Olango v. City of El Cajon CA4/1 ( 2021 )

Filed 6/28/21 Olango v. City of El Cajon CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
LUCY OLANGO et al., D076752
Plaintiffs and Appellants, (Super. Ct. No. 37-2017-
v. 00005331-CU-PO-CTL;
consolidated with
CITY OF EL CAJON et al., Super. Ct. No. 37-2018-
00036420-CU-PO-CTL)
Defendants and Appellants.
APPEALS from a judgment of the Superior Court of San Diego County,
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
1 We identify Lucy Olango by her first name to avoid confusion with her
brother who has the same last name.
2
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.
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FACTUAL SUMMARY
Day of the Fatal 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.
2 Under governing privacy rules, we refer to witnesses by their initials.
(Cal. Rules of Court, rule 8.90.)
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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
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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
3 We detail CC’s testimony and plaintiffs’ objections to her testimony in
the Discussion section, Part II.C.
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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: “[T]here
[was] a potential for him to get hurt if he was walking in traffic. This is a
very, very busy intersection . . . especially at that . . . time of the day . . . .”
While Officer Gonsalves was looking for Olango, Officer McDaniel
continued to talk with Lucy. Lucy told Officer McDaniel that Olango was
walking in and out of traffic, and he thought people were out to get him, and
this behavior was not normal for Olango. Officer McDaniel asked Lucy if
Olango was schizophrenic, but she denied this. She testified she said that
Olango did not have any diagnosed mental condition, but she thought he was
experiencing a mental crisis and needed help.
Within about five minutes, at about 2:09 p.m. Officer Gonsalves saw
Olango walking in a nearby strip mall parking lot. After making eye contact
with Olango, Officer Gonsalves stopped his car and then got out of the
vehicle. Officer Gonsalves was initially about 40 to 50 feet away from
Olango. The first portion of this encounter was not caught on videotape.
Officer Gonsalves testified that when he first got out of his car, he said
something like, “Hey, buddy, . . . I need to talk to you.” Officer Gonsalves
wanted to keep the conversation “low key,” understanding Olango had not
been acting normal and would see he was in full police uniform and was
driving a police car. At this point, Officer Gonsalves did not have his gun out
or his hand on his gun.
Olango did not respond, and instead immediately put his right hand in
his pocket and started walking backwards. Officer Gonsalves had noticed a
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bulge in Olango’s pocket before he put his hand in his pocket, and became
concerned that Olango had a weapon in his pocket. Officer Gonsalves
testified: “It was obvious that there was something else in his pocket besides
his hand. In law enforcement you are trained at the very beginning of your
career that you always have to account for people’s hands because hands are
what kill. So from the very first minute you step into the police academy
that’s what gets drilled into your head. So anybody that I contact, the very
first thing that I do is look for their hands . . . .”
Officer Gonsalves testified that at that point he decided before he could
speak further to Olango or conduct a mental health evaluation, he needed to
make sure Olango did not have any weapons. Officer Gonsalves began
asking Olango to take his hand out of his pocket. He did so in a normal and
calm voice. Olango did not respond and began backing up and “walking
erratically around the parking lot,” while keeping his hand in his pocket.
Because of Officer Gonsalves’s concern that Olango might have a weapon, the
officer removed his gun from its holster and held it in his left hand pointed
downward against his leg.
Officer Gonsalves radioed his location, and calmly asked the dispatcher
to “ ‘give me the air,’ ” which informs the dispatcher he had a potential
dangerous situation and needed the dispatcher to block all other radio traffic
on the frequency. In seeking to communicate the potentially dangerous
situation, he also radioed that the person was noncompliant and that he has
his hand in his pocket. He was attempting to indirectly communicate with
responding officers, but did not want Olango to know he was calling for help
because he was concerned this might make the situation worse.
Officer Gonsalves continued to ask Olango in a calm manner to take his
hand out of his pocket, and did so on the radio to let the other officers know it
8
was “still a dangerous situation when you get here,” but he did not want to
“get on the radio in earshot of Olango and say something like, you guys need
to hurry up and get here because he’s still got his hand in his pocket and he’s
not taking it out.” He thought it “was more subtle to just keep telling him to
take his hand out of his pocket, but also allow other people to hear that
happening in real time.” He expected Officer McDaniel to arrive “in a matter
of seconds” because he knew Officer McDaniel could hear his radio
broadcasts.
Officer Gonsalves considered that maybe Olango was deaf or did not
know English, so he demonstrated what he needed to do—take his hand out
of his pocket. Olango again did not respond.
Officer Gonsalves saw that Olango was sweating heavily, taking deep
breaths, continuously looking around to his left and right and behind him,
and moving sideways back and forth. Based on his training, Officer
Gonsalves believed that Olango was “deciding to fight or flee.” Officer
Gonsalves was aware there were numerous businesses and people in the
area, and was concerned that if Olango was given the opportunity to run
away, he could threaten bystanders’ safety.
As Officer Gonsalves continued asking Olango to take his hand out of
his pocket, Olango began walking closer to a nearby taco shop, and Officer
Gonsalves followed him there. Officer Gonsalves decided to attempt to
contain Olango in this place (pending the arrival of other officers) because
Olango was now between a truck and a fence at a place where it would be
difficult to run away.
Two videos captured the remaining portions of the incident: one from a
camera on the taco shop showing about 44 seconds of the encounter without
sound (Exhibit 27), and one from a cellphone with sound showing about 15
9
seconds before the shooting (Exhibit 28). The jury viewed these videos and
also saw numerous still images from Exhibit 28.
In one video, Officer Gonsalves is seen walking toward Olango with his
gun down and mirroring Olango’s movements as he walked side to side,
keeping the same distance away from him. At some point, right after Olango
momentarily turned the top portion of his body away from him, Officer
Gonsalves moved his gun from against his leg to a “compressed ready”
position with the gun against his chest pointed outward while repeatedly
telling Olango to remove his hand from his pocket.
As this was occurring, Officer McDaniel arrived and walked to Olango’s
side. Officer McDaniel held out his Taser and moved closer to Olango.
Officer Gonsalves then began pointing his gun straight out to the right of
Olango.
At the same time, Lucy suddenly came behind Officer Gonsalves, and
began yelling and screaming for Olango to put up his hands and take his
hand out of his pocket. Officer Gonsalves momentarily turned around and
told her to “stay back” or “stand back” or “back off.” However, when Officer
Gonsalves turned back toward Olango, he saw Olango had taken his right
hand out of his pocket with a metal object, joined it together with his left
hand, placed his arms together chest high, putting his body into a classic
“ ‘shooter’s stance,’ ” and pointed the metal object directly at Officer
Gonsalves’s head.
10
Both officers thought the metal object was a handgun. The object had a
silver cylinder that looked to Officer McDaniel to be a barrel of a gun. Officer
Gonsalves believed “a barrel of . . . a gun was pointed at [his] face.” Officer
Gonsalves thought he had made “a fatal mistake by taking [his] eyes off”
Olango to respond to Lucy, and he “was going to pay for it with [his] life.”
Officer Gonsalves ducked and then immediately fired his gun “because
[he] thought [he] was about to get killed.” Gonsalves fired four times in rapid
succession, stopping when Olango fell and no longer appeared to pose a
threat. The bullets hit Olango in the right arm, chest, and left shoulder.
Officer McDaniel deployed his Taser at Olango at about the same time. He
did not know if it was Officer Gonsalves or Olango shooting, or both of them.
11
Officer Gonsalves reported shots fired at 2:11 p.m. and requested
medical care for Olango. The officers then saw the object that Olango had
been holding was an 8-inch long vape device with a 3-inch long metal barrel.
When pointed, the metal barrel looks like the barrel of a gun.
Olango died from the gunshot wounds about 90 minutes later at 3:45
p.m. The total time between when Officer Gonsalves first encountered
Olango until he fired the shots was about one and one-half minutes.
Lucy testified she had earlier told the officers that her brother did not
have a weapon, and that she yelled “don’t shoot” him and he has “nothing on
him” when she was standing behind Officer Gonsalves seconds before the
shooting. Both officers denied she said this or that they had been given this
information from dispatch, but they testified it would not have changed their
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approach or tactics because it is “unverifiable information.” Officer
Gonsalves testified that throughout his 25-year career he has been told
“countless times” that someone does not have a weapon when this
information turns out to be not true. Defendants’ expert said that officers are
trained to not rely on dispatch information regarding whether an individual
is armed.
