Opinion

Juarez v. San Bernardino City Unified Sch. Dist.

Court
California Court of Appeal
Filed
Nov 25, 2024
Status
Published
Cited by
0 cases
Authority
More cited than 33.1%

The opinion

Filed 11/25/24

CERTIFIED FOR PARTIAL PUBLICATION *

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

ANTONIO JUAREZ et al., D084517

Plaintiffs and Appellants,

v. (Super. Ct. No. CVRI2203422)

SAN BERNARDINO CITY UNIFIED

SCHOOL DISTRICT,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of Riverside County,

Daniel A. Ottolia, Judge. Reversed and remanded with directions.

Olivo & Associates and Eduardo Olivo for Plaintiffs and Appellants.

Cummings, McClorey, Davis, Acho & Associates, Ryan D. Miller, and

Daniel Ferris for Defendant and Respondent.

Plaintiffs Antonio Juarez, Jose Hinojosa, Jose Espinosa, and Maria

Morfin (plaintiffs) appeal from the trial court’s judgment of dismissal

following an order sustaining defendant San Bernardino City Unified School

District’s (District) demurrer to plaintiffs’ second amended complaint,

* Pursuant to California Rules of Court, rule 8.1110, this opinion is

certified for publication with the exception of parts II and III.

without leave to amend. This action arises from an encounter between

plaintiffs and Officer Alejandro Brown, then a District employee, which

resulted in Officer Brown pleading guilty to assault and battery of Juarez

and threatening the other plaintiffs under color of law. In this ensuing civil

action, the trial court sustained the District’s demurrer on the basis that the

complaint failed to allege sufficient facts to establish that Officer Brown was

acting within the course and scope of his employment with the District.

We reverse and remand for further proceedings. Based on the specific

facts pled in the complaint, scope of employment is a factual issue that

cannot be resolved as a matter of law on demurrer. Taking these allegations

as true, Officer Brown’s off-duty misconduct while investigating a suspected

theft of his cell phone and wielding his authority as a peace officer for the

District may fairly be regarded as an outgrowth of his employment—and is

not so unusual or startling that it would seem unfair to expose the District to

liability.

FACTUAL AND PROCEDURAL BACKGROUND

We derive our facts from those properly pled in plaintiffs’ second

amended complaint. (See Moore v. Conliffe (1994) 7 Cal.4th 634, 638 [we

“treat the demurrer as admitting all material facts properly pleaded, but not

contentions, deductions, or conclusions of fact or law”].)

A. The Cell Phone Incident

In February 2018, Juarez found a cell phone on the ground in Cherry

Valley, California, located in Riverside County. Juarez placed it in his truck.

Later that afternoon, when Juarez and the other plaintiffs were outside of

Hinojosa’s home in nearby Beaumont, California, Officer Brown approached

them after tracking his cell phone to their location.

2

Officer Brown, who was employed by the District as a police officer at

the time, was carrying his firearm and had his District police badge clipped

to his belt. He immediately identified himself as a police officer for the

District, displayed his badge to plaintiffs, and demanded that they comply

with his commands. Officer Brown then pulled his firearm, cocked it, and

aimed it at Juarez, Espinosa, and Hinojosa, while Morfin, Hinojosa’s wife,

watched from inside the house. Officer Brown demanded they turn over the

cell phone and repeatedly asserted his authority as a police officer for the

District. Juarez retrieved the phone from his truck and attempted to hand it

to Officer Brown, but Officer Brown ordered Juarez to put the phone on the

ground. As Juarez went to do so, Officer Brown struck Juarez in the face

with his gun, causing Juarez to fall back, hit his head on the ground, and lose

consciousness. Officer Brown then took pictures of plaintiffs and told them

he knew who they were.

Officer Brown later pled guilty in San Bernardino County Superior

Court to assault by a public officer (Pen. Code, § 149) and threatening the

other plaintiffs under color of law, admitting that he acted under the color of

authority as a District police officer when he detained plaintiffs and

assaulted Juarez.

B. The Second Amended Complaint and Demurrer

After filing this lawsuit, plaintiffs filed a second amended complaint in

August 2022 against Officer Brown and the District alleging the following

causes of action: (1) negligence; (2) battery; (3) assault; (4) negligent hiring,

supervision, and retention; (5) false arrest and false imprisonment;

(6) intentional and negligent infliction of emotional distress; and (7) violation

of Civil Code section 52.1 (the Bane Act).

