Perez v. City and County of San Francisco

Filed 3/1/22

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

MAYRA PEREZ,
A161279
Plaintiff and Appellant,
v. (San Francisco County
Super. Ct. No. CGC-18-569711)
CITY AND COUNTY OF SAN
FRANCISCO,
Defendant and Respondent.

A police officer employed by the police department (Department) of the
City and County of San Francisco (City) left his Department-approved
firearm unsecured in his vehicle after returning home from an assigned
training session. That evening his vehicle was burglarized and the firearm
stolen. Soon thereafter, the son of Mayra Perez (Plaintiff) was killed with
that weapon. Plaintiff sued the City, but the trial court granted the City’s
motion for summary judgment, finding as a matter of law the officer’s
conduct was not within the scope of his employment. We reverse. In the
context of the enterprise of policing, a jury could reasonably find the officer’s
failure to safely secure his weapon is “ ‘ “not so unusual or startling that it
would seem unfair to include the loss resulting from it among other costs of

1
the employer’s business.” ’ ” (Farmers Ins. Group v. County of Santa Clara
(1995) 11 Cal.4th 992, 1003 (Farmers).)
BACKGROUND
Marvin Cabuntala was an officer with the Department. The
Department issued officers a “primary” firearm and also allowed—but did not
require—officers to carry a secondary firearm when on duty, if that firearm
had been approved and qualified by the Department. The Department also
authorized officers to carry loaded handguns when off duty, as long as they
had their Department identification and star with them. In 2015, the
Department issued a bulletin governing firearm security in vehicles. The
bulletin provided Department officers “are responsible for knowing the
location of firearm(s) under their care and control; and ensuring those
firearm(s) are secure at all times, whether on or off duty.” The bulletin set
forth specific guidelines for securing firearms in an unattended vehicle and
directed that, if an officer could not secure a firearm in accordance with the
guidelines, the officer “shall not leave a firearm in an unattended vehicle.”1
Cabuntala had a primary firearm issued by the Department. He also
owned a personal gun that the Department had approved and qualified as a
secondary firearm. Cabuntala regularly carried this secondary firearm on
duty, as was common among Department officers. He also regularly
transported it in his vehicle while commuting to and from work. In addition,
Cabuntala regularly carried this firearm when off duty, out of concern for his
and his family’s safety due to his recognizability as a police officer.
In addition to being an officer, Cabuntala was also a Department
“specialist.” Specialists work with a special operations group outside of

1State law also requires peace officers to secure handguns in
unattended vehicles. (Pen. Code, §§ 25140, 25452.)

2
patrol assignments, responding to incidents like hostage-taking and riot
control. Cabuntala testified at his deposition that specialists are “on call
24/7” and that he has responded at all hours outside of his regular schedule.2
Specialists were not permitted to respond to incidents without a firearm.
On August 11, 2017, the City assigned Cabuntala to a training session
in a different county. He drove his personal vehicle from his home to the
training site. Firearms were not allowed at the training session. However,
Cabuntala brought his personal, secondary firearm with him when he drove
to the training session, “Because I was in -- I was still in a police capacity
working, and also . . . I believe the main reasons is the jail was right next
door to the facility, and that was my reason for bringing it.”3
The temperature was hot the week of the training. The training was
approximately eight hours, outdoors, and involved the participants running
in a simulated scenario. Cabuntala wore full body protective clothing. He
testified that he had a history of heat exhaustion that was documented with
the Department, and he believed he suffered from symptoms of heat
exhaustion that day.
When the training was over, Cabuntala drove home, arriving shortly
before the end of his scheduled work hours. That day, he failed to follow his

2 The City submitted evidence that specialists are not on call.
However, “[b]ecause this is an appeal from a grant of summary judgment . . .
, . . . ‘our account of the facts is presented in the light most favorable to the
nonmoving party below . . . and assumes that, for purposes of our analysis,
[the nonmoving party’s] version of all disputed facts is the correct one.’ ”
(Meridian Financial Services, Inc. v. Phan (2021) 67 Cal.App.5th 657, 668.)
3The parties stipulated that the training session was adjacent to a
county jail.

