enforcement service. Second, we ask
whether the civilian was injured while engaged in that
requested service. This two-step framework incorporates the
typical workers’ compensation requirement that an injury arise
out of and in the course of the employment because the volunteer
is only an “employee” if they are engaged in active law
enforcement service at the request of the police. Put differently,
a peace officer’s request informs whether a civilian’s injury arose
out of and in the course of qualifying employment.
No one in this case disputes that the Gunds assisted “at
the request of” a peace officer, nor is there any dispute that they
were “engaged in assisting” that officer when they sustained
their injuries. (§ 3366, subd. (a).) But to apply this framework
here we must decide if Corporal Whitman’s requested assistance

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was for a task of “active law enforcement service.” (Ibid.) We
begin by considering the statute’s language and structure,
bearing in mind that “our primary goal is to determine and give
effect to the underlying purpose of the law.” (Goodman v.
Lozano (2010) 47 Cal.4th 1327, 1332; People v. Valencia (2017)
3 Cal.5th 347, 357 [“ ‘the words of the statute must be construed
in context, keeping in mind the statutory purpose’ ”].) We start
by considering the ordinary meaning of the statutory language,
the language of related provisions, and the structure of the
statutory scheme. (Weatherford v. City of San Rafael (2017) 2
Cal.5th 1241, 1246; see also Larkin v. Workers’ Compensation
Appeals Bd. (2015) 62 Cal.4th 152, 157–158.) If the language of
a statutory provision remains unclear after we consider its
terms, structure, and related statutory provisions, we may take
account of extrinsic sources — such as legislative history — to
assist us in discerning the relevant legislative purpose. (Winn
v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 156; see
also Holland v. Assessment Appeals Bd. No. 1 (2014) 58 Cal.4th
482, 490.)
Based on what we glean from the language, structure, and
legislative history of section 3366 — as well as related statutory
provisions that round out the relevant context — we conclude
that Corporal Whitman requested “active law enforcement
service” when he asked the Gunds to respond to Kristine’s 911
call for help, and that “active law enforcement service” is what
the Gunds provided.
A.
“[A]ctive law enforcement service” is not a phrase defined
by section 3366, nor is it parsed by any other related statutory
provision. The Gunds contend it reaches only a narrow subset

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of policing tasks: the type of active investigation and
suppression of crime entailing risk of death or serious injury
while providing protection to the public. But defendants assert
“active law enforcement service” simply identifies the main
duties of a police officer. These words arguably support either
the Gunds or the defendants, because one could reasonably
understand “law enforcement” to either describe a specialized
portion of police activity or to encompass most of what police do.
A literal reading of “law enforcement service” conveys the idea
of service to enforce the law, and perhaps especially — given
how the term “law enforcement” is less commonly associated
with civil regulatory law — efforts to investigate violations of or
otherwise enforce criminal or traffic laws. (See, e.g.,
Commission on Peace Officer Standards & Training v. Superior
Court (2007) 42 Cal.4th 278, 298 [“ ‘Law enforcement officers
carry upon their shoulders the cloak of authority to enforce the
laws of the state’ ”].) This reading treats as separate from “law
enforcement” the broader range of public welfare and routine
order maintenance functions police officers may perform,
irrespective of how tenuously such activities connect to
enforcing criminal or traffic law. (See Decker, Emergency
Circumstances, Police Responses, and Fourth Amendment
Restrictions (1999) 89 J.Crim. L. & Criminology 433, 445–446,
fn. omitted [“police serve to ensure the safety and welfare of the
citizenry at large,” which “may involve approaching a seemingly
stranded motorist or lost child to inquire whether he or she
needs assistance, assisting persons involved in a natural
disaster, or warning members of a community about a
hazardous materials leak in the area”]; Michigan v. Bryant

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(2011) 562 U.S. 344, 368 [“Police officers in our society function
as both first responders and criminal investigators”].)
Yet judicial opinions and the public discourse routinely
embrace a more capacious understanding of “law enforcement,”
treating police officers as all but synonymous with “law
enforcement officers.” (See, e.g., Mary M. v. City of Los Angeles
(1991) 54 Cal.3d 202, 215, 216 [using both “law enforcement
officers” and “police officers” in discussing the reasons for
imposing vicarious liability on a public entity when such an
officer commits a sexual assault while on duty].) From this
vantage point, “active law enforcement service” plausibly refers
to the full range of work law enforcement officers do —
stretching far beyond the investigation of crime, the suppression
of criminal offenses, and the detention of criminals. It is this
subtle but meaningful distinction in what “law enforcement”
means that we must address at the outset.
We have good reasons to embrace, in this context, a more
capacious understanding of what “law enforcement service”
means. For reasons detailed below, we conclude that the term
“active law enforcement service” — as used in section 3366
— falls short of encompassing every conceivable function a
peace officer can perform. But neither is it quite so narrow that
we are compelled to hold it only applies to the arrest and
detention of criminals, or the direct suppression of crime. We
conclude that “active law enforcement service” includes a peace
officer’s duties directly concerned with functions such as
enforcing laws, investigating and preventing crime, and
protecting the public. Whatever the outer limits of the term,
“active law enforcement” certainly includes the arrest and
detention of criminals, as well as — given the range of reasons

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that ordinarily trigger emergency calls to police — responses to
emergency calls for unspecified assistance, such as Kristine’s
911 call for help. (See, e.g., Livingston, Police Discretion and the
Quality of Life in Public Places: Courts, Communities, and the
New Policing (1997) 97 Colum. L.Rev. 551, 559 [investigation,
arrest, and prosecution of those committing serious crimes is
“straightforward” police intervention]; see also id. at p. 567 [the
modern “ ‘crime-fighting’ ” strategy of policing includes rapid
response to 911 calls for service].)
Consider at the outset the structure of section 3366. It
applies when an individual is injured while engaged in active
law enforcement service, either on command or voluntarily at
the request of a peace officer. Government Code section 26604
indicates that sheriffs “shall command the aid” of inhabitants as
they think necessary to execute their duties. This authority for
calling forth citizens to aid in law enforcement is the posse
comitatus power. (Kopel, The Posse Comitatus and the Office of
Sheriff: Armed Citizens Summoned to the Aid of Law
Enforcement (2015) 104 J.Crim. L. & Criminology 761, 769–
806.) The posse comitatus power predates the nation’s founding
and has a complicated history. (Id. at pp. 792–793.) At the
federal level, the Fugitive Slave Act of 1850 contained posse
comitatus provisions enabling federal law enforcement officers
to compel northerners to assist in the capture of enslaved people
who had escaped bondage. (Id. at pp. 798–800.) After the Civil
War, the power was used in reverse to enforce civil rights
legislation in the Reconstruction south. (Id. at pp. 800–801.)
But the more familiar use of the posse comitatus power was the
western frontier version: where a sheriff summoned the posse
to pursue an escaped outlaw or confront a violent gang. (Id. at

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p. 802.) During this era, preservation of the peace did not fall
exclusively to peace officers. (Pressel, The Western Peace
Officer (1972) pp. 30–31.) On the frontier, preserving the peace
was public duty. (Ibid.) Amicus curiae Rural County
Representatives of California explains that unlike with the
large, organized police forces for urban centers, peace officers in
remote areas — like Trinity County — still rely on community
members to assist in ensuring community safety.
Until January 1, 2020, it was a misdemeanor for civilians
to refuse many of these commands for assistance. Penal Code
former section 150 established what assistance a peace officer
could command by criminalizing the failure to join the posse
comitatus, or power of the county. A peace officer could
command, with threat of criminal sanction, assistance in
making an arrest, recapturing an escapee, preventing a breach
of the peace, or preventing the commission of any other criminal
offense. (Pen. Code, former § 150.) These services are ones for
which an individual inherently exposes herself to risks in order
to protect the public. (See Gund, supra, 24 Cal.App.5th at p.
198.) So although section 3366’s implicit reference to Penal
Code former section 150 limits the type of services a peace officer
can command upon penalty of misdemeanor to services that
appear crime-facing, that reference does not necessarily limit
what assistance qualifies as active law enforcement service.
Sheriffs may still “command the aid of as many inhabitants of
the sheriff’s county as he or she thinks necessary in the
execution of his or her duties.” (Gov. Code, § 26604.) These
provisions suggest that the range of active law enforcement
services an officer can request, or command without the

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possibility of misdemeanor charges, may prove somewhat
broader than assistance with crime-fighting activity alone.
Section 3366, subdivision (a) contains additional language
bearing on our construction of “active law enforcement service.”
It deems individuals providing this “active law enforcement
service” as employees of the public entity they are serving “in
the enforcement of the law.” (Ibid., italics added.) This variation
on law enforcement service is consistent with the idea that the
statute covers a range of activity somewhat more limited than
all police work, and it reinforces the notion that coverage
extends only to those individuals undertaking certain explicit
action “in the enforcement of the law.” (Ibid.) Taken together,
section 3366 and Penal Code former section 150 are most
reasonably understood to suggest that the concept of active law
enforcement service, whatever its scope, may stop short of
covering all the general work of a police officer — including, for
instance, clerical work bearing a more remote relationship to
“the enforcement of the law” — but its purview is more capacious
than simply criminal investigation and prevention of specific
crimes.
The statute’s language, structure, and legislative history
also suggest a more capacious understanding of “active law
enforcement service” to encompass protection of civilians from
the kinds of physical threats to their well-being that could
plausibly expose volunteers to material risk of injury. The
statute provides compensation to individuals who sustain
injuries while assisting peace officers with such active law
enforcement service. (§ 3366, subd. (a).) Read in the context of
how workers’ compensation laws usually operate, section 3366
is best understood as an exception to an exclusion from coverage.

