Silva v. Langford CA2/7

Filed 5/24/22 Silva v. Langford CA2/7
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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

MARAKKALAGE THARAL D. B312660
SILVA et al.,
(Los Angeles County
Plaintiffs and Appellants, Super. Ct.
No. 20STCV04867)
v.

RICHARD SCOTT LANGFORD
et al.,

Defendants and
Respondents.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Huey P. Cotton, Judge. Affirmed in part,
reversed in part, and remanded with directions.
Law Offices of Ali Taheripour and Ali Taheripour; Law
Offices of Les T. Zador and Leslie T. Zador for Plaintiffs and
Appellants.
 Rob Bonta, Attorney General, and Danielle F. O’Bannon,
Assistant Attorney General, for Defendants and Respondents
Richard Scott Langford and State of California, acting by and
through the California Highway Patrol.

__________________________

Plaintiffs Marakkalage Tharal D. Silva and Shirin
Ramesha Silva (the Silvas) appeal from a judgment of dismissal
entered as to defendants State of California, acting by and
through the California Highway Patrol (CHP), and CHP Sergeant
Richard Scott Langford (together, the CHP defendants), after the
trial court sustained without leave to amend the CHP defendants’
demurrers to the Silvas’ first amended complaint. The Silvas
asserted on behalf of their deceased son Danuka Neshantha
Silva1 claims for negligence and wrongful death after Langford’s
patrol car struck and killed Danuka while Langford was
responding to an emergency call concerning an altercation on the
freeway. The trial court found the claims against the CHP
defendants were barred by investigative immunity conferred
under Government Code section 821.6 (section 821.6).
On appeal, the Silvas contend the trial court erred in
sustaining the CHP defendants’ demurrers because section 821.6
immunity is limited to claims for malicious prosecution pursuant
to Sullivan v. County of Los Angeles (1974) 12 Cal.3d 710
(Sullivan), and Court of Appeal decisions applying the immunity

1 We refer to Danuka Neshantha Silva by his first name to
avoid confusion.

2
to other torts committed by law enforcement officers in the course
of an investigation were wrongly decided.
We affirm the trial court’s order sustaining Langford’s
demurrer based on the Silvas’ concession at oral argument that
Langford is entitled to immunity as an emergency responder
under Vehicle Code section 17004. However, because Vehicle
Code section 17001 provides an independent statutory basis for
CHP’s liability based on Langford’s alleged negligence, we do not
reach the scope and application of section 821.6 immunity, and
we reverse the judgment as to CHP and remand for further
proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

A. The First Amended Complaint
The Silvas filed this action on February 5, 2020. The
operative first amended complaint alleges causes of action for
negligence and wrongful death, as well as a survival cause of
action (Code Civ. Proc., § 377.10 et seq.) against rideshare driver
Muhammad Ragowo Reiditio, the CHP defendants, Uber
Technologies Inc. (Uber), and Raiser LLC.2 The Silvas also
asserted a cause of action against CHP for public entity liability
for the tort of a public employee (Gov. Code, § 815.2, subd. (a)),3

2 Raiser LLC appears to be related to Uber.
3 All further undesignated statutory references are to the
Government Code. Section 815.2, subdivision (a), provides, “A
public entity is liable for injury proximately caused by an act or
omission of an employee of the public entity within the scope of
his employment if the act or omission would, apart from this

3
in which they allege Langford violated Vehicle Code section
22350 (basic speed law), for which CHP was liable under Vehicle
Code section 17001 (public entity liability for negligent or
wrongful operation of a motor vehicle by a public employee).
As alleged in the first amended complaint, at
approximately 3:37 on the morning of October 14, 2019, Danuka
was riding with another passenger in the back of a rideshare
vehicle driven by Reiditio for Uber. While driving westbound on
U.S. Highway 101 near Encino, Reiditio pulled into the number
one lane of the freeway, abruptly stopped the vehicle, and
demanded that Danuka and the other passenger get out of the
vehicle. Reiditio refused to drive the vehicle onto the shoulder or
to an exit ramp before forcing the passengers to disembark.
While Danuka was attempting to cross the eastbound lanes of
traffic on the freeway to get to safety, he was struck and killed by
the CHP patrol vehicle driven by Langford in the scope of his
employment. Langford was driving at an excessive speed without
activating his patrol car’s lights and sirens at the time he struck
Danuka.
The Silvas’ original complaint also alleged Langford had a
duty to operate the patrol vehicle “when responding to a call to a
standard of reasonable care associated with officers who
routinely respond to such calls” and “it was the duty of an officer
to exercise even greater and more reasonable care . . . when

section, have given rise to a cause of action against that employee
or his personal representative.” However, section 815.2,
subdivision (b), provides, “Except as otherwise provided by
statute, a public entity is not liable for an injury resulting from
an act or omission of an employee of the public entity where the
employee is immune from liability.”

