Filed 4/26/13




                           CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FIFTH APPELLATE DISTRICT

PAUL PERRY et al.,
                                                                    F063887
   Plaintiffs and Appellants,
                                                         (Super. Ct. No. 07CECG02501)
   v.

COUNTY OF FRESNO,                                       ORDER MODIFYING OPINION AND
                                                            DENYING REHEARING
   Defendant and Respondent.                              [NO CHANGE IN JUDGMENT]


THE COURT:
        It is ordered that the opinion filed herein on April 3, 2013, be modified by deleting
footnote 2 on page 9 in its entirety.

        There is no change in the judgment.

        Appellant‟s petition for rehearing is denied.


                                                                  _____________________
                                                                               Franson, J.
WE CONCUR:


 _____________________
Levy, Acting P.J.


 _____________________
Gomes, J.
Filed 4/3/13 (unmodified version)




                                CERTIFIED FOR PUBLICATION

             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                    FIFTH APPELLATE DISTRICT

PAUL PERRY et al.,
                                                                   F063887
   Plaintiffs and Appellants,
                                                       (Super. Ct. No. 07CECG02501)
   v.

COUNTY OF FRESNO,                                                OPINION
   Defendant and Respondent.


        APPEAL from a judgment of the Superior Court of Fresno County. Alan M.
Simpson, Judge.
        Law Office of Jacob M. Weisberg and Jacob M. Weisberg for Plaintiffs and
Appellants.
        Weakley & Arendt, Lelise M. Dillahunty and James D. Weakley for Defendant
and Respondent.
                                            -ooOoo-
                                        INTRODUCTION
        Appellants, Paul Perry, Felicia Davis Perry, and Orene Perry, challenge the
dismissal of their complaint against respondent, County of Fresno (County), following
the sustaining of the County‟s demurrer without leave to amend and the granting of the
County‟s summary judgment motion. Appellants alleged that the County was liable for
damages caused by the County‟s employee, Alejandro Vital when, in his capacity as a
correctional officer, Vital accessed information regarding various jail inmates and then
wrote fake letters to those inmates that were purportedly from Paul Perry. Vital wrote
these letters to provoke the inmates to retaliate against Perry and the other appellants and
thereby intimidate them into dropping a personal injury lawsuit they had filed against
Vital. The trial court ruled on demurrer that appellants had not stated a cause of action
for civil rights violations against the County for failure to train and supervise Vital and on
summary judgment that the County was not liable to appellants for Vital‟s tortious action
under the respondeat superior doctrine.
       Relying on Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202 (Mary M.),
appellants argue that the County is liable for damages arising from Vital‟s tortious
conduct because Vital was acting within the scope of his employment when he took
advantage of, and misused, his power and authority as a law enforcement officer.
Appellants further argue that the County deprived appellants of their constitutional rights
by failing to properly train and supervise Vital.
       As outlined below, the trial court correctly dismissed appellants‟ complaint. As a
matter of law, Vital was not acting within the scope of his employment when he wrote
fake letters to jail inmates and attributed them to Paul Perry. While Vital‟s employment
as a correctional officer gave him access to the necessary information, the act of writing
the letters was independent from his employment and purely personal. Further,
appellants did not establish an underlying constitutional violation related to the County‟s
official policy or custom. Accordingly, the judgment is affirmed.
                                     BACKGROUND
       Vital was employed by the County as a correctional officer. In 2005, Vital was
assigned to the position of records officer I at the county jail. As such, it was Vital‟s job
to process paperwork concerning jail inmates, including paperwork for the release of
inmates from custody and the transfer of inmates to other correctional facilities and
agencies. In order to perform these tasks, Vital had full access to the correctional
management computer system.

