Koussaya v. City of Stockton ( 2020 )

Filed 9/21/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(San Joaquin)
----
STEPHANIE KOUSSAYA, C089159
Plaintiff and Appellant, (Super. Ct. No. STK-CV-
UNPI-2016-0003703)
v.
CITY OF STOCKTON et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of San Joaquin County, Barbara
A. Kronlund, Judge. Affirmed.
Piering Law Firm, Robert A. Piering, John D. Beals; and Leslie M. Mitchell for
Plaintiff and Appellant.
Angelo, Kilday & Kilduff and John A. Whitesides for Defendants and
Respondents.
1
Stephanie Koussaya was taken hostage, along with two other women, by three
armed bank robbers, Alex Martinez, Jaime Ramos, and Gilbert Renteria, Jr. Used as
human shields in order to facilitate the robbers’ escape from the bank, the hostages were
forced into a Ford Explorer belonging to one of the hostages, Kelly Huber. A high-speed
chase with law enforcement followed. For Huber, the chase ended abruptly when she
was pushed out of the vehicle after Ramos shot her in the leg, apparently by mistake. For
Koussaya and the other hostage, Misty Holt-Singh, the pursuit lasted for more than an
hour, reaching speeds of over 100 miles per hour, and included exchanges of gunfire
between Martinez, who was firing an AK-47 assault rifle out of the back of the Explorer,
and two Stockton Police Department (SPD) officers, Captain Douglas Anderson and
Officer Edward Webb. The details of the chase will be set forth more fully later in this
opinion. For present purposes, we note Koussaya ultimately decided her best chance at
surviving the ordeal was to open one of the rear side doors and throw herself from the
moving vehicle. As Koussaya explained, having already heard multiple rounds hit the
Explorer during the pursuit, she believed that if she did not jump from the vehicle she
would be killed by the special weapons and tactics (SWAT) team when the chase
inevitably came to an end. Minutes after Koussaya’s escape, the chase did come to an
end, at which point police officers fired several hundred rounds into the Explorer, killing
two of the robbers and the remaining hostage.
Having sustained serious injuries during her escape from the Explorer, Koussaya
sued the City of Stockton and its police department (collectively, the City), as well as
Captain Anderson and Officer Webb (officer defendants), asserting causes of action for
assault and battery, intentional infliction of emotional distress (IIED), and general
2
negligence. 1 The City and officer defendants filed separate motions for summary
judgment. The trial court granted the motions and entered judgment in favor of
defendants. Koussaya appeals.
We affirm. As we explain, although the trial court abused its discretion in ruling
on an evidentiary matter and also misapplied the Government Claims Act (Gov. Code,
§ 810 et seq.) 2 to improperly limit the scope of Koussaya’s claims, taking into account
the improperly excluded evidence and properly viewing the factual basis of her claims
against the officer defendants and the City, we conclude each defendant was entitled to
judgment as a matter of law.
BACKGROUND
In accordance with the standard of review, we recite the facts in a light favorable
to Koussaya as the losing party. (See Saelzler v. Advanced Group 400 (2001) 25 Cal. 4th
763, 768.)
Bank Robbery and Initial Pursuit
In July 2014, Koussaya worked as a bank teller at a Bank of the West location in
Stockton. The bank was situated between three major roads that came together to form a
triangle, Hammer Lane, Thornton Road, and Lower Sacramento Road. On July 16, three
armed men, Martinez, Ramos, and Renteria, robbed the bank. Another bank employee
activated a silent alarm upon their arrival.
Officer Darren Sandoval was on patrol not far from the bank when he heard
dispatch notify another nearby officer, Officer Denise Egan, about the robbery in
progress. Sandoval self-deployed to the bank, activating his patrol car’s emergency lights
1 Koussaya initially named other SPD officers as defendants, but voluntarily
dismissed the lawsuit against them because they did not fire upon the Explorer while
Koussaya was still a passenger therein.
2 Undesignated statutory references are to the Government Code.
3
and siren until he was about a quarter-mile from the bank, at which point he turned off
the siren but kept the emergency lights activated. Sandoval was the second officer to
arrive at the bank. As he approached, he heard Officer Egan notify dispatch there were
three suspects inside the bank. Sandoval pulled into the bank parking lot from Lower
Sacramento Road and parked his patrol car in front of the bank. He correctly assumed
Egan was located on the Thornton Road side of the bank and intended to assist in setting
up a perimeter.
At least three additional SPD officers also responded to the bank. Two joined
Officer Egan blocking the exit onto Thornton Road. One of these officers, Officer
Anisko, traveled to the bank with emergency lights and siren, but deactivated the siren
when he approached the bank. Egan activated only her emergency lights and positioned
her patrol car to block the main exit onto Thornton Road. The third, Officer Zavala,
joined Officer Sandoval on the Lower Sacramento Road side of the bank, blocking that
exit. No one blocked the drive-through ATM exit.
As Officer Sandoval got out of his patrol car and positioned himself next to his
driver’s side front tire in front of the bank, he noticed an elderly man walking through the
parking lot and warned him away from the bank. Sandoval then saw the three robbers
exiting the bank with a hostage, Huber. One of the robbers held Huber by the arm from
behind and held a handgun to her chin; the other two followed in a triangle formation.
Sandoval pointed his service pistol at the lead robber and issued several commands for
the robbers to stop, put their weapons down, and get down on the ground. After some
momentary hesitation, the robbers retreated back into the bank with Huber.
Officer Sandoval holstered his handgun and ran to the trunk of his patrol car to
retrieve a rifle while updating dispatch about the situation. As he started to position
himself with the rifle behind a tree near his vehicle, the robbers again emerged from the
bank, this time with three hostages, Huber, Koussaya, and Holt-Singh. Abandoning his
position behind the tree and again taking aim at the lead robber with his service pistol,
4
Sandoval issued several more commands for the robbers to stop and threatened to “blow
their heads off.” These commands were ignored. The robbers moved slowly towards
Sandoval with the hostages and ultimately moved past him, making their way to Huber’s
Ford Explorer.
Inside the Explorer, Huber got behind the wheel and was ordered to drive. She did
so, exiting the parking lot via the drive-through ATM lane and turning north onto
Thornton Road. Officer Sandoval ran to his patrol car and followed in pursuit, as did
other police units. Less than a minute into the pursuit, one of the robbers, Ramos, shot
Huber in the leg, apparently by mistake. The Explorer then slowed and Huber was
pushed out of the vehicle. Ramos’s cohort, Renteria, got behind the wheel and the chase
continued.
Officer Sandoval was directly behind the Explorer as they approached Davis Road
less than a mile from the bank. The Explorer’s back window shattered in front of him as
the third robber, Martinez, fired a barrage of bullets from an AK-47 assault rifle out of
the back of the SUV. Multiple rounds hit Sandoval’s front tires and grille, disabling his
steering and ending his participation in the pursuit.
Overview of the Remainder of the Pursuit
The pursuit would continue for more than an hour, reaching speeds of over 100
miles per hour, traversing about 60 miles back and forth between Stockton and Lodi, and
involving over 30 police cars. After Officer Sandoval’s vehicle was disabled, other
police cars took its place as the lead pursuer. One by one, these vehicles were either
disabled by additional rounds fired out of the back of the Explorer or fell back to avoid
taking further gunfire.
SPD commanders monitored the pursuit through radio traffic and were able to
view segments of the pursuit through the City’s traffic camera system. Their main
objective was to get the SWAT team to the front of the pursuit to find a tactical means of
disabling the Explorer. The number of police vehicles involved in the pursuit made this
5
difficult. So did SPD’s lack of air support. Eventually, however, a San Joaquin County
Sheriff’s Department aircraft arrived to provide air support for the pursuing officers on
the ground.
Lieutenant Ivan Rose was given tactical command of the pursuit. However, this
information was not clearly communicated to the officers engaged in the pursuit,
including Rose apparently, who testified in his deposition that Lieutenant Ridenour was
in command of the pursuit. Other officers also had different understandings with respect
to who was in charge. For example, one of the SWAT sergeants believed Lieutenant
Pickens was in command. At one point during the pursuit, Ridenour and Pickens gave
conflicting orders with respect to whether or not to put down a spike strip to attempt to
disable the Explorer. The spike strip was not deployed. At another point, Ridenour
ordered officers not to shoot at or ram the Explorer. However, Rose understood this
order to not apply to the SWAT team and thereafter unsuccessfully tried to ram the
Explorer with the SWAT team’s armored vehicle. Another SWAT sergeant testified: “I
don’t believe there was one specific person that had tactical control of this.”
At different times during the pursuit, two SPD officers, Captain Anderson and
Officer Webb, fired at Martinez in the back of the Explorer. We recount the details of
these officers’ participation in the pursuit immediately below.
Captain Anderson’s Participation in the Pursuit
Captain Anderson was at SPD headquarters when he was informed about the bank
robbery and ongoing police pursuit. He was tasked with assisting in the investigation at
the bank and left in an unmarked police car to do so. Anderson took Highway 99 north
towards Hammer Lane on his way to the bank, but heard over the radio that the pursuit
was further north on Highway 99 and heading south. Rather than go to the bank,
Anderson decided to continue past Hammer Lane and exit the freeway at Morada Lane in
case the robbers decided to use that exit as an “escape route.”
6
Captain Anderson parked his car along the southbound onramp and waited for the
pursuit to reach him. From this location, he had a clear view of the offramp the Explorer
would take if it exited the freeway. As Anderson suspected, the Explorer took the exit.
According to Anderson’s deposition testimony, it appeared as though the Explorer
stopped on the offramp. He also saw Martinez lean his body out of the back of the SUV,
“brace[] himself on the tailgate section and put the AK-47 out towards the -- whatever
would be coming around that corner next off the offramp.” Fearing the robbers were
attempting to set an ambush for the pursuing police vehicles, Anderson took aim at
Martinez with his service pistol and fired three rounds. In response, Martinez began
“firing indiscriminately” and then started to withdraw back into the SUV as the vehicle
continued forward. Anderson fired two more rounds as Martinez withdrew into the
Explorer.
The Explorer then drove around a car that was ahead of it on the offramp,
followed by the pursuing officers. Officer Zavala was the lead pursuer at this point in the
pursuit. His patrol car was struck by three rounds fired by Martinez. Like Captain
Anderson, Zavala also testified during his deposition that the Explorer stopped on the
offramp. However, as Zavala acknowledged during his deposition testimony,
surveillance video capturing the shooting did not depict the Explorer stopping on the
offramp.
