Judge: Jon R. Takasugi, Case: 20STCV30229, Date: 2023-04-06 Tentative Ruling

Case Number: 20STCV30229    Hearing Date: April 6, 2023    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

Plaintiffs’ motion for summary adjudication of Defendant City of Los Angeles’ First Affirmative Defense is GRANTED.

On 8/11/2020, Plaintiff Janet Baggett, Preston Sertich by and through his guardian ad litem Michael Sertich, Jr., Michael Sertich, Jr. and Estate of Elizabeth Baggett, by and through representatives Janet Baggett and Preston Sertich filed suit against David Rojas and the City of Los Angeles (COLA), alleging (1) invasion of privacy; (2) intentional infliction of emotional distress; (3) negligence; (4) mishandling of human remains; (5) violation of human remains; (5) violation of Civil Code section 1708.85; (6) intrusion into private affairs; and (7) violation of mandatory statutory duties.

            Now, Plaintiffs move for summary adjudication of COLA’s First Affirmative Defense.

Evidentiary Objections

CCP section 437c, subdivision (q) provides:

In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.

            In light of CCP section 437c, subdivision (q), the Court declines to rule on the submitted objections.

Factual Background

            This action is based on Defendant David Rojas’ alleged molestation of a deceased body during his time as a Los Angeles Police Department (LAPD) officer.

Discussion

CCP section 437c(f)(1) provides that a plaintiff may move for summary adjudication as to “one or more affirmative defenses” if the plaintiff “contends… that there is no affirmative defense to the cause of action [or] there is no merit to an affirmative defense as to any cause of action….”“If a party contends the affirmative defense has no merit, it can and should seek summary adjudication of the affirmative defense itself.” (Paramount Petroleum Corp. v. Superior Ct. (2014) 227 Cal. App. 4th 226, 240, fn. 18.)

            COLA’s First Affirmative Defense asserts that it is not liable pursuant to Proposition 51 (Prop. 51), codified at Civil Code section 1431.2. Prop. 51 provides that defendants are only severally liable for non-economic damages, not jointly liable. In other words, each defendant is only liable for the amount of noneconomic damages allocated to that defendant’s percentage of fault. However, Prop. 51 does not apply when the defendant is vicariously liable for the tortfeasor pursuant to respondeat superior. In Miller v. Stouffer (1992) 9 Cal. App. 4th 70, 85, the court concluded, “Proposition 51 does not shield a vicariously liable employer who is liable under the doctrine of respondeat superior from liability for noneconomic damages.” This principle was recently reaffirmed in Schreiber v. Lee (2020) 47 Cal. App. 5th 745, 754.)

            Plaintiff argues that COLA cannot establish its First Affirmative Defense because Defendant Rojas was acting in the course and scope of his employer as a police officer with Defendant COLA at the time of his torts, and thus Prop. 51 does not shield COLA from liability.

            In order to establish that a peace officer’s conduct was within the course and scope of his employment, Plaintiff must show that:

1)     The conduct occurs while the peace officer is on duty as a peace officer;

2)     The conduct occurs while the peace officer is exercising his authority as a peace officer; and

3)     The conduct results from the use of his authority as a peace officer.

(CACI No. 3721.)

While the question of course and scope of employment is often for a jury to determine, the California Supreme Court has repeatedly made clear that when the facts are undisputed and no conflicting inferences are possible, it is a question of law for the court to decide. (Perez v. Van Groningen & Sons, Inc. (1986) 41 Cal. 3d 962, 968.)

            In support of her contention that Defendant Rojas was acting in the course and scope of employment at the time of his alleged torts, Plaintiff submitted evidence that:

-         Defendant Rojas joined Defendant City of Los Angeles’s police department (LAPD) in July 2015. At the LAPD’s Academy, he was trained in death investigations, among other subjects. (SS ¶ 2.)

