Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. GC 034901C. Edward Simpson, Judge.
William James Koontz & Associates, William James Koontz and Afsaneh Nicole Newmen for Plaintiffs and Appellants Helga Wurm, Donald Agey and Christopher Butts.
R. Rex Parris Law Firm, Stephen K. McElroy and Jason P. Fowler for Plaintiffs and Appellants Scott Galloway, Peter Robles, Jr., Inez Finley-Robles, David Myers, Sharon Myers, Jim Kitahara, Eiko Kitahara, Cheryl Allworth, and Barry Allworth.
Effres & Associates, Steven B. Effres; Law Offices of Robert H. Pourvali and Robert H. Pourvali for Plaintiffs and Appellants Aiisha Grant and Rashan Lamond Storms.
O’Melveny & Myers, Scott H. Dunham and Michael W. Garrison, Jr., for Defendant and Respondent.
FLIER, J.
A 2003 Ford model E-350 van left the roadway on State Route 2 in the Angeles National Forest, rolled over and down an embankment, injuring eight and killing three of the passengers in the van. The passengers or their heirs, appellants in this appeal, sued respondent California Institute of Technology (Caltech) and Jet Propulsion Laboratory (JPL), which is managed by Caltech, as well as the driver of the van, Javier Bautista, and other entities who are not parties to this appeal. Caltech’s motion for summary judgment was granted. We affirm.
FACTS
1. Vanpools and Caltech’s Rideshare Program
Appellants were on their way to work at JPL from their homes in the Antelope Valley when the accident occurred. The van was operated by “Vanpool 36,” an association of Caltech employees, who leased the van from Enterprise Vanpool, a division of Enterprise Rent-A-Car (Enterprise).
Independent actions were brought by Helga Wurm (action No. 1); Aiisha Grant and Rashan Lamond Storms (action No. 2); Scott Galloway, Peter Robles, Inez Finley-Robles, David Myers, Sharon Myers, Jim Kitahara and Eiko Kitahara, Cheryl and Barry Allworth (action No. 3); Christopher Butts (action No. 4); and Donald Agey (action No. 5). Actions 1, 4 and 5 have joined in one brief; actions 2 and 3 heave each filed separate briefs for a total of three appellant’s opening briefs.
Vanpool 36 originated with a rule promulgated by the South Coast Air Quality Management District (AQMD) that required employers with 100 or more employees to prepare and implement an “Employee Trip Reduction Program” (ETRP). In substance, AQMD required employers to encourage employees to avoid solo driving and to participate in pooling arrangements. Caltech implemented its “Rideshare Program” in 1990 in order to comply with this AQMD directive. As it was required to do, Caltech submitted an ETRP to the AQMD annually; Caltech’s ETRP regularly complied with AQMD standards.
Caltech’s Rideshare Program educates employees about alternatives to solo driving, such as public transit, bicycling, carpools and vanpools and encourages employees to take advantage of one or more of these alternative means of commuting to work. The Rideshare Program also provides a monthly $50 subsidy to Caltech employees who participate in a vanpool, provides preferential parking to vanpools and allows vanpools to purchase gasoline at JPL at Caltech’s cost. Caltech supports vanpooling by providing flexible work schedules, by assisting individuals to locate others who are interested in vanpooling and by a program that guarantees a ride home if the employee has to leave work either too early or too late to make the vanpool ride.
Caltech does not: (a) own, lease or maintain the vans used in the vanpools; (b) select, employ or compensate individuals who coordinate a vanpool’s commute or the person who drives the van; (c) make decisions regarding the schedule and route taken by the vanpool; or (d) decide from whom the van is leased, the terms of the lease or the fares charged.
Each vanpool has a vanpool coordinator who either provides a van or leases one. The vanpool coordinator may or may not act as the driver of the van.
Caltech has no relationship with the lessors of vans, and had none with the lessor of the accident vehicle, Enterprise. Caltech is not a party to a vanpool lease and does not select or inspect the van. Lessors of vanpools generally require that the vanpool driver, as well as the alternative driver, have the lessor’s approval to drive the van.
2. Vanpool 36 on December 8, 2004, the Day of the Accident
The arrangement and structure of Vanpool 36 on the day of the accident complied with the general characteristics of a vanpool set forth in the preceding section. Dean Palmer, an electrical engineer employed by Caltech, was the vanpool coordinator of Vanpool 36; Palmer leased the van from Enterprise. Javier Bautista, who was employed by Caltech as a principal engineer, was the driver. Caltech was not a party to the lease, did not select the van or the driver, and had no control of any kind over the van or the driver. Appellants Christopher Butts, Jim Kitahara and Peter Robles were not Caltech employees, even though they were members of the vanpool; the others were Caltech employees and received the $50 subsidy from Caltech.
