Filed 11/24/14

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

GEORGE P. CONWAY,

Plaintiff and Appellant,

v.

COUNTY OF TUOLUMNE,

Defendant and Respondent.

F067505

(Super. Ct. No. CV56979)

OPINION

APPEAL from a judgment of the Superior Court of Tuolumne County. Donald I. 

Segerstrom, Jr., Judge. 

Zumwalt Law Firm, Frank T. Zumwalt and Graham Lopez for Plaintiff and 

Appellant.

Brady & Vinding and Michael E. Vinding for Defendant and Respondent.

-ooOooIn an unsuccessful attempt to apprehend George P. Conway’s adult son, Donald 

Conway,1 who reportedly had fired shots at George, officers from defendant County of 

Tuolumne (County) fired a tear gas canister into George’s mobile home. Donald was not 

inside but was apprehended later. George brought suit against the County for damage to 

 

1We refer to George and Donald Conway by their first names to ease the reader’s 

task. No disrespect is intended. 
2.

his mobile home caused by the tear gas, alleging negligence, trespass, nuisance, and strict 

liability for an ultra-hazardous activity. The trial court granted the County’s motion for 

summary judgment, finding the County immune under Government Code section 820.2,2

which provides immunity for discretionary acts of County employees. George appeals, 

contending the trial court erred in finding the County immune from liability for any of his 

claims. We conclude that, under the facts and circumstances of this case, and based on 

the applicable law, County is immune from liability for the conduct of its officers. 

Accordingly, we affirm the judgment. 

FACTS AND PROCEDURAL HISTORY

In May 2011, George was living with Donald in a mobile home at 15970 Hidden 

Valley Road in Sonora (the 15970 house). On May 24, 2011, George was moving into 

his new home—a neighboring mobile home at 15990 Hidden Valley Road (the 15990 

house). 

At about 8:00 a.m. that day, two satellite TV service technicians arrived at the 

15990 house to perform an installation. After Donald came over and then stormed off 

“all angry,” the main technician wanted to get the job done as quickly as possible “and 

get out of here.” About 10 minutes later, Donald came onto the deck of the 15990 house 

holding a handgun. George ran inside the 15990 house and locked the door. While 

George was standing to the side of the door, Donald fired three shots at the closed door. 

George went out the back door; both he and the technicians ran to a neighbor’s house. 

George requested law enforcement assistance in a 911 call; he told the dispatcher 

that his 51-year-old son Donald had fired gunshots, which blew the front door off the

house, and had pointed the gun at him. George told the dispatcher to “please get the 

sheriff here quickly.” George at first said that Donald still had the gun and still was at the 

 

2Undesignated statutory references are to the Government Code.
3.

15990 house, but later told the dispatcher he was not aware of where Donald was “right 

now.” The last time he saw Donald, “he was shooting the door off of the house.” 

Tuolumne County Sheriff’s Department (Department) Sergeant Neil Evans and 

other officers responded to the call that gunshots were fired, arriving on the scene at 8:45

a.m. Dispatch had advised Evans that Donald, a felon prohibited from possessing a 

firearm, had a .357 revolver registered to him, was intoxicated, had brandished a 

handgun, had chased George into the 15990 house, and had fired three gunshots in 

George’s direction. The two technicians told Evans they saw Donald fire a handgun in 

George’s direction and both believed Donald had shot George. 

Evans sent a deputy to the neighbor’s house where George and the technicians 

were to speak with George, while he and another deputy watched the two houses. 

According to Evans, George told the deputy that Donald was still at the 15990 house and 

gave them permission to search it. Evans also claimed he confirmed with George that 

Donald was not seen leaving the 15990 house, that he was in possession of multiple 

firearms, and that Donald followed George into the 15990 house and was still there. 

Evans said George asked him to “go get him.” George also told Evans that Donald had a 

leg injury and was not mobile. 

George, however, denied telling Evans that Donald was in the 15990 house and 

claimed that, when he first spoke to Evans, he told Evans he did not know where Donald 

was, but he “was probably watching us from the woods surrounding us.” According to 

George, when the first officer he spoke with asked him whether Donald was still in the 

15990 house, he told the officer he did not know. 