-         Defendant Rojas’s training included “Learning Domain 7,” which related to investigating deaths to determine if any suspects should be arrested and uncovering evidence as to why a person died. (SS ¶ 3.)

-         Defendant Rojas was taught that he was permitted to touch dead bodies as part of his death investigations. (SS ¶ 4.)

-         The LAPD has never promulgated a rule that would preclude Defendant Rojas from touching a dead body. (SS ¶ 5.)

-         From the time Defendant Rojas joined the Central Division through the date of this incident, his job duties included investigating deaths. (SS ¶ 9.) During his 4-year career as an LAPD officer, Defendant Rojas performed approximately 50 death investigations and 10-15 homicide investigations. (SS ¶ 10.)

-         On October 20, 2019, Defendant Rojas was a “Police Officer, P2” in LAPD’s Central Division. (SS ¶ 11.) While on duty an LAPD officer, Defendant Rojas was dispatched by the LAPD to a death call. (SS ¶ 12.) Defendant Rojas was assigned to respond and investigate the death of Elizabeth Baggett investigate the death of Elizabeth Baggett and that was part of his duties with LAPD. (SS ¶ 14.) Defendant Rojas drove to the scene in his marked LAPD vehicle. (SS ¶ 17.)

-         Per LAPD protocol, because Defendant Rojas or his partner had communicated with the radio transmission officer, they were assigned to investigate the death. (SS ¶ 15.)

-         Defendant Rojas testified that this assignment required him to look for evidence and information as to how the death occurred. (SS ¶ 16.) Defendant Rojas was wearing his LAPD uniform, displaying his LAPD badge, and carrying his LAPD-issued gun. (SS ¶ 19.) While at the scene, Defendant Rojas wore his LAPD-issued body-worn camera. (SS ¶ 20.)

-         Defendant Rojas further held himself out as an LAPD officer to witnesses and bystanders at the scene, including individuals at the scene whom he interviewed as part of his investigation. (SS ¶ 22.) At all times while at the scene, Defendant Rojas was an on-duty officer with the LAPD. (SS ¶ 24.)

-         Defendant Rojas entered the room where Elizabeth Baggett’s body was found. Defendant Rojas testified that when he entered the room, he scanned it as part of his investigation of the death. The only reason Defendant Rojas was allowed in the room with the decedent’s body was because he was an LAPD officer assigned to investigate her death. Defendant Rojas then investigated Elizabeth Baggett’s body. Defendant Rojas observed marks on her body that he thought might be puncture wounds, or an injection site, or filled with fluid/blood. Defendant Rojas also observed an indentation on Elizabeth Baggett’s breast. Defendant Rojas pinched the indentation. Defendant Rojas believed that if liquid came out from the pinching he might be able to identify it as blood. Defendant Rojas was, in part, looking for evidence of foul play. (SS ¶¶ 28-37.)

-         The LAPD-required form for death investigations required Defendant Rojas to gather evidence relating to a potential for foul play, which he was doing at the time of the incident. Defendant Rojas was allowed to touch a deceased body in order to gather such information. (SS ¶ 38.)

-         During the investigation of the body, Defendant Rojas was still wearing his LAPD uniform, badge, and body-worn camera and carrying his LAPD-issued gun. During the investigation of the body, Defendant Rojas used an LAPD-issued flashlight and wore LAPD-issued gloves. It was LAPD’s request that Defendant Rojas investigate the body of Elizabeth Baggett. Defendant Rojas conducted his investigation in his capacity as an LAPD officer. Defendant Rojas touched Elizabeth Baggett’s body as part of his duties as an LAPD officer. All of Defendant Rojas’s actions at the scene of Elizabeth Baggett’s death were to gather information and evidence for his police report. (SS ¶¶ 39- 44.)

-         Defendant Rojas recorded the interaction for purposes of his police investigation, “to help me later on if I needed for documentation purposes or such.” Defendant Rojas considered his body-cam footage to be an extension of his official report. Defendant Rojas submitted the body-cam footage of his interaction with Elizabeth Baggett to the LAPD, which he was required to do as part of his duties as a police officer. (SS ¶¶ 46-48.)