Bautista’s specific duties revolve around specialized communications equipment that is used to communicate with spacecraft.
3. Vanpools Drivers; Licensing and Medical Examinations
Subdivision (j) of Vehicle Code section 12804.9 provides that the driver of a vanpool vehicle may operate with a class C license but “shall possess evidence of a medical examination required for a class B license when operating vanpool vehicles.” The examination must take place no more than two years prior to the date of the application for the license. In relevant part, subdivision (a)(2) of section 12804.9 states that the report of the medical examination of a class B licensee “shall be on a form approved by the department, the federal Department of Transportation, or the Federal Aviation Administration.” The medical examination must be performed “by a health care professional.” (Ibid.)
In 2004, Caltech provided the required medical examination for potential vanpool drivers at no cost to the drivers. The physician who performed these examinations was the Director of Caltech’s Medical Services Department, Dr. Robert Estrada.
4. Bautista’s Medical Examination
Bautista’s medical certification was set to expire on July 15, 2004. Bautista saw Dr. Estrada on July 2, 2004; his vital signs were taken, along with his vision, hearing, blood pressure, reflexes and other bodily functions. Bautista informed Dr. Estrada that he had undergone arthroscopic surgery for a herniated disk and continuing knee pain in December 2003 and that his physician had prescribed 500 milligrams of Vicodin to be taken every six to eight hours as needed. Bautista acknowledged that Vicodin could make him drowsy but he told Dr. Estrada that he did not drive while under the influence of this medication. Although Bautista certified under penalty of perjury on the relevant form that he had provided complete information about his health, Bautista did not tell Dr. Estrada that he had chronic insomnia for which he regularly took Ambien; nor did he disclose this when Dr. Estrada asked him about his health and what medications he took.
Dr. Estrada did not certify Bautista as having passed the medical examination. Dr. Estrada wanted written opinions from Bautista’s treating physicians that Bautista could safely operate a motor vehicle. Specifically, Dr. Estrada required written proof that the treating physicians had concluded that Vicodin would not impact Bautista’s driving and that they had warned Bautista about the side effects of Vicodin.
On August 11, 2004, Bautista provided Dr. Estrada with a written statement from Dr. Jung, who had prescribed the Vicodin, that Dr. Jung had instructed Bautista about the side effects of Vicodin and that he had told Bautista that he was not to drive while under the influence of this medication. Dr. Jung knew that Bautista needed the note in order to drive the vanpool. Dr. Costigan, Bautista’s orthopedist, also cleared Bautista to drive a “passenger van.” Based on these representations and on his own examination, Dr. Estrada signed Bautista’s medical certification on August 11, 2004.
Dr. Jung’s note stated that “[p]atient has been informed about the side effects [and] potential complications of taking Vicodin for pain and NOT to drive when taking Vicodin or feels its influence.” (Capitalization and underscoring in original.)
The form that Dr. Estrada signed, and the form he used for the examination, was the California Department of Motor Vehicles (DMV) form DL51.
5. Enterprise Revokes Bautista’s Authorization to Drive the Vanpool
As we have noted, Bautista’s medical certification lapsed on July 15, 2004. One day prior to that date, Enterprise informed Bautista that he was no longer authorized or allowed to drive the vanpool but that he would be reinstated if he provided Enterprise with a current medical examination and clearance. Bautista never did so, even after Dr. Estrada had cleared him on August 11, 2004. Thus, Bautista was not authorized by Enterprise to drive the vanpool on the day of the accident.
6. The Accident
Shortly after 6:00 a.m. on December 8, 2004, the 12-passenger van operated by Bautista drove off the highway. A witness who drove a vehicle that was following the van did not see the van’s speed change, did not see the brake lights go on, and saw nothing to suggest an attempt to control the van before it went over the side. There were two other eyewitnesses with similar accounts. The van tumbled 240 feet down the embankment. Kerri Agey, Dorothy Forks and Jane Galloway died in the accident; the other seven passengers and Bautista survived, some with serious and permanent injuries.
An analysis of Bautista’s blood, taken about three hours after the accident, showed that Bautista had taken Vicodin, Ambien and Benadryl. The concentration of these drugs varied. A psychopharmacologist retained by appellants concluded after a detailed review of the blood results that Bautista had been under the influence of these drugs while driving on the morning of December 8, 2004.
