MARY v. CITY OF LOS ANGELES (1988)

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 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 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 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 in a “Code 6,” which informs the radio operator that an officer is out of his 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 black-and-white police vehicle, stopped the Mustang, ordered plaintiff out and had her perform a field sobriety test, up to that time he did so in the scope of employment.

The department requires a one-man unit transporting a woman not under arrest to notify the communications officer of the location and mileage at the beginning and the end of the trip.   Schroyer did not follow this departmental procedure, nor did he record his contact with plaintiff in his daily report.

The record on appeal contains a declaration from David D. Dotson, Assistant Chief of Police for defendant City in charge of the Personnel and Training Division of the Los Angeles Police Department.   It states that Sergeant Schroyer's conduct, from the moment plaintiff entered the police vehicle, went far beyond the scope of his employment, violated department policies and procedures, and made him subject to severe discipline or termination.   Dotson stated that it was against department policy to fail to arrest an individual suspected of committing a crime such as driving under the influence;  against policy to transport a suspect in the front seat of the officer's vehicle unhandcuffed;  against policy to transport a suspect to their residence;  and absolutely against L.A.P.D. policies, practices, and procedures for a police officer to engage in any act of sexual intercourse while on duty.

Plaintiff also submitted evidence concerning the damages she sustained as a result of the rape, its aftermath, and defendant City's police investigation and criminal prosecution of the crime.   Part II of the discussion, infra, summarizes this evidence.

ISSUES

On appeal, defendant City contends 1) that as a matter of law Schroyer's rape of Mary M. was not within the scope of his employment, thus negating the applicability of the doctrine of respondeat superior upon which the City's vicarious liability was based;  and 2) that the trial court erroneously allowed plaintiff to claim damages arising from the criminal investigation and prosecution of Schroyer.

DISCUSSION

I

Defendant City of Los Angeles first contends that the evidence introduced in the trial court cannot support a finding of vicarious liability under respondeat superior doctrine because Schroyer's act of rape was not within the scope of his employment.

Under the common law doctrine of respondeat superior, an innocent principal or employer may be held vicariously liable for an agent or employee's torts committed while acting within the scope of his employment.   Moreover, in 1963, the California Legislature enacted Government Code section 815.2, subdivision (a),¹ which provides:  “A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against the employee or his personal representative.”

Section 815.2, subdivision (a), as construed by decisional law, controls.   Thus, whether the City can be held vicariously liable turns solely on whether Schroyer acted within the “scope of his employment” as a police officer when he raped the plaintiff.

STANDARDS OF REVIEW

SCOPE OF EMPLOYMENT—TWO–PRONG TEST

By settled precedent, the two-prong test for determining whether an employee's wrongful act was committed during the “scope of employment” turns on whether:  “1) the act performed was either required or ‘incident to his duties' ( Curcic v. Nelson Display Co., 19 Cal.App.2d 46 [64 P.2d 1153] ), or 2) the employee's misconduct could be reasonably foreseen by the employer in any event ( Ingle v. Bay Cities Transit Co., 72 Cal.App.2d 283 [164 P.2d 508];  see also 1 Witkin, Summary of Cal. Law (8th ed. 1973) Agency and Employment, § 164, p. 762).”  ( Clark Equipment Co. v. Wheat (1979) 92 Cal.App.3d 503, 520, 154 Cal.Rptr. 874;  see also Alma W. v. Oakland Unified School Dist. (1981) 123 Cal.App.3d 133, 139, 176 Cal.Rptr. 287, Martinez v. Hagopian (1986) 182 Cal.App.3d 1223, 1228, 227 Cal.Rptr. 763;  Jeffrey E. v. Central Baptist Church (1988) 197 Cal.App.3d 718, 721, 243 Cal.Rptr. 128;  White v. County of Orange (1985) 166 Cal.App.3d 566, 571, 212 Cal.Rptr. 413.)

If an employee's wrongful act falls within the range of actions covered by either prong of the two-prong test, the employer will be held liable for the wrong, even though the employee acted maliciously and intentionally.  (See Clark Equipment Co. v. Wheat, supra, 92 Cal.App.3d 503, 521, 154 Cal.Rptr. 874;  Alma W. v. Oakland Unified School Dist., supra, 123 Cal.App.3d 133, 139, 176 Cal.Rptr. 287.)

However, with regard to the “incident to the employee's duties” prong, “[i]f the employee substantially deviates from the employment duties for personal purposes, the employer is not vicariously liable ( Hinman v. Westinghouse Elec. Co., supra, 2 Cal.3d [956] at p. 960 [88 Cal.Rptr. 188, 471 P.2d 988.] )”  (Emphasis added.)  ( Jeffrey E. v. Central Baptist Church, supra, 197 Cal.App.3d 718, 721–722, 243 Cal.Rptr. 128;  Alma W. v. Oakland Unified School Dist., supra, 123 Cal.App.3d 133, 139, 176 Cal.Rptr. 287 and cases cited therein.)

The “foresee[able]” prong “means that in the context of the particular enterprise on employee's conduct is not so unusual or startling that it would seem unfair to conclude the loss resulting from it among other costs of the employer's business․ while Rodge s establishes that the foreseeability test for respondent superior is broader than that for negligence, the decision also limits liability to those torts which ‘may fairly be said to be characteristic’ of the enterprise's activities (50 Cal.App.3d at p. 618 [124 Cal.Rptr. 143].)”  ( Alma W. v. Oakland Unified School Dist., supra, 123 Cal.App.3d 133, 141–142, 176 Cal.Rptr. 287;  emphasis added;  Rodgers v. Kemper Constr. Co. (1975) 50 Cal.App.3d 608, 618–619, 124 Cal.Rptr. 143.)

The plaintiff bears the burden of demonstrating that the wrongful act was committed within the employee's scope of employment.  ( Ducey v. Argo Sales Co. (1979) 25 Cal.3d 707, 721, 159 Cal.Rptr. 835, 602 P.2d 755;  Jeffrey E. v. Central Baptist Church, supra, 197 Cal.App.3d 718, 722, 243 Cal.Rptr. 128.)

While normally the question whether an employee was acting within the scope of employment is one of fact, “where there is no dispute over the operable, overt, observable facts, then the question becomes one of law.”   ( Golden West Broadcasters, Inc. v. Superior Court (1981) 114 Cal.App.3d 947, 956, 171 Cal.Rptr. 95;  Jeffrey E. v. Central Baptist Church, supra, 197 Cal.App.3d 718, 722, 243 Cal.Rptr. 128;  Alma W. v. Oakland Unified School Dist., supra, 123 Cal.App.3d 133, 138, 176 Cal.Rptr. 287.)

WHITE v. COUNTY OF ORANGE

As a preliminary matter, since plaintiff in the trial court and on appeal on the scope of employment issue relies almost exclusively on White v. County of Orange, supra, 166 Cal.App.3d 566, 212 Cal.Rptr. 493,² we should explain why we refuse to follow its rationale.   First, because it emanates from a court of equal jurisdiction, White does not bind this court.   Second, White fails to follow and apply well-established principles of decisional law.   Third, White creates by judicial fiat a new theory for vicarious liability (elsewhere referred to as “job-related authority”) under respondeat superior, which is tantamount (under many factual situations) to making governmental entities strictly liable for its employee's wrongful acts.   Fourth, White is unpersuasive.   Finally, White is factually distinguishable.

In White, an Orange County deputy sheriff on patrol in a black-and-white unit stopped an automobile driven by the plaintiff and without explanation placed her in his patrol car and drove her to an isolated orange grove where he threatened to rape and murder her.   He then drove White around for several hours in secluded areas, all the while threatening her with rape and murder.   He then returned White to her car after she promised to go out with him that weekend.   Shortly after White drove away, the deputy sheriff stopped her again for the sole purpose of obtaining a “good night kiss.”

White complained to the appropriate authorities, resulting in the deputy sheriff's arrest and conviction on felony counts of kidnapping and false imprisonment.   She then sued the deputy sheriff for false imprisonment, assault and intentional infliction of emotional distress, as well as suing the deputy's employer, the County of Orange, under respondeat superior doctrine.   The trial court granted summary judgment in favor of the county, finding as a matter of law that the deputy's actions giving rise to the suit were beyond his scope of employment.

