Opinion
A121718
3-2-2009
MATTHEW HALEY, Plaintiff and Appellant, v. LANDSCAPE MAINTENANCE OF AMERICA et al., Defendants and Respondents.
Not to be Published in Official Reports
I. INTRODUCTION
Plaintiff Matthew Haley (Haley) seeks damages for injuries sustained in a collision with a truck driven by Juan Carlos Hernandez (Juan Carlos), an employee of Landscape Maintenance of America, a California corporation doing business as Green Vista Landscape (Green Vista), which firm owned the truck. Haley initially named as defendants Juan Carlos and Green Vista, but later added Juan Carloss father, Adolfo Hernandez (Adolfo), a Green Vista supervisor. Haley sued on theories of respondeat superior and negligent entrustment. He appeals after summary judgment was granted to those defendants for reasons that Juan Carlos was not acting within the scope of employment for purposes of respondeat superior liability, and had not been entrusted with the truck for purposes of negligent entrustment. We affirm.
Because there are two Hernandez defendants, plus a third Hernandez mentioned in the facts, we refer to all Hernandezes by their given names.
Moving defendants suggested in their moving papers that Haley had taken the default of driver Juan Carlos, yet our record does not show whether he remains a party below. Haleys civil case information statement suggests that the case may remain pending against Juan Carlos, but if so, the judgment is nevertheless reviewable as disposing of all issues between Haley and these defendants. (Buckaloo v. Johnson (1975) 14 Cal.3d 815, 821, fn. 3 [demurrer]; Walker v. Stauffer Chemical Corp. (1971) 19 Cal.App.3d 669, 671 [summary judgment].)
II. FACTUAL AND PROCEDURAL BACKGROUND
Haley alleged respondeat superior liability against Green Vista for negligence by its employee Juan Carlos in the source and scope of employment, and against Green Vista and Adolfo for negligent entrustment of the truck to Juan Carlos. The parties showings on summary judgment revealed that facts were disputed more for their legal effect and inferential worth than for their truth.
Green Vista is a landscaping business based in offices in the Town of Loomis. Its owners are Ted Decker and his father Anthony Decker, and the company does landscape maintenance throughout Northern California. Adolfo, son Juan Carlos (age 19), and Adolfos brother Luis Hernandez (Juan Carloss uncle) all worked for Green Vista on the date of the accident, Monday, January 16, 2006.
Adolfo, his wife and four children (Juan Carlos being the eldest) lived in the town of Sonoma, in an apartment where Adolfo had lived for 18 years. Adolfo was a crew chief foreman for Green Vista, responsible for taking his crew workers to job sites and directing their work. He was also in charge of a Green Vista pickup truck (Chevrolet Silverado) he had driven for two years, plus equipment he carried in it that included blowers, mowers, weed whackers, shovels, pipes and fertilizer. He was allowed to take the truck home but not to drive it for personal use, and he used it only for work. At night, he parked it at his house, securing the equipment by locking or storing it there. Luis and Juan Carlos rode in the truck with him, and their usual commute, depending on job location, started between 5:30 and 6:30 a.m. The truck was for Adolfos use, but any licensed driver approved by the company insurance could also drive it. Juan Carlos, being neither licensed nor approved for the insurance; was not authorized to drive it.
Luis was responsible for crew members under him. He lived a 10-minute walk or two-minute drive from Adolfos house in Sonoma. When Adolfo took a month-long trip to Mexico with the family starting in mid-December 2005, Luis assumed control of the truck and equipment. Juan Carlos stayed behind, and while Luis did not stay with him at the house, he came over each work day, loaded the equipment and drove them to work, leaving the truck parked and secured at Adolfos house each night. He had no room for the truck at his own residence, and he sometimes left the truck keys at Adolfos as well, either walking home or getting a ride from his wife or brother-in-law.
Juan Carlos was not left alone in the house. Adolfo had "an older person," a friend named Efrain, stay there at night and take care of the house.
Juan Carlos worked at a hotel and, for four months before the accident here, also as a laborer for Green Vista, his father having taken him there for an interview. Juan Carlos did not have, and never had, a drivers license. He had never driven either of two family vehicles, a green Chevrolet van and a Suburban, and had never driven the Green Vista truck. But two years earlier, at age 17, he had once driven a former family vehicle, a red Ford Concourse, to visit a girlfriend when he only had permission to go to work. He got a ticket "for one headlight out" on that occasion and never drove another vehicle afterward, until the accident in this case.
