Opinion
A154493
06-07-2023
TIMOTHY CAUWELS, et al., Plaintiffs and Appellants, v. DANA JOHNSON, et al., Defendants and Respondents
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. CGC-13-530331
STEWART, P.J.
Sergeant Timothy Cauwels, an officer with the Pinole Police Department, was on-duty when fleeing felon Java Taylor (Taylor) rammed a stolen rental car into his police cruiser. Taylor had obtained the car from a person who, by use of fraudulent identification, had stolen the car from DTG Operations, Inc., doing business as Dollar Rent A Car (DTG), in San Francisco. Cauwels sued DTG and various employees for personal injury. DTG moved for summary judgment on the grounds that Cauwels's claims were barred by the firefighter's rule, a common law doctrine precluding emergency responders from suing a defendant for negligence when the negligent conduct in question caused the emergency that summoned the responders. On that basis, the trial court granted summary judgment in favor of DTG.
On appeal, Cauwels argues that by granting summary judgment in favor of DTG, the trial court erred in several respects. Preliminarily, Cauwels contends that the firefighter's rule does not even apply to his conduct because he was not involved in the actual pursuit and believed it had ended before Taylor rammed his car. In the alternative, Cauwels maintains this lawsuit falls within the common law and statutory exceptions to the firefighter's rule.
We disagree with Cauwels's claims of error and affirm the judgment.
Cauwels also claims the trial court erroneously struck his products liability cause of action; sustained DTG's evidentiary objections; and failed to equally apportion costs.
BACKGROUND
I.
Theft of Rental Car
The following facts are undisputed. On February 4, 2011, an employee of DTG in San Francisco rented a car to a man who claimed to be "Rashawn Walker." The rental agreement provided a date of birth and driver's license number. The record reflects that the actual Rashawn Walker, who has a different birthdate and driver's license number, did not rent the vehicle from DTG on February 4, 2011. The rental agreement specified that the car was due back on February 11, 2011. The car was never returned. On March 17, 2011, a regional manager at DTG filed a stolen vehicle report with the San Francisco Police Department.
II.
Stolen Rental Car Involved in Police Chase
On April 6, 2011, Taylor committed a theft at a Rite-Aid in Hercules. Taylor used the stolen rental car as a get-away car to flee the scene.
Cauwels was on duty with the Pinole Police Department when he heard over his radio that the Hercules Police Department was in pursuit of a person who had committed a theft at a Rite-Aid. Cauwels heard that the pursuit was heading westbound on San Pablo Avenue toward Pinole. Cauwels was not requested to participate in the pursuit. He planned to determine the path of the pursuit and trail it if it remained in Pinole. Cauwels wanted to prevent potential accidents involving vehicles that might encounter the police pursuit. He responded to the anticipated path of the chase with his emergency lights activated. As he approached the intersection of San Pablo Avenue and Oak Ridge Avenue, the traffic light was red. In response to a signal transmitted from Cauwels's police car, the traffic light turned green. Cauwels did not enter the intersection because the pursuit was coming towards him and he did not want to pull out in front of the pursuit.
Before the pursuit reached his location, Cauwels heard over the police radio that the suspect had gotten into a collision. At the intersection, Cauwels checked for cross traffic. He saw that traffic on San Pablo Avenue had stopped for the red light. Cauwels did not see the Hercules Police Department pursuit or any other police vehicles. Seeing it was clear, Cauwels entered the intersection. Once in the intersection, Cauwels looked to his right and suddenly saw a car approaching him, travelling on San Pablo Avenue on the wrong side of the street. Moments later, his patrol car was broadsided by the stolen rental car driven by Taylor.
III.
Ensuing Litigation
A. Personal Injury Complaint
Cauwels, joined with his wife, filed a complaint against DTG and its employees, alleging claims for: 1) negligence; 2) negligence per se; 3) negligent entrustment; 4) negligent hiring, retention, training, or supervision; 5) corporate negligence; 6) product liability negligence; 7) strict products liability; and 8) loss of consortium. Cauwels alleged that DTG and its employees negligently rented a vehicle to an unknown person who presented a facially invalid license, which reflected an identification number and expiration date that were not in conformance with standards for valid California driver's licenses. DTG and its employees knew or should have known that a person presenting an invalid driver's license to rent a vehicle was likely to allow the rented vehicle to be driven recklessly by incompetent persons and/or used to commit crimes. DTG negligently utilized a defective computer system that could not recognize obvious errors and incomplete information on California driver's licenses. "As a result of [DTG's] negligence, [DTG] entrusted the vehicle to an unknown, unidentified individual, which made possible the vehicle's use on the day of the incident to cause a high-speed collision and severe injuries" to Cauwels.
