*1058 MEMORANDUM DECISION AND ORDER RE DEFENDANT CITY OF KINGSBURG’S MOTION FOR SUMMARY ADJUDICATION AND PLAINTIFF’S MOTION FOR SUMMARY ADJUDICATION
I. INTRODUCTION
Before the court is Defendant City of Kingsburg’s motion for summary adjudication and Plaintiff Kimberly Barsamian’s cross-motion for summary adjudication, on different issues.
An on-duty police officer for the City of Kingsburg (“City”), Defendant Martin Solis (“Solis” or “Officer Solis”) was dispatched to the residence of Plaintiff Kimberly Barsamian (“Plaintiff’) in response to her mother’s request. At the residence, among other things, Officer Solis evaluated whether Plaintiff, a twenty-six year old female, was under the influence of narcotics. He determined that Plaintiff was not under the influence. Officer Solis remained on the premises, received oral sex from Plaintiff, ejaculated and left the scene. Based on this encounter, Plaintiff filed a state court action asserting various claims. The action was removed to federal court and, subsequently, the City and Plaintiff filed the instant motions.
The following background facts are taken from the parties’ submissions in connection with the motions and other documents on file in this case.
II. BACKGROUND
From April 1999 to October 2000, Solis worked as a reserve officer for the City, a municipal entity. Thereafter Solis served as a full-time police officer for the City from October 2000 to June 9, 2005, when the City terminated his employment. (Doc. 98 at 2.) The disputed sexual incident with Plaintiff occurred on June 5, 2005. Prior to that date, Officer Solis had encountered Plaintiff before. Back in 2003, Solis observed Plaintiff and placed her under a California Welfare & Institution Code 5150 (unable to care for her own safety or the safety of others). (Doc. 95 at 2.) 1 There is no evidence that Officer Solis and Plaintiff had a dating or personal relationship after that time, or at any point prior to June 5, 2005.
At approximately 12:51 p.m. on June 5, 2005, Officer Solis was dispatched to a family disturbance call at Plaintiffs residence located at 2200 Sierra Street in Kingsburg, California. (Doc. 95 at 3.) This family disturbance call originated from Plaintiffs mother, Carol Barsamian, who had contacted the Kingsburg police department and asked the dispatcher to send an officer to her home. (Doc. 98 at 2.) The dispatcher revealed to Officer Solis that Plaintiffs mother had called the Kings-burg Police Department because she, Mrs. Barsamian, wanted to speak to an officer regarding her daughter, Plaintiff Kimberly Barsamian, who Mrs. Barsamian suspected was under the influence of narcotics, had not slept for five days and had tried to jump out of a moving vehicle that morning. (Doc. 95 at 3; Solis Dep. 80:11-25; 81:15-18.)
Officer Solis radioed that he arrived on the scene at 1:03 p.m. (Doc. 95 at 3.) On the scene, Officer Solis apparently met Mrs. Barsamian at the doorway of the residence. Mrs. Barsamian told Officer Solis that she wanted Plaintiff evaluated to determine if Plaintiff was under the influence of narcotics. (Id. at 4.) Officer Solis *1059 spoke with Plaintiff outside on the front porch. Plaintiff asked Officer Solis if he was going to arrest her and he stated “No.” (Id.) Officer Solis did not state, at any time while at the Barsamian residence, that he was going to arrest Plaintiff. (Doc. 98 at 21.) As they spoke, Plaintiff sat on a bench in the front of the residence. Plaintiff believed that while she was sitting on the bench, she could not leave Officer Solis’s presence. (PI. Dep. 151:6-13.)
Plaintiff revealed to Officer Solis that she was voluntarily entering a drug rehab center in Florida and that she had ingested some narcotics a few days prior. (Doc. 95 at 4.) According to Plaintiff, she also mentioned that she was scared about a situation she got herself into with an ex-boyfriend who was into “witchcraft” and feared that she had been “brainwashed into it.” (PL Dep. 145:25-146:1.) Plaintiff testified at her deposition that Officer Solis talked about problems he was having with his wife and told Plaintiff she was lucky because when she “went to Florida all [her] problems would just go away, and [she] could start a new life there.” (PL Dep. 146:7-8.) He further stated, according to Plaintiff, that Plaintiff “didn’t have to worry,” and “he was holding a — a manilla folder saying this would just go away— this case would just go away.” (Pl. Dep. 146:13-15.)
