Doe vs. County of Orange

exceptions not applicable here], a public entity is not liable for . . . [a]n injury to any prisoner.” Government Code section 844 provides: “As used in this chapter, ‘prisoner’ includes an inmate of a prison, jail, or penal or correctional facility.” (Gov. Code, § 844.) “Section 844, in defining ‘prisoner,’ uses the word ‘includes,’ indicating that the term ‘prisoner’ is to be broadly interpreted.” (Jiminez v. County of Santa Cruz (1974) 42 Cal.App.3d 407, 409.) “[T]he Legislature intended that the word ‘prisoner’ included all inmates of any facility in which they were placed by the courts or law.” (Id., at p. 410.) Therefore, “for purposes of public immunity a juvenile court ward, being an inmate of a correctional facility, is a ‘prisoner.’” (Id. at 413.)

Here, Plaintiff alleges he was “detained and housed at a juvenile facility owned and/or run by Defendant the County of Orange . . .” (Compl., ¶ 2.) Plaintiff also alleges Los Pinos, where the sexual abuse occurred, was a “youth correctional facility” where he was court-ordered to mandatory physical confinement. (Compl., ¶¶ 7, 17, 18, 30.) Plaintiff classifies himself as an inmate in custody. (Complaint, ¶¶ 69a, 69e, 78.)

These allegations establish Plaintiff was a prisoner within the meaning of Government Code section 844 and Defendant is immune from liability for Plaintiff’s alleged injuries pursuant to section 844.6.

Plaintiff argues the protection of section 844.6 is narrowly circumscribed and cites Larson v. City of Oakland (1971) 17 Cal.App.3d 91 for the proposition that section 844.6 uses the term “prisoner” “in the narrow, technical sense” to describe persons held in penal custody. However, Larson is distinguishable because it concerned persons temporarily detained by law officers for the purposes of investigation and the court concluded that “prisoner” as used in section 844.6 did not include such persons. (Id. at p. 97.) Larson did not concern a ward of the juvenile court. Jiminez, on the other hand, did.

Plaintiff also cites Welfare and Institutions Code section 202, subdivision (a), and 851 to argue section 844.6 does not apply because immunity attaches only to injuries sustained by persons confined in penal institutions not to juvenile wards placed in a rehabilitative youth facility.

Plaintiff’s argument lacks merit. Plaintiff fails to cite any case that has overruled or contradicted Jimenez’s holding. In addition, the plaintiff in Jimenez, like Plaintiff here, called attention to Welfare and Institutions Code section 851, which at that time stated: “The Juvenile hall shall not be in, or connected with, any jail or prison, and shall not be deemed to be nor be treated as a penal institution. It shall be conducted in all respects as nearly like a home as possible.” (See Jimenez, supra, at p. 411, quoting prior version of Welf. & Inst., §851.) The court nevertheless concluded “if a ward is placed there he is ‘a prisoner in the sense that he was in custody as the result of a legal process.’” (Ibid.)

Similarly, in Patricia J. v Rio Linda Union School District (1976) 61 Cal.App.3d 278, the court held that “[a] foster care agency in which restraints on individual freedoms are exerted would properly be categorized as an institution whose inmates are considered prisoners, as would a juvenile hall.” (Id. at 287.) The court acknowledged Welfare and Institutions Code section 851 states a juvenile hall “should not be treated as a penal institution” but held, “[n]evertheless, if a ward is placed there, he is a prisoner in the sense that he was in custody as the result of a legal process . . . Our definition of a prisoner applies equally to wards of the juvenile court as well as to adults.” (Ibid.)

The fact that Welfare and Institution Code section 851 was amended in 1998 does not affect the holdings in after Jimenz and Patricia J. because the statute’s language prior to the 1998 amendment is substantially the same.

Importantly, the second sentence of the statute before and after the 1998 amendment required a juvenile hall to be conducted like a home/homelike environment.

Plaintiff also argues 844.6 does not apply because Government Code section 815.2, subdivision (a) imposes liability on Defendant through vicarious liability for the acts and omissions of its employees. However, that argument does not apply when dealing with Government Code section 844.6. “Although a public entity may be vicariously liable for the acts and omissions of its employees (Gov. Code § 815.2), that rule does not apply in the case of injuries to prisoners.” (Lawson v. Superior Court (2010) 180 Cal.App.4th 1372, 1383 [emphasis in original].)

Thus, applies and Plaintiff’s claims against Defendant are barred pursuant to section 844.6, subdivision (a).

2. Code of Civil Procedure sections 340.1 and 340.11

Defendant next argues the claims fail because they are based on vicarious liability and the statute of limitations for claims based solely on vicarious liability have not been revived pursuant to Code of Civil Procedure sections 340.1 and 340.11.

