Page 1 621 F.3d 944, 10 Cal. Daily Op. Serv. 11,553, 2010 Daily Journal D.A.R. 14,025 (Cite as: 621 F.3d 944) 170Bk776 k. Trial de novo. Most Cited Cases United States Court of Appeals, Court of Appeals reviews de novo a dismissal Ninth Circuit. for failure to state a claim. XUE LU; Jie Hao, Plaintiffs-Appellants, v. [2] United States 393 78(3) Thomas POWELL; Robert Looney, Defendants, and 393 United States United States of America, Defendant-Appellee. 393V Liabilities 393k78 Torts No. 08-56421. 393k78(3) k. Private person's liability as Argued and Submitted May 7, 2010. measure. Most Cited Cases Filed Sept. 2, 2010. “Like circumstances” to private individual liab- ility, as required to establish government liability Background: Asylum applicants filed Federal Tort under the Federal Tort Claims Act (FTCA), are not Claims Act (FTCA) lawsuit against government identical circumstances. 28 U.S.C.A. § 2674. and federal immigration officer, alleging that the officer solicited bribes and sexually molested them. [3] United States 393 78(14) The United States District Court for the Central District of California, Consuelo B. Marshall, J., dis- 393 United States missed action. Asylum applicants appealed. 393V Liabilities 393k78 Torts Holdings: The Court of Appeals, Noonan, Circuit 393k78(14) k. Place of injury and law Judge, held that: governing. Most Cited Cases (1) federal immigration officer acted within the Jurisdictional provision of the Federal Tort “scope of his employment” when he solicited bribes Claims Act (FTCA), requiring that the government from and sexually molested asylum applicants, and employee be acting within the scope of his employ- (2) discretionary function exception under FTCA ment, applies according to the law of the state applied. where the alleged tort occurred. 28 U.S.C.A. § 1346(b)(1). Affirmed in part, reversed in part, and re- manded. [4] Labor and Employment 231H 3046(1) 231H Labor and Employment Jay S. Bybee, Circuit Judge, filed opinion, con- 231HXVIII Rights and Liabilities as to Third curring in part, dissenting in part Parties 231HXVIII(B) Acts of Employee West Headnotes 231HXVIII(B)1 In General [1] Federal Courts 170B 776 231Hk3044 Scope of Employment 231Hk3046 Furtherance of Em- 170B Federal Courts ployer's Business 170BVIII Courts of Appeals 231Hk3046(1) k. In general. 170BVIII(K) Scope, Standards, and Extent Most Cited Cases 170BVIII(K)1 In General California does not follow the traditional rule that an employee's actions are within the scope of © 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 2 621 F.3d 944, 10 Cal. Daily Op. Serv. 11,553, 2010 Daily Journal D.A.R. 14,025 (Cite as: 621 F.3d 944) employment only if motivated, in whole or part, by 231Hk3044 Scope of Employment a desire to serve the employer's interests. 231Hk3045 k. In general. Most Cited Cases [5] Labor and Employment 231H 3055 Under California law, in determining whether employer is vicariously liable for the acts of its em- 231H Labor and Employment ployee, a court looks to the foreseeability of the 231HXVIII Rights and Liabilities as to Third employee's conduct, whether it be authorized or un- Parties authorized, tortious or criminal, because the Cali- 231HXVIII(B) Acts of Employee fornia rule reflects the central justification for re- 231HXVIII(B)1 In General spondeat superior liability: that losses fairly attrib- 231Hk3054 Intentional Acts utable to an enterprise, those which foreseeably res- 231Hk3055 k. In general. Most ult from the conduct of the enterprise, should be al- Cited Cases located to the enterprise as a cost of doing business. Labor and Employment 231H 3062 [7] Labor and Employment 231H 3045 231H Labor and Employment 231H Labor and Employment 231HXVIII Rights and Liabilities as to Third 231HXVIII Rights and Liabilities as to Third Parties Parties 231HXVIII(B) Acts of Employee 231HXVIII(B) Acts of Employee 231HXVIII(B)1 In General 231HXVIII(B)1 In General 231Hk3062 k. Criminal acts. Most 231Hk3044 Scope of Employment Cited Cases 231Hk3045 k. In general. Most Under California law, an employee's willful, Cited Cases malicious and even criminal torts may fall within Under California law, a nexus must exist the scope of his or her employment for purposes of between the employment and the employee's tort if respondeat superior, even though the employer has the employer is fairly to be held vicariously liable. not authorized the employee to commit crimes or intentional torts. [8] Labor and Employment 231H 3045 [6] Labor and Employment 231H 3027 231H Labor and Employment 231HXVIII Rights and Liabilities as to Third 231H Labor and Employment Parties 231HXVIII Rights and Liabilities as to Third 231HXVIII(B) Acts of Employee Parties 231HXVIII(B)1 In General 231HXVIII(B) Acts of Employee 231Hk3044 Scope of Employment 231HXVIII(B)1 In General 231Hk3045 k. In general. Most 231Hk3027 k. Theory and purpose of Cited Cases imposing liability on employer. Most Cited Cases The vicarious liability of a private employer in Labor and Employment 231H 3045 California does not turn on the vulnerability of the victim but on the extent to which the tort of the em- 231H Labor and Employment ployee is incident to his employment. 