San Diego Police Officers Ass'n v. City of San Diego
SAN DIEGO POLICE OFFICERS ASSOCIATION Et Al., Plaintiffs and Appellants, v. CITY OF SAN DIEGO, Defendant and Respondent
- Area
- civil
- Panel
- Kathryn Todd (author)
Analysis
The trial court ruled that the underlying sexual battery claim did not arise out of an act or omission in the scope of Goudarzi's employment, denying his request for reimbursement of defense costs under Government Code section 996.4. The Court of Appeal affirmed, holding that because the record contained no evidence that Goudarzi misused his official authority or was engaged in a series of authorized acts, the conduct was outside the scope of employment as a matter of law.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Determination that the underlying action did not arise out of an act or omission in the scope of Goudarzi's employment, precluding reimbursement under Gov. Code § 996.4.“Goudarzi was not in the course of a series of authorized or official acts on the night in question, and we have no evidence of any misuse of official authority.” | de novo | correct | agree with court The appellate court correctly applied de novo review because the facts were undisputed in the limited record. It properly distinguished the present case from *Mary M.* and *White* by noting the absence of evidence that the officer was on duty, in uniform, or misusing official authority to facilitate the misconduct. The court correctly rejected the argument that the allegations in the complaint alone could establish scope of employment, adhering to the statutory requirement that the employee establish the act occurred within the scope of employment. |
Authorities
- relied: Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202 — An on-duty police officer who misuses official authority to commit sexual assault is acting within the scope of employment, but the court noted that substantial deviation for personal purposes takes conduct outside the scope.
- relied: White v. County of Orange (1985) 166 Cal.App.3d 566 — A deputy sheriff acting on duty in a marked car who misuses the authority inherent in his position to commit misconduct is acting within the scope of employment.
- relied: Alma W. v. Oakland Unified School Dist. (1981) 123 Cal.App.3d 133 — Scope of employment turns on whether the act was required or incident to duties, or if the misconduct was reasonably foreseeable; distinguishes police officers from school custodians regarding the nature of their authority.
- relied: Clark Equipment Co. v. Wheat (1979) 92 Cal.App.3d 503 — An employer is liable if the agent's position facilitates the consummation of fraud or misconduct, even if acting for personal purposes, provided the third party relies on apparent authority.
- relied: Perez v. Van Groningen & Sons, Inc. (1986) 41 Cal.3d 962 — Determining if an employee substantially deviated from duties requires viewing the employee's conduct as a whole to see if it was part of a series of authorized acts.
- relied: Laws v. County of San Diego (1990) 219 Cal.App.3d 189 — The Government Code provides an adequate framework for protecting an officer's defense interests when the scope of employment is in question, rejecting the need to import insurance law concepts.
The appellate opinion: sound — The opinion is sound because it correctly applies the established legal standard for scope of employment to the specific, undisputed facts of the record. It effectively distinguishes the present case from controlling precedents like *Mary M.* by highlighting the lack of evidence regarding the misuse of official authority or the officer's on-duty status.
