CUSTOMER COMPANY v. CITY OF SACRAMENTO

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Court of Appeal, Third District, California.

CUSTOMER COMPANY, Plaintiff and Appellant, v. The CITY OF SACRAMENTO, et al., Defendants and Respondents.

No. C008668.

Decided: August 30, 1993

Aiken, Kramer & Cummings, Inc., Fred V. Cummings, Matthew F. Graham, Ellen Suzanne Wyatt, Oakland and George E. Paras, Sacramento, for appellant. Sharon Siedorf Cardenas, City Attorney, City of Sacramento, Richard F. Antoine, Deputy City Attorney, Edson & LaPlante and John M. LaPlante, Sacramento, for respondent City of Sacramento. Porter, Scott, Weiberg & Delehant and Stephen E. Horan, Sacramento, for County of Sacramento.

In an attempt to apprehend a robbery suspect, officers from defendant City of Sacramento (“City”) and defendant County of Sacramento (“County”) cornered the suspect in a convenience store owned by plaintiff Customer Company.   In order to flush out the suspect, officers fired over 13 canisters of tear gas into the store.   Customer Company brought suit againstboth the City and the County alleging:  negligence, trespass, nuisance, conversion, inverse condemnation and violation of civil rights.  (42 U.S.C. § 1983.)   The trial court granted the City's and County's motions for summary adjudication and judgment on the pleadings, ultimately dismissing all causes of action.

Customer Company appeals contending:  (1) the court erred in finding an emergency and public necessity precluded a cause of action for inverse condemnation;  (2) the court erred in finding the City and County immune from liability for negligence;  (3) questions of fact exist as to whether the City and County violated Customer Company's civil rights;  (4) the court erred in finding the City and County immune from nuisance;  (5) triable issues of fact exist as to whether the City and County converted Customer Company's property;  and (6) triable issues of fact exist as to whether the City and County trespassed on Customer Company's property.   Finding no error, we shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In spring of 1987 the City Police Department and County Sheriff's Department joined in investigating a series of burglaries.   Acting on information from a burglary suspect, the City and County placed Christopher Nash under surveillance.   The departments believed Nash was involved in armed robberies inside and outside the City.   Nash was reputed to be armed and dangerous, and had told people he would “shoot it out” with police if necessary.   An informant told County officers where Nash could be found and described the cars Nash might be driving.

County Sheriff's Deputy Chapman spotted Nash driving one of the cars, accompanied by passenger Violet Nelson.   Chapman followed Nash and called for backup.   Nash drove into the parking lot of Roger's Food & Liquor, a convenience store owned by Customer Company.   Nash and Nelson entered the store before backup units arrived.   Chapman planned a covert surveillance of Nash until he left the store and could be arrested.

One County deputy and several City police officers responded to Chapman's call for backup.   The officers proceeded to the convenience store in unmarked cars.   Despite these efforts at covert surveillance, one County deputy, Acevedo, and one City police officer, Bernasconi, arrived at the scene in marked cars.

The arrival of the marked law enforcement vehicles ended the attempt at covert surveillance.   A clerk in the store saw the cars, and assumed they were surrounding a car in the parking lot.   The clerk told Nelson, Nash's companion, to get down behind the counter.

When the officers outside discovered a clerk was in the store, they used a public address system (“PA”) to order everyone out of the store.   The clerk and Nelson left the store, Nash remained inside.   The clerk told the officers no one but Nash was inside.   Nelson told the officers Nash's guns were outside in his car, and she believed Nash was unarmed.1

The officers, believing Nash to be armed and dangerous, decided not to enter the store.   Instead, the officers called in the SWAT team.   Lt. Mijares of the Sacramento Police Department (“SPD”) took command and secured the area, calling in fire and ambulance units.   Mijares called in a trained hostage negotiator to coax Nash out of the store.   Police called the store number, and the negotiator, over the PA system, urged Nash to answer the phone.   Nash failed to respond.   Nash's companion, Nelson, told SPD she could coax Nash out of the store.   Nelson's offer was not acted upon, and Lt. Mijares testified he was unaware of the offer.   Mijares also stated he would not have used Nelson, because in his experience, suspects sometimes reacted dangerously to such communication.

After Nash failed to respond to the officers' attempts at communications, the negotiator told Nash tear gas would be fired if he didn't come out.   Nash failed to respond.   Mijares testified, for the safety of everyone involved, he proceeded under the assumption Nash was still armed and dangerous.   In order to avoid an armed confrontation, Mijares decided the use of tear gas provided the best option.

According to Customer Company, one of its employees asked officers not to fire tear gas into the store, since the gas would contaminate the store's contents.   The employee stated the officer in charge laughed at him.   Lt. Mijares testified he knew nothing about such a request.   In addition, Mijares stated, even if he had considered the request, he would have disregarded concern over the store's inventory in view of the overriding concern with preservation of life.   Mijares determined saturation of the store with tear gas was necessary to prevent Nash from avoiding the gas' affects.   In Mijares experience, gas would immediately drive out a barricaded suspect.

Two and one-half hours after the stand-off began, officers fired three rounds of tear gas through the glass doors and windows in the front of the store.   The officers also fired tear gas through the rear of the store, and attempted to fire canisters into the ceiling to prevent Nash's escape into the attic.   The negotiator again attempted to persuade Nash to leave the store.   After Nash failed to respond, officers fired more gas into the store.   Officers sprayed mace into the attic vents.

Officers waited 15 minutes for the gas to permeate the building.   When Nash failed to emerge, SWAT team members, outfitted with gas masks, entered the store.   The SWAT team found Nash in the attic burrowed under insulation material.   The officers arrested Nash without incident.

Officers fired at least 13 rounds of tear gas into the store.   The store's windows and interior were damaged by the tear gas blasts, and the store was permeated by the gas.   The store's inventory was disposed of as hazardous waste.   The store remained closed for 11 days for cleaning and repair.   Cost of clean-up exceeded $275,000, and total losses exceeded $350,000.

