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LO v. County of Los Angeles, et al., Real Parties in Interest.

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Court of Appeal, Second District, Division 1, California.

Pifen LO, et al., Petitioners, v. The SUPERIOR COURT of Los Angeles County, Respondent. County of Los Angeles, et al., Real Parties in Interest.

No. B124427.

Decided: November 13, 1998

Binder & Norris, Paul S. Norris, Pasadena;  Audrey Winograde, Santa Monica;  Ronald P. Kaplan, Los Angeles;  and David R. Olan, Los Angeles, for Petitioners. No appearance for Respondent. Daniel E. Lungren, Attorney General, Richard J. Rojo, D.L. Helfat, and Julie Cabos, Deputy Attorneys General;  Lloyd W. Pellman, County Counsel, Millicent L. Rolon and Lauren M. Black, Deputy County Counsel, for Real Parties in Interest.

INTRODUCTION

In early 1996, Pifen Lo, her common-law husband Ming Jin, and Yu Chu were criminal co-defendants charged with several violent and non-violent felonies.   Their case was assigned to Superior Court Judge George W. Trammell, III for motions and trial.   In January 1996, Lo pled guilty.   In April 1996, Trammell placed Lo on probation with credit for time served.   Jin and Chu proceeded to trial.   Before trial, Jin pled guilty to the non-violent felonies and the prosecutor dismissed those charges against Chu. In July, 1996, a jury convicted Jin of three and Chu of two violent felonies.   Trammell never sentenced Jin or Chu.

Beginning a few days after Lo's sentencing, and resuming shortly after Jin and Chu were convicted, Trammell had a series of improper ex parte communications with Lo and Chu, without their attorneys' knowledge or presence, and a series of physical and sexual contacts with Lo. Trammell used his position as the judge supervising Lo's probation and empowered to impose sentence on Jin and Chu to coerce Lo into compliance.   Trammell told Lo she had to submit to his demands to secure favorable treatment for herself and Jin. Some of the improper acts occurred in Trammell's chambers in the courthouse during regular court time, while others happened at Trammell's home during non-business hours.

When this information became known, Trammell resigned from the bench.   Upon directions from Division Three of this court, a different judge conducted an evidentiary hearing at which the above factual findings were made.   The judge ordered a new trial for Jin and Chu because of Trammell's misconduct.   Jin and Chu later pled guilty.

Lo and Jin, their three children, and Chu sued Trammell, his clerk and bailiff, and Los Angeles County and the State of California for intentional misrepresentation, assault and battery, false imprisonment, abuse of process, civil rights violations, negligence, and intentional and negligent infliction of emotional distress.   The County and State were named only on a respondeat superior, vicarious liability theory.

The defendants demurred on several grounds.   The trial court overruled some demurrers and sustained others, some with leave to amend and some without leave.   Regarding the County and State, the trial court partially sustained and partially overruled their demurrers, finding they could be liable on a respondeat superior theory for Trammell's acts in the courthouse, but not for his at-home, after-hours conduct.

Plaintiffs sought writ review on several grounds.   We issued an alternative writ and order to show cause on the single issue whether there was any distinction between the County's and State's liability for Trammell's courthouse versus his at-home conduct.  (Further references to the defendants are to the State and County, the only defendants relevant to this petition.)

Plaintiffs argue defendants are liable under a respondeat superior theory for both types of conduct.   They ask us to reverse the trial court's order absolving defendants of liability for Trammell's out-of-court conduct and hold defendants potentially liable for all Trammell's conduct toward the defendants because all of that conduct arose directly from Trammell's exercise of his core judicial function.   Defendants argue they are liable for none of that conduct, whether in the courthouse or at home.   They ask us to order the trial court to dismiss the entire case against them.   Alternatively, they argue they are not liable for Trammell's at-home, after hours conduct and we should affirm the trial court's ruling.

