Z v. v. County of Riverside CA4/3 , 189 Cal. Rptr. 3d 570 ( 2015 )

Filed 6/17/15 Z.V. v. County of Riverside CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
Z.V., a Minor, etc.,
Plaintiff and Appellant, G050922
v. (Super. Ct. No. RIC10019957)
COUNTY OF RIVERSIDE, OPINION
Defendant and Respondent.
Appeal from a judgment of the Superior Court of Riverside County,
Matthew C. Perantoni, Judge. Affirmed.
Shernoff Bidart Echeverria Bentley, Michael J. Bidart, Gregory L. Bentley
and Steven Schuetze; Rizio & Nelson and Gregory G. Rizio for Plaintiff and Appellant.
Smith Law Offices, Douglas C. Smith and Nathan A. Perea; Arias &
Lockwood and Christopher D. Lockwood for Defendant and Respondent.
* * *
I. INTRODUCTION
Z.V., then 15 years old and in foster care, was sexually assaulted by
Riverside County social worker Sean Birdsong on September 21, 2009. In this lawsuit,
Z.V. seeks to hold Birdsong’s employer, Riverside County, responsible for the assault
under the doctrine of respondeat superior, which is legalese for the vicarious liability of
an employer. Z.V. relies primarily on Mary M. v. City of Los Angeles (1991) 54 Cal. 3d
202 (Mary M.). The Mary M. case held that a female motorist stopped late at night by a
city police officer on suspicion of drunk driving and subsequently raped by that officer
could sue the city under a theory of respondeat superior.
As we explain below, there is considerable doubt that Mary M. has any
applicability beyond the narrow context of an arrest performed by a uniformed, armed
police officer in the normal course of that officer’s duties. (See Lisa M. v. Henry Mayo
Newhall Memorial Hospital (1995) 12 Cal. 4th 291, 304 (Lisa M.) (maj. opn.) [noting that
Mary M.’s holding was “expressly limited”].) However, even if Mary M. might apply to
cases beyond the “unique” position of police officers (see Mary M., supra, 54 Cal.3d at p.
206), the undisputed facts take this case out of its reach. Birdsong was not Z.V.’s
assigned social worker, he merely volunteered to transport Z.V. to a new foster home at
the end of the workday. The sexual assault took place after 8:30 at night, several hours
after Birdsong’s shift would have normally finished, and after he had already completed
the task of delivering Z.V. to the new home without incident. It was several hours after
the delivery that Birdsong went back to pick up Z.V. under the pretext of building
“rapport,” took him to a liquor store and then to Birdsong’s own apartment, where the
attack took place. Accordingly, we affirm the judgment.
II. FACTS
This case comes to us after a grant of summary judgment, so our facts are
mostly taken from what Z.V. admitted, as the party opposing the motion. Where Z.V.
has attempted to qualify a substantially undisputed statement, we have used his version,
2
not Riverside County’s. As with all summary judgment motions, inferences from and
conflicts within the evidence are drawn in favor of the opposing party, here Z.V., so if
there is a spin in our rendition of the facts, it is in Z.V.’s favor.1 (We have also included
a few additional background facts from Z.V.’s own complaint, filed in October 2010.)
In September 2009, Z.V. was within the custody of the Riverside County
Department of Public Social Services (DPSS), which had removed him from his parents.
He had an assigned social worker named Rebecca Seolim. On the afternoon of
September 21, Seolim had just taken Z.V. to the DPSS office in Moreno Valley.
Apparently he had been at his grandparents’ home, but, since they were physically unable
to care for him, Seolim picked him up from their home at about 1 p.m. to take him to the
Moreno Valley office. Seolim then spent the greater part of the afternoon attempting to
find a new foster home placement for Z.V. She finally found one near the end of the
afternoon. However, Seolim was unable to take Z.V. to the new home immediately
because a family emergency came up. Birdsong “jumped up really quick” – Z.V.’s own
description – and said he would take Z.V. to the new placement. Birdsong said that
because he lived closer to the new placement than Seolim, he could perform the task. For
his part though, Z.V. immediately sensed that Birdsong had a sexual interest in him. Z.V.
told Seolim that he didn’t want to go with Birdsong because “there was something about
him I didn’t trust.” However, despite his vocalized mistrust, Z.V. was told by other
social workers in the office that if he didn’t go with Birdsong “they were going to call the
police.” The threat accorded with the office’s own understanding that dependent minors
such as Z.V. had to comply with social workers’ directives.