3

The complaint asserted the District was liable under Government Code

section 815.2, subdivision (a), which provides that “[a] public entity is liable

for injury 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,

apart from this section, have given rise to a cause of action against that

employee or his personal representative.” In support of that theory, the

complaint alleged facts about the authority the District bestows on its

employees as peace officers. For example, the complaint alleged that under

Penal Code section 830.32,1 the District advises its employee officers that

their authority as peace officers extends to any place in California as to

public offenses endangering persons or property. District officers are

expected to exercise that authority as part of their “fundamental duty” to

ensure the safety and security of life and property. Plaintiffs alleged that the

1 Penal Code section 830.32 provides, in relevant part, that school

district police officers—whose primary duty is the enforcement of the law—

“are peace officers whose authority extends to any place in the state for the

purpose of performing their primary duty or when making an arrest pursuant

to [Penal Code] Section 836 as to any public offense with respect to which

there is immediate danger to person or property, or of the escape of the

perpetrator of that offense . . . .” (Pen. Code, § 830.32, subd. (a).)

Penal Code section 836 provides, in relevant part, that a peace officer

“may arrest a person in obedience to a warrant, or, pursuant to the authority

granted to him or her by [the chapter containing Penal Code section 830.32]

without a warrant, may arrest a person whenever . . . [¶] (1) The officer has

probable cause to believe that the person to be arrested has committed a

public offense in the officer’s presence. [¶] (2) The person arrested has

committed a felony, although not in the officer’s presence. [¶] (3) The officer

has probable cause to believe that the person to be arrested has committed a

felony, whether or not a felony, in fact, has been committed.” (Pen. Code,

§ 836, subd. (a).)

4

District authorizes its police officers to use force to seize evidence and prevent

its destruction, and that the District equips officers with firearms to carry in

the performance of their duties—whether they are officially on duty or not.

The District requires that its officers display their badges while “on duty or

otherwise acting in an official or authorized capacity.” The complaint further

alleged the District instructs its officers that they are authorized to perform

their duties at all hours of the day (except when making misdemeanor

arrests) and that they are authorized to exercise their peace officer authority

anywhere in the United States.

Regarding Officer Brown’s encounter with plaintiffs, in addition to the

facts described above, the complaint alleged that he was investigating the

whereabouts of his cell phone when he approached plaintiffs. Juarez,

Espinosa, and Hinojosa understood and believed that based on his

representations, Officer Brown was exercising his authority as a police

officer. The complaint alleged on information and belief that Officer Brown

used his cell phone to “perform his job as a police officer for [the District] and

that he sought to retrieve the cell phone” in order to perform his job. The

complaint also asserted that Officer Brown thought Juarez had stolen his

phone, that plaintiffs were in possession of stolen property, and that Officer

Brown’s investigation led him to plaintiffs’ location.

The District filed a demurrer to the second amended complaint, which

the trial court sustained without leave to amend. The court found that the

complaint failed to allege sufficient facts to hold the District directly liable for

Officer Brown’s acts, and that it failed to sufficiently allege Officer Brown

acted “within the course and scope of his employment to establish vicarious

liability.” The court further found that the complaint failed to sufficiently

allege that Officer Brown was exercising arrest powers pursuant to Penal

5

Code section 836 at the time of the incident, and that the complaint failed to

state a cause of action for negligent hiring, supervision, and retention. The

court then dismissed the complaint as to the District and entered judgment

in the District’s favor.

DISCUSSION

I

Plaintiffs argue on appeal that the trial court erred by finding the

complaint failed to allege sufficient facts to establish that Officer Brown was

acting within the scope of his employment. We agree.

A. Governing Law

“To determine whether a demurrer was properly sustained, we review

the allegations of the operative complaint for facts sufficient to state a claim

for relief. In doing so, we treat the demurrer as admitting all material facts

properly pleaded. ‘ “Further, we give the complaint a reasonable

interpretation, reading it as a whole and its parts in their context.” ’ ” (C.A.

v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 866

(C.A.).) We independently review the trial court’s ruling and determine de

novo whether the complaint alleges facts sufficient to state a cause of action.

(Mathews v. Becerra (2019) 8 Cal.5th 756, 768.) We also liberally construe

the allegations with a view to substantial justice between the parties. (Code

Civ. Proc., § 452.)

Under the doctrine of respondeat superior and Government Code

section 815.2, a public entity employer may be held vicariously liable for torts

committed by an employee within the scope of employment. (Mary M. v. City

of Los Angeles (1991) 54 Cal.3d 202, 208 (Mary M.).) “ ‘A risk arises out of the

employment when “in the context of the particular enterprise an employee’s

conduct is not so unusual or startling that it would seem unfair to include the

6

loss resulting from it among other costs of the employer’s business.

