Preview
1 CHRISTOPHER A. CALLIHAN (SBN 203010)
CITY ATTORNEY
2
CITY OF SALINAS
3 OFFICE OF THE CITY ATTORNEY
200 Lincoln Avenue
4 Salinas, CA 93901
Telephone: (831) 758-7256
5 Facsimile: (831) 758-7257
6 William R. Price (SBN 171531)
D. Scott Dodd (SBN 170500)
7 LAW OFFICES OF WILLIAM R. PRICE
12636 High Bluff Dr., Suite 400
8 San Diego, CA 92130
Telephone: (858) 888-0588
9 Emails: wprice@williamrprice.com, sdodd@williamrprice.com
10
Attorneys for Defendant and Cross-Complainant
11 CITY OF SALINAS
12 SUPERIOR COURT OF THE STATE OF CALIFORNIA
13 COUNTY OF MONTEREY
14 LOUIS MONTANO, JR.; LOUIE MONTANO Case No. 21CV003635
III; and MICHAEL MONTANO,
15 (Consolidated with Case Nos. 22CV002531;
Plaintiffs, 22CV003206; 22CV003261; 22CF003443 and
16 22CV003598)
vs.
17 Assigned for All Purposes To:
CITY OF SALINAS, GINO’S RESTAURANT, Judge: Hon. Carrie M. Panetta
18 INC.; GINO’S FINE ITALIAN FOOD, INC.; Dept: 14
BLFA PROPERTIES LLC; NTN
19 PROPERTIES LLC; NGOCHAO THI (*Exempt from filing fees pursuant to Gov. Code
NGUYEN; RALPH BOZZO; ROSAURA section 6103)
20 ARCOS PANIAGUA; AUSTIN ALARCON;
and DOES 1-35, CITY OF SALINAS’ MEMORANDUM OF
21 POINTS AND AUTHORITIES IN SUPPORT
Defendants. OF MOTION FOR SUMMARY
22 JUDGMENT
23 [[Filed concurrently with Notice of Motion,
Separate Statement; Compendium of Evidence in
24 Support; and [Proposed] Order]
25 AND RELATED CROSS-ACTIONS. Date: August 4, 2023
Time: 8:30 a.m.
26 Dept.: 14
27 Complaint Filed: November 16, 2021
28
CITY OF SALINAS’ MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY
JUDGMENT
1 TABLE OF CONTENTS
Page
2
3 I. INTRODUCTION ................................................................................................................ 8
4 II. STATEMENT OF FACTS ................................................................................................... 9
5 A. Plaintiffs Were Injured by the Negligent Driving of Defendant
Alarcon ..................................................................................................................... 9
6
B. Salinas Police Department Had a Valid Vehicle Pursuit Policy............................... 9
7
C. The City Exercised Its Discretion for Inspections, Permits and
8 Enforcement of Outdoor Dining Facilities, Including Gino’s, During
the Covid-19 Pandemic........................................................................................... 10
9
III. LEGAL ANALYSIS .......................................................................................................... 11
10
A. The Standard for Granting Summary Judgment ..................................................... 11
11
B. Public Entity Liability Must be Based on Statute and is Subject to
12 Various Immunities ................................................................................................ 12
13 C. The City is Entitled to Summary Judgment on Plaintiff’s Third Cause
of Action Because the City is Immune From Negligent Police Pursuit
14 Claims Under California Vehicle Code sections 17004 and 17004.7 .................... 12
15 1. Officer Keating is Immune from Liability for his Pursuit of
Alarcon ....................................................................................................... 12
16
2. Defendant City is Also Immune from Liability for the Pursuit .................. 14
17
(a) City Adopted a Vehicle Pursuit Policy ........................................... 15
18
(b) The Pursuit Policy Provides Adequate Guidelines ......................... 16
19
(c) City Promulgated the Pursuit Policy to Its Officers ....................... 17
20
D. The City is Entitled to Summary Judgment on Plaintiff’s Third Cause
21 of Action Because It is Immune from Claims Based on Inspections,
Permitting, and Enforcement of its Own Laws ...................................................... 17
22
1. Inspection Immunity ................................................................................... 18
23
2. Licensing/Permitting Immunity .................................................................. 19
24
3. Enforcement Immunity ............................................................................... 20
25
E. The City is Entitled to Summary Judgment on Plaintiff’s Third Cause
26 of Action Because the Outdoor Dining Facilities at Gino’s Restaurant
Did Not Constitute a Dangerous Condition of Public Property ............................. 21
27
1. The Subject Property Was Not Public Property ......................................... 22
28
2
CITY OF SALINAS’ MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY
JUDGMENT
1 TABLE OF CONTENTS (cont’d)
Page
2
3 2. The Property Was Not Dangerous Under the Law Applicable
to Public Entities ......................................................................................... 23
4
3. The Acts and Omissions Attributed to the City Are Barred by
5 Immunity..................................................................................................... 24
6 F. The City is Entitled to Summary Judgment on All Cross-Actions for
the Same Reasons ................................................................................................... 24
7
IV. CONCLUSION................................................................................................................... 25
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3
CITY OF SALINAS’ MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY
JUDGMENT
1 TABLE OF AUTHORITIES
Page(s)
2
3 Cases
4 Aguilar v. Atl. Richfield Co.
(2001) 25 Cal. 4th 826 .......................................................................................................... 12
5
Bratt v. City & County of San Francisco
6 (1985) 50 Cal.App.3d 550 .................................................................................................... 13
7 Brumer v. City of Los Angeles
(1994) 24 Cal.App.4th 983 ................................................................................................... 14
8
Brummett v. County of Sacramento
9 (1978) 21 Cal.3d 880 ............................................................................................................ 13
10 Burns v. City Council
(1973) 31 Cal.App.3d 999 .................................................................................................... 19
11
Clayton v. City of Sunnyvale
12 (1976) 62 Cal.App.3d 666 .................................................................................................... 18
13 Cochran v. Herzog Engraving Co.
(1984) 155 Cal.App.3d 405 .................................................................................................. 18
14
Colvin v. City of Gardena
15 (1992) 11 Cal.App.4th 1270 ................................................................................................. 17
16 County of Sacramento v. Superior Court
(1972) 8 Cal.3d 479 .............................................................................................................. 20
17
Cruz v. Briseno
18 (2000) 22 Cal.4th 568 ........................................................................................................... 13
19 Davis v. City of Pasadena
(1996) 42 Cal.App.4th 701 ................................................................................................... 23
20
Department of Motor Vehicles v. Superior Court
21 (1980) 105 Cal.App.3d 537 .................................................................................................. 19
22 Eastburn v. Regional Fire Protection Authority
(2003) 31 Cal.4th 1175 ........................................................................................................ 12
23
Elson v. Public Utilities Comm'n
24 (1975) 51 Cal.App.3d 577 .................................................................................................... 20
25 Esparza v. County of Los Angeles
(2014) 224 Cal.App.4th ........................................................................................................ 20
26
Fielder v. City of Glendale
27 (1977) 71 Cal.App.3d 719 .................................................................................................... 23
28
4
CITY OF SALINAS’ MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY
JUDGMENT
TABLE OF AUTHORITIES (cont’d)
1
2 Page(s)
3 Fuller v. State of California
(1975) 51 Cal.App.3d 926 ................................................................................................... 23
4
Gray v. State of California
5 (1989) 207 Cal.App.3d 151 .................................................................................................. 12
6 Haggis v. City of Los Angeles
(2000) 22 Cal.4th 490 .......................................................................................................... 18
7
Hernandez v. City of Pomona
8 (2009) 46 Cal.4th 501 ..................................................................................................... 13, 14
9 Ketchum v. State of California
(1998) 62 Cal.App.4th 957 ................................................................................................... 16
10
Lewis v. County of Sacramento
11 (2001) 93 Cal.App.4th 107 ................................................................................................... 15
12 McGee v. City of Laguna Beach
(1997), 56 Cal.App.4th 537 ............................................................................................ 15, 16
13
Morris v. County of Marin
14 (1977) 18 Cal.3d 901 ................................................................................................ 18, 19, 20
15 Nguyen v. City of Westminster
(2002) 103 Cal.App.4th 1161 ............................................................................................... 15
16
Osgood v. County of Shasta
17 (1975) 50 Cal.App.3d 586 .................................................................................................... 21
18 Powell v. State
(1991) 234 Cal.App.3d 910 .................................................................................................. 19
19
Salas v. Department of Transportation
20 (2011) 198 Cal.App.4th 1058 ............................................................................................... 23
21 Searcy v. Gibbel
(1986) 177 Cal.App.3d 792 .................................................................................................. 12
22
Seybert v. County of Imperial
23 (1958) 162 Cal.App.2d 209 .................................................................................................. 21
24 Shipley v. City of Arroyo Grande
(1949) 92 Cal.App.2d 748 .................................................................................................... 21
25
State v. Superior Court
26 (1984) 150 Cal.App.3d 848 ............................................................................................ 19, 20
27 Susman v. City of Los Angeles
(1969) 269 Cal.App.2d 803 .................................................................................................. 12
28
5
CITY OF SALINAS’ MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY
JUDGMENT
TABLE OF AUTHORITIES (cont’d)