The City of Pinole (City) filed a complaint against DTG, seeking reimbursement for worker's compensation payments made on behalf of Cauwels. The City also filed a complaint in intervention in the Cauwels's action; the two actions were later consolidated.
B. DTG's First Summary Judgment Motion
In March 2014, DTG filed a motion for summary judgment, arguing that DTG owed no legal duty to Cauwels and that no causal connection existed between DTG's conduct and Cauwels's injuries. DTG argued that" 'the causal connection between the alleged conduct of the rental agency and plaintiff's injury could hardly be more attenuated.' "
In opposition, Cauwels argued an unbroken chain of causation existed because" 'by allowing a fraudulent renter to take the vehicle, DTG created a situation where negligent driving by the criminal and/or his accomplice was foreseeable. Since [DTG] made . . . Taylor's conduct possible and [DTG] should have foreseen vehicle accidents, [DTG] should be held liable for . . . Taylor's negligent driving.' "
At the hearing on the motion, the trial court expressed concern" 'about the causation with the intervening driver'" and noted that Cauwels had to "get around the causation issue." The trial court denied the motion without prejudice to allow the parties to conduct additional discovery.
C. DTG's Second Motion for Summary Judgment
In October 2014, DTG filed a second motion for summary judgment, again asserting that no causal connection existed between DTG's alleged negligence and the collision.
In opposition, Cauwels maintained that DTG's negligent rental was the first in a series of connected events that led to Cauwels's injuries. Cauwels argued that" 'it was highly foreseeable to DTG that [its] vehicle, when negligently rented to a criminal who committed identity fraud to obtain the vehicle, would be driven negligently and cause an auto accident. Auto accidents resulting from negligent rental of vehicles are foreseeable and are not "superseding causes."' "
In June 2015, the trial court granted DTG's second motion for summary judgment, finding DTG did not owe a duty to Cauwels as a matter of law given the attenuated chain of causation. "[N]ot only did the accident occur in another county, several weeks after the rental, during a police chase not caused by a report of the vehicle theft, but the driver of the vehicle involved in the accident was different than the individual who rented the vehicle. If the Court were to find duty existed here, it would be 'perpetual and unlimited in scope.' "
D. Cauwels's Motion for Reconsideration
Cauwels moved for reconsideration of the trial court's order granting DTG's second motion for summary judgment on the grounds that he had discovered new facts showing a causal link between the allegedly negligent rental and his injuries. Specifically, Cauwels produced the deposition testimony of two former DTG employees regarding DTG's 1) prior knowledge of car rental crimes, demonstrating a purported"' "nexus" between fraudulently obtained vehicle[s] and increased crime, reckless driving, and danger to the public,'" 2) policies and procedures that were in place" 'to prevent fraudulent rentals and resulting crime,'" and 3) knowledge regarding" 'criminal sharing of fraudulently obtained vehicles, and distant, long term criminal use'" of those vehicles. Cauwels also provided a declaration from Taylor, in which she indicated that she had received the car from "Tony," whom she believed had stolen the car from DTG.
The trial court granted the motion for reconsideration due to" 'new information about the closeness of the connection between [DTG's] alleged negligence and [Cauwels's] harm.' "
DTG sought writ relief, which was denied without decision.
E. DTG's Third Motion for Summary Judgment
In June 2016, DTG filed a third motion for summary judgment, this time arguing that the firefighter's rule provided a complete defense to this action.
In opposition, Cauwels argued the firefighter's rule did not apply because he "was not involved in the police pursuit" of Taylor. Cauwels maintained that he believed the chase had ended. Alternately, Cauwels argued that the common law and statutory exceptions to the firefighter's rule applied as DTG was (1) "not a cause of the incident[,]" but that its "conduct permitted a third party's negligence[;]" and 2) Taylor committed "subsequent intentional conduct, including deliberately ramming . . . Cauwels's vehicle."
In reply, DTG argued that Cauwels should be judicially estopped from taking an inconsistent position on the causal nexus. DTG further argued that Cauwels's subjective belief as to cessation of the pursuit was irrelevant and that none of the exceptions to the firefighter's rule applied.
In granting summary judgment in favor of DTG, the trial court ruled that Cauwels's subjective state of mind was irrelevant to application of the firefighter's rule, citing Knight v. Jewett (1992) 3 Cal.4th 296, 314-315 (Knight). Further, it was undisputed that Cauwels's presence at the accident scene was related to the hazard that injured him. Finally, there was no basis for imposing vicarious liability on DTG for Taylor's conduct, and the exceptions to the firefighter's rule did not apply to DTG.