Appellant’s theory of the accident is that Bautista, under the influence of the drugs that he was taking, fell asleep or nodded off. While Bautista himself does not know whether he fell asleep, appellants also rely on his admission to investigators that he sometimes experienced episodes of nodding off. Caltech, on the other hand, points out that the reason that the van left the highway remains unknown and that Bautista thought that a defect in the van’s climate control system may have distracted him.
THE TRIAL COURT’S RULING
The trial court concluded that appellants could not show that Caltech “negligently owned or negligently maintained the vanpool vehicle” or that Caltech negligently entrusted the vehicle to Bautista. The court also found that Caltech was not vicariously liable for Bautista’s alleged negligence because driving the vanpool was outside the course and scope of his employment. In addition, the court concluded that “as a matter of law that the travel allowance exception to the going-and-coming rule does not apply in this case.” The court ruled that Caltech is not a common carrier as it does not provide a service to the public.
“An employee is not considered to be acting within the scope of employment when going to or coming from his or her place of work. [Citation.] This rule, known as the going-and-coming rule, has several exceptions. Generally, an exception to the going-and-coming rule will be found when the employer derives some incidental benefit from the employee’s trip. [Citation.] One specific exception is when the employer compensates the employee for travel time. [Citation.]” (Anderson v. Pacific Gas & Electric Co. (1993) 14 Cal.App.4th 254, 258.)
With respect to appellants’ claim that Dr. Estrada was negligent in medically certifying Bautista, the trial court ruled that appellants had not “come forth with evidence that Dr. Estrada’s examination fell below the standard of care for a physician conducting a DMV physical examination for the certification of a vanpool driver.” The court noted that Dr. Estrada had secured the opinion of Bautista’s primary care physician regarding the side effects of Vicodin.
THE APPEAL BY GRANT AND STORMS
1. Dr. Estrada Was Authorized to Use the February 1998 Version of DMV’s Form DL51
Appellants contend that the 1998 version of DMV’s form DL51, which Dr. Estrada used, was outdated.
We refer here to Grant and Storms.
This claim is not supported by the record. According to DMV’s Driver License Policy Section manager Patrick Barrett, prior to October 1, 2004, the DMV accepted any version of DL51 in the case of vanpool drivers. This is confirmed by a posting on DMV’s website that stated that it was only after October 1, 2004, that DMV would accept only DL51 forms with a revision date of “2/2004” or later.
Bautista’s medical examination took place in July 2004 and was completed on August 11, 2004. Thus, according to the DMV’s own standards, Dr. Estrada was free to use the DL51 form that he did use. Regulations promulgated by an administrative agency are declarative of applicable standards (see generally 6 Witkin, Summary of Cal. Law (10 ed. 2005) Torts, § 876, pp. 107-108), especially when, as here, the regulation pertains to a form used by the agency itself.
2. There Is No Evidence That Dr. Estrada’s Examination of Bautista Fell Below the Applicable Standard of Care
The trial court concluded that appellants had not produced any evidence that Dr. Estrada’s examination fell below the standard of care applicable to a physician conducting a DMV physical examination for the certification of a vanpool driver. This ruling of the trial court went to the heart of the matter and it was correct.
Appellants do not cite to any expert opinion setting forth the applicable standard of care, nor do they cite to any evidence that would show that Dr. Estrada’s examination fell short of that standard. Instead, appellants claim that if Dr. Estrada had used a newer version of DL51 that included sleeping disorders as matters that had to be covered by the examination, Dr. Estrada would have learned that Bautista suffered from insomnia and took Ambien in addition to Vicodin to be able to sleep at night.
There are three reasons why this contention is without merit.
First. There is no evidence that the applicable standard of care required Dr. Estrada to inquire about sleep disorders; simply because such a question appears on a form does not mean that the standard of care mandates this inquiry. Ordinarily, the applicable standard of medical care can only be proven by expert testimony (Elcome v. Chin (2003) 110 Cal.App.4th 310, 317), and we see no reason why that should not be true of this case. The observation that the standard of care against which the acts of a physician are to be measured is a matter peculiarly within the knowledge of experts (ibid.) is apropos, since the subject of medical examinations to be covered is certainly not within a layman’s common knowledge.
It is significant that there is no expert testimony on the standard of care, and therefore also no evidence that Dr. Estrada’s performance fell below that standard. One would think that appellants would have made every effort to present such evidence, if it existed. In fact, appellants recognize this aspect of the case and they propound two arguments why they should be excused from presenting expert evidence on the standard of care. First, they claim that this would impose an “unwarranted burden” on them. Second, they contend that it was up to Caltech to produce expert evidence on the standard of care. Neither point is meritorious.
