Maria D v. Westec Residential Security

• Decision Date: 30 November 2000
• Docket Number: No. B133742.,B133742.
• Citation: 85 Cal.App.4th 125,102 Cal.Rptr.2d 326
• Parties: MARIA D., Plaintiff and Appellant, v. WESTEC RESIDENTIAL SECURITY, INC., Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

102 Cal.Rptr.2d 326

85 Cal.App.4th 125

MARIA D., Plaintiff and Appellant, v. WESTEC RESIDENTIAL SECURITY, INC., Defendant and Respondent.

No. B133742.

Court of Appeal, Second District, Division 5.

November 30, 2000.

As Modified December 20, 2000.

Review Denied Feb. 21, 2001.^*

Jacobs, Jacobs & Rosenberg, Stanley K. Jacobs and Judi L. Jacobs, Santa Monica, for Plaintiff and Appellant.

Bradley & Gmelich, Barry A. Bradley, Los Angeles, and Frederick B. Hayes, for Defendant and Respondent.

TURNER, P.J.

I. INTRODUCTION

This case involves the potential respondeat superior liability of a private security company for an alleged sexual assault by an on-duty security guard. Plaintiff, Maria D., appeals from a judgment in favor of defendant, Westec Residential Security, Inc. (Westec). The trial court summarily adjudicated that Westec could not be held vicariously liable for an alleged rape committed by one of its employees, an on-duty security guard. We agree that, as a matter of law, under Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 208-211, 213-222, 285 Cal.Rptr. 99, 814 P.2d 1341 (Mary M.), Farmers Ins. Group v. County of Santa Clara (1995) 11 Cal.4th 992, 1003-1020, 47 Cal.Rptr.2d 478, 906 P.2d 440 (Farmers), and Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 296-306, 48 Cal.Rptr.2d 510, 907 P.2d 358 (Lisa M.), Westec could not be held liable under the respondeat superior doctrine because the alleged rape was not within the scope of the security guard's employment. Accordingly, we affirm the judgment.¹

II. BACKGROUND

Plaintiff alleges she was raped by an on-duty Westec security guard in September 1997. Plaintiff filed the present action against Westec alleging causes of action for sexual assault and battery (first), false imprisonment (second), intentional infliction of emotional distress (third), and negligence (fourth). The trial court summarily adjudicated the first through third causes of action in Westec's favor. The trial court concluded: "[Vicarious liability cannot properly be imposed upon a private employer for acts and actions clearly not within the scope of employment. . . ." Plaintiff filed a writ petition. The petition was summarily denied. (Maria D. v. Superior Court (B130735, Apr. 12, 1999) [nonpub. order].) The case proceeded to trial of plaintiffs negligent hiring and retention claim. A jury found Westec had not been negligent in hiring, supervising, managing, controlling, or retaining the security guard as an employee. That finding is not at issue in this appeal.

Plaintiff is a Swedish citizen residing in California. She testified at her deposition as follows. On September 4, 1997, at approximately 2 a.m., she was driving along Pacific Coast Highway. A Westec security guard detained her by shining a spotlight from his patrol car into her moving vehicle. He pulled up next to her and stopped. He asked, "How much have you been drinking tonight? What's going on?" Plaintiff thought the security guard was a police officer. The spotlight was shining in her face. The security guard got out of his car and asked plaintiff for her driver's license. He also asked: where she was coming from; where she had been before that; and where she worked. The security guard took the license back to his car and "wrote things down about it into his computer." The security guard then told plaintiff, "You can get out of the car now." He asked her whether she had "ever heard about a DUI before." He told her, "[R]ight now I could put you in jail for two years and I can get you deported." The security guard ordered plaintiff to perform field sobriety tests. He then told her to get her purse because he was going to take her "to the station." The security guard took plaintiff to another location where he raped her. Afterwards, he drove her back to her car. At the time of the encounter, the security guard was wearing a uniform, driving a Westec vehicle equipped with a spotlight, carried a gun and handcuffs on his belt, and had a second firearm on the front passenger seat of his car.

The security guard denied that he had pulled plaintiff over. He testified at his deposition that he saw her car on the side of the road and stopped to offer assistance. In the past he had assisted disabled motorists. The security guard denied ever having been reprimanded for doing so. He did not know of any other Westec security guard who had been reprimanded for doing so. He further testified, however, that in stopping to assist plaintiff he was "[p]robably not" acting within company policy.

