Filed 1/28/15 Ferreira v. King Taco Restaurant CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION THREE


STEVE FERREIRA,                                                          B252170

         Plaintiff and Appellant,                                        (Los Angeles County
                                                                         Super. Ct. No. BC482738)
         v.

KING TACO RESTAURANT,

         Defendant and Respondent.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Teresa A. Beaudet, Judge. Affirmed.
         Law Offices of Humberto Guizar and Humberto Guizar for Plaintiff and
Appellant.
         Harrington, Foxx, Dubrow & Canter, Dale B. Goldfarb and Daniel E. Kenney for
Defendant and Respondent.
                                        _________________________
       Plaintiff and off-duty Los Angeles County Deputy Sheriff Steve Ferreira appeals
from a judgment following the trial court’s grant of summary judgment in favor of
defendant King Taco Restaurant (the Restaurant) in Ferreira’s action for personal injuries
suffered after he was stabbed in the parking lot while attempting to break up a fight. We
conclude that because Ferreira sought and obtained workers’ compensation benefits as an
off-duty peace officer who was “stabbed in [the] abdomen by [a] suspect” while
“engaging in the apprehension or attempted apprehension of law violators or suspected
law violators,” he is judicially estopped from asserting that he was acting as a private
citizen in order to pursue a civil action. (See Lab. Code, §§ 3600, subd. (a), 3600.2, subd.
(a).) Accordingly, the “firefighter’s rule” bars this action against the Restaurant for
allegedly failing to maintain security on the premises. Therefore, we affirm the
judgment.
                   FACTUAL AND PROCEDURAL BACKGROUND
       1. Facts
       Ferreira was employed as a deputy in the Los Angeles County Sheriff’s
Department on the date of the stabbing incident. A few minutes before 4:00 a.m. on the
morning of February 26, 2011, while off duty, Ferreira was with his nephews and two
other friends when Anthony Cruz Carlin approached them in the parking lot of the
Restaurant and began pushing and shoving Ferreira’s nephews. Carlin began to choke
one of Ferreira’s nephews. Ferreira interceded and held Carlin “in a hold.” Ferreira
released Carlin and told everyone to “ ‘knock it off and get back into the car.’ ”
       Ferreira then noticed Carlin walking in his direction. Carlin stabbed Ferreira with
a knife. After he was stabbed, Ferreira pulled out his badge, told Carlin to “ ‘drop the
knife,’ ” and took steps to arrest Carlin. Ferreira was not carrying his duty weapon.
Ferreira’s friend identified himself as a “deputy sheriff” and thereafter shot Carlin.
       Following the incident, Ferreira was unable to work for nine months. He applied
for workers’ compensation benefits before the Workers’ Compensation Appeals Board




                                              2
(WCAB).1 The application stated the injury occurred when Ferreira was “stabbed in
abdomen by suspect.” The workers’ compensation judge settled the case based upon
stipulations and issued an award.
       2. Proceedings
       Ferreira brought this lawsuit against the Restaurant, alleging the Restaurant was
negligent in failing to provide adequate security to protect its customers. Ferreira sought
damages, medical expenses, and loss of earning capacity in connection with the stabbing
incident.
       The Restaurant filed a summary judgment motion, contending that the firefighter’s
rule barred this action because Ferreira obtained workers’ compensation benefits and
was, therefore, judicially estopped from claiming the stabbing incident was unrelated to
Ferreira’s occupation as a peace officer. The trial court agreed and granted the motion.
       The trial court’s order states: “King Taco invokes the doctrine of judicial estoppel
in light of the fact that Plaintiff made a claim for worker’s compensation benefits arising
out of his injury and was awarded such benefits, and now makes a claim for the same
injuries, contending he was not ‘on the job’ at the time of the injury and therefore the
firefighter’s immunity rule does not apply. The Court finds this is what the doctrine of
judicial estoppel is designed to preclude, and notes the extensive discussion in Hodges [v.
Yarian (1997) 53 Cal.App.4th 973] on the subject of the special benefits that inure to
police officers who are injured in the line of duty, even in situations where they are
technically off-duty at the time of the injury.”
       The trial court entered judgment in favor of the Restaurant. Ferreira’s timely
appeal followed.



1
        Ferreira’s objections to the introduction of the WCAB records were overruled.
The evidentiary rulings are not challenged on appeal. We consider all of the evidence set
forth in the papers, except that to which objections have been made and sustained by the
court, and all inferences reasonably deducible from the evidence. (Code Civ. Proc.,
§ 437c, subd. (c).)

