Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 70248
ROBIE , J.
Plaintiff J. Doe was a patron at the law library of defendant Nevada County Consolidated Court (the court). Lucifer Mellado was a law librarian at the court from whom Doe sought assistance while “handling her own family law and restraining order matters.” Over a three-month period, Doe received “obscene, sexually harassing, mail” that she eventually recognized was from Mellado. When she confronted him, he admitted sending the letters.
Doe sued Mellado, the court, and the court’s executive officer Sean Metroka for damages alleging, among other things: (1) “violence or intimidation based upon sex”; (2) sexual harassment; (3) negligent hiring, training, supervising, and retaining of Mellado; and (4) intentional infliction of emotional distress.
On appeal Doe is not “seek[ing] relief” as to Mellado because “he was, and is, without funds to pay a judgment.”
We will refer to the court and Metroka collectively as defendants.
After allowing two amendments to the original complaint, the trial court sustained defendants’ demurrer to the second amended complaint without leave to amend and entered a judgment of dismissal. From this judgment, Doe filed a timely notice of appeal.
On appeal, Doe contends the trial court erred as a matter of law in sustaining the demurrer and abused its discretion in failing to allow leave to amend her complaint to attach the 11 pieces of mail. We conclude the court properly sustained the demurrer, except as to the third cause of action where Doe pleaded sufficient facts for negligent supervision. Accordingly, we shall reverse.
FACTUAL AND PROCEDURAL BACKGROUND
On review from the trial court’s action sustaining a demurrer, we treat the demurrer as admitting all properly-pleaded material facts in the complaint, but do not assume the truth of the contentions, deductions, or conclusions of fact or law. (Tilbury Constructors, Inc. v. State Comp. Ins. Fund (2006) 137 Cal.App.4th 466, 471.) Applying this standard of review, Doe’s second amended complaint alleged the following:
From February 2003 to August 2003, Doe “was acting In Propia Persona . . . handling her own family law and restraining order matters.” During that time, she “sought the assistance” of court law librarian Mellado “on her legal case(s).” While providing “legal assistance” to Doe, Mellado learned confidences from her, including that she “suffered from medical conditions and/or disabilities which resulted in her being terrified, upset and vulnerable by, and to, misconduct by males.” Although Mellado was not a lawyer, he previously had “consult[ed] with members of the public who were using the Law Library . . . by preparing legal forms for them.”
On or about August 26, 2003, Doe began receiving anonymous “obscene, sexually harassing” mail at her post office box in Nevada County. She received a total of 11 pieces of this type of mail through November 2003. On or about November 22, 2003, after recognizing Mellado’s writing on one of the letters, Doe confronted Mellado, and he admitted to sending the anonymous mail.
The record does not contain copies of the letters and their contents do not appear in the record.
After learning that Mellado was the one who had sent the mail, the court allowed him to remain as its librarian. Doe was “emotionally and mentally unable to use the accommodations . . . even though she had ongoing legal matters which required that she do so, and she did not use [the library] after gaining such knowledge.”
DISCUSSION
I
Standard Of Review
“A demurrer tests the legal sufficiency of the complaint.” (Hernandez v. City of Pomona (1996) 49 Cal.App.4th 1492, 1497.) On review of an order sustaining a demurrer without leave to amend, our initial standard of review is de novo, “i.e., we exercise our independent judgment about whether the complaint states a cause of action as a matter of law.” (Montclair Parkowners Assn. v. City of Montclair (1999) 76 Cal.App.4th 784, 790.) In analyzing the complaint, we “give[] the complaint a reasonable interpretation, and treat[] the demurrer as admitting all material facts properly pleaded.” (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.) If the complaint fails to state a cause of action, we then review the court’s decision not to allow the plaintiff leave to amend under the abuse of discretion standard. “[I]t is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment.” (Ibid.)
II
Doe Has Not Alleged Sufficient Facts To Overcome The Demurrer As To The First, Second, And Fourth Causes Of Action
In her first, second, and fourth causes of action, Doe alleged defendants’ liability based on violence or intimidation on grounds of sex, sexual harassment, and intentional infliction of emotional distress. In the trial court and on appeal, defendants contend they are not liable for Mellado’s actions as a matter of law because he was acting outside the scope of his employment. We agree.
