Filed 1/15/20 Cadena v. Water of Life Community Church 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

STEPHANI LYNN CADENA,

Plaintiff and Respondent,

v.

WATER OF LIFE COMMUNITY CHURCH,

Defendant and Appellant.

E070687

(Super.Ct.No. CIVRS1400146)

OPINION

APPEAL from the Superior Court of San Bernardino County. Janet M. Frangie, Judge. Reversed.

Daley & Heft, Lee H. Roistacher, Robert W. Brockman, Jr. and Sarah E. Risso for Defendant and Appellant.

Michael F. Sisson and Richard L. Garrigues for Plaintiff and Respondent.

I. INTRODUCTION

In this action, plaintiff and respondent, Stephani Lyn Cadena, sued defendant and appellant, Water of Life Community Church (Church), claiming Church was vicariously liable under the doctrine of respondeat superior for personal injuries Cadena sustained when a Church volunteer, Vincent Cardenas, struck Cadena, a pedestrian, with a “box” truck while driving the truck for Church’s food warehouse. The accident occurred at 12:44 p.m. on February 18, 2013, just after Cardenas dropped Cadena off in a parking lot near a bus stop in Ontario. Cardenas violated the food warehouse’s rules by carrying Cadena as a passenger in the truck, and the parking lot was not on the route Cardenas was supposed to be driving for the food warehouse that day. Thus, Cardenas had no business being in the parking lot when he struck Cadena with Church’s truck.

The case was tried to a jury, solely against Church. Cardenas was not served with the summons and complaint, did not testify, and his whereabouts were unknown at the time of trial. In a special verdict, the jury found that Cardenas was negligent, that Cardenas’s negligence was a substantial factor in causing Cadena’s injuries, and that Cardenas was Church’s agent or employee. But the jury also found that Cardenas was not acting in the scope of his agency or employment for Church when Cadena was injured. Thus, the jury did not determine whether Cadena was also negligent in causing her injuries and did not determine the amount of Cadena’s damages. Judgment for Church was entered on Cadena’s complaint.

Cadena timely moved for a new trial on two issues: Church’s vicarious liability and Cadena’s damages. The court granted the new trial motion, but rather than order a new trial on vicarious liability, the court ruled as a matter of law that Cardenas was acting in the scope of his agency or employment for Church when Cadena was injured. The court ruled that the issue of Church’s vicarious liability was “established” in favor of Cadena as a matter of law. (Code Civ. Proc., § 657, cl. 6.) The court thus granted Cadena a de facto judgment notwithstanding the verdict (JNOV) on the vicarious liability issue, based on Cadena’s new trial motion, even though neither Cadena nor the court, on its own motion, moved for JNOV. (§ 629.) The court ordered a new trial only on Cadena’s damages.

In this appeal, Church claims the order granting Cadena’s new trial motion must be reversed because the court had no authority to treat the motion as a “dispositive” motion for JNOV on the issue of Church’s vicarious liability. Church also claims that, in granting a new trial solely on Cadena’s damages, the court erroneously deprived Church of a jury finding on whether Cadena was also negligent, and thus whether Cadena was comparatively at fault for her injuries, a question the jury did not determine given its finding that Church was not vicariously liable. Church further claims that sufficient evidence supports the jury’s finding in favor of Church on the vicarious liability issue, and for this reason the court erroneously determined the vicarious liability issue in favor of Cadena as a matter of law.

We agree with Church’s claim that the court was not authorized to treat the new trial motion as a motion for JNOV on the vicarious liability issue and issue a de facto partial JNOV on the vicarious liability issue by determining as a matter of law that Cardenas was acting in the course and scope of his agency or employment for Church when Cadena was injured. At most, the court was authorized to grant a new trial on the vicarious liability issue, given that no concurrent motion for a JNOV was before the court, and the court was only ruling on the new trial motion.

Additionally, we agree that sufficient evidence supports the jury’s special verdict and finding in favor of Church on the vicarious liability issue. Substantial evidence shows, and the jury reasonably could have determined, that Cardenas was substantially deviating from his duties for Church at the time Cadena was injured, and was therefore not acting in the course and scope of his agency or employment for Church when Cadena was injured. (See CACI No. 3723.) Accordingly, we reverse the order granting the new trial motion and remand the matter to the trial court with directions to consider Cadena’s new trial motion as a new trial motion, rather than as a motion for a partial JNOV, on the vicarious liability issue.

II. BACKGROUND

A. The Evidence Adduced at Trial

On February 18, 2013, Church was operating a food warehouse in Fontana which provided food to the homeless and others in need. Church employees and volunteers were using a 16-foot long box truck to pick up donated food from grocery stores and bring the food back to the food warehouse. Cardenas was a homeless man who had been driving the truck for several months as a volunteer for the food warehouse. For a week or two before Cadena was injured, Cardenas was living in a “shed” on Church’s property near the food warehouse.

Church’s rules prohibited drivers from (1) having passengers in the truck, (2) conducting personal business with the truck, (3) diverting from the intended food pickup and return route, and (4) using cell phones while driving the truck. On several occasions before Cadena was injured on February 18, 2013, Church’s food warehouse coordinator, Raul S., verbally advised Cardenas of Church’s rules concerning the use of the truck, and Cardenas acknowledged he was aware of the rules. Church had no knowledge of any rule violations by Cardenas before February 18, 2013.