At the time Captain Anderson fired at Martinez in the back of the Explorer, he was
aware of a general order issued by the SPD regarding situations in which officers are
prohibited from firing at moving or fleeing vehicles. 3 He did not believe that general
order applied to this situation, however, because he was firing at Martinez, rather than the
Explorer itself, in an attempt to stop Martinez from firing at the pursuing officers.
3 The contents of this and other relevant SPD general orders will be set forth later in
the opinion.
7
Anderson was also aware of Lieutenant Ridenour’s specific order, broadcast over the
police radio, not to shoot at the Explorer, but believed that was “just a heads-up” to “keep
in mind there’s hostages in there.” Anderson believed the circumstances demanded the
action he took in shooting at Martinez regardless of the presence of hostages in the
vehicle.
Officer Webb’s Participation in the Pursuit
Officer Webb was involved in K-9 training at the San Joaquin County Fairgrounds
when the bank robbery occurred. Webb self-deployed to the pursuit and monitored its
location over the radio. By the time he caught up to the pursuit, it had been going for
about 30 minutes.
The Explorer was heading north on Interstate 5 (I-5) near the Highway 12 exit in
Lodi when Officer Webb first saw the fleeing vehicle. Webb was located at that exit
waiting to see where the robbers went from there. When the Explorer exited the freeway
and then got back onto I-5 heading south, Webb managed to pull in behind it as the lead
pursuer.
Officer Webb followed the Explorer south on I-5 back to Stockton and was twice
told by air support: “Back off, you’re getting too close.” Webb briefly lost sight of the
Explorer as it took the exit at Benjamin Holt Drive; his patrol vehicle began taking
gunfire on the exit ramp as he followed in pursuit. Webb believed the robbers had set an
ambush for him there. He quickly pulled his car to the right and stopped, got out of the
car, and pulled out his service pistol. Using the driver’s side door to take aim, Webb
fired two rounds at Martinez from a distance of about 150 feet. The Explorer then
continued forward and made a left turn onto Benjamin Holt Drive. Webb got back into
his car and followed but was no longer the lead pursuer.
At the time Officer Webb fired, he was unaware of the general order noted above
and did not hear Lieutenant Ridenour’s specific order not to shoot at the Explorer.
8
However, he believed he was justified in firing at Martinez because he was taking fire on
the off ramp and returning fire in self-defense.
Koussaya’s Escape From the Explorer
When Koussaya became aware of the SWAT team’s participation in the pursuit,
she decided her best chance of survival was to throw herself out of the moving Explorer.
She did so on Portola Avenue, about two miles from where Officer Webb fired at the
Explorer. As Koussaya explained during her deposition, having heard multiple rounds hit
the Explorer, she believed that if she did not jump from the vehicle she would be killed
by the SWAT team when the chase inevitably came to an end. The Explorer was moving
at a high rate of speed when Koussaya jumped. She sustained serious injuries as her
body was flung across the roadway “like a rag doll.”
Minutes after Koussaya’s escape, the chase did come to an end, at which point
police officers fired several hundred rounds into the Explorer, killing two of the robbers,
Martinez and Renteria, and the remaining hostage, Holt-Singh. 4
Koussaya’s Lawsuit
Koussaya sued the City and officer defendants asserting three causes of action: (1)
assault and battery; (2) IIED; and (3) general negligence. Because the operative
complaint delimits the scope of the issues cognizable in this appeal, we describe it in
some detail. (See FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381
[“ ‘function of the pleadings in a motion for summary judgment is to delimit the scope of
the issues’ ”].)
After setting forth the facts of the robbery, the police response at the bank, the
ensuing pursuit, and Koussaya’s escape from the Explorer, the complaint alleges “the
4 Ramos survived the assault on the Explorer, pleaded guilty to first degree murder
under a felony-murder theory, and is currently incarcerated at Pelican Bay State Prison.
(See People v. Ramos (Nov. 7, 2018, C084516) [nonpub. opn.].)
9
hostage situation would not have arisen if the defendants, and each of them, had followed
their own armed robbery protocols and general orders.” The complaint alleges: “Had the
police followed general orders and proper protocol and remained inconspicuous until the
robbers were away from the innocent victims, none of the victims would have been taken
hostage and made to suffer the physical, emotional and permanent harms sustained as
alleged more particularly below.” “Instead,” the complaint continues, “hostages were
taken, one hostage was killed by the police, another victim was shot in her right leg and
[Koussaya] was compelled to jump out of a moving car because of the police pursuit and
bullets being shot into the car by the defendants.” The complaint alleges Koussaya’s
injuries, set forth in greater detail later in the complaint, “were a direct and foreseeable
harm resulting from defendants’ failure to exercise the duty of care owed to [her], by both
their intentional use of deadly and excessive force and in the use of deadly weapons in
attempting to pursue the vehicle [she] was known to be in.”
The complaint additionally alleges the City, “by and through its supervisory
employees and agents,” breached “a mandatory duty of care to properly and adequately
hire, train, retrain, supervise, and discipline its police officers . . . so as to avoid
unreasonable risk of harm.” The alleged breach occurred when the City and its police
officers “failed to take necessary, proper, and/or adequate measures to prevent the
violation of [Koussaya’s] rights and violated general orders and standard bank robbery
procedures in their response to the robbery and pursuit of the robbers.” The complaint
continues: “The lack of supervisorial training demonstrates the existence of a formal or
an informal custom, policy or practice of promoting, tolerating, and/or ratifying with
deliberate indifference the continued use of deadly and excessive force against suspects,
detainees and in particular, [Koussaya], by the defendants, and each of them.” 5
5 The complaint also faults SPD for failing to adequately investigate a previous
robbery committed by two of the robbers at the same bank, resulting in these robbers
10
After reciting various procedural matters pertaining to Koussaya’s compliance
with the Government Claims Act and describing a stipulation entered into between the
City and Koussaya in the federal bankruptcy court regarding Koussaya’s ability to
proceed with this lawsuit notwithstanding the City’s 2013 bankruptcy, the complaint lists
the three causes of action: “Assault and Battery,” “Intentional Infliction of Emotional
Distress,” and “General Negligence.” Under each cause of action, the complaint
incorporates all of the foregoing paragraphs of the complaint by reference and alleges the
defendants’ “above-described conduct constituted assault and battery” and “intentional
infliction of emotional distress,” and their “above-described [conduct] and/or omissions
were negligent and careless in violation [of] both state and federal laws and otherwise
breached duties of reasonable care.”
Summary Judgment Motions
The City and officer defendants filed separate motions for summary judgment.
The City argued the claim Koussaya filed with the City under the Government Claims
Act specifically listed only the police response at the bank and officers shooting at the
fleeing Explorer as the basis for her claims of tort liability, and therefore additional
conduct alleged in the complaint, such as “any wrongdoing, other than shooting, related
to pursuing the robbers” or “insufficient officer training or supervision in any regard,” are
not properly preserved for adjudication. The City also argued immunity from direct
liability for negligent training or supervision of its officers because Koussaya did not
allege any statute or regulation imposing a duty on the City to protect her from being
taken hostage or incurring injury during the high-speed pursuit that followed.
With respect to the City’s vicarious liability based on the officers’ response at the
bank, the City first argued Officer Sandoval’s attempt to arrest the robbers when they
repeating “virtually the exact same crime at the same location . . . without fear of being
caught.” However, this ground of alleged liability has been abandoned and we mention it
no further.
11
initially emerged from the bank with Huber could not support liability for assault, battery,
or IIED for several reasons: (1) Sandoval had probable cause to arrest the robbers at that
point in time and legal authority to threaten deadly force in an attempt to do so; (2)
Sandoval’s threatened use of force complied with federal constitutional standards; (3)
Koussaya was not present when the arrest attempt occurred and therefore could not have
feared harmful bodily contact or been offended by the officer’s attempt to arrest the
robbers and free Huber; (4) Sandoval’s arrest attempt did not result in any contact with
Koussaya at all; (5) far from being “ ‘extreme and outrageous,’ ” Sandoval’s attempt to
arrest the robbers was laudable; and (6) the arrest attempt was “statutorily-authorized and
thus privileged.”
Turning to Koussaya’s vicarious negligence claim based on the police response at
the bank, the City argued: (1) the responding officers owed no duty to protect Koussaya
from being taken hostage; (2) even if a general duty of reasonable care arose because
their conduct increased the risk of peril to Koussaya, that conduct did not amount to a
breach of the standard of care; and (3) discretionary immunity under section 820.2
applied to shield the officers from liability.
With respect to vicarious liability based on the officers’ conduct during the
pursuit, the City again argued Koussaya did not preserve any pursuit-related claim except
as relating to the officers who shot at the Explorer. However, assuming other pursuit-
related conduct could be used to support tort liability, the City argued: (1) the officers
who joined in the pursuit owed no duty to refrain from doing so; (2) the officers’
respective decisions to join in the pursuit were reasonable; and (3) even if certain officers
engaged in unreasonable conduct during the pursuit, “those officers are immune from all
pursuit-related liability” under Vehicle Code section 17004.
Finally, turning to Koussaya’s vicarious claims against the City based on Captain
Anderson and Officer Webb firing at the Explorer during the pursuit, the City argued: (1)
the trial court should grant the officer defendants’ separate motion for summary judgment
12
for the reasons argued therein; and (2) in the alternative, section 845.8, subdivision (b)(3)
provides “immunity against liability for injury caused by a person fleeing, or resisting,
arrest” and Koussaya’s injuries were caused by the robbers’ resistance to and flight from
the officers who were lawfully attempting to take them into custody following the bank
robbery.