Under the doctrine of respondeat superior, “an employer is vicariously 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.).) “Ordinarily, the determination whether an employee has acted within the scope of employment presents a question of fact; it becomes a question of law, however, when ‘the facts are undisputed and no conflicting inferences are possible.’” (Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 213.)
For the employer to be liable for an employee’s torts, the employee’s act must have a “causal nexus to the employee’s work.” (Lisa M., supra, 12 Cal.4th at p. 297.) An injury arising out of a work-related dispute has such a causal nexus, while an injury inflicted out of the employee’s personal malice, not engendered by the employment, does not. (Id. at pp. 297-298.) The nexus must be more than “‘but for’” causation for an act to be engendered by the employment. (Id. at p. 298.) The incident must involve an act which is “‘an outgrowth’ of the employment,” a risk which is “‘“inherent in the working environment”’” or a risk “‘“typical of or broadly incidental to the enterprise [the employer] has undertaken.”’” (Ibid.) For a sexual tort, the employee’s act is not “engendered by the employment unless its motivating emotions were fairly attributable to work-related events or conditions.” (Id. at p. 301.)
Further, the act giving rise to the injury must be “generally foreseeable” in the sense that the “employee’s conduct is 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.” (Rodgers v. Kemper Constr. Co. (1975) 50 Cal.App.3d 608, 618-619.) “The employment must be such as predictably to create the risk employees will commit intentional torts of the type for which liability is sought.” (Lisa M., supra, 12 Cal.4th at p. 302.)
Applying the forgoing principles, the acts perpetrated by Mellado contain none of the hallmarks that would give rise to defendants’ liability under respondeat superior. Mellado was the court’s law librarian who simply learned Doe’s mailing address through his job and used that address to send Doe 11 anonymous “obscene” and “sexually harassing” letters. The motivation behind the letters was not “fairly attributable to work-related events or conditions.” (Lisa M., supra, 12 Cal.4th at p. 301.) Moreover, the second amended complaint did not allege that Mellado sent the mail during work hours, as part of his duties as the librarian, or that he used court stationery. Finally, it would be unusual or startling to impose liability on defendants for Mellado’s misconduct under these circumstances because the only reasonable inference from the properly-pled facts in the second amended complaint was that Mellado’s misconduct “had been undertaken solely for the employee[’s] personal gratification and had no purpose connected to the employment.” (Farmers Ins. Group v. County of Santa Clara (1995) 11 Cal.4th 992, 1007.)
In a misplaced attempt to create liability where none exists, Doe analogizes her case to Mary M. v. City of Los Angeles, supra, 54 Cal.3d 202, in which the California Supreme Court held that the City of Los Angeles could be vicariously liable for a rape committed by an on-duty police officer who “misuses his official authority.” (Id. at pp. 221-222.) In that case, however, our Supreme Court expressly limited its holding based on the “unique authority vested in police officers.” (Id. at p. 218, fn. 11.) As the court explained, police authority includes the “awesome and dangerous” power to “detain and to arrest and, when necessary, to use deadly force,” and “[t]hose who challenge an officer’s actions do so at their peril” sometimes at the risk of “criminal prosecution.” (Id. at pp. 206, 216.) Because danger for abuse is inherent in this power, the resulting costs are fairly allocated to the community that benefits from its lawful use. (Id. at p. 216.) In contrast, a court employee such as Mellado, does not have the power over a library patron rising to the “unique” or “coercive” authority given a police officer with its inherent danger of abuse. (Lisa M., supra, 12 Cal.4th at p. 304.)
For these reasons, defendants cannot be vicariously liable for Mellado’s acts of misconduct as alleged in causes of action one, two, and four of Doe’s second amended complaint, and therefore the trial court did not err in sustaining the demurrer as to these causes of action.
III
Doe Has Alleged Sufficient Facts To Overcome The Demurrer As To The Cause Of Action For Negligent Supervision
In her third cause of action, Doe alleged defendants’ liability based on the negligent hiring, training, supervising, and retaining of Mellado. The trial court sustained the demurrer on this cause of action based on a lack of duty owed to Doe by defendants because Mellado’s conduct was not foreseeable. We find that Doe alleged sufficient facts to overcome the demurrer as to the third cause of action, and defendants were not immune from liability.
