NOT TO BE PUBLISHED IN OFFICIAL REPORTS

OPINION

McKINSTER, J.

Plaintiff and appellant Raelena Boissiere appeals after the trial court granted summary judgment in favor of defendant and respondent County of San Bernardino (the County) on plaintiff's personal injury action. Plaintiff was injured by a vehicle being pursued by sheriff's officers employed by the County. The trial court granted summary judgment as to the County because of the County's established police pursuit policy. Plaintiff urges that summary judgment was not proper because the County's moving papers failed to show by sufficient evidence that the County properly trained its officers annually, as required for immunity. We agree with plaintiff and reverse the judgment.

FACTS AND PROCEDURAL HISTORY

Plaintiff was injured in an automobile collision on February 6, 2008, when her car was struck by one being driven by Wade Stuart Cornell. At the time, Cornell was fleeing from pursuing law enforcement officers, deputies of the San Bernardino County Sheriff's Department (the Sheriff's Department). Plaintiff filed a complaint alleging that Cornell and the County were responsible for her injuries: Cornell by driving recklessly, and the County by negligently pursuing Cornell.

The County filed a motion for summary judgment, alleging immunity under Vehicle Code section 17004.7,1 on the basis of its adoption of a qualified pursuit policy. Plaintiff opposed the motion for summary judgment on the basis that, even though the County had adopted a qualifying pursuit policy, it had failed to demonstrate compliance with the statutory requirement to conduct regular and periodic (annual) training that covers each of the required standards of the pursuit policy. The trial court found that the training described was sufficient to satisfy the immunity statute, and granted summary judgment in favor of the County. Plaintiff appeals from the ensuing judgment.

ANALYSIS

I. Standard of Review

On appeal, we review the order granting summary judgment independently. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860.) The trial court must grant a summary judgment motion when the evidence shows that there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Aguilar, at p. 843.) In making this determination, the court must view the evidence, including all reasonable inferences supported by that evidence, in the light most favorable to the nonmoving party. (Aguilar, at p. 843.) A defendant moving for summary judgment has the burden of producing evidence showing that one or more elements of the plaintiff's cause of action cannot be established, or that there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (o)(2); Aguilar, at pp. 850-851, 854-855.) The burden then shifts to the plaintiff to produce specific facts showing a triable issue as to the cause of action or the defense. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, at pp. 850-851.) Despite the shifting burdens of production, the defendant, as the moving party, always bears the ultimate burden of persuasion as to whether summary judgment is warranted. (Aguilar, at p. 850.)

In reviewing the propriety of an order granting summary judgment, we "apply the same three-step analysis required of the trial court. We begin by identifying the issues framed by the pleadings since it is these allegations to which the motion must respond. We then determine whether the moving party's showing has established facts which justify a judgment in movant's favor. When a summary judgment motion prima facie justifies a judgment, the final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue." (Hernandez v. Modesto Portuguese Pentecost Assn. (1995) 40 Cal.App.4th 1274, 1279.) If there is no triable issue of material fact, "we affirm the summary judgment if it is correct on any legal ground applicable to this case, whether that ground was the legal theory adopted by the trial court or not, and whether it was raised by defendant in the trial court or first addressed on appeal." (Jordan v. Allstate Ins. Co. (2007) 148 Cal.App.4th 1062, 1071.)

II. Step One—Issues Tendered by the Pleadings

For purposes of the instant motion, the issue tendered is whether the County has a complete defense to liability based on its adoption of a proper pursuit policy under section 17004.7. More particularly, both parties agree that the County adopted a new qualifying policy in 2007, but plaintiff disputes whether the County has met the statutory requirement of annual training of the County's officers in all aspects of the policy.

III. Step Two—The County's Showing Did Not Establish Its Entitlement to Judgment in Its Favor

Section 17004.7 provides in subdivision (b)(1) that "[a] public agency employing peace officers that adopts and promulgates a written policy on, and provides regular and periodic training on an annual basis for, vehicular pursuits complying with subdivisions (c) and (d) is immune from liability for civil damages for personal injury to or death of any person or damage to property resulting from the collision of a vehicle being operated by an actual or suspected violator of the law who is being, has been, or believes he or she is being or has been, pursued in a motor vehicle by a peace officer employed by the public entity." Section 17004.7, subdivision (c) contains a comprehensive description of the elements that should be included in a qualifying pursuit policy, including matters such as when to initiate a pursuit, supervisory responsibility for managing and controlling a pursuit, which driving tactics may be authorized during a pursuit, air support, communications, monitoring safety concerns, and determining when to end or discontinue a pursuit. Section 17004.7, subdivision (d) provides that "`regular and periodic training' under this section means annual training that shall include, at a minimum, coverage of each of the subjects and elements set forth in subdivision (c) and that shall comply, at a minimum, with the training guidelines established pursuant to Section 13519.8 of the Penal Code."2

Captain Gregory Bottrell, commander of the training division of the Sheriff's Department, testified at a deposition about the County's pursuit policy. The County adopted a revised pursuit policy in 2007. All the deputies were required to sign a statement acknowledging that they had received, read and understood the new policy.

The officers received ongoing training on the pursuit policy within several other training formats, such as during the basic sheriff's academy, during daily roll call, in a driving skills course, in courses for supervisory personnel, and by other means. However, the testimony adduced in Bottrell's deposition was insufficient to establish that all the officers received training each year on all of the required topics.

The California Commission on Peace Officers Standards of Training (POST) is a state agency, funded by penalty assessments from traffic tickets, which has created its own curriculum and standards for initial and continuing police officer training throughout the state. The Sheriff's Department adheres to the POST training standards.