According to Officer Solis, based on his experience as a police officer and visual observations, he determined that Plaintiff was not under the influence of any substance on June 5, 2005. (Doc. 95 at 4.) Previously, while serving as a full-time officer with the City, Solis had completed a POST (Peace Officer Standards & Training) sponsored program at Fresno City College and received certification that he completed a course on “Drug Influence— H & S 11550.” (Doc. 98 at 14.) Officer Solis was certified as qualified to determine whether a person was under the influence of narcotics. (Id.) Plaintiff ultimately got up from the bench of her own volition without having to ask for permission. (Doc. 98 at 22.) Plaintiff went back into her residence, Officer Solis followed, and inside the residence he continued to counsel her regarding her narcotics addiction. (Doe. 98 at 22; Doc. 95 at 4.) Inside the residence, Plaintiff offered and provided Officer Solis with something to drink, and they talked while sitting at the kitchen table. (Doc. 98 at 23.) Plaintiff testified at her deposition that, at the kitchen table, “I told him about my brother’s wedding, how I ruined his wedding, all the methadone and meds I was taking. And I started crying.” (PL Dep. 160:18-20.) At some point during their conversation, Plaintiff told Officer Solis that she was going to drug rehab with the hope that she could overcome her low self-esteem and depression. (Doc. 95 at 4.) While Plaintiff and Officer Solis were at the kitchen table, Plaintiff’s parents left the residence. (Doc. 98 at 23.) Before she left, Mrs. Barsamian (Plaintiff’s mother) provided Officer Solis with a videotape regarding mental illness and told him that it was about how to deal with people with bi-polar disorder. (Doc. 95 at 4.) After the parents left, Officer Solis and Plaintiff talked a bit more, and as Solis was preparing to leave, a hug and kiss occurred between Solis and Plaintiff. As Plaintiff testified at her deposition:
Q. Did you continue to talk to Mr. Solis after your parents left?
A. Briefly, yeah. But he stood up and he said, ‘While your parents are gone, and I don’t want them to disrespect me, so I’d better be leaving now.’ And I said, you know, T won’t disrespect you,’ and I gave him a hug, and he started kissing me.
Q. Why did you give Mr. Solis a hug?
*1060 A. Just I’m a friendly person. I used to be.
(Pl. Dep. 164:7-15.) According to Officer Solis, Plaintiff kissed him, not the other way around. (Doc. 95 at 5.) After the kiss, it is undisputed that Plaintiff and Officer Solis ended up in Plaintiffs bedroom together. The parties dispute, however, how that occurred.
According to Plaintiff, after the kiss, she expected Solis to leave the house (Pl. Dep. 170:11-13) and she immediately went to her bedroom (Pl. Dep. 168:22-169:3). She did not invite Solis to her bedroom; she just walked off by herself and he followed her there. (Pl. Dep. 168:1-10.)
According to Officer Solis, after the kiss, Plaintiff stated that she wanted to talk some more. (Solis Dep. 105:7-8.) As Officer Solis testified at his deposition:
Q. And at that point you went to leave and she told you stay, she wanted to talk to you some more; correct?
A. Yes.
Q. Did you leave at that point?
A. No.
Q. Why not?
A. Because I wanted to see what else she had to say.
Q. Why did you want to see what else she had to say?
A. I was just interested to find out what she had to say?
Q. When you say you were interested, were you interested from your perspective as an officer with the Kingsburg Police Department?
A. Yes.
Q. As part of your investigation that you were conducting; correct?
A. Yes.
(Solis Dep. 105:19-21; 105:25-106:13.) According to Solis, they continued to talk for about a minute in the living room where she asked him questions about his marriage and his family. (Solis Dep. 106:14-21.) He indicated he would rather not answer, told her he was leaving, and he walked towards the door at which time “she told me she needed to show me something and grabbed me and led me through the hallway.” (Solis Dep. 107:23-25.) According to Solis, he went with her because he wanted to see what Plaintiff was going to show him — Plaintiff led him into her bedroom. (Solis Dep. 108:6-11; 109:2-6.)
