James Gund v. County of Trinity

We entrust to police officers the enormous responsibility

of ensuring public safety with integrity and appropriate

restraint, a mission they sometimes pursue by requesting help

from the very public they’re sworn to protect. When members

of the public engage in “active law enforcement service” at a

peace officer’s request, California law treats those members of

the public as employees eligible for workers’ compensation

benefits. (Lab. Code, § 3366, subd. (a).)1 While this allows such

individuals to receive compensation for their injuries without

regard to fault, it comes with a catch: Workers’ compensation

then becomes an individual’s exclusive remedy for those injuries

under state law. (§ 3602, subd. (a); Shoemaker v. Myers (1990)

52 Cal.3d 1, 16 (Shoemaker).) That can make a difference for

some members of the public who answer a peace officer’s call to

help with “active law enforcement,” because workers’

compensation benefits are narrower in scope than the menu of

damages available in tort claims. Whether compensation for a

member of the public injured in the course of responding to a

request for assistance from law enforcement is limited to

workers’ compensation, or whether civil damages are available,

depends on the question at the heart of this case: What does it



1 All statutory references are to the Labor Code unless

otherwise noted.

GUND v. COUNTY OF TRINITY

Opinion of the Court by Cuéllar, J.

2

mean for an individual to engage in “active law enforcement

service”?

Norma and James Gund received a call from Trinity

County Sheriff’s Corporal Ronald Whitman, who asked them to

assist law enforcement by checking on a neighbor who had called

911 requesting help. When the Gunds did so, they walked into

an active murder scene and suffered a violent attack. What we

must resolve is whether Mr. and Mrs. Gund engaged in active

law enforcement service and are limited to workers’

compensation benefits for their injuries based on Corporal

Whitman’s request for assistance, which they allege

misrepresented the potential danger.

We conclude the Gunds were indeed engaged in “active

law enforcement service.” When the Gunds provided the

requested assistance, they delivered an active response to the

911 call of a local resident pleading for help. A response of this

kind unquestionably falls within the scope of a police officer’s

law enforcement duties. Whether or not any alleged omissions

in Corporal Whitman’s request could conceivably prove relevant

to legal actions alleging malfeasance, they do not change our

conclusion about the scope of workers’ compensation in this

tragic case. We affirm the judgment of the Court of Appeal.

I.

On the afternoon of March 13, 2011, the California

Highway Patrol (CHP) received a phone call from Kristine, a

female caller.2 Kristine whispered, “Help me,” and said she



2 Because we are reviewing a motion for summary

judgment, “we view the evidence in the light most favorable to

GUND v. COUNTY OF TRINITY

Opinion of the Court by Cuéllar, J.

3

lived at end of the Kettenpom airstrip. Kettenpom is situated

in the southwest corner of Trinity County, a mountainous

expanse of 3,200 square miles. (Trinity County, About Trinity

County [as of Aug. 24,

2020].)3 The County is inhabited by fewer than 15,000 people.

(U.S. Census Bureau, Population of Trinity County, California:

Census 2010 and 2000 Interactive Map, Demographics,

Statistics, Graphs, Quick Facts

[as

of Aug. 24, 2020].) The CHP dispatcher relayed the content of

Kristine’s call to the Trinity County Sheriff’s Department. The

Sheriff’s Department is in Weaverville, almost 100 miles away

from Kettenpom. (Trinity County, California, Sheriff

Department [as of Aug. 24, 2020].) The CHP dispatcher

explained she was hesitant to call Kristine back in case she was

trying to avoid being overheard. Twice, a Trinity County

dispatcher nonetheless attempted to contact Kristine, but the

calls went straight to voicemail. The county dispatcher relayed

this information to Trinity County Sheriff’s Corporal Ronald

Whitman.

Corporal Whitman knew the Gunds lived in the vicinity of

the Kettenpom airstrip. En route to Kristine’s home but still

some distance away, he called Norma Gund and explained that



plaintiffs as the losing parties, resolving evidentiary doubts and

ambiguities in their favor.” Elk v. Hills Power, LLC v. Bd. of

Equalization (2013) 57 Cal.4th 593, 606.)

3 All Internet citations in this opinion are archived by year,

docket number and case name at .

GUND v. COUNTY OF TRINITY

Opinion of the Court by Cuéllar, J.

4

her neighbor, Kristine, had called 911. He asked Mrs. Gund if

she would go check on Kristine, as they were much closer to

Kristine’s home and he was still hours away. After Mrs. Gund

agreed, Corporal Whitman asked if Mr. Gund was home, and

Mrs. Gund said no. He instructed Mrs. Gund not to go to

Kristine’s home by herself. Mrs. Gund asked what Kristine said

on the call, and Corporal Whitman responded that she said,

“Help me.” Mrs. Gund then inquired: “Are you sure? Is that all

she said?” Corporal Whitman responded, “She said two words,

‘Help me.’ ” Mrs. Gund told Corporal Whitman that Mr. Gund

had just arrived home, and Corporal Whitman said, “Good.”

Corporal Whitman did not tell Mrs. Gund that Kristine had

whispered on the phone, that the CHP dispatcher believed she

had been trying to call secretly, or that the county dispatcher’s

return calls to Kristine went straight to voicemail.

Mrs. Gund confirmed for Corporal Whitman that she’d

been to Kristine’s property before, to help the previous owner

with snow and fallen trees. Corporal Whitman mentioned the

impending arrival of a major storm, which “must be what this is

all about.” “It’s probably no big deal,” he continued. Corporal

Whitman then asked if Mrs. Gund had ever met Kristine’s

boyfriend and if he seemed violent. Mrs. Gund confirmed that

she had met Kristine’s boyfriend. In response to whether he

ever seemed violent, Mrs. Gund indicated she “didn’t know. He

seemed real mellow.” Corporal Whitman gave Mrs. Gund his

cell phone number and instructed her to call him as soon as she

and her husband had checked on Kristine. Believing the

emergency to be weather related, the Gunds drove to Kristine’s

home. They speculated that maybe a tree had fallen or that

GUND v. COUNTY OF TRINITY

Opinion of the Court by Cuéllar, J.

5

Kristine, a young city girl, was having trouble with her wood

burning stove.

After arriving at Kristine’s home, Mrs. Gund went in first,

while Mr. Gund stayed in the truck. Immediately after entering

Kristine’s home, Mrs. Gund was attacked by the man who had

just murdered Kristine and her boyfriend. Mr. Gund, hearing

some of the commotion, entered the home and saw the man

holding down his wife and cutting her throat with a knife. The

man then attacked Mr. Gund, as well — tasing him, punching

him, and cutting his throat. During the attack, Mr. Gund saw

on the floor a motionless body with a bag over the head. Mrs.

Gund escaped to the truck and drove to a nearby store for help.

Mr. Gund managed to disarm the attacker and flee on foot to his

home. He got another vehicle and reunited with Mrs. Gund at

the store.

The Gunds filed this action against Trinity County (the

County) and Corporal Whitman. The First Amended Complaint

alleges causes of action for: liability for the act or omission of a

public employee; vicarious liability for the act or omission of a

public employee; misrepresentation by a public employee, with

actual malice; and vicarious liability for misrepresentation by a

public employee, with actual malice. The Gunds contend

Corporal Whitman sought to secure their assistance by falsely

assuring them that Kristine’s call was probably weather related

and knowingly withholding the following facts: Kristine

whispered, the CHP dispatcher thought Kristine was calling

secretly, and the county dispatcher’s return calls went straight

to voicemail.

The County and Corporal Whitman moved for summary

judgment. Workers’ compensation, they argued, was the Gunds’

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Opinion of the Court by Cuéllar, J.

6

exclusive remedy because they sustained their injuries while

engaged in active law enforcement service under section 3366.4

The Gunds argued that section 3366 did not apply because,

given Corporal Whitman’s alleged misrepresentations, they did

not understand themselves to be engaged in “active law

enforcement service” when they complied with his request, nor

would a reasonable person have understood this to qualify under

that standard.

The trial court granted the summary judgment motion.

Despite the Gunds’ contention that they relied on Corporal

Whitman’s alleged misrepresentations, the trial court found

that section 3366 applied because a response to a 911 call under

the circumstances in this case amounts to assisting a peace

officer in active law enforcement. The Gunds appealed.

Although the Court of Appeal agreed that the Gunds provided

active law enforcement service at Corporal Whitman’s request,

it noted the trial court’s failure to acknowledge factual

contentions that Corporal Whitman misled them about the

nature of the requested activity. The Court of Appeal ultimately

found the misrepresentations did not change the outcome in the

trial court. The appellate court reasoned that because Corporal

Whitman’s direct response to Kristine’s 911 call would have

been considered active law enforcement, so too should the



4 The County and Corporal Whitman alternatively argued

that the Gunds’ suit was barred for the following reasons:

(1) the Gunds were employees because they assisted upon

command under section 3366; (2) County Resolution No. 163-87

deems volunteers to be employees if they provide “service” to the

county; and (3) they have governmental immunity from tort

liability. The Court of Appeal did not reach these arguments;

neither do we.

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Opinion of the Court by Cuéllar, J.

7

Gunds’ response on his behalf. The Court of Appeal concluded

that responding to a 911 call for unspecified help — which the

Gunds did here — “is clearly active law enforcement” and

section 3366 applies, rendering workers’ compensation benefits

the Gunds’ exclusive remedy. (Gund v. County of Trinity (2018)

24 Cal.App.5th 185, 195 (Gund).)

We ordered review on the court’s own motion to decide the

scope of workers’ compensation coverage available to the

plaintiffs in this situation, as the availability of such coverage

would constrain them in seeking other redress for their injuries.

Specifically, we address whether plaintiffs engaged in active law

enforcement under section 3366 after a peace officer asked them

to check on a neighbor who dialed 911 for help and the officer

allegedly misrepresented the situation.

II.

Workers’ compensation spreads the cost of injuries

associated with the risks of employment even as it also limits

the extent of recovery a covered worker could have gained

through ordinary civil litigation. (§ 3600, subd. (a); Shoemaker,

supra, 52 Cal.3d at p. 16.) In a typical workers’ compensation

claim, benefits are available for an employee’s injury “arising

out of and in the course of the employment” where “the injury is

proximately caused by the employment.” (§ 3600, subds. (a),

(a)(3).) But volunteers are typically not eligible for these

benefits. (See § 3352, subd. (a)(9) [volunteers are not

employees].) Civilians like the Gunds who volunteer to assist

law enforcement only become “employee[s]” — whose exclusive

remedy lies in the workers’ compensation scheme — if they fall

within the scope of section 3366’s coverage. (§ 3366, subd. (a);

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Opinion of the Court by Cuéllar, J.

