CA, a MINOR, ETC., Plaintiff

Case No. S188982 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA ______

C.A., A MINOR, ETC., Plaintiff and Appellant,

WILLIAM S. HART UNION HIGH SCHOOL DISTRICT, et al., Defendants and Respondents. ______

On Appeal from a Decision of the Court of Appeal Second Appellate District, Division One, Case No. B217985

Los Angeles County Superior Court Case No. PC 044428 The Honorable Melvin Sandvig

APPLICATION FOR LEAVE TO FILE AMICUS CURIAE BRIEF AND PROPOSED AMICUS CURIAE BRIEF OF THE CALIFORNIA STATE ASSOCIATION OF COUNTIES AND LEAGUE OF CALIFORNIA CITIES IN SUPPORT OF DEFENDANTS AND RESPONDENTS WILLIAM S. HART UNION HIGH SCHOOL DISTRICT ______Jennifer B. Henning (SBN 193915) California State Association of Counties 1100 K Street, Suite 101 Sacramento, CA 95814-3941 Telephone: (916) 327-7534 Facsimile: (916) 443-8867

Attorney for Amicus Curiae California State Association of Counties and League of California Cities The California State Association of Counties (“CSAC”) and the

League of California Cities (“League”) seek leave to file the attached amicus brief in support of Defendants and Respondents, William S. Hart

Unified High School District and Golden Valley High School.

The League of California Cities is an association of 466 California cities dedicated to protecting and restoring local control to provide for the public health, safety, and welfare of their residents, and to enhance the quality of life for all Californians. The League is advised by its Legal

Advocacy Committee, which is comprised of 24 city attorneys from all regions of the State. The Committee monitors litigation of concern to municipalities, and identifies those cases that are of statewide or nationwide significance. The Committee has identified this case as being of such significance.

The California State Association of Counties (CSAC) is a non-profit corporation. The membership consists of the 58 California counties.

CSAC sponsors a Litigation Coordination Program, which is administered by the County Counsels’ Association of California and is overseen by the

Association’s Litigation Overview Committee, comprised of county counsels throughout the state. The Litigation Overview Committee monitors litigation of concern to counties statewide and has determined that this case is a matter affecting all counties.

1 The issues presented in this case implicate the California

Government Claims Act and its restriction of public entity liability to statutory violations. Resolution of the issue of whether a public entity can be found vicariously liable for the alleged negligent hiring, retention or oversight of an employee is critical for cities and counties throughout the

State. Permitting vicarious liability claims against a public entity for something other than an identifiable violation by a public employee of a specific duty owed to a plaintiff essentially allows plaintiffs to end run the limitation on public entity liability by imposing liability on public agencies for conduct outside their employees’ course and scope of employment. It would greatly expand public entity liability, is contrary to the statutory scheme of public liability, and runs counter to long-standing case law.

California cities and counties are familiar with the issues before this

Court and the scope of their presentation, and believe that further briefing on public entity liability would be helpful. Specifically, to the extent plaintiff argues that general vicarious liability of a public agency exists for negligent hiring and supervision absent a special relationship between the offending agency employee and the plaintiff, CSAC and the League present additional briefing on the law refuting that contention.

For the foregoing reasons, CSAC respectfully requests that the

Court accept the accompanying amicus curiae brief.

Dated: Respectfully submitted,

By: ______JENNIFER B. HENNING

Attorney for Amicus Curiae California State Association of Counties and League of California Cities

3 Case No. S188982 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA ______

C.A., A MINOR, ETC., Plaintiff and Appellant,

WILLIAM S. HART UNION HIGH SCHOOL DISTRICT, et al., Defendants and Respondents. ______

On Appeal from a Decision of the Court of Appeal Second Appellate District, Division One, Case No. B217985

Los Angeles County Superior Court Case No. PC 044428 The Honorable Melvin Sandvig

[PROPOSED] AMICUS CURIAE BRIEF OF THE CALIFORNIA STATE ASSOCIATION OF COUNTIES AND LEAGUE OF CALIFORNIA CITIES IN SUPPORT OF DEFENDANTS AND RESPONDENTS WILLIAM S. HART UNION HIGH SCHOOL DISTRICT ______Jennifer B. Henning (SBN 193915) California State Association of Counties 1100 K Street, Suite 101 Sacramento, CA 95814-3941 Telephone: (916) 327-7534 Facsimile: (916) 443-8867

