California Court of Appeals, Fourth District, Third Division
Appeal from a judgment of the Superior Court of Riverside County, No. RIC10019957 Matthew C. Perantoni, Judge.
Shernoff Bidart Echeverria Bentley, Michael J. Bidart, Gregory L. Bentley, Steven Schuetze; Rizio & Nelson and Gregory G. Rizio for Plaintiff and Appellant.
Smith Law Offices, Douglas C. Smith, Nathan A. Perea; Arias & Lockwood and Christopher D. Lockwood for Defendant and Respondent.
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 [285 Cal.Rptr. 99, 814 P.2d 1341] (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 [48 Cal.Rptr.2d 510, 907 P.2d 358] (maj. opn.) (Lisa M.) [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 (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.
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, 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. (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 about 1:00 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 descriptionand 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 did not want to go with Birdsong because “there was something about him I did not trust.” However, despite his vocalized mistrust, Z.V. was told by other social workers in the office that if he did not go with Birdsong “they were going to call the police.” The threat accorded with the social workers' own understanding that dependent minors such as Z.V. had to comply with social workers’ directives.
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 the 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.
Sometime 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 did
not want to be at the new home, he wanted to be in a different placement. Birdsong told Z.V. to stay thereBirdsong 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 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 went to the new foster home in a county van, thinking he was acting in Z.V.’s best interest in doing so. 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 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.
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 ...