Jeffrey E. v. Central Baptist Church

Decision Date07 January 1988
Docket NumberNo. G004405,G004405
Citation243 Cal.Rptr. 128,197 Cal.App.3d 718
CourtCalifornia Court of Appeals Court of Appeals
PartiesJEFFREY SCOTT E., a Minor, Plaintiff and Appellant, v. CENTRAL BAPTIST CHURCH, Defendant and Respondent.

Michael L. Luboviski, Pasadena, for plaintiff and appellant.

Cooksey, Howard, Martin & Toolen and Robert L. Toolen, Santa Ana, for defendant and respondent.

SONENSHINE, Associate Justice.

Jeffrey Scott E. appeals the judgment entered upon the granting of Central Baptist Church's motion for summary judgment pursuant to Code of Civil Procedure section 437c. The sole issue raised is whether a church is liable for repeated acts of sexual assault on a minor perpetrated by a Sunday school teacher and general church member.

I

Ernest Schwobeda became a member of Central Baptist Church (CBC) in 1964 and a regular Sunday school teacher in 1967. He also participated in an organized Thursday evening program of visitation designed to enlarge CBC's membership. He was not compensated for any of these activities.

Jeffrey Scott E. first attended CBC's Sunday school classes at the age of five, but Schwobeda was not his teacher until Jeffrey entered second grade. Sometime thereafter, Schwobeda began picking Jeffrey up at his home on Thursday evenings. Schwobeda told Jeffrey's mother the boy was "his eyes" at night and helped him find the homes he was to visit. Jeffrey was also frequently with Schwobeda on Sunday mornings and evenings. 1 Schwobeda occasionally called for Jeffrey on Saturdays to do yard work or other errands. The Saturday outings were unrelated to CBC activities.

The relationship continued for two years. 2 Mrs. E. had no suspicion her son was being sexually abused. In fact, she felt Schwobeda was a perfect man and idealized him. She encouraged the relationship due to Jeffrey's father's illness. She felt Schwobeda was fulfilling the role of "second father" for Jeffrey.

In 1984, Schwobeda was arrested and charged with 47 felony counts of child molestation. After Schwobeda pled guilty to the nine counts involving Jeffrey, the underlying civil complaint for assault and battery and intentional infliction of emotional distress was filed. 3 CBC moved for summary judgment claiming Schwobeda's actions were not reasonably foreseeable by CBC, Schwobeda had no ostensible authority or agency to commit the acts upon Jeffrey, and the acts were independent, self-serving pursuits unrelated to Schwobeda's duties as a church member or Sunday school teacher. The parties stipulated the facts were not in dispute. The trial court ruled there was no triable issue of material fact and granted CBC's motion for summary judgment. 4

II

Under the doctrine of respondeat superior, an employer is liable for the torts of employees committed within the scope of employment. (Ducey v. Argo Sales Co. (1979) 25 Cal.3d 707, 721, 159 Cal.Rptr. 835, 602 P.2d 755; Hinman v. Westinghouse Elec. Co. (1970) 2 Cal.3d 956, 960, 88 Cal.Rptr. 188, 471 P.2d 988.) "The determination as to whether an employee committed a tort during the course of his employment turns on whether '1) the act performed was either required or "incident to his duties" ..., or 2) the employee's misconduct could be reasonably foreseen by the employer in any event.' [Citation.]" (Martinez v. Hagopian (1986) 182 Cal.App.3d 1223, 1228, 227 Cal.Rptr. 763.) If the employee substantially deviates from the employment duties for personal purposes, the employer is not vicariously liable. 5 (Hinman v. Westinghouse Elec. Co., supra, 2 Cal.3d at p. 960, 88 Cal.Rptr. 188, 471 P.2d 988.) "The burden of proof is on the plaintiff to demonstrate that the negligent act was committed within the scope of employment. [Citations.]" ( Ducey v. Argo Sales Co., supra, 25 Cal.3d at p. 721, 159 Cal.Rptr. 835, 602 P.2d 755.) Scope of employment is normally a question of fact. However, "where there is no dispute over the operable, overt, observable facts, then the question logically becomes one of law." (Golden West Broadcasters, Inc. v. Superior Court (1981) 114 Cal.App.3d 947, 956, 171 Cal.Rptr. 95.)

