Krystle V. v. Cal. Department of Motor Vehicles CA2/2

K
Filed 7/7/21 Krystle V. v. Cal. Department of Motor Vehicles CA2/2
   NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                        SECOND APPELLATE DISTRICT

                                        DIVISION TWO


KRYSTLE V.,                                                B301643

         Plaintiff and Appellant,                          (Los Angeles County
                                                           Super. Ct. No. BC666823)
         v.

CALIFORNIA DEPARTMENT
OF MOTOR VEHICLES,

     Defendant and
Respondent.


      APPEAL from a judgment of the Superior Court of Los
Angeles County, Daniel S. Murphy, Judge. Affirmed.
      Valencia & Cywinska, Mark Joseph Valencia and Izabela
Cywinska Valencia for Plaintiff and Appellant.
      Xavier Becerra and Rob Bonta, Attorneys General,
Danielle F. O’Bannon, Assistant Attorney General, Catherine
Woodbridge, Benjamin Barnouw and Kenneth G. Lake, Deputy
Attorneys General, for Defendant and Respondent.
                           ******
       Krystle V. (appellant) appeals from a final judgment
entered in favor of the respondent California Department of
Motor Vehicles (DMV) in this action for sexual battery.
Appellant’s complaint alleged that DMV employee Manuel
Llamzon engaged in sexual battery and made sexually offensive
comments to her during a driving test. The trial court granted
DMV’s motion for summary judgment on the ground that DMV
could not be liable under either a theory of respondeat superior or
ratification, as a matter of law.
       We find no error and affirm the judgment.

                   FACTUAL BACKGROUND1
Appellant’s allegations
      On June 23, 2016, appellant presented herself at the San
Pedro office of the DMV to take her first driving test. She was
then 21 years old, nervous, and anxious to pass the test. She
feared that if she failed, it would adversely affect her anticipated
employment for which she needed a driver’s license.
      Appellant waited in the drive test lane until Llamzon
approached and told her he would be her DMV examiner.2 He
told appellant’s friends to get out of the car, and he entered the
front passenger side of appellant’s vehicle. Llamzon and
appellant were then the only two people in the vehicle. Llamzon
asked appellant if she wanted to remove her sweater because it

1     Because this case comes to us on summary judgment, we
must view the facts presented in the light most favorable to the
appellant. For the purpose of this appeal we assume the truth of
appellant’s version of the events.
2    Llamzon was then a DMV licensing registration examiner
(LRE).




                                 2
was hot. Appellant declined. The drive test lasted 45 minutes
though it was supposed to last only about 15 minutes.
      Due to her nervousness, appellant’s hands began to sweat
during the test. Appellant began to dry her sweaty hands against
her pants. Llamzon noticed this and told her to bring her hands
to the air conditioner, but appellant did not want to move her
hands away from the steering wheel as she feared failing the test.
Llamzon then grabbed appellant’s hand and brought it to his
penis area. He positioned her fingers in the area of his groin and
did a slow wiping motion with her right hand.
      Appellant did not know what to do because she feared if she
opposed Llamzon she would fail the driving test. She attempted
to move her hand away from Llamzon, but he held on to it.
Eventually, she was able to free her hand from his. At no time
did she consent to touching Llamzon’s penis or groin area, or for
Llamzon to touch her hand.
      Also during the driving test Llamzon made inappropriate
and sexually suggestive comments to appellant, including: “You
need a real man in your life.” “Do you live alone?” “Do you know
how to get to the White Globe[?]” (Appellant understood the
White Globe to be a place where couples go.) “I did not realize
how pretty you were.” “Do you want to know anything about
me?” “Do you have a boyfriend[?]” “Maybe I can come visit you
sometime like at work or at your house.” (Llamzon made this
comment while verifying appellant’s home address, as he already
had her home address information.) “I really want to keep
driving with you.” “I really do not want the car ride to end.”
“Maybe I come to Lucille [sic] at your work and you can take care
of me.” (Appellant had her name tag from Lucille’s restaurant,




                                3
where she worked, in her car, and Llamzon asked appellant if she
worked at Lucille’s.) “I only pass people who I feel deserve it.”
       During the drive test Llamzon stared at appellant, which
made her uncomfortable. She found his stares to be harassing
and intimidating. When she put the car in reverse and moved
her head to look out the back window of the car, Llamzon’s face
was uncomfortably close to hers. When she told him that she
could not focus with him staring at her, Llamzon replied, “Should
I put my glasses on so you can’t see my face?”
       At the end of the driving test they returned to the DMV
office where Llamzon told appellant not to repeat anything they
had talked about during the drive test. He said this just before
he handed appellant the paper showing that she passed the test.
Llamzon then stated that “maybe” he could come visit her at her
work or her house and repeated appellant’s home address back to
her. Appellant was offended by Llamzon’s comments.
       As Llamzon walked away, he ripped the paper license plate
off of appellant’s front license plate holder without her
permission. He then walked to another car. Afterward,
appellant told the friends who had accompanied her to the test
that Llamzon was a pervert and explained to them what
happened.
       Appellant also informed her stepfather about what had
happened to her during her driving test. Appellant’s stepfather
reported the incident the following day to the DMV office
manager, Judy Hollinger, who immediately reported it to upper
management. Appellant’s stepfather also reported the incident to
the Los Angeles Police Department and made a Facebook post
about the incident, which “went viral.”