1
2 Page(s)
3 Sutton v. Golden Gate Bridge, Highway & Transp. Dist.
(1998) 68 Cal.App.4th 1149 ................................................................................................. 21
4
Teresi v. State
5 (1996) 180 Cal.App.3d 239 .................................................................................................. 21
6 Waschek v. Department of Motor Vehicles
(1997) 59 Cal.App.4th 640 ................................................................................................... 19
7
Weaver By and Through Weaver v. State
8 (1998) 64 Cal.App.4th 188 ................................................................................................... 14
9 Wood v. County of San Joaquin
(2003) 111 Cal.App.4th 960 ................................................................................................. 21
10
Statutes
11
Code Civ. Proc. § 437c (a)................................................................................................................ 11
12
Gov. Code § 810.6 ............................................................................................................................ 20
13
Gov. Code § 815(a)........................................................................................................................... 12
14
Gov. Code § 815(b) .......................................................................................................................... 12
15
Gov. Code § 815.6 ............................................................................................................................ 12
16
Gov. Code § 818.2 ...................................................................................................................... 20, 21
17
Gov. Code § 818.4 ...................................................................................................................... 19, 20
18
Gov. Code § 818.6 ...................................................................................................................... 18, 19
19
Gov. Code § 820.4 ............................................................................................................................ 20
20
Gov. Code § 821 ............................................................................................................................... 21
21
Gov. Code § 830 ............................................................................................................................... 23
22
Gov. Code § 830.2 ............................................................................................................................ 23
23
Gov. Code § 835 ......................................................................................................................... 21, 23
24
Gov. Code § 840.2 .......................................................................................................... 21, 22, 23, 24
25
Veh. Code § 17004 ............................................................................................................... 12, 13, 25
26
Veh. Code § 17004.7 ............................................................................................................ 12, 17, 25
27
Veh. Code § 17004.7(b)(1) ............................................................................................................... 14
28
6
CITY OF SALINAS’ MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY
JUDGMENT
TABLE OF AUTHORITIES (cont’d)
1
2 Page(s)
3 Veh. Code § 17004.7(b)(2) ............................................................................................................... 14
4 Veh. Code § 17004.7(c) .............................................................................................................. 15, 16
5 Veh. Code § 17004.7(d).................................................................................................................... 14
6 Veh. Code § 17004.7(f) .............................................................................................................. 14, 16
7 Other Authorities
8 Salinas Municipal Code § 1-01.07.................................................................................................... 19
9 Salinas Municipal Code § 16-83....................................................................................................... 20
10 Salinas Municipal Code § 37-50.300................................................................................................ 10
11 Salinas Police Dept. Policy 314 .................................................................................................. 15, 16
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
7
CITY OF SALINAS’ MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY
JUDGMENT
1 I. INTRODUCTION
2 On the evening of November 19, 2020, Plaintiffs Louis Montano, Jr., Louie Montano III,
3 and Michael Montano (“Plaintiffs”), were seated at an outdoor dining area on the private property
4 of Gino’s Restaurant, Inc. (“Gino’s”) in Salinas, California. Plaintiffs were struck by a vehicle
5 operated by Defendant Austin Alarcon (“Alarcon”), who lost control of his vehicle while fleeing
6 from a Salinas Police Department vehicle. At the time of the incident, Alarcon was a minor who
7 did not possess a driver’s license or liability insurance.
8 In addition to suing Alarcon and his mother for negligence, Plaintiffs allege the City of
9 Salinas (“City”) is liable for “statutory/public entity liability” under Government Code sections
10 815.2(a), 820(a), 835, and 840.2. Plaintiffs also sued Gino’s and the owner of the property on
11 which the restaurant is situated (“NTN Properties LLC”) for negligence and premises liability.
12 Plaintiffs allege a Third Cause of Action for “Statutory/Public Entity Liability” against the
13 City. Within that one cause of action, Plaintiffs generally allege three theories of liability: (1) the
14 police pursuit of Defendant Alarcon was negligent; (2) the City failed to properly inspect, permit
15 and/or enforce applicable codes with respect to outdoor dining facilities at Gino’s Restaurant; and
16 (3) a dangerous condition of public property under Government Code section 835.
17 Although Plaintiffs undoubtedly hope to access a pocket deeper than Mr. Alarcon for their
18 injuries, the City of Salinas is simply not liable in tort for any claim related to this accident. The
19 City moves for summary judgment as to Plaintiff’s Third Cause of Action (and any related cross-
20 actions on the same theories) because, as a matter of law, Plaintiffs cannot maintain a cause of
21 action for statutory/public entity liability. Plaintiff’s negligent police pursuit theory is barred
22 because the City is immune from liability under Vehicle Code section 17004.7, et seq.; Plaintiff’s
23 negligent enforcement of outdoor dining facilities theory is barred because the City is immune from
24 liability for any action based on its decisions on licensing/permitting (Government Code § 818.4
25 and 821.2), property inspections (Government Code § 818.6); and enforcement of its own laws
26 (Government Code § 818.2 and 821, et seq.). The City is also entitled to summary judgment on
27 any dangerous condition of public property theory because the outdoor dining facilities were not
28 public property and did not constitute a dangerous condition under reasonable use.
8
CITY OF SALINAS’ MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY
JUDGMENT
1 The City is entitled to summary judgment on all cross-actions on the same grounds.
2 II. STATEMENT OF FACTS
3 A. Plaintiffs Were Injured by the Negligent Driving of Defendant Alarcon
4 On November 19, 2020, Defendant Austin Alarcon (“Alarcon”) was a minor and did not
5 possess a valid driver’s license. [UMF 1.] He had no legal right to drive any vehicle on any public
6 road in the City of Salinas. However, he admits he took his parents’ vehicle without permission
7 and drove into the City with a companion. [UMF 1.] On November 19, 2020, City Police Officer
8 Keating (“Ofc. Keating”) was on patrol and in a marked police vehicle. [UMF 2.] Ofc. Keating
9 observed Alarcon driving southbound along South Main Street in the City of Salinas at
10 approximately 60 miles per hour, well in excess of the posted speed limit of 30 miles per hour.
11 [UMF 3.] Ofc. Keating followed the vehicle, and ultimately initiated a lights and siren pursuit due
12 to Alarcon’s dangerous and reckless driving. [UMF 4.] Even though he was aware of the police
13 pursuit, Alarcon refused to stop and fled from Ofc. Keating, driving at speeds up to 60-70 miles per
14 hour on City streets. [UMF 5.] An aerial photograph depicting the area where this portion of the
15 pursuit took place is provided as Exhibit 7. [UMF 6.]
16 Prior to the collision, Alarcon blew through a red light, endangering other vehicles and
17 pedestrians. [UMF 7.] Due to his reckless driving, Alarcon was unable to avoid colliding with a
18 vehicle entering the street. [UMF 8.] Alarcon lost control of his vehicle, jumped a curb, crashed
19 through a series of hedges, crashed through a large restaurant sign, and finally crashed into a series
20 of outdoor patio areas on the private property of Gino’s, injuring Plaintiffs and other patrons.
21 [UMF 9.] An aerial photograph depicting Gino’s Restaurant is provided as Exhibit 8. [UMF 10.]
22 B. Salinas Police Department Had a Valid Vehicle Pursuit Policy
23 Prior to the incident, the Salinas Police Department (“SPD”) had adopted and promulgated
24 a policy governing vehicle pursuits (SPD Policy No. 314). [UMF 11.] SPD Policy 314 defines
25 vehicle pursuits, officer responsibilities, and other factors to be considered when initiating and
26 conducting a vehicle pursuit. [UMF 12.] SPD provides pursuit policy training to all of its police
27 officers on a regular basis. [UMF 13.] SPD trains its officers on the pursuit policy including
28 specific guidelines governing (a) when to initiate pursuits; (b) the number of pursuing vehicles that
9
CITY OF SALINAS’ MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY
JUDGMENT
1 should be involved and when and how to use air support; (c) communications and coordination
2 procedures; (d) supervisors’ role and inter-jurisdictional considerations; and (e) driving tactics--
3 including speeds, techniques, and safety measures. [UMF 14.] All of the Department’s police
4 officers who were employed at the time of the incident completed certifications acknowledging that
5 they had received, read, and acknowledged the training. [UMF 15.] Officer Keating received
6 vehicle pursuit training on March 6, 2020, within one year of the incident at issue which occurred
7 on November 19, 2020. [UMF 16.]
8 C. The City Exercised Its Discretion for Inspections, Permits and Enforcement of
9 Outdoor Dining Facilities, Including Gino’s, During the Covid-19 Pandemic
10 Due to Covid-19-related State, County, and City regulations in effect on November 19,
11 2020, commercial establishments were not permitted to conduct indoor dining operations in the
12 City. [UMF 17.] Gino’s, as many other establishments in the City of Salinas, set up outdoor
13 dining facilities to continue operations during the pandemic. [UMF 18.] Gino’s set up tents over
14 pre-existing outdoor dining areas on its own property. [UMF 18.] These areas were on property
15 owned by Gino’s, and there were no dining spaces located on City property. [UMF 18.]
