Opinion
B197050
6-30-2008
DENISE DIANE HORN, Plaintiff and Appellant, v. GAMESTOP, INC., Defendant and Respondent.
Perona, Langer, Beck, Lallande & Serbin and Ellen R. Serbin for Plaintiff and Appellant. Haight Brown & Bonesteel, S. Christian Stouder and J. Alan Warfield; Law Offices of Douglas & Garey and Michael J. Garey for Defendant and Respondent.
Not to be Published
INTRODUCTION
Plaintiff Denise Diane Horn appeals from a summary judgment in favor of defendant GameStop, Inc. (GameStop). Plaintiff contends the trial court erred in granting summary judgment, in that numerous triable issues of fact exist. She also contends the trial court abused its discretion in denying her leave to amend her complaint. We disagree and affirm the judgment.
FACTS
On summary judgment, the facts are those shown by the evidentiary materials submitted, as well as those admitted and uncontested in the pleadings. (Sacks v. FSR Brokerage, Inc. (1992) 7 Cal.App.4th 950, 962; McDaniel v. Sunset Manor Co. (1990) 220 Cal.App.3d 1, 5.)
On the evening of October 23, 2004, plaintiff was standing on the sidewalk on Western Avenue near the intersection of 240th Street when she was struck by a car driven by Jose Humberto Palma, Jr. (Palma). Palma lost control of his car and struck plaintiff after colliding with a car driven by Peter Contreras (Contreras). Both Palma and Contreras were speeding at the time. The impact severed plaintiffs left leg and almost severed her right leg as well. Plaintiff underwent multiple surgeries to repair her right leg. She has since been in constant pain and discomfort and must use a wheelchair to move around.
Palma and Contreras were employees of GameStop and worked at the GameStop store located at the intersection of Pacific Coast Highway and Western Avenue in Harbor City. On October 23, the store closed at 7:00 p.m. A mandatory employee meeting took place at the store after it closed.
GameStop called the meeting to introduce a highly anticipated video game to its employees. GameStop sent out a notice of the meeting to all of its employees days in advance, and all employees were expected to attend. Employees were expected to use their own cars to get to the meeting. GameStop paid its employees for their attendance at the meeting.
On October 23, Palma worked the closing shift at the GameStop store and stayed afterward for the meeting. Contreras was not scheduled to work that day and drove from his home to the GameStop store for the sole purpose of attending the mandatory meeting. He clocked in at 7:00 p.m. The meeting was held on the sales floor and ended just before 8:30 p.m. Palma and Contreras then clocked out and left the store.
Following the meeting, Palma and Contreras drove north on Western Avenue. About a mile from the GameStop store, their cars collided. The speed limit was 35 miles per hour, but Palma and Contreras were driving about 70 miles per hour. At some point, Contreras attempted to move into the lane in which Palma was driving. The front left of Contreras car clipped the right rear of Palmas car. Palma lost control of his car. It spun around, jumped the curb, struck a brick wall, fire hydrant, tree and fence before striking Horn as she stood on the sidewalk. It came to rest against a streetlight approximately 218 feet from the point of collision. Contreras car traveled about 450 feet before coming to rest after the collision.
PROCEDURAL BACKGROUND
On March 20, 2006, plaintiff filed a complaint for negligence against GameStop and Palma. The complaint included Doe defendants and alleged generally that the defendants "were the joint venturers, agents, servants and employees, each of the other, acting within the course and scope of said agency and employment." It alleged specifically that Palma and the Doe defendants were "employees and/or agents" of GameStop and "were acting within the course and scope of their employment."
The complaint also alleged, "On October 23, 2004, Defendant, Jose Humberto Palma, Jr., and Peter Contreras were employed by Defendant, GameStop Corp. Defendant, Jose Humberto Palma, Jr. and Peter Contreras were returning home from a meeting which was required for their employment at Defendant GameStop Corp. The meeting scheduled by their employer was a special errand/mission which provided benefit to their employer GameStop Corp. and from which they were returning at the time of the incident." The complaint alleged that Palma lost control of his car and hit plaintiff. The accident and plaintiffs injuries were caused by the negligence of "Defendants, Jose Humberto Palma, Jr., and Does 1 through 25, inclusive, and each of them."
GameStop moved for summary judgment on the ground that Palma was not acting within the scope of his employment when the accident occurred. Plaintiff opposed the motion on the ground that Palma and Contreras were on a special errand for GameStop and thus acting within the scope of their employment when the accident occurred. In its reply, GameStop argued that Contreras tortious conduct was irrelevant because plaintiff did not name him as a defendant or plead that he was acting within the scope of his employment for GameStop.
