Olango v. City of EL Cajon
| Decision Date | 28 June 2021 |
| Docket Number | D076752 |
| Court | California Court of Appeals Court of Appeals |
| Parties | LUCY OLANGO et al., Plaintiffs and Appellants, v. CITY OF EL CAJON et al., Defendants and Appellants. |
NOT TO BE PUBLISHED
APPEALS from a judgment of the Superior Court of San Diego County, Nos. 37-2017- 00005331-CU-PO-CTL, 37-2018- 00036420-CU-PO-CTL Kenneth J. Medel, Judge. Affirmed.
Cochran Firm, Brian T. Dunn; Gilleon Law Firm and James C Mitchell for Plaintiffs and Appellants.
Daley & Heft, Lee H. Roistacher, Mitchell D. Dean and Heather E. Paradis for Defendants and Appellants.
City of El Cajon Police Officer Richard Gonsalves fatally shot Alfred Olango after Olango refused to take his hand out of his pocket and then pulled out a metal object, stood in a shooting stance, and pointed the object at Officer Gonsalves's head. Although the object closely resembled a gun, it turned out to be a vape device. Olango's sister Lucy Olango (Lucy), witnessed this tragic event.[1]
Lucy and Olango's wife and daughter sued the City of El Cajon (City) and Officer Gonsalves. Olango's wife and daughter brought a wrongful death claim alleging negligence. Lucy filed a separate complaint asserting three causes of action: (1) negligent infliction of emotional distress; (2) negligence in retaining, supervising, and training Officer Gonsalves; and (3) breach of mandatory statutory duty by retaining Officer Gonsalves. The latter two claims were against only the City. The court sustained the City's demurrer on these two claims.
Thus, plaintiffs' consolidated case against Officer Gonsalves and the City went to a jury trial on negligence and negligent infliction of emotional distress theories. The parties agreed that to prevail on these theories, plaintiffs were required to prove Officer Gonsalves's use of deadly force was unreasonable under all the circumstances known to him at the time. (Hayes v. County of San Diego (2013) 57 Cal.4th 622, 629 (Hayes).)
At trial, the jury heard from eyewitnesses and saw videos of a portion of the incident, including the shooting. The main disagreement between the parties was whether Officer Gonsalves's actions were reasonable in light of the totality of the circumstances. Both sets of parties presented a police procedures expert. Plaintiffs' expert was not critical of Officer Gonsalves's decision to fire his weapon at the moment he did, but said his tactical decisions before the shooting were unreasonable and led to the deadly shooting. Defendants' expert said Officer Gonsalves's actions were reasonable and met professional standards before and at the point of the shooting.
After considering the evidence and arguments, the jury unanimously found plaintiffs did not meet their burden to prove Gonsalves was negligent, and the court entered judgment in defendants' favor.
On appeal, plaintiffs do not dispute that substantial evidence supported the jury's finding that Officer Gonsalves acted reasonably and was not negligent. But they contend the court erred by overruling their objections to certain testimony by two witnesses: (1) a defense toxicology expert who testified that Olango was under the influence of a toxic level of cocaine when the shooting occurred; and (2) a witness who observed Olango's conduct a few minutes before the shooting. We conclude the court acted within its discretion in admitting this evidence, and to the extent some portion of the bystander witness testimony should have been excluded, the outcome would have been the same and thus there is no basis to reverse the judgment.
Lucy also contends the court erred in sustaining the City's demurrer on her breach of mandatory duty and negligent training/retention claims. Based on the jury's finding that Officer Gonsalves was not negligent, Lucy could not have prevailed on these claims and thus her challenges to the demurrer ruling are unavailing.
Based on these conclusions, we do not reach defendants' cross-appeal as to whether a duty was owed to Lucy for negligent infliction of emotional distress based on her witnessing the shooting.
In September 2017, at about 6:30 a.m., Olango's acquaintance, LL, [2] saw Olango at a convenience store buying coffee. She thought he appeared fine.
About 90 minutes later, at about 8:00 a.m., Olango arrived at Lucy's apartment while she was still in bed. He said hello and that he loved her. He was acting normal and seemed fine. Lucy then went back to bed for about 20 to 30 minutes. Olango frequently visited Lucy and sometimes stayed overnight.