Attorney for Amicus Curiae California State Association of Counties and League of California Cities

TABLE OF CONTENTS

TABLE OF AUTHORITIES...... ii

INTRODUCTION...... 1

ARGUMENT ...... 2

I. PUBLIC ENTITY LIABILITY, WHETHER DIRECT OR VICARIOUS, MUST BE ROOTED IN STATUTORY OBLIGATIONS...2

A. The Government Claims Act Requires a Specified Statutory Ground for Allegations for Direct Negligence of a Public Entity ...... 2

B. Vicarious Liability Requires Specific Elements: An Individual Employee Owing a Duty in the Same Manner as a Private Individual, and a Breach of that Duty by the Employee, Which Breach Causes Plaintiff’s Harm ...... 6

1. Plaintiff’s argument has the effect of imposing liability for acts outside of the course and scope of employment ...... 7

2. Plaintiff must show that a supervising employee was or could be found liable ...... 9

II. EASTBURN AND MUNOZ ESTABLISH CLEAR LINES BETWEEN DIRECT AND VICARIOUS LIABILITY THAT ARE BLURRED BY PLAINTIFF’S THEORIES ON LIABILITY...... 12

CONCLUSION ...... 17

CERTIFICATION OF COMPLIANCE...... 19

TABLE OF AUTHORITIES

CASES Becerra v. County of Santa Cruz (1998) 68 Cal.App.4th 1450 ...... 2

Berumen v. Los Angeles County Dept. of Health Services (2007) 152 Cal.App.4th 372...... 16

City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74 ...... 6

Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790...... 11

Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175...... passim

Grudt v. City of Los Angeles (1970) 2 Cal.3d 575 ...... 7

Hess v. Ford Motor Co. (2002) 27 Cal.4th 516 ...... 5

Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925...... 3

John R. v. Oakland Unified School District (1989) 48 Cal.3d 438...... 7

Kelly v. Methodist Hospital of So. California (2000) 22 Cal.4th 1108...... 5

Lloyd v. County of Los Angeles (2009) 172 Cal.App.4th 320...... 16

Miklosy v. Regents of the University of California (2008) 44 Cal.4th 876...... 16

Munoz v. City of Union City (2004) 120 Cal.App.4th 1077...... passim

Rodriguez v. Inglewood Unified School Dist. (1986) 186 Cal.App.3d 707 ..3

Searcy v. Hemet Unified School Dist. (1986) 177 Cal.App.3d 792 ...... 4

Valencia v. County of Sonoma (2007) 158 Cal.App.4th 644 ...... 16

Weaver v. State of California (1998) 63 Cal.App.4th 188...... 11

White v. Ultramar, Inc. (1999) 21 Cal.4th 563 ...... 5

Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112 ...... 3, 13

Zuniga v. Housing Authority (1995) 41 Cal.App.4th 82...... 3

STATUTES Gov. Code, § 810 et seq...... 2

Gov. Code, § 815...... 2, 8, 12

Gov. Code, § 815.2...... 8, 11

Gov. Code, § 820...... 8

Gov. Code, § 820.8...... 11

OTHER AUTHORITIES Recommendation Relating to Sovereign Immunity (Jan. 1963) 4 Cal. Law Revision Com. Rep. (1963) p. 840 ...... 5

Sen. Com. on Judiciary, Rep. on Sen. Bill No. 42 (1963 Reg. Sess.) Sen. J. (1963 Reg. Sess.), p. 1888 ...... 5

iii

INTRODUCTION

The facts alleged in this case are troubling. According to the complaint, a student was abused by a person he should have been able to trust. If the allegations are true, the abuser, a school guidance counselor, acted well outside of the boundaries of her job, and in so doing subjected herself to both criminal and personal civil liability. While the alleged facts are compelling, proving negligence on the part of the school district defendant requires more.

Indeed, plaintiff is attempting to hold a public entity liable in tort without identifying a statutory basis for the liability. But the law in this regard is straightforward: Public entities in California are not subject to direct liability for negligence, and can only be found vicariously liable where an individual within the entity violated a specific duty owed to plaintiff. The California State Association of Counties (“CSAC”) and the

League of California Cities (“League”) urge this Court to uphold the language and intent of the Legislature in passing the Government Claims

Act and rule that in the absence of a statute creating a duty or providing for liability, no cause of action grounded in common law negligence can be brought against public entities.

