Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. RG03-105233
NEEDHAM, J.
Rafael Tapia and others (appellants) appeal from a judgment entered after the trial court granted the summary judgment motion of respondent State of California (State), on appellants’ second amended complaint. The matter arose out of a fatal traffic accident in which a wrong-way driver collided head-on with a vehicle carrying appellants’ decedents. Appellants contend the court erred in granting summary judgment, arguing that: (1) California Highway Patrol officers voluntarily assumed a protective duty and increased the risk of harm after observing the wrong-way driver; (2) the immunity of Vehicle Code section 17004.7 did not apply because the incident did not involve a vehicular pursuit within the meaning of the statute; and (3) the court erred in sustaining the State’s objections to the declarations of appellants’ expert witnesses. We will affirm the judgment.
The surviving legal heirs of decedent Guadalupe Alvarado Ramirez were alleged to include Lorena Hernandez, Rafael Tapia, Monica Tapia, Oscar Tapia, Carolina Hernandez, and Jose Alfredo Alvarez Alvarado. The surviving legal heirs of decedent Rolando Tapia were alleged to include Rafael Tapia, Sr. Lorena Hernandez brought the action as successor in interest of the Estate of Guadalupe Alvarado Ramirez, and Molly Moroney brought the action as personal representative of the Estate of Rolando Tapia.
I. FACTS AND PROCEDURAL HISTORY
In July 2002, a vehicle driven by Luis Armando Hidalgo (Hidalgo) collided head-on with a minivan containing Guadalupe Ramirez, her sons Rolando Tapia and Rafael Tapia, Jr., and a family friend, Juan Jenovebo Garcia. Guadalupe Ramirez, Rolando Tapia, and Juan Garcia died. Rafael Tapia, Jr., suffered severe injuries.
Appellants filed a lawsuit, asserting multiple causes of action against a number of defendants. In the third cause of action of the operable pleading (appellants’ second amended complaint), appellants asserted that they suffered damages as the result of the negligence of the California Highway Patrol (CHP).
A. Summary Judgment Motion
The State filed a motion for summary judgment on the grounds that (1) the CHP owed no legal duty to appellants because there was no special relationship between the CHP and appellants’ decedents; and (2) the CHP is immune from liability under Vehicle Code section 17004.7 (section 17004.7), pertaining to vehicular pursuits.
1. Material Facts
The State’s separate statement of undisputed material facts, supported by admissible evidence, described the relevant events as follows.
At approximately 11:55 p.m. on July 6, 2002, CHP Officers Forrest Baker and John Daly were conducting a traffic stop on westbound freeway SR-84. Officer Daly observed a vehicle traveling in the wrong direction, going westbound on SR-84 in the eastbound lanes. The wrong-way driver was later determined to be Hidalgo.
Upon Officer Daly’s alert, Officer Baker observed the wrong-way driver as well. The officers got into their patrol car and, with Officer Baker driving, activated the “patrol car’s emergency lights, and pursued Hidalgo in order to stop his vehicle.”
In their opposition to the summary judgment motion, appellants disputed this and several other purported undisputed facts on the ground that the officers were not pursuing Hidalgo, but driving parallel to him.
The officers suspected Hidalgo was violating subdivision (b) of Vehicle Code section 21651, which makes it unlawful to drive in the wrong direction on a divided highway. They reported the wrong-way driver to CHP dispatch and requested that a Redwood City CHP unit close eastbound SR-84 at University Avenue. Officers Baker and Daly pursued Hidalgo and caught up with him approximately 200 yards west of the Dumbarton Bridge Toll Plaza. Officers Baker and Daly drove westbound in the westbound lanes, while Hidalgo drove westbound in the eastbound lanes, with the concrete median divider separating their vehicles.
As the officers drove parallel to Hidalgo, Officer Daly used the patrol car’s public address system to repeatedly order Hidalgo to pull over, while Officer Baker activated the patrol car’s red spotlight and rotated it from side to side in an attempt to warn oncoming motorists of the wrong-way driver. Near the toll plaza, Hidalgo’s vehicle side-swiped a pickup truck. Officer Daly advised CHP dispatch of the collision. Despite Officer Daly’s orders to pull over, Hidalgo continued to travel about 25-30 miles per hour in the wrong direction on SR-84.
