Steele v. Cingular Wireless

Filed 8/30/07 Steele v. Cingular Wireless CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

In appellant Roberta A. Steeles personal injury action, the trial court granted nonsuit in favor of respondent Cingular Wireless LLC (Cingular). Steele appeals, contending that Cingular was vicariously liable for its employees motor vehicle accident.^[1] We affirm the judgment.

I. Facts

On Monday, September 24, 2001, defendant Mark Edward Garcia left work at 4:45 p.m. At about 7:30 p.m., he was driving a car that collided with a car driven by appellant Roberta A. Steele. Garcia was using his cell phone at the time of the accident.

In September 2002, Steele brought a personal injury action against Garcia, alleging inter alia, negligence and product liability claims. She amended her complaint to name respondent Cingular as a defendant on two causes of action. Steele alleged that Garcia was a Cingular employee and that Cingular was thus responsible for his negligence on a respondeat superior liability theory.^[2] She also alleged that Cingularthe manufacturer of Garcias cell phonewas liable to her on a product liability theory. By August 2003, the trial court had sustained a demurrer to the products liability cause of action.

In August 2005, Cingular filed deposition testimony supporting its contention that the call that Garcia was engaged in at the time of the accident was personal. In September and October 2005, the trial court held a Cottle hearing (Cottle v. Superior Court (1992) 3 Cal.App.4th 1367 (Cottle)) to test Steeles prima facie case for employer liability. (See pt. III., post.) In November 2005, the trial court granted Cingular a nonsuit on the negligence claim, finding no triable issue of fact on whether Garcia acted during the course and scope of his employment at the time of the collision.

II. Appealability

The parties do not raise the threshold issue of whether the order granting nonsuit from which Steele purports to appeal is an appealable order. As the issue goes to our appellate jurisdiction, we consider it on our own motion. (Olson v. Cory (1983) 35 Cal.3d 390, 398; see Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 696.)

Under the final judgment rule, an order failing to dispose of all claims between litigants is not an appealable order. (Nguyen v. Calhoun (2003) 105 Cal.App.4th 428, 436; see Code Civ. Proc.,  904.1; see also 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal,  57, p. 113.) If the case involves multiple parties and the trial courts judgment leaves no issue to be determined as to one party, then the judgment is final as to that one party for purposes of the final judgment rule. (Nguyen, at p. 437; see 9 Witkin, supra,  67 p. 126.) Thus, to conclude that we have jurisdiction to consider the merits of the issues Steele raises in her appeal, we must first determine that the order granting nonsuit disposed of the last issue remaining between her and Cingular. We consider the trial court record to determine this question.

In April 2003, Steeles third amended complaint alleged two causes of action against Cingularnegligence and products liability. After Cingular demurred to this complaint in August 2003, the trial court sustained a demurrer to the products liability cause of action. It rejected Steeles contention that Cingularas the manufacturer of the drivers cell phoneowed a duty of care to drivers who shared the road with their customers, finding that the Cingular cell phone was not the proximate cause of the motor vehicle accident. The trial court sustained the demurrer to the products liability cause of action alleged in the third amended complaint without leave to amend. Despite this, Steele filed a fourth amended complaint in September 2003 purporting to allege the same two causes of action against Cingular. In the fall of 2005, the trial court found that Steele did not state a prima facie case against Cingular on her negligence cause of action and thus, granted nonsuit to Cingular on that cause of action.

We find that both causes of action alleged against Cingular have been resolved against Steele. The order granting nonsuit resolved the negligence claim. The order sustaining the demurrer to the products liability cause of action contained in the third amended complaint without leave to amend resolved that cause of action in Cingulars favor. The purported products liability cause of action alleged against Cingular in the later, fourth amended complaint was void because Steele did not obtain trial court leave to amend the complaint to again allege this cause of action after Cingulars demurrer to it had been sustained without leave to amend.

When a trial court grants an order, any party affected by the order may apply for reconsideration of that order within 10 days after service of written notice of entry of the order. The application for reconsideration must be based on new or different facts, circumstances or law. (Code Civ. Proc.,  1008, subd. (a); see Crotty v. Trader (1996) 50 Cal.App.4th 765, 771.) A motion for reconsideration is required if a party seeks to set aside a trial court order. (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1499; see Code Civ. Proc.,  1008.)

The order sustaining Cingulars demurrer to the products liability claim without leave to amend was served on Steele in August 2003. Steele did not move for reconsideration of this ruling, either before or after the 10-day period for filing such a motion, nor is there any suggestion of new evidence that might be considered by the trial court. (See Code Civ. Proc.,  1008, subd. (a).) Thus, Steele had no leave to allege a products liability claim again in her fourth amended complaint. Her attempt to do so without leave to amend was void. As the only two causes of action alleged against Cingular in Steeles action have been resolved, the final order affecting these two partiesthe order granting nonsuitis a final judgment from which an appeal may be brought. Certain of our appellate jurisdiction, we now turn to the merits of the issues Steele raises in her appeal.

