Filed 11/2/21 Sun v. City of Torrance CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
RONG SUN et al., B302940
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. BC677211)
v.
CITY OF TORRANCE,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Jon R. Takasugi, Judge. Affirmed.
Law Office of Sohaila Sagheb and Sohaila Sagheb for
Plaintiffs and Appellants.
Burke, Williams & Sorensen, Mark J. Austin; Patrick Q.
Sullivan, City Attorney, Tatia Y. Strader, Assistant City
Attorney, and Della D. Thompson-Bell, Deputy City Attorney, for
Defendant and Respondent.
——————————
Plaintiffs and appellants Rong Sun, Jason Wang, Jeffrey
Wang, and Jennifer Wang (Plaintiffs) are family members of
Charles Wang, who died on February 20, 2017 after his minivan
was struck by a stolen car driven by Zachary Alexander
(Alexander). At the time of the accident, Alexander was being
pursued by two police officers of the City of Torrance (City).
Plaintiffs sued the City, claiming that the officers were negligent
in trying to stop Alexander without waiting for backup, and then
initiating a high-speed pursuit of Alexander without due regard
to public safety.
The City filed a motion for summary judgment, asserting
its entitlement to immunity under section 17004.7 of the Vehicle
Code,1 which confers immunity on a public entity that has
adopted a vehicular pursuit policy that satisfies the statute’s
requirements. The trial court granted summary judgment. We
affirm.
BACKGROUND
1. Police Pursuit and Collision.
At 1:40 a.m. on February 20, 2017, two City of Torrance
police officers were driving back to the station to end their shift,
when they observed a car with out-of-state license plates. When
one of the officers looked at the driver (later identified as
Alexander), he appeared nervous; his hand was shaking as he
waved to the officers. The officer also observed that the driver
had distinctive facial tattoos, and looked like a
methamphetamine user.
1 All statutory references are to the Vehicle Code.
2
At about the same time, the officers were advised by radio
of a stolen vehicle in the area that matched the description of this
car. The officers followed the car, which changed lanes several
times, and then stopped at a gas station. The officers pulled into
the gas station and got out of their car. At this point, Alexander
drove away, and the officers got back in their car and pursued
him. Alexander was driving well above the speed limit. Less
than one minute after leaving the gas station, Alexander ran a
red light and his car collided with Charles Wang’s minivan,
causing his death.
2. Procedural History
Plaintiffs sued the City alleging that the officers were
negligent in attempting a felony stop without waiting for backup,
prompting Alexander to flee. Plaintiffs also claimed that the
officers were negligent in initiating and continuing a pursuit, late
at night in a residential neighborhood, without due regard for
public safety. Plaintiffs claimed the pursuit was unnecessary in
that Alexander was readily identifiable and could have been
located and safely stopped once backup was available; he was
driving a known stolen car and had distinctive facial tattoos, and
there were numerous license plate cameras operating throughout
the City.
The City moved for summary judgment, asserting that it is
entitled to immunity under section 17004.7, subdivision (b)(1),
which provides that a “public agency employing peace officers
that adopts and promulgates a written policy on, and provides
regular and periodic training on an annual basis for, vehicular
pursuits complying with subdivisions (c) and (d) is immune from
liability for civil damages for personal injury to or death of any
3
person or damage to property resulting from the collision of a
vehicle being operated by an actual or suspected violator of the
law who is being . . . pursued in a motor vehicle by a peace officer
employed by the public entity.”
Plaintiffs opposed the motion for summary judgment on the
grounds that the City was not entitled to immunity because its
policy did not meet the standards set forth in section 17004.7, in
particular the standard regarding initiating a pursuit. After
briefing and argument, the trial court granted the summary
judgment motion,2 concluding that the City’s policy complies with
section 17004.7 and the City is thus entitled to immunity.
On December 10, 2019, Plaintiffs filed a premature but
timely notice of appeal from the judgment entered on January 3,
2020. (Cal. Rules of Court, rule 8.104(d).)
