Haddad v. Forbes Industries
Filed 5/24/13 Haddad v. Forbes Industries 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NOT TO BE PUBLISHED IN OFFICIAL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opinion has not been certified for publication or ordered published for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
SALAM HADDAD et
al.,
Plaintiffs and Appellants,
v.
FORBES INDUSTRIES
et al.,
Defendants and Respondents.
E055208
(Super.Ct.No. CIVDS917100)
OPINION
APPEAL
from the Superior Court of
Bernardino County. John
P. Vander Feer, Judge. Affirmed.
AlderLaw,
Michael Alder and Jennifer P. Burkes for Plaintiffs and Appellants.
Osman
& Associates, Richard L. Scott and Danielle D. Mittskus for Defendants and
Respondents.
This is an appeal from a
plaintiffs and appellants, Salam Haddad et al., (hereafter collectively
referred to as plaintiffs) in their action seeking damages, among other things,
for wrongful death against defendants
and respondents, Forbes Industries and The Winsford Corporation
(defendants). Plaintiffs are the
surviving wife and children of Nail Haddad, who was killed the morning of May 21, 2009, in a head-on collision with Rueben Michael Garcia
(Garcia), who was driving the wrong way on a freeway off ramp. Garcia was under the influence of alcohol at
the time of the collision and had a blood-alcohol level of 0.23. Defendants are Garcia’s employers, whom
plaintiffs sued on the theory that Garcia was acting in the course and scope of
his employment when the accident occurred.
Defendants
moved for summary judgment asserting it was undisputed that Garcia had not come
to work on the day of the accident.
Therefore, defendants asserted it was undisputed that the accident that
killed Nail Haddad had not occurred in the course and scope of Garcia’s
employment. The trial court found there
was no triable issue of material fact on that element of plaintiffs’ complaint
and granted summary judgment in defendants’ favor.
Plaintiffs
contend, among other things, that triable issues of material fact exist
regarding whether Garcia was driving in the course and scope of his employment
at the time of the accident and, therefore, the trial court should not have
granted summary judgment in defendants’ favor.
We disagree with plaintiffs.
Therefore, we will not address plaintiffs’ other claims
because those claims are irrelevant.
On
appeal, we review de novo an order granting summary judgment. (Aguilar
v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860 (Aguilar).) The trial court
must grant a summary judgment motion when the evidence shows that there is no
triable issue of material fact and the moving party is entitled to judgment as
a matter of law. (Code Civ. Proc., § 437c, subd. (c);
at p. 843.) In making this
determination, courts view the evidence, including all reasonable inferences
supported by that evidence, in the light most favorable to the nonmoving
party. (§ 437c, subd. (c);
the burden of producing evidence showing that one or more elements of the
plaintiff’s cause of action cannot be established, or that there is a complete
defense to that cause of action. (§
437c, subd. (o)(2); Aguilar,
25 Cal.4th at pp. 849-851, 854-855.)
The burden then shifts to the plaintiff to produce specific facts
showing a triable issue as to the cause of action or the defense. (§ 437c, subd. (o)(2);
the defendant, as the moving party, always bears the ultimate burden of
persuasion as to whether summary judgment is warranted. (§ 437c, subd. (o)(2); Aguilar, at p. 850.)
Plaintiffs’ theory of
liability with respect to defendants was based on respondeat superior, i.e.,
that at the time of the accident defendants were Garcia’s employers and Garcia
was acting in the course and scope of his employment. “Under the theory of respondeat superior,
employers are vicariously liable for tortious acts committed by employees
during the course and scope of their employment. [Citation.]â€
(Lobo v. Tamco (2010) 182
Cal.App.4th 297, 301 [Fourth Dist., Div. Two].)
in Support of Summary Judgment
In their summary judgment
motion, defendants did not deny that Garcia was their employee. They asserted, however, that it was
undisputed that Garcia was not acting in the course and scope of his employment
at the time of the accident because he had not reported for work that day.