16 Public entities have discretion in how to regulate and enforce their own laws and
17 regulations. Because of its goal of supporting local businesses, the City (and many other
18 municipalities) allowed restaurants to operate outdoor dining operations during the COVID
19 pandemic and associated shutdowns. [UMF 19.] The applicable City Ordinance, Salinas
20 Municipal Code Sec. 37-50.300, required businesses to apply for a Temporary Use of Land Permit
21 (“TULP”) if a “temporary structure” was erected to serve patrons. [UMF 20.] Exercising its
22 discretion over its own inspection, permitting, and enforcement processes, the City elected to
23 educate businesses on the new TULP requirements and allowed businesses to operate without a
24 TULP if the business was in the process of applying and taking steps to obtain a TULP. [UMF 21.]
25 On November 19, 2020, Gino’s was conducting outside dining operations (under a
26 temporary structure/tent) without a TULP. [UMF 22.] The City, through its Community
27 Development and Code Enforcement Departments, became aware of Gino’s unpermitted outdoor
28 dining operations less than one week prior to the date of the accident. [UMF 23.] On or about
10
CITY OF SALINAS’ MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY
JUDGMENT
1 November 12, 2020, City Associate Planner Oscar Resendiz (“Resendiz”) observed a tent in front
2 of Gino’s. [UMF 23.] Mr. Resendiz had not been contacted by Gino’s to obtain a TULP, so he
3 sent an email to City Code Enforcement personnel and requested that they go to Gino’s to advise
4 them of the need to obtain a TULP in order to proceed with outdoor dining operations, to provide
5 them with information as to how to obtain a TULP, and to contact Mr. Resendiz. [UMF 24.]
6 On November 18, 2020, City Code Enforcement Officer Sylvia Perez (“Perez”) made a site
7 visit to Gino’s, provided a flyer of information about outdoor dining operations, and advised a
8 person she believed to be the manager about the TULP application requirement. Ms. Perez noted
9 that all of the tents were on Gino’s property, not City property. [UMF 25.] On November 24,
10 2020, Mr. Resendiz held a telephone conference with Peter Lai, the manager of Gino’s, advising
11 that the City was allowing businesses to conduct outdoor dining operations, but advised the
12 business would need to apply for and obtain a TULP. Resendiz followed up that same day with an
13 email to Mr. Lai providing a TULP application, information bulletin, and samples for ease of
14 reference. [UMF 26.] Gino’s submitted its application for a TULP on December 1, 2020. [UMF
15 27.] This was not immediately approved because Gino’s did not include a certificate of liability
16 insurance. [UMF 28.] Gino’s was issued a TULP on March 25, 2021. [UMF 29.] Exercising its
17 own discretion and consistent with practices City-wide, the City never issued a citation to Gino’s
18 because Gino’s moved forward with the TULP application process. [UMF 30.]
19 Police investigator photographs depicting the path of travel and scenes of destruction
20 caused by Alarcon’s reckless driving are provided as Exhibits 17-26. [UMF 31.]
21 III. LEGAL ANALYSIS
22 A. The Standard for Granting Summary Judgment
23 The City contends that summary judgment is proper pursuant to Code of Civil Procedure
24 section 437c (a), which states in relevant part:
25 [I]n moving for summary judgment, a defendant ... has met his burden of showing
that a cause of action has no merit if he has shown that one or more elements of
26 the cause of action ... cannot be established, or that there is a complete defense to
that cause of action. Once the defendant ... has met that burden, the burden shifts
27
to the plaintiff ... to show that a triable issue of one or more material facts exists
28 as to that cause of action or a defense thereto.
11
CITY OF SALINAS’ MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY
JUDGMENT
1 See, Aguilar v. Atl. Richfield Co. (2001) 25 Cal. 4th 826, 849; Towns v. Davidson (2007) 147
2 Cal.App.4th 461, 466; Gray v. State of California (1989) 207 Cal.App.3d 151, 154.
3 B. Public Entity Liability Must be Based on Statute and is Subject to Various Immunities
4 In California, all governmental tort liability is dependent on the existence of an authorizing
5 statute or enactment; Government Code sections 815(a) and 815.6. Similarly, public entities such
6 as the City are protected by various immunities set forth in statutes; Gov. Code section 815(b). In
7 Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, the California Supreme
8 Court upheld the trial court’s ruling sustaining the demurrers of public entity defendants, holding:
9 In other words, direct tort liability of public entities must be based on a specific
statute declaring them to be liable, or at least creating some specific duty of care,
10 and not on the general tort provisions of Civil Code section 1714. Otherwise, the
general rule of immunity for public entities would be largely eroded by the
11 routine application of general tort principles.
12 Id. at pg. 1183. [Emphasis added.]
13 In Searcy v. Gibbel (1986) 177 Cal.App.3d 792, the court stated the general rule of
14 government tort liability as follows:
15 Secondly, in California, all government tort liability is dependent on the
existence of an authorizing statute or ‘enactment.’ (Gov. Code, sections 815,
16 subd. (a), 815.6; Toland v. State of California ex rel. Dept. of Transportation
(1979) 100 Cal.App.3d 980,983; Morris v. State of California (1979) 89
17 Cal.App.3d 962,964; Susman v. City of Los Angeles (1969) 269 Cal.App.2d 803,
808, and to state a cause of action every essential fact to the existence of statutory
18 liability must be pleaded with particularity, including the existence of a
statutory duty.
19
20 (Susman v. City of Los Angeles, supra, 269 Cal.App.2d 803, 80.).” [Emphasis added]. At pg. 802.
21 C. The City is Entitled to Summary Judgment on Plaintiff’s Third Cause of Action
22 Because the City is Immune From Negligent Police Pursuit Claims Under California
23 Vehicle Code sections 17004 and 17004.7
24 Plaintiffs’ “statutory liability” claim alleges a theory that the City is liable for a negligent
25 police pursuit of Alarcon which caused Alarcon to crash into Gino’s. (Complaint, ¶¶ 50-52.) The
26 claim is barred as a matter of law by police pursuit immunity. Veh. Code §§ 17004, 17004.7.
27 1. Officer Keating is Immune from Liability for his Pursuit of Alarcon
28 California Vehicle Code section 17004 provides as follows:
12
CITY OF SALINAS’ MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY
JUDGMENT
1 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 operations, in the
2 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
3 violator of the law, or when responding to but not returning from a fire alarm or
other emergency call.
4
5 Thus, “[t]he decision to pursue [a feeling vehicle] is protected by Vehicle Code section
6 17004, which precludes liability for injuries resulting from the operation of an emergency vehicle
7 ‘in the immediate pursuit of an actual or suspected violator of the law… .” Bratt v. City & County
8 of San Francisco (1985) 50 Cal.App.3d 550; 553.
9 Further, the decision to pursue a suspect vehicle is a discretionary act protected by Gov.
10 Code section 820.2, which provides that: “Except as otherwise provided by statute, a public
11 employee is not liable for an injury resulting from his act or omission where the act or omission
12 was the result of the exercise of the discretion vested in him, whether or not such discretion is
13 abused.” See also Brummett v. County of Sacramento (1978) 21 Cal.3d 880 (a public employee is
14 not liable for damages on account of personal injury when in immediate pursuit of an actual or
15 suspected violator of the law).
16 In Hernandez v. City of Pomona (2009) 46 Cal.4th 501, a traffic violator failed to yield to a
17 police officer who activated his emergency lights and pursued the suspect on an 18-minute car
18 chase at which point the suspect crashed into a tree. The California Supreme Court held, “Under
19 Vehicle Code section 17004, the individual officers may not be held civilly liable for Hernandez’s
20 death based on the manner in which they operated their vehicles during the chase, even assuming
21 they acted without due care”. Hernandez, 46 Cal.4th at 506-507, 519-520. Hernandez further
22 held that because the police officers were immune from liability under Cal. Veh. Code section
23 17004, the officer’s employing public entity was also immune. Id. at 509. See also Cruz v.
24 Briseno (2000) 22 Cal.4th 568, 572-572 (the “language of section 17004 is clear and ambiguous in
25 immunizing public employees such as [the defendant officer] from civil liability for injuries
26 incurred while in pursuit of an actual or suspected lawbreaker”).
27 In this case, Ofc. Keating is immune from liability under Veh. Code section 17004 as a
28 matter of law because it is undisputed that Ofc. Keating was pursuing a vehicle which was
13
CITY OF SALINAS’ MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY
JUDGMENT
1 observed breaking the law.
2 2. Defendant City is Also Immune from Liability for the Pursuit
3 The City is immune because Officer Keating is immune. Hernandez, supra, 46 Cal.4th at
4 506-507, 519-520. The City is also immune from liability because it adopted, promulgated, and
5 regularly trained its peace officers on its written policy for safety during vehicle pursuits.
