Case Name: Holly Wright, et al. v. Paul Alexander DaSilva, et al.

Case No.: 2016-1-CV-296446

Motion for Summary Judgment

Factual and Procedural Background

On or about March 25, 2012, plaintiffs Richard Wright III and Holly Wright purchased a 2000 Honda Odyssey (“Vehicle”) from defendants Capitol Honda and UAG Capitol, Inc. dba Capitol Honda (“UAG”). (First Amended Complaint (“FAC”), ¶19.) The Vehicle was manufactured, designed, assembled, et al. by defendant American Honda Motor Co., Inc. (“AHMC”). (FAC, ¶20.)

On or about June 16, 2014, defendant Paul Alexander DaSilva (“DaSilva”), while acting in the course and scope of his employment by defendant DaSilva Dairy Farms, LP (“DaSilva Farms”), drove through a red traffic signal directly facing him without braking or swerving at the intersection at Dale Road and Kaiser Drive in the city of Modesto and collided with the Vehicle occupied by plaintiffs Holly Wright, Richard Wright III, Jeremy Wright, and decedents Ashleigh Wright and Curtis Lanch. (FAC, ¶¶22 – 29.) As a result, Ashleigh Wright and Curtis Lanch died. (Complaint, ¶31.)

On information and belief, plaintiffs allege defendant DaSilva has a driving record preceding this collision which includes multiple DUIs, reckless driving, multiple accidents, and revocation(s) and/or suspension(s) of his driving privilege and defendant DaSilva Farms knew of DaSilva’s driving record. (FAC, ¶¶25 and 30.)

On June 15, 2016, plaintiffs Holly Wright, Richard Wright III, Jeremy Wright by and through his guardian ad litem Dan Snyder, and Arvelle Lanch (“Plaintiffs”) filed a complaint against DaSilva, DaSilva Farms, AHMC, Capitol Honda and UAG asserting causes of action for: (1) Negligence; (2) Strict Liability; and (3) Negligent Infliction of Emotional Distress.

On August 12, 2016, defendant UAG Capitol, Inc. dba Capitol Honda (“Capitol Honda”) filed its answer to the complaint. On August 15, 2016, defendant AHMC filed its answer to the complaint. On September 6, 2016, defendant DaSilva filed his answer to the complaint. On September 9, 2016, defendant DaSilva Farms filed its answer to the complaint.

On June 1, 2017, the court granted Plaintiffs’ motion for leave to file an amended complaint. On June 8, 2017, Plaintiffs filed the operative FAC which asserts causes of action for:

(1) Negligence, Grossly Reckless, and Wrongful Acts, including as Defined in Civil Code Sec. 3294 for Punitive or Exemplary Damages – Injuries and Wrongful Death [against DaSilva and DaSilva Farms]
(2) Negligence [against AHMC, UAG, Capitol Honda]
(3) Strict Products Liability/ Injuries and Wrongful Deaths [against AHMC, UAG, Capitol Honda]
(4) Breach of Express Warranty [against AHMC, UAG, Capitol Honda]

On June 13, 2017, plaintiffs further amended the pleading to substitute Da Silva Dairy Management, Inc. (“DaSilva Management”) for a Doe defendant.

On September 29, 2017, defendant DaSilva filed an answer to the FAC. On October 24, 2017, defendants DaSilva Farms and DaSilva Management (collectively, “DaSilva Dairy”) filed an answer to the FAC.

On June 29, 2018, defendant DaSilva Dairy filed the motion now before the court, a motion for summary judgment.

I. Defendant DaSilva Dairy’s motion for summary judgment is DENIED.

In the instant action, defendant DaSilva Dairy’s liability is premised, at least in part, on a theory of respondeat superior. “Under the doctrine of respondeat superior, an employer is vicariously liable for his employee’s torts committed within the scope of the employment.” (Perez v. Van Groningen & Sons (1986) 41 Cal.3d 962, 967; see also CACI, No. 3700.)

Under the respondeat superior doctrine, the term “scope of employment” has been interpreted broadly. (Farmers Ins. Group v. County of Santa Clara (1995) 11 Cal.4th 992, 1004, 47 Cal.Rptr.2d 478, 906 P.2d 440 (Farmers).) “ ‘[T]he employer’s liability extends beyond his actual or possible control of the employee to include risks inherent in or created by the enterprise.’ ” (Id. at p. 1003, 47 Cal.Rptr.2d 478, 906 P.2d 440, italics omitted.) “ ‘[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.’ ” (Id. at p. 1004, 47 Cal.Rptr.2d 478, 906 P.2d 440.) Thus, an employer’s vicarious liability may extend to the employee’s negligence, willful and malicious torts, or acts that contravene an express company rule and confer no benefit to the employer. (Ibid.)

