Customer Co. v. City of Sacramento, C008668

CourtCalifornia Court of Appeals
Citation18 Cal.App.4th 472,23 Cal.Rptr.2d 154
Decision Date30 August 1993
Docket NumberNo. C008668,C008668
PartiesPreviously published at 18 Cal.App.4th 472, 23 Cal.App.4th 564, 28 Cal.App.4th 1591, 33 Cal.App.4th 1301 18 Cal.App.4th 472, 23 Cal.App.4th 564, 28 Cal.App.4th 1591, 33 Cal.App.4th 1301 CUSTOMER COMPANY, Plaintiff and Appellant, v. The CITY OF SACRAMENTO, et al., Defendants and Respondents.

Aiken, Kramer & Cummings, Inc., Fred V. Cummings, Matthew F. Graham, Ellen Suzanne Wyatt, Oakland and George E. Paras, Sacramento, for appellant.

Sharon Siedorf Cardenas, City Attorney, City of Sacramento, Richard F. Antoine, Deputy City Attorney, Edson & LaPlante and John M. LaPlante, Sacramento, for respondent City of Sacramento.

Porter, Scott, Weiberg & Delehant and Stephen E. Horan, Sacramento, for County of Sacramento.

RAYE, Associate Justice.

In an attempt to apprehend a robbery suspect, officers from defendant City of Sacramento ("City") and defendant County of Sacramento ("County") cornered the suspect in a convenience store owned by plaintiff Customer Company. In order to flush out the suspect, officers fired over 13 canisters of tear gas into the store. Customer Company brought suit againstboth the City and the County alleging: negligence, trespass, nuisance, conversion, inverse condemnation and violation of civil rights. (42 U.S.C. § 1983.) The trial court granted the City's and County's motions for summary adjudication and judgment on the pleadings, ultimately dismissing all causes of action.

Customer Company appeals contending: (1) the court erred in finding an emergency and public necessity precluded a cause of action for inverse condemnation; (2) the court erred in finding the City and County immune from liability for negligence; (3) questions of fact exist as to whether the City and County violated Customer Company's civil rights; (4) the court erred in finding the City and County immune from nuisance; (5) triable issues of fact exist as to whether the City and County converted Customer Company's property; and (6) triable issues of fact exist as to whether the City and County trespassed on Customer Company's property. Finding no error, we shall affirm the judgment.


In spring of 1987 the City Police Department and County Sheriff's Department joined in investigating a series of burglaries. Acting on information from a burglary suspect, the City and County placed Christopher Nash under surveillance. The departments believed Nash was involved in armed robberies inside and outside the City. Nash was reputed to be armed and dangerous, and had told people he would "shoot it out" with police if necessary. An informant told County officers where Nash could be found and described the cars Nash might be driving.

County Sheriff's Deputy Chapman spotted Nash driving one of the cars, accompanied by passenger Violet Nelson. Chapman followed Nash and called for backup. Nash drove into the parking lot of Roger's Food & Liquor, a convenience store owned by Customer Company. Nash and Nelson entered the store before backup units arrived. Chapman planned a covert surveillance of Nash until he left the store and could be arrested.

One County deputy and several City police officers responded to Chapman's call for backup. The officers proceeded to the convenience store in unmarked cars. Despite these efforts at covert surveillance, one County deputy, Acevedo, and one City police officer, Bernasconi, arrived at the scene in marked cars.

The arrival of the marked law enforcement vehicles ended the attempt at covert surveillance. A clerk in the store saw the cars, and assumed they were surrounding a car in the parking lot. The clerk told Nelson, Nash's companion, to get down behind the counter.

When the officers outside discovered a clerk was in the store, they used a public address system ("PA") to order everyone out of the store. The clerk and Nelson left the store, Nash remained inside. The clerk told the officers no one but Nash was inside. Nelson told the officers Nash's guns were outside in his car, and she believed Nash was unarmed. 1

The officers, believing Nash to be armed and dangerous, decided not to enter the store. Instead, the officers called in the SWAT team. Lt. Mijares of the Sacramento Police Department ("SPD") took command and secured the area, calling in fire and ambulance units. Mijares called in a trained hostage negotiator to coax Nash out of the store. Police called the store number, and the negotiator, over the PA system, urged Nash to answer the phone. Nash failed to respond. Nash's companion, Nelson, told SPD she could coax Nash out of the store. Nelson's offer was not acted upon, and Lt. Mijares testified he was unaware of the offer. Mijares also stated he would not have used Nelson, because in his experience, suspects sometimes reacted dangerously to such communication.