The accident occurred around 6:40 a.m. on Monday, January 16, 2006. Adolfo was still on a month-long vacation to Mexico with the family and was on his way back with them in the Suburban. Adolfo and his wife had also taken the keys to the family van. Luis had driven Juan Carlos to a job two days earlier, on Saturday, and had afterward left the truck parked at the house and the keys on a dresser or bureau in the living room (the parents room, according to Juan Carlos). He had also cautioned Juan Carlos at some point: "Dont take the car. Dont go and do anything dumb." Juan Carlos took the keys that morning, "without permission," and, while speeding eastbound on East Bonness Road, in the town of Sonoma, ran a stop sign at Route 116 and broadsided a Ford Explorer driven by Haley, causing a resulting fire that engulfed the Green Vista truck and scorched Haleys Explorer. A preliminary alcohol screening test of Juan Carloss breath showed a blood alcohol content of .094, and he was cited by a police officer for felony drunk-driving-with-injury, running a stop sign, and driving without a license or insurance. Juan Carlos told the officer that he had drunk three cans of Coors Light at 7:00 p.m. the night before, that his brakes failed, and that he was on his way to Oakland.
Juan Carlos thought that they took the family car keys "[j]ust in case I decided to take it." He explained that, ever since high school (in 2002 and 2003), when they noticed that he had moved the van inside the garage (to get "machines" or switch on the lights), his mother in particular was suspicious that he was taking the car "for a joy ride." Thus "she would always take the keys . . . ."
Contrary to the "Oakland" report, Juan Carloss account afterward was that he was not on his way to work, but had gone to a friends house and was returning home where, as prearranged, he was to meet up with Luis, load the truck, and head out to work at some business offices in Oakland, with Luis driving. After Adolfo had returned from vacation, he, Luis and Juan Carlos met at the company offices with Anthony Decker, Ted Decker and others about the accident. Juan reported having only minor injuries and explained that Luis had left the keys and that he had taken them without permission. Luis confirmed this, and Anthony Decker told Adolfo that the insurance company would probably be contacting him and, since Juan Carlos was not registered or covered under the insurance, the truck was "pretty much going to be known as stolen"—taken by Juan Carlos to "joy ride." Juan Carlos was soon fired. Juan Carlos did not recall the truck ever being reported to police as stolen. Adolfo similarly had no recollection of the truck ever being "reported stolen," Decker had no recollection of the truck being so reported to "anyone." There is no testimony that Juan Carlos ever made such a report to anyone. Adolfo had told Ted he would return from vacation in the middle of January and Ted understood that the truck would be kept at Adolfos house.
Juan Carlos testified that, after returning from a movie the night before, he made himself a drink of Bacardi and coke, out of alcohol his friends had left behind at the house a week earlier. More generally, he testified that his father had told him it was stupid for him to drink, at least before age 21, and that he never drank at the house. Once or twice, however, he had come home intoxicated, "mostly on the weekends" and his dad would get home and "see or smell it" on him. Adolfo confirmed that, once in a while, he "saw [Juan Carlos] come home having had drinks." Adolfo had no recollection of Juan Carlos having an accident before this one, or of ever driving a vehicle.
The courts ultimate ruling as to Adolfo incorporated a tentative ruling that he did not own the truck, was on vacation at the time, only arrived home the day of the accident, had not given Juan Carlos permission to drive the truck, and that Juan Carlos admitted taking the vehicle without permission. The ruling as to Green Vista incorporated a tentative ruling that Juan Carlos driving the truck with equipment needed for work was not part of his employment duties, that he had never before driven any vehicle owned by Green Vista, and that Green Vista had entrusted to Adolfo the truck and the duties to oversee employees, the truck and its equipment. Adolfo did not give Juan Carlos permission to use the truck.
III. DISCUSSION
A. Review Standards
A defendants motion for summary judgment (Code Civ. Proc., § 437c) "should be granted if no triable issue exists as to any material fact and the defendant is entitled to a judgment as a matter of law. [Citation.] The burden of persuasion remains with the party moving for summary judgment. [Citation.] When the defendant moves for summary judgment, in those circumstances in which the plaintiff would have the burden of proof by a preponderance of the evidence, the defendant must present evidence that would preclude a reasonable trier of fact from finding that it was more likely than not that the material fact was true [citation], or the defendant must establish that an element of the claim cannot be established, by presenting evidence that the plaintiff `does not possess and cannot reasonably obtain, needed evidence. [Citation.] We review the record and the determination of the trial court de novo. [Citation.]" (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1002-1003.) The trial court, in deciding the motion, rules on any evidentiary objections raised and does not consider evidence "to which objections have been made and sustained" (Code Civ. Proc., § 437c, subd. (c)), but we are directed to no such disputed objections or rulings in this case.