Officer Gonsalves testified he had no intention of threatening or
shooting Olango to get him to remove his hand from his pocket, and acted
only when he believed his own life was threatened. He said that during the
brief encounter he did not consider going to his trunk to retrieve his bean bag
shotgun because he was concerned he might lose sight of Olango and because
carrying this weapon would have required the use of both hands.
Officer Gonsalves and Officer McDaniel testified they did not discuss a
plan before Officer Gonsalves went to look for Olango because they did not
know whether they would find him or what he would be doing if they found
him. Officer McDaniel explained: “[W]e get calls like this every day, several
a day, somebody is in some area behaving abnormally . . . . And quite
frequently we go and look for them and we don’t even find them. And . . . we
[had] no idea what [Olango would be doing if we found him] . . . even [to]
know . . . what a plan would be. [¶] There would be just any number of
possibilities of things that could happen and there is no way we could have a
discussion covering all those possibilities.”
Law Enforcement Experts
Each set of parties presented a police procedures expert. Plaintiffs’
expert, Roger Clark, a 27-year veteran of the Los Angeles County Sheriff’s
Department, testified that Officer Gonsalves acted unreasonably because he
did not adhere to training standards applicable to dealing with persons with
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mental illness or disabilities. He discussed Peace Officer Standards and
Training (POST) and Learning Domain Number 37, which contain
certification standards and relevant training guidelines.
Clark stated that when dealing with a mentally or emotionally
disturbed individual, a police officer should engage in a particular sequence
of events: (1) stabilize and contain the scene (ensure the safety of the
individual and the officer); (2) decompression (“lower the anxieties” of the
individual); (3) communicate in a calm and nonthreatening manner that will
eliminate a panic (fight or flee) response; and (4) resolve the situation
(instruction and obtain compliance). He also said that under the applicable
training guidelines, the officer should first request backup, and the contact
and cover officers should always work together in handling the situation. But
he acknowledged these standards require an officer to first stabilize the scene
to ensure there is nothing hazardous or dangerous, and then once the scene is
stabilized, to reasonably accommodate the person’s disability.
Based on these standards, Clark opined that Officer Gonsalves acted
unreasonably mainly by: (1) starting to look for Olango without first staying
to hear the entire interview with Lucy, particularly Lucy’s claimed denial
that Olango had a gun and Officer McDaniel’s question about whether
Olango was schizophrenic (which Lucy denied); (2) approaching Olango
without first waiting for Officer McDaniel to be at the scene and without first
putting together a tactical plan with Officer McDaniel; (3) failing to slow
down events to preclude the need for a use of force; and (4) failing to retreat
to a place of cover behind some nearby trees once he saw Olango with his
hand in his pocket.
Clark opined that Officer Gonsalves’s decision to approach Olango with
his gun out of the holster might have increased Olango’s anxiety level, and
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his tactical decisions leading to the shooting were unreasonable because
there were “obvious reasonable alternatives.” But Clark acknowledged that
officers are properly trained to use deadly force when the officer has the
objective and reasonable belief that a person poses an immediate threat of
death or serious bodily harm.
Defendants’ expert, Scott Reitz, was a former law enforcement officer
with the Los Angeles Police Department, who had extensive experience in
training law enforcement officers on firearm tactics. He opined that Officer
Gonsalves acted reasonably under the circumstances.
Reitz testified there is no strict protocol for a law enforcement officer
dealing with a mentally impaired individual because every situation is
unique, but he agreed with Clark the first step is always to stabilize the
situation by making it safe. Reitz testified that after Olango put his hand in
his pocket with a bulge at the start of the encounter, the scene was never
stabilized or safe.
Reitz opined that Officer Gonsalves’s decision to approach Olango
before Officer McDaniel arrived was reasonable to assess the safety of the
situation and to protect the public in this busy area where there were many
bystanders. When asked about the possibility that Officer Gonsalves use
nearby trees for cover and stay at a distance, Reitz testified this action may
have been reasonable but the officer’s decision to approach without utilizing
the cover was “perfectly reasonable as well.”
Reitz testified that Officer Gonsalves acted appropriately in using his
body to mirror Olango’s movements and to get Olango into an area of
containment. He said Officer Gonsalves was “keeping a distance. He [was]
continually communicating with Mr. Olango . . . he [was] very calm. He [was]
not yelling. He [was] not pointing any weapon toward him. He [was] not
15
threatening him in any way, shape or form. [H]e [was] giving constant
updates to dispatch for other officers who are in route to understand the
situation before they [have] eyes on the problem . . . . [¶] So he’s doing a
remarkable job of not only containing, but attempting to get Mr. Olango to
comply with his request to remove his hand.”
Reitz said it was reasonable for Officer Gonsalves to have his gun out
at low ready once Olango refused to remove his hand from his pocket, and
that Officer Gonsalves’s actions throughout the incident were “extremely
prudent.” He testified that Olango “took every [option] away the minute he
drew that vape, assumed a combat stance, oriented the vape with the barrel,
closely resembling the muzzle of a firearm, directly at Officer Gonsalves’[s]
head and did so in an extremely rapid fashion.” He said that “any reasonable
officer on scene would have concluded they were about to be shot.” He
testified that when Officer Gonsalves saw Olango go into a shooting stance
with a pointed object that looked like the barrel of a gun, Officer Gonsalves’s
“only option left . . . was deadly force.”
Cocaine Evidence
A toxicology report of a blood draw about 30 minutes after the shooting
(while Olango was still alive) showed Olango had a cocaine blood
concentration level of .08 milligrams per liter and a benzoylecgonine (BZE)
blood concentration level of 3.6 milligrams per liter.
Plaintiffs’ expert testified the .08 milligram level was a relatively low
amount of cocaine and, based solely on the laboratory report, it was not
possible to determine Olango’s cocaine blood level when the shooting occurred
or whether Olango was under the influence of cocaine at that time.
Defendants’ expert, Dr. David Geller, reached a different conclusion
based on his review of the laboratory report and witness deposition
16
testimony. Over plaintiffs’ objections, he opined that Olango had taken a
“massive amount” of cocaine earlier that day, and “to an overwhelming
degree of medical probability” the cocaine continued to affect his behavior
during the minutes and seconds before he was shot. We discuss Dr. Geller’s
opinion in more detail in Discussion section Part II.A.
Verdict
After closing arguments and jury instructions, the court gave the jury a
special verdict form. Although the verdict form is not in the record, the
record reflects the first question was whether plaintiffs proved Officer
Gonsalves was negligent. After a brief deliberation, the jury answered no,
that plaintiffs did not prove Officer Gonsalves was negligent. Based on this
answer, the court entered judgment in defendants’ favor.
DISCUSSION
Plaintiffs contend the court made two evidentiary errors at trial:
(1) admitting the testimony of Dr. Geller, defendants’ toxicology expert; and
(2) admitting the testimony of CC, the witness who saw Olango walking in
traffic near her car minutes before the shooting.
Lucy also contends the court erred in sustaining the City’s demurrer on
her claims involving the City’s negligence and/or breach of mandatory duty
pertaining to its retention, training, and/or supervision of Officer Gonsalves.
We first summarize the negligence standards applicable to a challenged
police shooting because those standards are the touchstone for evaluating
relevancy and prejudicial error issues with respect to the evidentiary
challenges. We next evaluate the two evidentiary contentions. We then
address Lucy’s contentions concerning the court’s demurrer ruling.
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I. Applicable Negligence Law
Under California negligence law, “ ‘peace officers have a duty to act
reasonably when using deadly force’ and . . . ‘[t]he reasonableness of an
officer’s conduct is determined in light of the totality of circumstances,’
including ‘the tactical conduct and decisions leading up to the use of deadly
force.’ ” (Koussaya v. City of Stockton (2020) 54 Cal.App.5th 909, 934
(Koussaya), italics added; Hayes, supra, 57 Cal.4th at pp. 626, 629.) Thus,
“preshooting circumstances might show that an otherwise reasonable use of
deadly force was in fact unreasonable.” (Hayes, at p. 630; Koussaya, at
p. 935; see also Pen. Code, § 835a.)4
If an officer is aware an individual is mentally or emotionally impaired,
the officer should consider this fact in formulating an appropriate response.
(See Deorle v. Rutherford (9th Cir. 2001) 272 F.3d 1272, 1283.) But “ ‘[t]he
“reasonableness” of a particular use of force must be judged from the
perspective of a reasonable officer on the scene, rather than with the 20/20
vision of hindsight.” (Hayes, supra, 57 Cal.4th at p. 632.) We “ ‘ “ ‘must never
allow the theoretical, sanitized world of our imagination to replace the
dangerous and complex world that [police officers] face every day. What
constitutes “reasonable” action may seem quite different to someone facing a
possible assailant than to someone analyzing the question at leisure.’
