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1 GREENBERG AND RUBY
INJURY ATTORNEYS, APC
2 EMILY A. RUBY – SBN 289433
eruby@caltrialpros.com
3 SERGIO R. CARDENAS – SNB 321239
scardenas@caltrialpros.com
4 6100 Wilshire Boulevard, Suite 1170
Los Angeles, California 90048
5 Tel. No.: (323) 782-0535
Fax No.: (323) 782-0543
6
Attorneys for Plaintiffs,
7 LOUIS MONTANO, JR.;
LOUIE MONTANO III; and
8 MICHAEL MONTANO
9
SUPERIOR COURT OF THE STATE OF CALIFORNIA
10
FOR THE COUNTY OF MONTEREY
11
12 LOUIS MONTANO, JR.; LOUIE Case No. 21CV003635 (Consolidated with Case
MONTANO III; AND MICHAEL Nos. 22CV002531; 22CV003206; 22CV003261;
13 MONTANO, an individual 22CF003443 and 22CV003598)
14 Plaintiffs, Assigned to: Hon. Carrie M. Panetta
Dept. 14
15 v.
PLAINTIFFS LOUIS MONTANO, JR.; LOUIE
16 CITY OF SALINAS; GINO’S MONTANO III; AND MICHAEL
RESTAURANT, INC.; GINO’S FINE MONTANO’S OPPOSITION TO
17 ITALIAN FOOD, INC.; BLFA PROPERTIES DEFENDANT CITY OF SALINAS’ MOTION
LLC; NTN PROPERTIES LLC; NGOCHAO FOR SUMMARY JUDGMENT
18 THI NGUYEN; RALPH BOZZO; ROSAURA
ARCOS PANIAGUA; AUSTIN ALARCON; [Filed Concurrently with Plaintiffs’ Responsive
19 and DOES 1-35, Statement of Facts; Objections to Evidence; Declaration
of Sergio R. Cardenas, Esq.; Declaration of Scott Defoe;
20 Defendants. Request to Take Judicial Notice; and Index of Exhibits]
21 Hearing Date: August 4, 2023
Hearing Time: 8:30 AM
22 Department: 14
23 Complaint Filed: November 16, 2021
Trial Date: Vacated
24
AND ALL RELATED CROSS-ACTIONS
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26
TO THE COURT, ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD HEREIN:
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Pursuant to C.C.P. Section 437c(b), Plaintiffs LOUIS MONTANO, JR.; LOUIE MONTANO III;
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PLAINTIFFS LOUIS MONTANO, JR.; LOUIE MONTANO III; AND MICHAEL MONTANO’S OPPOSITION TO
DEFENDANT CITY OF SALINAS’ MOTION FOR SUMMARY JUDGMENT
1 and MICHAEL MONTANO (“Plaintiffs”) hereby submit this Opposition to Defendant CITY OF
2 SALINAS’ (“Defendant” or “City”) Motion for Summary Judgment.
3 Defendant’s motion should be denied for each of the following independent reasons:
4 1. Defendant failed to meet its burden of proof to conclusively establish its affirmative
5 defense for negligent police pursuit immunity under California Vehicle Code sections 17004 and 17004.7;
6 2. Defendant failed to meet its burden of proof to conclusively establish its affirmative
7 defense for immunity with respect to the un-permitted outdoor dining tents at Gino’s;
8 3. Defendant failed to meet its burden of proof to establish that no triable issue of material
9 fact exists and it is entitled to judgment as a matter of law as to Plaintiffs’ dangerous condition of public
10 property claims;
11 4. Despite Defendant wholly failing to meet its burden, and thus failing to shift any burden to
12 Plaintiffs to produce evidence, in an abundance of caution, Plaintiffs have established, by admissible
13 evidence, that Defendant City of Salinas is not immune from liability under any section of the Government
14 Claims Act, or at minimum, that triable issues of material fact exist and summary judgment is improper.
15 Plaintiffs’ opposition shall be based on the attached Memorandum of Points and Authorities,
16 Plaintiffs’ Responsive Statement of Facts, the Declaration of Sergio R. Cardenas, Esq., the Declaration of
17 Scott Defoe, Plaintiffs’ Request for Judicial Notice, Plaintiffs’ Index of Exhibits, and the evidence and
18 case law, the pleadings, documents records, and files in this action, and such oral and documentary
19 evidence and argument as may be presented at the hearing on this motion.
20
21 DATED: July 21, 2023 GREENBERG AND RUBY
INJURY ATTORNEYS, APC
22
23
By:
24 EMILY A. RUBY
SERGIO R. CARDENAS
25 Attorneys for Plaintiffs,
LOUIS MONTANO, JR.; LOUIE MONTANO III;
26 and MICHAEL MONTANO
27
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PLAINTIFFS LOUIS MONTANO, JR.; LOUIE MONTANO III; AND MICHAEL MONTANO’S OPPOSITION TO
DEFENDANT CITY OF SALINAS’ MOTION FOR SUMMARY JUDGMENT
1 TABLE OF CONTENTS
2 I. INTRODUCTION ............................................................................................................... 1
3 II. RELEVANT FACTS ........................................................................................................... 2
4 A. Salinas Police Department Officer Ryan Keating Initiated and Continued an
Unreasonable, Dangerous, and Negligent Pursuit the Night of November 19,
5 2020 ........................................................................................................................... 2
6 B. The Salinas PD, and Particularly, Officer Keating and the Supervisor
Monitoring the Pursuit, Should Have Terminated the Pursuit Before
7 Alarcon Caused a Collision..................................................................................... 3
8 C. The SPD Vehicle Pursuit Policy Did Not Meet the Three Requirements
Necessary for Immunity Under Section 17004.7 .................................................. 4
9
1. The SPD Policy Did Not Meet the Minimum Standards Required by Section
10 17004.7(c) And Did Not Provide Adequate Guidelines for Officers to Follow in
Deciding Whether To Initiate Or Terminate A Pursuit ............................................. 5
11
2. The City of Salinas Police Department Did Not Promulgate Its Vehicle Pursuit
12 Policy as Required by Vehicle Code Section 17004.7 .............................................. 7
13 3. The City of Salinas Police Department Did Not Provide Regular and Periodic
Training on Its Pursuit Policy on An Annual Basis, as Required by Section
14 17004.7 ...................................................................................................................... 7
15 D. Officer Keating Was Not Properly or Adequately Trained ................................ 9
16 III. STANDARD OF LAW ........................................................................................................ 9
17 IV. DEFENDANT’S MOTION FOR SUMMARY JUDGMENT MUST BE DENIED
BECAUSE IT VIOLATES PLAINTIFFS’ DUE PROCESS RIGHTS ........................ 10
18
V. THE CITY WAIVED ALL IMMUNITY AFFIRMATIVE DEFENSES NOT PLED
19 IN ITS ANSWER ............................................................................................................... 11
20 VI. THE CITY’S MOTION MUST BE DENIED BECAUSE THE CITY FAILS TO
MEET ITS BURDEN FOR SUMMARY JUDGMENT ................................................ 12
21
A. The City Omits and/or Mischaracterizes a Substantial Amount of Material
22 Evidence That Creates Triable Issues of Material Fact..................................... 13
23 B. The City’s Own Evidence Establishes Multiple Triable Issues of Fact ............ 13
24 C. The City Failed to Establish Its Vehicle Pursuit Policy Immunity
Affirmative Defense ............................................................................................... 15
25
1. The City’s Motion Fails to Establish That the SPD Adopted a Written Pursuit
26 Policy That Meets the Requirements of Section 17004.7 ....................................... 15
27 2. The City Fails to Establish the SPD Promulgated its Pursuit Policy as Required
By Section 17004.7 ................................................................................................. 16
28
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PLAINTIFFS LOUIS MONTANO, JR., LOUIE MONTANO III, AND MICHAEL MONTANO’S OPPOSITION TO
DEFENDANT CITY OF SALINAS’ MOTION FOR SUMMARY JUDGMENT
1 3. The City Is Not Entitled to Immunity Under Section 17004.7 Because the SPD
Did Not Provide the Legislatively Mandated Minimum Training on Its Pursuit
2 Policy ....................................................................................................................... 17
3 D. Compliance with State COVID Emergency Orders Was Mandatory, and the
City Did Not Have Discretion in Enforcing State Orders for The Safety of
4 Patrons of Restaurants .......................................................................................... 18
5 E. Issuing TULP’s Per the City of Salinas Code of Ordinances Is
Administrative and Not Discretionary ................................................................ 18
6
VII. CONCLUSION .................................................................................................................. 19
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PLAINTIFFS LOUIS MONTANO, JR., LOUIE MONTANO III, AND MICHAEL MONTANO’S OPPOSITION TO
DEFENDANT CITY OF SALINAS’ MOTION FOR SUMMARY JUDGMENT
1 TABLE OF AUTHORITIES
2 Cases
3 Berman v. City of Daly City (1993) 21 Cal.App.4th 276 ................................................................ 16
4 City of Emeryville v. Superior Court (1991) 2 Cal.App.4th 21 ....................................................... 15
5 Crouse v. Brobeck, Phleger & Harrison (1998) 67 Cal.App. 4th 1509 .......................................... 10
6 Flores v. City of San Diego (2022) 83 Cal.App.5th 360 .................................................................... 1
7 Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875 ................................................................. 13
8 Jambazian v. Borden (1994) 25 Cal.App.4th 836 ........................................................................... 15
9 Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242 .............................................................. 11
10 Leo F. Piazza Paving Co. v. Foundation Constructors (1981) 128 Cal.App.3d 583...................... 10
11 Mendez v. Superior Court (2008) 162 Cal.App.4th 827 ................................................................. 13
12 Nazir v. United Airlines (2009) 178 Cal.App.4th 243 ..................................................................... 13
13 Ojavan Investors, Inc. v. Cal. Coastal Com. (1997) 54 Cal.App.4th 373 ....................................... 10
14 Payne v. City of Perris (1993) 12 Cal.App.4th 1738 ...................................................................... 16
15 Ramirez v. City of Gardena (2017) 14 Cal.App.5th 811 .................................................................. 15
16 Rio Linda Unified School District v. Superior Court of Sacramento County (1997) 52 Cal.App.4th 732
............................................................................................................................................. 13
17
San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308 ............................ 11
18
Teselle v. McLoughlin (2009) 173 Cal.App.4th 156 ....................................................................... 11
19
Versa Technologies, Inc. v. Sup. Ct. (1978) 78 Cal.App.3d 237 ............................................... 10, 14
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Statutes
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CCP § 430.80................................................................................................................................... 11
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CCP § 437c .................................................................................................................................. 9, 10
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Code of Civil Procedure section 431.30 .......................................................................................... 12
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Gov. Code section 821.2 ................................................................................................................. 12
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Gov. Code section 821.4 ................................................................................................................. 12
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PLAINTIFFS LOUIS MONTANO, JR., LOUIE MONTANO III, AND MICHAEL MONTANO’S OPPOSITION TO
DEFENDANT CITY OF SALINAS’ MOTION FOR SUMMARY JUDGMENT
1 Veh. Code § ....................................................................................................................................... 8
2 Veh. Code § 21807 ............................................................................................................................ 9
3 Vehicle Code Section 21055 ............................................................................................................. 8
4 Vehicle Code Section 21056 ............................................................................................................. 8
5
Other Authorities
6
5 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 1082 .............................................................. 12
7
City of Salinas Code of Ordinance, § 37-50-300 ............................................................................ 18
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Section 37-60-090 ..................................................................................................................... 18, 19
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Section 37-60-170 ........................................................................................................................... 18
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PLAINTIFFS LOUIS MONTANO, JR., LOUIE MONTANO III, AND MICHAEL MONTANO’S OPPOSITION TO
DEFENDANT CITY OF SALINAS’ MOTION FOR SUMMARY JUDGMENT
1 MEMORANDUM OF POINTS AND AUTHORITIES
2 I. INTRODUCTION
3 This case is a tragic example of what occurs when a public entity and its employees, in this case, the
4 City of Salinas, are negligent in carrying out their duties, assuming they will be shielded from liability by
5 various immunities. However, governmental immunity is an affirmative defense, and the City bears the
6 burden of establishing, by admissible evidence, that it is entitled to immunity under each section of the fail
7 to take necessary measures to protect the public from harm. The City’s motion for summary judgment claims
8 the City is immune from all liability for Plaintiffs’ damages based on a laundry list of immunities under the
9 Government Claims Act. It is well-established law in this State that Government Claims Act immunities are
10 affirmative defenses, and the City has the burden of establishing them by admissible evidence before any
11 burden shifts to Plaintiffs to produce any evidence. The City’s motion must be denied outright because it
12 fails to address the relevant statutory and case law, fails to provide admissible evidence in support of its
13 affirmative defenses, mischaracterizes key evidence, and omits a substantial amount of evidence that
14 contradicts its arguments and establishes numerous triable issues of material fact.