B. Scope of Employment
"Under the doctrine of respondeat superior, an employer may be held vicariously liable for torts committed by an employee within the scope of employment" (Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 208); this being "a departure from the general tort principle that liability is based on fault" (ibid.), "the plaintiff must prove that the employees tortious conduct was committed within the scope of employment" (id. at p. 209). Generally, an employer is not responsible for torts committed by an employee who is going to or coming from work. [Citation.] "The reason for this `going and coming rule is that `the employment relationship is "suspended" from the time the employee leaves until he returns [citation], or that in commuting he is not rendering service to his employer [citation]. [Citations.]" (Tryer v. Ojai Valley School (1992) 9 Cal.App.4th 1476, 1481 (Tryer).) "[E]xceptions will be made to the `going and coming rule where the trip involves an incidental benefit to the employer, not common to commute trips by ordinary members of the work force" (Hinman v. Westinghouse Elec. Co. (1970) 2 Cal.3d 956, 962)— as where employer and employee, by contract, have made the travel time part of the working day (ibid.) or there is a "dual purpose" (or special errand) benefiting both (see 3 Witkin, Summary of Cal. Law (10th ed. 2005) Agency and Employment, § 182, pp. 230-232).
The determination as to whether an employee acted within the scope of employment ordinarily presents a question of fact; but it becomes a question of law when the facts are undisputed and no conflicting inferences are possible. (Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 299; Tryer, supra, 9 Cal.App.4th at p. 1481.)
The court found that Juan Carlos was not driving while in the scope of his employment and, thus, that defendants had negated liability on a theory of respondeat superior. Haley observes that, despite evidence that Juan Carlos was on his way to the Oakland jobsite at the time of the collision (including a statement to the arresting officer), this was subject to dispute given that Juan Carlos also testified in deposition that he "wasnt heading that way" since he "needed to go back to the house" to meet his uncle Luis and head out to the job with Luis. The court, however, properly resolved that doubt in Haleys favor for summary judgment purposes (Avila v. Standard Oil Co. (1985) 167 Cal.App.3d 441, 447-448), assuming that Juan Carlos was headed for work, the sole possible basis for respondeat superior liability. If Juan Carlos was merely commuting to and from his workplace, however, the "coming and going" rule applied.
Haley stresses that this was a company truck with landscaping and gardening tools, equipment and supplies in its bed, but cites no authority that this alone made any difference. There was no evidence that Juan Carlos was being paid for his commute or was on any special errand regarding the truck or its contents. At best, he was on his way to work and thus engaged in activity "common to commute trips by ordinary members of the work force" (Hinman, supra, 2 Cal.3d at p. 962). Indeed, he himself urges that there was no "`frolic-and-detour by Juan Carlos, but rather[,] an employee heading for a landscaping job." As the trial court observed at the hearing, "this does fall within the going and coming rule."
Haley invokes the "required vehicle" exception to the "going and coming" rule because his job required "regular use of a vehicle." But this was not enough, for all such cases "involve employees whose jobs entail the regular use of a vehicle to accomplish the job in contrast to employees who use a vehicle to commute to a definite place of business. (See and compare Richards v. Metropolitan Life Ins. Co. (1941) 19 Cal.2d 236, 242 . . .—concerned an outside insurance sales agent required to use vehicle daily to meet prospects and customers in a territory allocated to him by the company; Smith v. Workmens Comp. App. Bd. (1968) 69 Cal.2d 814, 825 . . .— employer held liable for car accident involving social worker whose job required regular use of vehicle during work hours to visit clients in the field; Hinojosa v. Workmens Comp. Appeal Bd. (1972) 8 Cal.3d 150, 157 . . .—employer held liable for accident involving one of its farm laborers who traveled amongst seven noncontiguous fields as involving `extraordinary transits that vary from the norm—case distinguished its facts from ordinary commutes; Huntsinger v. Glass Containers Corp. (1972) 22 Cal.App.3d 803, 810 . . .— traveling repairmans job entailed extensive use of a truck in field to call on customers.)" (Tryer, supra, 9 Cal.App.4th at pp. 1481-1482.) Tryer found no such exception even though a collision occurred as a school employee commuted between work shifts at two campuses and had to use her car to travel between them. (Id. at pp. 1479-1480.)