At about 8:30 a.m., Lucy got up because she heard Olango pacing around the apartment, opening and closing doors. He was breathing hard and sniffling, and said he was scared. Lucy asked if he was sick or had taken drugs, but he denied both. Olango was also smoking cigarettes, although he knew Lucy was allergic and did not permit smoking in her apartment. Lucy opened the windows and then left her apartment for about 15 to 20 minutes to run an errand.
Although Lucy did not know at the time, Olango's very close friend had committed suicide a few days earlier, and the funeral was scheduled for that day. One day earlier, Olango had briefly stopped by his wife's house just to say he loved her and his daughter. Olango's wife thought he was “acting strange” and “weird” that day.
When Lucy got home from her errand, she saw Olango had closed the windows and blinds. Olango said he was scared because people were following him. Lucy told him he was safe and no one was following him. Olango was still sniffling and sweating profusely. Lucy had never seen him acting like that, and thought Olango had used some type of drug.
After several hours, at about 1 p.m., Lucy called 911 and told the operator her brother needed help and was acting mentally unstable. She said Olango was sweating profusely and she had never seen him behave like this before. She said he thought people were following him. She told the dispatcher that Olango was not armed.
When police officers did not initially respond to the call, Lucy became concerned because she needed to be at work by about 2:00 p.m. and did not want to leave Olango alone. Lucy worked as a medical assistant at a mental health facility.
At some point after her 911 call, Lucy realized Olango was no longer in the apartment. He had left his cell phone, and his car was still parked at her complex. At about 1:40 p.m., she got in her car to drive to work.
As she was driving, she saw Olango walking in traffic on a nearby street. She testified he looked “scared” and was moving “erratically.” She was afraid he would get hit by a car because it is a “busy, busy, busy” road, and she told him to get out of the street. When he did not respond, Lucy again called 911, and then stopped her car and got out.
Lucy started walking with her brother or just behind him, pleading with him to get out of the street. He did not respond and continued to walk in traffic, looking behind him as if he thought someone was following him. Cars were honking at him and it appeared to Lucy that he did not care whether he would be hit by a car. About 15 minutes later, Lucy again called 911, telling the operator that Olango was still acting erratically and was walking in the street and almost got hit by cars. She said she thought he needed to be placed on a section 5150 mental health hold. (See Welf. & Inst. Code § 5150.)
At trial, over plaintiffs' objections, the jury heard testimony from two other witnesses who also saw Olango walking in traffic: CC (a woman who was driving a car in the area) and LL (Olango's acquaintance who had seen him earlier that morning at the convenience store). Both witnesses thought Olango appeared out of control and was acting strangely. LL said Olango acted as if he was “out of his mind” and was “talking crazy, ” running back and forth in and out of the street. She thought he was on drugs. CC testified Olango was screaming and yelling with a “crazed” look in his “wide and bloodshot” eyes. She said she thought Olango had a gun and was concerned he might try to kill her or someone else.[3]
At about the same time that CC was observing Olango (about 2:05 p.m.), two responding police cars pulled into a nearby gas station, each with one officer in the vehicle: Officer Gonsalves and Officer Josh McDaniel. Officer McDaniel was the primary responding officer because the location was within his geographical sector of responsibility. The officers understood from dispatch that a man's sister had called because she believed the man was suffering from a mental illness or mental crisis and needed help, including a possible section 5150 hold. The officers were told to look for a Black male, walking in traffic and acting strangely.
Lucy saw the officers and ran over to them. She testified she first spoke with Officer Gonsalves and then spoke with Officer McDaniel. However, the officers testified she spoke only with Officer McDaniel, who had stepped out of his vehicle, and that Officer Gonsalves listened to the first part of the conversation through his open window while remaining in his vehicle. Officer Gonsalves said he heard Lucy tell Officer McDaniel her brother was “not acting right.” After Lucy pointed to the general area where she last saw Olango, Officer Gonsalves told Officer McDaniel he would go look for him. Officer Gonsalves testified he was concerned for Olango's safety:
While Officer Gonsalves was looking for Olango, Officer McDaniel continued to talk with Lucy. Lucy told Officer McDaniel that Olango was walking in and...
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