1 Some of the facts are taken from Birdsong’s own testimony, much of the point of which is that
Birdsong’s state of mind – at least right up to the time of the sexual assault – was to act in Z.V.’s best interest.
Obviously such testimony is self-serving. Even so, we incorporate it at various points in the narrative. Our job is not
to make credibility calls, but to ascertain whether Riverside County would be entitled to win the case even if a
reasonable jury believed all the evidence in Z.V.’s favor, including Birdsong’s.
3
Birdsong and Z.V. departed the Moreno Valley DPSS office at 5:30 p.m.,
when both Birdsong’s and Seolim’s shifts would normally be ending. The trip to the new
foster home took about 30 minutes. When they arrived, Birdsong dropped off Z.V. at the
new home. Birdsong understood his duties in dropping off Z.V. were to enter the new
home, do an assessment, and make sure all placement papers were completed. The drop-
off was completed without incident. Birdsong went to a pharmacy, bought alcohol, and
then went to his apartment and began drinking.
Some time between Birdsong’s return to his apartment and 8:30 p.m. that
evening Birdsong called the new foster home and asked to retrieve the top copy of a 20-
page packet of papers he had left at the new home. During this phone conversation Z.V.
asked to speak with him. Z.V. told Birdsong he didn’t want to be at the new home, he
wanted to be in a different placement. Birdsong told Z.V. to stay there – Birdsong
wanted to prevent Z.V. from running away – and Birdsong would travel to the new home
to make sure “everything’s going well.” Z.V. had run away from other placements before
and Birdsong wanted to prevent Z.V. from running away again. Besides, he said, social
workers also have a custom of “often” calling juveniles like Z.V. at night to ascertain
how a placement is going. Likewise, social workers have the authority to contact foster
parents after hours to discuss a child or missing paperwork.
The upshot of the call was Birdsong’s directive to Z.V. to put his stuff by
the front door and go outside. At the time, however, there was no new placement to
which Z.V. might have been taken.
Birdsong came to the new foster home in a county van, thinking he was
acting in Z.V.’s best interest in doing so.2 Birdsong, smelling of alcohol, picked up Z.V.
near the foster home somewhere between 8:30 p.m. and 9:00 p.m. He made no attempt to
2 This is an example of resolution of conflicts in favor of the opposing party. The new foster parent
declared that when Z.V. got off the phone with Birdsong, Z.V. told her that Birdsong was coming to rape him. Z.V.
disputed this fact in the motion, so the resolution goes to Z.V., i.e., he didn’t express a concern of an impending
sexual assault to the new foster mother.
4
pick up any paperwork, but picked up Z.V. and drove to Birdsong’s apartment. Birdsong
went upstairs while Z.V. stayed in the van. Even at this point, Birdsong believed he was
performing his job and acting in Z.V.’s best interest in trying to build “rapport” with him.
Birdsong then took Z.V. to a liquor store, where Birdsong purchased more alcohol while
Z.V. stayed in the van. Then they went back to Birdsong’s apartment, and went inside,
where Birdsong sexually assaulted Z.V. Z.V. then went outside, contacted bystanders
who called the police, and Birdsong was soon arrested. Z.V. sued both Birdsong and the
County of Riverside about 13 months later. The court granted Riverside County’s motion
for summary judgment in April 2013. Judgment was filed in June 2013followed by a
timely appeal in August.
III. DISCUSSION
A. Respondeat Superior and Mary M.
The fifth word in the opening sentence of Mary M. is “unique.” The point
of that sentence is to emphasize the “unique position” of police officers in our society,
including the right to arrest and “use deadly force.” (Mary M., supra, 54 Cal.3d at p.
206.) And given the unique position of armed law enforcement officers, the facts in
Mary M. were certainly bad: The plaintiff was driving home alone after midnight when a
police sergeant employed by the City of Los Angeles stopped her for erratic driving. He
was in uniform. He was on duty. He wore a badge and carried a gun. He was driving a
marked black and white police car. (Id. at p. 207.) He radioed a message saying he was
conducting an investigation, asked the plaintiff for her driver’s license and gave her a
field sobriety test on which she did not “do well.” (Ibid.) The plaintiff began to cry and
pleaded with the sergeant not to take her to jail. He ordered her to get in the front seat of
the car, and drove her to her home. Once there, he told the plaintiff he expected
“‘payment’” for taking her home instead of jail. The plaintiff tried to run away. The
police sergeant grabbed her hair and threatened to take her to jail. He then raped her.
(Ibid.)
