Filed 12/6/23 Daves v. City of Cathedral City CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

CHERYLYN DAVES,

Plaintiff and Appellant,

v.

CITY OF CATHEDRAL CITY et al.,

Defendants and Respondents.

D082253

(Super. Ct. No. PSC1902338)

APPEAL from a judgment of the Superior Court of Riverside, Kira L. 

Klatchko, Judge. Reversed and remanded.

Walter Clark Legal Group and Jessica A. Albert, for Plaintiff and 

Appellant.

Graves & King, Harvey W. Wimer III, Michael D. Sargent, and 

Brendan J. Coughlin, for Defendants and Respondents.

Cherylyn Daves, a phlebotomist, was struck and injured by a car as she 

prepared to assist police officers in obtaining a blood sample from a DUI

suspect. Seeking redress for her injuries, Daves sued four of the officers and 

their employer—Jesse Borrego, Steven Lara, Jesse Vela, Ryan Schroeder,

and the City of Cathedral City (the City)—alleging a cause of action for 
2

negligence against the officers and a cause of action for vicarious liability 

against the City. The officers and the City filed a motion for summary 

adjudication, and the trial court granted the motion and entered judgment in 

their favor. Daves now appeals the judgment, arguing the trial court erred 

in: (1) concluding that Daves could not establish the essential element of a 

duty on which to premise her negligence and vicarious liability causes of 

action as against Borrego and the City and (2) concluding that the immunity 

that Government Code sections 820.2 and 815.2, subdivision (b) confer upon 

public employees and public entities for discretionary acts insulated Borrego 

and the City from liability in any event. We agree with Daves. Hence we 

reverse.

I.

BACKGROUND

A. The Evening on Which Daves Sustained Her Injuries

The genesis of this case is a pair of collisions that occurred late one 

night in Cathedral City, near the intersection of Cathedral Canyon Drive and

Dinah Shore Drive. The first of the two collisions drew Borrego, Vela, Lara, 

and Schroeder (the four officers) to the scene. Suspecting that a driver 

involved in this collision had been driving while under the influence of drugs 

or alcohol (DUI), Borrego asked for a forensic evidence collection service to be 

sent to the scene to draw blood; and the City contractor to which the request 

was relayed—American Forensic Nurses—sent Daves.

When Daves arrived at the scene, Borrego told her the officers wanted 

to collect a blood sample from the DUI suspect in a “grassy area adjacent to 

the sidewalk and curb” “at the southeast corner of the subject intersection.”

Depending on whose version of the interaction is to be believed, Borrego also

pointed out (or did not point out) a nearby marked police car parked in a 
3

northbound lane of Cathedral Canyon Drive and directed (or did not direct)

Daves to proceed to that location and park her car there.

Daves then drove to the location that she says Borrego had designated, 

parked her car there, and began preparing the materials she would need to 

complete the blood draw. But “[w]hile [she] was standing in front of her 

vehicle and preparing to collect the blood evidence, another 

vehicle . . . collided with [her] vehicle, pushing it into [her]” and causing her 

injuries.

B. Proceedings Below

1. Causes of Action Alleged Against the Officers and the City

Daves and her husband, Thom Daves, filed claims against the City, 

Thereafter, they initiated this lawsuit. 

During the lawsuit, the Daveses filed a second amended complaint 

against the four officers, the City, the two drivers who were understood to 

have caused the collisions, and unnamed Does. Although the record is 

somewhat unclear, the parties appear to agree that, subsequent to the filing 

of the second amended complaint, the case was pared down such that: 

Schroeder was no longer a defendant; the only cause of action remaining 

against the other three officers was Daves’s negligence cause of action; and 

the only cause of action remaining against the City was her vicarious liability 

cause of action.

2. The Summary Adjudication Motion

Approximately two years into the lawsuit, the four officers and the City 

filed a motion for summary adjudication targeting the two remaining causes 

of action alleged against them—negligence and vicarious liability. 
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a. He Said / She Said, Between Borrego and Daves, 

Regarding Whether the Location Where Daves Was 

Struck and Injured Was a Location to Which Borrego

Had Directed Her 

In the separate statement of undisputed material facts that they filed 

in support of their motion for summary adjudication, the four officers and the 

City claimed it was undisputed that the location where Daves had parked 

was a location of her own choosing, and that Borrego had not directed her to 

park there:

Undisputed Fact No. 13: “Upon arriving at the scene, 

[Daves] parked her car without . . . Borrego instructing her 

where to park.” (Italics added.)