15 The City’s first ground for arguing it is entitled to summary judgment is based on the police pursuit
16 policy immunity provided by Vehicle Code Section 17004.7. The City argues that under this section, it is
17 immune for the injuries caused by City of Salinas Police Department (“SPD”) officer Ryan Keating engaging
18 in an unnecessary and negligent high-speed pursuit that resulted in the vehicle he was pursuing colliding with
19 an innocent motorist’s vehicle in an intersection and then losing control and crashing into the outdoor dining
20 tents at Gino’s Restaurant. This argument fails on its face, because the City’s own evidence proves that the
21 SPD did not meet the minimum training requirements that must be met before a governmental entity is
22 entitled to immunity under the statute. (Flores v. City of San Diego (2022) 83 Cal.App.5th 360, 367). Even
23 though no burden shifted to Plaintiffs, in an abundance of caution, Plaintiff submits the Declaration of Scott
24 DeFoe, who has over two decades of experience as a Los Angeles Police Department officer, during which
25 time he participated in, supervised, and investigated numerous police pursuits.
26 The City’s second ground for arguing it is entitled to summary judgment conflates and confuses
27 multiple independent immunities into a catch-all “inspection, enforcement, and permitting” immunity
28 argument. This argument fails for multiple reasons discussed in detail this Memorandum, including
1
PLAINTIFFS LOUIS MONTANO, JR., LOUIE MONTANO III, AND MICHAEL MONTANO’S OPPOSITION TO
DEFENDANT CITY OF SALINAS’ MOTION FOR SUMMARY JUDGMENT
1 procedural issues, and the fact that Defendant’s own evidence contradicts multiple of its own “facts.” Again,
2 despite Defendant’s failure to meet its burden on establishing its affirmative defense, Plaintiffs nevertheless
3 submit substantial evidence that establishes multiple triable issues of material fact.
4 Finally, the City’s third ground for arguing it is entitled to summary judgment also fails, because the
5 City has not established, as a matter of law, that no triable issue of material fact exists and it is entitled to
6 judgment as a matter of law on Plaintiffs’ Dangerous Condition of Public Property claims.
7 Because the City’s motion for summary judgment fails to establish any of its immunity affirmative
8 defenses or to show that there is no triable issue as to any material fact and that the City is entitled to a
9 judgment as a matter of law, summary judgment cannot be granted. (CCP 437c(c)).
10 II. RELEVANT FACTS
11 A. Salinas Police Department Officer Ryan Keating Initiated and Continued an
12 Unreasonable, Dangerous, and Negligent Pursuit the Night of November 19, 2020
13 Defendant Austin Alarcon testified that he was not speeding before he saw the police vehicle the
14 night of November 19, 2020. (PSSF 34) Officer Keating guessed that the vehicle Alarcon was driving
15 was going approximately 60 miles when he first saw it, but admitted that he was not trained to visually
16 estimate speeds. (PSSF 60) City of Salinas Police Department (“SPD”) Sergeant James Godwin testified
17 that the red light and siren are required for a pursuit, pursuant to the SPD’s pursuit policy. (PSSF 75)
18 However, for approximately one minute prior to activating his light and siren, Officer Keating followed
19 the vehicle being driven by Alarcon through a residential area trying to catch up to it. (PSSF 52, 56) He
20 chased the vehicle on multiple residential streets, including past two pedestrians, one of which was in
21 the roadway. (PSSF 56) During this entire time, the only suspected offense was speeding on South Main
22 Street. (Ibid.) Officer Keating testified that he did not know how fast he or the vehicle being driven by
23 Alarcon were going because he never looked at his speedometer. (PSSF 52-54).
24 Officer Keating testified that the reason he activated his light and siren was because the silver
25 sedan passed a vehicle on the right where there's only one lane for eastbound traffic, and that passing in
26 violation of the Vehicle Code was the only known or suspected crime at that time. (PSSF 55). Officer
27 Keating does not recall if he provided County Communications all of the list of requirements to initiate a
28 Vehicle Pursuit per Salinas PD Policy Manual, Policy 314.3.3. (PSSF 86) Officer Keating admits that at
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PLAINTIFFS LOUIS MONTANO, JR., LOUIE MONTANO III, AND MICHAEL MONTANO’S OPPOSITION TO
DEFENDANT CITY OF SALINAS’ MOTION FOR SUMMARY JUDGMENT
1 no point did he learn from Dispatch that the vehicle was stolen, and he was unaware why the suspect
2 fled in the vehicle. (PSSF 80) Alarcon testified that he first saw the police vehicle when he put his siren
3 on, and that he was not attempting to flee and did not pull over because he was just scared. (PSSF 32,
4 33) Sergeant Godwin admitted that physiological factors such as vision, fatigue, stress, attention,
5 anxiety, fear, and others, would impact the suspect in a pursuit. (PSSF 76)
6 B. The Salinas PD, and Particularly, Officer Keating and the Supervisor Monitoring the
7 Pursuit, Should Have Terminated the Pursuit Before Alarcon Caused a Collision
8 Plaintiffs’ police practices expert, Scott DeFoe, was a Los Angeles Police Department Officer
9 for nearly 26 years, during which time he was involved in vehicle pursuits and vehicle pullovers as
10 Primary Officer, Secondary Officer, and a Supervisor. In addition, he received and provided training on
11 Pursuit Policy, Pursuit Tactics, Post-Pursuit Tactics and Containment. He also conducted over (50)
12 Vehicle Pursuit Investigations during his last 14 years as a Supervisor with the Los Angeles Police
13 Department. Mr. DeFoe also held a California Peace Officer Standards and Training (“POST”)
14 Advanced and Supervisor Certificate. As Mr. DeFoe sets forth in his Declaration submitted in support of
15 Plaintiffs’ Opposition, Officer Ryan Keating acted unreasonably and violated Salinas PD Policy Manual,
16 Policy 314.2.2, Vehicle Pursuits, WHEN TO TERMINATE A PURSUIT, 08/10/2020, which provides:
17 “Pursuits should be discontinued whenever the totality of objective circumstances known or which
18 reasonably ought to be known to the officer or supervisor during the pursuit indicates that the present
19 risks of continuing the pursuit reasonably appear to outweigh the risks resulting from the suspect’s
20 escape.” (PSSF 63, 106).
21 Section 314.2.2 provides that the factors listed in “When to Initiate a Pursuit” are expressly
22 included herein and apply equally to the decision to discontinue as well as the decision to initiate a
23 pursuit. Officers and supervisors must objectively and continuously weigh the seriousness of the offense
24 against the potential danger to innocent motorists and themselves when electing to continue a pursuit. In
25 addition to the factors listed in “When to Initiate a Pursuit” of this policy, factors that must also be
26 considered in deciding whether to terminate a pursuit include whether there are hazards to uninvolved
27 bystanders or motorists.
28 Here, Officer Keating admits during the entirety of the pursuit, there were hazards to uninvolved
3
PLAINTIFFS LOUIS MONTANO, JR., LOUIE MONTANO III, AND MICHAEL MONTANO’S OPPOSITION TO
DEFENDANT CITY OF SALINAS’ MOTION FOR SUMMARY JUDGMENT
1 bystanders and motorists. (PSSF 88) Officer Keating agrees he drove 70 miles per hour in a 30 mile per
2 hour speed zone to keep up with the vehicle he was pursuing on South Main Street, and he was still
3 under the impression that the driver was under the influence of alcohol or narcotics, and he did not
4 inform County Communications as this time. (PSSF 90) In addition, Keating agrees that pursuing a
5 driver that may be under the influence of alcohol or narcotics increases the danger to the public. (89)
6 Officer Keating does not know if there was any supervisor who was continuously weighing the
7 seriousness of the offense against the potential danger to innocent motorists and himself during the
8 pursuit. (PSSF 59)
9 As Mr. DeFoe explains, under the facts in this case, Salinas Police Department Supervisor/Watch
10 Commander acted unreasonably and violated Salinas PD Policy Manual, Policy 314.4, Vehicle Pursuits,
11 SUPERVISORY CONTROL AND RESPONSIBILITY, 8/10/2020: It is the policy of this department
12 that available supervisory and management control will be exercised over all vehicle pursuits involving
13 officers from this department. The field supervisor of the officer initiating the pursuit, or if unavailable,
14 the nearest field supervisor will be responsible for the following:
15 a) Upon becoming aware of a pursuit, immediately ascertaining all reasonably available
16 information to continuously assess the situation and risk factors associated with the pursuit in
17 order to ensure that the pursuit is conducted within established department guidelines.
