Filed 1/23/20 Conway v. Nat. Merchandising of America CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

DENISE L. CONWAY et al.,

Plaintiffs and Appellants,

v.

NATIONAL MERCHANDISING OF AMERICA, INC.,

Defendant and Respondent.

E069886

(Super.Ct.No. MCC1400359)

OPINION

APPEAL from the Superior Court of Riverside County. Angel M. Bermudez, Judge. Affirmed.

Steven B. Stevens; Law Offices of Ronald B. Schwartz, Ronald B. Schwartz and Mark J. Spencer for Plaintiffs and Appellants.

Horvitz & Levy, Daniel J. Gonzalez, Emily V. Cuatto; Hartsuyker, Stratman & Williams-Abrego and J. Dean Rice for Defendant and Respondent.

Plaintiffs and appellants Denise L. Conway, Monica V. Kleppinger, Kevin J. Jain, (collectively, the Children) sued defendant and respondent National Merchandising of America, Inc. (National), and others for the wrongful deaths of Amar J. Jain (Father) and Cheryl L. Jain (Mother), who were the Children’s parents. A jury found Christopher Keith Bostic (Bostic) was not acting within the scope of his employment for National at the time of the car crash that caused the deaths of Mother and Father. As a result, National prevailed at trial.

The Children raise three issues on appeal. First, the Children assert the trial court erred by striking their notice of motion for a new trial and notice of motion for a judgment notwithstanding the verdict. Second, the Children assert National’s trial attorney committed misconduct. Third, the Children contend the trial court erred by admitting evidence of Bostic’s criminal convictions. We affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

National’s headquarters are in Georgia. National hired Bostic as a temporary worker, for four days, to clean a closed Staples store in Carlsbad. October 20, 2012, was the first day of Bostic’s work at the closed Staples store. Bostic worked the first four hours of his eight-hour shift on October 20, starting at 8:00 a.m. It was unclear why Bostic left halfway through his shift; it is possible he quit, the job was overstaffed and he was sent home, or he was fired. National’s employees are directed by National to fax or mail their timesheets to National. National does not provide its employees with fax machines. Timesheets were to be submitted in one or two-week intervals.

On October 20, 2012, after leaving work, Bostic went to his apartment in Temecula. Bostic then drove from his apartment to a Postal Annex in Temecula to fax his timesheet to National. Bostic faxed his timesheet, and then intended to drive home. After leaving the Postal Annex, while driving along Rancho California Road, Bostic collided with multiple vehicles. Bostic sideswiped a white BMW, then collided with a blue Audi, proceeded to strike the driver’s side of a black Thunderbird, and hit the back of a red Hyundai. The strike to the Hyundai pushed the Hyundai into the rear of a gray Nissan. A passenger in the Hyundai suffered a broken nose and fractured sternum.

After colliding with the various vehicles, Bostic stopped for “a couple seconds.” Bostic looked dazed. Bostic “then turned around and drove away.” Bostic drove away “fairly fast.” Bostic proceeded westbound on Rancho California Road at a speed of 50 to 80 miles an hour. The speed limit on the road was 40 or 45 miles an hour; Bostic was traveling much faster than the traffic around him.

As Bostic approached the intersection with Jefferson Avenue, he “had this determined look on his face.” There were already cars going through the intersection on Jefferson Avenue when Bostic approached; Bostic had a red light. Bostic did not slow down as he entered the intersection. Bostic “T-boned” Mother’s and Father’s vehicle. Mother and Father were pronounced dead at the crash site. Immediately after the crash at Jefferson Avenue, Bostic “seem[ed] very incoherent. He continually stared out of the front of the vehicle, was very slow to respond to a lot of [law enforcement] questions. His statements were very short. He just appeared dazed and confused.”

