Seibert Security Services, Inc. v. Superior Court

• Decision Date: 03 August 1993
• Docket Number: No. E012097,E012097
• Citation: 22 Cal.Rptr.2d 514,18 Cal.App.4th 394
• Court: California Court of Appeals Court of Appeals
• Parties: SEIBERT SECURITY SERVICES, INC., Petitioner, v. SUPERIOR COURT of the State of California for the County of San Bernardino, Respondent. John MIGAILO et al., Real Parties in Interest.

Page 514

22 Cal.Rptr.2d 514

18 Cal.App.4th 394

SEIBERT SECURITY SERVICES, INC., Petitioner, v. SUPERIOR COURT of the State of California for the County of San Bernardino, Respondent John MIGAILO et al., Real Parties in Interest.

No. E012097.

Court of Appeal, Fourth District, Division 2, California.

Aug. 3, 1993.

Review Denied Oct. 28, 1993.

Borton, Petrini & Conron and Daniel L. Ferguson, San Bernardino, for petitioner.

No appearance, for respondent.

Shale F. Krepack, Santa Monica, Mark, Bolson, Kuntz & Serembe and Nadine E. Betsworth, San Bernardino, for real parties in interest.

OPINION

DABNEY, Acting Presiding Justice.

Petitioner Seibert Security Services, Inc. (hereinafter "Seibert"), a defendant in the action below, seeks reversal of an order denying its motion for summary judgment and/or adjudication of issues. (Code Civ.Proc., § 437c.) Seibert's contention is that it established, as a matter of law, a complete defense in that plaintiff and real party in interest John Migailo's action is barred by the so-called "fireman's rule." We issued an alternative writ to inquire into the correctness of the trial court's ruling, and now conclude that petitioner is entitled to the relief sought. Accordingly, we grant the petition.

STATEMENT OF FACTS

The essential facts of the matter are not in dispute, leaving the issue to be resolved as essentially one of law.

At the time of his injury, Migailo was a police officer employed by intervenor (and real party) the City of San Bernardino. He had brought an arrested suspect to the San Bernardino County Hospital for examination of possible injuries. While he was there, a mental patient, defendant Raymond Shyptycki, became abusive towards a black security officer employed by Seibert, Thomas Grigsby, and a black police officer. At the time, Shyptycki was restrained in a chair; Migailo asked that he be handcuffed for greater control, but Grigsby failed to do so. Shortly thereafter, Shyptycki stood up and grabbed for Grigsby's baton, and Migailo helped subdue him.

Shyptycki was then handcuffed and put in an isolation cell, but the handcuffs were taken off because he seemed "pretty pleasant" to another Seibert employee, Timothy Leggett, who believed it was only towards black persons that Shyptycki reacted with verbal abuse and potential violence. Within fifteen minutes, however, Shyptycki attacked Leggett, who called for help. Officer Migailo responded, and was injured while subduing Shyptycki. During the struggle between Shyptycki and Migailo, Leggett dropped back and did not assist Migailo, although another Seibert employee, Sherry Staub, did continue to participate.

The trial court denied Seibert's motion on two grounds, set forth briefly in a written order: that triable issues remained as to whether Migailo's presence was "independent and unrelated to the conduct which proximately caused plaintiff's injuries," and as to whether the conduct "proximately causing the injury occurred after the defendant ... knew or should have known of the presence of the plaintiff, a peace officer ..."

I.

Procedural Issues

A.

Timeliness of the Petition

The petition was filed on January 6, 1993. As the minute order bore the notation that copies had been mailed to counsel on November 9, 1992, we requested briefing on the issue of timeliness. ¹ In response, Seibert filed declarations by counsel and counsel's secretary indicating that the notice of ruling had not been received either from the court or other counsel; it was further indicated that the court had directed plaintiff to prepare a formal order, which had similarly not been received. Although real parties attempted to cast doubt on these assertions by confirming mailing of notice and a copy of the formal ruling on December 7 (as to which the petition would also have been untimely), we deem it appropriate to resolve the conflict in favor of petitioner. It is true that adequate proof of mailing is presumptive evidence of receipt under Evidence Code section 641. However, not only did the declarations provide

                substantial direct evidence of non-receipt, but such evidence is also circumstantial evidence that notice was not mailed as claimed.  (Jenson v. Traders & General Insurance Company (1956) 141 Cal.App.2d 162, 164, 296 P.2d 434.)   While we are cognizant of the policies favoring prompt review of orders made under section 437c (see e.g. Schmidt v. Superior Court, infra at fn. 1), no party is prejudiced by our review, and we therefore proceed on the basis that real parties have failed to [18 Cal.App.4th 404] positively establish that the petition is untimely.  (See City of Sunnyvale v. Superior Court (1988) 203 Cal.App.3d 839, 846-847, 250 Cal.Rptr. 214.)
                