                                              2.
       In February 2005, Paul Perry and Felicia Davis Perry were injured in an
automobile accident involving a vehicle owned by Vital and driven by his stepson, Austin
Villa. In July 2005, the Perrys filed a personal injury lawsuit against Villa and Vital. In
August 2005, Vital was notified that he was obligated to pay the Perrys‟ medical bills,
because Vital‟s insurance company had refused to cover these expenses because Villa
was excluded on Vital‟s policy.
       In August 2005, Vital began writing false and threatening letters in an effort to
scare Paul Perry into dropping the lawsuit or leaving the area. Vital used his access to the
County‟s correctional management computer system to obtain the necessary information
and addresses.
       The first letter written by Vital was sent to Paul Perry and was purportedly from
Ralph Prickett, a county jail inmate. After the Perrys discovered who Ralph Prickett was,
they reported the letter to the sheriff‟s department. Thereafter, Sergeant John Copher
informed the Perrys that Prickett had been contacted and had denied knowing Paul Perry
or writing the letter.
       In March 2006, the Perrys‟ personal injury lawyer sent a letter to Vital offering to
settle the lawsuit against him for $390,000. Shortly thereafter, Paul Perry received a
phone call from Fresno High School informing him that the school had received an
anonymous letter. The author of this letter accused Perry of molesting him when he
played basketball at Fresno High while Perry was coaching. Perry denied these
allegations and obtained a copy of the letter and envelope.
       In April 2006, Paul Perry received a letter that had been addressed to a county jail
inmate but was returned to Perry‟s address as undeliverable. This letter, which was
purportedly written by Perry, contained racially inflammatory remarks directed toward
the inmate. Perry reported this letter and the prior incidents to a correctional officer with
whom Perry was previously acquainted and an investigation ensued.



                                              3.
       Thereafter, the mail room at the county jail was instructed to intercept any letters
that had Paul Perry‟s return address. Over the next month or so, five such letters
addressed to five different inmates were intercepted. Each letter contained racial and
other inflammatory comments directed toward the respective inmate.
       In June 2006, Paul Perry‟s cousin, Paul Espinoza, was confronted by members of a
street gang known as the Muhammad family. These gang members believed Espinoza
was Paul Perry. They stated they had been receiving letters from Paul Perry for the past
six months and were going to “„do a drive-by‟” at Orene Perry‟s house. Orene Perry is
Paul Perry‟s mother. After this event was reported to the investigating officers, these
officers learned that a letter addressed to a jail inmate, believed to be a member of the
Muhammad family, had recently been intercepted by the jail staff.
       Shortly thereafter, the investigating officers conducted recorded interviews with
Vital. Vital admitted to writing all of the letters to the jail inmates and to the members of
the Muhammad family, as well as the letter to Fresno High School. Vital stated that
when he was working in the records section of the jail, he found information about
dangerous inmates through the jail‟s computer system. Vital also confirmed Paul Perry‟s
addresses through this computer system.
       The County terminated Vital‟s employment. Vital was then criminally charged
with identity theft, using a computer system to commit fraud or extortion, and attempting
to prevent and dissuade a witness and victim from testifying. (Pen. Code, §§ 530.5, subd.
(a), 502, subd. (c), and 136.1, subd. (a)(2).) Vital was convicted of all three felonies on
his no contest plea.
       Appellants filed the operative third amended complaint against the County
alleging both state law tort and federal civil rights causes of action. The County
responded by demurrer. The trial court overruled the demurrer as to the tort claims for
intentional infliction of emotional distress and invasion of privacy, but sustained the
demurrer to the alleged civil rights violations. These claimed civil rights violations were

                                             4.
based on allegations that the County failed to properly train and supervise Vital and that
this failure was closely related to appellants‟ injuries. The court concluded that
appellants failed to set forth sufficient facts regarding both the alleged inadequacy of the
County‟s training program and how this alleged inadequacy was the proximate cause of
the harm suffered by appellants.
        Thereafter, the County moved for summary judgment on the tort causes of action.
The County argued that it could not be held vicariously liable for Vital‟s actions because
his conduct was outside the scope of his employment with the County.
        The trial court granted the motion. The court found that the underlying dispute
(the personal injury action and settlement demands), that led Vital to deviate from his job
duties by accessing confidential and official jail records to determine which inmates to
target with his letters, was not an “„outgrowth‟” of his employment. Further, the conduct
at issue did not involve any attempt to exercise authority over the public. Accordingly,
the court ruled that the County could not be held vicariously liable as a matter of law.
                                       DISCUSSION