In July 2013, an MRI of Bostic’s brain was conducted. It was discovered that he suffered from multiple sclerosis and severe dementia. Based upon the tests, it appeared Bostic had multiple sclerosis for five to 10 years prior to October 20, 2012, and he also suffered from dementia for “a lengthy period of time” prior to October 20, 2012. The dementia associated with multiple sclerosis “is the slowing, a grinding slowness of processing of information.” So a person with multiple sclerosis dementia “may look normal, they may be able to speak and respond,” but the person will have a “slow processing speed, [such as] a lag of seconds or minutes when answering a question.”

The first question given to the jury was whether Bostic was acting within the scope of his employment when he killed Mother and Father. The jury responded, “No,” to that question. As a result, the jury did not answer the other two questions related to economic and non-economic damages. The trial court entered judgment in favor of National.

DISCUSSION

I. TWO POSTJUDGMENT NOTICES

A. PROCEDURAL HISTORY

The jury rendered its verdict on November 17, 2017. The trial court filed the judgment on December 1, 2017. On December 18, the Children filed (1) a notice of intention to move for a new trial; and (2) a notice of motion for a partial judgment notwithstanding the verdict (JNOV). On December 20, on its own motion, the trial court struck the Children’s two notices as untimely. National’s proof of service for its notice of entry of judgment reflects the notice of entry of judgment was mailed to the Children on December 1, 2017; however, the signature on the notice of entry of judgment is dated January 9, 2018, and the signature on the proof of service is also dated January 9, 2018. The trial court’s register of actions reflects National filed the notice of entry of judgment on January 10, 2018.

On January 11, 2018, the Children filed an ex parte application to vacate the trial court’s orders striking their two notices. The Children asserted their two notices were timely. The Children’s motion for new trial was attached to their ex parte application. The Children’s motion for new trial was based upon three grounds: (1) insufficient evidence; (2) the trial court made instructional and evidentiary errors; and (3) National’s attorney committed misconduct. The trial court denied the ex parte application.

B. ANALYSIS

1. Timeliness

The children contend the trial court erred by striking their two notices as untimely.

A motion for new trial and a motion for JNOV may be filed (1) after the decision has been rendered and before entry of judgment, or (2) “[w]ithin 15 days of the date of mailing notice of entry of judgment by the clerk of the court . . ., or service upon him or her by any party of written notice of entry of judgment, or within 180 days after the entry of judgment, whichever is earliest.” (Code Civ. Proc., §§ 629, subd. (b), 659, subd. (a).) We apply the de novo standard of review. (Walt Disney Parks & Resorts U.S., Inc. v. Superior Court (2018) 21 Cal.App.5th 872, 875.)

The first filing opportunity for the two notices occurred “[a]fter the decision [was] rendered and before the entry of judgment.” (Code Civ. Proc., § 659, subd. (a)(1).) The verdict was rendered on November 17, 2017. The judgment was filed on December 1, 2017. Thus, the Children had a window between November 17 and December 1 in which they could file their two notices. The Children missed that first opportunity because they filed their notices on December 18.

The second filing opportunity for the two notices occurred “[w]ithin 15 days of the date of mailing notice of entry of judgment by the clerk of the court . . ., or service upon him or her by any party of written notice of entry of judgment, or within 180 days after the entry of judgment, whichever is earliest.” (Code Civ. Proc., § 659, subd. (a)(2).) Because the deadline is triggered by “whichever [event] is earliest,” we will discuss the three deadline possibilities. The register of actions does not show the clerk of the court mailed a notice of entry of judgment; therefore, the deadline possibility of “[w]ithin 15 days of the date of mailing notice of entry of judgment by the clerk of the court” did not trigger a deadline in this case.

The next deadline possibility concerns service of National’s notice of entry of judgment. That document, with the attached proof of service, was filed in the trial court on January 10, 2018. The trial court struck the Children’s notices on December 20, 2017. December 20, 2017, was before January 10, 2018. Therefore, when the trial court struck the Children’s notices, it did not yet have in its possession a copy of National’s notice of entry of judgment with the attached proof of service. As a result, at the time of the December 20 order, the trial court lacked proof of when the notice of entry of judgment was served. Therefore, it seems unlikely that the trial court applied the deadline concerning service by any party of written notice of the entry of judgment.