Believing Hidalgo was not going to stop, the officers decided to drive ahead of Hidalgo, turn around at the “Ravenswood turn-around,” and stop the eastbound traffic.
Appellants dispute the necessity of the officers’ action and contend that the manner in which the officers engaged in the action distracted eastbound vehicles.
As the patrol car accelerated away from Hidalgo, its emergency lights remained on, but Officer Baker discontinued rotating the patrol car’s red spot light. The siren remained on as well.
When the patrol car was about 80-100 yards ahead of Hidalgo’s vehicle, the officers observed Hidalgo’s vehicle collide head-on into appellants’ minivan. The officers turned their patrol car around at the Ravenswood turn-around and responded to the accident scene.
Officers Baker and Daly did not see appellants’ minivan before the collision, and they did not have contact with anyone in the minivan. Appellants argue, however, that the officers contacted or communicated with the minivan’s occupants with their siren and emergency lights.
2. Appellants’ Opposition
With respect to the issue of duty, appellants argued that the CHP officers voluntarily assumed a protective duty to oncoming motorists, including appellants’ decedents, and increased the risk of harm by abandoning that duty and distracting attention away from the wrong-way driver. In support of this argument, appellants submitted a declaration of a human factors expert.
As to the issue of immunity, appellants pointed to the CHP officers’ deposition testimony that they were following the CHP’s “wrong-way driver” policy, and argued that they were therefore not following the pursuit policy. Appellants submitted a declaration of an expert witness to support their argument.
3. The State’s Reply
The State disputed appellants’ legal arguments and objected to the appellants’ expert witness declarations.
4. Ruling and Judgment
The trial court granted the State’s summary judgment motion. The court ruled that “there was no special relationship between Defendant CHP and Plaintiffs” and “therefore Defendant CHP did not owe a duty to Plaintiffs.” In addition, the court ruled, “the undisputed facts establish that Defendant CHP was or had been engaged in a vehicle pursuit of Defendant Luis Armando Hidalgo at the time of the collision, and that Defendant CHP had adopted a written pursuit policy that complies with Cal. Veh. Code 17004.7.” The court also sustained the State’s objections to appellants’ expert declarations.
Judgment was entered, and this appeal followed.
II. DISCUSSION
In reviewing the grant of summary judgment, we conduct an independent review to determine whether there is a triable issue of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860; Buss v. Superior Court (1997) 16 Cal.4th 35, 60; Ochoa v. Pacific Gas & Electric Co. (1998) 61 Cal.App.4th 1480, 1485.) We construe the moving party’s evidence strictly, and the non-moving party’s evidence liberally, in determining whether there is a triable issue. (See D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 20; Alex R. Thomas & Co. v. Mutual Service Casualty Ins. Co. (2002) 98 Cal.App.4th 66, 72 (Thomas).)
A defendant seeking summary judgment must show that at least one element of the plaintiff’s cause of action cannot be established, or that there is a complete defense to the cause of action. (Code Civ. Proc. § 437c, subd. (p)(2).) The burden then shifts to the plaintiff to show there is a triable issue of material fact on that issue. (Ibid.; Thomas, supra, 98 Cal.App.4th at p. 72.)
In the matter before us, the State contended, and the trial court agreed, that summary judgment was appropriate because no duty existed to support appellants’ negligence claim and, in any event, the State was immune from liability. As mentioned, in contending the court’s ruling was erroneous appellants assert: (1) the State owed a duty of care because the CHP officers voluntarily assumed a protective duty and increased the risk of harm; (2) the vehicle pursuit policy immunity of section 17004.7 did not apply because there was no “pursuit” within the meaning of the statute; and (3) the court abused its discretion in sustaining objections to appellants’ experts’ declarations. We address each issue in turn.
A. Duty of Care
“A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would... have given rise to a cause of action against that employee,” unless “the employee is immune from liability.” (Gov. Code, § 815.2, subds. (a)(b).) A public employee is liable for injury caused by his act or omission to the same extent as a private person except as otherwise specifically provided by statute. (Gov. Code, § 820, subd. (a).)