8

see § 3602, subd. (a) [workers’ compensation is “the sole and

exclusive remedy of the employee”].)

Section 3366, subdivision (a) provides the following: “For

the purposes of this division, each person engaged in the

performance of active law enforcement service as part of the

posse comitatus or power of the county, and each person . . .

engaged in assisting any peace officer in active law enforcement

service at the request of such peace officer, is deemed to be an

employee of the public entity that he or she is serving or

assisting in the enforcement of the law, and is entitled to receive

compensation from the public entity in accordance with the

provisions of this division.”

To determine whether a civilian is an “employee,” we

approximate the typical workers’ compensation inquiry in the

atypical context defined by the terms of this statute. First, we

consider whether a peace officer asked for assistance with a task

that qualifies as active law enforcement service. Second, we ask

whether the civilian was injured while engaged in that

requested service. This two-step framework incorporates the

typical workers’ compensation requirement that an injury arise

out of and in the course of the employment because the volunteer

is only an “employee” if they are engaged in active law

enforcement service at the request of the police. Put differently,

a peace officer’s request informs whether a civilian’s injury arose

out of and in the course of qualifying employment.

No one in this case disputes that the Gunds assisted “at

the request of” a peace officer, nor is there any dispute that they

were “engaged in assisting” that officer when they sustained

their injuries. (§ 3366, subd. (a).) But to apply this framework

here we must decide if Corporal Whitman’s requested assistance

GUND v. COUNTY OF TRINITY

Opinion of the Court by Cuéllar, J.

9

was for a task of “active law enforcement service.” (Ibid.) We

begin by considering the statute’s language and structure,

bearing in mind that “our primary goal is to determine and give

effect to the underlying purpose of the law.” (Goodman v.

Lozano (2010) 47 Cal.4th 1327, 1332; People v. Valencia (2017)

3 Cal.5th 347, 357 [“ ‘the words of the statute must be construed

in context, keeping in mind the statutory purpose’ ”].) We start

by considering the ordinary meaning of the statutory language,

the language of related provisions, and the structure of the

statutory scheme. (Weatherford v. City of San Rafael (2017) 2

Cal.5th 1241, 1246; see also Larkin v. Workers’ Compensation

Appeals Bd. (2015) 62 Cal.4th 152, 157–158.) If the language of

a statutory provision remains unclear after we consider its

terms, structure, and related statutory provisions, we may take

account of extrinsic sources — such as legislative history — to

assist us in discerning the relevant legislative purpose. (Winn

v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 156; see

also Holland v. Assessment Appeals Bd. No. 1 (2014) 58 Cal.4th

482, 490.)

Based on what we glean from the language, structure, and

legislative history of section 3366 — as well as related statutory

provisions that round out the relevant context — we conclude

that Corporal Whitman requested “active law enforcement

service” when he asked the Gunds to respond to Kristine’s 911

call for help, and that “active law enforcement service” is what

the Gunds provided.

A.

“[A]ctive law enforcement service” is not a phrase defined

by section 3366, nor is it parsed by any other related statutory

provision. The Gunds contend it reaches only a narrow subset

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Opinion of the Court by Cuéllar, J.

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of policing tasks: the type of active investigation and

suppression of crime entailing risk of death or serious injury

while providing protection to the public. But defendants assert

“active law enforcement service” simply identifies the main

duties of a police officer. These words arguably support either

the Gunds or the defendants, because one could reasonably

understand “law enforcement” to either describe a specialized

portion of police activity or to encompass most of what police do.

A literal reading of “law enforcement service” conveys the idea

of service to enforce the law, and perhaps especially — given

how the term “law enforcement” is less commonly associated

with civil regulatory law — efforts to investigate violations of or

otherwise enforce criminal or traffic laws. (See, e.g.,

Commission on Peace Officer Standards & Training v. Superior

Court (2007) 42 Cal.4th 278, 298 [“ ‘Law enforcement officers

carry upon their shoulders the cloak of authority to enforce the

laws of the state’ ”].) This reading treats as separate from “law

enforcement” the broader range of public welfare and routine

order maintenance functions police officers may perform,

irrespective of how tenuously such activities connect to

enforcing criminal or traffic law. (See Decker, Emergency

Circumstances, Police Responses, and Fourth Amendment

Restrictions (1999) 89 J.Crim. L. & Criminology 433, 445–446,

fn. omitted [“police serve to ensure the safety and welfare of the

citizenry at large,” which “may involve approaching a seemingly

stranded motorist or lost child to inquire whether he or she

needs assistance, assisting persons involved in a natural

disaster, or warning members of a community about a

hazardous materials leak in the area”]; Michigan v. Bryant

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Opinion of the Court by Cuéllar, J.

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(2011) 562 U.S. 344, 368 [“Police officers in our society function

as both first responders and criminal investigators”].)

Yet judicial opinions and the public discourse routinely

embrace a more capacious understanding of “law enforcement,”

treating police officers as all but synonymous with “law

enforcement officers.” (See, e.g., Mary M. v. City of Los Angeles

(1991) 54 Cal.3d 202, 215, 216 [using both “law enforcement

officers” and “police officers” in discussing the reasons for

imposing vicarious liability on a public entity when such an

officer commits a sexual assault while on duty].) From this

vantage point, “active law enforcement service” plausibly refers

to the full range of work law enforcement officers do —

stretching far beyond the investigation of crime, the suppression

of criminal offenses, and the detention of criminals. It is this

subtle but meaningful distinction in what “law enforcement”

means that we must address at the outset.

We have good reasons to embrace, in this context, a more

capacious understanding of what “law enforcement service”

means. For reasons detailed below, we conclude that the term

“active law enforcement service” — as used in section 3366

— falls short of encompassing every conceivable function a

peace officer can perform. But neither is it quite so narrow that

we are compelled to hold it only applies to the arrest and

detention of criminals, or the direct suppression of crime. We

conclude that “active law enforcement service” includes a peace

officer’s duties directly concerned with functions such as

enforcing laws, investigating and preventing crime, and

protecting the public. Whatever the outer limits of the term,

“active law enforcement” certainly includes the arrest and

detention of criminals, as well as — given the range of reasons

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Opinion of the Court by Cuéllar, J.

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that ordinarily trigger emergency calls to police — responses to

emergency calls for unspecified assistance, such as Kristine’s

911 call for help. (See, e.g., Livingston, Police Discretion and the

Quality of Life in Public Places: Courts, Communities, and the

New Policing (1997) 97 Colum. L.Rev. 551, 559 [investigation,

arrest, and prosecution of those committing serious crimes is

“straightforward” police intervention]; see also id. at p. 567 [the

modern “ ‘crime-fighting’ ” strategy of policing includes rapid

response to 911 calls for service].)

Consider at the outset the structure of section 3366. It

applies when an individual is injured while engaged in active

law enforcement service, either on command or voluntarily at

the request of a peace officer. Government Code section 26604

indicates that sheriffs “shall command the aid” of inhabitants as

they think necessary to execute their duties. This authority for

calling forth citizens to aid in law enforcement is the posse

comitatus power. (Kopel, The Posse Comitatus and the Office of

Sheriff: Armed Citizens Summoned to the Aid of Law

Enforcement (2015) 104 J.Crim. L. & Criminology 761, 769–

806.) The posse comitatus power predates the nation’s founding

and has a complicated history. (Id. at pp. 792–793.) At the

federal level, the Fugitive Slave Act of 1850 contained posse

comitatus provisions enabling federal law enforcement officers

to compel northerners to assist in the capture of enslaved people

who had escaped bondage. (Id. at pp. 798–800.) After the Civil

War, the power was used in reverse to enforce civil rights

legislation in the Reconstruction south. (Id. at pp. 800–801.)

But the more familiar use of the posse comitatus power was the

western frontier version: where a sheriff summoned the posse

to pursue an escaped outlaw or confront a violent gang. (Id. at

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p. 802.) During this era, preservation of the peace did not fall

exclusively to peace officers. (Pressel, The Western Peace

Officer (1972) pp. 30–31.) On the frontier, preserving the peace

was public duty. (Ibid.) Amicus curiae Rural County

Representatives of California explains that unlike with the

large, organized police forces for urban centers, peace officers in

remote areas — like Trinity County — still rely on community

members to assist in ensuring community safety.

Until January 1, 2020, it was a misdemeanor for civilians

to refuse many of these commands for assistance. Penal Code

former section 150 established what assistance a peace officer

could command by criminalizing the failure to join the posse

comitatus, or power of the county. A peace officer could

command, with threat of criminal sanction, assistance in

making an arrest, recapturing an escapee, preventing a breach

of the peace, or preventing the commission of any other criminal

offense. (Pen. Code, former § 150.) These services are ones for

which an individual inherently exposes herself to risks in order

to protect the public. (See Gund, supra, 24 Cal.App.5th at p.

198.) So although section 3366’s implicit reference to Penal

Code former section 150 limits the type of services a peace officer

can command upon penalty of misdemeanor to services that

appear crime-facing, that reference does not necessarily limit

what assistance qualifies as active law enforcement service.

Sheriffs may still “command the aid of as many inhabitants of

the sheriff’s county as he or she thinks necessary in the

execution of his or her duties.” (Gov. Code, § 26604.) These

provisions suggest that the range of active law enforcement

services an officer can request, or command without the

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Opinion of the Court by Cuéllar, J.

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possibility of misdemeanor charges, may prove somewhat

broader than assistance with crime-fighting activity alone.

Section 3366, subdivision (a) contains additional language

bearing on our construction of “active law enforcement service.”

