Gund v. County of Trinity ( 2018 )

Filed 6/4/18
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Trinity)
----
JAMES GUND et al., C076828
Plaintiffs and Appellants, (Super. Ct. No. 11CV080)
v.
COUNTY OF TRINITY et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Trinity County, Richard
Scheuler, Judge. Affirmed.
Zwerdling, Bragg & Mainzer, Benjamin H. Mainzer for Plaintiffs and Appellants.
Porter Scott, John R. Whitefleet for Defendants and Respondents.
This lawsuit alleges that a Trinity County deputy sheriff phoned citizens James
and Norma Gund -- who do not work for the County -- and asked them to go check on a
neighbor who had called 911 for help likely related to inclement weather. The Gunds
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unwittingly walked into a murder scene and were savagely attacked by the man who
apparently had just murdered the neighbor and her boyfriend. The assailant fled.
The Gunds sued the County of Trinity and the deputy -- Corporal Ron Whitman --
for negligence and misrepresentation, alleging defendants created a special relationship
with the Gunds and owed them a duty of care, which defendants breached by
representing that the 911 call was likely weather-related and “probably no big deal” and
by withholding information known to defendants suggesting a crime in progress -- i.e.,
that the caller had whispered “help me,” that the California Highway Patrol (CHP)
dispatcher refrained from calling back when the call was disconnected out of concern the
caller was in danger, and that no one answered when the county dispatcher called.
Defendants filed a motion for summary judgment on the ground that plaintiffs’
exclusive remedy was workers’ compensation, because Labor Code section 3366
provides that any 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 [workers’ compensation].
. . .” (Italics added; unless otherwise set forth, statutory references that follow are to the
Labor Code.)
Defendants’ motion did not acknowledge or address plaintiffs’ factual allegations
that the deputy misled them about the nature of the activity, minimized the risk, lulled
them into a false sense of security, and that plaintiffs relied on the deputy’s
misrepresentations. Absent section 3366, these allegations potentially support imposing
tort liability against defendants. (E.g., Wallace v. City of Los Angeles (1993)
12 Cal. App. 4th 1385, 1401-1402 (Wallace).)
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Plaintiffs’ opposition submitted evidence supporting their factual allegations and
argued section 3366 is inapplicable in these circumstances.
Defendants’ reply denied that the deputy misrepresented facts or misled plaintiffs
(thus displaying factual disputes) but claimed any factual disputes were immaterial
because responding to a 911 call is a law enforcement activity. The trial court adopted
the defense theory and entered summary judgment.
On appeal, plaintiffs contend section 3366 is inapplicable because they were not
engaged in assisting in active law enforcement. We grant plaintiffs’ request that we take
judicial notice of a Law Revision Commission Report concerning section 3366.
We conclude section 3366 applies to this case, because responding to a 911 call
for help of an uncertain nature is active law enforcement, regardless of the deputy’s
misrepresentations. “Active law enforcement” under section 3366 means confronting the
risks of dealing with the commission of crime or breach of the peace for the protection of
the public. Any 911 call carries such risk, but particularly a 911 call for help of an
uncertain nature.
Since we conclude section 3366 bars plaintiffs’ lawsuit on the ground they were
assisting in active law enforcement, we need not address alternate defense theories that
the lawsuit is barred because (1) plaintiffs were employees because they assisted upon
command (posse comitatus); (2) County Resolution No. 163-87 deems volunteers to be
employees if they provide “service” to the county; or (3) defendants’ new theory on
appeal that the County and Deputy Sheriff have governmental immunity from tort
liability for misrepresentation (Gov. Code, §§ 818.8, 822.2).
We affirm the judgment.
FACTS AND PROCEEDINGS
The operative pleading is the first amended complaint, which asserted claims for
vicarious liability for public employee’s act or omission (Gov. Code, §§ 815.2, subd. (a),
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820, subd. (a)) and misrepresentation with malice (Gov. Code, § 822.2). The Gunds also
filed in federal court a lawsuit against Trinity County and Whitman, alleging violation of
civil rights (42 U.S.C. § 1983), which is stayed pending resolution of this case. (Gund v.
County of Trinity (9th Cir. 2015) 624 Fed.Appx. 519 [Ninth Circuit’s unpublished
rejection of defendants’ appeal of district court’s denial of motion to dismiss]; Gund v.
