Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 139878
SIMS, Acting P. J.Plaintiff Tammy Van Horn alleges she was injured when her estranged husband, defendant Timothy Van Horn (who is not a party to this appeal), drove over her feet in a Ford F350 truck owned by his employer, defendant West Valley Construction Company (West Valley). Plaintiff appeals from summary judgment entered in favor of West Valley. Plaintiff contends triable issues exist regarding West Valley’s potential liability, as to whether Timothy Van Horn (Timothy) was using the company truck for business purposes at the time of the accident, or whether he had West Valley’s permission to drive the company truck for personal use. We shall affirm the judgment in favor of West Valley.
Since he shares the same surname as plaintiff, we shall refer to Timothy Van Horn as Timothy for clarity and ease of reference.
STANDARD OF REVIEW
A motion for summary judgment should be granted if the submitted papers show that “there is no triable issue as to any material fact,” and that the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c), (section 437c).) A defendant meets its burden of showing that a cause of action has no merit if it shows that one or more elements of the cause of action cannot be established, or that there is a complete defense. (§ 437c, subd. (p)(2).) Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of material fact exists. (Ibid.)
“The burden of persuasion remains with the party moving for summary judgment. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, 861.) When the defendant moves for summary judgment, in those circumstances in which the plaintiff would have the burden of proof by a preponderance of the evidence, the defendant must present evidence that would preclude a reasonable trier of fact from finding that it was more likely than not that the material fact was true (id. at p. 851), or the defendant must establish that an element of the claim cannot be established, by presenting evidence that the plaintiff ‘does not possess and cannot reasonably obtain, needed evidence.’ (Id. at p. 854.) We review the record and the determination of the trial court de novo. [Citation.]” (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1003.)
“‘First, we identify the issues raised by the pleadings, since it is these allegations to which the motion must respond; secondly, we determine whether the moving party’s showing has established facts which negate the opponent’s claims and justify a judgment in movant’s favor; when a summary judgment motion prima facie justifies a judgment, the third and final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue.’” (Waschek v. Dept. of Motor Vehicles (1997) 59 Cal.App.4th 640, 644.)
We view the record in the light most favorable to the party opposing the motion. (Kasparian v. AvalonBay Communities, Inc. (2007) 156 Cal.App.4th 11, 19.)
THE PLEADINGS
On April 27, 2007, plaintiff filed a complaint against Timothy and West Valley, alleging personal injury and unspecified property damage in three counts: (1) “Motor Vehicle” against both defendants, (2) negligence against Timothy Van Horn, and (3) negligence against West Valley. The first count alleged Timothy drove a motor vehicle owned by his employer, West Valley, with West Valley’s permission, on October 20, 2006, on Cherry Lane in Oroville, causing plaintiff injury and damage. The second count alleged Timothy negligently drove the truck over plaintiff’s feet. The third count alleged West Valley was liable because it “negligently entrusted, maintained, supervised, or otherwise was negligently responsible for the truck that ran over [plaintiff’s] feet....” West Valley and Timothy denied the allegations in separate answers.
THE MOVING PAPERS
In April 2008, West Valley moved for summary judgment or summary adjudication, on the grounds that, assuming the accident happened as alleged, use of the truck at the time in question was for personal purposes without West Valley’s permission and outside of the course and scope of Timothy’s employment.
West Valley asserted that, according to plaintiff’s complaint and report to law enforcement, on October 20, 2006, Timothy drove over plaintiff’s feet while operating a truck owned by his employer, West Valley. Plaintiff said in her written statement to the sheriff’s office that she lived apart from Timothy, went to his Oroville home on the subject date to feed his cats, and was just leaving around 6:30 p.m. when he arrived home from work, driving the company truck. They talked for awhile, then got into the company truck for him to drive her home. En route, they argued. She made him stop the truck, and she got out to walk home. As he turned the vehicle around, it ran over her feet.
The record on appeal contains no report by any law enforcement agency, other than plaintiff’s written statement.
Timothy denies the incident occurred. He says plaintiff brought him his paycheck shortly after he arrived home that evening, and he later drove the company truck to Wal-Mart, alone.
