BAPTIST v. ROBINSON

Filed 9/21/06

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

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Appellants’ contention that Robinson’s winemaking could provide a profit to the Winery because Martella’s wine did so, is entirely speculative and thus “is insufficient to establish a triable issue of material fact.” (Sangster v. Paetkau, supra, 68 Cal.App.4th at p. 163.) Robinson made a small amount of wine; Martella made up to 1200 cases a year. Robinson had no arrangement with Dr. Fogarty, as Martella had, to produce his own label of wine at the Winery. And even if we assume that the Winery profited from the sale of Martella wines,[1] it simply does not follow from the fact that Martella’s winemaking venture may have produced a profit for the Winery that Robinson’s winemaking would also benefit the Winery.

Finally, the record does not show, as appellants assert, that Robinson’s “express job duties“ at the Winery included assisting Martella in making Martella’s own label of wine. Dr. Fogarty stated that he did not know if Martella used other employees to help him make his own wine. Although Martella purchased some Syrah grapes from the Coyote Springs Vineyard after evaluating the grapes that Robinson had purchased there, these facts do not reasonably support an inference that part of Robinson’s employment duties at the Winery was to assist Martella to make Martella’s own wine. In sum, appellants were unable to show, under the so-called benefit test, that Robinson was “ ‘[]either directly or indirectly . . . serving his employer’” when he was on his way to purchase his own grapes the morning of the accident. (Farmers, supra, 11 Cal.4th at p. 1004.)

Appellants contend that there were triable issues of fact as to whether there was a reasonable relationship between the conduct causing the accident and Robinson’s employment at the Winery, and further that there were triable issues of fact as to whether the accident was reasonably foreseeable in light of the employer’s business as a winery and Robinson’s job as assistant winemaker. (See CACI No. 3720.) Appellants’ theory is that allowing employees to make their own wine was a customary incident of the employment relationship and that this activity would reasonably include transporting grapes to the Winery from other vineyards in the area. In support of their theory, appellants produced evidence showing the following facts. Dr. Fogarty permitted Martella to make his personal label of wine on the premises, and to use equipment and facilities at the Winery to do so. Martella was Robinson’s direct supervisor and Dr. Fogarty expected that Robinson, as assistant winemaker, would follow the directions of Martella, who was head winemaker and responsible for the day-to-day operation of the Winery. Martella became aware that Robinson was making small quantities of his own personal wine on the premises and encouraged him in this activity. In making his own wine, with Martella’s permission, Robinson was crushing his grapes at the Winery, using the Winery’s T-bins as fermentation vessels, using a grape press and barrels belonging to the Winery, and using the Winery’s forklift to unload his grapes. Martella picked up some crushed grapes for Robinson and brought them to the Winery, knowing that Robinson was going to use the grapes for making his own personal wine. When Martella picked up the crushed grapes, he used T-bins in the back of his pickup truck. Martella allowed Robinson to finish making his own wine from the 2003 harvest, even though Adams had told him that summer to tell Robinson to stop making personal wine on the premises.

Appellants contend that these facts create a triable issue that Robinson had the ostensible approval of his employer to make his wine using the Winery’s equipment and facilities and to transport grapes from area vineyards. In appellants’ view, this can therefore be considered to be a part of Robinson’s employment and winemaking training at the Winery. Appellants further contend that because Martella used T-bins to pick up grapes for Robinson several weeks after the accident, it can be inferred that Robinson was also authorized, or at least permitted, to use the T-bins for that purpose. Robinson’s trip to pick up the grapes for his own wine with the T-bin on the morning of October 23, 2003, was therefore reasonably connected to his employment and was a foreseeable consequence of his employment.

While we must view the evidence in a light most favorable to appellants, we cannot agree that the inferences appellants draw from the facts are reasonable ones. For instance, it does not logically follow from the fact that Martella allowed Robinson to pursue his own winemaking, at least until the 2003 harvest was over, that Robinson’s personal winemaking activities constituted part of his employment training or employment benefits at the Winery. Adams asked Martella about this and Martella told him that Robinson’s production of small quantities of his own personal wine was “absolutely not” an essential part of his job. There is no evidence that allowing employees to make their own personal stocks of wine was a “recognized, established and encouraged custom,” so as to be a customary incident of the employment relationship, either at the Winery in this case or in the winemaking industry. (See McCarty v. Workmen’s Comp. Appeals Bd. (1974) 12 Cal.3d 677, 683.) In fact in this case Martella, the head winemaker, was the only employee who had an arrangement with Dr. Fogarty to make his own wine on the premises.