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(See § 3352, subd. (a)(9) [volunteers are not employees]; § 3366
[individuals engaging in active law enforcement service at the
request of a peace officer are employees].) Such exceptions to
exclusions are to be read broadly, consistent with the directive
to construe workers’ compensation provisions with the purpose
of extending coverage. (See Minish v. Hanuman Fellowship
(2013) 214 Cal.App.4th 437, 466, fn. 16 [citing Machado v.
Hulsman (1981) 119 Cal.App.3d 453, 455–456]; § 3202 [workers’
compensation provisions shall be liberally construed with the
purpose of extending benefits].)
Moreover, providing coverage through a workers’
compensation model means that, although the extent of
compensation may be limited, civilians can get that
compensation without fighting over the specifics of an officer’s
request for help or whether the request amounted to a negligent
misrepresentation. (§ 3600, subd. (a)(3).) Through this system,
determinations of coverage turn on whether an individual’s
injuries arose out of and in the course of the employment, rather
than on the subjective awareness of particular individuals.
(§ 3600, subd. (a).) This model makes it much simpler and
quicker for injured civilians to get compensation. It’s also
amenable to consistent application — as individuals engaged in
the same service will not face disparate coverage determinations
based on subjective factors, like their understanding of potential
risk. An overly narrow interpretation of active law enforcement
service, or one that turns on subjective factors, would leave
without recourse many individuals injured while obliging a
peace officer’s request for assistance, undermining its civilian-
protective purpose.

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This broader, civilian-protective interpretation also fits
with the statute’s history. The Law Revision Commission
proposed the bill enacting section 3366 in direct response to this
court’s 1961 decision in Muskopf v. Corning Hospital District
(1961) 55 Cal.2d 211 (Muskopf). In Muskopf, we abolished the
“vestigial remains” of common law sovereign immunity due to
its significant erosion over time. (Id. at p. 221.) In response, the
Legislature temporarily suspended Muskopf’s effect (Stats.
1961, ch. 1404, pp. 3209–3210) and directed the Law Revision
Commission to complete a study of the issue (see Assem. Conc.
Res. No. 22, Stats. 1957 (1956–1957 Reg. Sess.) res. ch. 202,
p. 4590). The Law Revision Commission considered a report by
Professor Arlo Van Alstyne about injuries sustained when
citizens aid police in law enforcement. (See A Study Relating to
Sovereign Immunity (Jan. 1963) 5 Cal. Law Revision Com. Rep.
(1963) pp. 404, 452–453.) Van Alstyne suggested that “the
elimination of possible misgivings as to financial consequences
in the event injury is sustained might conceivably tend to
promote more willing and wholehearted cooperation by citizens
when called upon to give aid in law enforcement.” (Id. at p. 453.)
Van Alstyne proposed alternative possibilities to compensate
citizens injured while providing that requested assistance:
absolute tort liability or limited workers’ compensation benefits.
(Id. at pp. 453–454.)
The Law Revision Commission chose to propose the
workers’ compensation benefits model, noting it was “better
policy to extend to such persons the same benefits and
protections that are provided to peace officers generally.”
(Recommendation Relating to Sovereign Immunity, Number
6 — Workmen’s Compensation Benefits for Persons Assisting

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Law Enforcement or Fire Control Officers (Jan. 1963) 4 Cal. Law
Revision Com. Rep. (1963) p. 1505, fn. 4 (Recommendation
Relating to Sovereign Immunity); see id., at pp. 1505–1506.)
The Law Revision Commission’s ultimate recommendation
suggested expanding coverage from only those commanded into
service to include those assisting upon request because “[m]any
people would assume that they are required to assist police
officers whenever requested to do so, and others would feel it
their civic duty whether required to by law or not.” (Cal. Law
Revision Com., Second Supp. to Mem. 23 (May 18, 1962) study
52(L), at p. 1.) The Law Revision Commission’s
recommendation elaborated that “[w]hen a person not trained
in law enforcement . . . is required by law to assume the risk of
death or serious injury to provide such protection to the public,
or when he undertakes to do so at the request of a peace
officer . . . , he and his dependents should be provided with
protection against the financial consequences of his death or
injury.” (Recommendation Relating to Sovereign Immunity,
supra, 4 Cal. Law Revision Com. Rep., at p. 1505.)
The bill’s author, Senator James A. Cobey, also served on
the Law Revision Commission — and he appears to have shared
this concern. In his floor statement, Senator Cobey echoed the
Law Revision’s Commissions recommendation that when
someone without law enforcement training “is required by law
to assume the risk of death or serious injury to provide such
protection to the public, or when he undertakes to do so at the
request of a peace officer . . . , he and his dependents should be
provided with some protection against the financial
consequences of his death or injury.” (Floor statement by
Senator James A. Cobey regarding Sen. Bill No. 47 (1963 Reg.

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Sess.) (Cobey Floor Statement).) He also included this same
language in his letter to Governor Edmund Brown. (James A.
Cobey, Senate Bill Author, letter to Governor Edmund G.
Brown, June 21, 1963 (June 1963 Cobey Letter).)
A complementary concern familiar from the history and
underlying logic of workers’ compensation was also at play in
the legislative drafting process: limiting expansive liability for
public agencies. Senator Cobey repeatedly explained that the
exclusive remedy provision of the workers’ compensation
scheme “will prevent such persons from bringing civil actions for
damages and will eliminate the possibility of public entities
having to pay catastrophic judgments.” (Cobey Floor Statement,
supra; and June 1963 Cobey Letter, supra.) The legislative
analysis for the bill also notes that using the workers’
compensation system responds to a lack of uniformity of law and
practice in an area that “contains large potential liability.”
(Legis. Analyst, analysis of Sen. Bill No. 47 (1963 Reg. Sess.) as
amended May 3, 1963, p. 1.) That limiting the extent of public
agency liability was a guiding concern for the Legislature is no
surprise, as section 3366 was enacted as part of a restructuring
of governmental immunity after Muskopf.
When eventually enacted by the Legislature, the bill
containing section 3366 was almost identical to what the Law
Revision Commission had embraced. (Compare Stats. 1961, ch.
1684, § 2, p. 3306 with Recommendation Relating to Sovereign
Immunity, supra, 4 Cal. Law Revision Com. Rep., at p. 1506.)
Reading the Law Revision Commission’s deliberation alongside
the legislative history, and what we can glean from the structure
of the statute, we discern three purposes that the legislation
appears crafted to serve: (1) creating an incentive for

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individuals to provide requested law enforcement service;
(2) compensating, without concern for fault, someone who is
injured while assisting a peace officer with law enforcement
duties; and (3) limiting the state’s financial exposure.
These goals are best served by a more capacious
understanding of “active law enforcement service.” The
workers’ compensation model makes the public agency liable for
the costs of the injuries of people assisting police with requested
active law enforcement service, whether or not the requesting
officer was ultimately at fault. (§ 3600, subd. (a)(3); see also
Shoemaker, supra, 52 Cal.3d at p. 16.) By expanding
availability of workers’ compensation, the bill tended to make it
easier for individuals to provide assistance, instead of triggering
the complexities inherent in making coverage turn on whether
individuals correctly discerned whether they were being
commanded or requested to provide assistance. This latter
scenario is one the Law Revision Commission sought to avoid.
The simpler, quicker availability of these benefits can
incentivize individuals to oblige a peace officer’s request for
help, because they will ostensibly be less concerned with the
financial consequences of potential injury or death.
Moreover, because peace officers and citizens providing
requested assistance may not always know the extent of risk a
response implicates, the bill appears to make workers’
compensation coverage available whenever a peace officer
requests assistance in “active law enforcement service” — as law
enforcement duties often entail a risk of injury. (§ 3366, subd.
(a) [“engaged in assisting any peace officer in active law
enforcement service at the request of such peace officer”].) What