It deems individuals providing this “active law enforcement

service” as employees of the public entity they are serving “in

the enforcement of the law.” (Ibid., italics added.) This variation

on law enforcement service is consistent with the idea that the

statute covers a range of activity somewhat more limited than

all police work, and it reinforces the notion that coverage

extends only to those individuals undertaking certain explicit

action “in the enforcement of the law.” (Ibid.) Taken together,

section 3366 and Penal Code former section 150 are most

reasonably understood to suggest that the concept of active law

enforcement service, whatever its scope, may stop short of

covering all the general work of a police officer — including, for

instance, clerical work bearing a more remote relationship to

“the enforcement of the law” — but its purview is more capacious

than simply criminal investigation and prevention of specific

crimes.

The statute’s language, structure, and legislative history

also suggest a more capacious understanding of “active law

enforcement service” to encompass protection of civilians from

the kinds of physical threats to their well-being that could

plausibly expose volunteers to material risk of injury. The

statute provides compensation to individuals who sustain

injuries while assisting peace officers with such active law

enforcement service. (§ 3366, subd. (a).) Read in the context of

how workers’ compensation laws usually operate, section 3366

is best understood as an exception to an exclusion from coverage.

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(See § 3352, subd. (a)(9) [volunteers are not employees]; § 3366

[individuals engaging in active law enforcement service at the

request of a peace officer are employees].) Such exceptions to

exclusions are to be read broadly, consistent with the directive

to construe workers’ compensation provisions with the purpose

of extending coverage. (See Minish v. Hanuman Fellowship

(2013) 214 Cal.App.4th 437, 466, fn. 16 [citing Machado v.

Hulsman (1981) 119 Cal.App.3d 453, 455–456]; § 3202 [workers’

compensation provisions shall be liberally construed with the

purpose of extending benefits].)

Moreover, providing coverage through a workers’

compensation model means that, although the extent of

compensation may be limited, civilians can get that

compensation without fighting over the specifics of an officer’s

request for help or whether the request amounted to a negligent

misrepresentation. (§ 3600, subd. (a)(3).) Through this system,

determinations of coverage turn on whether an individual’s

injuries arose out of and in the course of the employment, rather

than on the subjective awareness of particular individuals.

(§ 3600, subd. (a).) This model makes it much simpler and

quicker for injured civilians to get compensation. It’s also

amenable to consistent application — as individuals engaged in

the same service will not face disparate coverage determinations

based on subjective factors, like their understanding of potential

risk. An overly narrow interpretation of active law enforcement

service, or one that turns on subjective factors, would leave

without recourse many individuals injured while obliging a

peace officer’s request for assistance, undermining its civilianprotective purpose.

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This broader, civilian-protective interpretation also fits

with the statute’s history. The Law Revision Commission

proposed the bill enacting section 3366 in direct response to this

court’s 1961 decision in Muskopf v. Corning Hospital District

(1961) 55 Cal.2d 211 (Muskopf). In Muskopf, we abolished the

“vestigial remains” of common law sovereign immunity due to

its significant erosion over time. (Id. at p. 221.) In response, the

Legislature temporarily suspended Muskopf’s effect (Stats.

1961, ch. 1404, pp. 3209–3210) and directed the Law Revision

Commission to complete a study of the issue (see Assem. Conc.

Res. No. 22, Stats. 1957 (1956–1957 Reg. Sess.) res. ch. 202,

p. 4590). The Law Revision Commission considered a report by

Professor Arlo Van Alstyne about injuries sustained when

citizens aid police in law enforcement. (See A Study Relating to

Sovereign Immunity (Jan. 1963) 5 Cal. Law Revision Com. Rep.

(1963) pp. 404, 452–453.) Van Alstyne suggested that “the

elimination of possible misgivings as to financial consequences

in the event injury is sustained might conceivably tend to

promote more willing and wholehearted cooperation by citizens

when called upon to give aid in law enforcement.” (Id. at p. 453.)

Van Alstyne proposed alternative possibilities to compensate

citizens injured while providing that requested assistance:

absolute tort liability or limited workers’ compensation benefits.

(Id. at pp. 453–454.)

The Law Revision Commission chose to propose the

workers’ compensation benefits model, noting it was “better

policy to extend to such persons the same benefits and

protections that are provided to peace officers generally.”

(Recommendation Relating to Sovereign Immunity, Number

6 — Workmen’s Compensation Benefits for Persons Assisting

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Law Enforcement or Fire Control Officers (Jan. 1963) 4 Cal. Law

Revision Com. Rep. (1963) p. 1505, fn. 4 (Recommendation

Relating to Sovereign Immunity); see id., at pp. 1505–1506.)

The Law Revision Commission’s ultimate recommendation

suggested expanding coverage from only those commanded into

service to include those assisting upon request because “[m]any

people would assume that they are required to assist police

officers whenever requested to do so, and others would feel it

their civic duty whether required to by law or not.” (Cal. Law

Revision Com., Second Supp. to Mem. 23 (May 18, 1962) study

52(L), at p. 1.) The Law Revision Commission’s

recommendation elaborated that “[w]hen a person not trained

in law enforcement . . . is required by law to assume the risk of

death or serious injury to provide such protection to the public,

or when he undertakes to do so at the request of a peace

officer . . . , he and his dependents should be provided with

protection against the financial consequences of his death or

injury.” (Recommendation Relating to Sovereign Immunity,

supra, 4 Cal. Law Revision Com. Rep., at p. 1505.)

The bill’s author, Senator James A. Cobey, also served on

the Law Revision Commission — and he appears to have shared

this concern. In his floor statement, Senator Cobey echoed the

Law Revision’s Commissions recommendation that when

someone without law enforcement training “is required by law

to assume the risk of death or serious injury to provide such

protection to the public, or when he undertakes to do so at the

request of a peace officer . . . , he and his dependents should be

provided with some protection against the financial

consequences of his death or injury.” (Floor statement by

Senator James A. Cobey regarding Sen. Bill No. 47 (1963 Reg.

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18

Sess.) (Cobey Floor Statement).) He also included this same

language in his letter to Governor Edmund Brown. (James A.

Cobey, Senate Bill Author, letter to Governor Edmund G.

Brown, June 21, 1963 (June 1963 Cobey Letter).)

A complementary concern familiar from the history and

underlying logic of workers’ compensation was also at play in

the legislative drafting process: limiting expansive liability for

public agencies. Senator Cobey repeatedly explained that the

exclusive remedy provision of the workers’ compensation

scheme “will prevent such persons from bringing civil actions for

damages and will eliminate the possibility of public entities

having to pay catastrophic judgments.” (Cobey Floor Statement,

supra; and June 1963 Cobey Letter, supra.) The legislative

analysis for the bill also notes that using the workers’

compensation system responds to a lack of uniformity of law and

practice in an area that “contains large potential liability.”

(Legis. Analyst, analysis of Sen. Bill No. 47 (1963 Reg. Sess.) as

amended May 3, 1963, p. 1.) That limiting the extent of public

agency liability was a guiding concern for the Legislature is no

surprise, as section 3366 was enacted as part of a restructuring

of governmental immunity after Muskopf.

When eventually enacted by the Legislature, the bill

containing section 3366 was almost identical to what the Law

Revision Commission had embraced. (Compare Stats. 1961, ch.

1684, § 2, p. 3306 with Recommendation Relating to Sovereign

Immunity, supra, 4 Cal. Law Revision Com. Rep., at p. 1506.)

Reading the Law Revision Commission’s deliberation alongside

the legislative history, and what we can glean from the structure

of the statute, we discern three purposes that the legislation

appears crafted to serve: (1) creating an incentive for

GUND v. COUNTY OF TRINITY

Opinion of the Court by Cuéllar, J.

19

individuals to provide requested law enforcement service;

(2) compensating, without concern for fault, someone who is

injured while assisting a peace officer with law enforcement

duties; and (3) limiting the state’s financial exposure.

These goals are best served by a more capacious

understanding of “active law enforcement service.” The

workers’ compensation model makes the public agency liable for

the costs of the injuries of people assisting police with requested

active law enforcement service, whether or not the requesting

officer was ultimately at fault. (§ 3600, subd. (a)(3); see also

Shoemaker, supra, 52 Cal.3d at p. 16.) By expanding

availability of workers’ compensation, the bill tended to make it

easier for individuals to provide assistance, instead of triggering

the complexities inherent in making coverage turn on whether

individuals correctly discerned whether they were being

commanded or requested to provide assistance. This latter

scenario is one the Law Revision Commission sought to avoid.

The simpler, quicker availability of these benefits can

incentivize individuals to oblige a peace officer’s request for

help, because they will ostensibly be less concerned with the

financial consequences of potential injury or death.

Moreover, because peace officers and citizens providing

requested assistance may not always know the extent of risk a

response implicates, the bill appears to make workers’

compensation coverage available whenever a peace officer

requests assistance in “active law enforcement service” — as law

enforcement duties often entail a risk of injury. (§ 3366, subd.

(a) [“engaged in assisting any peace officer in active law

enforcement service at the request of such peace officer”].) What

GUND v. COUNTY OF TRINITY

Opinion of the Court by Cuéllar, J.

20

coverage under section 3366 depends on is the nature of the

requested assistance.

B.

A more expansive interpretation of active law enforcement

service — covering tasks that objectively qualify as a peace

officer’s law enforcement duties directly concerned with

functions like enforcing laws, investigating and preventing

crime, and protecting the public — is also consistent with

previous opinions interpreting section 3366, and related

provisions of the Labor Code. (See McCorkle v. City of Los

Angeles (1969) 70 Cal.2d 252, 263, fn. 11; Page v. City of

Montebello (1980) 112 Cal.App.3d 658.) In McCorkle, we

concluded that an individual who assists an officer by simply

providing “facts within his own knowledge” does not provide

active law enforcement service because “[t]he legislative

purpose of [section 3366] was to cover a person who assumes the

functions and risks of a peace officer.” (McCorkle, supra, 70

Cal.2d at p. 263, fn. 11.) Whatever the ultimate scope of law

enforcement duties is, it does not include the assistance

provided in McCorkle. In Page, the Court of Appeal accepted the

Workers’ Compensation Appeals Board’s determination that an

informant who assisted in apprehending individuals dealing

narcotics provided active law enforcement service. (Page, supra,

112 Cal.App.3d at pp. 661–662.) These cases are consistent with

the idea that active law enforcement service encompasses tasks

undertaken to protect the public in addition to those directly

concerned with enforcing the law or investigating and

preventing crime. This construction further vindicates the

purpose of the provision’s enactment: to mitigate the financial

GUND v. COUNTY OF TRINITY

Opinion of the Court by Cuéllar, J.