   I.     THE TRIAL COURT PROPERLY GRANTED SUMMARY JUDGMENT ON
          APPELLANTS‟ TORT CAUSES OF ACTION.
        Since the tort causes of action for emotional distress and invasion of privacy were
dismissed following the grant of summary judgment, we review the trial court‟s ruling de
novo. (American Internat. Specialty Lines Ins. Co. v. Continental Casualty Ins. Co.
(2006) 142 Cal.App.4th 1342, 1357.) In doing so, we must strictly construe the
defendant‟s supporting documents and liberally construe the plaintiffs‟ documents and
determine whether the defendant has negated an essential element of the plaintiffs‟ cause
of action or established the nonexistence of any triable issue of material fact, such that the
defendant is entitled to judgment as a matter of law. (Baroco West, Inc. v. Scottsdale Ins.
Co. (2003) 110 Cal.App.4th 96, 99-100.)




                                              5.
       Under the respondeat superior doctrine, an employer is liable for the torts of its
employees committed within the scope of the employment. (Lisa M. v. Henry Mayo
Newhall Memorial Hospital (1995) 12 Cal.4th 291, 296 (Lisa M.).) An employee‟s
willful, malicious and even criminal torts may fall within the scope of his or her
employment, even though the employer did not authorize the employee to commit crimes
or intentional torts. (Id. at pp. 296-297.) Although the question of whether a tort was
committed within the scope of employment is ordinarily one of fact, it becomes one of
law where the undisputed facts would not support an inference that the employee was
acting within the scope of employment. (John R. v. Oakland Unified School Dist. (1989)
48 Cal.3d 438, 447.) The burden is on the plaintiff to prove that the employee‟s tortious
conduct was committed within the scope of employment. (Mary M., supra, 54 Cal.3d at
p. 209.)
       Despite the broad range of acts that may give rise to the imposition of vicarious
liability, before such liability will be imposed on the employer there must be a connection
between the employee‟s intentional tort and the employee‟s work. The tort in this case is
not simply the improper use of information obtained from the County‟s computer system,
but the use of that information by Vital for illegal personal purposes. The law is clear
that an employer is not strictly liable for all actions of its employees during working
hours. (Farmers Ins. Group v. County of Santa Clara (1995) 11 Cal.4th 992, 1004
(Farmers).) Rather, there must be a causal nexus between the tort and the employee‟s
work, i.e., the tort (the letters) must be engendered by or arise from the work. (Lisa M.,
supra, 12 Cal.4th at pp. 297-298.) “That the employment brought tortfeasor and victim
together in time and place is not enough.” (Id. at p. 298.) “„[B]ut for‟” causation is
insufficient. (Ibid.)
       For a causal nexus to exist “the incident leading to injury must be an „outgrowth‟
of the employment [citation]; the risk of tortious injury must be „“inherent in the working
environment”‟ [citation] or „“typical of or broadly incidental to the enterprise [the