Furthermore, Martella’s use of two T-bins to pick up some crushed grapes for Robinson does not tend to show that Robinson had permission or authorization from his employer to use T-bins to transport harvested grapes. The undisputed evidence was that Robinson did not have permission to use the T-bin and no one at the Winery saw him taking it or knew he was using it. Moreover, when Martella used the T-bins to pick up the crushed grapes from the Santa Cruz vineyard, he did not know that Robinson had used a T-bin to transport grapes two weeks earlier. This was the first time either Robinson or Martella had ever used T-bins for this purpose. It is not disputed that the T-bins were not intended for transporting grapes off the premises but rather were intended for use as fermenting bins at the Winery. It cannot be inferred from these facts that the use of T-bins to transport uncrushed grapes was a customary or typical occurrence in the Winery’s winemaking business. The conduct producing the injury was therefore not a reasonably foreseeable risk “ ‘inherent in or created by the [employer’s] enterprise.’ “ (Farmers, supra, 11 Cal.4th at p. 1003.)

Plaintiffs’ theory that Robinson’s conduct causing the accident was reasonably foreseeable in light of his employer’s business and his job responsibilities rests primarily on Avila v. Standard Oil Co. (1985) 167 Cal.App.3d 441 (Avila). In Avila, Ernesto Hernandez and Elias Meza worked at a Standard Oil service station. Meza was Hernandez’s trainee. When Hernandez had started working at the station, he had been told by his supervisor Kevin Ganz that he could not work on personal vehicles at the station during business hours. However, several years later Ganz allowed Hernandez to store his motorcycle, which needed repairs, at the station. On the day in question Ganz was present when Hernandez was working on his motorcycle at the station during regular business hours and Meza was helping him. Hernandez asked Meza to go get a part for him and loaned Meza his father’s truck. On the way to do this errand, Meza lost control of the truck and struck plaintiffs.

The court in Avila found that there were triable factual issues as to whether Meza was acting within the scope of his employment at the time of the accident, whether Hernandez had ostensible approval to work on his motorcycle during the workshift, and whether such approval was part of the exchange of benefits between Hernandez and his employer. The key facts were that Meza was doing an errand that his supervisor had specifically asked him to do, and that this occurred during working hours. The court further found there were facts from which a factfinder could conclude that Hernandez had ostensible authority to work on his motorcycle and that this was part of the exchange of benefits between Hernandez and his employer. Although there was a standing rule against working on personal vehicles during business hours, Ganz had specifically allowed Hernandez to bring his motorcycle and store it at the station, knew Hernandez was repairing it, and was present during some of the time when Hernandez and Meza were working on it. This, the court found, created a triable issue of fact that the rule against working on personal vehicles had been revoked, and that working on personal vehicles at the station during business hours may have been a benefit of the employment relationship. Meza was a trainee instructed to follow Hernandez’s directions. The court concluded, under all of these circumstances, that a fact finder could determine that it was foreseeable that Hernandez would direct Meza to run an errand off the premises in furtherance of an employment-related purpose. Thus the grant of summary judgment in favor of the employer was improper. (Avila, supra, 167 Cal.App.3d at p. 448.)

The case before us is distinguishable from Avila in several important respects. In our case, Robinson was never told by his supervisor Martella or by anyone at the Winery to go and pick up grapes on the morning of October 23, 2003. Robinson planned and paid for the trip himself, made his own arrangements with the Coyote Springs Vineyard, and loaded the T-bin in his truck the night before. His errand was for his own purposes and not at the direction of Martella or anyone at the Winery. No one saw him take the T-bin, put it in his truck, or leave the premises. And none of this occurred during regular business hours as in Avila. Although Martella was aware that Robinson was making his own wine, contrary to the express prohibition of management, there was no evidence from which to draw a reasonable inference that Robinson’s personal winemaking was part of the exchange of benefits of his employment. In fact his employer had only recently learned of this activity and had responded by telling Robinson’s supervisor to put an end to it. A factfinder could not reasonably find under all of these circumstances that Robinson’s “main purpose [was] to carry on the business of the employer” when he set out on the morning of October 23, 2003. (Avila, supra, 167 Cal.App.3d at p. 448.)

Ratification of Employee’s Conduct

As an alternate theory to respondeat superior, an employer may be liable for an employee’s act where the employer either authorized the tortious act or subsequently ratified an originally unauthorized tort. (Shultz Steel Co. v. Hartford Accident & Indemnity Co. (1986) 187 Cal.App.3d 513, 519; Civ. Code, § 2339.) The failure to discharge an employee who has committed misconduct may be evidence of ratification. (Murillo v. Rite Stuff Foods, Inc. (1998) 65 Cal.App.4th 833, 852.) The theory of ratification is generally applied where an employer fails to investigate or respond to charges that an employee committed an intentional tort, such as assault or battery. (McChristian v. Popkin (1946) 75 Cal.App.2d 249; Murillo v. Rite Stuff Foods, Inc., supra, 65 Cal.App.4th 833.) Whether an employer has ratified an employee’s conduct is generally a factual question. (Siva v. General Tire & Rubber Co. (1983) 146 Cal.App.3d 152.)