This timely appeal followed.
DISCUSSION
A "motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c).)" 'The moving party bears the burden of showing the court that the plaintiff "has not established, and cannot reasonably expect to establish,"' the elements of his or her cause of action." (Wilson v. 21st Century Ins. Co. (2007) 42 Cal.4th 713, 720.) On appeal," '[a]lthough we use a de novo standard of review . . ., we do not transform into a trial court.'" (Dinslage v. City and County of San Francisco (2016) 5 Cal.App.5th 368, 379.) We approach a summary judgment appeal, as with any appeal, with the presumption the appealed judgment is correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Therefore,"' "[o]n review of a summary judgment, the appellant has the burden of showing error, even if he did not bear the burden in the trial court." '" (Dinslage, at p. 379.)
I.
The Firefighter's Rule and Its Exceptions
"Stated in its most traditional terms, the firefighter's rule 'is that which negates liability to [firefighters] by one whose negligence causes or contributes to the fire which in turn causes the death or injury of the [firefighter].' (Giorgi v. Pacific Gas &Elec. Co. (1968) 266 Cal.App.2d 355, 357.)" (Calatayud v. State of California (1998) 18 Cal.4th 1057, 1061 (Calatayud).) Although originally limited to cases involving firefighters, using the name "firefighter's rule" is somewhat of a misnomer because the doctrine of nonliability now applies to police officers and certain other occupations. (See Calatayud, at p. 1059, fn. 1.) "The undergirding legal principle of the rule is assumption of the risk ...." (Id. at p. 1061.) Under the rule, there is no legal duty to protect individuals from the very risk of harm that they are employed to confront (i.e., risks inherent in being a firefighter, police officer, etc.). (Ibid.) Consequently, a claim for an injury arising out of a routine, occupational risk is barred regardless of the source of the injury-provoking conduct. (See Gregory v. Cott (2014) 59 Cal.4th 996, 1001-1002; Calatayud, at pp. 1061-1063.)
The justification for the firefighter's rule is grounded in public policy. (Walters v. Sloan (1977) 20 Cal.3d 199, 204-205.) As a matter of fairness, firefighters cannot complain of negligence that is the reason for their employment. (Neighbarger v. Irwin Industries, Inc. (1994) 8 Cal.4th 532, 539-540 (Neighbarger).) The firefighter's rule also serves as a cost spreading mechanism. The public, having paid taxes to secure the services of firefighters, "has purchased exoneration from the duty of care and should not have to pay twice, through taxation and through individual liability, for that service." (Neighbarger, at pp. 542-543.) Finally, "the abolition of the firefighter's rule would embroil the courts in relatively pointless litigation over rights of indemnification among the employer, the retirement system, and the defendant's insurer." (Id. at p. 540.)
As with most legal principles, the firefighter's rule is not without its exceptions. (Calatayud, supra, 18 Cal.4th at p. 1063.) Various judicial and statutory exceptions to the firefighter's rule reimpose a duty of care that the rule would otherwise negate. The common law "independent cause" exception permits a plaintiff to pursue recovery when the injury was caused by factors "independent" of the activity that required plaintiff's presence. (Lipson v. Superior Court (1982) 31 Cal.3d 362, 376 (Lipson).) Additional limitations on the firefighter's rule are codified in Civil Code section 1714.9. Civil Code section 1714.9, subdivision (a)(1) provides that the firefighter's rule does not apply when the defendant's negligent "conduct causing the injury occurs after the person knows or should have known of the presence of the peace officer, firefighter, or emergency medical personnel." Civil Code section 1714.9, subdivision (a)(2) further excepts from the firefighter's rule those cases "[w]here the conduct causing injury violates a statute, . . . and the conduct causing injury was itself not the event that precipitated either the response or presence of the peace officer, firefighter, or emergency medical personnel." Civil Code section 1714, subdivision (c)(3) excludes those instances "[w]here the conduct causing injury was intended to injure the peace officer, firefighter, or emergency medical personnel."
II.
The Firefighter's Rule Applies
The firefighter's rule applies here. Cauwels was on-duty when he attempted to protect motorists in the area from a high-speed police pursuit that was en route. The danger Cauwels confronted-a suspect fleeing in a stolen rental vehicle allegedly made possible by DTG's negligence-was both the" 'reason for [his] presence at the . . . scene'" and a "risk[] normally associated" with his occupation. (Lipson, supra, 31 Cal.3d at p. 370.)