County of Trinity 2013 WL 3942030; 2013 U.S. Dist. LEXIS 106823 [unpublished
district court opinion denying motion to dismiss § 1983 claim and staying case pending
resolution of state court litigation].)
The pleading in state court alleged that, on March 13, 2011, at 3:28 p.m., CHP
received a 911 call originating in the vicinity of the Kettenpom airstrip in Trinity County.
The female caller, K.C., whispered, “help me” and said she lived at the end of the
Kettenpom airstrip. The CHP dispatcher conveyed this information, and an opinion that
the caller was attempting to avoid being overheard, to the Trinity County Sheriff’s
Office. The county dispatcher tried calling the 911 caller, but there was no answer. The
county dispatcher passed the information to Corporal Whitman.
Corporal Whitman telephoned plaintiffs, who lived near the airstrip, and asked
them to go check on K. Whitman told plaintiffs that K. had phoned 911 call for help
likely related to the inclement weather. He did not tell plaintiffs that the caller had been
whispering or that the CHP dispatcher thought it was because the caller did not want to
be overheard, but instead told plaintiffs it was “probably no big deal.” Plaintiffs alleged
Whitman misled them by asserting without basis that the call was likely related to
inclement weather, and by concealing information suggesting a crime in progress.
Plaintiffs relied on Whitman’s representations and drove to K.’s home, feeling no
concern for their own safety. Once there, they were brutally attacked by a man who
apparently had just committed murder.
Defendants filed a summary judgment motion on the ground that workers’
compensation was plaintiffs’ exclusive remedy under section 3366 (persons engaged in
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active law enforcement are deemed to be employees). Defendants purported to accept
plaintiffs’ “version of events” for purposes of the motion yet ignored the significant
factual allegations of the complaint that plaintiffs were misled into believing they were
just checking on a weather-related matter. Omitting these critical allegations, defendants’
separate statement of undisputed facts merely stated that Whitman phoned Mrs. Gund,
identified himself and said a “[K.]” had phoned 911 and said, “help me;” that Mrs. Gund
“claims” Whitman said he was “hours away” and asked her go to K.’s house to see if she
was okay and told Mrs. Gund not to go without her husband; that Mr. Gund understood
he was checking on K.’s welfare; that they went together and were attacked and injured
by a third party.
Defendants alternatively sought summary judgment on the ground that section
3363.5 authorizes counties to adopt resolutions deeming public agency volunteers to be
employees, and Trinity County on December 1, 1987, adopted Resolution No. 163-87,
declaring that any person who performs various “services” for the county, including law
enforcement, voluntarily or without pay, is deemed to be a county employee for workers’
compensation purposes.
The motion’s omission of the complaint’s factual allegations about plaintiffs being
misled is particularly odd, given that defendants’ demurrer was overruled (by a different,
assigned judge) on the ground that a factual issue existed as to whether a person asked to
check on a neighbor under these circumstances is engaged in assisting in active law
enforcement, and the case may depend “not only on what request was made but how it
was made.”
Plaintiffs nevertheless opposed the summary judgment motion on the merits. The
opposition acknowledged that most of defendants’ facts were undisputed but filled in the
gaps with their own evidence (mostly deposition testimony) to support their own separate
statement of undisputed facts: That Whitman knew but failed to disclose that the 911
caller had whispered for help, that the CHP dispatcher was concerned the caller was
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trying to summon help secretly, and that there was no answer when the county dispatcher
tried to call. Plaintiffs relied on Whitman’s representations -- that the neighbor’s call was
likely related to inclement weather and was “probably no big deal” -- that lulled plaintiffs
into a false sense of security.
Plaintiffs’ evidence showed: Whitman did not know the Gunds personally and
was not aware of them ever assisting law enforcement in the past, but he knew they lived
near the airstrip. According to Mrs. Gund, Whitman phoned and asked if she knew
someone named K. who also lived near the airstrip, and Mrs. Gund said yes. Whitman
said K. had called 911 for help. Whitman said her call was likely related to inclement
weather and was “probably no big deal.” He asked if K.’s boyfriend ever seemed violent,
and Mrs. Gund said no, he “seems real mellow.” Whitman did not disclose that the 911
caller had been whispering, or that the call had been interrupted, or that the CHP
dispatcher was concerned the caller whispered so as not to be overheard, or that the
county dispatcher had tried calling K. without success. In deposition, Whitman claimed a
failure of recollection but admitted knowing the caller whispered and did not answer
when the dispatcher tried calling back. Whitman claimed he did not pass this information
along to Mrs. Gund because Whitman phoned the Gunds only to gather information about
the neighbor and where she lived and who else might be in the area.