ARGUMENT

I. PUBLIC ENTITY LIABILITY, WHETHER DIRECT OR VICARIOUS, MUST BE ROOTED IN STATUTORY OBLIGATIONS.

A. The Government Claims Act Requires a Specified Statutory Ground for Allegations for Direct Negligence of a Public Entity.

The liability of public entities for common law negligence ended in

1963 with the passage of the California Government Claims Act (Gov.

Code, § 810 et seq.1), which provides that public entities cannot be held liable for injuries unless a statute provides for liability. The relevant provisions begin with section 815, subdivision (a), which states that public entities are not liable for injuries “[e]xcept as otherwise provided by statute.”

The effect of the enactment of section 815, subdivision (a) was more than just to suggest that government liability is statutory. It “abolished all common law or judicially declared forms of liability for public entities, except for such liability as may be required by the federal or state

Constitution.” (Becerra v. County of Santa Cruz (1998) 68 Cal.App.4th

1450, 1457 (internal quotes omitted).) “Thus, in California, all government

tort liability must be based on statute. In the absence of a constitutional

requirement, public entities may be liable only if a statute . . . is found

declaring them to be liable.” (Hoff v. Vacaville Unified School Dist. (1998)

1 All future code citations will be to the Government Code unless noted.

19 Cal.4th 925, 932 (internal quotes, citations, and footnotes omitted).) “In

short, sovereign immunity is the rule in California; governmental liability is

limited to exceptions specifically set forth by statute.” (Zuniga v. Housing

Authority (1995) 41 Cal.App.4th 82, 92 (internal citations and quotes

omitted).)

The resulting rule of law is that when a public entity is alleged to be

directly liable for taking or failing to take some action, a statute must

provide for liability. Based on this principle, this Court held in Eastburn v.

Regional Fire Protection Authority (2003) 31 Cal.4th 1175, that in order to

determine whether a cause of action can be brought against a public entity,

the court “must first determine whether any statute imposes direct liability

on the public entity.” (Id. at p. 1179 (emphasis in original).)

Any question about whether public entities may be found liable

without a statute being identified is resolved by viewing the intent language

of the Government Claims Act. The intent of the Act “is to confine

potential governmental liability, not to expand it.” (Eastburn, supra, 31

Cal.4th at p. 1179, citing Zelig v. County of Los Angeles (2002) 27 Cal.4th

1112, 1127.) Thus, based on the Government Claims Act, even when a

public entity breaches a common law duty, there is no liability unless a

statutory ground applies. (Rodriguez v. Inglewood Unified School Dist.

(1986) 186 Cal.App.3d 707, 715-16.) Also, “[s]ince the duty of a

governmental agency can only be created by statute or ‘enactment,’ the

statute or ‘enactment’ claimed to establish the duty must at the very least be identified.” (Searcy v. Hemet Unified School Dist. (1986) 177 Cal.App.3d

792, 802.) As this Court has held, if courts allowed public entities to be

sued directly for general negligence in the absence of a specific statute

providing for liability, the intent behind the Government Claims Act would

be violated:

[D]irect tort liability of public entities must be based on a specific statute declaring them to be liable, or at least creating some specific duty of care. . . . Otherwise, the general rule of immunity for public entities would be largely eroded by the routing application of general tort principles . . . .

(Eastburn, supra, 31 Cal.4th at p. 1183.)

Thus, California courts have clearly ruled that pursuant to the language and the intent of the Government Claims Act, public entities in

California may not be sued for common law torts such as negligence unless

a statute creates a duty or provides liability.

Moreover, there is no statutory liability for negligent hiring or

supervision. In fact, the California Legislature long ago rejected a general

cause of action for negligent hiring or supervision when it declined to enact

proposed Government Code section 815.8. That section would have made

public entities liable for failure to exercise due care in appointing, or in

failing to remove or discipline, employees. Proposed Government Code

section 815.8 stated in pertinent part as follows:

A public entity is liable for injury caused by an employee of a public entity if the injury was proximately caused by the failure of the appointing power of the public entity to: (a) exercise due care in selecting or appointing the employee; or (b) exercise due care to eliminate the risk of such injury after the appointing power had knowledge or notice that the conduct, or the continued retention, of the employee in the position to which he was assigned created an unreasonable risk of such injury.”

