Filed 7/7/21 Krystle V. v. Cal. Department of Motor Vehicles CA2/2

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

KRYSTLE V.,

Plaintiff and Appellant,

v.

CALIFORNIA DEPARTMENT 

OF MOTOR VEHICLES,

Defendant and 

Respondent.

 B301643

 (Los Angeles County

 Super. Ct. No. BC666823)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Daniel S. Murphy, Judge. Affirmed.

Valencia & Cywinska, Mark Joseph Valencia and Izabela 

Cywinska Valencia for Plaintiff and Appellant.

Xavier Becerra and Rob Bonta, Attorneys General, 

Danielle F. O’Bannon, Assistant Attorney General, Catherine 

Woodbridge, Benjamin Barnouw and Kenneth G. Lake, Deputy 

Attorneys General, for Defendant and Respondent.

* * * * * *
2

Krystle V. (appellant) appeals from a final judgment 

entered in favor of the respondent California Department of 

Motor Vehicles (DMV) in this action for sexual battery. 

Appellant’s complaint alleged that DMV employee Manuel 

Llamzon engaged in sexual battery and made sexually offensive 

comments to her during a driving test. The trial court granted 

DMV’s motion for summary judgment on the ground that DMV 

could not be liable under either a theory of respondeat superior or 

ratification, as a matter of law.

We find no error and affirm the judgment.

FACTUAL BACKGROUND1

Appellant’s allegations

On June 23, 2016, appellant presented herself at the San 

Pedro office of the DMV to take her first driving test. She was 

then 21 years old, nervous, and anxious to pass the test. She 

feared that if she failed, it would adversely affect her anticipated 

employment for which she needed a driver’s license.

Appellant waited in the drive test lane until Llamzon 

approached and told her he would be her DMV examiner.2 He 

told appellant’s friends to get out of the car, and he entered the

front passenger side of appellant’s vehicle. Llamzon and 

appellant were then the only two people in the vehicle. Llamzon 

asked appellant if she wanted to remove her sweater because it 

1 Because this case comes to us on summary judgment, we 

must view the facts presented in the light most favorable to the 

appellant. For the purpose of this appeal we assume the truth of 

appellant’s version of the events.

2 Llamzon was then a DMV licensing registration examiner 

(LRE).
3

was hot. Appellant declined. The drive test lasted 45 minutes 

though it was supposed to last only about 15 minutes.

Due to her nervousness, appellant’s hands began to sweat 

during the test. Appellant began to dry her sweaty hands against 

her pants. Llamzon noticed this and told her to bring her hands 

to the air conditioner, but appellant did not want to move her 

hands away from the steering wheel as she feared failing the test. 

Llamzon then grabbed appellant’s hand and brought it to his 

penis area. He positioned her fingers in the area of his groin and 

did a slow wiping motion with her right hand.

Appellant did not know what to do because she feared if she 

opposed Llamzon she would fail the driving test. She attempted 

to move her hand away from Llamzon, but he held on to it. 

Eventually, she was able to free her hand from his. At no time 

did she consent to touching Llamzon’s penis or groin area, or for 

Llamzon to touch her hand.

Also during the driving test Llamzon made inappropriate 

and sexually suggestive comments to appellant, including: “You 

need a real man in your life.” “Do you live alone?” “Do you know 

how to get to the White Globe[?]” (Appellant understood the 

White Globe to be a place where couples go.) “I did not realize 

how pretty you were.” “Do you want to know anything about 

me?” “Do you have a boyfriend[?]” “Maybe I can come visit you 

sometime like at work or at your house.” (Llamzon made this 

comment while verifying appellant’s home address, as he already 

had her home address information.) “I really want to keep 

driving with you.” “I really do not want the car ride to end.” 

“Maybe I come to Lucille [sic] at your work and you can take care 

of me.” (Appellant had her name tag from Lucille’s restaurant, 
4

where she worked, in her car, and Llamzon asked appellant if she 

worked at Lucille’s.) “I only pass people who I feel deserve it.”

During the drive test Llamzon stared at appellant, which 

made her uncomfortable. She found his stares to be harassing 

and intimidating. When she put the car in reverse and moved 

her head to look out the back window of the car, Llamzon’s face 

was uncomfortably close to hers. When she told him that she 

could not focus with him staring at her, Llamzon replied, “Should 

I put my glasses on so you can’t see my face?”

At the end of the driving test they returned to the DMV 

office where Llamzon told appellant not to repeat anything they 

had talked about during the drive test. He said this just before 

he handed appellant the paper showing that she passed the test. 

Llamzon then stated that “maybe” he could come visit her at her 

work or her house and repeated appellant’s home address back to 

her. Appellant was offended by Llamzon’s comments.

As Llamzon walked away, he ripped the paper license plate 

off of appellant’s front license plate holder without her 

permission. He then walked to another car. Afterward, 

appellant told the friends who had accompanied her to the test 

that Llamzon was a pervert and explained to them what 

happened.

