Olango v. City of El Cajon CA4/1
D076752
| Cal. Ct. App. | Jun 28, 2021Background
- Officer Richard Gonsalves shot and killed Alfred Olango after Olango refused to remove his hand from his pocket, then produced an 8-inch metal vape device and took a shooter’s stance pointing the metal barrel at the officer’s head; the device resembled a handgun.
- Lucy Olango (sister) witnessed the shooting; Olango’s wife and daughter sued for wrongful death; Lucy sued for negligent infliction of emotional distress and separately asserted negligent training/retention and breach of mandatory statutory duty claims against the City (the latter two were dismissed on demurrer).
- Trial focused on whether Gonsalves’s use of deadly force was unreasonable under the totality of circumstances; both sides presented use-of-force/POST experts and a toxicology expert for defendants.
- Jury found Gonsalves was not negligent; judgment entered for defendants.
- On appeal plaintiffs challenged (1) admission of Dr. Geller’s toxicology opinion that Olango was under a toxic level of cocaine and (2) admission of bystander CC’s testimony about Olango’s minutes‑before conduct; Lucy separately challenged the demurrer dismissing her City claims.
- The Court of Appeal affirmed: it upheld admission of the toxicology and CC testimony (or found any error harmless) and rejected Lucy’s challenge to the demurrer ruling as nonprejudicial given the jury’s verdict.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Dr. Geller’s opinion that Olango was acutely/cocaine‑intoxicated at shooting | Geller’s opinion was speculative (couldn’t fix cocaine level at shooting), and prejudicial under Evid. Code §352 | Opinion was grounded in blood BZE level, peer‑reviewed studies, clinical persistence of effects, and witness observations; relevant to behavior and comparative fault | Court: no abuse of discretion admitting Geller; opinion had adequate foundation and probative value outweighed prejudice |
| Admissibility of CC’s bystander testimony about Olango’s minutes‑before conduct and fear he posed | Testimony was irrelevant to officer’s perception (officer didn’t know it) and inflammatory; lay opinions that he would kill/carjack were improper and prejudicial | Testimony corroborated officer and toxicology evidence, aided causation and comparative fault; Sanchez allowed foundational witness reliance for experts | Court: testimony admissible as relevant (corroboration, causation, comparative fault); trial court did not abuse §352 discretion; any error harmless |
| Demurrer dismissal of Lucy’s negligent training/retention and breach of mandatory duty claims vs City | Lucy: City had mandatory duties (e.g., under §1031(f)) and vicarious/supervisory liability; dismissal prevented jury consideration of City liability | City: statutes don’t create the required mandatory duty for §815.6 liability or a basis for supervisory negligence; demurrer proper | Court: did not reach definitive statutory duty ruling because any error was nonprejudicial — jury’s finding that Gonsalves was not negligent defeats causation element of Lucy’s claims; affirm judgment |
Key Cases Cited
- Hayes v. County of San Diego, 57 Cal.4th 622 (reasonableness of deadly force judged under totality of circumstances; split‑second decision standard)
- Koussaya v. City of Stockton, 54 Cal.App.5th 909 (preshooting tactical choices are relevant to force reasonableness)
- Sargon Enterprises, Inc. v. University of Southern California, 55 Cal.4th 747 (expert opinion admissibility: gatekeeper must exclude speculation but not weigh competing experts)
- People v. Sanchez, 63 Cal.4th 665 (limitations on expert reliance on case‑specific testimonial facts without foundation)
- State Dept. of State Hospitals v. Superior Court, 61 Cal.4th 339 (requirements for public‑entity liability under Gov. Code §815.6)
- Guzman v. County of Monterey, 46 Cal.4th 887 (limits on imposing implied mandatory duties for entity liability)
- Boyd v. City and County of San Francisco, 576 F.3d 938 (evidence of prior conduct unknown to officer may be admissible for corroboration or causation)
- Deorle v. Rutherford, 272 F.3d 1272 (officer should account for known mental impairment when deciding force)
- Brown v. Ransweiler, 171 Cal.App.4th 516 (placing burden on plaintiff to prove unreasonable force gives officers required discretion)