If a litigant claims that a physician’s performance fell below the standard of care, it may be a burden to show what that standard is, but it is not an unwarranted burden. If the litigant cannot meet that burden, he should not make the claim that the physician was incompetent. But if he makes that claim, he should be able to support it, which necessarily means proof of what the standard is.
It is of course true that Caltech had the initial burden to show that there were no triable issues of fact. But Dr. Estrada’s competence was not part of that initial showing. It is appellants’ assertion that a different (or “better”) medical examination would have prevented the accident. Thus, Dr. Estrada’s alleged lack of his competence was part of appellants’ showing “that a triable issue of one or more material facts exists.” (Code Civ. Proc., § 437c, subd. (p)(2).) In fact, this is precisely what the appellants did in that it was appellants, and not Caltech, who propounded as additional facts the circumstances of Bautista’s medical examination by Dr. Estrada. It is therefore appellants and not Caltech who should have introduced evidence of the standard to be met in the medical examination of a vanpool driver, and evidence that Dr. Estrada failed to meet that standard.
“A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).)
All of the other appellants also contend that Caltech should have introduced evidence of the standard with which Dr. Estrada had to comply. We reject these contentions for the reasons set forth in this paragraph of the main text.
Second. Even though there is no evidence that the standard of care required Dr. Estrada to inquire into sleep disorders, the record reflects that Dr. Estrada did not ignore the subject of drowsiness. In response to Dr. Estrada’s questions, Bautista acknowledged that Vicodin made him drowsy. Dr. Estrada followed up by asking Bautista if he was taking any other medication than Vicodin that might affect his ability to drive. The fact is that Bautista was not candid in failing to reveal in response to this question that he was also taking Ambien. Thus, it is Bautista’s lack of candor and not anything that Dr. Estrada failed to do that explains why Dr. Estrada did not know that Bautista was also taking Ambien.
Third. If Dr. Estrada had known that Bautista was taking Ambien, it is very likely that he would have instructed him not to drive unless he had adequate sleep after having taken the drug. The question is whether this would have made any difference. Certainly, Bautista’s behavior with Vicodin indicates that he would not have modified his behavior if he had been told not to take Ambien the night before he was to drive the vanpool. Not only did Dr. Estrada question and caution Bautista about Vicodin, Dr. Estrada specifically deferred certifying Bautista until Bautista’s treating physicians had covered this subject with Bautista. This was done, and Bautista was told, verbally and in writing, not to take Vicodin and drive. No less than three physicians told him about the dangers of Vicodin over a period of several weeks. Yet, he had Vicodin in his system on the morning of the accident. It is hardly open to doubt that he would have ignored warnings about Ambien, just as he ignored warnings about Vicodin. Thus, appellants’ implicit assumption that warning Bautista about Ambien would have prevented the accident is shown to be invalid by Bautista’s treatment of the warnings about Vicodin.
Dr. Jung counsels his patients not to drive after taking Ambien unless they have had seven to eight hours of sleep.
It is by no means established that the cause of the accident was that Bautista fell asleep or nodded off at the wheel. Nonetheless, if the cause was that Bautista dozed off because he was under the influence of Vicodin, Ambien and Benadryl, the reality is that Bautista was warned several times about Vicodin by three physicians, Dr. Estrada included, and that Bautista, a man sophisticated in scientific matters, certainly understood the warnings, including the probable synergistic effect of Ambien and Benadryl, which he concealed from Dr. Estrada. All the same, he ignored the warnings, and the dangers posed by Ambien and Benadryl. As between Dr. Estrada, who warned Bautista, and Bautista himself, who ignored the warnings, it is hard to see the logic in appellants’ case in seeking to place the blame on Dr. Estrada.
3. There Is No Evidence That Caltech Unreasonably Failed to Perform Its Duties
Citing section 324A of the Restatement Second of Torts, appellants contend that once Caltech undertook to perform Bautista’s medical examination, Caltech was under a duty to exercise reasonable care in the performance of that function. Specifically, appellants claim that Caltech did not exercise reasonable care because Dr. Estrada did not provide the certification required by 49 Code of Federal Regulations part 391.41 (2009) (hereafter part 391.41) that Vicodin would not adversely affect Bautista’s ability to operate the vanpool vehicle. In other words, appellants claim that Caltech failed to exercise reasonable care because it did not provide a certificate that Vicodin would not affect Bautista’s ability to drive.