How this analysis was made · dispute it
record incompleteAfter a bench trial in a Government Code section 996.4 declaratory relief action, the trial court found that police sergeant Goudarzi was not acting within the course and scope of his employment when the alleged sexual battery occurred on October 13, 1990, and entered judgment for the City of San Diego, denying reimbursement of the defense costs the Police Officers Association had paid in the underlying Loche action. The Court of Appeal, reviewing de novo on undisputed facts, affirmed, holding that off-duty sex at the officer's home with a citizen informant was not within the scope of employment, that the allegations of the underlying complaint are not evidence, and that section 996.4 requires actual occurrence within the scope of employment rather than mere allegations.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Finding that Goudarzi was not acting within the course and scope of his employment on October 13, 1990 for purposes of Government Code section 996.4, resulting in judgment for the City“After the City rested, the court found Goudarzi was not acting within the “course and scope” of his employment on October 13, 1990, and entered judgment for the City.” | de novo | correct | agree with court The court correctly applied Mary M., White, Perez and Alma W.: scope of employment turns on whether the wrongful act occurred within a series of authorized acts or through misuse of official authority. The only evidence showed the officer was on vacation, at home, off duty, without his City car, and that the sexual relationship was personal; there was no evidence of threats or misuse of police authority. Treating undisputed facts as presenting a question of law and reviewing de novo is consistent with Mary M. and White. |
Rejection of the argument that scope of employment should be determined from the allegations of the Loche complaint under an insurance duty-to-defend analogy, and treatment of the verified complaint as non-evidence“The allegations in Loche’s verified complaint are not evidence and afford no proof acts occurred within the scope of Goudarzi’s employment.” | de novo | correct | agree with court The court properly relied on Evidence Code section 140 and Code of Civil Procedure section 420 to hold that pleadings are formal allegations, not evidence, and on Laws v. County of San Diego and the 1963 Law Revision Commission report (use of 'occurred') to read section 996.4 as requiring proof of actual acts within the scope of employment. Appellants cited no authority for importing insurance concepts, and the statutory text supports the court's reading. |
Allocation of the burden of proof on scope of employment to the public employee under section 996.4 despite the absence of express burden language comparable to section 825.2“The underscored language dispels any doubt as to the Legislative intent in this regard.” | de novo | correct | agree with court The court's reliance on the Law Revision Commission's statement that the employee recovers 'if he establishes that the act or omission occurred in the scope of his public employment' is a legitimate use of legislative history, and the statutory structure (employee entitled to recover 'if' the action arose in scope; entity bears burden only on the fraud/malice exceptions) supports placing the initial burden on the employee. The analysis is brief and confined to a footnote, but the conclusion is defensible. |
City's contention that the POA lacked standing to seek reimbursement under section 996.4“The City contends POA lacks standing, but cites no authority for their conclusion.” | unclear | not reached | agree with court The court assumed without deciding that the POA, having paid for the defense, was the real party in interest. Because the judgment was affirmed on the merits, declining to resolve standing was a reasonable disposition and did not affect the result. |
Authorities
- relied: Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202 — Scope of employment is a question of law when facts are undisputed; an on-duty officer who misuses official authority to commit sexual assault acts within the scope of employment, but an employee who substantially deviates from duties for personal purposes does not; conduct must be viewed as a whole.
- relied: White v. County of Orange (1985) 166 Cal.App.3d 566 — A police officer's wrongful acts flowing from the exercise of official authority while on duty are incidental to his duties and within the scope of employment.
- relied: Alma W. v. Oakland Unified School Dist. (1981) 123 Cal.App.3d 133 — Scope of employment turns on whether the act was required or incident to the employee's duties or whether the misconduct was reasonably foreseeable by the employer.
- relied: Clark Equipment Co. v. Wheat (1979) 92 Cal.App.3d 503 — Source of the two-part scope of employment test and the Restatement principle that a principal may be liable when it places the agent in a position facilitating the wrong.
- relied: Perez v. Van Groningen & Sons, Inc. (1986) 41 Cal.3d 962 — Whether an employee substantially deviated from employment asks whether the wrongful act was committed within a series of acts authorized by the principal, not whether the act itself was authorized.
- relied: Laws v. County of San Diego (1990) 219 Cal.App.3d 189 — The Government Code provides an adequate framework for protecting a public employee's defense interests when scope of employment is disputed, without importing insurance duty-to-defend concepts.
- missed: John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438 — A public employee's sexual misconduct arising from a relationship facilitated by employment (teacher molesting a student during an authorized program) was nonetheless outside the scope of employment; the court could have addressed this binding authority on sexual misconduct and scope of employment, though it supports the result reached.
The appellate opinion: sound with gaps — The court correctly identified the governing scope-of-employment test from Mary M., White and Perez, and applied it to a record showing only off-duty, at-home, personal conduct with no evidence of misuse of police authority, while properly refusing to treat pleadings as evidence or import insurance duty-to-defend principles into section 996.4. It did not discuss John R. v. Oakland Unified School Dist., the Supreme Court's leading case on employee sexual misconduct and scope of employment, and resolved the burden-of-proof question only in a footnote, but neither omission undermines the result.
