City of Oceanside v. Superior Court

• Decision Date: 06 June 2000
• Docket Number: No. D034606.,D034606.
• Citation: 81 Cal.App.4th 269,96 Cal.Rptr.2d 621
• Court: California Court of Appeals Court of Appeals
• Parties: CITY OF OCEANSIDE et al., Petitioners, v. The SUPERIOR COURT of San Diego County, Respondent; Tracie G. MacDonald, Real Party in Interest.

96 Cal.Rptr.2d 621

81 Cal.App.4th 269

CITY OF OCEANSIDE et al., Petitioners, v. The SUPERIOR COURT of San Diego County, Respondent Tracie G. MacDonald, Real Party in Interest.

No. D034606.

Court of Appeal, Fourth District, Division 1.

June 6, 2000.

Duane E. Bennett, City Attorney, and Jodi L. Doucette, Deputy City Attorney (Oceanside), for Petitioners.

No appearance for Respondent.

Law Offices of Joshua D. Gruenberg and Joshua D. Gruenberg for Real Party in Interest.

McDONALD, J.

City of Oceanside (City) and Rodney Ferris (together with City, Defendants), defendants in a personal injury action brought by the real party in interest, plaintiff Trade G. MacDonald, filed a petition for a peremptory writ of mandate seeking reversal of an order denying their motion for summary judgment. Defendants contend the firefighter's rule applies as a matter of law and is a complete defense to MacDonald's action.¹ We agree and grant the petition.

FACTUAL AND PROCEDURAL BACKGROUND

In July 1996 City lifeguards, including Ferris, and Camp Pendleton lifeguards, including MacDonald, conducted a joint operation to rescue a jet ski collision victim who was stranded in ocean water adjacent to a Camp Pendleton jetty. The lifeguards placed the victim on a backboard and attempted to carry him over the jetty rocks. After the lifeguards made only limited progress in transporting the victim along the jetty rocks, Ferris asserted authority over the joint rescue operation and directed MacDonald and other lifeguards to lower the victim off the rocks onto a floating sled behind a jet ski, which would ferry the victim to a nearby harbor patrol boat. While MacDonald stood in the water to assist the victim off the rocks and onto the sled, a wave pushed her against the jetty rocks. She sustained back and other injuries.

MacDonald filed a personal injury action against Defendants, alleging Ferris was negligent in directing her to follow an unreasonable rescue plan. Defendants filed a motion for summary judgment or, in the alternative, summary adjudication of issues, asserting MacDonald's action was barred by the firefighter's rule and City's immunity for discretionary acts under Government Code section 820.2. The trial court denied Defendants' summary judgment motion and granted in part their alternative summary adjudication motion on certain causes of action. The court found the firefighter's rule did not apply to the facts alleged in this case. It further found Government Code section 820.2 did not apply because Defendants' alleged actions were not basic policy decisions.

Defendants filed this petition for a peremptory writ of mandate, prohibition or other relief. We issued an order to show cause and a stay of trial and discovery pending disposition of the petition.

DISCUSSION

I Summary Judgment Standard of Review

The purpose of a motion for summary judgment is "to discover whether the parties possess evidence requiring the fact-weighing procedures of a trial. [Citations.]" (Appalachian Ins. Co. v. McDonnell Douglas Corp. (1989) 214 Cal.App.3d 1, 10, 262 Cal.Rptr. 716.) Code of Civil Procedure section 437c, subdivision (c) provides that a motion for summary judgment must be granted "if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." As an appellate court, we conduct a de novo review to determine whether there are any genuine issues of material fact. (Appalachian Ins. Co., supra, at p. 11, 262 Cal.Rptr. 716.) An appellate court "make[s] its own independent determination of the construction and effect of the papers submitted [citation], and the validity of the ruling is reviewable irrespective of the reasons stated. [Citation.]" (Preis v. American Indemnity Co. (1990) 220 Cal. App.3d 752, 757, 269 Cal.Rptr. 617.)

We strictly construe the moving party's papers and liberally construe the opposing party's papers. (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107, 252 Cal.Rptr. 122, 762 P.2d 46, superseded by statute on other grounds as noted in Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 70-73, 81 Cal. Rptr.2d 360.) "Doubts as to the propriety of summary judgment should be resolved against the moving party. [Citation.]" (Salasguevara v. Wyeth Laboratories, Inc. (1990) 222 Cal.App.3d 379, 383, 271 Cal. Rptr. 780.) Furthermore, "[i]t is the moving party's burden to make a sufficient showing that the claim is entirely without merit and if that showing is deficient summary judgment must be denied. [Citation.]" (Id. at p. 384, 271 Cal.Rptr. 780.)

