Kassey S. v. City of Turlock

[1279]Opinion

GOMES, Acting P. J. Appellant Kassey S. was sexually assaulted by Turlock Police Officer Jorge Cruz on more than one occasion when she was participating as a minor in the Turlock Police Department explorer program. The assaults took place during one-on-one ride-alongs while Cruz was on duty. Kassey sued the City of Turlock (City) and the Turlock Police Department. In her third amended complaint, she alleged the City was vicariously liable for Cruz’s negligence based on his breach of the mandatory duty to report the sexual abuse to a child protective agency under Penal Code section 11166, subdivision (a).1 According to Kassey, had Cruz fulfilled his mandatory duty to report the first incident of sexual abuse, he would not have been able to commit subsequent acts of sexual abuse.

The trial court sustained the City’s demurrer to the third amended complaint without leave to amend. The court held the Child Abuse and Neglect Reporting Act (§ 11164 et seq.) did not impose a “mandatory duty” on a mandated reporter to report his or her own acts of physical or sexual abuse of a minor since such a requirement would render the statute unconstitutional as a forfeiture of the mandated reporter’s Fifth Amendment privilege against self-incrimination. Since the mandatory duty was not breached and the alleged molestations took place outside the course and scope of Cruz’s employment, the court found the City could not be directly or vicariously liable for Cruz’s actions.

On appeal, Kassey argues that because Cruz knew in his professional capacity as a peace officer that he had sexually abused her, section 11166, subdivision (a) required him to report that abuse. Kassey contends the City does not have standing to assert Cruz’s Fifth Amendment privilege against self-incrimination because the privilege belongs to Cruz, and the “public safety exception” outweighed the privilege. We agree with the trial court and will affirm the judgment.

DISCUSSION

It is well established that in a situation such as the one presented here, i.e., where a police officer sexually assaults a minor participating in a police explorer program, the police officer’s employer is not vicariously liable for the misconduct. (Doe 1 v. City of Murrieta (2002) 102 Cal.App.4th 899, 906-907 [126 Cal.Rptr.2d 213].) Although the police officer is on duty, such misconduct does not come within the course and scope of the police officer’s employment. (Id. at p. 907.)