Filed 9/21/26 Doe v. County of San Diego CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
JANE DOE, D086071
Plaintiff and Appellant,
(Super. Ct. No. 37-2019-
v. 00020094-CU-CR-CTL)
THE COUNTY OF SAN DIEGO,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of San Diego County,
Matthew C. Braner, Judge. Reversed.
Law Offices of Joseph M. McMullen and Joseph M. McMullen; Law
Office of Donnie R. Cox and Donnie R. Cox, for Plaintiff and Appellant.
Office of County Counsel, County of San Diego, Andrei V. Dumitrescu
and Ronald L. Lenert, for Defendant and Respondent.
Timothy Wilson, an off-duty sheriff’s deputy, groped 14-year-old Jane
Doe at a restaurant and later used the sheriff’s department computer system
to access Doe’s personal information. As relevant here, Doe sued Wilson’s
employer, The County of San Diego, for common law invasion of privacy
under the rule of respondeat superior. The trial court granted summary
judgment in the County’s favor. Doe appeals, contending the trial court erred
because the issue whether Wilson’s use of the computer system was within
the course and scope of his employment could not be decided as a matter of
law. We agree and reverse.
FACTUAL AND PROCEDURAL BACKGROUND
Wilson worked as a deputy at the County’s Vista Detention Facility. In
March 2018, as Doe stood in line at a restaurant waiting to place an order,
Wilson approached from behind and grabbed her buttocks. At the time,
Wilson was off-duty and not in uniform. Wilson immediately fled the scene.
Doe’s mother called law enforcement. The San Diego County Sheriff’s
Department responded and opened an investigation. During the
investigation, Doe and her mother provided the sheriff’s department with
information, including Doe’s name, home address, cell phone number, and the
school she attended. The sheriff’s department also took photos of Doe for the
investigation file. Doe’s personal information and photographs were entered
into a report maintained in NetRMS, the sheriff’s department’s report-
writing software (the computer system).
During about a two month period, Wilson accessed Doe’s investigative
file in the computer system approximately 44 times. In addition to
repeatedly viewing the file, Wilson downloaded Doe’s photographs and wrote
down her address. Wilson knew his access violated sheriff’s department
policy and admits as much. He testified that he accessed Doe’s information
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out of “curiosity” and “worry” because he perpetrated the assault. He was
arrested after surveillance video from the restaurant identified him as the
suspect. He subsequently resigned from the sheriff’s department and pled
guilty to sexual assault and unauthorized use of a computer system.
After Doe filed this action, the County removed the case to federal
court. Following cross-motions for summary judgment, all federal claims
were resolved, and the matter was remanded to superior court. The sole
remaining claim against the County was for common law invasion of privacy.
Doe alleged that Wilson invaded her privacy by using his position as a
sheriff’s deputy to access her personal information and that the County was
vicariously liable for his conduct. The County moved for summary judgment,
arguing Doe could not establish that Wilson acted within the scope of his
employment when he accessed her information. The trial court agreed. It
found the evidence undisputed that Wilson knew accessing Doe’s file violated
County policy and that his actions were not undertaken within the scope of
his employment because his motivation for accessing the file was personal
rather than law-enforcement related.
DISCUSSION
Doe contends the trial court erred in granting summary judgment for
the County because a reasonable juror could infer from the evidence
presented that Wilson was acting within the scope of his employment when
he used the County’s computer system to access her personal information.
The County disagrees. It argues there are no disputed material facts and the
undisputed evidence establishes, as a matter of law, that Wilson was acting
outside the scope of his employment because his conduct was motivated by
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purely personal reasons.1 Accordingly, we first consider the legal framework
governing respondeat superior liability and then determine whether the
undisputed facts support the County’s position as a matter of law.
A. General Legal Principles
The trial court and reviewing court evaluate a summary judgment
motion under the same framework. (Dollinger DeAnza Associates v. Chicago
Title Ins. Co. (2011) 199 Cal.App.4th 1132, 1144.) First, because summary
judgment is framed by the pleadings, the court examines the complaint to
identify the elements of the causes of action at issue. (Ibid.) Next, the court
reviews the moving papers and supporting evidence to determine whether the
defendant has met its initial burden of establishing that one or more
elements of a claim cannot be proven or that a complete defense exists.