[Citation.]” [Citation.] Placing the burden of proof on the plaintiff to
establish that an officer’s use of force was unreasonable “gives the police
appropriate maneuvering room in which to make such judgments free from
4 At the time of the 2018 trial, Penal Code section 835a stated police
officers may use reasonable force “to effect [an] arrest, to prevent escape or to
overcome resistance.” Effective January 1, 2020, this code section was
amended to more specifically define the circumstances under which police
officers may use deadly force.
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the need to justify every action in a court of law.” [Citation.]’ ” (Koussaya,
supra, 54 Cal.App.5th at p. 936; Brown v. Ransweiler (2009) 171 Cal.App.4th
516, 528.) Consistent with these principles and the recognition that law
enforcement officers must often make split-second decisions, law enforcement
personnel have “a degree of discretion as to how they choose to address a
particular situation.” (Hayes, at p. 632; Koussaya, at p. 936.)
Further, to the extent the injured or deceased party’s negligent conduct
was a substantial factor in bringing about his or her injuries or death arising
from an officer’s use of force, the comparative fault doctrine reduces the
defendant’s liability for any damages. (Atkins v. Strayhorn (1990) 223
Cal.App.3d 1380, 1395 [“[I]n wrongful death actions, the fault of the decedent
is attributable to the surviving heirs whose recovery must be offset by the
same percentage”]; see Horwich v. Superior Court (1999) 21 Cal.4th 272, 285;
see also Munoz v. City of Union City (2009) 173 Cal.App.4th 199, 201; Munoz
v. City of Union City (2007) 148 Cal.App.4th 173, 184-186; Willis v. City of
Fresno (E.D.Cal. Apr. 14, 2014, No. 1:09-CV-01766-BAM) 2014 WL 1419239;
at *12-*13 (Willis).)
Both experts testified consistent with these concepts, and the parties
agree the court properly instructed the jury on these principles. (See CACI
Nos. 440, 407.) Plaintiffs do not challenge the sufficiency of the evidence to
support the jury’s verdict in the case.
II. Evidentiary Contentions
A. Law Governing Evidentiary Rulings
Only relevant evidence is admissible. (Evid. Code, § 350.)5 Relevant
evidence is evidence having “any tendency in reason to prove or disprove any
5 In Part II of this opinion, statutory references are to the Evidence Code.
19
disputed fact that is of consequence to the determination of the action.”
(§ 210.)
Under section 352, “[a] trial court may exclude otherwise relevant
evidence when its probative value is substantially outweighed by concerns of
undue prejudice, confusion, or consumption of time.” (People v. Scott (2011)
52 Cal.4th 452, 490.) “Evidence is substantially more prejudicial than
probative [citation] if . . . it poses an intolerable ‘risk to the fairness of the
proceedings or the reliability of the outcome’ [citation].” (People v. Waidla
(2000) 22 Cal.4th 690, 724.) “[E]vidence [is] unduly prejudicial when it is of
such nature as to inflame the emotions of the jury, motivating them to use
the information, not to logically evaluate the point upon which it is relevant,
but to reward or punish one side because of the jurors’ emotional reaction.”
(Scott, at p. 491.)
Absent a legal issue, a court has broad discretion in determining
whether evidence is relevant and admissible, and whether evidence should be
excluded under section 352. (Zhou v. Unisource Worldwide (2007) 157
Cal.App.4th 1471, 1476; Geffcken v. D’Andrea (2006) 137 Cal.App.4th 1298,
1307.) We must affirm these rulings unless the court abused this discretion.
(Ibid.) A trial court abuses its discretion if, “in light of the applicable law and
considering all of the relevant circumstances, the court’s decision exceeds the
bounds of reason.” (Coyne v. De Leo (2018) 26 Cal.App.5th 801, 814.) If error
is found, it “is grounds for reversing a judgment only if the party appealing
demonstrates a ‘miscarriage of justice’—that is, that a different result would
have been probable if the error had not occurred.” (Zhou, at p. 1480; San
Diego Gas & Electric Co. v. Schmidt (2014) 228 Cal.App.4th 1280, 1301-
1302.)
20
B. Challenges to Dr. Geller’s Testimony
At trial, plaintiffs moved to exclude all evidence of Olango’s cocaine use
on the day of the shooting as irrelevant, and to preclude defendants’ expert,
Dr. Geller, from offering opinions on this subject.
On appeal, plaintiffs do not challenge the court’s ruling that Olango’s
cocaine use on the day of the shooting was relevant to the disputed issues at
trial. But they argue the court erred in permitting Dr. Geller to testify
because (1) his opinions were based on conjecture and speculation; and (2) his
testimony “created the danger of undue prejudice” and thus should have been
excluded under section 352. We determine the court acted within its
discretion in admitting Dr. Geller’s testimony.
1. Relevant Background Information
At his deposition, Dr. Geller testified “to an overwhelming degree of
medical probability,” Olango’s conduct before the shooting resulted from his
use of a “massive amount of cocaine” earlier that day.
In their motion in limine, plaintiffs moved to exclude Dr. Geller’s
opinion on foundation grounds because Dr. Geller admitted at his deposition
he had no scientific basis to opine on when Olango ingested the cocaine or the
“level of cocaine in Olango’s system at the time of the incident.” Plaintiffs
also argued the cocaine evidence was irrelevant because Officer Gonsalves
did not know Olango had used drugs that day. Plaintiffs additionally
maintained the evidence should be excluded under section 352 because the
jurors would be improperly influenced by Olango’s drug use in evaluating
Officer Gonsalves’s actions and decide the case based solely on the jurors’
“dislike” for drug users.
Defendants opposed the motion. On plaintiffs’ speculation/foundation
arguments, defendants proffered Dr. Geller’s expert report and deposition
21
testimony in which he explained that although he could not determine
Olango’s cocaine blood concentration level when the shooting occurred, this
determination was not necessary to the issue whether Olango was under the
influence of cocaine at that time. Dr. Geller said he could make this
determination based on (1) Olango’s BZE blood concentration level, which
studies show follows peak blood concentrations of cocaine by several hours;
(2) the fact the clinical effect on the brain may persist for many hours after
peak blood concentrations, particularly in a cocaine overdose situation; and
(3) his review of witness deposition testimony reflecting observations of
Olango’s appearance and actions that strongly correlated with toxic-cocaine
symptoms.
On the relevance issue, defendants argued Olango’s cocaine
intoxication at the time of the shooting was probative on several grounds,
including to (1) explain Olango’s unusual behavior and corroborate the
officers’ observations of his erratic behavior; and (2) support defendants’
claims that Olango bore responsibility for his death under the comparative
negligence doctrine.
At the in limine hearing, plaintiffs’ counsel reasserted their written
arguments, and also argued Dr. Geller should not be permitted to discuss his
reliance on witness observations because that is case-specific information
inadmissible under People v. Sanchez (2016) 63 Cal.4th 665, 684 (Sanchez).
The court denied the motion, noting the “evidence of cocaine use is relevant to
the overall picture” and indicating its agreement with defense counsel that
Dr. Geller’s opinions were supported by accepted scientific analysis. The
court acknowledged “there are elements of prejudice” when drug use evidence
is presented, “but unfortunately, the relevance of the information far
outweighs the potential undue prejudicial effect.” As to the Sanchez
22
argument, the court stated it would be “vigilant for the Sanchez issue if the
issue would arise.”
2. Dr. Geller’s Trial Testimony
In his trial testimony, Dr. Geller opined that Olango had “consumed an
inordinately large” or “massive amount” of cocaine on the day that he was
shot, enough to cause “severe poisoning,” and that the cocaine significantly
affected Olango’s behavior before and during his confrontation with Officer
Gonsalves.
Dr. Geller testified he based this conclusion on a combination of the
laboratory results of Olango’s 2:43 p.m. blood draw and a review of Olango’s
behaviors reflected in witness deposition testimony. Essentially, his opinion
was that because Olango had taken such a “massive” cocaine amount in the
morning, the effects of this toxic amount of cocaine on his nervous system and
brain continued throughout the afternoon, including when he was shot.