As mentioned, the officer defendants filed a separate motion for summary
judgment. Relying primarily on Lopez v. City of Los Angeles (2011) 196 Cal. App. 4th
675 (Lopez), they argued the following undisputed facts established the reasonableness of
their respective decisions to fire upon Martinez in the back of the Explorer: “At the times
Webb and Anderson shot at Martinez, each officer encountered the same essential
situation: persons who the officer believed had committed multiple violent felonies
(armed robbery, kidnapping, carjacking, assault with a deadly weapon, and attempted
murder) were fleeing from arrest, plus Martinez was shooting at that officer (Webb) or
visibly preparing to shoot at other officers (Anderson) in public areas with nearby citizen
motorists. Each officer knew that the suspects had already shot and ejected one hostage
(Huber) and had fired multiple times at other officers. Accordingly, deploying deadly
force against Martinez to stop his further attack was both legally authorized and
reasonable, despite the risks posed to the hostages seated nearby.” With respect to the
manner of shooting, the officer defendants argued “neither Webb nor Anderson allegedly
or actually aimed at Koussaya, nor fired an excessive number of shots,” and “[e]ach
officer ceased firing after the immediate threat posed by Martinez subsided (albeit only
temporarily).”
The officer defendants then addressed a line of authority holding that preshooting
conduct may be considered, as part of the totality of circumstances, in determining the
reasonableness of the shooting itself (see, e.g., Hayes v. County of San Diego (2013) 57
Cal. 4th 622 (Hayes); Munoz v. Olin (1979) 24 Cal. 3d 629 (Olin); Grudt v. City of Los
Angeles (1970) 2 Cal. 3d 575 (Grudt)), and argued these decisions did not support
13
Koussaya’s contention that the allegedly unreasonable conduct of the officers who
responded to the bank created the need for Webb and Anderson to later shoot at Martinez,
“thus rendering those shootings unreasonable.”
Finally, the officer defendants also argued: (1) Koussaya did not preserve any
claim based on their pursuit of the robbers, other than shooting at Martinez, and even if
she did, Anderson never pursued the robbers and Webb lacked a duty to refrain from
doing so; (2) any pursuit-related liability is precluded by both section 820.2 and Vehicle
Code section 17004; and (3) section 845.8, subdivision (b)(3) also provided them with
immunity from liability because Koussaya’s injuries were caused by the robbers’ violent
resistance to and flight from the pursuing officers.
Koussaya’s Opposition to the Motions
Koussaya opposed the motions. In response to the City’s motion, Koussaya
disclaimed any attempt to hold the City directly liable on a negligent training or
supervision theory, but argued all vicarious liability claims based on the entirety of the
officers’ conduct, including their response to the bank, pursuit of the robbers, and
shooting at the Explorer with hostages in the vehicle, were adequately preserved for
adjudication. With respect to those claims, Koussaya argued disputes of material fact
existed precluding the trial court from granting the City’s motion. Taking issue with the
City’s analysis dividing her claims into separate distinct actions undertaken by police,
i.e., the response to the bank, the pursuit, and the shootings, Koussaya argued the entirety
of the officers’ conduct should be analyzed as “a continuing and escalating series of
events that resulted in Koussaya being forced to throw herself out of a speeding car to
avoid being killed by the police.” Relying on the case law noted above, Koussaya argued
disputes of material fact existed with respect to whether or not the City’s officers
breached their duty to exercise reasonable care throughout these events, the totality of
which included the use of deadly force and resulted in Koussaya leaping from the moving
Explorer and sustaining serious injuries.
14
As evidence of the officers’ breach of the standard of reasonable care, Koussaya
relied on four SPD general orders governing responding to robbery alarms, engaging in
vehicle pursuits, use of firearms, and responding to an active shooter situation. 6
Koussaya also relied on certain findings contained in an after-incident report published
by the Police Foundation, including that organization’s conclusion that the “lack of
planning, along with the number of officers involved, created a level of chaos that was
difficult to manage and overcome,” noting the City’s police chief, Eric Jones, “adopted
its findings as accurate.”
Koussaya further relied on a declaration submitted by Roger Clark, a retired
lieutenant with the Los Angeles County Sheriff’s Department, who offered an expert
opinion that both Captain Anderson and Officer Webb acted unreasonably in firing at
Martinez in the back of the Explorer with hostages in the vehicle. Finally, Koussaya
argued a material factual dispute existed with respect to whether these officers were the
only SPD officers who fired at the Explorer while she was in the vehicle, pointing out
that she testified in her deposition to hearing 15 to 20 rounds hit the Explorer and the
shots fired by Anderson and Webb accounted for only seven rounds.
In response to the officer defendants’ motion, Koussaya again argued material
factual disputes existed with respect to whether or not Captain Anderson and Officer
Webb acted reasonably in firing at Martinez with hostages in the Explorer, the result of
which was Koussaya leaping from the vehicle and sustaining serious injuries. In addition
to the general orders governing vehicle pursuits and use of firearms, Koussaya relied on
Lieutenant Ridenour’s specific order not to shoot at the Explorer, arguing these orders are
evidence of the applicable standard of care and the officer defendants breached that
standard of care when they disregarded the orders and fired at Martinez. She also again
6 Relevant portions of these general orders will be set forth in the discussion portion
of this opinion.
15
relied on her expert’s declaration opining that Anderson and Webb acted unreasonably in
doing so. Koussaya argued these material factual disputes prevented the trial court from
granting summary judgment with respect to not only her negligence claim, but also her
intentional tort claims.
Finally, Koussaya argued the officer defendants were not entitled to “fleeing
suspect” immunity under section 845.8, subdivision (b)(3), because her injuries were not
caused by the fleeing robbers, but were rather caused by her jumping from the moving
Explorer in order to avoid being killed by bullets fired by the police.
The Trial Court’s Rulings
The trial court granted the summary judgment motions.
After ruling in the City’s favor with respect to two preliminary matters, both of
which we describe more fully in the discussion portion of the opinion, the trial court
addressed Koussaya’s first cause of action for assault and battery, setting forth the
elements of these separate torts and noting that law enforcement may use reasonable
force to make an arrest, prevent a suspect’s escape, or overcome resistance. The trial
court also explained section 820.2 immunizes an officer from all tort liability for
discretionary decisions, such as the decision to make an arrest, but not ministerial actions,
such as using excessive force in making the arrest. The trial court then followed the
City’s lead in dividing the officers’ conduct into three categories, “(1) conduct of officers
responding to the bank robbery, (2) conduct during the ensuing pursuit, and (3) conduct
of officers who fired on the vehicle during the pursuit,” and concluded as a matter of law
that none of this conduct supported liability for assault or battery.
Turning to Koussaya’s negligence claim, the trial court acknowledged that SPD
general orders are relevant to the question of whether an officer’s conduct has breached
the standard of reasonable care, but concluded as a matter of law that the officers’
conduct in the three categories noted above was either reasonable because the officers
had “probable cause to believe the [robbers] pose[d] a significant danger to the safety of
16
the officer or others,” or the officers “were acting within their discretion and are thus
immune from liability.” Finally, addressing Koussaya’s IIED claim, the trial court
concluded as a matter of law that none of the officers “engaged in any ‘outrageous’
conduct, or acted with intent or reckless disregard for the likelihood of causing emotional
distress.”
With respect to the officer defendants’ motion, the trial court reached the same
conclusions for the same reasons, but more specifically addressed the reasonableness of
these officers’ conduct during the two shooting incidents. Relying on Hernandez v. City
of Pomona (2009) 46 Cal. 4th 501 (Hernandez), Lopez, supra, 196 Cal. App. 4th 675, and
Brown v. Ransweiler (2009) 171 Cal. App. 4th 516 (Brown), the trial court explained: “In
this case, the undisputed evidence shows that at all times relevant to this case, [officer
defendants] had probable cause to believe the robbers posed an imminent threat to the
safety of the hostages, fellow officers, and the public. The robbers were armed, had
taken hostages, had already shot one hostage, and were shooting at police during a high-
speed pursuit through residential areas. All of the evidence shows [officer defendants]
had every reason to believe the robbers would continue to harm hostages and endanger
the public if they failed to take action. As in Brown, Hernandez, and Lopez, under the
totality of the circumstances in this case, [officer defendants’] conduct was reasonable as
a matter of law.”
Judgment was thereafter entered in favor of all defendants. This appeal followed.
DISCUSSION
I
Summary Judgment Principles
We begin by summarizing several principles that govern the grant and review of
summary judgment motions under section 437c of the Code of Civil Procedure.
“A defendant’s motion for summary judgment should be granted if no triable issue
exists as to any material fact and the defendant is entitled to a judgment as a matter of
17
law. [Citation.] The burden of persuasion remains with the party moving for summary
judgment. [Citation.]” (Kahn v. East Side Union High School Dist. (2003) 31 Cal. 4th
990, 1002-1003 (Kahn); Code Civ. Proc., § 437c, subd. (c).) Thus, a defendant moving
for summary judgment “bears the burden of persuasion that ‘one or more elements of’ the
‘cause of action’ in question ‘cannot be established,’ or that ‘there is a complete defense’
thereto. [Citation.]” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 850; Code
Civ. Proc., § 437c, subd. (o).) Such a defendant also “bears the initial burden of
production to make a prima facie showing that no triable issue of material fact exists.
Once the initial burden of production is met, the burden shifts to [plaintiff] to
demonstrate the existence of a triable issue of material fact.” (Laabs v. City of Victorville
(2008) 163 Cal. App. 4th 1242, 1250.)
On appeal from the entry of summary judgment, “[w]e review the record and the
determination of the trial court de novo.” (Kahn, supra, 31 Cal.4th at p. 1003.) “While
we must liberally construe plaintiff’s showing and resolve any doubts about the propriety
of a summary judgment in plaintiff’s favor, plaintiff’s evidence remains subject to careful
scrutiny. [Citation.] We can find a triable issue of material fact ‘if, and only if, the
evidence would allow a reasonable trier of fact to find the underlying fact in favor of the
party opposing the motion in accordance with the applicable standard of proof.’
[Citation.]” (King v. United Parcel Service, Inc. (2007) 152 Cal. App. 4th 426, 433; see
Sangster v. Paetkau (1998) 68 Cal. App. 4th 151, 163 [“responsive evidence that gives rise
to no more than mere speculation cannot be regarded as substantial, and is insufficient to
establish a triable issue of material fact”].)
II
Preliminary Matters
Two preliminary matters must be addressed before we can move onto the
propriety of the trial court’s grant of summary judgment for the officer defendants and
the City. First, did the trial court abuse its discretion in sustaining the City’s hearsay
18
objection to three conclusions contained in the Police Foundation’s after-incident report?
And second, did the trial court misapply the Government Claims Act to improperly limit
the scope of Koussaya’s claims? We address each in turn and conclude the answer to
both is yes.
A.