Appellants contend that the facts show that the Winery “ratified“ Robinson’s personal winemaking activities because it did nothing to discipline him following the accident with the T-bin and in fact promoted him in April of 2004 to on-site sales manager. But appellants do not show how Robinson’s personal winemaking activities constituted any form of misconduct that was later ratified. There is nothing inherently harmful to others in this activity. Furthermore, the record reflects that after Martella learned of the accident, he told Robinson, as he had previously been instructed to do by the general manager, to discontinue his personal winemaking activities and to remove any stock of personal wine he was storing on the Winery premises. Robinson’s personal stock of wine was removed from the premises by January of 2004. Appellants do not contend that the Winery in some way ratified or approved of Robinson’s use of the T-bin, or his failure to secure the T-bin in the back of his truck, the conduct that caused the harm. In sum, the theory that an employer can be liable through ratifying an employee’s wrongful conduct does not apply to these circumstances.

Direct Negligence

In their first amended complaint appellants alleged that the Winery’s negligence was a cause of the injury in that the Winery failed to instruct its employees on safe methods of securing T-bins in an open truck. The elements of a negligence cause of action are the existence of a legal duty of care, breach of that duty, and the breach as the proximate cause of the resulting injury. (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917-918.)

In its summary judgment motion, the Winery produced evidence showing that the T-bins at the Winery were not intended to be used to transport harvested grapes. When grapes were transported from the field to the Winery, another kind of bin, called an S-bin, was used. T-bins were used for fermenting crushed grapes on the premises of the Winery. The record shows that Robinson’s use of a T-bin on October 23, 2003, to transport his grapes in his own vehicle was the first time he, or anyone else at the Winery, had used a T-bin in this manner. No one knew he was going to use the T-bin and no one saw him take it. Martella’s use of two T-bins several weeks later to pick up crushed grapes does not tend to establish that this was a common practice at the Winery. According to Martella, this was the first time he had used T-bins for this purpose and at the time he did not know about Robinson’s use of the T-bin. The evidence thus shows that transporting grapes by means of T-bins in pickup trucks was not a typical or common aspect of the employment duties at the Winery. It was not reasonably foreseeable that someone would be harmed by a T-bin that was being used in a manner that it was not intended to be used. Therefore, there was no duty of care on the part of the Winery to prevent such harm by providing training to its employees in safe methods of securing T-bins for transportation in open trucks. Consequently there can be no breach of duty.

Appellants cited no case authority in their opening brief to support their contention that the Winery breached a duty of care to them by failing to give employees safety instructions regarding transporting T-bins. However, in their reply brief they expand on this point, citing numerous cases to support the argument that Robinson’s use of the T-bin was not an intervening or superseding cause of the injury. (See, e.g., Jackson v. Ryder Truck Rental, Inc. (1993) 16 Cal.App.4th 1830; Bigbee v. Pacific Tel. & Tel. Co. (1983) 34 Cal.3d 49; Robison v. Six Flags Theme Parks, Inc. (1998) 64 Cal.App.4th 1294.) When new arguments are raised in the reply brief, to which respondent has no opportunity to respond, we are not required to consider them. (Pallco Enterprises, Inc. v. Beam (2005) 132 Cal. App. 4th 1482.) Furthermore, to the extent that these cases discuss proximate cause, they are not relevant here. As we have concluded, the facts do not show the existence of a legal duty. If there is no duty, consideration of proximate cause is not necessary. (Sturgeon v. Curnutt (1994) 29 Cal.App.4th 301, 306.)

Appellants make the additional argument that the Winery was negligent in failing to follow through to ensure that Martella had told Robinson to stop making wine on the premises, as Adams had directed Martella to do, and that Robinson had in fact stopped making his personal wine at the Winery. Appellants did not plead this theory of negligence and did not raise it in the summary judgment proceedings. Consequently, respondent did not have the opportunity to respond to it and appellants cannot raise it for the first time on appeal. (See In re Marriage of Eben-King & King (2000) 80 Cal.App.4th 92, 117 [“[I]ssues or theories not properly raised or presented in the trial court may not be asserted on appeal, and will not be considered by an appellate tribunal.”].) Furthermore, this argument presupposes that the Winery had a duty to prevent Robinson from making his own wine on the premises. There is no evidence that this activity posed a danger or risk of harm to others. Therefore the Winery could not have breached a duty of care by failing to ensure that Robinson’s winemaking activities had ceased.

DISPOSITION

The judgment in favor of Thomas Fogarty Winery, LLC, is affirmed.

_______________________________________________________

Bamattre-Manoukian, ACTING P.J.

WE CONCUR:

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MIHARA, J.

_________________________

MCADAMS, J.

Baptist v. Robinson, et al

H029233

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[1] Whether Martella’s wine produced a profit for the Winery was in dispute. In Dr. Fogarty’s deposition he testified that it was his understanding that Martella could sell his own label of wine at the Winery’s tasting room and that the Winery would make a profit from this. The Winery later produced evidence by its accountant that the Martella wine did not produce a profit for the Winery. It was not sold on the Winery’s premises until 2004, and the arrangement with Martella was that the Winery would write off the costs of his personal wine production as a bonus to him.