5
The plaintiff sued the city on a respondeat superior theory. A jury awarded
her $150,000 against the city, but a divided appellate court held that, as a matter of law,
the officer was acting outside the scope of his employment, hence there could be no
respondeat superior liability on the part of the city. (Mary M., supra, 54 Cal.3d at p.
208.) The California Supreme Court then took the case.
A divided high court3 then reversed the appellate court majority, ruling the
city could indeed be held liable for the errant officer’s conduct since that conduct was not
“so divorced” or “so unusual” to the “enterprise” of police work that it could be said, as a
matter of law, that he was acting outside the scope of his employment. (See Mary M.,
supra, 54 Cal.3d at p. 214.)
We have already noted the major theme of Mary M., trumpeted in its
opening sentence – the unique position of police officers with their ability to arrest and
use deadly force. Other themes woven into the majority opinion were the entrustment in
police officers of a “substantial degree of authority” (Mary M., supra, 54 Cal.3d at p.
210), the similarity of the facts to garden-variety police brutality cases where there is no
question of respondeat superior liability on the part of an officer’s employer (id. at pp.
215-216), the qualitative difference in authority between police officers and others in
authority such as teachers (id. at p. 216),4 and the connection between the officer’s act
and “‘the very exercise’” of his authority over the motorist plaintiff (id. at p. 210).
Further, the majority noted the “substantial benefits that the community derives from the
lawful exercise of police power.” (Id. at p. 217.) The court might as well have quoted
Lord Acton’s famous dictum on power corrupting. The court’s point was that with
authority comes the possibility of abuse. (Id. at pp. 217-218.) And yet, lest the case be
3 Justice Kennard authored the majority opinion, joined by Justices Mosk, Broussard, Panelli and
Arabian. Justice Baxter, joined by Chief Justice Lucas, concurred on the theory the city could not appeal because of
invited error, but disagreed on the respondeat superior theory.
4 The contrast between officers and other authority figures, such as teachers, was made while
distinguishing John R. v. Oakland Unified School Dist. (1989) 48 Cal. 3d 438 (John R.), which involved a teacher
molesting a student at an extracurricular event.
6
read for more than it was meant to say, in a footnote toward the end of the opinion the
majority once again emphasized “the unique authority vested in police officers.” (Id. at
p. 218, fn. 11.)
The reiteration of the uniqueness of police authority in Mary M.’s footnote
11 would reverberate in two successor high court opinions navigating the legal
intersection of sexual assault and respondeat superior. Both resisted the invitation to
extend Mary M.’s approach to sexual assaults by employees other than police officers.
First came Farmers Ins. Group v. County of Santa Clara (1995) 11 Cal. 4th
992 (Farmers). There, the high court held that a county was not responsible for the
sexual harassment of a county jailer directed at a fellow jailer. The majority opinion in
Farmers was written by Justice Baxter, the dissenter in Mary M. The Farmers majority
stated that “except where sexual misconduct by on-duty police officers against members
of the public is involved” the “employer is not vicariously liable to the third party
[victim] for such misconduct.” (Id. at p. 1006, italics added.) That limiting statement
garnered five votes.5 Justices George, Baxter and Chief Justice Lucas would have gone
further and overruled Mary M. outright.6
Lisa M., supra, followed on the heels of Farmers. Lisa M. held that a
hospital was, as a matter of law, not responsible for the sexual molestation of a pregnant
patient by an ultrasound technician after the patient was taken to the hospital’s
emergency room. Justice Werdegar, writing for the same five-justice majority who
5 Chief Justice Lucas, and Justices Arabian, George and Werdegar joined Justice Baxter as the
majority in Mary M. Justices Mosk and Kennard each wrote separate dissenting opinions.
6 Justice Arabian, who had voted with the Mary M. majority wrote separately in Mary M. to
emphasize his particular empathy with victims of sexual assault. The line that has the greatest application to the
case before us is this one, which yet again emphasizes the uniqueness of the police: “Our holding today advances
the cause of reform by providing a meaningful civil remedy to the victims of those who exploit unique institutional
prerogatives to facilitate a sexual assault.” (See Mary M., supra, 54 Cal.3d at p. 224 (conc. opn. of Arabian, J.).)
Given that vigorous concurrence, it is not surprising Justice Arabian did not join three of his colleagues in calling for
the overruling of Mary M.
