Monroy v. City of Los Angeles (164 Cal. App. 4th 248, 2008)

Opinion

ALDRICH, J.

I.

INTRODUCTION

These two consolidated personal injury lawsuits were filed on behalf of two people after they were injured in a traffic accident involving a police vehicle. The jury found that the officer driving the police vehicle was not negligent and found against the two injured persons. The injured persons raise three evidentiary issues on appeal from the judgment rendered against them. We reverse.

II.

FACTUAL AND PROCEDURAL BACKGROUND

A. Facts.

On September 4, 2004, Saturday of Labor Day weekend at approximately 10:45 p.m., Yesenia Monroy was driving a Mitsubishi Mirage eastbound on Third Street in Los Angeles. Her child (Phoebe P.) was sitting in a child safety seat in the back of the Mitsubishi.

Los Angeles Police Department Officer Felipe Jesus Arreola was operating a Los Angeles Police Department (LAPD) vehicle. His partner, Jaime Garcia, was riding as a passenger. The officers were on routine patrol on Pleasant Avenue approaching Boyle Avenue when they heard a radio call. One of the gang units in the area was requesting backup for a foot pursuit of a man with a gun.

The operator designated the call as “Code 2” and directed another police unit to respond. A “Code 2” is an urgent, but nonemergency, response request requiring those police vehicles responding to obey the rules of the road. A backup call is a Code 2.

Officer Arreola realized that Officer Harsma was the officer requesting backup. Officer Harsma sounded winded as he called out street names where he was located, requested assistance in setting up a perimeter, and described the suspect. The area where the call had come from bordered gang territory.

At Officer Arreola’s request, Officer Garcia advised dispatch that they were “backing,” i.e., they were responding to a Code 2.

At the intersection of Pleasant Avenue and Boyle Avenue, Officer Arreola made a right turn and headed southbound. It was a very short distance to the intersection of Boyle Avenue and First Street. Officer Arreola turned on his siren and his overhead emergency lights, passed through the intersection at Boyle Avenue and First Street where there was a red light, and continued southbound on Boyle Avenue toward Third Street.

Once Officer Arreola passed through the intersection of Boyle Avenue and First Street, he turned off the siren. He did not remember if he also turned off the overhead lights.

Officer Arreola accelerated. Within moments, his vehicle was almost at Third Street where he saw Monroy’s vehicle. Officer Arreola applied the brakes of the patrol vehicle, but could not avoid colliding with Monroy.

Neither Officer Arreola nor Officer Garcia notified the dispatcher that either of them had upgraded the call to a Code 3. A Code 3 exempts emergency vehicles from rules of the road under certain circumstances. In his deposition, Officer Arreola testified that when he received the radio call for backup, he responded, “Code 2, Code 2 High.” However, at trial, Officer Arreola testified that he initially responded to the call as Code 2, but when he turned on the siren and lights he upgraded the call in his mind to Code 3.

The posted speed limit in the area of the collision was 25 miles per hour. Officer Arreola testified he was traveling between 35 and 45 miles per hour. Three experts confirmed Officer Arreola’s testimony that Officer Arreola was speeding at the time of the collision. The experts estimated that the police vehicle’s speed at the point of impact ranged between 44 and 47 miles per hour. As to pre-braking speed, one expert testified that the police vehicle was traveling at 51 miles per hour before Officer Arreola applied the brakes, and another expert testified that the pre-braking speed of the police vehicle was 65 miles per hour.

No dangerous condition of public property caused or contributed to the occurrence of the collision.

Officer Arreola and Phoebe P. suffered serious injuries. Monroy was catastrophically injured and could not give a statement or attend the trial.

B. Procedure.

1. The pleadings.

Plaintiff and appellant Cesar Augusto Monroy, as guardian ad litem for Yesenia Monroy (Monroy), and plaintiff and appellant Rosa Vilma Medina, as guardian ad litem for Phoebe R, filed separate lawsuits alleging negligence of defendants and respondents the City of Los Angeles (the City) and Officer Arreola. The two lawsuits were consolidated.

The City pled comparative fault as an affirmative defense and cross-complained against Monroy for indemnification of Phoebe P.’s damages.

2. The trial and the admissions.

The trial court bifurcated the issues of liability and damages,

a. The admissions.

Prior to trial, the parties engaged in discovery. In response to two sets of requests for admissions, defendants made a number of admissions. In addition to others, the following admissions made by defendants later would be read to the jury:

Admission No. 44: “The LAPD has no civilian witness that heard the patrol vehicle’s sirens activated at the point of impact.”

Admission No. 45: “The LAPD has no civilian witness that heard the patrol vehicle’s sirens activated as it . . . entered the intersection at the location of the collision.”

Admission No. 64: “At the time of the collision, Officer . . . Arreola was required to obey the California Vehicle Code.”

Admission No. 68: “At the time of the collision, Officer . . . Arreola had a duty to drive with due regard for the safety of all persons using Boyle Avenue.”

