Inspector’s Ruse Places Him Outside Scope of Employment

Wednesday, July 16, 2003

Page 3

Inspector’s Ruse Places Him Outside Scope of Employment—C.A.

By DAVID WATSON, Staff Writer

A city building inspector who allegedly shut down a construction site in an unincorporated area at the behest of the contractor’s disgruntled former employee was acting outside the scope of his employment, the Third District Court of Appeal has ruled.

Justice Daniel Kolkey, writing for the court, said Amador Superior Court Judge Susan C. Harlan properly declined to apply the doctrine of respondeat superior in granting summary judgment in favor of the City of Ione. The appeals court’s decision, filed last month, was ordered published yesterday.

In his complaint, contractor Timothy Hoblitzell claimed Ione Building Inspector Don Myshrall visited his site in November of 1999, accompanied by Jeff Barnhart, an Ione police officer, and ordered work to stop. Though neither was in uniform, Hoblitzell alleged, they represented themselves as building inspectors, arrived in a white, unmarked car with red and blue lights in the windshield and California exempt license plates, and told him he did not have the permits required for the job.

They were accompanied by a former employee of Hoblitzell’s, the contractor asserted, and an altercation ensued.

Hoblitzell listed causes of action for intentional interference with prospective economic advantage, intentional infliction of emotional distress, negligence and assault and battery in his complaint. He claimed it took him three days to arrange for county inspectors to come to the site and assure the property owner no permits were required.

But Kolkey said the contractor’s allegations failed to raise a triable issue of fact as to whether either Myshrall or Barnhart was acting within the scope of his city employment.

“Clearly, both Myshrall and Barnhart substantially deviated from their employment duties for the City when they acted outside the City’s jurisdiction, outside their employment, and for personal reasons,” Kolkey declared, citing +Farmers Ins. Group v. County of Santa Clara+ (1995) 11 Cal.4th 992, in which the state high court said vicarious liability is “deemed inappropriate where the misconduct does not arise from the conduct of the employer’s enterprise but instead arises out of a personal dispute..., or is the result of personal compulsion.”

Kolkey rejected the plaintiff’s reliance on Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, a case involving a Los Angeles police sergeant who stopped a woman for drunk driving, then drove her home and raped her. Later cases have limited the application of Mary M. to acts by on-duty police officers, the justice said.

Taking note of concurring opinions in Farmer’s Ins. Group by Justice Marvin Baxter and now-Chief Justice Ronald George, Kolkey added that “several justices of the high court have concluded that Mary M. itself was wrongly decided.”

Justices Coleman Blease and George Nicholson concurred.

The case is Hoblitzell v. City of Ione, 03 S.O.S. 3726.