How this analysis was made · dispute it
record incompleteOpinion — Todd
Opinion
TODD, J.San Diego Police Officers Association (POA) and Harold Goudarzi appeal a judgment for the City of San Diego (City) on the grounds it *1739 was error to conclude an underlying action (the Loche action), against Goudarzi and the City, did not arise out of an act or omission in the scope of Goudarzi’s employment as a police officer, within the meaning of Government Code 1 section 996.4.
Factual and Procedural Background
Goudarzi, a sergeant with the San Diego Police Department (Department) working on the homicide task force investigating serial murders, met Denise Loche when she phoned the Department to give information concerning an investigation. Loche became an informal citizen informant working directly under Goudarzi. A personal relationship also developed. Prior to October 13, 1990, the two had sex on three or four occasions at Goudarzi’s condominium, always while Goudarzi was off duty.
Loche claimed that following a period of intimidation and coercion, Goudarzi performed acts of sexual battery upon her person on October 13, 1990. She filed a complaint against Goudarzi and the City alleging six causes of action: (1) battery; (2) civil rape; (3) rape by fear and fraud; (4) civil assault with the intent to commit rape and administering stupefying drugs with the intent to commit a felony; (5) negligence 2 ; and (6) punitive damages.
Goudarzi formally requested the City to defend him pursuant to section 995. 3 The City refused to provide this defense citing section 995.2, subdivision (a)(1) and (2). 4 The POA provided Goudarzi’s defense.
*1740 Only the battery cause of action survived nonsuit motions. In the underlying action the jury rendered a general verdict 5 that no battery was committed. 6 The question of course and scope of employment was never reached.
Goudarzi and the POA brought this declaratory relief action under section 996.4 to recover their costs incurred defending the Loche action. Section 996.4 provides:
“If after request a public entity fails or refuses to provide an employee or former employee with a defense against a civil action or proceeding brought against him and the employee retains his own counsel to defend the action or proceeding, he is entitled to recover from the public entity such reasonable attorney’s fees, costs and expenses as are necessarily incurred by him in defending the action or proceeding if the action or proceeding arose out of an act or omission in the scope of his employment as an employee of the public entity, but he is not entitled to such reimbursement if the public entity *1741 establishes (a) that he acted or failed to act because of actual fraud, corruption or malice, or (b) that the action or proceeding is one described in Section 995.4.
“Nothing in this section shall be construed to deprive an employee or former employee of the right to petition for a writ of mandate to compel the public entity or the governing body or an employee thereof to perform the duties imposed by this part.” (Italics added.)
During the bench trial, the court stated: “Just a second, counsel. The Court is taking Judicial Notice of the record below. I told you that at the outset. You could rehash this if you want to, but I heard that and recall that and I base my decision upon that entirely.” 7
No transcript was ever prepared of the testimony adduced in the Loche jury trial.
Goudarzi, the only witness called in this action, testified he was on vacation from October 1, 1990, through October 26, 1990, did not have his City car, but was subject to being called in at any time. He believed all his sexual encounters with Loche were strictly personal business and had nothing to do with his employment with the City. Every time Goudarzi had sex with Loche it was at Goudarzi’s condominium while off duty. Goudarzi never threatened Loche.
After the POA and Goudarzi rested, the City moved for a nonsuit. The motion was taken under submission. After the City rested, the court found Goudarzi was not acting within the “course and scope” of his employment on October 13, 1990, and entered judgment for the City.
Discussion
I
The City contends POA lacks standing, but cites no authority for their conclusion. Having paid for Goudarzi’s defense in the Loche action, POA is the real party in interest here. We assume, without deciding, POA has standing.
II
The central issue is whether the Loche action arose out of an act or omission in the scope of Goudarzi’s employment as a police officer within the meaning of section 996.4.