7
decided Farmers (with the same two dissenters),7 based the decision on this rule: “As
with [previously discussed] nonsexual assaults, a sexual tort will not be considered
engendered by the employment unless its motivating emotions were fairly attributable to
work-related events or conditions.” (Lisa M., supra, 12 Cal.4th at p. 301.) In Lisa M.,
the ultrasound technician “simply took advantage of solitude with a naïve patient to
commit an assault for reasons unrelated to his work.” (Ibid.) The Lisa M. majority
distinguished Mary M. on two grounds: First, its holding was “expressly limit[ed]” to the
“‘unique authority vested in police officers,’” (id. at p. 304, quoting from Mary M.,
supra, 54 Cal.3d at p. 218, fn. 11). And second, a police officer’s assaults “may be
foreseeable from the scope of his unique authority,” but the same could not be said for an
ultrasound technician. (Id. at p. 304.)
While Mary M. survived calls to overturn it outright, we are unaware of any
Supreme Court case that has ever applied it beyond the “unique” – Mary M. seems joined
at the hip with that word – context of police officer abuse of power in the course of
performing official duties within the ordinary scope of that officer’s normal duty. In fact,
confirmation that Mary M. has been so corralled is found in the second major case on
which Z.V. relies in this appeal, Lu v. Powell (9th Cir. 2010) 621 F.3d 944 (Lu). Lu held
that the United States, as employer of a federal immigration officer, could be held liable
under California tort law for the officer’s sexual assaults on two asylum applicants – at
least insofar as the torts of intentional infliction of emotional distress and violation of
right to asylum were concerned. (Id. at pp. 949-950.)8
We will discuss Lu in detail three paragraphs from now. For the moment it
is enough to note the Lu majority expressly declined to base its decision on Mary M.
7 Justice George, joined by Chief Justice Lucas, again reiterated his call to overrule Mary M. (Lisa
M., supra, 12 Cal.4th at p. 306.) Justice Baxter, however, did not reiterate his disagreement with Mary M. the way
he had in Farmers.
8 The Lu majority explained that federal law would not allow the United States to be liable for all
the torts that might arise from the immigration officer’s sexual assault, see Lu, supra, 621 F.3d at pp. 949-950.)
Those two torts, however, could survive.
8
because it also perceived, like the Supreme Court majority’s in Farmers and Lisa M., that
the Mary M. decision was limited to the police. Once again footnote 11 from Mary M.
was quoted as the clincher: “We do not rely on Mary M. here, because liability in that
case depended on ‘the unique authority vested in police officers.’” (Lu, supra, 621 F.3d
at p. 947, quoting Lisa M., supra, 12 Cal.4th at p. 304, quoting Mary M. supra, 54 Cal.3d
at p. 218, fn. 11.)
However, let us assume, for sake of argument, that Mary M. is not strictly
confined to police contexts, and that it could possibly even apply to social workers.
Could it then apply here to make the question of whether Birdsong’s sexual assault on
Z.V. occurred in the course and scope of his employment at least a triable issue of fact?
We think not. In the case before us, the timing and circumstances of Birdsong’s sexual
assault on Z.V. show clear firebreaks separating his sexual assault from the one in Mary
M. Birdsong had no authorized duties to perform vis-à-vis Z.V. when the assault took
place. Appellant has offered only Birdsong’s imagination to establish he had some sort
of professional reason to call up Z.V. and visit him. No facts show Birdsong was ever
requested by anyone in the department to do anything for Z.V. beyond simply driving
him to his new placement. And even that – as shown by the fact he “jumped up really
quick” to volunteer for the job – was a matter of his own initiative.
Moreover, when the attack occurred, Birdsong’s normal shift had been over
for several hours. By contrast, the sexual assault in Mary M. took place in the course of
the police sergeant’s normal shift, while performing the very sort of duty he was
authorized by his employer to regularly perform – arresting drunk drivers late at night.
Put another way, unlike Birdsong, the sergeant in Mary M. didn’t assign himself the duty
of arresting the plaintiff, or do it in his off hours.
Now to Lu. Under the relevant federal tort claim statute the question of
whether the United States, as the employer of the errant immigration officer, was
responsible for the officer’s torts is a question of the tort law of the state where the tort
9
occurred. In Lu the torts occurred in California so the Ninth Circuit looked to California
law on the respondeat superior question. (See Lu, supra, 621 F.3d at p. 948, citing
Williams v. United States (1955) 350 U.S. 857.) As we have noted, the Lu court
expressly did not rely on Mary M. We may also note here that the Lu majority did not
invoke a vulnerability rationale even though the two asylum seekers were certainly
extremely vulnerable to the immigration officer’s abuse of his powers – one can only
imagine their fate if he sent them back to China. Even so, the Lu majority recognized
that vulnerability had been expressly rejected as a reason to impose respondent superior
liability in Lisa M. (Lu, supra, 621 F.3d at p. 949.)
