Oakland’s Attempt to Sue Its Own Officer Is Defeated

HARRY S. STERN
Principal
Rains Lucia Stern St. Phalle & Silver, PC

Your PORAC Legal Defense Fund stands ready to support you in ways that you may not have even known you might need. Oakland Police Officer Marcell Patterson’s extraordinary situation is a shocking case in point.

Marcell was an OPD stalwart, both on the street and at the union hall. He served the Department with dignity, honor and good humor for over 20 years. On patrol, he was a canine handler; at the POA, he was the beloved vice president.

By virtue of his assignment, the Department required Marcell to use a specially equipped canine “take-home” car so that he and his four-legged partner could head to Oakland at a moment’s notice. Unfortunately, on his way home after a long shift, Marcell collided with another car. The other driver’s injuries were serious and she sued. The City decided to settle with her, which, of course, is not unusual.

Then something happened that was both appalling and completely unprecedented. In a display of infinite pettiness, a group of councilmembers directed the City Attorney’s Office to sue Marcell personally to recover the settlement they had paid to the other motorist.

The OPOA immediately contacted Rains, Lucia, Stern, St. Phalle & Silver, and we swung into action. We initially guided Marcell through potential asset protection steps, including securing an opinion letter from a bankruptcy attorney. The gist of her opinion was that even in the unlikely event that Oakland prevailed, they would be unable to collect any judgment. We shared this information with the City, as well as the research we conducted demonstrating that they had never filed such an action against any City employee. However, our attempts to reason with Oakland fell on deaf ears. (The deputy city attorney assigned to the case was very professional — but he was not the one calling the shots.)

Because of the obvious conflict, LDF provided Marcell with full civil defense coverage and assigned the case to RLS. Working with the outstanding lawyers in our litigation group, headed by RLS partner Jacob Kalinski, RLS filed a motion for summary judgment, seeking to dismiss the case.

In late March, we received the welcome news: the court found that in a well-established exception to the “coming and going rule,” the doctrine of respondeat superior applied and the City of Oakland was entirely responsible for paying the settlement — not Marcell. The court reasoned:

“It is undisputed that Plaintiff furnished Defendant with the unmarked police vehicle Defendant was driving at the time of the accident. It is undisputed that Defendant was returning home, immediately after finishing a shift, and deviated from his regular route due to construction, not to engage in some other activity for a personal purpose.

“Additionally, when an employer and an employee have agreed to make travel time a part of the working day, an agreement that can be ‘inferred from the fact that the employer furnishes transportation to and from work as an incident to the employment …’ the employer should be treated as such during the travel time, and it follows that as long as the employee is using the time for the designated purpose, to return home, the doctrine of respondeat superior is applicable. (Hinman v. Westinghouse Elec. Co. (1970) 2 Cal. 3d 956, 962.)”

Accordingly, the Honorable Christine Carringer of the Solano County Superior Court dismissed the City’s suit in its entirety.

Marcell, now retired but still helping out with POA matters, was thrilled and expressed his appreciation for PORAC LDF for their complete support through Plan I coverage and for the work of the attorneys at Rains, Lucia, Stern, St. Phalle & Silver.

This hopefully unusual case proves the value of LDF coverage: police work is complicated and dangerous, and sometimes the attacks come from new and unexpected angles.

(As a reminder, peace officers should always have full personal liability coverage, including underinsured motorist and an umbrella policy. In addition to representing officers and deputies in criminal, civil and administrative matters, we also handle a wide range of personal injury and workers’ compensation cases.)

About the Author

Harry S. Stern is the managing principal at Rains Lucia Stern St. Phalle & Silver, PC. His practice is focused on civil litigation and criminal defense. Harry has successfully defended peace officers in a number of high-profile trials.