Nevertheless, if the notice of entry of judgment had been filed by December 20 (rather than January 10) and if the December 1 service date were accurate (rather than a typographical error), such that, on December 20, the trial court had before it the proof of service reflecting that the Children were served on December 1, then the Children’s December 18 filing would still be timely because (1) we exclude Friday, December 1 (Code Civ. Proc., § 12); (2) count 15 days, which takes us to Saturday, December 16; which (3) causes Monday, December 18 to be within the 15-day deadline because Monday is the first court day following the Saturday time limit (Code Civ. Proc., § 12b).

We now turn to the 180-day deadline. The judgment was entered on December 1, 2017. The Children’s notices for their two motions were filed on December 18, 2017. The two notices were filed within 180 days of the entry of judgment, and therefore they were timely. We conclude the trial court erred by striking the notices as untimely.

2. Prejudice

a. Judgment Notwithstanding the Verdict

National contends the trial court’s error was harmless because if “the trial judge acted on [the Children’s] JNOV motion, he would have been required to deny it.”

We examine whether the trial court’s error was harmless in regard to the notice of motion for JNOV. (Cal. Const. Art. 6, § 13; Code Civ. Proc., § 475.) We examine whether “a different result would have been probable if such error . . . had not occurred or existed.” (Code Civ. Proc., § 475.)

“The trial court may grant a judgment notwithstanding the verdict only if the verdict is not supported by substantial evidence. The court may not weigh evidence, draw inferences contrary to the verdict, or assess the credibility of witnesses. The court must deny the motion if there is any substantial evidence to support the verdict.” (Begnal v. Canfield & Associates, Inc. (2000) 78 Cal.App.4th 66, 72.)

“ ‘An offshoot of the doctrine of respondeat superior is the so-called “going and coming rule.” Under this rule, an employee is not regarded as acting within the scope of employment while going to or coming from the workplace. [Citation.] This is based on the concept that the employment relationship is suspended from the time the employee leaves work until he or she returns, since the employee is not ordinarily rendering services to the employer while traveling.’

“However, ‘exceptions will be made to the “going and coming” rule where the trip involves an incidental benefit to the employer, not common to the commute trips by ordinary members of the work force.’ [Citation.] When an employee is engaged in a ‘special errand’ or a ‘special mission’ for the employer it will negate the ‘going and coming rule.’ [Citations.] An employee ‘ “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 . . . 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.] The employer is ‘liable for torts committed by its employee while traveling to accomplish a special errand because the errand benefits the employer.’

“ ‘One [example of the special-errand exception] would be where an employee goes on a business errand for his employer leaving from his workplace and returning to his workplace. Generally, the employee is acting within the scope of his employment while traveling to the location of the errand and returning to his place of work. [Citation.] The exception also may be applicable to the employee who is called to work to perform a special task for the employer at an irregular time. The employee is within the scope of his employment during the entire trip from his home to work and back to his home. [Citation.] The exception is further applicable where the employer asks an employee to perform a special errand after the employee leaves work but before going home. In this case, as in the other examples, the employee is normally within the scope of his employment while traveling to the special errand and while traveling home from the special errand.’ ” (Jeewarat v. Warner Bros. Entertainment Inc. (2009) 177 Cal.App.4th 427, 435-436.)

We examine whether there is substantial evidence favorable to the verdict. Immediately after the hit-and-run collisions, Bostic stopped for “a couple seconds” and “then turned around and drove away.” Bostic sped along Rancho California Road, traveling much faster than the traffic around him. The foregoing evidence provides support for a finding that Bostic decided to flee the hit-and-run collisions. One could reasonably infer from the evidence that Bostic decided to put as much space as possible between himself and the multiple hit-and-run collisions as quickly as possible, hence his speeding. At that point, Bostic was no longer driving home. Rather, he was fleeing from the scene of the hit-and-run collisions. Thus, this evidence provides substantial support for the finding that Bostic had abandoned returning home and, at the time of the fatal collision, was driving for the personal purpose of fleeing the scene of the hit-and-run crashes.