[Citations.] In other words, where the question is one of vicarious liability,

the inquiry should be whether the risk was one ‘that may fairly be regarded

as typical of or broadly incidental’ to the enterprise undertaken by the

employer.’ ” ’ ” (Id. at p. 209.) “Tortious conduct that violates an employee’s

official duties or disregards the employer’s express orders may nonetheless be

within the scope of employment. [Citations.] So may acts that do not benefit

the employer [citation], or are willful or malicious in nature [citations].”

(Ibid.)

The scope of employment has been interpreted broadly in California

under the respondeat superior doctrine. (Farmers Ins. Group v. County of

Santa Clara (1995) 11 Cal.4th 992, 1004 (Farmers).) “For example, ‘[t]he fact

that an employee is not engaged in the ultimate object of his employment at

the time of his wrongful act does not preclude attribution of liability to an

employer.’ [Citation.] Thus, acts necessary to the comfort, convenience,

health, and welfare of the employee while at work, though strictly personal

and not acts of service, do not take the employee outside the scope of

employment.” (Ibid.)

Even so, “the law is clear that an employer is not strictly liable for all

actions of its employees during working hours. Significantly, an employer

will not be held vicariously liable for an employee’s malicious or tortious

conduct if the employee substantially deviates from the employment duties

for personal purposes. [Citations.] Thus, if the employee ‘inflicts an injury

out of personal malice, not engendered by the employment’ [citation] or acts

out of ‘personal malice unconnected with the employment’ [citation], or if the

misconduct is not an ‘outgrowth’ of the employment [citation], the employee

7

is not acting within the scope of employment.” (Farmers, supra, 11 Cal.4th at

pp. 1004–1005, italics omitted.)

“Where the facts of the case make it arguable whether the employee

has acted within the scope of his employment, then the scope of employment

issue is one properly decided by the trier of fact. However, where the facts

would not support an inference that the employee acted within the scope of

his employment and where there is no dispute over the relevant facts, the

question becomes one of law.” (Alma W. v. Oakland Unified School Dist.

(1981) 123 Cal.App.3d 133, 138.)

B. Analysis of Respondeat Superior Issue

The District contends that Officer Brown’s alleged acts were

unconnected with his employment because he acted out of personal malice, he

was outside of the District’s jurisdiction, he was off duty, and his misconduct

was “so unusual or startling that it would seem unfair” to expose the District

to liability. We disagree with each of these points.

First, plaintiffs’ allegations establish a connection between Officer

Brown’s duties as a District officer and his misconduct. The complaint

alleged that as a District officer, Officer Brown had a duty to ensure the

safety and security of students, staff, and property. And in service of that

duty, the District authorized and equipped him to use force to seize evidence

and prevent its destruction. Citing Penal Code section 830.32, the complaint

alleged that Officer Brown had the authority to arrest someone if he had

probable cause to believe they had committed a felony. The complaint

further alleged that Officer Brown used his cell phone to “perform his job as a

police officer” for the District, and that he sought to retrieve it “in order to be

able to perform his job.” Plaintiffs therefore asserted multiple plausible

theories for how Officer Brown’s search for the phone was connected to his

8

employment: as a way of ensuring the security of his property as a District

employee, to recover a tool he needed to perform his duties, as an

investigation of a potential violation of the law, and to seize evidence of a

crime and prevent its destruction.

Although the District argues Officer Brown acted out of personal malice

when he accosted plaintiffs, the complaint’s allegations establish that his

actions may not have been “strictly personal” because finding and retrieving

his phone was not unrelated to his duties. (Farmers, supra, 11 Cal.4th at

p. 1007.) While an employer may not face liability for an employee acting out

of personal malice “unconnected with the employment,” as noted, Officer

Brown’s acts as alleged in the complaint were an “ ‘outgrowth’ of the

employment.” (Id. at p. 1005, italics added.) Because we interpret scope of

employment broadly, even if Officer Brown was “not engaged in the ultimate

object of his employment at the time of his wrongful act,” that “does not

preclude attribution of liability to an employer.’ ” (Id. at p. 1004.)

Moreover, a fact-finder could reasonably infer that retrieving what

Officer Brown believed to be his stolen phone was an act “necessary to [his]

comfort, convenience, health, and welfare . . . while at work,” which would not

take him outside the scope of employment. (Farmers, supra, 11 Cal.4th at

p. 1004.) As the Supreme Court held in Farmers, “ ‘ “where the employee is

combining his own business with that of his employer, or attending to both at

substantially the same time, no nice inquiry will be made as to which

business he was actually engaged in at the time of injury, unless it clearly

appears that neither directly nor indirectly could he have been serving his

employer.” ’ ” (Ibid.) Accepting the allegations as admitted, we cannot

conclude that Officer Brown was neither directly nor indirectly serving the

District by pursuing and retrieving what he believed to be stolen property,

9

which fell broadly within the ambit of his alleged duties and served the

purpose of allowing him “to perform his job.”