Mrs. Gund testified Whitman said he was “hours away” and asked her to go check
on K. but not to go alone. The Gunds agreed to check on the neighbor because they
believed the 911 call was weather-related. As the Gunds drove to K.’s house, they
discussed whether perhaps a tree had fallen or perhaps K., a young city girl, was having
trouble with her wood-burning stove.
Mrs. Gund went in first while Mr. Gund stayed in the truck. Mrs. Gund was
attacked with a knife by the man who apparently had just murdered K. and her boyfriend
C. No evidence of the murder was adduced in this summary judgment proceeding, but
the parties agree to this fact on appeal.
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Mr. Gund heard a commotion, entered the house and saw his wife being held
down and having her throat cut with a knife. The attacker attacked Mr. Gund. Mrs.
Gund fled in the truck to seek help at a nearby store. Mr. Gund was tased and punched
repeatedly. He saw a motionless body on the floor with a bag over the head. The
attacker cut Mr. Gund’s throat with a knife. Mr. Gund managed to get the knife away
and flee on foot to his house to get another vehicle. As he ran to his house, he saw the
attacker run away. Mr. Gund found his wife at the store.
Defendants’ reply papers stated that plaintiffs’ assertions -- as to Whitman’s
knowing withholding of the circumstances of the 911 call and his false assurances that
the call was probably weather-related and no big deal -- were disputed as to
“phraseology” and Corporal Whitman denied them. However, defendants claimed,
“These additional facts are and [sic] not material for purposes of this motion.” In
defendants’ view, all that mattered was the plaintiffs were responding to a 911 call.
At the hearing in the trial court, plaintiffs argued section 3366 is inapplicable
under an objective or subjective standard, i.e., that given defendants’ misrepresentations,
(1) reasonable persons in plaintiffs’ position would not perceive themselves to be
engaged in active law enforcement, and (2) plaintiffs did not think they were engaged in
active law enforcement. Under either standard, summary judgment would be improper.
In other words, the deputy’s request for assistance with a weather-related 911 call was
not a request for plaintiffs to engage in active law enforcement, and plaintiffs did not
engage in active law enforcement by complying with that request.
The trial court ruled orally from the bench and incorporated the reporter’s
transcript in its order granting summary judgment. The court acknowledged the
existence of factual disputes about defendants’ misrepresentations but said, “those
disagreements are not before the Court, because for purposes of this motion the
defendants have accepted the factual assertions of the plaintiffs. [Defendants] assert that
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even accepting plaintiffs’ factual scenario, there is no viable cause of action. So in this
ruling I accept the plaintiffs’ factual scenario.”
However, the trial court did not really accept plaintiffs’ factual scenario, because
the court ignored (as did defendants) evidence that plaintiffs were persuaded to assist by
defendants’ misrepresentations about the nature of the activity they were assisting.
The court also said it did not have to decide whether the “posse comitatus” aspect
of section 3366 applied, because the court concluded “the response to a 911 call under the
facts of this case [are such] that said response makes plaintiffs/persons engaged in
assisting a peace officer in active law enforcement” and therefore plaintiffs were covered
by workers’ compensation. At first, the court said Whitman told Mrs. Gund that the 911
caller had whispered, but deleted that upon being corrected by counsel and said it did not
matter.
The trial court also found the County Resolution inapplicable, ruling plaintiffs
were not “volunteers” because they did not initiate the activity, and the deputy did not ask
them if they would consider volunteering.
Plaintiffs appeal from the judgment.
DISCUSSION
As the parties moving for summary judgment, defendants had the burden to show
that workers’ compensation is a complete defense to the lawsuit. (Code Civ. Proc.,
§ 437c, subd. (p)(2).) If the defendant meets its burden to show a complete defense on
summary judgment, the burden then shifts to the plaintiff to show that a triable issue of
material fact exists. (Ibid.) “We review the record and the determination of the trial
court de novo. (Merrill v. Navegar, Inc. (2001) 26 Cal. 4th 465, 476.)” (Kahn v. East
Side Union High School Dist. (2003) 31 Cal. 4th 990, 1003; see also, Miller v.
Department of Corrections (2005) 36 Cal. 4th 446, 460.)
