Opinion
B277201
06-26-2018
TONY MORENO, Plaintiff and Appellant, v. TWIN TOWN CORPORATION, Defendant and Respondent.
Kabateck Brown Kellner, Brian S. Kabateck, Cheryl A. Kenner, Shea S. Murphy, and Joseph S. Persoff, and Esner, Chang & Boyer, Stuart B. Esner for Plaintiff and Appellant. Banashek Irving, Michael W. Irving and Matthew Banashek, for Defendant and Respondent.
ORDER MODIFYING OPINION AND DENYING PETITIONS FOR REHEARING NO CHANGE IN JUDGMENT THE COURT:
The petitions for rehearing filed by plaintiff and defendant are denied.
The opinion filed June 26, 2018, is ordered modified as follows:
1. On page 3, the first sentence of the first full paragraph is modified to read:
Wilkins testified she went into work Saturday evening, November 24, 2012, because the
computers were down the day before and she needed to catch up on her work.
2. On page 10, the last sentence and footnote 4 in the only full paragraph are deleted.
3. On page 10, the following is added after the full paragraph:
The finding as a matter of law that Wilkins was not acting within the course and scope of her employment when the accident occurred is also relevant to the analysis of plaintiff's direct negligence theory based on defendant's hiring and supervision of her. A line of California authority establishes "an employer may be liable to a third person for negligently hiring an incompetent or unfit employee." (Evan F. v. Hughson United Methodist Church (1992) 8 Cal.App.4th 828, 836.) Liability may attach if "the employer knew or should have known that hiring the employee created a particular risk or hazard and that particular harm materializes" (Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1054) or "where the plaintiff's injury occurred in the workplace, or the contact between the plaintiff and the employee was generated by the employment relationship" (Mendoza v. City of Los Angeles (1998) 66 Cal.App.4th 1333, 1339-1340).
Quoting the Restatement Third of Agency, the Court of Appeal has recognized that "'[l]iability
under this rule also requires some nexus or causal connection between the principal's negligence in selecting or controlling an actor, the actor's employment or work, and the harm suffered by the third party.'" (Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133, 1140.) That causal connection is lacking here.
Plaintiff presented no evidence that Wilkins was unfit to work as a substance abuse counselor. When the accident occurred, Wilkins was driving her own car; she was not acting within the course and scope of her employment; and, while she was driving home from defendant's facility, she had neither been scheduled or approved to work that evening. There was no suggestion the drinking that night was in any way related to her employment.
The only evidence that defendant should have known Wilkins was consuming alcohol at work was in the form of deposition testimony of a Twin Town client, who testified he smelled alcohol during one group session on an unspecified date, but added, "I can't prove it was [Wilkins]. I don't know." Another client thought Wilkins was "tired and spacey and might have been "under some type of influence [during sessions] or . . . this [was just] the aftermath of all the stuff that she has done in her past."
This evidence was insufficient to raise a triable issue of fact as to whether defendant should
have known Wilkins had resumed drinking in violation of her employment agreement.
Summary judgment for defendant was properly granted.
These modifications do not change the judgment. /s/_________
KRIEGLER, Acting P. J. /s/_________
DUNNING, J.
Judge of the Orange Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BC564396) APPEAL from a judgment of the Superior Court of Los Angeles County, David Sotelo, Judge. Affirmed. Kabateck Brown Kellner, Brian S. Kabateck, Cheryl A. Kenner, Shea S. Murphy, and Joseph S. Persoff, and Esner, Chang & Boyer, Stuart B. Esner for Plaintiff and Appellant. Banashek Irving, Michael W. Irving and Matthew Banashek, for Defendant and Respondent.
INTRODUCTION
The highly publicized tragedy that led to this lawsuit occurred on November 24, 2012, when Sherri Wilkins, intoxicated and driving her own car, struck pedestrian Phillip Moreno. The impact propelled the victim, feet first, partially through the windshield of her car. He remained embedded there as Wilkins drove two more miles before witnesses forced her to stop. Plaintiff, the victim's father, sued defendant Twin Town Corporation, Wilkins's employer, for wrongful death, alleging both vicarious and direct liability. The trial court granted defendant's motion for summary judgment.