Customer Company filed a second amended complaint against the City and County, alleging inverse condemnation, negligence, trespass, trespass to personal property, conversion, nuisance and violation of civil rights.

In May 1989 the City and County filed motions for summary judgment and/or summary adjudication of issues.   The court denied the City's motion.   The court granted the County's motion for summary adjudication as to Customer Company's cause of action for negligence, trespass, trespass to personal property, conversion and nuisance.   The court ruled, as a matter of law, the County was immune under Government Code section 820.2, which provides immunity for discretionary acts of County employees.   The court denied the motion as to Customer Company's cause of action for inverse condemnation and violation of civil rights, finding these claims were constitutionally based and were not affected by governmental immunity.   The court stated:  “․ the acts of defendant CITY OF SACRAMENTO and COUNTY OF SACRAMENTO in this incident are intertwined and part of a continuum.”

In August 1989 the City brought a second motion of summary judgment/summary adjudication of issues.   The court denied the motion, except as to the issue of inverse condemnation, finding a triable issue of fact “exists as to the situation that existed June 22, 1987, at approximately 11:00 a.m. and whether it constituted a necessity and/or emergency requiring the use of tear gas at all in the amounts utilized.”

The court granted the motion as to the inverse condemnation cause of action without leave to amend, and entered judgment for the City.   The court stated:  “The court finds that as a matter of law the actions of the police under the facts of this case and in the totality of all the circumstances was a proper exercise of the police power to protect the public health, safety and welfare.”

In December 1989 the City again filed a motion for summary judgment/summary adjudication.   The court granted the City's motion stating:  “ The court has previously found that the actions of defendant CITY were a proper exercise of police power.   See ruling on summary judgment October 11, 1989.   This finding by necessity includes a finding of an emergency.   The presence of an emergency negates the remaining causes of action for inverse condemnation and 42 U.S. [C.] 1983 against the City.”   The court stated the motion was a motion for judgment on the pleadings, and entered judgment in favor of the City.   The county then filed a motion for judgment on the pleadings, which the court also granted.

Customer Company filed a timely notice of appeal.

I. Standard of Review

 The purpose of summary judgment procedure is to discover, through appropriate supporting and opposing papers, whether the parties possess evidence requiring the weighing procedures of a trial.   The rules are well known.   A motion for summary judgment “shall be granted if 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).)

Although the issues are framed by the pleadings, the motion must be decided upon admissible evidence in the form of affidavits, declarations, and matters subject to judicial notice.  (AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1064, 225 Cal.Rptr. 203;  Code Civ.Proc., § 437c, subd. (d).)  A defendant moving for summary judgment has the burden of establishing that the action is without merit;  a factual showing negating all causes of action upon all theories is required.  (Tresemer v. Barke (1978) 86 Cal.App.3d 656, 666, 150 Cal.Rptr. 384.)

Summary judgment raises only questions of law, which are reviewed independently.   Our review tracks the same, three-step process used by the trial court:  First, we identify the issues framed by the pleadings.   Second, we determine whether the moving party has established facts sufficient to negate the opponent's claim.   Third, if that burden is met, we examine whether the opposing party's showing discloses that triable issues of material fact exist.  (AARTS Productions, Inc. v. Crocker National Bank, supra, 179 Cal.App.3d at pp. 1064–1065, 225 Cal.Rptr. 203.)

II. Inverse Condemnation

Customer Company argues the trial court erred in granting summary judgment as to its inverse condemnation cause of action.   According to Customer Company triable issues of material fact exist as to whether a true emergency existed the day of the incident, and whether the acts of the City and County were reasonably necessary to protect the health, safety and welfare of society.2

 Customer Company's inverse condemnation claim is rooted in Article I, section 19 of the California Constitution which provides:  “Private property may be taken or damaged for public use only when just compensation ․ has first been paid to ․ the owner.”   The provision is self executing.   An action in inverse condemnation arises directly thereunder and is independent of any right to sue under traditional tort theories.  (Rose v. City of Coalinga (1987) 190 Cal.App.3d 1627, 1633, 236 Cal.Rptr. 124.)   Notwithstanding the unconditional language of the constitution, the Supreme Court has recognized “two strains of decisions in which the urgency or particular importance of the governmental conduct involved [can be] so overriding that considerations of public policy inveigh[ ] against a rule rendering the acting public entity liable absent fault.”  (Holtz v. Superior Court (1970) 3 Cal.3d 296, 304, 90 Cal.Rptr. 345, 475 P.2d 441.)   One exception includes cases in which the state at common law had the right to inflict the damage.  (Albers v. County of Los Angeles (1965) 62 Cal.2d 250, 262, 42 Cal.Rptr. 89, 398 P.2d 129.)   However, in this appeal we deal with a second exception:  damages inflicted in the proper exercise of the police power.  (Archer v. City of Los Angeles (1941) 19 Cal.2d 19, 24, 119 P.2d 1.)

The police power exception itself has two facets.   First, “the ‘police power’ doctrine ‘[g]enerally ․ operates in the field of regulation,’ rendering ‘damages' occasioned by the adoption of administrative or legislative provisions noncompensable.”   Second, “this doctrine of noncompensable loss comes into play in connection with more direct ‘taking’ or ‘damaging’ of property only under ‘emergency’ conditions;  i.e., when damage to private property is inflicted by government ‘under the pressure of public necessity and to avert impending peril.’ ”  (Holtz v. Superior Court, supra, 3 Cal.3d at p. 305, 90 Cal.Rptr. 345, 475 P.2d 441.)   This appeal concerns the “emergency conditions” aspect of the police power exception, applicable when property is directly damaged “under the pressure of public necessity and to avert impending peril.”

 Customer Company argues the police power exception is inapplicable in the present case.   The City and County do not dispute it “took” Customer Company's property, but argue public necessity protects their actions for the damage resulting from the apprehension of a criminal suspect.

