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Henriksen v. City of Rialto12/14/1993
California Court of Appeals
No. E008993
20 Cal.App.4th 1612, 25 Cal.Rptr.2d 308, 1993.CA.40590
Decided. As Corrected. As Modified December 22 1993.: December 14, 1993.
RAY HENRIKSEN, CROSS-COMPLAINANT AND APPELLANT,
v.
CITY OF RIALTO, CROSS-DEFENDANT AND RESPONDENT.
Superior Court of San Bernardino County, No. SCV247517, Carl E. Davis, Judge.
Sprague, Tomlinson & Nydam and Kenneth W. Nydam for Cross-complainant and Appellant.
Cotkin, Collins & Franscell, Jeffrey L. Garland, Franscell, Strickland, Roberts & Lawrence, Tracy Strickland and S. Frank Harrell for Cross-defendant and Respondent.
Opinion by Ramirez, P. J., with Dabney, J., Concurring. Separate Dissenting opinion by Timlin, J.
Ramirez
Ray Henriksen appeals from the trial court's grant of summary judgment in favor of the City of Rialto (hereinafter Rialto) on his cross-complaint arising out of an accidental injury inflicted by Henriksen, an off-duty police officer, on another off-duty officer. Appellant argues that Rialto was obligated as a matter of law to indemnify him for any damages recovered against him. We agree with the trial court and we affirm.
FACTS
On January 29, 1989, Chris Masotto filed suit against appellant Ray Henriksen and Rialto to recover damages for injuries Masotto suffered on March 26, 1988, when the service revolver in the possession of appellant Henriksen accidentally discharged and wounded Masotto. In his complaint Masotto set forth two theories of negligence against Rialto: first, that the city negligently failed adequately to screen applicants for police positions and that it hired and gave a weapon to Henriksen who was unsuitable and who negligently used the weapon in such a manner as to inflict a gunshot wound upon plaintiff; and, second, that the city failed adequately to train and supervise Henriksen.
Rialto answered the complaint denying liability. Henriksen also filed an answer in which he denied liability and stated that he was employed by Rialto, that he was acting within the course and scope of his employment at the time the injury occurred, and that if he was found to be negligent Rialto should be held responsible under the doctrine of respondeat superior.
At that same time Henriksen filed a cross-complaint against Rialto for indemnification for any damages awarded against Henriksen and for the costs of his defense. Rialto denied the allegations in the cross-complaint and then filed a motion for summary judgment on the cross-complaint. As the basis for the motion Rialto argued that, under Government Code section 995.2, Rialto was not obligated to provide a defense to the civil action brought against Henriksen if Rialto determined that the act or omission complained of was "not within the scope of [Henriksen's] employment . . .." Similarly, under Government Code section 825, subdivision (a), Rialto would be required to indemnify Henriksen for judgment entered against him only if the judgment was based on "an injury arising out of an act or omission occurring within the scope of his employment . . .."
Rialto argued that under the uncontroverted facts of the case as established at the deposition of Henriksen, the actions which served as the basis for the complaint against Henriksen were, as a matter of law, not within the scope of Henriksen's employment as a police officer.
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