3
usual practice of securing his personal, secondary firearm inside his house.
Instead, he left the firearm unsecured inside his vehicle.
That night, Cabuntala’s vehicle was broken into and his firearm was
stolen. Cabuntala did not realize the firearm was stolen until some days
later. In the interim, the firearm was used to kill Plaintiff’s son.
Plaintiff sued Cabuntala, the City, and others. The City moved for
summary judgment on the ground that the undisputed facts demonstrated
Cabuntala was not acting within the scope of his employment. The trial
court agreed and granted summary judgment for the City. This appeal
followed.
DISCUSSION
I. Standard of Review
“We review the trial court’s decision to grant [the defendant’s] motion
for summary judgment de novo. [Citation.] Summary judgment must be
granted if all the papers and affidavits submitted, together with ‘all
inferences reasonably deducible from the evidence’ and uncontradicted by
other inferences or evidence, show ‘there is no triable issue as to any material
fact and that the moving party is entitled to a judgment as a matter of law.’
(Code Civ. Proc., § 437c, subd. (c).) Where, as here, the defendant is the
moving party, [the defendant] may meet the burden of showing a cause of
action has no merit by proving one or more elements of the cause of action
cannot be established. (See id., subd. (o)(1).) Once the defendant has met
that burden, the burden shifts to the plaintiff to show the existence of a
triable issue of material fact as to that cause of action. [Citation.] We must
consider all evidence in the light most favorable to the nonmoving part[y],
which in this case [is] the plaintiff[].” (Marez v. Lyft, Inc. (2020)
48 Cal.App.5th 569, 576–577 (Marez).)

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II. Respondeat Superior
A. Legal Principles
“ ‘The doctrine of respondeat superior holds an employer liable for torts
of its employees committed within the scope of their employment.’ ” (Marez,
supra, 48 Cal.App.5th at p. 577.) “[R]espondeat superior applies to public
and private employers alike.” (Mary M. v. City of Los Angeles (1991)
54 Cal.3d 202, 209 (Mary M.); see Gov. Code, § 815.2, subd. (a) [“A public
entity is liable for injury proximately caused by an act or omission of an
employee of the public entity within the scope of his employment if the act or
omission would, apart from this section, have given rise to a cause of action
against that employee or his personal representative.”].) “The question of
scope of employment is ordinarily one of fact for the jury to determine.”
(Mary M., at p. 221.)
California courts use “two tests . . . ‘for scope of employment under the
respondeat superior doctrine.’ [Citation.] ‘Under one test, the employer is
liable if the activities that caused the employee to become an instrument of
danger to others were undertaken with the employer’s permission and were
of some benefit to the employer, or in the absence of proof of benefit, the
activities constituted a customary incident of employment. [Citation.]’
[Citation.] The second test . . . provides ‘an employee’s conduct is within the
scope of . . . employment if (1) the act performed was either required or
incident to [the employee’s] duties or (2) the employee’s misconduct could be
reasonably foreseen by the employer in any event.’ ” (Marez, supra,
48 Cal.App.5th at p. 577.)
The application of these tests depends, in part, upon the underlying
rationale behind respondeat superior. “[Respondeat superior] is based on ‘ “a
rule of policy, a deliberate allocation of a risk. The losses caused by the torts

5
of employees, which as a practical matter are sure to occur in the conduct of
the employer’s enterprise, are placed upon that enterprise itself, as a
required cost of doing business.” ’ ” (Perez v. Van Groningen & Sons, Inc.
(1986) 41 Cal.3d 962, 967 (Perez).) “[T]he central justification for respondeat
superior[ is] that losses fairly attributable to an enterprise—those which
foreseeably result from the conduct of the enterprise—should be allocated to
the enterprise as a cost of doing business.” (Farmers, supra, 11 Cal.4th at
p. 1004.) “The doctrine is a departure from the general tort principle that
liability is based on fault. [Citation.] . . . Respondeat superior is based on ‘ “a
deeply rooted sentiment” ’ that it would be unjust for an enterprise to
disclaim responsibility for injuries occurring in the course of its characteristic
activities.” (Mary M., supra, 54 Cal.3d at p. 208; see also Lindahl, 1 Modern
Tort Law (2d ed. 2021) Employer Liability for Torts of Employees, § 7:4 [“The
enterprise liability theory of liability, followed in California, provides that the
modern and proper basis of vicarious liability of the master is not the
master’s control or fault but the risks incident to the master’s enterprise.”].)
“In some respects, the rationale underlying respondeat superior is
similar to that underlying the Workers’ Compensation Act. Both fields of law
allow recovery for the injured party irrespective of proof of the employer’s
fault. Both are concerned with the allocation of the cost of industrial injury.
[Citation.] ‘The proper test [for respondeat superior] bears far more
resemblance to that which limits liability for worker’s compensation than to
the test for negligence. The employer should be held to expect risks, to the
public also, which arise “out of and in the course of” [the] employment of
labor.’ ” (Perez, supra, 41 Cal.3d at pp. 967–968, fn. omitted.) Thus, for
respondeat superior purposes, “ ‘A risk arises out of the employment when “in
the context of the particular enterprise an employee’s conduct is not so

