Doe v. County of Kern et al

Filing 78

ORDER GRANTING IN PART and DENYING IN PART 60 Motion for Summary Adjudication, signed by Magistrate Judge Jennifer L. Thurston on 4/18/2017. (Hall, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JANE DOE,

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Plaintiff,
v.
COUNTY OF KERN, et al.,
Defendants.

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Case No.: 1:15-cv-01641 - JLT
ORDER GRANTING IN PART AND DENYING
IN PART MOTION FOR SUMMARY
ADJUDICATION
TO BE FILED UNDER SEAL
(Doc. 60)

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The plaintiff claims that while she was a minor and housed at Juvenile Hall, defendant

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Anderson, a Kern County Probation Juvenile Correctional Officer, sexually assaulted her on several

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occasions. The Kern County Probation Office conducted an internal affairs investigation and the

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investigator concluded that Anderson had committed the wrongful acts. He recommended that

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Anderson be fired and the department’s Disciplinary Review Board agreed. The Assistant Kern

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County Probation Officer provided Anderson a Skelly1 notice. However, the Skelly hearing has not

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yet occurred and, consequently, the Chief Probation Officer has not finally determined whether

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Anderson has committed the wrongful acts or, if he did, the punishment that would be imposed.

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According to Skelly v. State Personnel Bd., 15 Cal. 3d 194, 206 (1975), when a public employee faces a
potential deprivation of his job—a vested property interest—he is entitled to due process which includes notice of the
proposed discipline and the reasons for the proposed discipline, a copy of the charges and the materials upon which the
proposed action is based and the right to respond either orally or in writing. Generally, the Skelly hearing is a fairly
informal meeting and not a full evidentiary hearing, though the employee may be represented by counsel. Id. at 215.

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The plaintiff filed this motion seeking a determination that Anderson was acting within the

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course and scope of his employment at the time of the events and, based upon the conclusions of the

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internal affairs investigator, that Anderson committed the alleged wrongful acts. Because the Court

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finds there is no genuine dispute of material fact that Anderson only acted within the course and scope

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of his employment during his contacts with the plaintiff and because there is no evidence the County

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of Kern has admitted that Anderson committed the wrongful acts, the motion for summary

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adjudication is GRANTED in PART and DENIED in PART.

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I.

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Legal Standards for Summary Adjudication
The purpose of summary adjudication “is to pierce the pleadings and to assess the proof in

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order to see whether there is a genuine need for trial.” Matsuhita Elec. Indus. Co. Ltd. v. Zenith Radio

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Corp., 475 U.S. 574, 587 (1986) (citation omitted). Summary judgment is appropriate when there is

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“no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

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Fed. R. Civ. P. 56(a). In addition, Rule 56 allows a court to grant summary adjudication, or partial

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summary judgment, when there is no genuine issue of material fact as to a particular claim or portion

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of that claim. Fed. R. Civ. P. 56(a); see also Lies v. Farrell Lines, Inc., 641 F.2d 765, 769 n.3 (9th Cir.

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1981) (“Rule 56 authorizes a summary adjudication that will often fall short of a final determination,

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even of a single claim . . .”) (internal quotation marks and citation omitted). The standards that apply

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on a motion for summary judgment and a motion for summary adjudication are the same. See Fed. R.

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Civ. P. 56 (a), (c); Mora v. Chem-Tronics, 16 F. Supp. 2d 1192, 1200 (S.D. Cal. 1998).

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Summary adjudication should only be entered “after adequate time for discovery and upon

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motion, against a party who fails to make a showing sufficient to establish the existence of an element

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essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex

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Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the “initial responsibility” of

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demonstrating the absence of a genuine issue of material fact. Id., 477 U.S. at 323. An issue of fact is

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genuine only if there is sufficient evidence for a reasonable fact finder to find for the non-moving

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party, while a fact is material if it “might affect the outcome of the suit under the governing law.”

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Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Wool v. Tandem Computers, Inc., 818

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F.2d 1422, 1436 (9th Cir. 1987). A party demonstrates summary adjudication is appropriate by
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“informing the district court of the basis of its motion, and identifying those portions of ‘the pleadings,

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depositions, answers to interrogatories, and admissions on file, together with affidavits, if any,’ which

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it believes demonstrates the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323

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(quoting Fed. R. Civ. P. 56(c)).
If the moving party meets its initial burden, the burden then shifts to the opposing party to

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present specific facts that show there is a genuine issue of a material fact. Fed R. Civ. P. 56(e);

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Matsuhita, 475 U.S. at 586. An opposing party “must do more than simply show that there is some

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metaphysical doubt as to the material facts.” Matsuhita, 475 U.S. at 587. The party is required to

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tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in

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support of its contention that a factual dispute exits. Id. at 586 n.11; Fed. R. Civ. P. 56(c). Further, the

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opposing party is not required to establish a material issue of fact conclusively in its favor; it is

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sufficient that “the claimed factual dispute be shown to require a jury or judge to resolve the parties’

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differing versions of the truth at trial.” T.W. Electrical Serv., Inc. v. Pacific Elec. Contractors Assoc.,

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809 F.2d 626, 630 (9th Cir. 1987). However, “failure of proof concerning an essential element of the

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nonmoving party’s case necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 323.
The Court must apply standards consistent with Rule 56 to determine whether the moving party

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demonstrated there is no genuine issue of material fact and judgment is appropriate as a matter of law.

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Henry v. Gill Indus., Inc., 983 F.2d 943, 950 (9th Cir. 1993). In resolving a motion for summary

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judgment, the Court can only consider admissible evidence. Orr v. Bank of America, NT & SA, 285

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F.3d 764, 773 (9th Cir. 2002) (citing Fed. R. Civ. P. 56(e); Beyene v. Coleman Sec. Servs., Inc., 854

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F.2d 1179, 1181 (9th Cir. 1988)). Further, evidence must be viewed “in the light most favorable to the

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nonmoving party” and “all justifiable inferences” must be drawn in favor of the nonmoving party. Orr,

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285 F.3d at 772; Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000).

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II.

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Statement of Facts2
From December 2014 through February 2015, George Anderson worked for the Kern County

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Though the County of Kern indicates that there are disputes of fact related to whether Anderson was acting
within the course and scope of his employment, the Court does not find a genuine dispute of material fact that would
preclude the determination made here.