More particularly,
defendants asserted it was undisputed that at the time of the accident on May
21, 2009, Garcia was their employee (defendants manufacture mobile carts for
the hospitality industry); Garcia had been employed by defendants for about
eight years as a marketing assistant; Garcia telephoned his supervisor, Sheley,
and told him that he had a flat tire and would not be in to work that day;
Garcia asked Sheley to find someone to turn on the video player in the lobby of
the company’s office, a project Garcia had been assigned to do that day; and
Sheley was on vacation and not at work, so he asked Garcia to telephone Michael
Hewitt, Sheley’s supervisor, to let him know that Garcia would not be coming in
to work.
Defendants also asserted
that it was undisputed that at 8:52 a.m., on May 21, 2009, Garcia purchased a
bottle of Jack Daniels at an Albertson’s grocery store located within five
miles of defendants’ office building.
Two hours after buying the liquor, Garcia drove his vehicle the wrong
direction on the southbound I-215 off ramp at Baseline Street and collided
head-on with a vehicle driven by Nail Haddad, who died as a result of injuries
sustained in that collision. It is also
undisputed that Garcia was driving his own vehicle at the time of the accident. On May 22, 2009, Garcia’s wife called
defendants to tell them that Garcia had been in an accident, and that he was in
the intensive care unit at a hospital.
Defendants paid Garcia sick leave for the day of the accident and
subsequent days.
Defendants further asserted
it was undisputed that as a marketing assistant, Garcia’s work duties did not
require him to use his personal vehicle, and his position did not require that
he possess a driver’s license. Garcia
was not allowed to work from home. His
duties involved graphic design, photography, and assembling marketing
paraphernalia, such as advertisements and mailers. Garcia worked on a computer, in a
workstation, located at the company’s office in Ontario. In the eight years he had worked for
defendants before the accident, Garcia used his personal vehicle approximately
two times to run errands for his supervisor.
Garcia did not file a worker’s compensation action based on the injuries
he suffered in the accident.
Defendants’ showing in the
trial court, and recounted above, was sufficient to negate the element of
plaintiffs’ respondeat superior claim that Garcia was working at the time of
the accident. Defendants showed that
Garcia was on his own time, and not acting in the course and scope of his employment
with defendants, when the collision occurred.
Therefore, the burden shifted to plaintiffs to present evidence
sufficient to create a triable issue of material fact on the issue of whether
Garcia was acting within the course and scope of his employment at the time of
the accident.
in Opposition to Summary Judgment
In their opposition,
plaintiffs asserted that a triable issue of material fact existed regarding
whether Garcia was acting within the course and scope of his employment at the
time of the accident because (1) the documentation defendants offered to show
that Garcia called his employer to say that he would not be coming in to work
on May 21, 2009, was an email prepared by Sheley, dated July 31, 2009, more
than two months after the accident; (2) Sheley’s email showed that Garcia
called at 8:15 a.m., but in his declaration, Sheley stated that Garcia
called him after 9:00 a.m.; (3) Sheley conceded in his deposition that it
made no sense that Garcia would need to take an entire day off from work to fix
a flat tire, even if that tire was the spare, as Garcia had claimed in his
telephone call; (4) there is conflicting evidence regarding the project Garcia
was involved in on the day of the accident in that Sheley initially stated he
did not recall if Garcia had a project to do that day, but if he did, it would
have been to start the video in the lobby.
