Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. RG06292491
NEEDHAM, J.
Patricia Messner (Messner) appeals from a judgment entered after the trial court granted respondents’ summary judgment motion on the ground they were immune from liability for damages arising from a police pursuit of a fleeing criminal suspect. (Veh. Code, § 17004.7.) Messner contends that application of section 17004.7 violated her constitutional rights. We will affirm the judgment.
Unless otherwise indicated, all statutory references are to the Vehicle Code.
I. FACTS AND PROCEDURAL HISTORY
In January 2006, Messner was injured when her car was struck by a vehicle driven in the wrong direction on the I-580 freeway in Oakland, California. The vehicle had been pursued onto the freeway by an Oakland police officer. At the time, the Oakland Police Department had in place a vehicle pursuit policy known as General Order J-4, which was adopted pursuant to the immunity provisions of an earlier version of section 17004.7. (Stats. 2005, ch. 485, § 10, inoperative July 1, 2007 and repealed January 1, 2008, by its own terms.)
The current version of section 17004.7 became effective July 1, 2007. (Stats. 2005, ch. 485, § 11.) The immediately preceding version was effective between January 1, 2006 and July 1, 2007. This is the version that was effective at the time of the incident and the filing of the lawsuit in this case. We will refer to it as “former section 17004.7.” Messner relies on a version that became inoperative on January 1, 2006. There being no material distinction between the latter two versions for purposes of this appeal, we will construe Messner’s arguments broadly and consider her challenge to be to the version effective when the incident occurred.
Messner filed a complaint against the City of Oakland and the Oakland Police Department in October 2006. In addition to seeking damages for her personal injuries, she sought a judicial declaration that former section 17004.7 was unconstitutional and could not be enforced in her case.
In June 2007, respondents moved for summary judgment or, in the alternative, summary adjudication. As to Messner’s claim for damages, respondents asserted they were immune from liability under former section 17004.7, based on the adoption of the General Order J-4 pursuit policy. As to Messner’s request for a judicial declaration that former section 17004.7 violated her due process and equal protection rights, respondents noted that California appellate courts had already upheld former section 17004.7 against this type of constitutional attack.
In their separate statement of undisputed material facts, supported by admissible evidence, respondents provided details of General Order J-4 and asserted that the vehicular pursuit was conducted by Officer Mellone, who terminated the pursuit upon seeing the suspect make a U-turn onto the freeway in the wrong direction.
Officer Mellone’s supporting declaration described the incident essentially as follows. Driving a marked police vehicle with an overhead lightbar and siren, Officer Mellone responded to the scene of a reported carjacking around 1:00 a.m. He obtained a description and license plate of the carjacked Oldsmobile, drove to a location where the car had been spotted, and saw a man opening the Oldsmobile’s door. When Officer Mellone instructed the man to stop, the suspect looked at the officer, got in the Oldsmobile, and sped off. Officer Mellone advised dispatch, activated his vehicle’s emergency lights and siren, and began his pursuit. The Oldsmobile ran a red light and a stop sign and did not have its headlights on. It entered the I-580 westbound freeway on-ramp, made a sharp u-turn across the on-ramp entrance, and proceeded eastbound in the wrong direction on the westbound lanes of the freeway. Officer Mellone immediately terminated the pursuit, notified dispatch, turned off his emergency lights and siren, exited the freeway westbound, and reentered the freeway eastbound. A few minutes after the pursuit had terminated, he observed the Oldsmobile on its roof on the shoulder of the freeway. Police officers were tending to multiple traffic collision victims.
Messner filed her opposition to the summary judgment motion in August 2007, maintaining that former section 17004.7 was unconstitutional and Officer Mellone and others were negligent. Messner did not dispute respondents’ facts concerning the pursuit policy. She did, however, dispute other facts concerning the incident and submitted additional facts regarding the police pursuit and Officer Mellone’s purported failure to comply with the pursuit policy. Messner also asserted that she was driving lawfully on westbound I-580 around 1:30 a.m. when she was “violently struck by an Oldsmobile... [going] the wrong way at high speed with no lights causing her to sustain serious injuries.”
After a hearing, the court granted respondents’ summary judgment motion. Messner filed a notice of appeal, which we dismissed as premature in October 2007. Judgment in the trial court was entered on November 7, 2007, and this appeal followed.
II. DISCUSSION
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 that 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, pursued in a motor vehicle by a peace officer employed by the public entity.” (Stats. 2005, ch. 485, § 10.)
