Moseley v. Gilfillian

Filed 12/1/05 Moseley v. Gilfillian CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(El Dorado)

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FELICIA MOSELEY, Plaintiff and Appellant, v. JAMES GILFILLIAN et al., Defendants and Respondents.

C048635 (Super. Ct. No. PC20030175)

Thomas Moseley, the son of plaintiff Felicia Moseley,^[1] died after his motorcycle was struck by a truck driven by Mark Dawson. Plaintiff filed a complaint for wrongful death and personal injuries against Dawson. She later joined as defendants James Gilfillian doing business as Nu Star Motors and Nu Star Motors, Inc., alleging that the accident occurred while Dawson was acting within the course and scope of his employment.^[2]

The employer defendants moved for summary judgment, alleging that Dawson was “engaged in his ordinary commute to and from work and was on a personal errand when the accident occurred.”

The trial court granted the employer defendants’ motion and entered judgment against plaintiff, finding Dawson was not acting within the course and scope of his employment and was not on a special errand for defendants when the accident occurred because he was “engaged in the goings and comings from his employment at the end of the workday at the ranch.”

Plaintiff appeals, claiming the trial court erred in granting summary judgment because a triable issue of material fact exists as to whether Dawson was acting within the course and scope of his employment when he made the trip to retrieve the dealership’s keys, during which time the accident occurred. We agree and shall reverse the judgment.

Factual History^[3]

James Gilfillian is the chief executive officer of That’s No Bull, Inc., a company doing business as Nu Star Motors. At the time of the accident, Mark Dawson was employed by Nu Star Motors as a salaried assistant repair shop manager. One of Dawson’s “activities” was keeping possession and control of the keys to the dealership shops and sales locations.

On August 22, 2002, Dawson and fellow Nu Star Motors employees Geoffrey Wood, Mike Polete, and Greg Buchanan were working at a horse ranch in Pleasant Valley owned by Gilfillian. Dawson’s salary from Nu Star Motors covered his work at the ranch.

At lunchtime, Dawson and Polete left the ranch in Polete’s car to get a meal and supplies at a hardware store. Dawson left his key ring, which contained keys to all the Nu Star Motors dealerships, in Polete’s car.

When Dawson finished work at 5:55 p.m., he headed home in his truck. On the road, he realized he did not have his key ring. Dawson felt it necessary to retrieve the keys because he was in a position of responsibility with respect to the keys. He drove toward Nu Star Motors’ repair shop in Shingle Springs, as Polete was the night watchman there and was living in the lower section of the repair shop property. As Dawson was preparing to turn left into a driveway for Nu Star Motors, he heard the engine noise of a motorcycle and then felt the impact of a collision. The driver of the motorcycle, Thomas Moseley, was taken to the hospital and died as a result of his injuries.

Standard of Review

As this court succinctly described, “Summary judgment is properly granted if there is no question of fact and the moving party is entitled to judgment as a matter of law. [Citations.] We construe the moving party’s papers strictly and the opposing party’s papers liberally. [Citation.] The moving party must demonstrate that under no hypothesis is there a material factual issue requiring a trial, whereupon the burden of persuasion shifts to the opposing party to show, by responsive statement and admissible evidence, that triable issues of fact exist. [Citations.]

“However, ‘[f]rom commencement to conclusion, the moving party bears the burden of persuasion that there is no genuine issue of material fact and that [it] is entitled to judgment as a matter of law. . . . There is a genuine issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.’ [Citation.] On appeal, we exercise our independent judgment to determine whether there are no triable issues of material fact and the moving party thus is entitled to judgment as a matter of law.” (Thousand Trails, Inc. v. California Reclamation Dist. No. 17 (2004) 124 Cal.App.4th 450, 457; accord, Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843-857.)

Discussion

“Under the doctrine of respondeat superior, an employer is liable for the torts of his employees committed within the scope of their employment.” (Ducey v. Argo Sales Co. (1979) 25 Cal.3d 707, 721.) “The burden of proof is on the plaintiff to demonstrate that the negligent act was committed within the scope of employment.” (Ibid.) An employee acts within the scope of his employment when he engages in activities incident to his duties or when his misconduct could have been reasonably foreseen by the employer. (Martinez v. Hagopian (1986) 182 Cal.App.3d 1223, 1228.)

