Krystle V. v. Cal. Department of Motor Vehicles CA2/2
B301643
| Cal. Ct. App. | Jul 7, 2021Background
- During a June 23, 2016 DMV driving test, examiner Manuel Llamzon allegedly grabbed appellant’s hand and forced it to touch his groin and made multiple sexually suggestive comments; appellant did not consent and feared objecting because she needed to pass the test.
- Appellant reported the incident; DMV placed Llamzon on administrative time off (ATO), investigated, and briefly returned him to restricted counter duties on August 2, 2016 while the inquiry continued.
- DMV’s investigation (completed Sept. 22, 2016) sustained findings of sexual harassment and a misdemeanor sexual battery; DMV later initiated adverse action and terminated Llamzon in March 2017.
- Appellant sued DMV alleging sexual battery, statutory disability-based claims, battery, and negligence; DMV moved for summary judgment.
- The trial court granted summary judgment for DMV, holding as a matter of law that (1) Llamzon’s conduct was outside the scope of employment for respondeat superior and (2) DMV did not ratify his conduct. Appellant appealed; the Court of Appeal affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether DMV is vicariously liable under respondeat superior for Llamzon’s sexual misconduct during a drive test | Llamzon’s acts arose out of and were connected to his job as a licensing examiner (occurred during a sanctioned driving test), so a jury could find they were within the scope of employment | Llamzon’s sexual acts were personal, unforeseeable, and not the type of authority-related misconduct that would make the DMV vicariously liable; precedent limits Mary M. to police officers | Held for DMV: sexual misconduct here was outside the scope of employment as a matter of law; respondeat superior does not apply |
| Whether policy considerations (prevent recurrence, victim compensation, spreading risk) support imposing vicarious liability on DMV | Imposing liability would encourage prevention (e.g., surveys), spread risk and improve victim compensation because the individual tortfeasor may lack assets | DMV had training, zero-tolerance policy, followed civil-service due process, and LREs lack the unique authority of police officers that supported Mary M. | Held for DMV: policy rationales do not support extending Mary M.; LRE role lacks authority to justify vicarious liability |
| Whether DMV ratified Llamzon’s misconduct by returning him to work and delaying termination | Returning Llamzon to public-facing duties and retaining him during/after investigation amounted to adopting or approving his misconduct | DMV promptly placed him on ATO, investigated, reassigned him to restricted duties to mitigate risk, and complied with civil-service due-process procedures (Skelly); those steps are not ratification | Held for DMV: retention and procedural compliance during investigation did not constitute ratification as a matter of law |
Key Cases Cited
- Mary M. v. City of Los Angeles, 54 Cal.3d 202 (California 1991) (on-duty police sexual assault held within scope of employment because of unique police authority)
- Farmers Ins. Group v. County of Santa Clara, 11 Cal.4th 992 (California 1995) (employee intentional torts not automatically outside scope; scope requires connection to employment risk)
- Daza v. Los Angeles Community College Dist., 247 Cal.App.4th 260 (California Ct. App. 2016) (school counselor’s sexual assault of student was outside scope of employment)
- Lisa M. v. Henry Mayo Newhall Memorial Hosp., 12 Cal.4th 291 (California 1995) (medical technician’s sexual molestation during exam was an independent act outside scope)
- M.P. v. City of Sacramento, 177 Cal.App.4th 121 (California Ct. App. 2009) (declines to extend Mary M. beyond police officers)
- John R. v. Oakland Unified School Dist., 48 Cal.3d 438 (California 1989) (teacher’s sexual molestation outside scope of employment)
- Z.V. v. County of Riverside, 238 Cal.App.4th 889 (California Ct. App. 2015) (social worker’s sexual assault outside scope of employment)
- Baptist v. Robinson, 143 Cal.App.4th 151 (California Ct. App. 2006) (distinguishes respondeat superior and ratification theories)
- Skelly v. State Personnel Board, 15 Cal.3d 194 (California 1975) (civil-service employees’ due-process protections before termination)