Filed 9/14/18 Alvarado v. P. ex rel. Dept. of the California Highway Patrol CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Frederick P. Aguirre, Judge. Affirmed.

Allred, Maroko & Goldberg, Michael Maroko and John S. West for Plaintiffs and Appellants.

Xavier Becerra, Attorney General, Jonathan Wolff, Chief Assistant Attorney General, Kristin G. Hogue, Assistant Attorney General, and Joel A. Davis, Deputy Attorney General, for Plaintiff and Respondent.

INTRODUCTION

Hamlet included “the law’s delay” on his list of life’s burdens. The freeway accident underlying this lawsuit occurred over 10 years ago, and the parties to this appeal, Mayra Alvarado, her son, and the California Highway Patrol, are still disputing whether the CHP bears some responsibility for it. Nor is it likely that this is the end. This case may well be put once more before the California Supreme Court, as it was in 2013.

Appellants Alvarado and her son were injured in January 2008, when the driver of a tow truck participating in the statutorily mandated Freeway Service Patrol (FSP) program collided with her car. They sued the CHP, among others, for negligence – eventually on the grounds that the CHP was the “special employer” of the tow truck driver. The trial court denied the CHP’s motion for summary judgment, and we reversed.

The California Supreme Court granted review and, upon issuing its opinion, sent the case back for further proceedings. The CHP moved for summary judgment again, and this time it prevailed. Appellants appeal from the judgment entered after the court granted the CHP’s most recent summary judgment motion.

We affirm the judgment. Appellants failed to present evidence to create a triable issue of fact regarding the CHP’s status as the driver’s special employer. Following the Supreme Court’s guidelines for making this determination, the trial court correctly concluded there was no triable issue of fact. We agree.

FACTS

Alvarado and her son were injured when a tow truck driven by an employee of California Coach Orange, Inc. (California Coach), rear-ended her car on Interstate 5 in January 2008. Through conservators and a guardian ad litem, they sued the CHP, among others, in December 2008. The initial causes of action alleged against the CHP were negligent performance of non-delegable duties and negligence. In the second amended complaint, filed after the CHP’s demurrer was sustained with leave to amend, the plaintiffs alleged facts intended to support the conclusion the tow truck driver was the CHP’s special employee.

The plaintiffs based this claim on the structure of the FSP, which is a statutorily mandated program to clear disabled vehicles from freeways as quickly and safely as possible.[1] The CHP, Caltrans, and local agencies enter into agreements to operate and fund FSP programs in individual counties. In Orange County, the Orange County Transportation Authority (OCTA) is the local agency participating, with the CHP and Caltrans, in the FSP program.

OCTA, in turn, contracts with individual tow truck companies, referred to as “employers” in the relevant statutes, to provide trucks that patrol a “beat” (a designated section of freeway) and look for disabled vehicles. The trucks can also be individually dispatched by Caltrans employees to specific sites. The tow truck driver who hit Alvarado’s car was an employee of California Coach, which had a contract with OCTA.

After the filing of the amended complaint that included the “special employer” allegations, the CHP moved for summary judgment on the grounds that it was not the tow truck driver’s special employer and thus had no responsibility for the accident. The trial court denied this motion, and the CHP appealed. In a published opinion issued on October 15, 2013, we held that the statutory scheme underlying the FSP distinguished between the CHP and an “employer” and the CHP was not the driver’s special employer. (State ex rel. Dept. of California Highway Patrol v. Superior Court (2013) 220 Cal.App.4th 612, 618 (Alvarado I).)

The California Supreme Court granted review. It issued its opinion on February 26, 2015. The court agreed with us that the relevant FSP statutes did not make the CHP the tow truck driver’s special employer. “Its exercise of authority in that capacity [i.e., the agency most responsible for highway traffic safety] is a police power, not an employer’s prerogative.” (State ex rel. Dept. of California Highway Patrol v. Superior Court (2015) 60 Cal.4th 1002, 1013 (Alvarado II). The court, held, however, that summary judgment was not properly granted because “CHP might act as a special employer if it takes on responsibilities beyond those outlined in the FSP statutes.” (Id. at p. 1015.)

CHP moved for summary judgment again in August 2016. The matter was heard in November, and the trial court issued its ruling in December 2016. The trial court granted the motion, noting that the plaintiffs had not produced any evidence of a contract between CHP and California Coach (the tow service provider) and had failed to present “evidence of an instance where the CHP exceeded this role [of ensuring compliance with the law or the underlying agreements] and exercised something akin to an ‘employer’s prerogative.’” Alvarado and her son have appealed from this judgment.

