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Souza v. City of Antioch4/30/1997
ce of duties imposed by law or assumed." ( Id. at p. 290.) "In other words, immunity [applies] if the injury to another results . . . from a public employee's exercise of discretion to undertake the act, but from his or her negligence in performing it after having made the decision to do so." (Levy, op. cit. supra, § 60.42 , p. 60-43.)
More recently, in Wallace, (supra) , 12 Cal. App. 4th 1385, the Court of Appeal reversed a judgment of nonsuit in a case where a police detective had plaintiff's decedent subpoenaed to testify at a preliminary hearing concerning a murder she had witnessed. The detective took no steps to protect the witness, even after he learned that an anonymous caller had threatened to blow her head off if she testified. The detective also neglected to warn her that the suspect against whom she was testifying had been implicated in other murders, and had threatened other witnesses. Instead, he assured her there was no immediate danger. The witness was shot and killed before she ever testified.
The Court of Appeal determined that the defendant detective "did not engage in discretionary acts when he (1) minimized the importance of the threatening phone call which plaintiff received, (2) determined at various points in his investigation of the . . . murder that he would not inform [the witness] or her mother about [the suspect's] possible involvement in other murders nor inform them about other threats against witnesses, (3) determined that he would not inform them he considered [the suspect] to be a threat to the community at large and especially to persons who might testify against , and (4) determined that he would not offer protection to [the witness] despite what he knew about the phone call and about [the suspect]." (Id. at p. 1403.) These decisions, the court held, were not immune from liability " '. . . because the failure to warn does not involve those basic policy decisions which this immunity provision was meant to protect. [Citations.]' " (Id. at p. 1404.)
Applying these principles to the case at hand, we must conclude that although the police's decision to take affirmative action to defuse the situation may have been discretionary, their subsequent choices in effecting that decision were not. Our precedent clearly establishes that police have no duty to respond to every call for assistance (see, e.g., M.B. ; (supra) , 233 Cal. App. 3d 699), or, having responded to a call, to bring a situation under their control (see, e.g., Lopez, (supra) , 190 Cal. App. 3d 678). It establishes, however, with equal clarity, that, once police have exercised their discretion to respond and to act, their choices are no longer immunized from liability.
The plaintiff here alleges negligence in acts defendants committed hours after they had decisively exercised their discretion to respond to Jennifer Souza's call and to take control over the situation with Joel. Sovereign immunity does not bar a jury from deciding whether the defendants' ministerial actions effecting this choice were negligent.
We do not worry that our decision will discourage police from performing their jobs with zeal. As the Supreme Court observed in Johnson, mandatory indemnification and defense at public expense reduces to insignificance the risk of chilling official ardor. (Johnson, (supra) , 69 Cal. 2d at pp. 791-792.) At the same time, it encourages public employers to hire, train, and supervise public officials with care. Moreover, we are satisfied that our decision fairly allocates liability, should any arise, from this incident. "Since the entire populace of California benefits from the activity of the [police], it should also share equally the burden of injuries negl
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