In the bedroom, it is undisputed that Plaintiff played some music from her computer to break up the silence. (Doc. 98 at 26.) The parties offer different accounts of what next occurred.
According to Plaintiff, once she noticed Officer Solis had come into her bedroom, she “showed him music on my computer, tried to show him, and he was uninterested in it. And he sat on my bed, and he motioned for me to come over to him.” (Pl. Dep. 171:16-18.) He also exposed his penis. (Pl. Dep. 179:4-9.) While sitting at the foot of her bed, Officer Solis grabbed Plaintiff by her waist area and pulled her towards him. (Pl. Dep. 180:12-25; 181:3-5.) While Officer Solis pulled her towards him, Plaintiff testified that she was scared and did not know what was going on. (Pl. Dep. 181:6-11.) He started kissing her, and she did not return the kisses. (Pl. Dep. 182:1-7.) She “was just kind of frozen.” (Pl. Dep. 182:16.) In her words, he “kept pushing my head down, and he kept using more and more force pushing my head down, and I finally asked him what— what did — did he want, and he told me a blow job. And I just did it. And I remember him leaving just afterward.” (Pl. Dep. 183:2-6.) Plaintiff remained off the bed the entire time.
On Solis’s recollection, after being led to her bedroom Plaintiff “told me that she was showing me her music” (Solis Dep. 109:13-14) and then, while standing at the foot of her bed, “she kissed me and put her *1061 hand on my crotch” (Solis Dep. 109:16-20). At that time, Officer Solis did not attempt to leave — he “didn’t do anything.” (Solis Dep. 110:7-9.) To Officer Solis, Plaintiff seemed rational, calm and coherent. (Solis Dep. 110:12-14.) Then she made a comment like “I know what you’d like, you’d like a blow job.” (Solis Dep. 110:16-17.) He did not answer her. (Solis Dep. 110:20-21.) She pushed him on his chest and onto her bed. (Solis Dep. 110:23-111:1; 111:25-112:10.) Officer Solis did not take any action to avoid being pushed onto her bed, and the push onto her bed was not against his will. (Solis Dep. 113:12-17.) Plaintiff then unzipped Officer Solis’s pants and performed oral sex on him. (Solis Dep. 113:21-25.) He did not make any comment during that time. (Solis Dep. 114:1-5.)
It is undisputed that after receiving oral sex for approximately one minute, Officer Solis ejaculated on Plaintiffs hair and then left the residence. (Doc. 95 at 6.) Plaintiff said “bye” before he left. (PI. Dep. 185:15.) Officer Solis went to his patrol car and notified dispatch that he was clearing the call at 2:16 p.m. (Doc. 95 at 6.) He requested a case number regarding the investigation from the dispatcher. (Id.) Officer Solis spent approximately one hour and thirteen minutes on the scene. (Id.)
After allegations of wrongful conduct by Officer Solis became known, the Kings-burg Police Department initiated an Internal Affairs Investigation. (Doc. 95 at 7.) The Kingsburg Police Department retained Investigator T.J. Law to conduct the investigation (Doc. 95 at 7), and he concluded that “[o]n June 5, 2005 at approximately 1251 hours Officer Solis, while on duty, in full uniform, while counseling a narcotic addicted, bi-polar, manic depressant, took advantage of this woman’s mental health and addiction” (Kapetan Decl. Ex E at 4). Mr. Law also indicated that “both parties’ statements reflect that the act was consensual, not forced or coerced.” (Id.) Solis is no longer employed by the Kingsburg Police Department.
Following her sexual encounter with Officer Solis, Plaintiff filed a complaint in California state court alleging various causes of action against Officer Solis and the City. Plaintiffs second amended complaint, which was also filed in state court, asserts claims against Officer Solis and the City for: (1) negligence; (2) sexual assault; (3) negligent infliction of emotional distress; (4) battery; (5) liability under 42 U.S.C. § 1983 based on a violation of the Fourth Amendment, which is made applicable to the states through the Fourteenth Amendment; (6) liability under California Civil Code § 52.1(b) for a violation of Article I, § 13 of the California Constitution; and (7) intentional infliction of emotional distress. Subsequently, Plaintiffs state court action was removed to federal court, and Plaintiff has not since amended her second amended complaint. The City and Plaintiff both filed motions for summary adjudication.
