In Perez v. City & Cnty. of S.F., 2022 Cal. App. LEXIS 171 (1st Dist. Mar. 1, 2022), the Court of Appeal concluded that a jury could reasonably find a nexus between a police department’s enterprise of policing and the risk that one of its officers would negligently fail to secure a Department-approved firearm upon returning home from work, thus potentially imposing civil liability on the municipality.
The police department (“Department”) of the City and County of San Francisco (“City”) issued officers a primary firearm and allowed—but did not require—officers to carry a secondary firearm when on duty if that firearm had been approved and qualified by the Department. The Department also authorized officers to carry loaded handguns when off duty, as long as they had their Department identification and star with them. In 2015, the Department issued a bulletin governing firearm security in vehicles, which stated that Department officers “are responsible for knowing the location of firearm(s) under their care and control; and ensuring those firearm(s) are secure at all times, whether on or off duty.” The bulletin set forth specific guidelines for securing firearms in an unattended vehicle and directed that, if an officer could not secure a firearm in accordance with the guidelines, the officer “shall not leave a firearm in an unattended vehicle.” State law also requires peace officers to secure handguns in unattended vehicles. (Penal Code sections 25140, 25452.)
Marvin Cabuntala was employed as a police officer by the Department. Officer Cabuntala had a primary firearm issued by the Department. He also owned a personal gun that the Department had approved and qualified as a secondary firearm. Officer Cabuntala regularly carried this secondary firearm on duty, as was common among Department officers. He also regularly transported it in his vehicle while commuting to and from work. Officer Cabuntala also regularly carried this firearm when off duty.
Officer Cabuntala was also a Department “specialist.” Specialists work with a special operations group outside of patrol assignments, responding to incidents like hostage-taking and riot control. Officer Cabuntala testified at his deposition that specialists are “on call 24/7” and that he had responded at all hours outside of his regular schedule. Specialists were not permitted to respond to incidents without a firearm.
In August 2017, the City assigned Officer Cabuntala to a training session in a different county. He drove his personal vehicle from his home to the training site. Firearms were not allowed at the training session. However, Officer Cabuntala brought his personal, secondary firearm with him when he drove to the training session because, he stated, he was on-duty and “the jail was right next door to the [training] facility.” After the training was over, Officer Cabuntala drove home, arriving shortly before the end of his scheduled work hours. That day, he failed to follow his usual practice of securing his personal, secondary firearm inside his house. Instead, he left the firearm unsecured inside his vehicle.
That night, Officer Cabuntala’s vehicle was broken into and his firearm was stolen. Officer Cabuntala did not realize the firearm was stolen until some days later. In the interim, the firearm was used to kill the son of Mayra Perez (“Plaintiff”).
Plaintiff sued Cabuntala, the City, and others. The City moved for summary judgment. The trial court granted the City’s motion for summary judgment, finding as a matter of law that Officer Cabuntala’s conduct was not within the scope of his employment. Plaintiff appealed.
The First District Court of Appeal explained that “‘[t]he doctrine of respondeat superior holds an employer liable for torts of its employees committed within the scope of their employment.’” (Marez v. Lyft, Inc. (1st Dist. 2020) 48 Cal.App.5th 569, 577.) “[R]espondeat superior applies to public and private employers alike.” (Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 209.) “[T]he central justification for respondeat superior[ is] that losses fairly attributable to an enterprise—those which foreseeably result from the conduct of the enterprise—should be allocated to the enterprise as a cost of doing business.” (Farmers Ins. Group v. County of Santa Clara (1995) 11 Cal.4th 992, 1004.)
The Court found the rationale underlying respondeat superior similar to that underlying the Workers’ Compensation Act. The Court explained that for respondeat superior purposes, “‘[a] risk arises out of the employment when “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. [Citations.] In other words, where the question is one of vicarious liability, the inquiry should be whether the risk was one ‘that may fairly be regarded as typical of or broadly incidental’ to the enterprise undertaken by the employer. [Citation.]” [Citation.] Accordingly, the employer’s liability extends beyond [the employer’s] actual or possible control of the employee to include risks inherent in or created by the enterprise.’” (Farmers, at p. 1003.)