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coverage under section 3366 depends on is the nature of the
requested assistance.
B.
A more expansive interpretation of active law enforcement
service — covering tasks that objectively qualify as a peace
officer’s law enforcement duties directly concerned with
functions like enforcing laws, investigating and preventing
crime, and protecting the public — is also consistent with
previous opinions interpreting section 3366, and related
provisions of the Labor Code. (See McCorkle v. City of Los
Angeles (1969) 70 Cal.2d 252, 263, fn. 11; Page v. City of
Montebello (1980) 112 Cal.App.3d 658.) In McCorkle, we
concluded that an individual who assists an officer by simply
providing “facts within his own knowledge” does not provide
active law enforcement service because “[t]he legislative
purpose of [section 3366] was to cover a person who assumes the
functions and risks of a peace officer.” (McCorkle, supra, 70
Cal.2d at p. 263, fn. 11.) Whatever the ultimate scope of law
enforcement duties is, it does not include the assistance
provided in McCorkle. In Page, the Court of Appeal accepted the
Workers’ Compensation Appeals Board’s determination that an
informant who assisted in apprehending individuals dealing
narcotics provided active law enforcement service. (Page, supra,
112 Cal.App.3d at pp. 661–662.) These cases are consistent with
the idea that active law enforcement service encompasses tasks
undertaken to protect the public in addition to those directly
concerned with enforcing the law or investigating and
preventing crime. This construction further vindicates the
purpose of the provision’s enactment: to mitigate the financial

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consequences for individuals assuming the law enforcement
duties and risks of police officers.
The phrase “active law enforcement service” appears
elsewhere in the Labor Code. (See, e.g., §§ 3212.6, 3212.9, 4850.)
When a phrase appears in two statutes dealing with the same
subject matter, we usually interpret the phrase to have the same
meaning across the provisions. (People v. Villatoro (2012) 54
Cal.4th 1152, 1161.) Section 4850, subdivision (a) provides for
a paid leave of absence in lieu of temporary disability payments
for individuals holding positions listed in subdivision (b) if they
are injured in the course of their duties. Subdivision (b)
includes, among others, city police officers, firefighters, sheriffs,
officers or employees of sheriff’s offices, and certain personnel in
a district attorney’s office. But subdivisions (c)(1), (c)(2), and
(c)(3) of section 4850 exclude employees of certain offices “whose
principal duties are those of a telephone operator, clerk,
stenographer, machinist, mechanic, or otherwise, and whose
functions do not clearly come within the scope of active law
enforcement service.”
As with the cases interpreting section 3366, we can
discern from cases parsing “active law enforcement service”
when it appeared in an earlier version of section 4850 an
awareness of the Legislature’s purpose to protect employees
taking on physical hazards on behalf of the public. (See, e.g.,
Kimball v. County of Santa Clara (1972) 24 Cal.App.3d 780, 785
(Kimball); Biggers v. Workers’ Comp. Appeals Bd. (1999) 69
Cal.App.4th 431, 440–441 (Biggers).) Biggers focused on this
notion, noting that courtroom bailiffs provide active law
enforcement service because they expose themselves to hazards
as they protect the public — for example, by confiscating guns

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and knives and having contact with inmates. (Biggers, supra,
69 Cal.App.4th at pp. 440–441.) Interpreting active law
enforcement service to reach tasks a police officer undertakes to
enforce the law, investigate and prevent criminal activity, or
protect the public is consistent with enhanced coverage for
police officers: Guarding against loss of livelihood tends to make
individuals more likely to undertake these types of law
enforcement duties — which provide public benefit but are often
dangerous. Whatever its ultimate scope, the investigation and
prevention of criminal activity constitute ready examples of how
an individual may provide active law enforcement service.
These Labor Code provisions further buttress the case for
reading “active law enforcement service” in section 3366 as a
broad reference to a peace officer’s duties directly concerned
with functions such as enforcing laws, investigating and
preventing criminal activity, and protecting the public. Section
4850 draws certain distinctions relevant here by categorically
establishing positions subject to coverage and excluding from
coverage positions whose primary duties are routine and
clerical. (See § 4850, subds. (b), (c).) Sections 3212.6 and 3212.9
have similar structures. Some positions merit enhanced
coverage under distinctions drawn by the statute, while others
are expressly excluded. But section 3366 does not address the
principal duties of a full-time employee; it establishes a special
circumstance in which an otherwise uncovered individual may
receive workers’ compensation. Neither the statute nor any
relevant prudential principle makes the interpretive question
here turn on whether a volunteer performs a “principal duty” of
law enforcement officer. Simply asking if a civilian performed
one of a peace officer’s principal duties could trigger

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unnecessarily intricate questions not only about the limits of
principal duties, but about whether that question should be
resolved by focusing on the actions of individual officers or
larger bureaucratic units. A test that pivots on “principal
duties” would also virtually guarantee that compensable
activities would include those less directly connected to law
enforcement, such as filling out a report or engaging in
community outreach. Instead of asking if the civilian performed
any task that could conceivably be described as a principal duty
of a law enforcement officer, we must determine under section
3366 whether the type of task an officer requests constitutes a
duty directly concerned with enforcing the laws, investigating or
preventing criminal activity, or protecting the public.
Certain Government Code provisions, both current and
former, also use the phrase “active law enforcement service” to
establish which employees are eligible for various benefits. (See,
e.g., Gov. Code, §§ 20436, subd. (a), 31469.3, subd. (b), 31470.3;
see id., former §§ 20019, 20020.) As with the Labor Code, the
term is undefined. In outlining which government employees
are eligible for particular retirement benefits, Government Code
former sections 20019 and 20020 provided coverage for local
“ ‘ “safety members,” ’ ” including “ ‘all local policemen.’ ”
(Crumpler v. Board of Administration (1973) 32 Cal.App.3d 567,
576 (Crumpler), quoting Gov. Code, former § 20019.) The term
“ ‘ “[l]ocal policemen” ’ ” meant “ ‘any officer or employee of a
police department of a contracting agency, except one whose
principal duties are those of a telephone operator, clerk,
stenographer, machinist, mechanic, or otherwise and whose
functions do not clearly fall within the scope of active law
enforcement service even though such an employee is subject to

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occasional call, or is occasionally called upon, to perform duties
within the scope of active law enforcement service.’ ” (Crumpler,
at p. 576, italics and fn. omitted, quoting Gov. Code, former
§ 20020.)
Courts of Appeal construing active law enforcement for
purposes of these Government Code provisions also discuss the
physical hazards of law enforcement activity. (See, e.g.,
Crumpler, supra, 32 Cal.App.3d at p. 578; Neeley v. Board of
Retirement (1974) 36 Cal.App.3d 815, 822 (Neeley).) But in
Crumpler, the Court of Appeal concluded that active law
enforcement service means “the active enforcement and
suppression of crimes and the arrest and detention of criminals,”
with specific attention to crimes against people or property.
(Crumpler, supra, 32 Cal.App.3d at p. 578; see id., at pp. 578–
579.) Supporting this conclusion, the Court of Appeal discussed
a formal opinion from the Attorney General contending that
“active law enforcement service” in these Government Code
provisions does not extend to everything a police officer does, but
rather is limited to physically active work — such as the arrest
and detention of criminals — that exposes officers to physical
risk. (Id. at p. 577, citing 22 Ops.Cal.Atty.Gen. 224, 229.) The
Court of Appeal in Boxx v. Board of Administration (1980) 114
Cal.App.3d 79 also focused on criminal investigation, finding
that a Housing Authority of the City of Los Angeles (HACLA)
officer provided active law enforcement service because he was
required to make arrests for criminal activity occurring in and
around HACLA property. (Id. at p. 86.) Although these cases
discuss crime suppression and investigation, they ground much
of their reasoning in exposure to hazard to provide public
protection. Read in this light, action meant to prevent specific

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criminal activity — by showing a potential perpetrator that a
would-be victim is not isolated, for example — constitutes a
common and readily available example, rather than the
exclusive category, of the hazards the covered public employees
undertake. (See Glover v. Bd. of Retirement (1989) 214
Cal.App.3d 1327, 1333 [“The common thread running through
cases [that interpret the term ‘safety member’] is the concept
that the classification of a ‘safety member’ engaged in active law
enforcement is largely controlled by the extent to which the
category exposes its holders to potentially hazardous activity”].)
The term “active law enforcement service,” then,
encompasses the duties of peace officers directly concerned with
enforcing the laws, investigating and preventing criminal
activity, and protecting the public. These Labor Code and
Government Code provisions, and their associated appellate
court cases, underscore that “active law enforcement service” is
best understood as capacious — but not entirely open ended —
to include these core public protection, enforcement, and crime-
fighting functions. Drawing precise lines to define these
functions is a task we can leave for another day. For today, it’s
enough to conclude that responding to a 911 call for assistance
of an unknown nature — which possibly includes responding to
criminal activity — falls well within the lines defining “active
law enforcement service.”
C.
Responding to a 911 call for assistance of an unknown
nature is what the Gunds did, so they are properly deemed
employees under section 3366. In applying our two-step
framework here, we first ask whether Corporal Whitman asked
the Gunds to assist with a type of task that qualifies as active