Under the “going and coming” rule, an employee going to and coming home from work is “ordinarily considered outside the scope of employment so that the employer is not liable for his torts.” (Hinman v. Westinghouse Elec. Co. (1970) 2 Cal.3d 956, 961.) Under the “‘special errand’” exception to the going and coming rule, however, “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. [Citations.]” (Boynton v. McKales (1956) 139 Cal.App.2d 777, 789.)

Here, the trial court found plaintiff failed to establish a triable issue of material fact regarding whether Dawson was acting within the course and scope of his employment when he was on his way to retrieve the keys because “[t]he evidence presented show[ed] that Dawson was covered by the going[]and[]coming rule.”

We cannot agree with the trial court’s conclusion because the evidence, viewed in the light most favorable to plaintiff, raises a triable issue of fact regarding whether Dawson was on a special errand as part of his regular duties. It is true, as the trial court noted, that Dawson had finished work when he left the ranch to drive home. But it is reasonable to infer from the evidence that part of Dawson’s regular duties was securing the keys to the dealerships. At his deposition, Dawson testified that one of his “activities” as assistant repair shop manager was “keeping possession and control of [the] keys to the dealership shops and sales locations.” He further testified that he felt it necessary to retrieve his key ring, which contained keys to all the Nu Star Motors dealerships, from Polete’s vehicle because of “the position of responsibility [Dawson was] in.” Moreover, he thought it was not “very responsible to have [the keys] in other people’s possession.” Therefore, as a “conscientious employee,” he went to retrieve the keys from Polete, who was living in the lower section of Nu Star Motors’ repair shop property. Based on this evidence, a jury could reasonably determine Dawson was acting within the course and scope of his employment when he went to retrieve the keys.

Furthermore, it is immaterial that the employer defendants had not asked or ordered Dawson to retrieve the keys, a point which defendants raise on appeal. The special errand exception applies when an employee acts either as part of his regular duties or at the specific order or request of his employer. (Munyon v. Ole's, Inc. (1982) 136 Cal.App.3d 697, 703.)

Finally, contrary to defendants’ argument both in the trial court and on appeal, it would not be “unusual, startling, and unfair to place the burden on [the employer defendants] for the accident in this case” under the doctrine of respondeat superior. “One way to determine whether a risk is inherent in, or created by, an enterprise is to ask whether the actual occurrence was a generally foreseeable consequence of the activity.” (Rodgers v. Kemper Constr. Co. (1975) 50 Cal.App.3d 608, 618.) Foreseeability in this context is distinguished from foreseeability as a test for negligence; “‘foreseeability’ as a test for respondeat superior merely means that in the context of the particular enterprise an employee’s conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer’s business. [Citations.]” (Id. at p. 619, italics omitted.)

Applying these principles, we conclude it would not be “unusual, startling, and unfair” to include the loss resulting from Dawson’s conduct among the other costs of the employer defendants’ business. A jury could reasonably determine it was foreseeable that, when an assistant repair shop manager such as Dawson was entrusted with the responsibility of keeping possession and control of the businesses’ keys and those keys were inadvertently misplaced, such an employee would attempt to retrieve those keys.

Disposition

The judgment is reversed. Plaintiff shall recover her costs on appeal. (Cal. Rules of Court, rule 27(a)(1).)

DAVIS , J.

We concur:

SCOTLAND , P.J.

SIMS , J.

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^[1] Felicia Moseley sued in the trial court both individually and “as Successor in Interest to Thomas Moseley, deceased.” For clarification, we will refer to her as plaintiff in this opinion.

^[2] Defendants responded to plaintiff’s complaint as “James [Gilfillian] and That’s No Bull, Inc., dba Nu Star Motors, improperly sued and served as James Gilfillan dba Nustar Motors, and Nustar Motors Incorporated.” These defendants shall be collectively referred to as “the employer defendants.”

^[3] In reviewing the propriety of the summary judgment, we state the facts in the light most favorable to the party opposing the motion, i.e., plaintiff. (County of Los Angeles v. Superior Court (2002) 102 Cal.App.4th 627, 633, fn. 1.)