Gund v. Cnty. of Trinity

This lawsuit alleges that a Trinity County deputy sheriff phoned citizens James and Norma Gund-who do not work for the County-and

The Gunds sued the County of Trinity and the deputy-Corporal Ron Whitman-for negligence and misrepresentation, alleging defendants created a special relationship with the Gunds and owed them a duty of care, which defendants breached by representing that the 911 call was likely weather-related and "probably no big deal" and by withholding information known to defendants suggesting a crime in progress-i.e., that the caller had whispered "help me," that the California Highway Patrol (CHP) dispatcher refrained from calling back when the call was disconnected out of concern the caller was in danger, and that no one answered when the county dispatcher called.

Defendants filed a motion for summary judgment on the ground that plaintiffs'

Defendants' motion did not acknowledge or address plaintiffs' factual allegations that the deputy misled them about the nature of the activity, minimized the risk, lulled them into a false sense of security, and that plaintiffs relied on the deputy's misrepresentations. Absent section 3366, these allegations potentially support imposing tort liability against defendants. (E.g., Wallace v. City of Los Angeles (1993) 12 Cal.App.4th 1385 , 1401-1402, 16 Cal.Rptr.2d 113 ( Wallace ).)

Plaintiffs' opposition submitted evidence supporting their factual allegations and argued section 3366 is inapplicable in these circumstances.

Defendants' reply denied that the deputy misrepresented facts or misled plaintiffs (thus displaying factual disputes) but claimed any factual disputes were immaterial because responding to a 911 call is a law enforcement activity. The trial court adopted the defense theory and entered summary judgment.

On appeal, plaintiffs contend section 3366 is inapplicable because they were not engaged in assisting in active law enforcement. We grant plaintiffs' request that we take judicial notice of a Law Revision Commission Report concerning section 3366.

We conclude section 3366 applies to this case, because responding to a 911 call for help of an uncertain nature is active law enforcement, regardless of the deputy's misrepresentations. "Active law enforcement" under section 3366 means confronting the risks of dealing with the commission of crime or breach of the peace for the protection of the public. Any 911 call carries such risk, but particularly a 911 call for help of an uncertain nature.

Since we conclude section 3366 bars plaintiffs' lawsuit on the ground they were assisting in active law enforcement, we need not address alternate defense theories that the lawsuit is barred because (1) plaintiffs were employees because they assisted upon command (posse comitatus); (2) County Resolution No. 163-87 deems volunteers to be employees if they provide "service" to the county; or (3) defendants' new theory on appeal that the County and Deputy Sheriff have governmental immunity from tort liability for misrepresentation ( Gov. Code, §§ 818.8, 822.2 ).

We affirm the judgment.

FACTS AND PROCEEDINGS

The operative pleading is the first amended complaint, which asserted claims for vicarious liability for public employee's act or omission ( Gov. Code, §§ 815.2, subd. (a), 820, subd. (a) ) and misrepresentation with malice ( Gov. Code, § 822.2 ). The Gunds also filed in federal court a lawsuit against Trinity County and Whitman, alleging violation of civil rights ( 42 U.S.C. § 1983 ), which is stayed pending resolution of this case. ( Gund v. County of Trinity (9th Cir. 2015) 624 Fed.Appx. 519 [Ninth Circuit's unpublished rejection of defendants' appeal of district court's denial of

The pleading in state court alleged that, on March 13, 2011, at 3:28 p.m., CHP received a 911 call originating in the vicinity of the Kettenpom airstrip in Trinity County. The female caller, K.C., whispered, "help me" and said she lived at the end of the Kettenpom airstrip. The CHP dispatcher conveyed this information, and an opinion that the caller was attempting to avoid being overheard, to the Trinity County Sheriff's Office. The county dispatcher tried

calling the 911 caller, but there was no answer. The county dispatcher passed the information to Corporal Whitman.

