Mary M. v. City of Los Angeles, No. B022761

CourtCalifornia Court of Appeals
Writing for the CourtL. THAXTON HANSON; LUCAS; SPENCER
Citation246 Cal.Rptr. 487,225 Cal.App.3d 666
PartiesPreviously published at 225 Cal.App.3d 666 225 Cal.App.3d 666 MARY M., Plaintiff and Respondent. v. CITY OF LOS ANGELES, Defendant and Appellant.
Decision Date25 April 1988
Docket NumberNo. B022761

Page 487

246 Cal.Rptr. 487
Previously published at 225 Cal.App.3d 666
225 Cal.App.3d 666
MARY M., Plaintiff and Respondent.
v.
CITY OF LOS ANGELES, Defendant and Appellant.
No. B022761.
Court of Appeal, Second District, Division 1, California.
April 25, 1988.
Review Granted July 14, 1988.

Page 489

[225 Cal.App.3d 668] James K. Hahn, City Atty., John T. Neville, Sr. Asst. City Atty., Richard M. Helgeson, Asst. City Atty., and Greg Wolff, Deputy City Atty., for defendant and appellant.

Vann H. Slatter, Beverly Hills, and S.K. Khalsa, for plaintiff and respondent.

[225 Cal.App.3d 669] L. THAXTON HANSON, Associate Justice.

The City of Los Angeles (defendant and/or "City") appeals from a judgment holding it liable under the doctrine of respondeat superior for damages stemming from the rape of Mary M. (plaintiff) by a Los Angeles police officer, Sergeant Leigh B. Schroyer, during working hours. We reverse.

PROCEDURAL HISTORY

On December 24, 1981, Sergeant Schroyer was charged with one count of forcible rape of Mary M. on October 3, 1981, and was convicted of that charge on June 18, 1982. On August 6, 1982, he was sentenced to state prison.

On October 1, 1983, plaintiff Mary M. filed her complaint for damages arising out of the rape, naming Sergeant Schroyer as well as the City as defendants. The California Court of Appeal, Second Appellant District, Division Seven, in a decision filed May 17, 1985, issued a writ of mandate directing the superior court to vacate its orders granting a motion to sever and to enter summary judgment in plaintiff's favor and against defendant City and Schroyer conclusively establishing the fact of rape based upon the criminal conviction of Schroyer.

On August 13, 1985, the trial court denied plaintiff's motion for summary judgment on the issue of whether Schroyer acted within the scope of his employment.

Prior to trial, plaintiff Mary M. abandoned her cause of action alleging direct negligence by the City for employing Schroyer as a police officer.

Thus, plaintiff's sole remaining theory was to hold defendant City vicariously liable based on the doctrine of respondeat superior as set forth in Government Code section 815.2, subdivision (a).

After a jury trial, the jury returned a verdict for the plaintiff, assessing general damages of $150,000 against defendant City, and making a special finding that at the time of the events out of which this case arose, Sergeant Schroyer acted within the scope of his employment with the Los Angeles Police Department.

Defendant Schroyer did not appear to defend the action and it was stipulated that the issues of liability and damages as to him would be submitted to the court based on the evidence presented to the jury. After the [225 Cal.App.3d 670] jury returned its verdict in favor of plaintiff against defendant City, the trial judge in accordance with the stipulation, entered judgment in favor of plaintiff and against codefendant Schroyer in the sum of $150,000 for compensatory damages and $150,000 for punitive damages.

The trial court denied defendant City's motion for a new trial on July 30, 1986. City filed a timely notice of appeal.

FACTS

Leigh B. Schroyer had been employed by defendant City as a police officer since January 31, 1966, rising to the rank of sergeant. On October 2, 1981, Sergeant Schroyer was a field supervisor in the West Valley Division. He began an eight-hour shift at about 11 p.m., wearing a uniform and driving alone in a black-and-white patrol car to supervise and train police officers on the streets.

That same evening, plaintiff Mary M., while visiting with several female friends at three bars during several hours, consumed numerous drinks (at least two beers and nine rum and cokes). After 2 a.m. on October 3, after the last bar plaintiff had visited closed and she was driving home alone on Tampa Avenue in the San Fernando Valley, she saw red police lights flashing in her rear view mirror. She set a beer bottle from which she had sipped on the passenger side on the floor and pulled over. Officer Schroyer first noticed plaintiff's car

Page 490

when she made a wide, erratic left turn, nearly colliding with a parked car. Schroyer turned on his red lights but plaintiff continued driving for about a quarter of a mile before she pulled to the curb. After she pulled over, Officer Schroyer approached, asked for her license, and then asked her to step outside the car and walk to the curb. He had her perform a field sobriety test, which she did not perform very well; Schroyer formed the opinion that she could not safely drive a motor vehicle and was under the influence of alcohol. This upset her and she began to cry. She told Schroyer that she had never been stopped by a police officer before, and pleaded with him not to arrest her and take her to jail, explaining that she had two small children and had to go to work the next day.

Instead of placing plaintiff under arrest for driving under the influence, Sergeant Schroyer told her to get in his vehicle and asked for her car keys, which she gave him. She got into the front seat of his car unhandcuffed. After locking her car, Schroyer returned to the police vehicle, said a few things in code into the radio, and began to drive, asking questions as he drove. Plaintiff answered that she was recently divorced, had two children who were staying overnight at a friend's house, and that her boyfriend, with [225 Cal.App.3d 671] whom she lived, had gone away on a fishing trip for the weekend. She believed she was being taken to the Devonshire Police Station.

