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Doe v. County of Kern

United States District Court, E.D. California

April 18, 2017

JANE DOE, Plaintiff,
v.
COUNTY OF KERN, et al., Defendants.

          ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR SUMMARY ADJUDICATION TO BE FILED UNDER SEAL (DOC. 60)

          JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE

         The plaintiff claims that while she was a minor and housed at Juvenile Hall, defendant ___, a Kern County Probation Juvenile Correctional Officer, sexually assaulted her on several occasions. ___ had committed the wrongful acts. ___ The Assistant Kern County Probation Officer provided ____ a Skelly[1] notice. However, the Skelly hearing has not yet occurred and, consequently, the Chief Probation Officer has not finally determined whether ____ has committed the wrongful acts or, if he did, the punishment that would be imposed.

         The plaintiff filed this motion seeking a determination that ____ was acting within the course and scope of his employment at the time of the events and, based upon the conclusions of ____, that ____ committed the alleged wrongful acts. Because the Court finds there is no genuine dispute of material fact that ____ only acted within the course and scope of his employment during his contacts with the plaintiff and because there is no evidence the County of Kern has admitted that ____ committed the wrongful acts, the motion for summary adjudication is GRANTED in PART and DENIED in PART.

         I. Legal Standards for Summary Adjudication

         The purpose of summary adjudication “is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.” Matsuhita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation omitted). Summary judgment is appropriate when there is “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). In addition, Rule 56 allows a court to grant summary adjudication, or partial summary judgment, when there is no genuine issue of material fact as to a particular claim or portion of that claim. Fed.R.Civ.P. 56(a); see also Lies v. Farrell Lines, Inc., 641 F.2d 765, 769 n.3 (9th Cir. 1981) (“Rule 56 authorizes a summary adjudication that will often fall short of a final determination, even of a single claim . . .”) (internal quotation marks and citation omitted). The standards that apply on a motion for summary judgment and a motion for summary adjudication are the same. See Fed.R.Civ.P. 56 (a), (c); Mora v. Chem-Tronics, 16 F.Supp.2d 1192, 1200 (S.D. Cal. 1998).

         Summary adjudication should only be entered “after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the “initial responsibility” of demonstrating the absence of a genuine issue of material fact. Id., 477 U.S. at 323. An issue of fact is genuine only if there is sufficient evidence for a reasonable fact finder to find for the non-moving party, while a fact is material if it “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Wool v. Tandem Computers, Inc., 818 F.2d 1422, 1436 (9th Cir. 1987). A party demonstrates summary adjudication is appropriate by “informing the district court of the basis of its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, ' which it believes demonstrates the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323 (quoting Fed.R.Civ.P. 56(c)).

         If the moving party meets its initial burden, the burden then shifts to the opposing party to present specific facts that show there is a genuine issue of a material fact. Fed R. Civ. P. 56(e); Matsuhita, 475 U.S. at 586. An opposing party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsuhita, 475 U.S. at 587. The party is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that a factual dispute exits. Id. at 586 n.11; Fed.R.Civ.P. 56(c). Further, the opposing party is not required to establish a material issue of fact conclusively in its favor; it is sufficient that “the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial.” T.W. Electrical Serv., Inc. v. Pacific Elec. Contractors Assoc., 809 F.2d 626, 630 (9th Cir. 1987). However, “failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 323.

         The Court must apply standards consistent with Rule 56 to determine whether the moving party demonstrated there is no genuine issue of material fact and judgment is appropriate as a matter of law. Henry v. Gill Indus., Inc., 983 F.2d 943, 950 (9th Cir. 1993). In resolving a motion for summary judgment, the Court can only consider admissible evidence. Orr v. Bank of America, NT & SA, 285 F.3d 764, 773 (9th Cir. 2002) (citing Fed.R.Civ.P. 56(e); Beyene v. Coleman Sec. Servs., Inc., 854 F.2d 1179, 1181 (9th Cir. 1988)). Further, evidence must be viewed “in the light most favorable to the nonmoving party” and “all justifiable inferences” must be drawn in favor of the nonmoving party. Orr, 285 F.3d at 772; Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000).