Here, the record does not show any special characteristic or capacity of the Green Vista truck that required Juan Carlos to use it, that Juan Carlos was paid for his commute travel or was on a special errand for the company, or that he was even carrying another crew member to the jobsite (but see Anderson v. Pacific Gas & Electric Co. (1993) 14 Cal.App.4th 254, 262-263 [arrangement between coworkers to carpool did not remove case from going-and-coming rule]). Compounding the problem is that he had no license to drive a company truck and had never driven one before. All of Haleys musings about business benefits, responsibilities Juan Carlos might have had, and expectations by Green Vista or Adolfo or Luis, must be filtered through the reality that this was a one-time event unexpected by anyone in the company authorized to use or authorize use of the car. It is exceedingly farfetched to infer that the travel on this occasion was anything more than Juan Carlos driving alone, during his regular commute hours, to a job in a company truck with tools he would need.
Further compounding the problem for Haley is a record undeveloped as to whether the Oakland job was expected to take days, or whether Juan Carlos expected to travel in the truck to other jobsites that day. All we can discern from the evidence is that he was on his way to an office complex where he had evidently worked for Green Vista before. Haley constructs his argument as if Juan Carlos somehow stepped into the shoes of his father, who usually drove the truck and supervised a crew, or the uncle, who exercised the driving authority while the father was away on vacation. However we might characterize Adolfos or Luiss roles as to use of the truck for Green Vista, nothing but conjecture supports a notion that Juan Carlos assumed those roles.
On the showing made, respondeat superior liability was negated and Haley presented no substantial evidence to the contrary.
C. Negligent Entrustment
One who places or entrusts his motor vehicle in the hands of one whom he knows —or from the circumstances is charged with knowing—is incompetent or unfit to drive, may be held liable for an injury inflicted by the use of the vehicle. (Mettelka v. Superior Court (1985) 173 Cal.App.3d 1245, 1248.) This liability does not arise out of the relationship of the parties, but from the act of entrustment of the vehicle, with permission to operate it, to one whose incompetency, inexperience, or recklessness is known or should have been known by the owner. (Ibid.)
Haley argues: "Either [Adolfo and Green Vista] negligently entrusted the [c]ompany vehicle to [Adolfos] brother, Luis, also a [c]ompany employee, who then negligently entrusted the keys to Juan Carlos, or [Adolfo], knowing his sons dangerous proclivities to drink too much alcohol and to use other peoples vehicles to `joyride without their permission, nonetheless failed to take adequate precautions to prevent his son from taking the [c]ompany vehicle, all the while taking those same precautions in securing the safety of his familys personal vehicles."
Of course, this argument about a proclivity for drunken "joyriding" is hyperbole based on a single prior occasion, two years earlier, when 17-year-old Juan Carlos drove a family car to a girlfriends house without permission, and was pulled over for having a headlight out (not evidently for drunk driving). But regardless of his characterizations, Haleys argument suffers from lack of a triable issue of fact whether anyone entrusted the truck to Juan Carlos. Entrustment requires permission, either express or implied from the circumstances (Espe v. Salisbury (1968) 262 Cal.App.2d 621, 624-625; Mucci v. Winter (1951) 103 Cal.App.2d 627, 630-631; Helmuth v. Frame (1941) 46 Cal.App.2d 381, 383; Veh. Code, § 17150), and neither variety appears here. The existence of permissive use is a question of fact, but any inferences of express or implied permission must be reasonable. (Taylor v. Roseville Toyota, Inc. (2006) 138 Cal.App.4th 994, 1004-1005 [Taylor].)
Taking the issue of express permission first, the uncontradicted evidence was that Juan Carlos did not have express permission from Green Vista, Adolfo or Luis to drive the truck. He saw the keys at home on the dresser and took them without permission while his father was out of town. He had never driven the truck before, and his uncle, who was driving it in the fathers absence, had even cautioned him: "Dont take the car. Dont do anything dumb." Haley cannot claim express permission and does not seem to do so on appeal.
On the motion below, however, Haley stressed Juan Carloss deposition testimony that the owners at Green Vista initially told him that, for insurance purposes, since Juan Carlos was neither permitted, registered nor insured to use the truck, they were going to consider the truck as stolen. They never did in fact report it stolen, and Juan Carlos did consistently testify that he simply took it without permission. Haley argued below that, despite the uncontradicted evidence of no permission, a jury should consider the effect of the contemplated insurance ploy on Juan Carloss credibility as to whether he had permission and had driven the truck before. The court considered this, however, and implicitly concluded that it did not reasonably imply what Haley claimed. We agree. First, the insurance story, as related by Juan Carlos, was consistent with lack of permission, since he explained that the false report was designed to conceal the problem that he lacked permission. Second, the ultimately-aborted story arose with the owners, who evidently urged Juan Carlos to go along. Since this plan did not originate with Juan Carlos and evidently was never carried out by him, it had limited impeachment value. The fact that he revealed this story from his employer could readily register as candor and integrity. Third, there was simply no evidence to show a giving of permission or prior driving of the truck, and thus the proposed impeachment still left no contrary evidence to be enhanced. To resist summary judgment, Haley had to show a triable issue of material fact by admissible evidence. (Code Civ. Proc., §§ 437c, subd. (c)-(d).) "The difficulty of proving permission and legal use does not change the law or rules of evidence or liability." (Bradford v. Sargent (1933) 135 Cal.App. 324, 333.)