DISCUSSION
1. Standard of Review
We apply a de novo standard of review to the question
whether the trial court properly granted summary judgment to
the City, viewing all the evidence in the light most favorable to
Plaintiffs and resolving all disputed issues of fact in their favor.
(Lonicki v. Sutter Health Central (2008) 43 Cal.4th 201, 206.)
Whether the City’s vehicular pursuit policy was sufficient to
confer immunity pursuant to section 17004.7 is a pure question of
law subject to independent review. (§ 17004.7, subd. (f); Colvin v.
City of Gardena (1992) 11 Cal.App.4th 1270, 1281.) If the policy
2 The trial court’s initial tentative ruling was to deny
summary judgment, but after oral argument the court changed
its tentative and granted the motion.
4
complies with section 17004.7, the City is entitled to immunity
regardless of whether the officers actually complied with the
policy in this case, and regardless of whether they were negligent
in implementing the policy. (See Brumer v. City of Los Angeles
(1994) 24 Cal.App.4th 983, 987 [“if the agency adopts a pursuit
policy which meets the statutory requirements, then immunity
results. The extent to which the policy was . . . followed in the
particular pursuit is irrelevant”].)
2. Section 17004.7 Immunity
The overall purpose of section 17004.7, in giving public
entities immunity from tort liability if they adopt vehicular
pursuit policies that meet certain standards, is to “improve public
safety by encouraging public entities to promulgate a pursuit
policy and provide training pursuant to that policy, which, in
turn, was designed to reduce the number of pursuits and the
number and severity of collisions resulting from pursuits.”
(Ramirez v. City of Gardena (2018) 5 Cal.5th 995, 1001.)
Subdivision (c) of section 17004.7 enumerates “minimum
standards” that must be met in pursuit policies, to provide
guidance to officers on various aspects of the decisions they must
make in considering whether to initiate or continue a pursuit,
and how the pursuit should be conducted. The statute does not,
however, dictate the specific content of local entities’ policies;
instead, it leaves to public agencies the fundamental law
enforcement decisions as to what specific instructions to provide
to their officers on each standard. (McGee v. City of Laguna
Beach (1997) 56 Cal.App.4th 537, 548.)
Subdivision (c)(1) of section 17004.7 provides that a policy
“for the safe conduct of motor vehicle pursuits by police officers
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shall . . . . [¶] . . . [d]etermine under what circumstances to
initiate a pursuit. The policy shall . . . articulate the reasons for
which a pursuit is authorized, and identify the issues that should
be considered in reaching the decision to pursue. It should also
address the importance of protecting the public and balancing the
known or reasonably suspected offense, and the apparent need
for immediate capture against the risks to peace officers,
innocent motorists, and others to protect the public.” The
subsequent subparts list other issues pursuit policies must
address, including the number of law enforcement vehicles
authorized to participate, communication procedures,
supervision, driving tactics and authorized pursuit intervention
tactics, factors to be considered in determining speeds during
pursuit, and the role of air support. (§ 17004.7, subd. (c)(2)–(9).)
Subdivision (c)(9) of section 17004.7 is headed, “Determine
when to terminate or discontinue a pursuit.” It lists specific
factors to be considered when making this decision, including
ongoing evaluation of risk to the public and officers, weighing the
nature of the offense and apparent need for immediate capture
against the risks to the public and officers, vehicular and
pedestrian traffic, weather, speeds, availability of air support,
and procedures to be followed when an offender is identified and
may be apprehended later or when the location of the pursued
vehicle is no longer known. (§ 17004.7, subd. (c)(9)(A)–(H).)
The statute also specifies that it is intended to set
“minimum policy standards” and does not preclude a local entity
from adopting a policy that “limits or restricts pursuits.”
(§ 17004.7, subd. (e).)
