Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. RGO6254229
NEEDHAM, J.
Wang Jiaqing and Zhang Baozhen appeal from a judgment of dismissal after an order sustaining respondent City of Albany’s demurrer to their wrongful death complaint without leave to amend. Appellants contend that the court erred in concluding that the City of Albany was immune from liability because it had adopted a vehicle pursuit policy (Policy) under Vehicle Code section 17004.7. We conclude that the Policy meets the statutory requirements. We also conclude, however, that the trial court erred in taking judicial notice of the date the Policy was adopted, based on the declaration of the City of Albany’s police chief. We therefore reverse the judgment.
Unless otherwise specified, all statutory references are to the Vehicle Code.
I. FACTS AND PROCEDURAL HISTORY
In February 2005, City of Albany police pursued a vehicle driven by a suspect fleeing from a traffic enforcement stop. The high-speed chase proceeded through Albany and into Berkeley, where it ended in a collision that resulted in the death of appellants’ son, Jie Wang.
Appellants filed a wrongful death action against the City of Albany and others. The City of Albany filed a demurrer, contending that it was immune from liability under section 17004.7 because it had adopted a vehicle pursuit policy in compliance with the statute.
After a hearing, the trial court issued its written order on May 18, 2006. The court took judicial notice of the City of Albany’s adoption of its Policy, sustained the demurrer without leave to amend, and dismissed the complaint as to the City of Albany.
This appeal followed.
II. DISCUSSION
In reviewing a dismissal of a complaint following the trial court’s sustaining of a demurrer, we assume the truth of all well-pleaded material facts, as well as those facts that may be implied or inferred from the express allegations. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) We consider as well any matters that may be judicially noticed. (Ibid.) We then determine de novo whether the allegations stated any cause of action as a matter of law. (Ibid.) Here, whether appellants stated a cause of action turns on whether the Policy, purportedly adopted by the City of Albany pursuant to section 17004.7, complies with statutory requirements. This is a question of law (§ 17004.7, subd. (d)), to which we apply a de novo standard of review. (Weiner v. City of San Diego (1991) 229 Cal.App.3d 1203, 1211 (Weiner).)
Appellants contend that the trial court erred in sustaining the demurrer because the Policy does not sufficiently set forth the required procedure for coordinating pursuits with other jurisdictions. Appellants further contend that the court erred in taking judicial notice of the adoption of the Policy. The latter contention has merit. We will nonetheless begin by analyzing the statutory adequacy of the Policy, in order to assist the trial court and the parties in the adjudication of the case after remand.
A. The Policy
Section 17004.7 provides public agencies immunity from civil liability for death or injuries arising from vehicular pursuits by police, if the public agency has adopted a qualifying policy for the safe conduct of such pursuits. Section 17004.7, subdivision (b) reads: “A public agency employing peace officers that adopts a written policy on vehicular pursuits complying with subdivision (c) 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.”
Police officer employees are immune from liability under section 17004.
Subdivision (c) of section 17004.7 sets forth the minimum standards a pursuit policy must meet in order to give rise to immunity. At the time material to this case, subdivision (c) read: “If the public entity has adopted a policy for the safe conduct of vehicular pursuits by peace officers, it shall meet all of the following minimum standards: [¶] (1) It provides that, if available, there be supervisory control of the pursuit. [¶] (2) It provides procedures for designating the primary pursuit vehicle and for determining the total number of vehicles to be permitted to participate at one time in the pursuit. [¶] (3) It provides procedures for coordinating operations with other jurisdictions. [¶] (4) It provides guidelines for determining when the interests of public safety and effective law enforcement justify a vehicular pursuit and when a vehicular pursuit should not be initiated or should be terminated.” (Italics added.)
Section 17004.7 was amended in 2005 and, as amended, will become operative on July 1, 2007. (Stats. 2005, ch. 485, § 11.)