Cauwels's arguments to the contrary lack merit. First, he argues the firefighter's rule does not apply because he was not "actually involved" in the pursuit. Relying on City of Sacramento v. Superior Court (1982) 131 Cal.App.3d 395 (City of Sacramento), Cauwels argues his presence at the intersection was fortuitous and there are triable issues of fact regarding the sufficiency of the connections between the performance of his duties and his injuries. In City of Sacramento, a highway patrol officer's patrol vehicle was struck in an intersection by a suspect who ran a red light while being pursued by local police. (Id. at p. 399.) The officer was on duty but unaware of the ensuing pursuit. (Ibid.) The firefighter's rule did not apply to bar the officer's claims because "[h]is presence at the intersection in which the accident occurred was fortuitous and wholly independent of [the pursuit]. Although plaintiff was still on duty at the time of the accident, there was insufficient connection between the performance of his duties and the cause of his injuries to preclude recovery under the fireman's rule." (City of Sacramento, at p. 401.)
Here, by contrast, it is undisputed that Cauwels heard over his police radio that a pursuit was headed in his direction. It is further undisputed that Cauwels was attempting to trail the pursuit while it was in Pinole so as to guard against potential accidents involving vehicles not taking part in the pursuit but might encounter it. Unlike the CHP officer in City of Sacramento, Cauwels's presence at the intersection was not due to mere fortuity, it was the result of deliberate action on his part performing duties related to the ongoing pursuit.
Hodges v. Yarian (1997) 53 Cal.App.4th 973 is instructive. In that case, an off-duty police officer was injured when he confronted an intruder in the parking garage of his apartment building. (Id. at pp. 976-977.) The officer argued there was "no 'nexus' between his presence at the scene and his law enforcement employment, and that there [was] a triable issue of fact whether he entered the garage as [a] private citizen or as a police officer." (Id. at p. 984.) The court concluded no such "nexus" was required, explaining that the officer's "original reason for being on the premises was irrelevant; the firefighter's rule was triggered because the officer reacted as a police officer to the disturbance, and deliberately encountered the danger posed." (Hodges, at p. 984.) The same is true here.
The application of the firefighter's rule does not depend on whether Cauwels was "actively" involved in the car chase. Rather, the rule is triggered because Cauwels, acting as a police officer, deliberately undertook public safety-related duties in response to the imminent pursuit and in doing so encountered the danger posed.
Second, Cauwels argues that the firefighter's rule does not apply because, at the time of the collision, he subjectively believed the police pursuit of the suspect was over when he heard on the radio that the suspect had been in a collision. But Cauwels's state of mind is simply not relevant. It is undisputed that his presence at the scene was related to the hazard that injured him. As the trial court recognized, in Knight our high court rejected the view that application of the firefighter's rule should be "gauged on the basis of an implied consent analysis" and on "proof that the particular plaintiff subjectively knew, rather than simply should have known, of both the existence and magnitude of the specific risk of harm imposed by the defendant's negligence." (Knight, supra, 3 Cal.4th at p. 312.) Application of the rule, it held, no longer turns on the reasonableness of the plaintiff's conduct or his subjective awareness of the nature and magnitude of the danger. (Donohue v. San Francisco Housing Authority (1993) 16 Cal.App.4th 658, 664 (Donohue); accord, Neighbarger, supra, 8 Cal.4th at p. 541.) Finally, in light of the public policy reasons for the firefighter's rule, it would be an anomalous result for application of the rule to depend on a plaintiff's subjective beliefs regarding the scope of his or her employment at the time of the injury. (See Knight, at pp. 312-313.)
In sum, the application of the firefighter's rule is not dependent on Cauwels's state of mind.
Accordingly, the trial court did not abuse its discretion in sustaining DTG's evidentiary objections to evidence pertaining to Cauwels's intent and understanding of his role at the time of the incident.
III.
Exceptions to the Firefighter's Rule Are Not Applicable.
A. The "Independent Cause" Exception Is Inapplicable.
Cauwels contends the "independent cause" exception to the firefighter's rule applies because DTG's negligence-renting a car to a person with fake identification-was not what caused Cauwels to be present at the scene.Cauwels argues the trial court improperly expanded the firefighter's rule by holding that DTG's conduct did not qualify as an independent cause. We disagree.
To the extent DTG argues that Cauwels should be judicially estopped from taking a position that is directly contrary to the allegations in the complaint and prior causation arguments, we decline this invitation and proceed to the merits.