The scope of employment test the Court used here considered whether “the employee’s misconduct could be reasonably foreseen by the employer. …” (See Marez, supra, 48 Cal.App.5th at p. 577.) The First District explained that “´foreseeability’” as a test for respondeat superior 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 pp. 1003–1004.) Thus, “an employee’s tortious act may be within the scope of employment even if it contravenes an express company rule and confers no benefit to the employer.” (Id. at p. 1004.)
The Court observed that the scope of employment analysis is guided by three policy objectives. The first is “to prevent recurrence of the tortious conduct,” recognizing that imposing vicarious liability “creates a strong incentive for vigilance by those in a position ‘to guard substantially against the evil to be prevented.’” (Id. at p. 1013.) The second policy objective is “to give greater assurance of compensation to the victim.” (Id. at p. 1016.) The third is to “ensure that the victim’s losses will be equitably borne by those who benefit from the enterprise that gave rise to the injury.” (Id.)
The First District discussed Farmers, in which a deputy sheriff working at the county jail sexually harassed other deputy sheriffs during work hours while the deputies were on duty. The California Supreme Court found that the conduct was not within the scope of employment. The Court explained that while workplace sexual harassment in general is a foreseeable issue, the question for respondeat superior purposes is whether it is “´typical of or broadly incidental’ to the enterprise undertaken by the employer.”’ [Citations.] Thus, it is not enough that a risk be neither unusual nor startling as a general matter; rather, the risk must be evaluated in the context of the employer’s particular enterprise,” and there was no evidence that workplace sexual harassment was “typical of or broadly incidental to the particular enterprise here—a county jail.” (Id. at p. 1009.)
The First District considered the risk that a police officer will negligently mishandle a firearm in the context of a police department’s particular enterprise, observing that firearms are critical to police officers’ ability to perform their jobs, even when not in active use. The First District stated that “peace officers must definitionally be always prepared to keep the peace, which…requires a firearm to be at the ready.” The Court asserted the “central role of firearms” in the policing enterprise, and observed that police officers act “as the official representative of the state, with all of its coercive power,” and one of the “visible symbols of that power” is “a gun.” (Mary M., supra, 54 Cal.3d at p. 216.)
Turning to its analysis of the City’s liability, the Court reviewed the evidence: the Department allowed officers to carry approved, secondary firearms while on duty and officers regularly did so; the Department knew or reasonably should have known that officers transport these firearms on their commutes to and from work because there was no evidence that such firearms were required to be left at the police station after an officer’s shift was over; the Department allowed officers to carry handguns while off duty as long as they also carried indicia of their status as police officers; Department specialists may be called to respond to incidents at any time, and must carry a firearm when they respond; Officer Cabuntala—a Department officer and specialist—brought his Department-approved secondary firearm while traveling to a Department-assigned training session; he did so because he was on-duty and would be training near a county jail; and the firearm was present in his vehicle upon his return home because he brought it to his assigned work location for these work-related purposes.
The Court explained that it considered these facts “in the context of the enterprise of policing, the centrality of firearms to that enterprise, and the underlying rationale for respondeat superior that ‘losses fairly attributable to an enterprise—those which foreseeably result from the conduct of the enterprise—should be allocated to the enterprise as a cost of doing business.’ (Farmers, supra, 11 Cal.4th at p. 1004.)” Given this context, the Court held that a jury could reasonably find a nexus between the Department’s enterprise of policing and the risk that one of its officers would negligently fail to secure a Department-approved, secondary firearm upon returning home from work. The Court found that the risk at issue in the instant case sharply contrasted with the risk of workplace sexual harassment at issue in Farmers which, although foreseeable “as a general matter,” was not “typical of or broadly incidental to the particular enterprise” of the employer. (Farmers, at p. 1009.) Accordingly, the Court concluded that a jury could reasonably find that Officer Cabuntala’s negligent failure to secure his Department-approved firearm in an unattended vehicle after returning home from a Department-assigned training fell within the scope of his employment.