6
unusual or startling that it would seem unfair to include the loss resulting
from it among other costs of the employer’s business. [Citations.] In other
words, where the question is one of vicarious liability, the inquiry should be
whether the risk was one ‘that may fairly be regarded as typical of or broadly
incidental’ to the enterprise undertaken by the employer. [Citation.]”
[Citation.] Accordingly, the employer’s liability extends beyond [the
employer’s] actual or possible control of the employee to include risks inherent
in or created by the enterprise.’ ” (Farmers, supra, 11 Cal.4th at p. 1003.)
The scope of employment test we utilize in this case focuses on whether
“the employee’s misconduct could be reasonably foreseen by the employer
. . . .” (See Marez, supra, 48 Cal.App.5th at p. 577.) This test is based on the
understanding that “ ‘[o]ne way to determine whether a risk is inherent in, or
created by, an enterprise is to ask whether the actual occurrence was a
generally foreseeable consequence of the activity. However, “foreseeability” in
this context must be distinguished from “foreseeability” as a test for
negligence. In the latter sense “foreseeable” means a level of probability
which would lead a prudent person to take effective precautions whereas
“foreseeability” as a test for respondeat superior merely means that in the
context of the particular enterprise an employee’s conduct 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.’ ” (Farmers, supra, 11 Cal.4th at
pp. 1003–1004.) Thus, “an employee’s tortious act may be within the scope of
employment even if it contravenes an express company rule and confers no
benefit to the employer.” (Id. at p. 1004.) In contrast, “an employer will not
be held vicariously liable for an employee’s malicious or tortious conduct if
the employee substantially deviates from the employment duties for personal
purposes. [Citations.] Thus, if the employee . . . acts out of ‘personal malice

7
unconnected with the employment’ [citation], or if the misconduct is not an
‘outgrowth’ of the employment [citation], the employee is not acting within
the scope of employment. Stated another way, ‘[i]f an employee’s tort is
personal in nature, mere presence at the place of employment and attendance
to occupational duties prior or subsequent to the offense will not give rise to a
cause of action against the employer under the doctrine of respondeat
superior.’ [Citation.] In such cases, the losses do not foreseeably result from
the conduct of the employer’s enterprise and so are not fairly attributable to
the employer as a cost of doing business.” (Id. at pp. 1004–1005.)
Three policy objectives drive the analysis of scope of employment.
(Mary M., supra, 54 Cal.3d at p. 214; Farmers, supra, 11 Cal.4th at p. 1013.)
The first is “to prevent recurrence of the tortious conduct,” recognizing that
imposing vicarious liability “ ‘ “creates a strong incentive for vigilance by
those in a position ‘to guard substantially against the evil to be
prevented.’ ” ’ ” (Farmers, at p. 1013.) The second policy objective is “to give
greater assurance of compensation to the victim.” (Id. at p. 1016.) The third
is to “ensure that the victim’s losses will be equitably borne by those who
benefit from the enterprise that gave rise to the injury.” (Ibid.)
Mary M. considered “whether the three policy objectives underlying
respondeat superior would be achieved by applying the doctrine when a police
officer on duty misuses [the officer’s] official authority and commits an act of
rape.” (Mary M., supra, 54 Cal.3d at p. 214.) The court found the first
objective would be achieved because “[t]he imposition of liability on public
entities whose law enforcement officers commit sexual assaults while on duty
would encourage the employers to take preventive measures,” and “would not
be likely to cause public entities to take preventive measures that would
impair the effectiveness of law enforcement activities. . . . ‘We doubt that

8
police departments would deprive their officers of weapons or preclude them
from enforcing the laws . . . .’ ” (Id. at pp. 214–215.) The second objective
also weighed in favor of liability, as the court noted both the Legislature and
courts have recognized that holding a public entity vicariously liable “is an
appropriate method to ensure that victims of police misconduct are
compensated.” (Id. at pp. 215–216.) As for the third objective, the court
reasoned, “society has granted police officers extraordinary power and
authority over its citizenry. An officer who detains an individual is acting as
the official representative of the state, with all of its coercive power. As
visible symbols of that power, an officer is given a distinctively marked car, a
uniform, a badge, and a gun. As one court commented, ‘police officers
[exercise] the most awesome and dangerous power that a democratic state
possesses with respect to its residents—the power to use lawful force to
arrest and detain them.’ [Citation.] Inherent in this formidable power is the
potential for abuse. The cost resulting from misuse of that power should be
borne by the community, because of the substantial benefits that the
community derives from the lawful exercise of police power.” (Id. at pp. 216–
217.)
Two other cases cited by the parties further illustrate these principles.
In Rodgers v. Kemper Constr. Co. (1975) 50 Cal.App.3d 608, a construction
subcontractor maintained a trailer on a jobsite with showers and lockers for
its employees. (Id. at pp. 614–615.) The subcontractor’s employees worked
around the clock in three shifts, and supervisors in need of extra help would
look in the trailer to see if any workers who had just completed a shift
wanted to work overtime. (Id. at p. 615.) Workers kept beer in the trailer
and sometimes drank there after a shift ended with supervisors’ knowledge
and participation. (Ibid.) On the day in question, two of the subcontractor’s

