Opinion
G053305 G053405
11-29-2017
MATTHEW DELGADO, Defendant, Cross-complainant and Appellant, v. COUNTY OF SANTA BARBARA Defendant, Cross-defendant and Respondent. DARREN G. FLATH, Plaintiff and Appellant, v. COUNTY OF SANTA BARBARA, Defendant, Cross-defendant and Respondent.
Law Offices of David C. Werner and David C. Werner for Defendant, Cross-complainant and Appellant. Adamson Ahdoot, Alan A. Ahdoot; Esner, Chang & Boyer, Stuart B. Esner and Shea S. Murphy for Plaintiff and Appellant. Michael C. Ghizzoni, County Counsel, and Julius Abanise, Deputy County Counsel, for Defendant, Cross-defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2014-00762342) OPINION Appeal from a judgment of the Superior Court of Orange County, Linda S. Marks, Judge. Reversed. Law Offices of David C. Werner and David C. Werner for Defendant, Cross-complainant and Appellant. Adamson Ahdoot, Alan A. Ahdoot; Esner, Chang & Boyer, Stuart B. Esner and Shea S. Murphy for Plaintiff and Appellant. Michael C. Ghizzoni, County Counsel, and Julius Abanise, Deputy County Counsel, for Defendant, Cross-defendant and Respondent.
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INTRODUCTION
Matthew Delgado, a deputy of the Santa Barbara Sheriff's Department, caused an automobile accident, injuring Darren G. Flath. At the time of the accident Delgado was not on duty as a deputy sheriff, but was driving a vehicle owned by Santa Barbara County (the County). Delgado was attending a training conference in another county and was driving from a personal event back to the residence at which he was staying when the accident occurred.
The trial court granted summary judgment in favor of the County and against Flath and Delgado on the ground Delgado was not acting within the scope of his employment at the time the accident occurred, and the doctrine of respondeat superior therefore did not apply.
The evidence does not clearly show Delgado's complete abandonment of the special errand he was performing for the County—namely, his participation in the training session and the attendant actions necessary for his comfort and convenience. Therefore, triable issues of fact exist, and the trial court could not make the determination that Delgado was outside the scope of his employment as a matter of law. Accordingly, we reverse.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
In May 2014, Delgado was a full-time employee of the Santa Barbara Sheriff's Department. Between May 19 and 23, 2014, Delgado attended a week-long, 40-hour training class on traffic collision investigation in Riverside. Because Delgado lived in Santa Barbara County, he arranged to stay at the home of friends in Corona, about 18 miles west of the training class location. Delgado informed the officers in his chain of command that he would be staying in Corona during the training class. Delgado paid the tuition for the training class, and also paid for his expenses during the class.
Delgado's supervisory officers approved Delgado's request to use a County-owned vehicle to travel to and from the training class. It was Delgado's understanding that he could use the County's vehicle to go to and from training, to obtain meals during the week, and to travel home.
During the training week, Delgado was paid his salary for attending the class from 8:00 a.m. to 5:00 p.m. and for 30 minutes each way to commute. Delgado stopped in the morning on the way to class for coffee or to buy necessary supplies for the class on at least two days. Delgado also drove the County-owned vehicle to get lunch daily.
From Monday through Wednesday, after the training class Delgado drove back to the house in Corona in which he was staying; on one occasion he stopped to purchase gasoline. Delgado generally remained at the house in Corona each evening, doing coursework; one night he drove about five miles to get dinner.
After the training class on Thursday, May 22, 2014, Delgado drove the County's vehicle back to the house in Corona, arriving at around 5:30 or 6:00 p.m. At about 8:00 p.m., Delgado drove the vehicle from Corona to a wedding rehearsal barbeque in Yorba Linda, 21 miles west of Corona and 39 miles away from the Riverside training facility. He arrived in Yorba Linda sometime before 9:00 p.m. While there, he did not talk about his work.
Delgado left the barbeque at about 11:00 p.m. He was involved in an accident with Flath while en route from Yorba Linda to Corona. The Santa Barbara Sheriff's Department obtained a copy of the traffic collision report prepared by the Orange County Sheriff's Department, which concluded that Delgado caused the collision.
The Santa Barbara Sheriff's Department suspended Delgado for one day without pay for violating department Policy No. 340.3.6(c): "Substantiated employee record of unsafe or improper driving habits or actions in the course of employment." The notice of the suspension provided to Delgado states that the suspension was due to "on-duty conduct," and that Delgado had caused a traffic collision "in the course of employment."