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Where workers’ compensation is available, it is the exclusive remedy for work-
related injury. (§ 3602.) Workers’ compensation is generally not available to persons
“performing voluntary service for a public agency” who do not receive remuneration for
the services other than meals, transportation, lodging, or reimbursement for incidental
expenses. (§ 3352, subd. (a).) Section 3366 provides an exception for civilians assisting
peace officers in “active law enforcement.”
Section 3366 provides that each person “engaged in the performance of active law
enforcement service as part of the posse comitatus [power of the county] or power of the
county [sic], 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 [workers’ compensation]. . . .”
Plaintiffs were clearly assisting a peace officer at his request. The question is
whether they were engaged in assisting in “active law enforcement service.” (§ 3366.)
“ ‘Our primary task in interpreting a statute is to determine the Legislature’s
intent, giving effect to the law’s purpose. [Citation.] We consider first the words of a
statute, as the most reliable indicator of legislative intent.’ ” (John v. Superior Court
(2016) 63 Cal. 4th 91, 95.) Where the language is clear, we do not stray from its plain
meaning “unless a literal interpretation would result in absurd consequences the
Legislature did not intend.” (Coalition of Concerned Communities, Inc. v. City of Los
Angeles (2004) 34 Cal. 4th 733, 737.) And, “we are, absent contrary direction, bound to
give the words the Legislature chose their usual and ordinary meaning.” (Bernard v.
Foley (2006) 39 Cal. 4th 794, 807.) Neither are we permitted to “insert what has been
omitted, or . . . omit what has been inserted.” (Code Civ. Proc., § 1858.) But where “the
statutory language permits more than one reasonable interpretation, courts may consider
other aids, such as the statute’s purpose, legislative history, and public policy” to discern
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the legislative intent. (Coalition of Concerned Communities, Inc., supra, 34 Cal.4th at
p. 737.) Regardless, we construe the language in the context of the entire statutory
framework, with consideration given to the policies and purposes of the statute. (Jones v.
Superior Court (2016) 246 Cal. App. 4th 390, 397.)
Section 3366 is part of the provisions defining employees within the scope and
operation of the workers’ compensation laws. (Labor Code, Div. 4, Pt. 1, Ch. 2.) We are
mindful that workers’ compensation statutes are liberally construed in favor of injured
workers who seek workers’ compensation benefits. (Biggers v. Workers’ Comp. Appeals
Bd. (1999) 69 Cal. App. 4th 431, 441 (Biggers).) The underlying premise of exclusivity of
the workers’ compensation remedy is a presumed bargain that the employer assumes
liability for industrial injury without regard to fault in exchange for limitations on the
amount of that liability, and the employee is afforded relatively swift and certain payment
of benefits to relieve the effects of industrial injury without having to prove fault but
gives up the wider range of damages potentially available in tort. (Charles J. Vacanti,
M.D., Inc. v. State Comp. Ins. Fund (2001) 24 Cal. 4th 800, 811.)
The question here is whether a deputy who asks a civilian to help a neighbor who
called 911 with a weather-related issue is requesting the civilian’s assistance with “active
law enforcement” such that the civilian is assisting “in the enforcement of the law” under
section 3366 as a matter of law.
Plaintiffs argue that checking on a neighbor does not constitute active law
enforcement; peace officers perform community care-taking services that do not involve
active law enforcement; and checking on someone with a weather-related problem is not
active law enforcement. However, the 911 caller did not report a weather-related
problem but just whispered for help. There was no basis for the deputy to conclude the
911 call was weather-related. Had the deputy responded to the 911 call, he clearly would
have been engaged in active law enforcement, because any 911 call seeking unspecified
help presents a risk of criminal activity. Since the deputy would have been engaged in
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active law enforcement had he responded, plaintiffs were engaged in active law
enforcement when they responded to the 911 call on his behalf -- regardless of the
deputy’s misrepresentations to plaintiffs that the call was likely weather-related and
omission of facts that the caller whispered for help, was disconnected, and did not answer
a return call. Even though plaintiffs were unaware of the facts suggesting potential
criminal activity and felt lulled into a false sense of security by the deputy’s
misrepresentations and omissions, plaintiffs still knew they were responding to a 911 call
for help, the nature of which was not certain.
Section 3366 does not define “active law enforcement.” However, responding to
911 calls for unspecified help is clearly active law enforcement.