We issued our initial opinion on March 16, 2018. Having granted defendant's petition for rehearing and vacated that decision, however, we now affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Wilkins, a recovering alcoholic and addict, was employed by defendant as an alcohol and substance abuse counselor. Her regular work schedule was Monday through Friday, from approximately 2:00 p.m. to 10:30 p.m. She did not "punch a clock" and occasionally varied her hours or came into work on Saturdays. Defendant provided Wilkins with a key to the offices.
Defendant required Wilkins to drive her own car to work so she would be able to travel to another Twin Town facility or fulfill "any other work related assignment." On those occasions when she drove her car for work assignments, defendant reimbursed Wilkins's mileage.
Maintaining sobriety was a condition of Wilkins's employment with defendant. She relapsed in October 2012, but did not tell defendant she was drinking again. She drank "whenever [she] was in pain, too much pain to function . . . . [¶] I just did little baby shots . . . . I was self medicating myself." If defendant learned of her relapse, Wilkins would have been fired and not eligible for rehire until she achieved 12 months of sobriety.
Wilkins went into work Saturday evening, November 24, 2012, because the computers were down the day before and she needed to catch up on her work. Wilkins's supervisor did not ask her to work that evening, and Wilkins had not been pre-approved for any overtime.
Earlier that day Wilkins had taken prescription pain medication and her daily methadone dose. She spent a few hours in the office and finished around 11:00 p.m. She went to her car, drank several shots of vodka and a beer/tomato juice beverage, smoked a cigarette, and then began what should have been a 10-minute drive home. Wilkins struck the victim minutes later. She was criminally prosecuted and convicted in the victim's death.
Plaintiff sued defendant for the wrongful death of his son. Defendant moved for summary judgment, contending it owed plaintiff's decedent no duty and could not, as a matter of law, be vicariously liable to plaintiff under a respondeat superior theory or primarily liable for its own negligence (negligent hiring, supervision or training). Plaintiff opposed the motion on procedural and substantive grounds. The trial court conducted two hearings and obtained supplemental briefing from the parties before granting defendant's motion. Judgment was entered July 14, 2016. Plaintiff timely appealed.
DISCUSSION
In this case, defendant only sought summary judgment and did not alternatively move for summary adjudication of issues. (Code Civ. Proc., § 437c.) We review a summary judgment de novo and accord no deference to the trial court's reasoning or decision. (Coral Construction, Inc. v. City and County of San Francisco (2010) 50 Cal.4th 315, 336.)
The procedural deficiencies plaintiff notes potentially would have had a greater impact if defendant also sought summary adjudication of issues. The trial court had discretion to decide the motion on the merits despite the irregularities (Code Civ. Proc., § 437c, subd. (b)(1)), and we find it did not abuse that discretion in doing so.
On appeal, defendant makes a series of concessions that dramatically narrow the scope of our de novo review. Defendant "concede[s] [for the purposes of this appeal] that there are triable issues on (1) the basic existence of an 'incidental benefit' or 'required vehicle' exception during Wilkins's regular work week . . . ." Defendant accordingly suggests this court "faces a pure (and possibly dispositive) question of law: Does the required vehicle exception only apply to an employee's regular commute? Or does it also apply when an employee [uses her personal car to go to and return from] the workplace when not needed or requested?"
To address these questions, we begin with California's "going and coming" rule. It is not statutory. It was judicially created in the context of workers' compensation proceedings (Hinojosa v. Workmen's Comp. Appeals Bd. (1972) 8 Cal.3d 150), but has been applied for generations to limit an employer's liability for an employee's tortious acts during the commute to and from work. (Huntsinger v. Glass Containers Corp. (1972) 22 Cal.App.3d 803 (Huntsinger). The going and coming rule precluding respondeat superior liability is subject to several exceptions, including the "required vehicle" exception.
Lobo v. Tamco (2010) 182 Cal.App.4th 297 (Lobo I) explained: "Under the theory of respondeat superior, employers are vicariously liable for tortious acts committed by employees during the course and scope of their employment. [Citation.] However, under the 'going and coming' rule, employers are generally exempt from liability for tortious acts committed by employees while on their way to and from work because employees are said to be outside of the course and scope of employment during their daily commute. (Huntsinger[, supra, 22 Cal.App.3d at p. 807].) [¶] 'A well-known exception to the going-and-coming rule arises where the use of the car gives some incidental benefit to the employer. Thus, the key inquiry is whether there is an incidental benefit derived by the employer. . . .' This exception to the going and coming rule, carved out by this court in Huntsinger, supra, 22 Cal.App.3d 803 . . . , has been referred to as the 'required-vehicle' exception. [Citation.] The exception can apply if the use of a personally owned vehicle is either an express or implied condition of employment . . . ." (Lobo I, supra, 182 Cal.App.4th at p. 301.)