That leaves implied permission. To imply permission, "it is not necessary that the owner have prior knowledge that the driver intends to use the car [citation], but it must be `under circumstances from which consent to use the car is necessarily implied." (Mucci v. Winter, supra, 103 Cal.App.2d at p. 631.) "Of course, the mere fact of possession of the automobile is not sufficient to establish that its possession was with the owners permission." (Ibid.)
Working against any inference of permission are these facts: Juan Carlos had never driven the truck before, had never been given permission to do so, and had been specifically warned by Luis, who had authority over the truck in Adolfos absence, not to "do anything dumb" like take the truck. It is also clear from Juan Carloss testimony that he did not believe he had permission; rather, he took it "without" permission. Haley highlights facts that Adolfo did not take the truck keys with him on vacation (as he had the keys to the family vehicles), that the keys were left on a dresser in the house, and that Luis left the truck parked at the house when not driving it and did not stay at the house with Juan Carlos. Those additional facts, however, could not reasonably imply permission, even alone, absent evidence that Juan Carlos had previously been allowed or led to believe that he could drive the truck. (See discussion in Mucci v. Winter, supra, 103 Cal.App.2d at pp. 631-632.) It has been said that the relationship of the owner and employee is important and that "a failure to monitor can be a relevant factor for permission" (Taylor, supra, 138 Cal.App.4th at p. 1003), especially "in light of the authority which the law confers on a parent to control a childs actions and the reality that children are apt to consider a parents indifference as tacit permission . . . ." (Id. at p. 1002; Elkington v. California State Automobile Assoc. (1959) 173 Cal.App.2d 338, 344-345.) There is no evidence here, however, of past failure to monitor the trucks use at the house, nor of indifference in its use. Juan Carlos had once driven a family vehicle without permission, but two year prior to this, at age 17, and never again afterward.
Even if Juan Carlos had driven the truck before, the uncles express warning not to do so in this instance would render an inference of implied permission absurd. After all —and to answer Haleys reliance on the truck and keys being left at the house—the truck and keys were apparently always kept at the house. Luis only lived a 10-minute walk, or two-minute drive, from the house and, Juan Carlos explained, "would always leave it there because theres no room where hes living[.]" "[H]e left the truck at [my] home because—he cant fit it anywhere else, so he left the keys there too. So every time he would walk—or get a ride to my house and from there we started just loading up and head to work." Adolfo added that he (Adolfo) was forbidden to use the truck for personal use, and owner Ted Decker, too, said he understood that the truck was kept at Adolfos home, including while Adolfo was away.
Haley reasons that Adolfo, having taken the keys to the familys own vehicles with him to Mexico, "did not take the same precautions with the [c]ompanys vehicle, which [Green Vista] had entrusted to him for convenience in doing his job as crew chief. [Adolfos] lack of due care with the [c]ompany vehicle, when measured against his due care for his own family vehicles raises a triable issue of material fact with regard to the issue of negligent entrustment. Clearly, [Adolfo], and by vicarious liability, [Green Vista], did not exercise the same level of due care with the [c]ompany vehicle they did for their own vehicle." We reject this as confusing negligent care of the keys with negligent entrustment of the truck. Absent evidence or a reasonable inference that anyone permitted Juan Carlos with the truck, any negligence in allowing the keys to remain where Juan Carlos might see them would be, at best, negligence in preventing him from taking the truck without permission. "Thus, a person who leaves a car on the street with the key in the ignition or with the ignition and car unlocked is negligent in so doing. He is presumed to know that such a condition of his car is almost an invitation to a thief to take it, and that it is liable to be taken, yet no one would claim that when so taken, it is with the owners permission." (Mucci v. Winter, supra, 103 Cal.App.2d at pp. 630-631.) Liability "requires `permission, express or implied. Carelessness is not enough." (Id. at p. 630, quoting former Veh. Code, § 402, now Veh. Code, § 17150.)
We independently agree with the superior court that no triable issue of fact existed as to express or implied permission, thus defeating the theory of negligent entrustment.
IV. DISPOSITION
The judgment is affirmed.
We concur:
Kline, P.J.
Lambden, J.