“The legislative purpose of [section 3366] was to cover a person who assumes the
functions and risks of a peace officer . . . .” (McCorkle v. City of Los Angeles (1969)
70 Cal. 2d 252, 263, fn. 11.) McCorkle briefly addressed and rejected a city’s argument,
made for the first time in the Supreme Court, that section 3366 precluded a civil lawsuit
by a motorist injured when he was assisting a peace officer by pointing out skidmarks at
the scene of a car crash. (Ibid.) The statute covers a person who assumes the functions
and risks of a peace officer, and not one who merely informs a peace officer of facts
within his own knowledge. (Ibid.) Another case noted in dictum that workers’
compensation benefits were granted under section 3366 to the family of a person killed
while acting as an undercover agent for police in a narcotics investigation. (Page v. City
of Montebello (1980) 112 Cal. App. 3d 658, 662-665 [family could not enforce in a civil
suit a police officer’s alleged promise that family would be compensated as if the
informant had been a police officer].)
Although not of precedential value, we observe a workers’ compensation
adjudication held that section 3366 did not afford workers’ compensation benefits to a
member of a county sheriff’s “Mounted Posse Program” for injuries she suffered when
she was thrown from her horse during a training session. (County of Riverside v.
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Workers’ Compensation Appeal Board (2012) 77 Cal.Comp.Cases 1033.) The Program
was a volunteer auxiliary group that assisted with such functions as traffic control, crowd
management, crime scene protection, dealing with the public, first aid, “eyes and ears”
patrols at special events, search and recovery, and appearances at parades and recruiting
events. (Ibid.) Membership in such a group was not the same as being engaged in
assisting law enforcement in an evolving and possibly precarious situation, and at the
time of the injury the member was training her horse, not providing any active law
enforcement services. (Ibid.; see South Coast Framing, Inc. v. Workers’ Compensation
Appeals Bd. (2015) 61 Cal. 4th 291, 305, fn. 4 [administrative cases are not of
precedential value and persuasive value is debatable].)
The term “active law enforcement” appears in other statutes, where special
workers’ compensation or retirement benefits are conferred on employees for “active law
enforcement service” but with express exclusions for law enforcement employees whose
principal duties are, for example, clerical positions such as stenographers and telephone
operators.
While interpretation of similar words in other statutes is not controlling, such
interpretation is helpful in arriving at legislative intent. (Estate of Maron (1986)
183 Cal. App. 3d 707, 712-713.) Under the general rules of statutory construction, we
may consider judicial interpretation of similar words in other statutes dealing with
analogous subject matter. (Ibid.)
Here, for example, section 3212.6 affords enhanced benefits for tuberculosis for
members of a police department, sheriff’s office, Highway Patrol, or district attorney
investigators “whose principal duties consist of active law enforcement service . . .
excepting those whose principal duties are clerical or otherwise do not clearly fall within
the scope of active law enforcement . . . such as stenographers, telephone operators, and
other officeworkers . . . .” Section 3212.9 similarly affords enhanced benefits for
meningitis for law enforcement employees “whose principal duties consist of active law
12
enforcement service . . . excepting those whose principal duties are clerical or otherwise
do not clearly fall within the scope of active law enforcement . . . such as stenographers,
telephone operators, and other officeworkers . . . .” Section 4800 gives leave of absence
with pay in lieu of lesser disability payments to “members of the Department of Justice
whose principal duties consist of active law enforcement and does not apply to persons
employed in the Department of Justice whose principal duties are those of telephone
operator, clerk, stenographer, machinist, mechanic, or otherwise clearly not falling within
the scope of active law enforcement service, even though this person is subject to
occasional call or is occasionally called upon to perform duties within the scope of active
law enforcement service. . . .”
Section 4850 similarly provides full salary rather than temporary disability
payments to law enforcement officers but not to law enforcement employees whose
principal duties do not clearly fall within the scope of active law enforcement service.
We discussed the meaning of “active law enforcement service” under section 4850 in
Biggers, supra, 69 Cal. App. 4th 431. We there held that courtroom bailiffs are covered
by section 4850, which gives full salary in lieu of temporary disability payments to
officers and employees of a sheriff’s office, excluding those “ ‘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.