Evans and another deputy cleared the 15970 house to ensure Donald was not there 

while another deputy watched the 15990 house. Evans set up a perimeter around the 

15990 house and directed a deputy to use a loudspeaker to ask Donald to come out, but 

Donald did not come out. Evans then went to the rear of the 15990 house and saw a burn 

mark on the front door where the door handle used to be, and a bullet fragment on the 
4.

porch, as well as fresh blood near the door that appeared to be a smear mark from a hand. 

The door was closed. A local school was placed on lockdown. 

Evans requested that dispatch send the acting lieutenant, Sergeant Jeff Wilson, to 

the scene so he could request the use of the SWAT team; after Wilson arrived on the 

scene, Wilson granted the request. According to Wilson, Evans told him he did not know 

if Donald was in the 15990 house. Based on his experience and Evans’s statement, 

Wilson thought it possible Donald had run off into the woods. Evans planned to use the 

SWAT team to perform a “surround and callout for a barricaded subject,” which entails 

surrounding the house, continuing to make announcements and, if needed, using a 

negotiation team to try to establish communication. Depending on the situation, the 

action can then escalate or deescalate. 

SWAT commander Sergeant James Oliver asked the Calaveras County Hostage 

Negotiations Team to come to the scene and attempt to communicate with Donald inside 

the home. With Oliver’s consent, the hostage negotiation team decided to attempt 

contact with a mobile “throw phone,” which operates as a listening device, that was 

placed in the house by porting a window. Multiple calls were made to the phone over the 

course of 25 minutes, but George did not answer and nothing was heard from the phone. 

Evans did not hear anyone or see movement inside the house after the window was 

broken. 

After Evans reviewed Donald’s criminal history, he asked Oliver and Watson for 

authorization to deploy two tear gas canisters in an effort to resolve the situation and 

protect against the loss of life and damage to property. Evans made the request because it 

is an approved, but less-than-lethal alternative, and avoids the necessity of sending an 

officer into the residence at substantial risk of harm to person and property; otherwise, 

officers would be forced to “storm” the residence by kicking in both points of entry and 

attempting to subdue Donald without firing any shots. Based on Donald’s criminal 

history and previous use of deadly force, Evans believed, in his professional opinion, that 
5.

Donald would attempt to use deadly force against the officers. Oliver granted the

request. Evans authorized the placement of one tear gas canister into the 15990 house, 

which the SWAT team did at 1:11 p.m. The gas filled the home. About eight minutes 

later, on Oliver’s command, the SWAT team broke down the front door using a ram, put 

a diversionary device on the end of a flash bang pole, ignited it, and went into the house. 

No one was inside. 

After the SWAT raid, deputies searched the surrounding area for Donald. Donald 

subsequently was captured. The gas residue could not be removed from the house and 

made the home uninhabitable. According to George, Evans did not ask him if he or the 

SWAT team could go inside the 15990 house, and Evans did not tell him anything about 

a SWAT raid or the use of tear gas. George claimed he did not know what the police did 

after they arrived on the scene. 

This lawsuit

George filed suit against the County in September 2011. He later filed a first 

amended complaint, which alleges four causes of action: (1) negligence, (2) nuisance, 

(3) trespass, and (4) strict liability for an ultra-hazardous activity. George alleged that the 

County “negligently and carelessly” fired or threw tear gas into and damaged the 15990 

house when it knew, or should have known, that Donald was not in the home, and the 

County was not justified in using the force employed. George further alleged the 

County’s act of releasing tear gas in the house, rendering it unlivable and uninhabitable, 

constituted a nuisance, thereby entitling him to damages to abate the nuisance. George 

alleged the County’s acts and omissions constituted a continuing trespass on his property, 

and the resulting contamination exceeded the scope of any privilege the County had to 

enter the property. Finally, George alleged the use of tear gas, which is not a matter of 

common usage, necessarily involved a risk of environmental harm to the home and 

people entering it, and as a proximate result of the County’s actions, the 15990 house had 

been polluted. 
6.

The summary judgment motion

The County filed a motion for summary judgment or, in the alternative, summary 

adjudication on the following grounds: (1) George consented to the presence of law 

enforcement and use of force by calling 911 and requesting law enforcement assistance in 

apprehending Donald at his house; (2) the County is immune under Penal Code 

section 844 due to exigent circumstances; and (3) discretionary immunity bars liability. 

