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
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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
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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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