Filed 7/26/16 Doe v. Regents of University of California CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                 DIVISION THREE


JANE DOE,

     Plaintiff and Appellant,                                          G051379

         v.                                                            (Super. Ct. No. 30-2014-00701262)

REGENTS OF UNIVERSITY OF                                               OPINION
CALIFORNIA,

     Defendant and Respondent.


                   Appeal from a judgment of the Superior Court of Orange County, Peter J.
Wilson, Judge. Affirmed.
                   Law Offices of Thomas Y. Barclay, Thomas Y Barclay; Law Offices of
Jeffrey A. Coleman and Jeffrey A. Coleman for Plaintiff and Appellant.
                   Nye, Peaboy, Stirling, Hale & Miller, Jonathan D. Miller and Holly C.
Blackwell for Defendant and Respondent.


                                             *               *               *
              Plaintiff Jane Doe appeals from the judgment entered after the trial court
sustained the demurrer of defendant the Regents of the University of California to
plaintiff’s second amended complaint without leave to amend. She contends the court
erred by relying on John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438 (John
R.) in concluding defendant bore no respondeat superior liability for the sexual
misconduct of its employee. The court did not err. We affirm the judgment.


                    FACTS AND PROCEDURAL BACKGROUND
              According to the allegations of the second amended complaint, plaintiff
was an undergraduate student attending the University of California, Santa Barbara
(UCSB) when she was sexually assaulted by Jeffrey Beckstrand, a graduate student and
teaching assistant employed by UCSB. Plaintiff knew Beckstrand from a class she had
previously taken in which he was the teaching assistant.
              On the date of the assault, plaintiff encountered Beckstrand on campus and
requested his assistance in writing a paper for one of her current classes. He agreed and
they arranged to meet, that night, at an on-campus location. They met at 9:00 p.m., and
thereafter went back to Beckstrand’s on-campus office to continue their meeting. Once
there, Beckstrand sexually assaulted plaintiff while telling her that he had a knife and
striking her in the face to force compliance.
              Plaintiff sued defendant for sexual battery, sexual assault, premises
liability, negligence, and infliction of emotional distress. After several demurrers and
amendments, plaintiff filed a second amended complaint, limiting her claims against
defendant to vicarious liability for Beckstrand’s sexual battery and sexual assault.
              Defendant demurred to that complaint based on a “long line of precedent
establishing that sexual misconduct falls outside the course and scope of employment and
should not be imputed to the employer.” The court sustained the demurrer “without leave
to amend, because an employee like co-defendant Beckstrand is not acting within the

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course and scope of his employment when committing a sexual assault and/or sexual
battery. Plaintiff’s opposition neither requested further leave to amend, nor explained
what additional facts could be alleged to state a valid cause of action . . . .”


                                        DISCUSSION


Standard of Review
              On appeal from a judgment dismissing a complaint after the sustaining of a
demurrer without leave to amend, we independently review the pleading to determine
whether the facts alleged state “a cause of action under any possible legal theory.”
(Aubry v. Tri–City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) Plaintiff did not seek
leave to amend in the trial court, and does not request it on appeal.


The Court Correctly Sustained the Demurrer Without Leave to Amend
              Plaintiff contends Beckstrand was acting within the course and scope of his
employment with defendant when he sexually assaulted her and thus the court erred in
sustaining defendant’s demurrer to her second amended complaint without leave to
amend. We disagree.
              The law is settled that defendant cannot be held liable for Beckstrand’s
sexual misconduct under a theory of respondeat superior because it was outside the scope
of his employment as a teacher’s assistant. (C.A. v. William S. Hart Union High School
Dist. (2012) 53 Cal.4th 861, 865; John R., supra, 48 Cal.3d at pp. 451-452.) Cases
outside of the school context have also deemed “vicarious liability . . . inappropriate
where the misconduct does not arise from the conduct of the employer’s enterprise but
instead arises out of a personal dispute [citation], or is the result of a personal
compulsion [citation]. In such cases, the risks are engendered by events unrelated to the
employment, so the mere fact that an employee has an opportunity to abuse facilities or