On a daily basis, drivers of the truck were specifically told, and were shown with a map, where to go and what route to take in using the truck. Drivers usually left Church’s warehouse between 9:00 a.m. and 10:00 a.m. and were required to pick up food donations and immediately return to the food warehouse with the donations. Church kept a mileage log for the truck, which was logged when the truck left the food warehouse and when it returned.

A few weeks before February 18, 2013, Cardenas and Cadena met at a Fontana bus stop. Cardenas struck up a conversation with Cadena after noticing she was carrying a bag of food from the food warehouse. Cadena gave Cardenas her phone number, and a few days later they talked and made plans to meet at the Fontana library. Following their “date” at the library, they made plans to meet again and spoke on the phone a few times.

A week or two before February 18, 2013, Cadena accompanied Cardenas on a food pickup run in the truck—their second “date.” Before the date, Cadena took a bus to Fontana from her home in San Bernardino. Cardenas picked up Cadena at the Fontana bus stop after leaving Church’s warehouse on a food pickup run in the truck. Cardenas and Cadena went to a donut shop in between picking up donated food from two grocery stores in Diamond Bar. After picking up food from the second store, Cardenas used the truck to take Cadena to the Fontana bus stop before he returned to the food warehouse.

On February 17, 2013, Cadena was staying at a motel in Ontario. That day, Cardenas called Cadena and again invited her to accompany him on a food pickup run. Cadena agreed to this third “date,” and they made plans for Cardenas to pick her up on February 18, near her Ontario motel.

During the morning of February 18, 2013, Cardenas left Church’s food warehouse in the truck with instructions to pick up food from the same two stores in Diamond Bar that he had visited when Cadena previously accompanied him. Coffee and donuts were available to Cardenas before he left the food warehouse. Before Cardenas drove to the first store, he drove to Ontario and got Cadena. After leaving the first store, Cardenas and Cadena went to a donut shop, as they had done on their second “date,” then Cardenas drove to the second store and picked up food. Cadena testified that, after they left the second store, Cardenas answered a call on his cell phone while he was driving the truck. According to Cadena, the call was “for another [food] pickup.” But a Church pastor testified that no one from Church or the food warehouse would have called Cardenas and told him to pick up more food while he was driving the truck.

Immediately after the phone call, Cardenas dropped Cadena off in a parking lot at the Ontario Mills Mall so Cadena could board a bus and return to her home in San Bernardino. Cardenas pulled into a long diagonal parking space designed for motor coaches or large vehicles with trailers. The bus stop was only a few feet away from the parking space. Cadena got out of the passenger side of the truck and stepped a few feet away from the passenger side. Then Cadena placed her bags on the ground and “squatted down” to organize her belongings and get money for her bus fare.

As Cadena was crouched near the ground looking into her bags, Cardenas backed up the truck, then turned right, drove forward, and headed toward Cadena without seeing her crouched near the ground. The cab of the truck was 48 inches high and ostensibly obscured Cardenas’s view of Cadena near the ground. Cadena looked up and saw the truck coming toward her. She thought the truck was going to stop and testified that she did not have enough time to get out of its way. Cadena was knocked on her stomach, either by the truck’s front bumper or its front driver’s side tire. She was then either pushed by the truck or dragged beneath it, causing her severe injuries, including a badly fractured pelvis.

At the hospital shortly after the accident, Cadena admitted to medical personnel that she had used methamphetamine the day before. Cardenas spoke with an investigating officer at the scene of the accident, and Cadena briefly spoke to the officer before she was taken away by ambulance. Cardenas returned to the food warehouse after the accident. According to the food warehouse’s supervisor, Raul S., Cardenas was not “gone for an extended period” that day or “beyond what was normal” for the route he was expected to take. Cardenas told Raul S. about the accident; he claimed he hit a woman at the mall but did not know the woman and had never seen her before. Raul S. later learned that the woman Cardenas hit had been a passenger in the truck.

No evidence showed that Cardenas went to any location in response to the phone call that Cadena claimed Cardenas received shortly before he took Cadena to the Ontario parking lot area to catch her bus. However, the truck’s mileage log showed that Cardenas drove 72 miles on February 18, 2013, which was 12 to 14 miles more than he should have driven had he driven directly to the two stores to pick up the donated food, then driven directly back to the food warehouse.

B. The Jury Instructions on Vicarious Liability and Substantial Deviation

The case was tried on the theory that Cardenas negligently caused Cadena’s injuries and Church was vicariously liable for Cardenas’s negligence. The jury was instructed on the vicarious responsibility of a principal for the actions of its agent (CACI No. 3700), and that, in order to find Church liable for Cardenas’s negligence, the jury had to find (1) Cardenas was Church’s agent or employee and (2) Cardenas was acting within the scope of his agency or employment when he injured Cadena (CACI No. 3701). The jury was further instructed that Cadena had the burden to prove that Cardenas was acting within the scope of his agency or employment for Church when Cadena was injured, and that “[c]onduct is within the scope of [employment/authorization] if: [¶] (a) It is reasonably related to the kinds of tasks that the [employee/agent] was employed to perform; or [¶] (b) It is reasonably foreseeable in light of the employer’s business or the [agent’s/employee’s job] responsibilities.” (CACI No. 3720.)