21

consequences for individuals assuming the law enforcement

duties and risks of police officers.

The phrase “active law enforcement service” appears

elsewhere in the Labor Code. (See, e.g., §§ 3212.6, 3212.9, 4850.)

When a phrase appears in two statutes dealing with the same

subject matter, we usually interpret the phrase to have the same

meaning across the provisions. (People v. Villatoro (2012) 54

Cal.4th 1152, 1161.) Section 4850, subdivision (a) provides for

a paid leave of absence in lieu of temporary disability payments

for individuals holding positions listed in subdivision (b) if they

are injured in the course of their duties. Subdivision (b)

includes, among others, city police officers, firefighters, sheriffs,

officers or employees of sheriff’s offices, and certain personnel in

a district attorney’s office. But subdivisions (c)(1), (c)(2), and

(c)(3) of section 4850 exclude employees of certain offices “whose

principal duties are those of a telephone operator, clerk,

stenographer, machinist, mechanic, or otherwise, and whose

functions do not clearly come within the scope of active law

enforcement service.”

As with the cases interpreting section 3366, we can

discern from cases parsing “active law enforcement service”

when it appeared in an earlier version of section 4850 an

awareness of the Legislature’s purpose to protect employees

taking on physical hazards on behalf of the public. (See, e.g.,

Kimball v. County of Santa Clara (1972) 24 Cal.App.3d 780, 785

(Kimball); Biggers v. Workers’ Comp. Appeals Bd. (1999) 69

Cal.App.4th 431, 440–441 (Biggers).) Biggers focused on this

notion, noting that courtroom bailiffs provide active law

enforcement service because they expose themselves to hazards

as they protect the public — for example, by confiscating guns

GUND v. COUNTY OF TRINITY

Opinion of the Court by Cuéllar, J.

22

and knives and having contact with inmates. (Biggers, supra,

69 Cal.App.4th at pp. 440–441.) Interpreting active law

enforcement service to reach tasks a police officer undertakes to

enforce the law, investigate and prevent criminal activity, or

protect the public is consistent with enhanced coverage for

police officers: Guarding against loss of livelihood tends to make

individuals more likely to undertake these types of law

enforcement duties — which provide public benefit but are often

dangerous. Whatever its ultimate scope, the investigation and

prevention of criminal activity constitute ready examples of how

an individual may provide active law enforcement service.

These Labor Code provisions further buttress the case for

reading “active law enforcement service” in section 3366 as a

broad reference to a peace officer’s duties directly concerned

with functions such as enforcing laws, investigating and

preventing criminal activity, and protecting the public. Section

4850 draws certain distinctions relevant here by categorically

establishing positions subject to coverage and excluding from

coverage positions whose primary duties are routine and

clerical. (See § 4850, subds. (b), (c).) Sections 3212.6 and 3212.9

have similar structures. Some positions merit enhanced

coverage under distinctions drawn by the statute, while others

are expressly excluded. But section 3366 does not address the

principal duties of a full-time employee; it establishes a special

circumstance in which an otherwise uncovered individual may

receive workers’ compensation. Neither the statute nor any

relevant prudential principle makes the interpretive question

here turn on whether a volunteer performs a “principal duty” of

law enforcement officer. Simply asking if a civilian performed

one of a peace officer’s principal duties could trigger

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Opinion of the Court by Cuéllar, J.

23

unnecessarily intricate questions not only about the limits of

principal duties, but about whether that question should be

resolved by focusing on the actions of individual officers or

larger bureaucratic units. A test that pivots on “principal

duties” would also virtually guarantee that compensable

activities would include those less directly connected to law

enforcement, such as filling out a report or engaging in

community outreach. Instead of asking if the civilian performed

any task that could conceivably be described as a principal duty

of a law enforcement officer, we must determine under section

3366 whether the type of task an officer requests constitutes a

duty directly concerned with enforcing the laws, investigating or

preventing criminal activity, or protecting the public.

Certain Government Code provisions, both current and

former, also use the phrase “active law enforcement service” to

establish which employees are eligible for various benefits. (See,

e.g., Gov. Code, §§ 20436, subd. (a), 31469.3, subd. (b), 31470.3;

see id., former §§ 20019, 20020.) As with the Labor Code, the

term is undefined. In outlining which government employees

are eligible for particular retirement benefits, Government Code

former sections 20019 and 20020 provided coverage for local

“ ‘ “safety members,” ’ ” including “ ‘all local policemen.’ ”

(Crumpler v. Board of Administration (1973) 32 Cal.App.3d 567,

576 (Crumpler), quoting Gov. Code, former § 20019.) The term

“ ‘ “[l]ocal policemen” ’ ” meant “ ‘any officer or employee of a

police department of a contracting agency, except one whose

principal duties are those of a telephone operator, clerk,

stenographer, machinist, mechanic, or otherwise and whose

functions do not clearly fall within the scope of active law

enforcement service even though such an employee is subject to

GUND v. COUNTY OF TRINITY

Opinion of the Court by Cuéllar, J.

24

occasional call, or is occasionally called upon, to perform duties

within the scope of active law enforcement service.’ ” (Crumpler,

at p. 576, italics and fn. omitted, quoting Gov. Code, former

§ 20020.)

Courts of Appeal construing active law enforcement for

purposes of these Government Code provisions also discuss the

physical hazards of law enforcement activity. (See, e.g.,

Crumpler, supra, 32 Cal.App.3d at p. 578; Neeley v. Board of

Retirement (1974) 36 Cal.App.3d 815, 822 (Neeley).) But in

Crumpler, the Court of Appeal concluded that active law

enforcement service means “the active enforcement and

suppression of crimes and the arrest and detention of criminals,”

with specific attention to crimes against people or property.

(Crumpler, supra, 32 Cal.App.3d at p. 578; see id., at pp. 578–

579.) Supporting this conclusion, the Court of Appeal discussed

a formal opinion from the Attorney General contending that

“active law enforcement service” in these Government Code

provisions does not extend to everything a police officer does, but

rather is limited to physically active work — such as the arrest

and detention of criminals — that exposes officers to physical

risk. (Id. at p. 577, citing 22 Ops.Cal.Atty.Gen. 224, 229.) The

Court of Appeal in Boxx v. Board of Administration (1980) 114

Cal.App.3d 79 also focused on criminal investigation, finding

that a Housing Authority of the City of Los Angeles (HACLA)

officer provided active law enforcement service because he was

required to make arrests for criminal activity occurring in and

around HACLA property. (Id. at p. 86.) Although these cases

discuss crime suppression and investigation, they ground much

of their reasoning in exposure to hazard to provide public

protection. Read in this light, action meant to prevent specific

GUND v. COUNTY OF TRINITY

Opinion of the Court by Cuéllar, J.

25

criminal activity — by showing a potential perpetrator that a

would-be victim is not isolated, for example — constitutes a

common and readily available example, rather than the

exclusive category, of the hazards the covered public employees

undertake. (See Glover v. Bd. of Retirement (1989) 214

Cal.App.3d 1327, 1333 [“The common thread running through

cases [that interpret the term ‘safety member’] is the concept

that the classification of a ‘safety member’ engaged in active law

enforcement is largely controlled by the extent to which the

category exposes its holders to potentially hazardous activity”].)

The term “active law enforcement service,” then,

encompasses the duties of peace officers directly concerned with

enforcing the laws, investigating and preventing criminal

activity, and protecting the public. These Labor Code and

Government Code provisions, and their associated appellate

court cases, underscore that “active law enforcement service” is

best understood as capacious — but not entirely open ended —

to include these core public protection, enforcement, and crimefighting functions. Drawing precise lines to define these

functions is a task we can leave for another day. For today, it’s

enough to conclude that responding to a 911 call for assistance

of an unknown nature — which possibly includes responding to

criminal activity — falls well within the lines defining “active

law enforcement service.”

C.

Responding to a 911 call for assistance of an unknown

nature is what the Gunds did, so they are properly deemed

employees under section 3366. In applying our two-step

framework here, we first ask whether Corporal Whitman asked

the Gunds to assist with a type of task that qualifies as active

GUND v. COUNTY OF TRINITY

Opinion of the Court by Cuéllar, J.

26

law enforcement service. For purposes of our review, there is no

dispute that the Gunds acted at Corporal Whitman’s request.

The dispute centers on whether the requested assistance

amounts to active law enforcement service, which we conclude

encompasses tasks within a peace officer’s duties to investigate

and prevent crime, enforce the laws, and protect the public.

At its core, the request from Corporal Whitman was that

the Gunds respond to a 911 call for help of an unspecified

nature. Responding to a 911 call for unspecified help serves a

vital public protection purpose. As the Gunds assert, Corporal

Whitman explained that Kristine called 911 seeking help.

Because he was far away, Corporal Whitman sought the Gunds’

help to check on Kristine at her home. That Corporal Whitman

or one of his law enforcement colleagues would ordinarily

provide such a response is unremarkable and uncontroversial.

Whatever the limits of “active law enforcement service” under

section 3366 as we defined the phrase above, the requested

service here falls within it.

The specific details of the exchange between Corporal

Whitman and Mrs. Gund do not change the essential nature of

his request that the Gunds respond to a 911 call for unspecified

help. After requesting Mrs. Gund’s assistance, Corporal

Whitman implored her not to go alone to Kristine’s home, which

prompted her to ask what Kristine said in the 911 call. Corporal

Whitman relayed that Kristine said, “Help me.” Mrs. Gund

asked, “Are you sure? Is that all she said?” Corporal Whitman

confirmed, “[S]he said two words, ‘Help me.’ ” Corporal

Whitman made clear he did not know the reason for Kristine’s

call for help. After learning the Gunds were familiar with

Kristine’s property because they had assisted the previous

GUND v. COUNTY OF TRINITY

Opinion of the Court by Cuéllar, J.

27

owner with snow and fallen trees, Corporal Whitman noted

there was a big storm coming. He said, “[t]hat must be what

this is all about. It’s probably no big deal.” But he followed by

asking Mrs. Gund if she knew Kristine’s boyfriend and if he ever

seemed violent. Mrs. Gund replied that she “didn’t know,” but

offered that “[h]e seemed real mellow.” Despite Corporal

Whitman’s assessment that there was likely a weather

emergency and that it was “probably no big deal,” his general

request was still one for a response to a 911 call for help of an

uncertain nature.

