Myles v. County of Los Angeles, B198174 (Cal. App. 12/10/2008), B198174

CourtCalifornia Court of Appeals
Decision Date10 December 2008
Docket NumberB198174
PartiesDONALD RAY MYLES II, Plaintiff and Appellant, v. COUNTY OF LOS ANGELES et al., Defendants and Respondents.

Appeal from a judgment of the Superior Court of Los Angeles County, No. BC344600, Rolf M. Treu, Judge. Affirmed.

Noel & Associates and Ian Noel for Plaintiff and Appellant.

Office of the County Counsel, Raymond G. Fortner, Jr., County Counsel, Dennis M. Gonzales, Deputy County Counsel; Greines, Martin, Stein & Richland, Martin Stein and Barbara S. Perry for Defendants and Respondents.

DOI TODD, Acting P. J.

Plaintiff and appellant Donald Ray Myles II appeals from a judgment the trial court entered in favor of defendants and respondents the County of Los Angeles (County), the Los Angeles County Sheriff's Department (Sheriff's Department) and Los Angeles County Sheriff's Deputies Paul Schuerger (Deputy Schuerger) and Armando Orellana (Deputy Orellana) (sometimes collectively defendants) after granting their motion for nonsuit. Appellant contends that the trial court abused its discretion in denying him a continuance before trial. He also contends that the trial erred in granting the nonsuit because he presented substantial evidence supporting the imposition of liability against the County and that he should have been permitted to reopen his case to cure any evidentiary deficiencies.

We affirm. Appellant has failed to provide an adequate record to meet his burden to show any abuse of discretion in denying his continuance request. Moreover, his failure to present any evidence identifying the sheriff's deputies who allegedly shot him was fatal to his claims against the County and the individuals. Finally, appellant's stipulating to the trial court's hearing the motion for nonsuit on the basis of the evidence he presented precludes him from contending that he should have been permitted to offer additional evidence.


The Shooting Incident.

On May 26, 2005, at approximately 10:30 p.m., Brandon Jackson, a long-time acquaintance of appellant's, saw appellant across the street near the intersection of 127th Street and Avalon Boulevard having a conversation with a neighbor known as "Auntie Honey." Jackson was not paying particular attention to appellant, but rather, saw him only peripherally. Appellant had been in the same location for a few minutes earlier that afternoon. As appellant was standing on the sidewalk late that evening and had begun to cross the street toward Jackson, a car with bright lights approached. Jackson saw that appellant's hands were "free swinging" and not in his pockets. He neither saw appellant with a gun nor saw appellant make any aggressive gestures. At the time, Jackson did not realize it was a police car that had approached. He heard "put your hands up" and "freeze" and simultaneously heard shots fired. Jackson saw that appellant had put up his hands at about ear height and had turned around clockwise to the right in response to the commands. He then heard appellant scream and saw him sitting on the ground. At least one bullet hit appellant in the right part of his chest. Individuals who Jackson then saw were law enforcement officers approached appellant carefully; at least one deputy still had his gun drawn and aimed at appellant.

Jackson was then taken to a police station and, after being told he had been a witness to a Sheriff's Department shooting, gave a recorded statement about the incident. As part of that statement, Jackson said that he only heard the shots and did not see any shots being fired. Jackson also said during that statement that appellant's hands were inside a front sweater pocket at some point before he was shot.

Jackson used to be a member of the same gang as appellant, but left that aspect of his life behind when he started his own family. Jackson was on parole at the time he observed appellant being shot. Initially he had been placed on probation for possession of cocaine base for sale, but his probation was revoked and he was sentenced to state prison after being arrested for armed robbery. Although Jackson had many contacts with law enforcement during the past 10 years, he had never had contact with either Deputy Schuerger or Deputy Orellana. He did think that Deputy Schuerger's face was familiar, but could not identify him beyond that.

Appellant's fiancé visited appellant in the hospital the morning after he was shot and saw he was in pain. She helped care for him after he returned home from his three-day hospital stay.

