2017-00208633-CU-PA

Corinne Barber vs. Mark Luther Rall

Nature of Proceeding: Motion for Summary Judgment and/or Adjudication (Cross Complaint)

Filed By: Whitmore, LeeAnn E.

Defendant/cross-defendant State of California, by and through California State Lottery’s (the “California Lottery” or “Defendant”) motion for summary judgment or, in the alternative, summary adjudication of defendant/cross-complainant Mark Luther Rall’s (“Rall”) cross-complaint is GRANTED.

Objections to Evidence

While Rall filed written “objections to evidence,” his objections are procedurally defective. Rall “objected” to several of the California Lottery’s UMFs. Rall’s objections are overruled because objections are properly directed solely at “evidence.” (See CRC Rules 3.1352, 3.1354.)

The Court need not rule and does not rule on the California Lottery’s objections to evidence. (See Code Civ. Proc. 437c(q).)

Factual and Procedural Background

This action arises from an automobile accident involving Rall and plaintiffs Corrine and Amanda Barber (“Plaintiffs”) on February 20, 2016. Plaintiffs filed a complaint against Rall on February 28, 2017, seeking damages from Rall and his employer, the California Lottery. Rall then filed a cross-complaint against the California Lottery on March 2, 2018, alleging the following four causes of action: (1) defense and indemnity pursuant to Government Code §§ 825 and/or 995; (2) indemnity; (3) comparative fault; and (4) and declaratory relief.

The California Lottery moves for summary adjudication of each cause of action on the grounds Rall was not acting within the course and scope of his employment at the time of the accident, the California Lottery cannot be liable for common law indemnity, the California Lottery did not contribute to the automobile accident, declaratory relief is unnecessary and superfluous, and the California Lottery cannot be compelled to pay a judgment for punitive damages under Government Code § 825(a) [“Nothing in this section authorizes a public entity to pay that part of a claim or judgment that is for punitive or exemplary damages.]; see also § 818 [“Notwithstanding any other provision of law, a public entity is not liable for damages awarded under Section 3294 of the Civil Code or other damages imposed primarily for the sake of example and by way of punishing the defendant.”] .

Legal Standard

In evaluating a motion for summary judgment or summary adjudication the Court engages in a three step process.

First, the Court identifies the issues framed by the pleadings. The pleadings define the scope of the issues on a motion for summary judgment or summary adjudication. (FPI Dev. Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381-382.) Because a motion for summary judgment or summary adjudication is limited to the issues raised by the pleadings (Lewis v. Chevron (2004) 119 Cal. App. 4th 690, 694), all evidence submitted in support of or in opposition to the motion must be addressed to the claims and defenses raised in the pleadings. The Court cannot consider an unpleaded issue in ruling on a motion for summary judgment or summary adjudication. (Roth v. Rhodes (1994) 25 Cal.App.4th 530, 541.) The papers filed in response to a defendant’s motion for summary judgment or summary adjudication may not create issues outside the pleadings and are not a substitute for an amendment to the pleadings. (Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334, 1342.)

Next, the Court must determine whether the moving party has met its burden. A defendant moving for summary judgment or summary adjudication bears the burden of persuasion that one or more elements of the plaintiff’s cause of action cannot be established, or that there is a complete defense to the cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 850, quoting C.C.P § 437c(p)(2).) A defendant is not required to conclusively negate one or more elements of the plaintiff’s cause of action. (Saelzer v Advance, Group 400 (2001) 25 Cal.4th 763, 780-781). Rather, to meet its burden, the defendant is only required to show that the plaintiff cannot prove an element of its cause of action, i.e., that the plaintiff does not possess and cannot reasonably obtain evidence necessary to show this element. (Aguilar, supra, at 853-855.)

At the same time, a defendant cannot shift the burden to the plaintiff simply by suggesting the possibility that the plaintiff cannot prove its case; a moving defendant must still make “an affirmative showing” in support of its motion. (See Aguilar, supra, at 854-855 n.23; Addy v Bliss & Glennon (1996) 44 Cal.App.4th 205, 214.)

Once the moving party has met its burden, the burden shifts to the opposing party to show that a material factual issue exists as to the cause of action alleged or a defense to it. (C.C.P. § 437c(p); see, generally Bush v. Parents Without Partners (1993) 17 Cal. App. 4th 322, 326-327.) In ruling on the motion, the Court must consider the

evidence and inferences reasonably drawn from the evidence in the light most favorable to the party opposing the motion. (Aguilar, supra, at 843.)