Delgado's supervisor, Commander Eric Koopmans, prepared the notice, and stated in a declaration that the reference to on-duty conduct in the notice should have referred instead to off-duty conduct because Delgado was considered to be off-duty once he arrived at the house in Corona where he was staying after the training class. Koopmans further stated in his declaration that it was his "personal belief that Deputy Delgado was in the 'course of employment' for disciplinary purposes . . . because the only reason he was in Riverside County to begin with was the training class. I did not consult with the Santa Barbara County Counsel's Office with regard to whether or not Deputy Delgado was in the 'scope of employment' in a legal vicarious liability sense." Koopmans also stated that "[t]he key triggers for Deputy Delgado's discipline were: a) he was driving a County vehicle when the accident happened and b) the Orange County Sheriff's Office concluded that he caused the collision. [¶] . . . Had Deputy Delgado been driving a personal or non-County vehicle at the time of the collision . . . he would not have been suspended."
Flath sued Delgado and the County for negligence. Delgado filed a cross-complaint against the County for defense and indemnification.
The County moved for summary judgment against both Flath and Delgado on the ground that Delgado was not acting within the scope of his employment at the time of the collision. After briefing and a hearing, the trial court granted the motion and entered judgment for the County and against both Flath and Delgado. Flath and Delgado filed separate, timely notices of appeal.
DISCUSSION
We review orders granting summary judgment de novo. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767; Village Nurseries v. Greenbaum (2002) 101 Cal.App.4th 26, 35.) A motion for summary judgment is properly granted if the moving papers establish there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) "'The moving party bears the burden of showing the court that the plaintiff "has not established, and cannot reasonably expect to establish, a prima facie case ... ." [Citation.]' [Citation.] '[O]nce a moving defendant has "shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established," the burden shifts to the plaintiff to show the existence of a triable issue; to meet that burden, the plaintiff "may not rely upon the mere allegations or denials of its pleadings . . . but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action . . . ."'" (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 274.) We "'"liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party."'" (Hughes v. Pair (2009) 46 Cal.4th 1035, 1039.)
Under the doctrine of respondeat superior, "'an employer is vicariously liable for the tort of [an] employee[] committed within the scope of employment.'" (Hartline v. Kaiser Foundation Hospitals (2005) 132 Cal.App.4th 458, 465.) Under the going and coming rule, "an employee is not regarded as acting within the scope of employment while going to or coming from the workplace." (Baptist v. Robinson (2006) 143 Cal.App.4th 151, 162.) An exception to the going and coming rule applies when the employee is on a special errand for the employer. (Ducey v. Argo Sales Co. (1979) 25 Cal.3d 707, 722.) "The special-errand exception to the going-and-coming rule is stated as follows: 'If the employee is not simply on his way from his home to his normal place of work or returning from said place to his home for his own purpose, but is coming from his home or returning to it on a special errand either as part of his regular duties or at a specific order or request of his employer, the employee is considered to be in the scope of his employment from the time that he starts on the errand until he has returned or until he deviates therefrom for personal reasons.'" (Felix v. Asai (1987) 192 Cal.App.3d 926, 931.)
The special errand exception applies during the entirety of the errand (Felix v. Asai, supra, 192 Cal.App.3d at pp. 931-932), "unless [the employee] deviates from the errand in such a material manner as to constitute a departure from the course of employment" (Kephart v. Genuity, Inc. (2006) 136 Cal.App.4th 280, 292). "To constitute an abandonment, however, the deviation or departure from the employer's business to pursue a personal errand must be substantial and complete. [Citation.] A mere deviation for personal reasons will be insufficient. Where the employee may be deemed to be pursuing a business errand and a personal objective simultaneously, he will still be acting within the scope of his employment." (Felix v. Asai, supra, 192 Cal.App.3d at p. 932.)
"In determining whether an employee has departed from the course and scope of employment, a variety of factors must be considered and weighed, including the intent of the employee; the nature, time and place of the employee's conduct; the work the employee was hired to do; the incidental acts the employer should reasonably expect the employee to do; the amount of freedom allowed to the employee in performing his or her duties; and the amount of time consumed in the personal activity." (Kephart v. Genuity, Inc., supra, 136 Cal.App.4th at p. 292; see Loper v. Morrison (1944) 23 Cal.2d 600, 605-606.) "All of the relevant circumstances must be considered and weighed in relation to one another." (Trejo v. Maciel (1966) 239 Cal.App.2d 487, 494; see Loper v. Morrison, supra, 23 Cal.2d at p. 605; Meyer v. Blackman (1963) 59 Cal.2d 668, 675.) "While the question of whether an employee has departed from his special errand is normally one of fact for the jury, where the evidence clearly shows a complete abandonment, the court may make the determination that the employee is outside the scope of his employment as a matter of law." (Felix v. Asai, supra, 192 Cal.App.3d at p. 933, citing Loper v. Morrison, supra, 23 Cal.2d at p. 605.)