The plaintiff bears the burden of proving that the employee’s tortious act was committed within the scope of employment. (Mary M., supra, 54 Cal.3d at p. 209, 285 Cal.Rptr. 99, 814 P.2d 1341.) “Ordinarily, the determination whether an employee has acted within the scope of employment presents a question of fact; it becomes a question of law, however, when ‘the facts are undisputed and no conflicting inferences are possible.’ ” (Id. at p. 213, 285 Cal.Rptr. 99, 814 P.2d 1341.)

Significantly, the imposition of respondeat superior liability is not dependent on the employer’s undertaking any act or upon any fault by the employer. (Perez v. Van Groningen & Sons, Inc. (1986) 41 Cal.3d 962, 967, 227 Cal.Rptr. 106, 719 P.2d 676 (Perez).) Rather, an employer may be vicariously liable for an employee’s tort if the employee’s act was an “ ‘outgrowth’ ” of his employment, “ ‘ “inherent in the working environment,” ’ ” “ ‘ “typical of or broadly incidental to” ’ ” the employer’s business, or, in a general way, foreseeable from the employee’s duties. (Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 298–299, 48 Cal.Rptr.2d 510, 907 P.2d 358.) Foreseeability in the context of respondeat superior liability must be distinguished from foreseeability as a test for negligence. (Farmers, supra, 11 Cal.4th at p. 1004, 47 Cal.Rptr.2d 478, 906 P.2d 440.) “ ‘ “[F]oreseeability” 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.’ ” (Ibid. italics omitted.)

(Purton v. Marriott International, Inc. (2013) 218 Cal.App.4th 499, 505 (Purton); see also CACI, Nos. 3720, 3722, and 3724.)

In moving for summary judgment, defendant DaSilva Dairy contends it bears no responsibility for the conduct of its employee, DaSilva, based on the following facts. DaSilva was employed by DaSilva Dairy as an animal health manager. On or about June 16, 2014, at or about 7:13 p.m., Richard Wright III, Holly Wright, Jeremy Wright, Ashleigh Wright and Curtis Lanch were occupants in a Honda Odyssey vehicle driven by Holly Wright. At that date and time, at the intersection of Kaiser Drive and Dale Road in Modesto, California, DaSilva was operating his 2003 Dodge Ram truck when he collided with the rear passenger side of Plaintiffs’ Honda Odyssey. DaSilva was driving a Dodge truck at the time of the accident which he owned personally since its time of purchase in 2003. DaSilva personally paid for the maintenance on his Dodge truck personally. DaSilva obtained the insurance for his Dodge truck and paid the premiums personally. DaSilva did not use the Dodge truck in his work for DaSilva Dairy. DaSilva finished work at 5:00 p.m. on the day of the subject collision, hours prior to the collision. DaSilva left work at 5:00 p.m., went home, watched soccer on television and showered before leaving to pick up a friend to watch a sporting event. DaSilva was not commuting to or from work at the time of the subject incident. DaSilva was not transporting or delivering anything for DaSilva Dairy at the time of the subject collision. DaSilva was on his way to a friend’s house at the time of the accident.

“[T]he determining factor in ascertaining whether an employee’s act falls within the scope of his employment for respondeat superior liability is not whether the act was authorized by the employer, benefited the employer, or was performed specifically for the purpose of fulfilling the employee’s job responsibilities. [Citation.] Rather, the question is whether the risk of such an act is typical of or broadly incidental to the employer’s enterprise.” (Yamaguchi v. Harnsmut (2003) 106 Cal.App.4th 472, 481–482, 130 Cal.Rptr.2d 706.) “The employee’s activities must be inherent in, typical of or created by the work so that it is a foreseeable risk of the particular employment. [Citations.] Whether the tort occurred within the scope of employment is a question of fact, unless the facts are undisputed.” (Tognazzini v. San Luis Coastal Unified School Dist. (2001) 86 Cal.App.4th 1053, 1057, 103 Cal.Rptr.2d 790.)

(Sunderland v. Lockheed Martin Aeronautical Systems Support Co. (2005) 130 Cal.App.4th 1, 9.)