According to the City, the policy of protecting the safety and welfare of officers and citizens while apprehending Nash constitutes a higher public purpose than the preservation of Customer Company's property.   The City argues Lt. Mijares was justified in his actions, since he believed an armed and dangerous suspect was refusing to communicate with the police.   These facts, the City claims, constitute a common law privilege of necessity to act for the safety and welfare of the public.

Customer Company disputes the very existence of an emergency in the present case.   According to Customer Company, until the City and County precipitated the confrontation, there was not even a potential emergency.   Customer Company portrays Nash as a peaceful shopper, not a robber, and argues no officers were in danger.   Moreover, Customer Company argues, a question of fact exists as to whether it was necessary to destroy Customer Company's property.   As Customer Company analyzes the situation:  “Nash was alone;  he had no hostages;  he made no threats, the gun he reputedly carried with him was discovered in his car prior to the introduction of tear gas and his companion stated he was unarmed.   Conflicting inferences may be drawn here as to whether there was a ‘true emergency’ and whether City and County's acts were necessary.”

Customer Company correctly notes that a public entity's claim of emergency must be critically examined.   As the Supreme Court observed:  “Recognizing that a broad interpretation of this doctrine of noncompensable loss would completely vitiate the constitutional requirement of just compensation ․, the courts have narrowly circumscribed the types of emergency that will exempt the public utility from liability.”  (Holtz v. Superior Court, supra, 3 Cal.3d at p. 305, 90 Cal.Rptr. 345, 475 P.2d 441, citation and footnote omitted.)   The action taken must be “essential to safeguard public health, safety or morals.”  (House v. L.A. County Flood Control Dist. (1944) 25 Cal.2d 384, 388–389, 153 P.2d 950.)  “[T]he exercise of the police power, though an essential attribute of sovereignty for the public welfare and arbitrary in its nature, cannot extend beyond the necessities of the case and be made a cloak to destroy constitutional rights as to the inviolateness of private property.”   (Id. at pp. 388–389, 153 P.2d 950.)

While we are mindful of our obligation to closely scrutinize any claim of emergency in the context of inverse condemnation, we nonetheless are persuaded that Customer Company's property was indisputably damaged “under the pressure of public necessity and to avert impending peril” and that County's actions were “essential to ․ public safety.”

It is undisputed that County's officers faced a suspect, reputedly involved in numerous armed robberies, who refused repeated requests to peacefully surrender and leave Customer Company's store and failed to even respond to the officers' communications.   Officers also found a sawed-off shotgun and an automatic weapon in Nash's car.   A barricaded armed robbery suspect, who in the past expressed an intent to “shoot it out” with authorities presents a threat to public order and safety.   The actions of the officers in attempting to subdue and arrest a barricaded, dangerous suspect were taken “under the pressure of public necessity and to avert impending peril,” precisely the type of situation contemplated in House.

In addition, we do not find Customer Company's objection to the amount of tear gas fired relevant.   Customer Company's own expert testified toxic contamination occurred after the first canister was fired.   Moreover, the number of canisters fired does not change the fact the gas was fired out of necessity in an emergency.   Customer Company also argues Nash was unarmed, and therefore no emergency existed, since Nash could be “waited out.”   However, the officers involved believed Nash was armed and dangerous and acted accordingly.   This belief was justified by reports concerning Nash, and his previous statement that he would “shoot it out” if necessary.

We find the cases cited by Customer Company distinguishable from the case before us.   In Rose v. City of Coalinga, supra, 190 Cal.App.3d 1627, 236 Cal.Rptr. 124 the City demolished buildings following a devastating earthquake.   The owner of one of the buildings brought an inverse condemnation action.   The appellate court reversed the trial court's granting of the city's motion for summary judgment.   The city had claimed a necessary exercise of police power.   The appellate court found a triable issue of fact existed as to whether an emergency existed when the building was demolished.  (Id. at p. 1635, 236 Cal.Rptr. 124.)   The property owner presented evidence that the State Office of Emergency Services had issued a structural safety report six days after the earthquake concluding no hazard was found in the building.   An architect, a contractor and two licensed engineers concurred.   After waiting 57 days, and avoiding the building owner's attempts to discuss the scheduled demolition, the City destroyed the building.  (Id. at pp. 1630–1632, 236 Cal.Rptr. 124.)

In the present case, the governmental entities engaged in neither delays nor subterfuge before taking action.   Customer Company presented no evidence of contradictory opinions as to the efficacy or appropriateness of using tear gas on the part of City or County officials.   The events took place swiftly, in an atmosphere far more redolent of an “emergency” than the events in Rose.

In Smith v. County of Los Angeles (1989) 214 Cal.App.3d 266, 262 Cal.Rptr. 754, the county's removal of landslide debris damaged plaintiff's home.   In response to plaintiff's inverse condemnation claim, the county argued it was necessary to remove the debris or it would have to close down a road, causing residents to have a longer drive.   The appellate court determined this was not the type of “emergency” recognized under the doctrine of noncompensable loss.   (Id. at p. 286, 262 Cal.Rptr. 754.)

Again, the situation faced by City and County officers involved in arresting Nash differs greatly from the facts of Smith.   Believing Nash armed and dangerous, officers attempted to coax him out of Customer Company's store.   When these efforts proved futile, the officers, in an effort to subdue Nash, fired tear gas.   Unlike the residue of a subsided landslide inconveniencing commuters, these facts point to an unresolved and volatile emergency requiring immediate and decisive action to protect the public welfare.

