Filed 5/6/16
                         CERTIFIED FOR PUBLICATION

               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                          SECOND APPELLATE DISTRICT

                                  DIVISION EIGHT


IGOR DAZA,                                     B261525

        Cross-complainant and Appellant,       (Los Angeles County
                                               Super. Ct. No. BC485428)
        v.

LOS ANGELES COMMUNITY
COLLEGE DISTRICT,

        Cross-defendant and Respondent.




        APPEAL from a judgment of the Superior Court of Los Angeles County,
Michael P. Linfield, Judge. Reversed.


        Law Office of Marilyn M. Smith, Marilyn M. Smith; the Torgow Law Firm,
Martha A. Torgow; Law Office of Ann C. Schneider and Ann C. Schneider for Cross-
complainant and Appellant.


        Wood, Smith, Henning & Berman, Daniel A. Berman, Stacy L. Douglas,
Shannon M. Benbow and Brandon C. Murphy for Cross-defendant and Respondent.


                                        ******
         This case requires us to interpret provisions of the California Tort Claims Act
(Gov. Code, § 810 et seq.)1 requiring public employers to defend and indemnify their
employees for third party claims arising out of acts within the scope of employment.
(§§ 825-825.6, 995-996.6.) These provisions provide “that in the usual civil case brought
against a public employee, a public entity must provide a defense to the employee (§ 995
et seq.) and pay any claim or judgment against him. (§ 825 et seq.) Where the public
entity refuses to defend, the employee can seek a writ of mandate . . . . Alternatively, he
can fund his own defense and then sue for reasonable attorney fees, costs and expenses
incurred if the action or proceeding arose out of an act or omission in the scope of his
employment as an employee of the public entity, but recovery is barred if the agency
establishes the employee acted or failed to act because of ‘actual fraud, corruption or
actual malice.’ (§ 996.4.)” (Stone v. Regents of University of California (1999) 77
Cal.App.4th 736, 746 (Stone).)
         In this case, an adult student sued the Los Angeles Community College District
(the District) and Igor Daza, a guidance counselor employed by the District, alleging
Daza sexually assaulted her when she went to his office for counseling services (the main
lawsuit). The District refused to defend him, so he paid for his own defense and filed a
cross-complaint denying the allegations of sexual assault and seeking indemnity and
reimbursement for his defense. After the District settled the main lawsuit without
admitting liability and without a factual determination of whether Daza was acting within
the scope of his employment, the student dismissed all her claims against the District and
Daza with prejudice. The District then demurred to Daza’s cross-complaint, arguing the
student’s allegations of sexual assault in the main lawsuit fell outside the scope of Daza’s
employment as a matter of law. Daza opposed, arguing he was not limited to the
allegations in the main lawsuit in carrying his burden to prove the acts fell within the
scope of his employment. The trial court agreed with the District and refused to look


1        All undesignated statutory citations are to the Government Code unless otherwise
noted.


                                               2
beyond the allegations in the main lawsuit to hold as a matter of law that the alleged acts
of sexual assault fell outside the scope of Daza’s employment.
       We reverse. We agree with the trial court that the sexual assault alleged in the
main lawsuit fell outside the scope of Daza’s employment as a matter of law. But under a
proper interpretation of section 996.4, the determination of whether an employee acted
within the scope of employment is factual and cannot be limited to the third party’s
allegations in the underlying lawsuit when the employee denies those allegations, and the
employee’s version of events would demonstrate acts within the scope of employment.
                                     BACKGROUND
       As alleged in her operative first amended complaint (FAC), plaintiff Jazmyne
Goodwin was an adult student at Los Angeles Southwest College (LASC), a school
within the District. Daza worked as a guidance counselor and advisor for LASC, and at
all times was an employee and agent for LASC and the District. His responsibilities
included providing educational and emotional counseling for students like Goodwin. In
that capacity, he was assigned to Goodwin as a counselor, which created a special
relationship between her and Daza and the District. He used his position of authority to
sexually harass and molest her.
       In the evening of May 3, 2011, she went to Daza’s office to meet with him to
discuss (1) the problem with the humanities class she had dropped; (2) the fashion classes
at Trade Tech; and (3) possible field trips to see various colleges to get her bachelor’s
degree. When she entered his office, he closed the door and took her cell phone from her.
He examined the pictures on the phone without her consent, telling her, “You take a lot of
pictures. I like the one with your nipple ring. I am going to send the picture to myself.”
Surprised and shocked, she told him not to send it. Nonetheless, he sent the picture to his
cell phone.
       Upset, Goodwin got up to leave. Daza grabbed her wrist and pulled her toward
him. He said, “Are you a freak? I heard Aries are freaks.” She pushed him away. He
said, “If you don’t want me to touch you, maybe you would like me to lick you.” She
responded, “No. I want to leave.” She told him she had a boyfriend and said, “It’s too