At the hearing on the motion, the trial court began by reading its tentative decision into the record. It found that GameStop was not liable for plaintiffs injuries under the theory of respondeat superior because Palma was not acting within the scope of his employment at the time of the accident and the special errand exception to the going and coming rule did not apply. The trial court concluded that any evidence regarding Contreras alleged culpability was irrelevant because he was not named as a defendant and his tortious conduct was not alleged in the complaint.
Plaintiffs counsel then argued that plaintiff was not required to name Contreras as a defendant or to plead specifically his negligent acts to hold GameStop vicariously liable for Contreras tortious conduct. Additionally, GameStop knew of Contreras involvement in the accident based on the evidence it submitted in support of its motion, which showed that Contreras attended the mandatory meeting and Palma blamed him for causing the accident. Plaintiffs counsel also argued that Contreras was identified in the complaint and his negligence was generally pled, as required. Plaintiffs counsel asked for permission to amend the complaint to correct any deficiencies in the complaint.
At the conclusion of the hearing, the trial court adopted its tentative ruling and granted the motion for summary judgment in favor of GameStop. Emphasizing the issue as one of "fundamental notice and due process," the trial court rejected plaintiffs evidence of Contreras negligence and denied her request to file an amended complaint.
DISCUSSION
A. Standard of Review
A "party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact, and that he [or she] is entitled to judgment as a matter of law." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) The moving party bears the burden of establishing, by declarations and evidence, a complete defense to plaintiffs action or the absence of an essential element of plaintiffs case. (Code Civ. Proc., § 437c, subd. (c); Westlye v. Look Sports, Inc. (1993) 17 Cal.App.4th 1715, 1726-1727.) The moving party must "demonstrate that under no hypothesis is there a material factual issue requiring a trial." (Rosenblum v. Safeco Ins. Co. (2005) 126 Cal.App.4th 847, 856.) If the defendant meets this burden, the burden shifts to plaintiff to show the existence of a triable issue of material fact. (Anderson v. Metaclad Insulation Corp. (1999) 72 Cal.App.4th 284, 289-290.)
In ruling on the motion, "the court must `consider all of the evidence and `all of the `inferences reasonably drawn therefrom [citation], and must view such evidence [citation] and such inferences [citation], in the light most favorable to the opposing party." (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 843.) The affidavits of the moving party should be strictly construed, and those of the opponent liberally construed. (Barber v. Marina Sailing, Inc. (1995) 36 Cal.App.4th 558, 562.) "All doubts as to whether any material, triable issues of fact exist are to be resolved in favor of the party opposing summary judgment." (Ibid.)
On appeal, we review a summary judgment de novo. (Noel v. River Hills Wilsons, Inc. (2003) 113 Cal.App.4th 1363, 1368.) We must identify "the issues framed by the pleadings, determine whether the moving party has negated the nonmoving partys claims, and determine whether the opposition has demonstrated the existence of a triable issue of material fact." (Ohton v. Board of Trustees of California State University (2007) 148 Cal.App.4th 749, 763.) We must uphold the judgment if it is correct on any ground, regardless of the reasons the trial court gave. (Continental Ins. Co. v. Columbus Line, Inc. (2003) 107 Cal.App.4th 1190, 1196.) We will reverse the judgment if the trial court has erred, "either in failing to find a triable issue of fact where there is one, or in failing to apply undisputed facts to a correct principle of law." (Scroggs v. Coast Community College Dist. (1987) 193 Cal.App.3d 1399, 1401.)
B. Vicarious Liability for Contreras Negligence
Plaintiff contends that although she did not individually name Contreras as a defendant or plead with particularity his tortious conduct, she still stated a cause of action against GameStop, in that under the theory of respondeat superior, an employer is vicariously liable for an employees torts committed within the scope of employment (Civ. Code, § 2338; Miller v. Stouffer (1992) 9 Cal.App.4th 70, 77). GameStop counters that the complaint raised the issue of GameStops vicarious liability only for the negligence of Palma.
It is the law in California that "`to hold the principal liable for the acts of his agent it is not necessary to allege that the agent was negligent. It suffices to allege that the principal was negligent." (Hartford Accident & Indemnity Co. v. Transport Indemnity Co. (1966) 242 Cal.App.2d 90, 93.) "`In order to state a cause of action against defendant for a wrong committed by his servant, the ultimate fact necessary to be alleged is that the wrongful act was in legal effect committed by defendant. This may be alleged either by alleging that defendant by his servant committed the act, or, without noticing the servant, by alleging that defendant committed the act." (Golceff v. Sugarman (1950) 36 Cal.2d 152, 154.) Therefore, when pursuing a respondeat superior claim, the joinder of the employee as a party defendant is not required. The plaintiff may proceed solely against the employer, and the injury-causing employee need not be named at all. (Sanderson v. Niemann (1941) 17 Cal.2d 563, 572.)