Appellant also informed her stepfather about what had 

happened to her during her driving test. Appellant’s stepfather 

reported the incident the following day to the DMV office 

manager, Judy Hollinger, who immediately reported it to upper 

management. Appellant’s stepfather also reported the incident to 

the Los Angeles Police Department and made a Facebook post 

about the incident, which “went viral.”
5

Events following the incident

It was DMV policy that once a sexual battery allegation is 

made, the allegations must be investigated and the accused 

placed on administrative leave. The DMV, with approval from its 

director Jean Shiomoto and chief deputy director, William 

Davidson, placed Llamzon on administrative time off (ATO) 

beginning June 27, 2016. DMV had 30 days to decide whether to 

extend Llamzon’s ATO or return him to work.

On July 23, 2016, Frank Alvarez, chief of investigations at 

DMV, sent an e-mail to regional administration of the DMV 

stating:

“I am waiting for a response back from either 

[Davidson] or [Shiomoto]. The investigation resulted 

in at least 16 interviews of females [th]at the LRE 

tested and nothing as fruitful as expected. We will 

submit to DA. But more tha[n] likely, the case will 

be rejected. Our recommendation . . . was to bring 

back from ATO and place at counter until DA 

rejects.”

In late July 2016, Shiomoto and Alvarez met to discuss 

whether to return Llamzon to work or to continue his ATO. They 

decided to put Llamzon to work at the counter.3

3 On August 3, 2016, David Keenan, chief of the human 

resources branch, sent the following memorandum to the 

personnel services branch:

“Mr. Llamzon allegedly engaged in unwanted sexual 

advances directed at a minor during a drive test at 

work and investigation was being conducted by the 

Investigation Division, Internal Affairs Unit (IAU). 

The Human Resources Branch (HRB) recently 

received information from the IAU that there is 

insufficient evidence at this time. As a result, Mr. 
6

Llamzon returned to work at the San Pedro DMV on 

August 2, 2016, at which time he was assigned to work as a 

“tester,” an employee who directs customers to a computer to take 

their written test. Llamzon’s work included informing members 

of the public whether they passed or failed their written exam, 

and scheduling a retest for those who failed. If a person passed, 

he would schedule a drive test and print a permit. In this 

position, Llamzon would interact with between 50 and 100 

customers per day.

Hollinger, the San Pedro DMV office manager, had 

supervisory responsibility over all employees. Hollinger testified 

that it was appropriate for Llamzon to be assigned to work at the 

counter as he could be closely monitored. He was in a controlled 

environment and closely observed by supervisors. During the 

time that Llamzon was on restricted duty, there were no 

complaints regarding Llamzon’s conduct. 

Although Llamzon returned to work on August 2, 2016, the 

DMV did not complete its investigation until September 22, 2016.

During the course of the investigation DMV investigators 

located four additional potential victims:

Daria Diachenko took a drive test with Llamzon on June 

20, 2016. She reported that during the drive test Llamzon made 

conversation with her about her stay in the United States and 

commented about the jewelry she was wearing.

Llamzon was ordered to return to work, and he 

returned effective August 2, 2016. Therefore, the 

Department of Motor Vehicles (DMV) requests an 

ATO extension only to cover the six (6) additional 

days that Mr. Llamzon was off work.”
7

G.M., a minor at the time of her test, took her driving test 

at the San Pedro DMV with Llamzon on March 11, 2016. Among 

other comments, Llamzon asked G.M. about her piercings. G.M. 

told Llamzon how many ear piercings she had, and Llamzon 

commented, “[O]h[,] that’s how you like it!” G.M. felt that the 

comment was a reference to a sexual position and was an 

unwanted sexual advance on her. However, she wanted to focus 

on the exam so she did not address it further. In addition, 

Llamzon asked G.M. if she had ever been to Disneyland, adding, 

“I’ve never been to Disneyland, when you pass your exam you can 

drive me to Disneyland.”

Veronica Lopez had a drive test with Llamzon on June 21, 

2016. During the drive test Llamzon asked her personal 

questions. He inquired about her brother, “Is that guy your 

boyfriend?” When Lopez responded that it was her brother, 

Llamzon inquired, “[W]hy does he look Mexican and you look 

white?” Llamzon asked Lopez many questions about where she 

worked and what hours she worked. He then asked if he could go 

to her workplace. Lopez recalled that Llamzon was staring at 

her, and she asked, “What are you staring at?” Lopez reported 

that the drive test, which was a retest, took about 25 minutes 

longer than her first test.

E.L. (16 years of age) took her drive test with Llamzon on 

May 25, 2016. E.L. recalled Llamzon being friendly and talkative 

throughout the drive test. Llamzon made many jokes throughout 

the exam, including a joke involving Llamzon putting money into 

E.L.’s bank account if she passed the test.