As pertinent here, the County contended it was entitled to discretionary immunity 

under section 820.2 as to all of George’s claims because the officers on the scene were 

vested with discretion in how the suspected felon, Donald, would be arrested, and the 

decision to use tear gas was a discretionary decision. The County further asserted that, 

both from objective and subjective points of view, the officers acted reasonably under the 

circumstances, considering the information known to them, and therefore their conduct 

was not wrongful and is not actionable. 

In his opposition to the motion, George argued that, because the SWAT team 

exceeded the scope of his permission to enter the property, consent was not a defense to 

his claims of trespass and nuisance, and Penal Code section 844 does not provide 

immunity for the officers’ conduct as it is not an immunity statute. On the issue of 

discretionary immunity, George contended such immunity was unavailable because the 

SWAT team’s decision to raid his home was not a basic policy decision formulated by 

policymakers, but instead was a ministerial decision not subject to immunity. While 

George conceded the decision to investigate was a discretionary one, he claimed the 

officers’ subsequent actions, namely the decision to deploy the SWAT team and raid the 

property, merely were implementing that decision and therefore were not immunized. 

Finally, George asserted that, because the County’s moving papers did not challenge his 

cause of action for strict liability, that claim remained viable. 

At the conclusion of oral argument, the trial court granted the motion as to all 

causes of action. The trial court first noted that the parties had conceded that if there was 
7.

discretionary immunity, consent was irrelevant. The trial court stated that the crux of the 

issue was discretionary immunity, which it found to be clearly present. The trial court 

explained that, while George’s position was that the decision to use tear gas was not a 

discretionary one, it could “hardly think of a more discretionary decision that officers 

would have to make.” The trial court recounted the evidence that showed the officers 

knew Donald had fired shots into the house but did not know where Donald was, and 

stated that, after marshaling the facts, Evans determined he wanted to enter the house to 

ascertain whether Donald was or was not there without putting the officers in the line of 

fire, so he asked for authorization to use tear gas. The trial court determined that all of 

those factors, and the weighing of them, was the essence of a discretionary decision. 

The trial court found this case analogous to excessive-force cases because George 

was saying it was unreasonable for the officer to use tear gas to try to enter his house and 

found persuasive two federal cases and one California case, Lopez v. City of Los Angeles 

(2011) 196 Cal.App.4th 675 (Lopez), on excessive force. The trial court disagreed with 

George that the decision to use tear gas was a ministerial, negligent decision, and instead 

found it was a discretionary one based on the balancing of the risks and facts as they 

appeared to the officers in the field, as well as the necessity to protect the public and 

George. Accordingly, the trial court found section 820.2 applied and, on that basis, 

granted the summary judgment motion. The trial court stated on the record that it found 

there were no disputed issues of fact on the issue of discretion and the officers’ use of 

discretion that rendered summary judgment inappropriate, and believed there were 

sufficient undisputed facts that the exercise of discretion was clear and summary 

judgment appropriate. 

DISCUSSION

On appeal, George challenges the trial court’s finding that the County is entitled to 

discretionary immunity with respect to his claim that the officers decided to deploy the 

SWAT team and raid his home “despite almost conclusive evidence no one was inside.” 
8.

Specifically, he contends the officers were negligent when they ignored the evidence 

indicating that Donald was not in the 15990 house and “unnecessarily gassed the 

property,” and the actions performed while implementing the decision to arrest Donald 

were ministerial and therefore not immune from liability. 

Standard of review

Summary judgment is appropriate where “all the papers submitted show that there 

is no triable issue as to any material fact and that the moving party is entitled to a 

judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c); see Aguilar v. Atlantic 

Richfield Co. (2001) 25 Cal.4th 826, 850.) “A three-step analysis is employed in ruling 

on motions for summary judgment. First, the court identifies the issues framed by the 

pleadings. Next, the court determines, when the moving party is the defendant, whether 

it has produced evidence showing one or more of the elements of the cause of action 

cannot be established or there is a complete defense to that cause of action. If the 

defendant does so, the burden shifts to the plaintiff to show the existence of a triable issue 

of material fact as to that cause of action or defense.” (Kline v. Turner (2001) 87 

Cal.App.4th 1369, 1373.)