                                              3
                                       DISCUSSION
       1. Standard of Review
       Summary judgment is proper only when the moving party establishes that there is
no triable issue of material fact and, therefore, the moving party is entitled to judgment as
a matter of law. (Code Civ. Proc., § 437c. subd. (c).) The moving party must show that
one or more essential elements of the plaintiff’s cause of action cannot be separately
established or that there is an affirmative defense that bars recovery. (Id., subd. (o)(1),
(2).) In this case, the Restaurant moved on the ground that the firefighter’s rule was a
complete defense to Ferreira’s action.
       We review the trial court’s decision to grant the summary judgment motion
de novo. (Coral Construction, Inc. v. City and County of San Francisco (2010)
50 Cal.4th 315, 336.) We conduct “ ‘an independent assessment of the correctness of the
trial court’s ruling, applying the same legal standard as the trial court in determining
whether there are any genuine issues of material fact or whether the moving party is
entitled to judgment as a matter of law. [Citations.]’ [Citation.]” (Trop v. Sony Pictures
Entertainment, Inc. (2005) 129 Cal.App.4th 1133, 1143.)
       2. The Firefighter’s Rule Defense
       The defense created by the firefighter’s rule limits the duty of care the public owes
to firefighters and police officers. “Under the firefighter’s rule, a member of the public
who negligently starts a fire owes no duty of care to assure that the firefighter who is
summoned to combat the fire is not injured thereby. [Citations.] Nor does a member of
the public whose conduct precipitates the intervention of a police officer owe a duty of
care to the officer with respect to the original negligence that caused the officer’s
intervention. [Citations.]” (Neighbarger v. Irwin Industries, Inc. (1994) 8 Cal.4th 532,
538, fn. omitted.)
       In Hodges v. Yarian, supra, 53 Cal.App.4th 973, the court extended the
firefighter’s rule to an off-duty deputy sheriff who suffered injuries when he shot and
killed a suspected burglar in the deputy’s own apartment building. (Id. at pp. 976-977.)
The deputy sued the managers of his apartment building for failure to address certain

                                              4
security problems. (Id. at p. 977.) Because Hodges was performing off-duty the same
activity he performed on-duty, that is, attempting to effectuate an arrest of the suspect,
the court applied the firefighter’s rule to bar the lawsuit. (Id. at pp. 980-981.) The
Hodges court’s explanation as to why and when the rule applies to an off-duty peace
officer (id. at pp. 978-985) is applicable here in response to the arguments Ferreira raises
to challenge the trial court’s ruling.
       The firefighter’s rule, however, is “hedged about with exceptions.” (Neighbarger
v. Irwin Industries, Inc., supra, 8 Cal.4th at p. 538.) Ferreira raises two statutory
exceptions and one common law exception, discussed post. As shall be discussed, the
Restaurant has met its burden to establish that the firefighter’s rule bars this action.
       3. The Firefighter’s Rule Bars this Action
       Ferreira contends that he has raised several triable issues of fact to the application
of the firefighter’s rule defense in this action. This contention has no merit.
              a. The Doctrine of Judicial Estoppel Prevents Ferreira From Asserting
                  that he Was Not Acting as an Off-Duty Peace Officer
       Ferreira contends that whether he was acting as an off-duty deputy sheriff at the
time he was stabbed is a question of fact that should have been left to the jury. It is
undisputed that Ferreira sought workers’ compensation benefits following the stabbing
incident and stated in that application that the injury occurred when he was “stabbed in
abdomen by suspect.” It is further undisputed that the parties settled the case, and
Ferreira obtained a stipulated award in which he received workers’ compensation
benefits. Nevertheless, Ferreira points to undisputed evidence that he was not summoned
to the scene, he did not identify himself as a deputy sheriff when he attempted to break up
an assault on his nephew, and he was not carrying a weapon. Despite this evidence, the
trial court concluded that because Ferreira obtained workers’ compensation benefits as an
off-duty peace officer (Lab. Code, § 3600.2, subd. (a)), he was judicially estopped from
asserting in this action that he was attempting “to break up a fight as a private citizen.”
We agree with the trial court.