The jury was also given CACI No. 3723: “If [an employee/a representative] combines his or her personal business with the employer’s business, then the employee’s conduct is within the scope of [employment/authorization] unless the [employee/representative] substantially deviates from the employer’s business. [¶] Deviations that do not amount to abandoning the employer’s business, such as incidental personal acts, minor delays, or deviations from the most direct route, are reasonably expected and within the scope of employment.”

C. The Jury’s Special Verdict and the Judgment

In a special verdict, the jury found: (1) Cardenas was negligent, (2) Cardenas’s negligence was a substantial factor in causing Cadena’s injuries, and (3) Cardenas was an “agent or employee” of Church, but (4) Cardenas was not acting “within the scope of his authority” for Church when Cadena was injured. The jury’s findings were unanimous, and its fourth finding ended its inquiry. That is, the jury did not determine Cadena’s damages; whether Cadena was negligent; or, if so, whether Cadena’s negligence was a substantial factor in causing her injuries. On March 8, 2018, the court entered judgment for Church and awarded Church $95,446.49 in costs and disbursements against Cadena. (§§ 998, 1033.5.)

D. Cadena’s New Trial Motion

On April, 2, 2018, Cadena timely filed and served a notice of her intention to move for new trial, listing each of the statutory grounds for a new trial. (§ 657.) On April 13, Cadena filed a memorandum of points and authorities, principally claiming that insufficient evidence supported the jury’s finding that Cardenas was not acting within the course and scope of his agency or employment for Church when Cadena was injured. (§ 657, cl. 6.) Church opposed the new trial motion. Cadena did not file a motion for a JNOV, and the trial court did not tell or notify the parties that it was, of its own motion, hearing the matter as a motion for JNOV. (§ 629.)

E. The Court’s Ruling on the New Trial Motion

At the hearing on Cadena’s new trial motion, Cadena’s counsel clarified that Cadena was seeking a new trial on two issues: (1) Church’s vicarious liability for Cardenas’s negligence and (2) Cadena’s damages. The court said it believed the “only way” it could grant a new trial on the issue of Church’s vicarious liability was to find as a matter of law that Cardenas was acting in the course and scope of his agency or employment for Church when Cadena was injured. The court said it would be “pointless” to grant a new trial on the vicarious liability issue if the evidence on liability was disputed, because the jury had already decided the issue in Church’s favor. The court also noted that Cadena did not file a motion or JNOV.

Cadena’s counsel argued and the court agreed that Cardenas was acting within the course and scope of his employment as a matter of law, because uncontroverted evidence showed that Cardenas was on his way back to the food warehouse when he struck Cadena with the truck; his act of deviating from his given route to drop off Cadena in the Ontario parking lot was a minor rather than a substantial deviation from his duties; and he did not abandon his duties that day, given that he picked up donated food and returned it to the food warehouse as he had been directed to do. (CACI No. 3723.)

Church’s counsel urged the court not to focus solely on what Cardenas was doing at the precise time he struck Cadena with the truck in determining where Cardenas substantially deviated from his duties. Rather, Church’s counsel argued that the court was required to look at “the entire scenario,” and what Cardenas was doing from the time he picked up Cadena near her Ontario motel through the time of the accident, in determining whether Cardenas substantially deviated from his duties.

Church’s counsel further argued there was no evidence that Cardenas was on his way back to the food warehouse when he struck Cadena, in view of Cadena’s testimony that Cardenas received a cell phone call before he dropped Cadena off in the parking lot. On this point, counsel for Cadena countered that uncontroverted circumstantial evidence showed that Cardenas was on his way back to the food warehouse when he struck Cadena, because, according to the food warehouse supervisor, Raul S., Cardenas returned to the food warehouse after he struck Cadena, and Cardenas was not gone for an unusually long period of time.

Church’s counsel further argued that “a whole list of factors” had to be considered in determining whether Cardenas’s actions amounted to a substantial deviation from his duties for Church. These included (1) the fact Cardenas was on “a planned date” with Cadena, and (2) the fact Cardenas knowingly violated Church’s rules by (a) using a cell phone while driving the truck, (b) having a passenger (Cadena) in the truck, (c) using the truck for personal reasons (to date Cadena), and (d) diverting from his given route by picking up Cadena near her Ontario motel before he picked up the donated food, stopping for donuts with Cadena between his two scheduled food pickups, then dropping off Cadena in the Ontario parking lot before returning to the food warehouse.

The court pointed out that, according to the case law, violating the principal’s or employer’s policies is only one factor to consider in determining whether there has been a substantial deviation from the agent’s or employee’s duties, and policy violations do not necessarily amount to a substantial deviation of the agent’s or employee’s duties. The court also noted that a person can in “certain circumstances” return to the scope of their agency or employment following a “diversion.” But the court also acknowledged it was not within the course and scope of Cardenas’s duties to leave his food pickup route to pick up Cadena or to take Cadena to the donut shop. Counsel for Cadena pointed out that, under the case law, “fine distinctions” are not made when an agent or employee is pursuing their own business at the same time they are pursuing their principal’s or employer’s business, and if the agent or employee is pursuing both at the same time, then the respondeat superior doctrine applies and the principal or employer is vicariously liable.