6 Cal. Veh. Code section 17004.7(b)(1) provides as follows:
7 (b)(1) A public agency employing peace officers that adopts and promulgates a
written policy on, and provides regular and periodic training on an annual basis
8 for, vehicular pursuits complying with subdivisions (c) and (d) is immune from
liability for civil damages for personal injury to or death of any person or damage
9 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
10 or has been, pursued in a motor vehicle by a peace officer employed by the public
entity.
11
12 “Promulgation of the written policy…shall include, but is not limited to, a requirement that
13 all peace officers of the public agency certify in writing that they have received, read, and
14 understand the policy. The failure of an individual officer to sign a certification shall not be used
15 to impose liability on an individual officer of a public entity.” Veh. Code § 17004.7(b)(2).
16 “Regular and periodic training” shall mean annual training that includes coverage of the subjects
17 and elements set forth in subdivision (c). Veh. Code § 17004.7(d). A determination of whether a
18 public agency has complied with subdivisions (c) and (d) is a question of law for the court. Veh.
19 Code § 17004.7(f).
20 The Court’s inquiry is not to supervise the implementation of the pursuit policy or to
21 interpret the policy for good or bad tactics or implementation. Weaver By and Through Weaver v.
22 State (1998) 64 Cal.App.4th 188, 201 (the extent to which the policy was implemented in general
23 and followed in the particular pursuit is irrelevant as the court does not have the supervisory power
24 to dictate what is good or bad law enforcement tactics). If a public agency adopts a vehicle pursuit
25 policy which meets statutory requirements, immunity results, regardless of extent to which policy
26 is implemented in general or followed in a particular pursuit. Brumer v. City of Los Angeles (1994)
27 24 Cal.App.4th 983.
28 Whether a public entity that adopts a pursuit policy meeting the statutory requirements is
14
CITY OF SALINAS’ MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY
JUDGMENT
1 immune from liability for injuries sustained as result of a collision of pursued vehicle has nothing
2 to do with whether an “innocent” third party or a fleeing suspect was injured; rather, the critical
3 question is whether the plaintiff's injuries resulted from the collision of a vehicle being operated by
4 a fleeing suspect. Lewis v. County of Sacramento (2001) 93 Cal.App.4th 107. The extent to which
5 the policy was implemented in general and followed in the particular pursuit is irrelevant. McGee
6 v. City of Laguna Beach (1997), 56 Cal.App.4th 537, 548.
7 To qualify under statute granting immunity from liability for injuries resulting from the
8 collision of a vehicle being operated by suspect during pursuit by peace officer in motor vehicle, a
9 vehicular pursuit policy must do more than simply advise the pursuing officers to exercise their
10 discretion and use their best judgment; the policy must control and channel the pursuing officer's
11 discretion by providing objective standards by which to evaluate whether the pursuit should be
12 initiated or terminated and, at the very least, it should instruct and direct the officers on what
13 factors should be considered in deciding whether to pursue the fleeing suspect. Nguyen v. City of
14 Westminster (2002) 103 Cal.App.4th 1161.
15 (a) City Adopted a Vehicle Pursuit Policy
16 The City adopted a written policy for vehicle pursuits, specifically SPD Policy 314. [UMF
17 12.] Veh. Code section 17004.7(c) sets forth minimum standards a written pursuit policy must
18 meet to allow a governmental entity to assert the limited immunity. Section 17004.7 (c) provides:
19 A policy for the safe conduct of motor vehicle pursuits by peace officers shall
meet all the following minimum standards:
20
(1) Determine under what circumstances to initiate a pursuit. …
21
(2) Determine the total number of law enforcement vehicles authorized to
22 participate in a pursuit. …
23 (3) Determine the communication procedures to be followed during a pursuit. …
24 (4) Determine the role of the supervisor in managing and controlling a pursuit. …
25 (5) Determine driving tactics and the circumstances under which the tactics may
be appropriate. …
26
(6) Determine authorized pursuit intervention tactics. … The policy shall specify
27 under what circumstances and conditions each approved tactic is authorized to be
used.
28
15
CITY OF SALINAS’ MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY
JUDGMENT
1 (7) Determine the factors to be considered by a peace officer and supervisor in
determining speeds throughout a pursuit. …
2
(8) Determine the role of air support. …
3
(9) Determine when to terminate a pursuit…
4
5 The question of whether the City has complied with subdivision (c) is a question of law for
6 the court. Veh. Code § 17004.7(f).
7 In this case, the City’s policy for safe conduct of vehicle pursuits meets the requirements of
8 Veh. Code section 17004.7(c). SPD Policy 314 provides that when deciding the merits of initiating
9 any pursuit-related activities, officers need to consider the following factors: (a) The type of
10 violation, whether actual or suspected; (b) the importance of protecting the public and balancing
11 the offense against the need for immediate capture; (c) the nature of the fleeing suspects and
12 whether the suspect presents a serious threat to public safety; (d) whether the identity of the suspect
13 has been verified and there is comparatively minimal risk in allowing the suspects to be
14 apprehended at a later time; (e) safety of the public in the area of the pursuit; (f) pursuing officers’
15 familiarity with the area of the pursuit; (g) weather, traffic and road conditions; (h) performance
16 capabilities of the vehicles used in the pursuit; (i) vehicle speeds; (j) other persons in or around the
17 pursued vehicle; (k) available of other resources such as helicopter assistance; and (l) the police
18 unit is carrying passengers other than police officers. [UMF 12-14.]
19 (b) The Pursuit Policy Provides Adequate Guidelines
20 SPD Policy 314 requires officers to consider, inter alia, the seriousness of the suspected
21 crime, the importance of protecting the public and balancing the known risks and the apparent need
22 for immediate capture, the safety of the public in the area of pursuit, including the type of area,
23 time of day, the amount of vehicular and pedestrian traffic, and the speed of the pursuit, etc. Thus,
24 SPD Officers do not have unfettered discretion as to whether to conduct a pursuit, or how to
25 conduct the pursuit once initiated. McGee v. City of Laguna Beach (1997) 56 Cal.App.4th 537,
26 542-44 (when the policy does not leave the officer with unfettered discretion but provides factors to
27 guide the decision making regarding the conduct of vehicle pursuits, the policy meets minimum
28 requirements); see also Ketchum v. State of California (1998) 62 Cal.App.4th 957, 966 (the policy
16
CITY OF SALINAS’ MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY
JUDGMENT
1 must do more than advise the officers to exercise discretion and best judgment and must control
2 and channel officer discretion by providing objective standards to evaluate whether the pursuit
3 should be initiated or terminated and instruct and direct officers on what factors should be
4 considered in deciding whether to pursue the fleeing suspect); Colvin v. City of Gardena (1992) 11
5 Cal.App.4th 1270, 1283 (the policy must clearly and with specificity set forth standards to guide its
6 officers).
7 (c) City Promulgated the Pursuit Policy to Its Officers
8 The City promulgated its vehicle pursuit policy through regular driver training courses,
9 including specific courses on vehicle pursuits. [UMF 12-14.] The City promulgated the policy by
10 providing regular training to its officers on such vehicle pursuit policies and procedures. [UMF 12-
11 14.] The SPD policy includes specific factors and guidelines for conducting vehicle pursuits,
12 including (a) when to initiate pursuits; (b) the number of pursuing vehicles that should be involved;
13 (c) communications and coordination procedures, supervisor’s roles and inter-jurisdictional
14 considerations; and (d) appropriate driving tactics - including, inter alia, speeds, use of due regard
15 and precautions, proceeding through controlled intersections, passing other vehicles, and
16 maintenance of visual contact with pursued vehicle. [UMF 13.] All of the Department’s police
17 officers who were employed at the time of the incident completed certifications acknowledging that
18 they had received, read, and acknowledged the training. [UMF 15.] Officer Keating received
19 vehicle pursuit training on March 6, 2020, within one year of the incident at issue which occurred
20 on November 19, 2020. [UMF 16.]
21 Therefore, the undisputed evidence establishes that (1) the City had a written pursuit policy;
22 (2) the policy provides adequate guidelines; and (3) the City promulgated the policy to its officers,
23 including Officer Keating. Accordingly, the City has statutory immunity under Veh. Code section
24 17004.7 from the negligent pursuit claim.
25 D. The City is Entitled to Summary Judgment on Plaintiff’s Third Cause of Action
26 Because It is Immune from Claims Based on Inspections, Permitting, and
27 Enforcement of its Own Laws
28 Plaintiff’s “statutory liability” claim also alleges that the City was negligent in the
17
CITY OF SALINAS’ MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY
JUDGMENT
1 inspection, permitting and enforcement of its own ordinances regarding TULPs for outdoor dining
2 operations. (Complaint, ¶¶ 43 - 49, 51.) The City is immune from any liability for its conduct and
3 decisions on inspections, permits, and enforcement of its own laws.
4 1. Inspection Immunity
5 Section 818.6 of the Gov. Code provides:
6 A public entity is not liable for injury caused by its failure to make an inspection,
or by reason of making an inadequate or negligent inspection, of any property,
7 other than its property (as defined in subdivision (c) of Section 830), for the
purpose of determining whether the property complies with or violates any
8 enactment or contains or constitutes a hazard to health or safety.
