Doctrine of Respondeat Superior California Case Law
In determining whether for purposes of indemnification an employee's acts were performed within the course and scope of employment, the courts have looked to the doctrine of respondeat superior. (E.g., Devereaux, supra, 32 Cal. App. 4th at p. 1583 [indemnification under 2802]; see Farmers Ins. Group v. County of Santa Clara (1995) 11 Cal. 4th 992, 1003 [47 Cal. Rptr. 2d 478, 906 P.2d 440] (Farmers Ins. Group) [defense and indemnity of public employees under Tort Claims Act (Gov. Code, 825, 995)].)
Under that doctrine, an employer is vicariously liable for risks broadly incidental to the enterprise undertaken by the employer--that is, for an employee's conduct that, in the context of the employer's enterprise, 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." ( Rodgers v. Kemper Constr. Co. (1975) 50 Cal. App. 3d 608, 619 [124 Cal. Rptr. 143]; accord, Mary M. v. City of Los Angeles (1991) 54 Cal. 3d 202, 209 [285 Cal. Rptr. 99, 814 P.2d 1341] (Mary M.); Perez v. Van Groningen & Sons, Inc. (1986) 41 Cal. 3d 962, 968 [227 Cal. Rptr. 106, 719 P.2d 676].)
An employer is not vicariously liable for an employee's conduct if the employee substantially deviates from his or her course of duty so as to amount to a complete departure. (Farmers Ins. Group, supra, 11 Cal. 4th at p. 1005; DeMirjian v. Ideal Heating Corp. (1954) 129 Cal. App. 2d 758, 766 [278 P.2d 114].)
However, acts that are necessary to the comfort, convenience, health, and welfare of the employee while at work, though personal and not acts of service, do not take the employee outside the scope of his employment. ( Alma W. v. Oakland Unified School Dist. (1981) 123 Cal. App. 3d 133, 139 [176 Cal. Rptr. 287]; DeMirjian, supra, 129 Cal. App. 2d at p. 765.)
Moreover, an employee's conduct may fall within the scope of his employment even though the act does not benefit the employer, even though the act is willful or malicious, and even though the act may violate the employer's direct orders or policies. (Mary M., supra, at p. 209.)
The cases have consistently held that under the doctrine of respondeat superior, sexual misconduct falls outside the course and scope of employment. (Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal. 4th 291 [48 Cal. Rptr. 2d 510, 907 P.2d 358] [hospital not liable for sexual battery on patient by technician]; Jeffrey E. v. Central Baptist Church (1988) 197 Cal. App. 3d 718, 722 [243 Cal. Rptr. 128] [church not liable for child molesting by Sunday school teacher]; Alma W., supra, 123 Cal. App. 3d at pp. 140-142 [school district not liable for rape of student by janitor].)
In line with that authority, the California Supreme Court has held that an employer has no obligation to indemnify a sexual harasser, even though the acts occurred during work hours on the employer's premises. (Farmers Ins. Group, supra, 11 Cal. 4th 992.)
Section 2802 requires an employer to indemnify an employee for all expenses and losses incurred "in direct consequence of the discharge of his duties."
The statute requires the employer not only to pay any judgment entered against the employee for conduct arising out of his employment but also to defend an employee who is sued for such conduct.
Unlike an insurer, the employer need not defend whenever there is a mere potential for liability. However, if the employer elects to run a risk and refuses to defend, the employer must indemnify the employee for his attorney fees and costs in defending the underlying action if the employee was sued for acts within the scope of his employment. (Douglas v. Los Angeles Herald-Examiner (1975) 50 Cal. App. 3d 449, 457-465 [123 Cal. Rptr. 683].)
The test for recovery under section 2802 is whether the conduct defended against was within the course and scope of employment. (Douglas, supra, 50 Cal. App. 3d at pp. 463-465.)