Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. BS103219, Dzintra Janavs, Judge. Affirmed.
Jasper Ayala, in propria persona, for Plaintiff and Appellant.
Edmund G. Brown, Jr., Attorney General, David S. Chaney, Chief Assistant Attorney General, James M. Schiavenza, Assistant Attorney General, Pamela J. Holmes and Doug Knoll, Deputy Attorneys General, for Plaintiff and Respondent.
WILLHITE, J.
INTRODUCTION
Government Code section 995 requires a public entity to provide a defense when a public employee is sued based on an act committed within the scope of employment. Section 995.2 sets forth the circumstances in which the public entity may refuse to provide for such a defense. These include conduct outside the scope of employment, conduct involving actual malice, or creation of a conflict of interest between the employer and employee were representation to be given.
All undesignated statutory references are to the Government Code.
In this case, a correctional officer forced an inmate to engage in oral copulation. The officer ultimately resigned from his position and pled nolo contendere to two felonies arising out of the sexual assault. The inmate sued the officer who, in turn, requested his employer to provide him with a defense. The employer declined. The officer then filed a petition for a writ of mandate (Code Civ. Proc., § 1085) to compel the employer to provide representation in the inmate’s action. The trial court denied the petition. This appeal follows. We affirm, concluding that the employer’s decision to not provide counsel was not an abuse of discretion.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant Jasper Ayala worked as a correctional officer at the California Institution for Women in Corona. On April 21, 2002, Ayala forced C.S., a female inmate, to orally copulate him. Immediately after the assault, C.S. returned to her dormitory and spat up Ayala’s semen into a plastic bag. Two days later, C.S. complained about the incident and gave the investigating officer the semen sample. A subsequent DNA test showed a positive match to Ayala.
On June 6, 2002, the Department of Corrections and Rehabilitation (DCR) placed Ayala on administrative leave. Ayala eventually resigned with disciplinary action pending.
On August 14, 2002, the District Attorney filed a felony complaint charging Ayala with oral copulation in a correctional facility (Pen. Code, § 288a, subd. (e)) and sexual activity between a corrections officer and a confined adult (Pen. Code, § 289.6, subd. (a)(3)). In May 2005, Ayala, represented by counsel, pled nolo contendere to both charges.
Meanwhile, C.S. filed a civil rights action against Ayala in federal court predicated upon allegations of forcible oral copulation. Ayala requested DCR to provide him with representation to defend against that action. DCR declined, finding that each of the exceptions found in section 995.2 to the duty to provide representation applied.
C.S. also named as defendants eight other individuals employed by DCR.
In a letter to Ayala, DCR explained: “The plaintiff [C.S.] alleges that you forced her to orally copulate you. The Department conducted an investigation and found that you forced [her] to orally copulate you. This finding was based in part upon physical evidence received from [her] that [she] claimed contained your semen and her saliva. The Department of Justice’s DNA Laboratory analyzed the evidence and concluded that the sample matched [her] and that there was strong evidence that you contributed to the DNA that was collected. Given this DNA evidence, it appears that the plaintiff orally copulated you. By participating in these actions, you acted beyond the scope of your employment. Also, these actions violate Penal Code section 289.6, which prohibits public entity employees from engaging in sexual activity with a confined adult. To the extent you forced yourself on [her] against her will, you also acted with actual malice. In addition, providing you with a defense in the case would create a specific conflict of interest between you and the CDC given that the CDC would have to defend your criminal conduct. A conflict also exists by virtue of the fact that your actions toward the plaintiff violate the Department’s policy that prohibits sexual activity with inmates.”
Ayala filed a petition for a writ mandate in the superior court to compel DCR to provide him with a defense in the federal action. The trial court denied the petition. It explained, in relevant part:
“By using the phrase ‘may refuse,’ [section 995.2] expressly vests discretion in the public entity to decide whether to provide a defense in civil action. In the 10/24/03 letter, the Department explained that the Department of Justice’s DNA laboratory analysis revealed ‘strong evidence’ that [Ayala] copulated with [C.S.]. By engaging in such actions, [Ayala] not only acted beyond the scope of his employment, but also violated Penal Code § 289.6. The Department also denied [Ayala’s] request [for legal representation] on the grounds of ‘actual malice,’ to the extent [he] forced himself on [C.S.] against her will. Lastly, the Department points to the conflict of interest that would be created between [Ayala] and the Department were the Department required to defend criminal conduct that violated Department policy. Thus, the Department considered [Ayala’s] request, and made a reasonable determination that subdivisions (1), (2) and (3) all applied in the instant case. . . . Substantial evidence supports the Department’s reasonable determination that [Ayala] acted beyond the scope of his employment and with actual malice when he engaged in oral copulation with [C.S.].”
This appeal by Ayala follows.
DISCUSSION
Section 995 provides that upon request of a former employee, “a public entity shall provide for the defense of any 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.” Three exceptions to the duty to provide a defense are found in section 995.2. Subdivision (a) of that statute provides:
Section 995.4 provides two further exceptions. Neither is applicable to this case.