                                             6.
employer] has undertaken [citation].”‟” (Lisa M., supra, 12 Cal.4th at p. 298.) In other
words, the risk of the tort must be a generally foreseeable consequence of the enterprise.
(Id. at p. 300.) If the employee acts out of personal malice unconnected with the
employment, the employee is not acting within the scope of employment. (Farmers,
supra, 11 Cal.4th at p. 1005.) The mere fact that an employee has an opportunity to
abuse facilities or authority necessary to the performance of that employee‟s duties does
not render the employer vicariously liable. (Id. at p. 1006.) A tort will not be considered
engendered by the employment unless its motivating emotions were fairly attributable to
work-related events or conditions. (Lisa M., supra, at p. 301.) An employee who abuses
job-created authority over others for purely personal reasons is not acting within the
scope of employment. (Farmers, supra, at p. 1013.)
       Here, Vital‟s dispute with appellants had absolutely no connection to Vital‟s
employment. The underlying events, the automobile accident and the resulting personal
injury action, were not work-related. While Vital‟s employment as a correctional officer
gave him access to the information he needed to carry out his fake letter writing scheme,
respondeat superior requires more than such “but for” causation. Vital wrote the fake
letters in an attempt to persuade the Perrys to drop their non-work-related personal injury
action against him. The motivation behind this scheme was not generated by, or an
outgrowth of, workplace responsibilities, conditions or events. Rather, Vital‟s endeavor
was purely personal. Accordingly, Vital‟s wrongful tort was outside the scope of his
employment.
       Appellants argue that the County is vicariously liable because Vital‟s misconduct
arose from his abuse of law enforcement authority. In support of their position,
appellants rely on Mary M.
       In Mary M., a uniformed police officer in a marked car detained the plaintiff, who
was driving alone, and gave her a field sobriety test. The plaintiff did not do well on the
test and pleaded with the officer to not take her to jail. In response, the officer ordered

                                              7.
the plaintiff to get in the front seat of the police car. The officer then drove the plaintiff
to her home where he raped her. (Mary M., supra, 54 Cal.3d at p. 207.)
       Under these facts, the California Supreme Court held that when “a police officer
on duty misuses his official authority by raping a woman whom he has detained, the
public entity that employs him can be held vicariously liable.” (Mary M., supra,
54 Cal.3d at p. 221.) To determine if the police officer was acting outside the scope of
employment, the court considered “whether „“in the context of the particular enterprise
[the] employee‟s 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.”‟” (Id. at
p. 214.)1 The court also considered whether imposing vicarious liability would further
the three policy justifications for the respondeat superior doctrine: “(1) to prevent
recurrence of the tortious conduct; (2) to give greater assurance of compensation for the
victim; and (3) to ensure that the victim‟s losses will be equitably borne by those who
benefit from the enterprise that gave rise to the injury.” (Id. at p. 209.)
       In applying this test, the Mary M. court observed that society has granted police
officers extraordinary power and authority over its citizenry and concluded that, in view
of this considerable power and authority, “it is neither startling nor unexpected that on
occasion an officer will misuse that authority by engaging in assaultive conduct.” (Mary
M., supra, 54 Cal.3d at p. 217.) However, the court expressly limited its holding and
stressed that its conclusion in Mary M. “flows from the unique authority vested in police
officers. Employees who do not have this authority and who commit sexual assaults may


1       As more clearly stated, “„the inquiry should be whether the risk was one “that may
fairly be regarded as typical of or broadly incidental” to the enterprise undertaken by the
employer. [Citation.]‟ [Citation.] Accordingly, the employer‟s liability extends beyond
his actual or possible control of the employee to include risks inherent in or created by
the enterprise. [Citation.]” (Perez v. Van Groningen & Sons, Inc. (1986) 41 Cal.3d 962,
968.)