The company truck -- a 1997 Ford F350 truck -- was temporarily assigned to Timothy to use at work and as transportation to and from a construction site in Napa. West Valley’s Risk Safety Manager, Dave Ferguson, attested in declaration and deposition that, since the Napa job was a significant distance from West Valley’s Chico office, they allowed Timothy to use the company truck to travel between the construction site and his home, but not for personal use once he reached his home. “Business use” of the truck included driving from Timothy’s Oroville home to Napa on Monday mornings, driving between the job site and a hotel during the work week, and driving back home on Friday. West Valley checked Timothy’s driving record when he was hired and had no reason to believe he was unfit to drive.
West Valley does not allow employees to use company vehicles for personal use beyond the commute, and Timothy was aware of this policy. West Valley submitted its written company policy to the court. Although the document was dated April 5, 2007 (and thus postdated the October 2006 accident), Timothy testified in deposition that it was consistent with his understanding of the company policy on the day of the accident. The written policy said, “Company vehicles are for company business. Specified employees may have use of their vehicle on a 24-hour basis. This does not mean that you are allowed to use the company vehicle for any personal business. [¶] It is -- it is [sic] expected that you will take your vehicle home in the evenings and park it once company business has been completed. You are not to use a company vehicle for personal business. Vehicles should be parked in a safe and secure area. Do everything possible to be sure that there is no vandalism or theft problems with your company vehicle. Again, our company provides you with your vehicle on a 24-hour basis for convenience. However, it is not intended that you use the vehicle for personal reasons.”
Timothy testified in deposition that he was aware his authority to drive the company truck on the date in question ended when he arrived at his home on Cherry Lane, around 6:00 or 6:30 p.m. He testified, “when I hired on,... they let you know at the very beginning, that the company truck is a company truck to be used for company business.” He recalled signing something to that effect. Timothy denied giving plaintiff a ride but admitted he used the company truck later in the evening. He testified:
“Q. Is there any question, in your mind, that your authority to drive the company vehicle on October 20th, 2006, ended when you arrived at your home on Cherry Lane?
“A. My authority -- yeah. No. When I -- when you get out of the truck and park it, you’re supposed to park it and get out. I mean you’re -- it’s a company vehicle, and I realize that when you drive a company vehicle, it’s a privilege, because they can make you drive your own vehicle to and from these jobs, and so I would say yes. I know that -- I know -- yes. The answer is yes.”
West Valley also asserted plaintiff had no evidence that any injury or damage was caused by negligent maintenance, defect, or malfunction of the truck.
THE OPPOSITION
Plaintiff opposed summary judgment and made numerous evidentiary objections, most of which were overruled.
Plaintiff asserted Timothy was driving the company truck at the time in question in order to protect it from theft or vandalism. Ferguson testified that driving a company vehicle from one’s residence to ensure its safety would constitute a “business purpose.” Plaintiff asserted Timothy testified he was driving the company truck on the subject date because he did not want to leave it unattended in a crime-ridden area. However, the cited deposition testimony did not relate to the time of the alleged accident but rather later in the evening. Thus, Timothy’s deposition testimony showed he denied driving the company truck at the time of the alleged accident (around 6:30 p.m.) but admitted driving the company truck later in the evening (around 8:30 p.m.) to go to Wal-Mart.
Timothy testified in deposition as follows:
“Q. Have you ever heard anyone being criticized for using a West Valley vehicle for their own personal purposes?
“A. Just myself.
“Q. You were criticized for using it for your own personal purposes?
“A. Yeah, because I know better. I knew better.
“Q. When did you use the West Valley truck for your own personal purposes?
“A. Well, I used it to go to Wal-Mart to cash my check on the night of the inciden[t].
“Q. Why... ?
“A. Because my vehicle was trapped in the parking area.
“Q. How was it trapped?
“A. The -- one of the -- the neighbors were [sic] having a party and had several vehicles -- well, many vehicles in the parking area where I lived, and when I brought the West Valley vehicle in, I parked behind my vehicle. And being that it’s a work truck, and it’s, like, way bigger than my truck, like twice, there was no room to jockey around, so I jumped back in the work truck, you know, around eight o’clock or so, and... backed out and went to Wal-Mart and then brought it -- then went home, back home.”