(Ibid.) If the defendant makes the required prima facie showing, the burden
shifts to the plaintiff to present evidence demonstrating a triable issue of
material fact. (Ibid.) On appeal, we independently review the record,
construing the evidence in the manner most favorable to the plaintiff as the
nonmoving and losing party and resolving all doubts and ambiguities in the
1 The County also contends Doe’s invasion of privacy claim is defectively
pled because she failed to identify a statutory basis for imposing liability on
the County. While the County is correct that Doe did not expressly allege a
statutory basis for the County’s liability, it does not follow that her claim is
defective. Doe alleges the County is vicariously liable for Wilson’s conduct
under a theory of respondeat superior. Government Code section 815.2,
subdivision (a), provides 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 . . . have given rise to a
cause of action against that employee . . . .” (See Societa Per Azioni De
Navigazione Italia v. City of Los Angeles (1982) 31 Cal.3d 446, 463–464
[public entity is vicariously liable for any injury which its employee causes to
the same extent as a private employer].)
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evidence in the plaintiff’s favor. (Bailey v. San Francisco Dist. Attorney’s
Office (2024) 16 Cal.5th 611, 620.)
Under the respondeat superior doctrine, an employer is vicariously
liable “for the torts of its employees committed within the scope of the
employment.” (Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995)
12 Cal.4th 291, 296 (Lisa M.).) The California Supreme Court articulated
“three reasons for applying the respondeat superior doctrine: (1) to prevent
recurrence of the tortious conduct; (2) to give greater assurance of
compensation for the victim; and (3) to ensure that the victim’s losses will be
equitably borne by those who benefit from the enterprise that gave rise to the
injury.” (Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 209 (Mary M.).)
“The employer is liable not because the employer has control over the
employee or is in some way at fault, but because the employer’s enterprise
creates inevitable risks as a part of doing business.” (Bailey v. Filco, Inc.
(1996) 48 Cal.App.4th 1552, 1559 (Bailey).) “Ordinarily, the determination
whether an employee has acted within the scope of employment presents a
question of fact; it becomes a question of law, however, when ‘the facts are
undisputed and no conflicting inferences are possible.’ ” (Mary M., supra,
54 Cal.3d at p. 213.) Accordingly, even where the facts are undisputed, if a
reasonable trier of fact could draw conflicting inferences from those facts,
summary judgment is improper.
An employee’s conduct may fall within the scope of employment even if
it was not motivated, in whole or in part, by a desire to serve the employer’s
interests. (Lisa M., supra, 12 Cal.4th at p. 297.) Instead, for purposes of
respondeat superior, an employee’s misconduct may remain within the scope
of employment even when it is willful, malicious, or criminal and was
undertaken without the employer’s authorization. (Id. at pp. 296–297.)
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Although an employee’s willful, malicious, and even criminal torts may fall
within the scope of employment, “an employer is not strictly liable for all
actions of its employees during working hours.” (Farmers Ins. Group v.
County of Santa Clara (1995) 11 Cal.4th 992, 1004 (Farmers).) For the
employer to be liable for an intentional tort, the employee’s act must have a
“causal nexus to the employee’s work.” (Lisa M., at p. 297.) Courts have
articulated the required causal connection in a variety of ways, including that
the injury-producing incident must arise out of the employment, the risk of
harm must be inherent in the work environment, the risk must be typical of
or broadly incidental to the employer’s enterprise, or the tort must constitute
a generally foreseeable consequence of the employer’s business. (Id. at
pp. 298–299; see also Musgrove v. Silver (2022) 82 Cal.App.5th 694, 708–710
[naming the four tests].)
Under the latter formulation, foreseeability in the context of
determining scope of employment means that in the context of the particular
enterprise an employee’s conduct is “ ‘not so unusual or startling that it
would seem unfair to include the loss resulting from it among other costs of
the employer’s business.’ ” (Farmers, supra, 11 Cal.4th at p. 1004.) Some
courts have condensed the foreseeability premise into a two-prong disjunctive
test. (Bailey, supra, 48 Cal.App.4th at p. 1559.) The conduct of an employee
falls within the scope of his or her employment if the conduct either (1) is
required by or incidental to the employee’s duties, or (2) it is reasonably
foreseeable in light of the employer’s business. (Id. at p. 1559; see CACI
No. 3720 [essentially setting forth the two part disjunctive test].) “If the
employee’s act satisfies either part of this two-prong test, the employer is
liable.” (Bailey, at pp. 1559–1560.)
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“Looking at the matter with a slightly different focus, California courts
have also asked whether the tort was, in a general way, foreseeable from the
employee’s duties. Respondeat superior liability should apply only to the
types of injuries that ‘ “as a practical matter are sure to occur in the conduct
of the employer’s enterprise.” ’ [Citation.] The employment, in other words,
must be such as predictably to create the risk employees will commit
intentional torts of the type for which liability is sought.” (Lisa M., supra,
12 Cal.4th at p. 299.)
B. Analysis
The County contends the trial court properly granted summary
judgment because it is not vicariously liable as a matter of law. It advances
two primary arguments: (1) Wilson’s conduct was personally motivated and
did not benefit the County, either directly or indirectly; and (2) there is an
insufficient nexus between the tortious conduct and Wilson’s work. We
address each contention in turn.