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law enforcement service. For purposes of our review, there is no
dispute that the Gunds acted at Corporal Whitman’s request.
The dispute centers on whether the requested assistance
amounts to active law enforcement service, which we conclude
encompasses tasks within a peace officer’s duties to investigate
and prevent crime, enforce the laws, and protect the public.
At its core, the request from Corporal Whitman was that
the Gunds respond to a 911 call for help of an unspecified
nature. Responding to a 911 call for unspecified help serves a
vital public protection purpose. As the Gunds assert, Corporal
Whitman explained that Kristine called 911 seeking help.
Because he was far away, Corporal Whitman sought the Gunds’
help to check on Kristine at her home. That Corporal Whitman
or one of his law enforcement colleagues would ordinarily
provide such a response is unremarkable and uncontroversial.
Whatever the limits of “active law enforcement service” under
section 3366 as we defined the phrase above, the requested
service here falls within it.
The specific details of the exchange between Corporal
Whitman and Mrs. Gund do not change the essential nature of
his request that the Gunds respond to a 911 call for unspecified
help. After requesting Mrs. Gund’s assistance, Corporal
Whitman implored her not to go alone to Kristine’s home, which
prompted her to ask what Kristine said in the 911 call. Corporal
Whitman relayed that Kristine said, “Help me.” Mrs. Gund
asked, “Are you sure? Is that all she said?” Corporal Whitman
confirmed, “[S]he said two words, ‘Help me.’ ” Corporal
Whitman made clear he did not know the reason for Kristine’s
call for help. After learning the Gunds were familiar with
Kristine’s property because they had assisted the previous

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owner with snow and fallen trees, Corporal Whitman noted
there was a big storm coming. He said, “[t]hat must be what
this is all about. It’s probably no big deal.” But he followed by
asking Mrs. Gund if she knew Kristine’s boyfriend and if he ever
seemed violent. Mrs. Gund replied that she “didn’t know,” but
offered that “[h]e seemed real mellow.” Despite Corporal
Whitman’s assessment that there was likely a weather
emergency and that it was “probably no big deal,” his general
request was still one for a response to a 911 call for help of an
uncertain nature.5
The dissent treats Corporal Whitman’s assessment that
Kristine’s 911 call “must be” weather related and “probably no
big deal” as an assurance to the Gunds about what awaited them
at their neighbor’s home. (Dis. opn., post, at p. 5.) But Corporal
Whitman also conveyed that Kristine had said two words,
“ ‘Help me.’ ” He used equivocal language to assess the
situation, noting that the issue “must be” weather-related and
that it was “probably no big deal.” After this speculation, he
asked whether Kristine’s boyfriend seemed violent. Though it
may have been eminently sensible for the Gunds to conclude
Kristine was likely having a weather-related emergency based
on this assessment, that sensibility did not convert the
requested assistance in response to a 911 call for unspecified

5 The dissent claims our conclusion does not consider
relevant “the words, facts, and context” of a peace officer’s
request. (Dis. opn., post, at p. 17; see also id. at pp. 4, 5, 8–9.)
We conclude instead that the information discussed in Corporal
Whitman’s call to Mrs. Gund did not alter the essential nature
of the requested task — which remained a response to a 911 call
for help of an uncertain nature and, thus, “active law
enforcement service.”

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help into a request concerning a weather-related issue that
could conceivably prove beyond the scope of “active law
enforcement service.”
Under these circumstances, Corporal Whitman’s
omissions — Kristine’s whispering, the CHP dispatcher’s belief
the call was secret, and the county dispatcher’s return calls
going straight to voicemail — may have provided additional
context for the Gunds to suspect they might encounter a
dangerous situation. But these omissions do not change our
conclusion that Corporal Whitman’s request was that the Gunds
respond to a 911 call for unspecified help — a typical law
enforcement task often associated with investigation of possible
criminal activity, response to such activity, or protection of the
public.6 (See, e.g., Crumpler, supra, 32 Cal.App.3d at p. 577,
citing 22 Ops.Cal.Atty.Gen. at p. 229.)

6 The dissent takes our conclusion to mean that
misrepresentations — even lies — do not matter in situations
where police request assistance from volunteers. (Dis. opn.,
post, at pp. 3, 5, 8–10.) But our conclusion isn’t that
misrepresentations are irrelevant — it’s that even viewing the
facts in the light most favorable to the Gunds, Corporal
Whitman’s request remained one for active law enforcement
service. Nor do we foreclose the possibility that
misrepresentations may affect the availability of other remedies
such as tort actions. (See post, at pp. 32–33, 33, fn. 7.) The
dissent’s conclusion seems to be instead that the presence of an
alleged misrepresentation can by itself remove an activity from
even possibly being within the scope of “active law enforcement
service.” (Dis. opn., post, at pp. 3, 4–6, 9, 16–17.) But it’s worth
bearing in mind that even as the Gunds here seek to limit the
purview of workers’ compensation so they can pursue what they
consider to be a viable tort claim, many injured volunteers lack

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We next ask whether the Gunds were injured while
engaged in assisting with that law enforcement service —
mirroring the typical workers’ compensation requirement that
an injury arise out of and in the course of employment. (§ 3600,
subd. (a)(3).) There is no question the Gunds “engaged in
assisting” Corporal Whitman. And they sustained their injuries
while responding, as requested, to a 911 call for help, an active
law enforcement task. After entering Kristine’s home, the
Gunds faced her murderer, who cut their throats and punched
and tased Mr. Gund.
Under these circumstances, Corporal Whitman requested
that the Gunds assist in active law enforcement service, and the
Gunds were injured in the course of providing that service.
Section 3366 applies, and workers’ compensation benefits are
the Gunds’ exclusive state law remedy. (§ 3602, subd. (a).)
III.
We have established that the state has liability for the
Gunds’ injuries under workers’ compensation because they were
injured in the course of assisting with active law enforcement
service at the request of a peace officer. The Gunds nonetheless
argue that any misrepresentation by the requesting officer
about the nature of the risk involved trumps the application of
this statutory test.

a viable tort claim and must instead make do with workers’
compensation or nothing. The last thing we should imply is that
police are free to conveniently gerrymander the scope of section
3366 simply by baking into their requests for volunteer
assistance misrepresentations creating enough ambiguity for a
reasonable person to conclude the task does not involve “active
law enforcement service.”

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Corporal Whitman’s misrepresentations matter, the
Gunds allege, because whether they engaged in active law
enforcement depends in part on what they subjectively believed
to be true about Kristine’s 911 call and their provided service.
To support this proposition, the Gunds rely on the plurality
opinion in People v. Ray (1999) 21 Cal.4th 464 (lead opn. of
Brown, J.) (Ray). This reliance is misplaced. Ray is a Fourth
Amendment case concerning the community caretaking
function exception to the warrant requirement for a search. (See
id. at pp. 467–468.) In the Fourth Amendment context, a
plurality opinion concluded that the community caretaking
exception to the warrant requirement does not apply where a
stated reliance on property protection is pretext for a crime-
solving rationale. (Id. at p. 477.) There, the subjective and
reasonable belief of the officer directs whether the exception
applies. (Id. at pp. 476–477.)
But nowhere on the textured surface of section 3366 is
there a place onto which we can graft a subjective
understanding component. First, community caretaking does
not incorporate subjectivity in a way that supports a place for it
in this scheme. We recently disapproved the lead opinion in
Ray, rejecting its rationale for allowing warrantless entries
under the community caretaking doctrine. (People v. Ovieda
(2019) 7 Cal.5th 1034, 1038.) Second, Ray does not interpret
section 3366 or any other California statute with the phrase
“active law enforcement service,” and, unlike Ray, the present
case does not interpret federal constitutional law. Third,
California cases that have construed the phrase “active law
enforcement service” in other statutes considered what an
individual actually did, suggesting an objective inquiry. (See

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Neeley, supra, 36 Cal.App.3d at p. 818, fn. 2; Biggers, supra, 69
Cal.App.4th at p. 441.) Determining whether an individual
provides active law enforcement service remains an objective
inquiry. As we concluded above, the alleged omissions may have
provided more information as to the danger the Gunds faced,
but they do not change our conclusion that Corporal Whitman’s
request that the Gunds respond to a 911 call for help is a task
within the law enforcement duties of a peace officer, and
therefore a request for active law enforcement service.
The Gunds seem to imply that misrepresentations matter
because they bear on whether an individual subjectively
understood the hazards involved in assisting an officer. This
approach risks consequences that are difficult to justify. Under
their approach, the subjective understanding of an individual
request would be central to our analysis. That would potentially
leave individuals providing the same type of assistance with
different coverage determinations depending on the specifics of
a request or the individual’s ability to assess the risks inherent
in the type of requested service.
The Gunds additionally contend that section 3366 does not
apply when a plaintiff alleges that a request for assistance
contains misrepresentations, because the misrepresentations
render any assistance involuntary. They rely on Moyer v.
Workmen’s Comp. Appeals Bd. (1973) 10 Cal.3d 222 for this
proposition. But their reliance on Moyer is misplaced. In Moyer,
we discussed an employee’s choice to accept a rehabilitation
program for which section 139.5 required such acceptance to be
“ ‘voluntary and not be compulsory.’ ” (Id. at p. 229.) Moyer does
not bear on whether an individual voluntarily provides active
law enforcement service.