In Donohue, the court explained that to invoke the firefighter's rule, a defendant's "negligence must create an obvious risk and be the cause of the [firefighter's] presence." (Donohue, supra, 16 Cal.App.4th at p. 663.) The court further explained the "independent cause" exception to the firefighter's rule "does not bar recovery for independent acts of misconduct which were not the cause of the plaintiff's presence on the scene." (Donohue, at p. 663, italics omitted.) The Donohue court considered the case of a firefighter who "slipped and fell on wet, slick stairs during an unannounced fire safety inspection of a [certain] building." (Id. at p. 660.) Because the building owner's negligent conduct in failing to properly maintain the stairs was not "the reason for [the firefighter's] presence," the independent cause exception applied, and the firefighter's rule did not bar the claim. (Id. at p. 663.)
Here, by contrast, Cauwels was injured in an automobile accident by the driver of a stolen rental car at an intersection in the path of a police pursuit. The police pursuit of the driver of that car and consequent need to control traffic to protect the public from potential injury was the sole reason Cauwels was present at the intersection where he was injured. He went to that intersection in the expectation that he would encounter and then trail the pursuit. As set forth in the complaint, DTG's alleged negligent conduct- allowing its rental car to be stolen-created the risk that it would be used for criminal purposes and thus initiated the chain of events leading to Cauwels's response to the specific incident that culminated in his injuries. In this case, then, under the theory alleged in Cauwels's complaint, DTG's alleged negligence, however remote, was inextricably linked to Cauwels's presence at the intersection, and not an independent cause of his injuries.
This analysis is consistent with Seibert Security Services, Inc. v. Superior Court (1993) 18 Cal.App.4th 394 (Seibert). In Seibert, a police officer brought an arrestee to a hospital for examination of possible injuries. (Id. at p. 402.) While the officer was still at the hospital, a Seibert employee negligently removed handcuffs worn by a mental patient who had previously engaged in abusive and aggressive behavior. (Ibid.) When the uncuffed patient attacked the Seibert employee, the employee cried for help. (Id. at p. 403.) The police officer, who was nearby filling out paperwork relating to the injured arrestee, responded to the Seibert employee's cry for help and attempted to subdue the mental patient, who injured the officer in the ensuing struggle. (Id. at p. 411.) The Seibert court held that "[w]hile the conduct of Seibert employees may have been 'independent of and unrelated to' the conduct which originally brought plaintiff to the hospital, it is factually undisputed that it was the immediate cause of [the officer's] presence in or near the holding cell in which [the patient] was tussling with [the] Seibert employee ...." (Ibid.) The court rejected the plaintiff's attempt to separate the security company's prior alleged acts of negligence in its hiring practices, training methods, and treat them as acts "independent" of its employee's failure to properly restrain the patient. (Id. at p. 415.) Rather, "any negligence in these areas was merely a factor in creating the basic risk." (Ibid.) The court held "the [firefighter's] rule cannot be subverted by the artificial isolation of specific factors, and [found] that all of Seibert's allegedly negligent acts were inextricably involved in causing the danger of an unrestrained [patient]." (Ibid., italics added.)
In reaching this conclusion, the Seibert court relied on Young v. Sherwin-Williams Co., Inc. (D.C.App. 1990) 569 A.2d 1173 (Young). (Seibert, supra, 18 Cal.App.4th at p. 415.) In Young, a firefighter was injured while rescuing an inebriated truck driver. (Young, at p. 1174.) The firefighter sued the truck driver's employer for negligent hiring based on its failure to conduct a background check before hiring the driver. (Id. at p. 1179.) The Young court concluded the trucking company's alleged negligence "is not independent of the risk that necessitated [the firefighter's] presence; the alleged negligence is a factor contributing to the creation of that risk." (Ibid.)
Not only do the analyses in Seibert and Young apply to the facts of the present case, they also undermine Cauwels's attempt to distinguish Kelhi v. Fitzpatrick (1994) 25 Cal.App.4th 1149 (Kelhi). In Kelhi, an on-duty highway patrol officer was injured by a runaway tire while responding to a report of a truck losing some of its tires on a freeway. (Id. at p. 1152.) The officer sued the driver and the owner of the truck, as well as those who manufactured, maintained, repaired, and sold the truck. (Id. at pp. 1152-1153.) The court upheld summary judgment based on the firefighter's rule. (Kelhi, at p. 1160.) Although the negligence on part of the defendants in maintaining or modifying the truck occurred before the officer responded, this negligence caused "the exact risk he was attempting to minimize in the interest in public safety." (Ibid.)