Summary adjudication requires disposition of an entire cause of action or claim for damages. (Code Civ. Proc. § 437c(f)(1); Hindin v. Rust (2004) 118 Cal. App. 4th 1247, 1256.)

First Cause of Action – Indemnity Pursuant to Government Code §§ 825 and/or 995

As to Government Code § 825, the California Lottery argues § 825 only applies where a public entity has agreed to provide a defense and is not a basis upon which the California Lottery can be compelled to indemnify and defend Rall. The Court agrees. Section 825 concerns the duty of a public entity to pay a judgment, compromise, or settlement of a claim or action to which the public entity has agreed to defend and indemnify. Here, it is undisputed the California Lottery specifically did not agree to defend and indemnity Rall as it determined he was not acting within the course and scope of his employment. (UMF 21.) Accordingly, Rall’s cause of action pursuant to § 825 fails as a matter of law. Moreoever, Rall has not set forth any opposition to this argument or presented any facts in dispute. Therefore, the Court finds the California Lottery has met its burden on the claim pursuant to § 825, Plaintiff has failed to create a triable issue of fact, and, therefore, summary adjudication is GRANTED as to Plaintiff’s first cause of action pursuant to § 825.

Turning to indemnity pursuant to Government Code § 995, the California Lottery argues the claim fails because the undisputed facts establish Rall was not acting within the course and scope of his employment at the time of the accident and, therefore, the California Lottery is not required to indemnify him.

Government Code § 995 provides: “Except as otherwise provided in Sections 995.2 and 995.4, upon request of an employee or former employee, a public entity shall provide for the defense of any civil action or proceeding brought against him, in his official or individual capacity or both, on account of an act or omission in the scope of his employment as an employee of the public entity.”

Section 995.2 provides, in relevant party: “(a) A public entity may refuse to provide for the defense of a civil action or proceeding brought against an employee or former employee if the public entity determines any of the following: (1) The act or omission was not within the scope of his or her employment.”

Generally, the doctrine of respondeat superior is “‘grounded upon “a deeply rooted sentiment that a business enterprise cannot justly disclaim responsibility for accidents which may fairly be said to be characteristic of its activities.”‘” (Martinez v. Hagopian (1986) 182 Cal.App.3d 1223, 1228.) Vicarious liability under this theory requires “a relationship between the nature of the work involved and the type of tort committed,” such that the employment “predictably . . . create[s] the risk employees will commit . . .

torts of the type for which liability is sought.” (Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 298-299, 302).) Indeed, “‘the modern justification for [an employer’s] vicarious liability'”-that, “‘as a required cost of doing business,'” liability for torts “‘sure to occur in the conduct of the employer’s enterprise'” should be “‘placed upon that enterprise itself ‘”-derives from a connection between the employer’s particular enterprise and the particular risks at issue. (Hinman v. Westinghouse Elec. Co. (1970) 2 Cal.3d 956, 959-960.)

Accordingly, under the doctrine of “respondeat superior”, an employer is vicariously liable for risks broadly incidental to the enterprise undertaken by the employee, i.e. for an employee’s conduct that, in the context of the employer’s enterprise, 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. (See Rodgers v. Kemper Constr Co. (1995) 50 Cal.App.3d 608, 619; Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202; Perez v. Van Groningen &

Sons, Inc. (1986) 41 Cal.3d 962, 968; Devereaux v. Latham & Watkins (1995) 32 Cal.App.4th 1571, 1583.)

For an employer to be vicariously liable under the doctrine of respondeat superior, the plaintiff must prove that the employee’s tortious conduct was committed within the scope of employment. (See Maria D. v. Westec Residential Security, Inc. (2000) 85 Cal.App.4th 125, 134, citing Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 208-209.) In determining whether the act at issue was committed within the course and scope of employment depends on whether: “(1) the act performed was either required or instant to the employee’s duties, or (2) the employee’s misconduct could be reasonably foreseen as an outgrowth the employee’s duties.” (See Maria D. v. Westec Residential Security, Inc., supra, 85 Cal.App.4th at 138.)

Although the determination of whether an employee acted within the course and scope of his employment is usually a question of fact, where the facts are undisputed and no conflicting inferences are possible, such determination may become a question of law. (See Mary M. v. Los Angeles (1991) 54 Cal.3d 202, 213; Waack v. Maxwell Hardware Co. (1930) 210 Cal. 636; Gordoy v. Flaherty (1937) 9 Cal.2d 716, 717-718).