When asked if he could have used his own truck to go to Wal-Mart, Timothy testified:
“A. Yeah, if I would have parked in the other -- this other -- where these other people live. I don’t know who they are. I don’t know their names. But they have a large area. I -- we didn’t -- none of these other guys parked over there, so I didn’t -- I never thought it was an option like that. I just -- I just made a bad decision.
“Q. Could you have parked along the side of Cherry Lane?
“A. No. Because I didn’t want my truck to be out. There’s tools and stuff on this truck. It’s a work -- it -- you don’t leave it unattended. It’s got lots of money on it.
“Q. Does it have a burglar alarm system on it?
“A. No. It’s got locks and stuff, but you know, bolt cutters are meant for locks. People do it all the time.
“Q. So what would be the difference between having it parked where you parked it or parking it along the side of Cherry Lane?
“A. Cherry Lane is narrow, for one reason, unless you drive all the way down to the end, where it’s right out there visible and accessible to many people, whoever, if you was [sic] -- and not only that, you’d have to walk back to your house. It’s a quarter mile or so. [¶] So no. There wasn’t anyplace that I could get my truck parked, get my vehicle out. I could have -- yeah. I could have spent the time and got my -- the crew truck out of the parking zone, backed my truck out, and got the West Valley truck back in there, but it -- I didn’t. I drove the company truck to -- to -- just because I’m lazy, I guess.”
About a week after the alleged incident, Timothy began parking the company truck in a locked and fenced yard of people he knew because “my area is now -- where I live at Cherry Lane is breached. Things are getting stole[n] out of my house, and tools, you know, cement -- big things, cement mixer, a quarter-yard cement mixer, ladders, and things of that nature.”
Plaintiff asserted West Valley does not supervise its employees or enforce its policy against personal use of company vehicles. Timothy and his supervisor, David Reinhardt, testified that Timothy was not disciplined for his personal use of the company truck. Timothy testified that on the Monday after the alleged accident, his supervisor, David Reinhardt, asked if Timothy had run over somebody in the company truck. Timothy responded, “no, but I [drove] it to Wal-Mart.” He did not recall his supervisor criticizing him, nor did Timothy recall anyone at West Valley criticizing him, though “[s]omeone may have said, ‘You’re not supposed to drive the company vehicle. You know the rules,’ and I’d probably say, ‘Yeah, I know.’ I mean I made a bad judgment.” West Valley continued to employ Timothy and allow him to drive their trucks after they learned of plaintiff’s allegations.
Timothy testified West Valley did not routinely ask him to account for the whereabouts or use of the truck over the weekends. Reinhardt and Ferguson testified they used the honor system and did not check mileage or ask employees for an accounting.
THE REPLY
West Valley’s reply observed the record did not bear out plaintiff’s claim that Timothy drove the truck to protect it from theft or vandalism.
THE RULING
The trial court granted summary judgment to West Valley. The court overruled plaintiff’s evidentiary objections except for one objection to a statement by Ferguson that Timothy agreed to read West Valley’s employee safety packet when he was hired. The trial court said, “I think him [sic] agreeing to read something is irrelevant.”
The court cited the foregoing evidence and concluded there was no triable issue that at the time of the alleged accident, Timothy was not in the course and scope of his employment and was not operating the vehicle with the owner’s permission. Timothy knew his authority to drive the company truck ended when he arrived home from work. He nevertheless drove the company truck to Wal-Mart because his own truck was trapped in the parking lot. He could have driven his own truck by moving vehicles around but instead drove the company truck because he was lazy. The court concluded Timothy did not have express or implied permission to use the company truck for personal purposes, and the evidence did not support plaintiff’s argument that Timothy drove the company truck for the business purpose of protecting it from theft or vandalism.
Plaintiff appeals from the ensuing judgment.
DISCUSSION
On appeal, plaintiff contends triable issues exist on two theories of liability -- (1) respondeat superior in that Timothy was driving the truck for a business purpose, and (2) permissive use in that Timothy had West Valley’s permission to use the truck for personal purposes. We shall conclude no triable issue exists as to either theory.