Exclusion of Police Foundation Conclusions
The Police Foundation, at the request of Chief Jones, conducted a review of the
SPD response to the bank robbery and the pursuit that followed. The result of the review
was a 60-page report titled “A Heist Gone Bad: A Police Foundation Critical Incident
Review of the Stockton Police Response to the Bank of the West Robbery and Hostage-
Taking.” In paragraphs 114 through 116 of Koussaya’s separate statement of additional
material facts, she relied on three conclusions contained in this report. Specifically, the
report concluded: (1) “the number of officers involved in the pursuit led to confusion and
a lack of control”; (2) “there was an absence of direction from supervisors and no
planned response for when the suspect vehicle stopped”; and (3) “ ‘the lack of planning,
along with the number of officers involved[,] created a level of chaos that was difficult to
manage and overcome.’ ” The City objected to these paragraphs of Koussaya’s separate
statement on hearsay grounds. The trial court sustained the objections. We conclude this
was an abuse of discretion.
With many exceptions, hearsay evidence, i.e., “evidence of a statement that was
made other than by a witness while testifying at the hearing and that is offered to prove
the truth of the matter stated,” is inadmissible. (Evid. Code, § 1200.) Two related
exceptions are set forth in Evidence Code sections 1221 and 1222. First, a hearsay
statement offered against a party is not inadmissible “if the statement is one of which the
party, with knowledge of the content thereof, has by words or other conduct manifested
his [or her] adoption or his [or her] belief in its truth.” (Evid. Code, § 1221.) Second, a
hearsay statement offered against a party is not inadmissible if “[t]he statement was made
19
by a person authorized by the party to make a statement or statements for [that party]
concerning the subject matter of the statement” and “[t]he evidence is offered either after
admission of evidence sufficient to sustain a finding of such authority or, in the court’s
discretion as to the order of proof, subject to the admission of such evidence.” (Evid.
Code, § 1222.)
Here, Koussaya does not dispute she relied on three out-of-court statements
contained in the Police Foundation report for the truth of the matters stated therein, but
argues the statements fall within the adoptive admission exception. We agree the
statements are admissible, but expand upon her reasoning to address a second potential
layer of hearsay. The first layer is comprised of the statements contained in the Police
Foundation report. These statements were offered against a party, i.e., the City, and
therefore applicability of the adoptive admission exception turns on whether or not the
City, “with knowledge of the content thereof, has by words or other conduct manifested
[its] adoption or [its] belief in [the statements’] truth.” (Evid. Code, § 1221.) Chief Jones
testified in his deposition that he did so at a press conference. This is the second potential
layer of hearsay. However, Chief Jones’s out-of-court statement is not being used to
prove the truth of the matter stated, i.e., that he in fact agreed with the Police
Foundation’s conclusions, because what is important for the adoptive admission
exception is not the truth of the manifestation of belief, but simply whether such a
manifestation was made. It was.
All that remains is to determine whether or not Chief Jones did so on behalf of the
City. We have no difficulty concluding the Chief of Police was authorized to make
statements on behalf of the City concerning the conduct of police officers under his
20
command. 7 Accordingly, the City, acting through Chief Jones, adopted the conclusions
of the Police Foundation report. (See, e.g., In re Automobile Antitrust Cases I and II
(2016) 1 Cal. App. 5th 127, 149 [“ ‘textbook example’ of an adoptive admission” where an
officer of defendant corporation, acting on behalf of corporation, manifested his belief in
the accuracy of certain out-of-court statements, and presumably would have corrected
any perceived errors in the statements].)
The trial court abused its discretion in sustaining the City’s hearsay objection to
paragraphs 114 through 116 of Koussaya’s separate statement of additional material
facts. However, for reasons we explain later in this opinion, even taking these paragraphs
into account, the City was still entitled to judgment as a matter of law. The evidentiary
error was therefore harmless.
B.
Application of the Government Claims Act
Koussaya also claims the trial court misapplied the Government Claims Act to
improperly limit the scope of her claims. We agree.
“[S]ection 945.4 provides that ‘no suit for money or damages may be brought
against a public entity on a cause of action for which a claim is required to be presented
in accordance with . . . Section 910 . . . until a written claim therefor has been presented
to the public entity and has been acted upon by the board, or has been deemed to have
been rejected by the board . . . .’ Section 910, in turn, requires that the claim state the
‘date, place, and other circumstances of the occurrence or transaction which gave rise to
the claim asserted’ and provide ‘[a] general description of the . . . injury, damage or loss
incurred so far as it may be known at the time of presentation of the claim.’ ” (Stockett v.
7 For this reason, even if Chief Jones’s statement at the press conference is properly
considered hearsay, it would fall within the authorized admission exception of Evidence
Code section 1222, set forth above.
21
Association of Cal. Water Agencies Joint Powers Ins. Authority (2004) 34 Cal. 4th 441,
445, fns. omitted (Stockett).)
“The purpose of these statutes is ‘to provide the public entity sufficient
information to enable it to adequately investigate claims and to settle them, if appropriate,
without the expense of litigation.’ [Citation.] Consequently, a claim need not contain the
detail and specificity required of a pleading, but need only ‘fairly describe what [the]
entity is alleged to have done.’ [Citations.] As the purpose of the claim is to give the
government entity notice sufficient for it to investigate and evaluate the claim, not to
eliminate meritorious actions [citation], the claims statute ‘should not be applied to snare
the unwary where its purpose has been satisfied’ [citation].” (Stockett, supra, 34 Cal.4th
at p. 446.)
In order to comply with these provisions, the claim need not specify each act or
omission later set forth in the complaint. “A complaint’s fuller exposition of the factual
basis beyond that given in the claim is not fatal, so long as the complaint is not based on
an ‘entirely different set of facts.’ [Citation.] Only where there has been a ‘complete
shift in allegations, usually involving an effort to premise civil liability on acts or
omissions committed at different times or by different persons than those described in the
claim,’ have courts generally found the complaint barred. [Citation.] Where the
complaint merely elaborates or adds further detail to a claim, but is predicated on the
same fundamental actions or failures to act by the defendants, courts have generally
found the claim fairly reflects the facts pled in the complaint. [Citation.]” (Stockett,
supra, 34 Cal.4th at p. 447.)
For example, in Blair v. Superior Court (1990) 218 Cal. App. 3d 221 (Blair), the
plaintiff sued the Department of Transportation to recover damages for injuries sustained
in an automobile accident involving an icy roadway. The tort claim she filed stated the
act or omission causing injury was negligent maintenance and construction of the
highway, citing specifically the defendant’s failure to sand the roadway to prevent ice
22
buildup. (Id. at p. 223.) In addition to the failure to sand, the subsequent complaint
alleged the highway and adjoining property was defective because it did not have a
required guard rail, the slope of the roadway contributed to the danger of vehicles being
carried off of the highway and into roadside trees, and there were no warning signs. (Id.
at p. 224.) The trial court granted the defendant’s motion to strike the additional
allegations, concluding they “predicated liability on facts different from those set forth in
the claim.” (Id. at p. 223.)
We issued a writ of mandate directing the trial court to vacate its order granting
the motion. (Blair, supra, 218 Cal.App.3d at p. 227.) As we explained, “the claim and
the complaint . . . are premised on essentially the same foundation, that because of its
negligent construction or maintenance, the highway at the scene of the accident
constituted a dangerous condition of public property.” (Id. at p. 226.) Rejecting the
defendant’s argument that the sole basis of liability asserted in the claim was the failure
to sand or otherwise prevent ice buildup, we noted the claim generally asserted negligent
construction and maintenance of the highway and explained: “A charge of negligent
construction may reasonably be read to encompass defects in the placement of highway
guard rails, slope of the road, presence of hazards adjacent to the roadway or inadequate
warning signs.” (Ibid.)
In contrast, Fall River Joint Unified School Dist. v. Superior Court (1988) 206
Cal. App. 3d 431 (Fall River) involved an attempt by the plaintiff to premise liability on a
new legal theory based on factual allegations not contained in the claim previously filed.
There, the plaintiff was a minor who was injured when his head was struck by a steel
door on his high school campus. (Id. at p. 433.) The tort claim stated his injury was
caused by the dangerous and defective condition of the door. However, in the minor’s
subsequent complaint, in addition to two causes of action alleging the school district
knowingly allowed a dangerous condition to exist on public property and negligently
maintained the school premises, the minor asserted a separate cause of action for
23
negligently failing to supervise students whose horseplay allegedly caused the minor’s
collision with the door. (Id. at p. 434.) We held the school district was entitled to
judgment on the pleadings with respect to this additional cause of action because the new
cause of action “patently attempt[ed] to premise liability on an entirely different factual
basis than what was set forth in the tort claim.” (Id. at p. 435; see also Donohue v. State
of California (1986) 178 Cal. App. 3d 795, 804 (Donahue) [tort claim stating Department
of Motor Vehicles negligently allowed uninsured motorist to take driving exam did not
fairly encompass cause of action alleging negligent supervision by the driving instructor
during that exam].)
Here, Koussaya’s tort claim provided a general description of the bank robbery
and events leading to her being taken hostage, including the initial confrontation between
the robbers and “unknown officers of the [SPD] who had guns drawn and pointed at the
robbers,” causing the robbers to retreat back into the bank with their initial hostage and
take two additional hostages, including Koussaya. The claim then described the “high
speed chase” that “predictably ensued,” including “as many as 33 [SPD] officers” firing
at the fleeing vehicle while Koussaya and another hostage were still in the vehicle. Later,
the claim stated “several [SPD] officers shot at the car,” causing Koussaya to ultimately
“jump from the car when the car was traveling at no less than 50 miles per hour” because
she “[f]ear[ed] that she would be killed by shots fired into the car by police officers.”
The claim asserted: “As a result of the conduct, indifference, containment and pursuit
tactics of unknown police officers of the City of Stockton and their open, obvious and
confrontational presence at the bank, [Koussaya] was taken as a hostage and exposed to
untold physical and emotional harm and loss, the same of which caused and continues to
cause [Koussaya] physical and emotional harm and loss.” The claim further listed the
City, SPD, and multiple individual officers as those against who she believed she could
maintain causes of action for assault, battery, IIED, negligence, and violation of
Koussaya’s constitutional rights. Finally, the claim set forth Koussaya’s injuries.