On appeal, the White court reversed the judgment and remanded the matter for adjudication on the merits, saying “[t]he issue presented is whether a governmental entity can be held liable for the intentional wrongs of an employee deputy sheriff while on duty.”  (Id. at 568, 212 Cal.Rptr. 493.)

The White court acknowledged the two-prong test of Alma W. v. Oakland Unified School Dist., supra, 123 Cal.App.3d 133, 176 Cal.Rptr. 287, but found Alma W. factually dissimilar.  White imposed vicarious liability upon the county for the deputy sheriff's false imprisonment, kidnapping, and threats to murder and rape the plaintiff while on duty by interpreting the first prong of the test, i.e., “incident to his duties.”   Stating that “a police officer is entrusted with a great deal of authority” to enforce the law as reflected by a marked patrol car, badge and gun, the White court concluded that “the wrongful acts flowed from the very exercise of this authority,” and thus “the employer/government must be responsible for acts done during the exercise of this authority.”  (White v. County of Orange, supra, 166 Cal.App.3d 566, 571, 212 Cal.Rptr. 493.)

The White opinion, however, is unpersuasive in that it ignored underlying state Supreme Court policy reasons for imposing respondeat superior liability.   Liability is imposed only for losses caused by employee torts which “as a practical matter are sure to occur in the conduct of the employer's enterprise․”  (Perez v. Van Groningen & Sons, Inc., supra, 41 Cal.3d 962, 967, 227 Cal.Rptr. 106, 719 P.2d 676, quoting Hinman v. Westinghouse Elec. Co., supra, 2 Cal.3d 956, 959–960, 88 Cal.Rptr. 188, 471 P.2d 988.)  (Emphasis added.)

The instant case is factually distinguishable from White.   A panel of the appellate court which handed down White later acknowledged in Jeffrey E. v. Central Baptist Church, supra, 197 Cal.App.3d 718, 243 Cal.Rptr. 128, that White did not decide if a sexual assault by a police officer was within his scope of employment.³

 Plaintiff's briefs on appeal also rely on John R. v. Oakland Unified School Dist. (1987) 194 Cal.App.3d 1454, 240 Cal.Rptr. 319 and Kimberly M. v. Los Angeles Unified School Dist. (1987) 196 Cal.App.3d 1506, 242 Cal.Rptr. 612 (dis. opn. Lillie, P.J.) which involved sexual assaults by teachers against students and followed the “job-created authority” rationale of White.   By granting petitions for hearing on both John R. and Kimberly M., however, the California Supreme Court removed them from consideration as precedent.

THE CASE AT BENCH

We turn now to analyze the facts of the instant case in light of the two-prong test to determine whether employee Schroyer's act of rape fell within the scope of his employment.

FIRST PRONG:  Was the act of rape committed by Officer Schroyer either required by or incident to his duties?   NO.

 An Alma W. v. Oakland Unified School Dist., supra, 123 Cal.App.3d 133, 176 Cal.Rptr. 287, the complaint sought to hold a school district vicariously liable for a school custodian's sexual molestation and rape of an 11–year–old child.   The trial court sustained the district's demurrer to the complaint for failure to state a cause of action under the respondeat superior doctrine, and entered judgment in the district's favor.   The Alma W. court, in a well-reasoned opinion affirming the judgment, applied the two-prong test to determine whether the custodian's wrongful acts fell within his scope of employment.

In addressing the first-prong, i.e., whether the act performed was either required by or incidental to his duties, the Alma W. court at page 139, 176 Cal.Rptr. 287, observed that “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.  (Kish v. California S. Automobile Assn. (1922) 190 Cal. 246, 249 [212 P. 27].)   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.  (DeMirjian v. Ideal Heating Corp. (1954) 129 Cal.App.2d 758, 765 [278 P.2d 114].)   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.  (Hinman v. Westinghouse Elec. Co., supra, 2 Cal.3d 956, 960 [88 Cal.Rptr. 188, 471 P.2d 988];  Carr v. Wm. C. Crowell Co. (1946) 28 Cal.2d 652, 656 [171 P.2d 5];  Golden West Broadcasters, Inc. v. Superior Court, supra, 114 Cal.App.3d 947, 957 [171 Cal.Rptr. 95];  Figone v. Guisti (1919) 43 Cal.App. 606, 611 [185 P. 694].)”  (Emphasis added.)

The Alma W. court, 123 Cal.App.3d at page 140, 176 Cal.Rptr. 287, concluded that “Sexual molestation is in no way related to mopping floors, cleaning rooms, or any of the other tasks that are required of a school custodian.   Though there may be those cases where personal motivations so mingle with the employee's pursuit of occupational duties that it is arguable whether the employee's action is incidental to his duties, this is not such a case.  [The custodian's] action, prompted by wholly personal motivations, was clearly not required [by] or incidental to his duties as a school custodian.”

“Appellant's undisputed allegations that [the custodian] used school facilities in the commission of his offense do not convince us that [his] action may have been incidental to his custodial duties.   Where 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 (Gipson v. Davis Realty Co. (1963) 215 Cal.App.2d 190, 209 [30 Cal.Rptr. 253] )․  The mere fact that an employee has the opportunity to abuse facilities necessary to the performance of his duties does not render an employer vicariously liable for the abuse.”

“Nor does the fact that the offense occurred during working hours make [the custodian's] action incidental to his employment․  [M]ere presence at the place of employment before, during, or after the commission of the offense has not been a decisive factor in resolving the scope of employment issue.   (Yates v. Taft Lodge No. 1527 (1935) 6 Cal.App.2d 389 [44 P.2d 409];  Figone v. Guisti, supra, 43 Cal.App. 606 [185 P. 694].)   If an employee's tort is personal in nature, mere presence at the place of employment and attendance to occupational duties prior or subsequent to the offense will not give rise to a cause of action against the employer under the doctrine of respondeat superior.”  (Emphasis added.)   Merely because a job provides an opportunity for an employee's tort does not make an employer vicariously liable where the acts giving rise to the tort bear no relationship to the employee's duties.  (See Bozarth v. Harper Creek Bd. of Ed. (1979) 94 Mich.App. 351 [288 N.W.2d 424, 426].)

In the case at bench, by committing the “aberrational act” of rape, Schroyer radically deviated from his duties as a law enforcement officer.   (Alma W. v. Oakland Unified School Dist., supra, 123 Cal.App.3d 133, 142, 176 Cal.Rptr. 287.)   The felony of rape is in no way related to the duties of a police officer.   It is not work-related conduct contemplated by the employer;  it substantially deviates from the employee's duties for personal purposes.  (Hinman v. Westinghouse Elec. Co., supra, 2 Cal.3d 956, 960, 88 Cal.Rptr. 188, 471 P.2d 988.)   A rape by a policeman, moreover, is not a “more or less inevitable toll of a lawful enterprise”;  it is neither inevitable, lawful, nor the toll of a for-profit “enterprise.”  (Id. at 959–960, 88 Cal.Rptr. 188, 471 P.2d 988.)   Inasmuch as this employee's main purpose was not that of carrying on the employer's for-profit business, it constituted a substantial, material deviation from a police officer's duties for Schroyer's own, personal purposes, which precludes holding the employer liable.  (Avila v. Standard Oil Co. (1985) 167 Cal.App.3d 441, 448, 213 Cal.Rptr. 314.) ⁴  To the contrary, the black-and-white patrol cars in which police officers patrol Los Angeles streets have stenciled on the door four words which succinctly describe their duties:  “To Protect and to Serve.”   The police are employed to enforce the law, not to break it, and to prevent rape and capture rapists, not to commit rape.

It is a fundamental policy that vicarious liability allocates risk for those employee's torts which as a practical matter are sure to occur in the conduct of the employer's enterprise.   Vicarious liability doctrine places the risk of such losses on the “enterprise” itself” as a required cost of doing business.   They are placed upon the employer because, having engaged in an enterprise which will, on the basis of past experience, involve harm to others through the torts of employees, and sought to profit by it, it is just that he, rather than the innocent injured plaintiff, should bear them;  and because he is better able to absorb them, and to distribute them, through prices, rates or liability insurance, to the public, and so to shift them to society, to the community at large.”  (Hinman v. Westinghouse Elec. Co., supra, 2 Cal.3d 956, 960, 88 Cal.Rptr. 188, 471 P.2d 988.)

