Stephanie Koussaya v. City of Stockton

Stockton, CA - Criminal Defense, Bank Robbery











Stephanie Koussaya was taken hostage, along with two other women, by three

armed bank robbers, Alex Martinez, Jaime Ramos, and Gilbert Renteria, Jr. Used as

human shields in order to facilitate the robbers’ escape from the bank, the hostages were

forced into a Ford Explorer belonging to one of the hostages, Kelly Huber. A high-speed

chase with law enforcement followed. For Huber, the chase ended abruptly when she

was pushed out of the vehicle after Ramos shot her in the leg, apparently by mistake. For

Koussaya and the other hostage, Misty Holt-Singh, the pursuit lasted for more than an

hour, reaching speeds of over 100 miles per hour, and included exchanges of gunfire

between Martinez, who was firing an AK-47 assault rifle out of the back of the Explorer,

and two Stockton Police Department (SPD) officers, Captain Douglas Anderson and

Officer Edward Webb. The details of the chase will be set forth more fully later in this

opinion. For present purposes, we note Koussaya ultimately decided her best chance at

surviving the ordeal was to open one of the rear side doors and throw herself from the

moving vehicle. As Koussaya explained, having already heard multiple rounds hit the

Explorer during the pursuit, she believed that if she did not jump from the vehicle she

would be killed by the special weapons and tactics (SWAT) team when the chase

inevitably came to an end. Minutes after Koussaya’s escape, the chase did come to an

end, at which point police officers fired several hundred rounds into the Explorer, killing

two of the robbers and the remaining hostage.

Having sustained serious injuries during her escape from the Explorer, Koussaya

sued the City of Stockton and its police department (collectively, the City), as well as

Captain Anderson and Officer Webb (officer defendants), asserting causes of action for

assault and battery, intentional infliction of emotional distress (IIED), and general

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negligence.1 The City and officer defendants filed separate motions for summary

judgment. The trial court granted the motions and entered judgment in favor of

defendants. Koussaya appeals.

We affirm. As we explain, although the trial court abused its discretion in ruling

on an evidentiary matter and also misapplied the Government Claims Act (Gov. Code,

§ 810 et seq.)2 to improperly limit the scope of Koussaya’s claims, taking into account

the improperly excluded evidence and properly viewing the factual basis of her claims

against the officer defendants and the City, we conclude each defendant was entitled to

judgment as a matter of law.

BACKGROUND

In accordance with the standard of review, we recite the facts in a light favorable

to Koussaya as the losing party. (See Saelzler v. Advanced Group 400 (2001) 25 Cal.4th

763, 768.)

Bank Robbery and Initial Pursuit

In July 2014, Koussaya worked as a bank teller at a Bank of the West location in

Stockton. The bank was situated between three major roads that came together to form a

triangle, Hammer Lane, Thornton Road, and Lower Sacramento Road. On July 16, three

armed men, Martinez, Ramos, and Renteria, robbed the bank. Another bank employee

activated a silent alarm upon their arrival.

Officer Darren Sandoval was on patrol not far from the bank when he heard

dispatch notify another nearby officer, Officer Denise Egan, about the robbery in

progress. Sandoval self-deployed to the bank, activating his patrol car’s emergency lights

1 Koussaya initially named other SPD officers as defendants, but voluntarily

dismissed the lawsuit against them because they did not fire upon the Explorer while

Koussaya was still a passenger therein.

2 Undesignated statutory references are to the Government Code.

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and siren until he was about a quarter-mile from the bank, at which point he turned off

the siren but kept the emergency lights activated. Sandoval was the second officer to

arrive at the bank. As he approached, he heard Officer Egan notify dispatch there were

three suspects inside the bank. Sandoval pulled into the bank parking lot from Lower

Sacramento Road and parked his patrol car in front of the bank. He correctly assumed

Egan was located on the Thornton Road side of the bank and intended to assist in setting

up a perimeter.

At least three additional SPD officers also responded to the bank. Two joined

Officer Egan blocking the exit onto Thornton Road. One of these officers, Officer

Anisko, traveled to the bank with emergency lights and siren, but deactivated the siren

when he approached the bank. Egan activated only her emergency lights and positioned

her patrol car to block the main exit onto Thornton Road. The third, Officer Zavala,

joined Officer Sandoval on the Lower Sacramento Road side of the bank, blocking that

exit. No one blocked the drive-through ATM exit.

As Officer Sandoval got out of his patrol car and positioned himself next to his

driver’s side front tire in front of the bank, he noticed an elderly man walking through the

parking lot and warned him away from the bank. Sandoval then saw the three robbers

exiting the bank with a hostage, Huber. One of the robbers held Huber by the arm from

behind and held a handgun to her chin; the other two followed in a triangle formation.

Sandoval pointed his service pistol at the lead robber and issued several commands for

the robbers to stop, put their weapons down, and get down on the ground. After some

momentary hesitation, the robbers retreated back into the bank with Huber.

Officer Sandoval holstered his handgun and ran to the trunk of his patrol car to

retrieve a rifle while updating dispatch about the situation. As he started to position

himself with the rifle behind a tree near his vehicle, the robbers again emerged from the

bank, this time with three hostages, Huber, Koussaya, and Holt-Singh. Abandoning his

position behind the tree and again taking aim at the lead robber with his service pistol,

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Sandoval issued several more commands for the robbers to stop and threatened to “blow

their heads off.” These commands were ignored. The robbers moved slowly towards

Sandoval with the hostages and ultimately moved past him, making their way to Huber’s

Ford Explorer.

Inside the Explorer, Huber got behind the wheel and was ordered to drive. She did

so, exiting the parking lot via the drive-through ATM lane and turning north onto

Thornton Road. Officer Sandoval ran to his patrol car and followed in pursuit, as did

other police units. Less than a minute into the pursuit, one of the robbers, Ramos, shot

Huber in the leg, apparently by mistake. The Explorer then slowed and Huber was

pushed out of the vehicle. Ramos’s cohort, Renteria, got behind the wheel and the chase

continued.

Officer Sandoval was directly behind the Explorer as they approached Davis Road

less than a mile from the bank. The Explorer’s back window shattered in front of him as

the third robber, Martinez, fired a barrage of bullets from an AK-47 assault rifle out of

the back of the SUV. Multiple rounds hit Sandoval’s front tires and grille, disabling his

steering and ending his participation in the pursuit.

Overview of the Remainder of the Pursuit

The pursuit would continue for more than an hour, reaching speeds of over 100

miles per hour, traversing about 60 miles back and forth between Stockton and Lodi, and

involving over 30 police cars. After Officer Sandoval’s vehicle was disabled, other

police cars took its place as the lead pursuer. One by one, these vehicles were either

disabled by additional rounds fired out of the back of the Explorer or fell back to avoid

taking further gunfire.

SPD commanders monitored the pursuit through radio traffic and were able to

view segments of the pursuit through the City’s traffic camera system. Their main

objective was to get the SWAT team to the front of the pursuit to find a tactical means of

disabling the Explorer. The number of police vehicles involved in the pursuit made this

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difficult. So did SPD’s lack of air support. Eventually, however, a San Joaquin County

Sheriff’s Department aircraft arrived to provide air support for the pursuing officers on

the ground.

Lieutenant Ivan Rose was given tactical command of the pursuit. However, this

information was not clearly communicated to the officers engaged in the pursuit,

including Rose apparently, who testified in his deposition that Lieutenant Ridenour was

in command of the pursuit. Other officers also had different understandings with respect

to who was in charge. For example, one of the SWAT sergeants believed Lieutenant

Pickens was in command. At one point during the pursuit, Ridenour and Pickens gave

conflicting orders with respect to whether or not to put down a spike strip to attempt to

disable the Explorer. The spike strip was not deployed. At another point, Ridenour

ordered officers not to shoot at or ram the Explorer. However, Rose understood this

order to not apply to the SWAT team and thereafter unsuccessfully tried to ram the

Explorer with the SWAT team’s armored vehicle. Another SWAT sergeant testified: “I

don’t believe there was one specific person that had tactical control of this.”

At different times during the pursuit, two SPD officers, Captain Anderson and

Officer Webb, fired at Martinez in the back of the Explorer. We recount the details of

these officers’ participation in the pursuit immediately below.

Captain Anderson’s Participation in the Pursuit

Captain Anderson was at SPD headquarters when he was informed about the bank

robbery and ongoing police pursuit. He was tasked with assisting in the investigation at

the bank and left in an unmarked police car to do so. Anderson took Highway 99 north

towards Hammer Lane on his way to the bank, but heard over the radio that the pursuit

was further north on Highway 99 and heading south. Rather than go to the bank,

Anderson decided to continue past Hammer Lane and exit the freeway at Morada Lane in

case the robbers decided to use that exit as an “escape route.”

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Captain Anderson parked his car along the southbound onramp and waited for the

pursuit to reach him. From this location, he had a clear view of the offramp the Explorer

would take if it exited the freeway. As Anderson suspected, the Explorer took the exit.

According to Anderson’s deposition testimony, it appeared as though the Explorer

stopped on the offramp. He also saw Martinez lean his body out of the back of the SUV,

“brace[] himself on the tailgate section and put the AK-47 out towards the -- whatever

would be coming around that corner next off the offramp.” Fearing the robbers were

attempting to set an ambush for the pursuing police vehicles, Anderson took aim at

Martinez with his service pistol and fired three rounds. In response, Martinez began

“firing indiscriminately” and then started to withdraw back into the SUV as the vehicle

continued forward. Anderson fired two more rounds as Martinez withdrew into the

Explorer.

The Explorer then drove around a car that was ahead of it on the offramp,

followed by the pursuing officers. Officer Zavala was the lead pursuer at this point in the

pursuit. His patrol car was struck by three rounds fired by Martinez. Like Captain

Anderson, Zavala also testified during his deposition that the Explorer stopped on the

offramp. However, as Zavala acknowledged during his deposition testimony,

surveillance video capturing the shooting did not depict the Explorer stopping on the

offramp.

At the time Captain Anderson fired at Martinez in the back of the Explorer, he was

aware of a general order issued by the SPD regarding situations in which officers are

prohibited from firing at moving or fleeing vehicles.