24
Koussaya’s subsequent complaint asserts assault, battery, IIED, and negligence as
causes of action against two individual officers and vicariously against the City,
supporting those causes of action against the City with additional factual allegations
regarding the police response at the bank and the ensuing pursuit. For example, the
complaint alleges: “[T]he City of Stockton’s police officers arrived at the Bank of the
West with lights on and took positions that were in full view of the bank robbers[,] . . .
forc[ing] the gunmen back into the bank, where they then took hostages, including
[Koussaya and Holt-Singh].” The complaint also alleges: “During the ensuing pursuit,
more and more police officers from defendant City of Stockton joined in the chase, and
thereby escalated and continued to escalate the desperation of the robbers as they
attempted to evade the police. There was no established chain of command, no
established course of action, no limit imposed on the number of officers from [SPD] who
joined in the pursuit, no rules established to contain or diffuse the pursuit and general
disregard for the well-being and safety of [Koussaya] and Holt-Singh.”
Relying on Fall River and Donahue, the trial court ruled Koussaya did not
preserve any claim regarding tortious conduct during the robbery response at the bank
except with respect to confronting the robbers at gunpoint, and further ruled she did not
preserve any claim regarding tortious conduct during the pursuit except with respect to
Captain Anderson and Officer Webb shooting at Martinez in the Explorer. We disagree
on both counts. Unlike Fall River and Donahue, Koussaya is not attempting to hold the
City liable based on a new theory supported by facts not included in the tort claim.
Instead, like Blair, Koussaya’s complaint adds further factual detail to the same claims
raised in the tort claim, and those claims were “predicated on the same fundamental facts
set forth in the complaint.” (Blair, supra, 218 Cal.App.3d at p. 226.) Specifically, the
tort claim asserted Koussaya possessed claims against individual officers and the City for
assault, battery, IIED, and negligence based on officer conduct during “their open,
obvious and confrontational” response to the bank robbery and based on their “pursuit
25
tactics” during the high-speed chase that followed. The complaint contains additional
factual allegations of officer conduct during the bank response and pursuit much like the
complaint in Blair contained additional factual allegations of defective highway
conditions. However, in both cases, the causes of action alleged in the complaint are
based on the same fundamental facts supporting liability on the same legal theory or
theories raised in the tort claim. 8
The trial court erred in concluding otherwise. Nevertheless, as we explain later in
this opinion, even taking these additional factual allegations and supporting evidence into
account, the City was still entitled to judgment as a matter of law.
III
The Officer Defendants’ Motion
Although the causes of action asserted against the officer defendants (assault,
battery, IIED, & negligence) have distinct elements, we need not address each cause of
action individually. This is because the underlying basis of the officers’ alleged liability,
whether for intentional tort or negligence, is the assertion that these officers unreasonably
used deadly force in shooting at the Explorer with Koussaya in the vehicle, causing her to
jump out of the Explorer and sustain serious injuries. (See, e.g., Brown, supra, 171
Cal.App.4th at pp. 527, 534 [state law battery claim against a peace officer is a
counterpart to a federal claim of excessive use of force and requires proof that the
officer’s use of force was unreasonable; where use of force was reasonable, no liability
for either battery or negligence as a matter of law].) We conclude there is no triable issue
of material fact with respect to whether the officer defendants unreasonably fired at
8 Had Koussaya not expressly disclaimed any attempt to hold the City directly liable
for negligent training and supervision of its police officers, we might well hold certain
paragraphs of the complaint suggesting such a theory of liability are beyond the scope of
the tort claim. However, because Koussaya has disavowed such a theory, we need not
decide the matter.
26
Martinez in the back of the Explorer during the pursuit. As we explain immediately
below, based on the totality of circumstances surrounding the shootings, each officer
defendant was entitled to judgment as a matter of law.
A.
Legal Principles Governing the Use of Deadly Force by Law Enforcement
At the time of the events at issue in this case, Penal Code section 835a provided
that a peace officer who has reasonable cause to make an arrest “may use reasonable
force to effect the arrest, to prevent escape[,] or to overcome resistance,” and “need not
retreat or desist from his [or her] efforts by reason of the resistance or threatened
resistance of the person being arrested.” (Former Pen. Code, § 835a; Stats. 1957,
ch. 2147, § 11, p. 3807.)
Effective January 1, 2020, this section was amended to provide:
“(a) The Legislature finds and declares all of the following:
“(1) That the authority to use physical force, conferred on peace officers by this
section, is a serious responsibility that shall be exercised judiciously and with respect for
human rights and dignity and for the sanctity of every human life. The Legislature
further finds and declares that every person has a right to be free from excessive use of
force by officers acting under color of law.
“(2) As set forth below, it is the intent of the Legislature that peace officers use
deadly force only when necessary in defense of human life. In determining whether
deadly force is necessary, officers shall evaluate each situation in light of the particular
circumstances of each case, and shall use other available resources and techniques if
reasonably safe and feasible to an objectively reasonable officer.
“(3) That the decision by a peace officer to use force shall be evaluated carefully
and thoroughly, in a manner that reflects the gravity of that authority and the serious
consequences of the use of force by peace officers, in order to ensure that officers use
force consistent with law and agency policies.
27
“(4) That the decision by a peace officer to use force shall be evaluated from the
perspective of a reasonable officer in the same situation, based on the totality of the
circumstances known to or perceived by the officer at the time, rather than with the
benefit of hindsight, and that the totality of the circumstances shall account for occasions
when officers may be forced to make quick judgments about using force.
“(5) That individuals with physical, mental health, developmental, or intellectual
disabilities are significantly more likely to experience greater levels of physical force
during police interactions, as their disability may affect their ability to understand or
comply with commands from peace officers. It is estimated that individuals with
disabilities are involved in between one-third and one-half of all fatal encounters with
law enforcement.
“(b) Any peace officer who has reasonable cause to believe that the person to be
arrested has committed a public offense may use objectively reasonable force to effect
the arrest, to prevent escape, or to overcome resistance.
“(c)(1) Notwithstanding subdivision (b), a peace officer is justified in using
deadly force upon another person only when the officer reasonably believes, based on the
totality of the circumstances, that such force is necessary for either of the following
reasons:
“(A) To defend against an imminent threat of death or serious bodily injury to the
officer or to another person.
“(B) To apprehend a fleeing person for any felony that threatened or resulted in
death or serious bodily injury, if the officer reasonably believes that the person will cause
death or serious bodily injury to another unless immediately apprehended. Where
feasible, a peace officer shall, prior to the use of force, make reasonable efforts to identify
themselves as a peace officer and to warn that deadly force may be used, unless the
officer has objectively reasonable grounds to believe the person is aware of those facts.
28
“(2) A peace officer shall not use deadly force against a person based on the
danger that person poses to themselves, if an objectively reasonable officer would believe
the person does not pose an imminent threat of death or serious bodily injury to the peace
officer or to another person.
“(d) A peace officer who makes or attempts to make an arrest need not retreat or
desist from their efforts by reason of the resistance or threatened resistance of the person
being arrested. A peace officer shall not be deemed an aggressor or lose the right to self-
defense by the use of objectively reasonable force in compliance with subdivisions (b)
and (c) to effect the arrest or to prevent escape or to overcome resistance. For the
purposes of this subdivision, ‘retreat’ does not mean tactical repositioning or other
deescalation tactics.
“(e) For purposes of this section, the following definitions shall apply:
“(1) ‘Deadly force’ means any use of force that creates a substantial risk of
causing death or serious bodily injury, including, but not limited to, the discharge of a
firearm.
“(2) A threat of death or serious bodily injury is ‘imminent’ when, based on the
totality of the circumstances, a reasonable officer in the same situation would believe that
a person has the present ability, opportunity, and apparent intent to immediately cause
death or serious bodily injury to the peace officer or another person. An imminent harm
is not merely a fear of future harm, no matter how great the fear and no matter how great
the likelihood of the harm, but is one that, from appearances, must be instantly
confronted and addressed.
“(3) ‘Totality of the circumstances’ means all facts known to the peace officer at
the time, including the conduct of the officer and the subject leading up to the use of
deadly force.” (Pen. Code, § 835a.)
Relevant portions of this amended section are declaratory of preexisting case law.
Our Supreme Court “has long recognized that peace officers have a duty to act
29
reasonably when using deadly force” and that “[t]he reasonableness of an officer’s
conduct is determined in light of the totality of circumstances,” including “the tactical
conduct and decisions leading up to the use of deadly force.” (Hayes, supra, 57 Cal.4th
at pp. 626, 629; see, e.g., Olin, supra, 24 Cal.3d at pp. 634, 637; Grudt, supra, 2 Cal.3d at
pp. 585-588.)
For example, in Grudt, a wrongful death action, our Supreme Court held the trial
court erred in removing negligence from the jury’s consideration where two plainclothes
police officers, who were patrolling a high-crime area in an unmarked car at night,
attempted to pull over the hearing-impaired decedent, Grudt, without using the vehicle’s
red light or siren, followed by two other plainclothes officers in another unmarked car
joining in pursuit until Grudt’s car stopped at an intersection, at which point one of these
officers “alighted from his vehicle[,] . . . loaded his double-barreled shotgun as he
approached Grudt’s car,” and “tapped loudly on the closed left front window . . . with the
muzzle of his shotgun.” (Grudt, supra, 2 Cal.3d at p. 581.) This caused Grudt to panic
and accelerate towards one of the other plainclothes officers, who was also out of the
unmarked car with his gun drawn; Grudt was killed when both officers fired at his car,
the latter officer in self-defense and the former in defense of his fellow officer. (Id. at pp.
581-582.) Viewing the evidence favorably to the plaintiff, Grudt’s widow, the court
concluded “the evidence . . . raised a reasonable doubt whether [the officers who shot
Grudt] acted in a manner consistent with their duty of due care when they originally
decided to apprehend Grudt, when they approached his vehicle with drawn weapons, and
when they shot him to death. ‘[The] actor’s conduct must always be gauged in relation to
all the other material circumstances surrounding it and if such other circumstances admit
of a reasonable doubt as to whether such questioned conduct falls within or without the
bounds of ordinary care then such doubt must be resolved as a matter of fact rather than
of law.’ [Citation.]” (Id. at p. 587.)