To explain his opinion about the large amount of cocaine taken earlier,
Dr. Geller testified about Olango’s 3.6 milligrams per liter BZE blood
concentration level, which he said would have mirrored the level of cocaine at
an earlier time. Dr. Geller said that BZE is a downstream cocaine metabolite
produced in the human body following cocaine use. He said that cocaine is
present in the blood for a relatively short time, but cocaine is transformed
into BZE, which is a marker for previous cocaine use. Dr. Geller said that,
“you can look backward from a [BZE] concentration, at a given point in time,
to how much cocaine would have had to be consumed in order to get that
concentration of BZE in the blood.” Relying on peer-reviewed scientific
studies, Dr. Geller said the peak concentration for cocaine occurs relatively
rapidly within 10 or 15 minutes. “But [in these studies] the concentration for
[BZE] typically occurred three to four hours after administration [of the
23
cocaine].” Additionally, “the peak concentration of [BZE] . . . very closely
mirrored what the peak cocaine concentration was. They were within 10
percent of each other . . . . [¶] So what this allows me to say is that in order
to get a specific [BZE] concentration in the blood, you had to have consumed
enough cocaine to have . . . a very similar concentration of cocaine at some
point three or four hours before.”
Based on this information, Dr. Geller opined “to a very high degree of
medical probability that Mr. Olango would have had to consume an amount
of cocaine, on the day that he died[,] that would have been enough to cause
cocaine concentration of at least 3.6 milligrams per liter.” And he testified
that 3.6 milligrams is an “extraordinarily high” cocaine amount.
Dr. Geller then explained that when a person takes such a large
amount of cocaine, the cocaine continues to negatively affect someone’s brain
and cause “toxic carnage” for “quite a number of hours” after the peak blood
concentrations start to decline. When asked whether he had an opinion as to
when Olango’s “peak blood concentration of cocaine was,” Dr. Geller
responded, “I have no real way of telling you that exactly[,]” but his “educated
guess” was “four to five hours prior to [the blood] sample being drawn.” He
based this opinion on (1) Olango’s BZE and cocaine blood concentration levels
at 2:43 p.m.; (2) the deposition testimony of witness LL and Lucy showing
Olango was acting his normal self at about 6:30 a.m. and about 8:00 a.m.; and
(3) Lucy’s deposition testimony that by about 8:30 or 9:00 a.m., he was not
the same person (he was sweating, and became fearful, paranoid, and
hyperactive).
As to Lucy’s deposition testimony, Dr. Geller said her description of
Olango as “profusely sweating” and acting in an agitated manner reflected a
person who was in “deep trouble” and was likely “acutely poisoned by the
24
drug . . . .” He testified that after reviewing the videotape and reading the
witness deposition testimony, and particularly witness CC’s testimony, he
determined Olango’s behaviors and appearance on the afternoon of the
shooting were consistent with someone who is under a toxic level of cocaine,
even if the cocaine was ingested several hours earlier.
3. Analysis
On appeal, plaintiffs argue Dr. Geller’s opinions should have been
excluded because his opinions were based on conjecture and speculation.
“[E]ven when [a] witness qualifies as an expert, he or she does not
possess a carte blanche to express any opinion within the area of expertise.”
(Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th
1108, 1117.) The opinion must be based on facts and reasoned analysis.
“[T]he trial court acts as a gatekeeper to exclude expert opinion testimony
that is (1) based on matter of a type on which an expert may not reasonably
rely, (2) based on reasons unsupported by the material on which the expert
relies, or (3) speculative.” (Sargon Enterprises, Inc. v. University of Southern
California (2012) 55 Cal.4th 747, 771-772 (Sargon); see §§ 801, subd. (b),
802.)
“But courts must also be cautious in excluding expert testimony. The
trial court’s gatekeeping role does not involve choosing between competing
expert opinions.” (Sargon, supra, 55 Cal.4th at p. 772.) “The trial court’s
preliminary determination whether the expert opinion is founded on sound
logic is not a decision on its persuasiveness. Rather, the court must simply
determine whether the matter relied on can provide a reasonable basis for
the opinion or whether that opinion is based on a leap of logic or conjecture.”
(Ibid.) We review a ruling admitting expert testimony for abuse of discretion.
(Id. at p. 773.)
25
The trial court did not abuse its discretion. Dr. Geller’s opinion that
Olango had ingested a “massive amount” of cocaine earlier in the day was
grounded on the laboratory reports showing a .08 milligrams per liter cocaine
concentration level and a 3.6 milligrams per liter BZE blood concentration
level when Olango’s blood was drawn at 2:43 p.m. He cited three scientific
studies showing that the BZE cocaine metabolite mirrors the amount of
cocaine taken several hours earlier. Dr. Geller also explained that when a
person has taken this amount of cocaine, the toxic effects on his behavior can
last several hours. Finally, Dr. Geller relied on the many witnesses who
observed Olango from about 1:00 p.m. to the time of the shooting (2:11 p.m.)
(e.g., Lucy, Officer Gonsalves, and witnesses CC and LL) to conclude Olango
was suffering from cocaine intoxication or cocaine poisoning symptoms (heavy
sweating, wide-eyed staring, paranoia, agitation, hyperactivity, inability to
respond to questions or instructions, poor judgment).
Plaintiffs’ main appellate argument is that Dr. Geller’s opinions lacked
foundation because he admitted he could not make any determinations about
Olango’s cocaine usage based only on the .08 blood concentration level
reflected in the 2:43 p.m. blood draw; admitted he could not determine
Olango’s cocaine blood concentration level during Olango’s encounter with
law enforcement; and said he could give only “an educated guess” as to the
precise time of Olango’s peak cocaine blood concentration level. Based on
these admissions, plaintiffs argue that Dr. Geller’s opinions reflected only
“speculation” and “guesswork.”
The record does not support this argument. Dr. Geller made clear his
conclusion that Olango was under the influence of cocaine when he was shot
was not based on a conclusion about the cocaine blood concentration level at
the time of the shooting (which he admitted he could not determine), but
26
instead was based on the BZE metabolite level in his blood draw (particularly
as compared with the cocaine blood concentration level in the same blood
draw), as well as his knowledge that the effects of ingesting a toxic amount of
cocaine can continue for several hours and on witness observations of
Olango’s appearance and behavior. Dr. Geller testified “[t]he fact that the
cocaine concentration was relatively low at the time of [the blood draw] does
not in any way mean that Mr. Olango was not severely poisoned from cocaine
at the time that he was shot.” The court did not abuse its discretion in
finding Dr. Geller’s opinions were based on sound logic and reasoned
scientific analysis.
Plaintiffs alternatively argue the court erred in denying their section
352 motion to exclude all of the cocaine evidence because its prejudicial
impact greatly outweighed its probative value. In support, plaintiffs do not
suggest that Olango’s cocaine intoxication was not relevant to the disputed
issues.6 They instead argue the evidence had only slight probative value
because “Geller was just guessing” at Olango’s cocaine blood concentration
level. However, we have rejected this contention, explaining Dr. Geller’s
opinions were based on reasoned analysis. Although the jury was entitled to
reject Dr. Geller’s opinions and instead to credit plaintiffs’ expert, there is no
basis to conclude Dr. Geller’s opinions were not probative on the question of
Olango’s cocaine intoxication.
As to prejudice, plaintiffs argue the words used by Dr. Geller to
describe the amount of cocaine taken by Olango (“toxic, inordinate, cocaine
intoxication, acutely poisoned . . . , and drug poisoning”) “inflame[d] the
6 We discuss some of these relevancy grounds in addressing plaintiffs’
challenges to CC’s testimony.
27
emotions of the jury and cause[d] them to prejudge the plaintiffs’ case based
on [Olango’s] use of cocaine . . . .”
The record is unclear whether plaintiffs asserted this specific objection
in the trial proceedings. But even assuming they did, there was no abuse of
discretion. Dr. Geller’s opinions about the amount of cocaine taken by Olango
were necessary to explain why he would have been still suffering from
cocaine intoxication hours after he ingested the drug. Dr. Geller explained
his opinions in a straightforward manner and discussed the scientific basis
for these opinions. There is no reasonable likelihood the words he used to
describe the cocaine amount likely ingested by Olango would have influenced
the jurors to make decisions on emotions rather than the facts.
C. Challenges to CC’s Testimony
1. Background
Plaintiffs moved in limine to exclude the testimony of 13 bystander
witnesses who saw Olango while he was walking in traffic before the officers
arrived that day. Plaintiffs said these witnesses described Olango as “acting
strangely and erratically”; “seemed upset and bothered”; “looked suspicious”;
“jumped” in front of cars; was acting “very odd” and “peculiar”; looked like he
“was trying to get hit by cars”; looked “menacing”; told someone to “ ‘get out of
my face’ ”; looked like he was going to hit someone; was “tensing up” and
“posturing”; appeared to be angry; and “was . . . making ‘jerky motions’ like
he was on [drugs].”
