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Maria D. v. Westec Residential Security11/30/2000
As modified December 20, 2000. There is no change in the judgment.
MARIA D.,
PLAINTIFF AND APPELLANT,
V.
WESTEC RESIDENTIAL SECURITY, INC.,
DEFENDANT AND RESPONDENT.
(Super. Ct. No. SC049993) APPEAL from a judgment of the Superior Court of Los Angeles County, Robert M. Letteau, Judge.
Jacobs, Jacobs & Rosenberg, Stanley K. Jacobs and Judi L. Jacobs for Plaintiff and Appellant. Bradley & Gmelich, Barry A. Bradley and Frederick B. Hayes for Defendant and Respondent.
The opinion of the court was delivered by: Turner, P.J.
CERTIFIED FOR PUBLICATION
Affirmed.
I. introduction
This case involves the potential respondeat superior liability of a private security company for an alleged sexual assault by an on-duty security guard. Plaintiff, Maria D., appeals from a judgment in favor of defendant, Westec Residential Security, Inc. (Westec). The trial court summarily adjudicated that Westec could not be held vicariously liable for an alleged rape committed by one of its employees, an on-duty security guard. We agree that, as a matter of law, under Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 208-211, 213-222 (Mary M.), Farmers Ins. Group v. County of Santa Clara (1995) 11 Cal.4th 992, 1003-1020 (Farmers), and Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 296-306 (Lisa M.), Westec could not be held liable under the respondeat superior doctrine because the alleged rape was not within the scope of the security guard's employment. Accordingly, we affirm the judgment.
II. background
Plaintiff alleges she was raped by an on-duty Westec security guard in September 1997. Plaintiff filed the present action against Westec alleging causes of action for sexual assault and battery (first), false imprisonment (second), intentional infliction of emotional distress (third), and negligence (fourth). The trial court summarily adjudicated the first through third causes of action in Westec's favor. The trial court concluded: " icarious liability cannot properly be imposed upon a private employer for acts and actions clearly not within the scope of employment . . . ." Plaintiff filed a writ petition. The petition was summarily denied. (Maria D. v. Superior Court (B130735, Apr. 12, 1999) [nonpub. order].) The case proceeded to trial of plaintiff's negligent hiring and retention claim. A jury found Westec had not been negligent in hiring, supervising, managing, controlling, or retaining the security guard as an employee . That finding is not at issue in this appeal.
Plaintiff is a Swedish citizen residing in California. She testified at her deposition as follows. On September 4, 1997, at approximately 2 a.m., she was driving along Pacific Coast Highway. A Westec security guard detained her by shining a spotlight from his patrol car into her moving vehicle. He pulled up next to her and stopped. He asked, "How much have you been drinking tonight? What's going on?" Plaintiff thought the security guard was a police officer. The spotlight was shining in her face. The security guard got out of his car and asked plaintiff for her driver's license. He also asked: where she was coming from; where she had been before that; and where she worked. The security guard took the license back to his car and "wrote things down about it into his computer." The security guard then told plaintiff, "You can get out of the car now." He asked her whether she had "ever heard about a DUI before." He told her, " ight now I could put you in jail for two years and I c
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