Daza v. L.A. Cmty. Coll. Dist.

• Decision Date: 06 May 2016
• Docket Number: B261525
• Court: California Court of Appeals Court of Appeals
• Parties: Igor DAZA, Cross-complainant and Appellant, v. LOS ANGELES COMMUNITY COLLEGE DISTRICT, Cross-defendant and Respondent.

247 Cal.App.4th 260

202 Cal.Rptr.3d 115

Igor DAZA, Cross-complainant and Appellant

v.LOS ANGELES COMMUNITY COLLEGE DISTRICT, Cross-defendant and Respondent.

B261525

Court of Appeal, Second District, Division 8, California.

Filed May 6, 2016

Law Office of Marilyn M. Smith, Marilyn M. Smith ; the Torgow Law Firm, Martha A. Torgow ; Law Office of Ann C. Schneider and Ann C. Schneider for Cross-complainant and Appellant.

Wood, Smith, Henning & Berman, Daniel A. Berman, Stacy L. Douglas, Shannon M. Benbow and Brandon C. Murphy for Cross-defendant and Respondent.

FLIER

, J.

This case requires us to interpret provisions of the California Tort Claims Act (Gov.Code, § 810 et seq.

)¹ requiring public employers to defend and indemnify their employees for third party claims arising out of acts within the scope of employment. (§§ 825–825.6, 995–996.6.) These provisions provide “that in the usual civil case brought against a public employee, a public entity must provide a defense to the employee (§ 995 et seq.) and pay any claim or judgment against him. (§ 825 et seq.) Where the public entity refuses to defend, the employee can seek a writ of mandate.... Alternatively, he can fund his own defense and then sue for reasonable attorney fees, costs and expenses incurred if the action or proceeding arose out of an act or omission in the scope of his employment as an employee of the public entity, but recovery is barred if the agency establishes the employee acted or failed to act because of ‘actual fraud, corruption or actual malice.’ (§ 996.4.)” (Stone v. Regents of University of California (1999) 77 Cal.App.4th 736, 746, 92 Cal.Rptr.2d 94

(Stone ).)

In this case, an adult student sued the Los Angeles Community College District (the District) and Igor Daza, a guidance counselor employed by the District, alleging Daza sexually assaulted her when she went to his office for counseling services (the main lawsuit). The District refused to defend him, so he paid for his own defense and filed a cross-complaint denying the allegations of sexual assault and seeking indemnity and reimbursement for his defense. After the District settled the main lawsuit without admitting liability and without a factual determination of whether Daza was acting within the scope of his employment, the student dismissed all her claims against the District and Daza with prejudice. The District then demurred to Daza's cross-complaint, arguing the student's allegations of sexual assault in the main lawsuit fell outside the scope of Daza's employment as a matter of law. Daza opposed, arguing he was not limited to the allegations in the main lawsuit in carrying his burden to prove the acts fell within the scope of his employment. The trial court agreed with the District and refused to look beyond the allegations in the main lawsuit to hold as a matter of law that the alleged acts of sexual assault fell outside the scope of Daza's employment.

We reverse. We agree with the trial court that the sexual assault alleged in the main lawsuit fell outside the scope of Daza's employment as a matter of law. But under a proper interpretation of section 996.4, the determination of whether an employee acted within the scope of employment is factual and cannot be limited to the third party's allegations in the underlying lawsuit when the employee denies those allegations, and the employee's version of events would demonstrate acts within the scope of employment.

BACKGROUND

As alleged in her operative first amended complaint (FAC), plaintiff Jazmyne Goodwin was an adult student at Los Angeles Southwest College LASC), a school within the District. Daza worked as a guidance counselor and advisor for LASC, and at all times was an employee and agent for LASC and the District. His responsibilities included providing educational and emotional counseling for students like Goodwin. In that capacity, he was assigned to Goodwin as a counselor, which created a special relationship between her and Daza and the District. He used his position of authority to sexually harass and molest her.

In the evening of May 3, 2011, she went to Daza's office to meet with him to discuss (1) the problem with the humanities class she had dropped; (2) the fashion classes at Trade Tech; and (3) possible field trips to see various colleges to get her bachelor's degree. When she entered his office, he closed the door and took her cell phone from her. He examined the pictures on the phone without her consent, telling her, “You take a lot of pictures. I like the one with your nipple ring. I am going to send the picture to myself.” Surprised and shocked, she told him not to send it. Nonetheless, he sent the picture to his cell phone.