Taken together, Plaintiff’s evidence supports a reasonable inference that Defendant Rojas was on duty at the time the alleged conduct took place, the conduct occurred while he was exercising his authority as a peace officer, and his conduct resulted from the use of his authority as a peace officer. (See CACI No. 3721.) As such, Plaintiff’s evidence supports a reasonable inference that Defendant Rojas was acting in the course and scope of his employment with Defendant COLA at the time of the alleged sexual assault. Accordingly, the burden shifts to Defendant COLA to disclose a triable issue of material fact.

In opposition, COLA advances two primary arguments: (1) Plaintiff’s motion is premature in that Plaintiffs are improperly using the City’s affirmative defense of contributory negligence as a vehicle to argue course and scope of employment; and (2) Defendant Rojas was not acting within the scope of employment.

However, as to the first contention, COLA’s first affirmative defense provides in full:

The damages alleged were directly and proximately caused by and contributed to by the negligence of other persons, and the extent of damages sustained, if any, should be reduced in proportion to the amount of said negligence.

As such, COLA’s affirmative defense is coextensive with the Prop. 51 affirmative defense (codified as Civil Code § 1431.2). As explained above, Prop. 51 does not apply to employers who are vicariously liable for their employee’s torts under the doctrine of respondeat superior. As such, while course and scope of employment may not be a substantive part of the contributory negligence analysis, course and scope of employment is relevant to the analysis of whether or not this affirmative defense is available to COLA in the first place. In other words, the ability of COLA to establish its defense of contributory negligence is only possible and relevant if Defendant Rojas was not acting within the course and scope of his employment. (“Proposition 51 neither abrogates nor diminishes an employer’s respondeat superior liability…. Consequently, the employer remains liable for the entire share of the employee’s fault (including the employee’s share of noneconomic damages according to fault).”) (Haning, et al., Cal. Prac. Guide Pers. Inj. (The Rutter Group) at ¶ 2:617 (emphasis added).) As a result, the question of whether or not Defendant Rojas was acting within the course and scope of employment when he committed the alleged act is necessarily relevant to whether or not COLA’s liability can be limited by Prop. 51, and thus is properly considered here.

COLA also contends that summary adjudication is premature here because discovery is still going ongoing and “[s]uch a finding [i.e., granting summary adjudication] at this stage also may trigger a motion to set aside the judgment if further discovery provides further support for the City’s affirmative defense.” (Opp. to MSA, 4: 16-17.) COLA also notes that additional DOE Defendants could still be added who contributed to the underlying negligence alleged. (Id. at p. 23-25.)  However, Plaintiffs filed a code-compliant motion for summary adjudication and the Court may not properly deny a motion based on a purely speculative possibility that new parties may be added or new evidence may come to light at a later stage which may show that Defendant Rojas was not acting in the course and scope of his employment. If the hypothetical scenarios presented by COLA come to fruition, COLA may move to set aside this ruling.

As to the second contention, COLA argues that Defendant Rojas’s alleged sexual assault of Elizabeth Baggett’s remains was necessarily outside the course and scope of employment because it did not serve the employer’s interests and was untaken by Defendant for purely personal reasons. However, “[t]he scope of employment has been broadly interpreted” by California courts. (See John Y. v. Chaparral Treatment Ctr., Inc. (2002) 101 Cal. App. 4th 565, 575.) California does not follow the traditional rule that an employee’s actions are within the scope of employment only if motivated by a desire to serve the employer’s interests. (See Carr v. Wm. C. Crowell Co. (1946) 28 Cal. 2d 652; Flores v. AutoZone West, Inc. (2008) 161 Cal. App. 4th 373, 379.) Instead, for respondeat superior liability to attach, all that is required is “that the [employee’s] tort be engendered by or arise from the [employee’s] work.” (Lisa M. v. Henry Mayo Newhall Mem’l Hosp. (1995) 12 Cal. 4th 291, 298.) Under this more permissive test, “[a]n employee’s willful and malicious intentional torts, including those that might contravene an employer’s express policies, do not automatically fall outside the scope of employment.” (Daza v. L.A. Cmty. Coll. Dist. (2016) 247 Cal. App. 4th 260, 268.)