Following further discussion of the evidence and case law, the court asked counsel for the parties whether, instead of granting a new trial on Church’s vicarious liability, the court could instead enter judgment for Cadena on the vicarious liability issue and grant a new trial solely on the issue of Cadena’s damages—given that Cadena did not file a motion for a JNOV. Cadena’s counsel said the court was required to grant a new trial on both vicarious liability and damages. Church’s counsel reserved his right to brief the issue. The court took the matter under submission.

On May 15, 2018, the court issued a written order and statement of reasons (§ 657) granting the new trial motion on the issue of Cadena’s total damages, but finding that Church’s vicarious liability was “established” as a matter of law in favor of Cadena. The court reasoned that Cardenas was driving back to the food warehouse when the accident occurred, and “[t]he accident did not occur because Cadena had been a passenger in the truck or [because] Cardenas deviated from the route he would normally take. The deviation was not substantial and any deviation was completed and Cardenas had resumed his ‘master’s’ business after he dropped Cadena off. The accident occurred because [Cardenas] negligently hit Cadena while he was driving the truck out of the parking lot—an act within the scope of his employment. Like the employee in Perez [v. Van Groningen & Sons, Inc. (1986) 41 Cal.3d 962], Cardenas, while violating a company policy prohibiting drivers of the Church from carrying passengers, was nonetheless engaged in the act of driving which was within the scope of his employer’s business and foreseeable conduct. [¶] As did the defendants in Spradlin v. Cox (1988) 201 Cal.App.3d 799, Church wrongly focuses on the events which culminated in Cadena being brought to the parking lot, rather than the alleged negligent act (Cardenas running over Cadena) which gave rise to her injuries. [¶] It was reasonably foreseeable that, as part of Cardenas’ duties, he would be involved in a truck accident and be the cause of injury to other vehicles and/or pedestrians.” (Capitalization & fn. omitted.)

The court’s order further states: “From the evidence presented at trial, the Court finds that, as a matter of law, Cardenas was acting within the course and scope of his agency/employment with Church as the jury, in following the law, could only reasonably come to this conclusion from the evidence. [¶] . . . The Court is convinced, after weighing all the evidence, including all reasonable inferences, that the jury should have reached a different verdict and that there is insufficient evidence to support the jury’s finding that Cardenas was not acting within the course and scope of his duties at the time he struck Cadena. The verdict is against the law. The motion for new trial is granted; the issue of liability is established in favor of . . . Cadena and against [Church] with a retrial to be held on the issue of damages only.” (Capitalization omitted.) Church timely appealed.

III. DISCUSSION

A. The Court Was Not Authorized to Issue a Partial JNOV on Vicarious Liability

Church claims the order granting Cadena’s new trial motion must be reversed because the trial court had no authority to treat the new trial motion as a dispositive motion for a JNOV and determine that the issue of Church’s vicarious liability to Cadena was established as a matter of law against Church. We agree.

In granting a new trial, “[t]he verdict may be vacated . . . in whole or in part, and a new or further trial granted on all or part of the issues . . . .” (§ 657.) “A new trial is a re-examination of an issue of fact in the same court after a trial and decision by a jury, court, or referee.” (§ 656, italics added.) The permissible grounds for a new trial include “[i]nsufficiency of the evidence to justify the verdict . . . .” (§ 657, cl. 6.) In ruling on a new trial motion which claims insufficient evidence justifies the verdict, the court has the power and authority “‘to disbelieve witnesses, reweigh the evidence, and draw reasonable inferences therefrom contrary to those of the trier of fact’ . . . [citation] . . . .” (Barrese v. Murray (2011) 198 Cal.App.4th 494, 503.) That is, the court reassesses the evidence, independently of the trier of fact, and must satisfy itself that the evidence is sufficient to sustain the verdict; if it is not, the court has the duty to order a new trial. (Ibid.)

In contrast to new trial motions, which by definition ask the court to order a new trial or the “re-examination of an issue of fact” (§ 656), motions for nonsuits, directed verdicts, and JNOVs are “dispositive” motions (Fountain Valley Chateau Blanc Homeowners’ Assn. v. Department of Veterans Affairs (1998) 67 Cal.App.4th 743, 750-751 (Fountain Valley)). These dispositive motions ask the court to allow a party to prevail as matter of law “where the relevant evidence is already in.” (Id. at p. 750.) But “[w]hen a trial judge grants a motion for new trial based on insufficiency of the evidence, it is not because the judge has concluded that the plaintiff [or other party opposing the new trial motion] must lose, but only because the evidence in the trial that actually took place did not justify the verdict. Evidence might exist to justify the verdict, but for some reason did not get admitted. . . . There is still the real possibility that the plaintiff [or other party opposing the new trial motion] has a meritorious case [or defense].” (Id. at p. 752, some italics in original, some italics added, fn. omitted.)

