Filed 11/15/19 Contreras v. Molthen Chiropractic CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(San Joaquin)

—-

GUADALUPE CONTRERAS, as Successor in Interest, etc.,

Plaintiff and Appellant,

v.

MOLTHEN CHIROPRACTIC et al.,

Defendants and Respondents.

C085713

(Super. Ct. Nos. 39201500327320CUPASTK, STKCVUAT20150006346)

Guadalupe Contreras (plaintiff) appeals from a judgment entered in favor of Molthen Chiropractic and John Carl Molthen (defendants) after the trial court granted defendants’ summary judgment motion. The trial court concluded no triable issue of material fact existed, and defendants were entitled to judgment as a matter of law, with respect to plaintiff’s wrongful death lawsuit. The lawsuit alleged defendants’ employee, Michelle Lee, negligently caused a collision between Lee’s car and another vehicle driven by plaintiff’s son, Gustavo Contreras, who died as a result of the collision. Defendants’ alleged liability was based on a theory of respondeat superior. The trial court concluded Lee was not acting within the scope of her employment at the time she engaged in the conduct alleged to have caused Contreras’s death. We agree and affirm.

BACKGROUND

In accordance with the standard of review, we recite the facts in a light favorable to plaintiff as the losing party. (See Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.)

Lee worked for Molthen as a receptionist at Molthen Chiropractic for about three years, between 2013 and 2016. Molthen considered Lee to be a friend in addition to being his employee. They went out to lunch together once or twice a week, consuming alcohol during at least one of those lunch outings per week. Molthen often paid for these lunches, but Lee also paid from time to time.

The fatal collision giving rise to this lawsuit occurred on Friday, October 24, 2014. Lee was not working that day, having previously arranged to have the day off. That morning, Lee drove a friend to a court date, after which she called Molthen on his cell phone and asked if he wanted to join them for lunch. Molthen agreed. Around noon, Lee and her friend arrived at the chiropractic office. Lee volunteered to drive the threesome to the restaurant in her car.

At the restaurant, Molthen, Lee, and Lee’s friend had lunch at the bar. They also consumed alcohol. Lee had at least two glasses of white wine. Molthen had three mixed drinks. Molthen paid for the lunch and drinks with his personal credit card.

After lunch, as Lee drove the threesome back to the chiropractic office to drop off Molthen, Lee’s car struck another vehicle, killing the driver of that vehicle, Contreras. Blood taken from Lee about an hour and a half after the collision revealed a blood alcohol content of 0.12 percent.

Plaintiff filed a wrongful death lawsuit against Lee, Molthen, and Molthen Chiropractic asserting causes of action for negligence and negligence per se. As mentioned, the theory of liability as to the defendants in this appeal, Molthen and Molthen Chiropractic, was respondeat superior.

Defendants moved for summary judgment arguing the foregoing undisputed facts established as a matter of law that Lee, “at the time of the subject accident, . . . was not acting within the course and scope of her employment with [Molthen and Molthen Chiropractic].” The trial court agreed and granted the motion. Judgment was thereafter entered in favor of defendants. This appeal followed.

DISCUSSION

I

Summary Judgment Principles

“A trial court properly grants summary judgment where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) We review the trial court’s decision de novo, considering all of the evidence the parties offered in connection with the motion (except that which the court properly excluded) and the uncontradicted inferences the evidence reasonably supports. [Citation.] In the trial court, once 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 . . . .’ [Citations.]” (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476-477.)

We also note the ultimate burden of persuasion “remains with the party moving for summary judgment.” (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1002-1003; Code Civ. Proc., § 437c, subd. (c).) Thus, a defendant moving for summary judgment “bears the burden of persuasion that ‘one or more elements of’ the ‘cause of action’ in question ‘cannot be established,’ or that ‘there is a complete defense’ thereto. [Citation.]” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; Code Civ. Proc., § 437c, subd. (o)(2).)

II

Analysis

Plaintiff contends the trial court erred in concluding defendants carried their burden of establishing the nonexistence of triable issues of material fact concerning whether or not Lee was acting within the scope of employment when she drank alcohol while at lunch with Molthen on her day off and then drove him back to the office. We are not persuaded.

“Under the doctrine of respondeat superior, an employer is vicariously liable for the tortious conduct of its employees within the scope of their employment. [Citation.] ‘ “[T]he modern justification for vicarious liability is a rule of policy, a deliberate allocation of a risk. [¶] The losses caused by the torts of employees, which as a practical matter are sure to occur in the conduct of the employer’s enterprise, are placed upon that enterprise itself, as a required cost of doing business.” ’ [Citation.] The principal justification for the application of the doctrine of respondeat superior is that the employer may spread the risk through insurance and carry the expense as part of its costs of doing business. [Citation.]” (Morales-Simental v. Genentech, Inc. (2017) 16 Cal.App.5th 445, 451-452 (Morales-Simental).)

