(Los Angeles County Super. Ct. No. VC055461) APPEAL from a judgment of the Superior Court of Los Angeles County. Raul A. Sahagun, Judge.
The opinion of the court was delivered by: Boren, P.J.
CERTIFIED FOR PUBLICATION
Ruben Monarrez suffered catastrophic injuries when he was struck by a hit-and-run driver while receiving roadside assistance for a flat tire. The issue presented by this appeal is whether the Automobile Club of Southern California (Auto Club) may be held liable for Monarrez's injuries. Following de novo review, we conclude that there are triable issues of material fact as to whether the tow truck company assisting Monarrez is the actual or ostensible agent of Auto Club, or whether it is an independent contractor. We reverse the summary judgment in favor of Auto Club.
On January 31, 2008, Auto Club member Ruben Monarrez requested roadside assistance for a flat tire.*fn1 Auto Club dispatched a flat bed car carrier driven by Juan Felix. When Felix arrived at around 11:00 p.m., he found Monarrez standing near the front of his car on the right shoulder of the Long Beach freeway. Felix describes the area as "very dangerous, narrow, dark." Monarrez's car was six inches from the "fog line," the white line that separates the freeway lanes from the shoulder.
Felix decided to transport Monarrez's car to the next exit and change the tire off the freeway. He backed his truck up toward Monarrez's vehicle, got out, and obtained Monarrez's Auto Club card and identification. Felix's truck was encroaching onto the slow lane of the freeway.
Felix told Monarrez of his plan to move the car and said, "Can you go
into my tow truck." Monarrez replied, "Okay." After their brief
conversation, Felix dropped his clipboard in the truck and saw
Monarrez near the guardrail, toward the back of the disabled car.
While Felix positioned the car on his truck, he did not keep an eye on
Monarrez, but was aware that Monarrez did not pass him on the way to
the front of the truck. When he was done loading the car, Felix found
Monarrez lying next to the tow truck in the slow lane of the freeway,
in a fetal position, after being struck by a motorist.*fn2
Felix activated an emergency button in his truck to
alert Auto Club, which in turn notified the police. Monarrez suffered
serious brain and orthopedic injuries, and requires 24-hour skilled
nursing care for life.
Juan Felix works for Hirad, Inc., dba AM/PM Towing & Auto Repair (Hirad) in Bell Gardens and drives a truck insured under Hirad's $1 million commercial policy, but considers himself to be an Auto Club technician. Felix was certified by Auto Club in 1998. Technicians are recertified by Auto Club every four years and take a mandatory Auto Club orientation program every two years. If a technician's certification has expired or he has not taken the orientation class, he cannot log onto Auto Club's computer in his truck or receive dispatch calls. When a technician approaches a member, he communicates that he is AAA, to give the member confidence.*fn3
According to Felix, Auto Club "basically teach[es] you how they expect you to do the job" during training classes conducted at an Auto Club office. He has viewed many Auto Club videotapes showing how to present himself and how to perform roadside service correctly and safely. He is always on his best behavior during Auto Club inspections, knowing that respondent could divert business if he and the shop are not up to snuff.
Hirad is described as an independent contractor in its "Preferred Contractor Roadside Assistance Contract" (the Contract) with Auto Club.*fn4 This is a non-negotiable form used with all contracting tow truck companies. The Contract requires Hirad to provide roadside assistance to AAA affiliates and their members. All service calls are at the sole discretion of Auto Club.
Hirad has contracted with Auto Club for over 20 years, and 85 to 90 percent of Hirad's business comes from Auto Club. Hirad's tow trucks and uniforms bear the AAA logo. According to Felix, "the only identifying information it had on your uniform identified you as a AAA person."
Auto Club vets tow truck companies (known as "stations" in Auto Club lingo) before contracting with them. It examines a company's towing experience, its record with local police departments, its management team, and its business references. As part of its quality assurance program, Auto Club provides service guidelines and training seminars to its contractors and monitors their performance through customer satisfaction surveys, visits to contractor stations, and investigation of consumer complaints.
The Contract requires Hirad to abide by the guidelines for preferred contractors established by Auto Club. To comply, "All facilities, vehicles and equipment of the Station shall be clean, neat in appearance and otherwise acceptable to the Club. The Station agrees that in rendering any roadside assistance to members, or in performing any repairs to the vehicle of a member, the Station's drivers, mechanics and other personnel shall be clean, uniformed and neat in appearance, and shall act in a safe, prompt, courteous, ethical and proficient manner, and the Station shall guarantee the best of material and workmanship. . . ."
If Hirad fails to perform services to the standard of Auto Club--or if the appearance of the shop, equipment or the technicians is substandard--Auto Club has the right to terminate the Contract or redirect calls to other stations. It is undisputed that Auto Club can recommend to Hirad that a technician be disciplined or terminated. If the recommendation is not followed, Auto Club can terminate the Contract.
Auto Club has no contract with Juan Felix, nor does it screen, hire, pay, or schedule the hours of any technicians who work for Hirad. Auto Club does not own, control, lease, or maintain Hirad's tow trucks. Hirad is compensated by Auto Club on a per-call basis. Although Auto Club declares that the Contract "is not exclusive" and Hirad "is free to do business" with others, this claim is belied by the wording of the Contract.*fn5 Hirad's managers, supervisors, officers, shareholders and directors are barred from participating in any other towing business under the Contract, without the express written consent of Auto Club. Auto Club installs its own radio equipment and computers in Hirad's tow trucks and office.
Auto Club provides technicians with a 150-page document entitled "Orientation Training for Independent Contract Station Service Technicians" (the Training Manual). The Training Manual is comprehensive, covering physical appearance (no visible tattoos, no untucked uniform shirts, no smoking, no tennis shoes), preparations, safety equipment and attitude of the technicians. Auto Club gives technicians a card with "Things to Say" to members.*fn6 The first sentence of the Training Manual reads, "To members, the service technician who responds to an emergency road service call is the Auto Club." It adds, "Our name, reputation and members are our most important asset." Technicians are trained by Auto Club how to communicate and build a rapport with customers, to listen, to avoid sexual harassment, to defuse angry members, to use de-stressing techniques in emergency situations, to problem solve, and to obey the Vehicle Code and federal safety regulations. Technicians are told to direct members to other Auto Club-affiliated businesses (rental car companies, repair facilities) and carry written materials for this purpose.
Much of the Training Manual is devoted to highway safety during service calls. In particular, technicians are instructed to "1. On a tow, put the member in the tow truck and have them put on their seat belt." Further, "Standing or working on the traffic side of vehicles is the highest level of EXPOSURE. Minimize the time spent in this area as much as possible. And definitely keep the member/customer out of this area." The Training Manual details how to provide ...