Second, we conclude that whether Officer Brown was in the District’s

jurisdiction when he committed the misconduct is not dispositive in analyzing

whether he acted within the scope of employment. The complaint alleged

that the District authorizes its officers to exercise their peace officer

authority anywhere in the United States. The complaint also alleged that in

accordance with Penal Code section 830.32, the District advises its employee

officers that their authority as peace officers extends to any place in

California for purposes of performing their primary duty. (Pen. Code,

§ 830.32, subd. (a).) As noted, plaintiffs claimed that Officer Brown’s primary

duties included ensuring the safety and security of property. His alleged

investigation of a suspected property theft therefore “ ‘may fairly be regarded

as typical of or broadly incidental’ to the enterprise” of ensuring the security

of property—an undertaking consistent with Penal Code section 830.32’s

geographic extension of his authority to anywhere in the state. (Mary M.,

supra, 54 Cal.3d at p. 209.)

Third, for related reasons, we conclude that whether Officer Brown was

off duty when he committed misconduct is also not dispositive given the

alleged breadth of his off-duty authority. Plaintiffs alleged that the District

instructs its officers that they are authorized to perform their duties at all

hours of the day, apart from misdemeanor arrests. The District allegedly

requires that officers display their badges while “on duty or otherwise acting

in an official or authorized capacity.” (Italics added.) The complaint also

alleged that, consistent with the broad authority granted to peace officers

under the Penal Code, the District “authorizes its police officers to exercise

10

their authority” not only throughout the state, but also “while they are on-

duty or off-duty[.]” (Italics added.)

Furthermore, the complaint cites Penal Code section 830.32, which in

turn references Penal Code section 836, providing that a peace officer can

conduct a warrantless arrest “whenever” there is probable cause to believe

someone has committed a felony, “whether or not a felony, in fact, has been

committed.” (Pen. Code, § 836, subd. (a), italics added.) And notably, the

complaint alleged that the District authorizes its officers to carry their

firearms off duty, pursuant to their authority as peace officers. This

allegation has special significance here because Officer Brown’s firearm was a

key instrument in his misconduct. In sum, the allegations that Officer

Brown’s authority as a peace officer extended beyond his on-duty hours make

the fact that he was technically off duty less relevant.

The District argues that Officer Brown was merely “pursuing his lost

cell phone” and “doing his own thing,” “not attempting to make a lawful

arrest” and “in no way conducting an investigation for his employer.” The

complaint’s allegations, however, say otherwise. Plaintiffs allege that Officer

Brown was investigating a suspected theft under the authority and “color of

law” conferred upon him by the District. The complaint also alleged a false

arrest and false imprisonment cause of action based on Officer Brown’s

detention of plaintiffs at gunpoint, under color of authority. Whether Officer

Brown’s actions actually amounted to an attempt to arrest is a conclusion for

a trier of fact to draw. (See Roe v. Hesperia Unified School Dist. (2022) 85

Cal.App.5th 13, 30 (Hesperia) [“We do not resolve factual disputes at [the

demurrer] stage of the proceeding.”].) But it is reasonable to infer that an

officer’s conduct in drawing a firearm, identifying himself as an officer, and

demanding that others comply with his commands were all actions signaling

11

that he sought to detain or arrest someone. Moreover, as noted, the District

has not developed any argument on appeal as to why the allegations

underlying the false arrest and false imprisonment cause of action are

substantively insufficient as to Officer Brown. The District only argues that

the complaint’s allegations for that cause of action do not put Officer Brown’s

actions within the scope of his employment for respondeat superior purposes.

We conclude, in any case, that Officer Brown need not have been in the

process of making an arrest for his actions to fall within the scope of his

employment. “To survive a demurrer, the complaint need only allege facts

sufficient to state a cause of action; each evidentiary fact that might

eventually form part of the plaintiff’s proof need not be alleged.” (C.A., supra,

53 Cal.4th at p. 872.) Although a fact-finder may ultimately decide

otherwise, given the broad authority plaintiffs allege the District bestowed

upon Officer Brown, we cannot say from the face of the complaint that his

actions were unconnected to his duties as a District employee, regardless of

whether he was technically on duty, within the District’s jurisdiction, or

attempting to make an arrest.

Case law supports this conclusion. In Petrocelli v. Workmen’s

Compensation Appeals Board (1975) 45 Cal.App.3d 635 (Petrocelli), the Court

of Appeal held that a police officer was performing his duties and entitled to

workmen’s compensation benefits when he fell and broke his arm while

walking toward what he believed was a suspicious car. (Id. at pp. 636–637.)