The purpose of section 17004.7 is to control officer discretion, preserve the ability of law enforcement to make decisions about when to undertake a pursuit, and expand immunity for law enforcement agencies. (Colvin v. City of Gardena (1992) 11 Cal.App.4th 1270, 1278 (Colvin) [provision is intended to encourage agencies to adopt express guidelines which should reduce the frequency of accidents while leaving to the agencies the law enforcement decisions about when to undertake a pursuit, free of threats of liability]; see Ketchum v. State of California (1998) 62 Cal.App.4th 957, 964-965 (Ketchum).)
Appellants focus our attention on the third paragraph of section 17004.7, subdivision (c), which requires a qualifying pursuit policy to provide “procedures for coordinating operations with other jurisdictions.” (§ 17004.7, subd. (c)(3).) This was particularly important in the matter before us, appellants maintain, because the vehicular chase that ended in the tragic death of appellants’ son involved a pursuit into another jurisdiction (Berkeley).
Appellants contend that the Policy does not set forth procedures for coordinating operations with other jurisdictions under section 17004.7, subdivision (c)(3), instead leaving the matter entirely to the discretion of the pursuing officer as a “driving tactic.” According to appellants, the Policy addresses coordination with other jurisdictions only in part 314.35, which reads: “314.35 PURSUIT DRIVING TACTICS [¶] The decision to use or not use specific driving tactics requires the same assessment of considerations outlined in the factors to be considered concerning pursuit initiation and termination. The following are tactics for units involved in the pursuit: [¶] . . . [¶] (c) Notifying the California Highway Patrol and/or other jurisdictional agency.” To comply with section 17004.7, appellants point out, a pursuit policy must do more than simply advise the pursuing officers to exercise their discretion. (Payne v. City of Perris (1993) 12 Cal.App.4th 1738, 1746-1747 (Payne).)
All further part references are referring to parts of the Policy.
Contrary to appellants’ argument, part 314.35(c) is not the only provision in the Policy that is relevant to coordination with other jurisdictions. The topic is addressed expressly in parts 314.6 (“PURSUITS INTO OTHER JURISDICTIONS”), 314.61 (“ASSUMPTION OF PURSUIT BY ANOTHER AGENCY”), and 314.62 (“PURSUITS EXTENDING INTO THIS DEPARTMENT’S JURISDICTION”).
Part 314.6—aptly titled “PURSUITS INTO OTHER JURISDICTIONS”—reads: “When a pursuit enters another agency’s jurisdiction, the primary officer or supervisor, taking into consideration distance traveled, unfamiliarity with the area, and other pertinent facts, should determine whether or not to request the other agency to assume the pursuit.” (Italics added.)
Part 314.61, entitled “ASSUMPTION OF PURSUIT BY ANOTHER AGENCY,” advises: “Albany units originally involved will discontinue the pursuit when advised that another agency has assumed the pursuit and our assistance is no longer needed. Upon discontinuing the pursuit, the primary unit may proceed upon request, or direction of a supervisor, to the termination point to assist in the investigation. [¶] Notification of a pursuit in progress should not be construed as a request to join the pursuit. Requests to or from another agency to assume a pursuit should be specific.”
Part 314.62 is entitled “PURSUITS EXTENDING INTO THIS DEPARTMENT’S JURISDICTION.” This provision states: “The agency that initiates a pursuit shall be responsible for conducting the pursuit. Units from this department should not join a pursuit unless specifically requested to do so by the agency whose officers are in pursuit. The exception to this is when a single unit from the initiating agency is in pursuit. Under this circumstance, a unit from this department may join the pursuit until sufficient units from the initiating agency join the pursuit. [¶] When a request is made for this department to assist or take over a pursuit from another agency that has entered this department’s jurisdiction, the Watch Commander should consider the following factors: [¶] (a) Ability to maintain the pursuit. [¶] (b) Circumstances serious enough to continue the pursuit. [¶] (c) Adequate staffing to continue the pursuit. [¶] (d) The public safety’s within this jurisdiction. [¶] (e) Safety of the pursuing officers. [¶] The Watch Commander, after consideration of the above factors, may decline to assist in, or assume the other agency’s pursuit. [¶] This department’s assistance to a pursuing agency will terminate at the city limits provided that the pursuing officers have sufficient assistance from other sources. Ongoing participation from this Department may continue only until sufficient assistance is present.”
