Wilson v. Cnty. of San Joaquin

One minute later (21:52), one of the City's Fire Department units also arrived on scene. The infant was loaded into the ambulance and transported to the hospital. Two City firefighters, Brian C. Popoff and Jeff Whitlock, rode with him in the ambulance and performed various emergency medical procedures. Whitlock performed bag-valve mask ventilation using an airway device while one of the AMR paramedics continued chest compressions. The cardiac monitor in the ambulance revealed the infant's heart was in bradycardia, meaning it was beating at less than 60 beats per minute. Popoff performed an intraosseous (within bone) infusion into the infant's lower left leg after being unable to start an intravenous line. Whitlock also intubated the infant and Popoff administered epinephrine for the bradycardia, causing the infant's heart to elevate and peak at 160 beats per minute. The firefighters continued rescue breathing until their arrival at the hospital.

The infant was delivered to the hospital's emergency department at 10:04 p.m. (22:04). After he was determined to no longer be in cardiac arrest, emergency room personnel noticed bruises on his body. Dr. Douglas DeMartinis, M.D., the emergency room physician attending to the infant, ordered CT scans of the infant's head, chest, abdomen, and pelvis. The head scan revealed a subdural hematoma, meaning blood had collected outside the infant's brain. The chest scan revealed pulmonary parenchymal consolidation, meaning a portion of both lungs had filled with fluid. Possible causes included edema, pneumonia

first cause of action" that sought dissolution of the defendant corporation. ( Id. at p. 1102, 39 Cal.Rptr.2d 737 .) As the court explained, once the trial court disallowed dissolution of the company, the plaintiff's causes of action seeking an accounting to determine his share of the corporation and an order maintaining the status quo during the pendency of the action became moot. ( Ibid. ) Accordingly, the court explained, " 'there was nothing further in the nature of judicial action on the part of the court

The Merits of the Appeal

Plaintiffs argue the trial court improperly granted the County's motion for summary adjudication of the Second Cause of Action because the immunity provided by section 850.6 does not apply to the emergency medical services provided by the firefighters in this case. We agree.

A.

Summary Adjudication Principles

" 'A defendant making the motion for summary adjudication has the initial burden of showing that the cause of action lacks merit because one or more elements of the cause of action cannot be established or there is a complete defense to that cause of action. [Citations.] If the defendant fails to make this initial showing, it is unnecessary to examine the plaintiff's opposing evidence and the motion must be denied. However, if the moving papers establish a prima facie showing that justifies a judgment in the defendant's favor, the burden then shifts to the plaintiff to make

purpose of the law. In determining such intent, a court must look first to the words of the statute themselves, giving to the language its usual, ordinary import and according significance, if possible, to every word, phrase and sentence in pursuance of the legislative purpose. A construction making some words surplusage is to be avoided. The words of the statute must be construed in context, keeping in mind the statutory purpose, and statutes or statutory sections relating to the same subject must be harmonized, both internally and with each other, to the extent possible. [Citations.] Where uncertainty exists consideration should be given to the consequences that will flow from a particular interpretation. [Citation.] Both the legislative history of the statute and the wider historical circumstances of its enactment may be considered in ascertaining the legislative intent. [Citations.]" ( Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379 , 1386-1387, 241 Cal.Rptr. 67 , 743 P.2d 1323 .)

Section 850.6 provides in relevant part: "Whenever a public entity provides fire protection or firefighting service outside of the area regularly served and protected by the public entity providing that service, the public entity providing the service is liable for any injury for which liability is imposed by statute caused by its act or omission or the act or omission of its employee occurring in the performance of that fire protection or firefighting service. Notwithstanding any other law, the public entity receiving the fire protection or firefighting service is not liable for any act or omission of the public entity providing the service or for any act or omission of an employee of the public entity providing the service; but the public entity providing the service and the public entity receiving the service may by agreement determine the extent, if any, to which the public entity receiving the service will be required to indemnify the public entity providing the service." ( § 850.6, subd. (a).)

