Albert Montes v. United States

ORDER

The Memorandum decision filed August 31,1994 is redesignated an authored opinion.

OPINION

Plaintiff Albert Montes appeals from the district court’s dismissal of his action brought under the Federal Tort Claims Act, 28 U.C.C. § 1346, in which he sought damages for injuries he received when a vehicle being pursued by the United States Border Patrol struck his vehicle, 778 F.Supp. 19 . At issue in this appeal is whether the plaintiffs notice of appeal was timely filed, thus giving this Court jurisdiction over the appeal, and, if so, whether the district court erred in dismissing Montes’ action for lack of subject matter jurisdiction because Cal.Veh.Code § 17004.7 renders the United States immune from liability for the plaintiffs injuries. We find that appellate jurisdiction is proper, and we reverse the trial court’s dismissal of the ac tion based on the immunity provisions in Cal.Veh.Code § 17004.7.

I.

BACKGROUND

At approximately 1:30 a.m. on April 4, 1990, Plaintiff Albert Montes was injured when a vehicle being pursued at a high rate of speed by the United States Border Patrol collided with the plaintiffs eighteen-wheel tractor and totalled it. The driver absconded but…