The other cases cited by Customer Company involve inverse condemnation claims stemming from damage caused by public projects:  Archer v. City of Los Angeles, supra, 19 Cal.2d 19, 119 P.2d 1, straightening, widening and deepening of a creek;  Clement v. State Reclamation Board (1950) 35 Cal.2d 628, 220 P.2d 897, constructions and maintenance of flood control project;  Holtz, supra, 3 Cal.3d 296, 90 Cal.Rptr. 345, 475 P.2d 441, excavation for transit line;  House, supra, 25 Cal.2d 384, 153 P.2d 950, construction and maintenance of flood control channel;  Smith, supra, 214 Cal.App.3d 266, 262 Cal.Rptr. 754, landslide caused by construction of roadway;  Farmers Ins. Exchange v. State of California (1985) 175 Cal.App.3d 494, 221 Cal.Rptr. 225 and Teresi v. State of California (1986) 180 Cal.App.3d 239, 225 Cal.Rptr. 517, aerial spraying for eradication of medfly;  Albers v. County of Los Angeles, supra, 62 Cal.2d 250, 42 Cal.Rptr. 89, 398 P.2d 129, landslide resulting from road construction;  Belair v. Riverside County Flood Control Dist. (1988) 47 Cal.3d 550, 253 Cal.Rptr. 693, 764 P.2d 1070, failure of flood control levy;  Bunch v. Coachella Valley Water Dist. (1989) 214 Cal.App.3d 203, 262 Cal.Rptr. 513, failure of flood control facility;  Sutfin v. State of California (1968) 261 Cal.App.2d 50, 67 Cal.Rptr. 665, damage connected to design and construction of highway and flood control works;  and Leppo v. City of Petaluma (1971) 20 Cal.App.3d 711, 97 Cal.Rptr. 840, building destroyed after city found it unsafe.

Although we have found no California cases which address the issue of inverse condemnation stemming from actions taken by authorities in attempting to arrest a felony suspect, the Minnesota Supreme Court has allowed an action for inverse condemnation for damages caused by tear gas.   In Wegner v. Milwaukee Mutual Insurance Company (Minn.1992) 479 N.W.2d 38, officers fired tear gas and concussion grenades into plaintiff's home to force out a felony suspect.  (Id. at p. 39.)   The Minnesota trial and appellate courts held the doctrines of public necessity and police power precluded a cause of action for inverse condemnation.

The Minnesota Supreme Court disagreed, finding the Minnesota Constitution required compensation when property is damaged for public use.  (Id. at p. 40.) 3  The court reasoned:  “․ the issue in this case is not the reasonableness of the use of chemical munitions to extricate the barricaded suspect but rather whether the exercise of the city's admittedly legitimate police power resulted in a ‘taking.’ ”  (Id. at p. 40.)   The court found the damage inflicted by the police in the course of capturing a dangerous suspect was for a public use within the meaning of the state constitution.   (Id. at p. 41.)

The court in Wegner also considered the doctrine of public necessity.   The court noted that “[o]ne is privileged to enter land in the possession of another if it is, or if the actor reasonably believes it to be, necessary for the purpose of averting an imminent public disaster.”  (Id. at p. 42, quoting Restatement (second) of Torts, § 196.)   However, the court found:  “We are not inclined to allow the city to defend its actions on the grounds of public necessity under the facts of this case․  We believe the better rule, in situations where an innocent third party's property is taken, damaged or destroyed by the police in the course of apprehending a suspect, is for the municipality to compensate the innocent party for the resulting damages.   The policy considerations in this case center around the basic notions of fairness and justice.   At its most basic level, the issue is whether it is fair to allocate the entire risk of loss to an innocent homeowner for the good of the public.   We do not believe the imposition of such a burden on the innocent citizens of this state would square with the underlying principles of our system of justice.   Therefore, the City must reimburse Wegner for the losses sustained.”  (Id. at p. 42, citation omitted.)

The court in Wegner relied extensively on a Texas case, Steele v. City of Houston (Tex.1980) 603 S.W.2d 786.   In Steele, police set plaintiff's home on fire and allowed it to burn to force out some escaped prisoners.   The Texas Supreme Court stated:  “[T]his court has moved beyond the earlier notion that the government's duty to pay for taking property rights is excused by labeling the taking as an exercise of police powers.”  (Id. at p. 789.)   The court concluded:  “The City argues that the destruction of the property as a means to apprehend escapees is a classic instance of police power exercised for the safety of the public.   We do not hold that the police officers wrongfully ordered the destruction of the dwelling;  we hold that the innocent third parties are entitled by the Constitution to compensation for their property.”  (Id. at p. 793.)

Expressing concerns about “fairness” and “justice,” the decisions in Wegner and Steele declined to recognize an emergency exception to a cause of action for inverse condemnation.   We are not oblivious to notions of fairness and justice.   California law recognizes the emergency exception but guards against inequitable results by construing the concept of “emergency” narrowly, thereby limiting the number of situations in which private property can be taken or destroyed for the public good.   However, in those narrowly defined circumstances, our Supreme Court has recognized that the “urgency or particular importance of the governmental conduct involved [is] so overriding that considerations of public policy inveigh[ ] against a rule rendering the acting public entity liable absent fault.”  (Holtz v. Superior Court, supra, 3 Cal.3d at pp. 304–305, 90 Cal.Rptr. 345, 475 P.2d 441.)   An injured plaintiff may have a remedy, but it does not lie in a doctrine which renders public entities strictly liable no matter how reasonably they may have acted in the public interest.

We find all the elements of an emergency necessitating tear gas in the present situation.   Therefore, the court did not err in granting summary judgment on Customer Company's cause of action for inverse condemnation.

III. Negligence

 Customer Company argues triable issues of fact exist as to whether the City and County acted negligently in firing tear gas into Customer Company's store.   According to Customer Company, the trial court erred in finding the City and County immune from suit.

The trial court ruled, as a matter of law, the decision whether or not to make an arrest was a discretionary act for which County deputies were immune under Government Code section 820.2 and Watts v. County of Sacramento (1982) 136 Cal.App.3d 232, 186 Cal.Rptr. 154.   Customer Company contends the actions which caused damage to its store were not discretionary acts entitled to immunity.   Although Customer Company concedes the decision to arrest Nash was a discretionary act, Customer Company argues all subsequent decisions and actions performed while implementing the decision to arrest were ministerial and therefore not immune from liability.

