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Conway v. County of Tuolumne

California Court of Appeals, Fifth District

November 24, 2014

GEORGE P. CONWAY, Plaintiff and Appellant,
COUNTY OF TUOLUMNE, Defendant and Respondent.

APPEAL from a judgment of the Superior Court of Tuolumne County No. CV56979. Donald I. Segerstrom, Jr., Judge.

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Zumwalt Law Firm, Frank T. Zumwalt and Graham Lopez for Plaintiff and Appellant.

Brady & Vinding and Michael E. Vinding for Defendant and Respondent.


Oliver, J.

In an unsuccessful attempt to apprehend George P. Conway’s adult son, Donald Conway, [1] who reportedly had fired shots at George, officers from defendant County of Tuolumne (County) fired a tear gas canister into George’s mobile home. Donald was not inside but was apprehended later. George brought suit against the County for damage to his mobile home caused by the tear gas, alleging negligence, trespass, nuisance, and strict liability for an ultra-hazardous activity. The trial court granted the County’s motion for summary judgment, finding the County immune under Government Code section 820.2, [2] which provides immunity for discretionary acts of County employees. George appeals, contending the trial court erred in finding the County immune from liability for any of his claims. We conclude that, under the facts and circumstances of this case, and based on the applicable law, County is immune from liability for the conduct of its officers. Accordingly, we affirm the judgment.


In May 2011, George was living with Donald in a mobile home at 15970 Hidden Valley Road in Sonora (the 15970 house). On May 24, 2011, George was moving into his new home—a neighboring mobile home at 15990 Hidden Valley Road (the 15990 house).

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About 8:00 a.m. that day, two satellite TV service technicians arrived at the 15990 house to perform an installation. After Donald came over and then stormed off “all angry, ” the main technician wanted to get the job done as quickly as possible “and get out of here.” About 10 minutes later, Donald came onto the deck of the 15990 house holding a handgun. George ran inside the 15990 house and locked the door. While George was standing to the side of the door, Donald fired three shots at the closed door. George went out the back door; both he and the technicians ran to a neighbor’s house.

George requested law enforcement assistance in a 911 call; he told the dispatcher that his 51-year-old son Donald had fired gunshots, which blew the front door off the house, and had pointed the gun at him. George told the dispatcher to “please get the sheriff here quickly.” George at first said that Donald still had the gun and still was at the 15990 house, but later told the dispatcher he was not aware of where Donald was “right now.” The last time he saw Donald, “he was shooting the door off of the house.”

Tuolumne County Sheriff’s Department (Department) Sergeant Neil Evans and other officers responded to the call that gunshots were fired, arriving on the scene at 8:45 a.m. Dispatch had advised Evans that Donald, a felon prohibited from possessing a firearm, had a.357 revolver registered to him, was intoxicated, had brandished a handgun, had chased George into the 15990 house, and had fired three gunshots in George’s direction. The two technicians told Evans they saw Donald fire a handgun in George’s direction and both believed Donald had shot George.

Evans sent a deputy to the neighbor’s house where George and the technicians were to speak with the deputy, while he and another deputy watched the two houses. According to Evans, George told the deputy that Donald was still at the 15990 house and gave them permission to search it. Evans also claimed he confirmed with George that Donald was not seen leaving the 15990 house, that he was in possession of multiple firearms, and that Donald followed George into the 15990 house and was still there. Evans said George asked him to “go get him.” George also told Evans that Donald had a leg injury and was not mobile.

George, however, denied telling Evans that Donald was in the 15990 house and claimed that, when he first spoke to Evans, he told Evans he did not know where Donald was, but he “was probably watching us from the woods surrounding us.” According to George, when the first officer he spoke with asked him whether Donald was still in the 15990 house, he told the officer he did not know.

Evans and another deputy cleared the 15970 house to ensure Donald was not there while another deputy watched the 15990 house. Evans set up a

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perimeter around the 15990 house and directed a deputy to use a loudspeaker to ask Donald to come out, but Donald did not come out. Evans then went to the rear of the 15990 house and saw a burn mark on the front door where the door handle used to be, and a bullet fragment on the porch, as well as fresh blood near the door that appeared to be a smear mark from a hand. The door was closed. A local school was placed on lockdown.

Evans requested that dispatch send the acting lieutenant, Sergeant Jeff Wilson, to the scene so he could request the use of the SWAT team; after Wilson arrived on the scene, Wilson granted the request. According to Wilson, Evans told him he did not know if Donald was in the 15990 house. Based on his experience and Evans’s statement, Wilson thought it possible Donald had run off into the woods. Evans planned to use the SWAT team to perform a “surround and callout for a barricaded subject, ” which entails surrounding the house, continuing to make announcements and, if needed, using a negotiation team to try to establish communication. Depending on the situation, the action can then escalate or deescalate.

SWAT commander Sergeant James Oliver asked the Calaveras County Hostage Negotiations Team to come to the scene and attempt to communicate with Donald inside the home. With Oliver’s consent, the hostage negotiation team decided to attempt contact with a mobile “throw phone, ” which operates as a listening device, that was placed in the house through a window. Multiple calls were made to the phone over the course of 25 minutes, but Donald did not answer ...

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