I. Course of Employment
An employer may be liable for the acts of an employee under the doctrine of respondeat superior if the employee injures another while acting in the course and scope of employment. (Perez. v. Van Groningen & Sons, Inc. (1986) 41 Cal.3d 962, 968.) The scope of employment is generally a question of fact but becomes a question of law when the facts are undisputed and no conflicting inferences are possible. (Ibid.)
Plaintiff argues triable issues exist as to whether Timothy was driving the company truck at the time in question for a business purpose of protecting the truck from theft or vandalism (in that the company policy about employees using company vehicles directs employees to protect the vehicles from theft or vandalism). However, no triable issue exists in this case.
First, although plaintiff seeks to rely on Timothy’s deposition testimony, the cited testimony described driving the company truck to Wal-Mart later that evening (around 8:30 p.m.), whereas the accident allegedly occurred earlier in the evening while driving plaintiff home around 6:30 p.m. The record on appeal contains no deposition testimony from Timothy about driving the company truck at the time of the alleged accident.
Second, Timothy’s testimony about driving the truck does not raise a triable issue that the driving was an authorized use to protect the company truck from theft or vandalism. Thus, although West Valley does not dispute that an employee drives a company truck for business purposes when he or she is driving the truck in order to move it to a safe location, Timothy testified he took the company truck to Wal-Mart because he was too lazy to maneuver his own vehicle out of its parking spot through the parking area crowded due to a neighbor’s party, and place the company truck in his parking spot. Plaintiff claims Timothy testified to “multiple reasons” for using the company truck, including that he was “trapped,” and there was “no room to jockey around,” and he was concerned about leaving the company truck with its valuable equipment unattended and susceptible to theft or vandalism. Plaintiff claims the multiple reasons constituted conflicting testimony which the jury must resolve. We disagree.
Thus, Timothy did not say he was trapped in the sense of it being impossible to get his own vehicle out, but only that it would be a hassle -- which is consistent with his admission that he was lazy and made a bad decision. Thus, he testified, “one of the -- the neighbors were [sic] having a party and had several vehicles -- well, many vehicles in the parking area where I lived, and when I brought the West Valley vehicle in, I parked behind my vehicle. And being that it’s a work truck, and it’s, like, way bigger than my truck, like twice, there was no room to jockey around, so I jumped back in the work truck, you know, about eight o-clock or so, and... backed out and went to Wal-Mart....” However, Timothy clearly did not mean it was impossible to get his own truck out, because he went on to testify in the same deposition:
“Q.... Was there a place where you could have pulled out and parked and then used your own truck?
“A. Yeah, if I would have parked in the other -- this other -- where these other people live. I don’t know who they are. I don’t know their names. But they have a large area. I -- we didn’t -- none of these other guys parked over there, so I didn’t -- I never thought it was an option like that. I just -- I just made a bad decision.” He continued, “There wasn’t anyplace that I could get my truck parked, get my vehicle out. I could have -- yeah. I could have spent the time and got my -- the crew truck out of the parking zone, backed my truck out, and got the West Valley truck back in there, but it -- I didn’t. I drove the company truck to -- to -- just because I’m lazy, I guess.” Thus, the testimony about being “trapped” does not create a conflict requiring jury resolution.
As to fear of theft or vandalism, West Valley argues those concerns did not become an issue in Timothy’s neighborhood until a week or so after the alleged accident. We disagree. During the discussion about the Wal-Mart trip, Timothy was asked in deposition if he could have parked the company truck on Cherry Lane, and he said he did not want to leave it unattended because it had “lots of money on it” and also he would have to walk a quarter mile or so back to his house. Nevertheless, although Timothy said he did not want to leave the company truck parked on Cherry Lane due to fear of theft of its tools, he would not have had to leave the company truck on Cherry Lane had he moved his own truck out of its parking space and placed the company truck in his parking space. Thus, Timothy was not driving the company truck in order to protect it from theft or vandalism.
Plaintiff cites section 437c, subdivision (e), which allows the trial court in its discretion to deny a summary judgment motion where the only proof of an individual’s state of mind is that individual’s affirmation thereof. However, the trial court did not exercise its discretion to deny the motion, and plaintiff fails to meet her burden as appellant to show the trial court abused its discretion by not denying the motion on this ground.