Of particular relevance here, plaintiffs said that one of the witnesses,
CC, testified in her deposition about Olango’s demeanor as follows:
“Mr. Olango crossed through traffic, almost walked into
[her] car, was yelling and screaming, and had his hands in
his pockets; . . . Mr. Olango was sweating profusely, and
had wide, bloodshot eyes and a ‘look of terror’ on his
face; . . . Mr. Olango was acting ‘very strangely,’ was ‘out of
28
control,’ was ‘not well,’ and appeared to be ‘absolutely
crazed’ and ‘dangerous’; . . . Mr. Olango looked like he was
on drugs; . . . [CC believed] Mr. Olango was going to take
her car, shoot her, kill her or someone else, or hurt
someone; . . . [CC believed] that Mr. Olango had a
gun; . . . [CC] was afraid of Mr. Olango, and that Mr.
Olango was the ‘scariest man’; and testimony concerning
the nightmares that [CC] claims to have had a result of
witnessing Mr. Olango’s behavior and demeanor . . . .”
In moving to exclude these 13 witnesses, plaintiffs argued their
observations were not relevant because they were not reported to, or
otherwise known by, Officer Gonsalves before the shooting. They
alternatively argued the evidence should be excluded under section 352
because “there is a significant risk that the jury will improperly rely on
those . . . inflammatory and prejudicial characterizations . . . in determining
whether Officer Gonsalves was justified in shooting Mr. Olango.” Plaintiffs
also argued this testimony would “result in the unnecessary and
unwarranted consumption of time.”
Defendants countered that the testimony was strongly relevant to
(1) corroborate Officer Gonsalves’s perceptions when he encountered Olango;
(2) support that Olango ingested cocaine that day; (3) show Olango may have
been planning a “suicide by cop”; and (4) support defendants’ claim that
Olango’s own negligence contributed to his death. Defendants also
maintained the evidence was necessary because Dr. Geller relied on several
of the witnesses’ observations to formulate his opinions in the case. Citing
Sanchez, supra, 63 Cal.4th 665, defendants’ counsel said that without the
witness testimony, Dr. Geller may be prohibited from providing his opinions
reached based on the witness statements.
At the in limine hearing, the court indicated its intent to deny the
motion. The court agreed with plaintiffs that the evidence was not relevant
29
to Officer Gonsalves’s assessment of the situation if the witness observations
were not reported to him before the shooting. But the court found the
evidence would be relevant on other issues, including to provide a complete
picture of the events to corroborate the officer’s testimony and on
comparative negligence issues. The court said it trusted that the jury would
“be smart enough” to “segregate” the information Officer Gonsalves knew and
did not know before the shooting, and counsel could discuss this issue during
arguments. But the court said it was “not inclined just to blanket-exclude”
this evidence unless it was “unduly confusing.”
Plaintiffs’ counsel responded that if the witness observations are “hours
and hours attenuated in time,” the evidence could not be relevant to
contributory negligence or anything else. The court replied that if the events
did occur “very close in time” they would be strongly relevant to corroborate
the officer’s observations and to rebut testimony that Olango was merely
suffering from mental illness and was not a threat to anyone, “kind of
like . . . [in] [t]he movie Rain Man.”
The court ultimately denied the motion, but said it was “sensitive to
cumulative type of evidence. So I’d like you to make your best strategic
efforts to eliminate the number of those types of witnesses.”
Defendants then decided they would present the testimony of only two
bystander witnesses who saw Olango walking in the street before the officers
arrived: witness CC and Olango’s acquaintance LL (who had also seen him
earlier that morning). Defendants (with plaintiffs’ agreement) presented
both witnesses’ testimony through their videotaped depositions.
Before the jury was shown CC’s deposition video, plaintiffs’ counsel
asked the court to reconsider its decision to allow all of CC’s proffered
testimony: “I know you have ruled on this but I want to make one last plea
30
for mercy on . . . [CC’s] deposition and the part where she says, I thought I
was going to get killed. I got to tell you . . . there is no way, based upon what
she says, that this is a reasonable opinion under the circumstances. And that
is about as inflammatory as you can get. And it just seems to me that that
part of it ought to be out. This is just feeding into this 20/20 hindsight thing.”
Plaintiffs’ other counsel also reasserted his earlier objections that the
evidence was not relevant because CC’s observations were not known to
Officer Gonsalves before the shooting.
After the court overruled these objections, the selected portions of the
deposition video was shown to the jurors, and a transcript of this testimony is
in the record.
In her testimony, CC, a high school guidance counselor, said on the day
of the shooting she was driving to her hair appointment. At about 2:02 or
2:05 p.m. (less than five minutes before Officer Gonsalves first encountered
Olango) she saw Olango “coming in the traffic and he was acting very
strangely, yelling at traffic, out of control . . . . Cars were honking at him and
he was coming for me—he was coming for my car and I will never forget his
eyes. He was crazed and he had his hand in his pocket and I thought he was
going to shoot me. He came at my door and I thought he was going to take
my car or kill me.” She then drove to her hair appointment. She admitted
she saw him only for “seconds.”
CC was then asked to elaborate on what she saw. She responded, “His
eyes were wide, bloodshot. He was screaming and he had a look of
terror . . . and I thought he was going to kill someone. I was scared. I still
have nightmares.” When asked again what Olango was doing when she saw
him, she said, “[H]e had erratic behavior. He was swerving in and out. He
31
was screaming. He was yelling and when he approached me, he had his hand
in his pocket and he was yelling and I . . . was afraid for my life.”
She testified she thought he had a gun in his pocket (but never saw a
gun or a bulge in the pocket) because of “[t]he way he was holding” his hand
in his pocket. When asked again why she thought he had a weapon, she
replied, “I believe that he was not well. [H]e was walking into traffic. [H]e
was crazed, with those eyes. I was very concerned for the man and he was
not well.”
When she was asked for her definition of the word “crazed,” she said,
“somebody that is not well at that moment. [M]y goal in life is to help people
and if I could have helped that man, I would have.” She said she did not
know anything about his history, but “the erratic behavior I witnessed, it just
didn’t seem that he . . . was well at that moment. It wasn’t normal
behavior . . . I suppose that’s my opinion.” She said he “scared” her and was
“screaming at things that weren’t there . . . walking in and out of traffic.”
She said she made eye contact with him, and it was “absolutely horrific.”
When asked how tall he was, she said her “guess” was “[s]ix foot” and that he
weighed about “200 pounds.” When asked whether he appeared to be
“dangerous to you,” CC responded, “He did. Again, I feel that he was not
well.”
She testified that minutes after arriving at her hair appointment, she
heard about the police shooting on the radio. CC did not call the police until
the next day. She said her secretary is married to a detective with the City’s
police department.
After the video was shown and before closing arguments, the court
(outside the jury’s presence) put on the record its rulings as to the parties’
specific relevance and section 352 objections to various portions of CC’s
32
deposition testimony. The court overruled each of the objections asserted by
both plaintiffs and defendants.
In explaining its rulings, the court commented that it believed it was
particularly fair and appropriate to admit all of CC’s testimony because Lucy
was permitted (over defense objections) to testify at length as to her
observations and opinions about her brother’s conduct earlier that day,
including in her statements to 911 operators, even though many of these
statements were not known to Officer Gonsalves. The court said CC’s
“contrary view” would provide the jury with a more complete picture of the
events preceding the shooting, and would be “relevant and corroborative.”
The court also said it found CC’s testimony to be particularly “germane”
because CC’s observations were so similar to Dr. Geller’s description of “what
it looks like to be on cocaine.”7
The next day, the court added that it found the testimony of Dr. Geller,
CC, and LL additionally relevant on causation issues. The court noted that
plaintiffs were required to prove that Officer Gonsalves’s alleged negligence
in failing to select an “alternate means” of approaching and detaining Olango
“caused” his death, and the testimony about Olango’s “crazed behavior” and
the “inordinate amount of cocaine in his system” was relevant to “whether
those alternate means . . . would have had any effect whatsoever on him . . . .”
(Italics added.)
7 Regarding CC’s reference to nightmares, plaintiffs’ counsel noted this
statement had not been designated and had been inadvertently included.
With each counsel’s agreement, the court said it would strike this testimony
and tell the jury not to consider it. The appellate record does not show the
court gave this instruction, but it may have done so during an unreported
portion of the trial. Plaintiffs do not suggest error in this regard.