On September 13, 2016, a customer complained that she 

did not want her daughter interacting with Llamzon at the 

counter.
8

On September 22, 2016, DMV completed its investigation 

report, finding:

“This investigation sustained allegations of 

sexual harassment. Through the evidence gathered 

from the victim’s statements and investigation search 

results; this investigation found Llamzon to have 

engaged in unprofessional conduct to include a 

violation of battery with victim V[.] During her 

exam, Llamzon, against her will, grabbed her right 

hand with his left hand and rubbed her right hand 

along his left inner thigh, violating California Penal 

Code 243.4(a); Sexual Battery, a misdemeanor.

“Victim [G.M.] reported she was a victim of 

harassment from Llamzon. On March 11, 2016, 

Llamzon conducted a drive test for [G.M.], a minor at 

the time of the exam. During the drive test Llamzon 

made sexually inappropriate comments to victim 

[G.M.] making her feel uncomfortable; violating 

California Penal Code 647.6(a)(1) Children; annoy or 

molest, a misdemeanor. [¶] . . . [¶]

“This report is being prepared for the County of 

Los Angeles District Attorney’s Office for criminal 

filing consideration. The report will also be 

submitted to the DMV Field Operations Division for 

administrative review and disposition.” (Some 

capitalization omitted.)

Following submission of the investigation report, it is 

reviewed by appropriate individuals within the field operations 

division for a determination whether to take adverse action 

against the employee. An additional process must follow, 

including preparation of documents to be served on the employee, 

and service on the employee. Once the employee is served with 

notice of the adverse action, DMV generally places the employee 
9

on ATO until the termination becomes effective. The employee is 

permitted “Skelly rights” and may file for a Skelly hearing, where 

an independent individual reviews the adverse action and makes 

a recommendation whether or not to uphold or modify the 

action.4

Llamzon was placed on ATO a second time on February 23, 

2017, until his termination from employment on March 7, 2017.

Human resource chief Keenan testified that the DMV “did 

what it was supposed to do. It mitigated the immediate 

circumstances, [to] prevent the conduct from occurring again, 

sequestered him in the office, conducted an investigation, 

prepared an adverse action, served him and terminated him.”

PROCEDURAL HISTORY

Appellant filed her complaint against DMV and “Manny 

Roe” on June 28, 2017.5 The complaint alleged five causes of 

action: (1) sexual battery, (2) liability under Civil Code sections 

51.7 and 52.3, (3) liability under Civil Code sections 51.9 and 52,

(4) battery, and (5) negligence.6

On September 21, 2018, DMV filed a motion for summary 

judgment. Appellant opposed the motion.

4 Civil service employees have a property interest in the 

continuation of their employment, which is protected by due 

process. (Skelly v. State Personnel Board (1975) 15 Cal.3d 194, 

206 (Skelly).)

5 On November 27, 2017, appellant identified “Manny Roe” 

as Llamzon. Llamzon is not a party to this appeal.

6 On September 4, 2019, appellant dismissed without 

prejudice her fifth cause of action for negligence.
10

On September 13, 2019, the trial court entered its decision 

granting DMV’s motion for summary judgment. The decision 

focused on the doctrine of respondeat superior, noting that 

Government Code section 815.2, subdivision (a), expressly makes 

the doctrine of respondeat superior applicable to public 

employers. (Citing Hoff v. Vacaville Unified School Dist. (1998) 

19 Cal.4th 925, 932.) However, the court also noted that the 

doctrine applies only when the tort of an employee took place 

when the employee was “acting within the scope of his or her 

employment.” (Baptist v. Robinson (2006) 143 Cal.App.4th 151, 

160.) After considering the authorities and arguments of the 

parties, the court concluded that vicarious liability could not 

reasonably attach to create liability on the part of DMV in this 

case.

The court also addressed the doctrine of ratification. It 

found that appellant could not satisfy any of the elements of 

ratification and that no reasonable juror could reach the 

conclusion that the DMV approved Llamzon’s alleged sexual 

misconduct.

Appellant filed her notice of appeal on October 7, 2019. 

DISCUSSION

I. Applicable law and standard of review

A motion for summary judgment is properly granted if the 

submitted papers demonstrate there is no triable issue as to any 

material fact and that the moving party is entitled to summary 

judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) 

A defendant meets this burden by showing that one or more 

elements of the plaintiff’s cause of action cannot be established. 

(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.) A 
11

defendant may also meet this burden by showing that there is a 

complete defense to the cause of action. (Castellon v. U.S. 

Bancorp (2013) 220 Cal.App.4th 994, 997.)

Once the defendant makes such a showing, the burden 

shifts to the plaintiff to set forth specific facts that a triable issue 

of material fact exists. (Castellon v. U.S. Bancorp, supra, 220 

Cal.App.4th at p. 997.) In order for an issue to be considered 

material, it must “‘relate to a claim or defense in issue which 

could make a difference in the outcome.’” (Mallett v. Superior 

Court (1992) 6 Cal.App.4th 1853, 1863-1864.)