9
workers drank beer from the trailer after work. (Ibid.) After a few hours,
they approached the employee of another contractor, who was operating a
bulldozer onsite, and asked for a ride; when he refused, they assaulted him
and another who tried to come to his aid. (Id. at pp. 615–616.) The court
affirmed the jury’s finding that the subcontractor was liable for the injuries,
reasoning that even though the subcontractor’s employees were not on duty
at the time of the assault, it took place on the jobsite; the employees’ presence
on site after their shift ended was not unusual and was of some benefit to the
subcontractor; the subcontractor knew and implicitly permitted off-duty
employees to drink and socialize on site; and the dispute, over whether off-
duty employees are entitled to rides on work equipment, was an outgrowth of
the employment relationship. (Id. at pp. 617–624.)
On the other hand, in Farmers, a deputy sheriff working at the county
jail sexually harassed other deputy sheriffs during work hours while the
deputies were on duty. (Farmers, supra, 11 Cal.4th at pp. 998–999, 1007.)
The Supreme Court found the conduct was not within the scope of
employment: the harassing acts “were motivated for strictly personal reasons
unrelated to the guarding of inmates or the performance of any other duty of
a deputy sheriff at a county jail,” were “not reasonably necessary to [the
harassing employee’s] comfort, convenience, health, and welfare while at
work,” and were not “precipitated by a work-related dispute over the
performance of his duties.” (Id. at p. 1007.) Moreover, while workplace
sexual harassment in general is a foreseeable issue, the question for
respondeat superior purposes is whether it is “ ‘ “ ‘typical of or broadly
incidental’ to the enterprise undertaken by the employer.” ’ [Citations.] Thus,
it is not enough that a risk be neither unusual nor startling as a general
matter; rather, the risk must be evaluated in the context of the employer’s

10
particular enterprise,” and there was no evidence that workplace sexual
harassment was “typical of or broadly incidental to the particular enterprise
here—a county jail.” (Id. at p. 1009.)
B. Police Officers’ Negligent Mishandling of Firearms
Before turning to the specific facts of this case, we consider the risk
that a police officer will negligently mishandle a firearm “in the context of [a
police department’s] particular enterprise.”4 (Farmers, supra, 11 Cal.4th at
p. 1009.) Firearms are critical to police officers’ ability to perform their jobs,
even when they are not in active use: “[A holstered revolver] enables the
officer to make arrests, to interrogate suspects, and to carry on [the officer’s]
multifarious duties with the knowledge that if there develop serious
resistance or threat of danger, [the officer] can protect . . . even against more
than one potential assailant. . . . The gun provides effective means of law
enforcement because it continually gives a measure of safety to the officer.”
(Oakland Police Officers Association v. City of Oakland (1973) 30 Cal.App.3d
96, 100 [holding a police officer’s service revolver is safety equipment for
purposes of the Labor Code].) “[P]eace officers must definitionally be always
prepared to keep the peace, which in the American way of things requires a
firearm to be at the ready.” (Sacramento County Deputy Sheriffs’ Assn. v.

4 Other law enforcement agencies are engaged in similar enterprises as
police departments and have employees with similar duties to police officers.
However, because broader terms such as “law enforcement” and “peace
officer” may also include other enterprises and duties, we will refer to the
enterprise of policing/police departments and police officers. (See Gund v.
County of Trinity (2020) 10 Cal.5th 503, 512 [discussing various constructions
of the term “law enforcement”]; People v. Pennington (2017) 3 Cal.5th 786,
792–793 [“Chapter 4.5 [of the Pen. Code] contains over 100 sections and
subdivisions authorizing public agencies to confer the status and powers of a
peace officer on the members of a host of state and local personnel categories,
subject to an intricate array of conditions and limitations.”].)