Although the officer was in uniform, he was off duty and leaving a movie

theater located outside of his employer’s jurisdiction. (Ibid.) He “was not

engaged in the arrest or detention of anyone or in a search for or seizure of

anything.” (Id. at p. 638.) But the court nonetheless concluded that the

officer’s “mission, at the time of the injury, was to protect property, and to

12

prevent a crime or apprehend an offender if his investigation disclosed

reasonable cause to take such action.” (Id. at p. 638.) The court cited Penal

Code section 830.1 establishing an officer’s “statewide power” to “make an

arrest upon reasonable cause to believe a public offense had been committed

in his presence, with respect to which there was danger to property or of the

escape of the perpetrator.” (Id. at p. 637.)

While the officer in Petrocelli was in uniform and Officer Brown was

not, Officer Brown wielded other trappings of his police authority, including

his firearm, badge, and his repeated self-identification as a District police

officer. He allegedly used all these symbols of “coercive power” to demand

compliance from plaintiffs, who understood him to be acting as a police

officer—even without a uniform. (See Mary M., supra, 54 Cal.3d at p. 216

[officers have “coercive power” over citizens and wield visible symbols of that

power, including a marked car, uniform, badge, and gun].) Officer Brown did

not need to be in uniform to effectively and repeatedly assert his authority as

an officer. Notably, Penal Code sections 830.32 and 836, which plaintiffs

allege are statutory sources of Officer Brown’s authority as a District officer,

include no requirement that officers be in uniform to exercise the powers

described in those sections. And from a practical standpoint, it would be

unreasonable to expect a peace officer to change into uniform before, for

example, initiating an arrest for a public offense committed in the officer’s

presence, as Penal Code section 836, subdivision (a)(1) authorizes. For us to

find plaintiffs’ allegations of vicarious liability insufficient merely because

Officer Brown was not in uniform would elevate form over substance.

Our conclusion is further supported by Inouye v. County of Los Angeles

(1994) 30 Cal.App.4th 278 (Inouye). In Inouye, a police officer assigned to the

Los Angeles County Department of Health ended his evening shift and placed

13

his County-issued gun in a weapons locker. (Id. at p. 280.) He then put his

personal firearm in his belt holster and left work in his truck. (Ibid.) The

plaintiff in that case, Fred Inouye, attempted to run the officer’s truck off the

road, pulled in front of the truck, and stopped abruptly. (Ibid.) When Inouye

walked up to the truck and started yelling through the driver’s side window,

the officer decided to arrest Inouye to determine whether he was under the

influence of alcohol or drugs. (Ibid.) The officer identified himself as a police

officer and told Inouye to freeze, but Inouye smashed the window, and the

officer drew his gun. (Ibid.) After again identifying himself and telling

Inouye to freeze, the officer fired on Inouye because he made a motion as if

reaching for a weapon. (Ibid.)

The Court of Appeal in Inouye reversed summary judgment in the

County’s favor after concluding that the County could not insulate itself from

liability by deeming its off-duty safety officers “to not be engaged in the

performance of their duties[.]” (Inouye, supra, 30 Cal.App.4th at p. 281.) The

court made no mention of whether the officer was in uniform, relying instead

on the fact that the history of Penal Code section 830.31—which was enacted

at the same time as section 830.32 and also grants peace officer status to

specialized officers—“reveals that the broad scope of authority plainly

granted” in that section “was no accident.” (Id. at p. 284; see Stats. 1989,

ch. 1165, § 24.) The court held that because “the Legislature has clearly

empowered safety police officers to make [Penal Code] section 836 arrests

while off duty[,]” the officer “was indisputably acting in the scope of his

employment as a County safety police officer at the time Inouye was shot.”

(Inouye, at p. 284.)

Like the officer in Inouye, the complaint alleged that Officer Brown was

acting under the broad scope of authority granted by Penal Code section

14

830.32, and by the District’s policies, to enforce the law, ensure the safety and

security of property, seize and prevent the destruction of evidence, and when

appropriate, make arrests. Accordingly, Inouye supports a finding that

Officer Brown’s alleged actions were within the scope of his employment.

The District relies on Farmers to argue that Officer Brown’s conduct

substantially deviated from his employment duties for personal purposes. In

addition to Farmers, the District cites other cases in which courts found no

basis for vicarious liability when employees sexually assaulted or harassed

others, committed arson, or impersonated a building inspector. (See Lisa M.

v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 297–299

(Lisa M.); Farmers, supra, 11 Cal.4th at pp. 1012–1013; Hoblitzell v. City of

Ione (2003) 110 Cal.App.4th 675, 678 (Hoblitzell); Maria D. v. Westec

Residential Sec. (2000) 85 Cal.App.4th 125, 130 (Maria D.); Borg–Warner

Protective Servs. Corp. v. Superior Court (1999) 75 Cal.App.4th 1203, 1206

(Borg-Warner).)