Rather, to be within the scope of employment, the intentional misconduct must be “a generally foreseeable consequence” of the defendant employer’s business, or stated another way, “not 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 299, internal quotations omitted). “It is sufficient, however, if the injury resulted from a dispute arising out of the employment.... It is not necessary that the assault should have been made as a means, or for the purpose of performing the work he (the employee) was employed to do.” (Flores, supra, 161 Cal. App. 4th at 379, quoting cases.)

Under California law, “[s]exual assaults are not per se beyond the scope of employment.” (Daza, supra, 247 Cal. App. 4th at 268.) To the contrary, in Mary M. v. City of Los Angeles, supra, 54 Cal. 3d at 285, the plaintiff sued Defendant COLA after one of its police officers raped the plaintiff after the officer pulled over the plaintiff’s vehicle. The California Supreme Court reversed the Court of Appeal specifically holding that sexual torts by a police officer may be in the course and scope of the officer’s employment if they meet the elements of CACI 3721, which apply here. (Id.)

Here, Defendant COLA argues that Mary M is distinguishable from the facts here, and that Lisa M. v. Henry Mayo Newhall Mem'l Hosp. (1995) 12 Cal. 4th 291, 297 is more analogous. 

However, in Mary M, the California Supreme Court explained its reasoning as follows:

Recently, we articulated three reasons for applying the doctrine of respondeat superior: (1) to prevent recurrence of the tortious conduct; (2) to give greater assurance of compensation for the victim; and (3) to ensure that the victim’s losses will be equitably borne by those who benefit from the enterprise that gave rise to the injury.

(Mary M., supra, at p. 209.)

Applying the first of these policy objectives, the California Supreme Court explained that imposing liability on public entities when their police officers commit sexual assaults will properly prevent recurrence of the tortious conduct:

The imposition of liability on public entities whose law enforcement officers commit sexual assaults while on duty would encourage the employers to take preventive measures. There is little or no risk that preventive measures would significantly interfere with the ability of police departments to enforce the law and to protect society from criminal acts. We therefore conclude that the first policy basis for respondeat superior—encouraging the employer to take measures to prevent recurrence of the tortious conduct—supports [respondeat superior liability].

(Id., at p. 215, footnote omitted.)

With respect to the second policy objective – compensating the victim – the California Supreme Court held that this has already been decided by the Legislature in favor of compensating victims:

The Legislature has recognized that the imposition of vicarious liability on a public employer is an appropriate method to ensure that victims of police misconduct are compensated. It has done so by declining to grant immunity to public entities when their police officers engage in violent conduct. Since the enactment of the California Tort Claims Act in 1963, 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 p. 215-216, citations omitted.)

The third policy objective – the appropriateness of spreading the risk of loss among the beneficiaries of the enterprise – also favors the imposition of vicarious liability against Defendant COLA:

At the outset, we observed that society has granted police officers extraordinary power and authority over its citizenry…. An officer who detains an individual is acting as the official representative of the state, with all of its coercive power. As visible symbols of that power, an officer is given a distinctively marked car, a uniform, a badge, and a gun. As one court commented, “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.” Inherent in this formidable power is the potential for abuse. The cost resulting from misuse of that power should be borne by the community, because of the substantial benefits that the community derives from the lawful exercise of police power.

(Id., at p. 216-217, citations omitted.)