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Probation department as a Juvenile Correctional Officer at the Juvenile Hall facility in Bakersfield.

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(UMF 1; Doc. 59-1 at 26) During that time, the plaintiff was a 17-year-old ward of the court and was

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housed at the female facility known as “300-A” at Juvenile Hall. Anderson was assigned to supervise

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the “300-A” facility and also the coed facility known as “300-B.” (UMF 1, 6) His duties as a JCO III

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included oversight of paperwork, handling grievances, supervising staff and wards and first line

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discipline of the wards. (UMF 5) Indeed, if Anderson “gave a ward a command and it was disobeyed,

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the ward could be subject to discipline at Juvenile Hall.” (UMF 3)

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Anderson frequently handled maintenance work in the housing units and his supervisor
permitted these efforts. (P’s Fact 4) On occasion, Anderson selected the plaintiff for work “details”

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that Anderson supervised. (P’s Fact 6) Using the wards to do work details was consistent with the

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department’s policies (Doc. 59-1 at 16-17), and he had the discretion to choose which wards would

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work with him. (UMF 4) Notably, the Probation Department had in place policies that prohibited

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sexual conducted with the wards (Doc. 59-1 at 42-44) and, as admitted by the County at the hearing,

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policies that precluded officers from being unsupervised with the minors in their rooms, except for

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limited situations (Doc. 74-2 at 40-42) and required checks of the minors in their rooms every 10

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minutes. Again, the County admitted at the hearing that one of the many purposes of these policies was

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to prevent sexual assault on the wards.

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During each of the interactions between Anderson and Plaintiff, “he was on duty and in

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uniform” (UMF 2) and all of the contacts occurred at the Juvenile Hall facility. When Anderson took

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the plaintiff to the various areas of the grounds where the work detail was to occur, he did so according

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to his authority as a Juvenile Correctional Officer. (P’s Fact 14) Anderson admitted the legal

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conclusion, without objection, that every contact he had with the plaintiff occurred within the course

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and scope of his responsibilities of his job. (Doc. 59-1 at 30) The plaintiff alleges that while assigned

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to work details and on other occasions while she was housed at Juvenile Hall, Anderson sexually

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assaulted her. (Doc. 1 at 4)

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Internal Affairs conducted an investigation into Anderson’s conduct, which included allegations

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that: “Anderson engaged in conduct unbecoming an officer of the Kern County Probation Department

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and that he made sexual advances towards a minor;” “Anderson invaded the privacy of Plaintiff and
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five other female wards, when he allegedly viewed them as they showered on separate occasions;

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“Anderson kissed and fondled Plaintiff on numerous occasions;” “Anderson sexually molested Plaintiff

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by means of digital penetration of her vagina;” and “on several occasions Mr. Anderson engaged in

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conduct unbecoming an officer of the Probation Department and that he propositioned Plaintiff to

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participate in oral copulation on him, oral copulation by him, and sexual intercourse with him.” (UMF

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11-14) Shaun Romans was the primary investigator of the claims against Anderson. (UMF 8; Doc. 59

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at 39) After considering Romans’ investigation, the disciplinary review board of the Kern County

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Probation Office determined that Anderson committed misconduct described in each of the allegations.

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(Doc. 59 at 83, 84-90, 94; Doc. 59-1 at 50; Doc. 59-1 at 51-53) In particular, the disciplinary review

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board determined unanimously that Anderson sexually assaulted the plaintiff (P’s Fact 37) and

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recommended he be terminated. (P’s Facts 38, 50) Anderson was placed on paid administrative leave,

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but has not yet had his Skelly hearing. (Doc. 68 at 4) If he is dissatisfied with the outcome on the

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Skelly hearing, he may appeal the determination to the Civil Service Commission. Id. at 3.

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III.

Discussion and Analysis

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A.

Scope of Employment

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California law imposes liability upon public entities for “injur[ies] proximately caused by an act

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or omission of an employee of the public entity within the scope of his employment if the act or

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omission would have given rise to a cause of action against that employee or his personal

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representative.” Cal. Gov’t Code § 815.2; see also San Mateo Union High Sch. Dist. v. County of San

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Mateo, 213 Cal. App. 4th 418, 432-33 (2013) (“In addition to limited statutory liability for their own

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conduct and legal obligations, public entities may incur liability, based on respondeat superior

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principles, for the misconduct of their employees that occurred in the scope of their employment”).

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For an employee to be determined to have been acting within the course and scope of his

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employment at the time he committed the wrongful acts, “[t]hat the employment brought tortfeasor and

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victim together in time and place is not enough.” Lisa M. v. Henry Mayo Newhall Memorial Hospital,

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12 Cal.4th 291, 298-299 (1995). Rather, the wrongful acts must be an “outgrowth of the employment”

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and the tort must be reasonably foreseeable given the employee’s duties. Id. “The employment, in

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other words, must be such as predictably to create the risk employees will commit intentional torts of
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the type for which liability is sought.” Id.
At trial, Plaintiff has the burden to establish “that the employee’s tortious conduct was

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committed within the scope of employment.” Mary M. v. City of Los Angeles, 54 Cal.3d 202, 209

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(1991). “[T]the determination whether an employee has acted within the scope of employment presents

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a question of fact.” Mary M., 54 Cal. 3d at 213. However, it becomes a question of law “when the

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facts are undisputed and no conflicting inferences are possible.” Id. (quoting Perez v. Van Groningen

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& Sons, Inc., 41 Cal.3d 962, 968 (1986)).

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In Mary M., the Court examined whether an employer could be held liable under the doctrine of
respondeat superior where a police officer raped a woman he detained for erratic driving. Id., 54 Cal.