4
responding to a call.” These allegations were omitted from the
first amended complaint.

B. The CHP Defendants’ Demurrers
Langford and CHP each demurred to the first amended
complaint, arguing the complaint was barred by investigative
immunity conferred under section 821.6. Section 821.6 provides,
“A public employee is not liable for injury caused by his
instituting or prosecuting any judicial or administrative
proceeding within the scope of his employment, even if he acts
maliciously and without probable cause.” They argued the
original complaint alleged Langford was “‘responding to a call’”
when he struck Danuka, and although the allegations were
omitted from the first amended complaint (after defense counsel
raised section 821.6 immunity during the meet and confer
process), the Silvas were bound by their original allegations
under the sham pleading doctrine.4 Langford’s “call-response
[was] the quintessence of embarking upon an investigation of the
circumstances prompting the call for law enforcement
assistance,” and was immunized under section 821.6. Langford
also argued the claims against him were barred by emergency
responder immunity under Vehicle Code section 17004. CHP
asserted the Silvas’ claims against it were barred under
Government Code sections 821.6 and 815.2, subdivision (b).

4 See Deveny v. Entropin, Inc. (2006) 139 Cal.App.4th 408,
425 (“Under the sham pleading doctrine, plaintiffs are precluded
from amending complaints to omit harmful allegations, without
explanation, from previous complaints to avoid attacks raised in
demurrers or motions for summary judgment.”).

5
 In opposition, the Silvas argued section 821.6 immunity did
not apply because Langford “was not instituting or prosecuting
any judicial or administrative proceeding within the scope of his
employment,” and he was not yet investigating anything when he
struck Danuka. The Silvas requested the trial court take judicial
notice of the investigative report as evidence their amendment
was not a sham pleading because the report found that two other
CHP officers were on patrol the morning of the accident and
responded to emergency calls of a stopped vehicle and potential
fight on the freeway, whereas Langford heard the emergency
calls while inside CHP’s West Valley Office, and on his own
initiative he drove to the scene to see if the first-responding
officers “needed an additional hand.”5 Because Langford was not
responding to a call, he was not entitled to immunity under
Vehicle Code section 17004, nor was he exempt from immunity as
an emergency responder under Vehicle Code section 21055
because he failed to activate his patrol car’s lights and sirens.
After a hearing, on April 15, 2021 the trial court sustained
the CHP defendants’ demurrers without leave to amend. The
court found the CHP defendants were immune under section
821.6 because Langford “by plaintiffs’ own admission and
evidence was responding to a call.” The Silvas failed to meet
their burden to show the original allegations were a mistake

5 The investigative report found Langford was responding to
a physical altercation between two Uber passengers, when
Danuka crossed the traffic lanes of the freeway and ran into the
path of the patrol car. The report concluded Danuka caused the
accident, but Langford operated his car in excess of 65 miles per
hour without activating his patrol car’s lights and sirens, in
violation of Vehicle Code section 22349, subdivision (a).

6
justifying correction in the amended pleading, and to the
contrary, the investigative report showed that although
“[Langford] was likely not specifically dispatched to the scene,” he
was “on his way to the call to provide back up if needed, [and]
[t]his is not a case where [Langford] was merely driving around
on patrol and happened upon [Danuka].” The court concluded
that although the Courts of Appeal had primarily applied section
821.6 to immunize prosecuting attorneys, the section had been
construed broadly to immunize torts committed in the course of
police investigations, including by police officers, citing Lawrence
v. Superior Court (2018) 21 Cal.App.5th 513, 526 (section 821.6
immunized CHP from liability for releasing a vehicle impounded
during an investigation to the wrong claimant). The trial court
did not address the parties’ arguments under the Vehicle Code.
On May 12, 2021 the trial court entered a judgment of
dismissal in favor of the CHP defendants. The Silvas timely
appealed.6

6 On May 11, 2021, prior to the entry of the judgment of
dismissal, the Silvas filed a notice of appeal from a “[j]udgment of
dismissal after an order sustaining a demurrer,” attaching the
trial court’s April 16, 2021 ruling. We consider the Silvas’
premature notice of appeal a valid “notice of appeal filed after
judgment is rendered but before it is entered,” and treat the
notice as filed immediately after entry of judgment. (Cal. Rules
of Court, rule 8.104(d)(1); see Valdez v. Seidner-Miller, Inc. (2019)
33 Cal.App.5th 600, 607.)