 Thus the predicates for vicarious liability are:  (1) the existence of a profit-making, business enterprise;  (2) a history of employee torts causing harm to others arising out of the profit-making enterprise;  and (3) the ability of the enterprise to absorb the losses through prices, rates, or liability insurance.   A police department, however, is not a profit-making, business enterprise, does not have a history of employee torts arising from any profit-making enterprise, and has no ability to absorb the losses through prices, rates, or liability insurance.   Aside from the other reasons set forth in this opinion, since a police department does not satisfy the Hinman prerequisites for vicarious liability, we find none in the case at bench.

Finally, the act of rape by Schroyer as a practical matter was not “sure to occur.”   To the contrary, such a criminal act was highly unlikely to occur in light of the careful screening methods employed by the L.A.P.D. in hiring police officers, their subsequent training and supervision and the strict policies and procedures imposed during operations in the field.   Here, the act of rape by Schroyer was, as described in Alma W., an “aberrational act.”

We conclude that Schroyer's act of felonious rape was wholly personally motivated and unquestionably not required by or “incidental” to his duties as a law enforcement officer.

SECOND PRONG:  Was the act of rape committed by Schroyer “foreseeable” as judicially defined within the context of respondeat superior doctrine?   NO.

 In addressing the second-prong of the test, i.e., whether an employee's misconduct was “foreseeable,” the Alma W. court at pages 141 and 142, 176 Cal.Rptr. 287, cites with approval the foreseeability test as articulated in Rodgers v. Kemper Constr. Co., supra, (1975) 50 Cal.App.3d 608, 124 Cal.Rptr. 143:  “ ‘One way to determine whether a risk is inherent in, or created by, an enterprise is to ask whether the actual occurrence was a generally foreseeable consequence of the activity.   However, “foreseeability” in this context must be distinguished from “foreseeability” as a test for negligence.   In the latter sense “foreseeable” means a level of probability which would lead a prudent person to take effective precautions whereas “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.]  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.  [Citation.]’  (Rodgers v. Kemper Constr. Co., supra, 50 Cal.App.3d 608, 618–619, 124 Cal.Rptr. 143.)  ․ While Rodgers establishes that the foreseeability test for respondeat superior is broader than that for negligence, the [Rodgers] decision also limits liability to those torts which ‘may fairly be said to be characteristic’ of the enterprises activities.  (50 Cal.App.3d at p. 618, 124 Cal.Rptr. 143.)”  (Emphasis added;  see also Avila v. Standard Oil Co., supra, 167 Cal.App.3d 441, 448, 213 Cal.Rptr. 314 and Lazar v. Thermal Equipment Corp. (1983) 148 Cal.App.3d 458, 464, 195 Cal.Rptr. 890.)

In Alma W. v. Oakland United School Dist., supra, 123 Cal.App.3d 133, 176 Cal.Rptr. 287, the court stated at page 142, that “[t]he test is not whether it is foreseeable that one or more employees might at some time act in such a way as to give rise to civil liability, but rather, whether the employee's act is foreseeable in light of the duties the employee is hired to perform.  (Rest.2d Agency (1957) § 245.)”  (Emphasis original.)   The Alma W. court found that there is no aspect of a janitor's duties that would make sexual assault anything other than highly unusual and very startling.

Applying the second-prong “foreseeability” test to the case at bench, we reiterate that it is a police officer's duty to prevent rapes and to catch felons who commit rape.   Accordingly, we conclude that Schroyer's act of rape being completely uncharacteristic, indeed antithetical, to his duties as a police officer, was so extremely unusual and so highly startling in light of his law enforcement duties as to be clearly outside the scope of his employment.

 Nor does the fact, in the instant case, that Schroyer was on duty at the time of the rape bring the act within the scope of his employment.  “The fundamental issue is whether the wrongful act was committed ‘in the course of a series of acts of the agent which were authorized by the principal.   Of course, where the agent, for however brief a space of time, has ceased to serve his principal, he alone is responsible for his acts during the period of such cessation.’  (Fields v. Sanders, supra, 29 Cal.2d 834 at p. 839, 180 P.2d 684, italics added.)”  (Alma W. v. Oakland Unified School Dist., supra, 123 Cal.App.3d 133, 141, 176 Cal.Rptr. 287.)

Schroyer's rape of Mary M. was not an integral part of a course of action on his employer's behalf, but rather an independent, self-serving pursuit wholly personally motivated and unrelated to his law enforcement duties.

In Milla v. Tamayo (1986) 187 Cal.App.3d 1453, 232 Cal.Rptr. 685, a panel of this division unanimously affirmed the superior court's sustaining of a Roman Catholic Archbishop's demurrer to a complaint alleging that several priests of the Los Angeles Roman Catholic Archdiocese conspired to have sexual relations with a 16–year-old female engaged in church activities.   The complaint alleged that the 16–year-old parishioner received sexual advances from one priest in the confessional booth, had sexual intercourse with seven defendant priests, and that when the minor parishioner became pregnant, two of the priests arranged for a passport and tickets to the Philippines, where she gave birth to a baby.

Milla, citing Martinez v. Hagopian, supra, 182 Cal.App.3d 1223, 227 Cal.Rptr. 763 and Alma W. v. Oakland Unified School Dist., supra, 123 Cal.App.3d 133, 176 Cal.Rptr. 287, unanimously held that an Archbishop could not be held vicariously liable for the alleged conduct of individual defendant-priests by invoking the respondeat superior doctrine.   Since the plaintiff had not contended that priestly sexual relations with minor parishioners were required by or incident to clerical duties, the appeals court focused on whether they were “foreseeable” by the employer.  Milla found no liability, because the foreseeable event must be characteristic of the activities of the enterprise, and sexual relations between priests and parishioners were not characteristic of the Roman Catholic Church.  (Milla v. Tamayo, supra, 187 Cal.App.3d 1453, 1461, 232 Cal.Rptr. 685.)

In the case at bench, Schroyer's rape of plaintiff was clearly not foreseeable by City, as it was not characteristic of law enforcement duties.   By contrast, it constituted the very antithesis of law enforcement activities.

 In sum, Schroyer's act of rape was neither required by nor incidental to his duties as a police officer.   For personal purposes, Schroyer's felonious act substantially and radically deviated from his police duties.   Moreover, Schroyer's crime was so unusual, startling, and uncharacteristic of the duties of a law enforcement agency that it was not “foreseeable” in the respondeat superior context.   We therefore hold, as a matter of law, the operable facts being undisputed, that respondeat superior doctrine does not make defendant City vicariously liable for Schroyer's crime.⁵

To paraphrase Alma W. v. Oakland Unified School Dist., supra, 123 Cal.App.3d 133, 144, 176 Cal.Rptr. 287, we refuse to depart from settled precedent to divert public funds to create a new compulsory insurance fund covering virtually all torts of an employee occurring during working hours, regardless of the extremity or personal nature of the act.

The Legislature has the power to change the law in respect to the vicarious liability of public entities.   It is not the function of the courts to usurp legislative prerogatives.

II

 Defendant City contends on appeal that the trial court erroneously allowed plaintiff to claim damages arising from the criminal investigation and prosecution of Schroyer.

Plaintiff on appeal cites the rule, codified in section 815.2, subdivision (a), set forth supra, making a public entity liable for injury proximately caused by an employee's tortious, unprivileged conduct, and argues that it applies to the case at bench.⁶

As Alma W. v. Oakland Unified School Dist., supra, 123 Cal.App.3d 133, 138, 176 Cal.Rptr. 287, states, however, “[t]o hold a governmental employer vicariously liable for the wrongful acts of its employees, section 815.2 by its express terms requires a showing that the employee acted within the scope of his employment.”

As we have decided as a matter of law that Schroyer's rape of plaintiff did not take place within the scope of his employment, we therefore need not address this issue.

DISPOSITION

The judgment is reversed.   Each party to bear their own costs.

I respectfully dissent.   I would affirm the judgment.