Admission No. 69: “At the time of the collision, Officer . . . Arreola had a duty to drive with due regard for the safety of . . . Monroy.”

Admission No. 71: “At the time of the collision, Officer . . . Arreola was not responding Code 3.”

Admission No. 75: “At the time of the collision, LAPD policy required LAPD officers to obey the California Vehicle Code when responding Code 2.”

Admission No. 77: “LAPD policy requires LAPD officers to obey the California Vehicle Code when responding Code 2.”

Admission No. 83: “According to LAPD policy, a backup request is a Code 2 response.”

Admission No. 84: “At the time of the collision, LAPD policy required LAPD officers to respond Code 2 when responding to a backup request.”

Prior to trial, plaintiffs brought a motion in limine to exclude comments, arguments, or reference to, any exemption from compliance with the Vehicle Code or traffic laws for police vehicles under Vehicle Code section 21055; and to preclude any jury instructions or special verdict forms on the emergency vehicle exemption under Vehicle Code section 21055. The trial court granted the motion without prejudice, subject to defendants establishing a sufficient foundation.

b. The trial.

There was extensive testimony about the meaning of “Code 2,” “Code 3” and LAPD policies. Among other factual disputes, the parties contested whether Officer Arreola turned off both the siren and the overhead lights after he had gone through the intersection at First Street and Boyle Avenue.

c. The motion to exclude expert Moen’s testimony and the jury instructions.

As noted, Officer Arreola testified at trial that in his mind he had upgraded his response to a Code 3 emergency. Thereafter, the defense called expert Ronald Nelson Moen to testify about LAPD’s training with regard to Vehicle Code section 21055, which provides an exemption from liability for vehicles responding to an emergency call under certain situations. Plaintiffs argued that defendants’ pretrial admissions made section 21055 inapplicable and preluded most of Moen’s testimony. The trial court held a hearing outside the presence of the jury to determine the effect of the admissions.

In addition to other arguments, defendants asserted that the admissions read to the jury (including admissions Nos. 44, 45, 64, 68, 69, 71, 75, 77, 83, and 84) did not preclude Moen’s testimony. Defendants brought to the trial court’s attention three other requests for admissions (admissions Nos. 66, 70, 76) that plaintiffs had not submitted to the jury. Defendants argued these three admissions elucidated and explained the admissions relied upon by defendants, e.g., admissions Nos. 44, 45, 64, 68, 69, 71, 75, 77, 83, and 84, and thus, it was proper to admit Moen’s testimony. Defendants also asserted that the evidentiary matters contained in the testimony had established a factual bases for the application of Vehicle Code section 21055.

The trial court ruled, “I find that there is enough of a factual dispute that these—in comparing your requests for admissions with [those brought to the attention of the court by defendants] plus the evidence that I’ve heard so far, I don’t believe that you have established issue preclusion at this point in time on that basis.”

After the close of evidence, the trial court instructed the jury with the law pursuant to Vehicle Code section 21055, as requested by defendants.

d. The verdict.

The jury rendered a nine-to-three verdict in favor of defendants, finding Officer Areola had not been negligent. Because the jury found Officer Arreola had not been negligent, the jury did not reach the issue of comparative fault.

Plaintiffs timely appealed from the subsequently entered judgment. We reverse.

III.

DISCUSSION

A. The trial court reversibly erred in providing the jury with instructions relating to Vehicle Code section 21055.

Plaintiffs persuasively contend that the Vehicle Code section 21055 (Section 21055) instructions contradicted explicit admissions made by defendants, and thus, the trial court erred in providing the jury with these instructions. Given the gravity of this error, reversal is required.

1. Section 21055 and the LAPD Manual.

“The provisions of [the Vehicle Code] applicable to the drivers of vehicles upon the highways apply to the drivers of all vehicles while engaged in the course of employment by [the LAPD], including authorized emergency vehicles subject to those exemptions granted such authorized emergency vehicles in [the Vehicle Code].” (Veh. Code, § 21052.)

With regard to Section 21055 and its companion statute, Vehicle Code section 21056 (Section 21056), the jury was instructed; “California Vehicle Code provides that the driver of an authorized emergency vehicle is exempt from the . . . need to observe the provisions of the Vehicle Code relating to speed limit. . . under all of the following conditions: If—A, if the vehicle is being driven in response to an emergency call; and, B, if the driver of the vehicle sounds a siren as may be reasonably necessary and the vehicle displays a lighted red lamp visible from the front as a warning to other drivers and pedestrians, [f] When the foregoing requirements are met, then it is not negligence as a matter of law for the driver of the authorized emergency vehicle to fail to observe those provisions of the Vehicle Code from which the driver is exempt. [][] This exemption, however, does not relieve the driver of such vehicle from the duty to drive with due regard for the safety of all persons, nor protect the driver from the consequences of an arbitrary exercise of the privileges granted under the exemption. [