This is the “unstated premise” of section 657, which authorizes the court, on the application of an aggrieved party, to vacate the verdict in whole in part and to order a new trial, and only a new trial, “on all or part of the issues.” (Fountain Valley, supra, 67 Cal.App.4th at p. 752.) It is also a corollary of the observation “that the essential function of [a] new trial is to reexamine the evidence,” not to rule in favor of one party or the other on a given issue as a matter of law. (See ibid.) “[M]isuse of a new trial motion as a dispositive motion renders surplusage the Legislature’s provisions for nonsuits, directed verdicts, and judgments notwithstanding the verdict. (See Code Civ. Proc., §§ 581c, 629-630 [providing respectively for dispositive motions].)” (Ibid.)

In ruling on the new trial motion, the court did not order a new trial on the issue of whether Cardenas was acting in the course and scope of his agency or employment for Church when the accident occurred, and thus whether Church was vicariously liable for Cardenas’s negligence in causing Cadena’s injuries. Instead, the court treated the new trial motion as a dispositive motion for a JNOV (§ 629) on the vicarious liability issue only, and ruled that Church’s vicarious responsibility was “established” in favor of Cadena as a matter of law. This was error.

Cadena did not move for JNOV on the vicarious liability issue. Neither did the court, of its own motion, indicate that it would be additionally treating the matter as a motion for JNOV. Absent a motion for JNOV, the court had no authority to rule, as a matter of law on the new trial motion, that Cardenas was acting in the course and scope of his agency or employment for Church when he struck and injured Cadena with Church’s truck. (Kitagawa v. Williams (1959) 168 Cal.App.2d 123, 126 [“The trial court had no authority to enter a judgment contrary to the verdict of the jury on a motion for a new trial in the absence of a motion for a directed verdict and a motion for judgment notwithstanding the verdict.”].) Instead, section 657 authorized the court to order a new trial and only a new trial on the vicarious liability issue. (Fountain Valley, supra, 67 Cal.App.4th at pp. 750-753.) Because the court exceeded the scope of its authority in ruling on the new trial motion by granting a de facto JNOV on the vicarious liability issue, the order granting the new trial motion must be reversed.

B. Substantial Evidence Supports the Jury’s Finding That Cardenas Was Not Acting in the Course and Scope of His Agency or Employment for Church When He Struck and Injured Cadena While Driving Church’s Truck

Church further claims that substantial evidence supports the jury’s special verdict and finding that Cardenas was not acting in the course and scope of his agency or employment for Church when the accident occurred, and for this reason the court erroneously determined that the vicarious liability issue was established as a matter of law in favor of Cadena. Again, we agree. Thus, we reverse the de facto partial JNOV on its merits, as well as on the procedural grounds discussed above.

Substantial evidence shows, and the jury reasonably could have concluded, that Cardenas’s act of diverting from his designated food pickup route and driving several miles out of his way to the Ontario parking lot where the accident occurred constituted a substantial deviation from Cardenas’s duties for Church, not a minor one. (CACI No. 3723.) Thus, the jury reasonably determined that Cardenas was not acting in the course and scope of his agency or employment for Church when the accident occurred.

1. Standard of Review

An appellate court has the power and authority “to look at the substance of a new trial ruling rather than just its title.” (In re Coordinated Latex Glove Litigation (2002) 99 Cal.App.4th 594, 614; Fountain Valley, supra, 67 Cal.App.4th at p. 753.) If the effect of the new trial ruling is to grant a de facto JNOV, then the abuse of discretion standard, which normally applies to an order granting a new trial, will not apply. (Fountain Valley, supra, at pp. 751-753.) Rather, the de facto order granting the JNOV will be reviewed for substantial evidence, as orders granting JNOV’s on motions for JNOV’s are reviewed. (See Webb v. Special Electric Co., Inc. (2016) 63 Cal.4th 167, 192.)

“In ruling on a motion for JNOV, ‘“the trial court may not weigh the evidence or judge the credibility of the witnesses, as it may do on a motion for a new trial, but must accept the evidence tending to support the verdict as true, unless on its face it should be inherently incredible. Such order may be granted only when, disregarding conflicting evidence and indulging in every legitimate inference which may be drawn from [the opposing party’s] evidence, the result is no evidence sufficiently substantial to support the verdict.”’” (Carter v. CB Richard Ellis, Inc. (2004) 122 Cal.App.4th 1313, 1320.) The trial court’s discretion in granting a motion for JNOV is thus “‘severely limited.’” (Hansen v. Sunnyside Products, Inc. (1997) 55 Cal.App.4th 1497, 1510.)

On appeal, the standard of review of an order granting a JNOV is the same as it is in the trial court. (Webb v. Special Electric Co., Inc., supra, 63 Cal.4th at p. 192.) Our task is to determine “‘“whether any substantial evidence—contradicted or uncontradicted—supports the jury’s conclusion.”’” (Ibid.) “If substantial evidence supports the verdict, the trial court erred in granting the JNOV and we reverse.” (Mason v. Lake Dolores Group (2004) 117 Cal.App.4th 822, 829-830.)

Whether an employee was acting within the scope of employment is generally a question of fact, but it is a question of law when the facts are undisputed and conflicting inferences may not be drawn from the facts. (Morales-Simental v. Genentech, Inc. (2017) 16 Cal.App.5th 445, 453; Sumrall v. Modern Alloys, Inc. (2017) 10 Cal.App.5th 961, 968.) Here, the relevant facts are uncontroverted and support the jury’s determination that Cardenas was not acting in the course and scope of his agency or employment for Church when he struck and injured Cadena with Church’s truck.