Code of Civil Procedure sections 340.1 and 340.11 allow for actions against entities that owed a duty to the plaintiff if a wrongful or negligent act by that entity was a legal cause of the childhood sexual assault that resulted in injury. (Civ. Code §§ 340.1(a)(2), 340.11(a)(1)B).) The plain language in section 340.1 and 340.11 imposes liability on a person or entity based on the conduct of that person or entity, not through vicarious liability. (Civ. Code §§ 340.1, 340.11.) By its express terms, Code of Civil Procedure section 340.1 does not revive claims against entities for vicarious liability of their

employees. (See Debbie Reynolds Prof’l Rehearsal Studios v. Super Ct. (1994) 25 Cal.App.4th 222, 226-29.)

Here, Plaintiff alleges the sexual assault started in 2001 when he was 16 and lasted until 2002. (Compl., ¶ 30(a)(i).) All causes of action against Defendant fail because Defendant’s liability is predicated on theories of vicarious liability, which have not been revived. Thus, Plaintiff’s claims have expired.

While Plaintiff argues Defendant’s reading of Code of Civil Procedure sections 340.1 and 340.11 is “legally unsound,” Plaintiff has not cited any case law supporting this assertion.

3. Course and Scope of Employment

Lastly, Defendant argues it cannot be held liable for defendant Jane Roe’s alleged sexual abuse because such conduct was outside the scope of her employment since Jane Roe was hired as a tutor/teacher and her scope of employment would be to instruct groups of students following a predetermined curriculum and learning objectives, to develop lesson plans, etc.

Defendant is correct. A public entity is only liable for any injury caused by an act or omission of its employee falling within the scope of his employment if the act or omission would have given rise to a cause of action against that employee. (Gov. Code § 815.2(a) and (b).) “Whether a tort was committed within the scope of employment is ordinarily a question of fact; it becomes a question of law, however, where the undisputed facts would not support an inference that the employee was acting within the scope of his employment. (John R. v. Oakland Unified School Dist. (John R.) (1989) 48 Cal.3d 438, 447.)

The California Supreme Court has rejected an attempt to hold a school district vicariously liable under a respondeat superior theory for the sexual molestation of student by a teacher. (John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438, 447–452.) In John R. the court stated an employer is not liable if the employee substantially departs from his duties for purely personal reasons. (Id. at 447.)

Here, on each of the three occasions Plaintiff alleges sexual assault occurred was outside of school hours, outside the classroom, and outside of a scheduled session. (Complaint, ¶¶ 30.) Further, Plaintiff specifically alleges that Jane Roe’s conduct was “for her own sexual gratification.” (Complaint, ¶¶ 31, 32.) These facts support an inference that Jane Roe acted outside the scope of her employment. Plaintiff’s opposition fails to point to any facts alleged in the complaint that support an inference to the contrary.

The claims against Defendant for the following additional reasons:

6th Cause of Action – Negligence

Defendant argues the Negligence claim fails because Plaintiff has not pled a statute that would give rise to liability.

“In California, all government tort liability must be based on statute.” (Becerra v. County of Santa Cruz (1998) 68 Cal.App.4th 1450, 1457, citing Gov. Code, § 815.) Government Code section 815, subdivision (a), provides: “Except as otherwise provided by statute: [¶] (a) A public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.” “[T]his section abolished all common law or judicially declared forms of liability for public entities, except for such liability as may be required by the federal or state Constitution. Thus, in the absence of some constitutional requirement, public entities may be liable only if a statute declares them to be liable.” (Becerra, supra, at p. 1457; quoting Harshbarger v. City of Colton (1988) 197 Cal.App.3d 1335 [cleaned up] [emphasis in original].)

Here, Plaintiff’s negligence claim fails to allege a statute upon which it is based. Plaintiff’s opposition is silent as to this argument.

7th and 8th Causes of Action – Negligent Hiring and Supervision & Negligent Training

Defendant argues it cannot be held directly liable for negligent hiring, supervision and training because Plaintiff cannot point to any specific statute imposing a duty of care on Defendant. Defendant is correct to the extent that the complaint fails to allege a statutory basis for the 7th and 8th causes of action.

Defendant also argues Plaintiff has not alleged any facts that would give rise to negligent hiring, supervision and training causes of action. Defendant is correct. The complaint does not assert any facts that would give rise to negligent hiring and supervision cause of action. There are no asserted facts to demonstrate that Defendant knew or should have known Jane Roe would engage in sexual interactions with anyone. For example, the complaint does not allege Plaintiff disclosed the abuse to anyone, that anyone else reported witnessing Jane Roe’s inappropriate conduct, that Jane Roe previously acted inappropriately with other students, or that Jane Roe had prior convictions or charges for sexual acts with a minor.

Based on the foregoing, the Defendant’s demurrer to each cause of action alleged against it is SUSTAINED.

Because the claims against Defendant fail as a matter of law and Plaintiff has made no showing as to how he can amend to cure these defects, leave to amend is DENIED.