                                              3
much for me.” She could not leave because he was blocking her path. He touched,
caressed, and kissed her neck, placed his left hand in her dress on the upper part of her
breast, and asked if he could see her nipple ring. She pushed him away. He was still
holding her hair, but finally let her go. She left the office, and he followed her. He said
he did not notice her butt was that big and she should really think about going on a date
with him. She walked to her car, and he continued to follow her. At this point, she was
shocked to see he had sent the photo of her nipple ring to his own cell phone. He did all
this for his own sexual gratification.
         A criminal investigation of this incident was commenced, and on May 31, 2012,
Daza resigned his employment with the District. He was paid a $73,000 severance
bonus.
         The FAC alleged 13 causes of action, including claims against Daza for
negligence; statutory breach (Gov. Code, §§ 815.2, 820); intentional infliction of
emotional distress; sexual battery (Civ. Code, § 1708.5); battery; assault; sexual
harassment (Civ. Code, § 51.9); gender violence (Civ. Code, § 52.4); false imprisonment;
negligent sexual abuse; and sexual harassment (Civ. Code, § 51.9—Ralph Act). The
District eventually settled the lawsuit with Goodwin without admitting liability, and
Goodwin dismissed the complaint against both the District and Daza with prejudice.
         After protracted procedural wrangling not pertinent to this appeal, Daza filed a
third amended cross-complaint (TACC), which alleged three cross-claims against the
District: (1) statutory defense (§§ 825, 995); (2) statutory indemnity (§§ 825, 825.2); and
alternatively (3) a petition for a writ of mandate to compel the District to provide a
defense and indemnity. Daza denied all of Goodwin’s allegations of sexual assault in the
main lawsuit and denied he believed his acts were unlawful. He acknowledged his
resignation and his severance payment of $73,000. He alleged his settlement agreement
with the District included a clause stating that he and the District “agree that nothing in
this Agreement reduces, nullifies, or otherwise affects the rights and responsibilities of
the Parties to defense and indemnification pursuant to the Government Code, Education
Code and any other provision of law or regulation including, specifically but without


                                               4
limitation, those rights and responsibilities in the Government Code Division 3.6,
including, without limitation, those provisions in Part 2 Chapter 1 Article 4, commencing
with Section 825, and Part 7 commencing with Section 995.” He also alleged the District
never afforded him an evidentiary or other hearing on the issue of defense and indemnity,
and it never made a determination that he was not acting within the scope of his
employment or acted with actual fraud, corruption, or actual malice.
       The District demurred to the TACC. It argued Daza’s claim for indemnity failed
because the District entered a settlement with Goodwin that resulted in dismissal of her
lawsuit with prejudice, so Daza was not required to pay any claim or judgment. It also
argued Daza’s claim for reimbursement for his defense and a writ of mandate failed
because his alleged conduct fell outside the scope of his employment as a matter of law.
Although not stated explicitly, this argument presupposed that determination was limited
to the allegations in the main lawsuit.
       In opposition, Daza conceded his indemnity claim was moot in light of Goodwin’s
settlement and dismissal of the main lawsuit, but he disagreed his claims for a defense
and for a writ of mandate failed. He argued Goodwin’s allegations did not allege conduct
that fell outside the scope of his employment as a matter of law and, since he denied the
allegations, there has been no factual determination that he committed the acts Goodwin
alleged. Alternatively, Daza requested leave to amend to allege additional facts refuting
Goodwin’s allegations and to add a declaratory relief claim under his settlement
agreement with the District.
       The trial court initially overruled the demurrer because there had been no factual
determination in the main lawsuit that Daza had sexually assaulted Goodwin or that he
was acting outside the scope of his employment.2 But relying on a newly issued