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3d at 207. The officer “was on duty as a field supervisor; he was assigned to supervise and train police

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officers patrolling the streets.” Id. In addition, the officer “was in uniform, wore a badge and a gun,

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and was driving a marked black-and-white police car. Id. The court determined that liability could be

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imposed “on the employer of a police officer who, while on duty, commits a sexual assault by misusing

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his official authority,” explaining:

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[S]ociety has granted police officers great power and control over criminal suspects.
Officers may detain such persons at gunpoint, place them in handcuffs, remove them
from their residences, order them into police cars and, in some circumstances, may even
use deadly force. The law permits police officers to ensure their own safety by frisking
persons they have detained, thereby subjecting detainees to a form of nonconsensual
touching ordinarily deemed highly offensive in our society. (Terry v. Ohio (1968) 392
U.S. 1 [20 L.Ed.2d 889, 88 S.Ct. 1868].) In view of the considerable power and
authority that police officers possess, it is neither startling nor unexpected that on
occasion an officer will misuse that authority by engaging in assaultive conduct. The
precise circumstances of the assault need not be anticipated, so long as the risk is one
that is reasonably foreseeable.

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Mary M., 54 Cal. 3d at 217-218. The court determined that “the proper inquiry is not whether the

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wrongful act itself was authorized but whether it was committed in the course of a series of acts of the

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agent which were authorized by the principal.” Id. at 219 (internal quotation marks, citation omitted).

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The court explained that it was not holding “as a matter of law, the public employer is vicariously liable

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whenever an on-duty officer commits a sexual assault,” but rather finding liability could be imposed

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where “the plaintiff presented that would support the conclusion that the rape arose from misuse of

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official authority.” Id. at 221.

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Similarly, in White v. County of Orange, 166 Cal.App.3d 566, 570-571 (Ct. App. 1985), the
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court determined that an officer who stopped a motorist and threatened to rape and murder her was

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acting within the course and scope of his employment. The court observed, “whether a tort is

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committed during the course of employment turns on ‘whether or not: (1) the act performed was either

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required or ‘incident to his duties' [citation] or (2) the employee’s conduct could be reasonably foreseen

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by the employer in any event [citations].’” Id., quoting Alma W. v. Oakland Unified School Dist., 123

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Cal.App.3d 133, 139 (Ct. App. 1981). Given this, the White court held, “the police officer carries the

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authority of the law with him into the community. The officer is supplied with a conspicuous

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automobile, a badge and a gun to ensure immediate compliance with his directions. The officer’s

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method of dealing with this authority is certainly incidental to his duties; indeed, it is an integral part of

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them. Here . . . the wrongful acts flowed from the very exercise of this authority.” Id. at 571.

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The court continued,

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White alleges she stopped solely because she was ordered to do so by a deputy sheriff.
In other words, she relied on the officer’s apparent authority. Had Loudermilk not been
a deputy sheriff, in uniform, in a marked patrol vehicle using flashing red lights, White
would not have stopped at his direction and the events that followed would not have
occurred. Because the County placed Loudermilk in this position of authority, it will be
liable for his actions should White prove her allegations at trial.
The use of authority is incidental to the duties of a police officer. The County
enjoys tremendous benefits from the public’s respect for that authority. Therefore, it
must suffer the consequences when the authority is abused.

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White at 571–572.
On the other hand, in Doe 1 v. City of Murrieta, 102 Cal.App.4th 899, 903 (Ct. App. 2002), the

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court refused to find that the officer was acting within the course and scope of his duties when he

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sexually molested two minors involved in the police department’s Explorer Program. The program was

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designed to interest youngsters in a career in law enforcement. Id. at 904. During the program, the two

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minors became infatuated with an officer, Boyd. Id. at 905. They sought out opportunities to do one-

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on-one “ride-alongs” with Boyd. Id. During some of these ride-alongs, Boyd engaged in “consensual3”

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sex acts with the girls. Id.

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In the subsequent civil action, the Murrieta court was obligated to determine whether Boyd was
acting within the course and scope of his employment during the unlawful sexual acts. City of

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The Court uses this term because it was used in the opinion. However, of course, these minors lacked the
capacity to consent.

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Murrieta, at 906-910. In refusing to find Boyd acted within the course and scope of his job duties, the

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court held, “Although Boyd was acting as an on-duty police officer during the majority of his sexual

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misconduct, his relationship with plaintiffs was that of a supervisor or coworker rather than that of a

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police officer exercising law enforcement authority over a member of the general public. And Boyd’s

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sexual acts with plaintiffs were undertaken solely for Boyd’s and plaintiffs' personal gratification and

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had no purpose connected to their employment.” Id. at 910. The court continued, “The connection

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between the law enforcement authority conferred on Boyd to carry out his law enforcement duties is

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simply too attenuated to deem his sexual misconduct as falling within the range of risks allocable to his

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employer.” Id. at 910. In short, the court found it significant that the sex acts occurred despite that

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Boyd did not exercise his lawful authority to force the minors to submit—they submitted, apparently,

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due to their misguided infatuation with Boyd.

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Similarly, in San Diego Police Officers Assn. v. City of San Diego, 29 Cal.App.4th 1736, 1739

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(Ct. App. 1994), a police officer, Goudarzi, became sexually involved with a confidential informant.

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The two had sexual intercourse on several occasions at the officer’s home while he was off-duty. Id.

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The informant sued and asserted that the sexual conduct occurred only after “a period of intimidation

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and coercion.” Id.

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In the civil action, the officer requested the City defend him in the action and the City refused.

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San Diego, at 1739. After trial, the jury found in favor of the officer but was not required to determine

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whether the officer’s action was taken within the course and scope of his job duties. Id. Goudarzi sued

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the City for the cost of defending the action. Id. at 1740. At trial, Goudarzi testified, “all his sexual

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encounters with Loche were strictly personal business and had nothing to do with his employment with

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the City. Every time Goudarzi had sex with Loche it was at Goudarzi's condominium while off duty.

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Goudarzi never threatened Loche.” Id. at 1741. As a result, the court granted the City’s motion for

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nonsuit. Id.

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On appeal, the Court held,

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[W]hen an employee substantially deviates from his duties for personal purposes, the
employee is not acting within the scope of employment. [Citation] Whether an
employee substantially deviated, and, therefore, acted outside the scope of
employment, requires an inquiry into whether the wrongful act was committed in
the course of a series of acts of the agent which were authorized by the principal,

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not whether the act itself was authorized. The employee’s conduct must be viewed
as a whole.
[¶]
Goudarzi was not in the course of a series of authorized or official acts on the night in
question, and we have no evidence of any misuse of official authority. Goudarzi was on
vacation, at home, having sex with Loche on October 13, 1994. The only connections
between the facts and Goudarzi's employment were that Loche was an informal
informant and Goudarzi was a vacationing police officer subject to being called to duty.
These circumstances do not bring their sex acts within the scope of Goudarzi's
employment. We have no evidence Goudarzi misused his official authority to coerce
Loche into their sexual relationship. Goudarzi, the only witness, testified he never
threatened Loche and that their sex had nothing whatsoever to do with his employment
as a police officer.
Id. at 1743-1744, emphasis added.