3 He did not believe that general

order applied to this situation, however, because he was firing at Martinez, rather than the

Explorer itself, in an attempt to stop Martinez from firing at the pursuing officers.

3 The contents of this and other relevant SPD general orders will be set forth later in

the opinion.

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Anderson was also aware of Lieutenant Ridenour’s specific order, broadcast over the

police radio, not to shoot at the Explorer, but believed that was “just a heads-up” to “keep

in mind there’s hostages in there.” Anderson believed the circumstances demanded the

action he took in shooting at Martinez regardless of the presence of hostages in the

vehicle.

Officer Webb’s Participation in the Pursuit

Officer Webb was involved in K-9 training at the San Joaquin County Fairgrounds

when the bank robbery occurred. Webb self-deployed to the pursuit and monitored its

location over the radio. By the time he caught up to the pursuit, it had been going for

about 30 minutes.

The Explorer was heading north on Interstate 5 (I-5) near the Highway 12 exit in

Lodi when Officer Webb first saw the fleeing vehicle. Webb was located at that exit

waiting to see where the robbers went from there. When the Explorer exited the freeway

and then got back onto I-5 heading south, Webb managed to pull in behind it as the lead

pursuer.

Officer Webb followed the Explorer south on I-5 back to Stockton and was twice

told by air support: “Back off, you’re getting too close.” Webb briefly lost sight of the

Explorer as it took the exit at Benjamin Holt Drive; his patrol vehicle began taking

gunfire on the exit ramp as he followed in pursuit. Webb believed the robbers had set an

ambush for him there. He quickly pulled his car to the right and stopped, got out of the

car, and pulled out his service pistol. Using the driver’s side door to take aim, Webb

fired two rounds at Martinez from a distance of about 150 feet. The Explorer then

continued forward and made a left turn onto Benjamin Holt Drive. Webb got back into

his car and followed but was no longer the lead pursuer.

At the time Officer Webb fired, he was unaware of the general order noted above

and did not hear Lieutenant Ridenour’s specific order not to shoot at the Explorer.

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However, he believed he was justified in firing at Martinez because he was taking fire on

the off ramp and returning fire in self-defense.

Koussaya’s Escape From the Explorer

When Koussaya became aware of the SWAT team’s participation in the pursuit,

she decided her best chance of survival was to throw herself out of the moving Explorer.

She did so on Portola Avenue, about two miles from where Officer Webb fired at the

Explorer. As Koussaya explained during her deposition, having heard multiple rounds hit

the Explorer, she believed that if she did not jump from the vehicle she would be killed

by the SWAT team when the chase inevitably came to an end. The Explorer was moving

at a high rate of speed when Koussaya jumped. She sustained serious injuries as her

body was flung across the roadway “like a rag doll.”

Minutes after Koussaya’s escape, the chase did come to an end, at which point

police officers fired several hundred rounds into the Explorer, killing two of the robbers,

Martinez and Renteria, and the remaining hostage, Holt-Singh.

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Koussaya’s Lawsuit

Koussaya sued the City and officer defendants asserting three causes of action: (1)

assault and battery; (2) IIED; and (3) general negligence. Because the operative

complaint delimits the scope of the issues cognizable in this appeal, we describe it in

some detail. (See FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381

[“ ‘function of the pleadings in a motion for summary judgment is to delimit the scope of

the issues’ ”].)

After setting forth the facts of the robbery, the police response at the bank, the

ensuing pursuit, and Koussaya’s escape from the Explorer, the complaint alleges “the

4 Ramos survived the assault on the Explorer, pleaded guilty to first degree murder

under a felony-murder theory, and is currently incarcerated at Pelican Bay State Prison.

(See People v. Ramos (Nov. 7, 2018, C084516) [nonpub. opn.].)

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hostage situation would not have arisen if the defendants, and each of them, had followed

their own armed robbery protocols and general orders.” The complaint alleges: “Had the

police followed general orders and proper protocol and remained inconspicuous until the

robbers were away from the innocent victims, none of the victims would have been taken

hostage and made to suffer the physical, emotional and permanent harms sustained as

alleged more particularly below.” “Instead,” the complaint continues, “hostages were

taken, one hostage was killed by the police, another victim was shot in her right leg and

[Koussaya] was compelled to jump out of a moving car because of the police pursuit and

bullets being shot into the car by the defendants.” The complaint alleges Koussaya’s

injuries, set forth in greater detail later in the complaint, “were a direct and foreseeable

harm resulting from defendants’ failure to exercise the duty of care owed to [her], by both

their intentional use of deadly and excessive force and in the use of deadly weapons in

attempting to pursue the vehicle [she] was known to be in.”

The complaint additionally alleges the City, “by and through its supervisory

employees and agents,” breached “a mandatory duty of care to properly and adequately

hire, train, retrain, supervise, and discipline its police officers . . . so as to avoid

unreasonable risk of harm.” The alleged breach occurred when the City and its police

officers “failed to take necessary, proper, and/or adequate measures to prevent the

violation of [Koussaya’s] rights and violated general orders and standard bank robbery

procedures in their response to the robbery and pursuit of the robbers.” The complaint

continues: “The lack of supervisorial training demonstrates the existence of a formal or

an informal custom, policy or practice of promoting, tolerating, and/or ratifying with

deliberate indifference the continued use of deadly and excessive force against suspects,

detainees and in particular, [Koussaya], by the defendants, and each of them.”5

5 The complaint also faults SPD for failing to adequately investigate a previous

robbery committed by two of the robbers at the same bank, resulting in these robbers

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After reciting various procedural matters pertaining to Koussaya’s compliance

with the Government Claims Act and describing a stipulation entered into between the

City and Koussaya in the federal bankruptcy court regarding Koussaya’s ability to

proceed with this lawsuit notwithstanding the City’s 2013 bankruptcy, the complaint lists

the three causes of action: “Assault and Battery,” “Intentional Infliction of Emotional

Distress,” and “General Negligence.” Under each cause of action, the complaint

incorporates all of the foregoing paragraphs of the complaint by reference and alleges the

defendants’ “above-described conduct constituted assault and battery” and “intentional

infliction of emotional distress,” and their “above-described [conduct] and/or omissions

were negligent and careless in violation [of] both state and federal laws and otherwise

breached duties of reasonable care.”

Summary Judgment Motions

The City and officer defendants filed separate motions for summary judgment.

The City argued the claim Koussaya filed with the City under the Government Claims

Act specifically listed only the police response at the bank and officers shooting at the

fleeing Explorer as the basis for her claims of tort liability, and therefore additional

conduct alleged in the complaint, such as “any wrongdoing, other than shooting, related

to pursuing the robbers” or “insufficient officer training or supervision in any regard,” are

not properly preserved for adjudication. The City also argued immunity from direct

liability for negligent training or supervision of its officers because Koussaya did not

allege any statute or regulation imposing a duty on the City to protect her from being

taken hostage or incurring injury during the high-speed pursuit that followed.

With respect to the City’s vicarious liability based on the officers’ response at the

bank, the City first argued Officer Sandoval’s attempt to arrest the robbers when they

repeating “virtually the exact same crime at the same location . . . without fear of being

caught.” However, this ground of alleged liability has been abandoned and we mention it

no further.

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initially emerged from the bank with Huber could not support liability for assault, battery,

or IIED for several reasons: (1) Sandoval had probable cause to arrest the robbers at that

point in time and legal authority to threaten deadly force in an attempt to do so; (2)

Sandoval’s threatened use of force complied with federal constitutional standards; (3)

Koussaya was not present when the arrest attempt occurred and therefore could not have

feared harmful bodily contact or been offended by the officer’s attempt to arrest the

robbers and free Huber; (4) Sandoval’s arrest attempt did not result in any contact with

Koussaya at all; (5) far from being “ ‘extreme and outrageous,’ ” Sandoval’s attempt to

arrest the robbers was laudable; and (6) the arrest attempt was “statutorily-authorized and

thus privileged.”

Turning to Koussaya’s vicarious negligence claim based on the police response at

the bank, the City argued: (1) the responding officers owed no duty to protect Koussaya

from being taken hostage; (2) even if a general duty of reasonable care arose because

their conduct increased the risk of peril to Koussaya, that conduct did not amount to a

breach of the standard of care; and (3) discretionary immunity under section 820.2

applied to shield the officers from liability.

With respect to vicarious liability based on the officers’ conduct during the

pursuit, the City again argued Koussaya did not preserve any pursuit-related claim except

as relating to the officers who shot at the Explorer. However, assuming other pursuitrelated conduct could be used to support tort liability, the City argued: (1) the officers

who joined in the pursuit owed no duty to refrain from doing so; (2) the officers’

respective decisions to join in the pursuit were reasonable; and (3) even if certain officers

engaged in unreasonable conduct during the pursuit, “those officers are immune from all

pursuit-related liability” under Vehicle Code section 17004.

Finally, turning to Koussaya’s vicarious claims against the City based on Captain

Anderson and Officer Webb firing at the Explorer during the pursuit, the City argued: (1)

the trial court should grant the officer defendants’ separate motion for summary judgment

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for the reasons argued therein; and (2) in the alternative, section 845.8, subdivision (b)(3)

provides “immunity against liability for injury caused by a person fleeing, or resisting,

arrest” and Koussaya’s injuries were caused by the robbers’ resistance to and flight from

the officers who were lawfully attempting to take them into custody following the bank

robbery.

As mentioned, the officer defendants filed a separate motion for summary

judgment. Relying primarily on Lopez v. City of Los Angeles (2011) 196 Cal.App.4th

675 (Lopez), they argued the following undisputed facts established the reasonableness of

their respective decisions to fire upon Martinez in the back of the Explorer: “At the times

Webb and Anderson shot at Martinez, each officer encountered the same essential

situation: persons who the officer believed had committed multiple violent felonies

(armed robbery, kidnapping, carjacking, assault with a deadly weapon, and attempted

murder) were fleeing from arrest, plus Martinez was shooting at that officer (Webb) or

visibly preparing to shoot at other officers (Anderson) in public areas with nearby citizen

motorists. Each officer knew that the suspects had already shot and ejected one hostage

(Huber) and had fired multiple times at other officers. Accordingly, deploying deadly

force against Martinez to stop his further attack was both legally authorized and

reasonable, despite the risks posed to the hostages seated nearby.” With respect to the

manner of shooting, the officer defendants argued “neither Webb nor Anderson allegedly

or actually aimed at Koussaya, nor fired an excessive number of shots,” and “[e]ach

officer ceased firing after the immediate threat posed by Martinez subsided (albeit only

temporarily).”

