Debbie Reynolds Prof. Rehearsal Studios v. Superior Court

• Decision Date: 26 May 1994
• Docket Number: No. B080287,B080287
• Citation: 25 Cal.App.4th 222,30 Cal.Rptr.2d 514
• Court: California Court of Appeals Court of Appeals
• Parties: , 9 IER Cases 872 DEBBIE REYNOLDS PROFESSIONAL REHEARSAL STUDIOS, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent; Sylvia JOHNSON, Real Party in Interest.

Page 514

30 Cal.Rptr.2d 514

25 Cal.App.4th 222, 9 IER Cases 872

DEBBIE REYNOLDS PROFESSIONAL REHEARSAL STUDIOS, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent Sylvia JOHNSON, Real Party in Interest.

No. B080287.

Court of Appeal, Second District, Division 2, California.

May 26, 1994.

Tuverson & Hillyard, Jeffrey S. Kramer, and Christopher J. Nevis, Los Angeles, for petitioner.

No appearance for respondent.

Garland O. Bell & Associates, and Garland O. Bell, Pasadena, for real party in interest.

NOTT, Associate Justice.

Petitioner, Debbie Reynolds Professional Rehearsal Studios, seeks a writ of mandate directing the superior court to set aside an order denying its motion for judgment on the pleadings. Code of Civil Procedure, section 340.1 ¹ extends the statute of limitations for a civil action based on childhood sexual abuse. We are asked to determine whether the tolling provision of that statute applies to the employer of an alleged abuser. We hold that it does not.

I. FACTS

In her amended complaint, real party in interest Sylvia Johnson alleges that a dance instructor employed by petitioner sexually assaulted her over a four-year period beginning when she was 15 years of age. On December 21, 1992, at the age of 26, real party filed this action against her alleged assailant. Petitioner was joined on the theory that it had caused real party to suffer damages by negligently hiring, training and retaining the alleged assailant, an unfit employee. Real party also claimed her assailant, at the time he sexually assaulted her, was acting within the scope of his employment as petitioner's "agent, servant and/or employee."

Petitioner moved for judgment on the pleadings, claiming that because real party failed to file the complaint within one year of the date she became an adult her action was time-barred. Real party opposed, arguing that her suit (filed just prior to her 27th birthday) was governed by section 340.1 which tolls the statute of limitations for causes of action based on childhood sexual abuse.

In denying the motion, the superior court opined that section 340.1 applies not only to the perpetrator of childhood sexual abuse, but also to his "principal." Implied within this ruling is that real party's complaint sufficiently sets forth facts demonstrating that her assailant's tortious acts were within the course and scope of his employment as a dance instructor.

In this mandate proceeding, petitioner asserts that our Legislature intended section 340.1 to apply only to claims filed against the perpetrators of childhood sexual abuse, and not to those premised on an employer's direct negligence in hiring and supervising an alleged assailant, or to those premised on vicarious liability under the respondeat superior doctrine. Real party, on the other hand, remains steadfast in her contention that section 340.1 applies to any "related, ancillary causes of action for negligence which may have legally contributed to the victim's damages."

On the facts alleged, petitioner cannot, as a matter of law, be held vicariously liable for the tortious acts of real party's assailant. This being so, we need not decide whether section 340.1 applies to claims based on vicarious liability under the doctrine of respondeat superior. We need only decide whether the delayed statute of limitations applies to those counts premised on petitioner's direct negligence in hiring, supervising and retaining real party's assailant.

II. DISCUSSION

A. Respondeat Superior Doctrine

"Under the doctrine of respondeat superior, the innocent principal or employer is liable for the torts of the agent or employee committed while acting within the scope of his employment." (Emphasis in original.) (2 Witkin, Summary of Cal.Law (9th ed. 1987) § 115, p. 109.) The doctrine is invoked to prevent recurrence of the tortious conduct, to give greater assurance of compensation for the victim, and 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. v. City of Los Angeles (1991) 54 Cal.3d 202, 209, 285 Cal.Rptr. 99, 814 P.2d 1341.)