9 The inspection immunity conferred on public entities by Gov. Code section 818.6 is
10 absolute and applies to mandatory activities as well as discretionary ones. Haggis v. City of Los
11 Angeles (2000) 22 Cal.4th 490,
Preview
1 CHRISTOPHER A. CALLIHAN (SBN 203010) CITY ATTORNEY 2 CITY OF SALINAS 3 OFFICE OF THE CITY ATTORNEY 200 Lincoln Avenue 4 Salinas, CA 93901 Telephone: (831) 758-7256 5 Facsimile: (831) 758-7257 6 William R. Price (SBN 171531) D. Scott Dodd (SBN 170500) 7 LAW OFFICES OF WILLIAM R. PRICE 12636 High Bluff Dr., Suite 400 8 San Diego, CA 92130 Telephone: (858) 888-0588 9 Emails: wprice@williamrprice.com, sdodd@williamrprice.com 10 Attorneys for Defendant and Cross-Complainant 11 CITY OF SALINAS 12 SUPERIOR COURT OF THE STATE OF CALIFORNIA 13 COUNTY OF MONTEREY 14 LOUIS MONTANO, JR.; LOUIE MONTANO Case No. 21CV003635 III; and MICHAEL MONTANO, 15 (Consolidated with Case Nos. 22CV002531; Plaintiffs, 22CV003206; 22CV003261; 22CF003443 and 16 22CV003598) vs. 17 Assigned for All Purposes To: CITY OF SALINAS, GINO’S RESTAURANT, Judge: Hon. Carrie M. Panetta 18 INC.; GINO’S FINE ITALIAN FOOD, INC.; Dept: 14 BLFA PROPERTIES LLC; NTN 19 PROPERTIES LLC; NGOCHAO THI (*Exempt from filing fees pursuant to Gov. Code NGUYEN; RALPH BOZZO; ROSAURA section 6103) 20 ARCOS PANIAGUA; AUSTIN ALARCON; and DOES 1-35, CITY OF SALINAS’ MEMORANDUM OF 21 POINTS AND AUTHORITIES IN SUPPORT Defendants. OF MOTION FOR SUMMARY 22 JUDGMENT 23 [[Filed concurrently with Notice of Motion, Separate Statement; Compendium of Evidence in 24 Support; and [Proposed] Order] 25 AND RELATED CROSS-ACTIONS. Date: August 4, 2023 Time: 8:30 a.m. 26 Dept.: 14 27 Complaint Filed: November 16, 2021 28 CITY OF SALINAS’ MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT 1 TABLE OF CONTENTS Page 2 3 I. INTRODUCTION ................................................................................................................ 8 4 II. STATEMENT OF FACTS ................................................................................................... 9 5 A. Plaintiffs Were Injured by the Negligent Driving of Defendant Alarcon ..................................................................................................................... 9 6 B. Salinas Police Department Had a Valid Vehicle Pursuit Policy............................... 9 7 C. The City Exercised Its Discretion for Inspections, Permits and 8 Enforcement of Outdoor Dining Facilities, Including Gino’s, During the Covid-19 Pandemic........................................................................................... 10 9 III. LEGAL ANALYSIS .......................................................................................................... 11 10 A. The Standard for Granting Summary Judgment ..................................................... 11 11 B. Public Entity Liability Must be Based on Statute and is Subject to 12 Various Immunities ................................................................................................ 12 13 C. The City is Entitled to Summary Judgment on Plaintiff’s Third Cause of Action Because the City is Immune From Negligent Police Pursuit 14 Claims Under California Vehicle Code sections 17004 and 17004.7 .................... 12 15 1. Officer Keating is Immune from Liability for his Pursuit of Alarcon ....................................................................................................... 12 16 2. Defendant City is Also Immune from Liability for the Pursuit .................. 14 17 (a) City Adopted a Vehicle Pursuit Policy ........................................... 15 18 (b) The Pursuit Policy Provides Adequate Guidelines ......................... 16 19 (c) City Promulgated the Pursuit Policy to Its Officers ....................... 17 20 D. The City is Entitled to Summary Judgment on Plaintiff’s Third Cause 21 of Action Because It is Immune from Claims Based on Inspections, Permitting, and Enforcement of its Own Laws ...................................................... 17 22 1. Inspection Immunity ................................................................................... 18 23 2. Licensing/Permitting Immunity .................................................................. 19 24 3. Enforcement Immunity ............................................................................... 20 25 E. The City is Entitled to Summary Judgment on Plaintiff’s Third Cause 26 of Action Because the Outdoor Dining Facilities at Gino’s Restaurant Did Not Constitute a Dangerous Condition of Public Property ............................. 21 27 1. The Subject Property Was Not Public Property ......................................... 22 28 2 CITY OF SALINAS’ MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT 1 TABLE OF CONTENTS (cont’d) Page 2 3 2. The Property Was Not Dangerous Under the Law Applicable to Public Entities ......................................................................................... 23 4 3. The Acts and Omissions Attributed to the City Are Barred by 5 Immunity..................................................................................................... 24 6 F. The City is Entitled to Summary Judgment on All Cross-Actions for the Same Reasons ................................................................................................... 24 7 IV. CONCLUSION................................................................................................................... 25 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 CITY OF SALINAS’ MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT 1 TABLE OF AUTHORITIES Page(s) 2 3 Cases 4 Aguilar v. Atl. Richfield Co. (2001) 25 Cal. 4th 826 .......................................................................................................... 12 5 Bratt v. City & County of San Francisco 6 (1985) 50 Cal.App.3d 550 .................................................................................................... 13 7 Brumer v. City of Los Angeles (1994) 24 Cal.App.4th 983 ................................................................................................... 14 8 Brummett v. County of Sacramento 9 (1978) 21 Cal.3d 880 ............................................................................................................ 13 10 Burns v. City Council (1973) 31 Cal.App.3d 999 .................................................................................................... 19 11 Clayton v. City of Sunnyvale 12 (1976) 62 Cal.App.3d 666 .................................................................................................... 18 13 Cochran v. Herzog Engraving Co. (1984) 155 Cal.App.3d 405 .................................................................................................. 18 14 Colvin v. City of Gardena 15 (1992) 11 Cal.App.4th 1270 ................................................................................................. 17 16 County of Sacramento v. Superior Court (1972) 8 Cal.3d 479 .............................................................................................................. 20 17 Cruz v. Briseno 18 (2000) 22 Cal.4th 568 ........................................................................................................... 13 19 Davis v. City of Pasadena (1996) 42 Cal.App.4th 701 ................................................................................................... 23 20 Department of Motor Vehicles v. Superior Court 21 (1980) 105 Cal.App.3d 537 .................................................................................................. 19 22 Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175 ........................................................................................................ 12 23 Elson v. Public Utilities Comm'n 24 (1975) 51 Cal.App.3d 577 .................................................................................................... 20 25 Esparza v. County of Los Angeles (2014) 224 Cal.App.4th ........................................................................................................ 20 26 Fielder v. City of Glendale 27 (1977) 71 Cal.App.3d 719 .................................................................................................... 23 28 4 CITY OF SALINAS’ MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT TABLE OF AUTHORITIES (cont’d) 1 2 Page(s) 3 Fuller v. State of California (1975) 51 Cal.App.3d 926 ................................................................................................... 23 4 Gray v. State of California 5 (1989) 207 Cal.App.3d 151 .................................................................................................. 12 6 Haggis v. City of Los Angeles (2000) 22 Cal.4th 490 .......................................................................................................... 18 7 Hernandez v. City of Pomona 8 (2009) 46 Cal.4th 501 ..................................................................................................... 13, 14 9 Ketchum v. State of California (1998) 62 Cal.App.4th 957 ................................................................................................... 16 10 Lewis v. County of Sacramento 11 (2001) 93 Cal.App.4th 107 ................................................................................................... 15 12 McGee v. City of Laguna Beach (1997), 56 Cal.App.4th 537 ............................................................................................ 15, 16 13 Morris v. County of Marin 14 (1977) 18 Cal.3d 901 ................................................................................................ 18, 19, 20 15 Nguyen v. City of Westminster (2002) 103 Cal.App.4th 1161 ............................................................................................... 15 16 Osgood v. County of Shasta 17 (1975) 50 Cal.App.3d 586 .................................................................................................... 21 18 Powell v. State (1991) 234 Cal.App.3d 910 .................................................................................................. 19 19 Salas v. Department of Transportation 20 (2011) 198 Cal.App.4th 1058 ............................................................................................... 23 21 Searcy v. Gibbel (1986) 177 Cal.App.3d 792 .................................................................................................. 12 22 Seybert v. County of Imperial 23 (1958) 162 Cal.App.2d 209 .................................................................................................. 