Effective July 1, 2007, subdivision (b) of section 17004.7 was amended to be subdivision (b)(1) and to grant 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 (Sen. Bill No. 719), § 11, operative July 1, 2007, italics added.) In addition, current section 17004.7 now requires the public entity to train its officers in the policy and obtain the officers’ written acknowledgment that they received and understand it. (See § 17004.7, subds. (b)(2)-(e).) The Oakland Police Department requires all officers to be trained on General Order J-4, and officers are required to read and know its contents. Oakland police officers are given eight hours of instruction in the policy and practice of General Order J-4, and they undergo vehicle exercises and testing as part of their training. Messner’s arguments assume that the relevant language of former section 17004.7 applies here; she further asserts the amendments operative July 1, 2007, do “not bear directly on this case.”
General Order J-4 was adopted as the Oakland Police Department’s written policy on vehicular pursuits. General Order J-4 sets forth standards of vehicle pursuit for officers in the field, including supervisory control of the pursuit, procedures for designating the primary pursuit vehicle, procedures for coordinating with other jurisdictions, and guidelines for initiating and terminating a vehicular pursuit.
Messner does not explicitly contend that respondents lack immunity because General Order J-4 fails to comply with the requirements of subdivision (c) of former section 17004.7. Instead, she contends that former section 17004.7 was unconstitutional. She further argues that Officer Mellone and other officers did not comply with the pursuit policy and acted negligently.
Messner states that the pursuit policy is “deficient” because, although it addresses the relinquishment of a pursuit to another law enforcement agency, it does not address the termination of a pursuit with the “hope” that another agency will pick it up. Messner does not establish that this purported deficiency means the policy was not in compliance with subdivision (c) of section 17004.7. (See McGee v. City of Laguna Beach (1997) 56 Cal.App.4th 537, 547; Billester v. City of Corona (1994) 26 Cal.App.4th 1107, 1118 (Billester); Alcala v. City of Corcoran (2007) 147 Cal.App.4th 666, 676.)
A. Constitutionality
Messner argues that former section 17004.7 was unconstitutional under the equal protection clauses of the California Constitution (Cal. Const., art. I, sec. 7 (a)(b)) and the federal Constitution (U.S. Const., 14th Amend.), because it is “irrational on its face” and thus fails the rational basis test. She insists that providing immunity to cities that have merely adopted a pursuit policy, without proof that the policy was followed by the officers involved in the incident, does not bear a rational relationship to the statute’s presumed legislative goals. Essentially, her point is that there cannot be any reduction in accidents and injuries if the police do not follow the policy.
Respondents contend Messner’s constitutional claim is moot, because current section 17004.7 requires public entities to not only adopt a pursuit policy, but also to promulgate it and train its officers. We disagree. If the amendments to section 17004.7 cured the purported flaws that Messner claims were in the earlier version of the statute, she could no longer obtain a judicial declaration that section 17004.7 is unconstitutional. However, it was former section 17004.7 that was in effect at the time of Officer Mellone’s pursuit and Messner’s injuries, and it was the former statute underlying respondents’ affirmative defense and the court’s summary judgment. Messner is not precluded from arguing that former section 17004.7 was unenforceable at the time it was enforced.
Although Messner does not cast her arguments along the lines of traditional equal protection analysis, in her opening brief, she contends that similarly situated classes are treated disparately as follows: persons who, like Messner, are injured in accidents allegedly caused by police pursuits in jurisdictions where a pursuit policy has been adopted, are similarly situated with persons who are injured in accidents caused by police pursuits in jurisdictions where a pursuit policy has not been adopted; former section 17004.7 treated those respective classes differently by granting immunity to the public entity in the former situation but not in the latter; and this disparate treatment was unconstitutional because there was no rational basis for it.
In her reply brief, Messner contends that: persons who, like Messner, are injured in a “high-speed pursuit of a suspected law breaker” are similarly situated with other persons “injured by governmental tort, police misconduct or negligence”; former section 17004.7 granted immunity to public entities in the former situation but not the latter; and the disparate treatment was irrational. Messner does not establish that persons injured in high-speed police pursuits are in fact similarly situated with persons injured by governmental torts, police misconduct, or negligence. She therefore has no equal protection claim on this basis. In any event, as discussed in the text post, former section 17004.7 had legitimate governmental objectives, and Messner has not shown the absence of a rational basis for the statute. There is an obvious distinction between police pursuit of fleeing criminal suspects and many other police or governmental activities.
We next turn to the appropriate test of constitutionality. Messner acknowledges that the rational basis test applies, but she also suggests in her opening brief that there must be a “compelling state interest” to justify former section 17004.7: “even assuming arguendo for the moment that [it] is rationally related[] to some interest there is no compelling state interest in immunizing a public entity in this very narrow area, which however, probably presents the most pernicious and serious risk to the innocent public of all governmental undertakings.” She insists: “The rational relation test, as In re Marriage Cases clearly explains, must be rationally reasonably related to a compelling state interest.” (See In re Marriage Cases (2008) 43 Cal.4th 757.) As she later acknowledged at oral argument, this is incorrect.
