Metropolitan News-Enterprise


Monday, May 9, 2016


Page 1


C.A. Revives College Employee’s Bid for Defense Costs

Panel Says His Denial of Sex Assault Claim That District Settled Raises Triable Issue


By a MetNews Staff Writer


The Court of Appeal for this district Friday reinstated a former Southwest Los Angeles College guidance counselor’s claim that the Los Angeles Community College District is required to reimburse him for the costs of defending against a student’s claim that he sexually assaulted her.

Because Igor Daza’s cross-complaint includes a denial of the assault allegation, which should have been credited for purposes of demurrer, he has alleged that the claim arises from the performance of his job duties and the demurrer must be overruled, Justice Madeleine Flier wrote for Div. Eight.

Jazmyne Goodwin claimed in her complaint against the district that Daza was assigned to her as a counselor and that she went to his office on a May 2011 evening to meet with him to discuss some academic issues. She claimed that after she entered the office, he closed the door and made some lewd comments, and that when she got up and attempted to leave, he blocked her path, and, after she tried to push him away, assaulted her.

A criminal investigation followed, and a year after the incident, Daza resigned his employment in exchange for $73,000 in severance pay. Goodwin sued Daza and the district on multiple causes of action and eventually accepted a settlement from the district, releasing Daza and the district from all claims with neither admitting liability.

With the district rejecting Daza’s tender of his defense, he cross-complained for costs of defense and indemnification under the Government Claims Act, noting that his severance agreement explicitly preserved his rights under the statute. He alleged that Goodwin came to him for counseling, that nothing untoward happened between them, and that the district had never afforded him a hearing or made any finding that he was acting outside the scope of his employment.

The district responded that there was no claim for indemnification because Daza contributed nothing to the settlement, and that Daza was not entitled to defense costs because the alleged conduct was outside the scope of employment.

Los Angeles Superior Court Judge Michael Linfield sustained the demurrer on the ground that the allegations pled in the complaint were of conduct outside the job of a guidance counselor.

Flier, however, said the trial judge was correct in finding that the plaintiff alleged conduct outside the scope of employment, but erred in treating those allegations as conclusive for purposes of Government Code §996.4, which renders a public entity liable for the defense and indemnification of an employee sued over an action that “arose out of an act or omission.”

The justice emphasized that the statute does not refer to an “alleged” act or omission, and that it provides the employer an exception if it can prove the employee acted with fraud, corruption, or malice. “It would create an unfairly lopsided procedure to limit the employee’s proof to the allegations in the underlying complaint but allow an employer to present evidence to defeat the employee’s claim,” she wrote.

She cited San Diego Police Officers Assn. v. City of San Diego (1994) 29 Cal.App.4th 1736, which held that a city was not liable for the defense of a police officer found to have been acting outside the scope of his employment when he had sex with an informant.

A jury had previously rejected the plaintiff’s claim of sexual battery, and the judge hearing a subsequent declaratory judgment action brought by the officer’s union, which paid for his defense, found that the officer—who admitted to having sex with the informant, but claimed it was consensual and that it took place at his condominium while he was off-duty—was acting outside the scope of employment.

The Court of Appeal affirmed, holding that—unlike in duty-to-defend insurance cases—the statute does not limit the court to the allegations of the underlying complaint in making the scope-of-employment determination.

Flier wrote:

San Diego involved the inverse of the situation we have here—the evidence of sexual misconduct outside the scope of employment defeated, rather than substantiated, the employee’s claim for reimbursement.  Nonetheless, the court’s reasoning applies.  The focus under section 996.4 must be on ‘actual occurrences in the scope of public employment, not mere allegations of such occurrences.’…Daza is entitled to substantiate his claim for reimbursement by proving no sexual assault actually occurred, regardless of Goodwin’s allegations otherwise.”

Daza was represented on appeal by Marilyn M. Smith, Martha A. Torgow, and Ann C. Schneider. Wood, Smith, Henning & Berman’s Daniel A. Berman, Stacy L. Douglas, Shannon M. Benbow and Brandon C. Murphy represented the district.

The case is Daza v. Los Angeles Community College District, 16 S.O.S. 2308.


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