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The Ninth Circuit Court of Appeals had occasion to consider a similar issue in Lu v. Powell,

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621 F.3d 944, 949 (9th Cir. 2010). In Lu, the Court made easy work of determining that an Asylum

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Officer, Powell, was acting within the course and scope of his employment when he sexually assaulted

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two asylum seekers and sought bribes for a favorable determination of their applications. First, the

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Court observed, “Although ‘somewhat surprising on first encounter,’ the principle is ‘well established’

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that ‘an employee’s willful, malicious and even criminal torts may fall within the scope of his or her

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employment for purposes of respondeat superior, even though the employer has not authorized the

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employee to commit crimes or intentional torts.’” Quoting Lisa M. at 269-267. However, “court looks

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to the foreseeability of the employee's conduct, whether it be authorized or unauthorized, tortious or

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criminal, because the California rule “reflects the central justification for respondeat superior [liability]:

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that losses fairly attributable to an enterprise—those which foreseeably result from the conduct of the

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enterprise—should be allocated to the enterprise as a cost of doing business.” Id. at 948 (quoting

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Farmers Ins. Group v. County of Santa Clara, 11 Cal.4th 992, 1004 (1995).

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Second, the Court noted that the particular vulnerability of the victim does not impact a court’s

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analysis. Xue Lu, at 949. Rather, the court is required to consider “the extent to which the tort of the

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employee is incident to his employment.” Id. Thus, the Court held, Powell was part of a process in

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which he was expected to participate in a lawful way, reviewing the documentation of the asylum

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applicant, interviewing her, and assessing the credibility of her claims . . . Powell abused his powers for

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his own benefit. In doing so, he acted within the scope of his employment as defined by California. To
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compensate his victims, spread the loss, and stimulate the government to greater vigilance in

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controlling aberrant behavior, California law makes the United States bear the cost of Powell's conduct,

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unauthorized but incidental to the asylum system.” Id.

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The County of Kern argues that the determination of whether Anderson acted within the course

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and scope of his duties is a question for the jury. (Doc. 65 at 6) However, in its papers, the County

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offers no description of the facts it believes must be resolved by the jury before the determination may

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be made. See Mary M. at 213 [“Ordinarily, the determination whether an employee has acted within

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the scope of employment presents a question of fact; it becomes a question of law, however, when ‘the

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facts are undisputed and no conflicting inferences are possible.’”] (Internal citation omitted); Lisa M. at

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299 [“Neither plaintiff nor Hospital has pointed to factual disputes that would prevent us in this case

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from deciding the applicability of respondeat superior as a matter of law.’].

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At the hearing, counsel for the County clarified that the fact to be determined by the jury is

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whether Anderson committed the wrongful acts. Toward this end, the County of Kern takes the position

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that Perez demonstrates that whether Anderson committed the wrongful acts is a material fact that must

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be determined before the Court may determine whether Anderson acted within the course and scope of

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his employment for purposes of this motion; the Court disagrees. Perez notes that the plaintiff bears the

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burden of establishing at trial whether the wrongful conduct occurred (Perez, at 968) but does not

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suggest that in every case the determination of whether the wrongful conduct occurred must be made

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before the Court may address course and scope issues.

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Moreover, there are no material factual disputes that the interactions between Anderson and the

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plaintiff were condoned by the County of Kern and, in fact, that Anderson was obligated to have these

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interactions as a part of his job. The only dispute is whether during these employer-condoned

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interactions that Anderson sexually molested the plaintiff. In fact, the County of Kern admitted at the

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hearing that if Anderson did not commit the wrongful acts, he was acting within the course and scope

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of his employment during all of his interactions with the plaintiff. If he did commit the acts, however,

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the County of Kern contends that there is a question of fact as to whether he committed them within the

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course and scope of his employment. The Court finds the unique facts of this case make it one where

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the course and scope issues can be determined without first determining whether the wrongful acts
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occurred.
As pointed out by the parties, Mary M. is an exception to the general rule that an employer will

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not be held liable for sexual misconduct of an employee. However, as a sworn peace officer, the acts

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attributed to Anderson by the plaintiff bring the case squarely within the rationale of Mary M.’s

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exception. Though Anderson denies any wrongful sexual conduct occurred, there is no dispute that his

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only contacts with the plaintiff occurred while she was housed at Juvenile Hall, while Anderson was a

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JCO III and on duty, while he had authority to require the plaintiff to submit to his orders, while her

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failure to submit to his orders subjected her to discipline and while he wore the uniform and all of

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indicia of his authority vested in him by the Kern County Probation Department. Indeed, Anderson

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was not a mere Juvenile Correctional Officer but was instead, he was a supervisor. Also, unlike in City

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of Murrieta and San Diego Police Officers Assn., in every interaction between Anderson and the

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plaintiff, Anderson used his law enforcement authority over the plaintiff. Thus, if the wrongful acts

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occurred, it was because Anderson committed them within “the course of a series of acts” authorized by

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his employer despite that the the wrongful acts were not authorized by his employer. San Diego Police

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Officers Assn. at 1743-1744.4 Thus, the Court GRANTS the motion on this issue.
B.

