Avila v. Standard Oil Co.

• Decision Date: 11 April 1985
• Citation: 167 Cal.App.3d 441,213 Cal.Rptr. 314
• Court: California Court of Appeals Court of Appeals
• Parties: Myra Cruz AVILA, a minor, et al., Plaintiffs and Appellants, v. STANDARD OIL OF CALIFORNIA, et al., Defendants and Respondents. D000967, Civ. 31144.

Page 314

213 Cal.Rptr. 314

167 Cal.App.3d 441

Myra Cruz AVILA, a minor, et al., Plaintiffs and Appellants, v. STANDARD OIL OF CALIFORNIA, et al., Defendants and Respondents.

D000967, Civ. 31144.

Court of Appeal, Fourth District, Division 1, California.

April 11, 1985.

Linda King, Joyce A. Sweet and Allen Robert Bloom, San Diego, for plaintiffs and appellants.

Jon A. Hammerbeck and Cooksey, Coleman & Howard, Tustin, for defendants and respondents.

STANIFORTH, Associate Justice.

Plaintiffs Myra Curz Avila, Luis Arvizu and Soledad Macias appeal an order granting a motion for summary judgment in favor of defendants Standard Oil of California (Standard Oil) and Gil Stephens Enterprises, Inc. (Stephens).

On August 6, 1981, plaintiffs were injured when a pickup truck driven by Elias Meza, Jr., went out of control and struck them as they were walking down the street. Myra Cruz Avila and Luis Arvizu, by and through their guardians ad litem, and Soledad Macias filed an unverified complaint for damages for personal injuries sustained as a result of the accident, naming, inter alia, Elias Meza, Jr. (Meza), Ernesto Hernandez (Hernandez), Standard Oil and Stephens as defendants. The complaint in substance alleged on the date of the accident Meza and Hernandez were acting within the course and scope of their employment at the Stephens gas station.

Standard Oil and Stephens moved for summary judgment on the ground there were no triable issues of fact upon which to impute liability to them as Meza's and Hernandez' employers.

RECITAL OF FACTS ON MOTION FOR SUMMARY JUDGMENT

The following facts are based on the moving papers, opposition thereto, and accompanying declarations and depositions considered by the trial court on the motion for summary judgment.

In 1977 Hernandez was employed as a gas station attendant at Stephens' Chevron station. His duties included pumping gas, checking oil, cleaning windows, checking tires and closing the gas station. His duties did not include those of a mechanic. Sometime after he was first hired, Hernandez was instructed by his supervisor Kevin Ganz not to do any work on personal vehicles during business hours. When Ganz, who generally worked the morning shift, was not present, Hernandez, who generally worked the afternoon shift, was in charge of the station.

In July 1981, Ganz gave Hernandez permission to train 15-year-old Meza to be a gas station attendant by having Meza observe Hernandez at work. With training, Meza hoped to get a job at the station as an attendant. As a trainee, Meza washed floors at the gas station and observed Hernandez perform the duties of an attendant. Meza assisted Hernandez with his duties. Neither Hernandez nor Meza was required or requested at any time before the accident to repair customer vehicles or run errands for the station.

About two weeks before the accident, Hernandez received permission from Ganz to store his motorcycle at the station. The motorcycle required mechanical repairs. Hernandez made repairs on the motorcycle on days he was not working. Meza would help Hernandez with those repairs also on those days. On the day of the accident, and during working hours, Hernandez asked Meza to purchase some wire needed for repairs to his motorcycle. According to Meza's deposition and declaration, he

helped Hernandez work on the motorcycle the day of the accident and Ganz was present during some of that time. Hernandez gave Meza some of his own money and had Meza take his father's (Frank Hernandez) pickup truck so Meza could drive to a hardware store for the wire. Meza, who did not have a driver's license, took the truck, drove a short distance from the gas station and lost control of the truck. The truck struck and injured plaintiffs.