We conclude as a matter of law Timothy was not driving the company truck for a business purpose at the time in question and therefore was not acting within the course and scope of his employment so as to impose respondeat superior liability on his employer. Since he was not acting within the course and scope of his employment, there is no issue of negligent supervision. Plaintiff cites no authority that an employer can be liable on a respondeat superior theory for negligently supervising an employee during his free time when he is off work.
We conclude as a matter of law West Valley is not liable on a respondeat superior theory.
II. Permissive Use
Plaintiff contends triable issues exist on a theory that Timothy was a permissive user of the vehicle. We disagree.
“Every owner of a motor vehicle is liable and responsible for death or injury to person or property resulting from a negligent or wrongful act or omission in the operation of the motor vehicle, in the business of the owner or otherwise, by any person using or operating the same with the permission, express or implied, of the owner.” (Veh. Code, § 17150; see Taylor v. Roseville Toyota, Inc. (2006) 138 Cal.App.4th 994, 1001 (Taylor).) Permissive use is a question of fact, unless the evidence supports only one conclusion. (Blank v. Coffin (1942) 20 Cal.2d 457, 462; Taylor, supra, 138 Cal.App.4th at pp. 1004-1005.)
We shall assume for purposes of this appeal that plaintiff could proceed with a Vehicle Code section 17150 theory despite the complaint’s failure to specify this statute. (4 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 584, p. 710 [statute embodying common law negligence need not be specifically pleaded in the complaint]; Castro v. Budget Rent-A-Car System, Inc. (2007) 154 Cal.App.4th 1162, 1181 [Veh. Code § 17150 is not based on common law].)
In Taylor, supra, 138 Cal.App.4th 994, we upheld a jury instruction which stated, “Express permission is a specified authorization to use a vehicle owned by another. Implied permission can be inferred from the relationship of the parties or the circumstances of a particular use. In determining [implied permission], factors that you may consider include; [¶] 1. If the owner was the employer of the operator; [¶] 2. If there may have been a custom or practice of allowing employees to use company owned vehicles; [¶] 3. If the owner... failed to monitor or supervise the use(s) of its vehicle(s).” (Id. at p. 1001, italics omitted.) Whether an employer has given an employee implied permission to use a vehicle is to be determined based on all the circumstances and reasonable inferences. (Taylor, supra, 138 Cal.App.4th at p. 1004.)
We have already rejected plaintiff’s argument that Timothy was driving the company truck with express permission (to protect it from theft or vandalism).
As to implied permission, plaintiff complains the trial court did not specifically address implied permission. However, the trial court’s order, after reciting the evidence, said Timothy was operating the vehicle “without the express or implied permission of WEST VALLEY.” Thus, the court did address it.
Plaintiff cites evidence assertedly supporting a finding of implied permission, e.g., West Valley did not enforce or monitor its policy, operated on an honor system, did not monitor gas usage or mileage, did not discipline Timothy for violation of the policy, and let him continue taking the truck home after the incident.
However, none of these factors matter, because the critical evidence defeating implied permission is Timothy’s acknowledgement that he knew he did not have West Valley’s permission to use the company truck at the time in question. Implied permission cannot be found if the vehicle operator acknowledges he did not have the owner’s permission, unless the operator’s testimony can be rationally disbelieved. (Blank, supra, 20 Cal.2d at p. 462.) “The fact that the car was owned by defendant [employer] and was being driven by one of its employees was sufficient to permit the jury to infer that the car was being driven with defendant’s permission. When defendant introduced evidence contrary to such an inference in the testimony of [the employee and his supervisor], the issue of permission could be taken from the jury and a verdict directed for the defendant only if the testimony could not be rationally disbelieved.” (Ibid.) Blank held the employee’s testimony -- that he was verbally told not to use the company car for any personal purpose -- could be disbelieved, because (1) it conflicted with the written policy, which forbade only “vacation” use; (2) the employee’s description of the accident directly contradicted the plaintiff’s witnesses, and if the jurors disbelieved him in this respect, they could disbelieve him in other respects; and (3) the jury could infer that the employee (and the supervisor) lied about being verbally warned against personal use because they wished to remain in the good graces of the employer. (Id. at pp. 457, 462.)