“[L]aw enforcement officers, like other members of the public, generally do not have a legal duty to come to the aid of [another] person.” (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1129 (Zelig); see Foremost Dairies v. State of California (1986) 190 Cal.App.3d 361, 365 (Foremost Dairies).) However, as the court in Zelig stated: “Liability may be imposed if an officer voluntarily assumes a duty to provide a particular level of protection, and then fails to do so (see Williams v. State of California [(1983) 34 Cal.3d 18,] 23-24 & fn. 3... [(Williams)]), or if an officer undertakes affirmative acts that increase the risk of harm to the plaintiff. (See Benavidez v. San Jose Police Dept. [(1999) 71 Cal.App.4th 853,] 863 [(Benavidez)]; Mann v. State of California (1977) 70 Cal.App.3d 773, 780... [(Mann)])” (Zelig, supra, 27 Cal.4th at p. 1129.) In those instances, a special relationship may be created that gives rise to a duty of care.
Appellants argue that Officers Baker and Daly voluntarily assumed a duty to provide a particular level of protection, and engaged in acts that increased the risk of harm to the occupants of the minivan. Neither argument has merit.
1. Voluntary Assumption of Duty of Protection
Appellants maintain that the CHP officers’ use of their red spotlight to slow and warn oncoming traffic constituted an undertaking to protect traffic from the danger posed by Hidalgo.
Appellants’ argument misses the mark. By shining the red spotlight, the officers warned the general motoring public of a serious road hazard. Their actions did not constitute a representation to anyone, including appellants’ decedents, that the eastbound lanes of SR-84 were free of hazards, and the officers’ actions could not have induced reliance to that effect. Nor did the officers make any statement, let alone any representation or promise of safety, to the occupants of the minivan specifically. Accordingly, there is no basis to conclude that the officers voluntarily assumed any duty of protection to appellants’ decedents. (See Williams, supra, 34 Cal.3d at p. 24 [no special relationship exists between CHP and motoring public generally, and it arises only when the officers “voluntarily assume[] a protective duty toward a certain member of the public and undertake[] action on behalf of that member, thereby inducing reliance”; italics added]; Foremost Dairies, supra, 190 Cal.App.3d at pp. 365-366 [officer’s positioning of his patrol car and flashing his amber warning light did not create a special relationship, where the officer did not undertake action toward appellants inducing their reliance, place them in peril, or increase their risk of harm]; cf. Mann, supra, 70 Cal.App.3dat p. 780 [“once a state traffic officer has chosen to investigate the plight of specific persons on a freeway and informed himself of the foreseeable danger to them from passing traffic, a special relationship requiring him to protect them by readily available means arises”; italics added].)
2. Increased Risk of Harm
Appellants contend that Officers Baker and Daly increased the risk of harm because, when they realized Hidalgo was not going to stop, they ceased rotating their red spotlight and accelerated ahead of him with their siren and emergency lights activated. This action, appellants claim, attracted attention towards the officers’ vehicle and away from the hazard posed by Hidalgo.
Appellants refer us to a decision of a federal court judge in Indiana, Carrell v. City of Portage (N.D. Ind. 1985) 609 F.Supp. 314, which involved a firefighter who illuminated a spotlight in a manner that distracted a passing motorist. Carrell is not on point and, in any event, is neither binding on this court nor persuasive under the facts of this case.
Even if appellants’ evidence created a factual question as to whether the officers increased the risk of harm, as a matter of law appellants cannot establish a duty of care, because there is no evidence that appellants’ decedents detrimentally relied on an individualized representation of their safety or protection or that the officers acted toward appellants’ decedents in particular. (See Adams v. City of Fremont (1998) 68 Cal.App.4th 243, 283-284 (Adams).) As the court in Adams explained, “not one of the cases in which courts have imposed a duty on police officers based on the special relationship exception relied solely on affirmative police conduct that increased a preexisting risk of harm.” (Id. at p. 283.) To the contrary, findings of a special relationship duty based on increased risk of harm involved instances in which the officer’s actions toward the plaintiffs in particular put those plaintiffs in peril, or the plaintiffs were dependent on the officers and detrimentally relied on the officers’ conduct as a representation of safety. (Id. at p. 284.) Furthermore, a special relationship duty does not arise when “police conduct only incrementally increased the risk to which the injured person was already exposed.” (Ibid.) “To expansively construe the special relationship doctrine to encompass such incremental increases in a preexisting risk would eviscerate our Supreme Court’s adoption in Williams, supra, 34 Cal.3d at page 23, of the public duty rule, which protects police officers from the burden of assuming greater obligations to others by virtue of their employment.” (Adams, supra, 68 Cal.App.4th at pp. 284-285.)