In Perez v. City of Huntington Park (1992) 7 Cal.App.4th 817, the plaintiff, a bystander, sued the City of Huntington Park and four named police officers for assault and battery for injuries he received by the officers responding to a disturbance at his apartment building. (Id. at pp. 818-819.) At the time of the incident, the officers were acting in their official capacity and within the course and scope of their employment. (Id. at p. 819.) The trial court found that two out of a group of three or four employees actually did strike plaintiff. (Ibid.) Because the trial court could not determine with specificity which of the two had struck the plaintiff, judgment was entered in favor of the employees, but against the City. (Id. at pp. 821-822.) The City appealed on the ground that the judgment in favor of the named officers exonerated it from all liability under the doctrine of respondeat superior. (Id. at pp. 819-820.)
The appellate court disagreed, holding that the judgment in favor of the individual officers did not relieve the City of liability under the doctrine of respondeat superior. (Perez v. City of Huntington Park, supra, 7 Cal.App.4th at pp. 820-822.) The court recognized that the law does not require the plaintiff to specifically name or join employees to hold an employer liable for injuries caused by conduct within the scope of their employment. (Id. at p. 820.) An employer may be held liable "if the evidence establishes that some employee in the scope of employment committed the wrongful act." (Ibid.) Even when the plaintiff names and joins a particular employee and the judgment is for that employee, the court opined that "a simultaneous judgment against the employer will be upheld if the evidence supports the conclusion that other uncharged employees committed the wrongful acts." (Id. at p. 821.)
As in Perez, plaintiff in the instant case was not required to name Contreras as a defendant or specifically plead his tortious acts to place GameStop on notice of her respondeat superior claim. The operative complaint generally alleged that GameStops employees, acting within the scope of their employment, negligently caused injury to plaintiff. The complaint specifically alleged that Palma and Contreras were employed by GameStop and were returning home from a "meeting which was required for their employment." These legal and factual allegations met the pleading requirements for vicarious liability against GameStop.
C. Special Errand Exception to the Going and Coming Rule
An employer may be held vicariously liable for the torts of its employees under the doctrine of respondeat superior when the employees tort is committed within the scope of the employees employment. (Perez v. Van Groningen & Sons, Inc. (1986) 41 Cal.3d 962, 967-968.) As a general rule, the question whether a tortious act occurred within the scope of employment is one of fact. (Ibid.) However, where the facts are undisputed and no conflicting inferences are possible, the question may be decided as a matter of law (ibid.) on a motion for summary judgment. (Tryer v. Ojai Valley School (1992) 9 Cal.App.4th 1476, 1480.)
The going and coming rule provides that an employee going to or coming from work ordinarily is considered outside the scope of employment, and the employer thus is not vicariously liable under the doctrine of respondeat superior for the employees torts committed at such times. (Hinman v. Westinghouse Elec. Co. (1970) 2 Cal.3d 956, 961.) Part of the theory behind this rule is that the employee is not rendering any service to the employer while commuting. (Ibid.)
A number of exceptions to the going and coming rule have arisen in situations where the employee was found to be rendering a service to the employer while commuting to or from work, "where the trip involves an incidental benefit to the employer, not common to commute trips by ordinary members of the work force." (See Hinman v. Westinghouse Elec. Co., supra, 2 Cal.3d at pp. 961-962.) One of these exceptions arises "when the employee is running a `special errand for his or her employer. [Citation.] An employee is considered to be acting within the scope of employment `while on a special errand either as part of his regular duties or at a specific order or request of his employer. [Citation.]" (Anderson v. Pacific Gas & Electric Co. (1993) 14 Cal.App.4th 254, 261-262.)
Plaintiff contends that because Contreras attended a special meeting after ordinary work hours, which he was required to attend, there is a triable issue of fact as to whether the special errand exception applied to hold GameStop liable for the accident occurring while Contreras was on his way home from the meeting. We disagree.
The special errand exception has been described as follows: "`If the employee is not simply on his way from his home to his normal place of work or returning from said place to his home for his own purpose, but is coming from his home or returning to it on a special errand either as part of his regular duties or at a specific order or request of his employer, the employee is to be considered in the scope of his employment from the time that he starts on the errand until he has returned or until he deviates therefrom for personal reasons. [Citations.] To such special missions the general test as to scope of employment applies. It is not necessary that the servant is directly engaged in the duties which he was employed to perform, but included also are missions which incidentally or indirectly contribute to the service, incidentally or indirectly benefit the employer." (Caldwell v. A.R.B., Inc. (1986) 176 Cal.App.3d 1028, 1036, quoting from Boynton v. McKales (1956) 139 Cal.App.2d 777, 789.) Such special errands have included "picking up or returning tools used on the job, attendance at an employment social function when an employees attendance is expected and it benefits the employer, and a trip in which the employee responds to a service call when the employee is on call for the employers business." (Caldwell, supra, at pp. 1036-1037.)