18 b) Exercising management and control of the pursuit even if not engaged in it.
19 c) Directing that the pursuit be terminated if, in his/her judgment, it is unjustified to continue
20 the pursuit under the guidelines of this policy.
21 d) Ensuring that aircraft are requested if available.
22 C. The SPD Vehicle Pursuit Policy Did Not Meet the Three Requirements Necessary for
23 Immunity Under Section 17004.7
24 Section 17004.7(b)(1) of the California Vehicle Code states:
25 “A public agency employing peace officers that adopts and promulgates a
written policy on, and provides regular and periodic training on an annual
26 basis for, vehicular pursuits complying with subdivisions (c) and (d) is
immune from liability for civil damages for personal injury to or death of
27 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,
28 has been, or believes he or she is being or has been, pursued in a motor
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PLAINTIFFS LOUIS MONTANO, JR., LOUIE MONTANO III, AND MICHAEL MONTANO’S OPPOSITION TO
DEFENDANT CITY OF SALINAS’ MOTION FOR SUMMARY JUDGMENT
1 vehicle by a peace officer employed by the public entity.”
(PSSF 65)
2
In order for the City of Salinas to have immunity for the injuries and damages caused by Officer
3
Keating’s negligent pursuit of Alarcon on November 19, 2020, the City has to establish, by
4
uncontroverted admissible evidence, that 1) it adopted a pursuit policy meeting the requirements of
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Section 17004.7, 2) it promulgated the policy as required by Section 17004.7, and 3) it provided regular
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and periodic training on an annual basis for vehicle pursuits. Sergeant Godwin admits that the purpose
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of the SPD’s vehicle pursuit policy is to protect the officers by government immunity and for the safety
8
of the public, the officers and the person being pursued. (PSSF 68)
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1. The SPD Policy Did Not Meet the Minimum Standards Required by Section
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17004.7(c) And Did Not Provide Adequate Guidelines for Officers to Follow in
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Deciding Whether To Initiate Or Terminate A Pursuit
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The deposition testimony of City of Salinas Police Department Sergeant James Godwin, Sergeant
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Seth Morten, and Officer Ryan Keating, leaves no ambiguity about the fact that the SPD pursuit policy,
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Policy No. 314, does not meet the minimum standards required by Section 17004.7(c), and does not
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provide adequate guidelines for officers to follow when deciding whether to initiate or terminate a pursuit.
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Sergeant Seth Morten testified point blank that he does not know when a police officer can initiate
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a pursuit under the SPD pursuit policy. (PSSF 78) Officer Keating is unfamiliar with the factors that are
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required to be considered when deciding whether to initiate a pursuit as outlined in Salinas PD Policy
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Manual, Policy 314.2.1, and the factors for when to terminate a pursuit, outlined in Section 314.4.2. (PSSF
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81)
21
Section 314.2.1 of the Policy provides a list of factors that SPD officers are required to consider,
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individually and collectively, when deciding whether to initiate a pursuit including, among others, (a) the
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seriousness of the known or reasonably suspected crime and its relationship to community safety, and (b)
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the importance of protecting the public and balancing the known or reasonably suspected offense and the
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apparent need for immediate capture against the risks to officers, innocent motorists, and others. (PSSF
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62) Section 314.2.2 provides additional factors that must be considered in deciding whether to terminate
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a pursuit, including, among others, (d) Extended pursuits of violators for misdemeanors not involving
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PLAINTIFFS LOUIS MONTANO, JR., LOUIE MONTANO III, AND MICHAEL MONTANO’S OPPOSITION TO
DEFENDANT CITY OF SALINAS’ MOTION FOR SUMMARY JUDGMENT
1 violence or risk of serious harm (independent of pursuit) are discouraged; (e) there are hazards to
2 uninvolved bystanders and motorists, and (g) Pursuit is terminated by a supervisor. (PSSF 63).
3 In direct contradiction to the requirements in the pursuit policy, Sergeant Godwin testified that the
4 seriousness of the known or suspected offense is not a factor that needs to be considered in deciding
5 whether to initiate a pursuit, and that any crime justifies initiating a pursuit. (PSSF 82). When he was
6 asked what infractions he would consider to justify a high speed pursuit when balancing the need for
7 immediate apprehension versus the risk to the public, he responded, “I couldn’t begin to even consider all
8 of the circumstances….” (PSSF 77) Similarly, Officer Keating testified that he does not know how the
9 seriousness of the known or reasonably suspected crime would weigh in favor or against initiating a
10 pursuit, and that during the time he was an active City of Salinas patrol officer, he did not know how to
11 weigh this factor in deciding whether to initiate pursuit. (PSSF 49) When Officer Keating was asked
12 during deposition if he would agree that a less serious crime would weigh against initiating a pursuit, he
13 responded, “I don’t think that would stop me from initiating a pursuit.” (PSSF 48) Officer Keating
14 admitted he does not know why the SPD pursuit policy requires an officer to consider any of the factors
15 provided in Section 314.2.1 when deciding whether to initiate a pursuit. (PSSF 41-47)
16 In addition, Section 314.2.3 of the SPD Vehicle Pursuit Policy, “High Speed Pursuit”, states:
17
“The speed of a pursuit is a factor that should be evaluated on a continuing basis by the
18 officer and supervisor. Evaluation of vehicle speeds shall take into consideration public
safety, officer safety and the safety of the occupants of the fleeing vehicle.” (PSSF 64)
19
Unsurprisingly, Officer Keating testified that he does not know why the safety of the public and
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the area of the pursuit including the type of area, the time of day, the amount of vehicular and pedestrian
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traffic, and the speed of pursuit relative to these factors needed to be considered. (PSSF 44) Officer
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Keating does not know if he considered that due to COVID, people were dining outdoors at restaurants
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on Main Street in deciding whether to continue the pursuit. (PSSF 85) Plaintiffs’ expert, Mr. DeFoe, sets
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forth in his declaration that Officer Ryan Keating acted unreasonably and violated Salinas PD Policy
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Manual, Policy 314.2.3, Vehicle Pursuits, SPEED LIMITS, 08/10/2020: The speed of a pursuit is a factor
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that should be evaluated on a continuing basis by the officer and supervisor. Evaluation of vehicle speeds
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shall be taken into consideration public safety, officer safety and the safety of the occupants of the fleeing
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PLAINTIFFS LOUIS MONTANO, JR., LOUIE MONTANO III, AND MICHAEL MONTANO’S OPPOSITION TO
DEFENDANT CITY OF SALINAS’ MOTION FOR SUMMARY JUDGMENT
1 vehicle. (PSSF 103)
2 2. The City of Salinas Police Department Did Not Promulgate Its Vehicle Pursuit Policy
3 as Required by Vehicle Code Section 17004.7
4 Subdivision (b)(2) of Section 17004.7 provides, in relevant part: “Promulgation of the written
5 policy under paragraph (1) shall include, but is not limited to, a requirement that all peace officers of the
6 public agency certify in writing that they have received, read, and understand the policy...” (Veh. Code §
7 17004.7(b)(2)).
8 Sergeant Godwin testified that officers are required to review and attest to their understanding of
9 the pursuit policy on an annual basis. (PSSF 70, 73) He testified that an officer with the City of Salinas
10 Police Department is required to comply with this policy at all times and in order to comply with it, an
11 officer needs to understand it. (PSSF 69) However, the only attestation that Sergeant Godwin located for
12 Officer Keating was signed March 6, 2020. (PSSF 58) Officer Keating stated in his Pursuit Policy Training
13 Attestation on March 6, 2020 that the training was 2 hours. (PSSF 57) However, according to Officer
14 Keating’s record of training, his POST training on the pursuit policy on March 6, 2020 was not two hours,
15 it was from 12:36 a.m. to 1:07 a.m. (Ibid.)
16 3. The City of Salinas Police Department Did Not Provide Regular and Periodic
17 Training on Its Pursuit Policy on An Annual Basis, as Required by Section 17004.7
18 Sergeant Godwin acknowledged during deposition that in order for the SPD to have immunity
19 under Vehicle Code Section 17004, it is required to have regular and periodic trainings, meaning annual
20 trainings that comply with the minimum guidelines pursuant to Penal Code Section 13519.8. (PSSF 36,
21 70) Sergeant Godwin testified that initiating, conducting and terminating a pursuit is all covered by the
22 policy and biannually officers are required to receive some type of actual training on it. (PSSF 71)
23 In an attempt to establish that the SPD provided its officers with the legislatively mandated annual
24 pursuit policy training, the City submits the SPD’s Basic Driver Training PowerPoint slides (City Exhibit
25 14). Sergeant Godwin attests under penalty of perjury that the slides are a “true and correct copy of the
26 SPD training curriculum regarding vehicle pursuits that was regularly taught to all SPD police officers
27 leading up to the November 19, 2020 incident… The SPD provides training on these pursuit policies on
28 an annual basis to all active-duty police officers of the SPD, and in some officer's cases on a more frequent
7
PLAINTIFFS LOUIS MONTANO, JR., LOUIE MONTANO III, AND MICHAEL MONTANO’S OPPOSITION TO
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1 basis.” (Godwin Decl., ¶ 7).
2 However, at deposition, Sergeant Godwin directly disputed what he attested to in his Declaration
3 regarding the PowerPoint slides. (PSSF 40) He testified that the SPD does not provide annual training on
4 its pursuit policy, and the PowerPoint is not actually the SPD’s pursuit policy training materials. (Ibid.)
5 Officer Keating confirmed that he only received training on the SPD pursuit policy on the POST portal
6 and in the field as part of evasive driving (EVOC) training. (PSSF 37)
7 The SPD’s Basic Driver Training slides include critical information regarding applicable Vehicle
8 Code sections that was not provided to SPD’s officers, including the following (among others):
9 • Section 22350: “No person shall drive a vehicle upon a highway at a speed greater than is
10 reasonable or prudent having due regard for weather, visibility, the traffic on, and the
11 surface and width of, the highway, and in no event at a speed which endangers the safety
12 of persons or property.” (Veh. Code § 22350).
