Varshock v. Cal. Dep't of Forestry

• Decision Date: 29 June 2011
• Docket Number: No. D057709.,D057709.
• Court: California Court of Appeals Court of Appeals
• Parties: Dianne VARSHOCK et al., Plaintiffs and Appellants, v. CALIFORNIA DEPARTMENT OF FORESTRY AND FIRE PROTECTION, Defendant and Respondent.

194 Cal.App.4th 635

125 Cal.Rptr.3d 141

11 Cal. Daily Op. Serv. 4681

2011 Daily Journal D.A.R. 5572

Dianne VARSHOCK et al., Plaintiffs and Appellants,

v.CALIFORNIA DEPARTMENT OF FORESTRY AND FIRE PROTECTION, Defendant and Respondent.

No. D057709.

Court of Appeal, Fourth District, Division 1, California.

April 20, 2011.

Review Denied June 29, 2011.

Girardi Keese, Los Angeles, Thomas V. Girardi, Graham B. LippSmith, Neyleen S. Beljajev; Niddrie, Fish & Buchanan, Law Offices of Martin N. Buchanan and Martin N. Buchanan for Plaintiffs and Appellants.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, James M. Schiavenza, Assistant Attorney General, Kristin G. Hogue and Michael P. Cayaban, Deputy Attorneys General, for Defendant and Respondent.

IRION, J.

The question in this case is whether sovereign immunity under Government Code section 850.4 (section 850.4) “for any injury caused in fighting fires” or an exception under Vehicle Code section 17001 imposing liability for death or injury “proximately caused by a negligent or wrongful act or omission in the operation of any motor vehicle” applies when death and injury result from the use of a fire engine in an attempt to rescue persons and save a home from being destroyed by a wildfire. We conclude that section 850.4 immunity prevails over the Vehicle Code section 17001 exception where, as here, death or injury results from a firefighter's allegedly negligent operation of a motor vehicle at the scene of a fire while attempting to rescue persons from the fire and to extinguish the fire. We therefore affirm the summary judgment in favor of CaliforniaDepartment of Forestry and Fire Protection (CAL–FIRE).

IFACTUAL AND PROCEDURAL BACKGROUND

A. The Fire at the Varshocks' Property

Several wildfires burned through San Diego County in October and November 2007. One such fire was the Harris Ranch fire, which swept over more than 90,000 acres and destroyed more than 450 structures.

Thomas Varshock (now deceased) lived with his wife Dianne and their son Richard in a mobilehome on a piece of property (the Property) atop a remote ridge within the area consumed by the Harris Ranch fire.¹ When the fire approached the Property, the Varshocks evacuated. Dianne drove away first, and Thomas and Richard followed approximately five minutes later in separate vehicles.

As they were evacuating, Thomas and Richard encountered a group of firefighters. They demanded that the firefighters “do something” to save the Property.

The firefighters then proceeded in their engine towards the Property, and Thomas and Richard followed on their all-terrain vehicle (ATV). When the engine encountered thick smoke, the fire captain decided to back out to a location where he and his crew could await reinforcements. While backing out, the fire engine struck the ATV, which apparently had already broken down; Richard and Thomas got off the ATV, manually moved it to the side of the road and banged on the windows of the fire engine. Because the ATV had broken down and conditions were too dangerous to leave them outside, the fire captain told Richard and Thomas to get inside the fire engine. At that point, the fire captain saw flames behind the fire engine and believed there was a clearing at the Property, so he again proceeded toward the Property.

When they arrived at the Property, the firefighters found a shed that was ablaze and saw several small spot fires near the mobilehome which did not then appear to be on fire. The fire captain parked alongside the mobilehome, and the firefighters exited the fire engine and began spraying water on the burning shed and embers beneath the mobilehome. As the fire captain walked around the mobilehome, he heard glass breaking and saw the interior was on fire. He instructed his crew to get back into the fire engine so that they could get away from the burning mobilehome.

As the captain tried to back the fire engine away from the fire, the wind increased and directed flames across the engine. The engine “died,” and the vehicle was subjected to intense heat and surrounded by thick smoke. When the windows of the fire engine shattered and flames entered the cab, the captain instructed everyone to get out.

Thomas was unable to exit the engine and perished at the scene. Richard and the firefighters survived, but each sustained serious burn injuries.

B. The Trial Court Proceedings

After their administrative claim for damages was rejected, Dianne, Richard, and Thomas's brother and business associate, George Varshock (collectively the Varshocks), sued CAL–FIRE. In their first amended complaint, the Varshocks sought damages under five separately labeled causes of action: (1) negligence; (2) negligent entrustment; (3) negligent infliction of emotional distress; (4) negligent interference with prospective economic advantage; and (5) wrongful death.