The officer defendants then addressed a line of authority holding that preshooting

conduct may be considered, as part of the totality of circumstances, in determining the

reasonableness of the shooting itself (see, e.g., Hayes v. County of San Diego (2013) 57

Cal.4th 622 (Hayes); Munoz v. Olin (1979) 24 Cal.3d 629 (Olin); Grudt v. City of Los

Angeles (1970) 2 Cal.3d 575 (Grudt)), and argued these decisions did not support

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Koussaya’s contention that the allegedly unreasonable conduct of the officers who

responded to the bank created the need for Webb and Anderson to later shoot at Martinez,

“thus rendering those shootings unreasonable.”

Finally, the officer defendants also argued: (1) Koussaya did not preserve any

claim based on their pursuit of the robbers, other than shooting at Martinez, and even if

she did, Anderson never pursued the robbers and Webb lacked a duty to refrain from

doing so; (2) any pursuit-related liability is precluded by both section 820.2 and Vehicle

Code section 17004; and (3) section 845.8, subdivision (b)(3) also provided them with

immunity from liability because Koussaya’s injuries were caused by the robbers’ violent

resistance to and flight from the pursuing officers.

Koussaya’s Opposition to the Motions

Koussaya opposed the motions. In response to the City’s motion, Koussaya

disclaimed any attempt to hold the City directly liable on a negligent training or

supervision theory, but argued all vicarious liability claims based on the entirety of the

officers’ conduct, including their response to the bank, pursuit of the robbers, and

shooting at the Explorer with hostages in the vehicle, were adequately preserved for

adjudication. With respect to those claims, Koussaya argued disputes of material fact

existed precluding the trial court from granting the City’s motion. Taking issue with the

City’s analysis dividing her claims into separate distinct actions undertaken by police,

i.e., the response to the bank, the pursuit, and the shootings, Koussaya argued the entirety

of the officers’ conduct should be analyzed as “a continuing and escalating series of

events that resulted in Koussaya being forced to throw herself out of a speeding car to

avoid being killed by the police.” Relying on the case law noted above, Koussaya argued

disputes of material fact existed with respect to whether or not the City’s officers

breached their duty to exercise reasonable care throughout these events, the totality of

which included the use of deadly force and resulted in Koussaya leaping from the moving

Explorer and sustaining serious injuries.

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As evidence of the officers’ breach of the standard of reasonable care, Koussaya

relied on four SPD general orders governing responding to robbery alarms, engaging in

vehicle pursuits, use of firearms, and responding to an active shooter situation.6

Koussaya also relied on certain findings contained in an after-incident report published

by the Police Foundation, including that organization’s conclusion that the “lack of

planning, along with the number of officers involved, created a level of chaos that was

difficult to manage and overcome,” noting the City’s police chief, Eric Jones, “adopted

its findings as accurate.”

Koussaya further relied on a declaration submitted by Roger Clark, a retired

lieutenant with the Los Angeles County Sheriff’s Department, who offered an expert

opinion that both Captain Anderson and Officer Webb acted unreasonably in firing at

Martinez in the back of the Explorer with hostages in the vehicle. Finally, Koussaya

argued a material factual dispute existed with respect to whether these officers were the

only SPD officers who fired at the Explorer while she was in the vehicle, pointing out

that she testified in her deposition to hearing 15 to 20 rounds hit the Explorer and the

shots fired by Anderson and Webb accounted for only seven rounds.

In response to the officer defendants’ motion, Koussaya again argued material

factual disputes existed with respect to whether or not Captain Anderson and Officer

Webb acted reasonably in firing at Martinez with hostages in the Explorer, the result of

which was Koussaya leaping from the vehicle and sustaining serious injuries. In addition

to the general orders governing vehicle pursuits and use of firearms, Koussaya relied on

Lieutenant Ridenour’s specific order not to shoot at the Explorer, arguing these orders are

evidence of the applicable standard of care and the officer defendants breached that

standard of care when they disregarded the orders and fired at Martinez. She also again

6 Relevant portions of these general orders will be set forth in the discussion portion

of this opinion.

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relied on her expert’s declaration opining that Anderson and Webb acted unreasonably in

doing so. Koussaya argued these material factual disputes prevented the trial court from

granting summary judgment with respect to not only her negligence claim, but also her

intentional tort claims.

Finally, Koussaya argued the officer defendants were not entitled to “fleeing

suspect” immunity under section 845.8, subdivision (b)(3), because her injuries were not

caused by the fleeing robbers, but were rather caused by her jumping from the moving

Explorer in order to avoid being killed by bullets fired by the police.

The Trial Court’s Rulings

The trial court granted the summary judgment motions.

After ruling in the City’s favor with respect to two preliminary matters, both of

which we describe more fully in the discussion portion of the opinion, the trial court

addressed Koussaya’s first cause of action for assault and battery, setting forth the

elements of these separate torts and noting that law enforcement may use reasonable

force to make an arrest, prevent a suspect’s escape, or overcome resistance. The trial

court also explained section 820.2 immunizes an officer from all tort liability for

discretionary decisions, such as the decision to make an arrest, but not ministerial actions,

such as using excessive force in making the arrest. The trial court then followed the

City’s lead in dividing the officers’ conduct into three categories, “(1) conduct of officers

responding to the bank robbery, (2) conduct during the ensuing pursuit, and (3) conduct

of officers who fired on the vehicle during the pursuit,” and concluded as a matter of law

that none of this conduct supported liability for assault or battery.

Turning to Koussaya’s negligence claim, the trial court acknowledged that SPD

general orders are relevant to the question of whether an officer’s conduct has breached

the standard of reasonable care, but concluded as a matter of law that the officers’

conduct in the three categories noted above was either reasonable because the officers

had “probable cause to believe the [robbers] pose[d] a significant danger to the safety of

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the officer or others,” or the officers “were acting within their discretion and are thus

immune from liability.” Finally, addressing Koussaya’s IIED claim, the trial court

concluded as a matter of law that none of the officers “engaged in any ‘outrageous’

conduct, or acted with intent or reckless disregard for the likelihood of causing emotional

distress.”

With respect to the officer defendants’ motion, the trial court reached the same

conclusions for the same reasons, but more specifically addressed the reasonableness of

these officers’ conduct during the two shooting incidents. Relying on Hernandez v. City

of Pomona (2009) 46 Cal.4th 501 (Hernandez), Lopez, supra, 196 Cal.App.4th 675, and

Brown v. Ransweiler (2009) 171 Cal.App.4th 516 (Brown), the trial court explained: “In

this case, the undisputed evidence shows that at all times relevant to this case, [officer

defendants] had probable cause to believe the robbers posed an imminent threat to the

safety of the hostages, fellow officers, and the public. The robbers were armed, had

taken hostages, had already shot one hostage, and were shooting at police during a highspeed pursuit through residential areas. All of the evidence shows [officer defendants]

had every reason to believe the robbers would continue to harm hostages and endanger

the public if they failed to take action. As in Brown, Hernandez, and Lopez, under the

totality of the circumstances in this case, [officer defendants’] conduct was reasonable as

a matter of law.”

Judgment was thereafter entered in favor of all defendants. This appeal followed.

DISCUSSION

I

Summary Judgment Principles

We begin by summarizing several principles that govern the grant and review of

summary judgment motions under section 437c of the Code of Civil Procedure.

“A defendant’s motion for summary judgment should be granted if no triable issue

exists as to any material fact and the defendant is entitled to a judgment as a matter of

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law. [Citation.] The burden of persuasion remains with the party moving for summary

judgment. [Citation.]” (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th

990, 1002-1003 (Kahn); Code Civ. Proc., § 437c, subd. (c).) Thus, a defendant moving

for summary judgment “bears the burden of persuasion that ‘one or more elements of’ the

‘cause of action’ in question ‘cannot be established,’ or that ‘there is a complete defense’

thereto. [Citation.]” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; Code

Civ. Proc., § 437c, subd. (o).) Such a defendant also “bears the initial burden of

production to make a prima facie showing that no triable issue of material fact exists.

Once the initial burden of production is met, the burden shifts to [plaintiff] to

demonstrate the existence of a triable issue of material fact.” (Laabs v. City of Victorville

(2008) 163 Cal.App.4th 1242, 1250.)

On appeal from the entry of summary judgment, “[w]e review the record and the

determination of the trial court de novo.” (Kahn, supra, 31 Cal.4th at p. 1003.) “While

we must liberally construe plaintiff’s showing and resolve any doubts about the propriety

of a summary judgment in plaintiff’s favor, plaintiff’s evidence remains subject to careful

scrutiny. [Citation.] We can find a triable issue of material fact ‘if, and only if, the

evidence would allow a reasonable trier of fact to find the underlying fact in favor of the

party opposing the motion in accordance with the applicable standard of proof.’

[Citation.]” (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 433; see

Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163 [“responsive evidence that gives rise

to no more than mere speculation cannot be regarded as substantial, and is insufficient to

establish a triable issue of material fact”].)

II

Preliminary Matters

Two preliminary matters must be addressed before we can move onto the

propriety of the trial court’s grant of summary judgment for the officer defendants and

the City. First, did the trial court abuse its discretion in sustaining the City’s hearsay

19

objection to three conclusions contained in the Police Foundation’s after-incident report?

And second, did the trial court misapply the Government Claims Act to improperly limit

the scope of Koussaya’s claims? We address each in turn and conclude the answer to

both is yes.

A.

Exclusion of Police Foundation Conclusions

The Police Foundation, at the request of Chief Jones, conducted a review of the

SPD response to the bank robbery and the pursuit that followed. The result of the review

was a 60-page report titled “A Heist Gone Bad: A Police Foundation Critical Incident

Review of the Stockton Police Response to the Bank of the West Robbery and HostageTaking.” In paragraphs 114 through 116 of Koussaya’s separate statement of additional

material facts, she relied on three conclusions contained in this report. Specifically, the

report concluded: (1) “the number of officers involved in the pursuit led to confusion and

a lack of control”; (2) “there was an absence of direction from supervisors and no

planned response for when the suspect vehicle stopped”; and (3) “ ‘the lack of planning,

along with the number of officers involved[,] created a level of chaos that was difficult to

manage and overcome.’ ” The City objected to these paragraphs of Koussaya’s separate

statement on hearsay grounds. The trial court sustained the objections. We conclude this

was an abuse of discretion.