B. Other Procedural Matters

We may also dispose of other minor procedural issues. The City argues that the factual issues presented for summary adjudication, as an alternative to summary judgment, were "compound," or "far too broad and sweeping." Insofar as the City appears to argue that a party may not ask the court to decide complex or dispositive issues, it is simply wrong. Insofar as it asserts that the issues presented involved disputed factual matters, we agree that a court cannot grant such a motion if a dispute is shown, but if the material facts are clear the application of legal principles to resolve the case is proper. ² (Pittleman v. Pearce (1992) 6 Cal.App.4th 1436, 1441, 8 Cal.Rptr.2d 359.) While we note on our own initiative that the issues may not all be framed in compliance with Code of Civil Procedure section 437c, subdivision (f), any defects become moot because we have determined that summary judgment must be ordered in toto.

Moot also is petitioner's objection that the court's order failed to specify the evidence demonstrating issues of fact, as required by Code of Civil Procedure section 437c, subdivision (g). (See Globe Immunity Co. v. Superior Court (1992) 6 Cal.App.4th 725, 728 at fn. 1, 8 Cal.Rptr.2d 251: "Because we have decided the issues as a matter of law, remanding this matter for compliance with section 437c would serve no useful purpose.")

DISCUSSION

II.

The "Fireman's Rule" ³

The "fireman's rule" "was born almost a century ago, earning nearly unanimous acceptance." (Walters v. Sloan (1977) 20 Cal.3d 199, 202, 142 Cal.Rptr. 152, 571 P.2d 609.) Although recognizing that "[i]n recent years, the rule has been repeatedly attacked," the Walters court solidly reaffirmed its continuing viability in The classic formulation of the rule holds that "negligence in causing a fire furnishes no basis for liability to a professional fireman injured fighting the fire. Firemen, '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.' " ' " (Walters, at p. 202, 142 Cal.Rptr. 152, 571 P.2d 609 [citations omitted].)

                this jurisdiction. 4  , 5  The rule applies equally to police officers injured in the course of their duties. 6  (Ibid.;  City of Redlands v. Sorenson (1985) 176 Cal.App.3d 202, 207, 221 Cal.Rptr. 728.)
                

Although originally often framed with reference to a landowner's premises liability, the rule is fundamentally based on public policy and the nature of the relationship between the firefighter or police officer and the public. (Walters, at pp. 202-203, 142 Cal.Rptr. 152, 571 P.2d 609; see also Flowers v. Rock Creek Terrace (Md.1987) 308 Md. 432, 520 A.2d 361, 367-368.) The rule is designed with the recognition that most fires (and perhaps most crimes) are due at least in part to negligence, "and in the final analysis the policy decision is that it would be too burdensome to charge all who carelessly cause or fail to prevent fires with the injuries suffered by the expert retained with public funds to deal with those inevitable, although negligently created, occurrences." (Krauth v. Geller (1960) 31 N.J. 270, 157 A.2d 129, 130-31, quoted in Walters at p. 205, 142 Cal.Rptr. 152, 571 P.2d 609.) The undesirable consequences of a contrary rule have also been noted; the freedom from liability provided by the fireman's rule " 'permits individuals who require police or fire department assistance to summon aid without pausing to consider whether they will be held liable for consequences which, in most cases, are beyond their control.' " (Rishel v. Eastern Airlines, Inc. (Fla.App.1985) 466 So.2d 1136, 1138, quoted in Fisher v. Farrell (Fla.App.1991) 578 So.2d 407, 408-409.)

Finally, as also recognized and relied upon in Walters, police officers and firefighters receive not only salaries calculated with considerations of the risks faced, but However, salutary as the rule is recognized to be, it is subject to a number of exceptions, at least some of which are contained in Civil Code section 1714.9. ⁷ That statute abrogates the fireman's rule if "the 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." (Sub. (a)(1).) Real parties rely upon this statute, as did the trial court.

also special disability, retirement, and other benefits. (20 Cal.3d at p. 205, 142 Cal.Rptr. 152, 571 P.2d 609.)

The second express basis for the trial court's ruling was that Migailo's presence was unrelated to the negligence which caused his injury. This exception has been applied, for example, when a police officer, pursuing a suspect, is injured due to a dangerous condition on real property. (See Kocan v. Guarino (1980) 107 Cal.App.3d 291, 296, 165 Cal.Rptr. 712, in which the officer was injured when a fence collapsed.) In the same vein is the case of a firefighter who, while fighting a fire, falls through a defectively-maintained roof. (See Bartholomew v. Klinger (1975) 53 Cal.App.3d 975, 978, 126 Cal.Rptr. 191.) The rationale of these cases is that, as to the suffering of such injuries, the firefighter or police officer stands in the same posture...