Government Code section 820.2 provides:  “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.”

 A discretionary act, for purpose of determining whether a public employee is immune from liability, requires deliberation, decision, and judgment.   An act is ministerial when it amounts to only obedience to orders for performance of a duty in which the employee is left no choice of his own.   (Morgan v. County of Yuba City (1964) 230 Cal.App.2d 938, 942–943, 41 Cal.Rptr. 508.)

In Watts, supra, 136 Cal.App.3d 232, 186 Cal.Rptr. 154, we considered a case in which Sacramento County Sheriffs intervened in a disagreement between a landowner and plaintiffs as to plaintiffs' right to harvest crops.   Plaintiffs brought suit after the officers ordered plaintiffs off the land.   We determined the officers had performed a discretionary act, and were therefore immune from suit under Government Code section 820.2.   Plaintiffs argued the officers had performed a “negligent investigation,” following their discretionary decision to settle the dispute.   We disagreed, stating:  “The fallacy of plaintiff's 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 Mattos' property.   In order to settle the dispute the officers were obliged to exercise their discretion after they had observed what was happening and had listened to the explanation of those present.   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.  ‘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.”  (Id. at p. 235, 186 Cal.Rptr. 154, quoting Michenfelder v. City of Torrance (1972) 28 Cal.App.3d 202, 206, 104 Cal.Rptr. 501, emphasis in original.)

Once the officers decided to arrest Nash, the City argues, Lt. Mijares was vested by the SPD with the discretion to determine the means by which the arrest should be carried out.   This discretion included the possible use of tear gas to flush out the barricaded suspect.   The County argues the actions of Deputy Acevedo in responding to Deputy Chapman's radio request for cover at the Customer Company store, were also discretionary actions in furtherance of Nash's arrest.

We agree.   As the court in Thompson v. County of Alameda (1980) 27 Cal.3d 741 at p. 749, 167 Cal.Rptr. 70, 614 P.2d 728 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.”   The decisions of Lt. Mijares and Deputy Acevedo resulted from choices and judgments made in response to changing circumstances, not made in blind obedience to orders.

Customer Company argues to find the City and County immune directly conflicts with the holding in Johnson v. State of California (1968) 69 Cal.2d 782, 73 Cal.Rptr. 240, 447 P.2d 352.   We disagree.   In Johnson, the court rejected a literal interpretation of the term “discretionary,” and cautioned against providing immunity indiscriminately to every decision made at every governmental level.   The court in Johnson set forth various factors to determine whether an agency in a particular case should have immunity:  importance to the public of the function involved;  the extent to which government liability might impair free exercise of the function;  and availability of other remedies.  (Id. at p. 789, 73 Cal.Rptr. 240, 447 P.2d 352.)

In Johnson the court determined Government Code section 820.2 did not provide immunity for a Youth Authority officer's failure to warn a foster family of their ward's known violent tendencies.   The court found the officer's decision not to warn did not rise to a level of governmental decisions calling for judicial restraint, and the state failed to prove the officer consciously considered the risks in not informing the family and determined other policies justified these risks.  (Id. at p. 797, 73 Cal.Rptr. 240, 447 P.2d 352.)   We find the decision made in the present case very different.   The arrest of a suspected armed robber mandates decisions affecting public safety;  liability for such split-second decisions could conceivably hamstring officials with unpleasant results.   Given the importance of the decisions involved, and the potential impact of liability on these decisions, Government Code section 820.2 provides immunity under the analysis set forth in Johnson.4

IV. Civil Rights Cause of Action

Customer Company argues triable issues of fact exist as to whether the City and County violated its civil rights under 42 United States Code section 1983 by depriving it of its property without due process of law.   According to Customer Company, a question of fact exists as to whether the City and County's acts were taken in “deliberate indifference” to Customer Company's civil rights based on the City and County's failure to train their employees.

Title 42 of the United States Code section 1983 provides in pertinent part:  “Every person who, under color of any statute, ordinance, regulation, custom, or usage of any State ․ subjects, or causes to be subjected, any citizen of the United States or other person with the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or any other proper proceeding for redress.”   Customer Company bases its claims under 42 United States Code section 1983 on section 1 of the Fourteenth Amendment to the United States Constitution:  “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;  nor shall any state deprive any person of life, liberty or property, without due process of law;  nor deny to any person within its jurisdiction the equal protection of its laws.”

In Monell v. New York City Dept. of Soc. Services (1978) 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611, the United States Supreme Court set forth the requirements for municipal liability under section 1983:  “[I]t is when execution of a government's policy or custom ․ inflicts the injury that the government as an entity is responsible under § 1983.”  (Id. at p. 694, 98 S.Ct. at p. 2037.)   In Canton v. Harris (1989) 489 U.S. 378, 109 S.Ct. 1197, 103 L.Ed.2d 412 the Supreme Court held section 1983 liability exists with respect to inadequate police training only where the failure to train amounts to a “deliberate indifference” to the rights of persons with whom the police come in contact.  (Id. at p. 388, 109 S.Ct. at p. 1204.)

The court in Canton defined deliberate indifference in the context of failure to train:  “[I]t may happen that in light of the duties assigned to specific officers or employees the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policy-makers of the City can reasonably be said to have been deliberately indifferent to the need.”  (Id. at p. 390, 109 S.Ct. at p. 1205, fn. omitted.)   The court focused on the adequacy of a municipality's training program, not on proof of an individual police officer's mistakes, shortcomings or the possibility that more or better training could have prevented harm.  (Id. at p. 391, 109 S.Ct. at p. 1206.)