With many exceptions, hearsay evidence, i.e., “evidence of a statement that was

made other than by a witness while testifying at the hearing and that is offered to prove

the truth of the matter stated,” is inadmissible. (Evid. Code, § 1200.) Two related

exceptions are set forth in Evidence Code sections 1221 and 1222. First, a hearsay

statement offered against a party is not inadmissible “if the statement is one of which the

party, with knowledge of the content thereof, has by words or other conduct manifested

his [or her] adoption or his [or her] belief in its truth.” (Evid. Code, § 1221.) Second, a

hearsay statement offered against a party is not inadmissible if “[t]he statement was made

20

by a person authorized by the party to make a statement or statements for [that party]

concerning the subject matter of the statement” and “[t]he evidence is offered either after

admission of evidence sufficient to sustain a finding of such authority or, in the court’s

discretion as to the order of proof, subject to the admission of such evidence.” (Evid.

Code, § 1222.)

Here, Koussaya does not dispute she relied on three out-of-court statements

contained in the Police Foundation report for the truth of the matters stated therein, but

argues the statements fall within the adoptive admission exception. We agree the

statements are admissible, but expand upon her reasoning to address a second potential

layer of hearsay. The first layer is comprised of the statements contained in the Police

Foundation report. These statements were offered against a party, i.e., the City, and

therefore applicability of the adoptive admission exception turns on whether or not the

City, “with knowledge of the content thereof, has by words or other conduct manifested

[its] adoption or [its] belief in [the statements’] truth.” (Evid. Code, § 1221.) Chief Jones

testified in his deposition that he did so at a press conference. This is the second potential

layer of hearsay. However, Chief Jones’s out-of-court statement is not being used to

prove the truth of the matter stated, i.e., that he in fact agreed with the Police

Foundation’s conclusions, because what is important for the adoptive admission

exception is not the truth of the manifestation of belief, but simply whether such a

manifestation was made. It was.

All that remains is to determine whether or not Chief Jones did so on behalf of the

City. We have no difficulty concluding the Chief of Police was authorized to make

statements on behalf of the City concerning the conduct of police officers under his

21

command.7 Accordingly, the City, acting through Chief Jones, adopted the conclusions

of the Police Foundation report. (See, e.g., In re Automobile Antitrust Cases I and II

(2016) 1 Cal.App.5th 127, 149 [“ ‘textbook example’ of an adoptive admission” where an

officer of defendant corporation, acting on behalf of corporation, manifested his belief in

the accuracy of certain out-of-court statements, and presumably would have corrected

any perceived errors in the statements].)

The trial court abused its discretion in sustaining the City’s hearsay objection to

paragraphs 114 through 116 of Koussaya’s separate statement of additional material

facts. However, for reasons we explain later in this opinion, even taking these paragraphs

into account, the City was still entitled to judgment as a matter of law. The evidentiary

error was therefore harmless.

B.

Application of the Government Claims Act

Koussaya also claims the trial court misapplied the Government Claims Act to

improperly limit the scope of her claims. We agree.

“[S]ection 945.4 provides that ‘no suit for money or damages may be brought

against a public entity on a cause of action for which a claim is required to be presented

in accordance with . . . Section 910 . . . until a written claim therefor has been presented

to the public entity and has been acted upon by the board, or has been deemed to have

been rejected by the board . . . .’ Section 910, in turn, requires that the claim state the

‘date, place, and other circumstances of the occurrence or transaction which gave rise to

the claim asserted’ and provide ‘[a] general description of the . . . injury, damage or loss

incurred so far as it may be known at the time of presentation of the claim.’ ” (Stockett v.

7 For this reason, even if Chief Jones’s statement at the press conference is properly

considered hearsay, it would fall within the authorized admission exception of Evidence

Code section 1222, set forth above.

22

Association of Cal. Water Agencies Joint Powers Ins. Authority (2004) 34 Cal.4th 441,

445, fns. omitted (Stockett).)

“The purpose of these statutes is ‘to provide the public entity sufficient

information to enable it to adequately investigate claims and to settle them, if appropriate,

without the expense of litigation.’ [Citation.] Consequently, a claim need not contain the

detail and specificity required of a pleading, but need only ‘fairly describe what [the]

entity is alleged to have done.’ [Citations.] As the purpose of the claim is to give the

government entity notice sufficient for it to investigate and evaluate the claim, not to

eliminate meritorious actions [citation], the claims statute ‘should not be applied to snare

the unwary where its purpose has been satisfied’ [citation].” (Stockett, supra, 34 Cal.4th

at p. 446.)

In order to comply with these provisions, the claim need not specify each act or

omission later set forth in the complaint. “A complaint’s fuller exposition of the factual

basis beyond that given in the claim is not fatal, so long as the complaint is not based on

an ‘entirely different set of facts.’ [Citation.] Only where there has been a ‘complete

shift in allegations, usually involving an effort to premise civil liability on acts or

omissions committed at different times or by different persons than those described in the

claim,’ have courts generally found the complaint barred. [Citation.] Where the

complaint merely elaborates or adds further detail to a claim, but is predicated on the

same fundamental actions or failures to act by the defendants, courts have generally

found the claim fairly reflects the facts pled in the complaint. [Citation.]” (Stockett,

supra, 34 Cal.4th at p. 447.)

For example, in Blair v. Superior Court (1990) 218 Cal.App.3d 221 (Blair), the

plaintiff sued the Department of Transportation to recover damages for injuries sustained

in an automobile accident involving an icy roadway. The tort claim she filed stated the

act or omission causing injury was negligent maintenance and construction of the

highway, citing specifically the defendant’s failure to sand the roadway to prevent ice

23

buildup. (Id. at p. 223.) In addition to the failure to sand, the subsequent complaint

alleged the highway and adjoining property was defective because it did not have a

required guard rail, the slope of the roadway contributed to the danger of vehicles being

carried off of the highway and into roadside trees, and there were no warning signs. (Id.

at p. 224.) The trial court granted the defendant’s motion to strike the additional

allegations, concluding they “predicated liability on facts different from those set forth in

the claim.” (Id. at p. 223.)

We issued a writ of mandate directing the trial court to vacate its order granting

the motion. (Blair, supra, 218 Cal.App.3d at p. 227.) As we explained, “the claim and

the complaint . . . are premised on essentially the same foundation, that because of its

negligent construction or maintenance, the highway at the scene of the accident

constituted a dangerous condition of public property.” (Id. at p. 226.) Rejecting the

defendant’s argument that the sole basis of liability asserted in the claim was the failure

to sand or otherwise prevent ice buildup, we noted the claim generally asserted negligent

construction and maintenance of the highway and explained: “A charge of negligent

construction may reasonably be read to encompass defects in the placement of highway

guard rails, slope of the road, presence of hazards adjacent to the roadway or inadequate

warning signs.” (Ibid.)

In contrast, Fall River Joint Unified School Dist. v. Superior Court (1988) 206

Cal.App.3d 431 (Fall River) involved an attempt by the plaintiff to premise liability on a

new legal theory based on factual allegations not contained in the claim previously filed.

There, the plaintiff was a minor who was injured when his head was struck by a steel

door on his high school campus. (Id. at p. 433.) The tort claim stated his injury was

caused by the dangerous and defective condition of the door. However, in the minor’s

subsequent complaint, in addition to two causes of action alleging the school district

knowingly allowed a dangerous condition to exist on public property and negligently

maintained the school premises, the minor asserted a separate cause of action for

24

negligently failing to supervise students whose horseplay allegedly caused the minor’s

collision with the door. (Id. at p. 434.) We held the school district was entitled to

judgment on the pleadings with respect to this additional cause of action because the new

cause of action “patently attempt[ed] to premise liability on an entirely different factual

basis than what was set forth in the tort claim.” (Id. at p. 435; see also Donohue v. State

of California (1986) 178 Cal.App.3d 795, 804 (Donahue) [tort claim stating Department

of Motor Vehicles negligently allowed uninsured motorist to take driving exam did not

fairly encompass cause of action alleging negligent supervision by the driving instructor

during that exam].)

Here, Koussaya’s tort claim provided a general description of the bank robbery

and events leading to her being taken hostage, including the initial confrontation between

the robbers and “unknown officers of the [SPD] who had guns drawn and pointed at the

robbers,” causing the robbers to retreat back into the bank with their initial hostage and

take two additional hostages, including Koussaya. The claim then described the “high

speed chase” that “predictably ensued,” including “as many as 33 [SPD] officers” firing

at the fleeing vehicle while Koussaya and another hostage were still in the vehicle. Later,

the claim stated “several [SPD] officers shot at the car,” causing Koussaya to ultimately

“jump from the car when the car was traveling at no less than 50 miles per hour” because

she “[f]ear[ed] that she would be killed by shots fired into the car by police officers.”

The claim asserted: “As a result of the conduct, indifference, containment and pursuit

tactics of unknown police officers of the City of Stockton and their open, obvious and

confrontational presence at the bank, [Koussaya] was taken as a hostage and exposed to

untold physical and emotional harm and loss, the same of which caused and continues to

cause [Koussaya] physical and emotional harm and loss.” The claim further listed the

City, SPD, and multiple individual officers as those against who she believed she could

maintain causes of action for assault, battery, IIED, negligence, and violation of

Koussaya’s constitutional rights. Finally, the claim set forth Koussaya’s injuries.

25

Koussaya’s subsequent complaint asserts assault, battery, IIED, and negligence as

causes of action against two individual officers and vicariously against the City,

supporting those causes of action against the City with additional factual allegations

regarding the police response at the bank and the ensuing pursuit. For example, the

complaint alleges: “[T]he City of Stockton’s police officers arrived at the Bank of the

West with lights on and took positions that were in full view of the bank robbers[,] . . .

forc[ing] the gunmen back into the bank, where they then took hostages, including

[Koussaya and Holt-Singh].” The complaint also alleges: “During the ensuing pursuit,

more and more police officers from defendant City of Stockton joined in the chase, and

thereby escalated and continued to escalate the desperation of the robbers as they

attempted to evade the police. There was no established chain of command, no

established course of action, no limit imposed on the number of officers from [SPD] who

joined in the pursuit, no rules established to contain or diffuse the pursuit and general

disregard for the well-being and safety of [Koussaya] and Holt-Singh.”