21 24 Shipley v. City of Arroyo Grande (1949) 92 Cal.App.2d 748 .................................................................................................... 21 25 State v. Superior Court 26 (1984) 150 Cal.App.3d 848 ............................................................................................ 19, 20 27 Susman v. City of Los Angeles (1969) 269 Cal.App.2d 803 .................................................................................................. 12 28 5 CITY OF SALINAS’ MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT TABLE OF AUTHORITIES (cont’d) 1 2 Page(s) 3 Sutton v. Golden Gate Bridge, Highway & Transp. Dist. (1998) 68 Cal.App.4th 1149 ................................................................................................. 21 4 Teresi v. State 5 (1996) 180 Cal.App.3d 239 .................................................................................................. 21 6 Waschek v. Department of Motor Vehicles (1997) 59 Cal.App.4th 640 ................................................................................................... 19 7 Weaver By and Through Weaver v. State 8 (1998) 64 Cal.App.4th 188 ................................................................................................... 14 9 Wood v. County of San Joaquin (2003) 111 Cal.App.4th 960 ................................................................................................. 21 10 Statutes 11 Code Civ. Proc. § 437c (a)................................................................................................................ 11 12 Gov. Code § 810.6 ............................................................................................................................ 20 13 Gov. Code § 815(a)........................................................................................................................... 12 14 Gov. Code § 815(b) .......................................................................................................................... 12 15 Gov. Code § 815.6 ............................................................................................................................ 12 16 Gov. Code § 818.2 ...................................................................................................................... 20, 21 17 Gov. Code § 818.4 ...................................................................................................................... 19, 20 18 Gov. Code § 818.6 ...................................................................................................................... 18, 19 19 Gov. Code § 820.4 ............................................................................................................................ 20 20 Gov. Code § 821 ............................................................................................................................... 21 21 Gov. Code § 830 ............................................................................................................................... 23 22 Gov. Code § 830.2 ............................................................................................................................ 23 23 Gov. Code § 835 ......................................................................................................................... 21, 23 24 Gov. Code § 840.2 .......................................................................................................... 21, 22, 23, 24 25 Veh. Code § 17004 ............................................................................................................... 12, 13, 25 26 Veh. Code § 17004.7 ............................................................................................................ 12, 17, 25 27 Veh. Code § 17004.7(b)(1) ............................................................................................................... 14 28 6 CITY OF SALINAS’ MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT TABLE OF AUTHORITIES (cont’d) 1 2 Page(s) 3 Veh. Code § 17004.7(b)(2) ............................................................................................................... 14 4 Veh. Code § 17004.7(c) .............................................................................................................. 15, 16 5 Veh. Code § 17004.7(d).................................................................................................................... 14 6 Veh. Code § 17004.7(f) .............................................................................................................. 14, 16 7 Other Authorities 8 Salinas Municipal Code § 1-01.07.................................................................................................... 19 9 Salinas Municipal Code § 16-83....................................................................................................... 20 10 Salinas Municipal Code § 37-50.300................................................................................................ 10 11 Salinas Police Dept. Policy 314 .................................................................................................. 15, 16 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 CITY OF SALINAS’ MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT 1 I. INTRODUCTION 2 On the evening of November 19, 2020, Plaintiffs Louis Montano, Jr., Louie Montano III, 3 and Michael Montano (“Plaintiffs”), were seated at an outdoor dining area on the private property 4 of Gino’s Restaurant, Inc. (“Gino’s”) in Salinas, California. Plaintiffs were struck by a vehicle 5 operated by Defendant Austin Alarcon (“Alarcon”), who lost control of his vehicle while fleeing 6 from a Salinas Police Department vehicle. At the time of the incident, Alarcon was a minor who 7 did not possess a driver’s license or liability insurance. 8 In addition to suing Alarcon and his mother for negligence, Plaintiffs allege the City of 9 Salinas (“City”) is liable for “statutory/public entity liability” under Government Code sections 10 815.2(a), 820(a), 835, and 840.2. Plaintiffs also sued Gino’s and the owner of the property on 11 which the restaurant is situated (“NTN Properties LLC”) for negligence and premises liability. 12 Plaintiffs allege a Third Cause of Action for “Statutory/Public Entity Liability” against the 13 City. Within that one cause of action, Plaintiffs generally allege three theories of liability: (1) the 14 police pursuit of Defendant Alarcon was negligent; (2) the City failed to properly inspect, permit 15 and/or enforce applicable codes with respect to outdoor dining facilities at Gino’s Restaurant; and 16 (3) a dangerous condition of public property under Government Code section 835. 17 Although Plaintiffs undoubtedly hope to access a pocket deeper than Mr. Alarcon for their 18 injuries, the City of Salinas is simply not liable in tort for any claim related to this accident. The 19 City moves for summary judgment as to Plaintiff’s Third Cause of Action (and any related cross- 20 actions on the same theories) because, as a matter of law, Plaintiffs cannot maintain a cause of 21 action for statutory/public entity liability. Plaintiff’s negligent police pursuit theory is barred 22 because the City is immune from liability under Vehicle Code section 17004.7, et seq.; Plaintiff’s 23 negligent enforcement of outdoor dining facilities theory is barred because the City is immune from 24 liability for any action based on its decisions on licensing/permitting (Government Code § 818.4 25 and 821.2), property inspections (Government Code § 818.6); and enforcement of its own laws 26 (Government Code § 818.2 and 821, et seq.). The City is also entitled to summary judgment on 27 any dangerous condition of public property theory because the outdoor dining facilities were not 28 public property and did not constitute a dangerous condition under reasonable use. 8 CITY OF SALINAS’ MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT 1 The City is entitled to summary judgment on all cross-actions on the same grounds. 2 II. STATEMENT OF FACTS 3 A. Plaintiffs Were Injured by the Negligent Driving of Defendant Alarcon 4 On November 19, 2020, Defendant Austin Alarcon (“Alarcon”) was a minor and did not 5 possess a valid driver’s license. [UMF 1.] He had no legal right to drive any vehicle on any public 6 road in the City of Salinas. However, he admits he took his parents’ vehicle without permission 7 and drove into the City with a companion. [UMF 1.] On November 19, 2020, City Police Officer 8 Keating (“Ofc. Keating”) was on patrol and in a marked police vehicle. [UMF 2.] Ofc. Keating 9 observed Alarcon driving southbound along South Main Street in the City of Salinas at 10 approximately 60 miles per hour, well in excess of the posted speed limit of 30 miles per hour. 11 [UMF 3.] Ofc. Keating followed the vehicle, and ultimately initiated a lights and siren pursuit due 12 to Alarcon’s dangerous and reckless driving. [UMF 4.] Even though he was aware of the police 13 pursuit, Alarcon refused to stop and fled from Ofc. Keating, driving at speeds up to 60-70 miles per 14 hour on City streets. [UMF 5.] An aerial photograph depicting the area where this portion of the 15 pursuit took place is provided as Exhibit 7. [UMF 6.] 16 Prior to the collision, Alarcon blew through a red light, endangering other vehicles and 17 pedestrians. [UMF 7.] Due to his reckless driving, Alarcon was unable to avoid colliding with a 18 vehicle entering the street. [UMF 8.] Alarcon lost control of his vehicle, jumped a curb, crashed 19 through a series of hedges, crashed through a large restaurant sign, and finally crashed into a series 20 of outdoor patio areas on the private property of Gino’s, injuring Plaintiffs and other patrons. 21 [UMF 9.] An aerial photograph depicting Gino’s Restaurant is provided as Exhibit 8. [UMF 10.] 22 B. Salinas Police Department Had a Valid Vehicle Pursuit Policy 23 Prior to the incident, the Salinas Police Department (“SPD”) had adopted and promulgated 24 a policy governing vehicle pursuits (SPD Policy No. 314). [UMF 11.] SPD Policy 314 defines 25 vehicle pursuits, officer responsibilities, and other factors to be considered when initiating and 26 conducting a vehicle pursuit. [UMF 12.] SPD provides pursuit policy training to all of its police 27 officers on a regular basis. [UMF 13.] SPD trains its officers on the pursuit policy including 28 specific guidelines governing (a) when to initiate pursuits; (b) the number of pursuing vehicles that 9 CITY OF SALINAS’ MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT 1 should be involved and when and how to use air support; (c) communications and coordination 2 procedures; (d) supervisors’ role and inter-jurisdictional considerations; and (e) driving tactics-- 3 including speeds, techniques, and safety measures. [UMF 14.] All of the Department’s police 4 officers who were employed at the time of the incident completed certifications acknowledging that 5 they had received, read, and acknowledged the training. [UMF 15.] Officer Keating received 6 vehicle pursuit training on March 6, 2020, within one year of the incident at issue which occurred 7 on November 19, 2020. [UMF 16.] 