The Court agrees that all of these policy objectives apply equally to sexual assaults of deceased individual’s remains as they apply to living victims, and thus the holding of Mary M is appropriately applied to the facts here.

Additional cases support this conclusion. For example, in Xue Lu v. Powell, 621 F.3d 944 (9th Cir. 2010), the Ninth Circuit addressed whether, under California law, a sexual assault committed by a federal employee occurred within the scope of his employment. In that case, two plaintiffs brought a Federal Tort Claims Act (FTCA) action alleging that Thomas Powell, a federal asylum officer, solicited bribes and sexually assaulted them after they applied for asylum. (Id., at p. 945.) The plaintiffs alleged that after conducting their official asylum interviews, Powell invited himself to their homes for “private meetings” during which he insinuated that he would grant their applications in exchange for sexual favors. (Id., at p. 945.) In one instance, Powell attempted to remove a plaintiff’s clothes and, after she rebuffed his advances, denied her application for asylum. (Ibid.) In another, after explaining that he alone could solve the problems with a plaintiff’s application, Powell “offensively touched private parts of [the plaintiff’s] body.” (Ibid.) The district court dismissed the FTCA action after determining that Powell had not acted within the scope of his employment, but a Ninth Circuit panel reversed. (Id. at p. 949.) The Ninth Circuit held that while Powell “abused his powers for his own benefit,” imposing liability on the Government would serve to “compensate his victims, spread the loss, and stimulate the government to greater vigilance in controlling aberrant behavior,” finding that he “acted within the scope of his employment as defined by California” even though his conduct was unauthorized and not done to serve his employer. (Ibid.)

Here, Defendant Rojas was dispatched to investigate the death of Ms. Baggett, conducted that investigation in his capacity as an LAPD officer, and touched Ms. Baggett as part of his effort to gather information and evidence for his investigation. Thus, while Defendant Rojas may have “abused his powers for his own benefit,” imposing liability of Defendant COLA would serve to “compensate his victims, spread the loss, and stimulate the government to greater vigilance in controlling aberrant behavior,” (Xue Lu, supra, 621 F.3d at p. 949.)

The Court also finds Lisa M., supra, the case cited by COLA in support, to be distinguishable from the facts here. In Lisa M., the California Supreme Court held that an ultrasound tech acted for personal reasons when he committed a sexual assault on a patient, even though he would not have had access to the patient in the first place but for the fact his employer assigned him to give her an ultrasound. The tech’s behavior was “fairly attributed not to any peculiar aspect of the health care enterprise, but only to ‘propinquity and lust.’” (Lisa M., supra, 291 Cal.4th at p. 301-305.) However, in Lisa M. there was no conceivable connection between the lab tech’s work and the sexual assault: “the technician's decision to engage in conscious exploitation of the patient did not arise out of the performance of the examination, although the circumstances of the examination made it possible. “If ... the assault was not motivated or triggered off by anything in the employment activity but was the result of only propinquity and lust, there should be no liability.” Here, different from the lab tech,  Defendant Rojas committed the alleged sexual assault at a scene he was dispatched to in his capacity as a police officer, and under the guise of inspecting her body as part of the investigation and for evidence of foul play. As such, regardless of whether or not Defendant Rojas was actually authorized to inspect the body when the alleged assault occurred, the only reasonable inference supported by the evidence is that Defendant Rojas’ “motivating emotions [were] causally attributable to his employment” in ways that the lab tech’s in Lisa M. were not. (Lisa M., supra, 12 Cal.4th at p.301.)  

Thus, the only reasonable inference supported by the evidence is that Defendant Rojas’s was acting within the course and scope of his employment at the time he committed the alleged sexual assault. As such, Defendant COLA may be held vicariously liable, and may not proportionate out underlying liability in accordance with Prop. 51.  

Based on the foregoing, Plaintiffs’ motion for summary adjudication of Defendant COLA’s First Affirmative Defense is granted.

It is so ordered.

Dated:  April     , 2023

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. 

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