III. SUMMARY ADJUDICATION STANDARD
A motion for summary adjudication, sometimes referred to as a motion for partial summary judgment, is governed by the same standard as a typical motion for summary judgment.
California v. Camp
bell,
Where the movant will have the burden of proof on an issue at trial, it must “affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party.”
Soremekun v. Thrifty Payless, Inc.,
When a motion for summary judgment is properly made and supported, the non-movant cannot defeat the motion by resting upon the allegations or denials of its own pleading, rather the “non-moving party must set forth, by affidavit or as otherwise provided in Rule 56, ‘specific facts showing that there is a genuine issue for trial.’ ”
Id. (quoting Anderson v. Liberty Lobby, Inc.,
“[Sjummary judgment will not lie if [a] dispute about a material fact is ‘genuine,’ that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
Anderson,
IV. DISCUSSION AND ANALYSIS
A. The City’s Motion For Summary Adjudication
The City’s motion for summary adjudication is brought against Plaintiffs negligence claim (Plaintiffs first cause of action), Plaintiffs § 1983 claim (Plaintiffs fifth cause of action), and Plaintiffs claim under California Civil Code § 52.1(b) for a violation of Article I, § 13 of the California Constitution (Plaintiffs sixth cause of action).
1. Negligence
Plaintiffs negligence claim is asserted against the City and against Officer Solis. In its motion for summary adjudication, the City argues that to the extent Plaintiff is asserting a negligence claim against the City for its own negligent acts (as opposed to any alleged negligent acts of its former employee, Officer Solis), such a claim fails because there is no evidence to support a contention that the City negligently failed to supervise or train Officer Solis. In opposition to the motion, Plaintiff states that she is not asserting a direct negligence claim against the City; rather Plaintiff is asserting that the City is vicariously liable for Officer Solis’s acts committed within the course and scope of his employment. Therefore, as Plaintiff concedes, the City’s “request for summary adjudication should be granted only to the extent that it seeks a determination that Defendant City of Kingsburg did not commit any direct negligent acts.” (Doc. 96 at *1063 2.) Absent evidence and in light of this concession, to the extent Plaintiffs first cause of action for negligence asserts a claim against the City for direct negligence, summary adjudication on that claim is GRANTED in favor of the City and against the Plaintiff.
2. 42 U.S.C. § 1983
Plaintiffs claim under § 1983 is asserted against Officer Solis in his individual and official capacities
and
also separately against the City. Plaintiffs § 1983 claim is premised on an alleged underlying violation of the Fourth Amendment as made applicable to the states through the Fourteenth Amendment. The City moves for summary adjudication on the ground that Plaintiffs § 1983 claim fails for lack of evidentiary support in that Plaintiff cannot establish that the alleged constitutional violation was the product of a policy or custom of the City, or, more specifically, that it was the product of a policy or custom of inadequate training or supervision. In opposition to the motion, Plaintiff conceded that she “will not seek to assert liability against Defendant City of Kings-burg for violation of 42 U.S.C. § 1983. Therefore, Plaintiff does not oppose Defendant City of Kingsburg’s summary adjudication to the extent that it applies to Defendant City of Kingsburg.” (Doc. 96 at 2.) There is no vicarious liability for a public entity under the civil rights law without Monell-type evidence.
See Monell v. Dep’t of Soc. Servs.,
Plaintiffs concession that she will not seek to assert liability against the City for a violation of § 1983 also warrants summary adjudication as to Plaintiffs § 1983 official-capacity claim against Officer Solis. Official-capacity suits “generally represent'only another way of pleading an action against an entity of which an officer is an agent.”