Because Messner has identified no suspect classification or fundamental constitutional right at stake, respondents do not need to show a compelling state interest for the statute to be upheld. (See In re Marriage Cases, supra, 43 Cal.4th at p. 832.) Where, as here, a statute does not classify along suspect lines or infringe fundamental constitutional rights, the statute is upheld “if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” (Samples v. Brown (2007) 146 Cal.App.4th 787, 807 (Samples).) Under this rational basis test, a legislative classification will be upheld unless the plaintiff proves the statute is not rationally related “to a legitimate state end.” (Lostritto v. Southern Pac. Transportation Co. (1977) 73 Cal.App.3d 737, 749 (Lostritto); see In re Marriage Cases, at p. 832.)
There were plainly legitimate state ends to former section 17004.7. As California appellate courts have articulated for over a decade, these legislative objectives were: (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, supra, 26 Cal.App.4th at p. 1122.) A subsidiary purpose of former section 17004.7 was to preserve the ability of law enforcement to make decisions about when to undertake a pursuit. (See Colvin v. City of Gardena (1992) 11 Cal.App.4th 1270, 1278; Ketchum v. State of California (1998) 62 Cal.App.4th 957, 964-965 (Ketchum).)
Proceeding to the next step of the analysis, there was clearly also a rational basis for the Legislature to conclude that former section 17004.7, including its distinction between public entities with a pursuit policy and those without one, would accomplish these legitimate legislative aims. We apply the following criteria: “[A] statute will be set aside on equal protection grounds only if it is based on reasons totally unrelated to the pursuit of that goal. The Legislature is presumed to have acted constitutionally and the statutory classification will be set aside only if no ground can be conceived to justify it.” (Lostritto, supra, 73 Cal.App.3rd at p. 749.) There need only be “ ‘plausible reasons’ ” for the classification. (Samples, supra, 146 Cal.App.4th at p. 807.)
It was not irrational for the Legislature to believe that a police department’s adoption of a pursuit policy, which complied with the statutory standards designed to make police pursuits safer, would reduce the frequency and severity of accidents in police pursuits, even if the statute did not expressly require the public entity to prove the police officers followed the policy on a specific occasion. The Legislature could reasonably assume that police officers would take steps to follow their department’s pursuit policy, out of concern for the safety of the public he or she had sworn to serve, concern for the officer’s own safety and the safety of fellow officers, and concern for his or her career if the officer ignored departmental policy. Requiring a public entity to prove, in each and every lawsuit, that the pursuit policy was in fact followed by all of the officers at every juncture of the incident would be entirely inconsistent with the purpose of the statutory immunity that the Legislature intended to provide.
California appellate courts have consistently reached the same conclusion. In Billester, supra, 26 Cal.App.4th 1107, the appellants argued that former section 17004.7 violated their equal protection rights because it differentiated “between victims based on whether a particular public agency has adopted a written pursuit policy or not.” (Billester, at p. 1124.) The court rejected the argument: “[T]he Legislature could rationally have concluded that when a public agency adopts a pursuit policy with adequate guidelines, suspects pursued by peace officers employed by that agency pose less threat to the public than when no standards guide the officers’ conduct of the pursuit. Moreover, the possibility of immunity provides a strong incentive for public agencies to promulgate written pursuit policies, thus increasing the likelihood that chases will be conducted safely.” (Id. at pp. 1124-1125.)
In Brumer v. City of Los Angeles (1994)24 Cal.App.4th 983 (Brumer), the court rejected as “insubstantial” the argument that former section 17004.7 was “ ‘unlawful, if not unconstitutional’ ” unless given a saving construction that immunity depended upon proof of the pursuit policy’s implementation generally and on the particular occasion. (Brumer, at p. 987; see also McGee v. City of Laguna Beach, supra, 56 Cal.App.4th at p. 549 [upholding application of former section 17004.7, notwithstanding the impact of the ruling on the injured plaintiffs, because “[i]n the area of tort liability and immunities for public entities, we defer to the policy determinations reached by the Legislature”].)