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Whether the County of Kern is bound by the determination of the Probation

Department’s Disciplinary Review Board
The plaintiff argues that the Court should determine in her favor that George Anderson

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committed the acts of misconduct alleged in her complaint as to the County of Kern—but does not seek

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adjudication on this topic as to George Anderson. (Doc. 59 at 20) The gist of the plaintiff’s argument is

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that at the deposition of the County of Kern, the representatives admitted that the County of Kern had

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The Court in McMillan v. Department of Corrections, 2016 WL 4059230, at *4 (N.D. Fla. July 8, 2016), report
and recommendation adopted, 2016 WL 4059679 (N.D. Fla. July 27, 2016), came to a similar result. In McMillan, the
plaintiff claimed the defendant acted consistently with the culture created by the prison officials which tolerated and
encouraged inmate abuse. Thus, after the officer sexually assaulted the plaintiff, he sued the department under a theory of
vicarious liability. In denying the department judgment the court held,

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A reasonable juror could conclude that Hay was acting within the course and scope of his employment at
the time the assault against Plaintiff occurred. Hay was clearly engaged in supervisory duties over
Plaintiff and the other inmates in A-Dorm. Hay exercised his authority over Plaintiff to order him to the
laundry room under the pretext of requiring assistance with the laundry. The assault occurred within the
time and space of Hay’s employment. Hay arguably took advantage of the fact that he was the only
officer left on duty in A-Dorm to isolate and assault Plaintiff in an area that was known to provide an
unmonitored space for misconduct.

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Id. at *8.

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determined that Anderson committed the wrongful acts of which she complains. (Doc. 59 at 20-22)

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Pursuant to the Federal Rules of Civil Procedure, “[a] party may, by oral questions, depose any

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person, including a party, without leave of court.” Fed.R.Civ.P. 30(a)(1). In addition, parties may take

4

the deposition of an entity, as provided in Rule 30(b)(6):

9

In its notice or subpoena, a party may name as the deponent a public or private corporation, a
partnership, an association, a governmental agency, or other entity and must describe with
reasonable particularity the matters for examination. The named organization must then
designate one or more officers, directors, or managing agents, or designate other persons who
consent to testify on its behalf; and it may set out the matters on which each person designated
will testify. A subpoena must advise a nonparty organization of its duty to make this
designation. The persons designated must testify about information known or reasonably
available to the organization. This paragraph (6) does not preclude a deposition by any other
procedure allowed by these rules.

10

Fed.R.Civ.P. 30(b)(6). After receiving a deposition notice pursuant to Rule 30(b)(6), the entity has an

11

obligation “to provide a witness who can answer questions regarding the subject matter listed in the

12

notice.” Detoy v. City & County of San Francisco, 196 F.R.D. 362, 366 (N.D.Cal.2000) (quoting King

13

v. Pratt & Whitney, a Div. of United Technologies Corp., 161 F.R.D. 475, 476 (S.D.Fla.1995)).

5
6
7
8

14

The designee is not required to have personal knowledge of the topics at issue but must be

15

sufficiently prepared on the topics such to provide knowledgeable and binding testimony. United States

16

v. Taylor, 166 F.R.D. 356, 361, aff'd, 166 F.R.D. 367 (M.D.N.C.1996); Great Am. Ins. Co. of New

17

York v. Vegas Const. Co., Inc., 251 F.R.D. 534, 539 (D.Nev.2008). The designee’s role is to establish

18

the entity’s interpretation of events and documents. United States v. J.M. Taylor, 166 F.R.D. 356, 361

19

(M.D.N.C.1996).

20

The impact on the trial stemming from 30(b)(6) testimony is no less than that imposed on an

21

individual. Notably, Federal Rules of Civil Procedure Rule 32(a)(3) allows a party to use the

22

deposition testimony of the entity just as the party may use any other deposition transcript. Courts,

23

however, are divided as to whether the testimony of the entity’s designee should have greater effect that

24

testimony by an individual. This divide was considered recently by this Court in Munoz v. Giumarra

25

Vineyards Corp., 2015 WL 5350563, at *4 (E.D. Cal. Sept. 11, 2015). The Court held,

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27
28

There is a marked divide in the caselaw. Some courts suggest that an agency is
bound by the testimony of its Rule 30(b)(6) designee. Other courts hold that
‘testimony given at a Rule 30(b) (6) deposition is evidence which, like any other
deposition testimony, can be contradicted and used for impeachment purposes,’
and that such testimony does not ‘bind’ the designating entity ‘in the sense of
12

[a] judicial admission.’ This treats the testimony as that of any witness, making
it subject to correction and/or impeachment. Other courts adopt a middle
ground and hold that a party cannot rebut the testimony of its Rule 30(b)(6)
witness when, as here, the opposing party has relied on the Rule 30(b)(6)
testimony, and there is no adequate explanation for the rebuttal.

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2
3
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6
7
8
9
10
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Coalition v. McCamman, 725 F.Supp.2d 1162, 1172 (E.D.Cal.2010), citations omitted.
The Ninth Circuit has not yet ruled on this issue. Though the opinion in Coalition
formally states “It is not necessary to resolve the competing lines of authority on the
binding effect of testimony ...” the court appears to prescribe the third position for
future developments in the case, advising that “The Gingras [Rule 30(b)(6)] testimony
may be amplified or explained, so long as a material change or retraction is not made
without a reasonable basis.” Coalition v. McCamman, 725 F.Supp.2d 1162, 1173
(E.D.Cal.2010). This court similarly adopts the third position, that Rule 30(b)(6)
testimony can only be rebutted when there is an explanation for why the earlier
testimony is mistaken. In finding a deposition notice improper, an Eastern District
opinion explained the importance of this procedure: “Rule 30(b)(6) is a powerful and
important discovery tool. A Rule 30(b)(6) deposition notice serves a unique function: it
is the sworn corporate admission that is binding on the corporation.” Hardin v. Wal–
Mart Stores, Inc., 2011 WL 11563217, *2 (E.D.Cal. Dec.2, 2011). To effectuate the
purpose of Rule 30(b)(6), the weight of the resulting testimony is not to be lightly
disregarded. As one court explained, “Unless it can prove that the information was not
known or was inaccessible, a corporation cannot later proffer new or different
allegations that could have been made at the time of the 30(b)(6) deposition.” Rainey v.
American Forest & Paper Ass'n, 26 F.Supp.2d 82, 94 (D.D.C.1998). “[C]ourts have
allowed a contradictory or inconsistent affidavit to nonetheless be admitted if it is
accompanied by a reasonable explanation. Stanley argues that the contradiction is
understandable or reasonable because Hreha's analysis is more extensive. This type of
explanation is unacceptable and ignores Stanley's duties under Rule 30(b)(6). Stanley
has not alleged that it did not have access to material facts prior to the 30(b)(6)
corporate deposition, that the expert report was based on newly discovered evidence, or
that Powell [person most knowledgeable] was somehow confused or made an honest
mistake.” Hyde v. Stanley Tools, 107 F.Supp.2d 992, 993 (E.D.La.2000).
In the summary judgment context, the Ninth Circuit rule is that a party can not create a
dispute of facts by submitting an affidavit which contradicts earlier deposition
testimony. Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th Cir.1991). The
purpose of the rule is to prevent a party who has been deposed from presenting an issue
of fact during summary judgement by simply submitting an affidavit contradicting prior
testimony. Yeager v. Bowlin, 693 F.3d 1076, 1080 (9th Cir.2012).