Parts 314.6, 314.61, and 314.62 require the primary pursuit unit or police supervisory personnel to make relevant decisions in multi-jurisdictional pursuits based on specified criteria. As particularly relevant here, the primary officer or supervisor determines whether to request the other agency to take on the pursuit, based on “distance traveled, unfamiliarity with the area, and other pertinent facts . . . .” (Part 314.6.) Once advised that the other agency has assumed pursuit, Albany units must discontinue, except for the primary unit who may, in coordination with the other jurisdiction or supervisory direction, proceed to the place where the pursuit ends. (Part 314.61.) These guidelines, which offer procedures and factors for officers to consider in the exercise of their discretion, are the types of guidelines contemplated by section 17004.7. (See McGee v. City of Laguna Beach (1997) 56 Cal.App.4th 537, 547 (McGee); Billester v. City of Corona (1994) 26 Cal.App.4th 1107, 1118 (Billester); Alcala v. City of Corcoran (2007) 147 Cal.App.4th 666, 676 (Alcala).)
Appellants mount three arguments in their attempt to show that the Policy is inadequate: (1) part 314.6 does not really address coordination with other jurisdictions as required by section 17004.7, subdivision (c)(3); (2) other cases have upheld policies that set forth more specific guidelines regarding communications; and (3) the Policy does not provide for adequate entity control. Appellants’ arguments are unpersuasive.
1. Applicability of Part 314.6 to Section 17004.7, Subdivision (c)(3)
Appellants argue that the Policy provisions beginning with part 314.6, although labeled “PURSUITS INTO OTHER JURISDICTIONS,” does not actually provide procedures for coordination with other jurisdictions, but merely guidelines as to whether to join in the pursuit of a chase from another jurisdiction. These guidelines, appellants argue, are mandated by subdivision (c)(4) of section 17004.7 as to when to initiate or terminate a pursuit, not a procedure for coordinating operations with other jurisdictions as required by subdivision (c)(3).
Appellants are incorrect. In the first place, part 314.61 does refer to coordination with other jurisdictions. It specifically refers to Albany units discontinuing pursuit when “advised that another agency has assumed the pursuit and our assistance is no longer needed,” although the primary unit may proceed “upon request.” It also refers to “[r]equests to or from another agency to assume a pursuit.” These references suggest communications and coordination between jurisdictions.
Furthermore, the titles of parts 314.6, 314.61, and 314.62 all indicate that the parts apply to pursuits into other jurisdictions, governed by section 17004.7, subdivision (c)(3). Conversely, it is not these parts, but other parts—namely part 314.21 (“WHEN TO INITIATE PURSUIT”) and part 314.22 (“WHEN TO TERMINATE A PURSUIT”)—that explicitly pertain to the initiation and termination of pursuits referenced in section 17004.7, subdivision (c)(4).
Finally, even if parts 314.6, 314.61, and 314.62 have some relevance to initiating or terminating a pursuit under section 17004.7, subdivision (c)(4), they are still relevant to coordinating pursuits with other jurisdictions under section 17004.7, subdivision (c)(3). In interpreting section 17004.7, we give effect to every word, such that subdivision (c)(3) and subdivision (c)(4) each have an independent meaning. (See Garcia v. McCutchen (1997) 16 Cal.4th 469, 476 [every word, phrase, and provision in a statute has meaning and function].) Coordinating pursuits with other jurisdictions under section 17004.7, subdivision (c)(3), and determining when to initiate or terminate a pursuit under section 17004.7, subdivision (c)(4), thus refer to different topics; however, these different topics may be satisfied by common procedures.
2. Communications Procedures
Appellants next contend that the Policy is inadequate because, in their view, a procedure for coordination with other jurisdictions must expressly require someone to be responsible for notifying the other jurisdiction of the pursuit and maintaining communications. (See McGee, supra, 56 Cal.App.4th at p. 546 [pursuit policy providing that officer who initiates pursuit must notify the affected jurisdiction by radio, before entering the jurisdiction if possible, and maintain radio communication with other jurisdiction]; Billester, supra, 26 Cal.App.4th at pp. 1117-1118 [pursuit policy providing that dispatcher notifies affected jurisdiction and specifies whether assistance is requested, and supervisor assures that the affected agency is notified and decides whether to request assistance or agree to other agencies’ requests for assistance]; Alcala, supra, 147 Cal.App.4th at p. 678 [pursuit policy that “contains a detailed section setting forth notification requirements, mechanisms for handling requests for assistance, and the role of supervisors and dispatch when other jurisdictions are involved.”].)