In Ketchum, supra, 62 Cal.App.4th 957,the court rejected a contention that former section 17004.7 violated due process, concluding that “there is a rational relationship between the legislative policy and the statute.” (62 Cal.App.4th at p. 964.) Of particular relevance to the notion Messner raises here, the court stated: “Plaintiffs further contend the immunity statute violates due process because it grants immunity once a pursuit policy is adopted, regardless of whether the policy is followed. The Legislature can presume that once a policy is adopted, it will be followed. (Evid. Code, § 664; Civ. Code, § 3529.) More fundamentally, plaintiffs ignore the purpose of immunity statutes.... This purpose is in keeping with the general purpose of governmental immunity to shield government officials from disabling threats of liability and second-guessing as to the exercise of their discretion. [Citations.] This purpose cannot be accomplished by merely shifting the inquiry from whether the pursuit was reasonable to whether the pursuit complied with the policy. Plaintiffs offer no authority that due process requires immunity attach only when the policy is followed.” (Ketchum, at pp. 964-965.) Messner’s challenge to former section 17004.7, whether on equal protection or due process grounds, fails.
Messner’s arguments to the contrary are without merit. She points out that the court in Nguyen v. City of Westminster (2002) 103 Cal.App.4th 1161 (Nguyen), while applying former section 17004.7, “urge[d] the Legislature to revisit the statute and seriously reconsider the balance between public entity immunity and public safety,” noting that “[t]he balance appears to have shifted too far toward immunity and left public safety, as well as compensation for innocent victims, twisting in the wind.” (Id. at p. 1169.) Even if we were to share that sentiment, we could do no more than the court in Nguyen, which upheld the statute and recommended further legislative consideration. Since Nguyen, the Legislature has amended the statute, and the adequacy of the current version of the statute is not before us.
Messner criticizes the numerous appellate courts construing former section 17004.7 to require only the adoption of a pursuit policy in order to obtain immunity. That construction of the statute, however, is based on the plain language of former section 17004.7, which refers only to the adoption of the pursuit policy, not to whether the police have followed it in general or on a particular occasion. Messner does not provide any evidence that the legislative intent was contrary to the statute’s plain meaning.
Messner also argues that former section 17004.7 is irrational because “[t]he public entity involved is by far in the best position to either adopt a conservative and low risk chase policy, or spread the risk and not have it fall entirely on the innocent victim.” She misses the point of the rational basis test: the question is not whether the Legislature decided to pursue its goal in a way the plaintiff thinks is best, but whether there was some rational link between the statute and its goal. For the reasons we and other courts have repeatedly stated, there was.
Messner complains that appellate courts have “yet to step up and explain” how a pursuit policy that “need not be, and is probably mostly not enforced” can reduce the frequency and severity of accidents. There is nothing in the record to support her speculative aspersion that pursuit policies are “probably mostly not enforced.” In any event, over a decade ago the court in Ketchum “step[ped] up and explain[ed]” the propriety of presuming that an adopted policy will be followed, as do we ante.
Finally, Messner urges that respondents should not be able to claim immunity, because if a speeding trucker harmed someone, the trucking company would not be immune from liability simply by virtue of its anti-speeding policy. In our view, however, there is a distinction between police officers serving the public in pursuit of criminal suspects fleeing from justice, and truckers speeding down a highway for private gain. It is obviously in the public interest not to unduly chill law enforcement’s apprehension of suspected criminals.
Messner fails to establish that former section 17004.7 was unconstitutional.
B. Negligence
Messner contends that Officer Mellone and his superiors failed to follow the pursuit policy, and that triable issues of material fact exist to preclude summary judgment. In particular, she argues, Officer Mellone made subjective judgments and took actions that could be found improper and negligent. Because former section 17004.7 applied to Messner’s claims, however, respondents have statutory immunity as a matter of law, whether or not the officers followed the policy or were negligent. (Nguyen, supra, 103 Cal.App.4th at p. 1167; Brumer, supra, 24 Cal.App.4th at p. 987.)
Messner asserts alternatively that former section 17004.7 has no bearing on this case, because Officer Mellone abandoned his pursuit of the Oldsmobile that struck her. Messner does not establish how she was damaged by the officer’s abandonment of the pursuit, or how respondents could be liable if the Oldsmobile that struck Messner was not being pursued by the police. In any event, her complaint alleges that respondents are liable because of the pursuit, thus triggering former section 17004.7. Whether or not the abandonment of the pursuit was in compliance with the pursuit policy, respondents are immune under the statute.
Moreover, based on the evidence presented to the trial court, former section 17004.7 applied to the matter at hand. The former section 17004.7 immunity applied to injuries “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, pursued in a motor vehicle by a police officer.” (Former § 17004.7, subd. (b), Stats. 2005, ch. 485, § 10, italics added.) Officer Mellone’s declaration provides evidence that the Oldsmobile was operated by a suspected fleeing carjacker, and Messner did not present admissible evidence sufficient to raise a triable issue of fact.
Messner fails to establish error in the trial court’s grant of summary judgment to respondents.
III. DISPOSITION
The judgment is affirmed.
We concur: SIMONS, Acting P. J., BRUINIERS, J.
Judge of the Superior Court of Contra Costa County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.