5

The dissent treats Corporal Whitman’s assessment that

Kristine’s 911 call “must be” weather related and “probably no

big deal” as an assurance to the Gunds about what awaited them

at their neighbor’s home. (Dis. opn., post, at p. 5.) But Corporal

Whitman also conveyed that Kristine had said two words,

“ ‘Help me.’ ” He used equivocal language to assess the

situation, noting that the issue “must be” weather-related and

that it was “probably no big deal.” After this speculation, he

asked whether Kristine’s boyfriend seemed violent. Though it

may have been eminently sensible for the Gunds to conclude

Kristine was likely having a weather-related emergency based

on this assessment, that sensibility did not convert the

requested assistance in response to a 911 call for unspecified



5 The dissent claims our conclusion does not consider

relevant “the words, facts, and context” of a peace officer’s

request. (Dis. opn., post, at p. 17; see also id. at pp. 4, 5, 8–9.)

We conclude instead that the information discussed in Corporal

Whitman’s call to Mrs. Gund did not alter the essential nature

of the requested task — which remained a response to a 911 call

for help of an uncertain nature and, thus, “active law

enforcement service.”

GUND v. COUNTY OF TRINITY

Opinion of the Court by Cuéllar, J.

28

help into a request concerning a weather-related issue that

could conceivably prove beyond the scope of “active law

enforcement service.”

Under these circumstances, Corporal Whitman’s

omissions — Kristine’s whispering, the CHP dispatcher’s belief

the call was secret, and the county dispatcher’s return calls

going straight to voicemail — may have provided additional

context for the Gunds to suspect they might encounter a

dangerous situation. But these omissions do not change our

conclusion that Corporal Whitman’s request was that the Gunds

respond to a 911 call for unspecified help — a typical law

enforcement task often associated with investigation of possible

criminal activity, response to such activity, or protection of the

public.

6 (See, e.g., Crumpler, supra, 32 Cal.App.3d at p. 577,

citing 22 Ops.Cal.Atty.Gen. at p. 229.)



6 The dissent takes our conclusion to mean that

misrepresentations — even lies — do not matter in situations

where police request assistance from volunteers. (Dis. opn.,

post, at pp. 3, 5, 8–10.) But our conclusion isn’t that

misrepresentations are irrelevant — it’s that even viewing the

facts in the light most favorable to the Gunds, Corporal

Whitman’s request remained one for active law enforcement

service. Nor do we foreclose the possibility that

misrepresentations may affect the availability of other remedies

such as tort actions. (See post, at pp. 32–33, 33, fn. 7.) The

dissent’s conclusion seems to be instead that the presence of an

alleged misrepresentation can by itself remove an activity from

even possibly being within the scope of “active law enforcement

service.” (Dis. opn., post, at pp. 3, 4–6, 9, 16–17.) But it’s worth

bearing in mind that even as the Gunds here seek to limit the

purview of workers’ compensation so they can pursue what they

consider to be a viable tort claim, many injured volunteers lack

GUND v. COUNTY OF TRINITY

Opinion of the Court by Cuéllar, J.

29

We next ask whether the Gunds were injured while

engaged in assisting with that law enforcement service —

mirroring the typical workers’ compensation requirement that

an injury arise out of and in the course of employment. (§ 3600,

subd. (a)(3).) There is no question the Gunds “engaged in

assisting” Corporal Whitman. And they sustained their injuries

while responding, as requested, to a 911 call for help, an active

law enforcement task. After entering Kristine’s home, the

Gunds faced her murderer, who cut their throats and punched

and tased Mr. Gund.

Under these circumstances, Corporal Whitman requested

that the Gunds assist in active law enforcement service, and the

Gunds were injured in the course of providing that service.

Section 3366 applies, and workers’ compensation benefits are

the Gunds’ exclusive state law remedy. (§ 3602, subd. (a).)

III.

We have established that the state has liability for the

Gunds’ injuries under workers’ compensation because they were

injured in the course of assisting with active law enforcement

service at the request of a peace officer. The Gunds nonetheless

argue that any misrepresentation by the requesting officer

about the nature of the risk involved trumps the application of

this statutory test.



a viable tort claim and must instead make do with workers’

compensation or nothing. The last thing we should imply is that

police are free to conveniently gerrymander the scope of section

3366 simply by baking into their requests for volunteer

assistance misrepresentations creating enough ambiguity for a

reasonable person to conclude the task does not involve “active

law enforcement service.”

GUND v. COUNTY OF TRINITY

Opinion of the Court by Cuéllar, J.

30

Corporal Whitman’s misrepresentations matter, the

Gunds allege, because whether they engaged in active law

enforcement depends in part on what they subjectively believed

to be true about Kristine’s 911 call and their provided service.

To support this proposition, the Gunds rely on the plurality

opinion in People v. Ray (1999) 21 Cal.4th 464 (lead opn. of

Brown, J.) (Ray). This reliance is misplaced. Ray is a Fourth

Amendment case concerning the community caretaking

function exception to the warrant requirement for a search. (See

id. at pp. 467–468.) In the Fourth Amendment context, a

plurality opinion concluded that the community caretaking

exception to the warrant requirement does not apply where a

stated reliance on property protection is pretext for a crimesolving rationale. (Id. at p. 477.) There, the subjective and

reasonable belief of the officer directs whether the exception

applies. (Id. at pp. 476–477.)

But nowhere on the textured surface of section 3366 is

there a place onto which we can graft a subjective

understanding component. First, community caretaking does

not incorporate subjectivity in a way that supports a place for it

in this scheme. We recently disapproved the lead opinion in

Ray, rejecting its rationale for allowing warrantless entries

under the community caretaking doctrine. (People v. Ovieda

(2019) 7 Cal.5th 1034, 1038.) Second, Ray does not interpret

section 3366 or any other California statute with the phrase

“active law enforcement service,” and, unlike Ray, the present

case does not interpret federal constitutional law. Third,

California cases that have construed the phrase “active law

enforcement service” in other statutes considered what an

individual actually did, suggesting an objective inquiry. (See

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Opinion of the Court by Cuéllar, J.

31

Neeley, supra, 36 Cal.App.3d at p. 818, fn. 2; Biggers, supra, 69

Cal.App.4th at p. 441.) Determining whether an individual

provides active law enforcement service remains an objective

inquiry. As we concluded above, the alleged omissions may have

provided more information as to the danger the Gunds faced,

but they do not change our conclusion that Corporal Whitman’s

request that the Gunds respond to a 911 call for help is a task

within the law enforcement duties of a peace officer, and

therefore a request for active law enforcement service.

The Gunds seem to imply that misrepresentations matter

because they bear on whether an individual subjectively

understood the hazards involved in assisting an officer. This

approach risks consequences that are difficult to justify. Under

their approach, the subjective understanding of an individual

request would be central to our analysis. That would potentially

leave individuals providing the same type of assistance with

different coverage determinations depending on the specifics of

a request or the individual’s ability to assess the risks inherent

in the type of requested service.

The Gunds additionally contend that section 3366 does not

apply when a plaintiff alleges that a request for assistance

contains misrepresentations, because the misrepresentations

render any assistance involuntary. They rely on Moyer v.

Workmen’s Comp. Appeals Bd. (1973) 10 Cal.3d 222 for this

proposition. But their reliance on Moyer is misplaced. In Moyer,

we discussed an employee’s choice to accept a rehabilitation

program for which section 139.5 required such acceptance to be

“ ‘voluntary and not be compulsory.’ ” (Id. at p. 229.) Moyer does

not bear on whether an individual voluntarily provides active

law enforcement service.

GUND v. COUNTY OF TRINITY

Opinion of the Court by Cuéllar, J.

32

Furthermore, even when an employer intentionally

conceals and misrepresents hazards in order to induce an

individual to accept employment, workers’ compensation is the

individual’s exclusive remedy. (See Cole v. Fair Oaks Fire

Protection Dist. (1987) 43 Cal.3d 148, 157–158 (Cole); Wright v.

FMC Corp. (1978) 81 Cal.App.3d 777, 779; Buttner v. American

Bell Tel. Co. (1940) 41 Cal.App.2d 581, 584.) In Cole, we

explained that an employer’s intentional and deceitful conduct

should not take an action outside of the workers’ compensation

system because it would convert the focus of litigation into an

issue of the employer’s state of mind and away from whether the

injury arose out of and in the course of employment. (Cole,

supra, 43 Cal.3d at p. 158.) We reasoned that allowing actions

for damages based on the employer’s state of mind would

significantly disturb the balance of the workers’ compensation

system: swift and certain payment for the injured employee in

exchange for the employer’s immunity from liability at law.

(Ibid.) Put differently, allowing allegations of

misrepresentation to take claims like this outside the workers’

compensation system would disturb the carefully balanced

scheme the Legislature designed.

A plaintiff may, however, allege a tort claim under

circumstances not argued here. A plaintiff may pursue tort

claims for intentional misconduct that has only a questionable

relationship to the employment, an injury that did not occur

while the employee was performing a service incidental to and

a risk of the employment, or where the employer stepped out of

its proper role. (Fermino v. Fedco, Inc. (1994) 7 Cal.4th 702, 713

(Fermino) [citing Cole, supra, 43 Cal.3d at p. 161].) These types

of injuries are beyond the compensation bargain. (Fermino,

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Opinion of the Court by Cuéllar, J.

33

supra, 7 Cal.4th at p. 714.) But these are not the types of

injuries the Gunds assert. Their assertion that Corporal

Whitman’s misrepresentations caused their injuries turns on

his state of mind and does not present a case in which he

engaged in some conduct beyond the employment-like

relationship created by section 3366. Also lying well beyond the

compensation bargain, and an exception to the exclusivity

provision, are injuries where the employer’s motive violates a

fundamental policy of the state. (Charles J. Vacanti, M.D. v.

