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Case No. 17-CV-00007-LHK 

ORDER RE: VICARIOUS AND RESPONDEAT SUPERIOR LIABILITY

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United States District Court

Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

JACQUELINE ZHANG,

Plaintiff,

v.

COUNTY OF MONTEREY, MONTEREY 

COUNTY RESOURCE MANAGEMENT 

AGENCY, and MONTEREY COUNTY 

PARKS DEPARTMENT,

Defendants.

Case No. 17-CV-00007-LHK 

ORDER RE: VICARIOUS AND 

RESPONDEAT SUPERIOR LIABILITY

Plaintiff’s proposed jury instructions include an “Instruction to Vicarious Responsibility.” 

ECF No. 149, at 76. Plaintiff argues that vicarious and respondeat superior liability are applicable 

to the instant case because of statements made and actions taken by Mark Mariscal (“Mariscal”)

and approved by Nick Chiulos (“Chiulos”). Id. at 79. Below, the Court briefly addresses 

vicarious and respondeat superior liability. 

First, under Section 1983, a municipality is liable for a constitutional injury only where the

municipality itself caused the injury through “execution of a government’s policy or custom, 

whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent 

official policy.” Monell v. Dep’t of Soc. Serv. of N.Y., 436 U.S. 658, 694 (1978). 

The United States Supreme Court has therefore made clear that under Section 1983, “local 
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Case No. 17-CV-00007-LHK 

ORDER RE: VICARIOUS AND RESPONDEAT SUPERIOR LIABILITY

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United States District Court

Northern District of California

governments are responsible only for ‘their own illegal act.’ They are not vicariously liable under

§ 1983 for their employees’ actions.” Connick v. Thompson, 563 U.S. 51, 60 (2011) (citation 

omitted). Thus, “[r]espondeat superior or vicarious liability will not attach under § 1983.” City of 

Canton, Ohio v. Harris, 489 U.S. 378, 385 (1989). To the extent that Plaintiff seeks to establish 

liability for the County of Monterey, Monterey County Resource Management Agency, and 

Monterey County Parks Department under Section 1983, Plaintiff must establish the 

municipality’s liability directly. The Court has already outlined the bases for municipal liability. 

See ECF No. 188.

Second, Plaintiff argues that vicarious or respondeat superior liability may be used to 

establish that Plaintiff had an implied-in-fact contract with the County that established a property 

right in Plaintiff’s employment. See ECF No. 149, at 77-78. However, the Court finds no support 

for that proposition. 

A public employee is not entitled to due process based on deprivation of a property interest 

in a position unless that employee has a “legitimate claim of entitlement” to the position. See 

Board of Regents v. Roth, 408 U.S. 564, 577 (1972). That entitlement “must be granted by state 

law,” Koepping v. Tri-County Metropolitan Transp. Dist. of Oregon, 120 F.3d 998, 1005 (9th Cir. 

1997), or “some other independent source.” Faurie v. Berkeley Unified School Dist., 2008 WL 

820682, at *8 (N.D. Cal. Mar. 26, 2008). “Under California law, county charters, rules and

regulations generally determine whether there is such an entitlement.” Weisbuch v. County of Los 

Angeles, 119 F.3d 778, 780-81 (9th Cir. 1997).

Thus, an “oral representation of [Plaintiff’s] supervisors,” “untethered to specific positive 

law, is insufficient to create a property interest.” Faurie, 2008 WL 820682, at *8. “In other 

words, expectations based on oral representations, employment history, or positive evaluations are 

not sufficient to give the Plaintiff a property interest in [her] public employment.” Id. at *9.

Accordingly, Plaintiff may not use an implied-in-fact contract claim to establish a property 

right in Plaintiff’s position in order to state a due process claim. As such, Plaintiff has no basis to 

offer a theory of vicarious or respondeat superior liability to establish that Mariscal or Chiulos
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Case No. 17-CV-00007-LHK 

ORDER RE: VICARIOUS AND RESPONDEAT SUPERIOR LIABILITY

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United States District Court

Northern District of California

entered into a binding contract with Plaintiff. Therefore, Plaintiff may not offer such a theory at 

trial.

Moreover, in order for Plaintiff to establish a “legitimate claim of entitlement” to her 

position with the County through Mariscal or Chiulos, Plaintiff must demonstrate that Plaintiff’s 

entitlement was granted by “state law,” Koepping, 120 F.3d at 1005, or “some other independent 

source.” Faurie, 2008 WL 820682, at *8. Accordingly, in order for statements or actions by

Mariscal or Chiulos to have the effect of creating a “legitimate claim of entitlement” in Plaintiff’s 

position, Mariscal or Chiulos’ action must have been authorized or given legal force by a state law 

or other statute or regulation. See Weisbuch, 119 F.3d at 780-81 (“Under California law, county 

charters, rules and regulations generally determine whether there is such an entitlement.”). 

Plaintiff argues that Mariscal’s statement and actions are sufficient to create a “legitimate 

claim of entitlement” because Mariscal was an “Appointing Authority” for the County under the 

Monterey County Policies and Procedures. ECF No. 149, at 79. Plaintiff further argues that as an 

Appointing Authority, Mariscal had the authority to make Plaintiff a permanent employee through 

his statement and actions. Id. However, beyond quoting a single sentence from the Monterey 

County Policies and Procedures, Plaintiff has not produced evidence that Mariscal had the 

requisite authority to alter Plaintiff’s employment status through his statements or actions and 

thereby create a “legitimate claim of entitlement” to Plaintiff’s position. Furthermore, Plaintiff 

fails to cite any state law or other statute or regulation that gave legal force to the actions of 

Mariscal or Chiulos. Thus, Plaintiff has failed to establish a “legitimate claim of entitlement” to 

her position with the County through Mariscal or Chiulos.

Accordingly, vicarious or respondeat superior liability do not apply, and Plaintiff may not 

offer either theory at trial.

IT IS SO ORDERED.

Dated: June 6, 2021

______________________________________

LUCY H. KOH

United States District Judge