The officer, however, turned in the direction of plaintiff's house, which made her feel less upset. They pulled into her driveway, and got out of the car. Plaintiff entered the house, put her purse down on a counter, and turned around to thank the officer for bringing her home. She saw he had stepped inside the threshold a couple of feet.

Plaintiff Mary M. testified that Schroyer underwent a sudden change of behavior and said "there had to be payment involved for him doing this." She became terrified. Schroyer's voice had changed to a nasty tone, and "the look on his face, ... had changed from Dr. Jekyll to Mr. Hyde." She turned and ran toward the stairs to get away, but Schroyer grabbed her hair, and threw her down on the couch. Although she was trying to push him away and crying and screaming to let her go, Schroyer put his hand over her mouth and told her that if she didn't stop screaming and be quiet he would take her to jail. She stopped screaming, even when he removed her hand from her mouth, because she was frightened, thinking he might even kill her. At that point she stopped struggling. Then Schroyer raped her. She denied making any sexual advances toward him.

The evidence shows that after the rape, Sergeant Schroyer returned to his police car and radioed communications that he had "cleared from Code 7," the code used to indicate a return from a lunch break. Schroyer stated that he considered himself to be on such a break while he was in plaintiff's home. Communications questioned Schroyer's call that he was clearing from Code 7 since he had not previously informed them that he was taking a lunch break. Instead of responding to the question, Schroyer informed communications that he was returning to the police station. Schroyer finished his shift doing paper work at the station.

Schroyer did not record his contact with the plaintiff in his daily report. He stated that he did not believe that he had the discretion to take plaintiff home rather than arrest her and "knew that by taking her home [he] was violating Departmental policy." Because of this, he had not called in his "time and mileage" before driving plaintiff home, although he understood that this was the usual practice when transporting a female.

Officer Small, a police lieutenant assigned to the Los Angeles Police Department Internal Affairs to investigate misconduct by police officers, investigated the Schroyer incident. Small testified that Schroyer had signed out a police vehicle on October 2, and went out in the field during his shift as a uniformed officer. During this time, he stopped plaintiff's car and called [225 Cal.App.3d 672] in a "Code 6," which informs the radio operator that an officer is out of his

Page 491

vehicle conducting an investigation and unavailable for other calls. Schroyer also conducted a field sobriety test, an official Los Angeles Police Department procedure to determine whether a driver is driving under the influence. Schroyer later "cleared," which meant he had completed his activity and was again back in the field available for calls. Schroyer told Small he did not arrest plaintiff partly because he did not want to take himself out of the field for the time it would have taken to book her. Schroyer also told Small that he did not release plaintiff to drive herself home because the City of Los Angeles might be liable if she got into a traffic accident.

Defendant City made the following admissions in response to plaintiff's written request to admit their truth. The Los Angeles City Police Department employed Schroyer, who was on duty from 11 p.m. October 2 through 7:45 a.m. October 3, 1981, wore a uniform and badge, was armed with a City-issued Smith and Wesson revolver, and drove a City-issued black-and-white vehicle. Schroyer called in a Code 6, used his flashing red police lights, and pulled over a Mustang driven by plaintiff. Schroyer had plaintiff perform a balance test, and when he ordered her into his police vehicle, did not indicate she was free to leave. Schroyer never contacted the communications officer indicating a Code 7 (that the officer was at a meal and unavailable for calls) before entering plaintiff's home. Schroyer left plaintiff's home in uniform and drove away in his black-and-white police vehicle. When Schroyer attended roll call on October 2, 1981, left the station driving a...

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2 practice notes
  • McLaren v. Imperial Cas. and Indem. Co., Civ. A. No. 4-90-460-A.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Texas
    • February 12, 1991
    ...to accomplish his own, rather than the City's purpose." 348 F.2d at 203. The same result was reached in Mary M. v. City of Los Angeles, 225 Cal.App.3d 666, 246 Cal.Rptr. 487 (1988). In that case Mary M. had been raped by a Los Angeles police officer during his working hours. The court held ......
  • Miller v. City of Los Angeles
    • United States
    • United States State Supreme Court (California)
    • July 14, 1988
    ...MILLER, Respondent, v. CITY OF LOS ANGELES, Appellant. Supreme Court of California, In Bank. July 14, 1988. Prior report: Cal.App., 246 Cal.Rptr. 487. Respondent's petition for review MOSK, BROUSSARD, ARGUELLES and KAUFMAN, JJ., concur. ...
2 cases
  • McLaren v. Imperial Cas. and Indem. Co., Civ. A. No. 4-90-460-A.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Texas
    • February 12, 1991
    ...to accomplish his own, rather than the City's purpose." 348 F.2d at 203. The same result was reached in Mary M. v. City of Los Angeles, 225 Cal.App.3d 666, 246 Cal.Rptr. 487 (1988). In that case Mary M. had been raped by a Los Angeles police officer during his working hours. The court held ......
  • Miller v. City of Los Angeles
    • United States
    • United States State Supreme Court (California)
    • July 14, 1988
    ...MILLER, Respondent, v. CITY OF LOS ANGELES, Appellant. Supreme Court of California, In Bank. July 14, 1988. Prior report: Cal.App., 246 Cal.Rptr. 487. Respondent's petition for review MOSK, BROUSSARD, ARGUELLES and KAUFMAN, JJ., concur. ...

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