Seibert Security Services, Inc. v. SUPERIOR COURT OF SAN BERNARDINO CTY.

18 Cal. App. 4th 394, 22 Cal. Rptr. 2d 514, 93 Cal. Daily Op. Serv. 6936, 93 Daily Journal DAR 11806, 58 Cal. Comp. Cases 690, 1993 Cal. App. LEXIS 916
CourtCalifornia Court of Appeal
DecidedAugust 3, 1993
DocketE012097
StatusPublished
Cited by21 cases

This text of 18 Cal. App. 4th 394 (Seibert Security Services, Inc. v. SUPERIOR COURT OF SAN BERNARDINO CTY.) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Seibert Security Services, Inc. v. SUPERIOR COURT OF SAN BERNARDINO CTY., 18 Cal. App. 4th 394, 22 Cal. Rptr. 2d 514, 93 Cal. Daily Op. Serv. 6936, 93 Daily Journal DAR 11806, 58 Cal. Comp. Cases 690, 1993 Cal. App. LEXIS 916 (Cal. Ct. App. 1993).

Opinions

Opinion

DABNEY, Acting P. J.

Petitioner Seibert Security Services, Inc. (hereinafter Seibert), a defendant in the action below, seeks reversal of an order denying its motion for summary judgment and/or adjudication of issues. (Code Civ. Proc., § 437c.) Seibert’s contention is that it established, as a matter of law, a complete defense in that plaintiff and real party in interest John Migailo’s action is barred by the so-called “fireman’s rule.” We issued an alternative writ to inquire into the correctness of the trial court’s ruling, and now conclude that petitioner is entitled to the relief sought. Accordingly, we grant the petition.

Statement of Facts

The essential facts of the matter are not in dispute, leaving the issue to be resolved as essentially one of law.

At the time of his injury, Migailo was a police officer employed by intervener (and real party) the City of San Bernardino. He had brought an arrested suspect to the San Bernardino County Hospital for examination of possible injuries. While he was there, a mental patient, defendant Raymond Shyptycki, became abusive towards a Black security officer employed by Seibert, Thomas Grigsby, and a Black police officer. At the time, Shyptycki was restrained in a chair; Migailo asked that he be handcuffed for greater control, but Grigsby failed to do so. Shortly thereafter, Shyptycki stood up and grabbed for Grigsby’s baton, and Migailo helped subdue him.

Shyptycki was then handcuffed and put in an isolation cell, but the handcuffs were taken off because he seemed “pretty pleasant” to another Seibert employee, Timothy Leggett, who believed it was only towards Black persons that Shyptycki reacted with verbal abuse and potential violence. [403]*403Within 15 minutes, however, Shyptycki attacked Leggett, who called for help. Officer Migailo responded, and was injured while subduing Shyptycki. During the struggle between Shyptycki and Migailo, Leggett dropped back and did not assist Migailo, although another Seibert employee, Sherry Staub, did continue to participate.

The trial court denied Seibert’s motion on two grounds, set forth briefly in a written order: that triable issues remained as to whether Migailo’s presence was “independent and unrelated to the conduct which proximately caused plaintiff’s injuries,” and as to whether the conduct “proximately causing the injury occurred after the defendant. . . knew or should have known of the presence of the plaintiff, a peace officer „ . .

I.

Procedural Issues A.