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authority necessary to the performance of his or her duties does not render the employer
vicariously liable.” (Farmers Ins. Group v. County of Santa Clara (1995) 11 Cal.4th
992, 1006, italics added.) Our high court’s survey of cases addressing the issue revealed
“that, except where sexual misconduct by on-duty police officers against members of the
public is involved [citations], the employer is not vicariously liable to the third party for
such misconduct [citations]. In those decisions, vicarious liability was rejected as a
matter of law because it could not be demonstrated that the various acts of sexual
misconduct arose from the conduct of the respective enterprises. In particular, the acts
had been undertaken solely for the employees’ personal gratification and had no purpose
connected to the employment.” (Id. at pp. 1006-1007; see Juarez v. Boy Scouts of
America, Inc. (2000) 81 Cal.App.4th 377, 394 [citing cases holding that “sexual
misconduct falls outside the course and scope of employment and should not be imputed
to the employer” “under the doctrine of respondeat superior”].)
              Plaintiff seeks to avoid this conclusion by attempting to distinguish John
R., supra, 48 Cal.3d 438, the seminal case discussing respondeat superior liability for the
sexual misconduct by a school employee. Plaintiff contends her case should be decided
differently because (1) defendant’s system is larger than any California school district,
(2) the alleged assault in John R. occurred in the teacher’s off-campus apartment during
the student’s participation in an extracurricular activity, whereas the alleged assault here
occurred in Beckstrand’s on-campus office provided by defendant, and (3) students in
school districts are usually 18 years old or younger and students in defendant’s system
are normally older. Plaintiff also claims the public policy analysis addressed in John R.
weighs in favor of imposing vicarious liability on defendant. Plaintiff’s attempt to
distinguish John R. is meritless.
              In John R., the Supreme Court considered three reasons that “‘have been
suggested for imposing liability on an enterprise for the risks incident to the enterprise:
“(1) [I]t tends to provide a spur toward accident prevention; (2) it tends to provide greater

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assurance of compensation for accident victims[;] and (3) at the same time it tends to
provide reasonable assurance that, like other costs, accident losses will be broadly and
equitably distributed among the beneficiaries of the enterprises that entail them.”’” (John
R., supra, 48 Cal.3d at p. 451.)
              The John R. court noted the first factor “plays little role in the allocation of
responsibility for the sexual misconduct of employees generally, and with respect to the
unique situation of teachers, indicates that untoward consequences could flow from
imposing vicarious liability on school districts. Although it is unquestionably important
to encourage both the careful selection of these employees and the close monitoring of
their conduct, such concerns are, we think, better addressed by holding school districts to
the exercise of due care in such matters and subjecting them to liability only for their own
direct negligence in that regard.” (John R., supra, 48 Cal.3d at p. 451; see Z.V. v. County
of Riverside (2015) 238 Cal.App.4th 889, 902 (Z.V.) [“consideration of protective
measures ultimately runs up against the fundamentally intentional nature of sexual
assault”].)
              Against this authority, plaintiff argues that imposing respondeat superior
liability here would help meet the first goal because it would encourage defendant to
develop safety measures, such as limiting when teaching assistants may have students in
their on-campus offices and providing education for faculty and students about on-
campus sexual assaults. We are not persuaded. As in John R., promoting safety rules
and educating students about the possibility of on-campus sexual assaults are issues better
addressed by subjecting defendant to liability for its own direct negligence, not by
imposing vicarious liability for conduct by an employee having no purpose connected to
the employment. And limiting when teaching assistants may confer with students may
“deter [universities] from encouraging, or even authorizing . . . one-on-one contacts
between teachers [or their assistents] and students or to induce [universities] to impose
such rigorous controls on activities of this nature that the educational process would be