. . .’ ” (Id. at p. 436.) We said the reason for special benefits for policemen and firemen
is obvious: “ ‘not only are their occupations particularly hazardous, but they undertake
these hazards on behalf of the public [italics added]. The Legislature undoubtedly sought
to ensure that policemen and firemen would not be deterred from zealous performance of
their mission of protecting the public by fear of loss of livelihood [italics added].’ (51
Ops.Cal.Atty.Gen. 32, 34 (1968).) [¶] Like police and firefighters, courtroom bailiffs
also protect the public, as shown by Biggers’ testimony that she had confiscated guns and
knives. Their contact with inmates exposes them to hazards. While these hazards may
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not be as great as those faced by sheriff’s deputies on patrol, they are of the same kind
and they are distinct from the job hazards faced by clerks, typists, and machinists.” (Id.
at pp. 440-441; italics added.)
Larkin v. Workers’ Compensation Appeals Board (2015) 62 Cal. 4th 152 held that
a statute (§ 4458.2) awarding maximum disability benefits to volunteer peace officers,
whose service entails risks of great magnitude, does not extend to regularly sworn,
salaried peace officers, whose benefits depend on their salary. (Id. at p. 163.)
In the retirement context, we held in Riverside Sheriff’s Association v. Board of
Administration of California Public Employee Retirement System (2010) 184 Cal. App. 4th
1, that deputy coroners do not qualify for enhanced retirement benefits (Gov. Code,
§ 20436, subd. (a)), because their principal duties of investigating cause of death “do not
involve crime suppression and the arrest and detention of criminals on a regular, as
opposed to occasional, basis” and therefore do not “clearly” fall within the scope of
“active law enforcement” under that statute. (Id. at pp. 4, 8, 13.) Pension statutes are not
necessarily coextensive with workers’ compensation law. (Riverside, supra, at p. 12; see
also, California Horse Racing Board v. Workers’ Compensation Appeals Bd. (2007)
153 Cal. App. 4th 1169 [investigator for racing board was not in active law enforcement].)
Glover v. Board of Retirement (1989) 214 Cal. App. 3d 1327, held that
classification of an employee as being engaged in active law enforcement is largely
controlled by the extent to which the category exposes its holders to potentially
hazardous activity. (Id. at p. 1333 [jail cook was not in active law enforcement and was
not entitled to presumption that heart attack, not precipitated by any particular incident,
was service-connected].)
Crumpler v. Board of Administration (1973) 32 Cal. App. 3d 567, 578, held that
animal control officers did not qualify for enhanced retirement benefits under
Government Code section 20020, because the statute excluded employees whose
functions did not clearly fall within the scope of active law enforcement service, which
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contemplates active enforcement and suppression of crimes and the arrest and detention
of criminals.
Amend v. City of Long Beach (1965) 30 Cal.Comp.Cases 29, held that an
employee of a private corporation, who assisted city police as an informant in the arrest
of his foreman, was engaged in active law enforcement and therefore entitled to workers’
compensation benefits against the city for injuries caused by the foreman after his release.
The applicant had contacted police that the foreman was trying to sell a gun that might be
stolen. The police “enlisted” the caller to buy the gun with marked money; he did so and
turned the gun over to the police. After the foreman was released and attacked the
plaintiff, he filed a claim for workers’ compensation benefits against the city but was
denied on the ground that his active law enforcement service under section 3366 ended
when the foreman was arrested. The appeals board reversed, stating, “The duty of the
private citizen to assist in the enforcement of law has an ancient history. Section 150 of
the California Penal Code makes it a misdemeanor for any male person over the age of
eighteen years to refuse to aid in making an arrest, recapturing an escapee, preventing a
breach of the peace, or preventing the commission of any other criminal offense. The
obvious purpose of the statute in issue is to afford protection to private individuals
exposed to the hazards associated with police work (California Law Revision
Commission, Reports and Recommendations, February, 1963, pp. 452-453.) [¶] It is our
further opinion that active law enforcement does not terminate with the arrest of the
suspect. . . . In assisting the police the applicant exposed himself to the risk and peril
which is concomitant with active law enforcement. The risk and peril did not end with
the arrest of the foreman but continued by reason of the latter’s release.” (Amend,
supra, Cal.Comp.Cases at pp. 30-31.)
Thus, “active law enforcement” contemplates that the individual is exposing
himself or herself to risks inherent in preventing a crime or breach of peace for protection
of the public.
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Defendants argue these cases discussing “active law enforcement” simply use the
term as a way of identifying the main duties of a peace officer, and here it is undisputed
that a deputy sheriff responding to 911 calls is active law enforcement. Therefore, by
responding to the 911 call on the deputy’s behalf, plaintiffs were engaged in assisting in
active law enforcement. We agree with defendants.