Appellants misconstrue the cases on which they rely. McGee, Billester, and Alcala ruled that the pursuit policies in those cases met the requirements of section 17004.7, subdivision (c). They did not hold that a pursuit policy could meet the statutory requirements only if it was precisely the same as the policies involved in those cases, or that no other pursuit policy could be valid. Rather, the point was that the policies—taken as a whole—provided specific factors for officers to consider in initiating or terminating a pursuit or coordinating with other jurisdictions, as opposed to giving the officers unfettered discretion. (McGee, supra, 56 Cal.App.4th at p. 547; Billester, supra, 26 Cal.App.4th at p. 1118; Alcala, supra, 147 Cal.App.4th at p. 676.) As the court in McGee explained: “There are no magic words that validate or discredit a pursuit policy for purposes of the immunity. We reach our decision based upon the totality of the 20-page Laguna policy, including its communications component, and its repeated emphasis on public and officer safety in balancing the risks of a pursuit against the need to immediately capture an offender. Unlike the inadequate policy in Colvin v. City of Gardena, supra, 11 Cal.App.4th at pages 1281-1282, the Laguna policy includes criteria to give direction to the officer in the field. It is not ‘bereft’ of guidelines, nor does it ‘blatantly eschew’ setting forth appropriate factors. (Id. at p. 1285.)” (McGee, supra, 56 Cal.App.4th at p. 547, italics in original; see Alcala, supra, 147 Cal.App.4th at p. 676 [upholding pursuit police because it “does not stop with generalized statements instructing officers to use good judgment and to weigh the risks involved,” but also “identifies specific criteria designed to provide the guidelines for officers mandated by subdivision (c)(4)”].) As we have explained above, the Policy guides the officer’s exercise of discretion, so that decisions are not the result of unfettered discretion or mere subjective judgments.
In any event, the Policy does, in fact, provide communications procedures, even though subdivision (c)(3) of former section 17004.7 does not expressly require that any particular communication procedures be specified. Provisions in the Policy, applicable to vehicular pursuits generally, do not relegate radio communication to the discretion of the pursuit unit, as appellants suggest, but provide for control by a supervisor (part 314.4), impose responsibility on the watch commander (part 314.41), and include two parts addressing communications in particular (parts 314.5 & 314.51). For example, part 314.51 of the Policy reads: “Upon notification that a pursuit has been initiated, the Communications Center will: [¶] (a) Coordinate pursuit communications of the involved units and personnel. [¶] (b) Ensure that a field supervisor is notified of the pursuit. [¶] (c) Assign an incident number and log all pursuit activities. [¶] (d) Broadcast pursuit updates as well as other pertinent information as necessary. [¶] (e) Notify the Watch Commander as soon as practical.”
Effective 2007, section 17004.7, subdivision (c)(3) expressly addresses the issue of communications procedures.
3. Entity Control
Appellants argue that the Policy does not allow for “entity control” over coordination with other jurisdictions because they do not require that a supervisor be in charge of contacting the other jurisdiction and coordinating a pursuit. (See Payne, supra, 12 Cal.App.4th at pp. 1746-1747 [“The requirement of adoption of a written policy which complies with section 17004.7, subdivision (c) obviously was intended to provide entity control over the pursuing officers during a pursuit.” (Italics added.)].)