“The plaintiff bears the burden of proving that the employee’s tortious act was committed within the scope of employment. [Citation.] ‘Ordinarily, the determination whether an employee has acted within the scope of employment presents a question of fact; it becomes a question of law, however, when “the facts are undisputed and no conflicting inferences are possible.” ’ [Citation.]” (Purton v. Marriott International, Inc. (2013) 218 Cal.App.4th 499, 505 (Purton).) As we explain below, the dispositive facts bringing Lee’s negligent conduct outside the scope of employment as a matter of law are undisputed.

“In California, the scope of employment has been interpreted broadly under the respondeat superior doctrine. For example, ‘[t]he fact that an employee is not engaged in the ultimate object of his [or her] employment at the time of [the] wrongful act does not preclude attribution of liability to an employer.’ [Citation.] Thus, acts necessary to the comfort, convenience, health, and welfare of the employee while at work, though strictly personal and not acts of service, do not take the employee outside the scope of employment. [Citation.] Moreover, ‘ “where the employee is combining his [or her] own business with that of [the] employer, or attending to both at substantially the same time, no nice inquiry will be made as to which business [the employee] was actually engaged in at the time of injury, unless it clearly appears that neither directly nor indirectly could [the employee] have been serving [the] employer.” [Citations.]’ [Citation.]” (Farmers Ins. Group v. County of Santa Clara (1995) 11 Cal.4th 992, 1004; Morales-Simental, supra, 16 Cal.App.5th at p. 452.)

For example, in McCarty v. Workmen’s Comp. Appeals Bd. (1974) 12 Cal.3d 677 (McCarty), our Supreme Court stated: “Employee social and recreational activity on the company premises, endorsed with the express or implied permission of the employer, falls within the course of employment if the ‘activity was conceivably of some benefit to the employer. . . .’ [Citations.]” (Id. at pp. 681-682.) There, an employee was killed when he drove his car into a railroad signal pole after drinking heavily at a company holiday party. (Id. at p. 680.) The court held the employee’s drinking at the party occurred within the course of employment because the owners of the company, “by permitting recurrent drinking parties on the premises, and by routinely using company accounts and funds to purchase the intoxicants, demonstrated that they considered these gatherings to be company activities. . . . [S]uch gatherings served both to foster company camaraderie, and to provide an occasion for the discussion of company business.” (Id. at p. 682.) Thus, employer authorization of the drinking party and conceivable benefit to the company combined to result in the court concluding, “employee attendance falls within the scope of employment.” (Ibid.)

Moreover, the McCarty court also indicated the result would have been the same absent any benefit to the company because such drinking parties were “a customary incident of the employment relationship.” (McCarty, supra, 12 Cal.3d 677, citing Winter v. Industrial Accident Com. (1954) 129 Cal.App.2d 174, 178 [golf caddy employee of golf club injured playing golf at the club on his day off; injury occurred in the course of employment because playing golf during off time was a customary incident of employment as a caddy at the club]; see also Reinert v. Industrial Accident Com. (1956) 46 Cal.2d 349, 353-355 [Girl Scout camp counselor injured riding a horse during off time; injury occurred in the course of employment for same reason.)

Similarly, in Purton, supra, 218 Cal.App.4th 499, our colleagues at the Fourth Appellate District reversed the trial court’s grant of summary judgment in favor of an employer (Marriott) where an employee (Landri) became intoxicated at a company holiday party held at one of Marriott’s hotels and was later involved in a fatal car crash. (Id. at pp. 502-503.) Landri did not work on the day of the party, drank a beer and one shot of whiskey before the party, and brought a flask of whiskey to the party, refilling it at least once while at the party with the assistance of the general manager, who was tending bar at the party and refilled the flask with whiskey from the hotel’s liquor stock. (Id. at pp. 503, 509.) Applying the rule set forth in McCarty, supra, 12 Cal.3d 677, i.e., “respondeat superior liability attaches if the activities ‘that cause[d] the employee to become an instrumentality of danger to others’ were undertaken with the employer’s permission and were of some benefit to the employer or, in the absence of proof of benefit, the activities constituted a customary incident of employment” (Purton at p. 509), the court explained the evidence was sufficient to allow a trier of fact to determine “the Hotel provided alcohol and permitted the consumption of alcohol brought to the party by Landri” and “the party and drinking of alcoholic beverages were not only of a conceivable benefit to Marriott, but were also a customary incident to the employment relationship” because “Marriott held the party as a ‘thank you’ for its employees” and “the purpose of the party was ‘[c]elebration, employee appreciation, holiday spirit, [and] team building.’ Thus, a trier of fact could conclude that the party and drinking of alcoholic beverages benefitted Marriott by improving employee morale and furthering employer-employee relations.” (Id. at pp. 509-510; see also Childers v. Shasta Livestock Auction Yard, Inc. (1987) 190 Cal.App.3d 792, 798 [“where an employee consumes alcohol in the scope of his or her employment, the employer is liable for injuries proximately caused to members of the public by the consumption of alcohol”].)

Plaintiff argues that under McCarty, supra, 12 Cal.3d 677 and Purton, supra, 218 Cal.App.4th 499, “at least a triable issue of fact exists as to whether Lee was within the course and scope of her employment with Molthen when she consumed the alcohol while at lunch with Molthen.”