Westec security guards were directed to limit their involvement to client-related incidents except in the event of a physically threatening situation. Westec's Patrol Manual stated in part: "Officers shall limit their involvement to Westec client related incidents only. The only exception is in the event an Officer observes a physically threatening incident, the Officer may intervene to prevent the incident from escalating to a life threatening situation. For public occurrences that do not involve the threat of physical harm the Officers' actions must be limited to observe and report the incident to the appropriate public agency." With respect to "minor non-injury road accidents" not involving a client, Westec security guards were directed to report the information to the radio dispatcher. Westec's Policy Manual stated: "As a general rule, you should not get involved in minor non-injury road accidents unless a client is involved. Such circumstances should be reported to the radio dispatcher so that the police can be advised."

Westec security guards were not authorized to make traffic stops. It was against Westec policy for a security guard to follow a car for any reason and to use a spotlight on a moving automobile. The present security guard had been disciplined in January 1997, eight months prior to incident at issue, for pulling a motorist over. In a "counseling review" report dated January 16, 1997, the security guard in the present case was advised in writing: "You are hereby reminded of Westec's policy that you are not to follow vehicles for any reason, nor should you ever use your spotlight or ally lights on a moving vehicle. The risk of shinning [sic] lights on moving vehicles could result in traffic accidents and can lead drivers to believe that they are being pulled over by the police." Westec's Patrol Manual also prohibited its security guards from carrying "unauthorized passenger[s]" in Westec vehicles "at any time."

Westec security guards were not authorized to make drunk driving arrests. Westec security guards were authorized to make "private persons arrest[s]" (see Pen. Code, § 837) of individuals suspected of committing crimes against Westec clients but only as "a last resort." "Public arrests" were allowed "when there [was] no other reasonable alternative" because an arrestee represented "a threat to the physical safety to someone." Westec policy directed that: "[a]rrests should be confined to suspects who commit crimes against Westec or Westec clients or their property"; further, "[a]rrests are not to be made for crimes against the public where the best course of action would be to observe and report the crime to the local law enforcement agency"; moreover, "Westec Officers shall not make an arrest for driving under the influence but shall observe and report, without following the suspect."

Westec security guards were also given direction on how to deal with a suspicious person in a public area; i.e., not on a client's property. Westec's Patrol Manual stated: "a. Part of your work in preventing crime is to observe any suspicious persons you may come across in your patrol area. [¶] b. The extent to which you should become directly involved with suspicious persons in public areas depends upon the circumstances. [¶] c. The safest course of action is, from a distance, to record the description of a suspicious person (and their vehicle if they have one) on a Field Observation Card for future reference. If they are intending a criminal act, the fact that they see you observing and reporting in this manner will, in many cases, drive them from the area. If no direct contact is necessary, do not make any! [¶] d. While there is nothing preventing you from speaking to, and asking questions of, any person in a public area, such an approach must be done with a great deal of caution. In all such instances, you must ensure that your actions in no way implies [sic]: [¶] i. That you are a police [o]fficer. [¶] ii. That you are in anyway delaying or detaining them, [¶] e. Such persons cannot be required to answer your questions or comply with your requests if you are not arresting them. Consequently, you must be prepared to back off if they refuse. You can also expect some abuse on occasions. [¶] f. In general: [¶] i. Avoid direct contact. Recording particulars on a Field Observation Card will suffice. [¶] ii. Don't approach if you have any indication of potential danger (e.g., group of suspicious persons). [¶] iii. If you do approach, use caution and adhere to safety precautions remembering points `d' and `e' above. [¶] iv. Be polite and helpful while being prepared to back off, if prudent to do so."

In a mission statement, Westec asked its security guards to: "1. Take the initiative to get things done. If it makes sense, do it! [¶] 2. Innovate! [¶] 3. Work for the common good! [¶] 4. Give nothing less than 100%! [¶] 5. Follow your heart!" In its job descriptions, Westec summarized security guards' responsibilities as including to "[m]aintain[ ] excellent and productive relationships with clients and with the general public toward an objective of creating high customer satisfaction and a positive public image of Westec's Patrol Division." Anne L. Laguzza testified at a deposition on behalf of Westec concerning its hiring and retention of the present security guard. Ms. Laguzza testified that Westec's policy, as...