13 • Section 17004 relieves a public employee of liability for death, injury or property damage
14 which occurs during authorized emergency vehicle operations only as long as the
15 provisions of 21055 CVC are being followed. (emphasis in original; Veh. Code §§ 17001,
16 17004).
17 • Section 21055 provides exemption from the “rules of the road” to drivers of emergency
18 vehicles only under the following conditions: (a) in response to an emergency call, in
19 pursuit of an actual or suspected law violator, during rescue operations, and while
20 responding to a fire alarm; and (b) if the driver of the emergency vehicle sounds a siren as
21 may be reasonably necessary and displays a lighted red lamp visible from the front as a
22 warning to other drivers and pedestrians. (Veh. Code § 21055).
23 • “Section 21056 “provides that 21055 CVC DOES NOT relieve the driver of an emergency
24 vehicle from exercising the duty to drive with DUE REGARD for the safety of others
25 using the highway…” (emphasis in original; Veh. Code § 21056). (PSSF 67)
26 • Section 17004.7 relieves a city of liability for the death, injury, or property damage which
27 occurs during authorized emergency vehicle operations as long as the department has and
28 is following a written policy regarding emergency vehicle operations.” (emphasis added;
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PLAINTIFFS LOUIS MONTANO, JR., LOUIE MONTANO III, AND MICHAEL MONTANO’S OPPOSITION TO
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1 Veh. Code § 17004.7). (PSSF 66)
2 • Section 21807 “provides that 21806 CVC DOES NOT relieve you from the duty of driving
3 with DUE REGARD for the safety of all persons and property while operating code 3 in
4 an authorized emergency vehicle…” (emphasis in original; Veh. Code § 21807).
5 Sergeant Morten admitted he had no knowledge of Vehicle Code Section 21056, and Officer
6 Keating testified that he does not recall receiving training related to Section 21056. (PSSF 51, 79).
7 D. Officer Keating Was Not Properly or Adequately Trained
8 Sergeant Godwin testified that the POST database would include every biannual training that
9 Officer Keating received and would include the annual trainings on the vehicle pursuit policy. (PSSF 74)
10 The first time that Officer Keating is documented to have completed any POST training on the City of
11 Salinas Police Department’s Vehicle Pursuit Policy is March 6, 2020. (PSSF 35) According to the record,
12 Officer Keating began the training at 12:36 a.m., and completed it at 1:07 a.m. (for a total time of 36
13 minutes). (PSSF 57). Officer Keating does not remember receiving training on the vehicle pursuit policy
14 from when he was hired in May, 2017 until March 6, 2020. (PSSF 39) Officer Keating testified at
15 deposition that he does not recall any specific training regarding the sections of the Pursuit Policy for
16 when to initiate a pursuit, when to terminate a pursuit, or high-speed pursuits. (PSSF 49) In the November
17 19, 2020 pursuit, Officer Keating was the primary for person pursuant to the SPD pursuit policy, but he
18 testified that he does not remember having any specific training regarding the primary unit responsibilities
19 in the SPD pursuit policy. (PSSF 50)
20 Plaintiffs’ police expert, Mr. DeFoe, determined that the City of Salinas Police Department failed
21 to properly train its officers, including Police Officer Ryan Keating, on the policies, procedures, laws, and
22 reasonableness as when to initiate a vehicle pursuit, responsibilities during a vehicle pursuit, and when to
23 terminate a vehicle pursuit, as required by Vehicle Code Section 17004.7, Penal Code Section 13519.8,
24 and CCR Title 11, Section 1081. (PSSF 96, 97)
25 III. STANDARD OF LAW
26 “Any party may move for summary judgment in any action or proceeding if it is contended that
27 the action has no merit...” (CCP § 437c(a)(1) “A cause of action has no merit if either of the following
28 exists: (1) One or more of the elements of the cause of action cannot be separately established, even if that
9
PLAINTIFFS LOUIS MONTANO, JR., LOUIE MONTANO III, AND MICHAEL MONTANO’S OPPOSITION TO
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1 element is separately pleaded. (2) A defendant establishes an affirmative defense to that cause of action.”
2 (CCP § 437c(o))
3 On motions for summary judgment, the moving party must establish that there is no genuine issue
4 of any material fact and that it is entitled to judgment as a matter of law. (Ojavan Investors, Inc. v. Cal.
5 Coastal Com. (1997) 54 Cal.App.4th 373, 385, n.9). Even a single triable issue of fact suffices to deny
6 the motion. (Versa Technologies, Inc. v. Sup. Ct. (1978) 78 Cal.App.3d 237, 240). A moving party bears
7 the initial burden of production to make a prima facie showing that no triable issue of material fact exists.
8 Only when the initial burden of production is met, does the burden shifts to the responding party to
9 demonstrate the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25
10 Cal.4th 826, 850-51). To meet its burden to show the absence of any triable issue of fact regarding the
11 issues it seeks summary judgment on, a defendant is required to produce evidence and cannot simply rest
12 its motion on argument. “Summary judgment law in this state . . . continues to require a defendant moving
13 for summary judgment to present evidence, and not simply point out through argument, that the plaintiff
14 does not possess, and cannot reasonably obtain, needed evidence...” (Aguilar, supra, 25 Cal.4th at 845-
15 855). When an inference is controverted by other evidence or by another reasonable inference, a “triable
16 issue” of fact exists and the court must deny the motion. (Leo F. Piazza Paving Co. v. Foundation
17 Constructors (1981) 128 Cal.App.3d 583, 589).
18 If “the showing by the defendant does not support judgment in [its] favor, the burden does not shift
19 to the Plaintiffs and the motion must be denied.” (Crouse v. Brobeck, Phleger & Harrison (1998) 67
20 Cal.App.4th 1509, 1534). The submission of evidence which is equivocal or from which conflicting
21 inferences may be drawn is insufficient to meet the movant's burden, and the court should deny the motion,
22 rather than shifting the burden to the non-moving party to present evidence. (Anderson v. Metalclad Insulation
23 Corp. (1999) 72 Cal.App.4th 284, 297).
24 IV. DEFENDANT’S MOTION FOR SUMMARY JUDGMENT MUST BE DENIED BECAUSE
25 IT VIOLATES PLAINTIFFS’ DUE PROCESS RIGHTS
26 CCP Section 437c(b)(1) requires a party moving for summary judgment to, “include a separate
27 statement setting forth plainly and concisely all material facts that the moving party contends are
28 undisputed.” (CCP §437c(b)(1)) “The failure to comply with this requirement of a separate statement may
10
PLAINTIFFS LOUIS MONTANO, JR., LOUIE MONTANO III, AND MICHAEL MONTANO’S OPPOSITION TO
DEFENDANT CITY OF SALINAS’ MOTION FOR SUMMARY JUDGMENT
1 in the court’s discretion constitute a sufficient ground for denying the motion.” (Ibid.) “‘The due process
2 aspect of the separate statement requirement is self evident—to inform the opposing party of the evidence
3 to be disputed to defeat the motion.’ [Citation.] … Where a remedy as drastic as summary judgment is
4 involved, due process requires a party be fully advised of the issues to be addressed and be given adequate
5 notice of what facts it must rebut in order to prevail. [Citation.]’” (Laabs v. City of Victorville (2008) 163
6 Cal.App.4th 1242, 1266-1267, citing, San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102
7 Cal.App.4th 308, 316). “The moving party must comply with the provisions of section 437c, subdivision
8 (b)(1) and its separate statement must address the allegations of material fact in the complaint. If [] the
9 moving parties fail to do so, the motion for summary judgment must be denied.” (Teselle v. McLoughlin
10 (2009) 173 Cal.App.4th 156, 171; CCP §437c(b)(1)).
11 As the additional material facts provided in Plaintiff’s Responsive Separate Statement establish,
12 Defendant City of Salinas’ motion fails to comply with CCP Sections 437c, subdivision (b)(1) by failing
13 to plainly and concisely set forth all material facts that it contends are undisputed, and violates Plaintiffs’
14 due process rights by failing to address the allegations of material fact in Plaintiffs’ Complaint.
15 The omitted material facts are discussed in more detail in Plaintiff’s Separate Statement and this
16 Memorandum, but include, for example, the fact that in order for the SPD to claim immunity under Vehicle
17 Code section 17004.7, subsection (b)(1) expressly requires that the SPD provides “regular and periodic
18 training on an annual basis…” In a bald-faced attempt to mislead the Court, the City’s Separate Statement
19 omits any reference to the requirement that the training be provided annually, and instead simply states,
20 “SPD provides pursuit policy training to all of its police officers on a regular basis.” (SSF 13). Because
21 the City’s Separate Statement fails to address the allegations of material fact in Plaintiffs’ Complaint, the
22 court must deny this motion in its entirety. (Teselle v. McLoughlin, supra, at 171; CCP §437c(b)(1)).
23 V. THE CITY WAIVED ALL IMMUNITY AFFIRMATIVE DEFENSES NOT PLED IN ITS
24 ANSWER
25 Government Claims Act (“GCA”) statutory immunities are affirmative defenses to liability.
26 (Quigley v. Garden Valley Fire Prot. Dist. (2019) 7 Cal. 5th 798, 809). An objection that liability is barred
27 by an affirmative defense are ordinarily deemed “waived” if the defendant does not raise them in its
28 demurrer or answer to the complaint. (Quigley, supra, at 807, citing CCP § 430.80, subd. (a).) “[W]here
11
PLAINTIFFS LOUIS MONTANO, JR., LOUIE MONTANO III, AND MICHAEL MONTANO’S OPPOSITION TO
DEFENDANT CITY OF SALINAS’ MOTION FOR SUMMARY JUDGMENT
1 particularity in pleading is necessary in a complaint, it is equally necessary in an affirmative defense
2 involving the issue.” (5 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 1082, p. 516.) With respect to
3 immunity under the GCA, “[t]he [answer] should contain specific allegations to show that the facts fall
4 within [a] statutory provision.” (Id. § 1107, p. 535, italics added.)