Monell,
*1064 3. California Civil Code § 52.1
Among other things, § 52.1 of the California Civil Code provides an individual with, a statutory mechanism by which to seek relief, in a civil case, for a constitutional violation. Section 52.1(b) provides:
Any individual whose exercise or enjoyment of rights secured by the Constitution or laws of the United States, or of rights secured by the Constitution or laws of this state,- has been interfered with, or attempted to be interfered with as described in subdivision (a), may institute and prosecute in his or her own name and on his or her own behalf a civil action for damages, including, but not limited to, damages under Section 52, injunctive relief, and other appropriate equitable relief to protect the peaceable exercise or enjoyment of the right or rights secured.
This section refers to interference or attempted interference “as described in subdivision (a),” i.e., in § 52.1(a). In pertinent part, § 52.1(a) provides:
If a person or persons, whether or not acting under color of law, interferes by threats, intimidation, or coercion, or attempts to interfere by threats, intimidation, or coercion, with the exercise or enjoyment by any individual or individuals of rights secured by the Constitution or laws of the United States, or of the rights secured by the Constitution or laws of this state, the Attorney General, ' or any district attorney or city attorney may bring a civil action ....
(Emphasis added.) “The word ‘interferes’ as used in [§ 52.1] means ‘violates.’ ”
Austin B. v. Escondido Union Sch. Dist.,
Consistent with the language of the statute, and California case law makes clear, to sustain a claim under § 52.1(b) based on an alleged constitutional violation (as Plaintiff attempts to do in this case), it must be demonstrated that the violation occurred
and
that the violation was accompanied by threats, intimidation or coercion within the meaning of the statute.
See Venegas v. County of Los Angeles,
Plaintiffs claim under § 52.1(b) asserts a violation of Article I, § 13 of the California Constitution, which states: *1065 Here, whether Officer Solis subjected Plaintiff to any threats, intimidation or coercion is not an issue on which the City moves for summary adjudication. Rather, the City moves for summary adjudication on the ground that Officer Solis did not violate Plaintiffs rights under the California Constitution because, according to the City, he did not “seize” her at the Barsa-mian residence.
*1064 The right of the people to be secure in their persons, houses, papers, and effects against unreasonable seizures and searches may not be violated; and a warrant may not issue except on probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons and things to be seized.
*1065
Both the “Fourth Amendment to the United States Constitution and article I, section 13 of the California Constitution proscribe seizures of persons, even brief investigative detentions, that are unreasonable.”
People v. Britton,
In
Celis,
the California Supreme Court noted that “ ‘[a] seizure occurs whenever a police officer ‘by means of physical force or show of authority’ restrains the liberty of a person to walk away.’ ”
As more recently explained by the California Supreme Court in
People v. Zamudio,
a seizure of an individual occurs only when the “ ‘officer, by means of physical force or show of authority, terminates or restrains’ ” an individual’s “ ‘freedom of movement’ ” “ ‘through means intentionally applied’ ” by the officer.
In the context of its motion, the City does not argue that Plaintiff consented to any conduct that would otherwise constitute a seizure of her person. Nor does the City argue that, if any seizure occurred, it *1066 was reasonable under Article I, § 13 of the California Constitution. Rather, the City argues that Officer Solis, by his conduct, did not effectuate a seizure of Plaintiff. Accordingly, as to the City’s motion, Plaintiffs consent vel non and the reasonableness of any seizure of Plaintiffs person should not be within the scope of this order.
In its initial brief, the City argues that “[t]he words and actions of Martin Solis on June 5, 2005, could not have conveyed to Ms. Barsamian, or any reasonable person, that she was arrested or detained by Mr. Solis. Her actions on June 5, 2005, ... were the actions of a person who was free to move about her residence as she chose to do.” (Doe. 89 at 23.) In response to the City’s motion, Plaintiff argues that the City has ignored Plaintiffs version of the events, as “[c]learly” she was seized by Officer Solis when he, while in her bedroom, grabbed Plaintiff and forced her head downward. (Doc. 96 at 5.) In its reply brief, the City argues that, even if Officer Solis grabbed Plaintiff and forced her head downward toward his crotch, his use of physical force did not constitute a seizure. (Doc. 102 at 2.) The City’s argument is unpersuasive.
A seizure can be effectuated “by means of physical force or show of authority.”
Zamudio,
Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating compliance with the officer’s request might be compelled.