Because there is substantial evidence supporting the verdict, it is not reasonably probable that the Children would have received a more favorable outcome on their motion for JNOV. Accordingly, we conclude the trial court’s error pertaining to the motion for JNOV was harmless.

In the Children’s motion for JNOV, they asserted “there was no substantial evidence that Bostic’s subjective intention to go home ever changed.” The Children asserted Bostic could not have abandoned his intent to return home because “Bostic lacked the mental capacity to make such a decision given his dementia.” The Children’s argument is unpersuasive because they present the evidence in the light most favorable to themselves, instead of in the light most favorable to National. (Wolf v. Walt Disney Pictures & Television (2008) 162 Cal.App.4th 1107, 1138 [view the evidence in the light most favorable to the party securing the verdict].) In the Children’s appellant’ reply brief, when arguing prejudicial error, they again present the evidence in the light most favorable to themselves. Accordingly, we find the Children’s argument to be unpersuasive.

b. Motion for New Trial

i. Evidentiary and Instructional Errors

In their motion for new trial, the Children asserted the trial court made various instructional and evidentiary errors and that opposing counsel committed misconduct. We examine whether the trial court’s error, in denying the motion as untimely, was prejudicial. Thus, we consider whether it is reasonably probable that the motion would have been granted if considered on its merits. (Code Civ. Proc., § 475; see also City of Los Angeles v. Decker (1977) 18 Cal.3d 860, 871-872.) The motion should have been granted if (1) the trial court found error, and (2) concluded the error was prejudicial. (Id. at p. 872.)

It was the children’s burden to demonstrate that the crash occurred within the course and scope of Bostic’s employment. (Tognazzini v. San Luis Coastal Unified School Dist. (2001) 86 Cal.App.4th 1053, 1058.) The issue we focus on is whether a trier of fact could have reasonably concluded that Bostic was driving home at the time he killed Mother and Father.

The Postal Annex is located at Rancho California Road and Margarita Road. Bostic’s apartment is located along the eastbound lanes of Rancho California Road. Rancho California Road has a raised median, which prevents vehicles from turning left across the road. If one is travelling westbound and needs to access a building along the eastbound lanes, then one must make a U-turn at a break in the raised median or at an intersection.

After leaving the Postal Annex, Bostic drove west on Rancho California Road, which meant he would need to make a U-turn to arrive at his apartment complex. Bostic’s first opportunity to make a U-turn toward his apartment complex was at a pocket lane, at a break in the raised median. Bostic failed to make that U-turn.

Bostic’s next opportunity to make a U-turn was approximately 800 feet further west on Rancho California Road, at the intersection with Ynez Road. It is in the area east of Ynez Road, in the westbound lanes of Rancho California Road, that Bostic had the multiple hit-and-run collisions. The next intersection along westbound Rancho California Road where Bostic could have made a U-turn was at Jefferson Road. After the multiple hit-and-run collisions, Bostic continued further west on Rancho California Road, further from his apartment, and traveled at a high rate of speed, until crashing into Mother and Father at the intersection with Jefferson Road.

Because Bostic passed his home and continued travelling further away from his home at a high rate of speed, a trier of fact could not reasonably conclude that Bostic was travelling home at the time of the fatal collision. If Bostic were trying to reach his apartment, then he could have turned at the pocket lane or at Ynez Road. Bostic’s failure to turn toward his apartment at any point along Rancho California Road means one cannot reasonably conclude that he was driving home. Because Bostic was not driving home, and it is unclear where he was driving, if anywhere, the Children failed to demonstrate that Bostic was acting within the course and scope of his employment at the time of the fatal collision.