CAL–FIRE moved for summary judgment on the ground it was entitled to immunity under section 850.4. (See Code Civ. Proc., § 437c, subds. (a), ( o ) (2).) According to CAL–FIRE, it was entitled to judgment as a matter of law because the undisputed facts showed that its employees were acting within the scope of their employment as firefighters in response to a fire when Thomas was killed and Richard was injured.

In opposition to the motion, the Varshocks did not dispute that the firefighters were responding to a fire and were acting within the scope of their employment when Thomas died and Richard was injured. They argued, however, that the Vehicle Code section 17001 exception for injuries caused by the negligent operation of a motor vehicle applied and precluded entry of summary judgment.² As part of their opposition, the Varshocks submitted the declaration of a retired fire chief, who described several ways in which he believed the fire captain had improperly operated the fire engine during the unsuccessful effort to save the Property from destruction by fire.

The trial court granted the motion on the basis of Colapinto v. County of Riverside (1991) 230 Cal.App.3d 147, 153, 281 Cal.Rptr. 191( Colapinto ), where our colleagues in Division Two held that “where the motor vehicle was used as a method to fight a fire and not in a negligent manner on the streets and highways,” the Vehicle Code section 17001 exception to section 850.4 immunity does not apply. The court subsequently entered judgment in favor of CAL–FIRE on all of the Varshocks' causes of action.

IIDISCUSSION

A. Interpretation of Section 850.4 Immunity and the Vehicle Code Section 17001 Exception

We first address the main substantive issue on this appeal—the interpretation and interplay of the language of the section 850.4 immunity and the language of the express Vehicle Code section 17001 exception to that immunity—because we must resolve that issue before we can determine whether the trial court properly granted CAL–FIRE's motion for summary judgment. The interpretation of this statutory language presents a pure question of law on which we exercise our independent judgment. ( People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 432, 101 Cal.Rptr.2d 200, 11 P.3d 956;Fourth La Costa Condominium Owners Assn. v. Seith (2008) 159 Cal.App.4th 563, 571, 71 Cal.Rptr.3d 299.)

Our primary task in interpreting a statute is to ascertain the Legislature's intent so that we may adopt an interpretation that best gives effect to the purpose of the statute. ( Klein v. United States of America (2010) 50 Cal.4th 68, 77, 112 Cal.Rptr.3d 722, 235 P.3d 42( Klein );Smith v. Superior Court (2006) 39 Cal.4th 77, 83, 45 Cal.Rptr.3d 394, 137 P.3d 218.) We examine the entire substance of a statute and the scheme of law of which it is a part to determine its scope and purpose, construe its words in context and harmonize its various parts. ( State Farm Mutual Automobile Ins. Co. v. Garamendi (2004) 32 Cal.4th 1029, 1043, 12 Cal.Rptr.3d 343, 88 P.3d 71( State Farm ); see also Mejia v. Reed (2003) 31 Cal.4th 657, 663, 3 Cal.Rptr.3d 390, 74 P.3d 166 [when provisions in two codes are blended together to form a single statute, they must be construed to give effect to each].) As we have previously stated, statutes “ ‘must be given a reasonable and common sense interpretation consistent with the apparent purpose and intention of the lawmakers, practical rather than technical in nature, which upon application will result in wise policy rather than mischief or absurdity.’ ” ( City of Poway v. City of San Diego (1991) 229 Cal.App.3d 847, 858, 280 Cal.Rptr. 368( City of Poway ); see also Leader v. Cords (2010) 182 Cal.App.4th 1588, 1596, 107 Cal.Rptr.3d 505 [statutes must be given fair and reasonable interpretation, with due regard to language used and purpose to be accomplished].)

1. Statutory Language

We begin by examining the statutory language because that is the most reliable indicator of legislative intent. ( Catlin v. Superior Court (2011) 51 Cal.4th 300, 304, 120 Cal.Rptr.3d 135, 245 P.3d 860;Pineda v. Bank of America, N.A. (2010) 50 Cal.4th 1389, 1394, 117 Cal.Rptr.3d 377, 241 P.3d 870.) We will analyze the immunity-conferring language of section 850.4 first and then turn to the language of the express exception to that immunity under Vehicle Code section 17001.

a. Immunity Language

Section 850.4 states: “ Neither a public entity, nor a public employee acting in the scope of his employment, is liable for any injury resulting from the condition of fire protection or firefighting equipment or facilities or, except as provided in Article 1 (commencing with Section 17000) of Chapter 1 of Division 9 of the Vehicle Code, for any injury caused in fighting fires.” (Italics added.) As used here, “ ‘ [i]njury’ ” includes “death, injury to a person, [and] damage to or loss of property.” (Gov.Code, §§ 810, 810.8.) The italicized language indicates several things about legislative intent.

First, by expressly relieving public entities and employees of liability for “any injury caused in...