Lewis v. County of Sacramento, No. C032865.

• Court: California Court of Appeals
• Writing for the Court: Scotland
• Citation: 93 Cal.App.4th 107,113 Cal.Rptr.2d 90
• Parties: Teri LEWIS et al., Plaintiffs and Appellants, v. COUNTY OF SACRAMENTO et al., Defendants and Respondents.
• Docket Number: No. C032865.
• Decision Date: 25 October 2001

113 Cal.Rptr.2d 90 93 Cal.App.4th 107 Teri LEWIS et al., Plaintiffs and Appellants,
v.
COUNTY OF SACRAMENTO et al., Defendants and Respondents. No. C032865. Court of Appeal, Third District. October 25, 2001. Review Denied January 23, 2002.

[113 Cal.Rptr.2d 93]

[93 Cal.App.4th 111]

Baum, Hedlund, Aristei, Guilford & Downey; Baum, Hedlund, Guilford & Schiavo; Paul J. Hedlund, Los Angeles, and J. Clark Aristei, for Plaintiffs and Appellants.

Porter, Scott, Weiberg & Delehant, Terence J. Cassidy and Kristina M. Hall, Sacramento, for Defendants and Respondents.

SCOTLAND, P.J.

Vehicle Code section 17004.7 (hereafter section 17004.7) provides that, when a law enforcement agency adopts a written policy on vehicular pursuits which complies with statutory requirements, the agency is

113 Cal.Rptr.2d 94

immune from liability for civil damages "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."

In this wrongful death action brought by Teri and Thomas Lewis (plaintiffs), representatives of the estate of their son, Philip Lewis (Lewis), plaintiffs appeal from the judgment entered in favor of the County of Sacramento and the Sacramento County Sheriffs Department (defendants). Lewis, the passenger on a motorcycle being pursued by peace officers employed by defendants, was killed during the pursuit when he jumped off or fell off of the motorcycle as it crashed to the ground and he was struck by the pursuing patrol car. The trial court entered judgment for defendants, finding that the action is barred by the statutory immunity set forth in section 17004.7.

93 Cal.App.4th 112

According to plaintiffs, immunity does not apply because Lewis's fatal injuries were caused by his being struck by a peace officer's vehicle, not by a collision of a vehicle operated by a suspected criminal being pursued by a peace officer. We disagree. As we will explain, when the fleeing suspect's motorcycle crashed to the ground during the pursuit, it was involved in a "collision" within the meaning of the immunity statute. Under the plain meaning of the statute, when, as in this case, a vehicle being driven by a pursuing peace officer hits and kills a person who is involved in an collision of the suspect's vehicle in the path of the officer's vehicle, this constitutes a death "resulting from the collision" of the fleeing suspect's vehicle.

Hence, the trial court correctly concluded that section 17004.7 immunity applies, and we shall affirm the judgment.

FACTS AND PROCEDURAL HISTORY A

Neither party has provided an adequate statement of the facts.

Plaintiffs simply recite the facts as set forth by the United States Court of Appeals, Ninth Circuit, in a related federal case involving a claim under 42 U.S.C. section 1983 for a violation of Lewis's federal civil rights. (Lewis v. Sacramento County (9th Cir.1996) 98 F.3d 434, revd. County of Sacramento v. Lewis (1998), 118 S.Ct. 1708, 523 U.S. 833, 140 L.Ed.2d 1043.) However, because we are reviewing a motion for summary judgment, the relevant facts are limited to those set forth in the parties' statements of undisputed facts, supported by affidavits and declarations, filed in support of and opposition to the motion in the present case, to the extent those facts have evidentiary support. (Lyons v. Security Pacific Nat. Bank (1995) 40 Cal.App.4th 1001, 1006-1007, 48 Cal.Rptr.2d 174; North Coast Business Park v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 30, 21 Cal. Rptr.2d 104.) Facts not contained in the separate statements do not exist. (North Coast Business Park v. Nielsen Construction Co., supra, 17 Cal.App.4th at p. 31, 21 Cal.Rptr.2d 104.) Furthermore, the facts recited by the Court of Appeals, Ninth Circuit, are irrelevant because plaintiffs have not established that the evidence presented to the federal court was identical to that presented in the present case, or that the same factual issues were litigated such that the Ninth Circuit's factual "findings" are binding. The Ninth Circuit declined to rule on the potential liability of defendants under state law, dismissing the tort claims against defendants without prejudice to refiling the claims in state court. (County of Sacramento v. Lewis, supra, 523 U.S. at p.

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837, fn. 1, 118 S.Ct. 1708, 140 L.Ed.2d at p. 1052, fn. 1.)