A
Doe Alleged Sufficient Facts Regarding Negligent Supervision Based On Prior Misconduct
A cause of action for negligent supervision may be stated if the employer knew or should have known facts which would warn a reasonable person that the employee presented an undue risk of harm to third persons in light of the particular work to be performed. (Federico v. Superior Court (1997) 59 Cal.App.4th 1207, 1214-1215; Virginia G. v. ABC Unified School Dist. (1993) 15 Cal.App.4th 1848.)
Here, the second amended complaint alleged that defendants “knew, or in the exercise of reasonable diligence should have known” that Mellado “had previously committed acts of sexual misconduct and other harassment against females, some of whom were vulnerable . . .” and that he “gained confidential information from females during the course of unlawfully providing legal services to them, and that such information could be, and/or was, used by [the employee] to exploit vulnerable females,” and defendants failed to supervise Mellado to preclude him from “gain[ing] access to confidential information which he exploited to harass [Doe], as set forth in [preceding] paragraphs [of the second amended complaint alleging Mellado sent Doe obscene, sexually harassing mail].”
The “could, be and/or was” language used in the second amended complaint is problematic. Defendants would not be liable if Mellado merely acquired information which “could be used” against other females. Defendants would be liable only if they knew or should have known Mellado had actually used the information against other females. Liberally construing the complaint, Doe alleged Mellado actually did use the information against other females.
Generally, it is the function of a pleading to allege the ultimate facts to be established, and not the evidence to establish them. (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1469-1470.) “‘In order to plead a cause of action, the complaint must contain a “statement of the facts constituting the cause of action, in ordinary and concise language.” (Code. Civ. Proc., § 425.10, subd. (a).) While it is true that pleading conclusions of law does not fulfill this requirement, it has long been recognized that “[t]he distinction between conclusions of law and ultimate facts is not at all clear and involves at most a matter of degree. [Citations.] For example, the courts have permitted allegations which obviously included conclusions of law and have termed them ‘ultimate facts’ or ‘conclusions of fact.’” [Citations.] What is important is that the complaint as a whole contain sufficient facts to apprise the defendant of the basis upon which the plaintiff is seeking relief. [Citations.]’” (Doheny Park Terrace Homeowners Assn., Inc. v. Truck Ins. Exchange (2005) 132 Cal.App.4th 1076, 1098-1099, quoting Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6, cited with approval in Bach v. County of Butte (1983) 147 Cal.App.3d 554, 563, fn. 6.) The background allegations alleged: (1) Doe was using the law library to handle her own family law and restraining order matters; (2) Mellado, while assisting her, learned confidences regarding her vulnerability and fear of men; and (3) Mellado sent her obscene, sexually harassing mail. In our view, these allegations adequately pleaded liability for negligent supervision on the basis that defendants knew or should have known facts (that Mellado used his job to obtain confidential information which he used to exploit vulnerable females) which would warn a reasonable person that Mellado presented an undue risk of harm to third persons in light of the particular work to be performed. (Federico v. Superior Court, supra, 59 Cal.App.4th at pp. 1214-1215.)
Here, the prior misconduct is material not in and of itself but only as giving notice to defendants of a problem. The second amended complaint adequately apprised defendants that Doe was claiming defendants knew or should have known that Mellado had previously committed acts of sexual misconduct and other harassment against other females. Liberally construing the complaint, as we must (Code Civ. Proc., § 452), the second amended complaint alleged that Mellado actually did commit prior acts of sexual misconduct/harassment against other females, similar to the misconduct alleged with respect to Doe. The second amended complaint therefore adequately alleged negligent supervision in that the employer knew or should have known of prior sexual misconduct/harassment by the employee against others.
While defendants’ knowledge of Mellado’s prior misconduct would not be an issue with respect to the allegation of negligent retention since Doe stopped using the library, the second amended complaint fails to state a cause of action for negligent retention, because the complaint does not allege the retention of Mellado itself caused Doe harm. (See Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790, 817.) However, this problem does not justify sustaining the demurrer in light of our holding regarding the negligent supervision allegation, because a demurrer will not lie to part of a cause of action. (5 Witkin, Cal. Procedure (4th ed. 1997) Pleading, § 910, p. 370.)
Thus, although the second amended complaint does not plead a viable cause of action for negligent retention of Mellado after the incidents with Doe, the second amended complaint does plead a cause of action for negligent supervision, and therefore the trial court erred in sustaining the demurrer to Doe’s third cause of action without leave to amend.