Here, there is no rational reason to disbelieve Timothy’s testimony that he knew he was not supposed to use the company truck for personal purposes. No written manual conflicts with his testimony. Indeed, all the evidence is consistent with his testimony. Even assuming Timothy allowed plaintiff to ride in the company truck on prior occasions (as she testified), there is no evidence he did so believing he had the employer’s permission to do so. Plaintiff argues a jury could disbelieve Timothy’s testimony that he was aware of the company policy, because there was no evidence as to who told him, and his credibility was destroyed in that he denied driving the company truck at the time of the alleged accident, whereas West Valley admitted this fact. However, we agree with the trial court’s assessment: West Valley conceded the fact only for purposes of arguing the summary judgment motion; West Valley’s “admission” does not challenge Timothy’s credibility.
Although we may presume Timothy wanted to stay in his employer’s good graces, plaintiff cites no authority holding this circumstance alone suffices to disbelieve his testimony. Although a jury may reject a witness’s testimony due to bias, there was not an unequivocal bias in this case, because Timothy himself is a defendant and thus might also have a bias to shift liability to the employer rather than bear it himself. Although plaintiff and Timothy were separated, plaintiff does not argue or cite any evidence that he was biased against her. To the contrary, the evidence indicates they were friendly enough that she fed his cats while he was at work. Thus, an employee’s presumed desire to stay in an employer’s good graces does not afford a rational basis to disbelieve Timothy’s admission that he knew he did not have permission to use the company truck.
The other cases cited by plaintiff do not support her attempt to divert the discussion to West Valley’s alleged failure to monitor or enforce the policy. In the cited cases, the factors about matters such as the vehicle owner’s failure to monitor or supervise were pertinent because there was evidence or reasonable inference that the vehicle operator thought he or she had the owner’s implied permission to take the vehicle. Thus, in Taylor, supra, 138 Cal.App.4th at page 998, the employee of a car dealership testified he thought he had permission to take one of the employer’s cars to run a personal errand on his lunch break, because the employer’s key attendant gave him the key, and his supervisor saw him leave. (Id. at pp. 996-998.) He denied being told that personal use of the vehicles was prohibited. (Id. at p. 998.) The handbook prohibited only “unauthorized” use of the cars, while expressly prohibiting “personal” use of other items (postage meter, photocopy machine, and telephone). (Ibid.)
Elkinton v. Cal. State Auto Assn. (1959) 173 Cal.App.2d 338 at pages 343-344, held the jury could have inferred the teenage daughter had implied permission to use the mother’s car, where the mother never told the daughter not to drive the car, did not hide the keys, knew the daughter was driving other cars with her boyfriend’s help, and told the daughter she would be glad when the daughter could drive. (Ibid.) Children are apt to accept parental indifference as tacit permission. (Ibid.)
Here, Timothy clearly and unequivocally admitted he did not have permission and knew he did not have permission to operate the vehicle at the time in question. Plaintiff wants to talk about the absence of a pre-accident written policy in the record and thinks she should benefit from West Valley’s “concession” that the written policy which postdated the accident was a “red herring.” However, West Valley said the issue of a written policy was a red herring, because there was no requirement that the policy be written, and the undisputed evidence showed Timothy was aware of the policy.
As a matter of law, there can be no liability imposed on West Valley for express or implied permission to use the company truck at the time in question.
Plaintiff cites authority that permission is implied where the circumstances permit a finding that a “third party’s” use of the vehicle was or should have been within the contemplation of the owner. (Sandoval v. Mercury Ins. Group (1991) 229 Cal.App.3d 1, 9-12 [employer who gave one employee permission to use a truck had no reason to expect the truck would be operated by another employee who had been repeatedly instructed not to drive the truck].) Plaintiff suggests West Valley could have contemplated Timothy would violate the company policy. However, the cited principle applies where the vehicle was operated by a “third party.” Here, there is no use by a “third party.”
The record establishes plaintiff has no viable theory for imposing liability on West Valley. We conclude the trial court properly entered summary judgment in favor of West Valley.
DISPOSITION
The judgment is affirmed. Respondent West Valley Construction Company shall recover its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1)-(2).)
We concur: NICHOLSON, J., CANTIL-SAKAUYE, J.