7
 DISCUSSION

A. Standard of Review
“‘In reviewing an order sustaining a demurrer, we examine
the operative complaint de novo to determine whether it alleges
facts sufficient to state a cause of action under any legal theory.’”
(Mathews v. Becerra (2019) 8 Cal.5th 756, 768; accord, T.H. v.
Novartis Pharmaceuticals Corp. (2017) 4 Cal.5th 145, 162.)
When evaluating the complaint, “we assume the truth of the
allegations.” (Brown v. USA Taekwondo (2021) 11 Cal.5th 204,
209; accord, Lee v. Hanley (2015) 61 Cal.4th 1225, 1230.) “A
judgment of dismissal after a demurrer has been sustained
without leave to amend will be affirmed if proper on any grounds
stated in the demurrer, whether or not the court acted on that
ground.” (Carman v. Alvord (1982) 31 Cal.3d 318, 324; accord, Ko
v. Maxim Healthcare Services, Inc. (2020) 58 Cal.App.5th 1144,
1150 (Ko).)
A trial court abuses its discretion by sustaining a demurrer
without leave to amend where “‘there is a reasonable possibility
that the defect can be cured by amendment.’” (Loeffler v. Target
Corp. (2014) 58 Cal.4th 1081, 1100; accord, City of Dinuba v.
County of Tulare (2007) 41 Cal.4th 859, 865; Ko, supra,
58 Cal.App.5th at p. 1150.) “‘“The plaintiff has the burden of
proving that [an] amendment would cure the legal defect, and
may [even] meet this burden [for the first time] on appeal.”’”
(Sierra Palms Homeowners Assn. v. Metro Gold Line Foothill
Extension Construction Authority (2018) 19 Cal.App.5th 1127,
1132; accord, Ko, at p. 1150; see Aubry v. Tri-City Hospital Dist.
(1992) 2 Cal.4th 962, 971.)

8
 “‘“[A] demurrer based on an affirmative defense will be
sustained only where the face of the complaint discloses that the
action is necessarily barred by the defense.”’” (Heshejin v.
Rostami (2020) 54 Cal.App.5th 984, 992; accord, Aryeh v. Canon
Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1191 [application
on demurrer of affirmative defense of statute of limitations based
on facts alleged in a complaint is a legal question subject to de
novo review]; Favila v. Katten Muchin Rosenman LLP (2010)
188 Cal.App.4th 189, 223 [“‘It must appear clearly and
affirmatively that, upon the face of the complaint [and matters of
which the court may properly take judicial notice], the right of
action is necessarily barred.’”].)

B. Langford Is Immune from Suit Under Vehicle Code
Section 17004 as an Emergency Responder
Langford contends, the Silvas concede, and we agree
Langford is immune from suit under Vehicle Code section 17004
as an emergency responder. Vehicle Code section 17004 provides,
“A public employee is not liable for civil damages on account of
personal injury to or death of any person or damage to property
resulting from the operation, in the line of duty, of an authorized
emergency vehicle while responding to an emergency call . . . , or
when responding to but not upon returning from a fire alarm or
other emergency call.” At oral argument, the Silvas’ attorney
conceded the first amended complaint adequately alleged
Langford was operating his patrol car in the line of duty and was
responding to an emergency call when he struck Danuka, and the
Silvas’ action against Langford is therefore barred by emergency
responder immunity under Vehicle Code section 17004.
Accordingly, although the trial court sustained Langford’s

9
demurrer on a different basis, Langford’s dismissal was proper.
(Carman v. Alvord, supra, 31 Cal.3d at p. 324; Ko, supra,
58 Cal.App.5th at p. 1150.)