There is no dispute that the City and the County entered into an agreement whereby the City's Fire Department would provide emergency medical services as part of the County's Emergency Medical Services system. Under the trial court's reading of section 850.6, the provision of such services fell within the scope of the statutory term "firefighting service," making the City, as "the public entity providing the service,"

added to chapter 4 of part 2 of this division. This chapter is titled, "Fire Protection." (Stats. 1963, ch. 1681, p. 3279.) While there do not appear to be any published cases interpreting section 850.6, the Law Revision Commission provided the following comment with respect to its purpose and scope: "This section makes clear which public entity is liable when one entity calls for the assistance of another in fighting a fire. Unless the entities agree, each entity is financially responsible only for the torts of its own personnel." (4 Cal. Law Revision Com. Rep. (1963) p. 801, reprinted in West's Ann. Gov. Code (2012 ed.) foll. § 850.6, italics added.) While this comment is perhaps too restrictive in that the statute applies to both "firefighting" and "fire protection" services, the latter term arguably encompassing actions broader than those undertaken during the actual fighting of a fire, the comment corresponds precisely with the plain meaning of the statutory phrase, "firefighting service." By "firefighting service," the Legislature intended to include all services attendant to "fighting a fire." ( Ibid. ) "Because the official comments of the California Law Revision Commission 'are declarative of the intent not only of the draftsman of the code but also of the legislators who subsequently enacted it' [citation], the comments are persuasive, albeit not conclusive, evidence of that intent [citation]." ( Bonanno v. Central Contra Costa Transit Authority (2003) 30 Cal.4th 139 , 148, 132 Cal.Rptr.2d 341 , 65 P.3d 807 .)

The County has cited no authority suggesting the Legislature intended the phrase "firefighting service" in section 850.6 to include emergency medical services unrelated to fighting a fire. However, cases interpreting a related provision, section 850.4, support our conclusion the emergency medical services rendered in this case are not part of "firefighting service" within the meaning of the statute.

In Lewis v. Mendocino Fire Protection Dist. (1983) 142 Cal.App.3d 345 , 190 Cal.Rptr. 883 ( Lewis ), the Court of Appeal held, "section 850.4 does not grant immunity to a fire district when its personnel negligently injure a person rescued during a nonfirefighting incident." ( Id. at p. 346, 190 Cal.Rptr. 883 .) There, the plaintiff alleged he was injured by the actions of firefighters who negligently rescued him from beneath a tree that had fallen onto his tent while camping. The trial court sustained the defendant fire protection district's demurrer on the ground that section 850.4 provided the district with immunity under these circumstances. ( Id. at pp. 346-347, 190 Cal.Rptr. 883 .) The section provides: "Neither a public entity, nor a public employee acting in the scope of his [or her] employment, is liable for any injury resulting from the condition of fire protection or firefighting equipment or facilities or, except as provided in [certain Vehicle Code provisions], for any injury caused in fighting fires." (§ 850.4.)

Reversing the trial court's decision, the Court of Appeal first noted it was required to interpret section 850.4 to allow for liability unless "the Legislature has clearly intended immunity." ( Lewis , supra , 142 Cal.App.3d at p. 347, 190 Cal.Rptr. 883 .)

health or safety of a person in imminent peril.' " ( Eastburn v. Regional Fire Protection Authority , supra , 31 Cal.4th at pp. 1180-1181, 7 Cal.Rptr.3d 552 , 80 P.3d 656 .)

Thus, the Legislature has provided two levels of governmental immunity for injuries resulting from the negligent conduct of firefighters. Where such conduct is part of their firefighting activities, with limited exceptions, an absolute immunity applies. (§ 850.4.) Where, however, the negligent conduct is part of providing emergency services, such as the emergency medical services at issue in this case, a qualified immunity applies, requiring bad faith or gross negligence to trigger liability. ( Health & Saf. Code, § 1799.107.)