Timeliness of the Petition

The petition was filed on January 6, 1993. As the minute order bore the notation that copies had been mailed to counsel on November 9, 1992, we requested briefing on the issue of timeliness.1 In response, Seibert filed declarations by counsel and counsel’s secretary indicating that the notice of ruling had not been received either from the court or other counsel; it was further indicated that the court had directed plaintiff to prepare a formal order, which had similarly not been received. Although real parties attempted to cast doubt on these assertions by confirming mailing of notice and a copy of the formal ruling on December 7 (as to which the petition would also have been untimely), we deem it appropriate to resolve the conflict in favor of petitioner. It is true that adequate proof of mailing is presumptive evidence of receipt under Evidence Code section 641. However, not only did the declarations provide substantial direct evidence of non-receipt, but such evidence is also circumstantial evidence that notice was not mailed as claimed. (Jenson v. Traders & General Insurance Company (1956) 141 Cal.App.2d 162, 164 [296 P.2d 434].) While we are cognizant of the policies favoring prompt review of orders made under section 437c (see e.g. Schmidt v. Superior Court, ante at fn. 1), no party is prejudiced by our review, and we therefore proceed on the basis that real parties have failed to [404]*404positively establish that the petition is untimely. (See City of Sunnyvale v. Superior Court (1988) 203 Cal.App.3d 839, 846-847 [250 Cal.Rptr. 214].)

B.

Other Procedural Matters

We may also dispose of other minor procedural issues. The city argues that the factual issues presented for summary adjudication, as an alternative to summary judgment, were “compound,” or “far too broad and sweeping.” Insofar as the city appears to argue that a party may not ask the court to decide complex or dispositive issues, it is simply wrong. Insofar as it asserts that the issues presented involved disputed factual matters, we agree that a court cannot grant such a motion if a dispute is shown, but if the material facts are clear the application of legal principles to resolve the case is proper.2 (Pittleman v. Pearce (1992) 6 Cal.App.4th 1436, 1441 [8 Cal.Rptr.2d 359].) While we note on our own initiative that the issues may not all be framed in compliance with Code of Civil Procedure section 437c, subdivision (f), any defects become moot because we have determined that summary judgment must be ordered in to to.

Moot also is petitioner’s objection that the court’s order failed to specify the evidence demonstrating issues of fact, as required by Code of Civil Procedure section 437c, subdivision (g). (See Globe Immunity Co. v. Superior Court (1992) 6 Cal.App.4th 725, 728 at fn. 1 [8 Cal.Rptr.2d 251]: “Because we have decided the issues as a matter of law, remanding this matter for compliance with section 437c would serve no useful purpose.”)

Discussion

II.

The “Fireman’s Rule” 3

The “fireman’s rule” “was bom almost a century ago, earning nearly unanimous acceptance.” (Walters v. Sloan (1977) 20 Cal.3d 199, 202 [142 [405]*405Cal.Rptr. 152, 571 P.2d 609].) Although recognizing that “[i]n recent years, the rule has been repeatedly attacked,” the Walters court solidly reaffirmed its continuing viability in this jurisdiction.4, 5 The rule applies equally to police officers injured in the course of their duties.6 (IbidCity of Redlands v. Sorensen (1985) 176 Cal.App.3d 202, 207 [221 Cal.Rptr. 728].)

[406]*406The classic formulation of the rule holds that “negligence in causing a fire furnishes no basis for liability to a professional fireman injured fighting the fire. Firemen, ‘whose occupation by its very nature exposes them to particular risks of harm, “ ‘cannot complain of negligence in the creation of the very occasion for [their] engagement.’ ” ’ ” (Walters v. Sloan, supra, 20 Cal.3d at p. 202.)

Although originally often framed with reference to a landowner’s premises liability, the rule is fundamentally based on public policy and the nature of the relationship between the firefighter or police officer and the public. (Walters v. Sloan, supra, 20 Cal.3d at pp. 202-203; see also Flowers v. Rock Creek Terrace (1987) 308 Md.

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Seibert Security Services, Inc. v. SUPERIOR COURT OF SAN BERNARDINO CTY.
18 Cal. App. 4th 394 (California Court of Appeal, 1993)

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18 Cal. App. 4th 394, 22 Cal. Rptr. 2d 514, 93 Cal. Daily Op. Serv. 6936, 93 Daily Journal DAR 11806, 58 Cal. Comp. Cases 690, 1993 Cal. App. LEXIS 916, Counsel Stack Legal Research, https://law.counselstack.com/opinion/seibert-security-services-inc-v-superior-court-of-san-bernardino-cty-calctapp-1993.