Assuming Wilson’s conduct benefited himself rather than the County,
this fact does not establish, as a matter of law, that he acted outside the
scope of his employment. “There is no requirement that an employee’s act
benefit an employer for respondeat superior to apply.” (Perez v. Van
Groningen & Sons, Inc. (1986) 41 Cal.3d 962, 969 (Perez).) An employee may
act within the scope of employment even when pursuing personal objectives
and even when engaging in unauthorized, willful, or criminal conduct. (Lisa
M., supra, 12 Cal.4th at pp. 296–297.) Accordingly, Wilson’s admitted
personal motivation does not end the inquiry.
The relevant question is whether Wilson was transacting County
business when he accessed Doe’s personal information. Although Wilson
accessed Doe’s file because he was curious and worried after committing the
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assault, the record does not establish what work-related tasks he may have
been performing when he accessed Doe’s file. (Farmers, supra, 11 Cal.4th at
p. 1004 [“ ‘ “[W]here the employee is combining his own business with that of
his employer, or attending to both at substantially the same time, no nice
inquiry will be made as to which business he was actually engaged in at the
time of injury, unless it clearly appears that neither directly nor indirectly
could he have been serving his employer.” ’ ”].) Viewed in the light most
favorable to Doe, a reasonable trier of fact could infer that Wilson was
simultaneously performing work-related duties while improperly accessing
Doe’s file. Accordingly, judgment is improper because a triable issue of fact
exists as to whether Wilson was transacting County business when he
accessed Doe’s personal information.
The County next contends Wilson’s tortious conduct lacks a sufficient
nexus to his employment, making summary judgment proper. On this record,
we are not persuaded this issue may be resolved as a matter of law.
The trial court concluded Wilson’s tortious conduct was not within the
scope of his employment because his motivation for accessing Doe’s file was
not related to his employment. That reasoning conflates motive with the
scope of employment inquiry. Personal motivation does not, by itself, defeat
respondeat superior liability. As the Supreme Court has explained,
“California no longer follows the traditional rule that an employee’s actions
are within the scope of employment only if motivated, in whole or part, by a
desire to serve the employer’s interests.” (Lisa M., supra, 12 Cal.4th at
p. 297.) The relevant inquiry is whether there exists a sufficient causal
nexus between the employee’s conduct and the employment enterprise.
(Ibid.)
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Under the foreseeability standard articulated in Farmers and Lisa M.,
the question is not whether the County anticipated this precise misconduct,
but whether the risk of such misconduct was sufficiently connected to the
enterprise that it would not be so “unusual or startling” as to make the
resulting loss unfair to allocate to the employer. (Farmers, supra, 11 Cal.4th
at p. 1004.) Stated differently, the employment “must be such as predictably
to create the risk employees will commit intentional torts of the type for
which liability is sought.” (Lisa M., supra, 12 Cal.4th at p. 299.)
Under the two-prong disjunctive test adopted in Bailey, an employee
acts within the scope of employment if the conduct either (1) is required by or
incidental to the employee’s duties, or (2) it is reasonably foreseeable in light
of the employer’s business. (Bailey, supra, 48 Cal.App.4th at p. 1559.) CACI
No. 3720 reflects the same standard and would govern the jury’s
determination at trial. Under that instruction, Doe need prove only that
Wilson’s conduct either: “(a) is reasonably related to the kinds of tasks that
[he] was employed to perform; or (b) is reasonably foreseeable in light of the
employer’s business or [his] responsibilities.”
Viewed in the light most favorable to Doe, the evidence would permit a
reasonable juror to conclude Wilson’s misuse of the County’s computer
system was reasonably foreseeable under either prong of this test. The
County authorized Wilson to access its computer system as part of his
employment duties to make investigative reports and placed no restrictions
on his ability to view files. The County also provided evidence that detention
deputies routinely review reports involving cases in which they are not
directly involved because doing so enables them to compare information
learned in the jail with pending investigations and unsolved crimes. Reports
further provide information relevant to institutional safety, including
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whether inmates have histories of violence toward law enforcement or
particular groups.
A reasonable jury could infer from this evidence that reviewing
investigative reports outside one’s assigned cases was not an aberrational use
of the system but one contemplated by the County’s operational practices.