2. Analysis

(a) The Respondeat Superior Doctrine and Substantial Deviation

Under the doctrine of respondeat superior, an employer is vicariously liable for the torts of its employee if the torts are committed within the course and scope of the employee’s employment. (Sumrall v. Modern Alloys, Inc., supra, 10 Cal.App.5th at p. 967; Civ. Code, § 2338.) The doctrine is based on “‘a rule of policy, a deliberate allocation of a risk’” to the employer. (Hinman v. Westinghouse Elec. Co. (1970) 2 Cal.3d 956, 959-960 [“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.”].) The “modern and proper basis” of the doctrine is not the employer’s “control or fault” but the risks “inherent in or created by” the employer’s enterprise. (Id. at p. 960.) Accordingly, the employer’s liability extends to the risks inherent in or created by the employer’s enterprise. (Ibid.)

“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. However, ‘foreseeability’ in this context must be distinguished from ‘foreseeability’ as a test for negligence. In the latter sense ‘foreseeable’ means a level of probability which would lead a prudent person to take effective precautions whereas ‘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.” (Rodgers v. Kemper Constr. Co. (1975) 50 Cal.App.3d 608, 618-619.) “One traditional means of defining . . . foreseeability,” and thus whether a risk is inherent in, or created by, an enterprise, “is seen in the distinction between minor ‘deviations’ and substantial ‘departures’ from the employer’s business. The former are deemed foreseeable and remain within the scope of employment; the latter are unforeseeable and take the employee outside the scope of his employment.” (Lazar v. Thermal Equip. Corp. (1983) 148 Cal.App.3d 458, 465.)

“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 employment at the time of his 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 own business with that of his employer, or attending to both at substantially the same time, no nice inquiry will be made as to which business he was actually engaged in at the time of injury, unless it clearly appears that neither directly nor indirectly could he have been serving his employer.” [Citations.]’ [Citation.] . . . [A]n employee’s tortious act may be within the scope of employment even if it contravenes an express company rule and confers no benefit to the employer. [Citation.]” (Farmers Ins. Group v. County of Santa Clara (1995) 11 Cal.4th 992, 1004.)

But respondeat superior is not a doctrine of strict liability. “Notwithstanding the generally broad view given to scope of employment determinations the law is clear that an employer is not strictly liable for all actions of its employees during working hours. Significantly, an employer will not be held vicariously liable for an employee’s malicious or tortious conduct if the employee substantially deviates from the employment duties for personal purposes. [Citations.]” (Farmers Ins. Group v. County of Santa Clara, supra, 11 Cal.4th at p. 1004.) “While a minor deviation is foreseeable and will not excuse the employer from liability, a deviation from the employee’s duties that is ‘“so material or substantial as to amount to an entire departure”’ from those duties will take the employee’s conduct out of the scope of employment.” (Halliburton Energy Services, Inc. v. Department of Transportation (2013) 220 Cal.App.4th 87, 95 (Halliburton).) “Thus, even if the employee was driving a company vehicle at the time the accident occurred, the employer is not liable if the driving ‘was done for his own personal convenience or accommodation and related to an end or purpose exclusively and individually his own.’ [Citation.]” (Id. at p. 102.)

Indeed, “under a general foreseeability test, both foreseeability and a nexus between the tortious act and the employment are required. [Citation.] ‘Respondeat superior liability demands a nexus between the employee’s tort and the employment to ensure that liability is properly placed upon the employer. “The nexus required for respondeat superior liability—that the tort be engendered by or arise from the work—is to be distinguished from ‘but for’ causation. That the employment brought tortfeasor and victim together in time and place is not enough. [Courts] have used varied language to describe the nature of the required additional link (which, in theory, is the same for intentional and negligent torts): the incident leading to injury must be an ‘outgrowth’ of the employment . . . ; the risk of tortious injury must be ‘“inherent in the working environment”’ . . . or ‘“typical or broadly incidental to the enterprise [the employer] has undertaken.”’ . . .” [Citation.] Yet another way to describe the necessary linkage is the employee’s tort must be “foreseeable in light of [the employee’s] duties.” [Citation.]’” (Halliburton, supra, 220 Cal.App.4th at p. 103, first italics added.)

(b) Analysis

The question presented is whether the jury reasonably could have determined that Cardenas’s diversion from his designated food pickup route to the Ontario parking lot to drop off Cadena was such a substantial departure from Cardenas’s duties for Church that it took Cardenas’s tortious act of striking Cadena with the truck outside of the scope of Cardenas’s agency or employment for Church. As noted, substantial evidence—indeed, uncontroverted evidence—supports the jury’s implicit finding that Cardenas’s diversion to the parking lot amounted to a substantial deviation, not a minor one.