In part, section 324A of the Restatement Second of Torts states: “One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking.”
Part 391.41(b) lists the physical qualifications required of a person to drive a commercial vehicle. Title 13, section 28.18 of the California Code of Regulations sets forth the minimum medical requirements of a class A, B and commercial class C driver; in doing so, section 28.18 adopts the requirements set forth in part 391.41. As we have already noted, subdivision (j) of Vehicle Code section 12804.9 provides that the driver of a vanpool vehicle may operate with a class C license but must possess evidence of a medical examination required for a class B license.
Part 391.41(b)(12)(i) provides that a driver may not use a controlled substance, a narcotic or a habit-forming drug. Part 391.41(b)(12)(ii) provides for the exception to this rule in the following words: “A driver may use such a substance or drug, if the substance or drug is prescribed by a licensed medical practitioner who: [¶] (A) Is familiar with the driver’s medical history and assigned duties; and [¶] (B) Has advised the driver that the prescribed substance or drug will not adversely affect the driver’s ability to safely operate a commercial motor vehicle.”
The note written by Dr. Jung complies with part 391.41(b)(12)(ii). Dr. Jung was Bautista’s treating physician and he knew that Bautista would drive a vanpool; this spoke to part 391.41(b)(12)(ii)(A). Dr. Jung’s note also stated that he had informed Bautista of the effects of Vicodin, which Bautista took for pain, and, importantly, the note went on to state that Bautista had been instructed not to drive when taking Vicodin or when he felt its influence. If Bautista complied with these directions, the Vicodin would not adversely affect his ability to operate the van.
Although these appellants stop short of actually saying it, the thrust of their argument is that solely because Vicodin had been prescribed for Bautista, he should not have been medically cleared to operate a vanpool. We address this argument in detail in part 8, post, where we take up Wurm’s, Agey’s and Butts’ identical contention that is more fully formulated in their brief.
4. Caltech Is Not Liable for the Negligent Entrustment of the Van to Bautista
Appellants contend that Caltech is liable for negligent entrustment even though it concededly did not own the van.
“The general basis of liability for entrustment under the Restatement is the act of entrusting a potentially dangerous instrumentality to one who is likely to misuse it. [Citations.] The California decisions involve loans or permissive use transactions where the entrustor retains an ownership interest in the vehicle.” (Dodge Center v. Superior Court (1988) 199 Cal.App.3d 332, 339.) Not only did Caltech not own the van, it had absolutely no control over it. Control was in the hands of Palmer, who was the lessee of the van, and in Enterprise, the lessor; one would suppose that the passengers also had a measure of control.
Imposing liability on Caltech for negligent entrustment when it neither owned, leased or controlled the van, and when in fact there is no question that it did not entrust the vehicle to Bautista, would be a contradiction of terms. Caltech cannot be liable for negligently entrustingthe van to Bautista for the simple reason that it did not entrust the vehicle to Bautista.
Contrary to appellants’ suggestion, this is not a case like Johnson v. Mead (1987) 191 Cal.App.3d 156, 158-159, when the question was whether the DMV acted within its discretion in licensing a driver who was intoxicated at the time he struck and killed the plaintiffs’ child. Caltech is not the DMV nor is it an arm of the state, nor is it engaged in issuing driver’s licenses. Nor is this case like Talbott v. Csakany (1988) 199 Cal.App.3d 700, 706, when the court recognized that, under some circumstances, the gift of a car to a person who habitually drove while intoxicated could constitute negligent entrustment. Caltech could not have given the van away since it did not own it. In any event, the careful, hedged-about dictum in Talbott that the court did not apply to the case it was deciding is not authority for the proposition that a party can entrust a vehicle that it never owned or leased and over which it had absolutely no control.
The core issue in Johnson v. Mead was whether the DMV’s duty to refuse a license to someone it has previously determined cannot safely operate a vehicle is a mandatory or a discretionary duty. This question has no relationship to the case before us.
The Court of Appeal affirmed the judgment for the defendant who had given the car to his daughter and her husband, knowing that the husband was a habitual drunken driver. The Talbott court only acknowledged that, given the strong policy against drunk driving, it was theoretically possible that giving a car to a habitual drunk driver could constitute negligent entrustment. (Talbott v. Csakany, supra, 199 Cal.App.3d at p. 706.)