“In ruling on the motion, the court must consider all of the evidence and all of the 

inferences reasonably drawn therefrom, and must view such evidence and such inferences 

in the light most favorable to the opposing party.” (LPP Mortgage, Ltd. v. Bizar (2005) 

126 Cal.App.4th 773, 776.) “‘All doubts as to whether any material, triable issues of fact 

exist are to be resolved in favor of the party opposing summary judgment.’” (Ibid.) An 

order granting summary judgment is reviewed de novo. (Susag v. City of Lake Forest

(2002) 94 Cal.App.4th 1401, 1408.)

Discretionary immunity

“In California, all government tort liability must be based on statute.” (Becerra v. 

County of Santa Cruz (1998) 68 Cal.App.4th 1450, 1457; Wilson v. County of San Diego

(2001) 91 Cal.App.4th 974, 979-980.) “Under the provisions of the California 
9.

[Government] Claims Act, ‘a public employee is liable for injury caused by his act or 

omission to the same extent as a private person,’ except as otherwise specifically 

provided by statute. ([] § 820, subd. (a), italics added.) In addition, the [Government]

Claims Act further provides that ‘[a] public entity is liable for injury proximately caused 

by an act or omission of an employee of the public entity within the scope of his 

employment if the act or omission would ... have given rise to a cause of action against 

that employee,’ unless ‘the employee is immune from liability.’ ([] § 815.2, subds. (a), 

(b), italics added.)” (Lugtu v. California Highway Patrol (2001) 26 Cal.4th 703, 715.)3

Thus, the Government Claims Act “establishes the basic rules that public entities

are immune from liability except as provided by statute (§ 815, subd. (a)), that public 

employees are liable for their torts except as otherwise provided by statute (§ 820, 

subd. (a)), that public entities are vicariously liable for the torts of their employees 

(§ 815.2, subd. (a)), and that public entities are immune where their employees are 

immune, except as otherwise provided by statute (§ 815.2, subd. (b)).” (Caldwell v. 

Montoya (1995) 10 Cal.4th 972, 980 (Caldwell).)

California’s common law has long provided personal immunity from lawsuits 

challenging a governmental official’s discretionary acts within the scope of authority. 

(Caldwell, supra, 10 Cal.4th at p. 979.) The traditional immunity for discretionary acts is 

addressed in the Government Claims Act under section 820.2, which states that,

“‘[e]xcept as otherwise provided by statute, a public employee is not liable for an injury 

resulting from his act or omission where the act or omission was the result of the exercise 

 

3Effective January 1, 2013, section 810 was amended to adopt the short title 

“Government Claims Act” to refer to division 3.6, parts 1 through 7, of the Government 

Code (§ 810 et seq.). (See City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 741-

742 [“Because of the broad scope of the claim requirements ... ‘Government Claims Act’ 

is a more appropriate short title than the traditional ‘Tort Claims Act.’”].)
10.

of the discretion vested in him, whether or not such discretion be abused.’” (Caldwell, 

supra, at p. 980.) 

As our Supreme Court explained in Caldwell, in Johnson v. State of California 

(1968) 69 Cal.2d 782, the court established a “‘workable definition’ of immune 

discretionary acts,” which “draws the line between ‘planning’ and ‘operational’ functions 

of government.” (Caldwell, supra, 10 Cal.4th at p. 981.) “Immunity is reserved for those 

‘basic policy decisions [which have] ... been [expressly] committed to coordinate 

branches of government,’ and as to which judicial interference would thus be ‘unseemly.’ 

(Id. at p. 793, italics in original.) Such ‘areas of quasi-legislative policy-making ... are 

sufficiently sensitive’ (id. at p. 794) to call for judicial abstention from interference that 

‘might even in the first instance affect the coordinate body’s decision-making process’

(id. at p. 793). [¶] On the other hand, said Johnson, there is no basis for immunizing 

lower-level, or ‘ministerial,’ decisions that merely implement a basic policy already 

formulated. (Johnson, supra, 69 Cal.2d at p. 796.) Moreover, we cautioned, immunity 

applies only to deliberate and considered policy decisions, in which a ‘[conscious] 

balancing [of] risks and advantages ... took place. The fact that an employee normally 

engages in “discretionary activity” is irrelevant if, in a given case, the employee did not 

render a considered decision. [Citations.]’ (Id. at p. 795, fn. 8.)” (Ibid.) 

