                                                                           FILED
                            NOT FOR PUBLICATION                             JUN 16 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



MICHAEL C. HEFLIN, an individual,                No. 10-55287

              Plaintiff - Appellant,             D.C. No. 2:09-cv-07587-R-AJW

  v.
                                                 MEMORANDUM *
COUNTY OF LOS ANGELES, a public
entity Erroneously Sued As Los Angeles
County Sheriff’s Department; LEROY
BACA, an individual,

              Defendants - Appellees.



                    Appeal from the United States District Court
                       for the Central District of California
                     Manuel L. Real, District Judge, Presiding

                              Submitted June 9, 2011 **
                                Pasadena, California

Before: BEEZER, TROTT, and RYMER, Circuit Judges.

       While employed as a Los Angeles County Deputy Sheriff Robert Avery

McClain (“McClain”) allegedly assaulted plaintiff-appellant Michael C. Heflin

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
(“Heflin”). Heflin appeals the dismissal of his suit against the County of Los

Angeles (the “County”) and Sheriff Leroy Baca for failure to state a claim for the

state law torts of negligence and violation of mandatory statutory duties. We have

jurisdiction under 28 U.S.C. § 1291. Reviewing de novo, Harrell v. 20th Century

Ins. Co., 934 F.2d 203, 206 (9th Cir. 1991), we affirm.

      The facts are known to the parties; we do not repeat them.

      The County is not liable for McClain’s tortious actions pursuant to C AL.

G OV’T C ODE § 815.2(a) because McClain was not acting within the scope of his

employment. According to Heflin’s First Amended Complaint, the assault

occurred after McClain drove to another jurisdiction to confront Heflin about a

personal dispute. Because McClain “substantially deviate[d] from [his]

employment duties for personal purposes,” the County is not liable. Farmer Ins.

Grp. v. Cnty. of Santa Clara, 906 P.2d 440, 449 (Cal. 1995); see Van Ort v. Estate

of Stanewich, 92 F.3d 831, 840 (9th Cir. 1996) (holding a county was not liable for

“[t]he free-lance criminal exploits of a law enforcement officer”).

      The County is also not liable for its negligent hiring and supervision of

McClain. California common law holds private employers liable under such

theories. Doe v. Capital Cities, 50 Cal. App. 4th 1038, 1054 (1996). But “[i]n

California, a governmental entity can only be sued in tort pursuant to an


                                          2
authorizing statute or enactment.” Van Ort, 92 F.3d at 840. Heflin points to no

statutory language supporting a negligent hiring or supervision claim against a

public entity. Id. at 840-41; see also de Villers v. Cnty. of San Diego, 156 Cal.

App. 4th 238, 251-52, 260 (Cal. Ct. App. 2007).

      Finally, the defendants are not liable for failure to fulfill a mandatory duty

under C AL G OV’T C ODE § 815.6. “A plaintiff asserting liability under Government

Code section 815.6 must specifically allege the applicable statute or regulation.”

Brenneman v. California, 208 Cal. App. 3d 812, 817 (Cal. Ct. App. 1989) (internal

quotation marks omitted). None of the provisions that Heflin lists meets the

exacting requirements of § 815.6 liability. See In re Groundwater Cases, 154 Cal.

App. 4th 659, 689 (Cal. Ct. App. 2007).

      Los Angeles County Code § 2.34.060 and C AL G OV’T C ODE § 1031 are

“general declaration[s] of policy goals,” and “d[o] not impose a mandatory duty”

within the meaning of § 815.6. In re Groundwater Cases, 154 Cal. App. 4th at 692

(internal quotation marks omitted).

      Because C AL. P ENAL C ODE §§ 13510 and 13523 and C AL. C ODE R EGS tit.

11, § 9030(b)(1) impose duties only on the Commission on Peace Officer

Standards and Training, they cannot render the County liable. In re Groundwater

Cases, 154 Cal. App. 4th at 689. C AL. P ENAL C ODE § 13522 does require the


                                          3
County to include certain materials in its application to participate in the POST

program, but Heflin does not allege that the County failed to fulfill that duty.

      C AL. C ODE R EGS. tit. 11, § 9050 requires the County to “ensure that every

‘peace officer candidate’ . . . satisfies all minimum selection requirements.” But

the County has discretion to decide how to satisfy those standards. C AL. C ODE

R EGS. tit. 11, § 9053(b) (“The use of the [POST Background Investigation] manual

is discretionary. . . .”); see also C AL. C ODE R EGS. tit. 11, § 9054 (describing no

specific procedure for the psychological evaluation). As a result, these regulations

do not create the sort of ministerial duties that subject a public entity to § 815.6

liability. Haggis v. City of L.A., 993 P.2d 983, 987 (Cal. 2000) (“It is not enough

. . . that a public entity or officer have been under an obligation to perform the

function if the function itself involves the exercise of discretion.”).1

      AFFIRMED




      1
        Because the provisions to which Heflin points do not creates mandatory
duties, we do not reach the other elements of liability under § 815.6.

                                            4