We hold that no distinction exists between Trammell's in-court and at-home improper conduct towards Lo, regardless of whether it happened during normal court business hours, because all the conduct arose directly from Trammell's actions as a judge supervising criminal defendants and his misuse of his judicial power over them.1  We issue the writ and order the trial court to vacate that portion of its order sustaining the defendants' demurrers without leave to amend regarding Trammell's conduct away from the courthouse and during non-business hours, and issue a new order overruling defendants' demurrers as to such conduct.   In all other respects the trial court's rulings remain in full force and effect.

SPECIFIC ALLEGATIONS IN THE FIRST AMENDED COMPLAINT

Plaintiffs alleged they all were criminal defendants whose cases were assigned to Trammell in his capacity as a criminal trial judge.   Plaintiffs alleged that Trammell ordered Lo to come to his chambers after he placed her on probation and told her she would have to “ ‘pay the price,’ ” i.e., submit to his physical and sexual advances to secure a favorable sentence for Jin and to avoid having her probation revoked and being sent to prison.   Lo did so.

Plaintiffs also alleged Trammell had extensive telephonic communication with Lo to arrange and continue these sexual encounters.   Plaintiffs alleged Lo complied because of fear and her belief Trammell would use his judicial power to impose a life sentence on Jin and to revoke Lo's probation and imprison her if she refused.   The complaint alleged some of this conduct occurred after hours at Trammell's home, including at least one act of sexual intercourse at Trammell's home during the evening.   The complaint did not allege all the times or from where Trammell placed the telephone calls, but it implied that at least some of those calls came from his home during non-court hours.

THE CHALLENGED RULING

The ruling was one of several regarding various demurrers by all defendants, including Trammell, the clerk, and the bailiff, to various causes of actions.   Here, plaintiffs challenge the ruling on the State's demurrer to Lo's assault and battery (second) cause of action:  “Scope of employment The acts occurring in the courthouse are within the scope of employment.   The telephone calls (since, for one thing, we do not know their place of origination) and the act of intercourse against the will of the plaintiff at [Trammell's] home are not.”

The court repeated the ruling on the demurrer to plaintiffs' intentional infliction of emotional distress (sixth) cause of action:  “Scope of employment-The in-courthouse activities of Trammell, [his clerk] and [his bailiff] are within the scope of employment.   The out-of-courthouse activities alleged are not.”

DISCUSSION

Plaintiffs contend the trial court erred in sustaining defendants' demurrers without leave to amend regarding any of Trammell's conduct that occurred away from the courthouse during non-business hours, holding in essence defendants could not be vicariously liable under a respondeat superior theory for any of such conduct.

“The function of a demurrer is to test the sufficiency of the complaint by raising questions of law.  [Citation.]  The complaint must be given a reasonable interpretation and read as a whole with its parts considered in their context.  [Citation.]  A general demurrer admits the truth of all material factual allegations of the complaint;  plaintiff's ability to prove the allegations, or the possible difficulty in making such proof, does not concern the reviewing court.  [Citation.]  ‘As a reviewing court we are not bound by the construction placed by the trial court on the pleadings but must make our own independent judgment thereon, even as to matters not expressly ruled upon by the trial court.’  [Citation.]”  (Aragon-Haas v. Family Security Ins. Services, Inc. (1991) 231 Cal.App.3d 232, 238-239, 282 Cal.Rptr. 233;  Blank v. Kirwan (1985) 39 Cal.3d 311, 318, 216 Cal.Rptr. 718, 703 P.2d 58.)

“ ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.  [Citation.]  We also consider matters which may be judicially noticed.’   [Citation.]  ․ When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action.   [Citation.]  And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment:  if it can be, the trial court has abused its discretion and we reverse;  if not, there has been no abuse of discretion and we affirm.  [Citations.]  The burden of proving such reasonable possibility is squarely on the plaintiff.   [Citation.]”  (Blank v. Kirwan, supra, 39 Cal.3d at p. 318, 216 Cal.Rptr. 718, 703 P.2d 58.)