Relying on Fall River and Donahue, the trial court ruled Koussaya did not

preserve any claim regarding tortious conduct during the robbery response at the bank

except with respect to confronting the robbers at gunpoint, and further ruled she did not

preserve any claim regarding tortious conduct during the pursuit except with respect to

Captain Anderson and Officer Webb shooting at Martinez in the Explorer. We disagree

on both counts. Unlike Fall River and Donahue, Koussaya is not attempting to hold the

City liable based on a new theory supported by facts not included in the tort claim.

Instead, like Blair, Koussaya’s complaint adds further factual detail to the same claims

raised in the tort claim, and those claims were “predicated on the same fundamental facts

set forth in the complaint.” (Blair, supra, 218 Cal.App.3d at p. 226.) Specifically, the

tort claim asserted Koussaya possessed claims against individual officers and the City for

assault, battery, IIED, and negligence based on officer conduct during “their open,

obvious and confrontational” response to the bank robbery and based on their “pursuit

26

tactics” during the high-speed chase that followed. The complaint contains additional

factual allegations of officer conduct during the bank response and pursuit much like the

complaint in Blair contained additional factual allegations of defective highway

conditions. However, in both cases, the causes of action alleged in the complaint are

based on the same fundamental facts supporting liability on the same legal theory or

theories raised in the tort claim.8

The trial court erred in concluding otherwise. Nevertheless, as we explain later in

this opinion, even taking these additional factual allegations and supporting evidence into

account, the City was still entitled to judgment as a matter of law.

III

The Officer Defendants’ Motion

Although the causes of action asserted against the officer defendants (assault,

battery, IIED, & negligence) have distinct elements, we need not address each cause of

action individually. This is because the underlying basis of the officers’ alleged liability,

whether for intentional tort or negligence, is the assertion that these officers unreasonably

used deadly force in shooting at the Explorer with Koussaya in the vehicle, causing her to

jump out of the Explorer and sustain serious injuries. (See, e.g., Brown, supra, 171

Cal.App.4th at pp. 527, 534 [state law battery claim against a peace officer is a

counterpart to a federal claim of excessive use of force and requires proof that the

officer’s use of force was unreasonable; where use of force was reasonable, no liability

for either battery or negligence as a matter of law].) We conclude there is no triable issue

of material fact with respect to whether the officer defendants unreasonably fired at

8 Had Koussaya not expressly disclaimed any attempt to hold the City directly liable

for negligent training and supervision of its police officers, we might well hold certain

paragraphs of the complaint suggesting such a theory of liability are beyond the scope of

the tort claim. However, because Koussaya has disavowed such a theory, we need not

decide the matter.

27

Martinez in the back of the Explorer during the pursuit. As we explain immediately

below, based on the totality of circumstances surrounding the shootings, each officer

defendant was entitled to judgment as a matter of law.

A.

Legal Principles Governing the Use of Deadly Force by Law Enforcement

At the time of the events at issue in this case, Penal Code section 835a provided

that a peace officer who has reasonable cause to make an arrest “may use reasonable

force to effect the arrest, to prevent escape[,] or to overcome resistance,” and “need not

retreat or desist from his [or her] efforts by reason of the resistance or threatened

resistance of the person being arrested.” (Former Pen. Code, § 835a; Stats. 1957,

ch. 2147, § 11, p. 3807.)

Effective January 1, 2020, this section was amended to provide:

“(a) The Legislature finds and declares all of the following:

“(1) That the authority to use physical force, conferred on peace officers by this

section, is a serious responsibility that shall be exercised judiciously and with respect for

human rights and dignity and for the sanctity of every human life. The Legislature

further finds and declares that every person has a right to be free from excessive use of

force by officers acting under color of law.

“(2) As set forth below, it is the intent of the Legislature that peace officers use

deadly force only when necessary in defense of human life. In determining whether

deadly force is necessary, officers shall evaluate each situation in light of the particular

circumstances of each case, and shall use other available resources and techniques if

reasonably safe and feasible to an objectively reasonable officer.

“(3) That the decision by a peace officer to use force shall be evaluated carefully

and thoroughly, in a manner that reflects the gravity of that authority and the serious

consequences of the use of force by peace officers, in order to ensure that officers use

force consistent with law and agency policies.

28

“(4) That the decision by a peace officer to use force shall be evaluated from the

perspective of a reasonable officer in the same situation, based on the totality of the

circumstances known to or perceived by the officer at the time, rather than with the

benefit of hindsight, and that the totality of the circumstances shall account for occasions

when officers may be forced to make quick judgments about using force.

“(5) That individuals with physical, mental health, developmental, or intellectual

disabilities are significantly more likely to experience greater levels of physical force

during police interactions, as their disability may affect their ability to understand or

comply with commands from peace officers. It is estimated that individuals with

disabilities are involved in between one-third and one-half of all fatal encounters with

law enforcement.

“(b) Any peace officer who has reasonable cause to believe that the person to be

arrested has committed a public offense may use objectively reasonable force to effect

the arrest, to prevent escape, or to overcome resistance.

“(c)(1) Notwithstanding subdivision (b), a peace officer is justified in using

deadly force upon another person only when the officer reasonably believes, based on the

totality of the circumstances, that such force is necessary for either of the following

reasons:

“(A) To defend against an imminent threat of death or serious bodily injury to the

officer or to another person.

“(B) To apprehend a fleeing person for any felony that threatened or resulted in

death or serious bodily injury, if the officer reasonably believes that the person will cause

death or serious bodily injury to another unless immediately apprehended. Where

feasible, a peace officer shall, prior to the use of force, make reasonable efforts to identify

themselves as a peace officer and to warn that deadly force may be used, unless the

officer has objectively reasonable grounds to believe the person is aware of those facts.

29

“(2) A peace officer shall not use deadly force against a person based on the

danger that person poses to themselves, if an objectively reasonable officer would believe

the person does not pose an imminent threat of death or serious bodily injury to the peace

officer or to another person.

“(d) A peace officer who makes or attempts to make an arrest need not retreat or

desist from their efforts by reason of the resistance or threatened resistance of the person

being arrested. A peace officer shall not be deemed an aggressor or lose the right to selfdefense by the use of objectively reasonable force in compliance with subdivisions (b)

and (c) to effect the arrest or to prevent escape or to overcome resistance. For the

purposes of this subdivision, ‘retreat’ does not mean tactical repositioning or other

deescalation tactics.

“(e) For purposes of this section, the following definitions shall apply:

“(1) ‘Deadly force’ means any use of force that creates a substantial risk of

causing death or serious bodily injury, including, but not limited to, the discharge of a

firearm.

“(2) A threat of death or serious bodily injury is ‘imminent’ when, based on the

totality of the circumstances, a reasonable officer in the same situation would believe that

a person has the present ability, opportunity, and apparent intent to immediately cause

death or serious bodily injury to the peace officer or another person. An imminent harm

is not merely a fear of future harm, no matter how great the fear and no matter how great

the likelihood of the harm, but is one that, from appearances, must be instantly

confronted and addressed.

“(3) ‘Totality of the circumstances’ means all facts known to the peace officer at

the time, including the conduct of the officer and the subject leading up to the use of

deadly force.” (Pen. Code, § 835a.)

Relevant portions of this amended section are declaratory of preexisting case law.

Our Supreme Court “has long recognized that peace officers have a duty to act

30

reasonably when using deadly force” and that “[t]he reasonableness of an officer’s

conduct is determined in light of the totality of circumstances,” including “the tactical

conduct and decisions leading up to the use of deadly force.” (Hayes, supra, 57 Cal.4th

at pp. 626, 629; see, e.g., Olin, supra, 24 Cal.3d at pp. 634, 637; Grudt, supra, 2 Cal.3d at

pp. 585-588.)

For example, in Grudt, a wrongful death action, our Supreme Court held the trial

court erred in removing negligence from the jury’s consideration where two plainclothes

police officers, who were patrolling a high-crime area in an unmarked car at night,

attempted to pull over the hearing-impaired decedent, Grudt, without using the vehicle’s

red light or siren, followed by two other plainclothes officers in another unmarked car

joining in pursuit until Grudt’s car stopped at an intersection, at which point one of these

officers “alighted from his vehicle[,] . . . loaded his double-barreled shotgun as he

approached Grudt’s car,” and “tapped loudly on the closed left front window . . . with the

muzzle of his shotgun.” (Grudt, supra, 2 Cal.3d at p. 581.) This caused Grudt to panic

and accelerate towards one of the other plainclothes officers, who was also out of the

unmarked car with his gun drawn; Grudt was killed when both officers fired at his car,

the latter officer in self-defense and the former in defense of his fellow officer. (Id. at pp.

581-582.) Viewing the evidence favorably to the plaintiff, Grudt’s widow, the court

concluded “the evidence . . . raised a reasonable doubt whether [the officers who shot

Grudt] acted in a manner consistent with their duty of due care when they originally

decided to apprehend Grudt, when they approached his vehicle with drawn weapons, and

when they shot him to death. ‘[The] actor’s conduct must always be gauged in relation to

all the other material circumstances surrounding it and if such other circumstances admit

of a reasonable doubt as to whether such questioned conduct falls within or without the

bounds of ordinary care then such doubt must be resolved as a matter of fact rather than

of law.’ [Citation.]” (Id. at p. 587.)

31

Elaborating on this point in Hayes, our Supreme Court explained “the shooting in

Grudt appeared justified if examined in isolation, because the driver was accelerating his

car toward one of the officers just before the shooting. Nevertheless, we concluded that

the totality of the circumstances, including the preshooting conduct of the officers, might

persuade a jury to find the shooting negligent. [Citation.] In other words, preshooting

circumstances might show that an otherwise reasonable use of deadly force was in fact

unreasonable.” (Hayes, supra, 57 Cal.4th at p. 629-630; see also Olin, supra, 24 Cal.3d

at pp. 636-637 [substantial evidence supported finding that two arson investigators

unreasonably used deadly force against a fleeing suspected arsonist, including evidence

of preshooting conduct; jury could have found the investigators unreasonably identified

the decedent, “the first man they saw” after seeing someone start a fire, unreasonably

failed to warn him deadly force would be used, and unreasonably failed to attempt other

means of apprehension].)