6
3. The City’s Pursuit Policy
The City’s pursuit policy is set forth in Torrance Police
Department General Order 3.10 Pursuit (issued April 4, 2007). It
begins with sections entitled “PURSUIT POLICY,”
“PROCEDURE,” and “COMMUNICATIONS.” Within the
“PURSUIT POLICY” section is a subsection headed
“ADMINISTRATIVE PHILOSOPY” stating that the purpose of
the policy is to “assist officers in securing a balance between the
protection of the lives and safety of the public and police officers,
and a duty to enforce the law and apprehend violators,” and to
provide “specific guidelines to direct law enforcement activities in
this very critical area of police practice,” while recognizing that it
is impossible for any policy “to anticipate all possible
circumstances.” The next subsection, entitled “POLICY,” states
that vehicular pursuits shall be conducted “in such a manner as
to optimize the level of safety to the public, police personnel, and
to minimize potential damage to property. The apprehension of a
fleeing violator shall not be more important than the safety of the
pursuing officers or citizens. When engaged in a pursuit, officers
and supervisors must continually evaluate whether the
seriousness of the offense justifies continuing the pursuit[ ]
[and] . . . shall weigh the seriousness of the violator’s known, or
suspected, crimes against the potential for death or injury if the
pursuit is continued.”
The next section, entitled “PROCEDURE,” includes
provisions designed to minimize the necessity for vehicular
pursuits in the first place. It states that “[t]o discourage violators
or suspects[ ] from attempting to avoid arrest by fleeing, officers
should be in close proximity to the violator’s vehicle, whenever
possible, before activating red lights and attempting to stop the
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suspect vehicle” and that officers, “when possible, should request
and wait for assisting units to get into position before initiating a
vehicle stop that may result in a pursuit.” This section also
specifies the role of the “primary unit” and “senior officer” in a
pursuit; places limits on the number of pursuing vehicles;
specifies that unmarked units shall not initiate pursuits; and
provides that helicopter support should be requested when
available.
The third section, entitled “COMMUNICATIONS,”
specifies the communication duties of the primary unit, and
requires designation of a supervisor to “monitor, evaluate[,] and
terminate, if necessary, the pursuit.”
The fourth section of the City’s policy, entitled
“DETERMINING FACTORS,” contains the language on initiation
of pursuit that is the main focus of this appeal. It begins by
stating that “[w]hen balancing the interests of public safety with
effective law enforcement, each officer and supervisor involved in
a vehicle pursuit should carefully and continuously consider the
following factors in determining when to initiate, continue, or
terminate a pursuit.” The subsection on “[i]nitiating the pursuit”
provides that an officer “may initiate a pursuit under the
following conditions: [¶] a. When a known wanted felon is in the
vehicle[;] [¶] b. When an actual or suspected violator of the law
operates the vehicle being pursued[;] [¶] c. When the
seriousness of the violation involved is such that failure to
initiate a pursuit would constitute a continuing danger to public
safety.”3
3 The policy does not specify whether only one or all three of
these factors must be present to initiate a pursuit, but the City
appears to concede they are disjunctive.
8
The next subsection provides a list of factors that officers
should consider when “determining whether or not to continue or
terminate a pursuit,” including the speeds involved and the
degree to which traffic laws must be disregarded; road conditions,
weather and visibility; type of neighborhood (residential,
industrial, etc.); traffic flow and conditions; time of day,
familiarity of the officer with the area; quality of radio
communications; whether the violator is identifiable and can be
apprehended later; distance between the pursuing and fleeing
vehicles; and performance capability of the police vehicle
compared to the fleeing vehicle.