We review a trial court’s decision to grant summary 

judgment de novo. (Horn v. Cushman & Wakefield Western, Inc.

(1999) 72 Cal.App.4th 798, 805.) We accept as true the facts 

alleged by the party opposing the summary judgment motion and 

the reasonable inferences that can be drawn from them. (Ibid.) 

We will affirm a summary judgment if it is correct on any ground 

that the parties had an adequate opportunity to address at the 

trial court level, regardless of the court’s stated rationale. 

(Angelotti v. The Walt Disney Co. (2011) 192 Cal.App.4th 1394, 

1402.)

II. Respondeat superior liability

Appellant first argues that the trial court erred in denying 

respondeat superior liability as a matter of law, contending that 

contrary to the trial court’s holding, a reasonable jury could 

conclude that Llamzon acted within the scope of his authority. 

Appellant claims that all of the factors which should be taken 

into consideration when determining respondeat superior 

liability, support applicability of the doctrine in this matter.
12

A. Public entity liability

The Government Claims Act (Gov. Code, § 810 et seq.) was 

enacted in order to restrict the grounds for public entity liability 

to “‘“‘rigidly delineated circumstances.’”’” (Richards v. 

Department of Alcoholic Beverage Control (2006) 139 Cal.App.4th 

304, 317.) Thus, except as provided by statute, “a public entity is

not liable for an injury, whether such injury arises out of an act 

or omission of the public entity or a public employee or any other 

person.” (Gov. Code, § 815, subd. (a).)

Government Code section 815.2, subdivision (a) permits 

public entity liability under the doctrine of respondeat superior. 

The provision provides, “[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.” (Gov. Code, § 815.2, subd. (a).) Thus, the 

statute does not permit liability if the acts of the public employee 

fall outside the scope of his or her employment.

B. The doctrine of respondeat superior

“Under the doctrine of respondeat superior, an employer 

may be held vicariously liable for torts committed by an employee 

within the scope of employment.” (Mary M. v. City of Los Angeles 

(1991) 54 Cal.3d 202, 208 (Mary M.).) “[A]n 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.” 

(Farmers Ins. Group v. County of Santa Clara (1995) 11 Cal.4th 

992, 1004 (Farmers).) An employee’s willful or malicious 

intentional torts, “including those that might contravene an 

employer’s express policies, do not automatically fall outside the 
13

scope of employment.” (Daza v. Los Angeles Community College 

Dist. (2016) 247 Cal.App.4th 260, 268 (Daza).) However, to fall 

within the scope of employment, “the intentional misconduct 

must be ‘an “outgrowth” of the employment’ and the risk of 

tortious injury must be ‘“‘inherent in the working environment’”’

or ‘“‘typical of or broadly incidental to the enterprise [the 

employer] has undertaken.’”’” (Ibid.) Similarly, the intentional 

conduct must be “foreseeable” from the employee’s duties, 

meaning that it was “‘“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.”’” (Ibid.)

“Sexual assaults are not per se beyond the scope of 

employment.” (Daza, supra, 247 Cal.App.4th at p. 268.) 

However, courts rarely have found an employee’s sexual assault 

or sexual harassment of a third party falls within the scope of 

employment. (Ibid.) In fact, the only California case in which an 

employee’s sexual assault of a third party was held to be within 

the scope of employment was Mary M., supra, 54 Cal.3d at page

202. In Mary M., a Los Angeles Police Department sergeant 

stopped the victim for erratic driving. The officer was in uniform, 

wore a badge and a gun, and was driving a marked black and 

white police vehicle. After the officer asked the victim to perform 

a field sobriety test, she began to cry, and pleaded with the officer 

not to take her to jail. The officer told the victim to get in the 

front seat of his police vehicle. He did not handcuff her. He 

drove her to her home and then demanded “‘payment’” for taking 

her home instead of to jail. Although the victim tried to run 

away, the officer raped her. (Id. at p. 207.)

In Mary M., the imposition of vicarious liability on the city 

was “based on ‘the unique position of police officers with their 
14

ability to arrest and use deadly force,’ coupled with their 

‘“substantial degree of authority”’ and the use of that authority 

over the motorist plaintiff.” (Daza, supra, 247 Cal.App.4th at p. 

269.) “‘Employees who do not have this authority and who 

commit sexual assaults may be acting outside the scope of their 

employment as a matter of law.’” (M.P. v. City of Sacramento 

(2009) 177 Cal.App.4th 121, 131 (M.P.).)

C. Application of the doctrine in this case

The controlling authority dictates that DMV is not 

responsible for Llamzon’s sexual conduct under the doctrine of 

respondeat superior in the circumstances before us. The only 

California case in which an employee’s sexual assault was held to 

have fallen within the scope of employment was Mary M., supra,

54 Cal.3d at page 202, which has been expressly limited by courts 

considering the vicarious liability of employers for sexual 

misconduct.