To the extent that section 3366 is ambiguous, we consider extrinsic sources of
legislative intent for section 3366.
The bill enacting section 3366 was recommended by the California Law Revision
Commission, which published a Recommendation relating to Sovereign Immunity,
Number 6 - Workmen’s Compensation Benefits for Persons Assisting Law Enforcement
or Fire Control Officers (January 1963) 6 California Law Revision Commission Report
(1963) pages 1505-1507. We grant plaintiffs’ request for judicial notice of this report.
(Estate of Joseph (1998) 17 Cal. 4th 203, 210, fn. 1.)
Where the Legislature adopts a Law Revision Commission recommendation
without change, we accord the Law Revision Commission Report substantial weight in
interpreting the statute. (Utility Consumers’ Action Network, Inc. v. AT&T Broadband of
Southern Cal., Inc. (2006) 135 Cal. App. 4th 1023, 1029.) Here, the Legislature adopted
the recommended language with only one change, irrelevant to this appeal, i.e., the
enactment excluded independent contractors and their employees from being deemed to
be employees of the public entity. (Stats. 1963, ch. 1684, § 2, p. 3306.)
The Law Revision Commission Report stated: “The California Supreme Court
has held that a person impressed into law enforcement service under Penal Code section
150 [posse comitatus] is entitled to workmen’s compensation benefits as an employee of
the law enforcement agency that requested his assistance. [Fn. citing County of Monterey
v. Industrial Acc. Comm’n (1926) 199 Cal. 221, where sheriff commandeered citizen to
help make an arrest.] Later cases have limited this holding by suggesting that workmen’s
compensation benefits may not be paid if the person assisting in the enforcement of the
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law receives no compensation for his services [fn. citing Department of Nat. Resources v.
Industrial Acc. Comm’n (1929) 208 Cal. 14, 17-18, where the person applied and was
sworn in as volunteer deputy fish and game warden] or if he has volunteered his services.
[Fn. citing City of Long Beach v. Industrial Acc. Comm’n. (1935) 4 Cal. 2d 624, where an
employee of a private detective agency at his employer’s instruction assisted police in
making an arrest]. . . .” (6 Cal. Law Revision Com., supra, at p. 1505.)
In all of the cases cited by the Law Revision Commission, the persons clearly
assumed the risks of law enforcement.
The Law Revision Commission continued: “When a person not trained in law
enforcement or fire suppression 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 or fire control officer, he and his dependents should be
provided with protection against the financial consequences of his death or injury. The
Commission, therefore, recommends that the benefits of the Workmen’s Compensation
Act be extended to cover cases where a person is killed or injured while engaged in the
performance of active law enforcement or fire suppression service, whether he does so
because he is required by law to do so or because he is requested to do so by a peace
officer or fire control officer.” (6 Cal. Law Revision Com., supra, at p. 1505.) “In some
states, local entities are civilly liable, without regard to negligence, for all damages
resulting from the death or injury of a person impressed into law enforcement service.
The Commission believes that it is better policy to extend to such persons the same
benefits and protections that are provided to peace officers generally.” (Id. at p. 1505, fn.
4.)
The above-quoted portion shows a balance between protecting government entities
against open-ended tort liability, while protecting volunteers against the financial
consequences of death or injury
17
We agree Corporal Whitman would have been performing “active law
enforcement service” if he himself had gone to the 911 caller’s home to check on her.
Plaintiffs knew they were responding to a 911 call, and therefore they were assisting in
active law enforcement. Although the deputy misrepresented that the 911 call was likely
weather-related and omitted facts suggesting potential criminal activity, the deputy’s
misrepresentations and omissions are irrelevant to our construction of the statute at issue
here. All that matters is that plaintiffs knew they were responding to a 911 call, the
nature of which was not certain.
We conclude plaintiffs were engaged in assisting in active law enforcement at the
deputy’s request, and their remedy was worker’s compensation under section 3366. We
express no view on plaintiffs’ pending federal lawsuit alleging civil rights violations,
which was stayed pending resolution of the state court litigation. (Gund v. County of
Trinity, supra, 2013 WL 3942030; 2013 U.S. Dist. LEXIS 106823.)
DISPOSITION
The judgment is affirmed. Plaintiffs shall pay defendants’ costs on appeal. (Cal.
Rules of Court, rule 8.278(a).)
HULL , J.
We concur:
BLEASE , Acting P. J.
RENNER , J.
18