2       The court granted judicial notice of three items: the District’s board rules, article
III, sections 8300 and 8302 regarding guidance counseling services; the settlement
agreement between the District and Goodwin; and the settlement agreement between
Daza and the District.


                                              5
appellate opinion in the insurance context that was subsequently depublished,3 the trial
court reversed course and sustained the demurrer and dismissed the cross-complaint with
prejudice. It concluded it was limited to reviewing the allegations in Goodwin’s main
lawsuit and held those allegations showed as a matter of law that Daza was acting outside
his scope of employment.
                                       DISCUSSION4
1. Legal Standards
       We review an order sustaining a demurrer de novo, exercising our independent
judgment to determine whether the complaint states a cause of action as a matter of law.
(McMahon v. Craig (2009) 176 Cal.App.4th 1502, 1508-1509 (McMahon).) “We give
the complaint a reasonable interpretation, reading it as a whole and viewing its parts in
context. [Citation.] We deem all properly pleaded material facts as true. [Citation.] We
also accept as true those facts that may be implied or inferred from those expressly
alleged.” (Id. at p. 1509.) We review the denial of leave to amend for abuse of
discretion, considering whether the plaintiff has shown a “reasonable possibility” any
defect in a cause of action could be cured by amendment. (Ibid.)
2. Analysis
       By statute, a public employer generally has the obligation to defend an employee
in a civil lawsuit arising from acts the employee has taken within the scope of
employment: “Except as otherwise provided in Sections 995.2 and 995.4, upon request
of an employee or former employee, a public entity shall provide for the defense of any



3       The case was Baek v. Continental Casualty Co. (Oct. 6, 2014, B251201), review
denied and ordered not officially published on January 14, 2015. Before depublication,
the trial court sua sponte reconsidered its ruling in this case and ordered the parties to file
supplemental briefs on Baek, which they did.
4      Daza does not challenge the dismissal of his indemnity claim as moot, so we will
not address it. And like the parties, we will treat the parties’ arguments as applying
equally to Daza’s claims for reimbursement under section 996.4 and for a writ of
mandate.


                                               6
civil action or proceeding brought against him, in his official or individual capacity or
both, on account of an act or omission in the scope of his employment as an employee of
the public entity.” (§ 995.)
       When the employee requests a defense, the employer “may refuse to provide for
the defense of a civil action or proceeding brought against an employee or former
employee if the public entity determines any of the following: [¶] (1) The act or
omission was not within the scope of his or her employment. [¶] (2) He or she acted or
failed to act because of actual fraud, corruption, or actual malice. [¶] (3) The defense of
the action or proceeding by the public entity would create a specific conflict of interest
between the public entity and the employee or former employee. . . .” (§ 995.2, subd.
(a).) The employer has 20 days from receiving a written request to inform the employee
whether it will or will not provide a defense and the reason for its refusal. (§ 995.2, subd.
(b).) If the employee is dissatisfied with the employer’s decision, he or she may pursue a
petition for a writ of mandate to compel the employer to provide a defense. In that
circumstance, the employee bears the burden to show the acts or omissions fell within the
scope of employment (Stone, supra, 77 Cal.App.4th at p. 746), but the employer’s
decision will be sustained if it is “within the range of reason” (id. at p. 748).
       Alternatively, if the employer refuses to provide a defense, the employee may pay
for his or her own defense and seek reimbursement from the employer: “If after request a
public entity fails or refuses to provide an employee or former employee with a defense
against a civil action or proceeding brought against him and the employee retains his own
counsel to defend the action or proceeding, he is entitled to recover from the public entity
such reasonable attorney’s fees, costs and expenses as are necessarily incurred by him in
defending the action or proceeding if the action or proceeding arose out of an act or
omission in the scope of his employment as an employee of the public entity, but he is
not entitled to such reimbursement if the public entity establishes . . . that he acted or
failed to act because of actual fraud, corruption or actual malice . . . .” (§ 996.4.) This
remedy does not eliminate an employee’s “right to petition for a writ of mandate to
compel the public entity or the governing body or an employee thereof to perform the


