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Paul Perry et al v. County of Fresno

April 3, 2013

PAUL PERRY ET AL., PLAINTIFFS AND APPELLANTS,
v.
COUNTY OF FRESNO, DEFENDANT AND RESPONDENT.



APPEAL from a judgment of the Superior Court of Fresno County. Alan M. Simpson, Judge. (Super. Ct. No. 07CECG02501)

The opinion of the court was delivered by: Franson, J.

CERTIFIED FOR PUBLICATION

OPINION

INTRODUCTION

Appellants, Paul Perry, Felicia Davis Perry, and Orene Perry, challenge the dismissal of their complaint against respondent, County of Fresno (County), following the sustaining of the County's demurrer without leave to amend and the granting of the County's summary judgment motion. Appellants alleged that the County was liable for damages caused by the County's employee, Alejandro Vital when, in his capacity as a correctional officer, Vital accessed information regarding various jail inmates and then wrote fake letters to those inmates that were purportedly from Paul Perry. Vital wrote these letters to provoke the inmates to retaliate against Perry and the other appellants and thereby intimidate them into dropping a personal injury lawsuit they had filed against Vital. The trial court ruled on demurrer that appellants had not stated a cause of action for civil rights violations against the County for failure to train and supervise Vital and on summary judgment that the County was not liable to appellants for Vital's tortious action under the respondeat superior doctrine.

Relying on Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202 (Mary M.), appellants argue that the County is liable for damages arising from Vital's tortious conduct because Vital was acting within the scope of his employment when he took advantage of, and misused, his power and authority as a law enforcement officer. Appellants further argue that the County deprived appellants of their constitutional rights by failing to properly train and supervise Vital.

As outlined below, the trial court correctly dismissed appellants' complaint. As a matter of law, Vital was not acting within the scope of his employment when he wrote fake letters to jail inmates and attributed them to Paul Perry. While Vital's employment as a correctional officer gave him access to the necessary information, the act of writing the letters was independent from his employment and purely personal. Further, appellants did not establish an underlying constitutional violation related to the County's official policy or custom. Accordingly, the judgment is affirmed.

BACKGROUND

Vital was employed by the County as a correctional officer. In 2005, Vital was assigned to the position of records officer I at the county jail. As such, it was Vital's job to process paperwork concerning jail inmates, including paperwork for the release of inmates from custody and the transfer of inmates to other correctional facilities and agencies. In order to perform these tasks, Vital had full access to the correctional management computer system.

In February 2005, Paul Perry and Felicia Davis Perry were injured in an automobile accident involving a vehicle owned by Vital and driven by his stepson, Austin Villa. In July 2005, the Perrys filed a personal injury lawsuit against Villa and Vital. In August 2005, Vital was notified that he was obligated to pay the Perrys' medical bills, because Vital's insurance company had refused to cover these expenses because Villa was excluded on Vital's policy.

In August 2005, Vital began writing false and threatening letters in an effort to scare Paul Perry into dropping the lawsuit or leaving the area. Vital used his access to the County's correctional management computer system to obtain the necessary information and addresses.

The first letter written by Vital was sent to Paul Perry and was purportedly from Ralph Prickett, a county jail inmate. After the Perrys discovered who Ralph Prickett was, they reported the letter to the sheriff's department. Thereafter, Sergeant John Copher informed the Perrys that Prickett had been contacted and had denied knowing Paul Perry or writing the letter.

In March 2006, the Perrys' personal injury lawyer sent a letter to Vital offering to settle the lawsuit against him for $390,000. Shortly thereafter, Paul Perry received a phone call from Fresno High School informing him that the school had received an anonymous letter. The author of this letter accused Perry of molesting him when he played basketball at Fresno High while Perry was coaching. Perry denied these allegations and obtained a copy of the letter and envelope.

In April 2006, Paul Perry received a letter that had been addressed to a county jail inmate but was returned to Perry's address as undeliverable. This letter, which was purportedly written by Perry, contained racially inflammatory remarks directed toward the inmate. Perry reported this letter and the prior incidents to a ...


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