In Daza v. Los Angeles Community College Dist., published May 6, 2016, the 2nd District Court of Appeal, Division 8, reversed dismissal of the cross-action of a public employee who sought defense and indemnity from his former employer. The cross-complainant was a guidance counselor whom the plaintiff student, in the main action, accused of sexually assaulting her in his office during working hours. The defendant district dismissed him after the plaintiff made her accusations. The cross-complainant sought defense and indemnity from the district. His cross-complaint alleged that the sexual assault never occurred. The district settled the student's action against it, without admitting wrongdoing. As a result, the student dismissed the complaint against both the district and the cross-complainant, with prejudice. The district then successfully demurred to the cross-complaint. The trial court concluded that it was limited to the allegations of the student's complaint in determining whether the district had a duty to defend the counselor. It concluded that the acts alleged were outside the scope of the counselor's employment as a matter of law, and that the district therefore had no duty to defend or indemnify him.
The appellate court agreed that the acts alleged in the student's complaint were outside the scope of the cross-complainant's duties, as a matter of law; and that if they were proven, the district would have no duty under the Government Code to pay the employee's defense costs. But it held that the trial court erred by holding that the allegations in the main complaint governed the cross-action. Instead, on demurrer the allegations of the cross-complaint were assumed true. Because the cross-complaint alleged that the employee did not commit sexual assault, and the other circumstances of the alleged incident might support a conclusion he was sued for acts within the scope of his employment, the demurrer was error. The employee must be given a chance to prove the allegations of his cross-complaint.
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