(Recommendation Relating to Sovereign Immunity (Jan. 1963) 4 Cal. Law

Revision Com. Rep. (1963) p. 840.)

While it was considering and approving the rest of the Government

Claims Act statutory scheme, the Senate deleted this provision on liability for negligent hiring and supervision from the Act. (Sen. Com. on Judiciary,

Rep. on Sen. Bill No. 42 (1963 Reg. Sess.) Sen. J. (1963 Reg. Sess.), p.

1888.) Our courts have long held that adding or striking language from the statutory scheme that is enacted is relevant in construing the meaning of the statute. Indeed, “the Legislature’s rejection of a specific provision which appeared in the original version of an act supports the conclusion that the act should not be construed to include the omitted provision.” (Hess v. Ford

Motor Co. (2002) 27 Cal.4th 516, 532 [deleting reference to “prejudgment” interest under Civil Code section 3291]; Kelly v. Methodist Hospital of So.

California (2000) 22 Cal.4th 1108, 1116 [Legislature presumed not to have intended to limit FEHA exemption to religious entities’ religious operations where it rejected language that would have done just that]; White v.

Ultramar, Inc. (1999) 21 Cal.4th 563, 576-577 [narrowing standard for a

corporate employer’s liability for punitive damages where Legislature

rejected language that would have broadened the standard]; City of Santa

Cruz v. Municipal Court (1989) 49 Cal.3d 74, 88 [Legislature’s deletion of

personal knowledge requirement in statute governing Pitchess motions

barred courts from implying such a requirement].) Thus, plaintiff clearly

has no statutory basis for attempting to impose liability upon the defendant

school district for negligent hiring or supervision. Such liability was

considered and rejected by the Legislature at the same time the rest of the

government liability statutory scheme was enacted.

Plaintiff argues that when a government entity – through its

employees – negligently hires, retains or supervises an employee who in

turn directly injures plaintiff, then the entity can be found vicariously liable.

In other words, plaintiff asks this Court to allow vicarious liability of a

public entity because one or more unidentified employees failed to detect

that another employee was unfit for the job.2 But plaintiff is simply wrong

2 It is not entirely clear whether plaintiff relies exclusively on a special relationship between the school district and its students in making its vicarious liability argument. The vast majority of plaintiff’s briefing focuses on the existence of this special relationship and the obligations the relationship imposes on the school district. CSAC and the League take no

on the law. In order for plaintiff to prevail, he must show that a supervising employee was or could be found liable.

1. Plaintiff’s argument has the effect of imposing liability for acts outside of the course and scope of employment.

Plaintiff does not attempt to hold the school district directly liable

for the tortious conduct of the offending guidance counselor,

acknowledging that there is no statutory authority for such direct liability.3

Plaintiff argues that it is not seeking to hold the school district vicariously

liable for the offending guidance counselor’s tortious conduct,

acknowledging that the conduct was outside of the course and scope of her

employment and therefore beyond the reach of the vicarious liability position on whether such a special relationship exists in this case. However, at least a portion of plaintiff’s brief suggests that a public entity can be subjected to general vicarious liability even absent a special relationship if an employee fails to detect that another employee is unfit. Should this Court determine that the defendants can be found vicariously liable, CSAC and the League urge, for the reasons set forth in this brief, that such finding be based on a special relationship between the employee(s) committing the negligent hiring/supervision and the plaintiff, rather than general vicarious liability that would be applicable to all public entities, even absent a special relationship.

3 Although plaintiff directly states that it is seeking to hold the district only vicariously liable, and is not pursuing a direct liability theory, plaintiff nevertheless cites to John R. v. Oakland Unified School District (1989) 48 Cal.3d 438, and Grudt v. City of Los Angeles (1970) 2 Cal.3d 575, for the proposition that there is a legal basis for a direct negligence claim against a public employer for hiring, supervising or retaining an employee the entity knew to be dangerous. (Opening Br. pp. 27-30.) Such arguments bolster amici’s concern that the claims of vicarious negligence for hiring and supervision blur the lines between direct and vicarious liability.

statute. Those two avenues having been foreclosed to plaintiff, he argues instead that the school district is vicariously liable for an unspecified employee’s unspecified duty to prevent the offending guidance counselor’s conduct. The argument has no basis in statute, but is merely an attempt to plead around the limitation on public entity liability.