Although courts “rarely grant extraordinary relief at the pleading stage of a lawsuit, mandamus will lie when it appears that the trial court has deprived a party of an opportunity to plead his cause of action or defense, and when extraordinary relief may prevent a needless and expensive trial and reversal.   [Citations.]”  (Taylor v. Superior Court (1979) 24 Cal.3d 890, 894, 157 Cal.Rptr. 693, 598 P.2d 854 [granting writ relief and reversing erroneous sustaining of a demurrer without leave to amend to a punitive damages allegation];  Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1223, 44 Cal.Rptr.2d 197 [granting writ relief and reversing erroneous sustaining of a demurrer without leave to amend to two of several causes of action and a punitive damages allegation].)

The primary case addressing the issue before us is Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 285 Cal.Rptr. 99, 814 P.2d 1341.   There, the Supreme Court held that a city could be vicariously liable under a respondeat superior theory when its employee, a uniformed, on-duty police officer, raped a woman the officer initially had stopped and detained for suspicion of drunk driving.   The officer drove the woman detainee to her home where he raped her.   The officer failed to follow an existing police department guideline that when transporting a suspect of the opposite sex, the officer was to log in his starting and ending time and mileage.

“Under the doctrine of respondeat superior, an employer may be held vicariously liable for torts committed by an employee within the scope of employment.  [Citation.]  ․ The doctrine is a departure from the general tort principle that liability is based on fault.  [Citation.]  It is ‘ “a rule of policy, a deliberate allocation of a risk.” ’  [Citations.]  Respondeat superior is based on ‘ “a deeply rooted sentiment” ’ that it would be unjust for an enterprise to disclaim responsibility for injuries occurring in the course of its characteristic activities.  [Citations.]

“Recently, [the Supreme Court] articulated three reasons for applying the doctrine of respondeat superior:  (1) to prevent recurrence of the tortious conduct;  (2) to give greater assurance of compensation for the victim;  and (3) to ensure that the victim's losses will be equitably borne by those who benefit from the enterprise that gave rise to the injury.   [Citations.]

“For the doctrine of respondeat superior to apply, the plaintiff must prove that the employee's tortious conduct was committed within the scope of employment.  [Citation.]  ‘A risk arises out of the employment when “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.]  In other words, where the question is one of vicarious liability, the inquiry should be whether the risk was one ‘that may fairly be regarded as typical of or broadly incidental’ to the enterprise undertaken by the employer.  [Citations.]” '

“Tortious conduct that violates an employee's official duties or disregards the employer's express orders may nonetheless be within the scope of employment.  [Citations.]  So may acts that do not benefit the employer [citation], or are willful or malicious in nature [citations].  [¶] The doctrine of respondeat superior applies to public and private employers alike.”  (Mary M. v. City of Los Angeles, supra, 54 Cal.3d at pp. 208-209, 285 Cal.Rptr. 99, 814 P.2d 1341.)

The Supreme Court concluded all three policy reasons supported imposing vicarious liability on the city under the facts before it.  “Police officers occupy a unique position of trust in our society.   They are responsible for enforcing the law and protecting society from criminal acts.   They are given the authority to detain and to arrest and, when necessary, to use deadly force.   As visible symbols of that formidable power, an officer is furnished a distinctively marked car, a uniform, a badge, and a gun.   Those who challenge an officer's actions do so at their peril;  anyone who resists an officer's proper exercise of authority or who obstructs the performance of an officer's duties is subject to criminal prosecution.  [Citation.]  [¶] When law enforcement officers abuse their authority by committing crimes against members of the community, they violate the public trust.   This may seriously damage the relationship between the community and its sworn protectors, by eroding the community's confidence in the integrity of its police force.”  (Mary M. v. City of Los Angeles, supra, 54 Cal.3d at pp. 206-207, 285 Cal.Rptr. 99, 814 P.2d 1341.)

The Supreme Court also found the officer's deliberate abuse of his official police power was not so unusual or startling that it was unfair to hold the City liable despite its lack of fault.  (Mary M. v. City of Los Angeles, supra, 54 Cal.3d at pp. 214-221, 285 Cal.Rptr. 99, 814 P.2d 1341.)