Plaintiffs argue that the City’s policy fails to adequately
“ ‘control and channel’ ” police officers’ discretion as to when to
initiate a pursuit. (Ketchum v. State of California (1998) 62
Cal.App.4th 957, 967.) This is a critical decision in terms of
public safety, since, according to the City’s own training
materials, most police-pursuit-related accidents occur within two
minutes of initiation of a pursuit. Plaintiffs point out that,
although the City’s policy lists a number of factors to be
considered in continuing a police pursuit, it allows officers to
initiate a pursuit in any situation in which “a known wanted
felon is in the vehicle,” or “an actual or suspected violator of the
law operates the vehicle.” Since, for example, driving a car with
a broken tail light is an “actual or suspected violat[ion] of the
law,” the policy allows police officers to initiate a pursuit even for
minor traffic-code violations. Plaintiffs argue that the potentially
tragic consequences of police pursuits to innocent bystanders far
outweigh the importance of apprehending a person who—perhaps
due to fear, or trying to avoid a fine he or she cannot pay—flees to
avoid being cited for a minor traffic violation.
9
The City responds that the language of its policy section on
“[i]nitiating the pursuit” must not be read in isolation, but in the
context of the three preceding sections that lay out general
policies and procedures applicable to all phases of a pursuit, and
in the context of the subsequent sections listing factors that
officers must consider in deciding whether to continue or
terminate a pursuit once they have initiated it.
We agree with the City’s position. Given their placement at
the beginning of the policy and their broad scope, the first three
sections, headed “PURSUIT POLICY,” “PROCEDURE,” and
“COMMUNICATIONS,” are clearly intended to apply to all
phases of a pursuit, including the decision whether to initiate a
pursuit. The City is correct that the policy’s language on
initiation of pursuit should be read in the context of these more
general provisions.
Plaintiffs also contend that the City’s policy fails to meet
the requirements of section 17004.7, subdivision (c) because it
allows officers to initiate a pursuit whenever a known wanted
felon is in the vehicle, or a known or suspected violator of any law
is driving, without considering the specific safety factors listed in
the subsection on continuing and terminating pursuits.
We reject this argument for the same reason; we do not
read the “[i]nitiating the pursuit” section of the City’s policy in
isolation. The City’s policy does separate out factors to be
considered in deciding whether to initiate a pursuit, from
additional factors officers must consider in deciding to continue
or terminate a pursuit. But the officers’ discretion is still
adequately controlled and channeled by the broad, introductory
sections of the City’s policy, as well as by the “[i]nitiating the
pursuit” section itself.
10
4. Case Law on Section 17004.7 Immunity.
Plaintiffs point out that many pursuit policies that have
been found to comply with section 17004.7 by the Courts of
Appeal have more specific guidance as to when officers should—
or should not—initiate a pursuit, than the City’s policy does. For
example, the policy at issue in Ramirez v. City of Gardena (2017)
14 Cal.App.5th 811, 827 instructs officers to consider the type of
violation, whether the officers have an accurate vehicle
description and plate number (so the violator could be
apprehended later), and pursuit speeds, traffic conditions, and
presence of pedestrians, in deciding whether to initiate a pursuit.
The pursuit policy found sufficient in Ketchum v. State of
California, supra, 62 Cal.App.4th at page 969, instructs officers
not to initiate a pursuit if the subject can be identified and
apprehended later, not to initiate a pursuit if they have a civilian
passenger, and also to consider a list of factors including weather,
road conditions, traffic, and vehicle capabilities. The pursuit
policy found sufficient in Alcala v. City of Corcoran (2007) 147
Cal.App.4th 666, 676 further controlled police discretion by
prohibiting officers from initiating a pursuit to enforce minor
traffic violations, and from treating a minor offense as a more
serious offense based on hunch or speculation.
In Brumer v. City of Los Angeles, supra, 24 Cal.App.4th
983, at pages 987 to 988, on the other hand, our colleagues in
Division Four found a pursuit policy sufficient to comply with
section 17004.7 even though it did not include a list of risk factors
such as traffic, weather, visibility, and road conditions that
officers must consider in deciding whether to begin or terminate a
pursuit, but did “require officers to drive with due regard for the
safety of others, to continuously weigh the seriousness of the
11
offense against the danger to innocent citizens, and to
continuously question whether pursuit is warranted or should be
abandoned.” (See McGee v. City of Laguna Beach, supra, 56
Cal.App.4th at p. 547 [there are “no magic words that validate or
discredit a pursuit policy for purpose of the immunity”; policy
complied with section 17004.7 “based upon the totality of
the . . . policy, including its communication component, and its
repeated emphasis on public and officer safety in balancing the
risks of a pursuit against the need to immediately capture an
offender”].)