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Defendants point out plaintiffs' omission, but are equally remiss themselves. They set forth nine and a half pages of facts without any citation to the record, other than a footnote noting their statement of facts is based upon their summary judgment motion, followed by a citation to more than 200 pages of the record wherein the motion may be found. This is grossly inadequate and violates established rules of appellate procedure, which require that all assertions of fact be supported by citations to the record. (Cal. Rules of Court, rules 13, 15.) This requirement is not satisfied by one citation to more than 200 pages of the record following several pages of facts. (Bernard v. Hartford Fire Ins. Co. (1991) 226 Cal.App.3d 1203, 1205, 277 Cal.Rptr. 401.)

Despite their own deficient statement of the facts, plaintiffs have the chutzpah to complain about, and ask us to strike, defendants' statement of facts. We were tempted to strike both parties' briefs (Cal. Rules of Court, rule 18) and compel them to start over. But rather than further delay the resolution of this appeal, we have decided to deny the request to strike. Instead, we will simply disregard the defects in both parties' briefs. (Ibid.)

We note, however, that defective statements of fact appear too frequently in appellate briefs. Counsel are forewarned that our benevolence in disregarding such defects is wearing thin, and that resort to sanctions in rule 18 of the California Rules of Court is a genuine risk counsel face when failing to provide this court with a statement of facts that complies with the rules. (Effective January 1, 2002, California Rules of Court, rule 18 is amended and renumbered as rule 14(e).) Aside from the threat of sanctions, it behooves counsel to comply with the rules in order to be better advocates for their clients. We are a busy court which "cannot be expected to search through a voluminous record to discover evidence on a point raised by [a party] when his brief makes no reference to the pages where the evidence on the point can be found in the record." (Metzenbaum v. Metzenbaum (1950) 96 Cal.App.2d 197, 199, 214 P.2d 603; see Duarte v. Chino Community Hospital (1999) 72 Cal. App.4th 849, 856, 85 Cal.Rptr.2d 521 ["`It is the duty of a party to support the arguments in its briefs by appropriate reference to the record, which includes providing exact page citations'"]; Estate of Hoffman (1963) 213 Cal.App.2d 635, 639, 29 Cal.Rptr. 60 [an appellate court is "not obliged to perform the duty resting on counsel"].)

Accordingly, appellate counsel should be vigilant in providing us with effective assistance in ferreting out all of the operative facts that affect the resolution of issues tendered on appeal. They can accomplish this only by summarizing all of the operative facts, not just those favorable to their clients (see Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881, 92

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Cal.Rptr. 162, 479 P.2d 362), and by providing exact record page citations for each fact cited by counsel (Bernard v. Hartford Fire Ins. Co., supra, 226 Cal. App.3d at p. 1205, 277 Cal.Rptr. 401).

B

Without much help from the parties, we summarize the facts and procedural history as follows:

After responding to a call regarding a fight, law enforcement officers James Smith and Murray Stapp saw two men on a motorcycle. Brian Willard was driving, and Lewis was the passenger. Subsequent events, which to some extent are disputed factually but are not relevant to

113 Cal.Rptr.2d 96

the issue on appeal, led the officers to engage in a high-speed pursuit of the motorcycle. The pursuit, which lasted less than one and one-half minutes, ended at the intersection of Chestnut Avenue and Orangevale Avenue.

There is a crest in the roadway on Chestnut Avenue just before the intersection. As Officer Smith drove over the crest, he saw the motorcycle either stopping or attempting to negotiate a left turn onto Orangevale Avenue. The back tire began to skid, and the motorcycle started to go down. It appeared that the motorcycle suddenly stopped, crashing or going down on its left side.¹ Willard jumped or fell off the motorcycle. Lewis also appeared to jump or fall backward.

Lewis and the motorcycle were on the ground or almost on the ground when Officer Smith heard a thud over the sound of the siren.² The patrol car hit Lewis and propelled him into the air, whereupon he hit the road several times and suffered fatal injuries. It is not clear whether the patrol car ever collided with the motorcycle and, if so, whether it did so before or after it hit Lewis, or simultaneously. It is undisputed that the motorcycle went down without any force or intervention by Officer Smith.

93 Cal.App.4th 115

According to defendants, the pursuit was conducted pursuant to a Sacramento County Sheriffs Department General Order pertaining to pursuits, and the General Order met the statutory requirements of section 17004.7.

Defendants moved for summary judgment on two grounds: (1) they were not negligent as a matter of law; and (2) they were entitled to immunity pursuant to section 17004.7, which shields a public entity from liability for injuries or death resulting from the collision of a vehicle operated by a person who is being pursued by a peace officer employed by the public entity. According to defendants, the motorcycle crashed to the ground as its driver, Willard, attempted to make a left turn, and this collision with the...