The California Lottery offers the following facts in support of its contention that Rall was not acting within the course and scope of his employment. On Saturday, February 20, 2016, Rall was involved in a motor vehicle accident with Plaintiffs. (UMF No. 1.) After the accident, Rall was arrested for driving under the influence and pled no contest to violation of California Vehicle Code Section 23152(b). (UMF No. 2.) Rall was employed with the California Lottery as an investigator from 2014 to 2016. (UMF No.

3.) The California Lottery is a public entity, an agency of the State of California. (UMF No. 4.) Rall was assigned a state vehicle to conduct state business. (UMF No. 25.) The vehicle was only to be used to conduct state business and not for personal purposes. (UMF No. 6.) Rall signed an acknowledgment that he would be personally liable for any damage resulting from the use of the vehicle for personal purposes. (UMF No. 7.) Rall’s regularly scheduled work days were Tuesday through Fridays. (UMF No. 8.) February 20, 2016 was Rail’s scheduled day off. (UMF No. 9.) Rall did not have authorization or permission from anyone at the California Lottery to work on February 20, 2016. (UMF No. 10.) No one at the California Lottery requested that he work on February 20, 2016. (UMF No. 11.) He did not have permission from anyone at the California Lottery to drive the state vehicle on February 20, 2016. (UMF No. 12.) Lieutenant Steve Olson was Rall’s supervisor. (UMF No. 13.) Rall needed to receive permission from his supervisor in order to work overtime. (UMF No. 14.) Rall never contacted Lieutenant Olson to seek authorization to work on February 20, 2016. (UMF No. 15.) Rall claims he was driving to the California Lottery office because he wanted to catch up on paperwork. (UMF No. 17.) Rall made a unilateral decision to drive to the California Lottery office on February 20, 2016 because he wanted to catch up on paperwork. (UMF No. 18.) No one at the California Lottery authorized him work on February 20, 2016. (UMF No. 19.) Rall was not performing any work for the California

Lottery at the time of the accident. (UMF No. 20.)

Based on the foregoing, California Lottery argues Rall’s choice to drive the California Lottery vehicle on his day off (Saturday), while intoxicated, to catch up on paperwork does not bring the accident into the course and scope of employment because he was not authorized nor did he have permission to perform any work on February 20, 2016. The California Lottery relies on Morales-Simental v. Genetech, Inc. (2017) 16 Cal.App.5th 445 and certain other cases in support, but the Court finds Morales-Simental the most persuasive and relevant. In Morales-Simental the Court of Appeal for the First Appellate District found an employer was not liable for injuries from a collision that occurred when its employee, a lead technician tasked with hiring, was en route to work on his night off to review resumes. The Court found the employee could not request himself to perform a special errand on the employer’s behalf; the hiring assignment, coupled with the employer’s emails advising that further action was necessary, was not a request to the employee to perform a special errand to complete the assigned hiring task; and the trip was not part of the employees’ regular duties of hiring for the night shift. (Morales-Simental at 457-458.)

In opposition, Rall first cites to Vehicle Code § 17150 for the proposition that a permissive user of a vehicle is one who is given permission by words or conduct to use a vehicle not his own. This reference is irrelevant to any of the issues raised by the pleadings, which frame a motion for summary judgment. The pleadings define the scope of the issues on a motion for summary judgment or summary adjudication. (FPI Dev. Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381-382.) The Court cannot consider an unpleaded issue in ruling on a motion for summary judgment or summary adjudication. (Roth v. Rhodes (1994) 25 Cal.App.4th 530, 541.)

Next, Rall relies on Anderson v. Wagnon (1952) 110 Cal.App.2d 362 and Hicks v. Reis (1943) 21 Cal.2d 654 and argues that his additional facts create a triable issue as to whether implied permission to use the automobile may be found by the jury, making the California Lottery liable for damages arising from the accident. Anderson, however, is inapposite as it did not involve an employee/employer relationship or discuss anywhere what constitutes acting within the “course and scope of employment.” Similarly, while Hicks involved an employee taking a car from his employer’s used car dealership, Hicks did not analyze whether the employee was driving within the “course and scope” of his employment. Rather, the case concerned whether the owner of the automobile had given the employee permission to take the car. The issue here is not whether Rall was given permission to use the vehicle. Indeed, it is undisputed that the California Lottery provided the vehicle to Rall to use, but only to use in connection with his employment. Rall seems to miss the point. As the California Lottery points out, Anderson and Hicks were also decided prior to the Government Claims Act and have no applicability as to whether the California Lottery is required to indemnify Rall under § 995. The issue is whether Rall was acting in the course and scope of his employment at the time of the accident such that the California Lottery is required to defend and indemnify him pursuant to § 995 in the action brought by Plaintiffs, not whether he simply had permission to use the vehicle.

