Colvin v. City of Gardena (1992)

ROBERT COLVIN, a Minor, etc., et al., Plaintiffs and Appellants, v. CITY OF GARDENA et al., Defendants and Respondents.

(Superior Court of Los Angeles County, No. SWC 102798, Abraham Gorenfeld, Temporary Judge. fn. *)

(Opinion by Klein, P. J., with Croskey and Hinz, JJ., concurring.)

COUNSEL

Michael J. Piuze, Frank D. Polito and John Keiser for Plaintiffs and Appellants.

Nelson, Draper & Teuber and Bruce L. Nelson for Defendants and Respondents.

Rutan & Tucker, Philip D. Kohn, City Attorney (Laguna Beach), Hans Van Ligten, Assistant City Attorney, Mayer & Reeves, Thomas M. Reeves, Martin J. Mayer and Michael J. Karger, City Attorney (Gardena), as Amici Curiae on behalf of Defendants and Respondents.

OPINION

KLEIN, P. J.

Plaintiff and appellant Robert Colvin, a minor, by and through his guardian ad litem, Alice Allen (hereafter, Colvin), appeals a judgment following a grant of summary judgment in a wrongful death action in favor of defendants and respondents City of Gardena (the City or Gardena), Gardena Police Department (the Department), and officers Steven Swain, Blane Schmidt, and Mark Batungbacal (the officer defendants) (sometimes collectively referred to as the Gardena defendants).

The essential issue presented is whether the City's written policy on vehicular pursuits met statutory requirements so as to confer immunity upon the City. [11 Cal. App. 4th 1274]

Because the policy fails to specify minimum standards and adequate guidelines as required by Vehicle Code section 17004.7, subdivisions (c)(2) and (c)(4), fn. 1 the judgment is reversed as to the City. Because the officer defendants are immune under section 17004, the judgment is affirmed as to them.

Factual and Procedural Background

On January 13, 1988, Colvin's father, Bobby Colvin, was killed when the vehicle Bobby Colvin was driving was struck by a 1972 Buick driven by Shawn Wilson (Shawn), a nine-year-old boy, who had taken his parents' vehicle. Prior to the collision, Shawn had been pursued by two police cars for about three miles, through several red lights, at speeds approaching 100 m.p.h.

Colvin filed this wrongful death action against Shawn, Shawn's parents, and the Gardena defendants, alleging negligence by Shawn and his parents and negligence and recklessness by the City and its employees. fn. 2

The Gardena defendants answered, denied the allegations, and asserted various affirmative defenses, including immunity pursuant to sections 17004 and 17004.7. fn. 3

The Gardena defendants then moved for summary judgment on the ground they were immune from liability for any police pursuit activity. The moving papers included a copy of a four-page directive issued by Gardena's chief of police pertaining to pursuit driving by its police officers (hereafter, the directive or the policy). fn. 4

In opposing summary judgment, Colvin argued, inter alia, the policy failed to conform to section 17004.7, and further, the officers involved in the pursuit were not aware of the policy's existence. [11 Cal. App. 4th 1275]

Colvin's opposition papers also included a copy of the Perris Police Department's pursuit policy. That policy, which was markedly similar to Gardena's, had been found inadequate by a trial court in Riverside. fn. 5

The City filed supplemental papers, including a copy of the pursuit policy which had been adopted by the San Diego City Council. The City argued the San Diego policy demonstrated "remarkable similarities" to its own policy. fn. 6

The matter was heard and was taken under submission. On July 15, 1991, the trial court granted summary judgment in favor of all the City defendants. The order cited sections 17004 and 17004.7 and stated the defendants "had ... adopted the Policy of Vehicular Pursuit, which complied with ... [section] 17004.7."

This appeal followed.

Contentions

Colvin contends the trial court's determination of immunity was error because (1) the directive fails to conform to the requirements of section 17004.7; (2) the police chief's issuance of the directive did not amount to the adoption of a vehicular pursuit policy by the City within the meaning of section 17004.7; and (3) immunity does not arise because the directive was never implemented or disseminated to the officers who were unaware of its existence.

The City reiterates the argument it made before the trial court.

