California Court of Appeals, Fourth District, Third Division
STATE OF CALIFORNIA ex rel. DEPARTMENT OF CALIFORNIA HIGHWAY PATROL, Petitioner,
THE SUPERIOR COURT OF ORANGE COUNTY, Respondent MAYRA ANTONIA ALVARADO et al., Real Parties in Interest.
PUB. ORDER 10/15/13
Original proceedings; petition for a writ of mandate to challenge an order of the Superior Court of Orange County No. 30-2008-00116111, Robert J. Moss, Judge.
Kamala D. Harris, Attorney General, Kathleen A. Kenealy, Chief Assistant Attorney General, Alberto L. Gonzalez and Joel A. Davis, Deputy Attorneys General for Petitioner.
No Appearance for Respondent.
Allred, Maroko & Goldberg, Michael Maroko and John S. West for Real Parties in Interest.
The California Highway Patrol (CHP) has petitioned for a writ of mandate to compel the trial court to grant a summary judgment motion made in a personal injury lawsuit involving the CHP’s Freeway Service Patrol (FSP) program. Tow truck companies in this program contract with county transportation authorities to patrol urban freeways, helping out stranded motorists. The transportation authorities in turn contract with the CHP, which certifies and supervises both the drivers and the truck companies.
One of the FSP tow trucks collided with a car, injuring the driver and her infant son. The CHP moved for summary judgment in the subsequent lawsuit, on the ground that it was not the driver’s special employer and therefore not responsible for his negligence. The trial court denied the motion, and the CHP has petitioned for a writ of mandate to reverse the trial court. The writ petition is based solely on the legislative intent behind the FSP program.
We grant the petition. Our examination of the relevant statutes in the Streets and Highways Code and the Vehicle Code persuades us that the Legislature intended to distinguish between the people and companies employing tow truck drivers in the FSP program (“employers”) on the one hand and the CHP on the other. There was, therefore, no legislative intent to make the CHP liable as a special employer of FSP tow truck drivers for the drivers’ negligence.
A tow truck driven by one J. Guzman on the I-5 freeway rear-ended a car driven by real party Mayra Alvarado. Guzman was employed by California Coach Orange, Inc., which had a contract with the Orange County Transportation Authority (OCTA) to participate in the FSP program. OCTA in turn contracted with the CHP to provide funding for the CHP’s involvement in the program in Orange County. The CHP supervised the FSP – performing background checks, training the drivers, inspecting the vehicles, dispatching drivers, and investigating complaints – pursuant to its statutory duty to “make adequate provision for patrol of the highways at all times of the day and night” (Veh. Code, § 2401) and to rapidly remove all “impediments to traffic on highways within the state.” (Id., § 2435, subd. (a).) 
Alvarado sustained catastrophic brain injuries in the accident. She is permanently disabled. Her infant son was also injured, although less seriously than his mother. Alvarado and her son sued the driver, the tow truck company, OCTA, and the CHP for damages.
By the time of the second amended complaint, the sole remaining issue with respect to the CHP was whether it was Guzman’s special employer and therefore liable for his negligence. The CHP moved for summary judgment on this issue, arguing that it did not meet the definition of special employer and that ...