Green v. City of Livermore3/19/1981
COURT OF APPEAL OF CALIFORNIA, FIRST APPELLATE DISTRICT, DIVISION TWO
Civ. No. 46404
1981.CA.40871 ; 172 Cal. Rptr. 461; 117 Cal. App. 3d 82
March 19, 1981
BRUCE D. GREEN, ETC., ET AL., PLAINTIFFS AND APPELLANTS,
v.
CITY OF LIVERMORE, DEFENDANT AND RESPONDENT
Superior Court of Alameda County, No. 506124-2, Hugh S. Koford, Judge.
James J. Reilly, Donald L. Tipton and Thomas M. Dillon for Plaintiffs and Appellants.
Rodney A. Marraccini, J. Lucian Dobson III, Capps, Bishop, Marraccini & Staples and Capps, Staples, Ward and Hastings for Defendant and Respondent.
Opinion by Taylor, P. J., with Rouse and Smith, JJ., concurring.
Taylor
Plaintiffs, the surviving husband and children of Marcelina Green, appeal from a judgment sustaining without leave to amend the City of Livermore's (City) demurrer to their second amended complaint.
Viewing the record in the light most favorable to the plaintiffs, as we must (Dailey v. Los Angeles Unified Sch. Dist. (1970) 2 Cal. 3d 741, 745 [87 Cal. Rptr. 346, 470 P.2d 360]), the following facts appear: On August 11, 1977, several City police officers, acting in their official capacities as employees of the City, stopped a Ford automobile belonging to Jones and Hardgraves. All three occupants of the car, Jones, Hardgraves and Noble, were intoxicated. Hardgraves was driving the vehicle along public roads in the City. The officers arrested Hardgraves for drunk driving (Veh. Code, § 23102) and resisting arrest (Pen. Code, § 148) and took him into custody. At the time of his arrest, Hardgraves did not have possession of the car keys. However, the officers did not arrest either Jones or Noble and left them with the Ford without disabling or impounding it. The officers also did not remove any keys from the Ford. Shortly thereafter, Noble drove the Ford, struck the Green automobile and seriously injured the plaintiffs and killed Marcelina. Noble did not have a valid driver's license.
The second amended complaint, so far as pertinent, alleges as follows: "[Under] the statutory and decisional law of the State of California, together with the enactments, regulations, and customs of the City and of the Police Department, Defendants Hodge and Doe Two, and each of them, were under a duty to use due care to take precautions to prevent Noble, Doe Three, and the other passengers from driving the automobile. Without limiting the generality of the foregoing, Defendants Hodge and Doe Two were under a mandatory duty to disable the automobile, to impound the automobile, or to remove the keys from the automobile " (italics added).
The trial court sustained the City's demurrer on three grounds: 1) uncertainty; 2) the mandatory duty alleged does not exist; and 3) Government Code sections 845 and 820.2 provide complete immunity to the City.
Preliminarily, we turn briefly to the third ground, i.e., whether the statutes provide complete immunity.
In Mann v. State of California (1977) 70 Cal. App. 3d 773 [139 Cal. Rptr. 82], the court rejected the immunity defense as to a police officer who stopped to investigate a car stranded in a speed change lane of a busy freeway. After a tow truck arrived, the officer left the scene without advising any of
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