11
County of Sacramento (1990) 220 Cal.App.3d 280, 288, fn. 9; see also
Riverside Sheriffs’ Assn. v. Board of Administration (2010) 184 Cal.App.4th 1,
12 [“tasks routinely associated with the job of peace officers” include “use [of]
weapons”].)
The central role of firearms in policing is fairly unique to this
enterprise. “Few other occupations require the ability to possess a firearm
. . . .” (In re Evans (1996) 49 Cal.App.4th 1263, 1271 [finding rational a
statute’s limitation of the right to appeal a firearms prohibition to peace
officers convicted of certain offenses, even though the statute did “not extend
to any person whose occupation requires the use of a firearm”].) As Mary M.
explained, police officers act “as the official representative of the state, with
all of its coercive power,” and one of the “visible symbols of that power” is “a
gun.” (Mary M., supra, 54 Cal.3d at p. 216.)
The City points to one case finding as a matter of law that an officer’s
off-duty negligent mishandling of his service revolver was not within the
scope of employment, Henriksen v. City of Rialto (1993) 20 Cal.App.4th 1612
(Henriksen).5 We examine the reasoning in the case in detail. Henriksen, a
city police officer, went to a bar after his shift ended to drink and socialize
with others, including a longtime friend. (Id. at p. 1616.) Before going to the

5 Another case cited by the parties involving an officer’s off-duty
firearm use is inapposite. In Inouye v. County of Los Angeles (1994)
30 Cal.App.4th 278, an off-duty officer witnessed the plaintiff committing a
public offense, attempted to make an arrest, and shot the plaintiff with his
personal firearm when the plaintiff resisted. (Id. at p. 280.) The Court of
Appeal held that, because state law authorized the officer to make an arrest
when a public offense is committed in his presence, the officer was
“indisputably” acting within the scope of employment when he shot the
plaintiff while attempting to effectuate an arrest. (Id. at pp. 281 & fn. 3,
284.)

12
bar, Henriksen put his service revolver in his waistband; he testified the
police department encouraged off-duty officers to carry their service
revolvers. (Id. at pp. 1615–1616.) After the bar closed, the group moved to
another location and, as Henriksen was walking, he adjusted his weapon and
it discharged, hitting his friend. (Ibid.) In a divided opinion, the Court of
Appeal affirmed summary judgment for the city. (Id. at p. 1614.) The
majority reasoned, “the incident did not occur during working hours, was not
accomplished by use of Henriksen’s authority as a police officer, did not occur
in the course of acts that Henriksen was carrying out under his employer’s
instructions or on his employer’s behalf[,] . . . did not occur after Henriksen
had drunk alcohol provided by the employer or permitted by the employer on
the employer’s premises[, and] . . . the relationship between Henriksen and
[his friend] predated Henriksen’s employment by many years and did not
arise out of the employment relationship.” (Id. at pp. 1619–1620.)
The majority acknowledged that Henriksen’s firearm was city-issued
and -authorized, and “[t]he risk which existed in the present case was the
risk inherent in having an officer carry a gun while engaged in activities
other than active law enforcement. . . . [¶] The question presented here is, to
the extent the risk of harm could not be eliminated, who should bear the cost
of the risk and any resulting injury?” (Henriksen, supra, 20 Cal.App.4th at
p. 1620.) The majority analogized guns to automobiles because both were
“potentially dangerous instrumentalit[ies]” and concluded that, like
automobiles, the use of a gun must be for “employer business” to fall within
the scope of employment. (Id. at pp. 1620–1621.) The majority concluded,
“As with automobiles, when weapons are used for law enforcement purposes,
liability for harm which results would properly extend to the employer. The
mere presence of the weapon, however, without more is not sufficient to

13
impose liability on the employer for all of the employee’s actions.” (Id. at
p. 1621.)
The majority then considered whether the three policy objectives
discussed in part II.A above supported this conclusion. As for the first,
applying respondeat superior “might help to prevent recurrence of the
conduct complained of if it induced [the city] to reverse its policy of
permitting off-duty officers to carry loaded weapons. The negative impact of
such a policy would be apparent because off-duty officers would be unable to
appropriately respond to emergencies.” (Henriksen, supra, 20 Cal.App.4th at
p. 1621.) The majority also found it unlikely that any improvement in “officer
training in handling of weapons to minimize incidents” resulting from the
application of vicarious liability “would have altered the result in the present
case” because Henriksen was the officer in charge of such training. (Ibid.)
The policy objective of assuring compensation for the victim was “inapplicable
to the case before us because the question of compensating the victim is not
directly presented in this appeal.”6 (Ibid.) As for the appropriateness of
spreading the risk of loss among the beneficiaries of the enterprise, the
majority noted the city had “taken steps to reduce the risk of harm” by