State Comp. Ins. Fund (2001) 24 Cal.4th 800, 812.) The Gunds

assert that Corporal Whitman’s alleged misrepresentations

inducing their assistance constitute such a violation of

fundamental policy. We need not address that contention here,

though, because the Gunds did not raise this argument in the

trial court, the Court of Appeal, or their Opening Brief. The first

time the Gunds raise this argument is in their Reply Brief. This

argument is, therefore, forfeited. Our holding today does not

foreclose a civil action where this argument is properly raised.7

Finally, although workers’ compensation does not provide

the full menu of remedies available in tort, it is far from

meaningless. Injured civilians, like the Gunds, can receive

compensation for their injuries without having to fight over

what an officer communicated or whether it amounted to

negligence. (§ 3600, subd. (a)(3).) This is a simpler path to

compensation. The workers’ compensation scheme also

accounts for injuries resulting from employer misconduct.



7 Our holding also does not bear on the viability of claims

under Title 42 United States Code section 1983. (See Martinez

v. California (1980) 444 U.S. 277, 284, fn. 8 [“ ‘Conduct by

persons acting under color of state law which is wrongful under

42 U.S.C. § 1983 . . . cannot be immunized by state law’ ”)].)

GUND v. COUNTY OF TRINITY

Opinion of the Court by Cuéllar, J.

34

Section 4600, subdivision (a) provides for treatment “that is

reasonably required to cure or relieve the injured worker from

the effects of the worker’s injury.” And section 4553 provides

that the amount of coverage recoverable “shall be increased onehalf . . . where the employee is injured by reason of the serious

and willful misconduct” of certain agents of the employer. The

purpose of this provision is to provide “more nearly full

compensation to an injured employee” who is injured as a result

of such willful misconduct. (State Dept. of Correction v.

Workmen’s Comp. App. Bd. (1971) 5 Cal.3d 885, 889.) This

enhanced workers’ compensation benefit is available against

public employers. (Id. at p. 891.) This means that although the

workers’ compensation scheme allows more limited recovery

than what is available through tort litigation (see, e.g.,

Shoemaker, supra, 52 Cal.3d at p. 16), plaintiffs like the Gunds

may be able to recover more complete compensatory damages if

they are able to establish willful misconduct.

Simply alleging a request for assistance contained a

misrepresentation, without more, does not preclude application

of section 3366 and the exclusivity provision. Neither do

misrepresentations alter our construction of “active law

enforcement service,” which considers the type of task rather

than an individual’s subjective understanding of risk.

IV.

Section 3366 protects the public by spreading the costs of

injuries risked by the people who volunteer to assist police by

providing “active law enforcement service.” When members of

the public assist the police by performing a task within the

purview of officers’ conventional “law enforcement” duties —

those directly concerned with enforcing the laws, investigating

GUND v. COUNTY OF TRINITY

Opinion of the Court by Cuéllar, J.

35

or preventing crime, or providing public protection — members

of the public assuming the risk of helping are protected by

workers’ compensation just as police officers are. Both the

relevant words and underlying logic of the statute compel us to

understand “active law enforcement service” requested by a

peace officer in capacious terms. Encompassed by these words

are activities objectively associated with functions such as

public protection or criminal investigation and enforcement,

without regard to whether the requesting officer sufficiently

conveys the full extent of the risks or whether a volunteer

subjectively understands the risks police were asking her to

assume. This is the reading most consistent with section 3366’s

purpose as reflected in its language, structural logic, and

legislative history. Officers rightly concerned about public

protection would do well to help volunteers understand the risks

they may be assuming to assist in “active law enforcement

service,” but nothing in the statute renders the term malleable

enough to make access to workers’ compensation turn on the

contingency of whether volunteers understood they were

assuming substantial risk to assist in policing. Whatever the

ultimate limits of “active law enforcement service” in this

context, we cannot find a sensible rationale to exclude the

Gunds’ police-requested sortie to check on a neighbor who called

911 for unspecified help.

No one disputes the Gunds were selfless neighbors and,

when carrying out Corporal Whitman’s request, model citizens.

With little information, they agreed to help their neighbor in a

time of need. And they suffered mightily for providing that help.

But we cannot fashion a rule that somehow shrinks the scope of

workers’ compensation for the Gunds — effectively leaving them

GUND v. COUNTY OF TRINITY

Opinion of the Court by Cuéllar, J.

36

with no remedy at all for their injuries if they lack a viable tort

claim — while keeping it robustly consistent with its

legislatively determined scope for countless other volunteers.

When injuries to a volunteer trigger provisions making society

bear the cost of those harms through workers’ compensation,

this means greater protection for volunteers assisting law

enforcement, and greater clarity for society about the costs it

must bear through its institutions when harms tragically occur.

Because the help the Gunds provided was active law

enforcement service, and the workers’ compensation bargain

offers protection with one hand even as it removes access to civil

recourse with the other, the only remedy available to the Gunds

is through workers’ compensation. This outcome makes it easier

for police to benefit from the public’s help, and ultimately, for

the public to benefit from the police’s help.

So we affirm the judgment of the Court of Appeal.

CUÉLLAR, J.

We Concur:

CANTIL-SAKAUYE, C. J.

CORRIGAN, J.

LIU, J.

KRUGER, J.

1

GUND v. COUNTY OF TRINITY

S249792

Dissenting Opinion by Justice Groban

On a small ranch in a remote area, near the end of winter,

Norma Gund received an unexpected call from Trinity County

Sheriff’s Corporal Ronald Whitman. Corporal Whitman told Ms.

Gund that her neighbor had called 911 asking for unspecified help.

After learning that Ms. Gund and her husband, James Gund, had

been to the neighbor’s house “many times” before to help the prior

owner with weather-related events such as “snow and fallen trees,”

Corporal Whitman remarked “There’s a big storm coming. That

must be what this is all about. It’s probably no big deal.” The

Gunds are a middle-aged couple who have no law enforcement

training or experience. But, having heard Corporal Whitman’s

assessment that the 911 call “must be” weather related and was

“probably no big deal,” the Gunds readily obliged with his request

to go check on their neighbor.

While driving to their neighbor’s house, the Gunds

speculated that their neighbor — “a young, naïve city girl” who had

just recently moved to the area — might be having trouble

operating her wood-burning stove or, perhaps, a tree had fallen on

her house. Unbeknownst to the Gunds, Corporal Whitman had

omitted crucial facts including that their neighbor had whispered

on the 911 call; had desperately repeated “help” over and over

again before abruptly ending the call; and the Highway Patrol

dispatcher who had received the call was leery of calling the

neighbor back because it sounded like “she’s trying to hide the fact

that she’s calling [911] from somebody.” Corporal Whitman also

GUND v. COUNTY OF TRINITY

Groban, J., dissenting

2

failed to mention that a different dispatcher had nevertheless twice

attempted to call the neighbor back, but those calls went

unanswered.

Oblivious to any potential risk and thinking she was about to

assist a neighbor with a nondangerous task, Ms. Gund entered the

neighbor’s house alone and unarmed while Mr. Gund waited in the

car. Inside the house, a murderer had just killed the Gunds’

neighbor and her boyfriend. The still-present murderer

immediately attacked Ms. Gund with a stun gun and a knife,

brutally slashing her throat and face. Upon hearing the

commotion, Mr. Gund got out of the car and approached the house.

He saw the murderer cutting his wife and, when he ran inside to

try to protect her, the murderer began to attack Mr. Gund. Ms.

Gund fled the scene and frantically drove to a nearby store to seek

help. Meanwhile, Mr. Gund fought for his life as the murderer

repeatedly “Tased” him, punched him, and cut his throat.

Somehow, Mr. Gund managed to wrestle the knife out of the

murderer’s hands and escaped by running through the woods back

to his home. The Gunds suffered near-fatal injuries but

miraculously survived.

Based on the belief that the Gunds were providing “active law

enforcement service” (Lab. Code, § 3366, subd. (a)) when they

became the unwitting victims of this horrific crime, the majority

holds that the Gunds are limited to workers’ compensation and

cannot sue in tort to recover damages for their injuries. The

majority’s view is premised on an assumption I cannot accept: An

unarmed, untrained middle-aged couple, by stumbling upon an

active murder scene, were in fact working as law enforcement

officers. In reality, neither the Gunds nor Corporal Whitman

reasonably believed that, by asking the Gunds to check on the

GUND v. COUNTY OF TRINITY

Groban, J., dissenting

3

neighbor to help with a weather-related event, Corporal Whitman

was actually asking the Gunds to perform a law enforcement

officer’s job of investigating a crime, arresting a criminal, or

performing some other particularly hazardous task for the

protection of the public. The Gunds’ understanding was objectively

reasonable in light of Corporal Whitman’s opinion that the call

“must be” all about a big storm coming and was “probably no big

deal.” But in the majority’s view, Corporal Whitman’s assessment

of the nature of the 911 call does not matter. Corporal Whitman’s

failure to inform the Gunds that their neighbor had whispered on

the 911 call does not matter. Corporal Whitman’s failure to inform

the Gunds that the neighbor had desperately repeated “help” over

and over again before abruptly ending the call does not matter.

Corporal Whitman’s failure to inform the Gunds that the county

dispatcher’s return calls went unanswered does not matter. The

Gunds’ prior experiences in helping with weather-related events at

the neighbor’s house does not matter. Even lies do not matter.

I disagree.

I.DISCUSSION

I begin by noting the points on which I agree with the

majority, as our agreement is considerable. I agree with the

majority’s proposed two-part test to determine whether Labor Code

section 3366, subdivision (a) (section 3366) applies. (Maj. opn.,

ante, at p. 8.) I also agree that the peace officer’s request informs

the determination of whether section 3366 applies. (Maj. opn.,

ante, at pp. 8, 23.) I agree that the civilian’s subjective beliefs

regarding the nature of the requested assistance or its attendant

risks are irrelevant. (Id. at pp. 30–31.) I further agree that the

question of whether a peace officer requested the civilian to assist

with a task that qualifies as active law enforcement service is an

GUND v. COUNTY OF TRINITY

Groban, J., dissenting

4

objective inquiry. (Id. at pp. 20, 30–31.)1

Finally, I agree that a

request to investigate possible criminal activity is a request for

active law enforcement service. (Maj. opn., ante, at p. 25.)

My disagreement lies with the majority’s conclusion that the

“specific details” of the exchange between Corporal Whitman and

Ms. Gund “do not change the essential nature of his request.” (Maj.

opn., ante, at p. 26.) In my view, the details change everything.