                                               8.
be acting outside the scope of their employment as a matter of law.” (Id. at p. 218, fn.
11.)
       In later cases, the California Supreme Court has continued to limit Mary M. to its
specific facts. In Farmers, the court noted that Mary M. “did not suggest that an
employer may be vicariously liable for an employee‟s misconduct whenever there is an
abuse of a job-created, hierarchical relationship in which the employee is afforded a high
degree of authority over the victim.” (Farmers, supra, 11 Cal.4th at pp. 1012-1013.)
Rather, the liability in Mary M. flowed “„from the unique authority vested in police
officers.‟” (Id. at p. 1013.) Similarly, in Lisa M., the court explained that “[w]hile a
police officer‟s assault may be foreseeable from the scope of his unique authority over
detainees, we are unable to say the same of an ultrasound technician‟s assault on a
patient.” (Lisa M., supra, 12 Cal.4th at p. 304.)
       Appellants argue they fall within Mary M. because Vital‟s misconduct arose from
the abuse of his authority as a law enforcement officer. The County counters that Vital
was a correctional officer, not a law enforcement officer. However, whether Vital is
classified as a law enforcement officer or not is immaterial. The power or privilege that
Vital abused, i.e., his access to the correctional management computer system, is totally
different from the unique and formidable power and authority police officers have over
members of the public or people under their control. Vital had no authority or control
over appellants. As courts have noted, “„police officers [exercise] the most awesome and
dangerous power that a democratic state possesses with respect to its residents -- the
power to use lawful force to arrest and detain them.‟” (Mary M., supra, 54 Cal.3d at p.
216.) This is not the case with a correctional officer who processes paperwork and has
access to a jail computer system.2 Rather in this context, the criminal conduct underlying
2     At oral argument, appellant‟s counsel admitted there was no practical difference
between gathering the inmate information from the jail‟s computer system and from files
maintained in jail file cabinets.


                                             9.
appellants‟ action, namely the illegal act of writing the letters using the information
gathered from the jail computer system for totally non-work-related purposes, must be
considered unusual or startling.
       Further, the three policy justifications for the respondeat superior doctrine do not
justify holding the County vicariously liable. Although vicarious liability would give
greater assurance of compensation for appellants, the victims, it would not act to prevent
recurrence of the tortious conduct. Vital needed access to the information contained in
the correctional management computer system to do his job. The County already has
policies in place that prohibit the dissemination or malicious access of this information
and subject an employee to termination for misuse of the information. Thus, it is unlikely
that the adoption of vicarious liability in this situation would be beneficial. (Cf. Lisa M.,
supra, 12 Cal.4th at p. 304.) The third policy consideration--- ensuring that the victim‟s
losses will be equitably borne by those who benefit from the enterprise, is merely another
way of asking “whether the employee‟s conduct was „so unusual or startling that it would
seem unfair to include the loss resulting from it among other costs of the employer‟s
business.‟” (Id. at p. 305.) As discussed above, Vital‟s endeavor was entirely personal
and, in the context of Vital‟s job, his conduct was unusual and startling.
       Appellants‟ reliance on McDade v. West (9th Cir. 2000) 223 F.3d 1135 (McDade),
is also misplaced. In McDade, a county employee illegally used a confidential database
that she had access to through her employment to find the address of her husband‟s ex-
wife, who was secretly living at a women‟s shelter for her protection from an unrelated
third party. Using the confidential address, the employee‟s husband then served papers
on his ex-wife at that address. The court held that the employee who accessed the
confidential information was acting “under color of state law” and therefore the ex-wife
could pursue her 42 U.S.C. section 1983 (section 1983) action. (McDade, supra, at
p. 1141.)



                                             10.
       In contrast here, the issue is not whether Vital was acting under color of state law
when he illegally obtained information from the jail‟s computer system, but whether
Vital was acting within the scope of his employment when he committed the later
intentional torts. An act under color of state law requires that the officer be acting,
purporting, or pretending to act in the performance of his or her official duties. (McDade,
supra, 233 F.3d at p. 1140.) The misconduct underlying appellants‟ complaint was not
Vital‟s act of accessing the confidential information in the performance of his official
duties, but the act of writing and mailing the fraudulent letters.
       In sum, Vital‟s tortious conduct was not an outgrowth of his employment. It was a
personal endeavor that was totally unrelated to his job. That the employment gave Vital
access to information needed to carry out his scheme is insufficient to create a causal
nexus between the tort and Vital‟s work. Accordingly, Vital‟s acts fell outside the scope
of his employment. Because the material facts are undisputed, the trial court correctly
found the County was not vicariously liable as a matter of law.