                                               5
          “ ‘ “Judicial estoppel precludes a party from gaining an advantage by taking one
position, and then seeking a second advantage by taking an incompatible position.
[Citations.] The doctrine’s dual goals are to maintain the integrity of the judicial system
and to protect parties from opponents’ unfair strategies. [Citation.] Application of the
doctrine is discretionary.” ’ [Citation.] The doctrine applies when ‘(1) the same party
has taken two positions; (2) the positions were taken in judicial or quasi-judicial
administrative proceedings; (3) the party was successful in asserting the first position
(i.e., the tribunal adopted the position or accepted it as true); (4) the two positions are
totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud,
or mistake.’ [Citations.]” (Aguilar v. Lerner (2004) 32 Cal.4th 974, 986-987; see also
Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 181.) The undisputed facts
establish all five elements of judicial estoppel.
          The position Ferreira asserts in this action, that is, he was acting as a private
citizen, is different than the position taken in the WCAB proceedings in which he sought
workers’ compensation benefits as an off-duty peace officer. In his claim for workers’
compensation benefits, Ferreira invoked an exception to the workers’ compensation laws
for off-duty peace officers who are injured outside the workplace and outside assigned
working hours. (Lab. Code, § 3600.2; see Hodges v. Yarian, supra, 53 Cal.App.4th at
p. 979, fn. 7.) Off-duty peace officers may arrest lawbreakers at any time and are entitled
to compensation whenever the officer “is injured, dies, or is disabled from performing his
duties as a peace officer by reason of engaging in the apprehension or attempted
apprehension of law violators or suspected law violators, or protection or preservation of
life or property, or the preservation of the peace anywhere in this state, including the
local jurisdiction in which he is employed . . . .” (Lab. Code, § 3600.2, subd. (a), italics
added.) Any such injury “shall be deemed to have arisen out of and been sustained in the
course of employment for purposes of workers’ compensation and all other benefits.”
(Ibid.)
          Ferreira has taken these divergent positions in judicial or quasi-judicial
administrative proceedings.

                                                 6
       Ferreira was successful in asserting his position in the WCAB proceedings.
Ferreira obtained workers’ compensation benefits based upon a stipulated award. Thus,
the workers’ compensation judge accepted his position that he was entitled to benefits
under the exception for an off-duty peace officer. (Lab. Code, § 3600.2, subd. (a).)
       The two positions are totally inconsistent. To obtain workers’ compensation
benefits, Ferreira had to suffer his injury “by reason of engaging in the apprehension or
attempted apprehension of law violators or suspected law violators, or protection or
preservation of life or property, or the preservation of the peace.” (Lab. Code, § 3600.2,
subd. (a).) If he were acting as a private citizen, Ferreira would not have met this
requirement and would not have been entitled to workers’ compensation benefits.2
(Hodges v. Yarian, supra, 53 Cal.App.4th at pp. 981-982.) As the Hodges court
recognized, peace officers receive special public compensation for dangers associated
with their occupation, and since residents of Los Angeles County have already been taxed
to provide these and other special benefits for deputy sheriffs, they are entitled to the
benefit of the cost-spreading aspect of the public compensation system and should not
have to pay again for injuries that are compensable in that system. (See Ibid.; see also
Neighbarger v. Irwin Industries, Inc., supra, 8 Cal.4th at pp. 542-543 [“When the
firefighter is publicly employed, the public, having secured the services of the firefighter
by taxing itself, stands in the shoes of the person who hires a contractor to cure a
dangerous condition. In effect, the public has purchased exoneration from the duty of
care and should not have to pay twice, through taxation and through individual liability,
for that service.”].)3