The plaintiff bears the burden of proving that the employee's tortious act was committed within the scope of his employment. (Ducey v. Argo Sales Co. (1979) 25 Cal.3d 707, 721, 159 Cal.Rptr. 835, 602 P.2d 755.) Ordinarily this is a question of fact. (John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438, 447, 256 Cal.Rptr. 766, 769 P.2d 948.) However, it becomes one of law "where the undisputed facts would not support an inference that the employee was acting within the scope of his [or her] employment." (Ibid., citing Alma W. v. Oakland Unified School Dist. (1981) 123 Cal.App.3d 133, 176 Cal.Rptr. 287.) The question turns on whether or not the act performed was either required by or incident to an employee's duties, or the employee's misconduct could be reasonably foreseen by the employer in any event. (Clark Equipment Co. v. Wheat (1979) 92 Cal.App.3d 503, 520, 154 Cal.Rptr. 874.)

"In assessing whether an employee's wrongful act was required by or incidental to his duties, the law defines occupational duties broadly. The fact that an employee is not engaged in the ultimate object of his employment at the time of his wrongful act does not preclude attribution of liability to an employer. [Citation.] For example, acts necessary to the comfort, convenience, health, and welfare of the employee while at work, though strictly personal to himself and not acts of service, do not take him outside the scope of his employment. [Citation.] However, that is not to say, that employers are strictly liable for all actions of their employees during working hours. If an employee substantially deviates from his duties for personal purposes, the employer is not vicariously liable for the employee's actions. [Citations.]" (Alma W. v. Oakland Unified School Dist., supra, 123 Cal.App.3d at p. 139, 176 Cal.Rptr. 287.)

Real party alleges her assailant was employed by petitioner as a dance instructor, and that he did on numerous occasions, on and off petitioner's premises, sexually molest and abuse her. She also claims he threatened to "kill, maim, hit, slap, punch, kick or otherwise physically harm [her] unless she complied with [his] demands for his sexual gratification." This conduct allegedly violated certain sections of the California Penal Code "including but not limited to Sections 288a; 286(a), (b)(1) and (b)(2)(i); 288(c); and Section 647.6." The molestation was allegedly accomplished by the "dominance and duress inherent in [the assailant's] position and authority" as real party's "mentor, dance instructor and parental figure." As required in a review of a motion for judgment on the pleadings, we accept these allegations as true. (Gruenberg v. Aetna Ins. Co. (1973) 9 Cal.3d 566, 572, 108 Cal.Rptr. 480, 510 P.2d 1032.)

However, the only inference to be drawn from the facts as pleaded is that real party's assailant was not acting in the course and scope of his employment at the time of the sexual assaults. His wrongful conduct was so divorced from his duties and work that, as a matter of law, it was outside the scope of his employment. He was hired to teach dance, not to molest, abuse, or threaten minors. Sexual abuse simply is not typical of or broadly incident to the enterprise undertaken by petitioner.

Nor were the molestations foreseeable. Foreseeability "as a test for respondeat superior merely means that in the context of the particular enterprise an employee's conduct is 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. [Citations.]" (Rodgers v. Kemper Constr. Co. (1975) 50 Cal.App.3d 608, 619, 124 Cal.Rptr. 143.) A more unusual and startling event scarcely can be imagined.

Moreover, application of respondeat superior would not further the three previously stated policy objectives underlying the doctrine. First, it would not prevent recurrence of the assaults. Real party claims petitioner had a duty to provide physical security for the minors that were on its premises, and that petitioner "actually created an environment that encouraged" her assailant to carry out his acts of sexual molestation. This allegation appears to be based on her claim that petitioner "maintained a rehearsal building with individual studios, and their use was open to the general public on a reservation basis. On the premises was an enclosed parking lot with a mobile trailer located next to the main entrance to the studio. During all relevant times the trailer was given to [the assailant] for his exclusive use in exchange for his reserving large blocks of studio time." The suggestion seems to be that because the dance instructor/assailant on occasion used an on-site trailer in the commission of his offense, the acts of child molestation were, therefore, incidental to his teaching duties. Of course, "[w]here an employee pursues his own ends, the use of property or facilities entrusted to him by the principal is an inadequate basis for imputing liability to the employer [Citation.]." (Alma W. v. Oakland Unified School Dist., supra, 123 Cal.App.3d at p. 140, 176 Cal.Rptr. 287.)

Furthermore, real party ignores the fact that petitioner had no right to control the purely personal conduct of its employees. As in most cases of a similar nature, the assailant here is alleged to have "carried out his acts of sexual molestation ... in secret, away from the sight and knowledge of others." Real party asserts that petitioner, as a school or educational institution of children, had a duty to exercise care and concern for real party's safety and to protect her from sexual molestation. In other words, because petitioner placed her assailant in a position of trust as a "teacher," petitioner was obligated to impose rigorous controls on his activities. The...