Barron v. Galvin
| Decision Date | 02 February 2021 |
| Docket Number | F078699 |
| Parties | SHELLY BARRON et al., Plaintiffs and Appellants, v. GERALD GALVIN, Defendant and Respondent. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINIONAPPEAL from a judgment of the Superior Court of Fresno County. Donald S. Black, Judge.
Accident, Injury and Medical Malpractice Attorneys of California and Jeffrey D. Bohn for Plaintiffs and Appellants.
Wilkins, Drolshagen & Czeshinski, Michael J. Czeshinski and James H. Wilkins for Defendant and Respondent.
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Appellants Shelly and Vincent Barron (collectively, the Barrons) were involved in a car accident with Gerald Galvin, the police chief of the City of Mendota (City). Galvin, who was driving a city-owned unmarked police vehicle, was on his way home from a Fresno television station, where he gave an interview in his capacity as police chief. The Barrons filed negligence claims against Galvin and the City, but they failed to comply with the Government Claims Act, Government Code section 810 et seq. (the Act), before filing suit. The Barrons subsequently dismissed the City from the action and alleged Galvin was individually liable. Galvin moved for summary judgment on the ground he was acting within the course and scope of his employment when the accident occurred; therefore, the Barrons' failure to comply with the Act barred their action. The trial court granted the motion and entered judgment in Galvin's favor.
On appeal, the Barrons contend there are triable issues of fact that preclude summary judgment, and, in any event, their lawsuit is not barred because the going and coming rule applied to Galvin's commute, thereby taking it outside the scope of his employment. We conclude, as a matter of law, that Galvin committed the alleged tort within the scope of his employment. Consequently, we affirm the judgment.
In August 2012, Galvin was employed by the City as its police chief. The City provided Galvin with a city-owned vehicle for official business use during work hours; the City paid for fuel and maintenance. The City permitted Galvin to use the vehicle to commute to and from work to allow him to respond to department-related business outside regular work hours, but he was not authorized to use it for personal purposes. The vehicle, an all-white sedan with government exempt plates, was an "unmarked" official emergency police vehicle equipped with sirens and a police radio but without police signage on the front doors.
As police chief, Galvin was always on call so he could respond to any incident for which a law enforcement response was requested, including conducting interviews in law enforcement matters. According to Galvin, often during his commute to and from work—which was approximately 50 miles each way—he was required to take law enforcement action when crimes, law enforcement incidents, or accidents occurred in his presence. While commuting, Galvin was always identifiable as a peace officer; he wore his duty belt and incidentals, displayed his badge, and had his duty weapon, which Galvin declared was required of him.
According to the Mendota Police Department's "Vehicle Use Policy," which is part of its "Law Enforcement Services Manual," when driving an assigned vehicle to and from work outside the Mendota Police Department's jurisdiction, "an officer should avoid becoming directly involved in enforcement actions except in those circumstances where a potential threat to life or serious property damage exists (see the Off-Duty Law Enforcement Actions Policy and the Law Enforcement Authority Policy)." Officers, however, "may render public assistance (e.g., to a stranded motorist) when deemed prudent." In addition, when an officer is "driving a marked City-owned vehicle," the officer
On August 1, 2012, Galvin was interviewed at the Univision television station in Fresno in his capacity as the City's police chief. The interview was related to a law enforcement matter; such interviews were part of Galvin's regular duties as police chief.1 In his February 2017 deposition, Galvin testified that on the day of the accident, he arrived at work in Mendota at 8:00 a.m. and left early to make the appointment at Univision, which he said was around 4:00 p.m., although he did not remember the exact time. Galvin further testified he did not remember what exactly the interview was for or the exact subject matter, although he recalled it was "certainly police related." Galvin said he met with a female reporter, but he could not remember anything more about the interview. He did not know the name of the person who interviewed him and said there may have been more than one person involved. He did not believe it was a videotaped interview, and he did not remember being tape or video recorded. He did not know how the interview was arranged or who arranged it; he could have arranged the interview himself or he could have been contacted by Univision—he did not recall.
After completing the interview, Galvin, who was wearing his uniform, was driving home in his city-owned vehicle when the accident involving the Barrons' vehicle occurred. Galvin declared that, despite being on his way home, he was on duty because he was wearing his uniform and he was acting in the scope of his employment with the City.
In January 2013, Shelly submitted a claim to the City for injuries she allegedly sustained in the accident, naming both Galvin and the City. The claim was deemed rejected when the City did not act on it, which occurred more than six months before the commencement of this action. Vincent did not submit a claim to the City in connection with the accident.
The Barrons filed suit against Galvin and the City in April 2014, alleging causes of action for motor vehicle and general negligence. The Barrons alleged that at about 4:40 p.m. on August 1, 2012, Galvin rear-ended their vehicle, which Shelly was driving, and in which Vincent was a passenger, in Fresno, and, as a result, Shelly suffered injuries and Vincent suffered loss of consortium. In the first cause of action, the Barrons checked the box indicating Galvin was acting in the course and scope of his employment with the City at the time of the accident, while the second cause of action alleged the City had granted Galvin permission to use the city-owned vehicle.
Galvin and the City demurred to the complaint, asserting the Barrons' claims were time-barred because they failed to comply with the Act. In response, the Barrons filed a first amended complaint (FAC), which alleged the same two causes of action against Galvin, but removed the City as a defendant and no longer alleged Galvin was acting in the course and scope of his employment at the time of the accident. The Barrons thereafter dismissed the City from the action.
Galvin demurred to the FAC, arguing it was a sham pleading and the facts alleged in the original complaint regarding the scope of employment should be read into the FAC. Galvin contended that once that was done, the demurrer would have to be sustained based on the Barrons' failure to allege compliance with the Act. The trial court sustained the demurrer without leave to amend and judgment was entered in Galvin's favor. On the Barrons' appeal from the judgment, we reversed. We concluded the Barrons were permitted to plead in the alternative and the removal of one factual basis of liability, namely, that Galvin was acting in the scope of employment did not preclude the Barrons from pursuing in good faith the alternative claim for individual liability. (Barron v. Galvin (F071085, July 14, 2016) [nonpub. opn.].)
Galvin thereafter answered the FAC, alleging the Barrons' failure to comply with the Act as an affirmative defense. Galvin then moved for summary judgment on the FAC, arguing the Barrons were required to comply with the Act because he was driving his official emergency police vehicle within the scope of his employment when the accident occurred, as, among other things, his commute conferred an incidental benefit on the City and he was on a special errand. Galvin asserted any claims against him were time-barred because Shelly failed to commence this lawsuit within six months after rejection of her claim and Vincent failed to present any claim.
The Barrons opposed the motion, arguing the "going and coming" rule applied to Galvin, placing him outside the scope of employment during his commute home, and there were triable issues of fact as to whether the incidental benefit and special errand exceptions to that rule applied. The Barrons filed written objections to the declarations offered in support of the motion.
The trial court issued a tentative ruling denying the motion on the basis there were triable issues of fact as to whether the "going and coming" rule applied. In the tentative ruling, the trial court stated it intended to overrule the Barrons' evidentiary objections, except four of them, which it intended to sustain.
Following oral argument on the motion, the trial court took the matter under submission. The trial court subsequently issued a written ordering granting the motion, finding the undisputed facts showed the City derived a special benefit from Galvin's commute; therefore, the "going and coming" rule was inapplicable and Galvin was acting in the course and scope of his employment when the accident occurred as a matter of law. The trial court...
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