The court also discussed the required connection between the municipality's custom or policy and the plaintiff's injury:  “[F]or liability to attach in this circumstance, the identified deficiency in a City's training program must be closely related to the ultimate injury.   Thus in the case at hand, respondent [plaintiff below] must still prove that the deficiency in training actually caused the police officers' indifference to her medical needs.   Would the injury have been avoided had the employee been trained under a program that was not deficient in the identified respect?”  (Id. at p. 391, 109 S.Ct. at p. 1206.)

Customer Company alleges it was injured and deprived of its civil rights by the City and County's failure to train officers in proper methods of both (1) covert surveillance of a suspect;  and (2) use of tear gas.   According to Customer Company, these training failures reveal the City and County's “deliberate indifference” to Customer Company's civil rights.   Therefore, the trial court erred in granting judgment on the pleadings on Customer Company's civil rights cause of action.   Customer Company admits it failed to specifically allege the existence of a policy, practice or custom of deliberate indifference by the City and County.   However, Customer Company argues such deliberate indifference may be inferred from the facts before the trial court.   We shall consider each of Customer Company's factual allegations in turn.

A. Covert Surveillance

 Customer Company argues the City and County failed to provide adequate training in covert surveillance of an armed suspect, a failure which deprived Customer Company's constitutional rights.   We find no evidence to support such a causal connection.

County Deputy Chapman followed the suspect, Nash, to Customer Company's store.   After two marked police cars arrived, Nash barricaded himself in the store.   County Deputy Acevedo drove his marked car into the parking lot believing he was to assist a fellow deputy already inside the store.   Acevedo, who was not involved in the surveillance of Nash, responded to a radio call.   He did not communicate with any officers involved in the surveillance.   Acevedo's actions were unconnected to the surveillance of Nash;  his untimely arrival at the store resulted from his own faulty analysis of the situation.   As the Supreme Court noted:  “Neither will it suffice to prove that an injury or accident could have been avoided if an officer had better or more training․  And plainly, adequately trained officers occasionally make mistakes;  the fact that they do says little about the training program or the legal basis for holding the city liable.”  (Canton, supra, 489 U.S. at p. 391, 109 S.Ct. at p. 1206.)

City police officer Bernasconi arrived in the second marked police car.   Aware of the covert surveillance of Nash, Bernasconi kept his marked car out of view until Acevedo pulled into the parking lot.   After the first marked police car entered the store's lot, Bernasconi pulled in front of the store at approximately the same time.   Bernasconi's actions were not in furtherance of the covert surveillance of Nash, but were an immediate response to Acevedo's action of pulling into the parking lot.5

Neither of the law enforcement officers who drove marked vehicles into Customer Company's parking lot did so as part of the planned covert surveillance of Nash.   Lacking a causal connection between the actions which caused the injury, the arrival of marked police cars, and the covert surveillance of Nash, Customer Company cannot show a “deliberate indifference” in training officers in covert surveillance.

B. Tear Gas

 Customer Company argues:  “[T]he need to train S.W.A.T. officers and those commanding them on the constitutional limitations of the use of tear gas can be said to be so obvious that CITY and COUNTY's failure to do so could be properly characterized as ‘deliberate indifference’ to THE CUSTOMER COMPANY's constitutional rights thus raising a triable issue of material fact.”

The City concedes it possessed and used tear gas in capturing Nash.   The City also points out it trains all of its officers in the use of tear gas through a course of instruction approved by the Commission on Peace Officer Standards and Training.

Customer Company argues the City and County failed to instruct the police that use of tear gas in food stores would contaminate the store's inventory.   However, as the City points out, police training, or lack of it, had nothing to do with the use of tear gas in the present case.   Lieutenant Mijares of the City police department, the on-scene commander, made the decision to use tear gas to flush Nash out.   Mijares, in deposition testimony, stated:

“Q: Okay.   Would it have mattered if the owner of the store had asked you not to use the gas, would that have affected your decision?

“A: Definitely not.   I would have to disregard that kind of a request.

“Q: Why did you use the gas?

“A: Well, it's my responsibility as Incident Commander to make sure that we arrest the subject Nash in the safest possible way.  [¶] And the safest way to do that, especially in a situation like this, is to have him come out voluntarily.   And if he doesn't do it voluntarily, the safest way is to have him come out by being flushed out by tear gas.  [¶] It would be too hazardous for me to order the SWAT team to enter the store without using tear gas.”

The City argues there is no causal link between the City's tear gas training program and Mijares decision to fire tear gas into Customer Company's store.   We agree.   Lieutenant Mijares had a choice between priorities, and chose to protect his officers despite possible damage to the store's inventory.   The damage suffered by Customer Company resulted not from inadequate training, but from the informed judgment of a commander faced with an emergency.

The Supreme Court in Canton explained the required causal connection between the inadequate custom or policy and the plaintiff's injury:  “[F]or liability to attach in this circumstance the identified deficiency in a city's training program must be closely related to the ultimate injury.   Thus in the case at hand, respondent must still prove that the deficiency in training actually caused the police officers' indifference to her medical needs.   Would the injury have been avoided had the employee been trained under a program that was not deficient in the identified respect?”  (Canton, supra, 489 U.S. at p. 391, 109 S.Ct. at p. 1206.)   Neither of Customer Company's alleged areas of deliberate indifference—covert surveillance and use of tear gas—is closely related to Customer Company's injury, nor would a different result obtain if the officers had received different training.

Our review of the record reveals the facts surrounding Customer Company's civil rights claim are not in dispute.   We find no causal connection between the destruction of Customer Company's inventory and any training program provided by the City or County.   Since Customer Company cannot establish a requisite element of a cause of action under section 1983, the trial court correctly granted judgment on the pleadings on Customer Company's civil rights cause of action.   Even construing all inferences in Customer Company's favor, we find Customer Company cannot state a cause of action under 42 United States Code section 1983.

V. Nuisance

 Customer Company argues the trial court erred in finding Government Code section 820.2 bars its nuisance cause of action.  Civil Code section 3479 defines a nuisance as “[a]nything which is injurious to health, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property․”  Customer Company alleged the firing of tear gas into its store qualified as a nuisance.