“(a) A public entity 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. For the purposes of this section, ‘specific conflict of interest’ means a conflict of interest or an adverse or pecuniary interest, as specified by statute or by a rule or regulation of the public entity.” (Italics added.)
Section 995.2’s use of the word “may” establishes that DCR had the discretion to decline Ayala’s request for representation based upon its conclusion that any of the statute’s exceptions to the duty to provide a defense applied. (See County of Sacramento v. Superior Court (1971) 20 Cal.App.3d 469, 472 [“may” connotes discretionary action].) “Where the public entity refuses to defend, the employee can seek a writ of mandate, as [Ayala] did.” (Stone v. Regents of University of California (1999) 77 Cal.App.4th 736, 746.) In that circumstance, judicial review is deferential to the contested decision. “Ordinary mandate is used to review an adjudicatory decision when an agency is not required to hold an evidentiary hearing. [Citation.] The scope of review is limited, out of deference to the agency’s authority and presumed expertise: ‘The [trial] court may not reweigh the evidence or substitute its judgment for that of the agency [here, DCR]. . . . “A court will uphold the agency action unless the action is arbitrary, capricious, or lacking in evidentiary support.”’” (Id. at p. 745.) As a reviewing court, we apply the same standard as the trial court. We determine whether DCR’s decision was arbitrary or lacking in evidentiary support. (Id. at pp. 745-746.) As we shall now explain, DCR’s decision to deny representation based upon its finding that Ayala had acted with actual malice is supported by the evidence.
As used in this statutory scheme, the phrase “actual malice” means “‘personal animosity, malevolence, ill will, or deliberate wrongful intent on the part of the employee.’” (Allen v. City of Los Angeles (9th. Cir. 1996) 92 F.3d 842, 848, relying upon the analysis found in A. Van Alstyne, California Government Tort Liability Practice (1980), app. 781.) “‘[D]eliberate wrongful intent’ must be judged objectively from the visible conduct of the [employee]. [Citations.]” (Allen v. City of Los Angeles, supra, 92 F.3d at p. 851.)
Here, the civil lawsuit alleges that Ayala abused his position of authority as a guard to force C.S. to orally copulate him, conduct which she alleged violated “both the law and CDC policies with respect to inappropriate sexual relations and contact with prisoners.” Ayala admitted that conduct when he pled nolo contendere to two felonies, thereby establishing that he unlawfully intended to and did have sexual relations with C.S. It therefore follows that Ayala’s actions were done with “deliberate wrongful intent.” Consequently, DCR’s decision to deny representation was not an abuse of discretion and the trial court properly denied Ayala’s petition to overturn that decision.,
Ayala’s written plea includes the acknowledgment: “I understand that a plea of no contest is the same as a plea of guilty in this criminal case and for all purposes has the same consequences as a plea of guilty and can be used against me in a civil lawsuit.”
Because the record supports DCR’s decision not to provide representation based upon its finding of actual malice, there is no need for us to consider whether the decision could also be upheld on the basis that Ayala acted outside the scope of employment. In this context, the phrase “scope of employment” is co-extensive with the concept of vicarious liability based upon respondeat superior. (Farmers Ins. Group v. County of Santa Clara (1995) 11 Cal.4th 992, 1003.) The general principle is that there is no vicarious liability for an employee’s sexual assault. (Id. at pp. 1007 & 1013; see also Doe 1 v. City of Murietta (2002) 102 Cal.App.4th 899, 907-910; and John Y. v. Chaparral Treatment Center, Inc. (2002) 101 Cal.App.4th 565, 575.) The one exception to that rule is sexual misconduct by on-duty police officers against members of the public. (Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202.)
Pursuant to section 996.4, Ayala can fund his own defense in C.S.’s action and then sue DCR to recover his reasonable attorney fees and costs. In that instance, Ayala will bear the burden of proving his tortious conduct was within the scope of his employment. (Stone v. Regents of University of California, supra, 77 Cal.App.4th at p. 746.) Even then, recovery will be barred if DCR establishes Ayala acted with “actual fraud, corruption or actual malice.” (§ 996.4.)
Ayala argues against this conclusion by claiming that section 995.2 is in conflict with other statutory provisions. He first cites section 825, subdivision (a) which addresses the employer’s duty to pay a judgment or settlement if the employer has, in fact, defended the employee and the employee has cooperated in good faith with the defense. That statute is inapplicable. The crux of the dispute here is DCR’s decision not to provide representation to Ayala, not its refusal to pay after having represented him. Ayala next cites section 996.6 which simply provides: “The rights of an employee or former employee under this part [the Tort Claims Act] are in addition to and not in lieu of any rights he may have under any contract or under any other enactment providing for his defense.” This statutory provision adds nothing to Ayala’s argument.
The statutory provision also addresses the employer’s options if it has agreed to provide a defense with a reservation of rights.
DISPOSITION
The judgment is affirmed.
We concur: EPSTEIN, P. J., SUZUKAWA, J.
Similarly, there is no reason to evaluate DCR’s conclusion that providing representation to Ayala would create a conflict of interest.