30
Elaborating on this point in Hayes, our Supreme Court explained “the shooting in
Grudt appeared justified if examined in isolation, because the driver was accelerating his
car toward one of the officers just before the shooting. Nevertheless, we concluded that
the totality of the circumstances, including the preshooting conduct of the officers, might
persuade a jury to find the shooting negligent. [Citation.] In other words, preshooting
circumstances might show that an otherwise reasonable use of deadly force was in fact
unreasonable.” (Hayes, supra, 57 Cal.4th at p. 629-630; see also Olin, supra, 24 Cal.3d
at pp. 636-637 [substantial evidence supported finding that two arson investigators
unreasonably used deadly force against a fleeing suspected arsonist, including evidence
of preshooting conduct; jury could have found the investigators unreasonably identified
the decedent, “the first man they saw” after seeing someone start a fire, unreasonably
failed to warn him deadly force would be used, and unreasonably failed to attempt other
means of apprehension].)
However, although an officer’s preshooting conduct must be considered as part of
the totality of circumstances surrounding the use of force, “ ‘[t]he “reasonableness” of a
particular use of force must be judged from the perspective of a reasonable officer on the
scene, rather than with the 20/20 vision of hindsight.’ [Citation.]” (Hayes, supra, 57
Cal.4th at p. 632.) “The standard for evaluating the unreasonable use of force reflects
deference to the split-second decisions of an officer and recognizes that, unlike private
citizens, officers may use deadly force. An officer ‘ “ ‘may use reasonable force to make
an arrest, prevent escape or overcome resistance, and need not desist in the face of
resistance.’ ” ’ [Citations.] ‘ “ ‘Unlike private citizens, police officers act under color of
law to protect the public interest. They are charged with acting affirmatively and using
force as part of their duties, because “the right to make an arrest or investigatory stop
necessarily carries with it the right to use some degree of physical coercion or threat
thereof to effect it.” ’ ” ’ [Citation.]” (Lopez, supra, 196 Cal.App.4th at p. 685.)
31
“ ‘ “We must never allow the theoretical, sanitized world of our imagination to
replace the dangerous and complex world that policemen face every day. What
constitutes ‘reasonable’ action may seem quite different to someone facing a possible
assailant than to someone analyzing the question at leisure.” [Citation.]’ [Citation.]
Placing the burden of proof on the plaintiff to establish that an officer’s use of force was
unreasonable ‘gives the police appropriate maneuvering room in which to make such
judgments free from the need to justify every action in a court of law.’ [Citation.]”
(Brown, supra, 171 Cal.App.4th at p. 528.)
We finally note that “ ‘[a]s long as an officer’s conduct falls within the range of
conduct that is reasonable under the circumstances, there is no requirement that he or she
choose the “most reasonable” action or the conduct that is the least likely to cause harm
and at the same time the most likely to result in the successful apprehension of a violent
suspect, in order to avoid liability . . . .’ [Citation.]” (Hayes, supra, 57 Cal.4th at p. 632.)
“Law enforcement personnel have a degree of discretion as to how they choose to address
a particular situation. Summary judgment is appropriate when the trial court determines
that, viewing the facts most favorably to the plaintiff, no reasonable juror could find [the
use of force was unreasonable].” (Ibid.)
B.
Analysis
We now apply the foregoing legal principles to the largely undisputed facts of this
case. Based on the totality of circumstances surrounding the officer defendants’ conduct,
we conclude their respective uses of deadly force were reasonable as a matter of law.
Generally, a police officer’s use of deadly force against a suspect will be
considered reasonable where “ ‘ “ ‘the officer has probable cause to believe that the
suspect poses a significant threat of death or serious physical injury to the officer or
others.’ [Citations.]” [Citation.]’ [Citation.] ‘ “Thus, ‘an officer may reasonably use
deadly force when he or she confronts an armed suspect in close proximity whose actions
32
indicate an intent to attack.’ ” [Citation.]’ [Citation.]” (Brown, supra, 171 Cal.App.4th
at p. 528; Lopez, supra, 196 Cal.App.4th at p. 689.)
For example, in Brown, the plaintiff was an innocent bystander who was struck by
bullet fragments when a police officer, Ransweiler, fired five rounds at a fleeing murder
suspect, Ojeda, who drove onto a curb in an attempt to evade arrest and was heading
directly towards Ransweiler and another officer, Baldwin. Concluding the shooting was
reasonable as a matter of law, our colleagues at the Fourth Appellate District explained:
“Ojeda’s actions clearly indicated his intent to harm the officers. In response to a strong
show of force by officers in raid gear who ordered Ojeda to get out of his vehicle, Ojeda
instead drove his vehicle up onto the sidewalk adjacent to the strip mall, ‘gunned’ the
engine, and drove directly toward Ransweiler and Baldwin. After Ransweiler dove out of
the way, he saw Baldwin fall to the ground while still in front of Ojeda’s vehicle.
Ransweiler’s fear that Ojeda would run over Baldwin was reasonable given these
circumstances. [¶] Once Ojeda took this extreme action in response to police orders to
surrender, Ransweiler acted reasonably in shooting at him to attempt to stop Ojeda from
harming Baldwin or a third party, or escaping. Ransweiler’s use of force was not
excessive or unreasonably dangerous relative to the danger Ojeda’s actions posed.
Ransweiler shot at Ojeda five times, from a relatively close distance. Ransweiler did not
shoot into a crowd. Rather, he shot in a direction away from buildings in the strip mall.
In view of the exigency of the circumstances he was facing, Ransweiler met his duty to
use reasonable care in employing deadly force.” (Brown, supra, 171 Cal.App.4th at pp.
528-529.)
Here, as in Brown, both Captain Anderson and Officer Webb had probable cause
to believe Martinez posed a significant threat of death or serious physical injury to the
pursuing officers. Moreover, police officers were not the only lives placed in danger by
Martinez’s conduct. Firing at the pursuing officers endangered the lives of countless
innocent bystanders. No reasonable juror could conclude otherwise. When Anderson
33
and Webb fired at Martinez in an attempt to neutralize the imminent threat he posed to
the lives of officers and innocent bystanders, they thereby endangered the lives of
Koussaya and Holt-Singh inside the Explorer. That is not disputed. But no reasonable
juror would conclude these actions were outside “the range of conduct that is reasonable
under the circumstances.” (Brown, supra, 171 Cal.App.4th at p. 537; see, e.g., Lopez,
supra, 196 Cal.App.4th at pp. 689-691 [no substantial evidence of unreasonable use of
deadly force where officers shot and killed the infant daughter of an armed suspect who
was firing at the officers while holding the child].)
Addressing Anderson’s situation more specifically, at the time he fired at Martinez
in the back of the Explorer, Martinez had already fired an AK-47 assault rifle at multiple
pursuing officers, disabling at least one patrol car. After Anderson positioned himself at
the Morada Lane onramp, the Explorer exited the freeway and Martinez “put the AK-47
out towards the -- whatever would be coming around that corner next off the offramp.”
Anderson also testified in his deposition that the Explorer briefly stopped on the offramp
when Martinez pointed the rifle out the back, indicating an intent to ambush the pursuing
officers. Surveillance camera footage contradicts this testimony. However, this factual
dispute is not material. Viewing the evidence in a light most favorable to Koussaya, as
we must, and resolving the conflict in her favor, a reasonable officer in Anderson’s
position would nevertheless have been more than justified in believing Martinez had “the
present ability, opportunity, and apparent intent to immediately cause death or serious
bodily injury” (Pen. Code, § 835a, subd. (e)(2)) to the pursuing officers, as well as any
innocent bystanders who happened to be in the line of fire, if he did not take immediate
action. 9 The action Anderson took was also reasonable. Like Brown, Anderson’s use of
9 Koussaya also relies on other evidence she argues “places Anderson’s story into
dispute,” such as Anderson driving to Morada Lane rather than responding to the bank as
he was directed, and his decision not to broadcast over the radio even though his stated
34
deadly force was neither excessive nor unreasonably dangerous in relation to the danger
Martinez posed. Anderson quickly took aim and fired three rounds at Martinez, who
responded by firing indiscriminately out of the back of the Explorer, followed by
Anderson firing two additional rounds at Martinez in an attempt to neutralize the threat.
Anderson’s use of deadly force in these circumstances was reasonable as a matter of law.
Turning to the shots fired by Officer Webb, he was the lead pursuer at the time he
fired at Martinez and did so in self-defense as his vehicle took gunfire from the AK-47 on
the Benjamin Holt Drive exit ramp. Webb quickly pulled over, got out of his patrol car,
and using the driver’s side door to take aim, fired two rounds at Martinez from a distance
of about 150 feet. Webb’s actions were objectively reasonable under the circumstances.
No reasonable juror could conclude otherwise.
Nevertheless, Koussaya argues the reasonableness of these officers’ respective
uses of deadly force cannot be determined on summary judgment because both officers
violated an order from Lieutenant Ridenour not to shoot at the Explorer and also violated
purpose in driving to Morada Lane was “to serve as the ‘eyes and ears’ of the pursuit.”
Koussaya argues this evidence suggests Anderson’s real purpose in driving to Morada
Lane was “to make himself the ‘hero’ who stopped the pursuit by shooting the suspects.”
However, even assuming such a conclusion is supported by the evidence, whether or not
Anderson harbored a subjective desire to be a hero is not the relevant question. Instead,
as already indicated, the relevant question is whether a reasonable officer in Anderson’s
position would have believed Martinez had “the present ability, opportunity, and apparent
intent to immediately cause death or serious bodily injury to the peace officer or another
person.” (Pen. Code, § 835a, subd. (e)(2).) There is no real dispute that Martinez had
such an ability, opportunity, and intent.
35
general orders issued by the SPD governing vehicle pursuits 10 and use of firearms. 11 We
are not persuaded.
First, contrary to Koussaya’s argument on appeal, the existence of an applicable
general order does not establish the standard of care for using deadly force. That
standard is set by Hayes: “officers have a duty to act reasonably when using deadly
force” and “[t]he reasonableness of an officer’s conduct is determined in light of the
totality of circumstances.” (Hayes, supra, 57 Cal.4th at p. 629.) If a general order set the
standard of care, then violation of the order would automatically mean a breach of the
standard has occurred. That is not the law. Instead, as our Supreme Court has explained,
general rules of an organization are “evidence that due care requires the course of
conduct prescribed in the rule. Such rules implicitly represent an informed judgment as
to the feasibility of certain precautions without undue frustration of the goals of the
particular enterprise.” (Dillenbeck v. City of Los Angeles (1968) 69 Cal. 2d 472, 478.)