Customer Company argues Government Code section 820.2 does not insulate the City and County from liability under Civil Code section 3479.   Customer Company cites Varjabedian v. City of Madera (1977) 20 Cal.3d 285, 142 Cal.Rptr. 429, 572 P.2d 43 and Greater Westchester Homeowners Assn. v. City of Los Angeles (1979) 26 Cal.3d 86, 160 Cal.Rptr. 733, 603 P.2d 1329, two nuisance cases in which the Supreme Court denied municipalities immunity.   In Varjabedian, a property owner alleged nuisance on the part of the city, stemming from noxious odors emanating from a nearby sewage treatment plant.   The city claimed its conduct was privileged under Civil Code section 3482 which provides nothing “done or maintained under the express authority of a statute can be deemed a nuisance.”   The Supreme Court disagreed, holding the provisions of Civil Code section 3482 are to be narrowly circumscribed.   The court also found the general authorization of municipal construction of the plant did not expressly sanction production of any particular level of fumes, nor were the odors authorized by the general powers conferred by the statute.   (Id., 20 Cal.3d at p. 292, 142 Cal.Rptr. 429, 572 P.2d 43.)

The court in Westchester, supra, 26 Cal.3d 86, 160 Cal.Rptr. 733, 603 P.2d 1329, also considered Civil Code section 3482 and held “․ although an activity authorized by statute cannot be a nuisance, the manner in which the activity is performed may constitute a nuisance․”  (Id. at p. 101, 160 Cal.Rptr. 733, 603 P.2d 1329, emphasis in original, citation omitted.)   Customer Company argues, in the present case, no statutes “expressly” authorized the destruction of its property by tear gas.

The City and County contend Customer Company's nuisance action cannot survive the immunity provided by Government Code section 820.2.   The City and County argue the specific immunity provisions of the Tort Claims Act extend to liabilities created by general statutes outside the act.

We agree.   In Mikkelsen v. State of California (1976) 59 Cal.App.3d 621, 130 Cal.Rptr. 780, plaintiff brought a negligence suit against the state for the defective design of a freeway bridge which collapsed during an earthquake.   The trial court found plaintiffs could not proceed on a nuisance theory;  the appellate court affirmed.   The appellate court found in some circumstances a governmental entity might be liable for a nuisance.   However, the core of plaintiff's case rested on an alleged design defect, and Government Code section 830.6 specifically immunized a governmental agency from liability for faulty design of public construction.   The court held the immunity afforded by Government Code section 830.6 took precedence over the general liability for nuisance provided by Civil Code section 3479.  (Id. at pp. 629–630, 130 Cal.Rptr. 780.)

The court in Mikkelsen was influenced by the comments of the California Law Revision Committee expressing the rationale for the design immunity.  “While it is proper to hold public entities liable for injuries caused by arbitrary abuses of discretionary authority in planning improvements, to permit reexamination in tort litigation of particular discretionary decisions where reasonable men may differ as to how discretion should be exercised would create too great a danger of impolitic interference with the freedom of decision-making by those public officials in whom the function of making such decisions has been vested.”  (Id. at p. 630, 130 Cal.Rptr. 780.)   In the present case, the City and County argue, the on-scene police commander was confronted by a potentially explosive situation requiring immediate decisions.   The rationale of Mikkelsen and the court's reluctance to allow “second-guessing,” the City and County contend, is particularly applicable to decisions made in the apprehension of a dangerous suspect.

In O'Hagan v. Board of Zoning Adjustment (1974) 38 Cal.App.3d 722, 113 Cal.Rptr. 501, a City zoning board revoked a restaurant permit, an action later determined to be in error.   The restaurant operator brought suit under Code of Civil Procedure section 1095.   The appellate court held the specific immunities contained in Government Code sections 821.4 (immunity for failure to inspect) and 818.4 (issuance, denial, revocation or suspension of license or permit) took precedence over Code of Civil Procedure section 1095, which provides damages in mandamus actions.  (Id. at pp. 729–732, 113 Cal.Rptr. 501.)

However, Customer Company argues the rationale of Morris v. County of Marin (1977) 18 Cal.3d 901, 136 Cal.Rptr. 251, 559 P.2d 606 applies in the present case.   In Morris a seriously injured worker brought an action for damages against the county which had issued the building permit.   The worker alleged the county issued the permit without complying with Labor Code section 3800.   The county claimed immunity under Government Code sections 818.4 and 818.2, statutes providing immunity to public entities for damages caused by the issuance of a permit or for failure to enforce a law.   The Supreme Court reversed, holding Labor Code section 3800 imposed a mandatory duty on counties, and under Government Code section 815.6 a county may be liable for injuries resulting from a failure to discharge such a duty.   (Id. at p. 907, 136 Cal.Rptr. 251, 559 P.2d 606.)

 We find the present case similar to the situations in Mikkelsen and O'Hagan.   A specific statute, Government Code section 820.2, provides immunity for injuries resulting from discretionary acts by public employees.   Such immunity takes precedence over the general nuisance statute.   Unlike the statutes involved in Morris, we find no mandatory duty imposed on the City and County by statute.   Therefore, the trial court did not err in granting summary judgment on Customer Company's cause of action for nuisance.

VI. Conversion

 Customer Company argues triable issues of fact exist as to whether the City and County converted its property when it returned damaged store inventory.

 Conversion is any act of dominion wrongfully exerted over another's personal property in denial of, or inconsistent with the owner's rights therein.   The elements of a cause of action for conversion are:  plaintiff's ownership or right to possession of the property at the time of the conversion;  the defendant's conversion by wrongful act;  and damages.   (Messerall v. Fulwider (1988) 199 Cal.App.3d 1324, 1329, 245 Cal.Rptr. 548.)