5. The Travel Expense Exception to the Going-and-coming Rule Does Not Apply
Appellants contend that the travel expense exception to the going-and-coming rule applies because Caltech “surely derived a benefit from its employee’s [sic] participation in the vanpool program.” Appellants point to the fact that Caltech pays a $50 monthly subsidy to employees who participate in the vanpool program.
The rationale of the travel expense exception has been stated in Hinman v. Westinghouse Elec. Co. (1970) 2 Cal.3d 956, 962:
“There is a substantial benefit to an employer in one area to be permitted to reach out to a labor market in another area or to enlarge the available labor market by providing travel expenses and payment for travel time. It cannot be denied that the employer’s reaching out to the distant or larger labor market increases the risk of injury in transportation. In other words, the employer, having found it desirable in the interests of his enterprise to pay for travel time and for travel expenses and to go beyond the normal labor market or to have located his enterprise at a place remote from the labor market, should be required to pay for the risks inherent in his decision. [¶] We are satisfied that, where, as here, the employer and employee have made the travel time part of the working day by their contract, the employer should be treated as such during the travel time, and it follows that so long as the employee is using the time for the designated purpose, to return home, the doctrine of respondeat superior is applicable.”
It is apparent that the $50 subsidy paid to vanpool participants has no connection with, or relationship to, the considerations underlying the travel expense exception. The subsidy is paid not to make the travel time part of the working day but to encourage participation in vanpools. And the beneficiary of the vanpool program is not Caltech but the public at large. The purpose of the program is to reduce solo driving and therefore the volume of traffic, with the attendant benefits to the public of such a reduction.
We agree with the trial court’s ruling that, as a matter of law, the travel expense exception does not apply.
6. The Vanpool Program Was Not a Joint Venture Involving Caltech
We do not agree with appellants that Vanpool 36, or the vanpool program in general, was a joint venture between the employees and Caltech.
A joint venture exists where there is an agreement between the parties regarding a common business undertaking, an understanding as to the sharing of profits and losses, and a right of joint control. (Bank of California v. Connolly (1973) 36 Cal.App.3d 350, 364.) Even if Vanpool 36 qualifies as a business undertaking, and we do not think it does, there is no sharing of profits and losses and there is no right of joint control. (Indeed, the fact that there are no profits and losses shows that the vanpool program is not a business venture.) Without a sharing of profits and losses, there is no joint venture. (Enos v. Picacho Gold Min. Co. (1943) 56 Cal.App.2d 765, 771.) And, as we have previously held, it is uncontested that Caltech had no control over the operation of Vanpool 36, or any vanpool.
7. The Remainder of Appellants’ Contentions Are Without Merit
Appellants moved for a new trial/reconsideration on a number of grounds, none of which is meritorious.
Appellants are mistaken in claiming that Dr. Estrada’s decision to certify that Bautista passed the medical examination was based on Dr. Jung’s note. The trial court made no such finding, which would have been in error. Dr. Jung’s note was one of several factors that Dr. Estrada considered, among which were Dr. Estrada’s own explicit warning about driving while under the influence of Vicodin.
Appellants claim that the trial court should not have considered testimony by DMV’s Barrett that was submitted in Caltech’s reply papers. It appears, however, that Barrett’s deposition was taken after Caltech’s summary judgment papers were filed, that appellants obtained an extension of time to be able to respond to statements made by Barrett in his deposition and that appellants themselves lodged the entirety of Barrett’s deposition testimony with the trial court. Although appellants lodged objections to Barrett’s testimony in the trial court, they failed to obtain a ruling on those objections. Thus, these objections are waived for the purposes of the appeal. (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 670, fn. 1.) Whatever procedural irregularities occurred, and we do not say they did occur, were cured by the trial court’s orders.
Appellants Wurm, Agey and Butts also make the identical argument about Barrett, which we reject for the reasons stated in this paragraph of the main text.
Finally, appellants’ contention that Caltech was a common carrier by virtue of the vanpool program borders on the specious. “Every one who offers to the public to carry persons, property, or messages, excepting only telegraphic messages, is a common carrier of whatever he thus offers to carry.” (Civ. Code, § 2168.) A common carrier within the meaning of Civil Code section 2168 “is any entity which holds itself out to the public generally and indifferently to transport goods or persons from place to place for profit.” (Squaw Valley Ski Corp. v. Superior Court (1992) 2 Cal.App.4th 1499, 1508.) It is patent that, in supporting the vanpool program, Caltech did not hold itself out to the general public as a carrier of persons or goods for profit. We agree with Caltech that there is nothing in the vanpool program that made a “carrier” out of Caltech.