In M.P., supra, 177 Cal.App.4th 121, a woman alleged that 

while working as a photographer at an evening event, she came 

across a crew of firefighters who had driven in their fire truck to 

the event. (Id. at p. 125.) One of the firefighters invited her to 

take photographs of him and another firefighter on the fire truck. 

One of the firefighters was off duty, and one was on duty. The 

photographer was sexually assaulted by the firefighters on the 

fire truck. (Ibid.) While acknowledging the Mary M. decision, 

the M.P. court declined to extend its holding to the circumstances 

present in the M.P. case. The court stated, “both the Mary M.

decision itself, and subsequent decisions by the California 

Supreme Court, dictate we not extend vicarious liability to the 

alleged sexual assaults by the firefighters in this case.” (M.P., at 

p. 131.) The M.P. court noted that the Mary M. majority stressed 
15

that its decision flowed from “‘the unique authority vested in 

police officers.’” (M.P., at p. 131.) In addition, the Supreme 

Court later observed that our state’s courts had not extended the 

Mary M. holding to employees other than police officers. (M.P., at 

p. 131, quoting Farmers, supra, 11 Cal.4th at pp. 1006-1007 

[“‘except where sexual misconduct by on-duty police officers 

against members of the public is involved [citations], the 

employer is not vicariously liable to the third party for such 

misconduct [citations]’”].)

Other cases cited by the parties in which the perpetrator 

was in a greater position of trust than Llamzon, have held that 

sexual assault or harassment was not within the scope of 

employment. A guidance counselor at the Los Angeles 

Community College District, who purportedly sexually assaulted 

a student when she went to his office for guidance, was not acting 

within the scope of his authority as a matter of law when he 

allegedly used his position of authority to sexually harass and 

molest the student. (Daza, supra, 247 Cal.App.4th at p. 269.) 

The Daza court concluded that, “[c]onsistent with the vast weight 

of authority,” the student’s allegations of sexual assault against 

the counselor fell outside the scope of his employment as a 

guidance counselor. (Ibid.) The court explained, “His alleged 

conduct was not an outgrowth of his employment, it was neither 

inherent in nor typical of the District’s educational enterprise, 

and it was not foreseeable from Daza’s duties as a guidance 

counselor.” (Ibid.)

Similarly, an ultrasound imaging technician was not acting 

within the scope of his authority when he sexually molested a 

patient under the pretense of conducting an ultrasound imaging 

examination. (Lisa M. v. Henry Mayo Newhall Memorial 
16

Hospital (1995) 12 Cal.4th 291, 303-304 (Lisa M.).) The Lisa M.

court concluded that the assault was the “independent product” 

of the technician’s “aberrant decision to engage in conduct 

unrelated to his duties.” (Id. at p. 303.) Thus, although they 

arose in the context of a physical examination, the technician’s 

actions “were not foreseeable from the nature of the work he was 

employed to perform.” (Ibid.) Further, unlike the officer in 

Mary M., the technician did not have “any power to exercise 

general control over plaintiff’s liberty.” (Lisa M., at p. 304.) 

Thus, the hospital was not liable under the doctrine of respondeat 

superior as a matter of law. (Id. at p. 306.)7 Other examples of 

cases in which employers were not liable under the doctrine of 

respondeat superior as a matter of law include Farmers, supra, 

11 Cal.4th at page 997 [deputy sheriff’s sexual harassment of 

other deputy sheriffs working at county jail not within scope of 

employment]; John R. v. Oakland Unified School Dist. (1989) 48 

Cal.3d 438, 441, 447-452 (John R.) (teacher’s sexual molestation 

of student at teacher’s apartment during sanctioned 

extracurricular program not within scope of employment); Z.V. v. 

7 Appellant points out that in Lisa M., the sexual battery 

occurred after the performance of the sanctioned ultrasound. 

(Lisa M., supra, 12 Cal.4th at p. 301.) Thus appellant argues, it 

was not directly connected to the technician’s job duties. 

Appellant contends that the facts before us are different, because 

the alleged acts occurred during a sanctioned driving test. This 

minor factual distinction does not permit appellant’s action to 

proceed on a respondeat superior theory, particularly in light of 

the substantial authority holding otherwise. The nature of the 

employee’s acts, and the nature of his employment, are far more 

significant in determining whether or not the employee’s tortious 

acts fall within the scope of his employment.
17

County of Riverside (2015) 238 Cal.App.4th 889, 891, 896-897 

(Z.V.) (social worker’s sexual assault of minor outside of work 

hours and at social worker’s apartment not within scope of 

employment); and Alma M. v. Oakland Unified School Dist. 

(1981) 123 Cal.App.3d 133, 139-140 (Alma W.) (school janitor’s 

rape of student in janitor’s office not within scope of 

employment).

This substantial case authority leaves no room for a 

different decision in this case. Llamzon had significantly less 

contact and control over appellant than the guidance counselor in 

Daza, the teacher in John R., and the social worker in Z.V.