6 The issue had been raised in a cross-complaint for indemnification
filed by Henriksen against the city, based on the claim that his conduct was
within the scope of his employment. (Henriksen, supra, 20 Cal.App.4th at
p. 1615.) The majority applied the test for scope of employment as
articulated in respondeat superior cases without explicitly discussing its
applicability (id. at pp. 1618–1622); the dissenting justice opined that “the
term ‘scope of employment’ has essentially the same meaning when used in
connection with a public entity’s liability to the victim of a tortious act by its
employee pursuant to respondeat superior as it does when used in connection
with the public entity’s duty to indemnify and defend the employee upon
whose actions the victim’s claim is based” (id. at p. 1633 (dis. opn. of Timlin,
J.)).

14
providing training, and discussed cases in which “[t]he unpredictable
consequences of alcohol consumption necessarily changed the evaluation of
whether ‘in the context of the particular enterprise an employee’s conduct is
. . . so unusual or startling that it would seem unfair to include the loss
resulting from it among other costs of the employer’s business.’ ” (Id. at
p. 1622.) The majority concluded Henriksen’s “consumption of alcohol
changed the nature of the risk facing [the city] in permitting its off-duty
officers to carry their weapons. To require indemnification in the present
case would place [the city] in the position of assuming an unacceptable risk of
liability for the actions of its off-duty officers.” (Ibid.) Instead, “[t]he officers
themselves, when they make the decision to socialize after hours, are the
ones in a position to take the necessary safeguards to mitigate any increased
risk; if they fail to do so they, not the public, must bear the loss.” (Ibid.)
The dissenting justice noted Henriksen’s evidence that, “even though
he was ‘off shift’ (1) he was expected to perform law enforcement activities as
they might arise, (2) he was encouraged to carry his service weapon for that
purpose, (3) he was authorized to carry a particular type of weapon, and no
other, when ‘off shift,’ and (4) it was only his status as a police officer which
caused him to carry this weapon when ‘off shift.’ ” (Henriksen, supra,
20 Cal.App.4th at p. 1635 (dis. opn. of Timlin, J.).) Taking these facts as true,
the dissenting justice concluded, “[the city] could reasonably foresee that
Henriksen would not only be carrying the weapon but also that it might
accidentally discharge and result in someone being shot.” (Id. at pp. 1635–
1636 (dis. opn. of Timlin, J.).) Henriksen’s alcohol consumption did not
materially change this analysis: “for an employee who is expected to be ‘on
call’ at all times, the fact of engagement in the normal activities of daily life,
including attending social functions and some consumption of alcoholic

15
beverages, would not necessarily cause acts arising out of the employee’s
work-related duties to fall outside the scope of employment.” (Id. at p. 1636
(dis. opn. of Timlin, J.).)
The dissenting justice found the majority’s automobile analogy
inappropriate because, “while an automobile . . . is a potentially dangerous
instrumentality, it is not an inherently dangerous instrumentality. . . . It only
becomes dangerous when it is improperly operated. In contrast, a gun’s
inherent function is to cause death or injury. This function exists regardless
of whether it is properly or improperly used. Thus, a gun is an inherently
dangerous instrumentality.” (Henriksen, supra, 20 Cal.App.4th at p. 1637
(dis. opn. of Timlin, J.).)
Finally, the dissenting justice disagreed with the majority’s analysis of
the three policy objectives. The dissent rejected the majority’s conclusion
that additional training would not have altered the outcome because “the
record is entirely lacking in any evidence of how such officers were trained in
the past, or how they could be trained in the future.” (Henriksen, supra,
20 Cal.App.4th at p. 1643 (dis. opn. of Timlin, J.).) Instead, the dissent found
imposition of liability “would obviously motivate [the city] either to adopt a
training program and rules governing the carrying of service revolvers by off-
duty officers or to adopt a policy forbidding its police officers from carrying
their weapons while off duty. Either of these measures, in turn, would tend
to limit, if not totally prevent, recurrence of the accidental discharge of
weapons carried by off-duty officers.” (Ibid.) As for the second factor, the
dissenting justice disagreed that the posture of the present case was
dispositive because “[p]olicy considerations are applied to a class of
circumstances, not to the circumstances of a particular case.” (Ibid.) In the
class of circumstances presented by the case—“the negligent discharge of a