The negligent driver in Lobo I was leaving his employer's premises on a regular work day when he collided with a police motorcycle, killing the officer. (Lobo I, supra, 182 Cal.App.4th at p. 286.) The victim's family sued the driver's employer. The employee's supervisor testified in a pretrial deposition that the employer required the employee to drive to work in case the employee needed to respond to a quality control issue at a customer's location. During the employee's 16 years working for the defendant, he had used his own car for this purpose fewer than 10 times. (Id. at p. 289.)
The defendant employer successfully moved for summary adjudication of issues on the respondeat superior cause of action. Based on evidence that the employee was required to drive his own car to work, the Court of Appeal reversed and held the applicability of the required-vehicle exception presented a material issue of fact as to whether the employee was in the course and scope his employment when the accident occurred. (Lobo I, supra, 182 Cal.App.4th at p. 303.)
The case was remanded for a trial solely on the issue of whether the negligent employee was acting within the course and scope of his employment when the accident occurred. On remand, the defendant employer prevailed. The trial evidence established the employer did not require the employee to drive his car to work. The jury found the required vehicle exception did not apply and the employee, driving his regular commute home when the accident occurred, was not in the course and scope of his employment when the accident occurred. (Lobo v. Tamco (2014) 230 Cal.App.4th 438, 440-441 (Lobo II).) The Court of Appeal affirmed, noting, "our decision in Lobo I did not preclude the possibility that a jury might conclude that although the availability of [the employee's] car conferred some benefit on [the employer], it did not confer a sufficient benefit that [the employer] should be vicariously liable for [the employee's] negligence, or, stated another way, that the benefit [the employer] derived was too incidental to warrant application of the doctrine of vicarious liability." (Id. at p. 446.)
In this case, defendant acknowledges the rationale in Lobo I and even concedes that if Wilkins struck the victim on her way home from a regular workday, material questions as to whether she was acting within the course and scope of her employment or providing incidental benefits to her employer would have precluded summary judgment. Relying on a decision by the New Jersey Supreme Court, Carter v. Reynolds (2003) 175 N.J. 402, defendant asserts Lobo I should not apply here: "[O]n a Saturday night when no one requested [Wilkins] to go in, there is zero chance she would have been requested to make a client visit, or to run some other errand for her employer. The underlying rationale of the required vehicle exception simply does not apply." We agree.
The most recent decision in this area is Newland v. County of Los Angeles (June 18, 2018, B277638) ___ Cal.App.5th ___ (Newland). There, this court traced the development of the going and coming rule and the required vehicle exception. The majority held, "an employee must be driving a personal vehicle in the course and scope of his employment at the time of the accident to extend vicarious liability to an employer. Liability may be imposed on an employer for an employee's tortious conduct while driving to or from work, if at the time of the accident, the employee's use of a personal vehicle was required by the employer or otherwise provided a benefit to the employer. The evidence showed that the employee in this case was driving a routine commute to and from work on the day of the accident. He was not required to use his personal vehicle for work purposes that day, and his employer did not otherwise benefit from his use of a personal vehicle that day. The employer is entitled to judgment as a matter of law." (Id. at pp. *1-2.)
This court accepted supplemental letter briefs from both parties addressing Newland.
In Newland, the negligent driver was a deputy public defender who, on his commute home at the end of a regular workday, caused a traffic accident. The deputy public defender had not used his own car for work that day, e.g., he had not visited a client in jail. The injured plaintiff sued the driver's employer, the County of Los Angeles.
The jury found the County "expressly or impliedly required [the employee] to use his personal vehicle to perform his job" (Newland, supra, ___ Cal.App.5th at p. ___ [2018 Cal.App. Lexis 554, at p. *10].) and awarded damages to the plaintiff. The jury was not asked, however, to decide whether the negligent driver was acting within the course and scope of his employment at the time the accident occurred.