Undisputed Fact No. 16: “Without prompting or instruction 

by . . . Borrego, [Daves] drove her [car] to a position along 

the east curb of Cathedral Canyon Drive approximately ten 

feet behind Officers Lara’s and Vela’s marked patrol SUV.” 

(Italics added.)

But, in her response to the motion, Daves presented evidence that—if 

believed—would contradict these purportedly undisputed facts. That 

evidence came in the form of passages from Daves’s deposition testimony in 

which she repeatedly and specifically testified that the location where she 

had parked her car (and where she had been struck and injured) was a 

location to which Borrego had directed her to proceed and park. 

b. The Trial Court’s Ruling on the Motion

Following oral argument, the trial court issued a ruling on the motion. 

The court denied the motion as to Schroeder because it said Schroeder had 

been dismissed from the case before the motion was heard, thus “making the 

[m]otion moot as to him;” however, it granted the motion as to Borrego, Vela, 

Lara, and the City. 
5

i. The Trial Court’s Duty Analysis

In the portions of its ruling focusing on the negligence cause of action 

and the question of whether any of the officers owed Daves a duty of care, the 

trial court acknowledged and quoted case law addressing circumstances in 

which a “special relationship” creating such a duty is deemed to arise 

between a police officer and an individual with whom the officer interacts. As

the trial court correctly stated: 

“ ‘Under some circumstances, a defendant may have an 

affirmative duty to protect the plaintiff from harm at the 

hands of a third party, even though the risk of harm is not 

of the defendant’s own making.’ ” ([Brown v. USA 

Taekwondo (2021) 11 Cal.5th 204], at p. 215.) “In that 

circumstance, the defendant’s ‘affirmative duty’ may arise 

where they have a ‘special relationship’ with . . . the 

plaintiff. (Ibid.) ‘A special relationship between the 

defendant and the victim is one that ‘gives the victim a 

right to expect’ protection from the defendant. (Id. at 

p. 216.) [¶ . . . ¶]

“In the case of police officers, the special relationship may 

arise where an officer ‘create[d] the peril in which plaintiff 

found herself’ or where they took an ‘affirmative action 

which contributed to, increased or changed the risk which 

would have otherwise existed.’ ” (Williams [v. State of 

California (1983) 34 Cal.3d 18] at pp. 27–28.)” (Italics 

added.) 

Then, to illustrate this concept, the trial court quoted Lugtu v. California 

Highway Patrol (2001) 26 Cal.4th 703, 717 (Lugtu), as follows: “ ‘[A] police 

officer who exercises his or her authority to direct another person to proceed 

to—or stop at—a particular location, owes such a person a duty to use 

reasonable care in giving that direction, so as not to place the person in 

danger or to expose the person to an unreasonable risk of harm.’ ” Then the 

trial court ruled: that “[t]he evidence is that Daves . . . was not told to park 

[where she parked], and . . . that she moved freely into that area absent 
6

direction . . . from any of the Officer Defendants,” that Borrego and the City 

“ha[d] met their burden to demonstrate that Borrego owed no duty to Daves,” 

and that “Daves ha[d] not met her burden to show the existence of a triable 

issue of fact.” 

ii. The Trial Court’s Immunity and Vicarious 

Liability Analyses

In the portions of its ruling focusing on Borrego and the City’s 

immunity defenses and Daves’s cause of action against the City for vicarious 

liability, the trial court ruled that (1) “even if the Court could find a duty, it 

[nonetheless] would find that Borrego was immune from liability under the 

Government Code for exercising his discretion in suggesting generally where 

Daves should park in the course of investigating the initial accident at the 

intersection,” and (2) “[b]ecause the Officer Defendants are not individually 

liable for their acts, the City of Cathedral City cannot be held vicariously 

liable.”

3. The Judgment and a Further Paring Down of the Parties

On the basis of its summary adjudication ruling, the trial court entered 

judgment in favor of Borrego, Vela, Lara, and the City, and against Daves. 

Daves timely appealed the judgment—but then withdrew the appeal as to 

Vela and Lara, leaving Borrego and the City as the sole remaining

defendants who are parties to this appeal.

II.