Discretionary immunity under section 820.2 has been found to apply to many 

areas of police work. Courts have found the following to constitute discretionary 

decisions for which police officers are immune under section 820.2: (1) the decision to 

pursue a fleeing vehicle (Hernandez v. City of Pomona (2009) 46 Cal.4th 501, 519 & 

fn. 13 [noting that, while long line of Court of Appeal decisions have held that negligence 

liability may not be based on officer’s decision to engage in vehicle pursuit, the 

California Supreme Court has never ruled on question]; Bratt v. City and County of San 

Francisco (1975) 50 Cal.App.3d 550, 553 (Bratt)); (2) the decision to investigate or not 

investigate a vehicle accident (McCarthy v. Frost (1973) 33 Cal.App.3d 872, 875); 
11.

(3) the failure to make an arrest or to take some protective action less drastic than arrest 

(Michenfelder v. City of Torrance (1972) 28 Cal.App.3d 202, 206 (Michenfelder)); 

(4) the decision whether to use official authority to resolve a dispute (Watts v. County of 

Sacramento (1982) 136 Cal.App.3d 232, 234-235 (Watts)); and (5) the decision whether 

to remove a stranded vehicle (Posey v. State of California (1986) 180 Cal.App.3d 836, 

850; Bonds v. State of California ex. rel. Cal. Highway Patrol (1982) 138 Cal.App.3d 

314, 321-322). 

Police officers, however, are not immune under section 820.2 when their acts are 

ministerial or public policy dictates against immunity. Accordingly, courts have 

determined discretionary immunity does not apply to the following: (1) an officer’s 

conduct of an accident investigation after the officer made the discretionary decision to 

undertake the investigation (Green v. City of Livermore (1981) 117 Cal.App.3d 82, 87-

89; McCorkle v. City of Los Angeles (1969) 70 Cal.2d 252, 261-262 (McCorkle); 

(2) arresting the wrong person while executing a warrant (Bell v. State of California

(1998) 63 Cal.App.4th 919, 929) (Bell); (3) deciding to arrest an individual when there 

was no probable cause to do so (Gillan v. City of San Marino (2007) 147 Cal.App.4th 

1033, 1047, 1051) (Gillan); and (4) using unreasonable force when making an arrest or 

overcoming resistance to it (Scruggs v. Haynes (1967) 252 Cal.App.2d 256, 264-268). 

The issue in the present case is whether the SWAT team’s actions constitute 

discretionary decisions that immunize the County under sections 820.2 and 815.2, 

subdivision (b). Comparing this case to those which determined discretionary immunity 

did not apply, George argues the SWAT team’s decision to “raid” his home was not a 

“basic policy decision” but instead was a tactical decision outside the scope of 

section 820.2 immunity. While George concedes the decision to deploy the SWAT team 

was a discretionary act, he argues all subsequent decisions made and acts performed that 

implemented the decision to deploy were ministerial and therefore not immune from 

liability. The County, on the other hand, argues that, like those cases cited above which 
12.

found the officers’ actions constituted discretionary decisions, section 820.2 also 

precludes liability for the decisions made while attempting to arrest Donald. 

There apparently are no published cases which address the issue presented here, 

namely whether discretionary immunity applies to the selection of the means used to 

effectuate an arrest. This issue was expressly left undecided in a case the County cites, 

Customer Co. v. City of Sacramento (1995) 10 Cal.4th 368, 392 (Customer Co.). In that 

case, the court held that the defendants, the City of Sacramento and Sacramento County, 

could not be liable in inverse condemnation for allegedly extensive property damage 

caused to a grocery and liquor store when the police fired tear gas into the store while 

trying to capture an apparently armed and dangerous felony suspect. (Id. at p. 371.) 

The plaintiff in Customer Co. had sued the public entities for both inverse 

condemnation and negligence. The trial court granted judgment on the pleadings in favor 

of the public entities, finding they were immune from liability pursuant to section 820.2,

and the inverse condemnation claim failed because the police’s actions were a proper 

exercise of the police power. The appellate court affirmed the judgment. Our Supreme 

Court granted review solely on the inverse-condemnation issue. After oral argument, the 

court requested supplemental briefing on the issue of whether the plaintiff would be 

entitled to relief under the Government Claims Act, but in its brief, the plaintiff expressly 

waived the right to relief under that Act. (Customer Co., supra, 10 Cal.4th at pp. 371-

372, 391.) 