Plaintiffs Holly Wright and Richard Wright; Jeremy Wright; and Arvelle Lanch are separately represented by counsel. Each filed opposition to defendant DaSilva Dairy’s motion for summary judgment and each filed a joinder in their co-plaintiffs’ opposition.

In opposition, plaintiff Jeremy Wright proffers evidence that DaSilva was not an employee of DaSilva Dairy, but a managing partner of DaSilva Management and an eight percent (8%) owner of DaSilva Farms. “A partnership is liable for loss or injury caused to a person, or for a penalty incurred, as a result of a wrongful act or omission, or other actionable conduct, of a partner acting in the ordinary course of business of the partnership or with authority of the partnership.” (Corp. Code, §16305, subd. (a).) Thus, whether an employee or a partner, the relevant issue is whether DaSilva was acting in the course and scope of his employment or acting in the ordinary course of business of the partnership.

Plaintiffs proffer evidence that DaSilva’s whole life was in the dairies as he had been working in the family business since he was four years old. DaSilva’s home at the time of the incident was on the Dairy Property and was part of his compensation/benefits as a partner/owner of the Dairy. DaSilva was on-call 24 hours a day, seven (7) days a week as emergencies came up at any time, because it was “a job that never quits.” It was not uncommon for DaSilva to work odd hours, and go into the office late evenings or early mornings. DaSilva’s parents and four siblings have work roles on the Dairy and reside in homes supplied by the Dairy on Dairy property in Escalon, CA.

On the morning of the vehicular collision on Monday, June 16, 2014, Lander Veterinary Clinic, Michael Steine, DVM (“Dr. Steine”), and DaSilva were together approximately six hours on the DaSilva Dairy Farms property in Escalon, CA performing “cattle check,” an intensive veterinary examination and treatment of the cattle for pregnancies, vaccinations, and related activities for the health and safety of this herd of 6,000 cattle and its milk product. A dairy veterinarian is a specialist and there is an intimate and mutually beneficial business relationship between the dairy veterinarian and the dairy he services. The yearly veterinarian fees for a herd of 6,000 cattle is in the hundreds of thousands of dollars. Dr. Steine was the primary veterinarian at the Dairy.

Following the business activity that morning on the dairy property, DaSilva adjourned for several hours to his company supplied residence, as did Dr. Steine to his home in Modesto, CA. The two had made arrangements to attend together that evening a Portuguese [bloodless] bullfight. The bullfight arena is located on Lander Avenue in Stevinson, CA which was a well-known agricultural event. Lander Veterinary Clinic advertises its services on a large poster sign displayed on the circular bull ring, as do many other dairy related businesses. Nearly all of the 92 advertisers whose billboard ads completely encircle the bull ring, relate to businesses associated with dairies. The Portuguese Bullfights in Stevinson, CA are attended by many owners and workers in the Dairy industry and are used as an opportunity for entertainment and business purposes.

Shortly after the accident in an August 22, 2016 letter to the judge presiding over the criminal manslaughter prosecution of DaSilva, Dr. Steine refers to DaSilva as a “client” and refers to their working relationship. Nowhere in the letter does Dr. Steine describe their relationship as “friends.” DaSilva testified that when he and Dr. Steine were together outside of the Dairy, they would still discuss work related issues, animal husbandry, and the Dairies. DaSilva described Dr. Steine as a good source of information on caring for animals that are in his charge.

Based on these facts above, there is at least a quantum of evidence to suggest that there DaSilva was on his way to attend a bull fight with Dr. Steine and this activity was (1) not personal, but inherent in, typical of or created by the work of a dairy manager so that it is a foreseeable risk of the particular employment; or (2) in the ordinary course of business of DaSilva Management. On a motion for summary judgment, the court is not tasked with weighing the evidence. The court is merely to determine whether there is a triable issue of material fact. Thus, whether DaSilva was acting within the scope of his employment or acting in the ordinary course of business of the partnership presents a triable question of material fact. Accordingly, defendant DaSilva Dairy’s motion for summary judgment is DENIED.

DaSilva Dairy argues additionally that it is not liable under theories of negligent entrustment or negligent retention. The court need not address these arguments because, even if DaSilva Dairy’s arguments were meritorious, Code of Civil Procedure section 437c does not provide for partial summary judgment. Even if DaSilva Dairy sought summary adjudication in the alternative, the statute would not authorize such relief. Code of Civil Procedure section 437c, subdivision (f)(1) only allows summary adjudication “if it completely disposes of a cause of action.” Plaintiffs asserted only a single cause of action for negligence against DaSilva Dairy.