The Children’s evidence that Bostic suffered dementia and was unable to change his intent from driving home fails to meet their burden of proof. The expert concluded that Bostic could not form “the subject intent to flee the scene” of the hit-and-run collisions. The problem with this evidence is that it does not explain to where, if anywhere, Bostic was driving at the time of the fatal collision. The evidence demonstrates only that Bostic did not have a sufficiently quick decision-making ability to choose to flee, but it does not explain if Bostic was unable to make any decisions about where to go. In other words, Bostic may not have been capable of deciding to flee, but that does not exclude the possibility that—at least by the time he had passed his home, had hit-and-run collisions, and continued driving away from his home—somewhere along Rancho California Road, he decided not to drive home. The Children failed to prove that Bostic was incapable of changing his mind within the timeframe of driving from the Postal Annex to Jefferson Road. Because the Children failed to demonstrate that Bostic was completely incapable of changing his mind within that timeframe, their evidence concerning Bostic’s disability does not support a judgment in their favor.

If the trial court had ruled on the merits of the Children’s motion for new trial, it is not reasonably probable that the motion would have been granted because any errors alleged in the motion for new trial were harmless due to the Children’s failure to prove their case. Because it is not reasonably probable the motion would have been granted, the trial court’s error in denying the motion as untimely was harmless.

The Children contend the trial court’s error is reversible per se because they were denied a hearing on their motion. “[T]he California Constitution generally prohibits a reviewing court from reversing a trial court order without a showing of prejudice (Cal. Const., art. VI, § 13).” (Severson & Werson, P.C. v. Sepehry-Fard (2019) 37 Cal.App.5th 938, 950.) “ ‘ “In the civil context, structural error typically occurs when the trial court violates a party’s right to due process by denying the party a fair hearing. [Citation.] . . . “A structural error requires reversal without regard to the strength of the evidence or other circumstances.” ’ ” (Id. at p. 951.) “Structural errors require per se reversal ‘because it cannot be fairly determined how a trial would have been resolved if the grave error had not occurred.’ ” (Id. at pp. 950-951.)

Although the Children were denied a hearing on their motion for new trial, this is not a case in which it is unclear how the motion for new trial would have been resolved. As explained ante, the Children failed to prove to where, if anywhere, Bostic was driving at the time of the fatal collision. As a result, the trial court could not have granted the motion for new trial because the trial court could not have found any of the errors alleged in the motion for new trial to be prejudicial. Thus, on this record, the failure to conduct a hearing was not structural error because it is possible to determine how the matter would have been resolved if a hearing had been held.

II. ATTORNEY MISCONDUCT

The Children contend a “new trial” must be granted due to National’s attorney fabricating evidence and misusing Bostic’s criminal convictions during closing argument. The Children assert Code of Civil Procedure section 657 permits a motion for new trial to be granted when an attorney commits misconduct. Because the Children are citing law pertaining to motions for new trial, we infer they are not requesting a reversal of the judgment, rather, they are asserting their motion for new trial should have been granted. We have concluded ante that the trial court’s error in striking the Children’s notice of intention to move for a new trial was harmless because the Children failed to prove their case. Accordingly, we will not discuss this alleged error further because we have already concluded any such error is harmless. (See Code Civ. Proc., § 475.)

III. CRIMINAL CONVICTIONS

The Children contend the trial court erred by admitting evidence of Bostic’s convictions. We have concluded ante that the Children failed to prove their case. Therefore, any evidentiary error the trial court may have made related to evidence of Bostic’s convictions is harmless. The error is harmless because it is not reasonably probable a result more favorable to the Children would have occurred due to their failure to meet their burden of proof. (Code Civ. Proc., § 475.) Because the alleged evidentiary error would be deemed harmless, we do not discuss the merits of the issue.

DISPOSITION

The judgment is affirmed. Respondent is awarded its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

Acting P. J.

We concur:

RAPHAEL

J.

MENETREZ

J.