After the court concluded that the plaintiff could not maintain a claim for inverse 

condemnation, the court explained that, “the government’s potential liability for this type 

of conduct properly should be evaluated” under the Government Claims Act. (Customer 

Co., supra, 10 Cal.4th at p. 391.) The court stated that, in order to determine whether the 

plaintiff could recover under the Act, it would need to decide whether the trial court and 

Court of Appeal correctly concluded the public entities were immune under 

sections 820.2 and 815.2, subdivision (b). (Customer Co., supra, at p. 392.) The court 
13.

recounted its prior holding that section 820.2 “‘confers immunity only with respect to 

those “basic policy decisions” which have been committed to coordinate branches of 

government, and does not immunize government entities from liability for subsequent 

ministerial actions taken in the implementation of those basic policy decisions[,]’” and 

recognized it had not resolved “whether the selection of the means employed to 

effectuate an arrest is such a ‘basic policy decision’ to which the immunity applies.” 

(Customer Co., supra, at p. 392.) The court determined that, in light of the plaintiff’s 

express waiver of its negligence claims, it would be inappropriate to decide whether 

section 820.2’s immunity provisions apply. (Customer Co., supra, at p. 392.) 

Thus we are presented with an issue of first impression. Relying primarily on 

Watts, the County asserts the gravamen of George’s complaint is the decision to use tear 

gas and contends that decision clearly was a discretionary one entitled to immunity. In 

Watts, Sacramento County Sheriff’s officers intervened in a disagreement between a 

landowner and the plaintiffs over the plaintiffs’ right to harvest crops on the owner’s 

land. After the officers ordered the plaintiffs off the land, the plaintiffs sued. (Watts, 

supra, 136 Cal.App.3d at p. 234.) The appellate court determined the officers had 

performed a discretionary act and therefore were immune from suit under section 820.2. 

(Watts, supra, at pp. 234-235.)

The plaintiffs argued the officers were not immune because they had performed a 

“‘negligent investigation’” following their discretionary decision to settle the dispute by 

failing to investigate whether the plaintiffs had any legal right to be on the property. 

(Watts, supra, 136 Cal.App.3d at p. 235.) The appellate court disagreed, stating: “The 

fallacy of plaintiffs’ argument lies in their assumption that once law enforcement officials 

have ‘decided’ to intervene in a dispute, any subsequent action by the officials is 

ministerial. There is no legal basis for such assertion. [¶] Here, a disagreement ensued 

as to plaintiffs’ right to be on [the] property. In order to settle the dispute the officers 

were obliged to exercise their discretion after they had observed what was happening and 
14.

had listened to the explanation of those present. [Citation.] Any direction given by the 

officers purporting to exercise official authority would have been an invasion of the 

personal liberty of at least some of those present. [Citation.] ‘Such intrusions are ... a 

regular and necessary part of police work conducted for the preservation of public safety 

and order,’ and the decision to use this official authority on any particular occasion ‘is 

peculiarly a matter of judgment and discretion’ for which the officers (and defendant) 

may not be held liable in tort.” (Ibid., citing Michenfelder, supra, 28 Cal.App.3d at 

p. 206.)

Here, once the officers decided to arrest Donald, they were vested by the 

Department with discretion to determine the means by which the arrest should be carried 

out. This discretion included the possible use of tear gas as a way to determine whether 

Donald was in George’s house. The officers exercised their discretion by observation 

and listening. As our Supreme Court has noted: “The decision, requiring as it does, 

comparisons, choices, judgments, and evaluations, comprises the very essence of the 

exercise of ‘discretion’ and we conclude that such decisions are immunized under 

section 820.2.” (Thompson v. County of Alameda (1980) 27 Cal.3d 741, 749.) 

Relying on McCorkle, supra, 70 Cal.2d 252 and Bratt, supra, 50 Cal.App.3d 550, 

George asserts we should distinguish between the decision to deploy the SWAT team, 

which he admits is a discretionary decision, and the SWAT team’s conduct after being 

deployed, which he asserts is ministerial. He contends the SWAT team’s decision to use 

tear gas was merely the means to carry out the decision to deploy the SWAT team. 

In McCorkle, a police officer was called to the scene of an automobile accident. 