DISCUSSION

Borrego and the City (hereafter defendants) argue that they cannot be

liable to Daves, directly or vicariously, for each of two reasons. First, they 

say Borrego had no duty to prevent harm to Daves. Second, they say the

immunity that Government Code sections 820.2 and 815.2, subdivision (b), 

confer upon public employees and public entities for discretionary acts shields
7

them from liability. We address each of these arguments in turn, after first 

stating the standard of review.

A. The Standard of Review

“ ‘On appeal after a motion for summary [adjudication] has been 

granted, we review the record de novo.’ ” (Smith v. Wells Fargo Bank, N.A.

(2005) 135 Cal.App.4th 1463, 1472.) “In performing our de novo review, we 

view the evidence in the light most favorable to plaintiff as the losing party.” 

(Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64 (Johnson).) 

Thus, “we liberally construe plaintiff’s evidentiary submissions and strictly 

scrutinize [the] defendant[s’] . . . evidence, in order to resolve any evidentiary 

doubts or ambiguities in plaintiff’s favor.” (Ibid.) In evaluating the evidence 

and arguments, we make “ ‘an independent assessment of the correctness of 

the trial court’s ruling, applying the same legal standard as the trial court in 

determining whether there are any genuine issues of material fact or 

whether the moving party is entitled to judgment as a matter of law’ ” 

(Smith, at p. 1474); and we uphold the summary adjudication of a cause of 

action if: (1) any of the cause of action’s elements cannot be established, or

(2) an affirmative defense to it can be established. (See Code Civ. Proc.,

§ 437c, subd. (o).) 

B. The Duty Issue

The defendants contend that Daves cannot establish the essential 

element of a duty of care on which to premise her negligence and vicarious 

liability causes of action. Daves responds by arguing that there arose, 

between herself and Borrego, a “special relationship” giving rise to such a 

duty.

In addressing these arguments, we begin by noting three fundamental 

principles: First, “[u]nder general negligence principles, . . . a person 

ordinarily is obligated to exercise due care in his or her own actions so as not 
8

to create an unreasonable risk of injury to others, and this legal duty 

generally is owed to the class of persons who it is reasonably foreseeable may 

be injured as the result of the actor’s conduct.” (Lugtu, supra, 26 Cal.4th at 

p. 716, citing Civ. Code, § 1714.) Second, “one’s general duty to exercise due 

care includes the duty not to place another person in a situation in which the 

other person is exposed to an unreasonable risk of harm through the 

reasonably foreseeable conduct (including the reasonably foreseeable 

negligent conduct) of a third person.” (Lugtu, at 716, italics added, citing 

Schwartz v. Helms Bakery Limited (1967) 67 Cal.2d 232, 240–244.) And 

third, in the absence of a grant of immunity, public employees and public 

entities may be held liable for negligence. (Lugtu, at p. 715, citing Gov. Code, 

§§ 815.2 and 820.)

In examining the topic of liability of public employees for negligence, 

and the concept of a duty on which such liability can be predicated, our 

Supreme Court has noted that duty is a concept that “has confounded courts, 

law professors, [and] treatise writers.” (See Walker v. County of Los Angeles

(1987) 192 Cal.App.3d 1393, 1398 (Walker).)

“Drawing a boundary line around one’s duty in the law of tort becomes 

even more complicated when we are inquiring into the liability of public 

employees . . . . Private citizens ordinarily do not owe an affirmative duty to 

save their fellow citizens from harm unless they personally created the risk. 

[Citation.] But in a very real sense the general public pays public employees 

specifically for the purpose of having them assume an affirmative duty to aid 

everyone in that general public. Thus, if ordinary standards applied they 

might be held responsible in tort for every injury suffered by every member of 

society every time a public employee negligently failed to do something which 

could have prevented harm. However, it is feared this concept of duty might 
9

expose public employees and especially the public treasury to intolerable 

financial burdens.” (Walker, supra, 192 Cal.App.3d at p. 1398; cf. Hardy v. 

Vial (1957) 48 Cal.2d 577, 583 [“ ‘There must indeed be means of punishing 

public officers who have been truant to their duties; but that is quite another 

matter from exposing such as have been honestly mistaken to suit by anyone 

who has suffered from their errors. As is so often the case, the answer must 

be found in a balance between the evils inevitable in either alternative’ ”]; 

Leon v. County of Riverside (2023) 14 Cal.5th 910, 927–928).