In addition, Llamzon cannot be described as having similar 

authority to that vested in police officers. As the Mary M. court 

emphasized, “[p]olice officers occupy a unique position of trust in 

our society. They are responsible for enforcing the law and 

protecting society from criminal acts. They are given the 

authority to detain and to arrest and, when necessary, to use 

deadly force. As visible symbols of that formidable power, an 

officer is furnished a distinctively marked car, a uniform, a 

badge, and a gun. Those who challenge an officer’s actions do so 

at their peril; anyone who resists an officer’s proper exercise of 

authority or who obstructs the performance of an officer’s duties 

is subject to criminal prosecution.” (Mary M., supra, 54 Cal.3d at 

p. 206.) In contrast, an LRE such as Llamzon conducts driving 

tests. They use standardized evaluations and while they are 

vested with the authority to determine whether an individual has 

passed the test, they have no authority to detain, arrest, or use 

deadly force against an individual.

Under the applicable legal precedent DMV is not liable for 

Llamzon’s sexual misconduct as a matter of law.
18

D. The policy goals of the respondeat superior 

doctrine

Appellant argues that the trial court erred in failing to 

analyze the three policy goals of the doctrine of respondeat 

superior. Appellant points out that the Mary M. court identified 

three policy considerations in making its decision to impose 

respondeat superior liability in that case. Those considerations 

were (1) the prevention of recurrence, (2) greater assurance of 

compensation to the victim, and (3) the appropriateness of 

spreading the risk of loss among the beneficiaries of the 

enterprise. (Mary M., supra, 54 Cal.3d at pp. 209, 214-217.)

First, we note that the trial court was not required to 

analyze these policy considerations in detail in the context of this 

case. The substantial authority holding that employers are not 

liable for sexual misconduct under the doctrine of respondeat 

superior—with only one, very limited exception—left no room for 

the trial court to decide otherwise in this case. The trial court 

properly analyzed the applicable case law and determined that 

the cases more analogous to the facts here held that sexual 

misconduct falls outside the scope of employment as a matter of 

law.

Further, we disagree that the three policy considerations 

support imposition of respondeat superior liability in this case. 

In support of her argument that the imposition of liability would 

prevent recurrence, appellant asserts that DMV in this case 

“empirically failed to prevent recurrence.” Appellant states that 

Llamzon had at least four other drive test victims in addition to 

appellant. Appellant suggests that a feedback card or survey 

sent to each applicant following the drive test would lead to a 

greater identification of LRE’s who engage in sexual misconduct.
19

The evidence filed in support of DMV’s motion for summary 

judgment showed that DMV has protocols in place to prevent 

sexual misconduct on the part of its employees. Hollinger offered 

her comment that during the time she was office manager at the 

San Pedro DMV she made it clear to all employees, including 

Llamzon, that DMV employees are not to engage in sexual 

harassment, including sexual touching, and that she had a zero

tolerance policy with regard to such action. In addition, all DMV 

employees including Llamzon, were required to undergo sexual 

harassment training on a regular basis. Llamzon completed this 

training. Allocating additional responsibility for the sexual 

misconduct of LRE’s would create logistical difficulties for DMV. 

Due to the nature of driving tests, it is difficult to eliminate the 

one-on-one situation without significant financial burden. Nor 

would it serve the public interest to eliminate on the road driving 

tests. As to appellant’s suggestion of a brief survey, we note that 

the other purported victims in this case did not report problems 

after their drive tests. Instead, they responded to an 

investigation after appellant’s allegations against Llamzon had 

already gone “viral.” Thus, it does not seem likely they would 

have otherwise complained. In fact, Hollinger noted that she 

occasionally receives feedback from customers and had only 

received generally positive customer comments and feedback 

about Llamzon.

Also, according to Alvarez the chief of investigations, there 

were only a “handful” of sexual misconduct cases involving LRE’s 

dating back as far as he could recall, even before the time that he 

became chief of investigations. Chief deputy director Davidson 

also had heard of only “[m]aybe three” other such cases occurring 

during his time at the DMV. Thus, DMV’s efforts to train its 
20

personnel and make known its zero tolerance policy appears to be 

sufficient.

In contrast to appellant’s argument, the limited number of 

incidents of sexual harassment over the years by LRE’s, in 

proportion to the number of drive tests conducted during the 

same time frame, do not render Llamzon’s actions a “foreseeable” 

consequence of the activity of supervising a driving exam. 