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Furthermore, even when an employer intentionally
conceals and misrepresents hazards in order to induce an
individual to accept employment, workers’ compensation is the
individual’s exclusive remedy. (See Cole v. Fair Oaks Fire
Protection Dist. (1987) 43 Cal.3d 148, 157–158 (Cole); Wright v.
FMC Corp. (1978) 81 Cal.App.3d 777, 779; Buttner v. American
Bell Tel. Co. (1940) 41 Cal.App.2d 581, 584.) In Cole, we
explained that an employer’s intentional and deceitful conduct
should not take an action outside of the workers’ compensation
system because it would convert the focus of litigation into an
issue of the employer’s state of mind and away from whether the
injury arose out of and in the course of employment. (Cole,
supra, 43 Cal.3d at p. 158.) We reasoned that allowing actions
for damages based on the employer’s state of mind would
significantly disturb the balance of the workers’ compensation
system: swift and certain payment for the injured employee in
exchange for the employer’s immunity from liability at law.
(Ibid.) Put differently, allowing allegations of
misrepresentation to take claims like this outside the workers’
compensation system would disturb the carefully balanced
scheme the Legislature designed.
A plaintiff may, however, allege a tort claim under
circumstances not argued here. A plaintiff may pursue tort
claims for intentional misconduct that has only a questionable
relationship to the employment, an injury that did not occur
while the employee was performing a service incidental to and
a risk of the employment, or where the employer stepped out of
its proper role. (Fermino v. Fedco, Inc. (1994) 7 Cal.4th 702, 713
(Fermino) [citing Cole, supra, 43 Cal.3d at p. 161].) These types
of injuries are beyond the compensation bargain. (Fermino,

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supra, 7 Cal.4th at p. 714.) But these are not the types of
injuries the Gunds assert. Their assertion that Corporal
Whitman’s misrepresentations caused their injuries turns on
his state of mind and does not present a case in which he
engaged in some conduct beyond the employment-like
relationship created by section 3366. Also lying well beyond the
compensation bargain, and an exception to the exclusivity
provision, are injuries where the employer’s motive violates a
fundamental policy of the state. (Charles J. Vacanti, M.D. v.
State Comp. Ins. Fund (2001) 24 Cal.4th 800, 812.) The Gunds
assert that Corporal Whitman’s alleged misrepresentations
inducing their assistance constitute such a violation of
fundamental policy. We need not address that contention here,
though, because the Gunds did not raise this argument in the
trial court, the Court of Appeal, or their Opening Brief. The first
time the Gunds raise this argument is in their Reply Brief. This
argument is, therefore, forfeited. Our holding today does not
foreclose a civil action where this argument is properly raised.7
Finally, although workers’ compensation does not provide
the full menu of remedies available in tort, it is far from
meaningless. Injured civilians, like the Gunds, can receive
compensation for their injuries without having to fight over
what an officer communicated or whether it amounted to
negligence. (§ 3600, subd. (a)(3).) This is a simpler path to
compensation. The workers’ compensation scheme also
accounts for injuries resulting from employer misconduct.

7 Our holding also does not bear on the viability of claims
under Title 42 United States Code section 1983. (See Martinez
v. California (1980) 444 U.S. 277, 284, fn. 8 [“ ‘Conduct by
persons acting under color of state law which is wrongful under
42 U.S.C. § 1983 . . . cannot be immunized by state law’ ”)].)

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Section 4600, subdivision (a) provides for treatment “that is
reasonably required to cure or relieve the injured worker from
the effects of the worker’s injury.” And section 4553 provides
that the amount of coverage recoverable “shall be increased one-
half . . . where the employee is injured by reason of the serious
and willful misconduct” of certain agents of the employer. The
purpose of this provision is to provide “more nearly full
compensation to an injured employee” who is injured as a result
of such willful misconduct. (State Dept. of Correction v.
Workmen’s Comp. App. Bd. (1971) 5 Cal.3d 885, 889.) This
enhanced workers’ compensation benefit is available against
public employers. (Id. at p. 891.) This means that although the
workers’ compensation scheme allows more limited recovery
than what is available through tort litigation (see, e.g.,
Shoemaker, supra, 52 Cal.3d at p. 16), plaintiffs like the Gunds
may be able to recover more complete compensatory damages if
they are able to establish willful misconduct.
Simply alleging a request for assistance contained a
misrepresentation, without more, does not preclude application
of section 3366 and the exclusivity provision. Neither do
misrepresentations alter our construction of “active law
enforcement service,” which considers the type of task rather
than an individual’s subjective understanding of risk.
IV.
Section 3366 protects the public by spreading the costs of
injuries risked by the people who volunteer to assist police by
providing “active law enforcement service.” When members of
the public assist the police by performing a task within the
purview of officers’ conventional “law enforcement” duties —
those directly concerned with enforcing the laws, investigating

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or preventing crime, or providing public protection — members
of the public assuming the risk of helping are protected by
workers’ compensation just as police officers are. Both the
relevant words and underlying logic of the statute compel us to
understand “active law enforcement service” requested by a
peace officer in capacious terms. Encompassed by these words
are activities objectively associated with functions such as
public protection or criminal investigation and enforcement,
without regard to whether the requesting officer sufficiently
conveys the full extent of the risks or whether a volunteer
subjectively understands the risks police were asking her to
assume. This is the reading most consistent with section 3366’s
purpose as reflected in its language, structural logic, and
legislative history. Officers rightly concerned about public
protection would do well to help volunteers understand the risks
they may be assuming to assist in “active law enforcement
service,” but nothing in the statute renders the term malleable
enough to make access to workers’ compensation turn on the
contingency of whether volunteers understood they were
assuming substantial risk to assist in policing. Whatever the
ultimate limits of “active law enforcement service” in this
context, we cannot find a sensible rationale to exclude the
Gunds’ police-requested sortie to check on a neighbor who called
911 for unspecified help.
No one disputes the Gunds were selfless neighbors and,
when carrying out Corporal Whitman’s request, model citizens.
With little information, they agreed to help their neighbor in a
time of need. And they suffered mightily for providing that help.
But we cannot fashion a rule that somehow shrinks the scope of
workers’ compensation for the Gunds — effectively leaving them

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Opinion of the Court by Cuéllar, J.

with no remedy at all for their injuries if they lack a viable tort
claim — while keeping it robustly consistent with its
legislatively determined scope for countless other volunteers.
When injuries to a volunteer trigger provisions making society
bear the cost of those harms through workers’ compensation,
this means greater protection for volunteers assisting law
enforcement, and greater clarity for society about the costs it
must bear through its institutions when harms tragically occur.
Because the help the Gunds provided was active law
enforcement service, and the workers’ compensation bargain
offers protection with one hand even as it removes access to civil
recourse with the other, the only remedy available to the Gunds
is through workers’ compensation. This outcome makes it easier
for police to benefit from the public’s help, and ultimately, for
the public to benefit from the police’s help.
So we affirm the judgment of the Court of Appeal.

CUÉLLAR, J.

We Concur:
CANTIL-SAKAUYE, C. J.
CORRIGAN, J.
LIU, J.
KRUGER, J.