Appellants argue that detrimental reliance is not necessary to the creation of a special relationship duty, based on the following quotation from Williams: “This does not mean that a promise and reliance thereon are indispensable elements of a special relationship. Such a relationship has also been found when the conduct of a police officer, in a situation of dependency, results in detrimental reliance on him for protection.” (Williams, supra, 34 Cal.3d at p. 25, italics in original.) Appellants misread Williams. Williams merely stated that a verbal promise was unnecessary, not that detrimental reliance was unnecessary. (Ibid.)
Appellants also contend that Adams is inapposite, because Adams determined whether a special relationship arose when an officer’s attempted rescue increased the risk of a suicidal person harming himself, rather than an officer’s action that allegedly increased the risk of a person being harmed by a third party. Adams, however, makes no such distinction, and we find no reason to make the distinction either. Furthermore, the dichotomy appellants repeatedly draw between nonfeasance and malfeasance is unpersuasive; the question is the proper scope of the special relationship doctrine relevant to the activities of police officers in particular.
The court did not err in granting summary judgment.
Former section 17004.7, subdivision (b), as it read at the time of the incident and the filing of the lawsuit in this matter, provided: “A public agency employing peace officers which adopts a written policy on vehicular pursuits complying with subdivision (c) is immune from liability for civil damages for personal injury to or death of any person or damage to property resulting from the collision of a vehicle being operated by an actual or suspected violator of the law who is being, has been, or believes he or she is being or has been, pursuedby a peace officer employed by the public entity in a motor vehicle.” (Stats. 1987, ch. 1205, § 1.)
Subdivision (b) of former section 17004.7 was amended without substantive change by Stats. 2005, ch. 485, § 10, effective January 1, 2006. Effective July 1, 2007, subdivision (b) of present section 17004.7 grants immunity to a public entity that “adopts and promulgates” a written pursuit policy, rather than one that merely adopts a policy. (Stats. 2005, ch. 485, § 11, operative July 1, 2007, italics added.)
If a public agency adopts a written vehicle pursuit policy that meets the statutory requirements, the immunity applies whether or not the officers complied with the policy during the incident or were negligent. (Nguyen v. City of Westminster (2002) 103 Cal.App.4th 1161, 1167 (Nguyen); Brumer v. City of Los Angeles (1994) 24 Cal.App.4th 983, 987 (Brumer).) There is no dispute that the CHP had adopted a vehicle pursuit policy that met the section 17004.7, subdivision (c) requirements at the time of the incident in this case. (See Ketchum v. State of California (1998) 62 Cal.App.4th 957, 965-970 (Ketchum).)
Appellants nonetheless contend the section 17004.7 immunity is inapplicable to the matter at hand. They argue that Officers Baker and Daly did not pursue Hidalgo within the meaning of the statute, particularly since the officers were applying the CHP’s wrong-way driver policy. To address this contention, we first ascertain the pertinent meaning of “pursuit,” and then consider whether there is a triable issue as to whether the officers’ activity constituted such a pursuit, within the meaning of the statute.
1. Statutory Meaning
Section 17004.7 provides public agencies with immunity from civil damages resulting from the collision of a vehicle operated by a suspect “who is being, has been, or believes he or she is being or has been, pursued in a motor vehicle by a peace officer employed by the public entity.” The statute does not define the term “pursued.” The parties have not brought to our attention any legislative history on this point, and the plain and unambiguous meaning of the term obviates any need to resort to legislative history anyway.
In describing the purposes of section 17004.7, courts have noted its relation to high-speed chases in which accidents and injuries result to innocent members of the public. For example, the legislative objectives behind section 17004.7 have been identified as follows: (1) “to free police officers from the fear of exposing their employers to liability when engaging in high-speed pursuits” and (2) “to reduce the frequency of accidents involving the public by encouraging public agencies to adopt safe pursuit policies.” (Billester v. City of Corona (1994) 26 Cal.App.4th 1107,1122; italics added; see Kishida v. State of California (1991) 229 Cal.App.3d 329, 335, 338 [identifying statutory purpose as conferring immunity on entities employing police officers likely to engage in high-speed pursuits, but noting the section was passed to leave with agencies “the fundamental law enforcement decisions about when to undertake a pursuit, free from threats of liability;” italics added].)