5 In Quigley v. Garden Valley Fire Prot. Dist. (2019) 7 Cal. 5th 798, the defendants’ answer alleged
6 defenses asserting immunity under 17 individually cited sections of the GCA, as well as an affirmative
7 defense that cited inclusively to all immunities under the GCA: “A public entity and its employees are
8 immune from liability for damages alleged in the complaint and Defendants assert all defenses and rights
9 granted to them by the provisions of Government Code sections 810 t
Preview
1 GREENBERG AND RUBY INJURY ATTORNEYS, APC 2 EMILY A. RUBY – SBN 289433 eruby@caltrialpros.com 3 SERGIO R. CARDENAS – SNB 321239 scardenas@caltrialpros.com 4 6100 Wilshire Boulevard, Suite 1170 Los Angeles, California 90048 5 Tel. No.: (323) 782-0535 Fax No.: (323) 782-0543 6 Attorneys for Plaintiffs, 7 LOUIS MONTANO, JR.; LOUIE MONTANO III; and 8 MICHAEL MONTANO 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 FOR THE COUNTY OF MONTEREY 11 12 LOUIS MONTANO, JR.; LOUIE Case No. 21CV003635 (Consolidated with Case MONTANO III; AND MICHAEL Nos. 22CV002531; 22CV003206; 22CV003261; 13 MONTANO, an individual 22CF003443 and 22CV003598) 14 Plaintiffs, Assigned to: Hon. Carrie M. Panetta Dept. 14 15 v. PLAINTIFFS LOUIS MONTANO, JR.; LOUIE 16 CITY OF SALINAS; GINO’S MONTANO III; AND MICHAEL RESTAURANT, INC.; GINO’S FINE MONTANO’S OPPOSITION TO 17 ITALIAN FOOD, INC.; BLFA PROPERTIES DEFENDANT CITY OF SALINAS’ MOTION LLC; NTN PROPERTIES LLC; NGOCHAO FOR SUMMARY JUDGMENT 18 THI NGUYEN; RALPH BOZZO; ROSAURA ARCOS PANIAGUA; AUSTIN ALARCON; [Filed Concurrently with Plaintiffs’ Responsive 19 and DOES 1-35, Statement of Facts; Objections to Evidence; Declaration of Sergio R. Cardenas, Esq.; Declaration of Scott Defoe; 20 Defendants. Request to Take Judicial Notice; and Index of Exhibits] 21 Hearing Date: August 4, 2023 Hearing Time: 8:30 AM 22 Department: 14 23 Complaint Filed: November 16, 2021 Trial Date: Vacated 24 AND ALL RELATED CROSS-ACTIONS 25 26 TO THE COURT, ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD HEREIN: 27 Pursuant to C.C.P. Section 437c(b), Plaintiffs LOUIS MONTANO, JR.; LOUIE MONTANO III; 28 PLAINTIFFS LOUIS MONTANO, JR.; LOUIE MONTANO III; AND MICHAEL MONTANO’S OPPOSITION TO DEFENDANT CITY OF SALINAS’ MOTION FOR SUMMARY JUDGMENT 1 and MICHAEL MONTANO (“Plaintiffs”) hereby submit this Opposition to Defendant CITY OF 2 SALINAS’ (“Defendant” or “City”) Motion for Summary Judgment. 3 Defendant’s motion should be denied for each of the following independent reasons: 4 1. Defendant failed to meet its burden of proof to conclusively establish its affirmative 5 defense for negligent police pursuit immunity under California Vehicle Code sections 17004 and 17004.7; 6 2. Defendant failed to meet its burden of proof to conclusively establish its affirmative 7 defense for immunity with respect to the un-permitted outdoor dining tents at Gino’s; 8 3. Defendant failed to meet its burden of proof to establish that no triable issue of material 9 fact exists and it is entitled to judgment as a matter of law as to Plaintiffs’ dangerous condition of public 10 property claims; 11 4. Despite Defendant wholly failing to meet its burden, and thus failing to shift any burden to 12 Plaintiffs to produce evidence, in an abundance of caution, Plaintiffs have established, by admissible 13 evidence, that Defendant City of Salinas is not immune from liability under any section of the Government 14 Claims Act, or at minimum, that triable issues of material fact exist and summary judgment is improper. 15 Plaintiffs’ opposition shall be based on the attached Memorandum of Points and Authorities, 16 Plaintiffs’ Responsive Statement of Facts, the Declaration of Sergio R. Cardenas, Esq., the Declaration of 17 Scott Defoe, Plaintiffs’ Request for Judicial Notice, Plaintiffs’ Index of Exhibits, and the evidence and 18 case law, the pleadings, documents records, and files in this action, and such oral and documentary 19 evidence and argument as may be presented at the hearing on this motion. 20 21 DATED: July 21, 2023 GREENBERG AND RUBY INJURY ATTORNEYS, APC 22 23 By: 24 EMILY A. RUBY SERGIO R. CARDENAS 25 Attorneys for Plaintiffs, LOUIS MONTANO, JR.; LOUIE MONTANO III; 26 and MICHAEL MONTANO 27 28 ii PLAINTIFFS LOUIS MONTANO, JR.; LOUIE MONTANO III; AND MICHAEL MONTANO’S OPPOSITION TO DEFENDANT CITY OF SALINAS’ MOTION FOR SUMMARY JUDGMENT 1 TABLE OF CONTENTS 2 I. INTRODUCTION ............................................................................................................... 1 3 II. RELEVANT FACTS ........................................................................................................... 2 4 A. Salinas Police Department Officer Ryan Keating Initiated and Continued an Unreasonable, Dangerous, and Negligent Pursuit the Night of November 19, 5 2020 ........................................................................................................................... 2 6 B. The Salinas PD, and Particularly, Officer Keating and the Supervisor Monitoring the Pursuit, Should Have Terminated the Pursuit Before 7 Alarcon Caused a Collision..................................................................................... 3 8 C. The SPD Vehicle Pursuit Policy Did Not Meet the Three Requirements Necessary for Immunity Under Section 17004.7 .................................................. 4 9 1. The SPD Policy Did Not Meet the Minimum Standards Required by Section 10 17004.7(c) And Did Not Provide Adequate Guidelines for Officers to Follow in Deciding Whether To Initiate Or Terminate A Pursuit ............................................. 5 11 2. The City of Salinas Police Department Did Not Promulgate Its Vehicle Pursuit 12 Policy as Required by Vehicle Code Section 17004.7 .............................................. 7 13 3. The City of Salinas Police Department Did Not Provide Regular and Periodic Training on Its Pursuit Policy on An Annual Basis, as Required by Section 14 17004.7 ...................................................................................................................... 7 15 D. Officer Keating Was Not Properly or Adequately Trained ................................ 9 16 III. STANDARD OF LAW ........................................................................................................ 9 17 IV. DEFENDANT’S MOTION FOR SUMMARY JUDGMENT MUST BE DENIED BECAUSE IT VIOLATES PLAINTIFFS’ DUE PROCESS RIGHTS ........................ 10 18 V. THE CITY WAIVED ALL IMMUNITY AFFIRMATIVE DEFENSES NOT PLED 19 IN ITS ANSWER ............................................................................................................... 11 20 VI. THE CITY’S MOTION MUST BE DENIED BECAUSE THE CITY FAILS TO MEET ITS BURDEN FOR SUMMARY JUDGMENT ................................................ 12 21 A. The City Omits and/or Mischaracterizes a Substantial Amount of Material 22 Evidence That Creates Triable Issues of Material Fact..................................... 13 23 B. The City’s Own Evidence Establishes Multiple Triable Issues of Fact ............ 13 24 C. The City Failed to Establish Its Vehicle Pursuit Policy Immunity Affirmative Defense ............................................................................................... 15 25 1. The City’s Motion Fails to Establish That the SPD Adopted a Written Pursuit 26 Policy That Meets the Requirements of Section 17004.7 ....................................... 15 27 2. The City Fails to Establish the SPD Promulgated its Pursuit Policy as Required By Section 17004.7 ................................................................................................. 16 28 iii PLAINTIFFS LOUIS MONTANO, JR., LOUIE MONTANO III, AND MICHAEL MONTANO’S OPPOSITION TO DEFENDANT CITY OF SALINAS’ MOTION FOR SUMMARY JUDGMENT 1 3. The City Is Not Entitled to Immunity Under Section 17004.7 Because the SPD Did Not Provide the Legislatively Mandated Minimum Training on Its Pursuit 2 Policy ....................................................................................................................... 17 3 D. Compliance with State COVID Emergency Orders Was Mandatory, and the City Did Not Have Discretion in Enforcing State Orders for The Safety of 4 Patrons of Restaurants .......................................................................................... 18 5 E. Issuing TULP’s Per the City of Salinas Code of Ordinances Is Administrative and Not Discretionary ................................................................ 18 6 VII. CONCLUSION .................................................................................................................. 19 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 iv PLAINTIFFS LOUIS MONTANO, JR., LOUIE MONTANO III, AND MICHAEL MONTANO’S OPPOSITION TO DEFENDANT CITY OF SALINAS’ MOTION FOR SUMMARY JUDGMENT 1 TABLE OF AUTHORITIES 2 Cases 3 Berman v. City of Daly City (1993) 21 Cal.App.4th 276 ................................................................ 16 4 City of Emeryville v. Superior Court (1991) 2 Cal.App.4th 21 ....................................................... 15 5 Crouse v. Brobeck, Phleger & Harrison (1998) 67 Cal.App. 4th 1509 .......................................... 10 6 Flores v. City of San Diego (2022) 83 Cal.App.5th 360 .................................................................... 1 7 Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875 ................................................................. 13 8 Jambazian v. Borden (1994) 25 Cal.App.4th 836 ........................................................................... 15 9 Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242 .............................................................. 11 10 Leo F. Piazza Paving Co. v. Foundation Constructors (1981) 128 Cal.App.3d 583...................... 10 11 Mendez v. Superior Court (2008) 162 Cal.App.4th 827 ................................................................. 13 12 Nazir v. United Airlines (2009) 178 Cal.App.4th 243 ..................................................................... 13 13 Ojavan Investors, Inc. v. Cal. Coastal Com. (1997) 54 Cal.App.4th 373 ....................................... 10 14 Payne v. City of Perris (1993) 12 Cal.App.4th 1738 ...................................................................... 16 15 Ramirez v. City of Gardena (2017) 14 Cal.App.5th 811 .................................................................. 15 16 Rio Linda Unified School District v. Superior Court of Sacramento County (1997) 52 Cal.App.4th 732 ............................................................................................................................................. 13 17 San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308 ............................ 11 18 Teselle v. McLoughlin (2009) 173 Cal.App.4th 156 ....................................................................... 11 19 Versa Technologies, Inc. v. Sup. Ct. (1978) 78 Cal.App.3d 237 ............................................... 10, 14 20 21 22 Statutes 23 CCP § 430.80................................................................................................................................... 