After Nash failed to respond to the officers' attempts at communications, the negotiator told Nash tear gas would be fired if he didn't come out. Nash failed to respond. Mijares testified, for the safety of everyone involved, he proceeded under the assumption Nash was still armed and dangerous. In order to avoid an armed confrontation, Mijares decided the use of tear gas provided the best option.

According to Customer Company, one of its employees asked officers not to fire tear gas into the store, since the gas would contaminate the store's contents. The employee stated the officer in charge laughed at him. Lt. Mijares testified he knew nothing about such a request. In addition, Mijares stated, even if he had considered the request, he would have disregarded concern over the store's inventory in view of the overriding concern with preservation of life. Mijares determined saturation of the store with tear gas was necessary to prevent Nash from avoiding the gas' affects. In Mijares experience, gas would immediately drive out a barricaded suspect.

Two and one-half hours after the stand-off began, officers fired three rounds of tear gas through the glass doors and windows in the front of the store. The officers also fired tear gas through the rear of the store, and attempted to fire canisters into the ceiling to prevent Nash's escape into the attic. The negotiator again attempted to persuade Nash to leave the store. After Nash failed to respond, officers fired more gas into the store. Officers sprayed mace into the attic vents.

Officers waited 15 minutes for the gas to permeate the building. When Nash failed to emerge, SWAT team members, outfitted with gas masks, entered the store. The SWAT team found Nash in the attic burrowed under insulation material. The officers arrested Nash without incident.

Officers fired at least 13 rounds of tear gas into the store. The store's windows and interior were damaged by the tear gas blasts, and the store was permeated by the gas. The store's inventory was disposed of as hazardous waste. The store remained closed for 11 days for cleaning and repair. Cost of clean-up exceeded $275,000, and total losses exceeded $350,000.

Customer Company filed a second amended complaint against the City and County, alleging inverse condemnation In May 1989 the City and County filed motions for summary judgment and/or summary adjudication of issues. The court denied the City's motion. The court granted the County's motion for summary adjudication as to Customer Company's cause of action for negligence, trespass, trespass to personal property, conversion and nuisance. The court ruled, as a matter of law, the County was immune under Government Code section 820.2, which provides immunity for discretionary acts of County employees. The court denied the motion as to Customer Company's cause of action for inverse condemnation and violation of civil rights, finding these claims were constitutionally based and were not affected by governmental immunity. The court stated: "... the acts of defendant CITY OF SACRAMENTO and COUNTY OF SACRAMENTO in this incident are intertwined and part of a continuum."

negligence, trespass, trespass to personal property, conversion, nuisance and violation of civil rights.

In August 1989 the City brought a second motion of summary judgment/summary adjudication of issues. The court denied the motion, except as to the issue of inverse condemnation, finding a triable issue of fact "exists as to the situation that existed June 22, 1987, at approximately 11:00 a.m. and whether it constituted a necessity and/or emergency requiring the use of tear gas at all in the amounts utilized."

The court granted the motion as to the inverse condemnation cause of action without leave to amend, and entered judgment for the City. The court stated: "The court finds that as a matter of law the actions of the police under the facts of this case and in the totality of all the circumstances was a proper exercise of the police power to protect the public health, safety and welfare."

In December 1989 the City again filed a motion for summary judgment/summary adjudication. The court granted the City's motion stating: " The court has previously found that the actions of defendant CITY were a proper exercise of police power. See ruling on summary judgment October 11, 1989. This finding by necessity includes a finding of an emergency. The presence of an emergency negates the remaining causes of action for inverse condemnation and 42 U.S. [C.] 1983 against the City." The court stated the motion was a motion for judgment on the pleadings, and entered judgment in favor of the City. The county then filed a motion for judgment on the pleadings, which the court also granted.

Customer Company filed a timely notice of appeal.

I. Standard of Review

The purpose of summary judgment procedure is to discover, through appropriate supporting and opposing papers, whether the parties possess evidence requiring the weighing...

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