*1742 Ordinarily, scope of employment is a factual question. When the operable facts are undisputed, it becomes a question of law. (Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 213 [285 Cal.Rptr. 99, 814 P.2d 1341]; White v. County of Orange (1985) 166 Cal.App.3d 566, 570 [212 Cal.Rptr. 493].) Here, the facts in our limited record are undisputed. We therefore apply a de novo review.
In Alma W. v. Oakland Unified School Dist. (1981) 123 Cal.App.3d 133, 139 [176 Cal.Rptr. 287], the court, quoting Clark Equipment Co. v. Wheat (1979) 92 Cal.App.3d 503, 520 [154 Cal.Rptr. 874], stated: “ ‘The determination as to whether an employee committed a tort during the course of his employment turns on whether or not: 1) the act performed was either required or ‘incident to his duties,’ or 2) the employee’s misconduct could be reasonably foreseen by the employer in any event. . . .’ . . .” (Citations deleted.)
This test was applied in White v. County of Orange, supra, 166 Cal.App.3d 566, 571. In White, Loudermilk, a deputy sheriff, while on duty, in uniform, driving a marked patrol unit, stopped an automobile driven by White. Loudermilk placed White in his car and drove her around for several hours in secluded areas, all the while threatening her with rape and murder. The County of Orange moved for summary judgment claiming Loudermilk’s actions were beyond the scope of employment as a matter of law. The motion was granted by the trial court.
The Court of Appeal reversed, noting:
“Our decision turns on the interpretation of the term ‘incident to his duties.’
“A police officer is entrusted with a great deal of authority. This authority distinguishes the situation here from the facts of Alma W. Unlike a school custodian, the police officer carries the authority of the law with him into the community. The officer is supplied with a conspicuous automobile, a badge and a gun to ensure immediate compliance with his directions. The officer’s method of dealing with this authority is certainly incidental to his duties; indeed, it is an integral part of them. Here, unlike Alma W., the wrongful acts flowed from the very exercise of this authority.
“It follows that the employer/govemment must be responsible for acts done during the exercise of this authority. In Clark Equipment Co. v. Wheat (1979) 92 Cal.App.3d 503 [154 Cal.Rptr. 874], the court, quoting the Restatement Second of Agency, stated: ‘If the principal places the agent in a *1743 position to defraud, and the third person relies upon his apparent authority to make the representations, the principal is liable even though the agent was acting for his own purposes [citations]. The theory is that the agent[’s] position facilitates the consummation of the fraud, in that from the point of view of the third person the transaction seems regular on its face and the agent appears to be acting in the ordinary course of the business confided to him. It is immaterial that the principal receives no benefits from the transaction. [Citation.]’ {Clark, supra, 92 Cal.App.3d 503, 521, italics deleted.)” (166 Cal.App.3d at p. 571.)
A similar result was reached by the California Supreme Court in Mary M. v. City of Los Angeles, supra, 54 Cal.3d 202. There, Sergeant Schroyer, an on-duty, uniformed police officer driving a marked patrol car, stopped Mary, who was driving home alone. After she failed a field sobriety test, Schroyer drove Mary to her home where he raped her. Schroyer threatened to take Mary to jail if she resisted. The court reasoned the police officer was in a unique position of authority. When he committed a sexual assault through misuse of his authority, the public employer must be held accountable. {Id. at p. 221.) Even tortious conduct that violates an employee’s official duties or disregards the employer’s express orders can be within the scope of employment. {Id. at p. 209.)
Justice Baxter, concurring in the judgment but not in the court’s reasoning, notes the same rationale could apply equally to an off-duty, nonuniformed police officer who misuses official authority to commit misconduct. (54 Cal.3d at p. 241.)