         II. Statement of Facts[2]

         From December 2014 through February 2015, ____ worked for the Kern County Probation department as a Juvenile Correctional Officer at the Juvenile Hall facility in Bakersfield. (UMF 1; Doc. 59-1 at 26) During that time, the plaintiff was a 17-year-old ward of the court and was housed at the female facility known as “300-A” at Juvenile Hall. ____ was assigned to supervise the “300-A” facility and also the coed facility known as “300-B.” (UMF 1, 6) His duties as a JCO III included oversight of paperwork, handling grievances, supervising staff and wards and first line discipline of the wards. (UMF 5) Indeed, if ____ “gave a ward a command and it was disobeyed, the ward could be subject to discipline at Juvenile Hall.” (UMF 3)

         ____ frequently handled maintenance work in the housing units and his supervisor permitted these efforts. (P's Fact 4) On occasion, ____ selected the plaintiff for work “details” that ____ supervised. (P's Fact 6) Using the wards to do work details was consistent with the department's policies (Doc. 59-1 at 16-17), and he had the discretion to choose which wards would work with him. (UMF 4) Notably, the Probation Department had in place policies that prohibited sexual conducted with the wards (Doc. 59-1 at 42-44) and, as admitted by the County at the hearing, policies that precluded officers from being unsupervised with the minors in their rooms, except for limited situations (Doc. 74-2 at 40-42) and required checks of the minors in their rooms every 10 minutes. Again, the County admitted at the hearing that one of the many purposes of these policies was to prevent sexual assault on the wards.

         During each of the interactions between ____ and Plaintiff, “he was on duty and in uniform” (UMF 2) and all of the contacts occurred at the Juvenile Hall facility. When ____ took the plaintiff to the various areas of the grounds where the work detail was to occur, he did so according to his authority as a Juvenile Correctional Officer. (P's Fact 14) ____ admitted the legal conclusion, without objection, that every contact he had with the plaintiff occurred within the course and scope of his responsibilities of his job. (Doc. 59-1 at 30) The plaintiff alleges that while assigned to work details and on other occasions while she was housed at Juvenile Hall, ____ sexually assaulted her. (Doc. 1 at 4)

         ____ was placed on paid administrative leave, but has not yet had his Skelly hearing. (Doc. 68 at 4) If he is dissatisfied with the outcome on the Skelly hearing, he may appeal the determination to the Civil Service Commission. Id. at 3.

         III. Discussion and Analysis

         A. Scope of Employment

         California law imposes liability upon public entities for “injur[ies] proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would have given rise to a cause of action against that employee or his personal representative.” Cal. Gov't Code § 815.2; see also San Mateo Union High Sch. Dist. v. County of San Mateo, 213 Cal.App.4th 418, 432-33 (2013) (“In addition to limited statutory liability for their own conduct and legal obligations, public entities may incur liability, based on respondeat superior principles, for the misconduct of their employees that occurred in the scope of their employment”).

         For an employee to be determined to have been acting within the course and scope of his employment at the time he committed the wrongful acts, “[t]hat the employment brought tortfeasor and victim together in time and place is not enough.” Lisa M. v. Henry Mayo Newhall Memorial Hospital, 12 Cal.4th 291, 298-299 (1995). Rather, the wrongful acts must be an “outgrowth of the employment” and the tort must be reasonably foreseeable given the employee's duties. Id. “The employment, in other words, must be such as predictably to create the risk employees will commit intentional torts of the type for which liability is sought.” Id.

         At trial, Plaintiff has the burden to establish “that the employee's tortious conduct was committed within the scope of employment.” Mary M. v. City of Los Angeles, 54 Cal.3d 202, 209 (1991). “[T]the determination whether an employee has acted within the scope of employment presents a question of fact.” Mary M., 54 Cal.3d at 213. However, it becomes a question of law “when the facts are undisputed and no conflicting inferences are possible.” Id. (quoting Perez v. Van Groningen & Sons, Inc., 41 Cal.3d 962, 968 (1986)).