The cases Plaintiffs rely on in which pursuit policies were
found noncompliant with section 17004.7, in contrast, involved
policies far less detailed and specific than the City’s. In Colvin v.
City of Gardena, supra, 11 Cal.App.4th 1270, at page 1284, we
considered a policy that, like the City’s, allowed officers to initiate
a pursuit even for a minor traffic violation such as a
nonfunctioning tail lamp. The Gardena policy’s guidance on
initiating, continuing and terminating pursuits consisted only of
one paragraph, stating, “ ‘Pursuits may be initiated when an
officer has reasonable cause to stop a vehicle and the driver fails
to stop as required by law. [¶] . . . Discontinuance of pursuits:
Justification to continue a pursuit will be based on what
reasonably appears to be the facts known or perceived by the
officer. Officers should consider discontinuing a pursuit when it
poses a serious and unreasonable risk of harm to the pursuing
officer or to the public balanced against the seriousness of the
violations, or when directed to do so by a supervisor.’ ” (Id. at
p. 1283.) We found this to be a “calculated disinclination to set
forth any ‘minimum standards,’ ” in an effort to “clothe
[Gardena’s] officers with maximum discretion and flexibility.”
12
(Id. at p. 1285; see Payne v. City of Perris (1993) 12 Cal.App.4th
1738, 1745–1746 [pursuit policy “substantially identical” to
Gardena’s fails to comply with section 17004.7]; Berman v. City of
Daly City (1993) 21 Cal.App.4th 276, 283–285 [pursuit policy
similar to Gardena’s except that it provided more guidance on
terminating pursuits, still failed to comply with section 17004.7].)
Colvin contrasted Gardena’s policy with the policies of
other cities such as San Diego, pointing out that San Diego’s
policy limited the range of situations in which an officer could
initiate a pursuit. (Colvin v. City of Gardena, supra, 11
Cal.App.4th at p. 1284 [San Diego policy allows initiation of
pursuit “when, inter alia, a known wanted felon is in the vehicle
or the occupants of the vehicle have committed a crime in the
officer’s presence”].) In doing so, Colvin did not hold that a
pursuit policy must limit the range of offenses for which a pursuit
may be initiated, to comply with section 17004.7. Colvin took
judicial notice of other cities’ pursuit policies “simply to ascertain
some of the factors which have been considered relevant by public
entities in drafting a police pursuit policy in compliance with the
statute.” (Colvin, at pp. 1282–1283.)
5. The City’s Pursuit Policy is Sufficient to Confer Section
17004.7 Immunity.
The section of the City’s policy on initiating pursuit
addresses each specific requirement stated in subdivision (c)(1) of
section 17004.7. It includes a definition of “pursuit” in section
3.10.1.A; it “articulate[s] the reasons for which a pursuit is
authorized” in section 3.10.4.A1a to c; it “identif[ies] the issues
that should be considered in reaching the decision to pursue” and
addresses “the importance of protecting the public and balancing
13
the . . . offense, and the apparent need for immediate capture
against the risks to [police] officers, innocent motorists, and
others” in sections 3.10.1.B and C and 3.10.4.A. (§ 17004.7,
subd. (c)(1).) And, as soon as officers initiate a pursuit, they are
required to evaluate whether to continue or abandon the pursuit,
based on the specific safety factors enumerated in subsection
3.10.4.A2.