III. Scope of Employment

Steele contends that at the time of the accident, Garcia was acting in the scope of his employment and thus Cingular is liable for his actions under the doctrine of respondeat superior. Under a respondeat superior doctrine, an employer is vicariously liable for the torts of its employees if they were committed within the scope of employment. (Yamaguchi v. Harnsmut (2003) 106 Cal.App.4th 472, 481.) If an employees action was either required or incident to his or her duties, or could have reasonably been foreseen by the employer, then vicarious liability is appropriate. (Bailey v. Filco, Inc. (1996) 48 Cal.App.4th 1552, 1559.) If an employees action was not driven by the employees health, comfort or convenience while at work, then the doctrine of respondeat superior does not apply. (Id. at pp. 1562-1564.) If the action constituted a substantial departure from the employees responsibilities, then it was not reasonably foreseeable by the employer.

Steele reasons that Garcia acted within the scope of his employment even though he was not at his workplace because he was using his Cingular cell phone at the time of the accident. She notes that Garcia made five cell phone calls on the night in question including one only 10 minutes before the accident. She reasons that a jury should decide whether this conduct constituted acting in the course and scope of employment.

A trial courts inherent powers to manage complex litigation permit that court to order the exclusion of evidence if the plaintiff cannot establish a prima facie case before the start of trial. (Lockheed Martin Corp. v. Continental Ins. Co. (2005) 134 Cal.App.4th 187, 211-212; Cottle, supra, 3 Cal.App.4th at p. 1381.) A so-called Cottle hearing is similar to a motion for nonsuit, in which the trial court tests the sufficiency of evidence without regard to any conflicting evidence that the defendant may present. When evaluating the evidence that the plaintiff puts on, the trial court does not weigh the evidence or consider the credibility of witnesses, but accepts as true the evidence most favorable to the plaintiff, indulging in every legitimate inference in the plaintiffs favor. (Lockheed Martin Corp., at p. 212.)

The issue of scope of employment is typically a question of fact. However, it becomes a question of law when the facts are undisputed and conflicting inferences are impossible. (Perez v. Von Groningen & Sons, Inc. (1986) 41 Cal.3d 962, 968; Le Elder v. Rice (1994) 21 Cal.App. 4th 1604, 1607-1608.) As there are no disputed facts in this matter, we conduct a de novo review of the trial courts ruling on this question of law. (Le Elder, at p. 1608.)

It is undisputed that Garcia was an employee of Cingular whose regular office hours were from 8:00 a.m. to 5:00 p.m. As a salaried employee, he was not paid for any extra work he performed after normal business hours. He was on-call for emergencies at all times, 24 hours a day, seven days a week. He drove his own vehicle and was not reimbursed for gas or vehicle operating expenses. On the day of the accident, Garcia left work shortly before 5:00 p.m. and drove to meet a friend to discuss their flag-football team. Then he drove to a store to pick up furniture for his family. The accident occurred about 7:30 p.m.

Steele failed to establish any connection between Garcias actions on the evening of the accident and his employment with Cingular. The undisputed evidence established that at the time of the accident Garcia was on his cell phone discussing a personal matter, not a work issue. The accident occurred more than two hours after the end of Garcias regular work day, and after he had driven to complete two personal errands unrelated to his employment. These activities are exclusively personal, thereby absolving Cingular of any liability for Garcias actions. (See Le Elder v. Rice, supra, 21 Cal.App.4th at p. 1607.)

Despite this, Steele argues that because Garcia had received business calls on other evenings around the same time of day, Cingular could be liable. We disagree. The undisputed evidence before the trial court was specific to the date of the accident. It conclusively established that the key cell phone call was not work related.

On appeal, a judgment of nonsuit after a Cottle hearing must be affirmed if the plaintiffs evidence is merely speculation and conjecture. Reversal is proper only if there is some substance to the plaintiffs evidence about which reasonable minds could differ. (Lockheed Martin Corp. v. Continental Ins. Co., supra, 134 Cal.App.4th at p. 212.) Although all inferences must be weighed in Steeles favor, this view of the evidence does not relieve her of the burden of establishing the elements of her case. (See Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402.) She has not done so.

Finally, Steele contends that because Garcia was on-call for emergencies 24 hours a day, vicarious liability should apply. Again, we disagree. This theory of employer liability has already been rejected by other appellate courts. (See, e.g., Le Elder v. Rice, supra, 21 Cal.App.4th at pp. 1607-1610.) On-call availability to an employer does not transform private conduct into company business. (See id. at p. 1610.) Thus, we find that the trial court properly granted nonsuit in favor of Cingular on Steeles second cause of action for motor vehicle negligence.

IV. Disposition

The judgment is affirmed.

_________________________

Reardon, J.

We concur:

_________________________

Ruvolo, P. J.

_________________________

Rivera, J.

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^[1] Steele filed a timely notice of appeal from the judgment of nonsuit. (See pt. II., post.)

^[2] Garcia had been employed by Cingular since July 2001. Steele claims that Garcia was working for Cingular at the time of the accident in order to be available to resolve technical problems via his cell phone. Garcia worked for Cingular weekdays from 8:00 a.m. to 5:00 p.m. and he was on-call for emergencies at all other times.