C. The Trial Court Erred in Sustaining CHP’s Demurrer
1. Investigative immunity under section 821.6
Section 821.6 was adopted in 1963 as part of the California
Government Claims Act and was intended to codify governmental
immunities recognized at common law. (See Sullivan, supra,
12 Cal.3d at p. 720.) As the Senate Judiciary Committee report
on Senate Bill No. 42 (1963 Reg. Sess.) explained as to
section 821.6, “The California courts have repeatedly held public
entities and public employees immune from liability for this sort
of conduct. [Citations.] This section continues the existing
immunity of public employees; and, because no statute imposes
liability on public entities for malicious prosecution, public
entities likewise are immune from liability.” (Sen. Com. on
Judiciary, Rep. on Sen. Bill No. 42, 2 Sen. J. (1963 Reg. Sess.)
p. 1890.) The Senate Judiciary Committee cited to four cases,
including White v. Towers (1951) 37 Cal.2d 727 (White), in which
the Supreme Court addressed the public policy behind common
law investigative immunity. As the White court reasoned, “When
the duty to investigate crime and to institute criminal
proceedings is lodged with any public officer, it is for the best
interests of the community as a whole that he be protected from
harassment in the performance of that duty. The efficient
functioning of our system of law enforcement is dependent largely
upon the investigation of crime and the accusation of offenders by
properly trained officers. A breakdown of this system at the

10
investigative or accusatory level would wreak untold harm.” (Id.
at pp. 729-730.)
In 1973 the Supreme Court considered section 821.6 for the
first time in Sullivan, supra, 12 Cal.3d 710. In Sullivan, the
plaintiff brought an action for false imprisonment against the Los
Angeles County Sheriff, asserting the plaintiff was jailed for
longer than his sentence due to administrative errors. (Id. at
pp. 713-714.) The Supreme Court reversed the judgment for the
county entered by the trial court based on section 821.6
immunity, holding the section did not immunize the sheriff for
liability for false imprisonment, and accordingly, the county could
be liable for the sheriff’s conduct under section 815.2,
subdivision (b). (Sullivan, at p. 717.) The Supreme Court
reasoned, “[T]he history of section 821.6 demonstrates that the
Legislature intended the section to protect public employees from
liability only for malicious prosecution and not for false
imprisonment. . . . [T]he suits against government employees or
entities cited by the Senate Committee in commenting upon
section 821.6 all involve the government employees’ acts in filing
charges or swearing out affidavits of criminal activity against the
plaintiff. No case has predicated a finding of malicious
prosecution on the holding of a person in jail beyond his term or
beyond the completion of all criminal proceedings against him.”
(Id. at pp. 719-720, italics and footnote omitted.) The court’s
“narrow interpretation of section 821.6’s immunity, confining its
reach to malicious prosecution,” was supported by the
governmental immunity provision in section 820.4 for executing
or enforcing the laws, which contained an exception that
“‘[n]othing in this section exonerates a public employee from

11
liability for false arrest or false imprisonment.’” (Sullivan, at p.
721.)
In the decades since Sullivan was decided, the Courts of
Appeal have consistently interpreted section 821.6 to provide
immunity beyond the tort of malicious prosecution. (See, e.g.,
Baughman v. State of California (1995) 38 Cal.App.4th 182, 193
[university police officers were immune from claim for conversion
after officers while executing a search warrant destroyed disks
containing software engineer’s work where the engineer was not
a suspect or named in the warrant]; Amylou R. v. County of
Riverside (1994) 28 Cal.App.4th 1205, 1208 (Amylou) [county was
immune from liability on sexual assault victim’s claims for
intentional and negligent infliction of emotional distress where
investigating officers told victim’s friends and neighbors that she
gave an inconsistent and incomplete account of her alleged rape];
Jenkins v. County of Orange (1989) 212 Cal.App.3d 278, 283
[social worker and county were immune from liability for
negligence and negligent infliction of emotional distress based on
removal of minor from his parents’ home during an investigation
into reports of child abuse]; Randle v. City and County of San
Francisco (1986) 186 Cal.App.3d 449, 456 (Randle) [county,
district attorney, and police officer were immune from liability for
negligent performance based on the alleged suppression of
exculpatory evidence].) And in Strong v. State of California
(2011) 201 Cal.App.4th 1439, 1461 this court held section 821.6
immunized a CHP officer (and CHP under section 815.2,
subdivision (b)) against an accident victim’s spoliation claim after
the officer filed a false police report declaring the victim was at
fault for a traffic accident, in an effort to cover up the fact he had
lost information identifying the other vehicle that was involved.

