Under Gov. Code 996.4, a governmental entity must reimburse its employee for the cost of defending an action against him if the entity declined to provide a defense when asked and the employee demonstrates that the action arose out of acts in the course and scope of his employment. The entity may rebut the employee’s showing by establishing that the employee acted with actual fraud, corruption or malice. This decision holds that when an employee sues under this section to recoup defense costs he is not limited to the third party complainant’s allegations, but may present his own proof of the actual facts out of which the action arose. Thus, in this case, though the plaintiff alleged the defendant had sexually assaulted her—acts outside the scope of his employment—the employee had denied those charges and was entitled to reimbursement if he could prove them false and brought against him for acts that he took in the course of his employment by defendant.
California Court of Appeal, Second District, Division 8 (Flier, J.); May 6, 2016; 2016 WL 2620645