                               4
Events following the incident
      It was DMV policy that once a sexual battery allegation is
made, the allegations must be investigated and the accused
placed on administrative leave. The DMV, with approval from its
director Jean Shiomoto and chief deputy director, William
Davidson, placed Llamzon on administrative time off (ATO)
beginning June 27, 2016. DMV had 30 days to decide whether to
extend Llamzon’s ATO or return him to work.
      On July 23, 2016, Frank Alvarez, chief of investigations at
DMV, sent an e-mail to regional administration of the DMV
stating:
      “I am waiting for a response back from either
      [Davidson] or [Shiomoto]. The investigation resulted
      in at least 16 interviews of females [th]at the LRE
      tested and nothing as fruitful as expected. We will
      submit to DA. But more tha[n] likely, the case will
      be rejected. Our recommendation . . . was to bring
      back from ATO and place at counter until DA
      rejects.”
      In late July 2016, Shiomoto and Alvarez met to discuss
whether to return Llamzon to work or to continue his ATO. They
decided to put Llamzon to work at the counter.3

3     On August 3, 2016, David Keenan, chief of the human
resources branch, sent the following memorandum to the
personnel services branch:
     “Mr. Llamzon allegedly engaged in unwanted sexual
     advances directed at a minor during a drive test at
     work and investigation was being conducted by the
     Investigation Division, Internal Affairs Unit (IAU).
     The Human Resources Branch (HRB) recently
     received information from the IAU that there is
     insufficient evidence at this time. As a result, Mr.




                                5
       Llamzon returned to work at the San Pedro DMV on
August 2, 2016, at which time he was assigned to work as a
“tester,” an employee who directs customers to a computer to take
their written test. Llamzon’s work included informing members
of the public whether they passed or failed their written exam,
and scheduling a retest for those who failed. If a person passed,
he would schedule a drive test and print a permit. In this
position, Llamzon would interact with between 50 and 100
customers per day.
       Hollinger, the San Pedro DMV office manager, had
supervisory responsibility over all employees. Hollinger testified
that it was appropriate for Llamzon to be assigned to work at the
counter as he could be closely monitored. He was in a controlled
environment and closely observed by supervisors. During the
time that Llamzon was on restricted duty, there were no
complaints regarding Llamzon’s conduct.
       Although Llamzon returned to work on August 2, 2016, the
DMV did not complete its investigation until September 22, 2016.
       During the course of the investigation DMV investigators
located four additional potential victims:
       Daria Diachenko took a drive test with Llamzon on June
20, 2016. She reported that during the drive test Llamzon made
conversation with her about her stay in the United States and
commented about the jewelry she was wearing.



      Llamzon was ordered to return to work, and he
      returned effective August 2, 2016. Therefore, the
      Department of Motor Vehicles (DMV) requests an
      ATO extension only to cover the six (6) additional
      days that Mr. Llamzon was off work.”




                                6
       G.M., a minor at the time of her test, took her driving test
at the San Pedro DMV with Llamzon on March 11, 2016. Among
other comments, Llamzon asked G.M. about her piercings. G.M.
told Llamzon how many ear piercings she had, and Llamzon
commented, “[O]h[,] that’s how you like it!” G.M. felt that the
comment was a reference to a sexual position and was an
unwanted sexual advance on her. However, she wanted to focus
on the exam so she did not address it further. In addition,
Llamzon asked G.M. if she had ever been to Disneyland, adding,
“I’ve never been to Disneyland, when you pass your exam you can
drive me to Disneyland.”
       Veronica Lopez had a drive test with Llamzon on June 21,
2016. During the drive test Llamzon asked her personal
questions. He inquired about her brother, “Is that guy your
boyfriend?” When Lopez responded that it was her brother,
Llamzon inquired, “[W]hy does he look Mexican and you look
white?” Llamzon asked Lopez many questions about where she
worked and what hours she worked. He then asked if he could go
to her workplace. Lopez recalled that Llamzon was staring at
her, and she asked, “What are you staring at?” Lopez reported
that the drive test, which was a retest, took about 25 minutes
longer than her first test.
       E.L. (16 years of age) took her drive test with Llamzon on
May 25, 2016. E.L. recalled Llamzon being friendly and talkative
throughout the drive test. Llamzon made many jokes throughout
the exam, including a joke involving Llamzon putting money into
E.L.’s bank account if she passed the test.
       On September 13, 2016, a customer complained that she
did not want her daughter interacting with Llamzon at the
counter.