12
 The Supreme Court has only once considered section 821.6
immunity in the nearly 50 years since Sullivan was decided. In
Asgari v. City of Los Angeles (1997) 15 Cal.4th 744, 748 the court
held immunity under section 821.6 extended to prevent a plaintiff
from recovering damages for false arrest attributable to the
period in which the plaintiff was incarcerated after he was
arraigned on criminal charges. The court observed that although
section 821.6 had been primarily applied to immunize
prosecuting attorneys and similarly-situated individuals, it also
“‘applies to police officers as well as public prosecutors since both
are public employees within the meaning of the Government
Code.’” (Asgari, at p. 757, quoting Randle, supra, 186 Cal.App.3d
at page 455.) The court also cited Baughman v. State of
California, supra, 38 Cal.App.4th at page 192 and Amylou, supra,
28 Cal.App.4th at page 1211 for the proposition that immunity
under section 821.6 “is dependent on how the injury is caused.”
(Asgari, at p. 757.) Although the Asgari court did not address the
application of section 821.6 beyond the torts of malicious
prosecution, false arrest, and false imprisonment, it is notable
that the court cited Randle, Baughman, and Amylou (as well as
Jenkins v. County of Orange, supra, 212 Cal.App.3d 278)
approvingly, all of which held section 821.6 immunity applied to
other torts. (See Asgari, at pp. 755, fn. 9, 757.)
The Supreme Court will again consider section 821.6
immunity in its pending review of Leon v. County of Riverside
(2021) 64 Cal.App.5th 837, 841, review granted Aug. 18, 2021,
S269672 (Leon).7 In Leon, the widow of a shooting victim brought

7 The Supreme Court granted review on the question, “Is
immunity under Government Code section 821.6 limited to

13
an action for negligent infliction of emotional distress against the
county based on the failure of the responding sheriff’s deputies to
cover the body of her husband, which lay in full public view on
the driveway for more than eight hours with the husband’s
genitals exposed as the deputies investigated the shooting.
(Leon, at p. 841.) In affirming the grant of summary judgment
for the county, Division Two of the Fourth Appellate District
broadly applied section 821.6, concluding “[a]ll of the evidence
adduced on the county’s motion for summary judgment shows
that the deputies’ negligence, if any, in failing to promptly cover
or remove [the victim’s] body from the scene, occurred during the
course of the deputies’ performance of their official duties to
secure the area following the shooting and the deputies’ and
other law enforcement officers’ investigation of the shooting.” (Id.
at p. 848.) The Court of Appeal in Leon rejected arguments
similar to those advanced by the Silvas that Sullivan expressly
limited section 821.6 immunity to claims for malicious
prosecution and that Amylou, Baughman, and other cases
broadly interpreting section 821.6 were wrongly decided. (Leon,
supra, 64 Cal.App.5th at pp. 853-855, review granted.)
In a concurring opinion in Leon, Justice Raphael observed
that the Ninth Circuit and federal district courts in California
have interpreted Sullivan to limit section 821.6 immunity to
claims for malicious prosecution. (Leon, supra, 64 Cal.App.5th at
p. 859, review granted [conc. opn. of Raphael, J.]; see Sharp v.
County of Orange (9th Cir. 2017) 871 F.3d 901, 920-921; Garmon
v. County of Los Angeles (9th Cir. 2016) 828 F.3d 837, 847.)

actions for malicious prosecution? (See Sullivan v. County of Los
Angeles (1974) 12 Cal.3d 710.)” (Leon, supra, S269672.)

14
Justice Raphael questioned whether the text of section 821.6
supported personal injury tort immunity, noting the statute
refers to injuries “caused by [a public employee] instituting or
prosecuting any judicial or administrative proceeding” but
observed the Courts of Appeal had broadly applied the immunity
to torts that preceded the institution of proceedings and were
“related to” but not “caused by” the institution of proceedings.
(Leon, at p. 863 [conc. opn. of Raphael, J.].) Notwithstanding
these concerns, Justice Raphael concluded the court’s opinion
“correctly articulates the reasoning of decades of opinions that
not only have cabined the Supreme Court’s Sullivan opinion to its
facts, but have also expanded section 821.6’s absolute immunity
to police officer conduct in investigations.” (Id. at pp. 863-864.)
On appeal, the Silvas contend that section 821.6 immunity
does not cover personal injury torts committed in the course of an
investigation, and even if it did, the first amended complaint only
alleged that Langford was on his way to investigate a call of a
vehicle stopped on the freeway when he struck Danuka, not that
the investigation had commenced. We agree this case raises
significant questions concerning both the scope and application of
section 821.6 immunity. However, we need not decide these
issues because Langford is immune from suit under Vehicle Code
section 17004, and as to CHP, it may be liable under Vehicle
Code section 17001. (See Aubry v. Tri-City Hospital Dist. (1992)
2 Cal.4th 962, 970, fn. 7 [because trial court properly sustained
demurrer on grounds that complaint failed to state a claim,
Supreme Court did not need to consider alternative bases for
sustaining demurrer, including public entity immunities].)