                                               7
duties imposed by this part.” (Ibid.) As with a request under section 995.2, the employee
bears the burden under section 996.4 to prove the action arose from acts or omissions
within the scope of employment. (Farmers Ins. Group v. County of Santa Clara (1995)
11 Cal.4th 992, 1002 (Farmers); Stone, supra, 77 Cal.App.4th at pp. 746, 748, fn. 10
[noting the employer’s determination at the first step that the employee’s conduct was
outside the scope of employment is “not the last word, of course. Under section 996.4,
[the employee] could pay for his own defense and then recover from the [employer] by
establishing that the [plaintiffs’] suit did arise out of actions taken within the scope of his
university employment”].)
       Before we reach the main question of whether Daza was limited to the allegations
in the main lawsuit to establish his claim under section 996.4, we necessarily reject his
contention the allegations themselves showed acts arising from the scope of his
employment. An employee’s willful and malicious intentional torts, including those that
might contravene an employer’s express policies, do not automatically fall outside the
scope of employment. (Farmers, supra, 11 Cal.4th at p. 1004.) But to fall within the
scope of employment, the intentional misconduct must be “an ‘outgrowth’ of the
employment” and the risk of tortious injury must be “‘“inherent in the working
environment”’” or “‘“typical of or broadly incidental to the enterprise [the employer] has
undertaken.”’” (Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th
291, 298 (Lisa M.); see John Y. v. Chaparral Treatment Center, Inc. (2002) 101
Cal.App.4th 565, 575 (John Y.).) Similarly, the intentional conduct must be foreseeable
from the employee’s duties, which means “‘in the context of the particular enterprise,’”
the conduct was “‘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.’” (Lisa M., supra, at
p. 299.)
       Sexual assaults are not per se beyond the scope of employment. (Lisa M., supra,
12 Cal.4th at p. 300; John Y., supra, 101 Cal.App.4th at p. 575.) But courts have rarely
held an employee’s sexual assault or sexual harassment of a third party falls within the
scope of employment. (See, e.g., Lisa M., supra, at p. 294 [technician’s sexual


                                               8
molestation of patient during ultrasound not within scope of employment]; Farmers,
supra, 11 Cal.4th at p. 997 [deputy sheriff’s sexual harassment of other deputy sheriffs
working at county jail outside scope of employment]; John R. v. Oakland Unified School
Dist. (1989) 48 Cal.3d 438, 441, 447-452 [teacher’s sexual molestation of student at
teacher’s apartment during sanctioned extracurricular program not within scope of
employment]; Z.V. v. County of Riverside (2015) 238 Cal.App.4th 889, 891, 896-897
(Z.V.) [social worker’s sexual assault of minor outside of work hours and at social
worker’s apartment not within scope of employment]; John Y., supra, at pp. 576-577
[counselor’s sexual molestation of minor living in residential facility not within scope of
employment]; Alma M. v. Oakland Unified School Dist. (1981) 123 Cal.App.3d 133, 139-
140 [school janitor’s rape of student in janitor’s office not within scope of employment];
but see Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 206-207 (Mary M.)
[“unique” case of on-duty police officer’s misuse of official authority to rape woman he
detained falls within scope of employment].)
       Consistent with the vast weight of authority, we conclude Goodwin’s allegations
of sexual assault against Daza fell outside his scope of employment as a guidance
counselor for the District. His alleged conduct was not an outgrowth of his employment,
it was neither inherent in nor typical of the District’s educational enterprise, and it was
not foreseeable from Daza’s duties as a guidance counselor. (Compare John Y., supra,
101 Cal.App.4th at p. 577 [sexual assault not foreseeable because counselor’s
employment did not “‘predictably . . . create the risk employees will commit intentional
torts of the type for which liability is sought.’”].) As courts have done in other cases, we
reject Daza’s analogy to Mary M., which imposed vicarious liability based on “the unique
position of police officers with their ability to arrest and use deadly force,” coupled with
their “‘substantial degree of authority’” and the use of that authority over the motorist
plaintiff. (Z.V., supra, 238 Cal.App.4th at pp. 894-895; see Lisa M., supra, 12 Cal.4th at
p. 304 [distinguishing Mary M. because it was expressly limited to the unique authority
of police officers]; Farmers, supra, 11 Cal.4th at pp. 1012-1013 [distinguishing Mary M.
on same ground].)