From this evidence, a reasonable jury could conclude Wilson’s act of accessing
Doe’s investigative file was reasonably related to the tasks he was employed
to perform. At a minimum, competing reasonable inferences may be drawn
from the evidence and where conflicting inferences are reasonably possible,
summary judgment is improper. (Mary M., supra, 54 Cal.3d at p. 213.)
Wilson further testified that deputies routinely used the system to
review incidents occurring at other detention facilities and to examine
photographs or videos unrelated to their own assignments. He acknowledged
reviewing investigations in which he had no involvement, explaining it was
“common practice” for detention deputies to access case files and incident
reports and he had done so “over a hundred times” for reasons unrelated to
his assigned duties. The evidence also established that investigative files
could be password protected to prevent unauthorized viewing. Although
password protection was to be used “sparingly,” it remained available for
sensitive or “high-media” cases. From this evidence, a reasonable juror could
conclude the County knowingly afforded detention deputies broad access to
sensitive investigative information while relying primarily on policy, rather
than technological restrictions, to prevent misuse. A jury could therefore
conclude that an employee’s misuse of that access for personal purposes was
not so unusual or startling as to fall outside the risks inherent in the
County’s enterprise.
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Accordingly, a reasonable jury could find that Wilson’s conduct satisfied
either prong of the disjunctive test in Bailey, supra, 48 Cal.App.4th 1552. A
jury could conclude Wilson’s access to Doe’s investigative file was reasonably
related to the duties the County entrusted to detention deputies, or
alternatively, that the County’s decision to provide detention deputies broad
access to sensitive investigative information made the misuse of that access
reasonably foreseeable given the sheriff’s department’s operations. Because
the evidence supports either inference, the question whether Wilson acted
within the scope of his employment is one for the jury, not the court on
summary judgment.
The County maintains that Perry v. County of Fresno (2013)
215 Cal.App.4th 94 (Perry) supports a finding that Wilson’s tortious conduct
was outside the scope of his employment. We disagree. In Perry, a
correctional officer used information obtained from defendant’s jail computer
system to carry out a scheme of sending fraudulent and threatening letters.
(Id. at pp. 98–101.) The appellate court concluded the county was not
vicariously liable because there was no causal nexus between the tort—the
preparation and mailing of the letters—and the officer’s employment. (Id. at
pp. 101–102, 105.) The court reasoned that the officer’s scheme was an
entirely personal undertaking and mere access to the information through
employment constituted but-for causation, not the causal nexus required for
respondeat superior liability. (Id. at pp. 102, 105.) This case is materially
different. Wilson did not merely use information obtained from the County’s
computer system to commit a separate tort. Rather, the alleged tortious
conduct consisted of his unauthorized access to Doe’s confidential information
through the very computer system the County entrusted him to use.
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Finally, the County asserts Wilson’s conduct was outside the scope of
his employment because he was convicted under Penal Code section 502
(section 502). Section 502, subdivision (h)(1) provides that subdivision (c), the
criminal punishment provision, “does not apply to punish any acts which are
committed by a person within the scope of lawful employment,” and further
states that “a person acts within the scope of employment” when performing
acts reasonably necessary to the performance of the person’s work
assignment. (Italics added.)
The County reasons that because Wilson was criminally punished
under section 502, his conduct was not within the scope of his employment.
The argument is unpersuasive. The County cites no authority establishing
that the phrase “scope of lawful employment” in section 502 is coextensive
with the common law concept of “scope of employment” governing respondeat
superior liability. Section 502 was enacted to protect computer systems and
data from unauthorized access and related misconduct. (Pen. Code § 502,
subd. (a); People v. Childs (2013) 220 Cal.App.4th 1079, 1099 (Childs).) The
statutory defense for acts committed within the scope of lawful employment
serves the statute’s purposes. (Childs, at p. 1097.) We know of no authority
suggesting the Legislature intended to redefine the rule of respondeat
superior or displace the standards to determine such liability articulated in
numerous cases.
In sum, viewing the evidence in the light most favorable to Doe and
drawing all reasonable inferences in her favor, a reasonable jury could
conclude Wilson acted within the scope of his employment under either prong
of the Bailey, supra, 48 Cal.App.4th 1552 disjunctive test. Because
competing inferences may be reasonably drawn regarding the relationship
between Wilson’s misuse of the County’s computer system and his
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employment, the issue cannot be resolved as a matter of law on summary
judgment. Accordingly, the judgment in favor of the County must be
reversed.
DISPOSITION
The judgment is reversed. Appellant is entitled to her costs on appeal.
O’ROURKE, Acting P. J.
WE CONCUR:
RUBIN, J.
BERMÚDEZ, J.
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