APPEAL from a judgment of the Superior Court of Sacramento County, Shelleyanne W.L. Chang, Judge. Affirmed. (Super.Ct.No. 05AS03870).
The opinion of the court was delivered by: Scotland , P. J.
CERTIFIED FOR PUBLICATION
Not all of the opinions of the California Supreme Court have stood the test of time.*fn1 So it may be with respect to an issue raised in this case.
During the Porn Star Costume Ball at a Sacramento hotel in 2004, a Sacramento Fire Department Captain allegedly allowed firefighters to attend the event and even to drive a fire truck there and use it to "pick up" women.
The situation led to a lawsuit and this appeal, which presents the question whether the City of Sacramento can be vicariously liable for nonconsensual sexual assaults alleged to have been committed in the fire truck by two firefighters (one of whom was off duty at the time) against a woman (a photographer at the event) who had accepted their invitation to take pictures of them on the fire truck.
At issue is the California Supreme Court‟s decision in Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202 (hereafter Mary M.), which held a public entity that employs a police officer can be vicariously liable for a rape committed by the officer against a woman he detained while on duty. The decision was a departure from the ordinary rule that an employee who commits a sex crime while on duty has not acted within the scope of employment and, thus, the employer is not vicariously liable for the harm to the victim because the crime has no causal nexus to the employee‟s work.
It is questionable whether the holding in Mary M. is still viable. Indeed, the Chief Justice of California has described it as an "aberrant holding" that was "wrongly decided" and should be "overrule[d.]" (Farmers Ins. Group v. County of Santa Clara (1995) 11 Cal.4th 992, 1020 (conc. opn. of George, J.); see also Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 306 (conc. opn. of George, J.).) Nonetheless, it remains the rule of law unless a majority of the California Supreme Court decides otherwise.
We reject plaintiff‟s effort to apply Mary M. to the facts of this case. For reasons that follow, we conclude the Mary M. holding that a public employer of a police officer may be vicariously liable for a sex crime committed by the officer against a person detained by the officer while on duty is, at best, limited to such acts by an on-duty police officer and does not extend to any other form of employment, including firefighting. Thus, as a matter of law, the alleged sexual assault by firefighters in this case was not conduct within in the scope of their employment and cannot support a finding that their employer, the City of Sacramento, is vicariously liable for the harm. The trial court so ruled--a decision we now uphold. Because plaintiff‟s other efforts to resurrect her lawsuit against the employer lack merit, we shall affirm the judgment entered in favor of the City of Sacramento.
Plaintiff sued the City of Sacramento (the City), its fire department, and two firefighters, Tom Mitchell and Scott Singleton, whom she accused of sexually assaulting her. Her complaint alleged the following:
Plaintiff, 24-year-old woman working as a photographer at the Porn Star Costume Ball, "came across a crew of firefighters" who "had driven their trucks to the event." She recognized Singleton and, "believing that she could trust the firefighters," she "began to hang out" with them. "Some of the firefighters were drinking and many of them were on-duty," including Mitchell. "There was a captain accompanying the crew who watched the firefighters drink and flirt with many women," including plaintiff.
As plaintiff began photographing them, one of the firefighters "invited her to take photographs of him and another firefighter on the fire truck." She asked an off-duty firefighter to accompany her and followed them to the truck. Singleton (who was off duty), Mitchell (who was on duty), and plaintiff got into the fire truck. Plaintiff "found herself in a position" between Mitchell and Singleton, who were "blocking" the doors. She "began to panic and freeze in her state of fear." "Mitchell instructed Singleton to kiss [plaintiff‟s] breast while Mitchell kissed the other breast" and "stuck his finger in [her] vagina." She protested to no avail. Mitchell then put his hand on the back of her head, pulled it toward him, and forced his erect penis into her mouth. When someone walking by said, "Firemen have all the luck," Mitchell responded, "Yeah we do," "referring to [p]laintiff‟s legs wrapped around him with the appearance from outside the truck that Mitchell was actually inside of [her]." While Mitchell‟s attention was "diverted" by a person who approached the fire truck, plaintiff "took the opportunity to escape[.]"
The complaint further alleged: The City and its fire department had policies permitting firefighters "to take fire trucks and engine trucks to bars and parties, and with captains present, pick up on women and take women on their fire trucks." The employees "took advantage of their status as firefighters and the post 9/11 public sentiment perception that firefighters are "heroes‟" and "abused their authority by picking up women and drinking on the job."
The practice had "been in place for years" and was known to the City and its fire department. "These internal policies and practices . . . put in motion a chain of events wherein [Mitchell] and other firefighters felt that it was permissible to engage in conduct such as that which led to [plaintiff being] sexually assaulted." Mitchell‟s conduct "was ratified and condoned by [the City and its fire department] by the presence of his captain[,] who witnessed and allowed his crew to go to the Porn Star Costume Ball," to "drink while on duty," and to "pick up on women . . . ."
The complaint set forth six causes of action against the City, its fire department, and firefighters Mitchell and Singleton. However, the fire department was later dismissed as a party, and the third cause of action against the City was also dismissed.
The first cause of action (which was labeled negligent hiring, supervision, and retention) alleged: The City knew or reasonably should have known Singleton and Mitchell were incompetent and unfit for duty and posed an undue risk to others. Despite this knowledge, the City retained Singleton and Mitchell in conscious disregard of the rights of plaintiff and other females. By reinstating the firefighters "despite such egregious conduct" and the "undue risk" they pose to "persons such as [p]laintiff," the City "ratified" the firefighters‟ conduct.
The second cause of action (for sexual assault and battery), the fourth cause of action (for intentional infliction of emotional distress), and the fifth cause of action (for negligent infliction of emotional distress) were based on the acts of sexual assault.
The sixth cause of action (for defamation) was based on (1) Mitchell‟s alleged reply, "Yeah we do," when a bystander commented that firefighters "have all the luck," and (2) plaintiff‟s claim that, in press coverage of the incident, the City "portrayed [her] to the public in poor and false fashion by omitting that [she] was at the event as a photographer . . . ."
The complaint sought damages, punitive damages, attorney fees, and costs.
MOTIONS IN THE TRIAL COURT
On April 24, 2007, the City moved for summary adjudication in its favor, contending there were no triable issues of material fact as to any of the causes of action. There was a factual dispute whether the sex acts were consensual; however, for purposes of its motion, the City accepted as true the plaintiff‟s claim of sexual assault.
The City asserted that (1) as a matter of law, it is not vicariously liable for a sexual assault allegedly committed during a social event at a hotel by an off-duty firefighter who was not in uniform (Singleton) and that an alleged sexual assault committed at such an event by an on-duty firefighter (Mitchell) is outside the scope of employment, as a matter of law, and thus not conduct for which the employer is vicariously liable; (2) undisputed facts establish the City did not ratify the misconduct; (3) undisputed facts demonstrate the City had no actual knowledge, or reason to know, of facts that would state a claim for negligent hiring or ...