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Court of Appeal:
School District May Be Liable for Officer’s Off-Duty Assault
Taking Broad View of Vicarious Liability of a Public Entity, Opinion Says Off-Campus Misconduct in Retrieving Lost Cell Phone Was Not So ‘Broadly Incidental’ to Scope of Employment as to Justify Dismissal of Suit
By a MetNews Staff Writer
Div. One of the Fourth District Court of Appeal yesterday revived an action against a school district seeking to hold it vicariously liable for the misconduct of one of its police officers who assaulted a plaintiff while off-duty and off-campus in an attempt to retrieve a lost cell phone, finding that the actions may fairly be regarded as within the scope of his employment.
According to the operative complaint, filed by plaintiffs Antonio Juarez, Jose Hinojosa, Jose Espinosa, and Maria Morfin on Aug. 16, 2022, the dispute arose after Juarez found a cell phone on the ground in Riverside County in February 2018. He placed it in his truck and drove to the Beaumont home of his coworker, Hinojosa.
The cell phone belonged to Officer Alejandro Brown, a police officer employed by the San Bernardino City Unified School District. Brown tracked the phone to Hinojosa’s home and drove to the location.
When Brown arrived, Juarez, Hinojosa, and Espinosa were out front of the residence. Brown approached the group, identified himself as a police officer for the district, displayed his badge, and demanded that they comply with his orders.
He then allegedly pulled his firearm, cocked it, and pointed it at Juarez, Espinoza, and Hinojosa while Hinojosa’s wife, Morfin, watched from inside the home. The officer demanded that they turn over the cell phone and Juarez retrieved it from his truck and attempted to hand it over.
Before Juarez could comply with orders, Brown purportedly struck him in the face with his gun, causing the victim to fall, hit his head, and lose consciousness. Brown later pled guilty to assault by a public officer and threatening parties under the color of law relating to the incident.
Complaint Filed
The plaintiffs filed suit against Brown and the San Bernardino Unified School District, asserting negligence, assault, battery, and other claims. The pleading alleges that the district is liable under Government Code §815.2, which provides that “[a] public entity is liable for injury proximately caused by an act…of an employee…within the scope of his employment if the act…would…have given rise to a cause of action against that employee.”
Riverside Superior Court Judge Daniel A. Ottolia sustained a demurrer by the district to the complaint, without leave to amend, finding that the pleading failed to sufficiently allege that Brown acted “within the course and scope of his employment to establish vicarious liability.”
Justice Martin N. Buchanan authored the opinion reversing the judgment of dismissal, saying that “we cannot say from the face of the complaint that [Brown’s] 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.”
Acting Presiding Justice William Dato and Justice Truc T. Do joined in the opinion.
Respondeat Superior
Buchanan said that an employee’s “scope of employment” under the doctrine of respondeat superior and §815.2 “has been interpreted broadly in California” but “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.”
The district contends that Brown’s actions were unconnected to his employment because he acted outside of the district’s jurisdiction, during off-duty hours, and to avenge a perceived personal wrong.
Unpersuaded, the jurist wrote:
“[P]laintiffs’ 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…[T]he 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.’ ”
Under these circumstances, he reasoned:
“Plaintiffs therefore asserted multiple plausible theories for how Officer Brown’s search for the phone was connected to his 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.”
District Jurisdiction
Turning to the district’s assertion that Brown was not in the district’s jurisdiction when he committed the misconduct, Buchanan pointed to Penal Code §830.32, which provides that “[t]he authority of…peace officers extends to any place in the state where a public offense has been committed or where there is probable cause to believe one has been committed.”
Based on §830.32, he opined:
“[W[e 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…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…..[P]laintiffs claimed that Officer Brown’s primary duties included ensuring the safety and security of property. His alleged investigation of a suspected property theft therefore [qualifies as] 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.”
The justice added:
“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.”
Buchanan rejected the district’s assessment that Brown was merely “pursuing his lost cell phone” and “in no way conducting an investigation for his employer,” remarking that “[t]he complaint’s allegations…say otherwise.”
He commented:
“Plaintiffs allege that Officer Brown was investigating a suspected theft under the authority and ‘color of law’ conferred upon him by the District….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 that he sought to detain or arrest someone.”
Continuing, he wrote that “[w]e 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.”
The district cited cases involving sexual misconduct by public employees which held that the alleged misconduct was not typical of or “broadly incidental” to their scope of employment. Saying “those cases are distinguishable,” Buchanan wrote:
“[T]he 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….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.’ ”
The case is Juarez v. San Bernardino City Unified School District, 2024 S.O.S. 3712.
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