Rall then contends there is a triable issue of fact as to whether he was acting in the course and scope of his employment. Rall argues the California Lottery can be liable for the tortious acts while he was “going and coming” from work because: (1) the California Lottery furnished the transportation (i.e., the vehicle); (2) he was on a “special errand;” and/or (3) the trip involved an incidental benefit to California Lottery.

The Court addresses each argument in turn below.

“‘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 … . 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 … .'” (Jeewarat v. Warner Brothers Entertainment, Inc. (2009) 177 Cal.App.4th 427, 435.) Because commuting to or from one’s place of employment typically has no connection with the specific nature of the business conducted there, courts have recognized the rule, under which “an employee is not regarded as acting within the scope of his employment while going to or coming from his place of work.” (Ducey v. Argo Sales Co. (1979) 25 Cal.3d 707, 722.)

Furnishing the Transportation

Rall cites to Hinman v. Westinghouse Elec. Co. (1970) 2 Cal.3d 956 and argues that because the California Lottery furnished him a state-issued vehicle, it can be inferred that the California Lottery agreed the working relationship would continue during the period of “going and coming” to work. Hinman, however, did not hold that an employer can be liable for an employee’s tortious conduct while going and coming to work simply because the employer furnished the employee with a vehicle. Rather, in Hinman, the employee, an elevator constructor’s helper for Westinghouse, was returning home from a job site at the time of the accident. The employee’s work was assigned from his employer’s office, but he did not go to the office before or after work. Instead, he went from home directly to the job site and after work returned home from the job site. The employee was paid for his travel expenses, but the employer had no control over the method or route of transportation. The employer had not furnished the transportation. The Court found the employer was liable for the employee’s negligent act because the trip involved an incidental benefit to the employer – reaching out into the labor market to attract employees, which increased the risk of injuries. Thus, the Court concluded travel time was part of the employment contract and the employer could be held liable. (Hinman, supra, at 959, 962.) Further, while Hinman cites to Kobe v. Industrial Acc. Com. (1950) 35 Cal.2d 33, which discusses generally when an employer furnishes transportation to and from work, that case arose under the workmen’s compensation law, and involved whether the employee’s injuries were sustained in the course of employment and therefore fell within the parameters of workers’ compensation act.

Parenthetically, the Court is aware that the going and coming rule does not apply “when an employee endangers others with a risk arising from or related to work.” ( Bussard v. Minimed, Inc. (2003) 105 Cal.App.4th 798, 804-805.) But any such “dangerous instrumentality” exception only applies where “activities within [an employee’s] scope of employment . . . cause the employee to become an instrumentality of danger to others.” (See Childers v. Shasta Livestock Auction Yard, Inc. (1987) 190 Cal.App.3d 792, 804-805.)

Here, the Court is not persuaded that, like in Hinman, the travel time to work on a scheduled day off that was not approved by anyone at the California Lottery can become a party of the employment contract simply because the California Lottery furnished the vehicle. Further, there is no evidence that Rall was ever compensated for travel time, as was the case in Hinman, or that Rall’s actual travel provided any benefit

to the California Lottery, which was also the case in Hinman. Accordingly, Hinman is not persuasive. The Court is not persuaded a triable issue of fact exists simply because California Lottery furnished the vehicle to Rall.

Special Errand Exception

Under the “special errand” or “special missions” exception, when an employee “is coming from his home or returning to it on a special errand either as part of his regular duties or at a specific order or request of his employer, the employee is considered to be in the scope of his employment.” (Boynton v. McKales (1956) 139 Cal.App.2d 777, 789.) The exception thus applies when a trip to or from the workplace benefits the employer in a way that is “not common to commute trips by ordinary members of the work force.” (Hinman, supra, 2 Cal.3d at p. 962.)