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 GUND v. COUNTY OF TRINITY
S249792

Dissenting Opinion by Justice Groban

On a small ranch in a remote area, near the end of winter,
Norma Gund received an unexpected call from Trinity County
Sheriff’s Corporal Ronald Whitman. Corporal Whitman told Ms.
Gund that her neighbor had called 911 asking for unspecified help.
After learning that Ms. Gund and her husband, James Gund, had
been to the neighbor’s house “many times” before to help the prior
owner with weather-related events such as “snow and fallen trees,”
Corporal Whitman remarked “There’s a big storm coming. That
must be what this is all about. It’s probably no big deal.” The
Gunds are a middle-aged couple who have no law enforcement
training or experience. But, having heard Corporal Whitman’s
assessment that the 911 call “must be” weather related and was
“probably no big deal,” the Gunds readily obliged with his request
to go check on their neighbor.
While driving to their neighbor’s house, the Gunds
speculated that their neighbor — “a young, naïve city girl” who had
just recently moved to the area — might be having trouble
operating her wood-burning stove or, perhaps, a tree had fallen on
her house. Unbeknownst to the Gunds, Corporal Whitman had
omitted crucial facts including that their neighbor had whispered
on the 911 call; had desperately repeated “help” over and over
again before abruptly ending the call; and the Highway Patrol
dispatcher who had received the call was leery of calling the
neighbor back because it sounded like “she’s trying to hide the fact
that she’s calling [911] from somebody.” Corporal Whitman also

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Groban, J., dissenting

failed to mention that a different dispatcher had nevertheless twice
attempted to call the neighbor back, but those calls went
unanswered.
Oblivious to any potential risk and thinking she was about to
assist a neighbor with a nondangerous task, Ms. Gund entered the
neighbor’s house alone and unarmed while Mr. Gund waited in the
car. Inside the house, a murderer had just killed the Gunds’
neighbor and her boyfriend. The still-present murderer
immediately attacked Ms. Gund with a stun gun and a knife,
brutally slashing her throat and face. Upon hearing the
commotion, Mr. Gund got out of the car and approached the house.
He saw the murderer cutting his wife and, when he ran inside to
try to protect her, the murderer began to attack Mr. Gund. Ms.
Gund fled the scene and frantically drove to a nearby store to seek
help. Meanwhile, Mr. Gund fought for his life as the murderer
repeatedly “Tased” him, punched him, and cut his throat.
Somehow, Mr. Gund managed to wrestle the knife out of the
murderer’s hands and escaped by running through the woods back
to his home. The Gunds suffered near-fatal injuries but
miraculously survived.
Based on the belief that the Gunds were providing “active law
enforcement service” (Lab. Code, § 3366, subd. (a)) when they
became the unwitting victims of this horrific crime, the majority
holds that the Gunds are limited to workers’ compensation and
cannot sue in tort to recover damages for their injuries. The
majority’s view is premised on an assumption I cannot accept: An
unarmed, untrained middle-aged couple, by stumbling upon an
active murder scene, were in fact working as law enforcement
officers. In reality, neither the Gunds nor Corporal Whitman
reasonably believed that, by asking the Gunds to check on the

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Groban, J., dissenting

neighbor to help with a weather-related event, Corporal Whitman
was actually asking the Gunds to perform a law enforcement
officer’s job of investigating a crime, arresting a criminal, or
performing some other particularly hazardous task for the
protection of the public. The Gunds’ understanding was objectively
reasonable in light of Corporal Whitman’s opinion that the call
“must be” all about a big storm coming and was “probably no big
deal.” But in the majority’s view, Corporal Whitman’s assessment
of the nature of the 911 call does not matter. Corporal Whitman’s
failure to inform the Gunds that their neighbor had whispered on
the 911 call does not matter. Corporal Whitman’s failure to inform
the Gunds that the neighbor had desperately repeated “help” over
and over again before abruptly ending the call does not matter.
Corporal Whitman’s failure to inform the Gunds that the county
dispatcher’s return calls went unanswered does not matter. The
Gunds’ prior experiences in helping with weather-related events at
the neighbor’s house does not matter. Even lies do not matter.
I disagree.
I. DISCUSSION
I begin by noting the points on which I agree with the
majority, as our agreement is considerable. I agree with the
majority’s proposed two-part test to determine whether Labor Code
section 3366, subdivision (a) (section 3366) applies. (Maj. opn.,
ante, at p. 8.) I also agree that the peace officer’s request informs
the determination of whether section 3366 applies. (Maj. opn.,
ante, at pp. 8, 23.) I agree that the civilian’s subjective beliefs
regarding the nature of the requested assistance or its attendant
risks are irrelevant. (Id. at pp. 30–31.) I further agree that the
question of whether a peace officer requested the civilian to assist
with a task that qualifies as active law enforcement service is an

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Groban, J., dissenting

objective inquiry. (Id. at pp. 20, 30–31.)1 Finally, I agree that a
request to investigate possible criminal activity is a request for
active law enforcement service. (Maj. opn., ante, at p. 25.)
My disagreement lies with the majority’s conclusion that the
“specific details” of the exchange between Corporal Whitman and
Ms. Gund “do not change the essential nature of his request.” (Maj.
opn., ante, at p. 26.) In my view, the details change everything.
The majority frames its test to determine whether something
qualifies as active law enforcement service at an exceedingly high
level of generality, first by describing the phrase as “capacious” (id.
at pp. 11, 14, 19, 25, 35) and then by focusing on only the “essential
nature of the requested task” (id. at p. 27, fn. 5). But if we agree
that “ ‘the words, facts, and context’ of a peace officer’s request”
matter (ibid.), then the “specific details” (id. at p. 26) of the
exchange between Ms. Gund and Corporal Whitman should matter
too. I do not understand why the majority limits its inquiry by
excluding any analysis of what the parties objectively understood
about the nature of the requested task. While I agree with the
majority that the inquiry is objective, I would formulate the
objective test differently. We should examine everything that was
said, and everything that was not said, when Corporal Whitman
made his fateful request of the Gunds, and ask whether an

1 The majority describes the Gunds’ position as being
premised on “what they subjectively believed to be true about
[their neighbor’s] 911 call” (maj. opn., ante, at p. 30) and whether
they “subjectively understood the hazards involved in assisting
an officer” (id. at p. 31). I do not interpret the Gunds’ argument
in the same way. The Gunds seem to agree the inquiry is
objective, asserting that the question is “whether a reasonable
person . . . would reasonably perceive a need for assistance
related to the enforcement of law or suppression of crime” based
on Corporal Whitman’s request.

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Groban, J., dissenting

objectively reasonable person would understand his request to be
one for assistance with a task that qualifies as active law
enforcement service.
While I believe many requests to respond to a 911 call of an
uncertain nature will objectively be understood as a request for
assistance with active law enforcement service, Corporal
Whitman’s request was different. Corporal Whitman expressly
characterized the nature of the call, assuring Ms. Gund that the
request “must be” about “a big storm coming” and was “probably no
big deal.” He also failed to relay to Ms. Gund critical details of the
911 call that would make her aware of the true nature of the
request and the potential danger. The majority believes that this
context does not matter. I believe it is crucial. Indeed, the
Legislature recognized in enacting section 3366 that peace officers
are authority figures that most people respect, trust, and obey.
(Second Supp. to Mem. No. 23 (1962), Subject: Study No. 52(L) –
Sovereign Immunity (Workmen’s Compensation for Persons
Assisting Peace Officers) (May 18, 1962) Cal. Law Revision Com.
(1962) p. 1 (hereafter Second Supplement To Memorandum 23)
[recognizing that many people would feel it was their “civic duty”
to assist a police officer whenever requested to do so].) Thus, at the
core of section 3366 is an acknowledgment that civilians give
considerable deference to peace officers. Although the majority
observes this principle (maj. opn., ante, at p. 17), it ultimately
devalues it by discounting the import of Corporal Whitman’s
representation to Ms. Gund that the call “must be” related to the
weather. But if we agree that the inquiry is objective rather than
subjective, and if we agree that any civilian receiving such a
request would likely defer to the authority of the peace officer, then
Corporal Whitman’s judgment as to what the 911 call “must be”

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Groban, J., dissenting

about is key. Corporal Whitman — the person with law
enforcement experience and the person who had spoken directly
with a dispatcher regarding the 911 call — told Ms. Gund that the
call “must be” related to the weather and was “probably no big
deal.” The Gunds had every right to believe him.2
I also cannot accept the majority’s conclusion that Corporal
Whitman’s alleged omissions would simply have provided “more
information” to the Gunds. (Maj. opn., ante, at p. 31.) This, in my
view, is a significant understatement. The majority and I agree
that the inquiry here is an objective one, but I believe that this
inquiry should take into account the relevant facts and
circumstances of the particular case. We must therefore ask
ourselves if an objectively reasonable person would consider the
following facts to be material in determining the type of assistance
requested and whether to agree to render the requested assistance:
(1) the 911 caller had desperately repeated “help” over and over
again before abruptly ending the call; (2) the Highway Patrol
dispatcher who had received the call was leery of calling the
neighbor back because it sounded like “she’s trying to hide the fact
that she’s calling [911] from somebody”; and (3) the Trinity County
dispatcher had nevertheless twice attempted to call the neighbor
back, but those calls went unanswered. We should further ask
ourselves whether a reasonable person would have found these
facts to be highly relevant before deciding whether to enter the

2 The majority emphasizes that Corporal Whitman advised
Ms. Gund not to go to her neighbor’s house alone (maj. opn.,
ante, at p. 26), but this advice came before he rendered his
opinion that the call was “probably no big deal.” And, although
Corporal Whitman also asked Ms. Gund whether the caller’s
boyfriend had ever seemed violent, Ms. Gund replied “he seems
real mellow.”