United States v. Anderson,
The City argues that Officer Solis’s conduct in grabbing Plaintiff and forcing her head downward did not reflect that he intended to “limit, restrict, or take away her liberty to walk away from the situation.” Rather, his conduct was merely done in the course of a “sexual act between two adults.” (Doc. 102 at 2.) This is nonsense. The question is whether, in light of the all of surrounding circumstances, a reasonable person would not feel free to leave or terminate the encounter.
If Officer Solis intentionally grabbed Plaintiff and, in a suggestive manner, pushed Plaintiffs head downward, a jury could find that Officer Solis seized Plain *1067 tiff. Viewing all the surrounding facts in a light most favorable to Plaintiff, and crediting her version of the events, a reasonable trier of fact could conclude that not only would Plaintiffs (and a reasonable person’s) movement be restrained when Officer Solis actually grabbed her and pushed her downward, but such conduct would also communicate to reasonable person that she was not free to leave or terminate the encounter. The City’s motion for summary adjudication on the issue of whether a seizure occurred is DENIED.
B. Plaintiffs Motion For Summary Adjudication
Plaintiff moves for summary adjudication on the issue of whether Solis was acting within the scope of his public employment when he received oral sex from Plaintiff.
3
“Generally, the issue of scope of employment is a question of fact, but becomes a question of law when the facts are undisputed and no conflicting inferences are possible.”
Billings v. United States,
1. California Case Law On Respondeat Superior
Under the state law rule 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 Mem’l Hosp.,
In
Mary M.,
around 2:30 a.m., an on-duty uniformed police officer, Sergeant Leigh Schroyer, activated the red lights on his patrol car and stopped plaintiff, Mary M., for erratic driving.
In analyzing whether the public entity that employed the officer could be liable for the officer’s rape of plaintiff under the doctrine of respondeat superior, the California Supreme Court first determined whether the doctrine should be invoked in light of the three policy objectives which the doctrine serves.
Id.
at 214,
After concluding that the three policy reasons behind the doctrine of respondeat superior would be advanced by imposing vicarious Lability for the officer’s conduct, the court then considered whether the doctrine of respondeat superior
could
be (as opposed to
should
be) invoked on the facts of the case.
5
As to this issue, tortious conduct falls within the scope of employment when the risk of such conduct “may fairly be regarded as typical of or broadly incidental to the enterprise undertaken by the employer.”
Id.
at 217,
The “typical of or broadly incidental to” inquiry deals with whether there is a sufficient “nexus” or “link” between the tortious conduct and the employee’s work to invoke the rule of respon-deat superior:
The nexus required for respondeat superior liability-that the tort be engendered by or arise from the work-is to be distinguished from ‘but for’ causation. That the employment brought tortfeasor and victim together in time and place is not enough. We have used varied language to describe the nature of the required additional link (which, in theory, is the same for intentional and negligent torts): the incident leading to injury must be an outgrowth of the employment; 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 ....
Lisa M.,
In
Mary M.
the court determined that although the ultimate act — rape—was obviously unauthorized, it did not fall outside the scope of employment.
Id.
at 214,
Here, Sergeant Schroyer was acting within the scope of his employment when he detained plaintiff for erratic driving, when he ordered her to get out of her car and to perform a field sobriety test, and when he ordered her to get in his police car. Then, misusing his authority as a law enforcement officer, he drove her to her home, where he raped her. When plaintiff attempted to resist Sergeant Schroyer’s criminal conduct, he continued to assert his authority by threatening to take her to jail. Viewing the transaction as a whole, it cannot be said that, as a matter of law, Sergeant Schroyer was acting outside the scope of his employment when he raped plaintiff.
Id.
at 219,
In this case, plaintiff presented evidence that would support the conclusion that the rape arose from misuse of official authority. Sergeant Schroyer detained plaintiff when he was on duty, in uniform, and armed. He accomplished the detention by activating the red lights on his patrol car. Taking advantage of his authority and control as a law enforcement officer, he ordered plaintiff into his car and transported her to her home, where he threw her on a couch. When plaintiff screamed, Sergeant Schroyer again resorted to his authority and control as a police officer by threatening to take her to jail. Based on these facts, the jury could reasonably conclude that Sergeant Schroyer was acting in the course of his employment when he sexually assaulted plaintiff.