231HXVIII Rights and Liabilities as to Third Parties [9] United States 393 78(13) 231HXVIII(B) Acts of Employee 393 United States 231HXVIII(B)1 In General © 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 3 621 F.3d 944, 10 Cal. Daily Op. Serv. 11,553, 2010 Daily Journal D.A.R. 14,025 (Cite as: 621 F.3d 944) 393V Liabilities ployee in the course of his employment. 393k78 Torts 393k78(13) k. Scope of office or employ- [12] United States 393 78(12) ment; line of duty. Most Cited Cases 393 United States Federal immigration officer acted within the 393V Liabilities “scope of his employment” when he solicited bribes 393k78 Torts from and sexually molested asylum applicants, as 393k78(12) k. Execution of statutes or required to establish government's vicarious liabil- regulations; discretionary acts or functions. Most ity, under California law, in asylum applicants' Fed- Cited Cases eral Tort Claims Act (FTCA) action; although of- Discretionary function exception under the ficer's conduct was unauthorized, it was incidental Federal Tort Claims Act (FTCA) does not apply to to his employment, as it was a generally foreseeable an action specifically prescribed by a federal stat- risk inherent in the asylum process. 28 U.S.C.A. §§ ute, regulation, or policy, because such an action is 1346(b)(1), 2674. not within an agent's discretion. 28 U.S.C.A. § [10] Damages 115 57.22 2680(a). 115 Damages [13] United States 393 78(12) 115III Grounds and Subjects of Compensatory 393 United States Damages 393V Liabilities 115III(A) Direct or Remote, Contingent, or 393k78 Torts Prospective Consequences or Losses 393k78(12) k. Execution of statutes or 115III(A)2 Mental Suffering and Emo- regulations; discretionary acts or functions. Most tional Distress Cited Cases 115k57.19 Intentional or Reckless In- Discretionary function exception to Federal fliction of Emotional Distress; Outrage Tort Claims Act (FTCA) liability applied to alleged 115k57.22 k. Nature of conduct. conduct of supervisor in failing to discipline im- Most Cited Cases migration officer for allegedly retaining an asylum Under California law, the tort of infliction of file for over 400 days, contrary to immigration reg- emotional distress may be committed intentionally ulations, absent any mandatory duty to discipline or recklessly. officer for retaining the file, or any showing of un- [11] Damages 115 57.51 constitutional policymaking. 28 U.S.C.A. § 2680(a) . 115 Damages 115III Grounds and Subjects of Compensatory *945 Vincent J. DeSimone, Venice, CA, for the Damages plaintiffs-appellants. 115III(A) Direct or Remote, Contingent, or Henry C. Whitaker and Thomas M. Bondy, Wash- Prospective Consequences or Losses ington, D.C., for the defendant-appellee. 115III(A)2 Mental Suffering and Emo- tional Distress 115k57.50 Labor and Employment Appeal from the United States District Court for the 115k57.51 k. In general. Most Cited Central District of California, Consuelo B. Marshall Cases , District Judge, Presiding. D.C. No. Under California law, an employer can be held 2:01-cv-01758-CBM-E. liable for infliction of emotional distress by an em- © 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 4 621 F.3d 944, 10 Cal. Daily Op. Serv. 11,553, 2010 Daily Journal D.A.R. 14,025 (Cite as: 621 F.3d 944) Before: JOHN T. NOONAN, RICHARD R. Approximately a week after her interview, CLIFTON and JAY S. BYBEE, Circuit Judges. Powell telephoned Lu and told her that he would meet her at her residence in Monterey Park. No one Opinion by Judge NOONAN; Partial Concurrence else should be present. On February 26, Powell ap- and Partial Dissent by Judge BYBEE. peared at her apartment and began discussion of her case, stating that he had helped others and could help her. Payment made to him, he insinuated, OPINION would make him approve her application. He then NOONAN, Circuit Judge: attempted to unzip and remove her pants. When she Xue Lu (Lu) and Jie Hao (Hao) appeal the rebuffed him, he told her that her application for judgment of the district court dismissing their suit asylum would be denied. On March 1, 2000, he is- under the Federal Tort Claims Act (FTCA), 28 sued the denial. U.S.C. § 1346(b), and other claims against the United States and various officials. The FTCA in- Lu informed her lawyer of Powell's offer and corporates*946 the law of the state in which the tort overtures.