Opinion
S270451
11-10-2021
HAYTASINGH (MICHAEL RAMESH) v. CITY OF SAN DIEGO
D076228 Fourth Appellate District, Div. 1.
Petition for review & depublication request(s) denied
The request for judicial notice is granted. The petition for review is denied.
The request for an order directing partial depublication of the opinion is denied.
See concurring statement by Groban, J.
CONCURRING STATEMENT
GROBAN, J.
I agree with my colleagues that this is not an appropriate case in which to grant review, but I write separately to urge the Legislature, as did the Court of Appeal majority, to consider making commonsense changes to the relevant provisions of the Harbors and Navigation Code. I fear that uncertainty surrounding the current statutory scheme jeopardizes the safety of those in need of ocean rescue, as well as the safety of first responders who often risk their own lives to save them.
This case arises from an incident involving surfer Michael Ramesh Haytasingh and lifeguard Ashley Marino that occurred at Mission Beach in San Diego on August 3, 2013. On that day, while on duty as a lifeguard for the City of San Diego (City), Marino was operating an 11.5-foot personal watercraft. Haytasingh alleges that Marino was grossly negligent in the operation of her watercraft in his proximity, which resulted in serious injury when he attempted to avoid her.
At trial, Haytasingh requested a jury instruction stating that City lifeguards operating personal watercrafts are required to comply with the five-miles-per-hour speed limit of Harbors and Navigation Code section 655.2. The trial court refused, holding that City lifeguards are exempt from the speed limit requirement. On appeal, a majority of the Court of Appeal concluded that the trial court erred. The majority held that Marino's City-owned personal watercraft did not fall within the exemptions from section 655.2's speed provisions. First, Marino's City-owned personal watercraft did not qualify for an exemption from the speed limit because it was not "[a] vessel whose owner is a state or subdivision thereof" (§ 650.1, subd. (b)(3)). (Haytasingh v. City of San Diego(2021) 66 Cal.App.5th 429, 458-464 (Haytasingh).) Second, San Diego Municipal Code section 63.20.15's broader exemption from any speed limit for all government employees operating vessels in their official capacities could not apply because it impermissibly conflicted with Harbors and Navigation Code section 655.2, subdivision (b), which only exempts vessels "engaged in direct law enforcement activities that are displaying the lights prescribed by Section 652.5." (See Haytasingh, at pp. 464-466, citing, inter alia, § 660, subd. (a) [any local "measure shall not conflict with this chapter"].) Finally, since it was "undisputed" that Marino's vessel did not possess such lights prescribed by section 652.5, her City-owned personal watercraft could not fall within that exemption either. (Haytasingh, at p. 466.)
All undesignated section references are to the Harbors and Navigation Code.
As persuasively pointed out in amicus curiae letters from various cities and city-run lifeguard services departments, all supporting City and Marino's petition for review, this current statutory framework presents a myriad of problems.
With respect to the Court of Appeal's determination that cities are not exempt as “subdivisions” of the state, the parties debate whether it makes sense for county and state lifeguards to be exempt from section 655.2's speed limit pursuant to section 650.1 while city lifeguards are not. As for the Court of Appeal's determination that City lifeguard vessels are not covered by the San Diego Municipal Code's exemption for all government employees operating vessels in their official capacities, the parties disagree about whether the Legislature actually intended to limit cities' authority to regulate harbor speed limits. Because the Legislature is best situated to make these very determinations, I echo the Court of Appeal majority's call for the Legislature to clarify its intent.
See Haytasingh, supra, 66 Cal.App.5th at page 464 ("[G]iven the ambiguity in Harbors and Navigation Code section 650.1, subdivision (b)(3), and particularly in its interaction with the speed limit set forth in section 655.2 of that same code, we respectfully invite the Legislature to consider amending portions of chapter 5 of division 3 of the Harbors and Navigation Code to clarify its intent with respect to these provisions").
Clarification is crucial because, without further guidance, there is remaining uncertainty about whether city-owned watercraft can ever be exempt from section 655.2's five-miles-per-hour speed limit. The Court of Appeal majority suggests that, even if the above-described exemptions do not apply to cities, city-owned watercraft may still be exempt from section 655.2's speed limit if they are "engaged in direct law enforcement activities" and displaying the distinctive blue lights prescribed by section 652.5 (§ 655.2, subd. (b)). (Haytasingh, supra, 66 Cal.App.5th at p. 466.) However, it is unclear whether personal watercrafts engaged in lifeguarding services can, or should, qualify for section 655.2, subdivision (b)'s "blue light" exemption. As the City of Encinitas explains in its amicus curiae letter, "The vessels are not marked, lighted or intended as a law enforcement vessel but as a life safety platform with the primary mission of the Rescue Craft being rescue, patrol, and surveillance." Furthermore, even if these watercraft are law enforcement vessels and thereby exempt from the speed limit as long as they display the "distinctive" blue lights required by the statute, it may be difficult and expensive to comply with the exacting lighting requirements. (Cal. Code Regs., tit. 14, § 6591 ["The distinctive light prescribed by Section 652.5, Harbors and Navigation Code, for law enforcement vessels shall be a blue colored, revolving horizontal beam, low intensity light rotating or appearing to rotate because of a pulsating effect gained by means of a rotating reflector which causes a flashing or periodic peak intensity effect. The light shall be located at any effective point on the forward exterior of the vessel"].) Not only are the lighting requirements highly technical but, as amicus curiae the City of Santa Cruz explains, "[Rescue watercrafts] are small craft with little room for a blue light."
If city-owned personal watercrafts engaged in lifeguarding services cannot qualify for any of the exemptions from section 655.2's speed limit, the result is quite troubling. This would mean that such vessels cannot exceed five miles per hour within 100 feet of bathers, which includes surfers and swimmers, or within 200 feet of "[a] beach frequented by bathers." (§ 655.2, subd. (a)(2)(A); see § 651.1.) As amici curiae explain, such a limitation on lifesaving personal watercrafts, which regularly operate in rough surf in an attempt to rescue bathers who are in grave danger, imperils public safety. The City of San Diego Fire-Rescue Department's Lifeguard Services Division aptly describes the concern: "Every second responding to a water rescue is integral to a positive outcome. Once a drowning victim slips under the surface of the water, the rate of survival and recovery becomes exponentially worse. The [rescue watercraft], due to its speed, power, and high vantage point on the water, is a force multiplier and the most effective lifesaving tool inside the surf line." Indeed, without an exemption from the five-miles-per-hour speed limit, these important rescue watercraft may be rendered useless as a lifesaving aid (the City of San Diego Fire-Rescue Department's Lifeguard Services Division explains that "[t]he idle speed of [a rescue watercraft] in flat water is approximately 5 mph and a restriction to this use of speed would render the vessel unsuitable for rescue operations"). It will be of little comfort to the next swimmer or surfer in peril to learn that the most effective means of saving him or her is unavailable due to a latent ambiguity in the Harbors and Navigation Code. I urge the Legislature to address this ambiguity forthwith.
We Concur: CORRIGAN, J., LIU, J. JENKINS, J.