While the impetus for enacting section 17004.7 may well have been to address the risks inherent in high-speed pursuits, none of the cases cited, nor any published decision brought to our attention or of which we are aware, limits section 17004.7 to pursuits that would be deemed “high-speed.” For several reasons, an interpretation that so limits section 17004.7 would be untenable.
First, in enacting section 17004.7, the legislature chose to use the word “pursuits,” not “high-speed pursuits.” The common definition of the word “pursue” means to give chase to or to follow, particularly with the intent to overtake and, in this context, capture. (Oxford Dictionary, online 6/09, def. 2.a, 2.b.) There is nothing inherent in the word “pursue” that limits it to high-speed chases. The plain meaning of the word “pursuit,” therefore, includes instances in which the follower is pursuing at less than high speed.
Second, given the Legislature’s willingness to grant immunity in the case of high-speed pursuits, it would certainly be odd not to grant immunity also in cases of low-speed pursuits, where the risk of harm to the public – and the significance of the immunity to any persons injured – would most always be less than when the suspect and law enforcement vehicles are proceeding at high speed.
Third, inserting a “high-speed” requirement into section 17004.7 could interject ambiguity into the statute and run counter to its purposes. Whether a pursuit was at “high-speed” might depend not only upon the velocity of the vehicles, but also the terrain, weather, traffic conditions, and other circumstances. How a court or jury would ultimately resolve the issue, therefore, might not be clear to officers at the time of the pursuit. Furthermore, the factual determination of whether or not a pursuit was at high speed could require the type of litigation threat and expense that the Legislature intended to prevent in enacting the statute. (See Ketchum, supra, 62 Cal.App.4th at pp. 964-965.) In short, section 17004.7 applies to pursuits whether or not they are conducted at a high rate of speed.
2. CHP’s Vehicle Pursuit Policy
The CHP’s written vehicle pursuit policy defines a pursuit as an event involving CHP officers’ attempts to apprehend a suspect who is avoiding arrest by using high-speed driving or evasive tactics. The definition reads as follows: “Pursuit. An event involving one or more law enforcement officers attempting to apprehend a suspect operating a motor vehicle while the suspect is trying to avoid arrest by using high-speed driving or other evasive tactics, such as driving off a highway, turning suddenly or driving in a legal manner but willfully failing to yield to the officer’s signal to stop.” (Italics added.)
Appellants suggest that this paragraph, and specifically its reference to high-speed driving, precludes the State from invoking the immunity ordained by section 17004.7. The argument has no merit. The policy refers not only to high-speed driving, but also to “evasive tactics, such as... driving in a legal manner but willfully failing to yield to the officer’s signal to stop.” (Italics added.) As discussed post, Hidalgo willfully failed to yield to the officers’ directions to stop.
3. The CHP’s Activity
Having clarified the meaning of a pursuit under section 17004.7 and the CHP pursuit policy, we next consider if there is a triable issue as to whether the CHP’s activity in this case involved a pursuit triggering the immunity of section 17004.7.
The CHP’s separate statement of undisputed facts assert that Officers Baker and Daly suspected Hidalgo of violating the law when they observed him driving in the wrong direction on the freeway, the officers pursued Hidalgo in order to pull him over and stop him from colliding into oncoming traffic, and despite the activation of their emergency lights and siren and efforts to persuade him to pull over and stop, he failed to yield to their instructions. The declarations of Officers Baker and Daly support these factual statements. From this evidence, it can reasonably be inferred that the CHP officers were in pursuit of Hidalgo and, more particularly in the phraseology of the CHP pursuit policy, were “attempting to apprehend a suspect operating a motor vehicle while the suspect is trying to avoid arrest by... failing to yield to the officer’s signal to stop.” The State’s evidence is therefore sufficient to shift the burden to appellants to demonstrate a triable issue of material fact.