33
2. Plaintiffs’ Appellate Challenges
a. Relevancy
Plaintiffs contend CC’s testimony was irrelevant because her
observations were not known to Officer Gonsalves before the shooting.
When analyzing the objective reasonableness of an officer’s conduct for
a negligence claim, a factfinder can consider only the circumstances of which
the officer was aware when he used the deadly force. (Hayes v. County of San
Diego (9th Cir. 2013) 736 F.3d 1223, 1232-1233 [applying California
negligence law]; Boyd v. City and County of San Francisco (9th Cir. 2009) 576
F.3d 938, 943-944 (Boyd); Willis, supra, 2014 WL 1419239 at *21; see also
Hayes, supra, 57 Cal.4th at p. 632; Koussaya, supra, 54 Cal.App.5th at
p. 935.) Defendants’ law enforcement expert testified he agreed with this
principle.
But the evidence of a shooting victim’s prior conduct unknown to the
officer can be admissible if it is relevant on another ground. (Boyd, supra,576 F.3d at pp. 943-945; see Willis, supra, 2014 WL 1419239, at *21-*22.)
Thus, if there is a factual dispute as to what occurred at the time, evidence
that the defendant engaged in similar behavior before the incident can be
relevant to support, corroborate, or explain the officer’s version of the events.
(See Boyd, at p. 944; Estate of Casillas v. City of Fresno (E.D.Cal., Feb. 13,
2019, No. 1:16-CV-1042 AWI-SAB) 2019 WL 586747, at *4; Willis, at pp. *21-
*22.) Likewise, the fact that a police shooting victim was intoxicated or
under the influence of drugs may be relevant to corroborate the officer’s
version of how the individual acted before the shooting and/or can be
probative on causation and comparative fault issues. (See Willis, at pp. *21-
*22; see also Woods v. August (N.D.Cal., Mar. 14, 2019, No. 3:15-cv-05666-
WHO) 2019 WL 8105898, at *3 [post-mortem drug tests and toxicology
34
reports admitted because they tended to “make more probable defendants’
assertions that [the decedent] was behaving erratically and appeared to be
under the influence”]; Turner v. County of Kern (E.D.Cal., Feb. 13, 2014, No.
1:11-CV-1366 AWI SKO) 2014 WL 560834, at *2-*3; T.D.W. v. Riverside
County (C.D.Cal., Mar. 11, 2010, No. CV 08-232 CAS (JWJX)) 2010 WL
1006618, at *3.)8
In this case, CC’s testimony was relevant on several grounds even
though her specific observations were not known to Officer Gonsalves.
First, CC’s testimony was relevant to support Dr. Geller’s conclusions
that Olango was under a toxic influence of cocaine at the time of the shooting.
As discussed, Dr. Geller relied on CC’s testimony in reaching his opinions on
the level of Olango’s cocaine intoxication at the time of the shooting, and
under Sanchez, defendants were required to present this foundational
testimony so they could properly elicit Dr. Geller’s opinions. (Sanchez, supra,
63 Cal.4th at p. 684.) On appeal plaintiffs have not challenged the relevancy
of the cocaine intoxication evidence, and we have rejected plaintiffs’
foundation/speculation/prejudice challenges.
Second, CC’s testimony was relevant to explain the nature of Olango’s
actions when Officer Gonsalves first approached him, matters that were
subject to dispute at trial. The first portion of the encounter between Olango
and Officer Gonsalves was not captured on videotape, and Officer Gonsalves
testified that at the very beginning he became highly concerned when he saw
a bulge in Olango’s pocket and Olango would not remove his hand. Minutes
before this occurred, CC observed Olango to be acting in an erratic and
8 If requested, the court may give a limiting instruction that the prior-
conduct evidence is relevant only for specified purposes, but plaintiffs here
did not request this instruction.
35
menacing manner, and she saw he did not appear to be well and appeared to
her to be dangerous. These observations were probative to explain and
corroborate Olango’s condition when Officer Gonsalves first saw him and
place into context Officer Gonsalves’s concerns relating to this condition.
Third, as the court pointed out, the jury heard Lucy’s testimony about
her opinion that Olango appeared mainly to be scared and heard Lucy’s many
statements to 911 dispatch that were not communicated to Officer Gonsalves.
Thus, CC’s testimony was relevant to balance this testimony and provide the
jury with a more complete picture of the events, enabling the jury to
understand the different perspectives of the witnesses and to select the
version of the facts it found to be most accurate.
Fourth, as the court also pointed out and as with the cocaine evidence,
CC’s testimony was relevant to support defendants’ claims on causation,
including to show that Olango’s behavior would have been the same even if
Officer Gonsalves had employed different tactics and/or that Olango bore at
least some responsibility for his own death under the comparative negligence
doctrine.
The court did not abuse its discretion in finding witness CC’s
observations were relevant to the disputed issues at trial.
b. Opinion Testimony and Section 352
Plaintiffs alternatively argue the court erred in admitting the portions
of CC’s testimony reflecting her opinions that (1) “ ‘I thought he was going to
shoot me’ . . . I thought he was going to take my car or kill me’ ”; (2) “ ‘I
thought he was going to kill someone’ ” and “ ‘I thought I was going to get
carjacked or killed’ ”; (3) I was “ ‘afraid for my life’ ”; and (4) “[I] thought [he
had] a gun.” Plaintiffs argue this testimony constituted inadmissible lay
36
opinion testimony and/or the court should have excluded this “highly
inflammatory” evidence under section 352.
A court has broad discretion to admit a lay witness’s testimony about
his or her opinion “if it is rationally based on the witness’s perception and
helpful to a clear understanding of the witness’s testimony.” (People v. Leon
(2015) 61 Cal.4th 569, 601; see also § 800.) The court’s exercise of discretion
under this rule was appropriate. CC was testifying to what she perceived,
and her references to her concerns for her safety and her opinions that
Olango appeared to be dangerous were helpful to explain and place into
context her specific observations and to assist in communicating the full
extent of her memories of that day.
The more difficult question is whether the court should have excluded
these statements under section 352. Although CC’s testimony about her
observations of Olango a few minutes before the officer encountered him (e.g.,
that he was walking erratically, had his hand in his pocket, looked “crazed”)
had strong probative value, her additional opinions that she believed he
posed a danger to her and might “kill” her had less relevance to the disputed
issues, particularly because of the highly subjective nature of these opinions.
Likewise, CC’s statements that she thought Olango was going to “kill” or
“hurt” her and believed he had a gun had a greater potential to trigger an
emotional response from the jury as compared with her pure factual
descriptions of Olango’s conduct.
On this record, it would have been reasonable under section 352 for the
court to exclude these portions of CC’s testimony. But the test is not whether
a court could have ruled this way, whether we would have done so, or
whether we think this would have been the more prudent approach. Rather,
to reverse we must find the court “ ‘ “exercised its discretion in an arbitrary,
37
capricious, or patently absurd manner.” ’ ” (People v. Nieves (2021) 11 Cal.5th
404, 472.)
After a careful review of the record, we are not convinced the trial
court’s ruling met this standard. The trial judge—who was the closest to the
action and had the advantage of observing counsel, the parties, the jurors,
and the witnesses—was uniquely equipped to make the difficult call as to
whether certain relevant evidence would affect the jury’s decision making on
an improper ground. The record makes clear the trial judge carefully and
repeatedly considered plaintiffs’ challenges to CC’s testimony. He observed
the jurors and was able to assess their ability to accept nuances in the
relevancy of evidence and how certain testimony was likely to be received.
The court expressly weighed and considered the probative value of the
evidence, the potential for prejudice, all of the other evidence as to Olango’s
conduct that day, and the importance of providing the jury with the most
complete picture of the witnesses’ observations, including CC’s own views and
biases. On the last point, CC’s statements about her fear for her own safety
had the potential to bolster plaintiffs’ arguments that CC was biased and had
a faulty memory of the events.
Moreover, in the same sentences in which she was asserting she
thought Olango was dangerous and might shoot or kill her, CC also
repeatedly stated it was obvious to her that Olango was not well and needed
help. Although she did not specifically state she thought Olango was
suffering from mental health problems, this was the clear implication of her
testimony. This testimony supported plaintiffs’ theory that Officer Gonsalves
should have backed off, rather than walked towards Olango, because it was
obvious he was having acute mental problems.
