Z v. v. County of Riverside CA4/3
238 Cal. App. 4th 889
| Cal. Ct. App. | 2015Background
- Plaintiff Z.V., a 15-year-old dependent in Riverside County foster care, was sexually assaulted by county social worker Sean Birdsong on Sept. 21, 2009; Birdsong transported Z.V. to a new placement earlier that day and later returned after hours.
- Birdsong volunteered to drive Z.V. to the new foster home at the end of the workday; the drop-off occurred without incident and Birdsong left, drank, then returned between ~8:30–9:00 p.m. smelling of alcohol.
- Birdsong called the foster home requesting a packet, then told Z.V. he would come check the placement; he picked Z.V. up in a county van, went to a liquor store, then to his apartment where he sexually assaulted Z.V.; Birdsong was arrested shortly thereafter.
- Z.V. sued Birdsong and Riverside County; the trial court granted summary judgment for the County and the appeal followed.
- The central legal questions were (1) whether the County is vicariously liable (respondeat superior) for Birdsong’s assault under Mary M. and related authorities, and (2) whether the County is directly liable for negligent hiring/supervision based on any prior knowledge of propensity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Vicarious liability (scope of employment) | Birdsong’s conduct was sufficiently connected to his duties as a county social worker to impute liability to the County, relying on Mary M. | The assault was unrelated to Birdsong’s authorized duties: it occurred after hours, after shift ended, and followed voluntary, off-duty conduct; Mary M. is limited to police officers. | Affirmed for County: assault was outside scope as a matter of law; Mary M. does not extend to these facts. |
| Applicability of Mary M. precedent | Mary M. supports employer liability where worker’s authority facilitated the assault; County should be liable on similar grounds. | Mary M. is a narrow precedent tied to unique police authority; subsequent CA cases limit Mary M. to police contexts. | Court rejects broad application of Mary M.; emphasizes its limitation to police/unique authority. |
| Reliance on Lu v. Powell (9th Cir.) | Lu supports employer liability under an “incident to employment” test and policy goals (compensation, risk spreading, deterrence). | Lu misstates California law by adopting an unqualified "incident to" test inconsistent with CA Supreme Court precedents. | Court finds Lu unpersuasive and incompatible with California respondeat superior doctrine. |
| Negligent hiring/supervision | County failed to supervise/secure vans or screen Birdsong; permitting use of county van shows ineffective supervision. | No evidence County knew or should have known of Birdsong’s propensity to sexually assault minors; mere provision of a vehicle is insufficient. | Summary judgment affirmed: plaintiff produced no evidence of prior knowledge of propensity or inadequate supervision that would create triable issue. |
Key Cases Cited
- Mary M. v. City of Los Angeles, 54 Cal.3d 202 (Cal. 1991) (police-officer sexual assault; employer liability affirmed based on officer's unique authority)
- Lisa M. v. Henry Mayo Newhall Mem. Hosp., 12 Cal.4th 291 (Cal. 1995) (limits Mary M.; holds sexual assault by non-police employee not within scope absent work-related nexus)
- Farmers Ins. Group v. County of Santa Clara, 11 Cal.4th 992 (Cal. 1995) (refuses to extend respondeat superior for sexual misconduct except for on-duty police officers)
- Lu v. Powell, 621 F.3d 944 (9th Cir. 2010) (federal immigration officer sexual assaults; Ninth Circuit applied an "incident to" test but declined to rely on Mary M.)
- Inter Mountain Mortgage, Inc. v. Sulimen, 78 Cal.App.4th 1434 (Cal. Ct. App. 2000) (agent fraud held fact question re scope where tort arose in course of agent's job)
- C.A. v. William S. Hart Union High School Dist., 53 Cal.4th 861 (Cal. 2012) (school district potentially liable for negligent supervision/retention where employer knew or should have known of employee's propensity)