                                 7
      On September 22, 2016, DMV completed its investigation
report, finding:
             “This investigation sustained allegations of
      sexual harassment. Through the evidence gathered
      from the victim’s statements and investigation search
      results; this investigation found Llamzon to have
      engaged in unprofessional conduct to include a
      violation of battery with victim V[.] During her
      exam, Llamzon, against her will, grabbed her right
      hand with his left hand and rubbed her right hand
      along his left inner thigh, violating California Penal
      Code 243.4(a); Sexual Battery, a misdemeanor.
           “Victim [G.M.] reported she was a victim of
     harassment from Llamzon. On March 11, 2016,
     Llamzon conducted a drive test for [G.M.], a minor at
     the time of the exam. During the drive test Llamzon
     made sexually inappropriate comments to victim
     [G.M.] making her feel uncomfortable; violating
     California Penal Code 647.6(a)(1) Children; annoy or
     molest, a misdemeanor. [¶] . . . [¶]
            “This report is being prepared for the County of
     Los Angeles District Attorney’s Office for criminal
     filing consideration. The report will also be
     submitted to the DMV Field Operations Division for
     administrative review and disposition.” (Some
     capitalization omitted.)
       Following submission of the investigation report, it is
reviewed by appropriate individuals within the field operations
division for a determination whether to take adverse action
against the employee. An additional process must follow,
including preparation of documents to be served on the employee,
and service on the employee. Once the employee is served with
notice of the adverse action, DMV generally places the employee




                                8
on ATO until the termination becomes effective. The employee is
permitted “Skelly rights” and may file for a Skelly hearing, where
an independent individual reviews the adverse action and makes
a recommendation whether or not to uphold or modify the
action.4
      Llamzon was placed on ATO a second time on February 23,
2017, until his termination from employment on March 7, 2017.
      Human resource chief Keenan testified that the DMV “did
what it was supposed to do. It mitigated the immediate
circumstances, [to] prevent the conduct from occurring again,
sequestered him in the office, conducted an investigation,
prepared an adverse action, served him and terminated him.”

                    PROCEDURAL HISTORY
      Appellant filed her complaint against DMV and “Manny
Roe” on June 28, 2017.5 The complaint alleged five causes of
action: (1) sexual battery, (2) liability under Civil Code sections
51.7 and 52.3, (3) liability under Civil Code sections 51.9 and 52,
(4) battery, and (5) negligence.6
      On September 21, 2018, DMV filed a motion for summary
judgment. Appellant opposed the motion.



4     Civil service employees have a property interest in the
continuation of their employment, which is protected by due
process. (Skelly v. State Personnel Board (1975) 

15 Cal.3d 194

,
206 (Skelly).)
5     On November 27, 2017, appellant identified “Manny Roe”
as Llamzon. Llamzon is not a party to this appeal.
6     On September 4, 2019, appellant dismissed without
prejudice her fifth cause of action for negligence.




                                 9
       On September 13, 2019, the trial court entered its decision
granting DMV’s motion for summary judgment. The decision
focused on the doctrine of respondeat superior, noting that
Government Code section 815.2, subdivision (a), expressly makes
the doctrine of respondeat superior applicable to public
employers. (Citing Hoff v. Vacaville Unified School Dist. (1998)

19 Cal.4th 925

, 932.) However, the court also noted that the
doctrine applies only when the tort of an employee took place
when the employee was “acting within the scope of his or her
employment.” (Baptist v. Robinson (2006) 

143 Cal.App.4th 151

,
160.) After considering the authorities and arguments of the
parties, the court concluded that vicarious liability could not
reasonably attach to create liability on the part of DMV in this
case.
       The court also addressed the doctrine of ratification. It
found that appellant could not satisfy any of the elements of
ratification and that no reasonable juror could reach the
conclusion that the DMV approved Llamzon’s alleged sexual
misconduct.
       Appellant filed her notice of appeal on October 7, 2019.

                           DISCUSSION
I.    Applicable law and standard of review
      A motion for summary judgment is properly granted if the
submitted papers demonstrate there is no triable issue as to any
material fact and that the moving party is entitled to summary
judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).)
A defendant meets this burden by showing that one or more
elements of the plaintiff’s cause of action cannot be established.
(Aguilar v. Atlantic Richfield Co. (2001) 

25 Cal.4th 826

, 854.) A




                                10
defendant may also meet this burden by showing that there is a
complete defense to the cause of action. (Castellon v. U.S.
Bancorp (2013) 

220 Cal.App.4th 994

, 997.)
       Once the defendant makes such a showing, the burden
shifts to the plaintiff to set forth specific facts that a triable issue
of material fact exists. (Castellon v. U.S. Bancorp, supra, 220
Cal.App.4th at p. 997.) In order for an issue to be considered
material, it must “‘relate to a claim or defense in issue which
could make a difference in the outcome.’” (Mallett v. Superior
Court (1992) 