However, Sheley’s supervisor stated that Garcia had a drawing due on the
morning of the accident; (5) Sheley’s cell phone bill, which defendants offered
to show that Garcia had called Sheley on the morning of May 21, 2009, was not
authenticated and, in any event, defendants did not present any evidence
establishing Garcia’s telephone number and/or that his telephone number
appeared on the cell phone bill in question;
May 21, 2009, the day of the accident, which is not consistent with their claim
that Garcia did not come in to work because he had a flat tire;
(7) defendants did not produce any document that showed Garcia was not
working on May 21, 2009, except an absence report prepared by Sheley on May 22,
2009, indicating Garcia was to be paid sick pay based on the telephone call
from Garcia’s wife, but that absence report does not state that Garcia called
in to say he had a flat tire and would not be coming in to work. Moreover, the absence report was not printed
until February 2010; (8) Garcia purchased alcohol at an Albertson’s grocery
store located within five miles of defendants’ office where Garcia worked, but
Garcia lived in Fontana, which is 15 miles from both that office and the
Albertson’s grocery store in question; and (9) photographs of the inside of
Garcia’s truck after the accident showed a black portfolio, which must have
been from his work rather than Garcia’s personal portfolio because Sheley and
Hewitt both testified at their depositions that to their knowledge Garcia did
not carry a portfolio.
Plaintiffs argued in the
trial court, as they do in this appeal, that the above cited evidence creates a
triable issue of material fact on the question of whether Garcia was acting
within the course and scope of his employment at the time of the accident. Therefore, plaintiffs contend the trial court
erred in granting summary judgment in defendants’ favor. We disagree.
Create a Triable Issue of Material Fact
Plaintiffs’
showing in the trial court is, at best, directed at challenging the credibility
of defendants’ witness, Sheley, who, as set out above, stated in his
declaration and deposition testimony that Garcia had not come in to work on the
day of the accident. Summary judgment,
if otherwise appropriate, may not be denied on grounds of credibility. (§ 437c, subd. (e) [“If a party is otherwise
entitled to a summary judgment pursuant to this section, summary judgment may
not be denied on grounds of credibilityâ€].)
Moreover,
plaintiffs’ attack on Sheley’s credibility consists entirely of speculation
based on facts that are irrelevant because they are not material to the issue
of defendants’ liability. Plaintiffs did
not offer any evidence to show that Garcia was working on May 21, 2009, and
therefore was acting within the course and scope of his employment at the time
of the accident. Instead, plaintiffs
speculate, among other things, that Garcia must have been working because (1)
defendants would not have paid him sick leave for May 21, 2009, and (2) Garcia
would have purchased the bottle of Jack Daniels closer to his home in
Fontana. There are obvious answers to
both questions. First, defendants paid
Garcia sick leave because Garcia was an employee of defendants even if he was
not actually working on May 21, 2009, when the accident occurred. Next, Garcia could have been on his way to
work when he decided instead to stop at the Albertson’s and buy the bottle of
whiskey. In short, nothing in
plaintiffs’ opposition showing is inconsistent with defendants’ showing in
support of its summary judgment motion.
At most, plaintiffs attempted to undermine the credibility of Sheley,
defendants’ key witness to the fact that Garcia was not working on May 21,
2009, and therefore was not acting in the course and scope of his employment at
the time of the accident. Absent such a
showing, the trial court correctly granted summary judgment in defendants’ favor.
The
summary judgment in favor of defendants and respondents Forbes Industries and
The Winsford Corporation is affirmed.
Defendants and respondents to recover costs on appeal.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting
P.J.
We concur:
KING
J.
CODRINGTON
J.
name="_ftn1" title=""> [1] One of plaintiffs’ other claims is that the
trial court should have denied defendants’ summary judgment motion because
Garcia had invoked his Fifth Amendment right to remain silent and had not
provided any information. They claim
that, as a result, they were unable to obtain information about the project
Garcia was working on at the time of the accident. If relevant at all, that evidence was
directed at undermining the credibility of Mark Sheley, Garcia’s supervisor, as
plaintiffs effectively admit. Plaintiffs
also claim they had been unable to take the deposition of one of Garcia’s
coworkers and, for that reason, the trial court should have denied defendants’
summary judgment motion. Plaintiffs do
not identify the information they had hoped to obtain from the coworker and,
therefore, have not demonstrated a basis upon which to deny defendants’ summary
judgment motion.
name="_ftn2" title=""> [2] All further statutory references are to the
Code of Civil Procedure unless otherwise indicated.