The majority frames its test to determine whether something

qualifies as active law enforcement service at an exceedingly high

level of generality, first by describing the phrase as “capacious” (id.

at pp. 11, 14, 19, 25, 35) and then by focusing on only the “essential

nature of the requested task” (id. at p. 27, fn. 5). But if we agree

that “ ‘the words, facts, and context’ of a peace officer’s request”

matter (ibid.), then the “specific details” (id. at p. 26) of the

exchange between Ms. Gund and Corporal Whitman should matter

too. I do not understand why the majority limits its inquiry by

excluding any analysis of what the parties objectively understood

about the nature of the requested task. While I agree with the

majority that the inquiry is objective, I would formulate the

objective test differently. We should examine everything that was

said, and everything that was not said, when Corporal Whitman

made his fateful request of the Gunds, and ask whether an



1 The majority describes the Gunds’ position as being

premised on “what they subjectively believed to be true about

[their neighbor’s] 911 call” (maj. opn., ante, at p. 30) and whether

they “subjectively understood the hazards involved in assisting

an officer” (id. at p. 31). I do not interpret the Gunds’ argument

in the same way. The Gunds seem to agree the inquiry is

objective, asserting that the question is “whether a reasonable

person . . . would reasonably perceive a need for assistance

related to the enforcement of law or suppression of crime” based

on Corporal Whitman’s request.

GUND v. COUNTY OF TRINITY

Groban, J., dissenting

5

objectively reasonable person would understand his request to be

one for assistance with a task that qualifies as active law

enforcement service.

While I believe many requests to respond to a 911 call of an

uncertain nature will objectively be understood as a request for

assistance with active law enforcement service, Corporal

Whitman’s request was different. Corporal Whitman expressly

characterized the nature of the call, assuring Ms. Gund that the

request “must be” about “a big storm coming” and was “probably no

big deal.” He also failed to relay to Ms. Gund critical details of the

911 call that would make her aware of the true nature of the

request and the potential danger. The majority believes that this

context does not matter. I believe it is crucial. Indeed, the

Legislature recognized in enacting section 3366 that peace officers

are authority figures that most people respect, trust, and obey.

(Second Supp. to Mem. No. 23 (1962), Subject: Study No. 52(L) –

Sovereign Immunity (Workmen’s Compensation for Persons

Assisting Peace Officers) (May 18, 1962) Cal. Law Revision Com.

(1962) p. 1 (hereafter Second Supplement To Memorandum 23)

[recognizing that many people would feel it was their “civic duty”

to assist a police officer whenever requested to do so].) Thus, at the

core of section 3366 is an acknowledgment that civilians give

considerable deference to peace officers. Although the majority

observes this principle (maj. opn., ante, at p. 17), it ultimately

devalues it by discounting the import of Corporal Whitman’s

representation to Ms. Gund that the call “must be” related to the

weather. But if we agree that the inquiry is objective rather than

subjective, and if we agree that any civilian receiving such a

request would likely defer to the authority of the peace officer, then

Corporal Whitman’s judgment as to what the 911 call “must be”

GUND v. COUNTY OF TRINITY

Groban, J., dissenting

6

about is key. Corporal Whitman — the person with law

enforcement experience and the person who had spoken directly

with a dispatcher regarding the 911 call — told Ms. Gund that the

call “must be” related to the weather and was “probably no big

deal.” The Gunds had every right to believe him.2

I also cannot accept the majority’s conclusion that Corporal

Whitman’s alleged omissions would simply have provided “more

information” to the Gunds. (Maj. opn., ante, at p. 31.) This, in my

view, is a significant understatement. The majority and I agree

that the inquiry here is an objective one, but I believe that this

inquiry should take into account the relevant facts and

circumstances of the particular case. We must therefore ask

ourselves if an objectively reasonable person would consider the

following facts to be material in determining the type of assistance

requested and whether to agree to render the requested assistance:

(1) the 911 caller had desperately repeated “help” over and over

again before abruptly ending the call; (2) the Highway Patrol

dispatcher who had received the call was leery of calling the

neighbor back because it sounded like “she’s trying to hide the fact

that she’s calling [911] from somebody”; and (3) the Trinity County

dispatcher had nevertheless twice attempted to call the neighbor

back, but those calls went unanswered. We should further ask

ourselves whether a reasonable person would have found these

facts to be highly relevant before deciding whether to enter the



2 The majority emphasizes that Corporal Whitman advised

Ms. Gund not to go to her neighbor’s house alone (maj. opn.,

ante, at p. 26), but this advice came before he rendered his

opinion that the call was “probably no big deal.” And, although

Corporal Whitman also asked Ms. Gund whether the caller’s

boyfriend had ever seemed violent, Ms. Gund replied “he seems

real mellow.”

GUND v. COUNTY OF TRINITY

Groban, J., dissenting

7

home, alone and unarmed. Possessed of these details, would Mr.

Gund really have chosen to wait in the car while sending his wife

into the neighbor’s house alone?

To accept the majority’s holding that the Gunds were asked

to and did in fact engage in an inherently dangerous law

enforcement task, one must accept its implicit suggestion that the

Gunds acted incredibly recklessly by having Ms. Gund walk in to

the home unarmed, with little or no preparation, while her

husband waited in the car. One must also accept the majority’s

implicit, if not explicit, assumption that Corporal Whitman asked

two untrained, unarmed middle-aged civilians to risk injury or

death to “investigate and prevent crime, enforce the laws, and

protect the public” (maj. opn., ante, at p. 26) without the aid of

trained law enforcement officers. Even the Trinity County Sheriff’s

Department denied that it would ever do such a thing, stating in a

press release issued shortly after the incident that it would never

“send a citizen to perform a Deputy’s job.” (Sabalow, This couple

was attacked by knife-wielding killer. Did their sheriff put them in

harm’s way?, Sacramento Bee (Aug. 29, 2018)

[as

of August 27, 2020] (hereafter Sabalow).) 3

I believe that a

reasonable person, upon hearing Corporal Whitman’s description

of the 911 call — which characterized the call as “no big deal” and

weather related and omitted crucial details that would have

alerted the Gunds to the potential danger — would not have

understood Corporal Whitman’s request to be seeking help with



3 All Internet citations in this opinion are archived by year,

docket number, and case name at .

GUND v. COUNTY OF TRINITY

Groban, J., dissenting

8

“the investigation and prevention of criminal activity.” (Maj. opn.,

ante, at p. 22.)

The majority at one point suggests that misrepresentations

may matter if they alter the “essential nature of the requested

task” (maj. opn., ante, at p. 27, fn. 5; see id. at p. 28, fn. 6), but then

it later implies that misrepresentations are irrelevant since

workers’ compensation is the exclusive remedy even where

employees allege that their employers intentionally

misrepresented the hazards of employment in order to induce them

to accept employment (id. at pp. 31–32).4

Though the majority does

not explain how to distinguish between misrepresentations that go

to the “essential nature of the requested task” (id. at p. 27, fn. 5)

from other kinds of misrepresentations, I understand that the

majority may be rightly concerned about a holding that concludes

that misrepresentations are never relevant to the analysis. The

majority may also be wary of creating a bright-line rule under

which all responses to 911 calls would constitute active law

enforcement service, as some clearly do not. Many 911 calls verge

on the absurd, with callers complaining about the size of clams

served at a restaurant, cats stuck under the hood of a car, or a lack

of internet service. (Jarosz, Abuse of 911: Alarming number of

callers use emergency service as customer service line, KTVU Fox 2

(Sept. 25, 2018) [as of August 27, 2020].) The majority considers the

context and content of the request, but only to determine whether

the peace officer conveyed a request to respond to a 911 call seeking

unspecified help. It therefore appears to conclude that all

responses to 911 calls of an uncertain nature constitute active law

enforcement as a matter of law, irrespective of whether the parties

to the request themselves understood that the response would

require members of the public to assume the functions and risks of

a peace officer. But the majority cannot have it both ways: If the

context and content of what was known and conveyed as part of the

peace officer’s request matters in some instances, then it must

matter in all instances. I certainly think it matters here.

I do not mean to suggest that Corporal Whitman

intentionally misrepresented the true nature of the situation or

wished the Gunds any harm. Corporal Whitman was hours away

from the 911 caller’s home and may have simply been trying to find

a solution to a very difficult dilemma. Nevertheless, as a general

matter, if a peace officer’s misrepresentations and omissions

regarding the nature of the 911 call or the requested assistance

may be ignored (see maj. opn., ante, at pp. 31–32), then a peace

officer could intentionally lie about the potential danger involved

and assure the civilian that no harm will come to him or her, and

the civilian still would be unable to pursue a remedy in tort. Under

the majority’s holding, if the peace officer requests assistance with

a task that entails a possibility of requiring a law enforcement

response, then the civilian is bound by section 3366 regardless of

what the civilian reasonably understood about the nature of the

requested task in light of the peace officer’s misrepresentations.

This cannot be right.

GUND v. COUNTY OF TRINITY

Groban, J., dissenting

10

To illustrate this quandary further, consider the disparate

results that would likely result under the majority’s holding in the

following two scenarios: Suppose a peace officer requests a civilian

to help a neighbor who was having trouble starting her car, even

though the officer knew the caller had reported an armed intruder.

The majority would likely hold that because the peace officer’s

misrepresentation “alter[ed] the essential nature of the requested

task” (maj. opn., ante, at p. 27, fn. 5), section 3366 does not apply.

But suppose the officer, rather than relaying the report of an armed

intruder, had simply misrepresented to the civilian that the 911

caller had asked for “unspecified help.” The officer then goes on to

tell the following additional lies: “This person always calls about

car problems. It must relate to car problems. There is nothing to

worry about, you will be completely safe.” The majority would

presumably conclude that because the peace officer requested

assistance with “a 911 call for unspecified help — a typical law

enforcement task” (id. at p. 28), section 3366 applies. The only true

difference between these two hypothetical scenarios is, in the first

scenario, the peace officer lied by stating that the caller specifically

requested help with her car, whereas in the second scenario, the

peace officer lied by stating the caller asked for unspecified help

and also by misrepresenting that the call “must relate to car

problems.” Under the majority’s formulation, the civilian in the

first scenario has a tort remedy, but the civilian in the second

scenario does not. I see no reason for this distinction.