6 Cal.App.4th 1853

, 1863-1864.)
       We review a trial court’s decision to grant summary
judgment de novo. (Horn v. Cushman & Wakefield Western, Inc.
(1999) 

72 Cal.App.4th 798

, 805.) We accept as true the facts
alleged by the party opposing the summary judgment motion and
the reasonable inferences that can be drawn from them. (Ibid.)
We will affirm a summary judgment if it is correct on any ground
that the parties had an adequate opportunity to address at the
trial court level, regardless of the court’s stated rationale.
(Angelotti v. The Walt Disney Co. (2011) 

192 Cal.App.4th 1394

,
1402.)
II.    Respondeat superior liability
       Appellant first argues that the trial court erred in denying
respondeat superior liability as a matter of law, contending that
contrary to the trial court’s holding, a reasonable jury could
conclude that Llamzon acted within the scope of his authority.
Appellant claims that all of the factors which should be taken
into consideration when determining respondeat superior
liability, support applicability of the doctrine in this matter.




                                   11
        A.     Public entity liability
        The Government Claims Act (Gov. Code, § 810 et seq.) was
enacted in order to restrict the grounds for public entity liability
to “‘“‘rigidly delineated circumstances.’”’” (Richards v.
Department of Alcoholic Beverage Control (2006) 

139 Cal.App.4th
304

, 317.) Thus, except as provided by statute, “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.” (Gov. Code, § 815, subd. (a).)
        Government Code section 815.2, subdivision (a) permits
public entity liability under the doctrine of respondeat superior.
The provision provides, “[a] public entity is liable for injury
proximately caused by an act or omission of an employee of the
public entity within the scope of his employment if the act or
omission would, apart from this section, have given rise to a
cause of action against that employee or his personal
representative.” (Gov. Code, § 815.2, subd. (a).) Thus, the
statute does not permit liability if the acts of the public employee
fall outside the scope of his or her employment.
        B.     The doctrine of respondeat superior
        “Under the doctrine of respondeat superior, an employer
may be held vicariously liable for torts committed by an employee
within the scope of employment.” (Mary M. v. City of Los Angeles
(1991) 

54 Cal.3d 202

, 208 (Mary M.).) “[A]n employee’s tortious
act may be within the scope of employment even if it contravenes
an express company rule and confers no benefit to the employer.”
(Farmers Ins. Group v. County of Santa Clara (1995) 

11 Cal.4th
992

, 1004 (Farmers).) An employee’s willful or malicious
intentional torts, “including those that might contravene an
employer’s express policies, do not automatically fall outside the




                                12
scope of employment.” (Daza v. Los Angeles Community College
Dist. (2016) 

247 Cal.App.4th 260

, 268 (Daza).) However, to fall
within the scope of employment, “the intentional misconduct
must be ‘an “outgrowth” of the employment’ and the risk of
tortious injury must be ‘“‘inherent in the working environment’”’
or ‘“‘typical of or broadly incidental to the enterprise [the
employer] has undertaken.’”’” (Ibid.) Similarly, the intentional
conduct must be “foreseeable” from the employee’s duties,
meaning that it 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.”’” (Ibid.)
        “Sexual assaults are not per se beyond the scope of
employment.” (Daza, supra, 247 Cal.App.4th at p. 268.)
However, courts rarely have found an employee’s sexual assault
or sexual harassment of a third party falls within the scope of
employment. (Ibid.) In fact, the only California case in which an
employee’s sexual assault of a third party was held to be within
the scope of employment was Mary M., supra, 54 Cal.3d at page
202. In Mary M., a Los Angeles Police Department sergeant
stopped the victim for erratic driving. The officer was in uniform,
wore a badge and a gun, and was driving a marked black and
white police vehicle. After the officer asked the victim to perform
a field sobriety test, she began to cry, and pleaded with the officer
not to take her to jail. The officer told the victim to get in the
front seat of his police vehicle. He did not handcuff her. He
drove her to her home and then demanded “‘payment’” for taking
her home instead of to jail. Although the victim tried to run
away, the officer raped her. (Id. at p. 207.)
        In Mary M., the imposition of vicarious liability on the city
was “based on ‘the unique position of police officers with their




                                 13
ability to arrest and use deadly force,’ coupled with their
‘“substantial degree of authority”’ and the use of that authority
over the motorist plaintiff.” (Daza, supra, 247 Cal.App.4th at p.
269.) “‘Employees who do not have this authority and who
commit sexual assaults may be acting outside the scope of their
employment as a matter of law.’” (M.P. v. City of Sacramento
(2009) 