8 C. The City Exercised Its Discretion for Inspections, Permits and Enforcement of 9 Outdoor Dining Facilities, Including Gino’s, During the Covid-19 Pandemic 10 Due to Covid-19-related State, County, and City regulations in effect on November 19, 11 2020, commercial establishments were not permitted to conduct indoor dining operations in the 12 City. [UMF 17.] Gino’s, as many other establishments in the City of Salinas, set up outdoor 13 dining facilities to continue operations during the pandemic. [UMF 18.] Gino’s set up tents over 14 pre-existing outdoor dining areas on its own property. [UMF 18.] These areas were on property 15 owned by Gino’s, and there were no dining spaces located on City property. [UMF 18.] 16 Public entities have discretion in how to regulate and enforce their own laws and 17 regulations. Because of its goal of supporting local businesses, the City (and many other 18 municipalities) allowed restaurants to operate outdoor dining operations during the COVID 19 pandemic and associated shutdowns. [UMF 19.] The applicable City Ordinance, Salinas 20 Municipal Code Sec. 37-50.300, required businesses to apply for a Temporary Use of Land Permit 21 (“TULP”) if a “temporary structure” was erected to serve patrons. [UMF 20.] Exercising its 22 discretion over its own inspection, permitting, and enforcement processes, the City elected to 23 educate businesses on the new TULP requirements and allowed businesses to operate without a 24 TULP if the business was in the process of applying and taking steps to obtain a TULP. [UMF 21.] 25 On November 19, 2020, Gino’s was conducting outside dining operations (under a 26 temporary structure/tent) without a TULP. [UMF 22.] The City, through its Community 27 Development and Code Enforcement Departments, became aware of Gino’s unpermitted outdoor 28 dining operations less than one week prior to the date of the accident. [UMF 23.] On or about 10 CITY OF SALINAS’ MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT 1 November 12, 2020, City Associate Planner Oscar Resendiz (“Resendiz”) observed a tent in front 2 of Gino’s. [UMF 23.] Mr. Resendiz had not been contacted by Gino’s to obtain a TULP, so he 3 sent an email to City Code Enforcement personnel and requested that they go to Gino’s to advise 4 them of the need to obtain a TULP in order to proceed with outdoor dining operations, to provide 5 them with information as to how to obtain a TULP, and to contact Mr. Resendiz. [UMF 24.] 6 On November 18, 2020, City Code Enforcement Officer Sylvia Perez (“Perez”) made a site 7 visit to Gino’s, provided a flyer of information about outdoor dining operations, and advised a 8 person she believed to be the manager about the TULP application requirement. Ms. Perez noted 9 that all of the tents were on Gino’s property, not City property. [UMF 25.] On November 24, 10 2020, Mr. Resendiz held a telephone conference with Peter Lai, the manager of Gino’s, advising 11 that the City was allowing businesses to conduct outdoor dining operations, but advised the 12 business would need to apply for and obtain a TULP. Resendiz followed up that same day with an 13 email to Mr. Lai providing a TULP application, information bulletin, and samples for ease of 14 reference. [UMF 26.] Gino’s submitted its application for a TULP on December 1, 2020. [UMF 15 27.] This was not immediately approved because Gino’s did not include a certificate of liability 16 insurance. [UMF 28.] Gino’s was issued a TULP on March 25, 2021. [UMF 29.] Exercising its 17 own discretion and consistent with practices City-wide, the City never issued a citation to Gino’s 18 because Gino’s moved forward with the TULP application process. [UMF 30.] 19 Police investigator photographs depicting the path of travel and scenes of destruction 20 caused by Alarcon’s reckless driving are provided as Exhibits 17-26. [UMF 31.] 21 III. LEGAL ANALYSIS 22 A. The Standard for Granting Summary Judgment 23 The City contends that summary judgment is proper pursuant to Code of Civil Procedure 24 section 437c (a), which states in relevant part: 25 [I]n moving for summary judgment, a defendant ... has met his burden of showing that a cause of action has no merit if he has shown that one or more elements of 26 the cause of action ... cannot be established, or that there is a complete defense to that cause of action. Once the defendant ... has met that burden, the burden shifts 27 to the plaintiff ... to show that a triable issue of one or more material facts exists 28 as to that cause of action or a defense thereto. 11 CITY OF SALINAS’ MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT 1 See, Aguilar v. Atl. Richfield Co. (2001) 25 Cal. 4th 826, 849; Towns v. Davidson (2007) 147 2 Cal.App.4th 461, 466; Gray v. State of California (1989) 207 Cal.App.3d 151, 154. 3 B. Public Entity Liability Must be Based on Statute and is Subject to Various Immunities 4 In California, all governmental tort liability is dependent on the existence of an authorizing 5 statute or enactment; Government Code sections 815(a) and 815.6. Similarly, public entities such 6 as the City are protected by various immunities set forth in statutes; Gov. Code section 815(b). In 7 Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, the California Supreme 8 Court upheld the trial court’s ruling sustaining the demurrers of public entity defendants, holding: 9 In other words, direct tort liability of public entities must be based on a specific statute declaring them to be liable, or at least creating some specific duty of care, 10 and not on the general tort provisions of Civil Code section 1714. Otherwise, the general rule of immunity for public entities would be largely eroded by the 11 routine application of general tort principles. 12 Id. at pg. 1183. [Emphasis added.] 13 In Searcy v. Gibbel (1986) 177 Cal.App.3d 792, the court stated the general rule of 14 government tort liability as follows: 15 Secondly, in California, all government tort liability is dependent on the existence of an authorizing statute or ‘enactment.’ (Gov. Code, sections 815, 16 subd. (a), 815.6; Toland v. State of California ex rel. Dept. of Transportation (1979) 100 Cal.App.3d 980,983; Morris v. State of California (1979) 89 17 Cal.App.3d 962,964; Susman v. City of Los Angeles (1969) 269 Cal.App.2d 803, 808, and to state a cause of action every essential fact to the existence of statutory 18 liability must be pleaded with particularity, including the existence of a statutory duty. 19 20 (Susman v. City of Los Angeles, supra, 269 Cal.App.2d 803, 80.).” [Emphasis added]. At pg. 802. 21 C. The City is Entitled to Summary Judgment on Plaintiff’s Third Cause of Action 22 Because the City is Immune From Negligent Police Pursuit Claims Under California 23 Vehicle Code sections 17004 and 17004.7 24 Plaintiffs’ “statutory liability” claim alleges a theory that the City is liable for a negligent 25 police pursuit of Alarcon which caused Alarcon to crash into Gino’s. (Complaint, ¶¶ 50-52.) The 26 claim is barred as a matter of law by police pursuit immunity. Veh. Code §§ 17004, 17004.7. 27 1. Officer Keating is Immune from Liability for his Pursuit of Alarcon 28 California Vehicle Code section 17004 provides as follows: 12 CITY OF SALINAS’ MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT 1 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 operations, in the 2 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 3 violator of the law, or when responding to but not returning from a fire alarm or other emergency call. 4 5 Thus, “[t]he decision to pursue [a feeling vehicle] is protected by Vehicle Code section 6 17004, which precludes liability for injuries resulting from the operation of an emergency vehicle 7 ‘in the immediate pursuit of an actual or suspected violator of the law… .” Bratt v. City & County 8 of San Francisco (1985) 50 Cal.App.3d 550; 553. 9 Further, the decision to pursue a suspect vehicle is a discretionary act protected by Gov. 10 Code section 820.2, which provides that: “Except as otherwise provided by statute, a public 11 employee is not liable for an injury resulting from his act or omission where the act or omission 12 was the result of the exercise of the discretion vested in him, whether or not such discretion is 13 abused.” See also Brummett v. County of Sacramento (1978) 21 Cal.3d 880 (a public employee is 14 not liable for damages on account of personal injury when in immediate pursuit of an actual or 15 suspected violator of the law). 16 In Hernandez v. City of Pomona (2009) 46 Cal.4th 501, a traffic violator failed to yield to a 17 police officer who activated his emergency lights and pursued the suspect on an 18-minute car 18 chase at which point the suspect crashed into a tree. The California Supreme Court held, “Under 19 Vehicle Code section 17004, the individual officers may not be held civilly liable for Hernandez’s 20 death based on the manner in which they operated their vehicles during the chase, even assuming 21 they acted without due care”. Hernandez, 46 Cal.4th at 506-507, 519-520. Hernandez further 22 held that because the police officers were immune from liability under Cal. Veh. Code section 23 17004, the officer’s employing public entity was also immune. Id. at 509. See also Cruz v. 24 Briseno (2000) 22 Cal.4th 568, 572-572 (the “language of section 17004 is clear and ambiguous in 25 immunizing public employees such as [the defendant officer] from civil liability for injuries 26 incurred while in pursuit of an actual or suspected lawbreaker”). 27 In this case, Ofc. Keating is immune from liability under Veh. Code section 17004 as a 28 matter of law because it is undisputed that Ofc. Keating was pursuing a vehicle which was 13 CITY OF SALINAS’ MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT 1 observed breaking the law. 2 2. Defendant City is Also Immune from Liability for the Pursuit 3 The City is immune because Officer Keating is immune. Hernandez, supra, 46 Cal.4th at 4 506-507, 519-520. The City is also immune from liability because it adopted, promulgated, and 5 regularly trained its peace officers on its written policy for safety during vehicle pursuits. 