THE APPEAL BY WURM, AGEY AND BUTTS
8. Appellants’ Interpretation of Part 391.41(b)(12)(ii)(B) Is Incorrect
Part 391.41(b)(12)(i) states that a person is physically qualified to operate a motor vehicle if he or she does not use a controlled substance, an amphetamine, a narcotic or any other habit-forming drug. As we have already noted, part 391.41(b)(12)(ii) states the exception to this rule: “A driver may use such a substance or drug, if the substance or drug is prescribed by a licensed medical practitioner who: [¶] (A) Is familiar with the driver’s medical history and assigned duties; and [¶] (B) Has advised the driver that the prescribed substance or drug will not adversely affect the driver’s ability to safely operate a commercial motor vehicle.”
Without citing any authority, appellants contend that the exception set forth above “is not met by simply telling the driver about the side effects and potential complications of taking the drug and not to drive when taking it or feeling its influence since the only logical inference to be drawn from such advice is that such a drug obviously will affect the driver’s ability to safely operate the vehicle.” The substance of appellants’ argument is that anyone who has been prescribed Vicodin cannot be certified under part 391.41(b)(12)(ii)(B).
Wurm, Agey and Butts.
Appellants’ interpretation of this provision is neither reasonable nor logical.
The exception provided for in part 391.41(b)(12)(ii) is predicated on the fact that the substance or drug has been prescribed by a physician. Thus, the exception set forth in part 391.41(b)(12)(ii) assumes that the driver is actually taking a prescribed substance or drug. By “taking” we mean that the driver has been prescribed a drug and that the driver habitually uses the drug in accordance with the terms of the prescription.
Given that part 391.41(b)(12)(ii) is designed to deal with situations when the driver is taking prescription medications or drugs, there are two possible scenarios. One is when the driver is actually under the influence of a prescription drug while driving but the physician can certify that the person’s ability to operate a motor vehicle is not impaired by the medication. Given that part 391.41(b)(12) deals with controlled substances, amphetamines, narcotics and habit forming drugs, this is probably an unusual scenario.
The other scenario is the large number of cases when the driver is taking a prescribed medication that would impair his or her ability to operate the motor vehicle but will not impair the ability to drive if the physician’s instructions are followed. This satisfies the text of part 391.41(b)(12)(ii)(B) because the physician has advised the driver that the “prescribed substance or drug will not adversely affect the driver’s ability to safely operate a commercial motor vehicle” as long as the physician’s instructions are followed. This is precisely what Dr. Jung did in this case.
In this day and age, it is manifest that at any one time there will be many drivers on the road who have been prescribed medications that could affect their ability to drive. This why we reject as unrealistic appellants’ suggestion that anyone who has been prescribed a drug is therefore barred from operating a motor vehicle. This would remove millions of drivers from the road. It is also true that appellants’ theory would render this provision effectively a nullity or, at the least, would sharply limit its availability to those relatively unusual cases when the physician could certify that the medication, even if ingested immediately prior to getting behind the wheel, does not affect the ability to drive. (It is to be kept in mind that the prescribed medication will be a controlled substance, an amphetamine, a narcotic or a habit-forming drug.)
The purpose of part 391.41(b)(12)(ii) must be to ensure that drivers are advised about the danger of certain prescription medications and that they are told that they must refrain from driving after taking the medication. “‘[T]he court must consider the consequences that might flow from a particular construction and should construe the statute so as to promote rather than defeat the statute’s purpose and policy.’” (Escobedo v. Estate of Snider (1997) 14 Cal.4th 1214, 1223.) Interpreting part 391.41(b)(12)(ii) as appellants would have us do would defeat the purpose of this provision and would in fact render it a dead letter, while the interpretation that we give it will promote its purpose and policy.
We recognize that our interpretation reads something into the regulation that is not found on its face. “We also are mindful of the general rule that a judicial body cannot read anything into a statute in order to save it from an unconstitutional defect. [Citation.] Nevertheless, an exception to this general rule is made when the judicial construction merely relieves the statute from being applied in an absurd manner and is necessary to prevent an otherwise reasonable and valid law from becoming a nullity. [Citation.]” (Findley v. Justice Court (1976)62 Cal.App.3d 566, 573.)
Part 391.41(b)(12)(ii) is a reasonable and valid regulation that serves an important purpose. We conclude that Dr. Jung’s note meets the criteria of this provision.
9. The “Advisory Criteria” Are Not Included in Part 391.41
Appellants concede that the so-called “Advisory Criteria” to which they refer is not included in part 391.41 but they nevertheless claim that Caltech should have complied with the “Advisory Criteria” by requiring a period of abstinence and a second examination to ensure that Bautista was not under the influence of any of the three drugs that he was actually taking.