Id.
at 221,
Apart from assessing the nexus between the rape and the officer’s work, the Mary M. court also analyzed the foreseeability of that type of tortious conduct in the enterprise of law enforcement.
[Sjociety has granted police officers great power and control over criminal suspects. Officers may detain such persons at gunpoint, place them in handcuffs, remove them from their residences, order them into police cars and, in some circumstances, may even use deadly force. The law permits police officers to ensure their own safety by frisking persons they have detained, thereby subjecting detainees to a form of nonconsensual touching ordinarily deemed highly offensive in our society. In view of the considerable power and authority that police officers possess, it is neither startling nor unexpected that on occasion an officer will misuse that authority by engaging in assaultive conduct. The precise circumstances of the assault need not be anticipated, so long as the risk is one that is reasonably foreseeable. Sexual assaults by police officers are fortunately uncommon; nevertheless, the risk of such tortious con *1070 duct is broadly incidental to the enterprise of law enforcement ....
Id.
at 217-28,
In Mary M., in light of the officer’s use of authority to initially detain plaintiff, his misuse of authority in continuing to detain her and effectuating his rape of plaintiff, and the foreseeability of assaultive conduct in the enterprise of law enforcement, the court ultimately held:
[W]hen, as in this case, a police officer on duty misuses his official authority by raping a woman whom he has detained, the public entity that employs him can be held vicariously liable. This does not mean that, as a matter of law, the public employer is vicariously liable whenever an on-duty officer commits a sexual assault. Rather, this is a question of fact for the jury. 6
2. California Civil Jury Instructions On Respondeat Superior
Subsequent to Mary M., the Judicial Council of California approved of Civil Jury Instructions dealing with vicarious liability and the scope of employment issue (which neither party discusses). CACI 3270, entitled “Scope of Employment,” reads as follows:
[Name of Plaintiff ] must prove that [name of agent ] was acting within the scope of [his/her] [employment/authorization] when [name of plaintiff] was harmed.
Conduct is within the scope of [employment/authorization] if:
(a) It is reasonably related to the kinds of tasks that the [employee/agent] was employed to perform; or
(b) It is reasonably foreseeable in light of the employer’s business or the [agent’s/employee’s job] responsibilities.
In the “Directions for Use” section of CACI 3720, it states “[f]or an instruction on the scope of employment in cases involving on-duty peace officers, see CACI No. 3721.” In turn, CACI 3721, entitled “Scope of Employment — Peace Officer’s Misuse of Authority,” reads as follows:
[Name of plaintiff] must prove that [name of agent ] was acting within the scope of [his/her] [employment/authorization] when [name of plaintiff] was harmed.
The conduct of a peace officer is within the scope of [his/her] employment as a peace officer if all of the following are true:
(a) The conduct occurs while the peace officer is on duty as a peace officer;
(b) The conduct occurs while the peace officer is exercising [his/her] authority as a peace officer; and
*1071 (c) The conduct results from the use of [his/her] authority as a peace officer.
3. Application Of California Law
Plaintiff, as the moving party who has the burden of proof on the scope of employment issue,
Delfino v. Agilent Technologies, Inc.,
As mentioned, “[generally, the issue of scope of employment is a question of fact, but becomes a question of law when the facts are undisputed and no conflicting inferences are possible.”
Billings,
Plaintiff admitted in her deposition that, after her parents left, Officer Solis got up from the kitchen table and was getting ready to leave. He indicated that he did not want to be disrespectful. Plaintiff stated to him, “I won’t disrespect you,” and she hugged him (as she concedes). Subsequently, according to Solis, he was walking to the door and was going to leave the residence but Plaintiff, after she had already hugged him and kissed him, grabbed him and led him into her bedroom where she kissed him further, grabbed his crotch, pushed him on her bed and unzipped his pants. On his version of the events, he, unlike the officer in Mary M., did not physically transport or escort Plaintiff to the scene of the incident, did not further control her there (in the bedroom), did not make any threats to arrest Plaintiff or take her to jail, and did nothing to physically force Plaintiff to give him oral sex; rather he received a sexual act without compulsion on his part.