We must therefore decide whether Schwobeda's activities were within the scope of his employment. 6 Certainly Schwobeda was not employed to molest young boys. 7 There is no evidence the acts occurred during Sunday school. And the record indicates there was always at least one other adult present during the Sunday school classes. Only one of the acts to which Schwobeda pled guilty occurred on a Thursday, 8 but we do not know whether this was during a visitation period. There is no evidence to suggest Schwobeda's conduct was actuated by a purpose to serve CBC. Rather, the acts were independent, self-serving pursuits unrelated to church activities. Finally, Schwobeda's acts of sexual molestation were not foreseeable "in light of the duties [he was] hired to perform." ( Alma W. v. Oakland Unified School Dist. supra, 123 Cal.App.3d 133, 142, 176 Cal.Rptr. 287.) "There is no aspect of a [Sunday school teacher's or member's] duties that would make sexual assault anything other than highly unusual and very startling." ( Id., at p. 143, 176 Cal.Rptr. 287.) We conclude Schwobeda's acts against Jeffrey were neither required, incidental to his duties, nor foreseeable. They were, therefore, not within the scope of his employment.

Jeffrey attempts to bring Schwobeda's conduct within the respondeat superior doctrine by arguing CBC placed Schwobeda in a position of trust equal to the position of authority of the deputy sheriff in White v. County of Orange (1985) 166 Cal.App.3d 566, 212 Cal.Rptr. 493. His reliance on that decision is misplaced. In White, we were not called upon to decide if a sexual assault was within the scope of employment of a deputy sheriff. 9

Rather, applying the test set forth in Alma W. v. Oakland Unified School Dist., supra, 123 Cal.App.3d at p. 139, 176 Cal.Rptr. 287, we determined the wrongful acts flowed from the very exercise of the authority which was an integral part of a deputy sheriff's duties.

"A police officer is entrusted with a great deal of authority. This authority distinguishes the situation here from the facts of Alma W. Unlike a school custodian, the police officer carries the authority of the law with him into the community. The officer is supplied with a conspicuous automobile, a badge and a gun to ensure immediate compliance with his directions. The officer's method of dealing with this authority is certainly incidental to his duties; indeed, it is an integral part of them." ( White v. County of Orange, supra, 166 Cal.App.3d 566, 571, 212 Cal.Rptr. 493.) We are not persuaded White 's "use of authority" should be expanded to include "position of trust."

The distinguishing feature in White is that the errant conduct arose out of an abuse of the employee's official authority. By virtue of the exercise of this authority, the police officer was able to perpetrate his assault. The focus is not on whether the police officer's activity is either characteristic or foreseeable, but rather on whether the assault arose out of the exercise of job-created authority over the plaintiff. That situation is not present here.

There was not an abuse of authority which had been established by reason of a special relationship created by CBC. Schwobeda's "position of trust" developed not because he was Jeffrey's Sunday school teacher or because he was a member of CBC's congregation. Rather, it flourished through numerous other contacts sanctioned by Jeffrey's mother. And it is undisputed that none of the acts occurred on CBC property or during Sunday school. It is also undisputed children were not a part of visitation; that was an adult function. Schwobeda's actions in taking Jeffrey along during visitations were outside the scope of his authority as established by CBC. Finally, it was not asserted in the complaint that any of the acts of molestation actually occurred during any of the times Schwobeda took Jeffrey on visitation.

The facts of the instant case fall more closely in line with those of Milla v. Tamayo (1986) 187 Cal.App.3d 1453, 232 Cal.Rptr. 685. In Milla, the plaintiff, a 16-year-old girl, was allegedly seduced by seven priests of the Roman Catholic Church of the Archdiocese of Los Angeles. Two of these priests had heard the girl's confessions and were admired and respected by her. They utilized their positions as...

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