Corporal Whitman telephoned plaintiffs, who lived near the airstrip, and asked them to go check on K. Whitman told plaintiffs that K. had phoned 911 call for help likely related to the inclement weather. He did not tell plaintiffs that the caller had been whispering or that the CHP dispatcher thought it was because the caller did not want to be overheard, but instead told plaintiffs it was "probably no big deal." Plaintiffs alleged Whitman misled them by asserting without basis that the call was likely related to inclement weather, and by concealing information suggesting a crime in progress. Plaintiffs relied on Whitman's representations and drove to K.'s home, feeling no concern for their own safety. Once there, they were brutally attacked by a man who apparently had just committed murder.

Defendants filed a summary judgment motion on the ground that workers' compensation was plaintiffs' exclusive remedy under section 3366 (persons engaged in active law enforcement are deemed to be employees). Defendants purported to accept plaintiffs' "version of events" for purposes of the motion yet ignored the significant factual allegations of the complaint that plaintiffs were misled into believing they were just checking on a weather-related matter. Omitting these critical allegations, defendants' separate statement of undisputed facts merely stated that Whitman phoned Mrs. Gund, identified himself and said a "[K.]" had phoned 911 and said, "help me;" that Mrs. Gund "claims" Whitman said he was "hours away" and asked her go to K.'s house to see if she was okay and told Mrs. Gund not to go without her husband; that Mr. Gund understood he was checking on K.'s welfare; that they went together and were attacked and injured by a third party.

Defendants alternatively sought summary judgment on the ground that section 3363.5 authorizes counties to adopt resolutions deeming public agency volunteers to be employees, and Trinity County on December 1, 1987, adopted Resolution No. 163-87, declaring that any person who performs various "services" for the county, including law enforcement, voluntarily or without pay, is deemed to be a county employee for workers' compensation purposes.

The motion's omission of the complaint's factual allegations about plaintiffs being misled is particularly odd, given that defendants' demurrer was overruled (by a different, assigned judge) on the ground that a factual issue existed as to whether a person asked to check on a neighbor under these circumstances is engaged in assisting in active law enforcement, and the case may depend "not only on what request was made but how it was made."

in the gaps with their own evidence (mostly deposition testimony) to support their own separate statement of undisputed facts: That Whitman knew but failed to disclose that the 911 caller had whispered for help, that the CHP dispatcher was concerned the caller was trying to summon help secretly, and that there was no answer when the county dispatcher tried to call. Plaintiffs relied on Whitman's representations-that the neighbor's call was likely related to inclement weather and was "probably no big deal"-that lulled plaintiffs into a false sense of security.

Plaintiffs' evidence showed: Whitman did not know the Gunds personally and was not aware of them ever assisting law enforcement in the past, but he knew they lived near the airstrip. According to Mrs. Gund, Whitman phoned and asked if she knew someone named K. who also lived near the airstrip, and Mrs. Gund said yes. Whitman said K. had called 911 for help. Whitman said her call was likely related to inclement weather and was "probably no big deal." He asked if K.'s boyfriend ever seemed violent, and Mrs. Gund said no, he "seems real mellow." Whitman did not disclose that the 911 caller had been whispering, or that the call had been interrupted, or that the CHP dispatcher was concerned the caller whispered so as not to be overheard, or that the county dispatcher had tried calling K. without success. In deposition, Whitman claimed a failure of recollection but admitted knowing the caller whispered and did not answer when the dispatcher tried calling back. Whitman claimed he did not pass this information along to Mrs. Gund because Whitman phoned the Gunds only to gather information about the neighbor and where she lived and who else might be in the area.

Mrs. Gund testified Whitman said he was "hours away" and asked her to go check on K. but not to go alone. The Gunds agreed to check on the neighbor because they believed the 911 call was weather-related. As the Gunds drove to K.'s house, they discussed whether perhaps a tree had fallen or perhaps K., a young city girl, was having trouble with her wood-burning stove.

Mrs. Gund went in first while Mr. Gund stayed in the truck. Mrs. Gund was attacked with a knife by the man who apparently had just murdered K. and her boyfriend C. No evidence of the murder was adduced in this summary judgment proceeding, but the parties agree to this fact on appeal.