11 24 CCP § 437c .................................................................................................................................. 9, 10 25 Code of Civil Procedure section 431.30 .......................................................................................... 12 26 Gov. Code section 821.2 ................................................................................................................. 12 27 Gov. Code section 821.4 ................................................................................................................. 12 28 v PLAINTIFFS LOUIS MONTANO, JR., LOUIE MONTANO III, AND MICHAEL MONTANO’S OPPOSITION TO DEFENDANT CITY OF SALINAS’ MOTION FOR SUMMARY JUDGMENT 1 Veh. Code § ....................................................................................................................................... 8 2 Veh. Code § 21807 ............................................................................................................................ 9 3 Vehicle Code Section 21055 ............................................................................................................. 8 4 Vehicle Code Section 21056 ............................................................................................................. 8 5 Other Authorities 6 5 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 1082 .............................................................. 12 7 City of Salinas Code of Ordinance, § 37-50-300 ............................................................................ 18 8 Section 37-60-090 ..................................................................................................................... 18, 19 9 Section 37-60-170 ........................................................................................................................... 18 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 vi PLAINTIFFS LOUIS MONTANO, JR., LOUIE MONTANO III, AND MICHAEL MONTANO’S OPPOSITION TO DEFENDANT CITY OF SALINAS’ MOTION FOR SUMMARY JUDGMENT 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. INTRODUCTION 3 This case is a tragic example of what occurs when a public entity and its employees, in this case, the 4 City of Salinas, are negligent in carrying out their duties, assuming they will be shielded from liability by 5 various immunities. However, governmental immunity is an affirmative defense, and the City bears the 6 burden of establishing, by admissible evidence, that it is entitled to immunity under each section of the fail 7 to take necessary measures to protect the public from harm. The City’s motion for summary judgment claims 8 the City is immune from all liability for Plaintiffs’ damages based on a laundry list of immunities under the 9 Government Claims Act. It is well-established law in this State that Government Claims Act immunities are 10 affirmative defenses, and the City has the burden of establishing them by admissible evidence before any 11 burden shifts to Plaintiffs to produce any evidence. The City’s motion must be denied outright because it 12 fails to address the relevant statutory and case law, fails to provide admissible evidence in support of its 13 affirmative defenses, mischaracterizes key evidence, and omits a substantial amount of evidence that 14 contradicts its arguments and establishes numerous triable issues of material fact. 15 The City’s first ground for arguing it is entitled to summary judgment is based on the police pursuit 16 policy immunity provided by Vehicle Code Section 17004.7. The City argues that under this section, it is 17 immune for the injuries caused by City of Salinas Police Department (“SPD”) officer Ryan Keating engaging 18 in an unnecessary and negligent high-speed pursuit that resulted in the vehicle he was pursuing colliding with 19 an innocent motorist’s vehicle in an intersection and then losing control and crashing into the outdoor dining 20 tents at Gino’s Restaurant. This argument fails on its face, because the City’s own evidence proves that the 21 SPD did not meet the minimum training requirements that must be met before a governmental entity is 22 entitled to immunity under the statute. (Flores v. City of San Diego (2022) 83 Cal.App.5th 360, 367). Even 23 though no burden shifted to Plaintiffs, in an abundance of caution, Plaintiff submits the Declaration of Scott 24 DeFoe, who has over two decades of experience as a Los Angeles Police Department officer, during which 25 time he participated in, supervised, and investigated numerous police pursuits. 26 The City’s second ground for arguing it is entitled to summary judgment conflates and confuses 27 multiple independent immunities into a catch-all “inspection, enforcement, and permitting” immunity 28 argument. This argument fails for multiple reasons discussed in detail this Memorandum, including 1 PLAINTIFFS LOUIS MONTANO, JR., LOUIE MONTANO III, AND MICHAEL MONTANO’S OPPOSITION TO DEFENDANT CITY OF SALINAS’ MOTION FOR SUMMARY JUDGMENT 1 procedural issues, and the fact that Defendant’s own evidence contradicts multiple of its own “facts.” Again, 2 despite Defendant’s failure to meet its burden on establishing its affirmative defense, Plaintiffs nevertheless 3 submit substantial evidence that establishes multiple triable issues of material fact. 4 Finally, the City’s third ground for arguing it is entitled to summary judgment also fails, because the 5 City has not established, as a matter of law, that no triable issue of material fact exists and it is entitled to 6 judgment as a matter of law on Plaintiffs’ Dangerous Condition of Public Property claims. 7 Because the City’s motion for summary judgment fails to establish any of its immunity affirmative 8 defenses or to show that there is no triable issue as to any material fact and that the City is entitled to a 9 judgment as a matter of law, summary judgment cannot be granted. (CCP 437c(c)). 10 II. RELEVANT FACTS 11 A. Salinas Police Department Officer Ryan Keating Initiated and Continued an 12 Unreasonable, Dangerous, and Negligent Pursuit the Night of November 19, 2020 13 Defendant Austin Alarcon testified that he was not speeding before he saw the police vehicle the 14 night of November 19, 2020. (PSSF 34) Officer Keating guessed that the vehicle Alarcon was driving 15 was going approximately 60 miles when he first saw it, but admitted that he was not trained to visually 16 estimate speeds. (PSSF 60) City of Salinas Police Department (“SPD”) Sergeant James Godwin testified 17 that the red light and siren are required for a pursuit, pursuant to the SPD’s pursuit policy. (PSSF 75) 18 However, for approximately one minute prior to activating his light and siren, Officer Keating followed 19 the vehicle being driven by Alarcon through a residential area trying to catch up to it. (PSSF 52, 56) He 20 chased the vehicle on multiple residential streets, including past two pedestrians, one of which was in 21 the roadway. (PSSF 56) During this entire time, the only suspected offense was speeding on South Main 22 Street. (Ibid.) Officer Keating testified that he did not know how fast he or the vehicle being driven by 23 Alarcon were going because he never looked at his speedometer. (PSSF 52-54). 24 Officer Keating testified that the reason he activated his light and siren was because the silver 25 sedan passed a vehicle on the right where there's only one lane for eastbound traffic, and that passing in 26 violation of the Vehicle Code was the only known or suspected crime at that time. (PSSF 55). Officer 27 Keating does not recall if he provided County Communications all of the list of requirements to initiate a 28 Vehicle Pursuit per Salinas PD Policy Manual, Policy 314.3.3. (PSSF 86) Officer Keating admits that at 2 PLAINTIFFS LOUIS MONTANO, JR., LOUIE MONTANO III, AND MICHAEL MONTANO’S OPPOSITION TO DEFENDANT CITY OF SALINAS’ MOTION FOR SUMMARY JUDGMENT 1 no point did he learn from Dispatch that the vehicle was stolen, and he was unaware why the suspect 2 fled in the vehicle. (PSSF 80) Alarcon testified that he first saw the police vehicle when he put his siren 3 on, and that he was not attempting to flee and did not pull over because he was just scared. (PSSF 32, 4 33) Sergeant Godwin admitted that physiological factors such as vision, fatigue, stress, attention, 5 anxiety, fear, and others, would impact the suspect in a pursuit. (PSSF 76) 6 B. The Salinas PD, and Particularly, Officer Keating and the Supervisor Monitoring the 7 Pursuit, Should Have Terminated the Pursuit Before Alarcon Caused a Collision 8 Plaintiffs’ police practices expert, Scott DeFoe, was a Los Angeles Police Department Officer 9 for nearly 26 years, during which time he was involved in vehicle pursuits and vehicle pullovers as 10 Primary Officer, Secondary Officer, and a Supervisor. In addition, he received and provided training on 11 Pursuit Policy, Pursuit Tactics, Post-Pursuit Tactics and Containment. He also conducted over (50) 12 Vehicle Pursuit Investigations during his last 14 years as a Supervisor with the Los Angeles Police 13 Department. Mr. DeFoe also held a California Peace Officer Standards and Training (“POST”) 14 Advanced and Supervisor Certificate. As Mr. DeFoe sets forth in his Declaration submitted in support of 15 Plaintiffs’ Opposition, Officer Ryan Keating acted unreasonably and violated Salinas PD Policy Manual, 16 Policy 314.2.2, Vehicle Pursuits, WHEN TO TERMINATE A PURSUIT, 08/10/2020, which provides: 17 “Pursuits should be discontinued whenever the totality of objective circumstances known or which 18 reasonably ought to be known to the officer or supervisor during the pursuit indicates that the present 19 risks of continuing the pursuit reasonably appear to outweigh the risks resulting from the suspect’s 20 escape.” (PSSF 63, 106). 21 Section 314.2.2 provides that the factors listed in “When to Initiate a Pursuit” are expressly 22 included herein and apply equally to the decision to discontinue as well as the decision to initiate a 23 pursuit. Officers and supervisors must objectively and continuously weigh the seriousness of the offense 24 against the potential danger to innocent motorists and themselves when electing to continue a pursuit. In 25 addition to the factors listed in “When to Initiate a Pursuit” of this policy, factors that must also be 26 considered in deciding whether to terminate a pursuit include whether there are hazards to uninvolved 27 bystanders or motorists. 