Thus, although the general order regarding vehicle pursuits, and other general orders
10 This general order provides: “The priorities of vehicle pursuits are as follows: [¶]
1. To prevent injury or death to innocent citizens. [¶] 2. To prevent injury or death to a
police officer. [¶] 3. The apprehension of the suspect(s).” The order also cross-
references the general order regarding use of firearms, relevant portions of which are set
forth in the next footnote, and states with respect to terminating a pursuit: “Experience
reveals that shooting at fleeing vehicles is generally ineffective, and the hazards are great.
Decisions to fire at moving vehicles must be based on the most compelling
circumstances.”
11 This general order provides: “Firearms will not be discharged under the following
circumstances. [¶] . . . [¶] (4) At moving or fleeing vehicles involved in violations of
the Vehicle Code (including felony violations such as 20001, 10851, 23105, etc.) unless
necessary to defend the life of the officer or another person. Two facts make this
necessary. [¶] (a) Experience has proven that shooting at moving vehicles is one of the
most uncertain and hazardous shooting conditions in police work, particularly when the
officer is in a moving vehicle. [¶] (b) Many vehicles involved in traffic violations are
driven by persons whose age or reason for fleeing do not justify the use of firearms as
means of apprehension.”
36
discussed later in this opinion, do not establish the standard of care regarding the use of
deadly force, such orders “may well be extremely useful to the trier of fact” in
determining whether a particular use of deadly force, or officer conduct leading up to that
use of force, violated the more “amorphous” standard of reasonableness. (Ibid.; Grudt,
supra, 2 Cal.3d at pp. 587-588 [police tactical manual admissible as evidence relevant to
the question of the reasonableness of the use of deadly force].)
Second, there is a factual dispute concerning whether or not Lieutenant Ridenour’s
order not to shoot at the Explorer applied to Captain Anderson, who was of a higher rank
than Ridenour. However, resolving the matter in Koussaya’s favor for purposes of the
summary judgment motion, we nevertheless conclude violation of the order was
reasonable as a matter of law in these specific circumstances. Again, Martinez had fired
an AK-47 at pursuing officers prior to the two shooting incidents at issue in this appeal.
He was aiming the assault rifle in the direction of his pursuers when Anderson fired. And
he was actually firing at Webb when Webb returned fire in self-defense. For reasons
already expressed, firing at Martinez in these circumstances was reasonable regardless of
Ridenour’s order.
Turning to the officers’ purported violation of SPD general orders, as previously
noted, a general order governing vehicle pursuits provides: “The priorities of vehicle
pursuits are as follows: [¶] 1. To prevent injury or death to innocent citizens. [¶] 2. To
prevent injury or death to a police officer. [¶] 3. The apprehension of the suspect(s).”
According to Koussaya, this order requires “the safety of innocent civilians be prioritized
over the safety of officers” and therefore prohibited Webb from prioritizing his own life
over the lives of the innocent hostages by returning fire when Martinez fired at him. We
are not persuaded the general order draws the sharp hierarchical distinctions Koussaya
reads into it. Nor was the choice Webb faced on the offramp so clearly delineated
between protecting his life over the lives of the hostages. As we have already explained,
every time Martinez fired at pursuing officers he endangered the lives of innocent
37
civilians. Notwithstanding the danger returning fire posed to Koussaya and Holt-Singh,
Webb’s split-second decision to do so was not unreasonable as a matter of law. (See
Lopez, supra, 196 Cal.App.4th at pp. 689-691.) The same reasoning applies to
Anderson’s decision to fire at Martinez in an attempt to prevent him from opening fire on
the pursuing officers. 12
Finally, Koussaya argues there is a material factual dispute regarding whether or
not “Webb’s own actions escalated the pursuit, leading [Martinez] to fire the shots which
Webb returned.” Specifically, Koussaya points to evidence supporting the following
facts: “Webb knew there was air support to track the Explorer, making it unnecessary for
him to follow so close as to draw fire. Yet he continued to follow the Explorer so closely
that both air support and a fellow officer had to warn him to back off. As Webb exited
the freeway onto Benjamin Holt, air support warned him the Explorer was stopped at a
red light. Webb nevertheless closed in on the vehicle until [Martinez] began shooting.”
We acknowledge “preshooting circumstances might show that an otherwise reasonable
use of deadly force was in fact unreasonable.” (Hayes, supra, 57 Cal.4th at p. 630.) That
is not the case here.
12 Koussaya’s reliance on the general order governing the use of firearms is
misplaced because this order prohibits firing at a fleeing vehicle that is “involved in
violations of the Vehicle Code (including felony violations such as 20001, 10851, 23105,
etc.)” and the robbers in this case were not fleeing after a Vehicle Code violation, but
after committing armed robbery, kidnapping hostages, and firing at police officers during
their attempt to escape apprehension. Moreover, even if the general order applied to
these facts, it has an exception where firing at the vehicle is “necessary to defend the life
of the officer or another person.” That exception clearly applies here. Also misplaced is
Koussaya’s reliance on the portion of the vehicle pursuit general order cross-referencing
the foregoing order because it too allows an officer to fire at a moving vehicle under
“compelling circumstances.” For reasons already expressed, the circumstances facing
Anderson and Webb were compelling as a matter of law.
38
Hernandez, supra, 46 Cal. 4th 501 is instructive. There, several police officers
shot and killed an unarmed man, Hernandez, who had led them on a high-speed chase at
night, followed by a foot pursuit involving the use of a police dog. During the foot chase,
Hernandez twice turned towards the pursuing officers, reached towards his waistband,
and yelled either that he had a gun or that he did not have a gun. (Id. at pp. 506-507.) A
federal court entered judgment in favor of the defendants on a civil rights claim for use of
excessive force and dismissed a supplemental state law wrongful death claim arising out
of the same incident. (Id. at p. 505.) Our Supreme Court held the federal judgment
collaterally estopped Hernandez’s surviving family members from relitigating the
reasonableness of the shooting itself because that question was “ ‘precisely the issue
resolved [against them] by the federal jury . . . .’ ” (Id. at p. 513.) However, because
“state negligence law, which considers the totality of the circumstances surrounding any
use of deadly force [citation], is broader than federal Fourth Amendment law, which
tends to focus more narrowly on the moment when deadly force is used” (Hayes, supra,
57 Cal.4th at p. 639), the court separately addressed whether the plaintiffs “could pursue
a negligence claim ‘on the theory that [the officers’] conduct leading up to the shooting,
including the high-speed pursuit, foot chase, and release of a pursuit dog created an
unreasonable risk of harm to themselves and Hernandez.’ ” (Hernandez, supra, 46
Cal.4th at p. 517.)
Reviewing the evidentiary record, our Supreme Court concluded the officers’
preshooting conduct, as a matter of law, did not make the officers’ use of deadly force
unreasonable. In reaching this conclusion, the court first noted the officer who initially
attempted to detain Hernandez was legally justified in doing so, and was further
authorized to pursue him in order to make an arrest. (Hernandez, supra, 46 Cal.4th at pp.
518-519.) With respect to the high-speed pursuit, the court explained Vehicle Code
39
section 17004 13 prevented the individual officers from being “held civilly liable for
Hernandez’s death based on the manner in which they operated their vehicles during the
chase.” (Hernandez, at p. 519.) Nor did Vehicle Code section 17001 14 provide an
exception to this general rule of immunity because Hernandez was not killed by the
negligent or wrongful operation of a police vehicle, but rather by the shooting that
“occurred well after the police stopped and exited their cars and chased Hernandez on
foot.” (Hernandez, at pp. 519-520.) Turning to the manner in which the officers pursued
Hernandez on foot, the court explained the plaintiffs could not rely on the fact that they
chased Hernandez into a darkened parking lot because it was Hernandez who chose
where to run. (Id. at pp. 520-521.) Finally, the court concluded the use and release of a
police dog on these facts was reasonable as a matter of law. (Id. at p. 521.)
Similarly, here, Officer Webb had every right to pursue the robbers in an attempt
to apprehend them for several violent felonies, including armed robbery, kidnapping,
assault with a deadly weapon, and attempted murder. He was not required to retreat or
desist from his efforts to apprehend them on account of their violent resistance. (Pen.
Code, § 835a, subd. (d).) To the extent Koussaya attempts to premise liability on the
manner in which Webb operated his patrol car during the pursuit, i.e., by following at too
close a distance, Vehicle Code section 17004 provides immunity. And as in Hernandez,
13 This section 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 in the immediate pursuit of an actual or suspected violator of
the law, or when responding to but not upon returning from a fire alarm or other
emergency call.” (Veh. Code, § 17004.)
14 This section provides: “A public entity is liable for death or injury to person or
property proximately caused by a negligent or wrongful act or omission in the operation
of any motor vehicle by an employee of the public entity acting within the scope of his
employment.” (Veh. Code, § 17001.)
40
Vehicle Code section 17001 does not apply because Koussaya’s injuries were not caused
by Webb’s operation of the vehicle. In order for that section to apply, “it is not sufficient
that a motor vehicle somehow be involved in the series of events that results in the injury.
The injury must be proximately caused by the negligent ‘operation of a motor vehicle.’ ”
(Ladd v. County of San Mateo (1996) 12 Cal. 4th 913, 923.) Here, Koussaya’s injuries
were not caused by Webb’s operation of his patrol car, but rather by her decision to jump
from the Explorer as it traveled at more than 50 miles per hour, well after Webb pulled
over, got out of the car, and fired at Martinez in self-defense.
Koussaya does not persuade this court that the totality of either officer defendant’s
conduct transformed an otherwise reasonable use of deadly force into an unreasonable
use of such force. The trial court properly granted these officers’ motion for summary
judgment.
IV
The City’s Motion
We now turn to the trial court’s grant of summary judgment for the City and
conclude it was properly granted.
“When a party is injured by a tortfeasor and seeks to affix liability on the
tortfeasor’s employer, the injured party ordinarily must demonstrate either (1) the
employer violated a duty of care it owed to the injured party and this negligence was a
proximate cause of the resulting injury (the direct liability theory), or (2) the tortfeasor-
employee was liable for committing the tortious conduct that caused the injury while
acting within the course and scope of his or her employment (the vicarious liability
theory). [Citation.] When the employer is a governmental agency, the statutory
framework permits the injured party to pursue the vicarious liability theory in accordance
with these general common law principles. [Citation.] However, the statutory
framework requires, as a condition to the injured party’s recovery on a direct liability
theory against a governmental agency, that the injured party identify a ‘specific statute
41
declaring [the entity] to be liable, or at least creating some specific duty of care’ by the
agency in favor of the injured party. [Citations.]” (de Villers v. County of San
Diego (2007) 156 Cal. App. 4th 238, 247-248, fn. omitted (de Villers).)