So, if the Lu majority did not rely on either Mary M. or the vulnerability of
two asylum seekers to the abuse of an officer’s power, what did they rely on to hold an
employer liable for sexual assault under California tort law? A close reading of Lu
reveals three distinct prongs of analysis: (1) The Lu majority used an “incident to” test
for respondeat superior liability (Lu, supra, 621 F.3d at p. 949); (2) The Lu majority
believed a single California appellate decision supported their decision, and (3) the Lu
majority shored up its determination by citing three general policy goals: assuring victim
compensation, risk spreading, and incentivizing prophylactic measures. We examine
each prong now in turn.
The first prong is the assumption the California test of respondeat superior
is “the extent to which the tort of the employee is incident to his employment.” (Lu,
supra, 621 F.3d at p. 949.) For this rule, the Lu majority cited – but we hasten to note,
did not actually quote – page 298 of the Lisa M. opinion as it appears in the official
reporter.9 Since the two assaults were incident to the officer’s work in evaluating
candidates for asylum, his employer could be held liable for them.
9 The page citation in the opinion was to volume 907 of the Pacific Reporter Second series, page
362. Thanks to the ease of computer legal research, one can quickly ascertain that page 362 of the Pacific Reporter
Second corresponds with page 298 of the official reporter.
10
We must respectfully part company with the Lu majority’s “incident to
employment” test as a proper characterization of California respondeat superior doctrine.
Without further qualification, the “incident to” test is too amorphous and inclusive,
particularly if applied in a vacuum. Even the most permissive respondeat superior case
involving workplace sexual assault, Mary M., didn’t frame its test in terms of whether the
attack was incident to the perpetrator’s employment. Rather, Mary M. asked itself
whether the sexual assault there was “so divorced” or “so unusual” – our emphasis –
from the employee’s employment that it exceeded the employee’s “scope of
employment.” (Mary M., supra, 54 Cal.3d at p. 214, italics added.) Thus Mary M.
recognized that while sexual assault is an extraordinary, abnormal event in any workplace
context, the focus would be on the extent of abnormality. By contrast, incident to
employment ignores the normal-abnormal dichotomy and allows respondeat superior
liability to be based merely on an abstract relationship to employment, however tenuous.
Second, the citation to Lisa M. as standing for an unqualified “incident to”
test distorts what Lisa M. actually said. The point cite given by the Lu majority shows
the Lu decision was alluding to a quotation in Lisa M. from Hinman v. Westinghouse
Elec. Co. (1970) 2 Cal. 3d 956, 960. We now quote the entire paragraph in which that
quotation appears to show that, in context, the Lisa M. court was actually positing a more
restrictive test than an unqualified incident to employment test administered in a vacuum.
Here is what Lisa M. actually said: “The nexus required for respondeat superior liability
– that the tort be engendered by or arise from the work – is to be distinguished from ‘but
for’ causation. That the employment brought tortfeasor and victim together in time and
place is not enough. We have used varied language to describe the nature of the required
additional link (which, in theory, is the same for intentional and negligent torts): the
incident leading to injury must be an “outgrowth” of the employment (Carr v. Wm. C.
Crowell Co. [1946] 28 Cal. 2d 652, 657); the risk of tortious injury must be “‘inherent in
the working environment’” (id. at p. 656) or “‘typical of or broadly incidental to the
11
enterprise [the employer] has undertaken’” (Hinman v. Westinghouse Elec. Co.[, supra,]
2 Cal.3d [at p.] 960).” (Lisa M., supra, 12 Cal.4th at p. 298, italics added.)
As the italicized words show, the reference to “incidental” in the quote
from Hinman is to establish that the nexus between the tort and employer’s responsibility
must be rooted in the nature of the employer’s enterprise, not just based on a time and
place link “incidental to” employment. And indeed, in the very next paragraph after the
one merely alluded to by the Lu court, Lisa M. quoted language from Hinman that would
rule out any respondeat superior liability for an employee’s act as outrageous as sexual
assault: “Respondeat superior liability should apply only to the types of injuries that “‘as
a practical matter are sure to occur in the conduct of the employer’s enterprise.’” (Lisa
M., supra, 12 Cal.4th at p. 299, quoting Hinman, supra, 2 Cal.3d at p. 960, italics added.)
“Sure to occur” is far removed from “incident to.”
And third, there is no way an unqualified “incident to” test can be squared
with the actual holdings of two California Supreme Court decisions involving sexual
assault and respondeat superior. If the test were “incident to,” those cases would have
gone the other way.