28 Here, Officer Keating admits during the entirety of the pursuit, there were hazards to uninvolved 3 PLAINTIFFS LOUIS MONTANO, JR., LOUIE MONTANO III, AND MICHAEL MONTANO’S OPPOSITION TO DEFENDANT CITY OF SALINAS’ MOTION FOR SUMMARY JUDGMENT 1 bystanders and motorists. (PSSF 88) Officer Keating agrees he drove 70 miles per hour in a 30 mile per 2 hour speed zone to keep up with the vehicle he was pursuing on South Main Street, and he was still 3 under the impression that the driver was under the influence of alcohol or narcotics, and he did not 4 inform County Communications as this time. (PSSF 90) In addition, Keating agrees that pursuing a 5 driver that may be under the influence of alcohol or narcotics increases the danger to the public. (89) 6 Officer Keating does not know if there was any supervisor who was continuously weighing the 7 seriousness of the offense against the potential danger to innocent motorists and himself during the 8 pursuit. (PSSF 59) 9 As Mr. DeFoe explains, under the facts in this case, Salinas Police Department Supervisor/Watch 10 Commander acted unreasonably and violated Salinas PD Policy Manual, Policy 314.4, Vehicle Pursuits, 11 SUPERVISORY CONTROL AND RESPONSIBILITY, 8/10/2020: It is the policy of this department 12 that available supervisory and management control will be exercised over all vehicle pursuits involving 13 officers from this department. The field supervisor of the officer initiating the pursuit, or if unavailable, 14 the nearest field supervisor will be responsible for the following: 15 a) Upon becoming aware of a pursuit, immediately ascertaining all reasonably available 16 information to continuously assess the situation and risk factors associated with the pursuit in 17 order to ensure that the pursuit is conducted within established department guidelines. 18 b) Exercising management and control of the pursuit even if not engaged in it. 19 c) Directing that the pursuit be terminated if, in his/her judgment, it is unjustified to continue 20 the pursuit under the guidelines of this policy. 21 d) Ensuring that aircraft are requested if available. 22 C. The SPD Vehicle Pursuit Policy Did Not Meet the Three Requirements Necessary for 23 Immunity Under Section 17004.7 24 Section 17004.7(b)(1) of the California Vehicle Code states: 25 “A public agency employing peace officers that adopts and promulgates a written policy on, and provides regular and periodic training on an annual 26 basis for, vehicular pursuits complying with subdivisions (c) and (d) is immune from liability for civil damages for personal injury to or death of 27 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, 28 has been, or believes he or she is being or has been, pursued in a motor 4 PLAINTIFFS LOUIS MONTANO, JR., LOUIE MONTANO III, AND MICHAEL MONTANO’S OPPOSITION TO DEFENDANT CITY OF SALINAS’ MOTION FOR SUMMARY JUDGMENT 1 vehicle by a peace officer employed by the public entity.” (PSSF 65) 2 In order for the City of Salinas to have immunity for the injuries and damages caused by Officer 3 Keating’s negligent pursuit of Alarcon on November 19, 2020, the City has to establish, by 4 uncontroverted admissible evidence, that 1) it adopted a pursuit policy meeting the requirements of 5 Section 17004.7, 2) it promulgated the policy as required by Section 17004.7, and 3) it provided regular 6 and periodic training on an annual basis for vehicle pursuits. Sergeant Godwin admits that the purpose 7 of the SPD’s vehicle pursuit policy is to protect the officers by government immunity and for the safety 8 of the public, the officers and the person being pursued. (PSSF 68) 9 1. The SPD Policy Did Not Meet the Minimum Standards Required by Section 10 17004.7(c) And Did Not Provide Adequate Guidelines for Officers to Follow in 11 Deciding Whether To Initiate Or Terminate A Pursuit 12 The deposition testimony of City of Salinas Police Department Sergeant James Godwin, Sergeant 13 Seth Morten, and Officer Ryan Keating, leaves no ambiguity about the fact that the SPD pursuit policy, 14 Policy No. 314, does not meet the minimum standards required by Section 17004.7(c), and does not 15 provide adequate guidelines for officers to follow when deciding whether to initiate or terminate a pursuit. 16 Sergeant Seth Morten testified point blank that he does not know when a police officer can initiate 17 a pursuit under the SPD pursuit policy. (PSSF 78) Officer Keating is unfamiliar with the factors that are 18 required to be considered when deciding whether to initiate a pursuit as outlined in Salinas PD Policy 19 Manual, Policy 314.2.1, and the factors for when to terminate a pursuit, outlined in Section 314.4.2. (PSSF 20 81) 21 Section 314.2.1 of the Policy provides a list of factors that SPD officers are required to consider, 22 individually and collectively, when deciding whether to initiate a pursuit including, among others, (a) the 23 seriousness of the known or reasonably suspected crime and its relationship to community safety, and (b) 24 the importance of protecting the public and balancing the known or reasonably suspected offense and the 25 apparent need for immediate capture against the risks to officers, innocent motorists, and others. (PSSF 26 62) Section 314.2.2 provides additional factors that must be considered in deciding whether to terminate 27 a pursuit, including, among others, (d) Extended pursuits of violators for misdemeanors not involving 28 5 PLAINTIFFS LOUIS MONTANO, JR., LOUIE MONTANO III, AND MICHAEL MONTANO’S OPPOSITION TO DEFENDANT CITY OF SALINAS’ MOTION FOR SUMMARY JUDGMENT 1 violence or risk of serious harm (independent of pursuit) are discouraged; (e) there are hazards to 2 uninvolved bystanders and motorists, and (g) Pursuit is terminated by a supervisor. (PSSF 63). 3 In direct contradiction to the requirements in the pursuit policy, Sergeant Godwin testified that the 4 seriousness of the known or suspected offense is not a factor that needs to be considered in deciding 5 whether to initiate a pursuit, and that any crime justifies initiating a pursuit. (PSSF 82). When he was 6 asked what infractions he would consider to justify a high speed pursuit when balancing the need for 7 immediate apprehension versus the risk to the public, he responded, “I couldn’t begin to even consider all 8 of the circumstances….” (PSSF 77) Similarly, Officer Keating testified that he does not know how the 9 seriousness of the known or reasonably suspected crime would weigh in favor or against initiating a 10 pursuit, and that during the time he was an active City of Salinas patrol officer, he did not know how to 11 weigh this factor in deciding whether to initiate pursuit. (PSSF 49) When Officer Keating was asked 12 during deposition if he would agree that a less serious crime would weigh against initiating a pursuit, he 13 responded, “I don’t think that would stop me from initiating a pursuit.” (PSSF 48) Officer Keating 14 admitted he does not know why the SPD pursuit policy requires an officer to consider any of the factors 15 provided in Section 314.2.1 when deciding whether to initiate a pursuit. (PSSF 41-47) 16 In addition, Section 314.2.3 of the SPD Vehicle Pursuit Policy, “High Speed Pursuit”, states: 17 “The speed of a pursuit is a factor that should be evaluated on a continuing basis by the 18 officer and supervisor. Evaluation of vehicle speeds shall take into consideration public safety, officer safety and the safety of the occupants of the fleeing vehicle.” (PSSF 64) 19 Unsurprisingly, Officer Keating testified that he does not know why the safety of the public and 20 the area of the pursuit including the type of area, the time of day, the amount of vehicular and pedestrian 21 traffic, and the speed of pursuit relative to these factors needed to be considered. (PSSF 44) Officer 22 Keating does not know if he considered that due to COVID, people were dining outdoors at restaurants 23 on Main Street in deciding whether to continue the pursuit. (PSSF 85) Plaintiffs’ expert, Mr. DeFoe, sets 24 forth in his declaration that Officer Ryan Keating acted unreasonably and violated Salinas PD Policy 25 Manual, Policy 314.2.3, Vehicle Pursuits, SPEED LIMITS, 08/10/2020: The speed of a pursuit is a factor 26 that should be evaluated on a continuing basis by the officer and supervisor. Evaluation of vehicle speeds 27 shall be taken into consideration public safety, officer safety and the safety of the occupants of the fleeing 28 6 PLAINTIFFS LOUIS MONTANO, JR., LOUIE MONTANO III, AND MICHAEL MONTANO’S OPPOSITION TO DEFENDANT CITY OF SALINAS’ MOTION FOR SUMMARY JUDGMENT 1 vehicle. (PSSF 103) 2 2. The City of Salinas Police Department Did Not Promulgate Its Vehicle Pursuit Policy 3 as Required by Vehicle Code Section 17004.7 4 Subdivision (b)(2) of Section 17004.7 provides, in relevant part: “Promulgation of the written 5 policy under paragraph (1) shall include, but is not limited to, a requirement that all peace officers of the 6 public agency certify in writing that they have received, read, and understand the policy...” (Veh. Code § 7 17004.7(b)(2)). 8 Sergeant Godwin testified that officers are required to review and attest to their understanding of 9 the pursuit policy on an annual basis. (PSSF 70, 73) He testified that an officer with the City of Salinas 10 Police Department is required to comply with this policy at all times and in order to comply with it, an 11 officer needs to understand it. (PSSF 69) However, the only attestation that Sergeant Godwin located for 12 Officer Keating was signed March 6, 2020. (PSSF 58) Officer Keating stated in his Pursuit Policy Training 13 Attestation on March 6, 2020 that the training was 2 hours. (PSSF 57) However, according to Officer 14 Keating’s record of training, his POST training on the pursuit policy on March 6, 2020 was not two hours, 15 it was from 12:36 a.m. to 1:07 a.m. (Ibid.) 16 3. The City of Salinas Police Department Did Not Provide Regular and Periodic 17 Training on Its Pursuit Policy on An Annual Basis, as Required by Section 17004.7 18 Sergeant Godwin acknowledged during deposition that in order for the SPD to have immunity 19 under Vehicle Code Section 17004, it is required to have regular and periodic trainings, meaning annual 20 trainings that comply with the minimum guidelines pursuant to Penal Code Section 13519.8. (PSSF 36, 21 70) Sergeant Godwin testified that initiating, conducting and terminating a pursuit is all covered by the 22 policy and biannually officers are required to receive some type of actual training on it. (PSSF 71) 23 In an attempt to establish that the SPD provided its officers with the legislatively mandated annual 24 pursuit policy training, the City submits the SPD’s Basic Driver Training PowerPoint slides (City Exhibit 25 14). Sergeant Godwin attests under penalty of perjury that the slides are a “true and correct copy of the 26 SPD training curriculum regarding vehicle pursuits that was regularly taught to all SPD police officers 27 leading up to the November 19, 2020 incident… The SPD provides training on these pursuit policies on 28 an annual basis to all active-duty police officers of the SPD, and in some officer's cases on a more frequent 7 PLAINTIFFS LOUIS MONTANO, JR., LOUIE MONTANO III, AND MICHAEL MONTANO’S OPPOSITION TO DEFENDANT CITY OF SALINAS’ MOTION FOR SUMMARY JUDGMENT 1 basis.” (Godwin Decl., ¶ 7). 2 However, at deposition, Sergeant Godwin directly disputed what he attested to in his Declaration 3 regarding the PowerPoint slides. (PSSF 40) He testified that the SPD does not provide annual training on 4 its pursuit policy, and the PowerPoint is not actually the SPD’s pursuit policy training materials. (Ibid.) 5 Officer Keating confirmed that he only received training on the SPD pursuit policy on the POST portal 6 and in the field as part of evasive driving (EVOC) training. (PSSF 37) 7 The SPD’s Basic Driver Training slides include critical information regarding applicable Vehicle 8 Code sections that was not provided to SPD’s officers, including the following (among others): 9 • Section 22350: “No person shall drive a vehicle upon a highway at a speed greater than is 10 reasonable or prudent having due regard for weather, visibility, the traffic on, and the 11 surface and width of, the highway, and in no event at a speed which endangers the safety 12 of persons or property.” (Veh. Code § 22350). 