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negatively affected.” (John R., supra, 48 Cal.3d at p. 451.) The rationale is the same
whether applied to school districts or universities despite the differences in the ages of the
students, as the same “untoward consequences could flow from imposing vicarious
liability” (ibid.) in either situation. Moreover, as defendant notes, although “[c]ase law
has occasionally recognized a distinction between a public school district and a
University tasked with educating adults . . . this difference has never resulted in the
imposition of greater liability on the” latter. Rather, the contrary is true, as “exceptions
have been created to impose liability on a public school district for the criminal acts of
third parties due to the special relationship between the school and its minor students.”
(Compare Rodriguez v. Inglewood Unified School Dist. (1986) 186 Cal.App.3d 707, 723
[acknowledging the special relationship between a school and its minor students] with
Tanja H. v. Regents of University of California (1991) 228 Cal.App.3d 434; Crow v.
State of California (1990) 222 Cal.App.3d 192 [rejecting claims by college students
seeking to place liability on their schools for criminal assaults by third parties].)
              Plaintiff claims that unlike John R., in which a minor alleged he was
sexually molested by his teacher while participating in a sanctioned extracurricular
program at the teacher’s home, her case does not involve an extracurricular activity but a
sexual assault occurring while she was receiving assistance from a teaching assistant in
his office. But “‘[i]f 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.’” (Farmers Ins. Group v. County of Santa Clara, supra, 11 Cal.4th
at p. 1005, citing Alma W. v. Oakland Unified School Dist. (1981) 123 Cal.App.3d 133,
140 [“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” and [t]he mere fact that an employee has the opportunity to abuse facilities



                                               6
necessary to the performance of his duties does not render an employer vicariously liable
for the abuse].)
              In discussing the second factor, John R. concluded that assuring
compensation was not “appropriately invoked” because the “acts here differ from the
normal range of risks for which costs can be spread and insurance sought. [Citation.]
The imposition of vicarious liability on school districts for the sexual torts of their
employees would tend to make insurance, already a scarce resource, even harder to
obtain, and could lead to the diversion of needed funds from the classroom to cover
claims.” (John R., supra, 48 Cal.3d at p. 451.)
              Plaintiff argues this concern does not exist in her case because the
university system presumptively generates greater revenue and has no problems obtaining
insurance in comparison to a local school district. But as we explained in Z.V., supra,
238 Cal.App.4th 889, the idea of “assuring compensation . . . is really nothing more than
a conclusion. Respondeat superior always helps to assure victim compensation, if only
by bringing in another — usually deeper — pocket to provide that compensation. By
itself, assuring victim compensation is nothing more than a statement of a desired result,
not a means of analysis. The real question is whether, under California law, the
employer’s presumably deeper pocket should have to bear the loss of an employee’s tort,
and that question requires an analysis of the nexus between the employer’s enterprise, the
employee’s scope of employment, and the nature of the underlying tort itself. In fact,
carried to its logical conclusion, the goal of ‘assuring victim compensation’ could be
readily accomplished by abolishing the law of torts altogether and substituting some sort
of no-fault scheme for all losses.” (Id. at p. 901.)
              Finally, although in John R., supra, Cal.3d 438, the court believed “the
propriety of spreading the risk of loss among the beneficiaries of the enterprise” (id. at
pp. 451-452), may weigh in favor of imposing vicarious liability, it noted that “the
connection between the authority conferred on teachers to carry out their instructional

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duties and the abuse of that authority to indulge in personal, sexual misconduct is simply
too attenuated to deem a sexual assault as falling within the range of risks allocable to a
teacher’s employer. It is not a cost this particular enterprise should bear, and the
consequences of imposing liability are unacceptable” (id. at p. 452). Also instructive is
the Z.V. court’s observation that the idea of “spreading the loss . . . is likewise unhelpful
in ascertaining respondeat superior liability. . . . Of all torts, sexual assault is about the
least amenable to risk spreading via insurance because of its ‘inseparably intentional’
nature.” (Z.V., supra, 238 Cal.App.4th at p. 901.) We agree and thus reject plaintiff’s
claim that because defendant “governs a much larger enterprise than a school district
[it is] more appropriately situated to distribute the risk . . . .”


                                         DISPOSITION


               The judgment is affirmed. Defendant shall recover its costs on appeal.




                                                     IKOLA, J.

WE CONCUR:



MOORE, ACTING P. J.



THOMPSON, J.




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