Cauwels fares no better by citing several cases in which the independent cause exception applied. In each of the cases on which he relies, the conduct that injured the plaintiff was in fact separate from and independent of the reason for the plaintiff's presence at the location of injury. (See, e.g., Terry v. Garcia (2003) 109 Cal.App.4th 245, 248-249 (Terry) [police officer responding to domestic disturbance call injured by third party's truck while driving to the scene]; Stapper v. GMI Holdings, Inc. (1999) 73 Cal.App.4th 787, 790 [firefighter responding to house fire injured when she became trapped in garage due to a defective garage door opener]; Spargur v. Park (1982) 128 Cal.App.3d 469, 471 [motorcycle officer who pulled defendant over for speeding injured when defendant engaged in additional negligent conduct-specifically, failing to stop before hitting the motorcycle]; Kocan v. Garino (1980) 107 Cal.App.3d 291, 292 [police officer injured during foot chase of suspect when defendant's fence collapsed].) Here, by contrast, DTG's alleged conduct, i.e., the negligent car rental for which Cauwels seeks to hold DTG liable, is part of the causal chain of events that led to Cauwels's presence in the intersection. But for DTG's negligent rental, the car would not have ended up in the hands of a fleeing criminal with police officers in hot pursuit.
Cauwels also argues that the public policy reasons behind the firefighter's rule are not at issue here because "DTG's negligence was independent for the purpose of the [f]irefighter's [r]ule ...." The argument is circular, and in any event as we have discussed, DTG's negligence was not an independent cause. As such, the firefighter's rule applies, as well as the public policy considerations underlying it. Among these considerations is the policy" 'that it would be too burdensome to charge all who carelessly cause or fail to prevent fires [or vehicle accidents or crimes] with the injuries suffered by the expert retained with public funds to deal with those inevitable, although negligently created, occurrences.'" (Giorgi v. Pacific Gas &Electric Co., supra, 266 Cal.App.2d at p. 359.) Other considerations include" 'the spreading of the risk'" and "the policy of efficient judicial administration." (Id. at p. 360.)
In sum, the "independent cause" exception to the firefighter's rule is inapplicable.
Similarly, Cauwels's product liability cause of action is barred by the firefighter's rule. The alleged defective product-a computer system that failed to detect the facially deficient license-precipitated the same tortious conduct resulting in Cauwels's injuries.
B. The Statutory Exception Set Forth in Civil Code Section 1714.9, Subdivision (a)(2) Is Inapplicable.
Civil Code section 1714.9, subdivision (a)(2) imposes liability for "conduct causing . . . injury" to emergency responders when that conduct "[1] violates a statute, ordinance, or regulation, and the conduct causing injury [2] was itself not the event that precipitated either the response or presence of the peace officer, firefighter, or emergency medical personnel." Cauwels contends DTG should be liable for his injuries because DTG violated Vehicle Code sections 14604 and 14608 when it rented the car without checking the driver's license of the prospective renter.
This contention is without merit. Subdivision (a)(2) of Civil Code section 1714.9 contemplates imposing liability for a statutory violation that is independent of the incident that necessitated the plaintiff's presence. (Zerne, et al., Cal. Practice Guide: Personal Injury (The Rutter Group 2019) [¶] 3:1222.) This interpretation is consistent with the common law independent cause exception, which imposes liability for conduct that is unrelated to the reasons for plaintiff's presence at the scene. (Lipson, supra, 31 Cal.3d at pp. 377-378.) Cauwels argues that he was injured by Taylor, who "obtained DTG's vehicle through its violation of the Vehicle Code license-check requirements." No matter how Cauwels attempts to parse the conduct, DTG's alleged failure to comply with statutory requirements set forth in the Vehicle Code was itself the event that he contends precipitated Cauwels's presence at the intersection.
IV.
There Is No Basis for Vicarious Liability.
Cauwels contends that Taylor's conduct after knowing he was present-i.e., her "deliberate high-speed ramming" of his police car-is subject to several exceptions to the firefighter's rule under Civil Code section 1714.9 and that DTG is vicariously liable for Taylor's conduct. Cauwels claims that requiring DTG to stand in Taylor's shoes is consistent with the legal and public policy justifications for the firefighter's rule.
Preliminarily, contrary to Cauwels's contention, the trial court made no express ruling that exceptions to the firefighter's rule applied to Taylor's conduct. Rather, the trial court "agree[d] that exceptions to the firefighter's rule would likely apply to . . . Taylor's [conduct] were she to assert the firefighter's rule" (italics added) but concluded there was "no authority for the proposition that DTG stands in the shoes of . . . Taylor such that her actions render the firefighter's rule inapplicable to DTG." Assuming without deciding that Taylor would be liable for Cauwels's injuries, there is no basis for applying the exceptions related to her conduct to DTG.