Rall contends there is a triable issue of fact as to whether he was on a “special errand” for the California Lottery. Under the relevant test, the Court disagrees. “The special-errand exception to the going-and-coming rule is stated as follows: ‘If the employee is not simply on his way from his home to his normal place of work or returning from said place to his home for his own purpose, but is coming from his home or returning to it on a special errand either as part of his regular duties or at a specific order or request of his employer, the employee is considered to be in the scope of his employment from the time that he starts on the errand until he has returned or until he deviates therefrom for personal reasons.’” (Moradi v. Marsh USA, Inc. (2013) 219 Cal.App.4th 886, 907.)

“The mere fact that a trip may be related to an employee’s job does not impose liability on the employer under the special errand exception to the going and coming rule. The right of control goes to the very heart of tortious responsibility. The question is one of a right to control the trip. To bring an employee’s trip within the special errand exception, the employer must request or at least expect it of the employee.” (Morales-Simental, supra, at 455.)

Rall contends there is a triable issue of fact as to whether his supervisor, Lieutenant Steve Olson, expected him to come in to work outside of his normal working hours to catch up on work. In support, Rall presents evidence that he was not able to complete all of his work in a 40-hour per week schedule, the nature of his job required him to work flexible hours, he was not authorized to work from home, he had worked multiple times on his days off without requesting pay, his supervisor knew he worked overtime, and he was not intending to submit a request for overtime for working on February 20, 2016.

The foregoing evidence does not establish that the California Lottery expected Rall to work on Saturday. Knowing an employee may work overtime and expecting an employee to work overtime are not one and the same. The undisputed evidence establishes Rall made the choice to come in to catch up on work on February 20, 2016, and that nobody at the California Lottery requested this or expected this from him. Rall has not presented any evidence that he was requested to work on his days off, that working on his days off was expected, or that he would be terminated or punished if he did not complete all of his work during his regular work week. Accordingly, the Court is not persuaded the “special errand” exception applies in these circumstances.

Incidental Benefit

Rall then argues the California Lottery can be held liable for indemnity because it received an “incidental benefit” to his coming in to work on his day off to catch up.

“Exceptions will be made to the ‘going and coming’ rule where the trip involves an incidental benefit to the employer, not common to commute trips by ordinary members of the work force.” (Hinman, supra, at 962.)

“The exception can apply if the use of a personally owned vehicle is either an express or implied condition of employment, or if the employee has agreed expressly or implicitly, to make the vehicle available as an accommodation to the employer and the employer “has reasonably come to rely upon its use and [to] expect the employee to make the vehicle available on a regular basis while still not requiring it as a condition of employment.” (Lobo v. Tamco (2010) 182 Cal.App.4th 297, 301 [citations omitted] (emphasis added).) “The theory is that the employer benefits from the employee driving the vehicle to and from work because the vehicle is then available for use in the employer’s business during the working day.” (Haliburton Energy Services, Inc. v. Department of Transportation (2013) 220 Cal.App.4th 87, 96.) The exception has been found to apply when a quality control manager responsible for responding to customer complaints used his personal vehicle 10 times or fewer over the course of 16 years to visit customer sites. (Lobo, supra, 182 Cal.App.4th at 302-303.)

Here, it is undisputed that Rall was issued a vehicle by the California Lottery. His personally owned vehicle is not at issue. Therefore, the Court is not persuaded this exception to the going and coming rule is applicable.

Based on all of the foregoing, the Court finds the California Lottery has met its burden to establish Rall was not acting within the course and scope of his employment at the time of the accident and, therefore, the California Lottery was not required to indemnify Rall for the claims being brought against him by Plaintiffs. Rall has failed to create a triable issue of material fact. Accordingly, the California Lottery’s motion for summary adjudication of the first cause of action pursuant to § 995 is GRANTED.

Second Cause of Action for Indemnity

The California Lottery contends Rall’s second cause of action for “indemnity” fails because governmental liability is limited to exceptions specifically set forth by statute. (Gov. Code § 815.) The intent of the Government Claims Act is to confine potential governmental liability to rigidly delineated circumstances. (Zelig v. Co. of Los Angeles (2002) 27 Cal.4th 1112, 1127.)

In opposition, Rall’s sole argument is that his second cause of action incorporates his first cause of action and, therefore, does not fail.

To the extent Rall intended to repeat his first cause of action in his second cause of action, the motion for summary adjudication is granted for the same reasons the first cause of action fails.

To the extent Rall intended to set forth a separate cause of action based on equitable or express indemnity, the Court finds the cause of action also fails for the reasons set forth in the California Lottery’s moving papers. That is, governmental liability is limited

to exceptions specifically set forth by statute and Plaintiff cannot establish there was a contract between himself and the California Lottery requiring indemnity.