16
service revolver by an off duty peace officer, who was encouraged by his
public entity employer to carry it while off duty”—finding the conduct within
the scope of the officer’s employment would “mak[e] the employer also liable
to the victim and thereby assur[e] the victim of a greater chance to be
compensated for . . . injuries caused by the firing of the gun.” (Id. at p. 1644
(dis. opn. of Timlin, J.).) With respect to the third objective, the dissenting
justice queried, “Given the majority’s recognition that there is a substantial
benefit to the community from authorizing ‘off duty’ employees to carry
weapons [citation], how can it be said, on the other hand, that the community
should not bear the risks which accompany this benefit?” (Ibid.) Instead,
“when the [city] authorizes and encourages its off-duty officers to carry their
service guns so as to be better able to perform their law enforcement duties to
protect the community . . . at all times, this ‘formidable power’ has the
potential for abuse and the cost resulting from the off-duty officer’s misuse by
negligence of such service weapon should be borne by the [city].” (Id. at
p. 1645 (dis. opn. of Timlin, J.).) As for Henriksen’s consumption of alcohol,
“it would seem that the risk involved in encouraging ‘off duty’ officers to carry
weapons and expecting them to perform law enforcement activities as the
need might arise inferentially would include the risk that any given ‘off duty’
police officer might have consumed alcoholic beverages (or have taken
medication altering [the officer’s] physical or mental abilities, or be physically
unwell and perhaps unsteady) shortly before being called upon to perform as
a peace officer.” (Ibid.)
C. Analysis of the City’s Liability
To prevail on its summary judgment motion, the City must
demonstrate Plaintiff’s cause of action has no merit by proving one or more

17
elements cannot be established. The City failed to do so.7 The evidence,
viewed most favorably to Plaintiff, is as follows. The Department allows
officers to carry approved, secondary firearms while on duty and officers
regularly do so. There is no evidence that such firearms are required to be
left at the police station after an officer’s shift is over; therefore, the
Department knows or reasonably should know that officers transport these
firearms on their commutes to and from work. The Department allows
officers to carry handguns while off duty as long as they also carry indicia of
their status as police officers. Department specialists may be called to
respond to incidents at any time, and must carry a firearm when they
respond. On August 11, 2017, Cabuntala—a Department officer and
specialist—brought his Department-approved secondary firearm while
traveling to a Department-assigned training session. He did so because he
was on-duty and would be training near a county jail; a jury could infer
Cabuntala thought he might be called to respond to an incident at the jail as
an on-duty officer or specialist. The firearm was present in his vehicle upon
his return home because he brought it to his assigned work location for these
work-related purposes.
We consider these facts in the context of the enterprise of policing, the
centrality of firearms to that enterprise, and the underlying rationale for
respondeat superior that “losses fairly attributable to an enterprise—those
which foreseeably result from the conduct of the enterprise—should be
allocated to the enterprise as a cost of doing business.” (Farmers, supra,
11 Cal.4th at p. 1004.) Given this context, a jury could reasonably find a

7 We need not decide whether the City failed to meet its initial burden,
as Plaintiff argues, because even assuming it satisfied this burden, Plaintiff
established a triable issue of material fact.

18
nexus between the Department’s enterprise of policing and the risk that one
of its officers would negligently fail to secure a Department-approved,
secondary firearm upon returning home from work. (See Marez, supra, 48
Cal.App.5th at p. 582 [“ ‘[T]here must be “a nexus between the employee’s
tort and the employment to ensure that liability is properly placed upon the
employer.” ’ ”].) This stands in sharp contrast to the risk of workplace sexual
harassment at issue in Farmers which, although foreseeable “as a general
matter,” was not “typical of or broadly incidental to the particular enterprise”
of the employer. (Farmers, at p. 1009.) Accordingly, we conclude a jury could
reasonably find that Cabuntala’s negligent failure to secure his Department-
approved firearm in an unattended vehicle upon returning home from a
Department-assigned training fell within the scope of his employment.
Henriksen does not alter this outcome. As an initial matter, it is
readily distinguishable. Unlike in Henriksen, Cabuntala’s possession of a
Department-approved firearm was not the sole factor linking his conduct to
his employment, and Cabuntala had not consumed alcohol before the tortious
act. More significantly, we reject the Henriksen majority’s reasoning because
it fails to rigorously apply the rationale and objectives of California’s
enterprise approach to respondeat superior liability. The comparison of a
police officer’s misuse of a firearm to the misuse of an automobile fails to
recognize the critical role of firearms in policing, as discussed above. The
officer’s off-duty consumption of alcohol was not unforeseeable, but rather
was part of the officer’s participation in normal activities. And the majority’s
conclusion that the public should not bear the risk of liability ignores the
fundamental justification for respondeat superior that “losses fairly
attributable to an enterprise—those which foreseeably result from the