As Customer Company points out, when its employees left the store, at the City and County's insistence, the windows were unbroken and the inventory uncontaminated.   A store employee specifically asked the officers not to fire tear gas into the store.   However, tear gas was fired, and the City and County returned Customer Company's property in a dirty, broken and damaged condition.   This, according to Customer Company, amounts to conversion.

The City and County focus on the element of wrongful exercise of dominion in Customer Company's action for conversion.   According to the City and County, their actions in apprehending the suspect were not wrongful, but were a legitimate exercise of governmental authority.   City and County point out Penal Code section 836 authorizes officers to apprehend felony suspects, and the courts have imposed a duty on cities and counties to pursue and apprehend criminal suspects.  (See Reenders v. City of Ontario (1977) 68 Cal.App.3d 1045, 1052–1054, 137 Cal.Rptr. 736;  Hooper v. City of Chula Vista (1989) 212 Cal.App.3d 442, 453, 260 Cal.Rptr. 495.)   In addition, the use of tear gas, the City and County argue, falls squarely within the governmental immunity provided for discretionary decisions under Government Code section 820.2.   Since no “wrongful” exercise of dominion took place, Customer Company's cause of action for conversion must fail.

We agree.   As discussed, supra, the officers' decision to use tear gas was a discretionary decision immune from suit under Government Code section 820.2.   Customer Company offers no evidence of any “wrongful act” by any participant other than the firing of tear gas into its store.   Lacking any evidence of a wrongful dominion over Customer Company's property, the trial court correctly granted summary judgment on the conversion cause of action.

VII. Trespass

 Customer Company argues triable issues of fact exist as to whether the City and County committed trespass on Customer Company's property.   Trespass is an unlawful interference with possession of property.  (Girard v. Ball (1981) 125 Cal.App.3d 772, 788, 178 Cal.Rptr. 406.)   The essence of a cause of action for trespass is an unauthorized entry onto the land of another.   Such invasions are characterized as intentional torts, regardless of the actor's motivation.   A defendant is liable for intentional entry although they acted in good faith, under the mistaken belief, however reasonable, that they committed no wrong.  (Miller v. National Broadcasting Co. (1986) 187 Cal.App.3d 1463, 1480, 232 Cal.Rptr. 668.)

The trial court granted summary judgment on the trespass cause of action citing Penal Code section 836.  Penal Code section 836 reads, in pertinent part:  “A peace officer may arrest a person in obedience to a warrant, or pursuant to the authority granted him or her by the provisions of Chapter 4.5 (commencing with section 830) of Title 3 of Part 2, without a warrant, may arrest a person ․ (3) The officer has reasonable cause to believe that the person to be arrested has committed a felony, whether or not a felony, in fact, has been committed.”

The City and County argue Government Code section 821.8, in conjunction with Penal Code section 836, provides immunity from trespass by officers onto private property.  Government Code section 821.8 provides in pertinent part:  “A public employee is not liable for an injury arising out of his entry upon any property where such entry is expressly or impliedly authorized by law.   Nothing in this section exonerates a public employee from liability for an injury proximately caused by his own negligent or wrongful act or omission.”

Customer Company focuses upon the final sentence of Government Code section 821.8, and argues a question of fact exists as to whether the acts of employees of the City and County were negligent or wrongful.

We agree with the City and County's interpretation.   Both sides agree the officers entered Customer Company's property in order to arrest Nash.   The entry of the officers was authorized by Penal Code section 836.   Under Government Code section 821.8, this authorized entry cannot provide a basis for a cause of action in trespass.

DISPOSITION

The judgment is affirmed.   City and County to recover costs on appeal.

FOOTNOTES

1.   Sometime later several officers found several weapons in Nash's car.

2.   Customer Company contends the trial court, in its October 10, 1989, summary judgment ruling, expressly acknowledged the existence of a triable issue of fact.   The court stated:  “A triable issue of material fact exists as to the situation that existed on June 22, 1987, at approximately 11:00 a.m. and whether it constituted a necessity and/or emergency requiring the use of tear gas at all or in the amounts utilized.”   However, the court then went on to grant the city's motion for summary judgment on the inverse condemnation cause of action;  finding as a matter of law the actions of the police were a proper exercise of police power to protect public health, safety and welfare.Customer Company argues the trial court abused its discretion by deciding the inverse condemnation issue.   We disagree.   The court, in a subsequent order reasoned:  “The Court has previously found that the actions of defendant CITY were a proper exercise of police power․  This finding by necessity includes a finding of emergency.   The presence of an emergency negates the remaining causes of action for inverse condemnation and 42 U.S.[C.] 1983 against the CITY.”  (Emphasis added.)   This latter order clarifies the court's earlier pronouncement;  the court found no issue of fact as to whether an emergency existed.

3.   Article I, section 13, of the Minnesota Constitution provides:  “Private property shall not be taken, destroyed or damaged for public use without just compensation, first paid or secured.”

4.   Customer Company also argues the present case is analogous to Brummett v. County of Sacramento (1978) 21 Cal.3d 880, 148 Cal.Rptr. 361, 582 P.2d 952, a case in which officers, not a third party, caused the damage suffered by plaintiff.   In Brummett police officers chasing a suspected felon crashed into plaintiff's truck.   The court considered immunity under Vehicle Code section 17001, a limited immunity, and found a question of fact as to whether the officers' conduct violated the boundaries of due care.  (Id. at pp. 886–887, 148 Cal.Rptr. 361, 582 P.2d 952.)   In the present case, Government Code section 820.2 provides complete immunity for discretionary actions, not a limited immunity as the court in Brummett considered.

5.   Bernasconi's fellow officer, who was riding in the car at the time, testified after Acevedo pulled into the parking lot, Bernasconi said, “Oh we committed.   He [Acevedo] committed us.”   Bernasconi then pulled in behind Acevedo's vehicle.

RAYE, Associate Justice.

SIMS, Acting P.J., and NICHOLSON, J., concur.