For the foregoing reasons, the California Lottery’s motion for summary adjudication of the second cause of action is GRANTED.

Third Cause of Action for Comparative Fault

The California Lottery contends Ralls’ third cause of action for comparative fault fails because California Lottery did not contribute to the automobile accident. The California Lottery also contends this cause of action is based on common law negligence, which is barred under Government Code § 815.

Indeed, § 815 effectively eliminates all common law negligence claims against public entities. Public entities are immune from all tort liability unless a statute provides otherwise and when a tort claim is directed at a public entity, the plaintiff must explicitly identify the statute upon which liability is allegedly based. (See, e.g., Searcy v. Hemet Unified School District (1986) 177 Cal.App.3d 792, 802.)

Plaintiff has submitted no opposition to this argument and did not dispute any of the facts presented in support.

The Court finds California Lottery has met its burden to establish this claim fails. Plaintiff, having failed to oppose or dispute any of the facts presented in support, has failed to create a triable issue of material fact.

Accordingly, The California Lottery’s motion for summary adjudication of the third cause of action is GRANTED.

Fourth Cause of Action for Declaratory Relief

Rall’s claim for declaratory relief seeks a declaration of the parties’ rights, liabilities, and obligations regarding indemnification. The California Lottery contends this cause of action is duplicative and unnecessary because it is solely based on the other causes of action. Rall does not set forth any real argument in opposition. Rall’s only statement to address this cause of action is to say generally that “it is not an identical or superfluous cause of action.” (Oppo. at 11:15-16.)

Generally, declaratory relief is not an independent cause of action but a form of recovery. See McDowell v. Watson, (1997) 59 Cal. App. 4th 1155, 1159; see also Rosenfeld v. JPMorgan Chase Bank, N.A., 732 F. Supp. 2d 952, 975 (N:D. Cal. 2010) (dismissing plaintiffs cause of action for declaratory relief because it is a remedy and not a cause of action). Thus, Plaintiff is not entitled to declaratory relief absent an independent viable claim. Lane v. Vitek Real Estate Indus. Group, 713 F. Supp. 2d 1092, 1101 (E.D. Cal. 2010); see also Phipps v. Wells Fargo Bank, N.A., 2011 U.S. Dist. LEXIS 10550 at *50-51 (E.D. Cal. Jan. 27, 2011). “Whether a claim presents an ‘actual controversy’ within the meaning of [CCP] section 1060 is a question of law….” (

Environ’l Defense Proj. of Sierra County v. County of Sierra (2008) 159 Cal.App.4th 877, 885.)

The Court finds this cause of action is wholly derivative of and based on the first, second, and third causes of action. As summary adjudication has been granted as to

those causes of action, summary adjudication is also proper as to this derivative claim. (See Dollinger Deanza Assoc. v. Chicago Title Ins. Co. (2011) 199 Cal.App.4th 1132, 1156 (“Declaratory relief does not lie in a case in which a complaint makes no case on the merits and would merely pose a useless trial.”).)
As no independent viable claim exists, this cause of action fails.

The California Lottery’s motion for summary adjudication of the fourth cause of action is GRANTED.

Punitive Damages

The California Lottery contends, as a matter of law, it cannot be compelled to pay a judgment for punitive damages because a public entity is not required to pay a claim or judgment for an employee’s punitive damages pursuant to Government Code § 825

(a) and punitive damages may not be awarded against a public entity pursuant to Government Code § 818.

Government Code § 825(a) provides, in relevant party, “Nothing in this section authorizes a public entity to pay that part of a claim or judgment that is for punitive or exemplary damages.”

Government Code § 818 provides “Notwithstanding any other provision of law, a public entity is not liable for damages awarded under Section 3294 of the Civil Code or other damages imposed primarily for the sake of example and by way of punishing the defendant.”

Plaintiff has submitted no opposition to this argument and did not dispute any of the facts presented in support.

The Court finds California Lottery has met its burden to establish the claim for punitive damages fails. Plaintiff, having failed to oppose or dispute any of the facts presented in support, has failed to create a triable issue of material fact.

Accordingly, California Lottery’s motion for summary adjudication of the claim for punitive damages is GRANTED.

Conclusion

Having granted summary adjudication as to each cause of action, summary judgment is GRANTED.

The California Lottery shall prepare a formal order complying with C.C.P. § 437c(g) and C.R.C. Rule 3.1312.