This court concluded the trial court erred in failing to ask the jury to decide that question. On the record, however, because no substantial evidence could support such a finding, the Newland majority reversed with directions to enter judgment notwithstanding the verdict in the County's favor: "The test for liability under worker's compensation law, which requires finding 'at the time of the injury, the employee is performing service growing out of and incidental to his or her employment and is acting within the course of his or her employment' (Lab. Code, § 3600, subd. (a)(2)), is not identical to the test for liability under the respondeat superior doctrine based on 'scope of employment.' [Citation.] The tests are closely related, because they both consider the benefit to the employer and the allocation of risk for industrial injuries. [Citation.] [But] [w]orker's compensation provisions are construed liberally . . . to protect employees, and courts have been generous in finding injured workers entitled to benefits. . . . [On the other hand,] the scope of employment for imposing vicarious liability is more restrictive in tort claims based on the differing policy considerations. [Citation.] [¶] Courts have applied the required vehicle exception to hold an employer vicariously liable when the facts show an employee was required to bring a car to work every day or on the day of the accident." (Newland, supra, ___ Cal.App.5th at p. ___[2018 Cal.App. Lexis 554, at pp. *23-24].)
The Newland majority held, "In order to apply the vehicle use exception to the coming and going rule, [a plaintiff must show the defendant employer required the employee] to drive his car to and from the workplace at the time of the accident, or [the employee's] use of his car provided a benefit to the County at the time of the accident. A benefit to the [employer] may be found if at the time of the accident, [the employee] agreed to make his car available, the [employer] reasonably came to rely on [the employee's] use of the car, and the [employer] expected [the employee] to make it available. There was no evidence in this case to support finding a job requirement or a benefit to the [employer] on the day of the accident." (Newland, supra, ___ Cal.App.5th at p. ___[2018 Cal.App. Lexis 554, at p. *33].)
Here, the accident occurred during the negligent employee's drive home from the office on a date she was neither scheduled to work nor requested by defendant to come into work or perform some other special errand for defendant's benefit. The employee was not using her personal car for any employment purpose or employer benefit at the time of the accident. She did no more than drive to and from the office because she chose to work that evening.
The "special errand" exception is a separate doctrine. As Moradi v. Marsh USA, Inc. (2013) 219 Cal.App.4th 886, 899 (Moradi) explains, the special errand doctrine may apply in circumstances that "'do not involve local commutes en route to fixed places of business at fixed hours. These are the extraordinary transits that vary from the norm because the employer requires a special, different transit, means of transit, or use of a car, for some particular reason of his own. When the employer gains that kind of a particular advantage, the job does more than call for routine transport to it; it plays a different role, bestowing a special benefit upon the employer by reason of the extraordinary circumstances. The employer's special request, his imposition of an unusual condition, removes the transit from the employee's choice or convenience and places it within the ambit of the employer's choice or convenience, restoring the employer-employee relationship.'" Moradi added, the special errand exception "is different from and more narrow than the required vehicle exception." (Id. at p. 906, italics in original.)
No evidence before the trial court supported the application of the special errand doctrine. For this reason, MoralesSimental v. Genentech, Inc. (2017) 16 Cal.App.5th 445, which involved the special errand, but not the required vehicle, exception is inapposite.
This uncontroverted evidence is insufficient as a matter of law to support a finding that the negligent employee was in the course and scope of her employment when the accident occurred. Summary judgment for defendant was properly granted.
Because defendant did not seek summary adjudication of issues, we do not reach the issues concerning whether defendant may be primarily liable to plaintiff based on theories of negligent hiring, supervision or training.
DISPOSITION
The judgment in defendant's favor is affirmed. Defendant is awarded costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Judge of the Orange Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------
KRIEGLER, Acting P. J. BAKER, J., Dissenting
We reached the correct result in this case the first time. (Moreno v. Twin Town Corporation (Mar. 16, 2018, B277201) [nonpub. opn. holding triable issues of fact regarding the vehicle-use exception barred summary judgment], rehg. granted Apr. 12, 2018.) What changed since then is the intervening opinion in Newland v. County of Los Angeles (June 18, 2018, B277638) ___ Cal.App.5th ___ (Newland), but Newland's "at the time of the accident" rule (id. at p. 5862) is unduly narrow, unprecedented, and certain to be misapplied.
The Newland decision is not yet final, but it is the foundation of today's retooled opinion. Absent reliance on the published Newland opinion, I believe we would be obligated to give this case a third look.
BAKER, J.