(Lisa M., supra, 12 Cal.4th at p. 299, citing John R., supra, 48 

Cal.3d 438, 450, fn. 9, & Alma W., supra, 123 Cal.App.3d at 

pp. 141-142.) Appellant asks that we focus on the “so divorced” 

from work standard set forth in Mary M. to find that Llamzon’s 

conduct was foreseeable in this matter. (Mary M., supra, 54 

Cal.3d at p. 214.) The Mary M. court “asked itself whether the 

sexual assault there was ‘so divorced’ or ‘so unusual’ . . . from the 

employee’s employment that it exceeded the employee’s ‘scope of 

employment.’ [Citation.] Thus, Mary M. recognized that while 

sexual assault is an extraordinary, abnormal event in any 

workplace context, the focus would be on the extent of 

abnormality.” (Z.V., supra, 238 Cal.App.4th at p. 898, quoting

Mary M., at p. 214.) Here, the numbers show that Llamzon’s acts 

were abnormal considering the limited number of incidents over 

the years. In addition, Llamzon did not have the same degree of 

power over appellant as did the officer in Mary M. over his 

victim. The case law uniformly holds that for public employees 

wielding less power than police officers, sexual assault is so 

divorced from the employee’s employment as to be outside the 

scope of employment as a matter of law.

We reject appellant’s suggestion that DMV’s actions 

following the incident did not sufficiently prevent recurrence. 

After becoming aware of appellant’s allegations against Llamzon, 
21

DMV immediately put him on leave. DMV was required to 

balance the concerns regarding appellant’s allegations with 

Llamzon’s due process rights. Thus, DMV returned Llamzon to 

work in a supervised counter position until his termination. 

There is no evidence suggesting that DMV’s postallegation 

actions caused harm or facilitated recurrence of sexual 

misconduct.

As to the second policy goal of assuring compensation to the 

victim, appellant notes that Llamzon did not have enough money 

to pay his attorneys to be present for his deposition, much less 

pay a judgment. Thus, there is no assurance to appellant that 

she will receive anything if she prevails in her lawsuit against 

Llamzon, the only remaining defendant. However, in addressing 

this policy goal, the Mary M. court noted that numerous 

California decisions have “recognized, at least implicitly, that 

vicarious liability is an appropriate method to ensure that victims 

of police misconduct are compensated.” (Mary M., supra, 54 

Cal.3d at p. 216.) The only distinction in Mary M. was that the 

victim was raped, rather than beaten, by an officer. (Ibid.) The 

Mary M. court opined that “the victim’s need for compensation in 

this instance is as great as in other cases of violent tortious 

conduct by a police officer while on duty.” (Ibid.) Appellant has 

presented no such precedent showing a collective recognition of 

the need for compensation under the present circumstances. 

Thus, the second policy goal is not met here.

The third policy consideration is the appropriateness of 

spreading the risk of loss among the various beneficiaries of the 

enterprise. In Mary M., the court pointed out that “society has 

granted police officers extraordinary power and authority over its 

citizenry.” (Mary M., supra, 54 Cal.3d at p. 216.) This includes 
22

“‘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.’” (Ibid.) Under those specific 

circumstances, “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 p. 217.)

While LRE’s such as Llamzon certainly provide a benefit to 

our society in ensuring the skill of those who have a driver’s 

license, they are not entrusted with nearly the same “formidable” 

level of power as police officers. (Mary M., supra, 54 Cal.3d at 

p. 217.) Nor is there the same “inherent” potential for abuse. 

(Ibid.) LRE’s do not carry guns and do not have the authority to 

use force or arrest citizens. They have only the authority to 

determine if an examinee has passed a standardized driving test. 

If the examinee does not pass the test the consequences are not 

dire—the examinee may simply take the driving test again in the 

near future.

In short, the policy considerations favoring imposition of 

respondeat superior liability in Mary M. do not exist in this case.

III. Ratification

Appellant further argues that the trial court erred by 

denying appellant’s ratification theory of liability.

A. Applicable law

“An employer may be liable for an employee’s willful and 

malicious actions under principles of ratification. [Citation.] An 

employee’s actions may be ratified after the fact by the 

employer’s voluntary election to adopt the employee’s conduct by, 

in essence, treating the conduct as its own.” (Delfino v. Agilent 

Technologies, Inc. (2006) 145 Cal.App.4th 790, 810, fn. omitted.) 
23

“‘A purported agent’s act may be adopted expressly or it may be 

adopted by implication based on conduct of the purported 

principal from which an intention to consent to or adopt the act 

may be fairly inferred, including conduct which is “inconsistent 

with any reasonable intention on his part, other than that he 

intended approving and adopting it.”’” (Dickinson v. Cosby (2019) 

37 Cal.App.5th 1138, 1158.)

Ratification is an alternate theory to respondeat superior. 

(Baptist v. Robinson (2006) 143 Cal.App.4th 151, 169 (Baptist).) 

“The failure to discharge an employee who has committed 

misconduct may be evidence of ratification.” (Ibid.) The theory is 

generally applied “where an employer fails to investigate or 

respond to charges that an employee committed an intentional 

tort, such as assault or battery.” (Ibid.)