Most dramatically, in Lisa M., the ultrasound technician was employed to
perform examinations on pregnant women, a task which necessarily would bring him
within inches of his patient’s intimate parts. Intimate and physical contact with women
patients was part of his job, thus there would be easy opportunities for sexual molestation
incident to his lawful duties. But the high court said his molestation was most assuredly
not within the scope of his employment in Lisa M., thereby indicating that a causal
“incident to” relationship would necessarily not be enough for respondeat superior
liability.
An “incident to” test is also inconsistent with the result in John R. because
the sexual molestation of a student by his teacher could also be loosely said to be incident
to the teacher’s employment. In John R., the assault took place in the context of an
12
extracurricular activity (a work experience program where students would assist teachers)
that was officially sanctioned. (See John R., supra, 48 Cal.3d at pp. 441-442.) And in
Farmers there was not a physical sexual assault, but verbal harassment of one employee
by another expressed in workplace conversations – and conversations between employees
at a workplace are far more incidental to their employment than the physical assault of an
asylum seeker by an immigration officer.
Finally, we note the Lu majority did nothing to distinguish the “host” of
California Court of Appeal decisions collected by the dissenting judge which did involve
sexual assault or molestations, and which uniformly held that there was no respondeat
superior liability for them. (See Lu, supra, 621 F.3d at pp. 954-955 (dis. opn. of Bybee,
J.).) In fine, we find the first basis for Lu unconvincing.
The second prong of the Lu majority was reliance on a single California
appellate decision: Inter Mountain Mortgage, Inc. v. Sulimen (2000) 78 Cal. App. 4th
1434 (Inter Mountain). Inter Mountain was not a sexual assault case. It originated with a
real estate agent, working for a broker, who submitted a fraudulent loan package to a
lender. When the lender incurred losses on the inflated and unsupportable loan, the
California Court of Appeal held that whether the agent was acting in the course and scope
of his employment for the broker was a question of fact for the jury. (Id. at pp. 144-
1442.)
The relevant passage from the Inter Mountain opinion emphasized the close
nexus between the agent’s fraud and his work for the employer-broker. The fraud
occurred in the course of the very activity for which he was hired (as in Mary M. but not
in the facts before us now) and – this should not be overlooked – the fraud was facilitated
by the very fact the agent had an employee relationship with the broker, because that
13
employment relationship by itself gave the defrauded lender the confidence to underwrite
the (inflated) loan.10
Here is the way the Lu majority interpreted Inter Mountain to hold that the
employer of a federal immigration officer who sexually assaulted two asylum seekers
was responsible for the officer’s sexual assault: “Like the loan broker, Powell [the errant
immigration officer in Lu,] was part of a process in which he was expected to participate
in a lawful way, reviewing the documentation of the asylum applicant, interviewing her,
and assessing the credibility of her claims. Like the loan broker, Powell [the officer]
abused his powers for his own benefit. In doing so, he acted within the scope of his
employment as defined by California.” (Lu, supra, 621 F.3d at p. 949.)
That’s it. One sentence invoking the fact an employee might be part of a
lawful process, followed by another sentence alluding to an abuse of powers and a punch
line amounting to an ipse dixit. The same lines could have been written in any one of the
many California appellate and Supreme Court cases that have specifically rejected
application of respondeat superior in sexual assault, harassment and molestation
situations. All employees are part of a lawful process and the assault cases often involved
some sort of abuse of power as well, whether the power be that of a medical technician
over a possibly injured patient (Lisa M.), or a teacher over a student not doing well in
school (John R.), or a priest over a minor parishioner (Rita M. v. Roman Catholic
Archbishop (1986) 187 Cal. App. 3d 1453). This cannot be enough.
10 Here’s the two-paragraph passage: “We conclude there was an abundance of evidence that
Baskaron was acting within the scope of employment when he committed the alleged fraud. . . . [B]askaron was
employed by Sulimen from September 4, 1994, until May 1, 1995. . . The Brown loan application was submitted on
an American Frontier loan application form. Escutia [a representative of the plaintiff] stated in her declaration that
throughout the period of November 1994 through March 1995, Baskaron represented to her that he was an American
Frontier loan representative and real estate agent; and based on such representations, Escutia processed the Brown
loan. . . . [¶] According to this evidence, the alleged fraudulent loan transaction occurred during Baskaron’s
employment with defendants as a loan representative. And, according to Escutia, Baskaron led her to believe that
when he submitted the Brown loan to Inter Mountain Mortgage, he was performing his job duties as an American
Frontier loan representative. Under such circumstances, a nexus existed between Baskaron’s alleged tort, the
fraudulent loan transaction, and his employment as a loan representative.” (Inter Mountain, supra, 78 Cal.App.4th
at pp. 1441-1442, italics added.)