Steve Villarreal, M.D., examined appellant in February 2006; he recommended therapy for the pain of which appellant complained at the wound site and consultation with a psychologist or psychiatrist for appellant's posttraumatic stress disorder symptoms. During the examination appellant indicated to Dr. Villarreal that the sheriff's deputies thought he had a gun.

The Pleadings and Trial.

In August 2005, appellant submitted a claim to the County which was rejected on September 1, 2005. In December 2005, appellant filed his complaint against the County and the Sheriff's Department alleging causes of action for violation of Title 42 United States Code section 1983, assault and battery, false arrest and imprisonment, negligence, conspiracy, and negligent and intentional infliction of emotional distress. The County answered, generally and specifically denying the allegations and asserting multiple affirmative defenses. In July 2006, appellant amended his complaint to add Deputies Schuerger and Orellana as Doe defendants. The County thereafter filed an amended answer, which added a demand for a jury trial, and Deputies Schuerger and Orellana filed a joint answer denying liability.

At a July 10, 2006 case management conference, the trial court set the matter for trial on January 23, 2007. Appellant filed an ex parte application on January 8, 2007 seeking a four-day continuance of the trial date on the ground that he was incarcerated as a result of a parole violation and would not be released until January 27, 2007. Defendants opposed the application on the grounds that they were ready to proceed to trial with their expert and percipient witnesses and that counsel was starting other trials in February 2007 that would occupy his time until May 2007. Following a hearing on January 8, 2007, the trial court denied the application with prejudice for the reasons as stated during the hearing. Appellant thereafter filed a petition for writ of mandate on January 17, 2007 (case No. B196133), which was summarily denied on January 18, 2007.

Jury selection commenced on January 24, 2007 and the jury heard preliminary instructions, appellant's opening statement and witness testimony on January 25, 2007. When trial resumed on the afternoon of January 26, 2007, appellant's scheduled witnesses did not appear. Although defendants were ready to proceed, they did not wish to call witnesses until moving for nonsuit on the issue of liability. But defendants acknowledged they could not move for nonsuit until appellant rested. Because the remaining witness would testify only as to damages, appellant stipulated that no further evidence would be adduced and opposed the motion on the basis of evidence already submitted. Accordingly, out of the presence of the jury, defendants moved for nonsuit on the grounds that there was no evidence identifying the sheriff's deputies involved in the case and no evidence supporting the requisite elements of appellant's multiple causes of action.

Addressing each cause of action independently, the trial court granted the motion in its entirety. It found no evidence to support the fifth cause of action for conspiracy or the sixth cause of action for negligent infliction of emotional distress. With respect to the issue of identification, appellant conceded that the only basis for imposing liability against the County would be the actions of the two deputies on the night in question. Appellant further conceded that it would be a "difficult proposition to even attempt to continue with the case" against the County if the trial court granted the motion for nonsuit with respect to Officers Schuerger and Orellana. The trial court ruled that "[t]he current state of the evidence is that there has been no identification of Officers—or deputies Paul Schuerger and Armando Orellana. As to them, all causes of action are dismissed." Given that ruling, the trial court further found it would be impossible to proceed with the remaining causes of action against the County, since the actions of those deputies were alleged to have been the basis for the County's derivative liability. The trial court thereafter entered judgment in favor of defendants and this appeal followed.1


Appellant challenges the trial court's denial of his request to continue the trial date and its granting the motion for nonsuit. We find no merit to either contention.

I. The Trial Court Acted Within Its Discretion in Denying Appellant's Continuance Request.

We review the trial court's decision to grant or deny a continuance for an abuse of discretion. (Forthmann v. Boyer (2002) 97 Cal.App.4th 977, 984.) "The trial court's exercise of that discretion will be upheld if it is based on a reasoned judgment and complies with legal principles and policies appropriate to the case before the court. [Citation.] A reviewing court may not disturb the exercise of discretion by a trial court in the absence of a clear abuse thereof appearing in the record. [Citation.] The burden rests on the complaining party to demonstrate from the record that such an abuse has occurred. [Citation.]" (Ibid.; accord, Mahoney v. Southland Mental Health Associates Medical Group (1990) 223 Cal.App.3d 167, 170-171.)

Appellant contends that the trial court abused its discretion in denying his continuance request, as he would have been the best...

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