Appellants misinterpret the concept of entity control. In Payne, the court concluded that a policy “fails to provide any entity control” if it “merely memorializes the unfettered discretion to initiate or terminate a pursuit or which allows each officer to use his or her own subjective standards for determining what a pursuit should be initiated, continued or terminated . . . .” (Payne, supra, 12 Cal.App.4th at p. 1747.) “To provide effective entity control and thereby possibly reduce the frequency of accidents, the policy must control and channel the pursuing officer’s discretion by providing objective standards by which to evaluate whether the pursuit should be initiated or terminated. At the very least it should instruct and direct the officers on what factors should be considered in deciding whether to pursue the fleeing suspect. [Footnote omitted.]” (Ibid., italics added.) The pursuit policy in Payne, which merely stated “in broad terms that a pursuit should be terminated when in the officer’s judgment continued pursuit poses a serious and unreasonable risk of harm to the public or to the officer,” without providing “any guidance to the officer in how to determine whether the pursuit poses such a risk or what factors should be considered in making that determination,” did not provide entity control. (Id. at pp. 1747-1748.)
The Policy is plainly distinguishable from the pursuit policy that provided no entity control in Payne. The pursuit policy in Payne left the decision to initiate or terminate a pursuit to the officers’ discretion and best judgment, without any specific factors for consideration. (Payne, supra, 12 Cal.App.4th at p. 1746.) The Policy enumerates multiple factors for officers to consider in both the initiation and termination of a pursuit. (See parts 314.21, subds. (a)-(j), 314.22, subds. (a)-(e).)
Specifically as to pursuits into other jurisdictions, the Policy provides for entity control, as it gives officers procedures for such pursuits and requires supervisory oversight based on specific criteria. Part 314.6, entitled “PURSUITS INTO OTHER JURISDICTIONS,” reads: “When a pursuit enters another agency’s jurisdiction, the primary officer or supervisor, taking into consideration distance traveled, unfamiliarity with the area, and other pertinent facts, should determine whether or not to request the other agency to assume the pursuit.” (See also part 314.61 [“Upon discontinuing the pursuit, the primary unit may proceed upon request, or direction of a supervisor, to the termination point to assist in the investigation.”]; part 314.62 [“When a request is made for this department to assist or take over a pursuit from another agency that has entered this department’s jurisdiction, the Watch Commander should consider the following factors: [¶] (a) Ability to maintain the pursuit. [¶] (b) Circumstances serious enough to continue the pursuit. [¶] (c) Adequate staffing to continue the pursuit. [¶] (d) The public safety’s within this jurisdiction. [¶] (e) Safety of the pursuing officers. [¶] The Watch Commander, after consideration of the above factors, may decline to assist in, or assume the other agency’s pursuit.”].)
In addition, the Policy involves supervisory control over pursuits generally, to ensure that the guidelines are followed. Part 314.4, entitled “SUPERVISORY CONTROL AND RESPONSIBILITY,” reads: “It is the policy of this department that available supervisory and management control will be exercised over all motor vehicle pursuits involving department officers. The field supervisor of the officer initiating the pursuit, or if unavailable, the nearest field supervisor will be responsible for the following: [¶] (a) Upon becoming aware of a pursuit, immediately ascertaining all reasonably available information to continuously access the situation in order to ensure that the pursuit is conducted within established department guidelines. [¶] (b) Engaging in the pursuit, when appropriate, to provide on-scene supervision. [¶] (c) Exercising management and control of the pursuit even if not engaged in it. [¶] (d) Ensuring that no more than the number of required police units needed are involved in the pursuit under the guidelines set forth in this policy. [¶] (e) Directing that the pursuit be terminated if, in his/her judgment, it is unjustified to continue the pursuit under the guidelines of this policy. [¶] (f) Ensuring that aircraft are requested if practical. [¶] (g) Ensuring that the proper radio channel is being used. [¶] (h) Preparing post-pursuit critique and analysis of the pursuit for training purposes.” Part 314.41, entitled “WATCH COMMANDER RESPONSIBILITY,” states: “Upon becoming aware that a pursuit has been initiated, the Watch Commander should monitor and continually assess the situation and ensure the pursuit is conducted within the guidelines and requirements of this policy. The Watch Commander has the final responsibility for the coordination, control and termination of a motor vehicle pursuit, and shall be in overall command. [¶] The Watch Commander shall review all pertinent reports for content and forward to the Patrol Division Commander.” (Italics added.) Part 314.5 states that “Radio communications will be conducted on the primary channel, unless instructed otherwise by the Watch Commander.” (Italics added.) Part 314.51 requires the communication center to “[e]nsure that a field supervisor is notified of the pursuit” and to “[n]otify the Watch Commander as soon as practical.” (Italics added.)