Discussion

1. Standard of appellate review on summary judgment.

[1] The purpose of the summary judgment procedure is not to try the issues but merely to discover, through the medium of affidavits, whether there are issues to be tried and whether the parties possess evidence which demands the analysis of trial. (Saporta v. Barbagelata (1963) 220 Cal. App. 2d 463, 468 [33 Cal. Rptr. 661]; Orser v. George (1967) 252 Cal. App. 2d 660, 669 [60 Cal. Rptr. 708].)

[2] A defendant moving for summary judgment has the burden of establishing a complete defense or negating each of the plaintiff's theories and [11 Cal. App. 4th 1276] establishing the action is without merit. (Tresemer v. Barke (1978) 86 Cal. App. 3d 656, 666 [150 Cal. Rptr. 384, 12 A.L.R.4th 27]; Bonus-Built, Inc. v. United Grocers, Ltd. (1982) 136 Cal. App. 3d 429, 442 [186 Cal. Rptr. 357].)

[3] Because the trial court's ruling on a motion for summary judgment is one of law based upon the papers presented, the appellate court makes an independent determination of their construction and effect. (Larsen v. Johannes (1970) 7 Cal. App. 3d 491, 496 [86 Cal. Rptr. 744]; Bonus-Built, Inc. v. United Grocers, Ltd., supra, 136 Cal.App.3d at p. 442; Hayman v. Block (1986) 176 Cal. App. 3d 629, 640 [222 Cal. Rptr. 293].)

2. Trial court properly held the officer defendants enjoy immunity.

[4] While Colvin seeks a reversal of the trial court's ruling as to all the Gardena defendants, he presents no argument to challenge the determination of immunity as to the individual officers.

Section 17004, upon which the trial court relied, states: "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 operation, in the 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 violator of the law, ..." (Italics added.)

Based thereon, we perceive no error in the trial court's determination that officers Swain, Schmidt and Batungbacal are immune from liability herein.

3. Statutory scheme pertaining to public entity immunity for vehicle pursuits.

Government Code section 815.2, subdivision (b), states: "Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability." (Italics added.)

As indicated, section 17004 confers immunity upon public employees responding to emergency calls or in the pursuit of an actual or suspected violator of the law.

[5] However, a public entity has liability for vehicle pursuits even though the public employee is immune. Section 17001 states: "A public entity is liable for death or injury to person or property proximately caused [11 Cal. App. 4th 1277] by a negligent or wrongful act or omission in the operation of any motor vehicle by an employee of the public entity acting within the scope of his employment." (Italics added.)

Thus, section 17001 " 'otherwise provides' " for public entity liability and comes within the exception of Government Code section 815.2, subdivision (b). (Brummett v. County of Sacramento (1978) 21 Cal. 3d 880, 885 [148 Cal. Rptr. 361, 582 P.2d 952, 4 A.L.R.4th 858].)

A public entity may obtain immunity from the liability imposed by section 17001 if it adopts a vehicle pursuit policy which complies with section 17004.7. fn. 7

Section 17004.7 was enacted in 1987 to provide immunity to governmental entities which previously had enjoyed only limited immunity while their police officer employees were entirely immune under section 17004. (Kishida v. State of California (1991) 229 Cal. App. 3d 329, 336 [280 Cal. Rptr. 62].)

Section 17004.7 states: "[¶] (a) The immunity provided by this section is in addition to any other immunity provided by law. The adoption of a policy by a public agency pursuant to this section is discretionary. [¶] (b) A public agency employing peace officers which adopts a written policy on vehicular pursuits complying with subdivision (c) is immune from liability for civil damages for personal injury to or death of any person or damage to property resulting from the collision of a vehicle being operated by an actual or suspected violator of the law who is being, has been, or believes he or she is being or has been, pursued by a peace officer employed by the public entity in a motor vehicle. [¶] (c) If the public entity has adopted a policy for the safe conduct of vehicular pursuits by peace officers, it shall meet all of the following minimum standards: [¶] (1) It provides that, if available, there be supervisory control of the pursuit. [¶] (2) It provides procedures for designating the primary pursuit vehicle and for determining the total number of vehicles to be permitted to participate at one time in the pursuit. [¶] (3) It provides procedures for coordinating operations with other jurisdictions. [¶] [11 Cal. App. 4th 1278] (4) It provides guidelines for determining when the interests of public safety and effective law enforcement justify a vehicular pursuit and when a vehicular pursuit should not be initiated or should be terminated. [¶] (d) A determination of whether a policy adopted pursuant to subdivision (c) complies with that subdivision is a question of law for the court." (Italics added.)