Substantial evidence shows that when Cardenas drove Cadena to the Ontario parking lot in Church’s truck, he was driving for his “‘own personal convenience or accommodation’” and his reason for driving to the parking lot was “‘exclusively and individually his own.’” (Halliburton, supra, 220 Cal.App.4th at p. 102.) It was not broadly incident to Church’s enterprise of operating the food warehouse, that one of Church’s drivers would drive its food truck several miles out of the driver’s designated route to conduct a purely personal errand involving a person who had nothing to do with the driver’s duties for the food warehouse. In these circumstances, the jury reasonably could have concluded that Cardenas’s diversion to the Ontario parking lot “was such a complete and material departure” from his duties “that it could not reasonably be considered to be an activity in pursuit of” Church’s food warehouse business, or a minor deviation from the scope of his duties. (Ibid.) Stated another way, the required nexus between Cardenas’s duties and his conduct in diverting from his designated route to drop off Cadena in the Ontario parking lot is not present. Rather, Cardenas’s conduct in diverting to the parking lot for personal reasons was “so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of [Church’s] business.” (Rodgers v. Kemper Constr. Co., supra, 50 Cal.App.3d at p. 619.)

The trial court erroneously concluded that Cardenas’s conduct in diverting to the Ontario parking lot was a minor deviation from his duties for Church, rather than a substantial one, as a matter of law. The court reasoned that Cardenas’s conduct in diverting to the parking lot fell within the scope of his agency or employment for Church because uncontroverted evidence showed that Cardenas was in the midst of discharging his duties for the food warehouse when the accident occurred.

To be sure, uncontroverted evidence showed that Cardenas was in the midst of discharging his duties for the food warehouse when the accident occurred. Cardenas had already picked up the donated food when he diverted to the parking lot, and he promptly returned to the food warehouse with the food following the accident. Despite Church’s claim to the contrary, no evidence showed that Cardenas was not on his way back to the food warehouse when he struck and injured Cadena with the truck. As the trial court ruled, Church’s claim that Cardenas was on his way to another location when the accident occurred was speculative. It was based on the evidence that Cardenas received a phone call from an unknown person as he was driving the truck before the accident occurred. But there was no evidence that the phone call prompted Cardenas to be on his way to another location as he was leaving the parking lot.

Nonetheless, the trial court failed to apprehend that the jury reasonably could have concluded that, even though Cardenas was indisputably in the midst of discharging his food pickup duties for Church when the accident occurred, his act of diverting several miles from his designated route to drop off Cadena in the parking lot where the accident occurred constituted a substantial deviation from his duties, not a minor one.

The trial court correctly noted that “[i]t was reasonably foreseeable that, as part of [his] duties, [Cardenas] would be involved in a truck accident and be the cause of injury to other vehicles and/or pedestrians.” But this observation sweeps too broadly, because it does not account for the lack of a nexus between Cardenas’s act of diverting to the parking lot to drop off Cadena, and Cardenas’s food pickup and delivery duties for Church’s food warehouse. Church cannot be held vicariously liable for Cardenas’s negligent and tortious injury of Cadena simply because injury-causing accidents with vehicles are reasonably foreseeable. In this case, the jury reasonably could have concluded that Cardenas was substantially deviating from his duties at the time the accident occurred.

In ruling that the vicarious liability issue was established as a matter of law against Church, the trial court erroneously relied on several distinguishable cases. In Perez v. Van Groningen & Sons, Inc. (1986) 41 Cal.3d 962, an employee was performing his work for his employer—disking an orchard with a tractor and “disking attachment”—when the employee allowed his nephew to ride with him on the tractor. (Id. at p. 965.) The employer had a rule or policy forbidding passengers from riding on the tractor “because of the potential danger.” (Ibid.) While riding on the tractor, the nephew fell into the disking attachment and was injured. (Id. at pp. 965-966.)

The Perez court held that the trial court erroneously refused to instruct the jury that the employee was acting in the course and scope of his employment when the accident occurred as a matter of law. (Perez v. Van Groningen & Sons, Inc., supra, 41 Cal.3d at pp. 965, 969.) The court essentially reasoned that it is generally foreseeable that employee-drivers will violate their employers’ policies by carrying unauthorized passengers, and “so long as injury to the rider occurs while the driver is carrying out his employer’s business, the employer must be held liable” under the respondeat superior doctrine. (Id. at p. 969.) That the employee violated his employer’s policy by carrying an unauthorized passenger on the tractor was “insufficient to take [the employee] outside the scope of his employment since he was still carrying out his employer’s business.” (Id. at p. 970.)

Here too, Cardenas violated Church’s policies by carrying Cadena as a passenger in the truck. But we are not saying that Cardenas’s unauthorized act of carrying Cadena as his passenger was sufficient, in and of itself, to render the accident outside the scope of Cardenas’s agency or employment as a matter of law. Rather, we are holding that the jury reasonably could have determined that Cardenas’s act of driving several miles out of his designated route to drop off Cadena in the Ontario parking lot, where the accident occurred, was a substantial deviation from his duties—sufficient to take the accident outside the scope of Cardenas’s agency or employment. (See CACI No. 3723.)

The employee in Perez was indisputably doing his work for his employer—disking the orchard—and had not substantially deviated from his duties for his employer when the accident occurred. Although Cardenas was in the midst of discharging his food pickup and delivery duties for Church when the accident occurred, he had also driven several miles from his route, and was on a purely personal errand, when the accident occurred. The employee in Perez was not on a personal errand, several miles away from the orchard, when his nephew fell into the disking attachment and was injured.