Contrary to Cauwels's suggestion, the doctrine of respondeat superior has no application here. "The rule of respondeat superior is familiar and simply stated: an employer is vicariously liable for the torts of its employees committed within the scope of the employment." (Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 296.) Taylor, however, was not a DTG employee.
Cauwels cites Yamaguchi v. Harnsmut (2003) 106 Cal.App.4th 472, 480 (Yamaguchi) as opening the door to DTG's vicarious liability for Taylor's conduct. He is mistaken. In Yamaguchi, our colleagues in Division Five discussed the parameters of an employer's vicarious liability for injuries suffered by a police officer at the hands of an employee. There, one restaurant employee stabbed another, and a third employee summoned police. (Id. at p. 476.) When police arrived and were attempting to help the wounded employee, the aggressor threw hot oil in their direction, injuring an officer. (Ibid.) On appeal, the court concluded the trial court had committed reversible error when it "preordained a verdict" for the officer by instructing the jury that any act or omission by the employee was the act of the restaurant owners under the doctrine of respondeat superior. (Id. at pp. 486487.) The court clarified that although the employee would be liable under Civil Code section 1714.9, the only way the restaurant owners could be liable for the officer's injuries was under the doctrine of respondeat superior, and there was a triable issue of fact as to whether the aggressor had acted within the scope of his employment. (Yamaguchi, at pp. 479, 481-483.) Yamaguchi in no way supports imposition of vicarious liability on the part of a rental car company for the acts of a person not its employee and, indeed, not even the person to whom it rented the car.
Cauwels's reliance on Terry v. Garcia, supra, 109 Cal.App.4th 245 is equally misplaced. In Terry, a highway patrol officer was driving on his way to respond to a domestic dispute, when his car was clipped by a truck pulling a cattle trailer. (Id. at pp. 248-249.) The truck was owned by the driver's employer. (Id. at p. 248.) The officer sued the driver and the owner for negligence. (Id. at p. 249.) Terry held that the firefighter's rule did not bar the officer's action since the alleged negligence of the driver was independent of the misconduct that summoned the officer's response. (Terry, at p. 253.) There is no discussion of vicarious liability in the opinion. It is axiomatic that cases are not authority for points not discussed therein. (Los Angeles County Metropolitan Transportation Authority v. Yum Yum Donut Shops, Inc. (2019) 32 Cal.App.5th 662, 673.) Terry is also clearly distinguishable. There, unlike here, the owner of the vehicle was also the driver's employer.
Cauwels argues that Vehicle Code section 17150, the permissive use statute, confers vicarious liability to a vehicle owner like DTG. Here, however, Taylor was not the person to whom DTG rented the vehicle, and there is no evidence DTG permitted Taylor to use it, either expressly or impliedly. Also, Vehicle Code section 17150 does not impose "true" vicarious liability on owners. Rather, the purpose of permissive use liability is to guaranty, to a third party injured by the operator's negligence, at least the minimum recovery required by the Financial Responsibility Law ($15,000). (See Veh. Code, §§ 16056, 17151; see also Flores v. Enterprise Rent-A-Car Co. (2010) 188 Cal.App.4th 1055, 1071-1072.)
Equally unavailing is Cauwels's attempt to transform DTG's alleged Vehicle Code violations into a claim of vicarious liability. Cauwels argues that "DTG failed to make a proper check of the driver's license of the criminal renter, thus entrusting the vehicle to an imposter and allowing a group of criminals to obtain the vehicle." Thus, according to Cauwels, DTG is liable for Taylor's conduct because its violation of the license-check requirements in Vehicle Code sections 14604 and 14608 constitute negligence per se. We disagree.
Under the negligence per se doctrine, negligence is to be presumed from a defendant's violation of a statute that proximately results in injury as long as (1) the statute "was designed to prevent" that type of injury, and (2) the injured plaintiff was "one of the class of persons for whose protection the statute . . . was adopted." (Evid. Code, § 669; Johnson v. Honeywell Internat. Inc. (2009) 179 Cal.App.4th 549, 555.)
The Vehicle Code sections were enacted to protect the public from the dangers posed by unlicensed drivers (Philadelphia Indemnity Ins. Co. v. Montes-Harris (2006) 40 Cal.4th 151, 162; see Cal. Bill Analysis, Sen Bill No. 1758 (1993-1994 Reg. Sess.) Sen., Sept. 30, 1994)-not from the inherent dangers of renting cars to criminals. We are not persuaded by Cauwels's argument that imposing vicarious liability in this context is consistent with public policy considerations. These statutes are not designed to protect an officer from the dangers posed by a fleeing felon. Construing these statutes to support a presumption of negligence in this case would contravene their language and purpose and would nullify the firefighter's rule. (See Tilley v. Schulte (1999) 70 Cal.App.4th 79, 85-86 [psychiatrist's failure to warn authorities of patient's homicidal feelings in violation of Civ. Code, § 43.92 did not abrogate firefighter's rule].) Cauwels fails to establish that Vehicle Code sections 14604 and 14608 abrogate the firefighter's rule and its underlying public policy considerations.