However, when an employee substantially deviates from his duties for personal purposes, the employee is not acting within the scope of employment. (54 Cal.3d at pp. 218-219.) Whether an employee substantially deviated, and, therefore, acted outside the scope of employment, requires an inquiry into whether the wrongful act was committed in the course of a series of acts of the agent which were authorized by the principal, not whether the act itself was authorized. The employee’s conduct must be viewed as a whole. {Perez v. Van Groningen & Sons, Inc. (1986) 41 Cal.3d 962, 970 [227 Cal.Rptr. 106, 719 P.2d 676]; Mary M. v. City of Los Angeles, supra, 54 Cal.3d at pp. 218-219.)
The Mary M. court reasoned Schroyer was acting within the scope of his employment when he detained Mary, had her perform a field sobriety test, and when he ordered her into his police car. Schroyer then misused his official authority by raping Mary and threatening to take her to jail if she *1744 resisted. The court viewed the transaction as a whole in concluding the officer was acting within the scope of his employment when he raped Mary. (54 Cal.3d at p. 219.)
Goudarzi was not in the course of a series of authorized or official acts on the night in question, and we have no evidence of any misuse of official authority. Goudarzi was on vacation, at home, having sex with Loche on October 13, 1994. The only connections between the facts and Goudarzi’s employment were that Loche was an informal informant and Goudarzi was a vacationing police officer subject to being called to duty. These circumstances do not bring their sex acts within the scope of Goudarzi’s employment. We have no evidence Goudarzi misused his official authority to coerce Loche into their sexual relationship. Goudarzi, the only witness, testified he never threatened Loche and that their sex had nothing whatsoever to do with his employment as a police officer.
POA and Goudarzi argue we should not focus only on the events of October 13. The alleged prior threats are the acts which would have made the sex wrongful. While this could be true, we have no evidence of any threats. POA and Goudarzi chose not to include a transcript of the testimony in the Loche action in the record. The allegations in Loche’s verified complaint are not evidence and afford no proof acts occurred within the scope of Goudarzi’s employment. Evidence Code section 140 provides: “ ‘Evidence’ means testimony, writings, material objects, or other things presented to the senses that are offered to prove the existence or nonexistence of a fact.” Loche’s verified complaint was never offered into evidence to prove the existence or nonexistence of any facts. Pleadings are merely formal allegations. (Code Civ. Proc., § 420.) 8
POA and Goudarzi reason once the jury found against Loche, there was no basis left for a determination whether Goudarzi was acting within the scope of his employment. They maintain it is impossible to prove acts occurred within the scope of Goudarzi’s employment in the face of the finding of no misconduct. Because of this alleged paradox, they invite us to interject insurance law concepts on the duty to defend into the statutory scheme. We are asked to determine the scope of employment issue based upon the allegations in the Loche complaint. No authority is cited for this method of implementing section 996.4, and we decline the invitation for such innovation. This court previously held the Government Code provides an adequate framework for the protection of an officer’s defense interests when an issue *1745 exists as to whether an officer was acting within the course and scope of his employment. (Laws v. County of San Diego (1990) 219 Cal.App.3d 189, 199-200 [267 Cal.Rptr. 921].) We reaffirm that holding.
In a January 2, 1963, report, the California Law Revision Commission, proposing adoption of section 996.4, stated: “A second remedy should, therefore, be available to the defendant when the public entity fails or refuses to defend him: He should be given a cause of action against the public entity to recover the reasonable expenses he necessarily incurs in defending the action or proceeding if he establishes that the act or omission occurred in the scope of his public employment and the public entity fails to establish that he was guilty of actual fraud, corruption or actual malice.”[ 9 ] (Recommendation Relating to Sovereign Immunity, No. 4, Defense of Public Employees (Jan. 1963) 4 Cal. Law Revision Com. Rep. (1963) pp. 1305, 1308, italics added, fn. deleted.) The California Law Revision Commission’s use of the word “occurred” indicates it envisions actual occurrences in the scope of public employment, not mere allegations of such occurrences. The commission was also aware of the potential availability of civil remedies such as malicious prosecution when unfounded proceedings are brought against public personnel. (Id. at p. 1309.)
