In Yee v. Superior Court (Thrivent Financial for Lutherans), published January 8, 2019, the First District Court of Appeal, Division 2 issued a writ directing the trial court to grant a motion for judgment on the pleadings. The State Controller's Office initiated an audit of the real party insurance company's records. The insurance company and Controller's Office filed cross-litigation concerning the audit. The Controller filed a motion to compel production of records from the insurer sought under discovery. The court granted the motion, allegedly after the Controller's counsel assured the court that the the information obtained in discovery would not be used to conduct the audit. The Controller allegedly then used the records produced to pursue the audit. The litigation was eventually dismissed by order of an appellate court. The insurer then sued the Controller's office for abuse of process, alleging that Controller's Office employees used the discovery information to conduct the audit, in violation of court order and protective order.
The appellate court ruled that the lawsuit was barred by Government Code section 815. Section 815 bars nonstatutory causes of action against public entities. The central issue was whether the Controller's Office could be held vicariously liable under Government Code section 815.2, subdivision (a). Section 815.2 provides for public entity respondeat superior liability for the acts or omissions of employees, but only if the act or omission would have given rise to a cause of action against the employee. Under the facts of the case, no Controller's Office employee could be held liable for abuse of process. The abuse was using the records in the audit. Only the State Controller's Office, not its individual employees, had the power to perform the audit.
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