However, although an officer’s preshooting conduct must be considered as part of

the totality of circumstances surrounding the use of force, “ ‘[t]he “reasonableness” of a

particular use of force must be judged from the perspective of a reasonable officer on the

scene, rather than with the 20/20 vision of hindsight.’ [Citation.]” (Hayes, supra, 57

Cal.4th at p. 632.) “The standard for evaluating the unreasonable use of force reflects

deference to the split-second decisions of an officer and recognizes that, unlike private

citizens, officers may use deadly force. An officer ‘ “ ‘may use reasonable force to make

an arrest, prevent escape or overcome resistance, and need not desist in the face of

resistance.’ ” ’ [Citations.] ‘ “ ‘Unlike private citizens, police officers act under color of

law to protect the public interest. They are charged with acting affirmatively and using

force as part of their duties, because “the right to make an arrest or investigatory stop

necessarily carries with it the right to use some degree of physical coercion or threat

thereof to effect it.” ’ ” ’ [Citation.]” (Lopez, supra, 196 Cal.App.4th at p. 685.)

32

“ ‘ “We must never allow the theoretical, sanitized world of our imagination to

replace the dangerous and complex world that policemen face every day. What

constitutes ‘reasonable’ action may seem quite different to someone facing a possible

assailant than to someone analyzing the question at leisure.” [Citation.]’ [Citation.]

Placing the burden of proof on the plaintiff to establish that an officer’s use of force was

unreasonable ‘gives the police appropriate maneuvering room in which to make such

judgments free from the need to justify every action in a court of law.’ [Citation.]”

(Brown, supra, 171 Cal.App.4th at p. 528.)

We finally note that “ ‘[a]s long as an officer’s conduct falls within the range of

conduct that is reasonable under the circumstances, there is no requirement that he or she

choose the “most reasonable” action or the conduct that is the least likely to cause harm

and at the same time the most likely to result in the successful apprehension of a violent

suspect, in order to avoid liability . . . .’ [Citation.]” (Hayes, supra, 57 Cal.4th at p. 632.)

“Law enforcement personnel have a degree of discretion as to how they choose to address

a particular situation. Summary judgment is appropriate when the trial court determines

that, viewing the facts most favorably to the plaintiff, no reasonable juror could find [the

use of force was unreasonable].” (Ibid.)

B.

Analysis

We now apply the foregoing legal principles to the largely undisputed facts of this

case. Based on the totality of circumstances surrounding the officer defendants’ conduct,

we conclude their respective uses of deadly force were reasonable as a matter of law.

Generally, a police officer’s use of deadly force against a suspect will be

considered reasonable where “ ‘ “ ‘the officer has probable cause to believe that the

suspect poses a significant threat of death or serious physical injury to the officer or

others.’ [Citations.]” [Citation.]’ [Citation.] ‘ “Thus, ‘an officer may reasonably use

deadly force when he or she confronts an armed suspect in close proximity whose actions

33

indicate an intent to attack.’ ” [Citation.]’ [Citation.]” (Brown, supra, 171 Cal.App.4th

at p. 528; Lopez, supra, 196 Cal.App.4th at p. 689.)

For example, in Brown, the plaintiff was an innocent bystander who was struck by

bullet fragments when a police officer, Ransweiler, fired five rounds at a fleeing murder

suspect, Ojeda, who drove onto a curb in an attempt to evade arrest and was heading

directly towards Ransweiler and another officer, Baldwin. Concluding the shooting was

reasonable as a matter of law, our colleagues at the Fourth Appellate District explained:

“Ojeda’s actions clearly indicated his intent to harm the officers. In response to a strong

show of force by officers in raid gear who ordered Ojeda to get out of his vehicle, Ojeda

instead drove his vehicle up onto the sidewalk adjacent to the strip mall, ‘gunned’ the

engine, and drove directly toward Ransweiler and Baldwin. After Ransweiler dove out of

the way, he saw Baldwin fall to the ground while still in front of Ojeda’s vehicle.

Ransweiler’s fear that Ojeda would run over Baldwin was reasonable given these

circumstances. [¶] Once Ojeda took this extreme action in response to police orders to

surrender, Ransweiler acted reasonably in shooting at him to attempt to stop Ojeda from

harming Baldwin or a third party, or escaping. Ransweiler’s use of force was not

excessive or unreasonably dangerous relative to the danger Ojeda’s actions posed.

Ransweiler shot at Ojeda five times, from a relatively close distance. Ransweiler did not

shoot into a crowd. Rather, he shot in a direction away from buildings in the strip mall.

In view of the exigency of the circumstances he was facing, Ransweiler met his duty to

use reasonable care in employing deadly force.” (Brown, supra, 171 Cal.App.4th at pp.

528-529.)

Here, as in Brown, both Captain Anderson and Officer Webb had probable cause

to believe Martinez posed a significant threat of death or serious physical injury to the

pursuing officers. Moreover, police officers were not the only lives placed in danger by

Martinez’s conduct. Firing at the pursuing officers endangered the lives of countless

innocent bystanders. No reasonable juror could conclude otherwise. When Anderson

34

and Webb fired at Martinez in an attempt to neutralize the imminent threat he posed to

the lives of officers and innocent bystanders, they thereby endangered the lives of

Koussaya and Holt-Singh inside the Explorer. That is not disputed. But no reasonable

juror would conclude these actions were outside “the range of conduct that is reasonable

under the circumstances.” (Brown, supra, 171 Cal.App.4th at p. 537; see, e.g., Lopez,

supra, 196 Cal.App.4th at pp. 689-691 [no substantial evidence of unreasonable use of

deadly force where officers shot and killed the infant daughter of an armed suspect who

was firing at the officers while holding the child].)

Addressing Anderson’s situation more specifically, at the time he fired at Martinez

in the back of the Explorer, Martinez had already fired an AK-47 assault rifle at multiple

pursuing officers, disabling at least one patrol car. After Anderson positioned himself at

the Morada Lane onramp, the Explorer exited the freeway and Martinez “put the AK-47

out towards the -- whatever would be coming around that corner next off the offramp.”

Anderson also testified in his deposition that the Explorer briefly stopped on the offramp

when Martinez pointed the rifle out the back, indicating an intent to ambush the pursuing

officers. Surveillance camera footage contradicts this testimony. However, this factual

dispute is not material. Viewing the evidence in a light most favorable to Koussaya, as

we must, and resolving the conflict in her favor, a reasonable officer in Anderson’s

position would nevertheless have been more than justified in believing Martinez had “the

present ability, opportunity, and apparent intent to immediately cause death or serious

bodily injury” (Pen. Code, § 835a, subd. (e)(2)) to the pursuing officers, as well as any

innocent bystanders who happened to be in the line of fire, if he did not take immediate

action.

9 The action Anderson took was also reasonable. Like Brown, Anderson’s use of

9 Koussaya also relies on other evidence she argues “places Anderson’s story into

dispute,” such as Anderson driving to Morada Lane rather than responding to the bank as

he was directed, and his decision not to broadcast over the radio even though his stated

35

deadly force was neither excessive nor unreasonably dangerous in relation to the danger

Martinez posed. Anderson quickly took aim and fired three rounds at Martinez, who

responded by firing indiscriminately out of the back of the Explorer, followed by

Anderson firing two additional rounds at Martinez in an attempt to neutralize the threat.

Anderson’s use of deadly force in these circumstances was reasonable as a matter of law.

Turning to the shots fired by Officer Webb, he was the lead pursuer at the time he

fired at Martinez and did so in self-defense as his vehicle took gunfire from the AK-47 on

the Benjamin Holt Drive exit ramp. Webb quickly pulled over, got out of his patrol car,

and using the driver’s side door to take aim, fired two rounds at Martinez from a distance

of about 150 feet. Webb’s actions were objectively reasonable under the circumstances.

No reasonable juror could conclude otherwise.

Nevertheless, Koussaya argues the reasonableness of these officers’ respective

uses of deadly force cannot be determined on summary judgment because both officers

violated an order from Lieutenant Ridenour not to shoot at the Explorer and also violated

purpose in driving to Morada Lane was “to serve as the ‘eyes and ears’ of the pursuit.”

Koussaya argues this evidence suggests Anderson’s real purpose in driving to Morada

Lane was “to make himself the ‘hero’ who stopped the pursuit by shooting the suspects.”

However, even assuming such a conclusion is supported by the evidence, whether or not

Anderson harbored a subjective desire to be a hero is not the relevant question. Instead,

as already indicated, the relevant question is whether a reasonable officer in Anderson’s

position would have believed Martinez had “the present ability, opportunity, and apparent

intent to immediately cause death or serious bodily injury to the peace officer or another

person.” (Pen. Code, § 835a, subd. (e)(2).) There is no real dispute that Martinez had

such an ability, opportunity, and intent.

36

general orders issued by the SPD governing vehicle pursuits10 and use of firearms.11 We

are not persuaded.

First, contrary to Koussaya’s argument on appeal, the existence of an applicable

general order does not establish the standard of care for using deadly force. That

standard is set by Hayes: “officers have a duty to act reasonably when using deadly

force” and “[t]he reasonableness of an officer’s conduct is determined in light of the

totality of circumstances.” (Hayes, supra, 57 Cal.4th at p. 629.) If a general order set the

standard of care, then violation of the order would automatically mean a breach of the

standard has occurred. That is not the law. Instead, as our Supreme Court has explained,

general rules of an organization are “evidence that due care requires the course of

conduct prescribed in the rule. Such rules implicitly represent an informed judgment as

to the feasibility of certain precautions without undue frustration of the goals of the

particular enterprise.” (Dillenbeck v. City of Los Angeles (1968) 69 Cal.2d 472, 478.)

Thus, although the general order regarding vehicle pursuits, and other general orders

10 This general order provides: “The priorities of vehicle pursuits are as follows: [¶]

1. To prevent injury or death to innocent citizens. [¶] 2. To prevent injury or death to a

police officer. [¶] 3. The apprehension of the suspect(s).” The order also crossreferences the general order regarding use of firearms, relevant portions of which are set

forth in the next footnote, and states with respect to terminating a pursuit: “Experience

reveals that shooting at fleeing vehicles is generally ineffective, and the hazards are great.