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Groban, J., dissenting

home, alone and unarmed. Possessed of these details, would Mr.
Gund really have chosen to wait in the car while sending his wife
into the neighbor’s house alone?
To accept the majority’s holding that the Gunds were asked
to and did in fact engage in an inherently dangerous law
enforcement task, one must accept its implicit suggestion that the
Gunds acted incredibly recklessly by having Ms. Gund walk in to
the home unarmed, with little or no preparation, while her
husband waited in the car. One must also accept the majority’s
implicit, if not explicit, assumption that Corporal Whitman asked
two untrained, unarmed middle-aged civilians to risk injury or
death to “investigate and prevent crime, enforce the laws, and
protect the public” (maj. opn., ante, at p. 26) without the aid of
trained law enforcement officers. Even the Trinity County Sheriff’s
Department denied that it would ever do such a thing, stating in a
press release issued shortly after the incident that it would never
“send a citizen to perform a Deputy’s job.” (Sabalow, This couple
was attacked by knife-wielding killer. Did their sheriff put them in
harm’s way?, Sacramento Bee (Aug. 29, 2018)
[as
of August 27, 2020] (hereafter Sabalow).) 3 I believe that a
reasonable person, upon hearing Corporal Whitman’s description
of the 911 call — which characterized the call as “no big deal” and
weather related and omitted crucial details that would have
alerted the Gunds to the potential danger — would not have
understood Corporal Whitman’s request to be seeking help with

3 All Internet citations in this opinion are archived by year,
docket number, and case name at .

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Groban, J., dissenting

“the investigation and prevention of criminal activity.” (Maj. opn.,
ante, at p. 22.)
The majority at one point suggests that misrepresentations
may matter if they alter the “essential nature of the requested
task” (maj. opn., ante, at p. 27, fn. 5; see id. at p. 28, fn. 6), but then
it later implies that misrepresentations are irrelevant since
workers’ compensation is the exclusive remedy even where
employees allege that their employers intentionally
misrepresented the hazards of employment in order to induce them
to accept employment (id. at pp. 31–32).4 Though the majority does
not explain how to distinguish between misrepresentations that go
to the “essential nature of the requested task” (id. at p. 27, fn. 5)
from other kinds of misrepresentations, I understand that the
majority may be rightly concerned about a holding that concludes
that misrepresentations are never relevant to the analysis. The
majority may also be wary of creating a bright-line rule under
which all responses to 911 calls would constitute active law
enforcement service, as some clearly do not. Many 911 calls verge
on the absurd, with callers complaining about the size of clams
served at a restaurant, cats stuck under the hood of a car, or a lack
of internet service. (Jarosz, Abuse of 911: Alarming number of
callers use emergency service as customer service line, KTVU Fox 2
(Sept. 25, 2018) [as of August 27, 2020].) The majority considers the
context and content of the request, but only to determine whether
the peace officer conveyed a request to respond to a 911 call seeking
unspecified help. It therefore appears to conclude that all
responses to 911 calls of an uncertain nature constitute active law
enforcement as a matter of law, irrespective of whether the parties
to the request themselves understood that the response would
require members of the public to assume the functions and risks of
a peace officer. But the majority cannot have it both ways: If the
context and content of what was known and conveyed as part of the
peace officer’s request matters in some instances, then it must
matter in all instances. I certainly think it matters here.
I do not mean to suggest that Corporal Whitman
intentionally misrepresented the true nature of the situation or
wished the Gunds any harm. Corporal Whitman was hours away
from the 911 caller’s home and may have simply been trying to find
a solution to a very difficult dilemma. Nevertheless, as a general
matter, if a peace officer’s misrepresentations and omissions
regarding the nature of the 911 call or the requested assistance
may be ignored (see maj. opn., ante, at pp. 31–32), then a peace
officer could intentionally lie about the potential danger involved
and assure the civilian that no harm will come to him or her, and
the civilian still would be unable to pursue a remedy in tort. Under
the majority’s holding, if the peace officer requests assistance with
a task that entails a possibility of requiring a law enforcement
response, then the civilian is bound by section 3366 regardless of
what the civilian reasonably understood about the nature of the
requested task in light of the peace officer’s misrepresentations.
This cannot be right.

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To illustrate this quandary further, consider the disparate
results that would likely result under the majority’s holding in the
following two scenarios: Suppose a peace officer requests a civilian
to help a neighbor who was having trouble starting her car, even
though the officer knew the caller had reported an armed intruder.
The majority would likely hold that because the peace officer’s
misrepresentation “alter[ed] the essential nature of the requested
task” (maj. opn., ante, at p. 27, fn. 5), section 3366 does not apply.
But suppose the officer, rather than relaying the report of an armed
intruder, had simply misrepresented to the civilian that the 911
caller had asked for “unspecified help.” The officer then goes on to
tell the following additional lies: “This person always calls about
car problems. It must relate to car problems. There is nothing to
worry about, you will be completely safe.” The majority would
presumably conclude that because the peace officer requested
assistance with “a 911 call for unspecified help — a typical law
enforcement task” (id. at p. 28), section 3366 applies. The only true
difference between these two hypothetical scenarios is, in the first
scenario, the peace officer lied by stating that the caller specifically
requested help with her car, whereas in the second scenario, the
peace officer lied by stating the caller asked for unspecified help
and also by misrepresenting that the call “must relate to car
problems.” Under the majority’s formulation, the civilian in the
first scenario has a tort remedy, but the civilian in the second
scenario does not. I see no reason for this distinction.
I also disagree with the majority’s conclusion that the Gunds
were “enforcing the laws, investigating or preventing crime, or
providing public protection.” (Maj. opn., ante, at p. 34.) Neither
Ms. Gund (who thought that her neighbor might be having
“trouble with her wood-burning stove”), Mr. Gund (who let his

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Groban, J., dissenting

wife walk into the neighbor’s house while he waited in the car),
Corporal Whitman (who said the call “must be all about” “a big
storm coming”) nor the Trinity County Sheriff’s Department
(which said it would never “send citizen to perform a Deputy’s
job” (Sabalow, supra, at )) thought the Gunds were “assuming the
law enforcement duties and risks of police officers.” (Maj. opn.,
ante, at p. 20.) When peace officers perform active law enforcement
service, they do so knowingly and with some level of preparation.
Similarly, in those few cases in which we have analyzed whether
certain civilians were entitled to workers’ compensation when they
were commanded to assist in a law enforcement task, those
civilians knew they were assuming the functions and risks of a
peace officer and were at least somewhat prepared to do so. (See,
e.g., Monterey County v. Rader (1926) 199 Cal. 221, 223 [civilian
was given a firearm and was led by trained officers in attempting
to capture criminals].) Here, in contrast, Ms. Gund entered the
house alone and unarmed, neither of the Gunds demonstrating any
concern for her safety. The Gunds clearly did not expect to, and
were not prepared to, investigate a possible crime, arrest a
criminal, or prevent a breach of the peace, nor should they have
been given their reasonable understanding, based on Corporal
Whitman’s request, that checking on their neighbor would not
require them to perform a law enforcement task.
And the Gunds were right not to assume that their response
to the 911 call would require them to “enforce[] the laws,
investigat[e] or prevent[] crime, or provid[e] public protection”
(maj. opn., ante, at p. 34) since most 911 calls do not involve
criminal activity. (Neusteter et al., The 911 Call Processing
System: A Review of the Literature as it Relates to Policing, Vera

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 GUND v. COUNTY OF TRINITY
Groban, J., dissenting

Institute of Justice (July 2019) p. 34 [most 911 calls “are unrelated
to crimes in progress”].) The Sacramento Police Department
reports that its officers have spent only 4 percent of their time this
year responding to calls reporting violent crimes and only 19
percent of their time responding to calls reporting nonviolent
crimes. (Asher & Horwitz, How Do the Police Actually Spend Their
Time?, N.Y. Times (June 19, 2020)
[as of August 27, 2020].) Similarly, of the
nearly 18 million 911 calls logged by the Los Angeles Police
Department in 2010, less than 8 percent reported violent crimes.
(Rubin & Poston, LAPD responds to a million 911 calls a year, but
relatively few for violent crimes, L.A. Times (July 5, 2020)
[as of August 27, 2020].) The Gunds were
not entering their neighbor’s house to perform an inherently
dangerous law enforcement task. Instead, the Gunds reasonably
understood that they were being asked to provide neighborly
assistance with a weather-related problem and tragically stumbled
into a murder scene.
The majority purposefully avoids “[d]rawing precise lines to
define” what tasks would fall within “active law enforcement
service” (maj. opn., ante, at p. 25) and instead repeatedly describes
the phrase as being “capacious” (id. at pp. 11, 14, 19, 25, 35).
Nonetheless, the majority nowhere suggests that assisting a
neighbor with snow, a fallen tree, a wood-burning stove, or some
other weather-related problem objectively qualifies as active law
enforcement service. Nor could it reasonably do so given that, as
the majority acknowledges, the phrase “active law enforcement
service” as used elsewhere in the Labor and Government Code has