14
The third prong of the Lu decision comprised three general policy goals one
often finds woven into discussions of duty in the tort law. After the Lu court pronounced
the conclusion that the immigration officer had “acted within the scope of his
employment as defined by California” – just quoted above – it invoked three policy ideas.
Here is the rest of the paragraph: “To compensate his victims, spread the loss, and
stimulate the government to greater vigilance in controlling aberrant behavior, California
law makes the United States bear the cost of Powell’s conduct, unauthorized but
incidental to the asylum system.” (Lu, supra, 621 F.3d at p. 949.)
In the context of whether respondeat superior liability should apply, the
first of these ideas – assuring compensation – is really nothing more than a conclusion.
Respondeat superior always helps to assure victim compensation, if only by bringing in
another – usually deeper – pocket to provide that compensation. By itself, assuring
victim compensation is nothing more than a statement of a desired result, not a means of
analysis. The real question is whether, under California law, the employer’s presumably
deeper pocket should have to bear the loss of an employee’s tort, and that question
requires an analysis of the nexus between the employer’s enterprise, the employee’s
scope of employment, and the nature of the underlying tort itself. In fact, carried to its
logical conclusion, the goal of “assuring victim compensation” could be readily
accomplished by abolishing the law of torts altogether and substituting some sort of no-
fault scheme for all losses.
The second goal – spreading the loss – is likewise unhelpful in ascertaining
respondeat superior liability. Like assuring victim compensation, if spreading losses is a
reason by itself to impose liability, the same goal could be accomplished through a no-
fault system. But more significantly, to the degree that the goal of risk spreading does
implicate something analytically useful, namely the question of whether a given tort is
insurable, this consideration directly cuts against the Lu majority’s result. Of all torts,
sexual assault is about the least amenable to risk-spreading via insurance because of its
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“inseparably intentional” nature. (Coit Drapery Cleaners, Inc. v. Sequoia Ins. Co. (1993)
14 Cal. App. 4th 1595, 1608; see generally Gonzalez v. Fire Ins. Exchange (2015) 234
Cal. App. 4th 1220, 1242 [collecting many cases showing lack of coverage]; e.g., J. C.
Penney Casualty Ins. Co. v. M. K. (1991) 52 Cal. 3d 1009, 1018 [no homeowners’
insurance coverage for child molestation as a matter of law].)
The final goal – stimulating an employer to guard against aberrant behavior
– does advance respondeat superior analysis, because it requires one to inquire about the
nature of an employee’s normal duties and the measures an employer might take to
prevent aberrant behavior such as a sexual assault. To be sure, for example, an employer
might take the protective measure – common to many doctors’ offices – of not allowing
some employees to ever be alone with some third parties. Even so, consideration of
protective measures ultimately runs up against the fundamentally intentional nature of
sexual assault.
Even if persuasive, Lu would not be binding on this court. (People v.
Crittenden (1994) 9 Cal. 4th 83, 120, fn 3.) But in this case we must conclude the opinion
is not persuasive. It is not accurate either as a statement of California law or as an
application of it.
B. Negligent Supervision
Of course, even if Riverside County is not, as a matter of law, vicariously
liable under a respondeat superior theory, it is still possible that it could be directly liable
for its own conduct in negligently hiring or supervising Birdsong.11 To establish
negligent supervision, a plaintiff must show that a person in a supervisorial position over
11 That has now been clearly established by our high court in C.A. v. William S. Hart Union High
School Dist. (2012) 53 Cal. 4th 861, 867 (C.A.). There the high court held a school district could be liable for a high
school’s head guidance counselor’s sexual relationship with a student based on negligent supervision and retention
where, inter alia, the district knew or should have known of counselor’s propensity or disposition for sexual acts
with her students. It is worth noting, however, that C.A. came to the Supreme Court on demurrer, so the universe of
facts bearing on the case were those set out in the complaint. Those facts included the remarkable allegation that
there was some basis on which to surmise that the guidance counselor was inclined or disposed to commit sexual
acts with her students. (See id. at p. 866.)
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the actor had prior knowledge of the actor’s propensity to do the bad act. (Margaret W.
v. Kelley R. (2006) 139 Cal. App. 4th 141, 156-157 [based on what mother who hosted
sleepover of daughter’s friends actually knew at the time of crime against daughter’s
friend by third parties, there could be no liability for negligent supervision]; Romero v.