But those cases are distinguishable. In the cases where employees

committed sexual misconduct, their acts were deemed to be not typical of, or

broadly incidental, to their duties. (See Lisa M., supra, 12 Cal.4th at p. 300

[ultrasound technician’s sexual assault of patient was not “engendered by” or

an “outgrowth” of the technician’s employment]; Farmers, supra, 11 Cal.4th

at p. 997 [deputy sheriff’s targeting of a subordinate “for inappropriate

touching and requests for sexual favors is not a risk that may fairly be

regarded as typical of or broadly incidental to the operation of a county jail”];

Maria D., supra, 85 Cal.App.4th at pp. 129–130, 146 [private security guard

who impersonated a police officer to pull someone over and then take her to

another location to rape her, “was not acting as an official representative of

the state” or misusing “the unique official authority conferred on a public law

15

enforcement officer”].) Similarly, the officer in Hoblitzell who impersonated a

building inspector, and the security guard in Borg-Warner who committed

arson, were found to be acting well outside of their authority as employees.

(See Hoblitzell, supra, 110 Cal.App.4th at p. 683 [officer “substantially

deviated” from his employment duties when he acted outside the City’s

jurisdiction, outside his employment, and for personal reasons]; Borg-Warner,

supra, 75 Cal.App.4th at pp. 1206–1208 [security guard who pled guilty to

arson in connection with a fire at his employer’s plant acted “outside the

scope of employment”].)

In contrast, for the reasons discussed above, the allegations in this case

support an inference that Officer Brown’s conduct was “broadly incidental” to

his duties as a peace officer for the District and within his statutory and

employment authority. (Mary M., supra, 54 Cal.3d at p. 209.) Whereas the

tortious acts of the employees in the District’s cited cases strayed far afield

from their duties, we cannot conclude that Officer Brown’s actions—in

retrieving what he allegedly believed was stolen property—are “so unusual or

startling that it would seem unfair to include the loss resulting from it among

other costs of the employer’s business.” (See Farmers, supra, 11 Cal.4th at

p. 1003).

This leads us to our last point, which is that the policy objectives

underlying respondeat superior support applying the doctrine in this case. In

determining whether an employee is acting within the scope of employment,

the Supreme Court has considered whether imposing liability would achieve

the following: (1) prevent recurrence of the tortious conduct; (2) give greater

assurance of compensation for the victim; and (3) ensure that the victim’s

losses will be equitably borne by those who benefit from the enterprise that

16

gave rise to the injury. (Mary M., supra, 54 Cal.3d at p. 209.) We conclude

that these factors weigh in favor of applying respondeat superior here.

The first policy justification recognizes that imposing liability on the

employer may create “ ‘a strong incentive for vigilance by those in a position

“to guard substantially against the evil to be prevented.” ’ ” (Mary M., supra,

54 Cal.3d at p. 214.) The state, acting through the Legislature, “has granted

police officers extraordinary power and authority over its citizenry.” (Id. at

p. 216.) The Supreme Court has recognized that “ ‘police officers [exercise]

the most awesome and dangerous power that a democratic state possesses

with respect to its residents—the power to use lawful force to arrest and

detain them.’ [Citation.] Inherent in this formidable power is the potential

for abuse.” (Id. at pp. 216–217.) The facts alleged in this case are an

example of such abuse because Officer Brown’s misconduct “flow[ed] from the

unique authority vested in police officers.” (Id. at p. 218, fn. 11.) And unlike

in cases involving sexual assault, here “it is neither startling nor unexpected

that on occasion an officer will misuse [his] authority by engaging in

assaultive conduct” when investigating a suspected crime or initiating an

arrest as a peace officer. (Id. at p. 217.) Imposing liability incentivizes the

District to guard against abuses of the broad authority it grants to its

employee peace officers.

Turning to the second policy goal of providing greater assurance of

compensation for the victim, we conclude that imposing vicarious liability

would help achieve this goal. (Hoblitzell, supra, 110 Cal.App.4th at p. 687.)

This is particularly true, as the Supreme Court noted in Mary M., when

officers engage in violent conduct. (Mary M., supra, 54 Cal.3d at p. 215.)

“The Legislature has recognized that the imposition of vicarious liability on a

public employer is an appropriate method to ensure that victims of police

17

misconduct are compensated.” (Ibid.) For example, “a governmental entity

can be held vicariously liable when a police officer acting in the course and

scope of employment uses excessive force or engages in assaultive conduct.”