She is mistaken. The employees in McCarty, supra, 12 Cal.3d 677 and Purton, supra, 218 Cal.App.4th 499, while not engaged in any work at their respective holiday parties, were at a company party, drinking alcohol supplied by their employers in a setting designed to foster camaraderie, improve morale, and further employer-employee relations. Here, in sharp contrast, there is no evidence from which an inference could be drawn that the lunch at issue in this case was a company lunch with similar conceivable benefits flowing to Molthen Chiropractic. Instead, the undisputed evidence establishes Lee invited her boss, who was also a friend, to join her and another friend for lunch on her day off. As the trial court correctly concluded, this was a purely “social lunch.”

Nevertheless, plaintiff argues the fact that Molthen gave Lee permission to drink alcohol and paid for the drinks on this occasion, coupled with the fact that he routinely had lunch with Lee on work days during which he also gave her permission to drink and paid for the drinks, gives rise to an inference that drinking alcohol at lunch was “a customary incident of Lee’s employment.” Not so. First, while we express no opinion as to whether Lee’s consumption of alcohol would have occurred within the scope of employment had she been working on the day of the collision, we do note that because she was not working that day, Molthen was in no position to give or withhold permission to drink wine with her lunch. Second, while Molthen paid the bill, he did so with his personal credit card. This is markedly different from the situation in which a company holds a holiday party for its employees and supplies alcohol for them to enjoy as a thank you for their service. In the latter situation, the consumption of alcohol is incident to, i.e., “[d]ependent upon, subordinate to, arising out of, or otherwise connected with” the employment. (Black’s Law Dict. (8th ed. 2004) p. 777, col. 1.) In contrast, here, Lee invited Molthen to lunch with her and another friend. The fact that Molthen paid the bill does not make this lunch analogous to a drinking party hosted by Molthen Chiropractic for its employees. And while plaintiff objects that Molthen did not remember whether or not he had a company credit card at the time, that at best makes Molthen’s act of paying for the lunch a wash. It does not, as plaintiff argues, raise a reasonable inference the lunch was incident to the employment relationship rather than purely social.

Plaintiff also argues the McCarty test is satisfied because “Lee was providing Molthen a benefit, driving him back to the office, when she struck and killed Gustavo Contreras.” But in McCarty, supra, 12 Cal.3d 677 and Purton, supra, 218 Cal.App.4th 499, the question was whether or not the party at which the drinking occurred provided a conceivable benefit to the employers in those cases. This is because there was no dispute in those cases that the fatal collision occurred outside the scope of employment, i.e., while driving after the party. “Under the going and coming rule, . . . an employee commuting to or from work is typically outside the scope of employment, and the employer is not liable for the employee’s torts.” (Morales-Simental, supra, 16 Cal.App.5th at p. 452.) Nevertheless, because the consumption of alcohol occurred in the scope of employment in McCarty and Purton, and because that consumption of alcohol proximately resulted in the loss of life, the going and coming rule did not preclude compensation. (McCarty, supra, 12 Cal.3d at p. 681; Purton, supra, 218 Cal.App.4th at p. 503 [“an employer may be found liable for its employee’s torts as long as the proximate cause of the injury (here, alcohol consumption) occurred within the scope of employment”].) Thus, the question in these cases was not whether the driving conceivably benefitted the employer, but whether the drinking party had such a benefit.

Here, on these facts, we conclude the lunch outing to which Lee invited her boss on her day off of work did not conceivably benefit Molthen Chiropractic. Nor does the fact Lee drove to and from that lunch make the lunch itself beneficial to the business. We hold respondeat superior liability cannot arise out of Lee’s consumption of alcohol at the lunch with Molthen and her other friend on the day of the fatal collision.

Finally, we also reject plaintiff’s argument that the drive from lunch back to the office to drop off Molthen falls within the “special errand” exception to the going and coming rule. Under this exception, “an employee is within the scope of his [or her] employment while performing an errand either as part of [the employee’s] regular duties or at the specific order or request of [the] employer.” (Morales-Simental, supra, 16 Cal.App.5th at p. 452.) As plaintiff accurately observes, “included [in this exception] are errands that incidentally or indirectly benefit the employer.” (Ibid.) Plaintiff argues, “a jury could reasonably conclude that Molthen at the very least incidentally benefitted from Lee driving him” back to the office after lunch. Assuming, without deciding, that Molthen benefitted from the ride back to the office, there is no evidence supporting a reasonable inference either that providing Molthen with transportation was a part of Lee’s routine duties or that Molthen specifically ordered or requested that Lee drive him to lunch or back to the office afterwards. Instead, the undisputed evidence establishes Lee volunteered to drive. The special errand exception does not apply on these facts. (See Caldwell v. A.R.B., Inc. (1986) 176 Cal.App.3d 1028, 1036-1038 [special errand exception did not apply where an employee gave another employee a ride home because there was no evidence the employer specifically ordered or requested the ride be given].)

DISPOSITION

The judgment is affirmed. Defendants Molthen Chiropractic and John Carl Molthen are entitled to costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)

/s/

HOCH, J.

We concur:

/s/

BUTZ, Acting P. J.

/s/

DUARTE, J.