13 • Section 17004 relieves a public employee of liability for death, injury or property damage 14 which occurs during authorized emergency vehicle operations only as long as the 15 provisions of 21055 CVC are being followed. (emphasis in original; Veh. Code §§ 17001, 16 17004). 17 • Section 21055 provides exemption from the “rules of the road” to drivers of emergency 18 vehicles only under the following conditions: (a) in response to an emergency call, in 19 pursuit of an actual or suspected law violator, during rescue operations, and while 20 responding to a fire alarm; and (b) if the driver of the emergency vehicle sounds a siren as 21 may be reasonably necessary and displays a lighted red lamp visible from the front as a 22 warning to other drivers and pedestrians. (Veh. Code § 21055). 23 • “Section 21056 “provides that 21055 CVC DOES NOT relieve the driver of an emergency 24 vehicle from exercising the duty to drive with DUE REGARD for the safety of others 25 using the highway…” (emphasis in original; Veh. Code § 21056). (PSSF 67) 26 • Section 17004.7 relieves a city of liability for the death, injury, or property damage which 27 occurs during authorized emergency vehicle operations as long as the department has and 28 is following a written policy regarding emergency vehicle operations.” (emphasis added; 8 PLAINTIFFS LOUIS MONTANO, JR., LOUIE MONTANO III, AND MICHAEL MONTANO’S OPPOSITION TO DEFENDANT CITY OF SALINAS’ MOTION FOR SUMMARY JUDGMENT 1 Veh. Code § 17004.7). (PSSF 66) 2 • Section 21807 “provides that 21806 CVC DOES NOT relieve you from the duty of driving 3 with DUE REGARD for the safety of all persons and property while operating code 3 in 4 an authorized emergency vehicle…” (emphasis in original; Veh. Code § 21807). 5 Sergeant Morten admitted he had no knowledge of Vehicle Code Section 21056, and Officer 6 Keating testified that he does not recall receiving training related to Section 21056. (PSSF 51, 79). 7 D. Officer Keating Was Not Properly or Adequately Trained 8 Sergeant Godwin testified that the POST database would include every biannual training that 9 Officer Keating received and would include the annual trainings on the vehicle pursuit policy. (PSSF 74) 10 The first time that Officer Keating is documented to have completed any POST training on the City of 11 Salinas Police Department’s Vehicle Pursuit Policy is March 6, 2020. (PSSF 35) According to the record, 12 Officer Keating began the training at 12:36 a.m., and completed it at 1:07 a.m. (for a total time of 36 13 minutes). (PSSF 57). Officer Keating does not remember receiving training on the vehicle pursuit policy 14 from when he was hired in May, 2017 until March 6, 2020. (PSSF 39) Officer Keating testified at 15 deposition that he does not recall any specific training regarding the sections of the Pursuit Policy for 16 when to initiate a pursuit, when to terminate a pursuit, or high-speed pursuits. (PSSF 49) In the November 17 19, 2020 pursuit, Officer Keating was the primary for person pursuant to the SPD pursuit policy, but he 18 testified that he does not remember having any specific training regarding the primary unit responsibilities 19 in the SPD pursuit policy. (PSSF 50) 20 Plaintiffs’ police expert, Mr. DeFoe, determined that the City of Salinas Police Department failed 21 to properly train its officers, including Police Officer Ryan Keating, on the policies, procedures, laws, and 22 reasonableness as when to initiate a vehicle pursuit, responsibilities during a vehicle pursuit, and when to 23 terminate a vehicle pursuit, as required by Vehicle Code Section 17004.7, Penal Code Section 13519.8, 24 and CCR Title 11, Section 1081. (PSSF 96, 97) 25 III. STANDARD OF LAW 26 “Any party may move for summary judgment in any action or proceeding if it is contended that 27 the action has no merit...” (CCP § 437c(a)(1) “A cause of action has no merit if either of the following 28 exists: (1) One or more of the elements of the cause of action cannot be separately established, even if that 9 PLAINTIFFS LOUIS MONTANO, JR., LOUIE MONTANO III, AND MICHAEL MONTANO’S OPPOSITION TO DEFENDANT CITY OF SALINAS’ MOTION FOR SUMMARY JUDGMENT 1 element is separately pleaded. (2) A defendant establishes an affirmative defense to that cause of action.” 2 (CCP § 437c(o)) 3 On motions for summary judgment, the moving party must establish that there is no genuine issue 4 of any material fact and that it is entitled to judgment as a matter of law. (Ojavan Investors, Inc. v. Cal. 5 Coastal Com. (1997) 54 Cal.App.4th 373, 385, n.9). Even a single triable issue of fact suffices to deny 6 the motion. (Versa Technologies, Inc. v. Sup. Ct. (1978) 78 Cal.App.3d 237, 240). A moving party bears 7 the initial burden of production to make a prima facie showing that no triable issue of material fact exists. 8 Only when the initial burden of production is met, does the burden shifts to the responding party to 9 demonstrate the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 10 Cal.4th 826, 850-51). To meet its burden to show the absence of any triable issue of fact regarding the 11 issues it seeks summary judgment on, a defendant is required to produce evidence and cannot simply rest 12 its motion on argument. “Summary judgment law in this state . . . continues to require a defendant moving 13 for summary judgment to present evidence, and not simply point out through argument, that the plaintiff 14 does not possess, and cannot reasonably obtain, needed evidence...” (Aguilar, supra, 25 Cal.4th at 845- 15 855). When an inference is controverted by other evidence or by another reasonable inference, a “triable 16 issue” of fact exists and the court must deny the motion. (Leo F. Piazza Paving Co. v. Foundation 17 Constructors (1981) 128 Cal.App.3d 583, 589). 18 If “the showing by the defendant does not support judgment in [its] favor, the burden does not shift 19 to the Plaintiffs and the motion must be denied.” (Crouse v. Brobeck, Phleger & Harrison (1998) 67 20 Cal.App.4th 1509, 1534). The submission of evidence which is equivocal or from which conflicting 21 inferences may be drawn is insufficient to meet the movant's burden, and the court should deny the motion, 22 rather than shifting the burden to the non-moving party to present evidence. (Anderson v. Metalclad Insulation 23 Corp. (1999) 72 Cal.App.4th 284, 297). 24 IV. DEFENDANT’S MOTION FOR SUMMARY JUDGMENT MUST BE DENIED BECAUSE 25 IT VIOLATES PLAINTIFFS’ DUE PROCESS RIGHTS 26 CCP Section 437c(b)(1) requires a party moving for summary judgment to, “include a separate 27 statement setting forth plainly and concisely all material facts that the moving party contends are 28 undisputed.” (CCP §437c(b)(1)) “The failure to comply with this requirement of a separate statement may 10 PLAINTIFFS LOUIS MONTANO, JR., LOUIE MONTANO III, AND MICHAEL MONTANO’S OPPOSITION TO DEFENDANT CITY OF SALINAS’ MOTION FOR SUMMARY JUDGMENT 1 in the court’s discretion constitute a sufficient ground for denying the motion.” (Ibid.) “‘The due process 2 aspect of the separate statement requirement is self evident—to inform the opposing party of the evidence 3 to be disputed to defeat the motion.’ [Citation.] … Where a remedy as drastic as summary judgment is 4 involved, due process requires a party be fully advised of the issues to be addressed and be given adequate 5 notice of what facts it must rebut in order to prevail. [Citation.]’” (Laabs v. City of Victorville (2008) 163 6 Cal.App.4th 1242, 1266-1267, citing, San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 7 Cal.App.4th 308, 316). “The moving party must comply with the provisions of section 437c, subdivision 8 (b)(1) and its separate statement must address the allegations of material fact in the complaint. If [] the 9 moving parties fail to do so, the motion for summary judgment must be denied.” (Teselle v. McLoughlin 10 (2009) 173 Cal.App.4th 156, 171; CCP §437c(b)(1)). 11 As the additional material facts provided in Plaintiff’s Responsive Separate Statement establish, 12 Defendant City of Salinas’ motion fails to comply with CCP Sections 437c, subdivision (b)(1) by failing 13 to plainly and concisely set forth all material facts that it contends are undisputed, and violates Plaintiffs’ 14 due process rights by failing to address the allegations of material fact in Plaintiffs’ Complaint. 15 The omitted material facts are discussed in more detail in Plaintiff’s Separate Statement and this 16 Memorandum, but include, for example, the fact that in order for the SPD to claim immunity under Vehicle 17 Code section 17004.7, subsection (b)(1) expressly requires that the SPD provides “regular and periodic 18 training on an annual basis…” In a bald-faced attempt to mislead the Court, the City’s Separate Statement 19 omits any reference to the requirement that the training be provided annually, and instead simply states, 20 “SPD provides pursuit policy training to all of its police officers on a regular basis.” (SSF 13). Because 21 the City’s Separate Statement fails to address the allegations of material fact in Plaintiffs’ Complaint, the 22 court must deny this motion in its entirety. (Teselle v. McLoughlin, supra, at 171; CCP §437c(b)(1)). 23 V. THE CITY WAIVED ALL IMMUNITY AFFIRMATIVE DEFENSES NOT PLED IN ITS 24 ANSWER 25 Government Claims Act (“GCA”) statutory immunities are affirmative defenses to liability. 26 (Quigley v. Garden Valley Fire Prot. Dist. (2019) 7 Cal. 5th 798, 809). An objection that liability is barred 27 by an affirmative defense are ordinarily deemed “waived” if the defendant does not raise them in its 28 demurrer or answer to the complaint. (Quigley, supra, at 807, citing CCP § 430.80, subd. (a).) “[W]here 11 PLAINTIFFS LOUIS MONTANO, JR., LOUIE MONTANO III, AND MICHAEL MONTANO’S OPPOSITION TO DEFENDANT CITY OF SALINAS’ MOTION FOR SUMMARY JUDGMENT 1 particularity in pleading is necessary in a complaint, it is equally necessary in an affirmative defense 2 involving the issue.” (5 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 1082, p. 516.) With respect to 3 immunity under the GCA, “[t]he [answer] should contain specific allegations to show that the facts fall 4 within [a] statutory provision.” (Id. § 1107, p. 535, italics added.) 5 In Quigley v. Garden Valley Fire Prot. Dist. (2019) 7 Cal. 5th 798, the defendants’ answer alleged 6 defenses asserting immunity under 17 individually cited sections of the GCA, as well as an affirmative 7 defense that cited inclusively to all immunities under the GCA: “A public entity and its employees are 8 immune from liability for damages alleged in the complaint and Defendants assert all defenses and rights 9 granted to them by the provisions of Government Code sections 810 t