Section 17004.7 was passed as "part of a package popularly characterized as government tort reform legislation. According to the League of California Cities, one of the sponsors of the package, this provision 'is intended to encourage agencies to adopt express guidelines which should reduce the frequency of accidents, while leaving to these agencies the fundamental law enforcement decisions about when to undertake a pursuit, free from threats of liability.' [Citation.]" (Kishida v. State of California, supra, 229 Cal.App.3d at p. 335, italics added.)

Weiner v. City of San Diego (1991) 229 Cal. App. 3d 1203, 1210 [280 Cal. Rptr. 818], observed section 17004.7 "implicitly acknowledges public agencies [which] choose to adopt a written policy for vehicular suspect pursuits should not have their coffers emptied as a result of the actions of a third party fleeing suspect. [The Legislature] narrowly worded the statute to only grant immunity where the suspect's vehicle is involved in the accident with an innocent third party and where the public agency has satisfied the requirement of a written policy which complies with certain specific points to encourage safe police pursuits." (Italics added.)

4. No merit to Colvin's contention the police chief's issuance of the directive does not amount to adoption of a pursuit policy by a public entity for purposes of immunity.

[6] Colvin contends a police chief lacks authority to promulgate the policy contemplated by section 17004.7 as the Department merely is a subsidiary agency of the City, and the instant directive issued by Gardena's chief of police, in the absence of city council adoption or ratification, does not amount to the adoption of a policy by a public agency or public entity within the meaning of the statute. fn. 8

Peterson v. City of Long Beach (1979) 24 Cal. 3d 238 presented an analogous situation. That case involved a wrongful death action against a [11 Cal. App. 4th 1279] city and a police officer arising out of a shooting incident. (Id., at p. 241.) The issue was whether the Long Beach Police Department Manual contained regulations of a public entity. (Ibid.) The question was pertinent because Evidence Code section 669, subdivision (a)(1), provides the failure of a person to exercise due care is presumed if he or she has violated a regulation of a public entity. (24 Cal.3d at pp. 241-242.)

To resolve the issue, the Supreme Court looked to Evidence Code section 200, which broadly defines public entity to include " 'a nation, state, county, city and county, city, district, public authority, public agency, or any other political subdivision or public corporation, whether foreign or domestic'; ..." (Peterson, supra, 24 Cal.3d at pp. 243-244, first italics added.) Peterson also relied on the Law Revision Commission Comment to Evidence Code section 200 which states " '[t]he broad definition of "public entity" includes every form of public authority ....' " (24 Cal.3d at at p. 244.)

Peterson reasoned: "A city is a public entity. But so are the office of its city manager and the department that its police chief directs. Each traditionally has been regarded as an 'agency' of the city, obviously 'public.' We find it hard to believe that the Legislature would not regard city managers and police chiefs (whose power to promulgate rules is conceded) as heads of a 'form of public authority.' Since, therefore, when they promulgated the manual the city manager and the police chief were acting as heads of a public entity, as defined by the Legislature, and since [the manual provision] clearly is a 'regulation,' " the Long Beach Police Department Manual contained regulations of a public entity, within the meaning of Evidence Code section 669. (Peterson, supra, 24 Cal.3d at p. 244.)

Peterson disapproved Vallas v. City of Chula Vista (1976) 56 Cal. App. 3d 382, 387-388 [128 Cal. Rptr. 469], which had reached a contrary conclusion. (Peterson, supra, 24 Cal.3d at p. 245, fn. 3.) Vallas found the Chula Vista Police Manual was not a regulation of a public entity within the meaning of Evidence Code section 669. (Vallas, supra, 56 Cal.App.3d at pp. 386-388.) Vallas held "the police department is merely an integral part of a public entity and not an entity itself." (Id., at p. 388.)

We observe Government Code section 811.2, within the California Tort Claims Act, and section 17000, also define public entity as including "public authority, public agency, and any other political subdivision or public corporation" in the State.