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The Court agrees with this analysis.
One of County’s designees, Kathy Lemon, answered a series of questions as to the actions of an
unnamed body, the disciplinary review board and “the County.” Plaintiff’s counsel asked,

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Q. And all the allegations against George Anderson were sustained?

26

A. Yes.

27

[¶¶]

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13

1
2
3

Q. Was the decision unanimous in terms of whether the allegations should be
sustained?
A. Yes.

5

Q. So just to be clear, with respect to the rules of the County Civil Service Commission
that are cited on the first page of the notice of proposed disciplinary action, with respect
to the alleged violations of those rules, the allegations were sustained against George
Anderson; correct?

6

A. Yes.

7

Q. With respect to the Numbers l and 10 of Article 1404, Rules of Conduct, the
allegations were sustained; correct?

4

8
9

A. Yes.

10

Q. With respect to Article 1411, Social Networking Sites, the allegation was sustained;
correct?

11

A. Yes.

12

Q. Article 1410, Prohibited Associations, that the allegation based on that article was
sustained; correct?

13
14
15
16
17
18

A. Yes.
Q. The allegation based on Article 1425 here on 2 of the document was sustained?
A. Yes.
Q. And the allegation with respect to 2025, Personal Hygiene, was sustained?
A. Yes.

19

Q. And the allegation with respect to the Prison Rape Elimination Act was sustained;
correct?

20

A. Yes.

21
22

Q. After these allegations - - strike that.
The discipline review board determined that in fact George Anderson had sexually
abused Desiree Lofty; correct?

23

A. Yes.

24

[¶¶]

25

Q. Did the discipline review board5 then recommend Anderson's termination?

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27
28

5

Given that Lemon was a member of the disciplinary review board (Doc. 59 at 42), the implication is that her
testimony, at least in part, related to her own personal knowledge despite that she was designated under Rule 30(b)(6) to
testify for the County of Kern.

14

1

A. Yes.

2

Q. Has George Anderson been terminated?

3

A. No.

4

Q. Do you know why he hasn't been terminated?

5

A. I don't believe the Skelly process has occurred yet, the Skelly hearing.

6

Q. I think you mentioned earlier you don't know when that is scheduled to take place, if
it’s scheduled to take place?

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8
9
10

A. There's been a delay, I believe.
Q. Do you know why there's been a delay?
A. I believe there was a records matter before the juvenile court that has to be
determined.

12

Q. In other words, George Anderson's attorney has requested some documents from the
juvenile court and his position is that the Skelly process can’t continue until he obtains
those documents; correct?

13

MR. WEAKLEY: Objection. Speculation.

14

BY MR. SEABAUGH:

15

Q. If you know.

16

A. Yes, I know that. That’s true.

17

Q. With respect to the Allegations 1 through 10 in the report prepared by Shaun
Romans and Sherry Jones, the County sustained all of those allegations; correct?

11

18
19
20
21

A. Can you say that again, please.
Q. Let me ask it this way. So with -- you have Exhibit 2 in front of you?
A. Yes.

22

Q. Do you see on the first and second page there’s Allegation Number 1 through
Allegation Number 10?

23

A. Yes.

24

Q. The County sustained all of those allegations; isn’t that true?

25

A. Yes.

26

Q. So with respect to Allegation Number 1, the County sustained the allegation that
George Anderson made sexual advances towards Samantha Vazquez?

27

A. Yes.

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15

1
2
3

Q. He invaded the privacy of Samantha Vazquez and Desiree Lofty by viewing them in
their rooms while the privacy sign was posted?
A. Yes.

4

Q. The County sustained the allegation that he invaded the privacy of six females by
viewing them while they showered?

5

A. Yes.

6

Q. The County sustained the allegation that George Anderson kissed and fondled
Desiree Lofty?

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8
9
10
11
12
13

A. Yes.
Q. The County sustained the allegation that George Anderson sexually molested
Desiree Lofty by means of digital penetration of her vagina on approximately eight
occasions?
A. Yes.
Q. The County sustained the allegation that on several occasions George Anderson
engaged in conduct unbecoming an officer by propositioning with intent to commit
sexual offenses Desiree Lofty?
A. Yes.

15

Q. The County sustained the allegation that George Anderson was dishonest to
detectives of the Bakersfield Police Department?
A. Yes.

16

Q. The County sustained the Allegation Number 8 relating to social media?

17

A. Yes.

18
19

Q. The County sustained the allegation that George Anderson violated Article N of the
Juvenile Hall Basic Staff Rules by entering and remaining within a ward's room along
with a minor on several occasions without sufficient cause or notification of other staff?

20

A. Yes.

21

Q. And the County sustained the allegation that George Ander son disobeyed a
directive issued by Chief Probation Officer TR Merickel?

14

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23
24
25
26

A. Yes.
Q. So with reference to Number 12, that’s Topic Number 12, which refers to
ratification, would it be fair to say that the County has not ratified the conduct of
George Anderson?
MS. RIVERA: Objection. Vague. Calls for speculation. Calls for expert opinion.
MR. SEABAUGH: I’ll withdraw the question.