2
       Ferreira also maintains throughout his brief that he was injured before he
apprehended or attempted to apprehend the suspect. This argument is inconsistent with
his application for workers’ compensation benefits in which he stated the injury occurred
when he was stabbed by a suspect.
3
      Ferreira distinguishes his actions from the actions of the off-duty officer in Hodges
because unlike Hodges, Ferreira did not identify himself as a peace officer to the suspect
when he had him in a “hold” or any time before the suspect stabbed Ferreira. We do not
read Hodges as requiring in all circumstances that the off-duty peace officer must identify
                                              7
       Ferreira cites Mariin v. Fleur, Inc. (Mich.App. 1995) 528 N.W.2d 218, affirmed
by the Michigan Supreme Court in Gibbons v. Caraway (Mich. 1997) 565 N.W.2d 663,
for the proposition that the firefighter’s rule does not bar a civil action brought by an off-
duty police officer socializing at a bar. In Mariin, the off-duty police officer was
attacked by a patron whom he previously had arrested. The firefighter’s rule was not a
defense to a lawsuit brought by the off-duty police officer against the bar because the
police officer’s injuries did not arise from his police duties. (Mariin, supra, at p. 220,
affd. in Gibbons, supra, at pp. 665-669.)
       Although not specifically addressed in Mariin, the Michigan Supreme Court in
Gibbons acknowledged that the off-duty police officer had obtained workers’
compensation benefits for his injuries, but the court did not consider the receipt of
benefits dispositive on the issue of whether the firefighter’s rule barred the civil action.
(Gibbons v. Caraway, supra, 565 N.W.2d at p. 669.) The court reasoned the workers’
compensation standard of acting within the “course and scope of employment,” is much
broader than the firefighter’s rule, which bars a civil action if the alleged injuries stem
“directly from the performance of police or firefighting duties in the context of the
relevant incident.” (Ibid.) We are not bound by out-of-state authority, but here the
receipt of workers’ compensation benefits is dispositive because Ferreira sought benefits
under Labor Code section 3600.2, subdivision (a), which necessarily requires the off-duty
peace officer to be performing peace officer duties. Ferreira sought workers’
compensation benefits because his injuries were sustained while apprehending a suspect,
the same activities that he would have performed while on-duty.



himself as a peace officer in order to invoke the firefighter’s rule as a defense to a lawsuit
brought by an off-duty peace officer injured while attempting to apprehend a suspect.
The Hodges court considered these facts significant in determining whether the off-duty
peace officer was performing the same activity he would have performed on duty. In any
event, unlike the off-duty peace officer in Hodges, Ferreira obtained workers’
compensation benefits for injuries sustained while performing as a peace officer to
apprehend a suspect. (See Hodges v. Yarian, supra, 53 Cal.App.4th at pp. 981-982.)

                                              8
       Finally, there is no showing that Ferreira’s position in the WCAB proceedings was
the product of ignorance, fraud, or mistake.
       In sum, the doctrine of judicial estoppel forecloses any attempt by Ferreira to
avoid the firefighter’s rule, unless an exception applies. As shall be discussed, Ferreira
has not raised a triable issue of fact that an exception to the firefighter’s rule applies.
              b. Exceptions to the Firefighter’s Rule Are Not Applicable
       Ferreira contends that even if the firefighter’s rule applies, he has raised a triable
issue of fact as to either the two statutory exceptions or the common law exception. The
statutory exceptions Ferreira relies on are codified in Civil Code section 1714.9,
subdivision (a): “Notwithstanding statutory or decisional law to the contrary, any person
is responsible . . . for any injury occasioned to [a peace officer] by the want of ordinary
care or skill in the management of the person’s property . . . in any of the following
situations: [¶] (1) Where the conduct causing the injury occurs after the person knows or
should have known of the presence of the peace officer . . . . [¶] (2) Where the conduct
causing injury violates a statute, ordinance, or regulation, and the conduct causing injury
was itself not the event that precipitated either the response or presence of the peace
officer . . . .” (Id., subd. (a)(1) & (2).) The common law exception Ferreira invokes is
referred to as the “independent cause exception,” which applies when the plaintiff’s
injuries were not caused by an act of negligence that prompted the plaintiff to be present
at the time and place where the injuries were sustained. (See Donohue v. San Francisco
Housing Authority (1993) 16 Cal.App.4th 658, 663 (Donohue).)
                      (1).   Civil Code Section 1714.9, Subdivision (a)(1) Does Not Apply
       Ferreira contends the evidence supports the application of the exception in Civil
Code section 1714.9, subdivision (a)(1). For this exception to apply, the defendant must
commit an act of negligence injuring a peace officer “after the person knows or should
have known of the presence of the peace officer . . . .” (Civ. Code, § 1714.9, subd. (a)(1),
italics added.) This exception applies, for example, in an action by a police officer based
upon the negligent conduct of a fleeing suspect, as a result of whose negligence the
officer is involved in an automobile accident during the pursuit. (See Seibert Security