To avoid such a result, California jurisprudence has developed over 

time the principle—acknowledged by the trial court—that a “special 

relationship” is required to have arisen between a public employee and a 

private citizen before that public employee may be held to have owed the 

private a citizen a duty:

“California . . . require[es] a ‘special relationship’ between 

the public employee and a specific private citizen before a 

duty is created. A ‘special relationship’ exists if and only if 

an injured person demonstrates the public officer ‘assumed 

a duty toward [him] greater than the duty owed to another 

member of the public.’ ” (Walker, supra, 192 Cal.App.3d at

p. 1398.)

In this case, Daves argues a “special relationship,” requiring 

recognition of a duty of care on the part of Borrego, arose from any one or a 

combination of three circumstances that she contends are present in this 

case: (1) Borrego requested that the blood draw occur at “a dark roadway in 

the middle of the night,” rather than “at a safe location such as the jail, 

Cathedral City Police Station or hospital”; (2) Borrego “explicitly directed

[Daves] to park her vehicle in an unsafe location next to where the blood 

draw was to occur,” thereby “exposing [her] to the danger of approaching 

vehicles” and “significantly increas[ing] the risk of a secondary crash,” when 

he instead “could have and should have directed her to park out of the way of 
10

oncoming traffic in the safety of the adjacent 7-11 parking lot”; and (3) 

Borrego “failed” to “put down cones or flares to warn oncoming traffic of 

[Daves’s] parked vehicle.” 

For reasons we discuss post, we conclude that Supreme Court 

precedent makes clear that circumstance number two—if proven at trial—

would suffice by itself to establish a special relationship and corresponding 

duty. Indeed, as our Supreme Court stated in Lugtu: “Consistent with the 

basic tort principle recognizing that the general duty of due care includes a 

duty not to expose others to an unreasonable risk of injury at the hands of 

third parties, . . . California cases uniformly hold that a police officer who 

exercises his or her authority to direct another person to proceed to—or to stop 

at—a particular location, owes such a person a duty to use reasonable care in 

giving that direction, so as not to place the person in danger or to expose the 

person to an unreasonable risk of harm.” (Lugtu, supra, 26 Cal.4th at p. 717, 

italics added.) 

The trial court acknowledged the passage we have italicized. But it did 

not attempt to distinguish Lugtu, nor did it acknowledge the existence of a 

genuine issue of material fact as to whether Borrego had or had not directed 

Daves to park in the location where she ended up being injured. And it is 

that genuine issue of material fact (an issue that cannot be resolved on 

summary adjudication) that compels us to conclude that the defendants have 

not established, as a matter of law, that Borrego owed no duty of care to 

Daves. 

In an effort to distinguish Lugtu, the defendants argue that no special 

relationship was established, and thus no duty of care was triggered because

“[h]ere, in contrast to Lugtu, [Daves] was not a private party being stopped 

for traffic enforcement purposes,” but instead “admits . . . she was an 
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independent contractor on scene to conduct a contracted service.” In making 

this argument, they imply that the duty that our Supreme Court has held

should be recognized when an officer tells a detained motorist where to 

position her car or herself should not be recognized when that officer tells a 

contractor, who has been called to the scene to assist him in performing his 

duties, where to position her car or herself. We perceive no rational basis on 

which to conclude that “the basic tort principle recognizing that the general 

duty of due care includes a duty not to expose others to an unreasonable risk 

of injury at the hands of third parties” (see Lugtu, supra, 26 Cal.4th at p. 717)

should not apply with the same force to the contractor who is told where to 

park, as it does to the other classes of motorists who are told where to park.

The defendants also argue that Minch v. Department of California 

Highway Patrol (2006) 140 Cal.App.4th 895 furnishes a more apt comparison 

to the facts in the present case because Minch and this case each pertain to a 

situation in which a “vendor” (the vendor in Minch was a tow truck driver) 

whose employer had dispatched them to the scene of an accident was struck 

by a vehicle in a second collision, sustained injuries, and sued law 

enforcement personnel who had been present at the scene. (See Minch, at pp. 