The trial court also cited Trejo v. Maciel (1966) 239 Cal.App.2d 487, observing that “[i]n discussing the concept of foreseeability the courts have recognized that there may be a combination of a mission for an employer together with an employee’s personal mission. When this occurs the inquiry must focus on whether or not at the same time, the employee could be said to be indirectly serving his master; whether or not the breaking off into personal pursuits was so complete so that it is a complete departure from the employer’s business and, in the case of a deviation, whether or not there was a resumption of the master’s business.” (Italics added.) The trial court then noted that Cardenas was engaged in his duties for Church and was driving back to the food warehouse, or had resumed his duties for Church, when the accident occurred. But again, the court did not apprehend that the jury reasonably could have determined that Cardenas’s act of diverting to the Ontario parking lot was “such a complete departure” from Church’s business that it took the accident outside the scope of his agency and employment for Church, even though Cardenas promptly returned to the food warehouse and was on his way back to the food warehouse when the accident occurred.

The court also relied on Spradlin v. Cox (1988) 201 Cal.App.3d 799 (Spradlin) in noting that, as did the defendants in Spradlin, “Church wrongly focuses on the events which culminated in Cadena being brought to the parking lot, rather than the alleged negligent act (Cardenas running over Cadena) which gave rise to her injuries.” (Capitalization & fn. omitted.) Spradlin is inapposite. There, the plaintiff’s thumb was severed as he was helping his brother-in-law operate a power saw. (Id. at p. 803.) At the time of the accident, the brother-in-law was working for his employer, the defendant, D.C. Faller, and the plaintiff testified in his deposition that he was helping his brother-in-law with the saw in order to repay a personal debt he owed to his brother-in-law. (Id. at pp. 803-804.)

The brother-in-law and his employer moved for summary judgment on the ground the plaintiff’s suit was barred by Labor Code section 3601, because undisputed evidence showed that the plaintiff was working as the defendant employer’s employee at the time he was injured. (Spradlin, supra, 201 Cal.App.3d at p. 804.) The court rejected this claim and reversed summary judgment in favor of the defendants on the ground there was a triable issue concerning whether the plaintiff was the defendant employer’s employee at the time of the accident. (Id. at pp. 804-806.)

The court also rejected the defendants’ subsidiary argument that the plaintiff, “by pleading and attempting to prove [the employer’s] vicarious liability under the doctrine of respondeat superior, has alleged facts which bar his common law action for negligence as a matter of law.” (Spradlin, supra, 201 Cal.App.3d at p. 808.) On this point, the court noted that the “[d]efendants wrongly focus on the events which culminated in plaintiff being brought to the jobsite, rather than the alleged negligent act which gave rise to the injuries . . . . What is relevant [to vicarious liability] . . . is whether [the brother-in-law] was acting within the scope of his employment when the accident occurred. At a minimum, this means that liability may not be imposed unless a ‘nexus’ exists between the alleged wrongful act and [the brother-in-law’s] employment.” (Id. at p. 809, italics added.)

The court then noted the question whether the plaintiff was acting as the defendant employer’s employee at the time of the accident “[did] not turn on whether [the brother-in-law] was acting within the scope of his employment when he requested that plaintiff assist him at the jobsite.” (Spradlin, supra, 201 Cal.App.3d at p. 809.) Rather, the court observed that “the facts necessary to plead and prove [the employer’s] vicarious liability” were “not the same” as the facts which would establish that the plaintiff was the employer’s employee at the time of the accident. (Id. at p. 810.)

This places Spradlin in its context. In noting that the defendants were “wrongly” focusing on the events which culminated in the plaintiff being brought to the jobsite, the court was only saying that whether the brother-in-law was acting in the course and scope of his employment, and whether the employer was vicariously liable, turned on the negligent act which gave rise to the plaintiff’s injuries, not the facts that culminated in the plaintiff being brought to the jobsite. The facts that culminated in the plaintiff being brought to the jobsite were relevant to whether the plaintiff was acting as an employee when he was injured. Spradlin offers scant support for the proposition that the events that culminated in Cadena being brought to the parking lot were irrelevant to the jury’s determination of whether the substantial deviation doctrine applied. Those facts were indeed relevant to the jury’s determination of whether Cardenas was substantially deviating from his duties at the time the accident occurred. As discussed, Cardenas had driven miles away from his route and was on a purely personal errand at the time Cadena was injured.

IV. DISPOSITION

The order granting Cadena’s new trial motion is reversed. The matter is remanded to the trial court with directions to hear and consider Cadena’s new trial motion as a new trial motion, rather than as a motion for a partial JNOV, on the issue of whether Church was vicariously liable for Cardenas’s negligence and Cadena’s resulting damages. We express no opinion whether the court may properly exercise its discretion to grant a new trial on the vicarious liability issue, given that, in this appeal, Cadena defended the appealed order granting her new trial motion solely on the ground that it was a properly entered partial JNOV on the vicarious liability issue, and Cadena did not claim the court could have properly granted a new trial on the vicarious liability issue. The parties shall bear their respective costs incurred in this appeal. (Cal. Rules of Court, rule. 8.278.)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS

J.

We concur:

MILLER

Acting P. J.

MENETREZ

J.