Under the Government Claims Act, public entity liability is treated

differently than public employee liability. The Government Claims Act

established the following basic rules:

• Section 815 provides that public entities cannot be directly liable unless

a statute makes them liable:

Except as otherwise provided by statute: (a) A public entity is not liable for injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.

• Section 815.2, subdivision (a) makes public entities vicariously liable

for torts of their employees committed in the course and scope of their

employment, under specified conditions:

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.

• Section 820, subdivision (a) makes public employees liable in tort to the

extent they would be liable as a private person:

Except as otherwise provided by statute (including Section 820.2), a public employee is liable for injury caused by his act or omission to the same extent as a private person.

Read together, these three sections show the clear intent of the

Legislature in enacting the Government Claims Act: employees of a public entity can only be liable in tort to the same extent as private persons, and a public entity can only be vicariously liable for its employees’ conduct if the elements of the employee’s statutory liability are proven.

2. Plaintiff must show that a supervising employee was or could be found liable.

The argument that a public entity can be held vicariously liable for the harms caused by one employee based on negligent hiring and supervision by other employees was rejected by the Court of Appeal in

Munoz v. City of Union City (2004) 120 Cal.App.4th 1077, 1113. In

Munoz, the jury found a city both vicariously liable for the conduct of one of its police officers and directly liable for its negligence in hiring, training and supervising the officer. (Ibid.) The Court of Appeal reversed the finding of direct liability, explaining that plaintiffs were “unable to refer us to any statutory basis either declaring Union City directly liable under the circumstances of this case or, creating at least, one specific duty of care.”

(Ibid.)

The court noted that plaintiffs argued on appeal that the direct

negligence portion of the jury’s verdict was actually based on vicarious

liability principles. (Munoz, supra, 120 Cal.App.4th at p. 1113.) The

appellate court rejected the argument. It noted that a public entity is subject to vicarious liability only “if and when it is adjudged that the employee was

negligent. . . .” (Ibid.) The court explained that “while [plaintiffs] are correct insofar as they state public entities always act through individuals, that does not convert a claim for direct negligence into one based on vicarious liability.” (Ibid.)

As Munoz notes, the Supreme Court in Eastburn, supra, “clearly did

not adopt the view that because all entities, public and private, must act

through individuals, that suffices to establish direct liability. . . . Indeed, the

legal distinction between direct and vicarious liability was the whole point

and purpose of the Eastburn decision.” (Munoz, supra, 120 Cal.App.4th at

p. 1113.)

In the present case, as in Munoz, plaintiff cannot identify a statutory

basis for declaring the school district directly liable. Thus plaintiff argues

that the school district is vicariously liable for the conduct of unspecified

employees involved in hiring or supervising the offending guidance

counselor. Yet, as noted in the defendants’ answering brief, no negligence

claim was pursued against any individual employee. Indeed, no individual

employee was identified as a defendant, nor was any specific duty

identified that would be imposed upon a public entity employee in the same

manner as a private person.

In short, plaintiff elected to proceed on a vicarious liability /

negligent hiring and supervision claim against the offending guidance counselor’s employer. But a negligent hiring or supervision claim is “a direct, not vicarious theory of liability.” (Delfino v. Agilent Technologies,

Inc. (2006) 145 Cal.App.4th 790, 815.) Only the employer, not its employees, may be held liable under a negligent hiring and supervision cause of action because individual supervisors themselves are not

“employers.”

Further, section 820.8 unambiguously provides that “a public employee is not liable for an injury caused by the act or omission of another

person.” Thus, in Weaver v. State of California (1998) 63 Cal.App.4th 188,

202, the court held that a highway patrol commissioner could not be liable

under state law for injuries caused by patrol officers because section 820.8

provided the commissioner with “immunity from liability based on the acts

of his subordinates.” Where public employees are immune from liability,

the public employer is also immune. (Gov. Code, § 815.2, subd. (b)

[“Except as otherwise provided by statute, a public entity is not liable for an

injury resulting from an act or omission of an employee of the public entity

where the employee is immune from liability.”])