Section 996.4 simply provides no remedy for an officer who is sued for acts which, although alleged to be, were not within the scope of the officer’s employment. Any desire for modification of section 996.4 should be directed to tiie Legislature.
Disposition
Affirmed.
Kremer, P. J., and Benke, J., concurred.
All statutory references are to the Government Code unless otherwise specified.
The negligence cause of action was against the City only. The City was also sued on a respondeat superior theory, alleging vicarious liability for acts within the course and scope of employment.
Section 995 provides:
“Except as otherwise provided in Sections 995.2 and 995.4, upon request of an employee or former employee, a public entity shall provide for the defense of any civil action or proceeding brought against him, in his official or individual capacity or both, on account of an act or omission in the scope of his employment as an employee of the public entity. “For the purposes of this part, a cross-action, counterclaim or cross-complaint against an employee or former employee shall be deemed to be a civil action or proceeding brought against him.”
Section 995.2 provides:
“(a) A public entity may refuse to provide for the defense of a civil action or proceeding brought against an employee or former employee if the public entity determines any of the following:
“(1) The act or omission was not within the scope of his or her employment.
“(2) He or she acted or failed to act because of actual fraud, corruption, or actual malice.
“(3) The defense of the action or proceeding by the public entity would create a specific conflict of interest between the public entity and the employee or former employee. For the *1740 purposes of this section, ‘specific conflict of interest’ means a conflict of interest or an adverse or pecuniary interest, as specified by statute or by a rule or regulation of the public entity.
“(b) If an employee or former employee requests in writing that the public entity, through its designated legal counsel, provide for a defense, the public entity shall, within 20 days, inform the employee or former employee whether it will or will not provide a defense, and the reason for the refusal to provide a defense.
“(c) If an actual and specific conflict of interest becomes apparent subsequent to the 20-day period following the employee’s written request for defense, nothing herein shall prevent the public entity from refusing to provide further defense to the employee. The public entity shall inform the employee of the reason for the refusal to provide further defense.”
The form sent to the jury is titled “special verdict.” It, however, calls for a general verdict on the battery cause of action. (See 7 Witkin, Cal. Procedure (3d ed. 1985) Trial, §§ 319-320, pp. 320-321.)
The actual wording on the “special verdict” form is:
“We, the jury in the above-entitled action, find the following Special Verdict on the questions submitted to us:
“Question No. 1: Did defendant Hal Goudarzi commit a battery or sexual battery on the person of Denise Loche on October 13, 1990?
“Answer ‘yes’ or ‘no.’
“Answer: No.
“If the answer to Question No. 1 is ‘yes’ continue to Question No. 2. If the answer to Question No. 1 is ‘no,’ please sign and return the verdict.
“Question No. 2: Was Hal Goudarzi acting in the course and scope of his employment with defendant City of San Diego on October 13, 1990, during the time he committed the act alleged above?
“Answer ‘yes’ or ‘no.’
“Answer:__”
(The answer to question No. 1 is written as “No"; question No. 2 is not answered.)
Judge Hollywood also presided over the trial in the Loche action.
Code of Civil Procedure section 420 provides: “The pleadings are the formal allegations by the parties of their respective claims and defenses, for the judgment of the court.”
POA and Goudarzi strenuously maintained during oral argument the absence of a specific provision in section 996.4 allocating the burden of proof to the public employee on the scope of employment issue, unlike section 825.2 which specifically allocates the burden to the public employee, indicates a contrary intention by the Legislature. The underscored language dispels any doubt as to the Legislative intent in this regard.
Cites, in this corpus
- Mary M. v. City of Los Angeles S005910 · 1991-09-05
- Laws v. County of San Diego D009800 · 1990-03-28
- Perez v. Van Groningen & Sons, Inc. S.F. 24882 · 1986-06-23
- White v. County of Orange G000263 · 1985-03-22
- Alma W. v. Oakland Unified School District Civ. 46462 · 1981-08-28
- Clark Equipment Co. v. Wheat Civ. 41692 · 1979-05-01
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