(Id. at pp. 215–216 [listing decisions that have “recognized, at least implicitly,

that vicarious liability is an appropriate method to ensure that victims of

police misconduct are compensated”]; see, e.g., Conway v. County of

Tuolumne (2014) 231 Cal.App.4th 1005, 1015 [officers are not immune from

liability under Government Code section 820.2 when using unreasonable

force when making an arrest or overcoming resistance to it].)

As for the third policy objective, which considers whether imposing

liability spreads the risk of losses among the beneficiaries of the enterprise

giving rise to the injury, the Supreme Court has characterized this

assessment as “another way of asking whether the employee’s conduct was

‘so unusual or startling that it would seem unfair to include the loss resulting

from it among other costs of the employer’s business.’ ” (Lisa M., supra, 12

Cal.4th at p. 305.) For reasons already discussed, we conclude the connection

between Officer Brown’s employment duties and his misconduct in

investigating a suspected theft and retrieving what he believed to be stolen

property was not so attenuated that it would be unfair to allocate plaintiffs’

losses to the District as an operating cost.

Accordingly, the respondeat superior doctrine’s public policy objectives,

along with the other reasons described above, lead us to conclude that the

complaint sufficiently states causes of action against the District based on a

theory of vicarious liability.

II

The District makes separate arguments regarding plaintiffs’ claim

under the Bane Act, which prohibits “threats, intimidation or coercion”

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designed to prevent a person’s exercise or enjoyment of their constitutional or

statutory rights. (Civ. Code, § 52.1.) Regarding this claim, the District

contends that plaintiffs’ cause of action fails because “a single incident of

wrongful detention or false arrest is insufficient to make a claim[,]” and that

the Bane Act does not apply to school districts because they are not business

establishments. The cases the District cites, however, do not support its

position on either of these points. In Cornell v. City & County of San

Francisco (2017) 17 Cal.App.5th 766, the Court of Appeal addressed whether

there was sufficient evidence of a Bane Act violation to submit that claim to

the jury. (Id. at p. 793.) Nowhere in that case did the court conclude that a

“single incident” was insufficient to make a Bane Act claim. Similarly, it is

unclear why the District cites Shoyoye v. County of Los Angeles (2012) 203

Cal.App.4th 947, which discussed the requirement that any alleged

interference with constitutional rights occur “by threats, intimidation, or

coercion,” and not mere negligence. (Id. at pp. 958–959.) That case also does

not support the proposition that a “single incident” cannot support a Bane

Act claim.

Likewise, we are not persuaded by the District’s reliance on cases

discussing Civil Code section 51 (the Unruh Act), which protects against

discrimination by business establishments, to argue that the Bane Act (Civil

Code section 52.1) is inapplicable here. (See Brennon B. v. Superior Court

(2022) 13 Cal.5th 662, 669 (Brennon B.) [holding that school district was not

a “business establishment” under the Unruh Act]; K.M. v. Grossmont Union

High School Dist. (2022) 84 Cal.App.5th 717, 755 [citing Brennon B. to

conclude Civil Code section 51.9, like the Unruh Act, does not apply to public

school districts]; Stamps v. Superior Court (2006) 136 Cal.App.4th 1441, 1449

(Stamps) [reversing trial court’s ruling that was based on the erroneous

19

conclusion that the Bane Act is part of the Unruh Act].) But the Bane Act is

a separate section in the Civil Code, has a separate purpose in creating a

cause of action for the denial of civil rights by means of threats and

intimidation, and makes no mention of “business establishments.” (See Civ.

Code, § 52.1.) As the Court of Appeal in Stamps observed, despite some

historical confusion about “the various components of the Unruh Act[,]” by its

own terms the Unruh Act comprises only Civil Code section 51, and the

“ ‘Bane Act is not part of the Unruh Act[.]’ ” (Stamps, at pp. 1449–1452

[“ ‘Subdivision (a) of [Civil Code] section 51 states: “This section shall be

known, and may be cited, as the Unruh Civil Rights Act.” ’ ”].) Indeed, courts

have applied and analyzed the Bane Act in suits against school districts. (Cf.

Turnbull v. Lucerne Valley Unified School Dist. (2018) 24 Cal.App.5th 522,

533 [recognizing the Bane Act as the “legal basis” for the plaintiff’s third

cause of action against the defendant school district and individual

defendants]; Austin B. v. Escondido Union School Dist. (2007) 149

Cal.App.4th 860, 883 [affirming nonsuit on plaintiff’s Bane Act claim against

school district because of insufficient evidence, not the Act’s inapplicability];

McMahon v. Albany Unified School Dist. (2002) 104 Cal.App.4th 1275, 1293

[analyzing whether summary judgment was appropriate for Bane Act cause

of action against school district].) We therefore reject the District’s

arguments regarding the Bane Act. 2

III

Finally, we turn to plaintiffs’ cause of action against the District for

Officer Brown’s negligent hiring, supervision, and retention. To plead such a

2 The District does not argue that a school district is not a “person”

within the meaning of Civil Code section 52.1 or that the Bane Act itself

precludes vicarious liability against a public entity for the acts of a “person”

such as Officer Brown. Accordingly, we do not decide these questions.