Lastly, we conclude that the policy is consistent with the purposes of section 17004.7: to encourage law enforcement agencies to adopt express guidelines that should reduce the frequency of accidents, and to expand immunity to governmental entities. (See Colvin, supra, 11 Cal.App.4th at p. 1278; Ketchum, supra, 62 Cal.App.4th at pp. 964-965.) It is not the goal of section 17004.7 to hinder law enforcement in its ability to do its job. If pursuit policies were required to be so specific as to provide officers with absolute conditions for virtually every conceivable circumstance, situations would play themselves out without police intervention before officers could decipher the appropriate response. (Bryant v. County of Los Angeles (1994) 26 Cal.App.4th 919, 922-923.)
The Policy meets the requirements of section 17004.7, subdivision (c).
The City of Albany requests judicial notice of pursuit policies from other Alameda County jurisdictions. We deny the request, as it is unnecessary to review these other pursuit policies in order to decide the issue before us.
B. Judicial Notice of Declaration of Police Chief
Section 17004.7 provides immunity if a public agency or public entity has “adopted” a written policy on vehicular pursuits. (§ 17004.7, subd. (c).) Appellants’ complaint alleged that, as of the time of the fatal accident, the City of Albany had failed to adopt a vehicle pursuit policy in compliance with the statutory requirements. The City of Albany submitted, in support of its demurrer, a declaration by the City of Albany’s police chief, asserting that the policy attached to the demurrer was the policy in effect on October 21, 2004, a few months before the incident. The trial court took judicial notice of the police chief’s declaration.
Appellants contend that the court erred in taking judicial notice of the declaration. Evidence Code section 452, subdivision (h), permits judicial notice of “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” Appellants contend that the police chief’s assertion of the adoption of the Policy is a matter reasonably subject to dispute and is thus not the proper subject of judicial notice.
In his declaration, the police chief stated on personal knowledge: “2. As the Chief of Police for the City of Albany and pursuant to Albany City Charter § 3.09 and Policy § 106 (true and correct copies of each are attached hereto as exhibit ‘2’), I am the policy maker for the Albany Police Department and I am responsible for adopting all policies regulating the conduct of my officers. During the year 2004, the Albany Police Department completely revised and updated the entire department policy manual, including the Vehicle Pursuit Policy (#314) which was written to not only meet, but exceed the requirements of Vehicle Code § 17004.7. [¶] 3. In particular, the Pursuit Policy #314 (a true and correct copy of which is attached to the demurrer as exhibit ‘1’) was finalized in May, 2004. However, the entire new manual, including the Pursuit Policy #314 was formally adopted and implemented by me effective October 21, 2004.” (Italics added, underscoring in original.)
A vehicle pursuit policy is sufficiently adopted if promulgated by the chief of police. (Brumer v. City of Los Angeles (1994) 24 Cal.App.4th 983, 987 (Brumer) [“A written policy on police pursuits can qualify under Vehicle Code section 17004.7 if promulgated by a city’s chief of police, for a police department is a public agency and a public entity.”].) Thus, the dispute in this matter is not whether the Policy could be adopted by action of the City of Albany’s police department through its chief, but the factual question of the date on which the adoption occurred. Whether the appellant’s dispute in this regard will ultimately be meritorious is immaterial.
The Policy authenticated by the police chief’s declaration bears the words “May 2004 Lexipol LLC” in the footer of each page. It does not state, however, that the Policy was actually adopted as of May 2004; to the contrary, any such inference is negated by the police chief’s authenticating declaration, which stated that May 2004 was not the time of adoption but only the month in which the Policy was finalized. As a result, it is only the police chief’s statement in his declaration that identifies the date of adoption.