                                              9
       We also reject Daza’s contention that some of his alleged acts not amounting to
sexual assault might have fallen within the scope of his employment, such as taking
Goodwin’s cell phone without permission and viewing photographs on it. Goodwin did
not sue for these acts standing alone; she sued for his alleged sexual assault and the
allegations of Daza’s nonsexual and sexual conduct were inextricable intertwined. (See
State Farm Fire & Casualty Co. v. Century Indemnity Co. (1997) 59 Cal.App.4th 648,
664 [insurer had no duty to defend teacher against claims of sexual molestation because
arguably nonsexual physical contact between teacher and students was “integral to and
inseparable from the alleged molestation, in that it was either concurrent with or a
prelude to it and part of indivisible incidents of molestation”]; Jane D. v. Ordinary
Mutual (1995) 32 Cal.App.4th 643, 653 [finding plaintiff’s “nonsexual conduct—
obtaining information about plaintiff during counseling and using this information and
misusing counseling techniques to create transference and to control and induce
plaintiff’s behavior—were ‘inseparably intertwined’ with the sexual misconduct”].)
       Having concluded Daza’s alleged acts of sexual assault fell outside his scope of
employment, we now turn to the main issue in this case—was Daza limited to those
allegations in carrying his burden to show the action arose from acts within the scope of
his employment? For several reasons, we conclude he was not, and the trial court erred
in holding otherwise. By alleging in his cross-complaint that no sexual assault occurred,
Daza has sufficiently stated a claim for reimbursement under section 996.4.
       This is largely an issue of the proper interpretation of section 996.4, so “‘[o]ur
goal is “to ascertain the intent of the enacting legislative body so that we may adopt the
construction that best effectuates the purpose of the law.”’ [Citation.] First, we must
look to the words of the statute, which generally provide the most reliable indicator of
legislative intent. [Citation.] If the statutory language is unambiguous, then we presume
the Legislature meant what it said and our inquiry ends. [Citation.] We give words in a
statute their plain and commonsense meaning, and we avoid a construction that would
produce absurd results, which we presume the Legislature did not intend. [Citation.] We
also ‘do not construe statutes in isolation; rather, we construe every statute with reference


                                             10
to the whole system of law of which it is a part, so that all may be harmonized and
anomalies avoided.’” (Barker v. Garza (2013) 218 Cal.App.4th 1449, 1454.)
       Nothing in the language of section 996.4 limits Daza’s ability to present evidence
he was acting within the scope of employment, including by disproving the allegations in
the main lawsuit. This section provides for reimbursement if the action “arose out of an
act or omission” in the scope of employment, not out of an “alleged act or omission” in
the scope of employment. This section also allows an employer to rebut the employee’s
showing by “establish[ing]” he or she acted with actual fraud, corruption, or actual
malice, which contemplates an evidentiary showing. It would create an unfairly lopsided
procedure to limit the employee’s proof to the allegations in the underlying complaint but
allow an employer to present evidence to defeat the employee’s claim.
       There is no case precisely on point, but the decision in San Diego Police Officers
Assn. v. City of San Diego (1994) 29 Cal.App.4th 1736 (San Diego) comes close. In that
case, an informant sued a police sergeant and his employer, the City of San Diego (the
City), claiming the sergeant committed sexual battery on her. The City refused to
provide a defense to the sergeant under section 995.2, subdivision (a)(1) and (2), so the
San Diego Police Officers Association provided his defense. The case went to trial and a
jury found no battery occurred; it did not reach the scope-of-employment question. The
sergeant and Police Officers Association then filed a declaratory relief action under
section 996.4 to recover the costs of his defense. In that action, the sergeant testified he
was on vacation at the times of the alleged battery, his sexual encounters with the
informant occurred at his condominium while he was off duty, and he believed they were
strictly personal, having nothing to do with his employment. The trial court concluded
the sergeant was not acting within the scope of employment as a matter of law and
entered judgment for the employer. (San Diego, at pp. 1739-1740.)
       The Court of Appeal affirmed. The undisputed facts showed the sergeant was not
acting within the scope of his employment or misusing his authority when committing the
sexual acts with the informant. Most important, the court rejected the argument that it
should focus on allegations in the underlying complaint, similar to duty-to-defend