Mr. Gund heard a commotion, entered the house and saw his wife being held down and having her throat cut with a knife. The attacker attacked Mr. Gund. Mrs. Gund fled in the truck to seek help at a nearby store. Mr. Gund was tased and punched repeatedly. He saw a motionless body on

Defendants' reply papers stated that plaintiffs' assertions-as to Whitman's knowing withholding of the circumstances of the 911 call and his false assurances that the call was probably weather-related and no big deal-were disputed as to "phraseology" and Corporal Whitman denied them. However, defendants claimed, "These additional facts are and [sic] not material for purposes of this motion." In defendants' view, all that mattered was the plaintiffs were responding to a 911 call.

At the hearing in the trial court, plaintiffs argued section 3366 is inapplicable under an objective or subjective standard, i.e., that given defendants' misrepresentations, (1) reasonable persons in plaintiffs'

position would not perceive themselves to be engaged in active law enforcement, and (2) plaintiffs did not think they were engaged in active law enforcement. Under either standard, summary judgment would be improper. In other words, the deputy's request for assistance with a weather-related 911 call was not a request for plaintiffs to engage in active law enforcement, and plaintiffs did not engage in active law enforcement by complying with that request.

The trial court ruled orally from the bench and incorporated the reporter's transcript in its order granting summary judgment. The court acknowledged the existence of factual disputes about defendants' misrepresentations but said, "those disagreements are not before the Court, because for purposes of this motion the defendants have accepted the factual assertions of the plaintiffs. [Defendants] assert that even accepting plaintiffs' factual scenario, there is no viable cause of action. So in this ruling I accept the plaintiffs' factual scenario."

However, the trial court did not really accept plaintiffs' factual scenario, because the court ignored (as did defendants) evidence that plaintiffs were persuaded to assist by defendants' misrepresentations about the nature of the activity they were assisting.

The court also said it did not have to decide whether the "posse comitatus" aspect of section 3366 applied, because the court concluded "the response to a 911 call under the facts of this case [are such] that said response makes plaintiffs/persons engaged in assisting a peace officer in active law enforcement" and therefore plaintiffs were covered by workers' compensation. At first, the court said Whitman told Mrs. Gund that the 911 caller had whispered, but deleted that upon being corrected by counsel and said it did not matter.

Plaintiffs appeal from the judgment.

DISCUSSION

As the parties moving for summary judgment, defendants had the burden to show that workers' compensation is a complete defense to the lawsuit. ( Code Civ. Proc., § 437c, subd. (p)(2).) If the defendant meets its burden to show a complete defense on summary judgment, the burden then shifts to the plaintiff to show that a triable issue of material fact exists. ( Ibid .) "We review the record and the determination of the trial court de novo. ( Merrill v. Navegar, Inc . (2001) 26 Cal.4th 465 , 476 [ 110 Cal.Rptr.2d 370 , 28 P.3d 116 ].)" ( Kahn v. East Side Union High School Dist . (2003) 31 Cal.4th 990 , 1003, 4 Cal.Rptr.3d 103 , 75 P.3d 30 ; see also, Miller v. Department of Corrections (2005) 36 Cal.4th 446 , 460, 30 Cal.Rptr.3d 797 , 115 P.3d 77 .)

Where workers' compensation is available, it is the exclusive remedy for work-related injury. (§ 3602.) Workers' compensation is generally not available to persons "performing voluntary service for a public agency" who do not receive remuneration for the services other than meals, transportation, lodging, or reimbursement for incidental expenses. (§ 3352, subd. (a).) Section 3366 provides an exception for civilians assisting peace officers in "active law enforcement."

Section 3366 provides that each person "engaged in the performance of active law enforcement service as part of the posse comitatus [power of the county] or power of the county [ sic ], 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 [workers' compensation]. ..."

Plaintiffs were clearly assisting a peace officer at his request. The question is whether they were engaged in assisting in "active law enforcement service." ( § 3366.)