   II. THE TRIAL COURT PROPERLY SUSTAINED THE COUNTY‟S
       DEMURRER TO THE THIRD CAUSE OF ACTION ALLEGING CIVIL
       RIGHTS VIOLATIONS.
       Because we are reviewing a ruling on a demurrer, our only task is to determine
whether the properly pleaded material facts state a cause of action against the County for
civil rights violations as a matter of law. (Gentry v. eBay, Inc. (2002) 99 Cal.App.4th
816, 824.)
       Appellants contend that the third cause of action properly sets forth a section 1983
cause of action against the County under Monell v. New York City Dept. of Social
Services (1978) 436 U.S. 658 (Monell). Section 1983 imposes civil liability on a person
acting under color of state law who deprives a person of a federal constitutional or
statutory right. (Cooper v. Dupnik (9th Cir. 1991) 924 F.2d 1520, 1526.) In Monell, the
court held that a government entity could not be sued under section 1983 for an injury


                                             11.
inflicted solely by its employees or agents. “Instead, it is when execution of a
government‟s policy or custom, whether made by its lawmakers or by those whose edicts
or acts may fairly be said to represent official policy, inflicts the injury that the
government as an entity is responsible under [section] 1983.” (Monell, supra, at p. 694.)
       Four conditions must be satisfied in order to establish government liability for
failing to act to preserve a constitutional right under Monell. The plaintiff must establish
that: (1) the plaintiff was deprived of a constitutional right; (2) the government entity had
a policy; (3) this policy amounted to deliberate indifference to the plaintiff‟s
constitutional right; and (4) the policy was the moving force behind the constitutional
violation. (Van Ort v. Estate of Stanewich (9th Cir. 1996) 92 F.3d 831, 835.)
       In their section 1983 cause of action against the County, appellants allege that the
County‟s training and supervision policies amounted to deliberate indifference to the
constitutional rights of persons with whom its peace officers were likely to come in
contact. Specifically, appellants allege that the County did not supervise its employees to
insure that the confidential information contained in the County‟s computers was not
misused to violate the civil rights of individuals. Appellants further contend that the
County‟s failure to discipline Sergeant Copher after Copher failed to properly conduct an
investigation into the allegations of Vital‟s wrongdoing evidenced a failure to train and
supervise Copher. According to appellants, if the County had properly trained and
supervised its peace officers, appellants‟ constitutional injury would have been avoided.
       However, appellants‟ section 1983 cause of action against the County does not
allege what constitutional right the County violated. An award of damages against a
government entity in a Monell action requires constitutional harm. (City of Los Angeles
v. Heller (1986) 475 U.S. 796, 799.) Based on the absence of this element of a Monell
claim, the trial court properly sustained the County‟s demurrer to the section 1983 cause
of action.



                                              12.
       On appeal, appellants argue the underlying constitutional violation was their right
to access to the courts without intimidation or threat from individuals acting under color
of law. However, appellants do not claim that they were in fact denied access to the
courts. While Vital attempted to intimidate appellants into dropping their personal injury
action, there is no indication that appellants did so.
       Moreover, appellants‟ access to the courts to prosecute their civil action is not
constitutionally protected. The right to access to the courts under the Due Process Clause
assures that no person will be denied the opportunity to present to the judiciary
allegations concerning violations of fundamental constitutional rights. (Wolff v.
McDonnell (1974) 418 U.S. 539, 579.) Appellants were pursuing state tort claims against
Vital for personal injuries. Violations of duties of care arising out of tort law are not
violations of rights protected by the Constitution. (Baker v. McCollan (1979) 443 U.S.
137, 146.) Thus, appellants have not met their burden of demonstrating how the defect in
their complaint could be cured.
                                       DISPOSITION
       The judgment is affirmed. Costs on appeal are awarded to respondent.

                                                                  _____________________
                                                                               Franson, J.
WE CONCUR:


 _____________________
Levy, Acting P.J.


 _____________________
Gomes, J.




                                              13.