I

Act Incident to Duties

In my view, White v. County of Orange (1985) 166 Cal.App.3d 566, 212 Cal.Rptr. 493, review denied June 20, 1985 is directly on point, well reasoned, highly persuasive and not in contradiction to any pertinent authorities, including Alma W. v. Oakland Unified School Dist. (1981) 123 Cal.App.3d 133, 176 Cal.Rptr. 287.   In White, plaintiff was stopped in her automobile by an Orange County deputy sheriff on patrol in his black-and-white unit.   Without explanation, he placed her in his unit and drove her to an isolated orange grove where he threatened to rape and murder her;  he then drove her around for several hours, continuing to threaten rape and murder.   The deputy finally returned her to her automobile after she promised to go out with him that weekend.   She drove away, but he stopped her again in order to get a “ ‘goodnight kiss.’ ”  (166 Cal.App.3d at p. 568, 212 Cal.Rptr. 493.)   Plaintiff brought suit against the deputy and against the county under the theory of respondeat superior.

The White court initially notes “in governmental tort cases, ‘the rule is liability, immunity is the exception.’  [Citation.]  This is so because ‘it would be unjust in some circumstances to require an individual injured by official wrongdoing to bear the burden of his [or her] loss rather than distribute it throughout the community.’  [Citation.]  Therefore, ‘[u]nless the Legislature has clearly provided for immunity, the important societal goal of compensating injured parties for damages caused by willful or negligent acts must prevail.’  [Citation.]

“The Legislature has not clearly provided for governmental immunity in the present situation.   On the contrary, Government Code section 815.2, subdivision (a) follows common law and imposes governmental liability for injuries proximately caused by acts of employees within the scope of employment.   Therefore, in order to avoid vicarious liability, the County must show [the deputy's] actions were beyond the scope of his employment.”   (Id., at p. 570, 212 Cal.Rptr. 493, fn. omitted.) ¹

The White court then turns to Alma W., which articulates the test for determining whether a tort was committed within the scope of an employee's employment:  “ ‘ “whether or not:  (1) the act performed was either required or ‘incident to his duties' [citation] or (2) the employee's conduct could be reasonably foreseen by the employer in any event [citations].” ’ ”  (Id., at p. 571, 212 Cal.Rptr. 493, quoting from Alma W. v. Oakland Unified School Dist., supra, 123 Cal.App.3d at p. 139, 176 Cal.Rptr. 287.)   In Alma W., a custodian employed by the school district raped an 11–year–old student.   The court held the school district was not liable for the custodian's act, in that “ ‘the connection between the employee's duties and the employee's wrongful actions has become so attenuated that the law will not hold the employer vicariously liable.   Sexual molestation is in no way related to mopping floors, cleaning rooms, or any of the other tasks that are required of a school custodian.’ ”  (White, supra, 166 Cal.App.3d at p. 571, 212 Cal.Rptr. 493, quoting from Alma W., supra, at pp. 139–140, 176 Cal.Rptr. 287.)

Distinguishing the factual situation before it from that in Alma W., the White court focuses on the way in which the deputy's acts flowed from the performance of his duties.   It observes:  “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.   Here, unlike Alma W., the wrongful acts flowed from the very exercise of this authority.

“It follows that the employer/government must be responsible for acts done during the exercise of this authority.   In Clark Equipment Co. v. Wheat (1979) 92 Cal.App.3d 503, 154 Cal.Rptr. 874 ․, the court, quoting the Restatement Second of Agency, stated:  ‘If the principal places the agent in a position to defraud, and the third person relies upon his apparent authority to make the representations, the principal is liable even though the agent was acting for his own purposes [citations].   The theory is that the agent's position facilitates the consummation of the fraud, in that from the point of view of the third person the transaction seems regular on its face and the agent appears to be acting in the ordinary course of the business confided to him.   It is immaterial that the principal receives no benefits from the transaction.  [Citation.]’  (Clark, supra, 92 Cal.App.3d 503, 521, 154 Cal.Rptr. 874, italics deleted.)

“This reasoning directly addresses the situation presented here.   White alleges she stopped solely because she was ordered to do so by a deputy sheriff.   In other words, she relied on the officer's apparent authority.   Had [he] not been a deputy sheriff, in uniform, in a marked patrol vehicle using flashing red lights, White would not have stopped at his direction and the events that followed would not have occurred.   Because the County placed [him] in this position of authority, it will be liable for his actions should White prove her allegations at trial.

“The use of authority is incidental to the duties of a police officer.   The County enjoys tremendous benefits from the public's respect for that authority.   Therefore, it must suffer the consequences when the authority is abused.”  (166 Cal.App.3d at pp. 571–572, 212 Cal.Rptr. 493, emphasis added.)

Alma W. is clearly distinguishable from the instant matter.   First, school custodians are not charged with the duty to care for children, so there is no special relationship giving rise to a duty of care.   Second, a custodian's contact with children is merely tangential to his duties.   It does not directly flow from his exercise of his duties.

Also clearly distinguishable is Milla v. Tamayo (1986) 187 Cal.App.3d 1453, 232 Cal.Rptr. 685, in which a 16–year–old girl claimed she was seduced by several parish priests and impregnated, whereupon she sought to hold the Archbishop of Los Angeles liable.   The court concluded there was no vicarious liability, in that the priests' alleged conduct fell outside the scope of their employment.   Unlike the instant matter and White, the priests had no actual authority over plaintiff, and they did not accomplish the assaults through the official exercise of their job related duties, or any act incident thereto.

In the instant case, Officer Schroyer was on duty at the time the incident occurred.   He was wearing an official uniform and badge, carrying a city-issued revolver and driving a black-and-white city police vehicle when he stopped plaintiff in her automobile.   He admittedly was acting in the scope of his employment when he stopped her and had her perform a field sobriety test.

Obedient to what plaintiff reasonably perceived to be the officer's authority, she got into his police vehicle and rode to her house.   The officer, although disobeying department policy, continued to assert his authority over plaintiff during the events which followed.   He told her he had to be paid for taking her home rather than to jail, and he threatened to jail her if she did not stop screaming.

Officer Schroyer's contact with plaintiff arose in connection with the performance of his duties.   The harm to plaintiff directly flowed from his exercise of authority—or apparent authority—over her.   This makes defendant as his employer vicariously liable for the officer's conduct.  (White v. County of Orange, supra, 166 Cal.App.3d at p. 572, 212 Cal.Rptr. 493.)

It may be noted Florida, Illinois and Wisconsin have held similar conduct is outside the scope of employment.  (City of Green Cove Springs v. Donaldson (5th Cir.1965) 348 F.2d 197, 202;  Gambling v. Cornish (N.D.Ill.1977) 426 F.Supp. 1153, 1155;  Desotelle v. Continental Cas. Co. (1986) 136 Wis.2d 13 [400 N.W.2d 524, 530].)   However, Louisiana has held such conduct to be within the scope of employment, using the same rationale as White.   In Applewhite v. City of Baton Rouge (La.App.1979) 380 So.2d 119, plaintiff and two companions were walking along a highway;  they were stopped by a police unit and told they would be arrested for vagrancy if not off the highway shortly.   They were stopped a few blocks later by the same unit;  plaintiff was ordered into the police vehicle to be taken to jail.   She was then driven to a stadium area where she was sexually assaulted and raped.

The Applewhite court particularly noted the officer involved “was on duty in uniform and armed, and was operating a police unit at the time of this incident.   He was able to separate the plaintiff from her companions because of the force and authority of the position which he held.   He took her into police custody and then committed the sexual abuses upon her in the vehicle provided for his use by his employer.

“A police officer is a public servant given considerable public trust and authority.   Our review of the jurisprudence indicates that, almost uniformly, where excesses are committed by such officers, their employers are held to be responsible for their actions even though those actions may be somewhat removed from their usual duties.   This is unquestionably the case because of the position of such officers in our society․

“In short ․, where it is found that a law enforcement officer has abused the ‘apparent authority’ given such persons to act in the public interest, their employers have been required to respond in damages.   This is particularly true where, as here, the officer is on duty.”  (Id., at pp. 121–122, emphasis added.)