Thus, Government Code section 811.2, Evidence Code section 200, and section 17000, all define public entity as including public authority and [11 Cal. App. 4th 1280] public agency. Given the broad meaning ascribed to these terms by statute, and in view of Peterson, we conclude the police chief's issuance of a directive in the instant case was appropriate in light of the police chief's role as head of a form of public authority and the directive amounts to the adoption of a pursuit policy by a public agency or public entity within the meaning of section 17004.7. a. No merit to Colvin's argument that Evidence Code section 669.1 precluded the police chief or the department from promulgating pursuit policy.

[7] Colvin contends Peterson's broad interpretation of a police department as a public entity empowered to adopt policies or guidelines was superseded by the enactment of Evidence Code section 669.1 in 1983. That section provided "[a] local rule, regulation, or guideline setting standards of conduct for peace officers in the use of deadly force shall not be considered a statute, ordinance, or regulation of a public entity" for purposes of the presumptive negligence rule of Evidence Code section 669. (Evid. Code, former § 669.1; added by Stats. 1983, ch. 168, § 1, p. 586; Lehto v. City of Oxnard (1985) 171 Cal. App. 3d 285, 294 [217 Cal. Rptr. 450].) fn. 9

However, Evidence Code section 669.1 did not divest local police departments of their power to promulgate rules, regulations or guidelines. It merely limits the evidentiary uses of such regulations, by providing "[t]his section affects only the presumption set forth in Section 669, ..." (Evid. Code, § 669.1, italics added.) The Legislature's intent in adopting section 669.1 was " 'to permit localities to adopt rules of peace officer conduct without fear of presumptive civil liability.' " (Letho, supra, 171 Cal.App.3d at p. 294, fn. 5.)

Consequently, Evidence Code section 669.1 did not preclude the City from adopting a vehicular pursuit policy by way of a directive issued by its chief of police. [11 Cal. App. 4th 1281] 5. City lacks immunity under section 17004.7 due to inadequacy of its policy.

a. Standard for reviewing sufficiency of vehicular pursuit policy.

[8] Section 17004.7, subdivision (d), mandates that the determination as to whether a policy adopted by a public agency pursuant to subdivision (c) is adequate to confer immunity is a question of law for the court. Therefore, we conduct an independent review of the City's efforts at compliance. (Weiner v. City of San Diego, supra, 229 Cal.App.3d at p. 1211.)

As indicated, for immunity to attach under section 17004.7, a pursuit policy must meet "all of the ... minimum standards" set forth in subdivision (c). Further, Weiner, supra, 229 Cal.App.3d at page 1210, directs that the Legislature narrowly worded the section to grant immunity only where a written policy "complies with certain specific points to encourage safe police pursuits."

[9] Therefore, to receive the benefit of immunity under section 17004.7, a public entity must comply fully with the requirements of the statute. fn. 10

b. Adoption of minimum standards or guidelines contemplates selection of specific factors to guide police officers' exercise of their discretion.

Our decision on independent review rests on an analysis of the adequacy of the minimum standards or guidelines in the pursuit policy adopted by the City in its quest for immunity under section 17004.7.

A guideline is "an indication or outline of future policy or conduct." (Webster's Third New Internat. Dict. Unabridged (1986) p. 1009.) Thus, guidelines are specific in nature and set forth criteria or factors which serve to constrain the discretion of a decision maker.

By way of examples already in the law, Public Resources Code, section 21083, found within the California Environmental Quality Act or CEQA (Pub. Resources Code, § 21000 et seq.), requires the adoption of guidelines which specifically include criteria for determining whether a proposed project may have a significant environmental impact. [11 Cal. App. 4th 1282]

Further, California Code of Regulations, title 10, chapter 5, subchapter 4.7, section 2632.13.1, sets forth specific guidelines for determining whether a driver was principally at fault for an accident for determining qualification to purchase a good driver discount policy.

Also, rule 1274 of the California Rules of Court sets forth highly specific guidelines for calculating child support awards. The amount is to be based, inter alia, on the net monthly disposable income of each parent and the percentage of time each parent has primary responsibility for the children. (Cal. Rules of Court, rule 1274 (c)(1), (c)(2).)

Likewise, the State Bar Standards for Attorney Sanctions for Professional Misconduct (Rules Proc. of State Bar, div. V), which have been referred to as guidelines (see In re Leardo (1991) 53 Cal. 3d 1, 18, fn. 8) [278 Cal. Rptr. 689, 805 P.2d 948], specify standards for selecting a sanction in a particular case. Those detailed guidelines set forth the standard sanctions for various acts of misconduct, as well as aggravating and mitigating circumstances.