Appellants fail to establish a triable issue. For example, they point to statements by Officers Baker and Daly in a police report and deposition that they engaged in a protective action (rotating the red spotlight) to warn oncoming vehicles of the wrong-way driver. A protective action, they suggest, precludes a pursuit. We disagree. In the first place, the officers displayed the red spotlight only after they had caught up to Hidalgo; to catch up to him, they had to pursue him. Although the fatal accident occurred after they had caught up to him, the immunity still applies, since section 17004.7 applies where a “suspected violator of the law... has been... pursued.” (§ 17004.7, subd. (b), italics added.) Moreover, as appellants assert, the officers’ use of the red spotlight was intended to protect the public. We cannot accept the notion that the vehicular pursuit immunity would be lost merely because officers took an additional action to protect the public, while trying to stop a suspect.
Appellants also argue that the officers were not pursuing Hidalgo, because they drove parallel to him and escorted him (which was consistent with the CHP’s Wrong-Way Driver’s Policy), and CHP dispatch communicated a “Code 33,” which is the code referenced by the wrong-way drivers policy. However, there is no evidentiary basis to conclude that paralleling a suspect as he continues down a freeway, or calling for a “Code 33,” changed what the officers were doing into something other than a pursuit. Furthermore, as mentioned ante, in order to be alongside and to parallel Hidalgo, the CHP officers had to catch up to Hidalgo from their location when they first noticed him. As Officer Daly testified: “Q. Why did you chase after the suspect vehicle when you saw it going the wrong way? [¶] A. Because we wanted to prevent – we wanted to stop or prevent this collision from happening.” Catching up to and paralleling a suspect to get him to stop is a pursuit.
The wrong-way drivers policy read in part: “WRONG-WAY DRIVERS Even with adequate signposting, officers continue to face the very real problem of wrong-way drivers on full freeways. When this is observed or reported, it is a legitimate basis for a “Code 33.” Under these circumstances, a hazardous condition exists with a great probability that serious injury or death may result. In initiating a ‘Code 33,’ the officer must realize that the condition shall exist only as long as it takes to complete necessary transmissions that will reduce the ‘dire emergency.’ The originator of the ‘Code 33’ is responsible for its cancellation as soon as possible. Officers should refrain from also entering the freeway in the wrong direction when chasing a wrong-way vehicle. The officer should call available units who may stop traffic ahead approaching in the path of the wrong-way driver. The escort technique described in paragraph 6.d of this chapter should be used when possible.”
Appellants further contend the officers testified that they were following the CHP’s written “wrong-way driver” policy and not the pursuit policy. Appellants mischaracterize the evidence. Officer Baker testified that he had a general knowledge of how to deal with wrong-way drivers at the time of the incident and, on the morning of the deposition, he reviewed the CHP’s wrong-way driver policy because he thought he might be asked questions about it and he wanted to verify that he followed its procedures. Officer Daly testified that the CHP has a wrong-way driver policy, which he reviewed before his deposition as well. Although it might be inferred from this evidence that the officers complied with the wrong-way driver policy, it cannot be inferred – and the officers never testified – that they were notfollowing the CHP pursuit policy, the pursuit policy did not apply to the situation, or that following the wrong-way policy and following the pursuit policy were mutually exclusive. Evidence that the officers complied with the CHP’s policy on wrong-way drivers does not, therefore, create a triable issue as to whether the officers were engaged in a vehicular pursuit within the meaning of section 17004.7.
Appellants’ other arguments are meritless as well. First, they note that the pursuit of Hidalgo was only at 25-30 miles per hour. As discussed ante, however, the section 17004.7 immunity applies whether the pursuit is at high speeds or not, and the CHP pursuit policy applies not only when a suspect is driving fast, but also when the suspect drives evasively – as when he is “willfully failing to yield to the officer’s signal to stop.” Hidalgo drove evasively, as he failed to yield to the officers’ commands to stop.
Next, appellants argue there is no evidence Hidalgo was attempting to “flee.” To the contrary, the officers had activated their emergency lights, caught up to Hidalgo, drove alongside him, and ordered him to stop. Hidalgo kept going. That’s flight.
In addition, appellants maintain that the officers did not notify CHP dispatch that they were initiating a pursuit, as required by the CHP pursuit policy, and they did not prepare a required pursuit report on CHP Form No. 187. However, the section 17004.7 immunity applies where there is a pursuit and the agency has adopted an adequate pursuit policy, whether or not the officers actually complied with the policy during the incident in question. (Nguyen, supra, 103 Cal.App.4th at p. 1167; Brumer, supra, 24 Cal.App.4th at p. 987.)