38
In reviewing the entire record, the court’s determination to permit all of
CC’s testimony was not so arbitrary or capricious that it constituted an abuse
of discretion under section 352.
c. Plaintiffs Did Not Meet Burden to Show Prejudice
Even assuming the court should have excluded some or all of CC’s
testimony, plaintiffs have not met their burden to show prejudice.
To prevail on an evidentiary challenge on appeal, an appellant must
establish the evidentiary error was prejudicial, amounting to a miscarriage of
justice. (Christ v. Schwartz (2016) 2 Cal.App.5th 440, 447; see F.P. v. Monier
(2017) 3 Cal.5th 1099, 1107-1108 (F.P.).) The appellant has the burden to
demonstrate it is reasonably probable a result more favorable to the
appellant would have been reached without the error. (Coral Farms, L.P.
v. Mahoney (2021) 63 Cal.App.5th 719, 733.)
Viewed in context, CC’s testimony was a small part of the overall trial,
and was not central to the parties’ theories or arguments. The primary
dispute at trial was whether Officer Gonsalves’s actions met applicable law
enforcement standards. And the jury knew its main task was to decide the
reasonableness of Officer Gonsalves’s actions based on the information of
which he was aware when he encountered and interacted with Olango.
Consistent with these principles, counsel devoted much of their closing
arguments to discussing the expert opinions on this issue, and urging the
jury to credit their own expert. Defense counsel only once mentioned CC
during closing arguments when he briefly noted that CC’s description of
Olango’s eyes was consistent with Dr. Geller’s opinions that Olango was
likely under the influence of cocaine at the time. In his closing argument,
plaintiffs’ counsel acknowledged CC’s testimony, but strenuously questioned
the legitimacy of her opinions, including by reminding the jury she did not
39
call the police until the next day and instead went to her hair appointment;
she reported her fear of Olango only after hearing the substantial media
attention to the police shooting; her secretary was married to a detective with
the City’s police department; and she substantially misrepresented Olango’s
size, saying she thought he was six feet and 200 pounds (he was five foot six
inches). And the jury heard her statement that she saw Olango only for
“seconds.”
It is also significant to the prejudice analysis that CC’s testimony was
similar to the testimony of Olango’s acquaintance LL (whose testimony is not
challenged on appeal) and was consistent with many parts of Lucy’s
testimony that Olango was acting erratically, would not listen to her, was
walking in traffic, and was likely on drugs and/or suffering some kind of
mental breakdown. Although CC’s testimony added a view that had not been
expressed by these other witnesses—that Olango appeared to pose a danger
to her and others—we are convinced this small portion of her testimony
would not have changed the jury’s view of the reasonableness of Officer
Gonsalves’s actions. The jury was aware—based on the instructions,
arguments, and defense expert’s testimony—that it must judge the
reasonableness of Officer Gonsalves’s actions solely on information of which
he was aware. Absent any indication to the contrary, we must presume the
jury understood and adhered to this principle. Additionally, as we have
noted, many parts of CC’s testimony supported plaintiffs’ theories such as her
testimony that Olango appeared to be obviously “unwell” and “needed help.”
On our review of the entire record, we are satisfied any error in
admitting some or all of CC’s testimony did not affect the outcome of the case.
40
III. Demurrer Rulings
In addition to her negligent infliction of emotional distress claim, Lucy
asserted two causes of action against the City: (1) negligent training,
supervision, and retention of Gonsalves; and (2) breach of mandatory
statutory duty. (Gov. Code, §§ 815.2, 815.6.)9 On appeal, Lucy contends the
court erred in sustaining the City’s demurrer without leave to amend on each
of these claims.
A. Background
Lucy’s two additional claims against the City were based on the
following allegations. In 2013, Officer Gonsalves was a sergeant who
commanded the City’s police department’s (Department) Special Operations
Unit. At that time, four female City employees reported that Officer
Gonsalves had sexually harassed them and engaged in other “highly
inappropriate conduct” with them in the workplace. As a result, the City
instituted an investigation to determine whether Officer Gonsalves violated
City and Department policies. Beginning in November 2013, while the
investigation was ongoing, the Department’s command staff (including its
police chief and police captain) placed Officer Gonsalves on administrative
leave.
In June 2014, the City completed its investigation and imposed
discipline on Officer Gonsalves. Specifically, the City (acting through the
police chief, police captain and two other management employees) demoted
Officer Gonsalves to the police officer rank, removed him from the Special
Operations Unit, and prohibited him from applying for any special
assignments for three years.
9 In Part III of this opinion, all statutory references are to the
Government Code.
41
Based on these alleged facts and her allegations that Gonsalves abused
his police powers when he wrongfully shot Olango, Lucy sought to hold the
City liable on two pleaded legal theories.
First, Lucy alleged the City was liable for negligent training,
supervision, and retention of Officer Gonsalves, and that this negligence “was
a substantial factor that caused Gonsalves . . . to negligently shoot and
kill . . . Olango and cause [Lucy] to suffer severe emotional distress . . . .”
(Italics added.) This cause of action was based on a theory that the City was
vicariously liable for its management employees’ negligence in performing
their supervisory functions. (§ 815.2.)
Second, Lucy alleged the City could be held directly liable under section
815.6 because it breached a mandatory duty set forth in section 1031,
subdivision (f), which (as explained below) requires that police officers meet
certain minimum standards, including to be free of emotional or mental
conditions affecting the officer’s ability to perform the job. Lucy alleged the
City was on notice by 2014 that Gonsalves was mentally and emotionally
unfit for the job based on its knowledge of his sexual harassment conduct.
Lucy further alleged the “City’s breach of its mandatory duty under [this code
section] caused Gonsalves . . . to improperly exercise [his] powers as peace
officer[ ] and negligently shoot and kill [Olango] and cause [Lucy] to suffer
severe emotional distress . . . .” (Italics added.)
The City demurred to these causes of action, arguing that neither claim
is supported by applicable law because the allegations do not come within the
limited circumstances under which a public entity can be held liable under a
tort theory. The court agreed, and sustained the demurrer without leave to
amend. Lucy challenges this ruling on appeal.
42
B. Review Standards
“ ‘In reviewing an order sustaining a demurrer, we examine the
operative complaint de novo to determine whether it alleges facts sufficient to
state a cause of action under any legal theory.’ ” (Robertson v. Saadat (2020)
48 Cal.App.5th 630, 639.) “We ‘adopt[ ] a liberal construction of the pleading
and draw[ ] all reasonable inferences in favor of the asserted claims.’ ” (Ibid.)
We assume the truth of all properly pleaded facts, but we disregard
“ ‘ “contentions, deductions, [and] conclusions of fact or law.” ’ ” (McBride
v. Smith (2018) 18 Cal.App.5th 1160, 1173.)
If an appellant establishes a court erred in sustaining a demurrer on a
particular cause of action, reversal is not automatic, particularly after a trial.
As with evidentiary rulings, a court’s pleading-related rulings support a
reversal only if the appellant establishes prejudice, i.e., that it is reasonably
probable a more favorable result would have been reached in the absence of
the error. (Waller v. TJD, Inc. (1993) 12 Cal.App.4th 830, 833 (Waller); see
Cal. Const., art. VI, § 13; F.P., supra, 3 Cal.5th at p. 1107; Cassim v. Allstate
Ins. Co. (2004) 33 Cal.4th 780, 800-801 (Cassim); see also Grell v. Laci Le
Beau Corp. (1999) 73 Cal.App.4th 1300, 1307; Curtis v. Twentieth Century-
Fox Film Corp. (1956) 140 Cal.App.2d 461, 464-465.)
As explained, we conclude that even assuming the court erred in
sustaining the demurrer on either claim (which we do not decide), the error
was harmless. Because the jury found Officer Gonsalves was not negligent,
and we have rejected challenges to this finding, Lucy could not have satisfied
the required causation element in each tort claim against the City.
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C. Analysis
1. General Principles
A governmental entity is not liable for an injury unless liability is
specifically permitted by a statute. (§ 815; State Dept. of State Hospitals
v. Superior Court (2015) 61 Cal.4th 339, 348 (State Hospitals).)
Lucy relies on two statutes (§§ 815.6, 815.2) in seeking to impose
liability on the City for its failure to terminate Officer Gonsalves after notice
of his sexual harassment conduct against Department employees. We
address each statute below.
a. Section 815.6: Mandatory Duty
Section 815.6 provides: “Where a public entity is under a mandatory
duty imposed by an enactment that is designed to protect against the risk of
a particular kind of injury, the public entity is liable for an injury of that kind
proximately caused by its failure to discharge the duty unless the public
entity establishes that it exercised reasonable diligence to discharge the
duty.”