We decline to impose this additional, extra-statutory requirement on Caltech. Moreover, it is clear that the “Advisory Criteria” themselves limit the imposition of abstinence and the requirement of a second examination to drugs that are prohibited, not to drugs that are prescribed. The medications Bautista was taking were not prohibited but prescribed.
10. The Form Used by Dr. Estrada Was Not Outdated
We have addressed and resolved the identical argument propounded by Grant and Storms in part 1 of the Discussion and need not repeat it here.
11. Caltech Was Not Required to Inform the Passengers in Vanpool 36 That Bautista Was Taking Vicodin
Without citing any authority, appellants contend that Caltech “had a duty to warn his [Bautista’s] passengers of that drug [Vicodin] use.”
This argument is also predicated on the unworkable assumption that a person for whom Vicodin has been prescribed, and who is taking Vicodin as we have defined the word “taking,” is by virtue of this fact disqualified from operating a motor vehicle. As we have observed before, such a rule would remove quite a few drivers from our roads.
The fact is that Dr. Estrada not only warned Bautista about taking Vicodin before driving, Dr. Estrada went out of his way to ensure that Bautista’s own physician discussed the matter with Bautista. In the end, Bautista was warned in writing not to take Vicodin and drive. As we have discussed in part 8, ante, this is all that the law requires.
THE APPEAL BY SCOTT GALLOWAY, PETER AND INEZ ROBLES, DAVID AND SHARON MYERS, JIM AND EIKO KITAHARA, AND CHERYL AND BARRY ALLWORTH
12. Caltech Did Not Ignore Appellants’ Theory That Dr. Estrada Did Not Perform a Competent Medical Examination
Appellants contend that the motion for summary judgment ignored their theory that Caltech was negligent in the “management, administration, and facilitation of it’s [sic] vanpool program.” The allegation in their complaint on which this contention is based states: “Defendants[,] and each of them, owed a duty to Plaintiffs to exercise due care and caution with respect to their operation, ownership, and control of the subject van and the administration of the vanpool program so as to avoid creating a foreseeable risk of harm to others.” At another juncture the complaint alleges that the defendants were negligent in the entrustment, ownership, operation and control of the accident van “and/or were otherwise negligent in administering the van pool program.”
Scott Galloway, Peter and Inez Robles, David and Sharon Myers, Jim and Eiko Kitahara, and Cheryl and Barry Allworth.
Neither in their complaint nor in the opening brief do appellants explain or state in what way Caltech was negligent in the administration of the vanpool program and why that negligence was the cause of the accident. We must assume therefore that this general allegation is based on Bautista’s medical examination by Dr. Estrada and the DMV form used by Dr. Estrada.
The matter of the medical examination was raised by appellants when they propounded their own statement of additional facts. This of course squares with our earlier observation set forth in part 2 of the Discussion that the matter of the defective medical examination was part of appellants’ showing that there were triable issues of material fact. The record reflects that Caltech vigorously and fully responded to these alleged facts, admitting some as undisputed, labeling others as immaterial and contesting, citing to the evidence, the balance of the facts. Thus, appellants are mistaken in claiming that Caltech ignored this theory.
Appellants contend at some length that the trial court erred in requiring them to produce evidence about the standard of care to be met in a medical examination. For the reasons stated in this part and in part 2, we reject the contention that it was Caltech that should have produced evidence of the relevant standard. The trial court’s ruling on this issue was correct.
Appellants also state in their brief that Caltech operates the Rideshare Program, maintains and staffs an office for that purpose and responds to complaints about the program. None of this is material because the general operations of the Rideshare Program are not germane when it comes to the accident involving Vanpool 36 on December 8, 2004.
13. Dr. Jung’s Note Satisfied Part 391.41(b)(12)(ii)
Appellants also contend that because Bautista “was taking Vicodin” he “should not have been driving, and certainly should not have been certified to a commuter passenger van.” Appellants also contend that the certificate provided for in part 391.41(b)(12)(ii) can only be issued if the physician can certify that the ability to drive is not impaired even when the driver is under the influence of the drug while driving.
We have explained in part 8 why these contentions are untenable and why Dr. Jung’s note complied with part 391.41(b)(12)(ii).
DISPOSITION
The judgment is affirmed. Respondent is to recover its costs on appeal.
We concur: RUBIN, Acting P. J., BIGELOW, J.