Given the evidence it cannot be concluded, as a matter of law, that Officer Solis misused official authority in obtaining, or to obtain, oral sex. Stated in the words of CACI 3721, it cannot be concluded, as a matter of law, that Officer Solis was exercising (or misusing) his authority as a police officer at the time the sexual act occurred or that the sexual act was a result of his use (or misuse) of authority. There are, of course, facts that cut both ways, but whether a trier of fact ultimately believes that the sexual act occurred while Plaintiff was subject to Officer Solis’s use (or misuse) of authority is for the trier of fact to decide.
Both at oral argument and in her briefing, Plaintiff argued that the following passage from Mr. Law’s investigation report compels the conclusion that Officer Solis was acting within the scope of his employment:
Officer Solis, while on duty, in full uniform, while counseling a narcotic addicted, bi-polar, manic depressant, took advantage of this woman’s mental health and addiction.
(Kapetan Deck Ex E at 4.) Conspicuously absent from this passage, however, is any mention that Solis actually used or misused his
authority as an officer
to take advantage of Plaintiff or to obtain oral sex.
Cf. Mary M.,
In terms of foreseeability, while “a police officer’s assault may be foreseeable from the scope of his unique authority over detainees,”
Lisa M.,
Plaintiff essentially argues that it would be incongruous to conclude that although a rape of a detainee falls within the scope of an officer’s employment,
Mary M.,
a less violent form of sexual conduct (oral sex with Plaintiff) does not. (Doc. 105 at 5.) At no point in
Mary M.
did the court indicate that the less serious a sexual tort is, the more likely it will be that it falls within the scope of an officer’s employment irrespective of such considerations as the officer’s use or misuse of authority. Moreover, Plaintiffs argument ignores
Mary M. ’s
admonition that not every “sexual assault” committed by an on-duty officer falls within the scope of employment:
[W]e hold that when, as in this case, a police officer on duty misuses his official authority by raping a woman whom he has detained, the public entity that employs him can be held vicariously liable. This does not mean that, as a matter of law, the public employer is vicariously liable whenever an on-duty officer commits a sexual assault. Rather, this is a question of fact for the jury.
For the foregoing reasons, Plaintiffs motion for summary adjudication is DENIED.
V. CONCLUSION
For the reasons stated above:
1. Summary adjudication is GRANTED in favor of the City and against Plaintiff on her negligence claim to the extent it seeks to impose liability on the City for its own direct negligent acts;
2. Summary adjudication is GRANTED in favor of the City and against Plaintiff on her § 1983 claim asserted against the City and Officer Solis in his official capacity;
3. The City’s motion for summary adjudication on the issue of whether a seizure of Plaintiff occurred is DENIED; and
4. Plaintiffs motion for summary adjudication on the issue of whether Officer Solis acted within the scope of his employment when he received oral sex is DENIED.
In light of the ruling, Plaintiffs objection (Doc. 104) to the City’s Additional Uncontroverted Material Facts Nos. 52, 53, and 54, as well as to the Declaration of T.J. Law, is denied as moot.
IT IS SO ORDERED.
Notes
. The City does not dispute that this prior encounter occurred, only its relevance. This prior encounter is, at minimum, relevant to provide some background and context.
See Pelayo v. City of Downey,
. This leaves Plaintiff with a federal claim under § 1983 against Officer Solis in his individual capacity.
. Plaintiff does not move for summary adjudication on whether Officer Solis committed any underlying torts.
. The City also cites to
K.G. v. County of Riverside,
. In its later
Lisa M.
decision, the California Supreme Court reversed these inquiries. There, the court first determined whether the doctrine of respondeat superior
could
be invoked on the facts of the case.
Lisa M.,
. A few years after
Mary M., in Lisa M.,
the California Supreme Court articulated two general approaches to respondeat superior liability (both of which were reflected in
Mary
M.) Under the first approach, touched upon above, the court analyzed whether there was a sufficient “nexus” or “link” between the tortious conduct and the employee’s work for the rule of respondeat superior to apply.
Lisa M., 12
Cal.4th at 298, 300-01,