" 'Our primary task in interpreting a statute is to determine the Legislature's intent, giving effect to the law's purpose. [Citation.] We consider first the words of a statute, as the most reliable indicator of legislative intent.' " (

Section 3366 is part of the provisions defining employees within the scope and operation of the workers' compensation laws. (Labor Code, Div. 4, Pt. 1, Ch. 2.) We are mindful that workers' compensation statutes are liberally construed in favor of injured workers who seek workers' compensation benefits. ( Biggers v. Workers' Comp. Appeals Bd . (1999) 69 Cal.App.4th 431 , 441, 81 Cal.Rptr.2d 628 ( Biggers ).) The underlying premise of exclusivity of the workers' compensation remedy is a presumed bargain that the employer assumes liability for industrial injury without regard to fault in exchange for limitations on the amount of that liability, and the employee is afforded relatively swift and certain payment of benefits to relieve the effects of industrial injury without having to prove fault but gives up the wider range of damages potentially available in tort. ( Charles J. Vacanti, M.D., Inc. v. State Comp. Ins. Fund (2001) 24 Cal.4th 800 , 811, 102 Cal.Rptr.2d 562 , 14 P.3d 234 .)

The question here is whether a deputy who asks a civilian to help a neighbor who called 911 with a weather-related issue is requesting the civilian's assistance with "active law enforcement" such that the civilian is assisting "in the enforcement of the law" under section 3366 as a matter of law .

Plaintiffs argue that checking on a neighbor does not constitute active law enforcement; peace officers perform community care-taking services that do not involve active law enforcement; and checking on someone with a weather-related problem is not active law enforcement. However, the 911 caller did not report a weather-related problem but just whispered

for help. There was no basis for the deputy to conclude the 911 call was weather-related. Had the

Section 3366 does not define "active law enforcement." However, responding to 911 calls for unspecified help is clearly active law enforcement.

"The legislative purpose of [ section 3366 ] was to cover a person who assumes the functions and risks of a peace officer...." ( McCorkle v. City of Los Angeles (1969) 70 Cal.2d 252 , 263, fn. 11, 74 Cal.Rptr. 389 , 449 P.2d 453 .) McCorkle briefly addressed and rejected a city's argument, made for the first time in the Supreme Court, that section 3366 precluded a civil lawsuit by a motorist injured when he was assisting a peace officer by pointing out skidmarks at the scene of a car crash. ( Ibid . ) The statute covers a person who assumes the functions and risks of a peace officer, and not one who merely informs a peace officer of facts within his own knowledge. ( Ibid . ) Another case noted in dictum that workers' compensation benefits were granted under section 3366 to the family of a person killed while acting as an undercover agent for police in a narcotics investigation. ( Page v. City of Montebello (1980) 112 Cal.App.3d 658 , 662-665, 169 Cal.Rptr. 447 [family could not enforce in a civil suit a police officer's alleged promise that family would be compensated as if the informant had been a police officer].)

Although not of precedential value, we observe a workers' compensation adjudication held that section 3366 did not afford workers' compensation benefits to a member of a county sheriff's "Mounted Posse Program" for injuries she suffered when she was thrown from her horse during a training session. ( County of Riverside v.Workers' Compensation Appeal Board (2012) 77 Cal.Comp.Cases 1033 , 2012 WL 6217634 .) The Program was a volunteer auxiliary group that assisted with such functions as traffic control, crowd management, crime scene protection, dealing with the public, first aid, "eyes and ears" patrols at special events, search and recovery, and appearances at parades and recruiting events. ( Ibid . ) Membership in such a group was not the same as being engaged in assisting law enforcement in an evolving and possibly precarious

clerical positions such as stenographers and telephone operators.

While interpretation of similar words in other statutes is not controlling, such interpretation is helpful in arriving at legislative intent. ( Estate of Maron (1986) 183 Cal.App.3d 707 , 712-713, 228 Cal.Rptr. 402 .) Under the general rules of statutory construction, we may consider judicial interpretation of similar words in other statutes dealing with analogous subject matter. ( Ibid . )

Here, for example, section 3212.6 affords enhanced benefits for tuberculosis for members of a police department, sheriff's office, Highway Patrol, or district attorney investigators "whose principal duties consist of active law enforcement service ... excepting those whose principal duties are clerical or otherwise do not clearly fall within the scope of active law enforcement ... such as stenographers, telephone operators, and other officeworkers...." Section 3212.9 similarly affords enhanced benefits for meningitis for law enforcement employees "whose principal duties consist of active law enforcement service ... excepting those whose principal duties are clerical or otherwise do not clearly fall within the scope of active law enforcement ... such as stenographers, telephone operators, and other officeworkers...." Section 4800 gives leave of absence with pay in lieu of lesser disability payments to "members of the Department of Justice whose principal duties consist of active law enforcement and does not apply to persons employed in the Department of Justice whose principal duties are those of telephone operator, clerk, stenographer, machinist, mechanic, or otherwise clearly not falling within the scope of active law enforcement service, even though this person is subject to occasional call or is occasionally called upon to perform duties within the scope of active law enforcement service. ..."