6 Cal. Veh. Code section 17004.7(b)(1) provides as follows: 7 (b)(1) A public agency employing peace officers that adopts and promulgates a written policy on, and provides regular and periodic training on an annual basis 8 for, vehicular pursuits complying with subdivisions (c) and (d) is immune from liability for civil damages for personal injury to or death of any person or damage 9 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 10 or has been, pursued in a motor vehicle by a peace officer employed by the public entity. 11 12 “Promulgation of the written policy…shall include, but is not limited to, a requirement that 13 all peace officers of the public agency certify in writing that they have received, read, and 14 understand the policy. The failure of an individual officer to sign a certification shall not be used 15 to impose liability on an individual officer of a public entity.” Veh. Code § 17004.7(b)(2). 16 “Regular and periodic training” shall mean annual training that includes coverage of the subjects 17 and elements set forth in subdivision (c). Veh. Code § 17004.7(d). A determination of whether a 18 public agency has complied with subdivisions (c) and (d) is a question of law for the court. Veh. 19 Code § 17004.7(f). 20 The Court’s inquiry is not to supervise the implementation of the pursuit policy or to 21 interpret the policy for good or bad tactics or implementation. Weaver By and Through Weaver v. 22 State (1998) 64 Cal.App.4th 188, 201 (the extent to which the policy was implemented in general 23 and followed in the particular pursuit is irrelevant as the court does not have the supervisory power 24 to dictate what is good or bad law enforcement tactics). If a public agency adopts a vehicle pursuit 25 policy which meets statutory requirements, immunity results, regardless of extent to which policy 26 is implemented in general or followed in a particular pursuit. Brumer v. City of Los Angeles (1994) 27 24 Cal.App.4th 983. 28 Whether a public entity that adopts a pursuit policy meeting the statutory requirements is 14 CITY OF SALINAS’ MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT 1 immune from liability for injuries sustained as result of a collision of pursued vehicle has nothing 2 to do with whether an “innocent” third party or a fleeing suspect was injured; rather, the critical 3 question is whether the plaintiff's injuries resulted from the collision of a vehicle being operated by 4 a fleeing suspect. Lewis v. County of Sacramento (2001) 93 Cal.App.4th 107. The extent to which 5 the policy was implemented in general and followed in the particular pursuit is irrelevant. McGee 6 v. City of Laguna Beach (1997), 56 Cal.App.4th 537, 548. 7 To qualify under statute granting immunity from liability for injuries resulting from the 8 collision of a vehicle being operated by suspect during pursuit by peace officer in motor vehicle, a 9 vehicular pursuit policy must do more than simply advise the pursuing officers to exercise their 10 discretion and use their best judgment; the policy must control and channel the pursuing officer's 11 discretion by providing objective standards by which to evaluate whether the pursuit should be 12 initiated or terminated and, at the very least, it should instruct and direct the officers on what 13 factors should be considered in deciding whether to pursue the fleeing suspect. Nguyen v. City of 14 Westminster (2002) 103 Cal.App.4th 1161. 15 (a) City Adopted a Vehicle Pursuit Policy 16 The City adopted a written policy for vehicle pursuits, specifically SPD Policy 314. [UMF 17 12.] Veh. Code section 17004.7(c) sets forth minimum standards a written pursuit policy must 18 meet to allow a governmental entity to assert the limited immunity. Section 17004.7 (c) provides: 19 A policy for the safe conduct of motor vehicle pursuits by peace officers shall meet all the following minimum standards: 20 (1) Determine under what circumstances to initiate a pursuit. … 21 (2) Determine the total number of law enforcement vehicles authorized to 22 participate in a pursuit. … 23 (3) Determine the communication procedures to be followed during a pursuit. … 24 (4) Determine the role of the supervisor in managing and controlling a pursuit. … 25 (5) Determine driving tactics and the circumstances under which the tactics may be appropriate. … 26 (6) Determine authorized pursuit intervention tactics. … The policy shall specify 27 under what circumstances and conditions each approved tactic is authorized to be used. 28 15 CITY OF SALINAS’ MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT 1 (7) Determine the factors to be considered by a peace officer and supervisor in determining speeds throughout a pursuit. … 2 (8) Determine the role of air support. … 3 (9) Determine when to terminate a pursuit… 4 5 The question of whether the City has complied with subdivision (c) is a question of law for 6 the court. Veh. Code § 17004.7(f). 7 In this case, the City’s policy for safe conduct of vehicle pursuits meets the requirements of 8 Veh. Code section 17004.7(c). SPD Policy 314 provides that when deciding the merits of initiating 9 any pursuit-related activities, officers need to consider the following factors: (a) The type of 10 violation, whether actual or suspected; (b) the importance of protecting the public and balancing 11 the offense against the need for immediate capture; (c) the nature of the fleeing suspects and 12 whether the suspect presents a serious threat to public safety; (d) whether the identity of the suspect 13 has been verified and there is comparatively minimal risk in allowing the suspects to be 14 apprehended at a later time; (e) safety of the public in the area of the pursuit; (f) pursuing officers’ 15 familiarity with the area of the pursuit; (g) weather, traffic and road conditions; (h) performance 16 capabilities of the vehicles used in the pursuit; (i) vehicle speeds; (j) other persons in or around the 17 pursued vehicle; (k) available of other resources such as helicopter assistance; and (l) the police 18 unit is carrying passengers other than police officers. [UMF 12-14.] 19 (b) The Pursuit Policy Provides Adequate Guidelines 20 SPD Policy 314 requires officers to consider, inter alia, the seriousness of the suspected 21 crime, the importance of protecting the public and balancing the known risks and the apparent need 22 for immediate capture, the safety of the public in the area of pursuit, including the type of area, 23 time of day, the amount of vehicular and pedestrian traffic, and the speed of the pursuit, etc. Thus, 24 SPD Officers do not have unfettered discretion as to whether to conduct a pursuit, or how to 25 conduct the pursuit once initiated. McGee v. City of Laguna Beach (1997) 56 Cal.App.4th 537, 26 542-44 (when the policy does not leave the officer with unfettered discretion but provides factors to 27 guide the decision making regarding the conduct of vehicle pursuits, the policy meets minimum 28 requirements); see also Ketchum v. State of California (1998) 62 Cal.App.4th 957, 966 (the policy 16 CITY OF SALINAS’ MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT 1 must do more than advise the officers to exercise discretion and best judgment and must control 2 and channel officer discretion by providing objective standards to evaluate whether the pursuit 3 should be initiated or terminated and instruct and direct officers on what factors should be 4 considered in deciding whether to pursue the fleeing suspect); Colvin v. City of Gardena (1992) 11 5 Cal.App.4th 1270, 1283 (the policy must clearly and with specificity set forth standards to guide its 6 officers). 7 (c) City Promulgated the Pursuit Policy to Its Officers 8 The City promulgated its vehicle pursuit policy through regular driver training courses, 9 including specific courses on vehicle pursuits. [UMF 12-14.] The City promulgated the policy by 10 providing regular training to its officers on such vehicle pursuit policies and procedures. [UMF 12- 11 14.] The SPD policy includes specific factors and guidelines for conducting vehicle pursuits, 12 including (a) when to initiate pursuits; (b) the number of pursuing vehicles that should be involved; 13 (c) communications and coordination procedures, supervisor’s roles and inter-jurisdictional 14 considerations; and (d) appropriate driving tactics - including, inter alia, speeds, use of due regard 15 and precautions, proceeding through controlled intersections, passing other vehicles, and 16 maintenance of visual contact with pursued vehicle. [UMF 13.] All of the Department’s police 17 officers who were employed at the time of the incident completed certifications acknowledging that 18 they had received, read, and acknowledged the training. [UMF 15.] Officer Keating received 19 vehicle pursuit training on March 6, 2020, within one year of the incident at issue which occurred 20 on November 19, 2020. [UMF 16.] 21 Therefore, the undisputed evidence establishes that (1) the City had a written pursuit policy; 22 (2) the policy provides adequate guidelines; and (3) the City promulgated the policy to its officers, 23 including Officer Keating. Accordingly, the City has statutory immunity under Veh. Code section 24 17004.7 from the negligent pursuit claim. 25 D. The City is Entitled to Summary Judgment on Plaintiff’s Third Cause of Action 26 Because It is Immune from Claims Based on Inspections, Permitting, and 27 Enforcement of its Own Laws 28 Plaintiff’s “statutory liability” claim also alleges that the City was negligent in the 17 CITY OF SALINAS’ MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR SUMMARY JUDGMENT 1 inspection, permitting and enforcement of its own ordinances regarding TULPs for outdoor dining 2 operations. (Complaint, ¶¶ 43 - 49, 51.) The City is immune from any liability for its conduct and 3 decisions on inspections, permits, and enforcement of its own laws. 4 1. Inspection Immunity 5 Section 818.6 of the Gov. Code provides: 6 A public entity is not liable for injury caused by its failure to make an inspection, or by reason of making an inadequate or negligent inspection, of any property, 7 other than its property (as defined in subdivision (c) of Section 830), for the purpose of determining whether the property complies with or violates any 8 enactment or contains or constitutes a hazard to health or safety. 9 The inspection immunity conferred on public entities by Gov. Code section 818.6 is 10 absolute and applies to mandatory activities as well as discretionary ones. Haggis v. City of Los 11 Angeles (2000) 22 Cal.4th 490,