DISCUSSION

In Alvarado II, the Supreme Court held that “[the CHP] is authorized to make its own agreements with tow service providers, in addition to the primary contracts between providers and local transportation agencies. [Citation.] Conceivably, pursuant to that authority or otherwise, CHP might agree to a role that would bring it within the scope of the special employment doctrine.” (Alvarado II, supra, 60 Cal.4th at p. 1015.) It also held that the statutes authorizing the CHP to perform certain functions within the FSP program “do not bar it from taking on other responsibilities” that may create a special employment relationship “in particular circumstances.” (Id. at p. 1008.) The court cautioned that “any government agency responsible for making sure that private contractors conform with the requirements of a project necessarily exerts some control over how those contractors and their employees do their jobs. However, an agency does not become the special employer of contractors’ employees merely by ensuring compliance with statutory, regulatory, or contractual requirements.” (Id. at p. 1012.)

The question before us now is whether there is a triable issue of fact that the CHP has in this case (1) entered into an agreement with a tow service provider (in addition to the primary contracts between providers and local transportation agencies) that would bring the CHP within the scope of the special employment doctrine or (2) “otherwise” agreed to a role that would bring it within the scope of the special employment doctrine. Is there a triable issue of fact as to whether the CHP took on responsibilities other than those imposed by statute, ones creating a special employment relationship with the tow truck driver in these particular circumstances? Or did the CHP merely ensure compliance with the FSP’s statutory, regulatory, or contractual requirements? We use the de novo standard to review a summary judgment. (Arzate v. Bridge Terminal Transport, Inc. (2011) 192 Cal.App.4th 419, 425.)

As the trial court noted, the CHP denied the existence of a contract between itself and California Coach, the “tow service provider,” and the plaintiffs did not produce evidence of such a contract.[2] Thus the plaintiffs could not show a triable issue of fact as to the first way identified by the Supreme Court in which CHP could become the tow truck driver’s special employee: an agreement with the tow service provider. (See Alvarado II, supra, 60 Cal.4th at p. 1015.)

But the Supreme Court held that the CHP could “otherwise” agree to a role that would create a special employment relationship with the tow truck driver. (Alvarado II, supra, 60 Cal.4th at p. 1015.) This agreement, however, would have to give the CHP powers and responsibilities that went beyond its “police powers” and afforded it an “employer’s prerogative” with respect to the driver. (Id. at p. 1013.) As the court observed, “[A]n agency does not become the special employer of contractors’ employees merely by ensuring compliance with statutory, regulatory, or contractual requirements.” (Id. at p. 1012.)

Appellants have two positions with respect to the CHP’s status as the driver’s special employee. First, the court in Alvarado II listed four statutory responsibilities of the CHP relating to the FSP program – doing criminal background checks of drivers, establishing training standards, providing training, dispatching FSP tow trucks – and one “inferable” responsibility – directing tow truck drivers when an officer is present during a call. (Alvarado II, supra, 60 Cal.4th at p. 1012.) Appellants believe anything the CHP does or agrees to do in connection with the FSP program other than those responsibilities is not covered by statute, is therefore not part of its police powers, and constitutes an agreement to a role that would give it the control necessary to qualify as a special employer. Appellants contend various documents referring to the CHP’s “field supervision” or “supervision of the day to day FSP field operations” establish that the CHP agreed to assume direct control over tow truck drivers beyond the statutory mandate. Appellants’ second position is that the CHP has already judicially admitted in earlier court filings that its supervisory powers over the FSP tow truck drivers were not derived from the FSP statutes.

In analyzing these arguments, we note the Supreme Court stated that the CHP’s statutory responsibilities “included” the four activities it listed in the opinion. But the court did not limit its responsibilities to these four. (Alvarado II, supra, 60 Cal.4th at p. 1012.) Streets and Highways Code section 2565 provides, in pertinent part: “The department [i.e., Caltrans], the [CHP], and participating and eligible regional and local entities shall develop and periodically update guidelines for program operations, as those guidelines and updates may be required.” According to the FSP statewide guidelines, a program has three participants: Caltrans, the CHP, and the local agency. Caltrans is responsible for administration, planning, and coordination. The local agency contracts with the tow truck companies, generates funds, and prepares budgets. “CHP is generally responsible for individual tow operator training and supervision of the day-to-day FSP field operations. In addition, the CHP is responsible for dispatching FSP vehicles.”

The guidelines elaborated on the CHP’s responsibilities in later sections. “The CHP is empowered by the California Vehicle Code to perform various functions in support of the statewide and local FSP Program. . . . The primary role of the CHP is to promote and ensure, to the extent possible, safe and efficient FSP operations throughout the state. [¶] The CHP is actively involved in developing and conducting training of contracted tow drivers, CHP officers and dispatchers; enforcing statutory and program/driver requirements; conducting field inspections of vendor equipment; and, providing FSP telecommunications and dispatch support. [¶] . . . [¶] CHP staff support in each of the local FSP Programs ensures services provided by tow contractors are of the highest quality feasible. Activities of the local CHP region include: [¶] Supervising FSP field operations. [¶] Conducting periodic/unannounced inspections of FSP vehicles and drivers. [¶] Conducting training of necessary personnel (drivers, dispatchers, CHP officers). [¶] Conducting special investigations related to unsafe or illegal FSP operations. [¶] Conducting background investigations on new drivers. [¶] Performing real-time dispatching of the local region’s FSP fleet of trucks.”