177 Cal.App.4th 121

, 131 (M.P.).)
       C.    Application of the doctrine in this case
       The controlling authority dictates that DMV is not
responsible for Llamzon’s sexual conduct under the doctrine of
respondeat superior in the circumstances before us. The only
California case in which an employee’s sexual assault was held to
have fallen within the scope of employment was Mary M., supra,
54 Cal.3d at page 202, which has been expressly limited by courts
considering the vicarious liability of employers for sexual
misconduct.
       In M.P., supra, 

177 Cal.App.4th 121

, a woman alleged that
while working as a photographer at an evening event, she came
across a crew of firefighters who had driven in their fire truck to
the event. (Id. at p. 125.) One of the firefighters invited her to
take photographs of him and another firefighter on the fire truck.
One of the firefighters was off duty, and one was on duty. The
photographer was sexually assaulted by the firefighters on the
fire truck. (Ibid.) While acknowledging the Mary M. decision,
the M.P. court declined to extend its holding to the circumstances
present in the M.P. case. The court stated, “both the Mary M.
decision itself, and subsequent decisions by the California
Supreme Court, dictate we not extend vicarious liability to the
alleged sexual assaults by the firefighters in this case.” (M.P., at
p. 131.) The M.P. court noted that the Mary M. majority stressed




                                14
that its decision flowed from “‘the unique authority vested in
police officers.’” (M.P., at p. 131.) In addition, the Supreme
Court later observed that our state’s courts had not extended the
Mary M. holding to employees other than police officers. (M.P., at
p. 131, quoting Farmers, supra, 11 Cal.4th at pp. 1006-1007
[“‘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]’”].)
       Other cases cited by the parties in which the perpetrator
was in a greater position of trust than Llamzon, have held that
sexual assault or harassment was not within the scope of
employment. A guidance counselor at the Los Angeles
Community College District, who purportedly sexually assaulted
a student when she went to his office for guidance, was not acting
within the scope of his authority as a matter of law when he
allegedly used his position of authority to sexually harass and
molest the student. (Daza, supra, 247 Cal.App.4th at p. 269.)
The Daza court concluded that, “[c]onsistent with the vast weight
of authority,” the student’s allegations of sexual assault against
the counselor fell outside the scope of his employment as a
guidance counselor. (Ibid.) The court explained, “His alleged
conduct was not an outgrowth of his employment, it was neither
inherent in nor typical of the District’s educational enterprise,
and it was not foreseeable from Daza’s duties as a guidance
counselor.” (Ibid.)
       Similarly, an ultrasound imaging technician was not acting
within the scope of his authority when he sexually molested a
patient under the pretense of conducting an ultrasound imaging
examination. (Lisa M. v. Henry Mayo Newhall Memorial




                               15
Hospital (1995) 

12 Cal.4th 291

, 303-304 (Lisa M.).) The Lisa M.
court concluded that the assault was the “independent product”
of the technician’s “aberrant decision to engage in conduct
unrelated to his duties.” (Id. at p. 303.) Thus, although they
arose in the context of a physical examination, the technician’s
actions “were not foreseeable from the nature of the work he was
employed to perform.” (Ibid.) Further, unlike the officer in
Mary M., the technician did not have “any power to exercise
general control over plaintiff’s liberty.” (Lisa M., at p. 304.)
Thus, the hospital was not liable under the doctrine of respondeat
superior as a matter of law. (Id. at p. 306.)7 Other examples of
cases in which employers were not liable under the doctrine of
respondeat superior as a matter of law include Farmers, supra,
11 Cal.4th at page 997 [deputy sheriff’s sexual harassment of
other deputy sheriffs working at county jail not within scope of
employment]; John R. v. Oakland Unified School Dist. (1989) 

48
Cal.3d 438

, 441, 447-452 (John R.) (teacher’s sexual molestation
of student at teacher’s apartment during sanctioned
extracurricular program not within scope of employment); Z.V. v.


7      Appellant points out that in Lisa M., the sexual battery
occurred after the performance of the sanctioned ultrasound.
(Lisa M., supra, 12 Cal.4th at p. 301.) Thus appellant argues, it
was not directly connected to the technician’s job duties.
Appellant contends that the facts before us are different, because
the alleged acts occurred during a sanctioned driving test. This
minor factual distinction does not permit appellant’s action to
proceed on a respondeat superior theory, particularly in light of
the substantial authority holding otherwise. The nature of the
employee’s acts, and the nature of his employment, are far more
significant in determining whether or not the employee’s tortious
acts fall within the scope of his employment.