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16

1

(Doc. 59-1 at 50-55) The questioner made no attempt to clarify which of these determinations were

2

binding on the entity until the last question. The Court finds this last question to be significant in that it

3

demonstrates the plaintiff was not relying upon the testimony as evidence that the County of Kern—as

4

opposed to a department or board of the County of Kern—had made a final determination or, indeed,

5

any determination at all.6 To the contrary, the questions demonstrate that the plaintiff understood that

6

the County of Kern had not made this determination.7

7

As noted above, Lemon explained that, though Anderson has been provided the Skelly notice,

8

the hearing has not yet occurred. According to Skelly v. State Personnel Bd., 15 Cal. 3d 194, 206

9

(1975), when a public employee faces a potential deprivation of his job—a vested property interest—he

10

is entitled to due process which includes notice of the proposed discipline and the reasons for the

11

proposed discipline, a copy of the charges and the materials upon which the proposed action is based

12

and the right to respond either orally or in writing. Generally, the Skelly hearing is an informal meeting

13

and not a full evidentiary hearing, though the employee may be represented by counsel. Id. at 215. By

14

definition, the failure of the County of Kern to conduct the Skelly hearing means that the County of

15

Kern has not yet made a legally enforceable final determination as to whether Anderson has committed

16

the acts of misconduct. Despite this unassailable legal principle, the plaintiff persists in asserting that

17

she is entitled to summary adjudication on this topic. In doing so, she ignores the evidence of the

18

genuine dispute of material fact.

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20
21
22

For example, Shaun Romans’ testimony was similar to Ms. Lemons. The plaintiff’s attorney
asked Romans,
Q. So with that being said, is it your understanding, Mr. Romans, that the County of Kern found
that the allegation that Ms. Lofty was viewed with a privacy sign up by Mr. Anderson was true?
MR. FONTES: Lacks foundation. Calls for speculation.

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6

At the hearing, plaintiff’s counsel referred to a portion of Lemon’s testimony in which she indicated that the
disciplinary review board would be “the final policymaker or person with final policymaking authority with respect to
whether his conduct was within or not within policy.” (Lemon Depo at p. 20-21) This appears to be a misstatement of law
but, in any event, the question related to Cesar Navejar’s employment determination and not to George Anderson’s
situation. No similar question was asked related to Mr. Anderson’s employment determination.
7
Indeed, at the hearing, counsel admitted that the County of Kern denied having a sufficient factual basis to admit
or deny a request for admission directed at discovering whether the County of Kern contended Anderson committed the
wrongful conduct. This failure to admit or deny, however, may have consequences that may preclude the County of Kern
from taking the position at trial that the wrongful acts did or did not occur.

17

1
2

THE WITNESS: The disciplinary review board of the Kern County Probation Department
sustained that allegation.

3

BY MR. GEHLAWAT:
Q. And by “sustained,” they affirmed the allegation to be true; correct?

4

A. Yes.

5

MR. FONTES: Vague and asked and answered.

6

[¶¶]

7

BY MR. GEHLAWAT:

8

Q. Ms. Lofty also made the allegation against Mr. Anderson that he kissed and fondled her on
multiple occasions; is that true?

9
10

A. Yes.

11

Q. Did the County of Kern make a determination with respect to that allegation against Mr.
Anderson?

12

MS. RIVERA: Lacks --

13

MR. FONTES: Lacks foundation. Calls for speculation. Outside scope.

14

THE WITNESS: If you're talking about Allegation Number 4 on Page 1 of my report, the
answer is yes.

15
16

BY MR. GEHLAWAT:
Q. What finding did the County of Kern make with respect to Allegation Number 4?

17

MR. FONTES: Same objection.

18

THE WITNESS: That it was sustained.

19

BY MR. GEHLAWAT:
Q. And by "sustained, 11 you mean it was affirmed to be true?

20
21
22
23

MR. FONTES: Asked and answered. Vague.
THE WITNESS: Yes. And could I just simply ask that sustained is going to be affirmed for all
allegations and in the context if I say it is sustained it is affirmed and we not go through the
repetitive questioning.

24

BY MR. GEHLAWAT:
Q. Sure. So is it your understanding that –

25

A. And affirms means true, actually believed it happened.

26

Q. Affirms to be true and sustained mean the thing.

27

A. Right.

28

Q. Okay. With respect to Allegation Number 5, Ms. Lofty made the allegation that Anderson
18

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2
3
4
5
6
7
8
9
10
11

sexually molested her by means of digital penetration of her vagina on approximately eight
occasions; is that true?
A. Yes.
Q. Did the County of Kern make a determination with respect to Allegation Number 5?
MR. FONTES: Lacks foundation. Calls for speculation.
THE WITNESS: And I want to correct you. It’s the Kern County Probation Department
disciplinary review board, not - - I don't want to say the County of Kern. I don't want to
give that blanket statement. I'm saying our probation department disciplinary review
board affirmed that allegation.
BY MR. GEHLAWAT:
Q. Did they make a determination?
A. Yes.
MR. FONTES: Same objections.

12

BY MR. GEHLAWAT:
Q. And what was the determination?

13

A. That it was sustained.

14

Q. Did Ms. Lofty make the allegation that Mr. Anderson propositioned her to participate in oral
copulation on him, oral copulation by him, and sexual intercourse with him?

15
16

A. Yes, as outlined in Allegation Number 6 on Page 2 of the report.

17

Q. Did the County of Kern make a determin- - - or did the Kern County Probation Department
make a determination with respect to Allegation Number 6?

18

MR. FONTES: Lacks foundation. Calls for speculation. Outside the scope.

19

THE WITNESS: Yes.

20
21

BY MR. GEHLAWAT:
Q. What determination did the Kern County Probation Department make with respect to
Allegation 6?

22

MR. FONTES: Same objections.

23

THE WITNESS: That it was sustained.

24
25

BY MR. GEHLAWAT:
Q. Ms. Vazquez alleged that Mr. Anderson made sexual advances toward her as described in
Allegation Number 1; is that true?

26

MS. RIVERA: It’s vague.

27

THE WITNESS: That was her impression of what Anderson was attempting to accomplish by
describing this dream to her and saying to her, quote, I want you to make my dream come true.

28
19

1
2
3
4
5
6

BY MR. GEHLAWAT:
Q. She made that allegation to you about Mr. Anderson?
A. Yes.
Q. Did the County of Kern make a determination with respect to Allegation Number 1?
MR. FONTES: It's vague. It lacks foundation. It calls for speculation. Outside the scope.
THE WITNESS: Yes.

7

BY MR. GEHLAWAT:
Q. What determination did the probation department make?

8

MR. FONTES: Same objections.

9

THE WITNESS: Sustained.

11

BY MR. GEHLAWAT:
Q. Did Ms. Vazquez make an allegation against Mr. Anderson that he viewed her in her room
while her privacy sign was posted?