The County does not dispute this, but argues the foregoing cases are inapposite because they involved section

DISPOSITION

The judgment entered following the trial court's grant of San Joaquin County's motion for summary judgment and/or summary adjudication is reversed. The parties shall bear their own costs on appeal. ( Cal. Rules of Court, rule 8.278.)

We concur:

BLEASE, Acting P. J.

MAURO, J.

, aspiration, hemorrhage, and non-accidental trauma. Because of the latter possibility, law enforcement authorities were called.

About three hours after the infant was brought to the emergency room, he was air lifted to Sutter Medical Center in Sacramento, where he would die 10 days later. The coroner's report lists the cause of death as "[n]on-accidental trauma in a child" and notes the infant "was possibly shaken." The Stockton Police Department investigated the death as a homicide and the San Joaquin District Attorney's Office charged the infant's father, one of the plaintiffs herein, with four felony counts, including child abuse resulting in death. Eventually, in May 2012, the father entered a plea of no contest to felony child abuse.

The Present Lawsuit and Summary Adjudication

In October 2012, plaintiffs filed the present lawsuit against several individuals and entities who undertook to provide lifesaving medical services for the infant, asserting causes of action for medical malpractice, professional negligence, and intentional infliction of emotional distress. The operative Third Amended Complaint was filed in March 2014.

The trial court granted the motion, noting plaintiffs had not cited "any authority which would clearly limit the effect of section 850.6 to services directly relating to fighting flames, rather than to a broader category of firefighting services which include the emergency treatment of persons by firefighting personnel." Thereafter, the trial court entered judgment in favor of the County. This appeal followed.

a prima facie showing of the existence of a triable material factual issue.' [Citation.] 'A prima facie showing is one that is sufficient to support the position of the party in question.' [Citation.]" ( Rehmani v. Superior Court (2012) 204 Cal.App.4th 945 , 950, 139 Cal.Rptr.3d 464 .)

Our review of an order granting summary adjudication is subject to "the same standard of review applicable on appeal from a grant of summary judgment." ( Schofield v. Superior Court (2010) 190 Cal.App.4th 154 , 156, 118 Cal.Rptr.3d 160 .) Thus, "[w]e review the record and the determination of the trial court de novo." ( Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990 , 1003, 4 Cal.Rptr.3d 103 , 75 P.3d 30 .) Moreover, where the propriety of a grant of summary judgment turns on the proper interpretation of a statute, as here, our review of that question of law is also de novo. (See Regents of University of California v. Superior Court (1999) 20 Cal.4th 509 , 531, 85 Cal.Rptr.2d 257 , 976 P.2d 808 .)

B.

Proper Interpretation of Section 850.6

"Pursuant to established principles, our first task in construing a statute is to ascertain the intent of the Legislature so as to effectuate the

liable for "any injury for which liability is imposed by statute caused by ... the act or omission of its employee[s] occurring in the performance of that ... firefighting service," and immunizing the County, as "the public entity receiving the ... firefighting service," from such liability. ( § 850.6, subd. (a).) As we explain immediately below, this is incorrect.

Section 850.6 was enacted in 1963 as part of the California Tort Claims Act (§ 810 et seq.), an act adding division 3.6 to title 1 of the Government Code. (Stats. 1963, ch. 1681, p. 3266.) The section was

With respect to legislative intent, the court cited the Law Revision Commission's comment to section 850.6, indicating it provided " 'absolute immunity from liability for injury caused in fighting fires (other than injuries resulting from operation of motor vehicles) or from failure to properly maintain fire protection equipment or facilities.' " ( Ibid. ) The court concluded: "Although this rescue operation may be within the normal activities of today's fire department, it was unrelated to combatting fires and therefore is beyond the grant of governmental immunity." ( Ibid. ; see also Varshock v. Department of Forestry & Fire Protection (2011) 194 Cal.App.4th 635 , 649, 125 Cal.Rptr.3d 141 ["Legislature intended to immunize the conduct of firefighters while at the scene of a fire and actually combating a fire "].)