B
Governmental Immunity Does Not Apply
The demurrer raised grounds of governmental immunity, arguing: (1) the court was immune from liability for nonstatutory claims pursuant to Government Code section 815, subdivision (a); and (2) the court and Metroka (the court’s executive officer) were immune from liability for their exercise of discretion regarding employment of Mellado, pursuant to Government Code section 820.2.
Government Code section 815 provides: “Except as otherwise provided by statute: [¶] (a) A public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.”
Government Code section 820.2 provides: “Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.”
The trial court, in its ruling on the demurrer, noted the immunity defenses but did not rule on them with respect to the third cause of action for negligent supervision. Defendants reassert immunity in their appellate brief. In our view, the immunity defenses do not apply.
The immunity for nonstatutory claims fails because a public entity may be vicariously liable for nonstatutory torts of its employees and may be directly liable for negligent supervision of public employees. (Virginia G. v. ABC Unified School Dist., supra, 15 Cal.App.4th at pp. 1853-1855.) Although a claim for negligent supervision is one of direct rather than vicarious liability, the second amended complaint named as a defendant the executive officer of the court. If he is liable for negligent supervision, then so is the court, as the public entity employer.
Defendants argued in the trial court, but not on appeal, that the negligent supervision claim requires a special relationship, and the second amended complaint did not allege any special relationship between plaintiff and the court or its executive officer that could give rise to a duty. Defendants cited Virginia G., for the general rule that one owes no duty to control the conduct of another, but such duty may arise “‘if “(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or (b) a special relation exists between the actor and the other which gives the other a right to protection.”’” (Virginia G. v. ABC Unified School Dist., supra, 15 Cal.App.4th at p. 1853.) In the trial court, defendants also cited Thorn v. City of Glendale (1994) 28 Cal.App.4th 1379, which rejected an argument that a city could be liable for negligent supervision of its employee, a fire marshal who set fire to a business while conducting an inspection. (Id. at pp. 1381, 1384-1385.) The appellate court rejected the business owner/plaintiff’s argument on appeal that a special relationship was formed when the fire marshal undertook the inspection. (Id. at p. 1385.)
Here, although the second amended complaint alleged a special relationship between Doe and the employee who harassed her, Doe’s claim against him was not for negligent supervision. However, the second amended complaint went further. It alleged Doe “did enter into a special relationship with Defendants, and each of them, in that she did receive librarian services and legal assistance, from Defendant, LUCIFER MELLADO, the law librarian, who was not licensed to practice law. While unlawfully providing Plaintiff legal assistance, Defendant MELLADO, learned of confidences from Plaintiff, who was dependent upon him for assistance and who relied upon him, to her detriment . . . . [¶] Defendants [the Court and its executive officer] knew, or should have known, that Defendant MELLADO was engaged in the unlawful practice of law as to Plaintiff, while he was working in Defendant [Court]’s law library during regular business hours.” If the employer knew or should have known the law librarian was using his job to play lawyer, that is enough to impose a duty. (Virginia G. v. ABC Unified School Dist., supra, 15 Cal.App.4th at p. 1855 [if individual school district employees responsible for hiring or supervising teachers knew or should have known of a teacher’s prior sexual misconduct toward students, the employees owed a duty to protect the students from such harm].)
As to the immunity for discretionary acts, defendants failed to show applicability of the immunity as a matter of law. They rely on Kemmerer v. County of Fresno (1988) 200 Cal.App.3d 1426, which affirmed a dismissal following demurrer, holding a county and supervisory employees were immune from tort liability for any acts done to institute and prosecute disciplinary proceedings against the employee/plaintiff. (Id. at pp. 1437-1439.) However, defendants merely assume hiring, training, supervision, and retention of employees are discretionary acts. Defendants have failed to provide an adequate analysis recognizing the distinction between planning and operational functions, and the fact that immunity is reserved for basic policy decisions. (1 Cal. Governmental Tort Liability Practice (4th ed.) General Immunities of Public Entities and Employees, § 10.15, p. 607.)
The demurrer could not be sustained on the ground of governmental immunity.
DISPOSITION
The judgment (order of dismissal) is reversed. The cause is remanded to the trial court with directions to vacate its order sustaining the demurrer to Doe’s third cause of action and to enter a new order overruling the demurrer as to this cause of action. Each party is to bear its own costs on appeal. (Cal. Rules of Court, rule 8.276(a).)
We concur:
SIMS , Acting P.J., MORRISON , J.