The City’s policy does not explicitly require its officers to
consider, in deciding whether to initiate a pursuit, the same
enumerated safety factors they must consider in deciding
whether to continue a pursuit (traffic, weather, and road
conditions, whether the suspect is identifiable and could be
apprehended later, etc.). But listing these factors under the
heading, “Continuing and terminating the pursuit” rather than
the heading, “Initiating the pursuit,” does not mean the policy
fails to comply with section 17004.7. The statute itself lists most
of these safety factors under the heading, “Determine when to
terminate or discontinue a pursuit” (§ 17004.7, subd. (c)(9))
rather than under the heading, “Determine under what
circumstances to initiate a pursuit” (§ 17004.7, subd. (c)(1)).
Although a public entity may choose to require its officers
to consider some or all of these factors before initiating a pursuit,
the City’s approach also makes sense. Some of these factors
would often be unknown at the time the pursuit is initiated, since
they would depend on how fast, in what direction the suspect
flees, and could change rapidly as the pursuit situation develops.
As the City’s policy states in its preamble headed “POLICY,”
officers and their supervisors must “continually evaluate whether
the seriousness of the offense justifies continuing the pursuit.”
14
Plaintiffs rely heavily on the fact that the City’s policy
allows officers to initiate a pursuit even for a minor traffic
violation. The Third District Court of Appeal, in Ketchum v.
State of California, supra, 62 Cal.App.4th at pages 967 to 969,
considered the same argument, that pursuit policies do not
adequately “ ‘control and channel’ ” police discretion if they allow
officers to initiate a pursuit even for minor traffic violations such
as a nonfunctioning tail lamp. The Ketchum court “decline[d] to
impose a specific guideline limiting pursuits to certain offenses or
situations” because the “danger to society . . . may arise from the
suspect’s actions in fleeing as well as the alleged offense that
precipitated the stop,” and the purpose of 17004.7 was to provide
immunity “ ‘while leaving to these agencies the fundamental law
enforcement decisions about when to undertake a pursuit.’ ” (Id.
at p. 969.)
The City’s policy—like those at issue in Colvin, Payne, and
Berman—does allow officers to initiate a pursuit in a broad range
of circumstances. But the City’s policy, taken as a whole,
sufficiently controls and channels officer discretion to initiate
pursuits, in light of its “POLICY” and “ADMINISTRATIVE
PHILOSOPHY” sections emphasizing the importance of public
safety over the apprehension of violators; its requirement for
continual evaluation whether the seriousness of the offense
justifies continuing the pursuit; its limitations on the number or
type of police vehicles that may get involved in a pursuit; its
provisions for supervisory control and maintenance of radio
communications; and its list of safety factors that must be
considered in continuously evaluating whether a pursuit has
become too dangerous and should be terminated.
15
We express no opinion as to whether the City’s current
policy strikes the right balance between public safety and law
enforcement. (See Ramirez v. City of Gardena, supra, 14
Cal.App.5th at p. 825 [“judicial obligation ‘to interpret police
policies for purposes of—section 17004.7 does not give us the
supervisory power to dictate good (or bad) law enforcement
tactics’ ”].) The City could choose to amend its pursuit policy to
limit the circumstances in which officers may initiate a pursuit,
in light of the tragic death of Charles Wang and the risk that
innocent persons might be killed within minutes when officers
initiate an unnecessary or overly dangerous pursuit. This policy
question is not within the authority of this court.
Since the trial court correctly found that the City
promulgated a pursuit policy that complies with section 17004.7,
the City is entitled to immunity. The trial court was correct in
granting the motion for summary judgment. 4
4 Because the City was entitled to summary judgment
pursuit to section 17004.7, it is unnecessary to reach any of the
other issues raised on appeal, such as whether sections 17004 or
21055 would also provide immunity to the City; whether there
were triable issues of fact as to the officers’ negligence; or
whether the trial court erred in excluding Plaintiffs’ expert’s
declaration from evidence.
16
DISPOSITION
The judgment is affirmed. In the interests of justice, the
parties shall bear their respective costs on appeal.
NOT TO BE PUBLISHED.
MATTHEWS, J.*
We concur:
EDMON, P. J.
LAVIN, J.
*Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
17