Court of Appeal:
Opinion Says Dispute With Neighbor Was a Private Matter
By a MetNews Staff Writer
Conclusory allegations pinning blame on the California Highway Patrol for a non-fatal shooting by one of its deputies while drunk and off-duty did not suffice, the Court of Appeal for this district held yesterday, affirming a judgment of dismissal which followed the sustaining of demurrers without leave to amend.
Justice Kenneth Yegan of Div. Six wrote the opinion, which was not certified for publication. It upholds a judgment by Ventura Superior Court Judge Mark S. Borrell in an action brought by shooting victim Sorin Popescu and his wife and children against the CHP, which employed the shooter, Trever Dalton, at the time of the Dec. 5, 2017 incident. Dalton was allegedly lurking on the premises of Popescu and his wife, who were neighbors; was ordered by Popescu to leave; threw an empty beer can at him, then went home, got a gun, and shot the victim once, in the back.
The complaint against the CHP and others alleged assault and battery, intentional and negligent infliction of emotional distress, negligence, negligent supervision, training and discipline, violation of Civil Code §52.1 (the “Bane Act,” a state civil rights statute) and 42 U.S.C. §1983 (a federal civil rights statute).
The plaintiffs alleged vicarious responsibility for Dalton’s acts, asserting that his carrying of a concealed firearm, announcing during the tiff that he was a police officer, photographing of the license plate on Popescu’s car and issuance of commands, coupled with an existing state of emergency in light of the Thomas Fire which technically rendered officers on-duty at all times, indicated he was acting in the scope and course of his employment.
Yegan disagreed, saying:
“The question here is whether appellants have sufficiently alleged a causal nexus between Dalton’s criminal act and his employment as a CHP officer. Like the trial court, we conclude they have not. Dalton’s violence toward Popescu had nothing to do with his employment. Dalton was not driving a CHP car, was not being paid by the CHP at the time of the shooting, and was not enforcing the California Vehicle Code. He was riding his bicycle around a residential neighborhood while drunk.”
Popescu insisted that in light of the emergency, Dalton was technically on duty. Yegan responded that whether he was on-duty or off-duty was not issue, but whether his conduct had anything to do with his responsibilities as an officer and, he declared, they did not.
A governmental entity is immune from liability in the absence of a violation of statute, Yegan said, pointing out:
“No statute imposes direct liability on the CHP or its supervisory employees for negligence in the training, supervision or discipline of an officer. Similarly, no statute imposes on the CHP a specific duty of care to the general public relating to the training, supervision or discipline of officers.”
He said no special relationship had been created by the CHP with the victims, remarking that the defendants “are not alleged to have encouraged Dalton to harass his neighbors, acted to increase the risk that he would do so, or increased residents’ vulnerability to his violent outbursts.”
The Bane Act, he noted, creates liability on the part of persons who commit constitutional violations under color of authority, not liability on the employing agency. Yegan did not separately discuss the cause of action under 42 U.S.C. §1983.
He went on to say:
“The picture that emerges, even at the pleading state, is clear. Dalton had a drinking problem and was drunk when he shot Popescu. This was a private dispute. That Dalton said he was a cop with a gun does not make the CHP liable for the shooting. The CHP has no liability for a shooting having no causal nexus to CHP duties.”
“And, finally, what we said in People v. McNally (2015)…, bears repetition: firearms and alcohol do not mix.” The case is Popescu v. California Highway Patrol, B306287. In quoting from McNally, he was repeating words from one of his own opinions. In McNally, he quoted those words from his 2013 opinion in People v. Vallejo, in which he remarked:
“Firearms and felons do not mix. Firearms and alcohol do not mix. Firearms and poor judgment do not mix.”
Dalton resigned for the CHP in August 2018.
Div. Six on April 28 of last year summarily denied a writ petition Dalton filed in a bid to block his trial on one count of felony assault with a firearm. He had unsuccessfully sought a mental health diversion, claiming to be suffering from post-traumatic stress disorder.
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