Here, as in Applewhite, a uniformed, armed police officer abused the apparent authority given him to act in the public interest—in this case to remove intoxicated drivers from the streets.   Defendant having placed Officer Schroyer in a position where he could abuse his authority to commit wrongful acts, it should be liable to the victim whenever such abuse takes place.

Following Applewhite is Turner v. State (La.App.1986) 494 So.2d 1292.   In Turner, four young women wanting to join the Louisiana National Guard contacted a recruiting officer, who conducted an interview at the residence of one of them.   The officer deceived them into believing he had the authority to conduct physical examinations.   He proceeded to have them disrobe and then examined each woman's breasts and genitals.

The court held the officer's tortious conduct was within the course and scope of his employment, making the state vicariously liable therefor.  (Id., at p. 1296.)   The officer's conduct was “reasonably incidental to the performance of his duties as a recruiting officer although totally unauthorized by the employer and obviously motivated by his personal interests.   Furthermore, the [officer's] actions were so closely connected to his employment duties that the risk of harm faced by the young women was fairly attributable to his employer, who had placed the [officer] in a position of trust and authority in contacting young persons for recruitment into the guard.”  (Ibid., emphasis added.)   The court noted no vicarious liability had been found in numerous cases “where the employee's tortious actions were motivated by purely personal interests, even though the intentional tort complained of occurred while the employee was on the job.”  (Ibid.)  However, “in a close call,” it opted for liability.  (Ibid.)

Again, putting an employee in a position of authority or apparent authority through which he was able to subject his victims to his tortious acts led to the imposition of vicarious liability.   That the acts were unauthorized and motivated by personal interests did not preclude liability.

This concept has been applied in California in another context.   In McKay v. County of San Diego (1980) 111 Cal.App.3d 251, 168 Cal.Rptr. 442, which involved judgment on the pleadings, it was alleged an investigator for the District Attorney fabricated a false document which he used together with other information he knew to be false to obtain an arrest warrant against plaintiffs, who he then falsely arrested and imprisoned.   The court held the county was not immune from vicarious liability for the investigator's malicious actions.   (At p. 253, 168 Cal.Rptr. 442.)   The employer, having given authority to the employee, it becomes vicariously liable when the employee abuses that authority.

The majority appears to infer that sexual assaults cannot provide a basis for vicarious liability.   I can see no reason whatsoever for distinguishing sexual assaults from other types of wrongs.

At civil law, unwanted sexual encounters—including rape—are considered forms of assault and battery.  (LeGrande and Leonard, Civil Suits for Sexual Assault:  Compensating Rape Victims (1979) 8 Golden Gate L.Rev. 479, 491 (hereinafter LeGrande and Leonard);  see 6 Am.Jur.2d, Assault and Battery, § 119, p. 101.)   Assault and battery may provide the basis for liability under respondeat superior.  (See Carr v. Wm. C. Crowell Co. (1946) 28 Cal.2d 652, 171 P.2d 5;  McChristian v. Popkin (1946) 75 Cal.App.2d 249, 171 P.2d 85.)   Sexual assault or rape differs from other forms of assault only in the means by which the assailant chooses to carry out his objective;  “[t]he rapist's primary goal is not sexual gratification, but asserting power and dominance over his victim” (Quenneville, Will Rape Ever Be a Crime of the Past?:  A Feminist View of Societal Factors & Rape Law Reforms (1978–1979) 9 Golden Gate L.Rev. 581, 586–587, hereinafter Quenneville).

The majority notes the White court, in Jeffrey E. v. Central Baptist Church (1988) 197 Cal.App.3d 718, 243 Cal.Rptr. 128, indicated it did not decide in White whether a sexual assault was within the deputy's scope of employment.  (At p. 723, 243 Cal.Rptr. 128.)   No sexual acts were ever committed by the deputy.  (Ibid., fn. 9.)   But what White addressed was an officer's “method of dealing with [his] authority.”  (166 Cal.App.3d at p. 571, 212 Cal.Rptr. 493.)   Whether he exercises his authority by threatening rape or carrying out those threats should not make any difference in terms of his employer's liability for his acts.   To hold otherwise would be ludicrous indeed.

Moreover, a changing view of rape both in society and the legal community leads to the conclusion that, in the sphere of respondeat superior, artificial distinctions between sexual assaults and other types of assault must be discarded.   In the past, rape charges were not taken seriously.   As incredible as it now must seem, it was at one time widely believed women enjoyed rape and men who sexually assaulted women were subject to uncontrolled passions aroused by their victims.  (Comment, Rape and Rape Laws:  Sexism in Society and Law (1973) 61 Cal.L.Rev. 919, 932–933.)   Rape victims were discouraged from reporting rapes by “embarrassed family members ․, police [who] believe there's no such thing as rape;  [and] medical personnel [who] view rape as an insignificant physical injury, or hesitate to become involved in a situation which might require them to testify in court.”   (Quenneville,supra, 9 Golden Gate L.Rev. at pp. 596–597, fns. omitted.)   Even when rapes were reported, police were often reluctant to investigate and prosecutors did not prosecute or reduced charges through plea bargaining.   (Id., at pp. 598–600.)   If the rapists were brought to trial, jury bias against the victims hindered conviction.   Jurors often believed the victims falsely accused the defendants or assumed the risk of rape by their conduct;  they sympathized with the defendants and required the victims to prove their innocence as well as the defendants' guilt.  (Id., at pp. 601–603.)

In the mid–1970s attitudes toward rape and rape victims, and laws regarding rape and rape trials, began to change.   Rape crisis centers were established to assist victims, “contributing to the increased willingness of victims to report rapes, as well as with helping the police and public understand that women who are raped are victims of one of society's [more] violent crimes.”  (Id., at p. 598, fns. omitted.)

In 1974 the Evidence Code was amended to provide “evidence of specific instances of the complaining witness' sexual conduct ․ is not admissible by the defendant to prove consent by the complaining witness.”  (Evid.Code, § 1103, subd. (b)(1), added by Stats. 1974, ch. 569, § 2.)   This led to the revision of CALJIC No. 10.06, which formerly provided:  “Evidence was received for the purpose of showing that the female person named in the information was a woman of unchaste character.  [¶] A woman of unchaste character can be the victim of a forcible rape but it may be inferred that a woman who has previously consented to sexual intercourse would be more likely to consent again.  [¶] Such evidence may be considered by you only for such bearing as it may have on the question of whether or not she gave her consent to the alleged sexual act and in judging her credibility.”   CALJIC No. 10.06 (1974 Revision) now provides evidence of the complaining witness' prior consent to sexual intercourse with the defendant may be considered in determining whether she consented to the act charged;  the fact of her prior sexual intercourse no longer reflects on her credibility or labels her a woman of “unchaste character.”

People v. Rincon–Pineda (1975) 14 Cal.3d 864, 123 Cal.Rptr. 119, 538 P.2d 247 addressed the use of CALJIC No. 10.22, which read:  “A charge such as that made against the defendant in this case is one which is easily made and, once made, difficult to defend against, even if the person accused is innocent.  [¶] Therefore, the law requires that you examine the testimony of the female person named in the information with caution.”   The instruction had its origin in writings dating back to the 1600s, the principles therein were adopted in California in the mid–1800s (People v. Benson (1856) 6 Cal. 221) and the instruction's use expanded until the Supreme Court ruled in the mid–1960s the cautionary instruction was to be given sua sponte in all criminal cases involving illicit sexual conduct (People v. Merriam (1967) 66 Cal.2d 390, 58 Cal.Rptr. 1, 426 P.2d 161).  (Rincon–Pineda, supra, at pp. 873–877, 123 Cal.Rptr. 119, 538 P.2d 247.)

The Rincon–Pineda court observed changes in criminal procedure now protect the defendant and it is no longer so difficult to defend against a rape charge as to warrant mandatory instruction with CALJIC No. 10.22.   It also noted the bias in the legal system in favor of the rapist and the disincentives to reporting rape:  humiliation and embarrassment at trial resulting from demeaning defense tactics and disinclination to deal with police unwillingness to pursue the case due to the view the victim precipitated the rape.  (Id., at p. 880, 123 Cal.Rptr. 119, 538 P.2d 247.)   The court further noted the low rate of prosecution and conviction for rape.   (Id., at p. 881–882, 123 Cal.Rptr. 119, 538 P.2d 247.)   The court concluded it no longer was appropriate for the instruction to be given and disapproved its use.  (Id., at p. 882, 123 Cal.Rptr. 119, 538 P.2d 247.)