Decisions to fire at moving vehicles must be based on the most compelling

circumstances.”

11 This general order provides: “Firearms will not be discharged under the following

circumstances. [¶] . . . [¶] (4) At moving or fleeing vehicles involved in violations of

the Vehicle Code (including felony violations such as 20001, 10851, 23105, etc.) unless

necessary to defend the life of the officer or another person. Two facts make this

necessary. [¶] (a) Experience has proven that shooting at moving vehicles is one of the

most uncertain and hazardous shooting conditions in police work, particularly when the

officer is in a moving vehicle. [¶] (b) Many vehicles involved in traffic violations are

driven by persons whose age or reason for fleeing do not justify the use of firearms as

means of apprehension.”

37

discussed later in this opinion, do not establish the standard of care regarding the use of

deadly force, such orders “may well be extremely useful to the trier of fact” in

determining whether a particular use of deadly force, or officer conduct leading up to that

use of force, violated the more “amorphous” standard of reasonableness. (Ibid.; Grudt,

supra, 2 Cal.3d at pp. 587-588 [police tactical manual admissible as evidence relevant to

the question of the reasonableness of the use of deadly force].)

Second, there is a factual dispute concerning whether or not Lieutenant Ridenour’s

order not to shoot at the Explorer applied to Captain Anderson, who was of a higher rank

than Ridenour. However, resolving the matter in Koussaya’s favor for purposes of the

summary judgment motion, we nevertheless conclude violation of the order was

reasonable as a matter of law in these specific circumstances. Again, Martinez had fired

an AK-47 at pursuing officers prior to the two shooting incidents at issue in this appeal.

He was aiming the assault rifle in the direction of his pursuers when Anderson fired. And

he was actually firing at Webb when Webb returned fire in self-defense. For reasons

already expressed, firing at Martinez in these circumstances was reasonable regardless of

Ridenour’s order.

Turning to the officers’ purported violation of SPD general orders, as previously

noted, a general order governing vehicle pursuits provides: “The priorities of vehicle

pursuits are as follows: [¶] 1. To prevent injury or death to innocent citizens. [¶] 2. To

prevent injury or death to a police officer. [¶] 3. The apprehension of the suspect(s).”

According to Koussaya, this order requires “the safety of innocent civilians be prioritized

over the safety of officers” and therefore prohibited Webb from prioritizing his own life

over the lives of the innocent hostages by returning fire when Martinez fired at him. We

are not persuaded the general order draws the sharp hierarchical distinctions Koussaya

reads into it. Nor was the choice Webb faced on the offramp so clearly delineated

between protecting his life over the lives of the hostages. As we have already explained,

every time Martinez fired at pursuing officers he endangered the lives of innocent

38

civilians. Notwithstanding the danger returning fire posed to Koussaya and Holt-Singh,

Webb’s split-second decision to do so was not unreasonable as a matter of law. (See

Lopez, supra, 196 Cal.App.4th at pp. 689-691.) The same reasoning applies to

Anderson’s decision to fire at Martinez in an attempt to prevent him from opening fire on

the pursuing officers.12

Finally, Koussaya argues there is a material factual dispute regarding whether or

not “Webb’s own actions escalated the pursuit, leading [Martinez] to fire the shots which

Webb returned.” Specifically, Koussaya points to evidence supporting the following

facts: “Webb knew there was air support to track the Explorer, making it unnecessary for

him to follow so close as to draw fire. Yet he continued to follow the Explorer so closely

that both air support and a fellow officer had to warn him to back off. As Webb exited

the freeway onto Benjamin Holt, air support warned him the Explorer was stopped at a

red light. Webb nevertheless closed in on the vehicle until [Martinez] began shooting.”

We acknowledge “preshooting circumstances might show that an otherwise reasonable

use of deadly force was in fact unreasonable.” (Hayes, supra, 57 Cal.4th at p. 630.) That

is not the case here.

12 Koussaya’s reliance on the general order governing the use of firearms is

misplaced because this order prohibits firing at a fleeing vehicle that is “involved in

violations of the Vehicle Code (including felony violations such as 20001, 10851, 23105,

etc.)” and the robbers in this case were not fleeing after a Vehicle Code violation, but

after committing armed robbery, kidnapping hostages, and firing at police officers during

their attempt to escape apprehension. Moreover, even if the general order applied to

these facts, it has an exception where firing at the vehicle is “necessary to defend the life

of the officer or another person.” That exception clearly applies here. Also misplaced is

Koussaya’s reliance on the portion of the vehicle pursuit general order cross-referencing

the foregoing order because it too allows an officer to fire at a moving vehicle under

“compelling circumstances.” For reasons already expressed, the circumstances facing

Anderson and Webb were compelling as a matter of law.

39

Hernandez, supra, 46 Cal.4th 501 is instructive. There, several police officers

shot and killed an unarmed man, Hernandez, who had led them on a high-speed chase at

night, followed by a foot pursuit involving the use of a police dog. During the foot chase,

Hernandez twice turned towards the pursuing officers, reached towards his waistband,

and yelled either that he had a gun or that he did not have a gun. (Id. at pp. 506-507.) A

federal court entered judgment in favor of the defendants on a civil rights claim for use of

excessive force and dismissed a supplemental state law wrongful death claim arising out

of the same incident. (Id. at p. 505.) Our Supreme Court held the federal judgment

collaterally estopped Hernandez’s surviving family members from relitigating the

reasonableness of the shooting itself because that question was “ ‘precisely the issue

resolved [against them] by the federal jury . . . .’ ” (Id. at p. 513.) However, because

“state negligence law, which considers the totality of the circumstances surrounding any

use of deadly force [citation], is broader than federal Fourth Amendment law, which

tends to focus more narrowly on the moment when deadly force is used” (Hayes, supra,

57 Cal.4th at p. 639), the court separately addressed whether the plaintiffs “could pursue

a negligence claim ‘on the theory that [the officers’] conduct leading up to the shooting,

including the high-speed pursuit, foot chase, and release of a pursuit dog created an

unreasonable risk of harm to themselves and Hernandez.’ ” (Hernandez, supra, 46

Cal.4th at p. 517.)

Reviewing the evidentiary record, our Supreme Court concluded the officers’

preshooting conduct, as a matter of law, did not make the officers’ use of deadly force

unreasonable. In reaching this conclusion, the court first noted the officer who initially

attempted to detain Hernandez was legally justified in doing so, and was further

authorized to pursue him in order to make an arrest. (Hernandez, supra, 46 Cal.4th at pp.

518-519.) With respect to the high-speed pursuit, the court explained Vehicle Code

40

section 1700413 prevented the individual officers from being “held civilly liable for

Hernandez’s death based on the manner in which they operated their vehicles during the

chase.” (Hernandez, at p. 519.) Nor did Vehicle Code section 1700114 provide an

exception to this general rule of immunity because Hernandez was not killed by the

negligent or wrongful operation of a police vehicle, but rather by the shooting that

“occurred well after the police stopped and exited their cars and chased Hernandez on

foot.” (Hernandez, at pp. 519-520.) Turning to the manner in which the officers pursued

Hernandez on foot, the court explained the plaintiffs could not rely on the fact that they

chased Hernandez into a darkened parking lot because it was Hernandez who chose

where to run. (Id. at pp. 520-521.) Finally, the court concluded the use and release of a

police dog on these facts was reasonable as a matter of law. (Id. at p. 521.)

Similarly, here, Officer Webb had every right to pursue the robbers in an attempt

to apprehend them for several violent felonies, including armed robbery, kidnapping,

assault with a deadly weapon, and attempted murder. He was not required to retreat or

desist from his efforts to apprehend them on account of their violent resistance. (Pen.

Code, § 835a, subd. (d).) To the extent Koussaya attempts to premise liability on the

manner in which Webb operated his patrol car during the pursuit, i.e., by following at too

close a distance, Vehicle Code section 17004 provides immunity. And as in Hernandez,

13 This section provides: “A public employee is not liable for civil damages on

account of personal injury to or death of any person or damage to property resulting from

the operation, in the line of duty, of an authorized emergency vehicle while responding to

an emergency call or when in the immediate pursuit of an actual or suspected violator of

the law, or when responding to but not upon returning from a fire alarm or other

emergency call.” (Veh. Code, § 17004.)

14 This section provides: “A public entity is liable for death or injury to person or

property proximately caused by a negligent or wrongful act or omission in the operation

of any motor vehicle by an employee of the public entity acting within the scope of his

employment.” (Veh. Code, § 17001.)

41

Vehicle Code section 17001 does not apply because Koussaya’s injuries were not caused

by Webb’s operation of the vehicle. In order for that section to apply, “it is not sufficient

that a motor vehicle somehow be involved in the series of events that results in the injury.

The injury must be proximately caused by the negligent ‘operation of a motor vehicle.’ ”

(Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 923.) Here, Koussaya’s injuries

were not caused by Webb’s operation of his patrol car, but rather by her decision to jump

from the Explorer as it traveled at more than 50 miles per hour, well after Webb pulled

over, got out of the car, and fired at Martinez in self-defense.

Koussaya does not persuade this court that the totality of either officer defendant’s

conduct transformed an otherwise reasonable use of deadly force into an unreasonable

use of such force. The trial court properly granted these officers’ motion for summary

judgment.

IV

The City’s Motion

We now turn to the trial court’s grant of summary judgment for the City and

conclude it was properly granted.

“When a party is injured by a tortfeasor and seeks to affix liability on the

tortfeasor’s employer, the injured party ordinarily must demonstrate either (1) the

employer violated a duty of care it owed to the injured party and this negligence was a

proximate cause of the resulting injury (the direct liability theory), or (2) the tortfeasoremployee was liable for committing the tortious conduct that caused the injury while

acting within the course and scope of his or her employment (the vicarious liability

theory). [Citation.] When the employer is a governmental agency, the statutory

framework permits the injured party to pursue the vicarious liability theory in accordance

with these general common law principles. [Citation.] However, the statutory

framework requires, as a condition to the injured party’s recovery on a direct liability

theory against a governmental agency, that the injured party identify a ‘specific statute

42

declaring [the entity] to be liable, or at least creating some specific duty of care’ by the

agency in favor of the injured party. [Citations.]” (de Villers v. County of San

Diego (2007) 156 Cal.App.4th 238, 247-248, fn. omitted (de Villers).)