899–900.) The court of appeal in Minch concluded that the “undisputed 

evidence demonstrate[d] the CHP officers did not have a duty of care toward 

plaintiff because they did not create or increase the risk of harm that led to 

plaintiff’s injuries, and [that] the circumstances did not establish a special 

relationship between the officers and plaintiff such that the officers would 

have had a duty to protect him.” (Id. at p. 898.) But, in focusing on the 

holding in Minch, the defendants overlook facts in that case that distinguish

it from the case at hand. Perhaps chief among such overlooked facts is that, 

in Minch, unlike the present case, it was undisputed that “[t]he officers did 
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not direct [the tow truck driver] . . . where to park.” (Minch, supra, 140 

Cal.App.4th at pp. 899, 906.) In addition, the tow truck driver was not struck 

and injured until after the services for which he had been called to the scene 

had been performed. (Id. at pp. 899, 906.)

In like fashion, the defendants argue that Daves’s presence in front of 

her car at the moment of impact was voluntary (“[a]ppellant . . . solely chose 

to prepare her blood draw materials on the hood of her car while standing in 

the roadway,”) as if to liken her presence in that location at that moment to 

the presence of the tow truck driver in Minch, who had lingered at the scene 

after having completed the services that he had been dispatched there to

perform. But this ignores the evidence that Borrego had directed Daves to 

park her car in that location—a location that it probably would be reasonable 

for Daves to presume would be safe for her car and safe for her because 

Borrego had directed her there. 

The defendants further argue that Borrego had no special relationship 

with Daves, and thus owed her no duty of care, because “[t]here is no 

evidence or authority suggesting that Borrego had the ability to control the 

conduct of other drivers at the intersection” and “no evidence . . . that the 

[second] accident . . . was reasonably foreseeable to Borrego.” But this 

argument misapprehends the nature of the nexus between the concept of 

foreseeability and the existence of a duty. “[A] court’s task—in determining 

‘duty’—is not to decide whether a particular plaintiff’s injury was reasonably 

foreseeable in light of a particular defendant’s conduct, but rather to evaluate 

more generally whether the category of negligent conduct at issue is 

sufficiently likely to result in the kind of harm experienced that liability may 

appropriately be imposed on the negligent party.” (Ballard v. Uribe (1986) 41 
13

Cal.3d 564, 572, fn. 6.) In performing such general evaluations, courts 

routinely conclude that:

“In the generalized sense of foreseeability pertinent to the 

duty question, that a vehicle parked by the side of a 

freeway may be struck by another vehicle leaving the 

freeway, resulting in injury to either vehicle’s occupants, is 

clearly foreseeable. Drivers are supposed to control their 

vehicles and keep them on the traveled roadway, but 

common experience shows they do not always do so. 

Freeway drivers may be intoxicated, distracted, blinded by

the weather or sun, sleepy or sick, and for any of these 

reasons or others may drive off the roadway. Mechanical 

problems with their vehicles can also force motorists to 

suddenly leave the freeway. If they do so at freeway speeds 

and collide with another vehicle parked alongside the road, 

they are likely to be injured or injure other occupants of the 

vehicles, or both. This general foreseeability is reflected in 

the Official Reports [i.e., case law], in that numerous 

decisions have involved collisions between vehicles leaving 

a highway and vehicles or other obstacles on the roadside.”

(See Cabral v. Ralphs Grocery Company (2011) 51 Cal.4th 764, 775 (italics 

added); see also ibid., fn. 4 [citing opinions]; Jackson v. Ryder Truck Rental, 

Inc. (1993) 16 Cal.App.4th 1830, 1840 [“the danger of an intoxicated or 

otherwise out-of-control driver veering off course on a highway in darkness 

and crashing into whatever lay in her path” is “reasonably foreseeable”]; 

Bigbee v. Pacific Telephone & Telegraph Company (1983) 34 Cal.3d 49, 58 

[“Swift traffic on a major thoroughfare late at night is to be expected. 

Regrettably, so too are intoxicated drivers. [Citation.] Moreover, it is not 

uncommon for speeding and/or intoxicated drivers to lose control of their cars 

and crash into . . . whatever . . . may be standing alongside the road they 

travel.”].)

The defendants argue that “[t]here is no evidence or authority 

suggesting that [Borrego] acted to increase potential risks to [Daves]” and 
14

they point out that, to the contrary, Daves “expressly admits that neither 

Borrego . . . nor any other officer . . . told her that he would protect her.” But 

howsoever true this may be, it disregards the fact that a police officer telling 

a motorist to park her car in a particular location generally carries with it an 

implication that the officer either deems that location to be safe (or at least 

less vulnerable to foreseeable harms than other nearby locations) or has 

undertaken to make it so. 