I also disagree with the majority’s conclusion that the Gunds

were “enforcing the laws, investigating or preventing crime, or

providing public protection.” (Maj. opn., ante, at p. 34.) Neither

Ms. Gund (who thought that her neighbor might be having

“trouble with her wood-burning stove”), Mr. Gund (who let his

GUND v. COUNTY OF TRINITY

Groban, J., dissenting

11

wife walk into the neighbor’s house while he waited in the car),

Corporal Whitman (who said the call “must be all about” “a big

storm coming”) nor the Trinity County Sheriff’s Department

(which said it would never “send citizen to perform a Deputy’s

job” (Sabalow, supra, at )) thought the Gunds were “assuming the

law enforcement duties and risks of police officers.” (Maj. opn.,

ante, at p. 20.) When peace officers perform active law enforcement

service, they do so knowingly and with some level of preparation.

Similarly, in those few cases in which we have analyzed whether

certain civilians were entitled to workers’ compensation when they

were commanded to assist in a law enforcement task, those

civilians knew they were assuming the functions and risks of a

peace officer and were at least somewhat prepared to do so. (See,

e.g., Monterey County v. Rader (1926) 199 Cal. 221, 223 [civilian

was given a firearm and was led by trained officers in attempting

to capture criminals].) Here, in contrast, Ms. Gund entered the

house alone and unarmed, neither of the Gunds demonstrating any

concern for her safety. The Gunds clearly did not expect to, and

were not prepared to, investigate a possible crime, arrest a

criminal, or prevent a breach of the peace, nor should they have

been given their reasonable understanding, based on Corporal

Whitman’s request, that checking on their neighbor would not

require them to perform a law enforcement task.

And the Gunds were right not to assume that their response

to the 911 call would require them to “enforce[] the laws,

investigat[e] or prevent[] crime, or provid[e] public protection”

(maj. opn., ante, at p. 34) since most 911 calls do not involve

criminal activity. (Neusteter et al., The 911 Call Processing

System: A Review of the Literature as it Relates to Policing, Vera

GUND v. COUNTY OF TRINITY

Groban, J., dissenting

12

Institute of Justice (July 2019) p. 34 [most 911 calls “are unrelated

to crimes in progress”].) The Sacramento Police Department

reports that its officers have spent only 4 percent of their time this

year responding to calls reporting violent crimes and only 19

percent of their time responding to calls reporting nonviolent

crimes. (Asher & Horwitz, How Do the Police Actually Spend Their

Time?, N.Y. Times (June 19, 2020)

[as of August 27, 2020].) Similarly, of the

nearly 18 million 911 calls logged by the Los Angeles Police

Department in 2010, less than 8 percent reported violent crimes.

(Rubin & Poston, LAPD responds to a million 911 calls a year, but

relatively few for violent crimes, L.A. Times (July 5, 2020)

[as of August 27, 2020].) The Gunds were

not entering their neighbor’s house to perform an inherently

dangerous law enforcement task. Instead, the Gunds reasonably

understood that they were being asked to provide neighborly

assistance with a weather-related problem and tragically stumbled

into a murder scene.

The majority purposefully avoids “[d]rawing precise lines to

define” what tasks would fall within “active law enforcement

service” (maj. opn., ante, at p. 25) and instead repeatedly describes

the phrase as being “capacious” (id. at pp. 11, 14, 19, 25, 35).

Nonetheless, the majority nowhere suggests that assisting a

neighbor with snow, a fallen tree, a wood-burning stove, or some

other weather-related problem objectively qualifies as active law

enforcement service. Nor could it reasonably do so given that, as

the majority acknowledges, the phrase “active law enforcement

service” as used elsewhere in the Labor and Government Code has

GUND v. COUNTY OF TRINITY

Groban, J., dissenting

13

long been defined as encompassing “a peace officer’s duties directly

concerned with functions such as enforcing laws, investigating and

preventing criminal activity, and protecting the public.” (Maj. opn.,

ante, at p. 22; see also Kimball v. County of Santa Clara (1972) 24

Cal.App.3d 780, 785 [active law enforcement service encompasses

particularly hazardous job functions undertaken for the protection

of the public].) The court in Crumpler v. Board of Administration

(1973) 32 Cal.App.3d 567, for example, held that animal control

officers who are hired by the police department, wear uniforms, and

carry guns do not principally perform “active law enforcement

service” because they do not deal with hazardous crimes “against

persons and property.” (Crumpler, at p. 579.) The court found

persuasive an Attorney General opinion — one which was issued

10 years prior to section 3366’s enactment — that defines “active

law enforcement service” as including “duties which expose officers

to physical risk” such as “ ‘the active investigation and suppression

of crime; the arrest and detention of criminals and the

administrative control of such duties.’ ” (Crumpler, at p. 577,

quoting 22 Ops.Cal.Atty.Gen. 227, 229 (1953).) This definition is

in accord with the Legislature’s intent in enacting section 3366 that

only those civilians who “assume the risk of death or serious injury

to provide . . . protection to the public” at the request of a peace

officer would be covered by workers’ compensation.

(Recommendation Relating to Sovereign Immunity, Number 6 —

Workmens’ Compensation Benefits for Persons Assisting Law

Enforcement or Fire Control Officers (Jan. 1963) 4 Cal. Law

Revision Com. Rep. (1963) p. 1505.) Simply put, a civilian does not

risk death or serious injury for the protection of the public by

helping a neighbor with a weather-related event.

GUND v. COUNTY OF TRINITY

Groban, J., dissenting

14

I am additionally unpersuaded by the majority’s policy

rationales for its holding. The majority reasons that “quicker

availability of [workers’ compensation] benefits can incentivize

individuals to oblige a peace officer’s request for help, because they

will ostensibly be less concerned with the financial consequences of

potential injury or death.” (Maj. opn., ante, at p. 19.) Though a

person might conceivably be motivated to assist a peace officer

based on the availability of workers’ compensation, I am skeptical

that the average civilian would make a quick assessment of

possible tort or statutory recovery outcomes before complying with

a peace officer’s request. As noted above, the Legislature

recognized that most people will feel compelled to assist peace

officers as part of their “civic duty” and regardless of whether

compensation for their injuries might be available. (Second Supp.

To Mem. 23, supra, at p. 1.) I certainly cannot imagine that the

Gunds were thinking about the ready availability of workers’

compensation when they agreed to check on their neighbor at

Corporal Whitman’s request. Moreover, the rule embraced by the

majority — one that allows peace officers to omit crucial

information or even to lie in order to convince civilians to render

assistance without risking tort liability — will only disincentivize

civilians from agreeing to help. (See Commission on Peace Officer

Standards & Training v. Superior Court (2007) 42 Cal.4th 278, 298

[“ ‘The abuse of a patrolman’s office can have great potentiality for

social harm’ ”]; Schuster v. City of New York (1958) 5 N.Y.2d 75,

80–81 [154 N.E.2d 534] [the government “owes a special duty to

use reasonable care for the protection of persons who have

collaborated with it in the arrest or prosecution of criminals”

because it would otherwise “become difficult to convince the civilian

to aid and co-operate with the law enforcement officers”].)

GUND v. COUNTY OF TRINITY

Groban, J., dissenting

15

More fundamentally, I am wary of the majority’s tendency to

view the availability of workers’ compensation as beneficial to

civilians, no matter the circumstances. (See maj. opn., ante, at pp.

15–19.) The so-called workers’ compensation bargain is just

that — a bargain. “It should not be viewed as a victory of

employees over employers.” (Friedman & Ladinsky, Social Change

and the Law of Industrial Accidents (1967) 67 Colum. L.Rev. 50,

71.) Workers’ compensation may be “a simpler path to

compensation” for the Gunds (maj. opn., ante, at p. 33), but it is not

their preferred path, which is why they so vigorously oppose its

application here. The majority’s ruling precludes the Gunds from

seeking “pain and suffering” damages (San Bernardino County v.

State Indus. Acc. Commission (1933) 217 Cal. 618, 625), which

includes damages to compensate them for their physical pain as

well as any “fright, nervousness, grief, anxiety, worry,

mortification, shock, humiliation, indignity, embarrassment,

apprehension, terror or ordeal” they have suffered since becoming

the victims of a particularly brutal attack (Capelouto v. Kaiser

Foundation Hospitals (1972) 7 Cal.3d 889, 892–893). I do not think

anyone doubts that the Gunds have suffered considerable pain and

suffering as a result of this horrible crime, but the majority’s

holding will not allow them to be compensated for it. The Gunds

will also be unable to seek punitive damages to compensate them

for defendants’ alleged wrongdoing. (Johns-Manville Products

Corp. v. Superior Court (1980) 27 Cal.3d 465, 478.)

The majority worries about creating a rule that looks closely

at the specific details and context of the peace officer’s request,

believing this would open the door for defendants to refuse to

provide workers’ compensation by claiming that the request did not

specifically seek assistance with a law enforcement task. (Maj.

GUND v. COUNTY OF TRINITY

Groban, J., dissenting

16

opn., ante, at p. 28, fn. 6.) While this is a legitimate concern, I

believe it is overstated. The facts of this case are incredibly unique

and are unlikely to recur. Many cases in which a peace officer seeks

a civilian’s assistance in responding to a 911 call of an uncertain

nature will likely fall within the scope of section 3366. If, for

example, Corporal Whitman shared the key details of the 911 call

and did not further opine that the call “must be” about the weather

and was “probably no big deal,” an objectively reasonable person

might well conclude that responding to the call entailed the

possibility of performing a law enforcement task. We can recognize

that the singular facts presented here entitle the Gunds to seek tort

relief without precluding courts from finding, in another case, that

a different peace officer’s request for a civilian to respond to a

different 911 call is covered by section 3366. We can also do so

without more broadly undermining our workers’ compensation

system or the Legislature’s intent to provide workers’

compensation to civilians who assume the functions and risks of a

peace officer.

We need not decide how every factual scenario, however

unlikely or bizarre, might be decided under this highly esoteric

statute. In this case, Corporal Whitman affirmatively described

the call as weather related and assured Ms. Gund that the call was

“probably no big deal” while also failing to disclose the details of

the call that would have revealed the potential danger and need for

law enforcement service. The Gunds had every reason to believe

Corporal Whitman and almost lost their lives in doing so. They

should not lose their tort claims as well.

In sum, I agree with the majority that section 3366 applies

when a civilian agrees to perform active law enforcement service at

GUND v. COUNTY OF TRINITY