                                16
County of Riverside (2015) 

238 Cal.App.4th 889

, 891, 896-897
(Z.V.) (social worker’s sexual assault of minor outside of work
hours and at social worker’s apartment not within scope of
employment); and Alma M. v. Oakland Unified School Dist.
(1981) 

123 Cal.App.3d 133

, 139-140 (Alma W.) (school janitor’s
rape of student in janitor’s office not within scope of
employment).
       This substantial case authority leaves no room for a
different decision in this case. Llamzon had significantly less
contact and control over appellant than the guidance counselor in
Daza, the teacher in John R., and the social worker in Z.V.
       In addition, Llamzon cannot be described as having similar
authority to that vested in police officers. As the Mary M. court
emphasized, “[p]olice officers occupy a unique position of trust in
our society. They are responsible for enforcing the law and
protecting society from criminal acts. They are given the
authority to detain and to arrest and, when necessary, to use
deadly force. As visible symbols of that formidable power, an
officer is furnished a distinctively marked car, a uniform, a
badge, and a gun. Those who challenge an officer’s actions do so
at their peril; anyone who resists an officer’s proper exercise of
authority or who obstructs the performance of an officer’s duties
is subject to criminal prosecution.” (Mary M., supra, 54 Cal.3d at
p. 206.) In contrast, an LRE such as Llamzon conducts driving
tests. They use standardized evaluations and while they are
vested with the authority to determine whether an individual has
passed the test, they have no authority to detain, arrest, or use
deadly force against an individual.
       Under the applicable legal precedent DMV is not liable for
Llamzon’s sexual misconduct as a matter of law.




                                17
      D.      The policy goals of the respondeat superior
              doctrine
       Appellant argues that the trial court erred in failing to
analyze the three policy goals of the doctrine of respondeat
superior. Appellant points out that the Mary M. court identified
three policy considerations in making its decision to impose
respondeat superior liability in that case. Those considerations
were (1) the prevention of recurrence, (2) greater assurance of
compensation to the victim, and (3) the appropriateness of
spreading the risk of loss among the beneficiaries of the
enterprise. (Mary M., supra, 54 Cal.3d at pp. 209, 214-217.)
       First, we note that the trial court was not required to
analyze these policy considerations in detail in the context of this
case. The substantial authority holding that employers are not
liable for sexual misconduct under the doctrine of respondeat
superior—with only one, very limited exception—left no room for
the trial court to decide otherwise in this case. The trial court
properly analyzed the applicable case law and determined that
the cases more analogous to the facts here held that sexual
misconduct falls outside the scope of employment as a matter of
law.
       Further, we disagree that the three policy considerations
support imposition of respondeat superior liability in this case.
In support of her argument that the imposition of liability would
prevent recurrence, appellant asserts that DMV in this case
“empirically failed to prevent recurrence.” Appellant states that
Llamzon had at least four other drive test victims in addition to
appellant. Appellant suggests that a feedback card or survey
sent to each applicant following the drive test would lead to a
greater identification of LRE’s who engage in sexual misconduct.




                                 18
       The evidence filed in support of DMV’s motion for summary
judgment showed that DMV has protocols in place to prevent
sexual misconduct on the part of its employees. Hollinger offered
her comment that during the time she was office manager at the
San Pedro DMV she made it clear to all employees, including
Llamzon, that DMV employees are not to engage in sexual
harassment, including sexual touching, and that she had a zero
tolerance policy with regard to such action. In addition, all DMV
employees including Llamzon, were required to undergo sexual
harassment training on a regular basis. Llamzon completed this
training. Allocating additional responsibility for the sexual
misconduct of LRE’s would create logistical difficulties for DMV.
Due to the nature of driving tests, it is difficult to eliminate the
one-on-one situation without significant financial burden. Nor
would it serve the public interest to eliminate on the road driving
tests. As to appellant’s suggestion of a brief survey, we note that
the other purported victims in this case did not report problems
after their drive tests. Instead, they responded to an
investigation after appellant’s allegations against Llamzon had
already gone “viral.” Thus, it does not seem likely they would
have otherwise complained. In fact, Hollinger noted that she
occasionally receives feedback from customers and had only
received generally positive customer comments and feedback
about Llamzon.
       Also, according to Alvarez the chief of investigations, there
were only a “handful” of sexual misconduct cases involving LRE’s
dating back as far as he could recall, even before the time that he
became chief of investigations. Chief deputy director Davidson
also had heard of only “[m]aybe three” other such cases occurring
during his time at the DMV. Thus, DMV’s efforts to train its




                                19
personnel and make known its zero tolerance policy appears to be
sufficient.
       In contrast to appellant’s argument, the limited number of
incidents of sexual harassment over the years by LRE’s, in
proportion to the number of drive tests conducted during the
same time frame, do not render Llamzon’s actions a “foreseeable”
consequence of the activity of supervising a driving exam.
(Lisa M., supra, 12 Cal.4th at p. 299, citing John R., 

supra,

 

