APPEAL from a judgment of the Superior Court of Kern County, Nos. CV271420, CV271425, CV271803, CV271925 & CV273115 William D. Palmer, Judge.
Law Offices of Martin N. Buchanan, Martin N. Buchanan; Girardi Keese, Thomas V. Girardi and Shawn J. McCann for Plaintiff and Appellant Carly Baker.
Thorsnes Bartolotta McGuire, Vincent J. Bartolotta, Brett J. Schreiber, Benjamin Siminou; Higgs, Fletcher & Mack, John Morris and Victoria E. Fuller for Plaintiff and Appellant Michael Buxbaum.
Ronald W. Beals, Jeanne Scherer, Douglas L. Johnson, Lauren A. Machado, Bruce D. McGagin and Peter Ackeret for Defendant and Appellant.
Wanger Jones Helsley, Timothy Jones, Michael S. Helsley and Patrick D. Toole for Plaintiff and Respondent and for Defendant and Respondent.
HILL, P. J.
Plaintiffs appeal from summary judgments granted in favor of defendant, Halliburton Energy Services, Inc. (Halliburton), in these consolidated actions. We conclude the trial court properly granted summary judgment on the ground the undisputed facts demonstrated Halliburton cannot be held vicariously liable for the tortious conduct of its employee. The employee was not acting within the scope of his employment at the time of the accident; as a result, the requirements for imposing respondeat superior liability cannot be established. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Troy Martinez was employed by Halliburton as a directional driller from November 2006 to May 2011. In December 2006, Martinez was assigned a company pickup truck to drive. He had the option of using his personal vehicle or being assigned a company truck and chose the latter. At the time the truck was assigned, his supervisor, Steve Mulholland, told Martinez he could use the company vehicle to get to work and back and to run personal errands en route; Martinez stated Mulholland told him he could run errands and take care of business as long as he was back in time for his next shift. Halliburton had a written policy, which Martinez reviewed prior to June 24, 2009, which stated that company vehicles were not to be used for personal business, but could be used to commute between home and work, “and may make a stop directly en route for personal reasons while traveling to and from work.”
In September 2009, Martinez lived in Caliente, about 45 to 50 miles from Bakersfield. He worked about 50 percent of the time in Bakersfield and 50 percent of the time at other locations around California. In early September 2009, Martinez was assigned to work on an oil rig in the ocean near Seal Beach; the job was expected to take two to three weeks. Martinez worked a shift that began at 9:00 p.m. on September 12, 2009, and ended at 9:00 a.m. on September 13, 2009. After his shift on the oil rig ended that morning, he returned to shore, got in the company pickup, and traveled approximately 140 miles to Bakersfield, where he met his wife and daughter at a car dealership to purchase a vehicle for his wife. The deal fell through and Martinez and his family went to a restaurant and had lunch. Martinez then began the return trip to Seal Beach. He intended to drive back to his hotel room in Seal Beach, pick up clean coveralls, stop at Taco Bell and pick up dinner and food for later (because food was not provided on the oil rig), and eat while he waited for the boat back to the oil rig for his 9:00 p.m. shift. Approximately 20 miles south of Bakersfield, as he began his ascent up the Grapevine (Interstate Highway 5 (I-5) southbound), he was involved in an accident. Martinez testified in deposition that he was traveling in the number one lane in heavy traffic when he saw pebbles or gravel in the road; the truck began to fishtail, then it was in the air. The pickup struck a vehicle in the northbound lanes of I-5, injuring the six plaintiffs.
The six injured plaintiffs sued Halliburton, Martinez, and the State of California Department of Transportation (Caltrans) in three separate actions. They alleged Martinez’s pickup went off the pavement, or lost traction on gravel and went off the pavement, traveled up a mound of dirt in the center divider, and was launched into the air, landing on the northbound lanes of the freeway, where it collided with plaintiffs’ vehicle. Plaintiffs alleged causes of action for negligence against Martinez and against Halliburton as his employer; they alleged Caltrans was responsible for a dangerous condition of public property that contributed to the accident. Halliburton and Martinez filed separate actions against Caltrans for indemnity and contribution. The cases were all consolidated. Halliburton moved for summary judgment on the complaints filed by the six injured plaintiffs, arguing that it was sued on theories of respondeat superior, negligent supervision, and negligent entrustment, but it could not be held liable on those theories because Martinez was not acting within the course and scope of his employment at the time of the accident. The injured plaintiffs and Caltrans opposed the motions. The trial court granted the motions and entered judgment in Halliburton’s favor in the three actions. Plaintiffs, Carly Baker and Michael Buxbaum, and defendant, Caltrans, appeal.
I. Standard of Review
A grant of summary judgment is reviewed de novo. Summary judgment is properly granted when no triable issue exists as to any material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) In moving for summary judgment, a “defendant … has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action … cannot be established, or that there is a complete defense to that cause of action.” (§ 437c, subd. (p)(2).) Once the moving defendant has met its initial burden, “the burden shifts to the plaintiff … to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.” (§ 437c, subd. (p)(2).)
“As a summary judgment motion raises only questions of law regarding the construction and effect of supporting and opposing papers, this court independently applies the same three-step analysis required of the trial court. We identify issues framed by the pleadings; determine whether the moving party’s showing established facts that negate the opponent’s claim and justify a judgment in the moving party’s favor; and if it does, we finally determine whether the opposition demonstrates the existence of a triable, material factual issue. [Citations.]” (Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334, 1342.) “There is a triable issue of fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, fn. omitted (Aguilar).) “The evidence of the party opposing the motion must be liberally construed, and that of the moving party strictly construed.” (Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 308.)
II. Respondeat Superior
A. General rule
Halliburton’s motion for summary judgment was based primarily on its contention that the evidence would not support a finding that Martinez was acting within the scope of his employment with Halliburton at the time of the accident, and therefore Halliburton could not be held liable to plaintiffs on a theory of respondeat superior. “Under the doctrine of respondeat superior, an employer is liable for the torts of his employees committed within the scope of their employment [citations]. The burden of proof is on the plaintiff to demonstrate that the negligent act was committed within the scope of employment. [Citations.]” (Ducey v. Argo Sales Co. (1979) 25 Cal.3d 707, 721-722.) “Where the facts of the case make it arguable whether the employee has acted within the scope of his employment, then the scope of employment issue is one properly decided by the trier of fact. However, where the facts would not support an inference that the employee acted within the scope of his employment and where there is no dispute over the relevant facts, the question becomes one of law.” (Alma W. v. Oakland Unified School Dist. (1981) 123 Cal.App.3d 133, 138 (Alma W.).)
“‘[T]he modern justification for vicarious liability is a rule of policy, a deliberate allocation of a risk. The losses caused by the torts of employees, which as a practical matter are sure to occur in the conduct of the employer’s enterprise, are placed upon that enterprise itself, as a required cost of doing business. They are placed upon the employer because, having engaged in an enterprise which will, on the basis of past experience, involve harm to others through the torts of employees, and sought to profit by it, it is just that he, rather than the innocent injured plaintiff, should bear them; and because he is better able to absorb them, and to distribute them, through prices, rates or liability insurance, to the public, and so to shift them to society, to the community at large.’ [Citation.]” (Hinman v. Westinghouse Electric Co. (1970) 2 Cal.3d 956, 959-960 (Hinman).) “The employer is liable not because the employer has control over the employee or is in some way at fault, but because the employer’s enterprise creates inevitable risks as a part of doing business. [Citations.]” (Bailey v. Filco, Inc. (1996) 48 Cal.App.4th 1552, 1559 (Bailey).) ...