DISCUSSION

I

Preliminarily, we observe plaintiffs' notice of appeal states the appeal is taken from the order granting the motion for summary judgment. An order granting a motion for summary judgment is a nonappealable preliminary order. (Fraser-Yamor Agency, Inc. v. County of Del Norte, 68 Cal.App.3d 201, 207, 137 Cal.Rptr. 118; Zetterberg v. State Dept. of Public Health, 43 Cal.App.3d 657, 665, 118 Cal.Rptr. 100.) However, in the interests of justice and to avoid delay, we construe the order to incorporate summary judgment in favor of defendants Standard Oil and Stephens and interpret plaintiffs' notice of appeal to be from the summary judgment. (See e.g., Bellah v. Greenson, 81 Cal.App.3d 614, 146 Cal.Rptr. 535; McGee v. Weinberg, 97 Cal.App.3d 798, 159 Cal.Rptr. 86.)

The trial court found Meza to be an employee. Neither party to this appeal takes issue with this finding. The trial court, however, concluded under the above set of facts Meza was acting outside the course and scope of his employment when he took Hernandez' personal truck in order to run the errand for Hernandez. On appeal, plaintiffs contend granting the motion for summary judgment was an abuse of discretion because a triable issue of fact exists as to whether Hernandez and Meza were acting within the course and scope of their employment when Hernandez asked Meza to get wire needed to repair Hernandez' motorcycle and when Meza took Hernandez' truck in order to get to the hardware store.

We conclude the granting of summary judgment was improper because a triable issue of fact exists as to whether Meza was acting within the course and scope of his employment when he obeyed Hernandez and left the station to get wire. Another triable issue of fact is whether Hernandez received ostensible approval to work on his motorcycle during his work shift and whether such approval constituted part of the exchange of benefits between Standard Oil (employer) and Hernandez (employee).

II

"[S]ummary judgment is a drastic measure which deprives the losing party of trial on the merits." (People ex rel. Riles v. Windsor University, 71 Cal.App.3d 326, 331, 139 Cal.Rptr. 378; Munyon v. Ole's, Inc., 136 Cal.App.3d 697, 700, 186 Cal.Rptr. 424.) Summary judgment is appropriate only if no material fact issue exists or where the record "establishes as a matter of law that a cause of action asserted against [the defendant] cannot prevail." (County of Los Angeles v. Security Ins. Co., 52 Cal.App.3d 808, 816, 125 Cal.Rptr. 701.) Thus, in determining on appeal whether there was an abuse of discretion by the trial court in granting the motion for summary judgment, we must review the moving papers to determine whether triable issues of fact exist by strictly construing the papers of the moving party (Standard Oil) and liberally construing those of the opposing party (plaintiffs). (Church v. Arko, 75 Cal.App.3d 291, 295, 142 Cal.Rptr. 92.) Any doubts as to the propriety of granting the motion for summary judgment will be resolved in favor of plaintiffs.

III

An employer is responsible for the torts of his employee under the doctrine of respondeat superior, if the torts are committed in the course and scope of employment. (Civ.Code, § 2338; Lazar v "[W]hether an act was performed, or tort committed, in the scope of one's employment will depend upon all of the facts and circumstances of the case and such reasonable inferences as may be drawn therefrom. ' "Whether the act was or was not such as to be within the employment's scope is ordinarily one of fact for the jury's determination." ' [Citations.]" (Temple v. Southern Pac. Transportation, 105 Cal.App.3d 988, 995, 164 Cal.Rptr. 780.)

Thermal Equipment Corp., 148 Cal.App.3d 458, 462, 195 Cal.Rptr. 890.)

"[W]here 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." (Alma W. v. Oakland Unified School Dist., 123 Cal.App.3d 133, 138, 176 Cal.Rptr. 287.)

Whether an employee committed a tort during the course and scope of his employment depends on whether the act performed was required or incident to his...