Cauwels points to nothing in the record indicating that Taylor was an unlicensed driver. Similarly, there is no indication that the original renter was an unlicensed driver, either. We cannot infer that was the case because the original renter never returned the car. It is thus equally or more likely that he used a fake license merely to facilitate the theft. Any assumption that he was unlicensed would, on this record, be speculative. (Joseph E. Di Loreto, Inc. v. O'Neill (1991) 1 Cal.App.4th 149, 161 ["When opposition to a motion for summary judgment is based on inferences, those inferences must be reasonably deducible from the evidence, and not such as are derived from speculation, conjecture, imagination, or guesswork"]; see Code Civ. Proc., § 437c, subd. (c).)
Cauwels's reliance on Snyder v. Enterprise Rent-A-Car, San Francisco (N.D.Cal. 2005) 392 F.Supp.2d 1116 (Snyder) does not compel a contrary result. In Snyder, the defendant rental car agency rented a vehicle to a person whose license was suspended. Driving the vehicle under the influence of alcohol, he struck and killed the plaintiffs' daughter. (Id. at p. 1120.) The plaintiffs sued the rental car agency for, inter alia, negligent entrustment under California law. (Ibid.) To the extent Snyder discusses negligence per se in terms of Vehicle Code sections 14604 and 14608, nothing in this opinion can be read as abrogating the firefighter's rule and its underlying policy considerations. Indeed, there is no mention of the firefighter's rule in Snyder at all.
In conclusion, the exceptions to the firefighter's rule do not apply to DTG either directly or vicariously. As all of Cauwels's individual claims are precluded by the firefighter's rule, the derivative claims raised by Mrs. Cauwels and the City necessarily also fail. Mrs. Cauwels's claims for loss of consortium are based on the same negligence theories we have rejected as to her husband. Because she cannot show DTG tortiously injured her husband, an essential element of her claim is absent. (See Vanhooser v. Superior Court (2012) 206 Cal.App.4th 921, 927 [" 'A cause of action for loss of consortium is, by its nature, dependent on the existence of a cause of action for tortious injury to a spouse' "]; Hahn v. Mirda (2007) 147 Cal.App.4th 740, 746 [same; loss of consortium claim "stands or falls based on whether the spouse of the party alleging loss of consortium has suffered an actionable tortious injury"].) The City's subrogation claims seeking to recover workers' compensation benefits paid to Cauwels are also derivative of Cauwels's claims and as such are also barred. (Hubbard v. Boelt (1983) 140 Cal.App.3d 882, 885.)
In view of this holding, we do not reach DTG's alternative argument that we should affirm based on Avis Rent A Car Systems, Inc. v. Superior Court (1993) 12 Cal.App.4th 221, which it contends precludes imposition of a duty on a DTG to control the conduct of a thief.
V.
Apportionment of Costs
Cauwels argues that the trial court erred by holding him jointly and severally liable for DTG's costs instead of equally apportioning costs with plaintiff in intervention, the City. (Code Civ. Proc., § 1032.) Cauwels contends it is "patently unfair" to require him to be solely responsible for satisfying the cost award of $27,451.
A trial court has discretion to apportion costs among multiple parties. (Acosta v. SI Corp. (2005) 129 Cal.App.4th 1370, 1374.) However, "in most cases where a defendant is entitled to costs as of right because plaintiffs took nothing in their joint action, there will be nothing to apportion. The costs are joint and several because the plaintiffs joined together (represented by the same attorney) in a single theory of liability against a defendant who prevailed. It is up to the plaintiffs in a motion to tax costs to point out that some costs are not related to the joint theory of liability, but are specific to a particular plaintiff, and it is therefore not fair to include these in a joint award." (Id. at p. 1376.) Here, the claims of the City related to subrogation benefits to Cauwels under its worker's compensation program-not a discrete theory. That the City had separate counsel does not alter the plaintiffs' joint theory of liability.
Cauwels, therefore, has not shown that the trial court abused its discretion by holding him jointly and severally liable for DTG's costs instead of apportioning the costs equally.
DISPOSITION
The judgment is affirmed. DTG is entitled to its costs on appeal.
I concur.
MILLER, J.
I concur in the result.
RICHMAN, J.