Lastly, appellants urge that the officers’ deposition testimony is inconsistent with their declarations and, therefore, raises a triable issue of fact. (See Conte v. Wyeth, Inc. (2008) 168 Cal.App.4th 89, 99.) Specifically, appellants argue, the State (in appellants’ words) “submitted declarations purporting to correct their testimony” in order to avoid the legal consequences of the officers’ deposition testimony that they were pursuing the wrong-way driver policy. Appellants’ argument is baseless. The officers’ declarations did not purport to “correct” their deposition testimony or to change it in any way. Nor is there any conflict between their declarations and their deposition testimony, since the record discloses nothing inconsistent in the officers both complying with the CHP wrong-way driver policy and conducting a pursuit within the meaning of section 17004.7. (See Weaver v. State of California (1998) 63 Cal.App.4th 188, 200 [“The statute is silent as to the nature of the conduct of the peace officers engaged in the pursuit. There is no express statutory requirement that the pursuit by the peace officer be conducted in a particular manner or have a particular type of cause and effect relationship with the collision....”].)
In short, even if the CHP had a duty to appellants, the section 17004.7 immunity would apply. The trial court did not err in granting summary judgment on the basis of the vehicular pursuit immunity of section 17004.7.
C. Expert Opinion Declarations
In opposing summary judgment, appellants submitted a declaration from Mark Sanders, who opined that the conduct of Officers Baker and Daly increased the risk of harm: specifically, he described the human factors effect on oncoming drivers when the officers terminated their warning actions and sped away with their emergency lights and siren activated. Appellants also submitted a declaration from criminologist George Kirkham, who opined that the officers were following the CHP’s wrong-way driver policy rather than the pursuit policy, and that the officers failed to act with due care when they terminated their warning efforts. The trial court sustained the State’s objections to these declarations on the ground they were irrelevant. We review for an abuse of discretion.
1. Sanders
Appellants contend that Sanders’ opinion – that the officers’ actions increased the risk of harm – was admissible, because whether acts increased the risk of harm can be the proper subject matter of expert witness testimony. (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1017-1018 [trial court may consider expert testimony on the customary practices in an arena of esoteric activity for the purpose of weighing whether the inherent risks of the activity were increased by the defendant’s conduct]; Huff v. Wilkins (2006) 138 Cal.App.4th 732, 745 [court may consider expert evidence in deciding whether a defendant’s conduct increased the inherent risks of a sport].)
The trial court’s ruling, however, was consistent with Benavidez, supra, 71 Cal.App.4th at p. 865, in which the court refused to consider an expert declaration to the extent it opined on “whether a special relationship was created” and “whether the officers increased the risk to plaintiffs.”
In any event, Sanders’ declaration was immaterial for other reasons. As explained ante, whether the risk of harm was increased is immaterial because there was no evidence of detrimental reliance or conduct directed specifically towards appellants’ decedents, and without such evidence there cannot be a duty of care. Moreover, Sanders’ declaration was immaterial because, as a matter of law, the State is immune from liability under section 17004.7.
2. Kirkham
Kirkham opined that, based on the evidence of the officers’ conduct and their statements regarding the incident, the officers must have believed the most applicable policy was the wrong-way driver policy. In addition, Kirkham opined, the CHP did not believe there was a pursuit, because none of the pursuit reports required by CHP policy was generated. Kirkham concluded: “Accordingly, it is clear that the incident did not meet that definition [of pursuit], and this was not a pursuit.”
Each of Kirkham’s opinions in this regard amounts to an inference that might be drawn from the evidence; the determination of inferences to be drawn from the evidence, however, is for the trier of fact, not a witness. The court did not abuse its discretion in ruling these portions of Kirkham’s declaration inadmissible. (See Adams, supra, 68 Cal.App.4th at pp. 265-266; Benavidez, supra, 71 Cal.App.4th at p. 865.)
Kirkham also addressed whether the CHP officers failed to meet the applicable standard of care in this case. Because we conclude that no duty arose, and the immunity of section 17004.7 applied, the issue of breach of duty is immaterial. The court’s refusal to admit Kirkham’s declaration was not reversible error.
Appellants have failed to demonstrate error in the court’s grant of summary judgment.
III. DISPOSITION
The judgment is affirmed.
We concur. SIMONS, Acting P. J., BRUINIERS, J.