12

MS. RIVERA: It's vague.

13

THE WITNESS: Yes .

14

BY MR. GEHLAWAT:
Q. Did the probation department make a determination with respect to Allegation 2?

10

15
16
17

MR. FONTES: Lacks foundation. Calls for speculation. Outside scope.
THE WITNESS: Yes.

18

BY MR. GEHLAWAT:
Q. What was that determination?

19

MR. FONTES: Same objections.

20

THE WITNESS : Sustained.

21
22

BY MR. GEHLAWAT:
Q. Did Ms. Vazquez make an allegation that Mr. Anderson viewed her in the shower on
multiple occasions?

23

MS. RIVERA: Vague.

24

THE WITNESS: Yes.

25
26

BY MR. GEHLAWAT:
Q. Did the County of Kern make a determination -- or excuse me. Did the probation department
make a determination with respect to that allegation?

27

MR. FONTES: Lacks foundation. Calls for speculation. Outside scope.

28

THE WITNESS: Yes.
20

1
2
3
4
5
6
7

BY MR. GEHLAWAT:
Q. What determination did the probation department make?
MR. FONTES: Same objections.
THE WITNESS: Sustained.
MR. WEAKLEY: I’m sorry. I thought you sustained the objection.
BY MR. GEHLAWAT:
Q. Did the Kern County Probation Department make a determination about whether or not
Mr. Anderson violated Article N of the Juvenile Hall Basic Staff Rules in Section 14.25?

8

MR. FONTES: It’s vague, ambiguous, overbroad, lacks foundation, calls for speculation, and
outside scope.

9

THE WITNESS: Allegation Number 9 as on Page 2, the answer is yes.

11

BY MR. GEHLAWAT:
Q. What determination did the Kern County Probation make with respect to Allegation Number
9?

12

MR. FONTES: Same objections.

13

THE WITNESS: Sustained.

14
15

BY MR. GEHLAWAT:
Q. What was the basis for the Kern County Probation Department sustaining Allegation
Number 9?

16

MR. FONTES: Lacks foundation. Calls for speculation. Outside scope.

17

THE WITNESS: I have to refer to my report.

18

BY MR. GEHLAWAT:
Q. Sure. And just please let us know what page you’re referring to.

10

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23
24
25
26
27
28

MS. RIVERA: I'm going to object to Mr. Romans testifying on the basis for the review board
sustaining it. He was not -- he's testified he was not a member of the review board. He can
testify to what’s contained in his report, but he’s not qualified to testify as to the basis for the
review board making any findings.
MR. GEHLAWAT: And I think I've stated my position previously and that's fine. My position
is that because he is designated as the person most qualified with respect to Categories 1 and 2
under Attachment A that this is within the scope of his designation.
MS. RIVERA: Well, and we've objected that that designation is overbroad because you have
repeated the exact same designation with slight wording change in Numbers 5, 6, 7, 9, and 9.
MR. GEHLAWAT: That's fine.
[¶¶]
BY MR. GEHLAWAT:
Q. And what page of your report are you referring to?
21

1

A. Page 81 --

2

Q. Okay.

3

A. - - under the section Allegation Number 9.

4

Q. Okay.

5

A. And I point this out because I can't know exactly what they used as their determination, but
can tell you what I put in my report regarding this allegation.

6
7

Q. Okay.

10

A. All right? And that’s why I give it emphasis and that’s all I know about their determination
because this is how I presented it. They are the disciplinary review board and they base their
decisions on my report. That's their purpose. Now, what -- they might have other considerations.
I don’t know what those might be. So I’m giving you my most accurate answer or assessment
on their decision. But all I can tell you is officially what I did, what I presented is right there on
Page 81.

11

[¶¶]

12

THE WITNESS: I have an answer.

13

MR. GEHLAWAT: Okay.

14

THE WITNESS: Okay? If it’s not directly related to what I wrote here on Page 81 under
Allegation 9 in that second paragraph, then I don't know what their determination was based on.

8
9

15
16
17
18
19
20
21

BY MR. GEHLAWAT:
Q. Were you told by anyone on the disciplinary review committee that Allegation 9 was
sustained?
MS. RIVERA: Objection. It's vague and assumes facts, lacks foundation.
THE WITNESS: As I indicated yesterday, the findings sheet from the review board, I have seen
it and it showed sustained under that allegation. Yeah, that would be it.
BY MR. GEHLAWAT:
Q. Is the same true with respect to Allegations 1 through 6?
A. Yes.

22
23

(Doc. 59 at 83-95, emphasis added)

24

At most, this testimony makes clear that, preliminarily, at least from the Probation Department’s

25

perspective, Anderson has committed acts of misconduct but the County of Kern cannot commit to this

26

preliminary determination until it completes the Skelly process. In fact, the whole point to the Skelly

27

process is that before a final determination is made by the entity, the employee must be afforded the

28

opportunity to counter the claims. For the process to be consistent with due process, the County of Kern
22

1

cannot have made a final determination until after that hearing because it has not yet been provided all

2

of the evidence—namely, that from Anderson—upon which its final decision will be made.

3

Lemon’s declaration, filed with the entity’s opposition, explains in greater detail the Skelly

4

process and clarifies further that she could not have bound the County of Kern to a position on this

5

topic because the process has not been completed. (Doc. 68) This declaration—to which there was no

6

objection—does not create a material fact by contradicting deposition testimony; it simply explains her

7

testimony given at the deposition. Consistent with Coalition v. McCamman, 725 F.Supp.2d 1162, 1172

8

(E.D.Cal.2010) and Munoz, this declaration and the deposition responses of Romans creates a genuine,

9

triable issue of material fact as to whether Anderson committed the acts.
ORDER

10
11

Based upon the foregoing, the Court ORDERS:

12

1.

The plaintiff’s motion for summary adjudication related to whether defendant Anderson

13

acted within the course and scope of his employment at all times relevant to the complaint is

14

GRANTED;

15
16

2.

The plaintiff’s motion for summary adjudication related to whether the Court of Kern

has admitted that defendant Anderson committed the wrongful acts is DENIED.

17
18
19
20

IT IS SO ORDERED.
Dated:

April 18, 2017

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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