On his arrival, he talked to the plaintiff, who was involved in the accident, on the corner 

of the intersection. Without setting out flares or interrupting the sequence of the traffic 

signals, the officer walked to the center of the intersection, followed by the plaintiff, and 

asked the plaintiff to show him the skidmarks. The plaintiff was struck by an automobile 

that entered the intersection on a green light and later sued the officer and others for 
15.

negligence. (McCorkle, supra, 70 Cal.2d at pp. 255, 259-260.) The jury found in the 

plaintiff’s favor and against the City of Los Angeles. (Id. at p. 255.) Our Supreme Court 

rejected the city’s argument that the officer was immune from liability under 

section 820.2. (McCorkle, supra, at pp. 260-262.) 

The court explained that, whether or not a public employee is immune under 

section 820.2 “depends in many cases upon whether the act in question was 

‘discretionary’ or ‘ministerial,’ respectively. [Citations.] For this reason, contentions 

such as the City makes here have frequently required judicial determination of the 

category into which the particular act falls: i.e., whether it was ministerial because it 

amounted ‘only to an obedience to orders, or the performance of a duty in which the 

officer is left no choice of his own,’ or discretionary because it required ‘personal 

deliberation, decision and judgment.’” (McCorkle, supra, 70 Cal.2d at pp. 260-261.) 

The court further explained that, even if a public employee’s act is classified as 

“discretionary,” the employee is not immune if the injury to another results, not from the 

exercise of discretion to undertake the act, “but from his negligence in performing it after 

having made the discretionary decision to do so.” (Id. at p. 261.) 

The court concluded that, even if the officer exercised his discretion in 

undertaking the accident investigation, “section 820.2 did not clothe him with immunity 

from the consequence of his negligence in conducting it. He would have been immune if 

plaintiff’s injury had been the result of [the officer’s] exercise of discretion. [Citations.] 

It was not: it resulted from his negligence after the discretion, if any, had been 

exercised.” (McCorkle, supra, 70 Cal.2d at pp. 261-262.) The court held that, because 

there was no causal connection between the exercise of discretion and the injury, 

statutory immunity did not apply. (Id. at p. 262.)

In Bratt, police officers decided to pursue a fleeing vehicle through city streets; 

during the pursuit, the car the officers were chasing collided with another vehicle. The 

occupants of that vehicle sought damages for personal injuries and wrongful deaths that 
16.

occurred in the collision. (Bratt, supra, 50 Cal.App.3d at p. 552.) On appeal from a 

judgment of nonsuit in favor of the City and County of San Francisco, the Court of 

Appeal, noting that the only police conduct that caused the accident was the decision to 

pursue the fleeing vehicle, held that decision to be a discretionary act protected by 

section 820.2. (Bratt, supra, at p. 553.) The court found the case distinguishable from 

McCorkle, as in McCorkle there was no causal connection between the exercise of 

discretion and the injury, while the only negligence alleged was the “officers’ decision to 

give high speed chase rather than in the officers’ execution of that decision.” (Bratt, 

supra, at p. 554.)

George asserts these cases demonstrate that only the decision to deploy the SWAT 

team, not the SWAT team’s conduct after being deployed, is entitled to immunity. But, 

as explained in Watts, George relies on the false assumption that once police decide to 

intervene in a dispute, any subsequent action by the police is ministerial. (Watts, supra, 

136 Cal.App.3d at p. 235.4) Instead, each decision must be examined to determine 

whether it constitutes a discretionary or ministerial decision. In this case, the decision to 

use tear gas resulted from choices and judgments made in response to changing 

circumstances; it was not made in blind obedience to orders. The difference between this 

case and McCorkle is that here, the decision to use tear gas was based on personal 

deliberation, decision and judgment, while asking the plaintiff in McCorkle to come into 

the intersection involved no such deliberation, decision, or judgment. 

 

4George argues Watts is inapplicable here because the case addressed only the 

decision whether to intervene, not acts undertaken subsequent to that decision. We 

disagree, as it was not the officers’ decision to intervene that was at issue, but rather their 

implementation of that decision by ordering the plaintiffs off the land without 

investigating whether the plaintiffs had any legal right to be on the property. (See Watts, 

supra, 136 Cal.App.3d at p. 235.)
17.

