(Super. Ct. No. CIV 241085) (Ventura County) Frederick Bysshe, Judge Superior Court County of Ventura.
The opinion of the court was delivered by: Perren, J.
CERTIFIED FOR PUBLICATION
Dawn Diaz was seriously injured when she was struck by a car that had jumped a freeway center divider following its collision with a truck. She sued Karen Tagliaferri,*fn1 the driver of the car that struck her, and Jose Carcamo, the driver of the truck with which Tagliaferri collided. Diaz also sued Carcamo's employer, Sugar Transport, alleging it was vicariously liable as Carcamo's employer. She further alleged that Sugar Transport was liable for its independent negligence in its hiring and retention of Carcamo. The jury returned a verdict against each defendant awarding plaintiff a total of $22,566,373 in damages. Pursuant to Proposition 51*fn2 it apportioned fault among Tagliaferri, Carcamo, and Sugar Transport.
Appellant, Sugar Transport, contends that because it admitted it was vicariously liable for Carcamo's conduct on a theory of respondeat superior, the trial court erred in permitting Diaz to proceed against it for its negligent hiring and retention of Carcamo. It claims that this error was compounded by admitting evidence of Carcamo's background. Relying on Jeld-Wen, Inc. v. Superior Court (2005) 131 Cal.App.4th 853, Sugar Transport contends that its concession of vicarious liability removed all question of its independent fault and rendered evidence of Carcamo's character and conduct prior to the accident inadmissible. (Evid. Code, § 1104.) Sugar Transport also asserts that the trial court erred by giving a spoliation of evidence instruction regarding a missing tachograph chart. We affirm.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
Respondent Dawn Diaz was seriously injured in an automobile accident as she and two passengers were driving southbound on the 101 freeway in Camarillo. Jose Carcamo was driving a truck northbound on the 101 freeway. He was making a delivery for his employer, Sugar Transport. Tagliaferri had moved to the number one lane to pass Carcamo and was attempting to return to the number two lane in front of Carcamo when her right rear bumper came into contact with Carcamo's left front tire. Tagliaferri lost control of her vehicle, and flew over the median landing on top of Diaz's car.
Diaz sued alleging that Carcamo was negligent and that Sugar Transport was vicariously liable as his employer. The complaint also alleged that Sugar Transport was directly negligent in its hiring and retention of Carcamo. Sugar Transport answered denying liability, that it was Carcamo's employer, and that Carcamo was acting in the course and scope of his employment when the collision occurred. At trial, it abandoned the last two contentions.
The cause of the accident was hotly disputed. Diaz asserted that the collision occurred because Carcamo was not driving in the truck lane, was speeding and inattentive, failed to yield the right-of-way, and failed to take evasive action to avoid the collision. Carcamo and Sugar Transport contended that Tagliaferri was the sole cause of the collision because she pulled in front of Carcamo's truck without allowing for adequate clearance between her car and the truck.
After a lengthy trial, the jury returned a special verdict awarding Diaz $22,566,373 in damages comprising $17,566,373 in economic damages and $5 million in non-economic damages. As required by Proposition 51, the jury apportioned 45 percent of fault for the accident to Tagliaferri, 20 percent to Carcamo, and 35 percent to Sugar Transport.*fn3 The trial court denied Carcamo and Sugar Transport's motion for a new trial.
On appeal, Sugar Transport contends that having admitted that it was vicariously liable as Carcamo's employer under the doctrine of respondeat superior, the trial court erred in admitting evidence of Carcamo's prior employment, driving, and accident history as well as by instructing the jury on the theory of negligent hiring and retention. It also asserts the trial court erred in instructing the jury on Diaz's theory of evidence spoliation relative to the disappearance of Carcamo's tachograph chart.*fn4
Evidence of Carcamo's Prior Employment and Driving History Were Properly Admitted; the Jury was Properly Instructed Concerning Negligent Hiring and Retention
A. Negligent Hiring and Retention is a Theory of Direct Liability
Sugar Transport contends the trial court erred as a matter of law in denying its motion in limine to exclude evidence of Carcamo's involvement in several prior accidents and an evaluation from Carcamo's previous employer who dismissed Carcamo after three months and gave him a poor performance review. Relying on Armenta v. Churchill (1954) 42 Cal.2d 448, and Jeld-Wen, Sugar Transport ...