Clearly the CHP’s responsibilities in the FSP program are not limited by the four statutory duties cited in Alvarado II. “Supervising FSP field operations” is one of the ways the CHP fulfills its primary role of promoting and ensuring safe and efficient FSP operations throughout the state, along with inspecting vehicles and doing background checks.

The Legislature specifically entrusted this task to the CHP in Vehicle Code section 2435, subdivision (a), which provides in pertinent part, that “emergency roadside assistance provided by highway service organizations is a valuable service that benefits millions of California motorists. . . . The Legislature also finds that the [CHP], in cooperation with [Caltrans], is responsible for the rapid removal of impediments to traffic on the highways within the state. . . .” As among the three FSP participants, the CHP is the agency with the expertise to oversee field operations. It is “the government agency most directly responsible for ensuring highway traffic safety.” (Alvarado II, supra, 60 Cal.4th at p.1013.) Neither Caltrans nor the local transportation agencies have this mission, and the guidelines give them different responsibilities. “[A]n agency does not become the special employer of contractors’ employees merely by ensuring compliance with statutory, regulatory, or contractual requirements.” (Id. at p. 1012.)

The Supreme Court held that the “CHP’s right to control some aspects of towing operations does not confer upon it the status of a special employer.” (Alvarado II, supra, 60 Cal.4th at p. 1013.) It also held that “the primary factor, the right of control, weighs firmly against a finding of special employment.” (Id. at p. 1014.)

The reason the summary judgment was reversed was that some “factors secondary to the right of control” could make the CHP a special employer. (Alvarado II, supra, 60 Cal.4th at p. 1013, italics added.) The court listed the following factors as “useful” in determining whether a “lent servant has become the servant of the borrowing employer.” (Ibid.) “‘“(a) [W]hether the one performing services is engaged in a distinct occupation or business; (b) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the principal or by a specialist without supervision; (c) the skill required in the particular occupation; (d) whether the principal or the worker supplies the instrumentalities, tools, and the place of work for the person doing the work; (e) the length of time for which the services are to be performed; (f) the method of payment, whether by the time or by the job; (g) whether or not the work is a part of the regular business of the principal; and (h) whether or not the parties believe they are creating the relationship of employer-employee.” [Citations.]’ [Citation.]”[3] (Ibid.)

Although it is not entirely clear how all these factors play into the present case, we can draw some conclusions about a few of them. Certainly an FSP tow truck driver is engaged in an occupation distinct from that of the CHP. The CHP does not supply the driver with instrumentalities, tools, or place of work. The CHP does not pay the driver, and helping motorists with disabled cars to get them moving again is not part of the CHP’s regular business. (See Alvarado II, supra, 60 Cal.4th at p. 1014.) We have no evidence of the parties’ belief, so we cannot address that consideration, but appellants present nothing on the point.

The court also listed factors negating a special employment relationship: “The employee is (1) not paid by and cannot be discharged by the borrower, (2) a skilled worker with substantial control over operational details, (3) not engaged in the borrower’s usual business, (4) employed for only a brief period of time, and (5) using tools and equipment furnished by the lending employer. [Citations.]” (Alvarado, supra, 60 Cal.4th at p. 1014.) These factors are more easily applied to the current case. The tow truck driver is not paid by and cannot be fired by the CHP. The driver is not engaged in the CHP’s usual business of patrolling the highways. (Veh. Code, § 2401.) The driver is not employed at all by the CHP, and he uses tools and equipment furnished by his employer, the tow truck company.

Despite the court’s holdings in Alvarado II that in our case the control factor weighed against a special employment relationship, appellants continue to insist the CHP is the driver’s special employer because it agreed to exercise “day to day supervisory powers over FSP tow truck operators,” and contend it is this control that makes the CHP a special employer.[4] Appellants did not, therefore, address any of the “secondary” factors identified in Alvarado II as indicating a special employer relationship despite lack of control.

Appellants presented no evidence of any supervision of tow truck drivers not derived from the statutory basis of the FSP program or from the CHP’s overall mission to promote highway safety. (See, e.g., Veh. Code, § 2435, subd. (a).) There was no evidence of a triable issue of fact that the CHP agreed to a role beyond those outlined in the relevant statutes that would bring it within the scope of the special employment doctrine. (Alvarado II, supra, 60 Cal.4th at p. 1015.)

Appellants’ second position is that the CHP has judicially admitted that its supervisory powers are not derived from the FSP statutes. Judicial admissions are admissions of fact. (Stroud v. Tunzi (2008) 160 Cal.App.4th 377, 384.) A party cannot judicially admit questions of law or mixed questions of law and fact. (Castillo v. Barrera (2007) 146 Cal.App.4th 1317, 1324.) The CHP could not judicially admit that its powers in the FSP program were not grounded on statute.

DISPOSITION

The judgment is affirmed. Respondent is entitled to its costs on appeal.

BEDSWORTH, ACTING P. J.

WE CONCUR:

THOMPSON, J.

GOETHALS, J.