The defendants further argue that Borrego owed Daves no duty of care 

because Daves was merely “directed generally where her patient was and 

where the blood would be drawn” and that whatever Borrego said to her 

“cannot be understood as a command requiring [her] to park, as she did,” in 

the location where she ended up being struck and injured. But this 

characterization of Borrego’s interaction with Daves is contradicted by the 

evidence (discussed ante) that Daves has presented to the contrary. (See 

Johnson, supra, 43 Cal.4th at p. 64 [“we view the evidence in the light most 

favorable to plaintiff as the losing party”].) 

In a similar vein, the defendants point out that Daves “admits that it

would have been possible for her to have parked instead at the parking lot of 

the nearby 7-Eleven and to have used the crosswalks that are at that 

intersection of Dinah Shore and Cathedral Canyon to walk over to the spot 

where the blood draw was going to be conducted.” This acknowledgment by 

Daves, the defendants argue, is tantamount to an “admi[ssion] that no one, 

including Borrego, told her that she had to park where she did.” But, again,

these arguments overlook the fact that Daves has presented evidence 

supporting an inference that a uniformed officer at the scene of a traffic 

collision and a suspected crime had directed her to park in the location where 

she parked. So, too, does it ignore the fact that it would have been unlawful 
15

for her to disobey a directive from the officer. (See Vehicle Code section 2800, 

subdivision (a) [“It is unlawful to willfully fail or refuse to comply with a 

lawful order . . . or direction of a peace officer . . . when that peace officer is in 

uniform and is performing duties pursuant to any of the provisions of this 

code.”].)

The defendants also argue that “[t]here is no . . . evidence that [Daves]

herself specifically was requested to attend [the accident scene]” (italics

added). Presumably they mean that Daves was not specifically requested by 

Borrego. But, irrespective of their meaning, this detail is of no import. It 

does not change the fact that Borrego called for a blood draw. It does not 

change the fact that an individual with the skills to perform a blood draw was 

sent at Borrego’s request. And it does not change the fact (if Daves’s, and not 

Borrego’s, testimony is to be believed) that Borrego told Daves she was to 

park in a specific location or the fact that Daves complied by parking in that 

location (and ended up being struck and injured there).

Lastly, the defendants emphasize that “Borrego disputes that he 

directed [Daves] where to park her vehicle. He maintained that he merely 

thanked her for coming and explained that he planned to have her draw [the 

suspect]’s blood on the grassy area of the southeast corner of the intersection” 

(italics added). But of course the defendants’ outright acknowledgment that 

Borrego disputes a fact that is plainly material to each of the remaining 

causes of action serves only to reinforce why it is that—at this stage in the 

proceedings—we cannot conclude that Daves will be unable to establish the 

existence of a special relationship and a duty. Thus we must conclude that
16

the trial court erred in concluding that Daves could not establish a special 

relationship and duty of care.1

Having concluded that the alleged conduct of Borrego may have created 

a special relationship and a duty to Daves, we ordinarily would be required to

“ ‘consider whether the policy considerations set out in Rowland [v. Christian

(1968) 69 Cal.2d 108 (Rowland)] warrant a departure from that duty in the 

relevant category of cases.’ ”2 (See Doe v. Lawndale Elementary School Dist.,

(2021) 72 Cal.App.5th 113, 129, italics omitted.) In this case, our 

contemplation of those considerations (the Rowland factors) arguably is

rendered unnecessary by the fact that the Supreme Court presumably was 

mindful of those factors when it acknowledged and reaffirmed, in Lugtu, the 

1 Our conclusion that the defendants have not succeeded in refuting the 

existence of a duty does not mean that Daves has succeeded in establishing

one. Indeed, as held in Laabs v. Southern California Edison Company (2009) 

175 Cal.App.4th 1260, we do not here hold that any one or more defendants 

did or did not owe Daves a duty of care as a matter of law; “rather, we hold 

[only] that triable issues of fact exist as to the relevant considerations 

underlying duty in this case, and that [the defendants] failed to establish 

that [they were] entitled to judgment as a matter of law.” (Id. at p. 1269.)