         In Mary M., the Court examined whether an employer could be held liable under the doctrine of respondeat superior where a police officer raped a woman he detained for erratic driving. Id., 54 Cal.3d at 207. The officer “was on duty as a field supervisor; he was assigned to supervise and train police officers patrolling the streets.” Id. In addition, the officer “was in uniform, wore a badge and a gun, and was driving a marked black-and-white police car. Id. The court determined that liability could be imposed “on the employer of a police officer who, while on duty, commits a sexual assault by misusing his official authority, ” explaining:

[S]ociety has granted police officers great power and control over criminal suspects. Officers may detain such persons at gunpoint, place them in handcuffs, remove them from their residences, order them into police cars and, in some circumstances, may even use deadly force. The law permits police officers to ensure their own safety by frisking persons they have detained, thereby subjecting detainees to a form of nonconsensual touching ordinarily deemed highly offensive in our society. (Terry v. Ohio (1968) 392 U.S. 1 [20 L.Ed.2d 889, 88 S.Ct. 1868].) In view of the considerable power and authority that police officers possess, it is neither startling nor unexpected that on occasion an officer will misuse that authority by engaging in assaultive conduct. The precise circumstances of the assault need not be anticipated, so long as the risk is one that is reasonably foreseeable.

Mary M., 54 Cal.3d at 217-218. The court determined that “the proper inquiry is not whether the wrongful act itself was authorized but whether it was committed in the course of a series of acts of the agent which were authorized by the principal.” Id. at 219 (internal quotation marks, citation omitted). The court explained that it was not holding “as a matter of law, the public employer is vicariously liable whenever an on-duty officer commits a sexual assault, ” but rather finding liability could be imposed where “the plaintiff presented that would support the conclusion that the rape arose from misuse of official authority.” Id. at 221.

         Similarly, in White v. County of Orange, 166 Cal.App.3d 566, 570-571 (Ct. App. 1985), the court determined that an officer who stopped a motorist and threatened to rape and murder her was acting within the course and scope of his employment. The court observed, “whether a tort is committed during the course of employment turns on ‘whether or not: (1) the act performed was either required or ‘incident to his duties' [citation] or (2) the employee's conduct could be reasonably foreseen by the employer in any event [citations].'” Id., quoting Alma W. v. Oakland Unified School Dist., 123 Cal.App.3d 133, 139 (Ct. App. 1981). Given this, the White court held, “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 . . . the wrongful acts flowed from the very exercise of this authority.” Id. at 571.

         The court continued,

White alleges she stopped solely because she was ordered to do so by a deputy sheriff. In other words, she relied on the officer's apparent authority. Had Loudermilk not been a deputy sheriff, in uniform, in a marked patrol vehicle using flashing red lights, White would not have stopped at his direction and the events that followed would not have occurred. Because the County placed Loudermilk in this position of authority, it will be liable for his actions should White prove her allegations at trial.
The use of authority is incidental to the duties of a police officer. The County enjoys tremendous benefits from the public's respect for that authority. Therefore, it must suffer the consequences when the authority is abused.

White at 571-572.

         On the other hand, in Doe 1 v. City of Murrieta, 102 Cal.App.4th 899, 903 (Ct. App. 2002), the court refused to find that the officer was acting within the course and scope of his duties when he sexually molested two minors involved in the police department's Explorer Program. The program was designed to interest youngsters in a career in law enforcement. Id. at 904. During the program, the two minors became infatuated with an officer, Boyd. Id. at 905. They sought out opportunities to do one-on-one “ride-alongs” with Boyd. Id. During some of these ride-alongs, Boyd engaged in “consensual[3]” sex acts with the girls. Id.

         In the subsequent civil action, the Murrieta court was obligated to determine whether Boyd was acting within the course and scope of his employment during the unlawful sexual acts. City ofMurrieta, at 906-910. In refusing to find Boyd acted within the course and scope of his job duties, the court held, “Although Boyd was acting as an on-duty police officer during the majority of his sexual misconduct, his relationship with plaintiffs was that of a supervisor or coworker rather than that of a police officer exercising law enforcement authority over a member of the general public. And Boyd's sexual acts with plaintiffs were undertaken solely for Boyd's and plaintiffs' personal gratification and had no purpose connected to their employment.” Id. at 910. The court continued, “The connection between the law enforcement authority conferred on Boyd to carry out his law enforcement duties is simply too attenuated to deem his sexual misconduct as falling within the range of risks ...


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