                                               9
Services, Inc. v. Superior Court (1993) 18 Cal.App.4th 394, 407-410 [explaining the
statutory exception but concluding it was inapplicable].)
       Ferreira does not specifically address the disputed facts to support this exception,
or present argument and legal authority to support his position. Civil Code section
1714.9, subdivision (a)(1) does not apply because Ferreira has presented no facts that the
Restaurant knew or should have known of his presence on the premises as a peace
officer. (See Hodges v. Yarian, supra, 53 Cal.App.4th at p. 985 [rejecting statutory
exception invoked against apartment owner because there was no showing “that the
‘person(s)’ he would hold responsible ‘knew or should have known’ of his presence on
the premises as a ‘peace officer.’ ”].) As a proponent of the exception to the firefighter’s
rule, Ferreira bore the burden of producing evidence to raise a triable issue of fact. (See
Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851.)
                     (2).   Civil Code Section 1714.9, Subdivision (a)(2) Does Not Apply
       Ferreira next contends “the evidence in this case supports the application” of the
exception in Civil Code section 1714.9, subdivision (a)(2) without further identifying the
disputed facts and the supporting evidence. “Subdivision (a)(2) of Civil Code section
1714.9 sets forth the exception for injury caused by violation of laws enacted for the
protection of public safety members . . . [and] it expressly includes resisting arrest and
similar statutes.” (Calatayud v. State of California (1998) 18 Cal.4th 1057, 1067-1068.)
This exception applies if “the conduct causing injury was itself not the event that
precipitated either the response or presence of the [plaintiff].” (Civ. Code, § 1714.9,
subd. (a)(2).)
       While Ferreira maintains the conduct causing injury was his presence at the
Restaurant to “buy food,” he stated in his workers’ compensation proceedings that his
injury occurred when he was stabbed by a suspect. The undisputed facts are that when
the assailant attacked his nephew, Ferreira responded in accordance with his training as a
peace officer. The conduct was unrelated to his initial presence at the Restaurant, but the
firefighter’s rule is not simply inapplicable because he was present on the scene by
chance and able to apprehend the suspect. (See Kelhi v. Fitzpatrick (1994)

                                             10
25 Cal.App.4th 1149, 1158-1159.) Thus, the conduct causing injury was the event that
precipitated Ferreira’s response, for which he sought workers’ compensation benefits as
an off-duty peace officer.
                      (3).   Independent Cause Exception Does Not Apply
       Ferreira also invokes the “independent cause exception” to the firefighter’s rule,
contending that he was not at the Restaurant “for any law enforcement reason, but rather,
for the sole purpose of buying food.” (See Donohue, supra, 16 Cal.App.4th 658, 663
[applying independent cause exception]; see also Civ. Code, § 1714.9, subd. (e).) For
this exception to apply, Ferreira’s injuries must not have been caused by an act of
negligence that prompted him to be present at the time and place where the injuries were
sustained. (Donohue, at p. 663.)
       Donohue, supra, 16 Cal.App.4th 658, illustrates the independent cause exception.
In Donohue, a firefighter was injured while conducting a fire safety inspection of a
building owned by the Housing Authority. Specifically, the plaintiff climbed the
stairway to the top floor to ensure there were no fire code violations, and he slipped and
fell on the wet stairs on his way down. (Id. at p. 661.) Because the fire safety inspector
was on the premises to inspect for fire code violations, and not to inspect for slippery
stairs, his injuries were not caused by an act of negligence that prompted his presence in
the building. Thus, the firefighter’s rule did not bar his civil action. (Id. at p. 663.)
Several cases have reached the same result. (See Terry v. Garcia (2003) 109 Cal.App.4th
245, 250-251 [listing cases].) All of the cases invoking the independent cause exception
are based upon the conclusion that the injury was not caused by an act of negligence
(e.g., fire code violation) that prompted the firefighter’s or peace officer’s presence on the
scene. (See Donohue, at p. 663.)
       Ferreira likens his case to Donohue’s because he was not summoned to the
Restaurant to respond to an assault just as Donohue was not at the apartment building to
inspect the slippery stairs that injured him. Ferreira’s situation is dissimilar to
Donohue’s. Ferreira may have been present at the Restaurant for the purpose of buying
food but his reason for being on the premises is irrelevant. The firefighter’s rule applies

                                              11
because Ferreira reacted to the violent assault on his nephew as a peace officer would
have reacted in that situation. The undisputed facts show that Ferreira’s injuries arose
from the act that prompted him to encounter the danger posed, that is, to apprehend a
suspect for which he obtained workers’ compensation benefits as an off-duty peace
officer. Thus, Ferreira’s recovery in this action is barred by the firefighter’s rule.




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                                   DISPOSITION
     The judgment is affirmed. Respondent is entitled to costs on appeal.


     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                              ALDRICH, J.




We concur:




             EDMON, P. J.




             KITCHING, J.




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