Delgado was on a special errand for the County while attending the training class. (Jeewarat v. Warner Bros. Entertainment, Inc. (2009) 177 Cal.App.4th 427, 436.) To determine whether Delgado's driving to a private party in the County-owned vehicle was a departure from his special errand and, if so, whether it was a complete abandonment as a matter of law, we begin by reviewing how other courts have analyzed similar and not-so-similar facts.
In Felix v. Asai, supra, 192 Cal.App.3d at page 929, the employee, Troxelle, was sent on a special errand by his employer, H & H Appliances, to make a delivery at the post office on his way home from work. After making a stop at the post office, the employee did not go home, but instead drove to his parents' home with the intention of joining them for dinner. (Id. at p. 930.) On the way to his parents' home, the employee was involved in an automobile accident. (Id. at pp. 929-930.) The appellate court noted that, had the employee proceeded to his own home after stopping at the post office, he would have been on a special errand for the employer from the time he left his business location until he arrived home. (Id. at p. 933.)
"The pivotal question in this case, then, is whether Troxelle's clear and undisputed intent to go directly to his parents' home in Atwater from the post office constituted a complete abandonment of his employer's business. In our view, it did. Had Troxelle's parents lived in a place equally distant but at a location that would have caused Troxelle to drive from the post office in a direction away from both H & H Appliances and Troxelle's apartment, we doubt it would be argued seriously that Troxelle was still engaged in a special errand or on his employer's business after leaving the post office bound for his parents' home. So long as Troxelle intended to proceed directly to his parents' home, bypassing his own apartment on Loughborough Drive, we can see no logical or public policy reason for a different result where the location of the parents' home takes him in a direction leading back toward the employer's place of business, or toward Troxelle's own apartment, for that matter. In either case, once he has delivered the mail and leaves the post office intending to drive directly to his parents' home, he has completed his employer's business and is pursuing a purely personal objective. On the facts of this case, we hold that prior to the accident in which plaintiff, John Felix, was injured, Troxelle had completed his special errand for H & H Appliances, had completely abandoned his employer's business, was pursuing a purely personal objective, and was not in the scope of his employment at the time of the accident. Summary judgment in favor of H & H Appliances, therefore, was properly granted by the trial court." (Felix v. Asai, supra, 192 Cal.App.3d at pp. 933-934.)
In O'Connor v. McDonald's Restaurants (1990) 220 Cal.App.3d 25, 28, several McDonald's employees, including Evans, voluntarily cleaned up the playground area of the San Ysidro restaurant. Afterward, they went to the home of one of the employees and "talked shop and socialized" for several hours. (Ibid.) While later driving to his own home, employee Evans was involved in an automobile versus motorcycle accident. (Ibid.) The trial court granted summary judgment in favor of McDonald's, and against a finding of respondeat superior, concluding Evans's attendance at the social gathering at one employee's house "constituted a complete departure from a special errand for McDonald's (a frolic of his own) rather than a mere deviation (a detour)." (Id. at p. 30.) In reversing, the appellate court analyzed each of the factors identified, ante, and ultimately determined "the evidence does not clearly show complete abandonment. Instead, the evidence raises triable issues on the factors bearing on whether Evans completely abandoned the special errand in favor of pursuing a personal objective." (Ibid.)
Evidence on which the appellate court relied included McDonald's emphasis on dedication, employee initiative and involvement in problem solving, "'family' spirit and teamwork"; the focus during the gathering at the other employee's home on discussions regarding work and work-related issues; the fact that Evans was at the time "training to become a manager and was expected to show initiative in his work to be worthy of future promotion"; and that Evans was given great latitude in the performance of his work, and was not paid for the voluntary work performed at the San Ysidro location that evening. (O'Connor v. McDonald's Restaurants, supra, 220 Cal.App.3d at pp. 30-33.) The testimony of Evans's supervisor that she had no knowledge of the gathering at the employee's house after the clean-up was relevant, but was insufficient as against the weight of the other evidence. (Id. at p. 32.)
In Lazar v. Thermal Equipment Corp. (1983) 148 Cal.App.3d 458, 460, the court concluded the accident occurred while the employee was on a special errand for the employer. The employee drove a company vehicle to his home so he could respond to emergency calls from customers after hours, making the special errand rule applicable. (Id. at p. 461.) The accident, however, occurred while the employee was shopping for a personal item at a store that was located in the opposite direction of his home, vis-a-vis his workplace. (Id. at pp. 460-461.)