19
conduct of the enterprise—should be allocated to the enterprise as a cost of
doing business.” (Farmers, supra, 11 Cal.4th at p. 1004.)
In any event, the three policy objectives undergirding enterprise
liability support our conclusion in this case. The goal of preventing
recurrence of the tortious conduct is served, because imposition of respondeat
superior would likely prompt police departments to utilize more selective
hiring practices, impose stricter regulations, and provide more training with
respect to the handling of firearms on and off duty.8 We note that the City
does not suggest the imposition of liability will result in the Department
barring officers, and particularly specialists, from carrying approved firearms
off duty. Providing greater assurance of compensation to victims is also
furthered. Finally, because the community benefits from police officers’
authorized handling of firearms, the objective of “ensur[ing] that the victim’s
losses will be equitably borne by those who benefit from the enterprise that
gave rise to the injury” (Farmers, supra, 11 Cal.4th at p. 1016) is served by

8 With respect to hiring practices, for example, reforms have been
suggested to either help police departments avoid hiring officers who were
previously fired from other jurisdictions, or to mitigate the risk they will
commit misconduct again if they are hired. (See Grunwald & Rappaport, The
Wandering Officer (2020) 129 Yale L.J. 1676, 1759, 1762 [police departments
hire such officers in part because they “do not always complete adequate
background checks”; when knowingly hired, departments “should consider
enhanced monitoring and support of [such officers] as a potential way to
manage th[e] risk” of misconduct]; Assem. Floor Analysis of Sen. Bill No. 2
(2021-2022 Reg. Sess.) as amended Sept. 1, 2021, p. 4 [author’s statement in
support of bill creating decertification procedure for peace officers,
subsequently enacted and codified at Stats. 2021, ch. 409, noting problem of
“officers committing misconduct . . . [who] resign or are fired from their
employer only to get rehired at another law enforcement agency and continue
to commit serious acts of misconduct”].)

20
imposing liability on police departments when officers negligently mishandle
those firearms. (Mary M., supra, 54 Cal.3d at pp. 216–217.)
We note that our reasoning does not extend beyond instances of officers’
negligent mishandling of firearms. An officer who intentionally uses his
authorized firearm to, for example, damage a neighbor’s person or property
as part of an ongoing dispute has “substantially deviate[d] from the
employment duties for personal purposes” such that “the losses do not
foreseeably result from the conduct of the employer’s enterprise and so are
not fairly attributable to the employer as a cost of doing business.” (Farmers,
supra, 11 Cal.4th at p. 1005, italics omitted.) A jury could reasonably
conclude that Cabuntala, when he negligently failed to secure his firearm
upon returning home from work, did not.
The City failed to demonstrate that Plaintiff cannot establish
respondeat superior liability as a matter of law.9
DISPOSITION
The judgment is reversed. Plaintiff is awarded her costs on appeal.

9 Because of this conclusion, we need not and do not decide certain
other arguments raised in Plaintiff’s briefing: (1) the applicability and impact
of the special/business errand exception to the going and coming rule (see
Sumrall v. Modern Alloys, Inc. (2017) 10 Cal.App.5th 961, 964); (2)
Cabuntala’s allegedly tortious acts of failing to secure his firearm when
leaving the training and failing to realize sooner the firearm was stolen, and
whether Plaintiff forfeited any arguments based on those acts; or (3)
Cabuntala’s alleged heat exhaustion resulting from the training session. In
addition, the City’s motion below sought summary judgment solely on the
basis that Cabuntala was not acting within the scope of his employment. The
trial court therefore did not rule on any of the other elements of Plaintiff’s
claim, including proximate causation, and we express no opinion on the
viability of those elements.

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 SIMONS, J.

We concur.

JACKSON, P. J.

BURNS, J.

(A161279)

22
Perez v. City and County of San Francisco (A161279)

Trial Judge: Hon. Ethan P. Schulman

Trial Court: San Francisco County Superior Court

Attorneys:
Cotchett, Pitre, & McCarthy LLP, Frank M. Pitre and Donald
Magilligan; Law Office of Valerie T. McGinty, Valerie T. McGinty for
Plaintiff and Appellant.

Dennis Herrera, City Attorney, Meredith Osborn, Chief Trial
Deputy, James Hannawalt, Deputy City Attorney, for Defendant and
Respondent.

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