Since no individual defendants are named or even identified by position, if this case is allowed to proceed to trial, the jury will be asked to find the defendant entities, not any specific supervisory employee, liable for negligent hiring and supervision. Allowing the case to proceed on such a theory would (1) hold employees liable on a cause of action applicable only to an employer, and (2) render the distinction the California Supreme Court made between “direct” and “vicarious” liability wholly illusory. (See

Munoz, supra, 120 Cal.App.4th at p. 1113, citing Eastburn, supra, 31

Cal.4th at p. 1183.)

II. EASTBURN AND MUNOZ ESTABLISH CLEAR LINES BETWEEN DIRECT AND VICARIOUS LIABILITY THAT ARE BLURRED BY PLAINTIFF’S THEORIES ON LIABILITY.

The decisions in Eastburn, supra, 31 Cal.4th 1175, and Munoz,

supra, 120 Cal.App.4th 1077, provide clear guidance on how a public

entity’s direct liability should be analyzed separately and independently

from its vicarious liability.

In Eastburn, plaintiffs alleged that several public entities were

negligent because a 911 dispatcher failed to respond appropriately to an

emergency call. The trial court sustained the public entities’ demurrer, and

the Court of Appeal affirmed. The Supreme Court began its analysis by

citing Section 815, subdivision (a) and stating that under the Government

Claims Act, public entities are not liable for injuries except as otherwise provided by statute. (Eastburn, supra, 31 Cal.4th at p. 1179.) The Court then emphasized that because the complaint alleged negligence on the part

of the public entities (as opposed to an individual), the first step in the

analysis should be to “determine whether any statute imposes direct

liability on defendant agencies here.” (Ibid., emphasis in original.)

The Supreme Court then carefully distinguished liability of the entity

from liability of the employee:

At oral argument, plaintiffs’ counsel suggested that [Section 820(a)] applied. But that section provides only that public employees are liable for injuries from their acts and omissions in the scope of their employment to the same extent as private persons, unless otherwise provided by statute. As we recently observed, no similar provision makes public agencies liable for their own negligent conduct of omission to the same extent as a private person or entity. (Zelig, supra, 27 Cal.4th at pp. 1127-1128.)

(Eastburn, supra, 31 Cal.4th at pp. 1179-1180, emphasis in original.)

After finding that no statute had been cited or found that declared or

defined a public agency’s duty of care with respect to handling 911

emergency calls, the Court turned to vicarious liability. The Court

concluded that Health and Safety Code section 1799.07 provided immunity

to the individual dispatcher. (Eastburn, supra, 31 Cal.4th at pp. 1184-

1185.) The Court held that because “plaintiffs failed to identify an

independent statutory basis for imposing liability on defendants, as required

by Government Code section 815,” the ruling of the Court of Appeal would

be affirmed. (Id. at p. 1185.)

Plaintiff argues that Eastburn is not applicable to this case because

Eastburn relied on a statutory defense of qualified immunity, which is not present here. Plaintiff’s argument misses the point of Eastburn – all public agency liability must be based in statute. In Eastburn, the claim of vicarious liability failed because the individual upon which the agency’s liability was based was protected by qualified immunity. If there is no individual liability, there can be no agency vicarious liability. Similarly here, plaintiff has not identified a statutory basis upon which to hold any specified individual supervisor or employee liable for the conduct of the offending guidance counselor. And since there is no individual liability, there can be no agency vicarious liability.

This analysis was also the basis for the court’s decision in Munoz v.

City of Union City, supra, 120 Cal.App.4th 1077, which examined a cause of action against a public entity for negligent hiring and supervision of a police officer who shot and killed a woman in her home. In Munoz, a jury found that the officer was liable for negligence and battery, and that the city

employing the officer was also directly liable for negligence for having

hired and supervised the officer. On appeal, the court carefully

distinguished between the officer’s negligence, the city’s resulting

vicarious negligence, and the city’s alleged direct negligence. Ultimately,

the court held that the city could not be held directly liable for negligent hiring and supervision because there was no statute providing for direct liability or creating a specific duty of care owed by the city:

Like the plaintiff in Eastburn, respondents have been unable to refer us to any statutory basis either declaring Union City directly liable under the circumstances of this case or, at least, one creating a specific duty of care.

(Munoz, supra, 120 Cal.App.4th at p. 1113.)