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cause of action, a plaintiff must generally allege that: (1) an employer hired

and supervised an employee; (2) the employee was incompetent or unfit to

perform their work duties; (3) the employer knew or should have known that

undue risk of harm would exist because of the employee’s unfitness; (4) the

employee’s unfitness caused the plaintiff harm; and (5) the employer’s

negligence was a substantial factor in causing plaintiff harm. (See CACI

No. 426; Federico v. Superior Court (1997) 59 Cal.App.4th 1207, 1213–1214.)

The District argues the trial court was correct to grant its demurrer on

grounds that the complaint failed to allege facts showing “that Brown had a

past history of violence within the scope of his employment,” or facts “to show

actual knowledge by the employer to establish liability for negligent hiring,

supervision and retention of Brown.” The District further argues that the

complaint’s allegations are “vague” and “non-specific,” pointing to allegations

about an alleged “code of silence” among officers. But the District does not

address the complaint’s other allegations about the District’s hiring, training,

and supervision practices, nor does the District cite any statute or decision

requiring that a plaintiff allege—at the pleading stage—specific facts

regarding a defendant’s history of violence or an employer’s actual

knowledge. (See C.A., supra, 53 Cal.4th at p. 872.)

The complaint alleged, among other things, that the District owed

plaintiffs a statutory duty to: (1) “conduct thorough background checks of

persons it is considering hiring as police officers” to “identify past behavior

indicative of the candidate’s suitability to perform their duties as a police

officer”; and (2) “adequately train and supervise their police officers to assure

that they demonstrate their knowledge and understanding of [District]

polices, and that they receive periodic training on de-escalation tactics,

including alternatives to use of force.” The complaint further alleged that:

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(1) District employees who were responsible for conducting background

checks, training, or supervising officers “knew, or should have known, that

[Officer Brown] was, or became unfit or incompetent to perform his work and

duties as a police officer for [the District] and that such unfitness, or

incompetence created a particular risk to members of the public, including

plaintiffs”; (2) the “mistreatment and abuse of plaintiffs by [Officer Brown]

was a reasonably foreseeable result of the negligent conduct” by District

employees; and (3) District employees’ negligence within the scope of their

employment caused harm to plaintiffs.

While facts material to the existence of public entity liability must be

pleaded with particularity, the Supreme Court has held that a plaintiff

adequately pled a claim where he alleged, as the complaint does here, that a

school district’s employees “knew or should have known of [defendant’s]

dangerous propensities, but nevertheless hired, retained and failed to

properly supervise her.” (C.A., supra, 53 Cal.4th at p. 875.) Although the

plaintiff in C.A. alleged “on information and belief” that the school district

knew of past misconduct based on “personnel and/or school records,” the

Supreme Court acknowledged in C.A. that it would be “impracticable” to

require a plaintiff to plead certain details, such as the identity of government

employees, before undertaking discovery. (Id. at pp. 866–867, 872, 875.) As

noted, to survive a demurrer, “each evidentiary fact that might eventually

form part of the plaintiff’s proof need not be alleged.” (Id. at p. 872.)

Reading the complaint broadly, as we must, we conclude that the

allegations adequately plead the elements of a negligent hiring, supervision,

and retention claim, and that additional facts about Officer Brown’s history

are not necessary to state a claim. Nor are plaintiffs required to allege the

District had actual knowledge of Officer Brown’s alleged propensity for

22

misconduct. The negligence standard articulated by C.A. for hiring,

supervising, or retaining an assaultive employee—“knew or should have

known” or “know or have reason to know” (C.A., supra, 53 Cal.4th at pp. 871,

875)—allows for imposing vicarious liability on an employer based on the

supervisory personnel’s constructive knowledge that an employee is prone to

misconduct (Hesperia, supra, 85 Cal.App.5th at p. 26).

DISPOSITION

The trial court’s judgment of dismissal in favor of the District is

reversed. The matter is remanded to the trial court with directions to vacate

its order sustaining the District’s demurrer to the plaintiffs’ second amended

complaint without leave to amend, enter a new order overruling the

demurrer, and conduct further proceedings consistent with this opinion.

Plaintiffs are awarded their costs on appeal.

BUCHANAN, J.

WE CONCUR:

DATO, Acting P. J.

DO, J.

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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