48
Cal.3d 438

, 450, fn. 9, & Alma W., supra, 123 Cal.App.3d at
pp. 141-142.) Appellant asks that we focus on the “so divorced”
from work standard set forth in Mary M. to find that Llamzon’s
conduct was foreseeable in this matter. (Mary M., supra, 54
Cal.3d at p. 214.) The Mary M. court “asked itself whether the
sexual assault there was ‘so divorced’ or ‘so unusual’ . . . from the
employee’s employment that it exceeded the employee’s ‘scope of
employment.’ [Citation.] Thus, Mary M. recognized that while
sexual assault is an extraordinary, abnormal event in any
workplace context, the focus would be on the extent of
abnormality.” (Z.V., supra, 238 Cal.App.4th at p. 898, quoting
Mary M., at p. 214.) Here, the numbers show that Llamzon’s acts
were abnormal considering the limited number of incidents over
the years. In addition, Llamzon did not have the same degree of
power over appellant as did the officer in Mary M. over his
victim. The case law uniformly holds that for public employees
wielding less power than police officers, sexual assault is so
divorced from the employee’s employment as to be outside the
scope of employment as a matter of law.
       We reject appellant’s suggestion that DMV’s actions
following the incident did not sufficiently prevent recurrence.
After becoming aware of appellant’s allegations against Llamzon,




                                 20
DMV immediately put him on leave. DMV was required to
balance the concerns regarding appellant’s allegations with
Llamzon’s due process rights. Thus, DMV returned Llamzon to
work in a supervised counter position until his termination.
There is no evidence suggesting that DMV’s postallegation
actions caused harm or facilitated recurrence of sexual
misconduct.
       As to the second policy goal of assuring compensation to the
victim, appellant notes that Llamzon did not have enough money
to pay his attorneys to be present for his deposition, much less
pay a judgment. Thus, there is no assurance to appellant that
she will receive anything if she prevails in her lawsuit against
Llamzon, the only remaining defendant. However, in addressing
this policy goal, the Mary M. court noted that numerous
California decisions have “recognized, at least implicitly, that
vicarious liability is an appropriate method to ensure that victims
of police misconduct are compensated.” (Mary M., supra, 54
Cal.3d at p. 216.) The only distinction in Mary M. was that the
victim was raped, rather than beaten, by an officer. (Ibid.) The
Mary M. court opined that “the victim’s need for compensation in
this instance is as great as in other cases of violent tortious
conduct by a police officer while on duty.” (Ibid.) Appellant has
presented no such precedent showing a collective recognition of
the need for compensation under the present circumstances.
Thus, the second policy goal is not met here.
       The third policy consideration is the appropriateness of
spreading the risk of loss among the various beneficiaries of the
enterprise. In Mary M., the court pointed out that “society has
granted police officers extraordinary power and authority over its
citizenry.” (Mary M., supra, 54 Cal.3d at p. 216.) This includes




                                21
“‘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.’” (Ibid.) Under those specific
circumstances, “The cost resulting from misuse of that power
should be borne by the community, because of the substantial
benefits that the community derives from the lawful exercise of
police power.” (Id. at p. 217.)
       While LRE’s such as Llamzon certainly provide a benefit to
our society in ensuring the skill of those who have a driver’s
license, they are not entrusted with nearly the same “formidable”
level of power as police officers. (Mary M., supra, 54 Cal.3d at
p. 217.) Nor is there the same “inherent” potential for abuse.
(Ibid.) LRE’s do not carry guns and do not have the authority to
use force or arrest citizens. They have only the authority to
determine if an examinee has passed a standardized driving test.
If the examinee does not pass the test the consequences are not
dire—the examinee may simply take the driving test again in the
near future.
       In short, the policy considerations favoring imposition of
respondeat superior liability in Mary M. do not exist in this case.
III. Ratification
       Appellant further argues that the trial court erred by
denying appellant’s ratification theory of liability.
       A.    Applicable law
       “An employer may be liable for an employee’s willful and
malicious actions under principles of ratification. [Citation.] An
employee’s actions may be ratified after the fact by the
employer’s voluntary election to adopt the employee’s conduct by,
in essence, treating the conduct as its own.” (Delfino v. Agilent
Technologies, Inc. (2006) 

145 Cal.App.4th 790

, 810, fn. omitted.)




                                22
“‘A purported agent’s act may be adopted expressly or it may be
adopted by implication based on conduct of the purported
principal from which an intention to consent to or adopt the act
may be fairly inferred, including conduct which is “inconsistent
with any reasonable intention on his part, other than that he
intended approving and adopting it.”’” (Dickinson v. Cosby (2019)

37 Cal.App.5th 1138

, 1158.)
       Ratification is an alternate theory to respondeat superior.
(Baptist v. Robinson (2006) 

143 Cal.App.4th 151

, 169 (Baptist).)
“The failure to discharge an employee who has committed
misconduct may be evidence of ratification.” (Ibid.) The theory is
generally applied “where an employer fails to investigate or
respond to charges that an employee committed an intentional
tort, such as assault or battery.” (Ibid.)
       An employer’s ratification of an employee’s conduct is
generally a factual question. (Baptist, supra, 143 Cal.App.4th at
p. 170.) However, summary judgment is appropriate where the
theory of ratification is inapplicable as a matter of law. (See, e.g.,
ibid. [tortfeasor’s personal activities did not constitute a form of
misconduct that was later ratified by his employer]; Fretland v.
County of Humboldt (1999) 