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Groban, J., dissenting

long been defined as encompassing “a peace officer’s duties directly
concerned with functions such as enforcing laws, investigating and
preventing criminal activity, and protecting the public.” (Maj. opn.,
ante, at p. 22; see also Kimball v. County of Santa Clara (1972) 24
Cal.App.3d 780, 785 [active law enforcement service encompasses
particularly hazardous job functions undertaken for the protection
of the public].) The court in Crumpler v. Board of Administration
(1973) 32 Cal.App.3d 567, for example, held that animal control
officers who are hired by the police department, wear uniforms, and
carry guns do not principally perform “active law enforcement
service” because they do not deal with hazardous crimes “against
persons and property.” (Crumpler, at p. 579.) The court found
persuasive an Attorney General opinion — one which was issued
10 years prior to section 3366’s enactment — that defines “active
law enforcement service” as including “duties which expose officers
to physical risk” such as “ ‘the active investigation and suppression
of crime; the arrest and detention of criminals and the
administrative control of such duties.’ ” (Crumpler, at p. 577,
quoting 22 Ops.Cal.Atty.Gen. 227, 229 (1953).) This definition is
in accord with the Legislature’s intent in enacting section 3366 that
only those civilians who “assume the risk of death or serious injury
to provide . . . protection to the public” at the request of a peace
officer would be covered by workers’ compensation.
(Recommendation Relating to Sovereign Immunity, Number 6 —
Workmens’ Compensation Benefits for Persons Assisting Law
Enforcement or Fire Control Officers (Jan. 1963) 4 Cal. Law
Revision Com. Rep. (1963) p. 1505.) Simply put, a civilian does not
risk death or serious injury for the protection of the public by
helping a neighbor with a weather-related event.

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Groban, J., dissenting

I am additionally unpersuaded by the majority’s policy
rationales for its holding. The majority reasons that “quicker
availability of [workers’ compensation] benefits can incentivize
individuals to oblige a peace officer’s request for help, because they
will ostensibly be less concerned with the financial consequences of
potential injury or death.” (Maj. opn., ante, at p. 19.) Though a
person might conceivably be motivated to assist a peace officer
based on the availability of workers’ compensation, I am skeptical
that the average civilian would make a quick assessment of
possible tort or statutory recovery outcomes before complying with
a peace officer’s request. As noted above, the Legislature
recognized that most people will feel compelled to assist peace
officers as part of their “civic duty” and regardless of whether
compensation for their injuries might be available. (Second Supp.
To Mem. 23, supra, at p. 1.) I certainly cannot imagine that the
Gunds were thinking about the ready availability of workers’
compensation when they agreed to check on their neighbor at
Corporal Whitman’s request. Moreover, the rule embraced by the
majority — one that allows peace officers to omit crucial
information or even to lie in order to convince civilians to render
assistance without risking tort liability — will only disincentivize
civilians from agreeing to help. (See Commission on Peace Officer
Standards & Training v. Superior Court (2007) 42 Cal.4th 278, 298
[“ ‘The abuse of a patrolman’s office can have great potentiality for
social harm’ ”]; Schuster v. City of New York (1958) 5 N.Y.2d 75,
80–81 [154 N.E.2d 534] [the government “owes a special duty to
use reasonable care for the protection of persons who have
collaborated with it in the arrest or prosecution of criminals”
because it would otherwise “become difficult to convince the civilian
to aid and co-operate with the law enforcement officers”].)

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More fundamentally, I am wary of the majority’s tendency to
view the availability of workers’ compensation as beneficial to
civilians, no matter the circumstances. (See maj. opn., ante, at pp.
15–19.) The so-called workers’ compensation bargain is just
that — a bargain. “It should not be viewed as a victory of
employees over employers.” (Friedman & Ladinsky, Social Change
and the Law of Industrial Accidents (1967) 67 Colum. L.Rev. 50,
71.) Workers’ compensation may be “a simpler path to
compensation” for the Gunds (maj. opn., ante, at p. 33), but it is not
their preferred path, which is why they so vigorously oppose its
application here. The majority’s ruling precludes the Gunds from
seeking “pain and suffering” damages (San Bernardino County v.
State Indus. Acc. Commission (1933) 217 Cal. 618, 625), which
includes damages to compensate them for their physical pain as
well as any “fright, nervousness, grief, anxiety, worry,
mortification, shock, humiliation, indignity, embarrassment,
apprehension, terror or ordeal” they have suffered since becoming
the victims of a particularly brutal attack (Capelouto v. Kaiser
Foundation Hospitals (1972) 7 Cal.3d 889, 892–893). I do not think
anyone doubts that the Gunds have suffered considerable pain and
suffering as a result of this horrible crime, but the majority’s
holding will not allow them to be compensated for it. The Gunds
will also be unable to seek punitive damages to compensate them
for defendants’ alleged wrongdoing. (Johns-Manville Products
Corp. v. Superior Court (1980) 27 Cal.3d 465, 478.)
The majority worries about creating a rule that looks closely
at the specific details and context of the peace officer’s request,
believing this would open the door for defendants to refuse to
provide workers’ compensation by claiming that the request did not
specifically seek assistance with a law enforcement task. (Maj.

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Groban, J., dissenting

opn., ante, at p. 28, fn. 6.) While this is a legitimate concern, I
believe it is overstated. The facts of this case are incredibly unique
and are unlikely to recur. Many cases in which a peace officer seeks
a civilian’s assistance in responding to a 911 call of an uncertain
nature will likely fall within the scope of section 3366. If, for
example, Corporal Whitman shared the key details of the 911 call
and did not further opine that the call “must be” about the weather
and was “probably no big deal,” an objectively reasonable person
might well conclude that responding to the call entailed the
possibility of performing a law enforcement task. We can recognize
that the singular facts presented here entitle the Gunds to seek tort
relief without precluding courts from finding, in another case, that
a different peace officer’s request for a civilian to respond to a
different 911 call is covered by section 3366. We can also do so
without more broadly undermining our workers’ compensation
system or the Legislature’s intent to provide workers’
compensation to civilians who assume the functions and risks of a
peace officer.
We need not decide how every factual scenario, however
unlikely or bizarre, might be decided under this highly esoteric
statute. In this case, Corporal Whitman affirmatively described
the call as weather related and assured Ms. Gund that the call was
“probably no big deal” while also failing to disclose the details of
the call that would have revealed the potential danger and need for
law enforcement service. The Gunds had every reason to believe
Corporal Whitman and almost lost their lives in doing so. They
should not lose their tort claims as well.
II. CONCLUSION
In sum, I agree with the majority that section 3366 applies
when a civilian agrees to perform active law enforcement service at

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Groban, J., dissenting

a peace officer’s request. But I disagree that Corporal Whitman
asked the Gunds to perform an active law enforcement task.
Instead, it was objectively reasonable for the Gunds to believe that
Corporal Whitman asked them to render neighborly assistance
with a relatively risk-free weather-related problem. It was
objectively reasonable because Corporal Whitman told the Gunds
that the 911 call “must be” weather related and was “probably no
big deal.” He also failed to disclose important details from the 911
call that would have made them aware of the potential danger they
faced and that they were being asked to assume the particularly
hazardous functions and risks of a law enforcement officer. More
broadly, I believe that the words, facts, and context of the peace
officer’s request matters. The majority does not see their
significance here, but I do. I would therefore hold that the Gunds
are not subject to section 3366 and would reverse the judgment of
the Court of Appeal. Because the majority holds otherwise, I
respectfully dissent.
GROBAN, J.

I Concur:
CHIN, J.

17
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Gund v. County of Trinity
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XX 24 Cal.App.5th 185
Rehearing Granted

__________________________________________________________________________________

Opinion No. S249792
Date Filed: August 27, 2020
__________________________________________________________________________________

Court: Superior
County: Trinity
Judge: Richard Scheuler

__________________________________________________________________________________

Counsel:

Zwerdling, Bragg & Mainzer, Bragg, Mainzer & Firpo and Benjamin H. Mainzer for Plaintiffs and
Appellants.

Porter Scott and John R. Whitefleet for Defendants and Respondents.

Arthur J. Wylene for Rural County Representatives of California and League of California Cities as Amici
Curiae on behalf of Defendants and Respondents.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Benjamin H. Mainzer
Bragg, Mainzer & Firpo, LLP
804 Third Street
Eureka, CA 95501
(707) 445-7917

John R. Whitefleet
PORTER SCOTT
350 University Avenue, Suite 200
Sacramento, CA 95825
(916) 929-1481