2 The policy considerations set out in Rowland were “the foreseeability of 

harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, 

the closeness of the connection between the defendant’s conduct and the 

injury suffered, the moral blame attached to the defendant’s conduct, the 

policy of preventing future harm, the extent of the burden to the defendant

and consequences to the community of imposing a duty to exercise care with 

resulting liability for breach and the availability, cost, and prevalence of 

insurance for the risk involved.” (Rowland, supra, 69 Cal.2d, at p. 113.) 

“ ‘When public agencies are involved,’ ” these typically are supplemented by 

such further considerations as: “ ‘ “the extent of [the agency’s] powers, the 

role imposed upon it by law and the limitations imposed upon it by 

budget.” ’ ” (Catsouras v. Department of California Highway Patrol (2010) 

181 Cal.App.4th 856, 881.)
17

“uniform[ ] hold[ing]” of California cases that “a police officer who exercises 

his or her authority to direct another person to proceed to—or to stop at—a 

particular location, owes such a person a duty to use reasonable care in 

giving that direction, so as not to place the person in danger or to expose the 

person to an unreasonable risk of harm.” (Lugtu, supra, 26 Cal.4th at 

p. 717.) But Lugtu notwithstanding, we have duly considered the Rowland

factors and have concluded that—as applied to the category of cases in which 

a police officer has directed another person to proceed to, or stop at, a

particular location—those factors do not warrant any departure from the 

duty the Supreme Court upheld in Lugtu.

C. The Government Immunity Issue

The second basis for the trial court’s ruling on the defendants’ motion is 

the immunity that Government Code sections 820.2 and 815.2, subdivision 

(b), confer upon public employees and public entities exercising the discretion

with which they have been vested.3

3 Government Code section 820.2 states in its entirety that: “Except 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 of the discretion vested in him, whether or not such discretion be 

abused.” 

Government Code section 815.2, states in its entirety that: “(a) 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, apart from this section, have given rise to a cause of 

action against that employee or his personal representative. (b) Except as 

otherwise provided by statute, a public entity is not liable for an injury 

resulting from an act or omission of an employee of the public entity where 

the employee is immune from liability.”

All references to code sections in our discussion of government 

immunity are to the Government Code.
18

Each of these two provisions of the Government Claims Act was 

squarely addressed by our Supreme Court in McCorkle v. City of Los Angeles

(1969) 70 Cal.2d 252 (McCorkle), a case with facts similar to the facts present 

here. In that case, the plaintiff—McCorkle—was involved in a night-time

automobile collision at an intersection. (Id. at pp. 255, 258–259.) Lombardo, 

“an officer of the Los Angeles Police Department . . . arrived at the scene and 

commenced to investigate the collision.” (Id. at p. 255; see also id., at p. 259.) 

During the investigation, Lombardo and McCorkle walked into the street to 

examine skid marks. (Id. at p. 259.) While they were there for that purpose, 

a car entered the intersection and struck McCorkle, severely injuring him. 

(Id. at p. 260.). McCorkle sued Lombardo and the City of Los Angeles for

negligence (id. at p. 255); and Lombardo and the city argued that they were 

shielded from liability by section 820.2 (which grants immunity from liability 

to a public employee “exercis[ing] . . . the ‘discretion vested in him’ ”) and by

section 815.2, subdivision (b) (which extends the immunity of a public 

employee to the public entity that employs him). (McCorkle, at p. 260; Gov. 

Code §§ 820.2 and 815.2, subd. (b)).

In addressing the government immunity arguments, the court in 

McCorkle focused on the fact that the immunity set forth in section 820.2 is 

limited to conduct that is “discretionary” rather than “ministerial;” and it 

observed that merely “classif[ying] . . . the act of a public employee as 

‘discretionary’ will not produce immunity under section 820.2 if the injury to 

another results, not from the employee’s exercise of ‘discretion vested in him’ 

to undertake the act, but from his negligence in performing it after having 

made the discretionary decision to do so.” (McCorkle, supra, 70 Cal.2d at 

pp. 260–261.) Then, applying that observation to the facts with which it had 

been presented, the court distinguished between: (1) on the one hand, an 
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officer’s decision to undertake an investigation, which the court characterized 

as discretionary; and (2) on the other hand, the officer’s conduct of the 

investigation, which the court implicitly characterized as ministerial. (Id. at 

p. 262.) 