The other cases upon which George relies do not compel a different result. In 

Bell, the appellate court held that officers who executed an arrest warrant on the wrong 

person, without a reasonable basis for concluding the arrestee was the man they sought, 

were not entitled to discretionary immunity under section 820.2 because they did not 

exercise the level of discretion required for immunity to apply, as their actions did not 

involve an actual exercise of discretion, i.e., a conscious balancing of risks and 

advantages, or constitute a basic policy decision. (Bell, supra, 63 Cal.App.4th at p. 929.) 

In Gillan, the appellate court held section 820.2 immunity did not apply to the police’s 

decision to arrest the plaintiff, which was found to be without probable cause, as that 

decision “was not a basic policy decision, but only an operational decision by the police 

purporting to apply the law.” (Gillan, supra, 147 Cal.App.4th at p. 1051.) 

In Ogborn v. City of Lancaster (2002) 101 Cal.App.4th 448, the plaintiffs sued the 

city and individual city officials for various claims arising out of the city’s demolition of 

their rented home and its contents as part of a nuisance abatement program. (Id. at 

p. 453.) The appellate court held that the city employee charged with administering the 

program, who conducted a hearing at which the property on which the house sat was 

declared a public nuisance and sent a letter to that effect, was immune under 

section 820.2 because his participation was limited to making the discretionary policy 

decision to declare the property a nuisance. (Ogborn, supra, at p. 461.) The appellate 

court, however, held the code enforcement officer who actively participated in the 

implementation of the program with respect to the property by giving the order for the 

bulldozer to demolish the plaintiffs’ house and all their belongings was not immune 

because his actions constituted subsequent ministerial actions implementing the basic 

policy decision to declare the property a nuisance. (Id. at pp. 454, 455-456, 461.) 

We find the decisions made in the present case very different from the ones in 

these cases. The arrest of a suspected armed assailant mandates decisions affecting 

public safety; liability for such split-second decisions conceivably could hamstring 
18.

officials with unpleasant results. George argues that by extending immunity in this case, 

every action by an officer, no matter how minor, will be subject to immunity as long as 

the officer states he or she made a choice between two options. Our decision, however, is 

not that broad. We hold only that, given the importance of the decisions involved and the 

potential impact of liability on these decisions, section 820.2 provides immunity for the 

officers’ actions here under the authority set forth in Caldwell.

5

Finally, George argues he identified triable issues of fact regarding the 

reasonableness of the officers’ conduct which preclude summary judgment, citing 

Robinson v. City and County of San Francisco (1974) 41 Cal.App.3d 334. That case, 

however, involved the issue of whether an officer was immune from liability for false 

arrest under Civil Code section 43.55, subdivision (a), which applies when an officer, 

acting pursuant to a warrant, effects the arrest without malice and with the reasonable 

belief the arrestee was the one named in the warrant. (Robinson, supra, at p. 336.) 

Section 820.2, however, does not contain a reasonableness requirement. Instead, it 

applies when the public employee’s act or omission resulted from the exercise of 

discretion, even if such discretion is abused. (§ 820.2.) Since we conclude that the 

County is immune under sections 820.2 and 815, subdivision (b), the officers’ 

reasonableness is irrelevant.6

 

5George contends the trial court erred when it relied on the excessive-force cases 

of Price v. County of San Diego (1998) 990 F.Supp. 1230; Reynolds v. County of San 

Diego (1994) 858 F.Supp. 1064, affirmed in part and remanded in part, (9th Cir. 1996) 84 

F.3d 1162; and Lopez, supra, 196 Cal.App.4th 675, in reaching its decision. This court, 

however, reviews only the result, not the trial court’s reasoning, which is irrelevant to 

appellate review following summary judgment. (Jimenez v. County of Los Angeles 

(2005) 130 Cal.App.4th 133, 140; Florio v. Lau (1998) 68 Cal.App.4th 637, 653.) 

Accordingly, we do not discuss these cases, as they are unnecessary to our decision. 

6Because we conclude the County is entitled to immunity under sections 820.2 and 

815.2, subdivision (b), we do not address the County’s alternate contention that George’s 

lawsuit is barred based on George’s consent.
19.

DISPOSITION

The judgment is affirmed. Costs on appeal are awarded to the County.

_____________________

Oliver, J.

WE CONCUR:

_____________________

 Cornell, Acting P. J.

_____________________

 Gomes, J.