"The evidence, then, leads ineluctably to the conclusion that [the employee]'s errand was a minor deviation from his employer's business. While the specific act was one 'strictly personal' to [the employee], it was 'necessary to his convenience'. . . . Here, it would have been unreasonable and inconvenient for [the employee] to drive his truck home, stop there, then return to purchase the needed item, passing work on the way. The decision to stop to buy the item on the way home was one reasonably necessary to [the employee]'s comfort and convenience. For this reason the detour must be considered a minor deviation. [¶] . . . [¶]
"The detour was foreseeable for much the same reason. While a decision to stop at a party, or a bar, or to begin a vacation, might not have been foreseeable, we can think of no conduct more predictable than an employee's stopping at a store to purchase a few items on the way home. Where, as here, the trip home is made for the benefit of the employer, in the employer's vehicle, accidents occurring during such minor and foreseeable deviations become part of the 'inevitable toll of a lawful enterprise.'" (Lazar v. Thermal Equipment Corp., supra, 148 Cal.App.3d at p. 466.)
With the foregoing analyses in mind, we turn to the facts of this case and how they play into the relevant factors.
We omit any discussion of the work the employee was hired to do, and the amount of freedom allowed to the employee in performing his duties, as those factors are irrelevant in light of the facts of this case.
The employee's intent.
Delgado was looking for a way to get a meal without spending too much money or imposing on his hosts. Delgado was authorized to use the County-owned vehicle to obtain meals during the week, in addition to driving to and from the training class, and driving home after the conclusion of the class.
It was reasonable for Delgado to use the County-owned vehicle to travel to the event in Yorba Linda as he did not have a private vehicle while attending the training class. And Delgado was using the County-owned vehicle because he was personally paying for or arranging for his tuition, food, and lodging.
The nature, time and place of the employee's conduct.
Significantly, Delgado went back to the house at which he was staying and remained there for at least two hours before departing for the event in Yorba Linda. The gathering was farther from the Corona residence than was the training class, but only by two or three miles. Eating dinner clearly is reasonably necessary for an employee's comfort and convenience during an out-of-town training session, and the only means for Delgado to purchase dinner was to use the County-owned vehicle.
The incidental acts the employer should reasonably expect the employee to do.
The County reasonably expected Delgado to obtain food during the week-long training session. Of particular significance in our analysis is the discipline imposed on Delgado by the County due to what it described as Delgado's "on-duty conduct" that was "in the course of employment." While Delgado's supervisor later attempted to downplay the legal significance of this language, Delgado's discipline was never revoked, and the written notice of his suspension was not corrected.
Delgado's supervisors believed it was reasonable for Delgado to drive in the vehicle to the event in Yorba Linda. Delgado's direct supervisor testified the trip was reasonable, and that Delgado did not need the supervisor's permission to go to the event. A lieutenant from the County's human resources department stated in an e-mail after the accident that he had previously approved other employees attending personal events like the event Delgado attended "if it is within reason."
The amount of time consumed in the personal activity.
Delgado left Corona at about 8:00 p.m., and arrived in Yorba Linda before 9:00 p.m. He then left the gathering at about 11:00 p.m. The gathering had no connection to Delgado's employment or training class. Delgado was paid for the period from 7:30 a.m. to 5:30 p.m. that day. The accident occurred well outside the time for the training class and the time allotted for commuting to and from the training class.
We conclude the evidence, when considered as a whole, does not so clearly show an abandonment of Delgado's special errand that the trial court could determine as a matter of law that he was outside the scope of his employment at the time of the accident.
The authorities on which the County primarily relied at oral argument do not affect our conclusion. In Sunderland v. Lockheed Martin Aeronautical Systems Support Co. (2005) 130 Cal.App.4th 1, 8, the appellate court concluded that the "'commercial traveler rule'" applicable in workers' compensation cases did not apply to expand the definition of "'scope of employment'" under the respondeat superior doctrine. The appellate court in Halliburton Energy Services, Inc. v. Department of Transportation (2013) 220 Cal.App.4th 87, affirmed summary judgment on the ground the employee was not acting within the scope of his employment at the time of the accident. In that case, the employee was driving a company-owned vehicle on a purely personal errand, about 120 miles from his worksite, and the entire trip was a substantial departure from the employee's job duties. (Id. at p. 95.) In Inouye v. County of Los Angeles (1994) 30 Cal.App.4th 278, 280, the appellate court held that a county's policy that off-duty safety police officers are not engaged in the performance of their duties could not "insulate the County from respondeat superior liability for the alleged wrongful conduct of an off-duty safety police officer in the course of making an arrest."
DISPOSITION
The judgment is reversed. Appellant to recover costs on appeal.
FYBEL, J. WE CONCUR: O'LEARY, P. J. IKOLA, J.