In response to Lewis, supra , 142 Cal.App.3d 345 , 190 Cal.Rptr. 883 , the Legislature enacted Health and Safety Code section 1799.107. ( Ma v. City and County of San Francisco (2002) 95 Cal.App.4th 488 , 513, 115 Cal.Rptr.2d 544 , disapproved on another point in Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175 , 1183-1184, 7 Cal.Rptr.3d 552 , 80 P.3d 656 .) Subdivision (a) of this provision states: "The Legislature finds and declares that a threat to the public health and safety exists whenever there is a need for emergency services and that public entities and emergency rescue personnel should be encouraged to provide emergency services. To that end, a qualified immunity from liability shall be provided for public entities and emergency rescue personnel providing emergency services." ( Health & Saf. Code, § 1799.107, subd. (a), italics added.) Subdivision (b) then provides in relevant part: "[N]either a public entity nor emergency rescue personnel shall be liable for any injury caused by an action taken by the emergency rescue personnel acting within the scope of their employment to provide emergency services, unless the action taken was performed in bad faith or in a grossly negligent manner. " ( Id. , subd. (b), italics added.)

"[Health and Safety Code s]ection 1799.107, subdivision (d), defines 'emergency rescue personnel' to mean 'any person who is an officer, employee, or member of a fire department or fire protection or firefighting agency of the federal government, the State of California, a city, county, city and county, district, or other public or municipal corporation or political subdivision of this state, or of a private fire department, whether that person is a volunteer or partly paid or fully paid, while he or she is actually engaged in providing emergency services as defined by subdivision (e).' [¶] Finally, subdivision (e) of [Health and Safety Code] section 1799.107 provides that 'emergency services' includes 'first aid and medical services, rescue procedures and transportation, or other related activities necessary to insure the

850.4 rather than section 850.6. Moreover, section 850.4 uses the statutory phrase, "in fighting fires," whereas section 850.6 uses "firefighting service," a phrase the County argues should be interpreted to mean "all the regular services a firefighter renders," including emergency medical services. However, as we have explained, the Law Revision Commission has made clear in its comment to section 850.6 that "firefighting service" means service attendant to "fighting a fire." (4 Cal. Law Revision Com. Rep. (1963) p. 801, reprinted in West's Ann. Gov. Code (2012 ed.) foll. § 850.6.) This comports with the plain meaning of the statutory language. Additionally, while section 850.4 and section 850.6 provide different immunities, the former shielding both the firefighter and the entity employing him or her from liability for injuries caused by negligent conduct while fighting a fire (among other things, and again with limited exceptions), while the latter shields an entity receiving such firefighting services (as well as fire protection services) from an outside entity, we conclude the placement of these provisions in the same "Fire Protection" chapter suggests an intent on the part of the Legislature that they be interpreted similarly to exclude conduct unrelated to protecting the public from and fighting fires.

Finally, we are not unsympathetic to the County's argument that it makes sense "to impose liability on the public entity that provides the firefighters, whether the firefighters were actually spraying water on a flame at the time the injury occurred or not." But we cannot interpret a statutory enactment in such a way as to expand a grant of immunity beyond what the plain meaning of the statute and expression of Legislative intent would reasonably allow. As the court stated in Lewis , supra , 142 Cal.App.3d 345 , 190 Cal.Rptr. 883 : "In governmental tort cases, the rule is liability; immunity is the exception." ( Id. at p. 347, 190 Cal.Rptr. 883 .) Should the Legislature desire to create an immunity complementary to that provided by section 850.6 for emergency services unrelated to fire protection or firefighting, as it did in enacting Health and Safety Code section 1799.107 following Lewis, supra , 142 Cal.App.3d 345 , 190 Cal.Rptr. 883 , it is of course free to do so.