69 Cal.App.4th 1478

, 1491
[uncontradicted testimony of steps taken by employer regarding
investigation and discipline sufficient to uphold summary
judgment of ratification theory].)
       B.    Application to this case
       Appellant argues that DMV ratified Llamzon’s misconduct
by returning him to work on August 2, 2016, after an
approximately 36-day ATO. Appellant argues that DMV
returned Llamzon to work in spite of finding additional victims
on July 13 and 14, 2016. A second act of ratification, according to




                                 23
appellant, was when the DMV allowed Llamzon to continue
working after September 22, 2016, the date on which DMV
finalized its investigation into the incident reported by appellant.
The investigation concluded that Llamzon did sexually harass
appellant and G.M. In spite of this conclusion appellant argues
DMV continued to allow Llamzon to work with the public.
       After the DMV investigative report was prepared for the
district attorney’s consideration, on November 3, 2016, DMV
sought to terminate Llamzon. However, Llamzon continued to
work at the DMV, interacting with customers, full time, at his
full rate of pay, through February 22, 2017.
       Appellant argues that DMV’s act of permitting Llamzon to
continue working and reaping benefit from such work, constitutes
sufficient evidence to support a ratification theory.
       Appellant has produced insufficient evidence to support a
ratification theory as a matter of law. Generally, to support a
theory of ratification a plaintiff must show that the employer has
failed to investigate or respond to charges that an employee
committed an intentional tort. (Baptist, supra, 143 Cal.App.4th
at p. 169.) Appellant can make no such showing in this matter.
Upon hearing of the allegations against Llamzon, DMV
immediately placed him on ATO and initiated an investigation.
For civil service employees an initial ATO lasts only 30 days, at
which time the employer must determine whether or not to seek
approval of further leave. At the end of the 30-day period it did
not appear there was enough information for a criminal
prosecution against Llamzon. Thus, bringing Llamzon back from
leave with restricted duties, not to include drive tests, was




                                24
appropriate for the time period during which the report was
finalized.8
       DMV’s retention of Llamzon as an employee during the
investigation did not equate to ratification, particularly in the
context of the state civil service disciplinary system. A civil
servant is entitled to due process prior to termination of
employment. An investigative report is merely the opinion of the
investigators. Once such a report is completed a request is sent
to human resources, followed by a review by the DMV legal team
and a review and approval by the division deputy director. After
these procedures DMV prepares the adverse action documents for
service upon the employee. In the matter at hand, DMV did
exactly what it was supposed to do under the circumstances. It
mitigated the potential harm to the public by sequestering
Llamzon in the office, conducted an investigation, then served
him, and terminated him.
       DMV had constitutional and statutory obligations to
protect Llamzon’s property interest in his employment. (Skelly,
supra, 15 Cal.3d at p. 206.) Appellant cites no authority
suggesting that DMV’s compliance with these obligations can be
considered ratification. In fact, if a civil service employer

8     As set forth above, during the time that Llamzon was
placed on restricted duty, until the time of his termination, there
were no complaints regarding Llamzon’s conduct. Hollinger, who
had years of experience with Llamzon, was comfortable with him
working inside at the counter while the disciplinary process
proceeded. Director Shiomoto, human resources chief Keenan,
and regional administrator Velma Edmond also provided
evidence that it was appropriate for Llamzon to work on limited
duty as long as he was removed from drive tests and was closely
monitored.




                                25
imposes discipline without providing these due process
protections, the employer engages in a “‘constitutional infirmity.’”
(Williams v. City of Los Angeles (1990) 

220 Cal.App.3d 1212

,
1216.)
       Since DMV immediately placed Llamzon on ATO and
initiated an investigation of appellant’s allegations following
appellant’s complaint, DMV’s compliance with the due process
safeguards in place to protect Llamzon’s property interest in his
job, in addition to a reassignment to a desk position, did not
constitute ratification as a matter of law.9

                        DISPOSITION
      The judgment is affirmed. Respondent DMV is awarded its
costs of appeal.


                                       ________________________, J.
                                       CHAVEZ
We concur:


________________________, P. J.        ________________________, J.
LUI                                    HOFFSTADT



9      Because we have determined that DMV did not ratify
Llamzon’s actions as a matter of law, we decline to address
DMV’s alternative grounds for rejecting ratification (1) that the
facts providing the basis for ratification were not alleged in the
complaint, (2) that appellant fails to allege a statutory basis for
liability under a ratification theory, and (3) that DMV’s act of
returning Llamzon to limited counter work was immunized under
Government Code sections 820.2 and 821.6.




                                  26

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