BY RACHEL COOK Californian staff writer email@example.com
A former California Highway Patrol officer who shot a vehicle and hit a 14-year-old passenger has filed civil litigation in an attempt to get back his job several years after he was fired.
David Mata was fired after he shot at a car that drove toward him the night of Sept. 1, 2008, but didn't report what happened until nearly two hours later, according to the transcript of an administrative hearing. A CHP spokeswoman said Thursday that Mata "was no longer employed by the department as of April 13, 2009."
A petition for a "writ of administrative mandate" filed in Kern County Superior Court on April 9 of this year questions the California State Personnel Board's decision to uphold Mata's termination and asks the court to command the board and the CHP to restore Mata to his old job as a patrol officer. The board filed a response to the petition July 23. Court records did not show a response from the CHP.
Bakersfield attorney Randy Rumph, who is representing Mata, said the writ is similar to "an appeal of a regular lawsuit." The petition asks the court to review the decision made at an administrative level and see if mistakes were made, Rumph said.
An administrative law judge heard Mata's appeal from his dismissal in September and November 2010, according to the judge's proposed decision. The State Personnel Board provides due process hearings to decide if an employee's discipline was just and appropriate, according to Alvin Gittisriboongul, chief counsel for the board.
The transcripts of that hearing and the administrative judge's proposed decision provide a detailed account of the shooting. Mata and his partner were sent to a report of street racing in rural Kern County at midnight Sept. 1, 2008. Mata got out of the patrol car and tried to direct one vehicle to stop, but the vehicle drove toward him and Mata fired at it.
Mata felt "scared, sick and stressed" after shooting the vehicle, the judge's proposed decision said. He told witnesses to leave the site without getting their contact information and he and his partner didn't secure the scene of the shooting. The pair checked Kern Medical Center's parking lot for the vehicle Mata shot, but when they didn't see it, the officers left and responded to two other calls.
Unbeknownst to Mata, his shot hit the vehicle's right front passenger, 14-year-old Jennifer Perez, on the right side of her neck. The bullet traveled just under her skin and exited above her left breast.
Later that night, Mata returned to KMC for a blood test for a DUI suspect. He saw Perez in the emergency room and recognized her. He asked a Kern County Sheriff's deputy if the girl had been at street races and then asked, "Who did I hit?," according to his testimony in the transcript.
After speaking with a sheriff's sergeant, Mata called CHP dispatch to report the shooting. That was nearly two hours later.
The judge affirmed Mata's dismissal and the State Personnel Board agreed with the decision on March, 8, 2011. In the judge's proposed decision, the judge wrote that according to CHP guidelines, Mata created a "special relationship" with Perez when he shot the fleeing vehicle and "he had an obligation to report the incident."
"(Mata) put the passenger of the vehicle in peril, and deprived the victim of likely assistance for her injuries by failing to notify allied agencies to assist in the search for the fleeing vehicle," the decision said.
The decision notes CHP rules say "that special relationships are established when peace officers place a person in peril or increase the risk of harm to a person by specific conduct" or when an officer promises to do something on behalf of a member of the public.
The matter of a special relationship is at the heart of Mata's quest to get his job back.
In Mata's petition, Rumph argued that the administrative judge who oversaw Mata's hearing should not have considered the special relationship issue because the CHP denied all allegations in a civil lawsuit filed by Perez's attorney against the agency and said there was no special relationship.
"That's probably the strongest argument I think he has," Rumph said.
Mata's petition claims the issue of the special relationship also influenced the judge's decision that Mata's behavior went beyond "ordinary negligence" to "gross negligence."
"Consequently without the special relationship finding, (Mata) would not have been found to be grossly negligent and he would still have his job as a Patrol Officer," the petition said.
In other arguments, the petition said the CHP exonerated Mata's shooting of the vehicle and the petition finds fault with the judge's decision that Mata endangered Perez by not reporting the gunshot.
The petition pointed out Mata wasn't able to present "expert evidence of (Post Traumatic Stress Disorder) and its effect" on him at the hearing because his therapist refused to testify.
In total, the petition asks the court to command the State Personnel Board and CHP to reinstate Mata to his former job.
The suit also asks for attorney fees, costs of the suit and other relief "as the court may deem proper."
The State Personnel Board's response to the petition said the board, "as a quasi-judicial entity," won't take an advocacy role in the case and is immune to Mata's claims for damages or costs. Erin Komatsubara, information officer with the CHP, said the agency is aware of the lawsuit but does not comment on pending litigation.
No hearings have been scheduled in the case. Rumph said the case will be reviewed by a judge after all the parties have responded.
Another civil suit that arose from the shooting was resolved last year. The civil lawsuit filed on behalf of Perez was dismissed after the CHP agreed to pay her a $65,000 settlement, and pay $10,000 to her sister, Jessica Perez, who "suffered psychologically from theis incident as she witnessed her sister get shot," according to court records and attorney Daniel Rodriguez.
Once attorney fees, court costs and medical expenses were deducted from Jennifer Perez's payout, the teen's share of the settlement was $37,031.57, according to the court records in that case.