Henriksen

I respectfully dissent.

I

Introduction

The issue here is simple: did Rialto, as the moving party on a motion for summary judgment (motion) and despite the contents of Henriksen’s opposition to that motion, establish, as a matter of law, that Henriksen was not *1623 acting within the scope of his employment by Rialto at the time Henriksen’s service pistol discharged and the round hit Masotto, so as to defeat Henriksen’s cross-complaint for indemnification, apportionment of fault, declaratory relief and breach of contract against Rialto?

In my opinion, Rialto did not. Henriksen’s opposition to the motion raised triable issues of material fact because it contained evidence that:

These facts were material because they were directly related to the issue of what constituted the scope of Henriksen’s employment.

Thus, because triable issues of material fact remained to be resolved on the issue of whether Henriksen was acting within the scope of his employment at the time the pistol fired, the trial court should have denied Rialto’s motion.

Unfortunately, the majority has chosen to ignore the procedural rules which must be adhered to on review of a judgment following an order…

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

RAMIREZ, P.J.

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.

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…

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.

*1615 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…