All the guidelines contemplated above call for the implementation of specific standards.

Applying the ordinary meaning of guidelines to section 17004.7, subdivision (c)(4), it is clear the Legislature contemplated public entities seeking immunity must adopt reasonably specific criteria to give direction to officers in the field.

To assist our determination of the sufficiency of Gardena's minimum standards, particularly its guidelines in the sensitive area of initiating and terminating vehicular pursuits, we have examined the pursuit policy adopted by the City of San Diego, a copy of which was before the trial court on the motion for summary judgment. Weiner found San Diego's policy to be adequate, albeit without substantial analysis. (See Weiner, supra, 229 Cal.App.3d at p. 1211.)

In addition, for comparison's sake, we have taken judicial notice of the pursuit policies of the City of Los Angeles, the County of Los Angeles and the City and County of San Francisco. Also, we have scrutinized the pursuit policies of three smaller cities in Los Angeles County, namely, Manhattan Beach, Redondo Beach and Arcadia, which are comparable in size to the City of Gardena. (Evid. Code, §§ 452, subd. (b), 459.) fn. 11

We need not and do not decide whether and to what extent these other policies comply with the minimum standards of section 17004.7. We examine these policies simply to ascertain some of the factors which have been [11 Cal. App. 4th 1283] considered relevant by public entities in drafting a police pursuit policy in compliance with the statute.

As indicated, because the Legislature narrowly worded the statute only to grant immunity where written policies comply with "specific points to encourage safe police pursuits" (Weiner, supra, 229 Cal.App.3d at p. 1210), we are convinced policies must clearly and with specificity set forth standards to guide officers in the field. If such factors are not detailed, there has not been compliance with section 17004.7, subdivision (c), and immunity does not attach.

We further believe the Legislature was aware in 1987 when section 17004.7 was adopted of the tragic consequences to innocent third parties which have resulted from the failure of public entities to provide adequate guidelines to officers "[to] justify a vehicular pursuit and when a vehicular pursuit should not be initiated or should be terminated." (§ 17004.7, subd. (c)(4).) This court also can take judicial notice of prominent and pervasive news coverage of at least 10 pursuit-related deaths in Southern California in recent weeks alone, as well as personal injuries and property damage to noninvolved parties (Evid. Code § 452, subds. (g), (h); Powell v. Superior Court (1991) 232 Cal. App. 3d 785, 790, fn. 2 [283 Cal.Rptr. 777]), and the inescapable conclusion that high-speed chases are dangerous even under the best of circumstances.

c. Gardena's policy lacks guidelines for initiating and discontinuing vehicular pursuits.

With the standard enunciated above in mind, we review Gardena's guidelines for initiating and terminating a vehicular pursuit. The City's policy states: "V. Procedure [¶] A. Initiation of pursuits: Pursuits may be initiated when an officer has reasonable cause to stop a vehicle and the driver fails to stop as required by law. [¶] B. Discontinuance of pursuits: Justification to continue a pursuit will be based on what reasonably appears to be the facts known or perceived by the officer. Officers should consider discontinuing a pursuit when it poses a serious and unreasonable risk of harm to the pursuing officer or to the public balanced against the seriousness of the violations, or when directed to do so by a supervisor."

The policy's general provision that pursuits may be initiated whenever an officer has reasonable cause to stop a vehicle and the driver fails to stop does not provide any "guidelines for determining when the interests of public safety and effective law enforcement justify a vehicular pursuit and when a vehicular pursuit should not be initiated." (§ 17004.7, subd. (c)(4).) The [11 Cal. App. 4th 1284] policy simply authorizes pursuits in all instances when reasonable cause exists to stop a vehicle and the driver fails to stop. The policy fails to articulate any guidelines for determining when the gravity of a particular situation justifies the initiation of a pursuit.

Under this lax standard, the "reasonable cause to stop a vehicle" as justification for the initiation of a pursuit could apply to a mere Vehicle Code violation for a nonfunctioning tail lamp (§ 24600), or other minor violation.

In contrast, the San Diego policy at least provides an officer may initiate a pursuit when, inter alia, a known wanted felon is in the vehicle or the occupants of the vehicle have committed a crime in the officer's presence.