In two later cases, the Supreme Court distinguished but declined to overrule Mary M. While dissenting justices in both cases urged that Mary M. be overruled, it remains governing law.  (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.)   In the first of those two cases, the Supreme Court held a county not vicariously liable under the respondeat superior theory for sexual harassment by an on-duty sheriff's deputy of female deputies while all were on duty at the county jail.  (Farmers Ins. Group v. County of Santa Clara (1995) 11 Cal.4th 992, 47 Cal.Rptr.2d 478, 906 P.2d 440.)   The majority rejected the notion that sexual harassment of co-workers is so common that it should be considered a normal part of the employment context.   The harassing deputy was not acting as a peace officer when he harassed his co-workers;  his peace officer status was irrelevant to his interactions with his co-workers.   The majority noted that the victims had adequate remedies in FEHA (Fair Employment and Housing Act;  Gov.Code § 12900 et seq.) suits against employers who failed to take adequate precautions to prevent the conduct.

In the second case, the Supreme Court held a hospital not liable under the same theory when a laboratory technician sexually assaulted a female patient while administering an ultrasound examination.  (Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 48 Cal.Rptr.2d 510, 907 P.2d 358.)   The majority noted that the hospital technician deceived a naive patient, but lacked any of the authority or power of police officers exercising power over the citizenry.

A judge acting in his judicial capacity much more closely resembles a police officer enforcing the law than a co-worker harassing his fellow employees or a hospital technician tricking a naive patient into thinking a sexual assault is part of a legitimate medical examination.   While the judge lacks the police officer's uniform, badge, and gun, as well as the ability personally to physically restrain, search, and use force against suspects, he wears a distinctive sign of authority (his robe), sits in an elevated position (his bench), and has the power to incarcerate defendants for, in Jin's case, life.   The judge has an armed, uniformed bailiff who can and will enforce the judge's orders using the same coercive, physical restraints as a police officer on the street.   True, a judge is more constrained in his exercise of power than a police officer in a dark alley because the judge works in public, and the defendant has a lawyer to insist that procedures be followed and rights be protected.   However, the judge can manipulate the proceedings by his rulings and exercises enormous discretion and control.

 Here, Trammell was acting in his core judicial role in his relations with Lo and the other plaintiffs, who also were criminal defendants in his court.   Lo was not a co-worker subjected to harassment by a fellow employee or supervisor, nor was she tricked into compliance by someone lacking any real authority over her.   Trammell only met Lo because she was a criminal defendant in his court.   Plaintiffs alleged that Trammell told Lo his emotional feelings for her began in that context.   Trammell supervised Lo's probation, and would make any decision to shorten, terminate, or violate probation.   The latter decision would send Lo to prison.   Trammell would decide what sentence Jin would receive, as well as whether Jin's substantial seized assets would be forfeited or returned.   Trammell's abuse of his power began in the courthouse under these circumstances.   His later orders to Lo to come to his house, perform sex acts there, and continuing telephone contacts were part of the abuse of power that arose directly from his core judicial function handling the case of a criminal defendant before him.   Thus, in this case, the trial court's distinction between in-court and at-home conduct fails, since the conduct in both places involved abusing his judicial power over criminal probationers or defendants to coerce them into compliance with his demands.

Indeed, this conclusion is consistent with Mary M., where the officer did not rape the victim in his patrol car or at the police station, but at the victim's home.   Liability was found although the officer committed the abuse not in his place of employment.   Likewise, Trammell's conduct toward Lo was not different at home than in the courthouse, nor was it motivated by different factors.   In both arenas, Trammell ordered Lo to do things under the threat that if she refused, he would use his judicial power and position to punish her and Jin for her non-compliance.

 Moreover, we reject defendants' argument that Trammell's conduct was “ ‘ “so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer's business.” ’ ”  (Mary M. v. City of Los Angeles, supra, 54 Cal.3d at p. 209, 285 Cal.Rptr. 99, 814 P.2d 1341.)   To accept this proposition would be to accept the claim that a judge's direct abuse of his judicial power over a criminal defendant to satisfy his sexual desires is so rare that we should not hold defendants liable.   Such is not the case.