An employer’s ratification of an employee’s conduct is 

generally a factual question. (Baptist, supra, 143 Cal.App.4th at 

p. 170.) However, summary judgment is appropriate where the 

theory of ratification is inapplicable as a matter of law. (See, e.g.,

ibid. [tortfeasor’s personal activities did not constitute a form of 

misconduct that was later ratified by his employer]; Fretland v. 

County of Humboldt (1999) 69 Cal.App.4th 1478, 1491

[uncontradicted testimony of steps taken by employer regarding 

investigation and discipline sufficient to uphold summary 

judgment of ratification theory].)

B. Application to this case

Appellant argues that DMV ratified Llamzon’s misconduct 

by returning him to work on August 2, 2016, after an 

approximately 36-day ATO. Appellant argues that DMV 

returned Llamzon to work in spite of finding additional victims 

on July 13 and 14, 2016. A second act of ratification, according to 
24

appellant, was when the DMV allowed Llamzon to continue 

working after September 22, 2016, the date on which DMV 

finalized its investigation into the incident reported by appellant. 

The investigation concluded that Llamzon did sexually harass 

appellant and G.M. In spite of this conclusion appellant argues 

DMV continued to allow Llamzon to work with the public.

After the DMV investigative report was prepared for the 

district attorney’s consideration, on November 3, 2016, DMV 

sought to terminate Llamzon. However, Llamzon continued to 

work at the DMV, interacting with customers, full time, at his 

full rate of pay, through February 22, 2017.

Appellant argues that DMV’s act of permitting Llamzon to 

continue working and reaping benefit from such work, constitutes 

sufficient evidence to support a ratification theory.

Appellant has produced insufficient evidence to support a 

ratification theory as a matter of law. Generally, to support a 

theory of ratification a plaintiff must show that the employer has 

failed to investigate or respond to charges that an employee 

committed an intentional tort. (Baptist, supra, 143 Cal.App.4th 

at p. 169.) Appellant can make no such showing in this matter. 

Upon hearing of the allegations against Llamzon, DMV 

immediately placed him on ATO and initiated an investigation. 

For civil service employees an initial ATO lasts only 30 days, at 

which time the employer must determine whether or not to seek 

approval of further leave. At the end of the 30-day period it did 

not appear there was enough information for a criminal 

prosecution against Llamzon. Thus, bringing Llamzon back from 

leave with restricted duties, not to include drive tests, was 
25

appropriate for the time period during which the report was 

finalized.

8

DMV’s retention of Llamzon as an employee during the 

investigation did not equate to ratification, particularly in the 

context of the state civil service disciplinary system. A civil 

servant is entitled to due process prior to termination of 

employment. An investigative report is merely the opinion of the 

investigators. Once such a report is completed a request is sent 

to human resources, followed by a review by the DMV legal team 

and a review and approval by the division deputy director. After 

these procedures DMV prepares the adverse action documents for 

service upon the employee. In the matter at hand, DMV did 

exactly what it was supposed to do under the circumstances. It 

mitigated the potential harm to the public by sequestering 

Llamzon in the office, conducted an investigation, then served 

him, and terminated him.

DMV had constitutional and statutory obligations to 

protect Llamzon’s property interest in his employment. (Skelly, 

supra, 15 Cal.3d at p. 206.) Appellant cites no authority 

suggesting that DMV’s compliance with these obligations can be 

considered ratification. In fact, if a civil service employer 

8 As set forth above, during the time that Llamzon was 

placed on restricted duty, until the time of his termination, there 

were no complaints regarding Llamzon’s conduct. Hollinger, who 

had years of experience with Llamzon, was comfortable with him 

working inside at the counter while the disciplinary process 

proceeded. Director Shiomoto, human resources chief Keenan, 

and regional administrator Velma Edmond also provided 

evidence that it was appropriate for Llamzon to work on limited 

duty as long as he was removed from drive tests and was closely 

monitored.
26

imposes discipline without providing these due process 

protections, the employer engages in a “‘constitutional infirmity.’” 

(Williams v. City of Los Angeles (1990) 220 Cal.App.3d 1212, 

1216.)

Since DMV immediately placed Llamzon on ATO and 

initiated an investigation of appellant’s allegations following 

appellant’s complaint, DMV’s compliance with the due process 

safeguards in place to protect Llamzon’s property interest in his 

job, in addition to a reassignment to a desk position, did not 

constitute ratification as a matter of law.9

DISPOSITION

The judgment is affirmed. Respondent DMV is awarded its 

costs of appeal.

________________________, J.

CHAVEZ

We concur:

________________________, P. J. ________________________, J.

LUI HOFFSTADT

9 Because we have determined that DMV did not ratify 

Llamzon’s actions as a matter of law, we decline to address 

DMV’s alternative grounds for rejecting ratification (1) that the 

facts providing the basis for ratification were not alleged in the 

complaint, (2) that appellant fails to allege a statutory basis for 

liability under a ratification theory, and (3) that DMV’s act of 

returning Llamzon to limited counter work was immunized under 

Government Code sections 820.2 and 821.6.