"A defendant is entitled to summary judgment if the record establishes as a matter of law that none of the plaintiffs asserted causes of action can prevail. [Citation.]" (Molko v. Holy Spirit Assn., supra, 46 Cal.3d at p. 1107, 252 Cal.Rptr. 122, 762 P.2d 46.) Code of Civil Procedure section 437c, subdivision (o)(2) provides: "For purposes of motions for summary judgment ...: [¶] ... [¶] A defendant ... has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the defendant ... has met that burden, the burden shifts to the plaintiff ... to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The plaintiff ... may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto." (Italics added.)

II Firefighter's Rule Generally

In 1968 California adopted the almost century-old, common law firefighter's rule. (Giorgi v. Pacific Gas & Elec. Co. (1968) 266 Cal.App.2d 355, 357-360, 72 Cal. Rptr. 119; Lipson v. Superior Court (1982) 31 Cal.3d 362, 367, 182 Cal.Rptr. 629, 644 P.2d 822; Walters v. Sloan (1977) 20 Cal.3d 199, 202, 142 Cal.Rptr. 152, 571 P.2d 609.) Although generally "[w]e all have the duty to use due care to avoid injuring others," the firefighter's rule provides an exception to that general duty of care; it is "a special rule ... [that] limit[s] the duty of care the public owes to firefighters and police officers." (Neighbarger v. Irwin Industries, Inc. (1994) 8 Cal.4th 532, 536, 538, 34 Cal.Rptr.2d 630, 882 P.2d 347, hereafter Neighbarger.) Neighbarger stated:

"Under the firefighter's rule, a member of the public who negligently starts a fire owes no duty of care to assure that the firefighter who is summoned to combat the fire is not injured thereby. [Citations.] Nor does a member of the public whose conduct precipitates the intervention of a police officer owe a duty of care to the officer with respect to the original negligence that caused the officer's intervention. [Citations.]" (Id. at p. 538, 34 Cal.Rptr.2d 630, 882 P.2d 347, fn. omitted.)

"The undergirding legal principle of the rule is assumption of the risk...." (Calatayud v. State of California (1998) 18 Cal.4th 1057, 1061, 77 Cal. Rptr.2d 202, 959 P.2d 360, hereafter Calatayud.) Firefighters, "`whose occupation by its very nature exposes them to particular risks of harm "`cannot complain of negligence in the creation of the very occasion for [their] engagement.'"' [Citation.]" (Walters v. Sloan, supra, 20 Cal.3d at p. 202, 142 Cal.Rptr. 152, 571 P.2d 609.) "[T]he [firefighter's] rule is based on a principle ... applicable to our entire system of justice—one who has knowingly and voluntarily confronted a hazard cannot recover for injuries sustained thereby." (Id. at p. 204, 142 Cal.Rptr. 152, 571 P.2d 609.) "As a matter of public policy and fairness, when firefighters and police officers are injured by the very hazard they have been employed to confront, they are generally precluded from recovering in tort damages from private persons. [Citations.] The firefighter's rule is based on the public policy that officers injured in the line of duty should be compensated through the public fisc rather than by individual tort recoveries. [Citation.]" (Tilley v. Schulte (1999) 70 Cal.App.4th 79, 83, 82 Cal.Rptr.2d 497, italics added.) "The firefighter's rule precludes recovery for injuries suffered as a direct consequence of responding to calls in the line of duty. [Citation.]" (Ibid.)

However, the firefighter's rule is subject to a common law exception. "The firefighter does not assume every risk of his or her occupation. [Citation.] The rule does not apply to conduct other than that which necessitated the summoning of the firefighter or police officer, and it does not apply to independent acts of misconduct that are committed after the firefighter or police officer has arrived on the scene. [Citations.]" (Neighbarger, supra, 8 Cal.4th at p. 538, 34 Cal.Rptr.2d 630, 882 P.2d 347.) The firefighter's rule is also subject to a statutory exception. In 1982 Civil Code² section 1714.9³ was enacted "codifying certain exceptions" to the firefighter's rule. (Calatayud, supra, 18 Cal.4th at p. 1063, 77 Cal.Rptr.2d 202, 959 P.2d 360, fn. omitted.) Section 1714.9 permits liability for negligent acts of any person that cause injury to a police officer, firefighter, or emergency medical personnel when that negligent "conduct causing the injury occurs after the person knows or should have known of the presence of the peace officer, firefighter, or emergency medical personnel." (§ 1714.9, subd. (a)(1).) Section 1714.9, subdivision (a)(1) (hereafter section 1714.9(a)(1)) "broadens the common law exception by eliminating the requirement that the injury result from subsequent independent acts of misconduct committed after the defendant becomes aware of the officer's presence. [Citation.]" (Calatayud, supra, at p. 1069, 77 Cal.Rptr.2d 202, 959 P.2d...