Zhang v. County of Monterey et al

Filing 195

Order Re: Vicarious and Respondeat Superior Liability. Signed by Judge Lucy H. Koh on 6/6/2021. (lhklc1S, COURT STAFF) (Filed on 6/6/2021)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA
JACQUELINE ZHANG,

United States District Court
Northern District of California

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Case No. 17-CV-00007-LHK

Plaintiff,

ORDER RE: VICARIOUS AND
RESPONDEAT SUPERIOR LIABILITY

v.
COUNTY OF MONTEREY, MONTEREY
COUNTY RESOURCE MANAGEMENT
AGENCY, and MONTEREY COUNTY
PARKS DEPARTMENT,
Defendants.

Plaintiff’s proposed jury instructions include an “Instruction to Vicarious Responsibility.”

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ECF No. 149, at 76. Plaintiff argues that vicarious and respondeat superior liability are applicable
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to the instant case because of statements made and actions taken by Mark Mariscal (“Mariscal”)
and approved by Nick Chiulos (“Chiulos”). Id. at 79. Below, the Court briefly addresses

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vicarious and respondeat superior liability.
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First, under Section 1983, a municipality is liable for a constitutional injury only where the
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municipality itself caused the injury through “execution of a government’s policy or custom,

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whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent
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official policy.” Monell v. Dep’t of Soc. Serv. of N.Y., 436 U.S. 658, 694 (1978).
The United States Supreme Court has therefore made clear that under Section 1983, “local

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Case No. 17-CV-00007-LHK
ORDER RE: VICARIOUS AND RESPONDEAT SUPERIOR LIABILITY

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governments are responsible only for ‘their own illegal act.’ They are not vicariously liable under

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§ 1983 for their employees’ actions.” Connick v. Thompson, 563 U.S. 51, 60 (2011) (citation

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omitted). Thus, “[r]espondeat superior or vicarious liability will not attach under § 1983.” City of

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Canton, Ohio v. Harris, 489 U.S. 378, 385 (1989). To the extent that Plaintiff seeks to establish

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liability for the County of Monterey, Monterey County Resource Management Agency, and

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Monterey County Parks Department under Section 1983, Plaintiff must establish the

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municipality’s liability directly. The Court has already outlined the bases for municipal liability.

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See ECF No. 188.

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Second, Plaintiff argues that vicarious or respondeat superior liability may be used to
establish that Plaintiff had an implied-in-fact contract with the County that established a property

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United States District Court
Northern District of California

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right in Plaintiff’s employment. See ECF No. 149, at 77-78. However, the Court finds no support

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for that proposition.

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A public employee is not entitled to due process based on deprivation of a property interest

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in a position unless that employee has a “legitimate claim of entitlement” to the position. See

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Board of Regents v. Roth, 408 U.S. 564, 577 (1972). That entitlement “must be granted by state

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law,” Koepping v. Tri-County Metropolitan Transp. Dist. of Oregon, 120 F.3d 998, 1005 (9th Cir.

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1997), or “some other independent source.” Faurie v. Berkeley Unified School Dist., 2008 WL

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820682, at *8 (N.D. Cal. Mar. 26, 2008). “Under California law, county charters, rules and

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regulations generally determine whether there is such an entitlement.” Weisbuch v. County of Los

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Angeles, 119 F.3d 778, 780-81 (9th Cir. 1997).

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Thus, an “oral representation of [Plaintiff’s] supervisors,” “untethered to specific positive

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law, is insufficient to create a property interest.” Faurie, 2008 WL 820682, at *8. “In other

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words, expectations based on oral representations, employment history, or positive evaluations are

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not sufficient to give the Plaintiff a property interest in [her] public employment.” Id. at *9.

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Accordingly, Plaintiff may not use an implied-in-fact contract claim to establish a property

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right in Plaintiff’s position in order to state a due process claim. As such, Plaintiff has no basis to

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offer a theory of vicarious or respondeat superior liability to establish that Mariscal or Chiulos

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Case No. 17-CV-00007-LHK
ORDER RE: VICARIOUS AND RESPONDEAT SUPERIOR LIABILITY

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entered into a binding contract with Plaintiff. Therefore, Plaintiff may not offer such a theory at

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trial.

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Moreover, in order for Plaintiff to establish a “legitimate claim of entitlement” to her

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position with the County through Mariscal or Chiulos, Plaintiff must demonstrate that Plaintiff’s

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entitlement was granted by “state law,” Koepping, 120 F.3d at 1005, or “some other independent

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source.” Faurie, 2008 WL 820682, at *8. Accordingly, in order for statements or actions by

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Mariscal or Chiulos to have the effect of creating a “legitimate claim of entitlement” in Plaintiff’s

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position, Mariscal or Chiulos’ action must have been authorized or given legal force by a state law

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or other statute or regulation. See Weisbuch, 119 F.3d at 780-81 (“Under California law, county

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charters, rules and regulations generally determine whether there is such an entitlement.”).

United States District Court
Northern District of California

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Plaintiff argues that Mariscal’s statement and actions are sufficient to create a “legitimate

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claim of entitlement” because Mariscal was an “Appointing Authority” for the County under the

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Monterey County Policies and Procedures. ECF No. 149, at 79. Plaintiff further argues that as an

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Appointing Authority, Mariscal had the authority to make Plaintiff a permanent employee through

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his statement and actions. Id. However, beyond quoting a single sentence from the Monterey

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County Policies and Procedures, Plaintiff has not produced evidence that Mariscal had the

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requisite authority to alter Plaintiff’s employment status through his statements or actions and

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thereby create a “legitimate claim of entitlement” to Plaintiff’s position. Furthermore, Plaintiff

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fails to cite any state law or other statute or regulation that gave legal force to the actions of

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Mariscal or Chiulos. Thus, Plaintiff has failed to establish a “legitimate claim of entitlement” to

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her position with the County through Mariscal or Chiulos.

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Accordingly, vicarious or respondeat superior liability do not apply, and Plaintiff may not

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offer either theory at trial.

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IT IS SO ORDERED.

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Dated: June 6, 2021

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______________________________________
LUCY H. KOH
United States District Judge
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Case No. 17-CV-00007-LHK
ORDER RE: VICARIOUS AND RESPONDEAT SUPERIOR LIABILITY