As previously mentioned, although Koussaya’s complaint contains allegations
suggesting a direct liability theory, i.e., allegations that the City failed “to properly and
adequately hire, train, retrain, supervise, and discipline its police officers,” she has
disclaimed any attempt to hold the City directly liable for her injuries. Nor would such a
theory be successful. (See, e.g., Munoz v. City of Union City (2004) 120 Cal. App. 4th
1077, 1112-1113 [no statutory basis for declaring the public entity defendant directly
liable for negligent hiring or supervision of officers] (Munoz), disapproved on another
point in Hayes v. County of San Diego (2013) 57 Cal. 4th 622, 639, fn. 1; see also de
Villers, supra, 156 Cal.App.4th at pp. 252-253.) Thus, Koussaya’s claims against the
City are purely vicarious.
Section 815.2 sets out the rule regarding vicarious public entity liability: “(a) 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 [or her] employment if the act or omission
would, apart from this section, have given rise to a cause of action against that employee
or his [or her] personal representative. [¶] (b) 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 turn, “section 820
delineates the liability of public employees themselves: ‘(a) Except as otherwise
provided by statute (including Section 820.2), a public employee is liable for injury
caused by his [or her] act or omission to the same extent as a private person. [¶] (b) The
liability of a public employee established by this part . . . is subject to any defenses that
would be available to the public employee if he [or she] were a private person.’ In other
words, ‘the general rule is that an employee of a public entity is liable for his [or her]
torts to the same extent as a private person (§ 820, subd. (a)) and the public entity is
42
vicariously liable for any injury which its employee causes (§ 815.2, subd. (a)) to the
same extent as a private employer (§ 815, subd. (b)).’ [Citation.]” (C.A. v. William S.
Hart Union High School Dist. (2012) 53 Cal. 4th 861, 868.) Finally, we note section
820.2 provides generally for immunity from liability “for an injury resulting from [a
public employee’s] act or omission where the act or omission was the result of the
exercise of the discretion vested in him [or her], whether or not such discretion be
abused.”
Under these provisions, in order for vicarious public entity liability to attach, a
public employee, either named as a defendant or at least “specifically identified” by the
plaintiff, must have engaged in an act or omission giving rise to that employee’s tort
liability. (Munoz, supra, 120 Cal.App.4th at p. 1113.) We have already held summary
judgment was properly granted as to the officer defendants in this case. Accordingly, to
the extent Koussaya’s claims are vicarious to the officer defendants’ actions in this case,
the City’s motion was also properly granted. As the Munoz court explained: “If the agent
or employee is exonerated, the principal or employer cannot be held vicariously liable.”
(Ibid.)
This conclusion does not dispose of the entirety of Koussaya’s claims against the
City, however. She argues the City may be held vicariously liable for the actions of other
officers, beginning with those who responded to the bank in violation of a general order
governing officer response to a robbery alarm, 15 and continuing with those involved in
15 This general order required responding officers to “secure the perimeter of the
bank and or business and advise the Telecommunications Center of their location at the
scene.” The general order also provides: “Units will respond ‘Code 3’ and may
discontinue the use of red lights and siren when close to arrival and respond the
remainder of the distance in accordance with traffic laws. The exact time to discontinue
‘Code 3’ response is to be decided by each individual member assigned to respond,
taking into consideration the fact a hostage situation could be initiated by police response
being recognized by the robbers.”
43
the subsequent high speed pursuit, including Lieutenant Rose who attempted to ram the
Explorer with the SWAT team’s armored vehicle, unidentified officers other than
Anderson and Webb who purportedly also fired on the Explorer while Koussaya was
inside, and SPD commanders who failed to properly oversee the pursuit or effectively
communicate who was in charge in violation of a general order governing officer
response to an active shooter situation. 16
The only officer specifically identified by Koussaya who responded to the bank
was Officer Sandoval. Taking into account the general order noted above, the trial court
thoroughly explained why Sandoval’s conduct at the bank did not amount to assault,
battery, IIED, or actionable negligence. The trial court also thoroughly explained why
officers involved in the pursuit could not be held liable for these torts, including the
conclusion that the decision to engage in pursuit of a fleeing suspect and decisions
regarding chain of command are discretionary, and therefore subject to immunity under
section 820.2. We decline to proceed on a claim-by-claim basis explicating our
agreement with the trial court on these points because Koussaya’s appellate briefing does
not specifically argue that any individual officer, other than Anderson and Webb,
committed an assault or battery against her, intentionally engaged in extreme or
outrageous conduct causing her emotional distress, or negligently used deadly force
16 This general order provides: “One initial officer must take charge of the active
shooter incident. Assumption of tactical responsibility may be based on rank, expertise,
or seniority. However, it must be made immediately clear to both dispatch and other
officers, who is in charge. An officer of superior rank who is on scene and fully briefed
may ultimately assume incident command. Any change in incident command will be
made known to dispatch and other officers.” The order further provides: “No action will
be taken that is unplanned or without controls. Command will be assumed by the first
officer who will initiate the situation analysis and determine initial deployment of
responding resources. At least one person possessing all available information on tactical
plans will remain at the Command Post to brief arriving personnel. Command personnel
en route to the incident will monitor the radio to gain information.”
44
causing her injuries. Again, if a specific individual officer has not engaged in an act or
omission giving rise to that officer’s tort liability, the City cannot be held vicariously
liable. (Munoz, supra, 120 Cal.App.4th at p. 1113.)
Instead, Koussaya argues the combined actions of the officers involved in the
robbery response and the pursuit contributed to “a continuing and escalating series of
events” and “must be viewed as a continuum of circumstances ultimately leading to [her]
being forced to throw herself from a speeding vehicle and suffering severe injuries to
avoid being killed by the police.” In making this argument, she attempts to extend the
rule articulated in Hayes, Olin, and Grudt (i.e., tactical conduct and decisions made by
law enforcement preceding the use of deadly force are relevant considerations in
determining whether the subsequent use of deadly force was unreasonable) well beyond
the facts of those cases. In Hayes and Grudt, the officers who used deadly force were the
same officers whose conduct preceding the use of force was held to be relevant to the
reasonableness determination. (Hayes, supra, 57 Cal.4th at pp. 626, 637; Grudt, supra, 2
Cal.3d at pp. 581-582, 587-588.) In Olin, one officer used deadly force and the preceding
conduct of that officer and his partner, acting together in an attempt to apprehend the
suspect, was held to be relevant to the reasonableness determination. (Olin, supra, 24
Cal.3d at pp. 631-634, 636-637.) Thus, our Supreme Court has held the preshooting
conduct of the officers involved in the use of deadly force is relevant to the question of
whether that use of deadly force was reasonable.
Here, Anderson and Webb were the only officers whose use of deadly force is
alleged to have caused Koussaya to jump from the Explorer and sustain injuries. 17 We
17 Although Lieutenant Rose’s attempt to ram the Explorer with the armored vehicle
qualifies as a use of deadly force, and Koussaya now claims this conduct also contributed
to her decision to jump from the Explorer, her complaint does not mention the ramming
attempt or allege it caused her to jump. “The complaint serves to delimit the scope of the
issues before the court on a motion for summary judgment [citation], and a party cannot
45
have already disposed of Koussaya’s specific arguments regarding their preshooting
conduct. Koussaya cites us to no authority, nor have we found any on our own,
extending the reasoning of the foregoing cases to a situation such as this one, where the
conduct of officers not involved in the ultimate use of deadly force is relied upon to show
that an otherwise reasonable use of deadly force was unreasonable. We decline to extend
these cases to the facts of this one.
Stated simply, because Anderson and Webb are not liable for Koussaya’s injuries
allegedly caused by their respective uses of deadly force, the City cannot be held
vicariously liable for their conduct. Other officer conduct was not actionable as a matter
of law for reasons capably expressed by the trial court. Thus, the City cannot be held
vicariously liable for their conduct. Finally, to hold the City liable not because any
individual officer is liable, but rather because the SPD’s collective response to the bank
robbery and management of the subsequent pursuit was unreasonable and resulted in
Koussaya’s injuries, as Koussaya appears to be arguing under the guise of vicarious
successfully resist summary judgment on a theory not pleaded [citation].” (Whelihan v.
Espinoza (2003) 110 Cal. App. 4th 1566, 1576.) Moreover, Koussaya has presented no
evidence that she knew of the attempt to ram the Explorer at the time she jumped or that
this failed attempt caused her to do so. Indeed, in Koussaya’s deposition testimony, she
stated she decided to jump when she became aware of the SWAT team’s participation in
the pursuit and did so because police were shooting at the Explorer and she was afraid the
SWAT team would kill her when the pursuit came to an end. She did not mention the
ramming attempt. Additionally, although Koussaya also argues other officers shot at the
Explorer while she was inside, she does not specifically identify who these officers were.
(Munoz, supra, 120 Cal.App.4th at p. 1113 [“the doctrine clearly contemplates that the
negligent employee whose conduct is sought to be attributed to the employer at least be
specifically identified”].) Other than her speculative statement during her deposition that,
in addition to the “five to ten” times she heard bullets strike the Explorer (Anderson and
Webb fired a total of seven rounds), she also heard additional shots fired “from further
away,” Koussaya produced no evidence that any SPD officer other than Anderson and
Webb fired at the Explorer while she was inside. We agree with the trial court’s
conclusion that “[w]ithout some evidence of the source or circumstances of those shots,
[Koussaya] has failed to raise a triable issue” regarding shots fired by any other officer.
46
liability, would improperly impose direct liability on the City in the absence of specific
statutory authority to do so.
We conclude the trial court properly granted the City’s motion for summary
judgment.
DISPOSITION
The judgment is affirmed. Respondents are entitled to costs on appeal. (Cal.
Rules of Court, rule 8.278(a)(1), (2).)
/s/
HOCH, J.
We concur:
/s/
BLEASE, Acting P. J.
/s/
HULL, J.
47