The court in McCorkle observed that Lombardo would have been 

“clothe[d] . . . with immunity” if McCorkle’s injury had resulted from

Lombardo’s exercise of discretion in undertaking his investigation of the

accident, but not if it had resulted from Lombardo’s negligence in conducting

the investigation. (McCorkle, supra, 70 Cal.2d at pp. 261-262.) Then the 

court held that McCorkle’s injury had not resulted from Lombardo’s exercise 

of discretion, but instead had “resulted from [Lombardo’s] negligence after
20

the discretion, if any, had been exercised”4 and that, “[b]ecause the essential

requirement of section 820.2—a causal connection between the exercise of 

discretion and the injury—did not exist, the statutory immunity does not 

apply.” (McCorkle, at p. 262, italics added.) Having thus dispensed with 

Lombardo’s immunity defense, the court then proceeded to turn to the city’s 

immunity defense and held that: “Since Lombardo was not immune from 

liability under section 820.2, the City . . . is not immune under subdivision (b) 

of section 815.2.” (McCorkle, at p. 262, italics added.)

Defendants’ efforts to differentiate McCorkle are not persuasive. They 

argue that “McCorkle is distinguishable from the instant matter in that 

[Daves] cannot establish the general negligence of Borrego.” But any 

4 The rationale for drawing a distinction between undertaking an 

investigation (a discretionary decision, protected by immunity) and 

conducting an investigation (a ministerial function, that is not protected by 

immunity) is illuminated in a passage, in Elton v. County of Orange (1970) 

3 Cal.App.3d 1053, in which the court explained that: “If the words ‘the 

exercise of the discretion’ were to be given a broad, literal interpretation, 

section 820.2 could be invoked to establish immunity from liability for every 

act and omission of public employees, for, ‘it would be difficult to conceive of 

any official act, no matter how directly ministerial, that did not admit of some 

discretion in the manner of its performance.’ ” (Elton, at p. 1057.) It is for 

this reason that “[s]ections 815.2 and 820.2 confer immunity [only] upon 

‘basic policy decisions’ or conduct characterized as within the ‘planning’ 

rather than the ‘operational’ level of decision-making.” (H & M Associates v. 

City of El Centro (1980) 109 Cal.App.3d 399, 406-407; see also Elton, at 

p. 1058 [functions “which could be classified as involving basic policy 

decisions (such as recommending a child be, or not be, declared a dependent 

child) . . . warrant immunity,” whereas “[d]ecisions made with respect to the 

maintenance, care or supervision of . . . a dependent child . . . do not]; cf. 

Johnson v. State of California (1968) 69 Cal.2d 782, 795–797 [distinguishing 

between “determination of whether to place a youth on parole” (discretionary) 

and “determination as to whether to warn . . . foster parents [with whom 

paroled youth is placed] of latent dangers facing them” (ministerial); citing 

additional cases].)
21

conclusion as to whether or not Daves will be able to carry the burden of 

establishing negligence is premature.

McCorkle is no outlier. Over the course of many years, its rationale has 

guided the Supreme Court and courts of appeal in other cases involving 

claims of negligence on the part of police officers conducting investigations. 

(See, e.g., Clemente v. State of California (1980) 101 Cal.App.3d 374, 379, 

disapproved on other grounds in Williams v. State of California (1983) 

34 Cal.3d 18 [“What is involved under these allegations is not the discretion 

of [the Officer] in deciding whether to investigate the traffic accident, 

pursuant to the discretionary authority vested in him by [the] Vehicle 

Code . . . [citation], but instead only his negligence in his conduct of the 

discretionary investigation. [T]he discretionary immunity of Government 

Code section 820.2 . . . [does not] immunize[ ] the officer and the state from 

the legal consequences of this negligence.”]; Lugtu v. California Highway 

Patrol (2000) 79 Cal.App.4th 359, 381, review granted and superseded by 

Lugtu, supra, 26 Cal. App.4th 703 [police officer’s “decision to stop [car] for a 

traffic violation and to direct the driver to stop in the median area was an 

operational or ministerial decision, rather than a discretionary decision 

protected by immunity”].) On the basis of McCorkle and its progeny, we

conclude the trial court erred in concluding that sections 820.2 and 815.2, 

subdivision (b), furnished a basis on which to summarily adjudicate the 

negligence and vicarious liability causes of action against Daves.
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III.

DISPOSITION

The judgment is reversed and remanded for further proceedings 

consistent with this opinion. Appellant is awarded costs on appeal.

KELETY, J.

WE CONCUR:

O’ROURKE, Acting P. J.

CASTILLO, J.