In the area of sentencing, until 1979 a convicted forcible rapist could merely be fined or placed on probation.  (Quenneville, supra, 9 Golden Gate L.Rev. at p. 584.)   Section 264.2 was then added to the Penal Code (Stats. 1978, ch. 1308, § 1), barring probation or suspension of the imposition of sentence for those convicted of forcible rape.²

The same factors which discouraged prosecution of criminal cases for rape also discouraged its victims from bringing civil suits for sexual assault:  “the victim tends to be blamed for her own assault;  she knows that reliving the experience as a witness in a legal proceeding will be emotionally trying;  she has little expectation of justice;  she experiences shame and guilt which lead her to conceal the attack;  and she fears the adverse reactions of family and friends.”  (LeGrande and Leonard, supra, 8 Golden Gate L.Rev. at p. 479, fn. omitted.)   Only as society's attitudes toward rape victims began to change was there an increase in the filing of civil—and criminal—sexual assault complaints.  (Ibid.)

Considering the view of rape and its victims which prevailed in past years, it is not surprising that sexual assault was treated differently than other types of assault and few cases addressed or found vicarious liability for an employee's sexual assault.   But it is time that sexual assault be taken seriously and that those who use it to assert power and dominance over others be treated the same as those who engage in other forms of assault.

If a police officer uses an unauthorized amount of force to subdue a detainee, his employer is liable.  (City of Los Angeles v. Superior Court (1973) 33 Cal.App.3d 778, 782, 109 Cal.Rptr. 365;  Scruggs v. Haynes (1967) 252 Cal.App.2d 256, 263–268, 60 Cal.Rptr. 355.)   If he instead punishes his detainee by sexually assaulting her, the employer should be no less liable.

An area of law in which sexual assaults are treated the same as other types of assaults for purposes of vicarious liability is that dealing with common carriers.   In Berger v. Southern Pac. Co. (1956) 144 Cal.App.2d 1, 300 P.2d 170, a porter on a Pullman sleeping car sexually assaulted a passenger and his employer was held vicariously liable.   Scope of employment was not an issue, in that a common carrier's liability is based on its broad duty to protect its passenger from assault and it is liable for an employee's assault even if it occurred outside the scope of employment.  (At p. 7, 300 P.2d 170;  LeGrande and Leonard, supra, 8 Golden Gate L.Rev. at p. 501.)   The employer was held liable because the porter's “duties were directed solely to the comfort and protection of the passengers on his car and in his care [and] [i]t was in connection with these duties that he came into intimate contact with Mrs. Berger.”  (Berger, supra, at p. 7, 300 P.2d 170.)   Although Berger was the first appellate case dealing with a sexual assault by the employee of a common carrier, the court found no reason to treat such an assault differently from any other type.  (Id., at p. 8, 300 P.2d 170.)

LeGrande and Leonard, supra, point out civil cases involving vicarious liability for sexual assaults by employees of common carriers are often successful for two reasons:  the high duty of care imposed on the carriers and “the courts' recognition of the vulnerable position of the female passenger, who turns over the control of her safety to the carrier.”  (8 Golden Gate L.Rev. at p. 500.)   Can the duty of care of a police officer or the vulnerability of a female in his custody be any less?

As the majority in the instant case notes, police officers in the City of Los Angeles have the duty “ ‘To Protect and to Serve.’ ”  (Ante, at p. 496.)   When an armed male police officer takes a female into his custody, she is in an extremely vulnerable position;  she is physically in his control and she understandably is afraid to resist him for fear of the consequences.   Plaintiff here was threatened with jail if she resisted Officer Schroyer, and she was afraid he might kill her if she did not comply with his demands.

LeGrande and Leonard suggest “[c]arrier law may offer a useful model for broadening the tort liability of employers.   That some situations cry out for adoption of the higher standards of care is manifestly illustrated by Rabon v. Guardsmark, Inc. [(4th Cir.1978) 571 F.2d 1277.]   In that non-carrier case, a security guard raped the employee he was hired to protect.   The federal district court attempted to reach into carrier law to [find vicarious liability].   The Fourth Circuit Court of Appeals found no justification under South Carolina law for the application of carrier principles, and reversed.   An eloquent dissent pleaded for the sexual assault victim and urged the court to adopt the higher standard:  ‘[t]he voice of all that is right and just cries out for affirmance in this case.   The trial judge clearly recognized that the plaintiff had been wronged by the defendant even though he had difficulty in finding precedent for his rulings.   We have passed the point in the law where there must be a writ for every right, and we must, if necessary, articulate new law to cover new circumstances.’ ”  (8 Golden Gate L.Rev. at p. 502, fns. omitted, quoting from Rabon, supra, at p. 1282 [dis. opn. Hall, J], emphasis added.)

The dissent also asked:  “There is no question but that the defendant would have been liable if [the guard] had stood by and watched a third person assault the plaintiff.   Why then should not the defendant be liable when the guard, the paid protector, becomes the assailant?”  (571 F.2d at pp. 1282–1283.)

II

Foreseeability

I would further hold Officer Schroyer's conduct could be reasonably foreseen by defendant, rendering its occurrence within the scope of the officer's employment.  (White v. County of Orange, supra, 166 Cal.App.3d at p. 571, 212 Cal.Rptr. 493.)   Conduct is foreseeable in the respondeat superior context when it “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.”  (Rodgers v. Kemper Constr. Co. (1975) 50 Cal.App.3d 608, 619, 124 Cal.Rptr. 143.)

Contrary to the majority view that Officer Schroyer's rape of plaintiff was “completely uncharacteristic, indeed antithetical, to his duties as a police officer, ․ so extremely unusual and so highly startling in light of his law enforcement duties as to be clearly outside the scope of his employment,” i.e., unforeseeable (ante, at p. 497), records on file with the Special Investigations Division ³ of the office of the Los Angeles County District Attorney have for years been replete with claims of female inmates alleging sexual abuse by peace officers.   Judicial notice may further be taken of two cases which resulted in criminal convictions of police officers for sexual assaults performed while on duty.   Deputy Sheriff Kenneth Lawrence was found guilty of having raped a female inmate (detained on a charge of prostitution), on May 14, 1984.   The act occurred in the Los Angeles County Criminal Courts Building during the course of his escorting her from the courtroom to the lockup (Super.Ct.L.A. County, 1984;  No. A751928).   On January 15, 1985, he was sentenced to eight years in state prison.

More recently, a Manhattan Beach police officer was charged with three counts involving sexual assaults while on duty in the Manhattan Beach police station on September 17, 1986.   He was charged by count I with rape by threat to arrest or deport (Pen.Code, § 261, subd. (7)), by count II with unlawful sexual intercourse by false representation (Pen.Code, § 266c) and by count III with oral copulation in a correctional facility (Pen.Code, § 288a).   He pleaded nolo contendere to counts II and III and was sentenced on May 14, 1987.   The victim filed a civil action against the officer and the City of Manhattan Beach, which is now pending (Diaz v. Starkey, Super.Ct.L.A. County, No. SWC90032).

The Los Angeles Police Department itself has a policy dealing with a situation such as the one here, where a lone officer transports an individual of the opposite sex.   When that occurs, the officer is required to notify communications he or she is doing so and give the mileage on the police vehicle;  communications then time stamps the message.   Upon arriving at his or her destination, the officer again gives communications the vehicle's mileage and the message is time stamped, giving the total mileage and elapsed time for the trip.   The purpose of this policy is to “establish[ ] a frame within which to view any activities that might be alleged at a later point in time.”   This policy reflects an awareness that rape or sexual assault, or allegations thereof, is a real possibility when an officer alone transports a member of the opposite sex.

Officer Schroyer did not follow this policy, making it impossible for defendant to account for the time the officer spent with plaintiff and possibly rebut her accusations.   Officer Schroyer compounded the problem by “clearing” a Code 7—meal break—after leaving plaintiff, even though he had never told communications he was going Code 7.   His failure to follow established procedure gave him time to commit his misdeeds without any way for defendant to account for that time.