Upset, Goodwin got up to leave. Daza grabbed her wrist and pulled her toward him. He said, “Are you a freak? I heard Aries are freaks.” She pushed him away. He said, “If you don't want me to touch you, maybe you would like me to lick you.” She responded, “No. I want to leave.” She told him she had a boyfriend and said, “It's too much for me.” She could not leave because he was blocking her path. He touched, caressed, and kissed her neck, placed his left hand in her dress on the upper part of her breast, and asked if he could see her nipple ring. She pushed him away. He was still holding her hair, but finally let her go. She left the office, and he followed her. He said he did not notice her butt was that big and she should really think about going on a date with him. She walked to her car, and he continued to follow her. At this point, she was shocked to see he had sent the photo of her nipple ring to his own cell phone. He did all this for his own sexual gratification.

A criminal investigation of this incident was commenced, and on May 31, 2012, Daza resigned his employment with the District. He was paid a $73,000 severance bonus.

The FAC alleged 13 causes of action, including claims against Daza for negligence; statutory breach (Gov.Code, §§ 815.2

, 820 ); intentional infliction of emotional distress; sexual battery (Civ.Code, § 1708.5 ); battery; assault; sexual harassment (Civ.Code, § 51.9 ); gender violence (Civ.Code, § 52.4 ); false imprisonment; negligent sexual abuse; and sexual harassment (Civ.Code, § 51.9 —Ralph Act). The District eventually settled the lawsuit with Goodwin without admitting liability, and Goodwin dismissed the complaint against both the District and Daza with prejudice.

After protracted procedural wrangling not pertinent to this appeal, Daza filed a third amended cross-complaint (TACC), which alleged three cross-claims against the District: (1) statutory defense (§§ 825, 995); (2) statutory indemnity (§§ 825, 825.2); and alternatively (3) a petition for a writ of mandate to compel the District to provide a defense and indemnity. Daza denied all of Goodwin's allegations of sexual assault in the main lawsuit and denied he believed his acts were unlawful. He acknowledged his resignation and his severance payment of $73,000. He alleged his settlement agreement with the District included a clause stating that he and the District “agree that nothing in this Agreement reduces, ifies, or otherwise affects the rights and responsibilities of the Parties to defense and indemnification pursuant to the Government Code, Education Code and any other provision of law or regulation including, specifically but without limitation, those rights and responsibilities in the Government Code Division 3.6, including, without limitation, those provisions in Part 2 Chapter 1 Article 4, commencing with Section 825, and Part 7 commencing with Section 995.” He also alleged the District never afforded him an evidentiary or other hearing on the issue of defense and indemnity, and it never made a determination that he was not acting within the scope of his employment or acted with actual fraud, corruption, or actual malice.

The District demurred to the TACC. It argued Daza's claim for indemnity failed because the District entered a settlement with Goodwin that resulted in dismissal of her lawsuit with prejudice, so Daza was not required to pay any claim or judgment. It also argued Daza's claim for reimbursement for his defense and a writ of mandate failed because his alleged conduct fell outside the scope of his employment as a matter of law. Although not stated explicitly, this argument presupposed that determination was limited to the allegations in the main lawsuit.

In opposition, Daza conceded his indemnity claim was moot in light of Goodwin's settlement and dismissal of the main lawsuit, but he disagreed his claims for a defense and for a writ of mandate failed. He argued Goodwin's allegations did not allege conduct that fell outside the scope of his employment as a matter of law and, since he denied the allegations, there has been no factual determination that he committed the acts Goodwin alleged. Alternatively, Daza requested leave to amend to allege additional facts refuting Goodwin's allegations and to add a declaratory relief claim under his settlement agreement with the District.

The trial court initially overruled the demurrer because there had been no factual determination in the main lawsuit that Daza had sexually assaulted Goodwin or that he was acting outside the scope of his employment.² But relying on a newly issued appellate opinion in the insurance context that was subsequently depublished,³ the trial court reversed course and sustained the demurrer and dismissed the cross-complaint with prejudice. It concluded it was limited to reviewing the allegations in Goodwin's main lawsuit and held those allegations showed as a matter of law that Daza was acting outside his scope of employment.

DISCUSSION⁴

1. Legal Standards

We review an order sustaining a demurrer de novo, exercising our independent judgment to determine whether the complaint states a cause of action as a matter of law. (McMahon v. Craig (2009) 176 Cal.App.4th 1502, 1508–1509, 97 Cal.Rptr.3d 555

(McMahon ).) “We give the...