However, as noted in General Ins. Co. v. Workers Comp. Appeals Bd. (1976) 16 Cal.3d 595 at page 601, "The employees conduct is `special if it is `extraordinary in relation to routine duties, not outside the scope of employment. [Citation.] The special mission rule `is ordinarily held inapplicable when the only special component is the fact that the employee began work earlier or quit work later than usual. [Citation.]" (Accord, Caldwell v. A.R.B., Inc., supra, 176 Cal.App.3d at pp. 1038-1039.) If the employee is simply called in to work different hours than usual or is called in to perform tasks that are not extraordinary in comparison with his usual duties, the special errand exception does not apply. (Id. at p. 1039.)
Here, Contreras attended a mandatory meeting at which GameStop introduced a new video game to its employees. The meeting was at his regular place of employment, just after regular business hours. There is no evidence that Contreras performed any extraordinary duties at the meeting. In other words, other than reporting to work at 7:00 p.m. and leaving about 8:30 p.m., "there was nothing special about [Contreras] trip to and from [his place of employment]; it was simply a normal commute no different in kind than the normal commute to perform the regular duties of his employment . . . ." (C. L. Pharris Sand & Gravel, Inc. v. Workers Comp. Appeals Bd. (1982) 138 Cal.App.3d 584, 593.) Additionally, Contreras attendance at the mandatory meeting "did not provide a special benefit to [GameStop] different than his commute to [the store] to report for [work]." (City of San Diego v. Workers Comp. Appeals Bd. (2001) 89 Cal.App.4th 1385, 1389.)
The cases on which plaintiff relies in support of her contention that Contreras was on a special errand at the time of the accident are inapposite. In Boynton v. McKales, supra, 139 Cal.App.2d 777, the special errand exception was applied where the employee was returning home from a company banquet, which the employee was expected to attend. (Id. at pp. 789-791.) In McGinty v. Workmens Comp. App. Bd. (1968) 266 Cal.App.2d 280, the employee attended an evening sales meeting at work, and the meeting continued through dinner at a restaurant. (Id. at p. 281.) The court held the employee was on a special errand when returning from the restaurant. (Id. at p. 283.)
As in Boynton and McGinty, Contreras attended a work-related function after normal business hours. The difference here, however, is that the function was held at the employers place of business, did not involve a trip to another location and did not involve activities that differed in any significant degree from normal work activities. The only difference from Contreras normal workday was in the hours he was at work. Boynton and McGinty thus do not compel a conclusion that Contreras was on a special errand at the time of the accident.
Under the undisputed facts of this case, the special errand exception to the going and coming rule does not apply to either Contreras or Palma. The trial court therefore did not err in granting summary judgment in GameStops favor. (Perez v. Van Groningen & Sons, supra, 41 Cal.3d at pp. 967-968; Tryer v. Ojai Valley School, supra, 9 Cal.App.4th at p. 1480.)
D. Denial of Leave to Amend
Plaintiff contends the trial court abused its discretion in denying her leave to amend her complaint. She relies on the principle that "if summary judgment is granted on the ground that the complaint is legally insufficient, but it appears from the materials submitted in opposition to the motion that the plaintiff could state a cause of action, the trial court should give the plaintiff an opportunity to amend." (Bostrom v. County of San Bernardino (1995) 35 Cal.App.4th 1654, 1663; see also Mediterranean Construction Co. v. State Farm Fire & Casualty Co. (1998) 66 Cal.App.4th 257, 264.)
However, as stated above, plaintiffs complaint is not legally insufficient due to the failure to name Contreras as a defendant. Rather, the evidence establishes that GameStop is not liable for Contreras actions under the theory of respondeat superior as a matter of law, and GameStop is entitled to a summary judgment. Amendment of the complaint would change nothing. Hence, the trial court did not abuse its discretion in denying plaintiff leave to amend her complaint. (Bostrom v. County of San Bernardino, supra, 35 Cal.App.4th at p. 1664; see also Mediterranean Construction Co. v. State Farm Fire & Casualty Co., supra, 66 Cal.App.4th at p. 267.)
DISPOSITION
The judgment is affirmed.
We concur:
MALLANO, P. J.
ROTHSCHILD, J.