As long ago as 1973, a judge was removed from the bench for repeated sexual comments and conduct, both on and off the bench.  (Geiler v. Commission on Judicial Qualifications (1973) 10 Cal.3d 270, 110 Cal.Rptr. 201, 515 P.2d 1.)   Geiler made crude, obscene sexual remarks to court personnel, attorneys, and others, both on and off the bench.   He committed sexual assaults on an attorney in his chambers and on a commissioner in a public courthouse hallway.   Geiler's behavior was more bizarre than Trammell's conduct toward Lo, which apparently was motivated by common sexual attraction and desire.

As recently as this year, a San Diego judge was publicly admonished by the Commission on Judicial Performance for improper sexual advances, including “sexual innuendo, unwanted gifts, personal questions, and, on one occasion, an unwelcome kiss,” toward his clerk.  (Graham, Judge Is Cited By Panel For Pursuing Clerk, Los Angeles Daily Journal (Oct. 27, 1998) p. 1, col. 6.) The judge's misconduct included non-sexual conduct, such as ordering the clerk to make a $250 campaign contribution for him in her name, and unsuccessfully ordering her to sign a sexual harassment waiver.   We recognize that Farmers Ins. Group v. County of Santa Clara, supra, 11 Cal.4th 992, 47 Cal.Rptr.2d 478, 906 P.2d 440 held that sexual harassment of a co-worker or subordinate did not trigger respondeat superior vicarious liability without fault.   We cite this recent judicial discipline case because it supports our conclusion that judges' abuse of power for sexual satisfaction is not so unusual or startling as to make it unfair for defendants to be vicariously liable for Trammell's similarly-motivated misconduct.

We will not burden this opinion with the myriad other cases, in California and other jurisdictions, in the intervening 25 years chronicling sexual abuse by judges.

We decline to find an abuse of judicial power for personal gratification so unusual and startling to shield defendants from respondeat superior liability.2

Thus, the trial court erred in drawing the in-court versus at-home distinction.   We grant the petition and direct the trial court to vacate its order making that distinction, and enter a new order eliminating that distinction.   In all other respects, the trial court's orders remain in full force and effect.

DISPOSITION

We issue the writ.   We direct the trial court to vacate that portion of its order sustaining the State's and County's demurrer and distinguishing between Trammell's in-court and out-of-court conduct for respondeat superior purposes.   We direct the trial court to enter a new order overruling that demurrer and eliminating that distinction.   In all other respects, the trial court's orders remain in full force and effect.   Plaintiffs are entitled to their costs on the petition.

FOOTNOTES

1.   We recognize the case is only at the pleading stage, and we are examining only the allegations in the first amended complaint.   Our record does not contain the results of any discovery or the full factual development which will occur at trial.   Our record includes Trammell's defense before the Commission on Judicial Performance, in which he denies Lo's claims of a sexual relationship.   However, Trammell admitted much of the ex parte contact with Lo and Chu. He claimed he feared Jin may have been affiliated with Asian organized crime and was targeting him, and that his conduct was designed to ferret out such a plan while protecting him from intimidation.   We do not consider this information in analyzing the case, nor would the parties be limited to such a defense at trial.   We note it merely to emphasize that on the admittedly preliminary record considered in ruling on a demurrer, the defense essentially acknowledges that Trammell's conduct towards plaintiffs all arose directly from his contact with them as criminal defendants in his judicial capacity.

2.   The cases are rife with judicial abuses of power motivated by arrogance as well as sexual desire.  (See Cannon v. Commission on Judicial Qualifications (1975) 14 Cal.3d 678, 122 Cal.Rptr. 778, 537 P.2d 898.)   Abuse of power can be motivated by greed, arrogance, sexuality, or any other improper motive.   Our Constitutional system of checks and balances was designed to protect us against the Founders' expectations that unchecked power would lead to rampant abuse.   They considered abuse of power so common as to design an entire system of government expressly to check it.

ORTEGA, Acting P.J.

MIRIAM A. VOGEL, J., and DUNN, J.*, concur.

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