As previously mentioned, although Koussaya’s complaint contains allegations

suggesting a direct liability theory, i.e., allegations that the City failed “to properly and

adequately hire, train, retrain, supervise, and discipline its police officers,” she has

disclaimed any attempt to hold the City directly liable for her injuries. Nor would such a

theory be successful. (See, e.g., Munoz v. City of Union City (2004) 120 Cal.App.4th

1077, 1112-1113 [no statutory basis for declaring the public entity defendant directly

liable for negligent hiring or supervision of officers] (Munoz), disapproved on another

point in Hayes v. County of San Diego (2013) 57 Cal.4th 622, 639, fn. 1; see also de

Villers, supra, 156 Cal.App.4th at pp. 252-253.) Thus, Koussaya’s claims against the

City are purely vicarious.

Section 815.2 sets out the rule regarding vicarious public entity liability: “(a) A

public entity is liable for injury proximately caused by an act or omission of an employee

of the public entity within the scope of his [or her] employment if the act or omission

would, apart from this section, have given rise to a cause of action against that employee

or his [or her] personal representative. [¶] (b) Except as otherwise provided by statute, a

public entity is not liable for an injury resulting from an act or omission of an employee

of the public entity where the employee is immune from liability.” In turn, “section 820

delineates the liability of public employees themselves: ‘(a) Except as otherwise

provided by statute (including Section 820.2), a public employee is liable for injury

caused by his [or her] act or omission to the same extent as a private person. [¶] (b) The

liability of a public employee established by this part . . . is subject to any defenses that

would be available to the public employee if he [or she] were a private person.’ In other

words, ‘the general rule is that an employee of a public entity is liable for his [or her]

torts to the same extent as a private person (§ 820, subd. (a)) and the public entity is

43

vicariously liable for any injury which its employee causes (§ 815.2, subd. (a)) to the

same extent as a private employer (§ 815, subd. (b)).’ [Citation.]” (C.A. v. William S.

Hart Union High School Dist. (2012) 53 Cal.4th 861, 868.) Finally, we note section

820.2 provides generally for immunity from liability “for an injury resulting from [a

public employee’s] act or omission where the act or omission was the result of the

exercise of the discretion vested in him [or her], whether or not such discretion be

abused.”

Under these provisions, in order for vicarious public entity liability to attach, a

public employee, either named as a defendant or at least “specifically identified” by the

plaintiff, must have engaged in an act or omission giving rise to that employee’s tort

liability. (Munoz, supra, 120 Cal.App.4th at p. 1113.) We have already held summary

judgment was properly granted as to the officer defendants in this case. Accordingly, to

the extent Koussaya’s claims are vicarious to the officer defendants’ actions in this case,

the City’s motion was also properly granted. As the Munoz court explained: “If the agent

or employee is exonerated, the principal or employer cannot be held vicariously liable.”

(Ibid.)

This conclusion does not dispose of the entirety of Koussaya’s claims against the

City, however. She argues the City may be held vicariously liable for the actions of other

officers, beginning with those who responded to the bank in violation of a general order

governing officer response to a robbery alarm,15 and continuing with those involved in

15 This general order required responding officers to “secure the perimeter of the

bank and or business and advise the Telecommunications Center of their location at the

scene.” The general order also provides: “Units will respond ‘Code 3’ and may

discontinue the use of red lights and siren when close to arrival and respond the

remainder of the distance in accordance with traffic laws. The exact time to discontinue

‘Code 3’ response is to be decided by each individual member assigned to respond,

taking into consideration the fact a hostage situation could be initiated by police response

being recognized by the robbers.”

44

the subsequent high speed pursuit, including Lieutenant Rose who attempted to ram the

Explorer with the SWAT team’s armored vehicle, unidentified officers other than

Anderson and Webb who purportedly also fired on the Explorer while Koussaya was

inside, and SPD commanders who failed to properly oversee the pursuit or effectively

communicate who was in charge in violation of a general order governing officer

response to an active shooter situation.16

The only officer specifically identified by Koussaya who responded to the bank

was Officer Sandoval. Taking into account the general order noted above, the trial court

thoroughly explained why Sandoval’s conduct at the bank did not amount to assault,

battery, IIED, or actionable negligence. The trial court also thoroughly explained why

officers involved in the pursuit could not be held liable for these torts, including the

conclusion that the decision to engage in pursuit of a fleeing suspect and decisions

regarding chain of command are discretionary, and therefore subject to immunity under

section 820.2. We decline to proceed on a claim-by-claim basis explicating our

agreement with the trial court on these points because Koussaya’s appellate briefing does

not specifically argue that any individual officer, other than Anderson and Webb,

committed an assault or battery against her, intentionally engaged in extreme or

outrageous conduct causing her emotional distress, or negligently used deadly force

16 This general order provides: “One initial officer must take charge of the active

shooter incident. Assumption of tactical responsibility may be based on rank, expertise,

or seniority. However, it must be made immediately clear to both dispatch and other

officers, who is in charge. An officer of superior rank who is on scene and fully briefed

may ultimately assume incident command. Any change in incident command will be

made known to dispatch and other officers.” The order further provides: “No action will

be taken that is unplanned or without controls. Command will be assumed by the first

officer who will initiate the situation analysis and determine initial deployment of

responding resources. At least one person possessing all available information on tactical

plans will remain at the Command Post to brief arriving personnel. Command personnel

en route to the incident will monitor the radio to gain information.”

45

causing her injuries. Again, if a specific individual officer has not engaged in an act or

omission giving rise to that officer’s tort liability, the City cannot be held vicariously

liable. (Munoz, supra, 120 Cal.App.4th at p. 1113.)

Instead, Koussaya argues the combined actions of the officers involved in the

robbery response and the pursuit contributed to “a continuing and escalating series of

events” and “must be viewed as a continuum of circumstances ultimately leading to [her]

being forced to throw herself from a speeding vehicle and suffering severe injuries to

avoid being killed by the police.” In making this argument, she attempts to extend the

rule articulated in Hayes, Olin, and Grudt (i.e., tactical conduct and decisions made by

law enforcement preceding the use of deadly force are relevant considerations in

determining whether the subsequent use of deadly force was unreasonable) well beyond

the facts of those cases. In Hayes and Grudt, the officers who used deadly force were the

same officers whose conduct preceding the use of force was held to be relevant to the

reasonableness determination. (Hayes, supra, 57 Cal.4th at pp. 626, 637; Grudt, supra, 2

Cal.3d at pp. 581-582, 587-588.) In Olin, one officer used deadly force and the preceding

conduct of that officer and his partner, acting together in an attempt to apprehend the

suspect, was held to be relevant to the reasonableness determination. (Olin, supra, 24

Cal.3d at pp. 631-634, 636-637.) Thus, our Supreme Court has held the preshooting

conduct of the officers involved in the use of deadly force is relevant to the question of

whether that use of deadly force was reasonable.

Here, Anderson and Webb were the only officers whose use of deadly force is

alleged to have caused Koussaya to jump from the Explorer and sustain injuries.17 We

17 Although Lieutenant Rose’s attempt to ram the Explorer with the armored vehicle

qualifies as a use of deadly force, and Koussaya now claims this conduct also contributed

to her decision to jump from the Explorer, her complaint does not mention the ramming

attempt or allege it caused her to jump. “The complaint serves to delimit the scope of the

issues before the court on a motion for summary judgment [citation], and a party cannot

46

have already disposed of Koussaya’s specific arguments regarding their preshooting

conduct. Koussaya cites us to no authority, nor have we found any on our own,

extending the reasoning of the foregoing cases to a situation such as this one, where the

conduct of officers not involved in the ultimate use of deadly force is relied upon to show

that an otherwise reasonable use of deadly force was unreasonable. We decline to extend

these cases to the facts of this one.

Stated simply, because Anderson and Webb are not liable for Koussaya’s injuries

allegedly caused by their respective uses of deadly force, the City cannot be held

vicariously liable for their conduct. Other officer conduct was not actionable as a matter

of law for reasons capably expressed by the trial court. Thus, the City cannot be held

vicariously liable for their conduct. Finally, to hold the City liable not because any

individual officer is liable, but rather because the SPD’s collective response to the bank

robbery and management of the subsequent pursuit was unreasonable and resulted in

Koussaya’s injuries, as Koussaya appears to be arguing under the guise of vicarious

successfully resist summary judgment on a theory not pleaded [citation].” (Whelihan v.

Espinoza (2003) 110 Cal.App.4th 1566, 1576.) Moreover, Koussaya has presented no

evidence that she knew of the attempt to ram the Explorer at the time she jumped or that

this failed attempt caused her to do so. Indeed, in Koussaya’s deposition testimony, she

stated she decided to jump when she became aware of the SWAT team’s participation in

the pursuit and did so because police were shooting at the Explorer and she was afraid the

SWAT team would kill her when the pursuit came to an end. She did not mention the

ramming attempt. Additionally, although Koussaya also argues other officers shot at the

Explorer while she was inside, she does not specifically identify who these officers were.

(Munoz, supra, 120 Cal.App.4th at p. 1113 [“the doctrine clearly contemplates that the

negligent employee whose conduct is sought to be attributed to the employer at least be

specifically identified”].) Other than her speculative statement during her deposition that,

in addition to the “five to ten” times she heard bullets strike the Explorer (Anderson and

Webb fired a total of seven rounds), she also heard additional shots fired “from further

away,” Koussaya produced no evidence that any SPD officer other than Anderson and

Webb fired at the Explorer while she was inside. We agree with the trial court’s

conclusion that “[w]ithout some evidence of the source or circumstances of those shots,

[Koussaya] has failed to raise a triable issue” regarding shots fired by any other officer.

47

liability, would improperly impose direct liability on the City in the absence of specific

statutory authority to do so.

We conclude the trial court properly granted the City’s motion for summary

judgment.

The judgment is affirmed. Respondents are entitled to costs on appeal. (Cal.

Rules of Court, rule 8.278(a)(1), (2).)