15
 2. The trial court erred in sustaining CHP’s demurrer
without considering CHP’s liability under Vehicle
Code section 17001
Even if Langford was immune from suit under
section 821.6 (in addition to his immunity under Vehicle Code
section 17004), it does not follow that CHP is immune.
Section 821.6 immunity, like Vehicle Code section 17004
immunity, expressly applies only to a “public employee.”
Government Code section 815.2, subdivision (b), extends an
employee’s immunity to the public entity in certain
circumstances: “Except as otherwise provided by statute, a
public entity is not liable for an injury resulting from an act or
omission of an employee of the public entity where the employee
is immune from liability.” In many cases the Courts of Appeal
have applied section 821.6 to public entities through application
of Government Code section 815.2, subdivision (b). (See, e.g.,
Leon, supra, 64 Cal.App.5th at p. 846, review granted; Strong v.
State of California, supra, 201 Cal.App.4th at p. 1449;
Baughman, supra, 38 Cal.App.4th at p. 191; Amylou, supra,
28 Cal.App.4th at pp. 1208-1209.)
However, this case differs from those applying section 821.6
immunity to public entities in that it involves a vehicular injury.
The Silvas contend, and we agree, CHP’s immunity does not
necessarily flow from any investigative immunity Langford may
have under section 821.6 because the language in Government
Code section 815.2, subdivision (b), limiting immunity where
“otherwise provided by statute” applies here. Specifically,
Vehicle Code section 17001 provides a separate statutory basis
for CHP liability: “A public entity is liable for death or injury to
person or property proximately caused by a negligent or wrongful

16
act or omission in the operation of any motor vehicle by an
employee of the public entity acting within the scope of his
employment.”
In closely analogous circumstances, the Supreme Court in
Brummett v. County of Sacramento (1978) 21 Cal.3d 880, at pages
885 through 886 (Brummett) rejected a public entity’s argument
that Government Code section 815.2, subdivision (b), immunized
the entity from liability under Vehicle Code section 17001 for
injuries caused by its police officers during a high-speed chase,
even though the police officers enjoyed first-responder immunity
under Vehicle Code section 17004. The court explained that in
considering whether Government Code section 815.2,
subdivision (b), applies, “[t]he question . . . is whether liability is
‘otherwise provided by statute.’ It must be answered in the
affirmative. Vehicle Code section 17001 makes a public entity
liable for its employee’s negligence in the operation of a motor
vehicle.”8 (Brummett, at p. 883; accord, City of Sacramento v.
Superior Court (1982) 131 Cal.App.3d 395, 400 [city was not
immune from suit under Government Code section 815.2,
subdivision (b), for police officers’ alleged negligence in vehicle
pursuit, explaining “[t]he specific provision for public entity
liability in Vehicle Code section 17001 overrides the general
derivative immunity provided by Government Code section
815.2”].) In reaching this conclusion, the Supreme Court
considered the legislative history of the Government Claims Act

8 The Brummett court observed that the determination
whether the police officers were negligent in the operation of
their vehicles depended on whether they exercised due care, a
question of fact for the jury. (Brummett, supra, 21 Cal.3d at
p. 887.)