Captain Bottrell testified that officers are exposed to some aspects of pursuit training in the basic sheriff's academy, periodic "perishable skills" training, vehicle driving training courses, and other training courses.

During the basic academy training course, before an officer is hired at a police agency, 24 hours of the basic academy is devoted to in-vehicle driver training. "And that involves hands-on driving and the experience of being involved in vehicle pursuits and Code 3 driving as it does involve the legal ramifications involving pursuits, et cetera." Of the 24 hours of driver training included in the basic academy, 16 hours are spent in the vehicle and eight hours in a classroom. At least one hour in the classroom is devoted to pursuits and pursuit policies during the basic academy.

The POST commission requires 24 hours of continuing police officer training every two years. Of those 24 hours, 14 are required in "perishable skills," which are described as "hands on basic motor skills . . . that if you don't practice them on a regular basis, you fall out of touch on it, the use of control hold, the ability to shoot accurately, the ability to know when and where to use force and make decisions related to that, even as simple as the tactical communication skills that we've been trained on." Training in these matters developed into a use-of-force training program, which Captain Bottrell also identified as a training program of eight hours every four months (trimester), or 24 hours per year. However, he also identified other specific components of the 14 hours of perishable skills training: Two hours in tactical communication, four hours in arrest control, four hours in firearms, and four hours in driver training.

With respect to the trimester use-of-force training, Captain Bottrell described how booklets of test questions would be distributed to each duty station, and that five or ten minutes during roll call would be devoted to review of one or more of the questions. The use-of-force training, and the accompanying roll-call training, covered "high-risk, low-frequency-type events that police officers get involved in, which include officers-involved shootings and deadly force policy issues, and they also include topics such as investigative techniques and changes in the law, et cetera, probable cause issues, stuff like that. Pursuits and issues related to that number of units involved, when to terminate, et cetera, have been part of that process for over ten years." At roll call, "[s]upervisors train on that information and when they come to the use-of-force program . . . our officers are tested on that, and we have routinely interjected pursuit questions in those roll call training programs." The trimester use-of-force training booklet "runs around 15 to 20 questions and there is usually time in that four-month period for all the questions to be gone over at least once, if not more than once." Captain Bottrell testified that "[n]ot every trimester has a question about vehicle pursuits. My opinion would be in the course of a year, [there would be] maybe two or three questions about pursuits." The trimester roll-call training "is designed to keep [officers] current . . . on a variety of policies across the board that are, again, the high-risk but low-frequency areas." The Sheriff's Department uses the use-of-force trimester and roll-call review format "to bring all training mandates that come down from the State, and . . . over the course of several years it [i.e., the pursuit policy] will probably surface there again."

The four-hour perishable skills course in vehicle operations "included information on pursuits, Code 3 driving and liability. We had a copy of our current . . . pursuit policy available to the officers there, and they also included a hands-on, behind-the-wheel training in the actual skills part of controlling the vehicle in Code 3 driving." About one-half to one hour of the four-hour course was devoted to classroom work, of which about five or ten minutes was spent on the pursuit policy. Less than one-half hour of the driving portion was devoted to the pursuit policy.

A separate driving course existed for the Pursuit Intervention Technique (PIT), a driving maneuver in which a law enforcement vehicle may be used at low speeds to physically strike a pursued vehicle, in an attempt to cause a spin-out. The PIT course is an eight-hour course, with one hour devoted to classroom learning. The PIT course focuses on the use of the PIT maneuver and is not devoted to the pursuit policy in general.

Officers who are promoted to supervisory positions take an 80-hour course which also deals with certain aspects of the pursuit policy, as well as "training in the areas of liability and critical incident management. Also, it covers areas such as employee counseling and employee evaluation."

Captain Bottrell was asked specifically, "Is it the design of the San Bernardino County Sheriff's Department and the training division to insure that each deputy is trained on the pursuit policy every year?" Captain Bottrell replied, "No. It's not the design of our training for that, no."

In short, although some aspects of the pursuit policy are reviewed in "regular periodic" training, there was no evidence to demonstrate that all officers received training on all the required topics each year.

Section 17004.7, subdivision (b)(1) expressly requires the agency to "provide[] regular and periodic training on an annual basis" on the vehicular pursuit policy before the immunity will apply. Captain Bottrell actually denied that the training programs administered by the Sheriff's Department were designed to accomplish that task. Therefore, the trial court erred in finding, as a matter of law, that the Sheriff's Department training programs satisfied the standard of "`Regular and periodic training,'" which means "annual training that shall include, at a minimum, coverage of each of the subjects and elements set forth in subdivision (c) and that shall comply, at a minimum, with the training guidelines established pursuant to Section 13519.8 of the Penal Code." (§ 17004.7, subd. (d).) There was no showing that all of the required topics were covered in any, or cumulatively in all, of the types of training given to sheriff's deputies.

Because the County did not establish that the immunity applied as a matter of law, the judgment in its favor must be reversed. Given the County's failure to make a showing, on undisputed facts, that it was entitled to judgment in its favor, we need not evaluate step three of the analysis: plaintiff's showing in opposition to establish a triable issue of material fact.

DISPOSITION

The evidence produced in favor of the motion for summary judgment was insufficient to establish the County's immunity as a matter of law. The trial court erred in granting summary judgment in favor of the County. Accordingly, the judgment for the County must be reversed. Appellant is awarded her costs on appeal.

We concur:

HOLLENHORST, Acting P. J.

RICHLI, J.