It is clear the police department's policy, while it may serve to protect the department from false claims, is insufficient to protect the person being transported from attack by the officer and prevent the kind of incident which occurred here.

One of the obvious reasons for imposing vicarious responsibility upon employers is to provide an incentive for the adoption of effective procedures to prevent or at least substantially reduce the very kind of abuse of authority that occurred in the instant case.

It would appear that at the very least the City through its Police Commission could readily have mandated that no officers of the opposite sex may transport a detainee/inmate except in the presence of an officer of the same sex as the detainee/inmate.   Any violation of such regulations would be readily apparent to any passerby or other motorist and particularly glaring to any other police unit or personnel.   It would appear reasonable that such regulation would greatly deter violations and hence afford greater protection to detainee/inmates and particularly to women who are most vulnerable.

Whatever the difficulties might have been in implementing such regulation in years past when there was a dearth of female officers, in recent years as a direct result of class action litigation initiated by Sergeant Fanchon Blake (Blake v. City of Los Angeles (9th Cir.1979) 595 F.2d 1367), dramatic changes in hiring practices have greatly increased the availability of female officers in the department.   Hence, such policy would appear to be viable.

In a related vein, it may be noted legislation has recently been introduced to allow drivers stopped by law enforcement officers to proceed a reasonable distance to a safe spot before stopping their automobiles.  (Weintraub, Bill to Let Driver Seek Safe Spot in Police Stop Gains, Los Angeles Times (Jan. 28, 1988) pp. 3, 26.)   The legislation is a response to two cases, one in which a California Highway Patrol Officer is charged with murdering a woman after stopping her automobile late at night and one in which a woman was arrested for failing to stop on a back-country road until reaching a lighted convenience store parking lot.  (Ibid.)  The author of the legislation in the Assembly characterized it as “ ‘a fair item of necessity to allow the people of California to make that balance between their law enforcement officers' rights and safety and their own personal safety.’ ”  (Ibid.)  Again, there is recognition that a situation in which a law enforcement officer and a member of the public are alone in an isolated area is fraught with the possibility the officer may attack or abuse the person he or she has a duty to protect.

In conclusion, I would hold Officer Schroyer was acting within the scope of his employment when he raped plaintiff.   Consequently, defendant is vicariously liable for his actions under the doctrine of respondeat superior.

The majority expresses concern a finding of vicarious liability would be tantamount to imposition of strict liability on an employer for “all torts of an employee occurring during working hours, regardless of the extremity or personal nature of the act.”  (Ante, at p. 498.)   However, this clearly would not be the case.   Liability would result only when the torts flowed directly from an abuse of the very authority or apparent authority bestowed upon the employee.  (E.g., White v. County of Orange, supra, 166 Cal.App.3d at pp. 571–572, 212 Cal.Rptr. 493;  Turner v. State, supra, 494 So.2d at p. 1296;  Applewhite v. City of Baton Rouge, supra, 380 So.2d at pp. 121–122.)

III

Damages for Investigation and Prosecution

A further question is whether plaintiff may be allowed damages arising from the criminal investigation and prosecution of Officer Schroyer.

During the course of the investigation, she was interviewed several times for extensive periods, the interviewing officers asking the same questions “over and over again” and implying they disbelieved her.   She was asked several times to take a lie detector test and she was warned of the seriousness of perjury.   She was required to strip to her undergarments and a male police photographer took pictures of the bruises she had received as a result of the rape;  a female officer was present at the start of the photo session but soon left her alone with the photographer.

Plaintiff testified at a preliminary hearing and at trial in the presence of Officer Schroyer.   After the preliminary hearing, Officer Schroyer came up to her at a gas station;  he touched her arm and asked her how she was doing, and she fled.   During the course of the investigation and prosecution, repeated calls on her to talk to the police and testify disrupted her work.   She presented extensive evidence of the trauma she suffered and the resulting damages, i.e., alcoholism, large weight gain, recurring nightmares and fear of leaving her home.

The issue is whether defendant is immune from suit for such damages pursuant to Government Code sections 821.6 and 815.2 (hereinafter sections 821.6 and 815.2).   As the majority correctly notes, “in governmental tort cases ‘the rule is liability, immunity is the exception.’ ”  (Ramos v. County of Madera (1971) 4 Cal.3d 685, 692, 94 Cal.Rptr. 421, 484 P.2d 93, quoting from Muskopf v. Corning Hospital Dist. (1961) 55 Cal.2d 211, 219, 11 Cal.Rptr. 89, 359 P.2d 457.)  “Unless the Legislature has clearly provided for immunity, the important societal goal of compensating injured parties for damages caused by willful or negligent acts must prevail.”  (Ramos, supra, at p. 692, 94 Cal.Rptr. 421, 484 P.2d 93.)

The Legislature has clearly provided for immunity in section 821.6, pursuant to which “[a] public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause.”   There is further immunity—as well as liability—in section 815.2:  “(a) A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative.  [¶] (b) Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability.”   Thus, if the city employees who injured plaintiff during the course of Officer Schroyer's criminal investigation and prosecution are immune from liability for their actions pursuant to section 821.6, then defendant also is immune.   Conversely, if they are liable, defendant is liable.

Section 821.6 codifies the California common law.  (Scannell v. County of Riverside (1984) 152 Cal.App.3d 596, 604, 199 Cal.Rptr. 644;  see Legislative Committee Comment—Senate to section 821.6.)   That law is typified by White v. Towers (1951) 37 Cal.2d 727, 235 P.2d 209.   In White v. Towers, plaintiff sought damages for malicious prosecution from defendant, an investigator for the State Fish and Game Commission, who had procured institution of criminal proceedings against plaintiff.   The court disallowed the action on the ground “the common good is best served by permitting law enforcement officers to perform their assigned tasks without fear of being called to account in a civil action for alleged malicious prosecution.”  (At p. 730, 235 P.2d 209.)

The California Law Revision Commission, which proposed the adoption of section 821.6, stated the purpose of the adoption of that section was to provide immunity from malicious prosecution such as that provided in White v. Towers.  (Recommendation Relating to Sovereign Immunity (1963) 4 Cal.Law Revision Com.Rep. 801, 841, 845.)  Sullivan v. County of Los Angeles (1974) 12 Cal.3d 710, 721, 117 Cal.Rptr. 241, 527 P.2d 865, holds section 821.6 must be narrowly interpreted, “confining its reach to malicious prosecution actions.”

The instant action is not one for malicious prosecution, in that it does not arise out of prosecution of plaintiff.   Defendant nevertheless seeks to bring the instant case within the purview of section 821.6.   The cases cited in support of its argument that the section should be broadly construed to apply to the instant case are inapposite and unpersuasive, however.

In Jackson v. City of San Diego (1981) 121 Cal.App.3d 579, 175 Cal.Rptr. 395, plaintiff was arrested for murder and robbery based on a police informant's tip.   He was then prosecuted for, convicted of and imprisoned for the crimes.   Subsequently, someone else confessed to the crimes and was tried for and convicted of them.   Plaintiff was set free, the charges against him dismissed and the judgment of conviction vacated.

The question presented to the court was whether plaintiff could recover damages for the entire period of his incarceration.  (Id., at p. 581, 175 Cal.Rptr. 395.)   In answering this question, the court was called upon to analyze the Legislature's purpose in immunizing public employees from liability for malicious prosecution (Gov.Code, § 821.6) while retaining liability for false imprisonment (Gov.Code, § 820.4).  (121 Cal.App.3d at pp. 585–586, 175 Cal.Rptr. 395.)   Its analysis led to the conclusion plaintiff could not obtain damages for his treatment once his prosecution had begun, but he was entitled to damages for the prior period of false imprisonment.  (Id., at pp. 587–589, 175 Cal.Rptr. 395.)

Jackson dealt with the prosecution of the plaintiff himself.   The court points out by section 821.6 the Legislature intended to prevent redress for innocent citizens who were wrongfully prosecuted, even if the public employees prosecuting them acted maliciously and without probable cause.