17
and observed that the Senate Judiciary Committee commented as
to Government Code section 815.2, “‘The exception appears in
subdivision (b) because under certain circumstances it appears to
be desirable to provide by statute that a public entity is liable
even when the employee is immune. . . .’” (Brummett, at p. 885,
quoting Sen. Com. on Judiciary, Rep. on Senate Bill No. 42,
2 Sen. J. (1963 Reg. Sess.) pp. 1887-1888.) Further, as the
Brummett court explained, the Judiciary Committee specifically
referred to liability of public entities under both Government
Code section 815 (enacted at the same time as Government Code
section 815.2) and Vehicle Code section 17001. (Brummett, at
p. 885 [“‘In other codes there are a few provisions providing for
the liability of governmental entities, e.g., Vehicle Code
section 17001, et seq.’”], quoting Sen. Com. on Judiciary, Rep. on
Senate Bill No. 42, 2 Sen. J. (1963 Reg. Sess.) pp. 1886-1887; see
Thomas v. City of Richmond (1995) 9 Cal.4th 1154, 1165
[observing in context of liability for injuries caused by a police car
chasing a fleeing suspect, that Government Code section 845.8’s
immunity provision applicable to public employees and entities
(for injuries resulting from a person escaping custody or resisting
arrest) “does not provide immunity to public entities for liability
that is predicated on Vehicle Code section 17001”].)
CHP argues Brummett did not decide whether a public
entity’s liability under Vehicle Code section 17001 supersedes the
entity’s immunity derived from the public employee’s immunity
under section 821.6, instead focusing on the public employee’s
immunity under Vehicle Code section 17004. CHP urges us
instead to follow Varshock v. Department of Forestry & Fire
Protection (2011) 194 Cal.App.4th 635, 643, in which the Court of
Appeal held that the Department of Forestry and Fire Protection

18
was immune from tort liability under Government Code section
850.4—which immunizes public entities and employees from
liability “‘for any injury caused in fighting fires,’” “‘except as
provided in’” Vehicle Code section 17000 et sequitur—where the
plaintiffs were engulfed in a wildfire after their vehicle broke
down and the firefighters placed them inside the firefighter’s fire
truck. The court reasoned there was a “latent ambiguity” in
Government Code section 850.4 because “a literal interpretation
of statute would . . . produce absurd consequences the Legislature
did not intend” and “eliminate a very large portion of the
immunity the Legislature intended to confer under
section 850.4.” (Varshock, at p. 644.)
The Supreme Court’s decision in Brummett is directly on
point; Varshock is not. Varshock involved immunity under the
Government Code provision applicable to firefighters and their
public employers, not derivative immunity under Government
Code section 815.2, subdivision (b), and the case was atypical in
that the plaintiffs’ injuries did not arise from a vehicular tort as
generally envisioned under Vehicle Code section 17001. (See
Varshock v. Dept. of Forestry & Fire Prot., supra, 194 Cal.App.4th
at pp. 649-650 [Government Code section 850.4 immunity exists
“when a firefighter operates a motor vehicle at the scene of a fire
as part of efforts to rescue persons or property from the fire or
otherwise combat the fire,” but “immunity under section 850.4
does not apply, and potential liability under the Vehicle Code
section 17001 exception exists, if injury results from a
firefighter’s tortious act or omission in the operation of a motor
vehicle while proceeding from another location to a fire in
response to an emergency call”].) By contrast, Brummett
instructs that derivative entity immunity under Government

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Code section 815.2, subdivision (b), does not overcome the entity’s
liability under Vehicle Code section 17001. We see no reason why
the nature of the employee’s underlying immunity—whether the
employee is responding to an emergency (Veh. Code, § 17004) or
investigating a crime (§ 821.6)—would support a different result.
Here, the first amended complaint specifically alleged CHP
was liable under Vehicle Code section 17001. Thus, it was CHP’s
burden in its demurrer to establish its affirmative defense of
governmental immunity. (Heshejin v. Rostami, supra,
54 Cal.App.5th at p. 992; Ivanoff v. Bank of America, N.A. (2017)
9 Cal.App.5th 719, 726; Casterson v. Superior Court (2002)
101 Cal.App.4th 177, 183.) Yet CHP’s only argument in its
demurrer with respect to Vehicle Code section 17001 was that it
was shielded by the investigatory immunity applicable to
Langford under section 821.6 and public entity immunity under
Government Code section 815.2, subdivision (b). Because
Government Code section 815.2, subdivision (b), does not
immunize CHP from liability under Vehicle Code section 17001,
the trial court erred in sustaining CHP’s demurrer as to the
Silvas’ fourth cause of action for public entity liability for injuries
caused by its employees.

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 DISPOSITION

The judgment is affirmed as to Langford and reversed as to
CHP. The matter is remanded for the trial court to vacate its
order sustaining the demurrers of Langford and CHP and to
enter a new order sustaining Langford’s demurrer and overruling
CHP’s demurrer, and to enter a new judgment in favor of only
Langford. The parties are to bear their own costs on appeal.

FEUER, J.
We concur:

PERLUSS, P. J.

SEGAL, J.

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