Section 4850 similarly provides full salary rather than temporary disability payments to law enforcement officers but not to law enforcement employees whose principal duties do not clearly fall within the scope of active law enforcement service. We discussed the meaning of "active law enforcement service" under section 4850 in Biggers, supra , 69 Cal.App.4th 431 , 81 Cal.Rptr.2d 628 . We there

The term "active law enforcement" appears in other statutes, where special workers' compensation or retirement benefits are conferred on employees for "active law enforcement service" but with express exclusions for law enforcement employees whose principal duties are, for example,

Larkin v. Workers' Compensation Appeals Board (2015) 62 Cal.4th 152 , 194 Cal.Rptr.3d 80 , 358 P.3d 552 held that a statute (§ 4458.2) awarding maximum disability benefits to volunteer peace officers, whose service entails risks of great magnitude, does not extend to regularly sworn, salaried peace officers, whose benefits depend on their salary. ( Id . at p. 163, 194 Cal.Rptr.3d 80 , 358 P.3d 552 .)

In the retirement context, we held in Riverside Sheriffs' Association v. Board of Administration of California Public Employees' Retirement System (2010) 184 Cal.App.4th 1 , 108 Cal.Rptr.3d 752 , that deputy coroners do not qualify for enhanced retirement benefits ( Gov. Code, § 20436, subd. (a) ), because their principal duties of investigating cause of death "do not involve crime suppression and the arrest and detention of criminals on a regular, as opposed to occasional, basis" and therefore do not "clearly" fall within the scope of "active law enforcement" under that statute. ( Id . at pp. 4, 8, 13, 108 Cal.Rptr.3d 752 .) Pension statutes are not necessarily coextensive with workers' compensation law. ( Riverside, supra , at p. 12, 108 Cal.Rptr.3d 752 ; see also, California Horse Racing Board v. Workers' Compensation Appeals Bd . (2007) 153 Cal.App.4th 1169 , 64 Cal.Rptr.3d 222 [investigator for racing board was not in active law enforcement].)

Glover v. Board of Retirement (1989) 214 Cal.App.3d 1327 , 263 Cal.Rptr. 224 , held that classification of an employee as being engaged in active law enforcement is largely controlled by the extent to which the category exposes its holders to potentially hazardous activity. ( Id . at p. 1333, 263 Cal.Rptr. 224 [jail cook was not in active law enforcement and was not entitled to presumption that heart attack, not precipitated by any particular incident, was service-connected].)

Crumpler v. Board of Administration (1973) 32 Cal.App.3d 567 , 578, 108 Cal.Rptr. 293 , held that animal control officers did not qualify for enhanced

opinion that active law enforcement does not terminate with the arrest of the suspect. ... In assisting the police the applicant exposed himself to the risk and peril which is concomitant with active law enforcement. The risk and peril did not end with the arrest of the foreman but continued by reason of the latter's release." ( Amend, supra , 30 Cal.Comp.Cases at pp. 30-31.)

Thus, "active law enforcement" contemplates that the individual is exposing himself or herself to risks inherent in preventing a crime or breach of peace for protection of the public.

Defendants argue these cases discussing "active law enforcement" simply use the term as a way of identifying the main duties of a peace officer, and here it is undisputed that a deputy sheriff responding to 911 calls is active law enforcement. Therefore, by responding to the 911 call on the deputy's behalf, plaintiffs were engaged in assisting in active law enforcement. We agree with defendants.

To the extent that section 3366 is ambiguous, we consider extrinsic sources of legislative intent for section 3366.