The police chief’s assertion that he adopted and implemented the Policy on October 21, 2004, is not the type of fact that is “not reasonably subject to dispute” and “capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy” as required for judicial notice under Evidence Code section 452, subdivision (h). At least on the record before us, there are no “sources of reasonably indisputable accuracy” to which we could refer for “immediate and accurate” confirmation of the police chief’s statement.
Instructive in this regard is Gould v. Maryland Sound Industries, Inc. (1995) 31 Cal.App.4th 1137 (Gould). There, the defendant attempted to have judicial notice taken of the existence of a contract between the parties. The court ruled that subdivision (h) of Evidence Code section 452 permits judicial notice of facts not reasonably subject to dispute and easily verified, including “facts which are widely accepted as established by experts and specialists in the natural, physical, and social sciences which can be verified by reference to treatises, encyclopedias, almanacs and the like or by persons learned in the subject matter.” (Gould, supra, at p. 1145.) The subdivision may also be invoked to take judicial notice of “facts commonly known in a community, such as ownership, easements and control over land.” (Ibid.) The existence of a contract between private parties, the court ruled, is not such a fact. (Ibid.) Nor is the date of the adoption of the pursuit policy.
Respondent argues that, since a pursuit policy is effective if adopted by a police chief or by legislative enactment (see Brumer, supra, 24 Cal.App.4th 983), and judicial notice may be taken of a legislative enactment adopting a pursuit policy (see Weiner, supra, 229 Cal.App.3d 1203), then judicial notice can also be taken of the police chief’s declaration as to the date he adopted the pursuit policy. The argument is unpersuasive. Merely because a pursuit policy can be effective if adopted by the police chief does not mean that judicial notice can be taken of the date of adoption in the police chief’s declaration. The cases on which respondent relies in this regard do not support its position.
In Brumer, plaintiff argued in a summary judgment proceeding that the pursuit policy did not qualify under the statute because it was only adopted by the police chief and was not approved by the police commission or the city counsel. (Brumer, supra, 24 Cal.App.4th at p. 986.) The court disagreed, ruling that a written pursuit policy can qualify under section 17004.7 if promulgated by a city’s police chief, because a police department is a public agency and a public entity. (Id. at p. 987.) Brumer thus addressed only who may adopt the policy; it did not address whether judicial notice could be taken of the police chief’s declaration of the date the policy was adopted.
In Weiner, the court stated in a footnote that the appellate court, and the trial court, took judicial notice of the city’s resolution adopting the pursuit policy and pertinent documents concerning those procedures. The court cited Evidence Code section 452, without specifying any particular subdivision. (Weiner, supra, 229 Cal.App.3d at p. 1211, fn. 4.) There is no indication that the court believed judicial notice could be taken under subdivision (h) of Evidence Code section 452, at issue here. Furthermore, a city resolution is more likely to specify the date of adoption and have some contemporaneous record which, if checked, would confirm the date of the Policy’s adoption. Neither exists in the record before us. Weiner does not suggest that the date of adoption of the Policy was a fact subject to judicial notice under Evidence Code section 452, subdivision (h).
Respondent argues that judicial notice could have been taken under subdivision (b) of Evidence Code section 452, pertaining to “[r]egulations and legislative enactments issued by or under the authority of the United States or any public entity in the United States.” The Policy was not adopted by a “legislative enactment[].” Moreover, although a pursuit policy adopted by a police department may constitute a “regulation” adopted by a “public entity,” only the Policy itself would be subject to judicial notice. The Policy does not set forth the date on which the policy was adopted. There was no basis for the trial court to take judicial notice of that fact. Accordingly, it was not a matter that could be considered in deciding respondent’s demurrer, and without the effective date of the Policy it could not be said that appellants’ complaint failed to state a cause of action as a matter of law. The judgment must therefore be reversed.
We recognize the public interest in resolving matters regarding vehicle pursuit policies expeditiously. It is in respect of this concern that we proceeded in this opinion to analyze the legal sufficiency of the Policy. This public interest, however, does not change the plain language of the judicial notice provisions of the Evidence Code. In this particular case the adoption date of the Policy cannot be established by judicial notice.
III. DISPOSITION
The judgment is reversed and remanded. Costs to appellants.
We concur. JONES, P. J., SIMONS, J.