In Scannell v. County of Riverside, supra, 152 Cal.App.3d 596, 199 Cal.Rptr. 644, plaintiff was granted immunity from prosecution for certain offenses in exchange for his performance of certain duties.   He performed as required, but County employees nonetheless filed a complaint against him, arrested and jailed him;  he was tried for the offenses and trial ended in a hung jury.   The trial court subsequently granted plaintiff's motion to dismiss the information based on the previous grant of immunity.   Plaintiff sued the County for malicious prosecution, false imprisonment and intentional infliction of emotional distress;  the County's demurrer to his complaint was sustained without leave to amend and the case dismissed.

The court held the demurrer to the cause of action for malicious prosecution properly was sustained pursuant to section 821.6.  (Id., at p. 604, 199 Cal.Rptr. 644.)   The same was true of the cause of action for false imprisonment, in that plaintiff's imprisonment was a result of his prosecution.  (Id., at p. 608, 199 Cal.Rptr. 644.)   Plaintiff's cause of action for intentional infliction of emotional distress also was barred by section 821.6, the cause of action being essentially the same as that of malicious prosecution.  (Id., at p. 609, 199 Cal.Rptr. 644.)

Scannell holds section 821.6 applies to malicious prosecution actions, no matter what they are labeled.   However, it cannot stretch to encompass the instant action, which deals with actions which simply do not amount to malicious prosecution.   Plaintiff was not prosecuted.

Defendant also cites Citizens Capital Corp. v. Spohn (1982) 133 Cal.App.3d 887, 184 Cal.Rptr. 269, in which plaintiff complained the Director of the Department of Consumer Affairs, former chief of the Bureau of Collections and Investigative Services, and State of California “instituted widespread newspaper publicity charging them with improper conduct in operating their collection services and also instituted proceedings seeking revocation of their licenses.”  (At p. 888, 184 Cal.Rptr. 269.)   The court concluded defendants were immune from suit under sections 821.6 and 815.2.  (Id., at p. 889, 184 Cal.Rptr. 269.)

The court noted section 821.6 is not limited to immunity from malicious prosecution, citing Kilgore v. Younger (1982) 30 Cal.3d 770, 180 Cal.Rptr. 657, 640 P.2d 793.  Kilgore, however, dealt with privileged actions pursuant to Civil Code section 47, not with immunity pursuant to section 821.6.   In any event, Citizens Capital Corp. dealt with actions taken against the plaintiff itself and cannot be read to extend immunity to the conduct in the instant case.

I would hold section 821.6 does not provide defendant's employees with immunity from plaintiff's action for damages resulting from their criminal investigation and prosecution of Officer Schroyer.   Hence, section 815.2 provides defendant is liable therefor.

In the words of Justice Hall in his eloquent dissent in Rabon v. Guardsmark, Inc., supra:  “[T]he voice of all that is right and just cries out for affirmance in this case.”  (571 F.2d at p. 1282.)   Accordingly, I would affirm the judgment.

FOOTNOTES

1.   Unless otherwise indicated, all code sections hereafter refer to the Government Code.

2.   The clerk's transcript in the case at bench shows that at plaintiff's request the trial court, citing as authority White v. County of Orange, supra, 166 Cal.App.3d 566, 212 Cal.Rptr. 493 (plaintiff's Special Instruction No. 2), gave the following instruction:“SCOPE OF AUTHORITY—ACTS DONE BY THE EMPLOYEEWhere the wrongful acts of a police officer flow from his exercise of authority, as a police officer, then the wrongful act is within the course and scope of his employment.”

3.   Jeffrey E. v. Central Baptist Church, supra, 197 Cal.App.3d 718, 243 Cal.Rptr. 128, involved an action against a church, predicated on a theory of respondeat superior, by a child who was repeatedly sexually molested by a Sunday school teacher and general member of the congregation.   The trial court granted summary judgment in favor of defendant church.   The Court of Appeal affirmed, applying the two-prong test, and held that the church was not liable under the doctrine of respondeat superior since the teacher's conduct was neither related to his position as a Sunday school teacher nor was it foreseeable based on his position.The Jeffrey E. court, at pages 722 and 723, 243 Cal.Rptr. 128, said:“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.”9The court's footnote 9 provides:  “Appellant incorrectly assumes the conduct in White involved a sexual assault.   There, shortly after midnight, an Orange County deputy sheriff on patrol in a marked sheriff's unit stopped a vehicle driven by White.   He placed White in his patrol car and, during the several hours he drove her around, threatened to rape and murder her.   However, there were no sexual acts committed by the deputy.”

4.   Some courts in determining whether or not an employer may be held vicariously liable for the wrongful acts of its employees under the doctrine of respondeat superior have relied generally on case law in the workers' compensation field.   However, as the state Supreme Court pointed out in Perez v. Van Groningen & Sons, Inc., supra, 41 Cal.3d 962, at page 967, 227 Cal.Rptr. 106, 719 P.2d 676, footnote 2, “[A]lthough workers' compensation cases can be helpful in determining the employer's vicarious liability for its employee's torts (id., at p. 962 [227 Cal.Rptr. 106, 719 P.2d 676]), they are not controlling precedent ‘when liability is predicated upon respondeat superior principles.’  (Caldwell v. A.R.B., Inc. (1986) 176 Cal.App.3d 1028, 1035 [222 Cal.Rptr. 494].)”Indeed, the Alma W. court found that California's workers' compensation law supported its decision negating liability under the respondeat superior doctrine, observing:  “[T]o assert that [the employee] would be entitled to workers' compensation benefits had he, for example, injured his back in perpetrating a rape is totally absurd.   If [he] had been injured, it would clearly not be compensable because the alleged misconduct is ipso facto not within the ‘course and scope of his employment.’   It necessarily follows that such conduct would be outside the scope of his employment under a respondeat superior analysis since the latter test is more restrictive than the workers' compensation standard.  (Church v. Arko (1977) 75 Cal.App.3d 291, 298 [142 Cal.Rptr. 92].)”  (Emphasis original.)  (Alma W. v. Oakland Unified School Dist., supra, 123 Cal.App.3d 133, 143, 176 Cal.Rptr. 287.)This reasoning is equally applicable to the case at bench.   Hypothetically, if Schroyer had injured his back during the commission of his rape of plaintiff Mary M., in no way would he [Schroyer] be entitled to workers' compensation benefits because his act of rape was clearly outside the scope of his employment.

5.   The test for determining whether conduct is within the scope of employment according to the Restatement Second of Agency section 228 is as follows:“(1) Conduct of a servant is within the scope of employment if, but only if:  [¶] (a) it is of the kind he is employed to perform;  [¶] (b) it occurs substantially within the authorized time and space limits;  [¶] (c) it is actuated, at least in part, by a purpose to serve the master;  and (d) if force is intentionally used by the servant against another, the use of force is not unexpectable by the master.  [¶] (2) Conduct of a servant is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose of serve the master.”In the case at bench, even if the Restatement test was applied, the result would be the same—Schroyer's rape of plaintiff was not within his scope of employment.

6.   The bulk of the evidence introduced at trial by plaintiff concerned the issue of damages;  that the rape had caused her to become an alcoholic, gain a large amount of weight, have recurring nightmares, and become afraid to leave the house.   Evidence introduced by plaintiff, over defendant's objection, also showed that much of the trauma she suffered was caused by the investigation and criminal prosecution of Sergeant Schroyer following the rape which gave rise, plaintiff alleges, to numerous abuses.   These include being photographed disrobed to her panties and bra before a male photographer to preserve a record of bruises the rape inflicted on her body, with no female present during part of the photography session;  over 12 to 15 hours of interviews by police during a three-to-four month period;  having to attend the preliminary hearing in the same room with Schroyer and being subjected to two days of questioning as a witness;  after the preliminary hearing, being approached by Schroyer while she was waiting to pay a gas station cashier, being touched by him on the arm, and being asked how she was doing;  and constantly being on call to talk to the police, which disrupted her work schedule.

1.   Government Code section 815.2, subdivision (a), provides:  “A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative.”

2.   That section was repealed in 1979 (Stats. 1979, ch. 944, § 5) but reenacted at the same time in substantially the same form in Penal Code section 1203.065 (Stats. 1979, ch. 944, § 15).

3.   The Special Investigations Division was created in 1967 to investigate and prosecute crimes by public officers.

L. THAXTON HANSON, Associate Justice.

LUCAS, J., concurs.