Amend v. City of Long Beach (1965) 30 Cal.Comp.Cases 29 , 1965 WL 187123 , held that an employee of a private corporation, who assisted city police as an informant in the arrest of his foreman, was engaged in active law enforcement and therefore entitled to workers' compensation benefits against the city for injuries caused by the foreman after his release. The applicant had contacted police that the foreman was trying to sell a gun that might be stolen. The police "enlisted" the caller to buy the gun with marked money; he did so and turned the gun over to the police. After the foreman was released and attacked the plaintiff, he filed a claim for workers' compensation benefits against the city but was denied on the ground that his active law enforcement service under section 3366 ended when the foreman was arrested. The appeals board reversed, stating, "The duty of the private citizen to assist in the enforcement of law has an ancient history. Section 150 of the California Penal Code makes it a misdemeanor for any male person over the age of eighteen years to refuse to aid in making an arrest, recapturing an escapee, preventing a breach of the peace, or preventing the commission of any other criminal offense. The obvious purpose of the statute in issue is to afford protection to private individuals exposed to the hazards associated with police work (California Law Revision Commission, Reports and Recommendations, February, 1963, pp. 452-453.) [¶] It is our further

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 or fire control officer, he and his dependents should be provided with protection against the financial consequences of his death or injury. The Commission, therefore, recommends

Where the Legislature adopts a Law Revision Commission recommendation without change, we accord the Law Revision Commission Report substantial weight in interpreting the statute. ( Utility Consumers' Action Network, Inc. v. AT&T Broadband of Southern Cal., Inc . (2006) 135 Cal.App.4th 1023 , 1029, 37 Cal.Rptr.3d 827 .) Here, the Legislature adopted the recommended language with only one change, irrelevant to this appeal, i.e., the enactment excluded independent contractors and their employees from being deemed to be employees of the public entity. (Stats. 1963, ch. 1684, § 2, p. 3306.)

The Law Revision Commission Report stated: "The California Supreme Court has held that a person impressed into law enforcement service under Penal Code section 150 [posse comitatus] is entitled to workmen's compensation benefits as an employee of the law enforcement agency that requested his assistance. [Fn. citing County of Monterey v. Industrial Acc. Comm'n (1926) 199 Cal. 221 [ 248 P. 912 ], where sheriff commandeered citizen to help make an arrest.] Later cases have limited this holding by suggesting that workmen's compensation benefits may not be paid if the person assisting in the enforcement of the law receives no compensation for his services [fn. citing Department of Nat. Resources v. Industrial Acc. Comm'n (1929) 208 Cal. 14 , 17-18 [ 279 P. 987 ], where the person applied and was sworn in as volunteer deputy fish and game warden] or if he has volunteered his services. [Fn. citing City of Long Beach v. Industrial Acc. Comm'n . (1935) 4 Cal.2d 624 [ 51 P.2d 1089 ], where an employee of a private detective agency at his employer's instruction assisted police in making an arrest]. ..." (6 Cal. Law Revision Com., supra , at p. 1505.)

In all of the cases cited by the Law Revision Commission, the persons clearly assumed the risks of law enforcement.

The Law Revision Commission continued: "When a person not trained in law enforcement or fire suppression is required

The above-quoted portion shows a balance between protecting government entities against open-ended tort liability, while protecting volunteers against the financial consequences of death or injury

We agree Corporal Whitman would have been performing "active law enforcement service" if he himself had gone to the 911 caller's home to check on her. Plaintiffs knew they were responding to a 911 call, and therefore they were assisting in active law enforcement. Although the deputy misrepresented that the 911 call was likely weather-related and omitted facts suggesting potential criminal activity, the deputy's misrepresentations and omissions are irrelevant to our construction of the statute at issue here. All that matters is that plaintiffs knew they were responding to a 911 call, the nature of which was not certain.

We conclude plaintiffs were engaged in assisting in active law enforcement at the deputy's request, and their remedy was worker's compensation under section 3366. We express no view on plaintiffs' pending federal lawsuit alleging civil rights violations, which was stayed pending resolution of the state court litigation. ( Gund v. County of Trinity, supra , 2013 WL 3942030 ; 2013 U.S. Dist. LEXIS 106823 .)

DISPOSITION

The judgment is affirmed. Plaintiffs shall pay defendants' costs on appeal. ( Cal. Rules of Court, rule 8.278(a).)

We concur:

BLEASE, Acting P.J.

RENNER, J.