                                             11
insurance cases. “No authority is cited for this method of implementing section 996.4,
and we decline the invitation for such innovation. This court previously held the
Government Code provides an adequate framework for the protection of an officer’s
defense interests when an issue exists as to whether an officer was acting within the
course and scope of his employment. (Laws v. County of San Diego (1990) 219
Cal.App.3d 189, 199-200.) We reaffirm that holding.” (San Diego, supra, 29
Cal.App.4th at pp. 1744-1745.)
       The court quoted the January 2, 1963 California Law Revision Commission report
proposing the adoption of section 996.4: “‘A second remedy should, therefore, be
available to the defendant when the public entity fails or refuses to defend him: He
should be given a cause of action against the public entity to recover the reasonable
expenses he necessarily incurs in defending the action or proceeding if he establishes that
the act or omission occurred in the scope of his public employment and the public entity
fails to establish that he was guilty of actual fraud, corruption or actual malice.’
(Recommendation Relating to Sovereign Immunity, No. 4, Defense of Public Employees
(Jan. 1963) 4 Cal. Law Revision Com. Rep. (1963) pp. 1305, 1308, italics added, fn.
deleted.) The California Law Revision Commission’s use of the word ‘occurred’
indicates it envisions actual occurrences in the scope of public employment, not mere
allegations of such occurrences. The commission was also aware of the potential
availability of civil remedies such as malicious prosecution when unfounded proceedings
are brought against public personnel. (Id. at p. 1309.) [¶] Section 996.4 simply provides
no remedy for an officer who is sued for acts which, although alleged to be, were not
within the scope of the officer’s employment. Any desire for modification of section
996.4 should be directed to the Legislature.” (San Diego, supra, 29 Cal.App.4th at
p. 1745.)
       San Diego involved the inverse of the situation we have here—the evidence of
sexual misconduct outside the scope of employment defeated, rather than substantiated,
the employee’s claim for reimbursement. Nonetheless, the court’s reasoning applies.
The focus under section 996.4 must be on “actual occurrences in the scope of public


                                              12
employment, not mere allegations of such occurrences.” (San Diego, supra, 29
Cal.App.4th at p. 1745, italics added.) Daza is entitled to substantiate his claim for
reimbursement by proving no sexual assault actually occurred, regardless of Goodwin’s
allegations otherwise.5
       Moreover, as we have noted, courts have placed the burden on the employee to
show the acts in the underlying lawsuit arose from the scope of his employment. That
presupposes the employee may go beyond the allegations in the underlying complaint
and make an evidentiary showing on the scope of employment issue. (Farmers, supra,
11 Cal.4th at p. 1002 [“As the statutory provisions make clear, the burden rests upon the
public employee to establish that the act or omission was within the scope of
employment.” (Italics added.)]; Stone, supra, 77 Cal.App.4th at p. 746 [“the employee
bears the burden of proving his conduct was within the scope of employment” (italics
added)].) Any other conclusion would render the employee’s burden meaningless—the
allegations in a complaint drafted by an antagonistic third party would constitute the final
word on the scope of employment issue under section 996.4.
       The District relies heavily Zamudio v. State of California (1998) 62 Cal.App.4th
673 (Zamudio), but it is distinguishable. The issue in that case arose at summary
judgment, and there was no indication the parties disputed the facts of the sex
discrimination alleged in the underlying lawsuit, unlike Daza’s contention in this case.
Instead, the issue was whether the Tort Claims Act “obligate[d] a public entity to defend
an employee sued on account of an act or omission in the employee’s capacity as a union
representative.” (Zamudio, at p. 675.) The court concluded the employer was not
obligated to provide a defense because the acts alleged in the underlying complaint were
based entirely on the employee’s union duties, not his duties as a youth counselor for the