In addition to failing to set forth guidelines for initiating a pursuit, the City's policy lacks any guidelines for discontinuing a pursuit. The City's policy merely directs officers to engage in a cost/benefit analysis and to discontinue a pursuit whenever the risk of harm to the officer or to the public outweighs the seriousness of the violations. However, there are no guidelines to assist the officer in balancing risks and benefits. Consequently, this element of the City's policy is purely conclusionary.

In contrast, the San Diego policy sets forth the following factors an officer should consider in determining whether a pursuit should be terminated: vehicular traffic, pedestrian, roadway and environmental conditions; the violation for which the suspect is wanted; whether the suspect is known to be a juvenile; and, whether the suspect has been identified to the point that later apprehension can be accomplished.

Also, in this regard, San Francisco's policy states a pursuit should be discontinued when an unreasonable danger exists to the officers or others. Its guidelines go on to state: "An unreasonable danger exists when speeds dangerously exceed the normal flow of traffic or when vehicular or pedestrian traffic necessitates dangerous maneuvering exceeding the performance capabilities of the vehicle or driver, or when the reason for apprehending the pursued vehicle clearly is outweighed by the risk of harm imposed on the person or property of the officers or others if the pursuit is continued."

Also by comparison, the policy of the County of Los Angeles directs a pursuit to be discontinued, inter alia, "[a]fter a reasonably short distance when the only known reason for the pursuit is traffic violations or other misdemeanors, or known or suspected G.T.A. [grand theft auto] suspects" or when the pursuit is as a result of action by another police department [11 Cal. App. 4th 1285] traversing the County's jurisdiction and the County's assistance is no longer needed.

Further, the policies of the City of San Francisco and the County of Los Angeles both emphasize the immediate apprehension of the violator is "never more important than the safety" of innocent persons or the officers themselves. Similarly, the San Diego policy directs the officers to "continually question whether the seriousness of the offense justifies continuing the pursuit" and cautions that a pursuit should be continued only "as long as it is safe to do so."

Gardena's policy merely directs officers to discontinue a pursuit whenever the risk of harm to the officer or to the public outweighs the seriousness of the violations.

It would seem the City displayed a calculated disinclination to set forth any "minimum standards," and instead sought to clothe its officers with maximum discretion and flexibility. Its policy blatantly eschews setting forth such obvious factors, inter alia, as weather, visibility, vehicular and pedestrian traffic, surface and other roadway conditions, speed, experience of the officers, nature of the offense, capacity of police vehicle, and distance travelled.

We therefore conclude Gardena's pursuit policy fails to advance the Legislature's purpose of promoting public safety through the adoption of specific pursuit guidelines. The policy is bereft of any guidelines to equip officers in the field in determining when the interests of public safety and effective law enforcement justify initiation of a vehicular pursuit or require termination of a pursuit. (§ 17004.7, subd. (c)(4).) The policy " 'impermissibly delegates basic policy matters to police[ officers], ... for resolution on an ad hoc and subjective basis' " (People v. Superior Court (Caswell) (1988) 46 Cal. 3d 381, 390 [250 Cal. Rptr. 515, 758 P.2d 1046]), thereby defeating the Legislature's intent that vehicle pursuits be conducted pursuant to rational guidelines.

In sum, because the policy lacks as minimum standards the guidelines required by subdivision (c)(4) of section 17004.7, immunity does not attach.

d. Gardena's policy also fails to provide procedures for designating primary pursuit vehicle and for determining total number of participating vehicles.

Section 17004.7, subdivision (c)(2), requires a pursuit policy to provide "procedures for designating the primary pursuit vehicle and for determining [11 Cal. App. 4th 1286] the total number of vehicles to be permitted to participate at one time in the pursuit." In this regard, Gardena's policy states an officer may initiate a pursuit upon reasonable cause and a pursuit initiated by a motorcycle or unmarked police unit should be abandoned when a marked four- wheeled unit is available to assume the pursuit.

In addition, the policy provides the number of police units involved in a pursuit may vary with the circumstances and should be kept to a minimum. It directs the second and subsequent units to communicate with the dispatch center and requires supervisors to assure no more than the required number of police units are involved in the pursuit.