On the issue of vicarious liability, the court held that in order for the city to be liable for negligent hiring and supervision, an employee must first be found negligent: “[T]he liability of the employer only attaches if and when it is adjudged that the employee was negligent as well.” (Munoz, supra, 120 Cal.App.4th at p. 1113.)

Faced with the dilemma of being unable to identify a statutory basis for their negligent hiring and supervision claim, the plaintiffs in Munoz argued that the city should still be held vicariously liable for such negligence because all public entity liability for negligence is vicarious, as public entities always act through individuals. But the court rejected that argument, noting that although it was correct that public entities always act through individuals, that fact did not convert a claim for direct negligence into one based on vicarious liability. Thus, the court held that vicarious liability of the city only attaches when a fact-finder decides that the

employee was negligent as well—and in Munoz, no fact-finder found an employee negligent. (Munoz, supra, 120 Cal.App.4th at p. 1113.)

The court’s conclusion that hiring, firing and discipline are entity functions, rather than the function of any individual employee, is unquestionably correct. For example, many of amici’s member cities and counties have civil service commissions, which make and enforce rules related to promotion, demotion, dismissals, suspensions and the like. (See

e.g., Valencia v. County of Sonoma (2007) 158 Cal.App.4th 644, 646-647;

Berumen v. Los Angeles County Dept. of Health Services (2007) 152

Cal.App.4th 372, 376-377.) As such, it belies reality to argue that there is an individual in the public entity context responsible for all supervision and discipline of an employee who has caused harm to plaintiff. Rather, that function properly lies with the agency.

Further, there are instances in which an entity owes an obligation to a plaintiff, but individuals do not. Miklosy v. Regents of the University of

California (2008) 44 Cal.4th 876, presents such a case. In Miklosy, the

court concluded that a common law tort claim alleging wrongful

termination only lies against an employer and not a supervisorial employee.

(Id. at p. 900 [“An individual who in not an employer cannot commit the

tort of wrongful discharge in violation of public policy; rather, he or she

can only be the agent by which an employer commits that tort.”]; See Lloyd

v. County of Los Angeles (2009) 172 Cal.App.4th 320, 330 [“Therefore, a

common law Tameny cause of action for wrongful termination, or a claim of retaliation, lies only against the employer, not against the supervisor through whom the employer commits the tort.”].)

Through these cases, the courts have established clear lines between

direct and vicarious liability. There is no direct agency liability without specific statutory authority, and there is no vicarious agency liability unless an individual acting within the course and scope of agency employment violates a statutory duty that results in harm to plaintiff. Permitting an agency vicarious liability claim to move forward without the requisite clear showing of individual liability – i.e., that an identifiable individual owed a duty (a duty that can be no more extensive than that owed by a private individual), which breach causes plaintiff’s harm – would impermissibly blur the lines between direct and vicarious liability.

CONCLUSION

Contrary to the theory advanced by plaintiff, the school district is not

responsible for the alleged criminal acts perpetrated by the guidance

counselor. Plaintiff acknowledges that the school district is not vicariously

liable for the counselor’s conduct because it was outside of the course and

scope of her employment. Direct liability only applies as provided by

statute, and no statute provides for liability to third parties based on

negligent hiring or supervision. The school district cannot be held

vicariously liable for its supervisory employee’s act because no specific

employee was named, nor a specific breach alleged, and supervisors cannot

be held liable for the acts of a subordinate. There is no other legal basis for

holding the district liable.

Instead, plaintiff is advancing a theory that would essentially hold a

public agency liable for conduct by an employee that was outside of the

course and scope of employment. CSAC and the League urge this Court to

affirm that such liability is not permitted.

Dated: ______Respectfully Submitted,

Jennifer B. Henning, SBN 193915

Attorney for Amicus Curiae California State Association of Counties and League of California Cities

CERTIFICATION OF COMPLIANCE WITH CALIFORNIA RULES OF COURT, RULE 8.204(c)(1) I hereby certify that this brief has been prepared using proportionately double-spaced 13 point Times New Roman typeface. According to the word count feature in my Microsoft Word software, this brief contains 3,895 words. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this ___ day of August, 2011 in Sacramento, California.

Respectfully submitted,

By: ______JENNIFER B. HENNING Attorney for Amicus Curiae