5      The District has not defended the trial court’s analogy to duty-to-defend cases in
the insurance context, so we need not delve into this issue. We merely note our
agreement with San Diego that nothing suggests duty-to-defend principles from insurance
law applies to the statutory duty to reimburse a public employee for defense costs
pursuant to section 996.4. (San Diego, supra, 29 Cal.App.4th at p. 1744.)


                                             13
California Department of Youth Authority (CYA). “[T]he thrust of section 995 is not
what, as a factual matter, the employee actually was doing at a given moment, but
whether the lawsuit was brought against the employee ‘on account of an act or omission
in the scope of his [or her] employment . . . .’ (§ 995, italics added.) The three words ‘on
account of’ are key. The wrongful conduct alleged against Zamudio had nothing to do
with his youth counselor functions. Rather, he was charged with failing to fulfill his
responsibility as president of the Nelles chapter of [the union], by permitting the Nelles
supervisors to breach and violate the terms of the contract between [the union] and the
State concerning sex discrimination in the workplace.” (Id. at p. 678.) In other words,
“[t]he gist of the lawsuit is that Zamudio breached his duty as union representative by
failing to put on his ‘union hat’ to protect plaintiffs. Had Zamudio not been a union
officer, he would not have been sued. The lawsuit had nothing to do with acts or
omissions stemming from Zamudio’s status as a CYA youth counselor.” (Id. at pp. 678-
679.)
        In contrast to Zamudio, there is no dispute the District employed Daza as a
guidance counselor or that Goodwin sought his services in that capacity. The issue is
whether Daza sexually assaulted her when she visited him in his office. If he did, as
Goodwin alleged, he was acting outside the scope of his employment. If he did not, as
Daza claims, he was acting within the scope of his employment. Thus, unlike in
Zamudio, the issue turns precisely on whether a sexual assault actually occurred, not on
whether Daza was acting in his capacity as a guidance counselor at the time.
        Finally, any other conclusion would have unsettling consequences in this case.
First, it would deprive Daza of a factual determination of whether Goodwin’s claims are
true. Because the District settled with Goodwin without admitting liability, Daza was
unable to rebut Goodwin’s allegations in the main lawsuit. Limiting him at this stage to
Goodwin’s serious—and as yet unproven—allegations would once again deprive him of
that opportunity. Second, it would place the fate of Daza’s reimbursement claim solely in
Goodwin’s hands—the very person accusing him of sexual assault. And finally, it would
encourage employers to settle with third parties without admitting liability in order to


                                             14
insulate themselves from later claims under section 996.4. This cannot be—and, as we
have explained, is not—the scheme created by the Tort Claims Act.
       If we credit Daza’s allegation that no sexual assault occurred, as we must at the
demurrer stage, the evidence would show Goodwin came to his office and obtained
counseling from him in his capacity as a guidance counselor for the District. This is
precisely within Daza’s job duties, and therefore, within his scope of employment. He
has stated a claim for reimbursement of his defense costs under section 996.4 and the trial
court erred in concluding otherwise.6
                                     DISPOSITION
       The judgment is reversed. Appellant is entitled to costs on appeal.




                                                 FLIER, J.
WE CONCUR:




       BIGELOW, P. J.




       GRIMES, J.




6      Given our conclusion, we need not address Daza’s arguments that the trial court’s
ruling violates equal protection or that he should have been granted leave to amend.


                                            15