These loose and conclusionary provisions do not amount to procedures for designating the primary pursuit vehicle and for determining the total number of vehicles permitted to participate at one time in the pursuit. The policy just reflects the obvious fact that some vehicle initiates the pursuit and states if the initiating vehicle is an unmarked police car or motorcycle, such vehicle should abandon the pursuit in favor of a marked four-wheeled unit. The policy also contemplates the participation of second and subsequent units. It then states in a conclusionary manner that the number of participating vehicles should be kept to a minimum.

In contrast, the policy of the City of Los Angeles states the initial pursuing unit shall be designated the primary pursuit vehicle, and that in the event the primary unit cannot continue as the primary unit, the secondary unit shall become the primary unit.

Similarly, San Diego's policy provides, in relevant part, that in the event another unit becomes better positioned to provide cover for the chase unit, then that unit shall become the primary assisting unit and the former assisting unit shall cease any violation of traffic laws.

The policy of the City of Los Angeles further states, inter alia: "Number of Police Units Participating. The initial pursuing police unit (primary unit) and the back-up police unit (secondary unit) shall be the only units to pursue the suspect vehicle" unless the primary unit requests additional units to join the pursuit if it appears necessary to safely effect the arrest of the suspects. (Italics added.)

Likewise, the policy of the County of Los Angeles provides "[t]he active pursuit shall normally consist of no more than three units: the primary unit; and two back-up units," unless more assistance is specifically requested.

Similarly, the Manhattan Beach policy provides, with respect to the number of participating police units, that only the initial pursuing unit and a secondary unit shall pursue a suspect fleeing in a vehicle. [11 Cal. App. 4th 1287]

San Francisco's policy also limits pursuits to two units, unless otherwise directed by a supervisory or command officer. It also requires pursuing units to monitor radio communications to ascertain that no more than two units are involved.

It is obvious the more vehicles involved in high-speed pursuits, the greater the probability for accidents. Gardena's policy sets forth no limit and merely leaves the number of chase cars to the exercise of discretion.

Based on the foregoing, we conclude Gardena's policy lacks adequate procedures for designating the primary pursuit vehicle and, while the policy requires the total number of participating vehicles to be "kept to a minimum," it fails to provide adequate procedures for determining the total number of vehicles to be permitted to participate at one time in the pursuit. (§ 17004.7, subd. (c)(2).)

e. Conclusion on analysis of Gardena's policy.

Based on our analysis of the City's attempts to comply with the minimum standards prescribed by section 17004.7, just in subdivisions (c)(2) and (c)(4), we conclude the City has no immunity under the statute. fn. 12

Our holding is narrow. We express no opinion as to the merits of Colvin's action. We reverse solely as to the City on the ground it lacks immunity under section 17004.7.

6. No merit to Colvin's argument the City failed to disseminate its policy, but immaterial since immunity fails for lack of minimum standards and guidelines.

In opposing summary judgment, Colvin called into question whether the City actually had disseminated the directive to its officers.

In this regard, Colvin cited the deposition testimony of Batungbacal who was asked what factors he had been taught as a Gardena police officer to use as circumstances for terminating a pursuit. He responded: "Well, I don't think there's anything that's been put down in writing. It's all a-it's as the policy says, it's just discretion. You look at the circumstances you have." (Italics added.)

Contrary to Colvin's argument, this statement by Batungbacal tends to show the City's policy actually had been disseminated and that Batungbacal [11 Cal. App. 4th 1288] was aware of its vague contents. However, Batungbacal's statement also confirms our conclusion the City's policy lacked adequate guidelines and gave too much discretion to the officers in the field. fn. 13

Conclusion

Recent news coverage in Southern California has shown that vehicle pursuits by police agencies can result in tragic consequences to innocent third parties. (Evid. Code § 452, subd. (h).) Section 17004.7, if properly implemented, can help reduce the frequency of such accidents. This statute therefore represents another balancing between the interests of public entities and the general population. To gain the benefit of immunity from liability for vehicle pursuits, public entities are required to adopt pursuit policies enunciating minimum standards, with specific guidelines which give due consideration to safety concerns. Vague or conclusionary language in a pursuit policy allowing unfettered discretion to the officers in the field is not a substitute for the reasoned standards and guidelines contemplated by section 17004.7.

Disposition

The judgment is reversed as to the City and is affirmed as to the officer defendants. Colvin to recover costs on appeal.