The First District maintained that the three policy objectives supported its conclusion. The Court explained that the goal of preventing recurrence of the tortious conduct was served, because imposition of respondeat superior would likely prompt police departments to use more selective hiring practices, impose stricter regulations, and provide more training with respect to the handling of firearms on and off duty; providing greater assurance of compensation to victims was also furthered; and, because the community benefits from police officers’ authorized handling of firearms, the objective of “ensur[ing] that the victim’s losses will be equitably borne by those who benefit from the enterprise that gave rise to the injury.”
The City contended Henriksen v. City of Rialto (4th Dist. 1993) 20 Cal.App.4th 1612 was a case that found as a matter of law that an officer’s off-duty negligent mishandling of his service revolver was not within the scope of employment. In a divided opinion, the Court of Appeal affirmed summary judgment for the city. The majority analogized guns to automobiles because both were “potentially dangerous instrumentalit[ies]” and concluded that, like automobiles, the use of a gun must be for “employer business” to fall within the scope of employment. (Id. at pp. 1620–1621.) The majority concluded, “The mere presence of the weapon, however, without more is not sufficient to impose liability on the employer for all of the employee’s actions.” (Id. at p. 1621.) The First District, however, rejected the Henriksen majority’s reasoning because it failed to rigorously apply the rationale and objectives of California’s enterprise approach to respond-eat superior liability in its opinion.
The Court thus held that the City failed to demonstrate that Plaintiff could not establish respondeat superior liability as a matter of law, and accordingly reversed the grant of summary judgment.
HOW THIS AFFECTS YOUR AGENCY
Agencies will observe that the First District distinguished between negligent mishandling of firearms and intentional misuse. The Court stated that its reasoning did not extend beyond instances of officers’ negligent mishandling of firearms. The Court explained that an officer who intentionally uses his authorized firearm to, for example, damage a neighbor’s person or property as part of an ongoing dispute has “substantially deviate[d] from the employment duties for personal purposes” such that “the losses do not foreseeably result from the conduct of the employer’s enterprise and so are not fairly attributable to the employer as a cost of doing business.” (Farmers, supra, 11 Cal.4th at p. 1005, italics omitted.) However, in consideration of this opinion, which provides that cases similarly situated may go to a jury for determination, agencies would be well served to provide sufficient training to their officers to ensure proper storage of firearms while both on and off duty to limit liability exposure.
As always, if you want to discuss any of this in greater detail, do not hesitate to contact James Touchstone at firstname.lastname@example.org or by telephone at (714) 446-1400.
Information on www.jones-mayer.com is for general use and is not legal advice. The mailing of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute, an attorney-client-relationship.
 See Government Code section 815.2(a): “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.”
 The First District noted that “[t]he enterprise liability theory of liability, followed in California, provides that the modern and proper basis of vicarious liability of the master is not the master’s control or fault but the risks incident to the master’s enterprise.” Lindahl, 1 Modern Tort Law (2d ed. 2021) Employer Liability for Torts of Employees, section 7:4.
 Sacramento County Deputy Sheriffs’ Assn. v. County of Sacramento, 220 Cal.App.3d 280, 288, fn. 9 (3rd Dist. 1990).
 The Court had stated, “We must consider all evidence in the light most favorable to the nonmoving part[y], which in this case [is] the plaintiff.” (Marez, supra, 48 Cal.App.5th at pp, 576–577.)
 Based on the officer’s mention of these two facts, the Court reasoned that a jury could infer Officer Cabuntala thought he might be called to respond to an incident at the jail as an on-duty officer or specialist.