Superior Court (2001) 89 Cal. App. 4th 1068, 1080 (Romero) [“For reasons we shall
explain, we hold that notwithstanding the special relationship between the Romeros and
the teenage invitees, the Romeros did not owe a duty of care to supervise Ryan at all
times during her visit, to warn her, or to protect her against Joseph’s sexual assault,
because there is no evidence from which the trier of fact could find that the Romeros had
prior actual knowledge of Joseph’s propensity to sexually assault female minors.”];
Juarez v. Boy Scouts of America, Inc. (2000) 81 Cal. App. 4th 377, 395 [rejecting claim
against Boy Scouts of negligent “selection, supervision and retention” of scoutmaster
where “there was no information accessible to the Scouts that would cause them to
suspect” that the scoutmaster “had a propensity to molest children”].)
Here, as in these cases, there are no facts that might have shown propensity
or disposition on Birdsong’s part to sexually assault a foster child. And, since the case
comes to us on a motion for summary judgment, it is a reasonable assumption that Z.V.
has had ample opportunity to discover whether Riverside County had some prior
knowledge of a propensity on Birdsong’s part to sexually assault the county’s dependent
children.
The strongest fact we have in that regard was Z.V.’s own hesitancy to go
with Birdsong on the afternoon he was transported to the new foster home, but the nature
of that hesitancy – Z.V.’s fear he was sexual prey for Birdsong – was not outwardly
expressed by Z.V. The most Z.V. said was there was “something about him I didn’t
trust.”
For its part, the opening brief seems to realize that this single incidence of
expression of mistrust cannot establish negligent supervision, so the brief relies on this
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one fact: Birdsong drove a county van with a county insignia on it. The use of the van,
says the brief, “constitutes a total lack of supervision or ineffective supervision.” We
cannot agree. There is nothing about the fact a licensed social worker, employed by a
county was driving a van owned by that county, that shows any propensity for sexual
misbehavior.
The most that can be extracted from the fact the county allowed Birdsong a
van is that it gave him an implement which he used to lure Z.V. into a position where he
could sexually assault Z.V. (And actually, it wasn’t even that: Birdsong didn’t lure Z.V.
into his van, he simply used the van to transport Z.V. to his own apartment.) This
argument still fails because propensity is a function of human psychology, not an
inanimate instrument which might help facilitate an attack, as illustrated by Margaret W.
v. Kelley R. (2006) 139 Cal. App. 4th 141 (Margaret W.), Romero, supra, 89
Cal. App. 4th 1068, and Chaney v. Superior Court (1995) 39 Cal. App. 4th 152 (Chaney).
In Margaret W., a high school girl went to a sleepover at a friend’s house
and drank too much there, but then left the house in the company of a girlfriend and some
boys, and then was later brutally raped by the boys. She might not have suffered the
attack if she hadn’t been allowed alcohol at the girlfriend’s house – that is, the home and
the alcohol certainly were part of the chain of causation in the events leading up to the
attack. Even so, the mother of the sleepover host was entitled to summary judgment
because of the absence of any evidence the mother knew of any propensity of the boys to
commit sexual assaults. (Margaret W., supra, 139 Cal.App.4th at pp. 158-159.) And
instrumentalities furnished by defendants played even greater roles in Chaney and
Romero, where the attacks actually took place in the defendants’ homes after the plaintiff
had been invited there. Nevertheless, the absence of knowledge of propensity precluded
liability. (See Romero, supra, 89 Cal.App.4th at pp. 1080-1084; Chaney, supra, 39
Cal.App.4th at pp. 156-158.) Here, there is a weaker nexus between Birdsong’s use of a
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van and the eventual attack than there was between the homes in Margaret W., Romero
and Chaney.
IV. CONCLUSION
Despite the fact the law offers no opportunity for Z.V. to seek relief from
Riverside County, we are not unmindful of the trauma experienced by Z.V. on Birdsong’s
account. We fully agree with the sentiments expressed by Justice Arabian in his
concurring opinion in Mary M. that sexual assault is a violation of the self and an
indignity that “cannot ever be fully righted.” (Mary M., supra, 54 Cal.4th at p. 222
(conc. opn. of Arabian, J.).) So we have no intention of further aggravating Z.V.’s
trauma. Though we affirm the judgment in favor of the county, we exercise our own
discretion to depart from the usual rule that the loser pays costs on appeal. Here each
side will bear its own costs.
BEDSWORTH, J.
WE CONCUR:
RYLAARSDAM, ACTING P. J.
IKOLA, J.
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