Croskey, J., and Hinz, J., concurred. [11 Cal. App. 4th 1289] [Graphic Material Omitted]

FN *. Pursuant to California Constitution, article VI, section 21.

FN 1. All further statutory references are to the Vehicle Code unless otherwise specified.

FN 2. Shawn and his parents are not parties to this appeal.

FN 3. Section 17004 confers immunity upon public employees for injury or death resulting from the operation, in the line of duty, of an authorized emergency vehicle while responding to an emergency call or in the pursuit of an actual or suspected violator of the law.

Section 17004.7 provides immunity to public agencies employing peace officers which adopt a written policy on vehicular pursuits if the adopted policy meets statutory requirements.

FN 4. Exhibit A to this opinion is a copy of the City's policy.

FN 5. An appeal in that action, Payne v. City of Perris (E010418),* is currently pending in the Fourth District. (Evid. Code, §§ 452, subd. (d), 459.)

* Payne v. City of Perris (1993) 12 Cal. App. 4th 1738, filed February 1, 1993.

FN 6. Exhibit B to this opinion is a copy of the San Diego vehicular pursuit policy.

FN 7. While Government Code section 845.8, subdivision (b), immunizes a public entity from liability for injuries caused by persons resisting or escaping arrest (Kisbey v. State of California (1984) 36 Cal. 3d 415, 419 [204 Cal. Rptr. 428, 682 P.2d 1093]), section 17001 carves out an exception to the general rule of immunity for injuries caused by fleeing suspects, when the police vehicular pursuit is conducted negligently. (Hooper v. City of Chula Vista (1989) 212 Cal. App. 3d 442, 450 [260 Cal. Rptr. 495], review den.; see Cal. Gov. Tort Liability Practice (Cont.Ed.Bar 1992) § 4.44, pp. 509-510.) If the immunity provision of Government Code section 845.8, subdivision (b), were controlling, the adoption of a vehicular pursuit policy pursuant to section 17004.7 would be largely an idle act.

FN 8. Colvin did not argue before the trial court the City had failed to "adopt" the subject policy. However, the issue has been fully briefed on appeal and presents only a question of law based on the facts appearing in the record. Therefore, the issue will be given due consideration. (See State of California ex. rel. Public Works Bd. v. Bragg (1986) 183 Cal. App. 3d 1018, 1023- 1024 [228 Cal. Rptr. 576].)

FN 9. The Legislature amended Evidence Code section 669.1 in 1987 to its present version, which provides: "A ... policy ... of ... local government setting forth standards of conduct or guidelines for its employees in the conduct of their public employment shall not be considered a statute, ordinance, or regulation of that public entity within the meaning of Section 669, unless the ... policy ... has been formally adopted ..., as an ordinance of a local government entity in this state empowered to adopt ordinances, ... This section affects only the presumption set forth in Section 669, and is not otherwise intended to affect the admissibility or inadmissibility of the ... policy ... under other provisions of law."

FN 10. There is no merit to the City's argument that Weiner adopted a substantial compliance standard for testing compliance with section 17004.7. Rather, Weiner disregarded the trial court's finding the policy " 'substantially complied' " with the statute, holding the trial court's decision was correct in result. (Weiner, supra, 229 Cal.App.3d at p. 1211.)

However, even assuming substantial compliance were the standard, Gardena's pursuit policy would not pass muster.

FN 11. Proper notice was provided to the parties of our intent to take judicial notice. Each of these policies then was made part of the record on appeal.

FN 12. Because Gardena's policy is infirm due to noncompliance with subdivisions (c)(2) and (c)(4) of section 17004.7, it is unnecessary to scrutinize the policy pursuant to subdivisions (c)(1) and (c)(3) of the statute.

FN 13. In view of our conclusion immunity does not attach due to deficiencies in the City's policy, it is unnecessary in this case to address whether, in addition to adopting a pursuit policy, a public entity must take reasonable steps to disseminate its policy to its officers. For the same reason, it is unnecessary to address whether immunity attaches even in the absence of a good faith effort to comply with the policy. (See Kishida v. State of California, supra, 229 Cal.App.3d at p. 335 and Weiner v. City of San Diego, supra, 229 Cal.App.3d at p. 1210, which do not require any proof the policy actually was practiced during a particular chase.)