To establish public entity liability under this statute, the plaintiff must
prove three elements: “(1) a mandatory duty is imposed by an enactment,
(2) the duty was designed to protect against the kind of injury allegedly
suffered, and (3) breach of the duty proximately caused injury.” (State
Hospitals, supra, 61 Cal.4th at p. 348.)
On the first two elements, Lucy relies on the language in section 1031,
subdivision (f) to allege the City had a mandatory duty to terminate Officer
Gonsalves once it was on notice of his sexual harassment conduct. That code
section states: “Each class of public officers or employees declared by law to
be peace officers shall meet all of the following minimum standards: . . . [¶]
Be found to be free from any physical, emotional, or mental condition,
44
including bias against race or ethnicity, gender, nationality, religion,
disability, or sexual orientation, that might adversely affect the exercise of
the powers of a peace officer.”
The City responds that this code section does not meet the criteria
established by the California Supreme Court to create a mandatory duty
because the statute does not create affirmative obligations and has no
implementing guidelines, and provides public entities with discretion. (See
State Hospitals, supra, 61 Cal.4th at pp. 348-349; Guzman v. County of
Monterey (2009) 46 Cal.4th 887, 898 (Guzman); O’Toole v. Superior Court
(2006) 140 Cal.App.4th 488, 510.) The City also relies on the training
guidelines underlying section 1031, subdivision (f) to argue the code section
applies only to hiring decisions, not retention decisions.
Lucy counters by focusing on the word “shall” in section 1031,
subdivision (f), and alternatively urges this court to “impl[y]” a mandatory
duty from the statutory language. In support of the latter point, she relies on
a decision that has since been disapproved by the California Supreme Court
on a related point (Alejo v. City of Alhambra (1999) 75 Cal.App.4th 1180; see
B.H. v. County of San Bernardino (2015) 62 Cal.4th 168, 188, fn. 6) and a
high court decision (Guzman, supra, 46 Cal.4th 887) finding the asserted
implied duty was insufficient to trigger liability under section 815.6. Lucy
also argues that various courts have held (in other contexts) that section
1031, subdivision (f) standards for police officer fitness must be maintained
throughout the officer’s career. (See Sager v. County of Yuba (2007) 156
Cal.App.4th 1049, 1058-1059; White v. County of Los Angeles (2014) 225
Cal.App.4th 690, 706.)
On our review of the cited authorities, we recognize that existing legal
authority supports the City’s arguments on the mandatory duty issue and
45
that Lucy is asking this court to extend the rationale of the statutes and
judicial decisions to recognize tort liability under the circumstances.
We determine it is unnecessary for us to reach a final resolution on this
issue because any error was not prejudicial. (See Martinez v. San Diego
County Credit Union (2020) 50 Cal.App.5th 1048, 1071 [an appellate court
generally will not address an issue unnecessary to the resolution of the
appeal]; Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 259;
Thunderbird Investment Corp. v. Rothschild (1971) 19 Cal.App.3d 820, 828.)
Based on the jury’s finding that Lucy did not prove Officer Gonsalves was
negligent, Lucy could not have established the third element of the section
815.6 mandatory duty claim: that the breach of the mandatory duty
“proximately caused injury.” (State Hospitals, supra, 61 Cal.4th at p. 348.)
On this element, a plaintiff has the burden to prove the breach of duty was a
“cause in fact” of the claimed injury and that the chain of causation was one
in which liability could be imposed as a matter of policy. (Id. at p. 352.)
In seeking to plead this causation element in her complaint, Lucy
alleged the City’s breach of its mandatory duty under section 1031,
subdivision (f) “caused Gonsalves . . to improperly exercise” his police powers
and “negligently shoot and kill” Olango, resulting in emotional distress to her.
(Italics added.) In her appellate briefs, Lucy asserts she met her burden to
show prejudicial error on the causation element because had she presented
her mandatory duty claim to the jury, the jury “could have determined [the]
emotional and mental conditions that disqualified Gonsalves from being
employed as a police officer, either caused or contributed to him negligently
shooting and killing [Olango].” (Italics added.)
These allegations and arguments make clear Lucy understands she
would have been required to show Officer Gonsalves acted wrongfully (i.e.,
46
negligently) to establish her claim the City’s breach of its mandatory duty
caused her to suffer emotional distress. We agree. Lucy’s claim she suffered
emotional injuries from the City’s alleged breach of its mandatory duty in
continuing to employ Officer Gonsalves is founded on her allegation that the
City’s breach resulted in Officer Gonsalves’s abusing his powers and
wrongfully shooting Olango. Because the jury concluded Officer Gonsalves
was not negligent and thus did not act wrongfully under the circumstances, a
critical link in the causation chain is missing.
Lucy alternatively contends the prejudice from the demurrer ruling is
“almost self-evident” because she was prevented from presenting evidence to
the jury that Officer Gonsalves was “unfit for duty” based on his sexual
harassment conduct two years earlier. However, Lucy does not suggest this
evidence was relevant to the issue whether Officer Gonsalves was negligent
in shooting Olango, i.e., whether the officer acted reasonably under the
circumstances. Lucy never asked the court to admit this evidence on her
negligence claim, nor is there any basis to find the evidence would have been
relevant to this claim. Thus, the court’s demurrer ruling did not preclude
Lucy from presenting all relevant evidence on her negligence claim at trial.
We also find unpersuasive Lucy’s argument that the fact she was
deprived of a “viable cause of action . . . alone prejudiced the case.” Although
the erroneous pretrial dismissal of a cause of action will usually be
prejudicial, this is not always the case. Under our state’s constitution,
prejudice is never presumed; an appellant has the burden to affirmatively
show she has been prejudiced by any alleged error, including pleading errors.
(See Cal. Const., art. VI, § 13; F.P., supra, 3 Cal.5th at pp. 1107-1108;
Cassim, supra, 33 Cal.4th at p. 800; see also Waller, supra, 12 Cal.App.4th at
47
p. 833; Brokopp v. Ford Motor Co. (1977) 71 Cal.App.3d 841, 853-854; Ravel v.
Hubbard (1952) 112 Cal.App.2d 255, 258.)
b. Section 815.2: Negligence of Supervisory Personnel
We reach a similar conclusion on Lucy’s second claim asserting the
City’s alleged negligence in failing to terminate Officer Gonsalves after it
completed its investigation of his alleged sexual harassment. On this
negligence claim, Lucy relies on section 815.2, subdivision (a), which makes a
public entity vicariously liable for an employee’s negligent acts or omissions
“if the act or omission would . . . have given rise to a cause of action against
that employee . . . .” Under this statute, Lucy argues the City’s management
employees could be held liable for negligence in not terminating Officer
Gonsalves after the investigation, and therefore the City can be held
vicariously liable for this negligence.
The City responds that the courts have held a manager or supervisor
generally cannot be held liable for negligently supervising an employee,
absent a special protective relationship between the supervisor and the
plaintiff. (See C.A. v. William S. Hart Union High School Dist. (2012)
53 Cal.4th 861, 869-879 [finding school personnel owe duty of care to
students based on the “special relationship” between school district and the
district’s pupils]; de Villers v. County of San Diego (2007) 156 Cal.App.4th
238, 249 [finding no special protective relationship and thus no liability
under section 815.2].) The City asserts that under settled law, this type of
relationship does not exist between the Department employees and Lucy.
(See Williams v. State of California (1983) 34 Cal.3d 18, 24, 27-28; see also
Regents of University of California v. Superior Court (2018) 4 Cal.5th 607,
621.)
48
Although the City’s argument appears persuasive based on existing
legal authority, we do not reach a final resolution on the issue because any
error was not prejudicial. As with a mandatory duty claim, Lucy was
required to show the Department’s alleged negligent retention of Gonsalves
was a proximate cause of Lucy’s injuries (her emotional distress in witnessing
the shooting). (See Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th
1133, 1139.) For the same reasons we found the jury’s negligence finding
precluded a favorable finding on the causation element of her mandatory
duty claim, we determine the court’s ruling was not prejudicial. Additionally,
Lucy forfeited this contention because she made no attempt in her opening or
reply brief to argue she was prejudiced by the asserted error on this
negligence claim. (Cahill v. San Diego Gas & Electric Co. (2011) 194
Cal.App.4th 939, 956.)
DISPOSITION
We affirm the judgment. The parties to bear their own costs on appeal.
HALLER, Acting P. J.
WE CONCUR:
AARON, J.
GUERRERO, J.
49