Golden West Broadcasters, Inc. v. Superior Court

• Citation: 114 Cal.App.3d 947,171 Cal.Rptr. 95
• Court: California Court of Appeals
• Decision Date: 20 January 1981
• Parties: GOLDEN WEST BROADCASTERS, INC., Petitioner, v. The SUPERIOR COURT OF RIVERSIDE COUNTY, Respondent; Dean BALL, Real Party in Interest. Civ. 23983.

Page 95

171 Cal.Rptr. 95

114 Cal.App.3d 947

GOLDEN WEST BROADCASTERS, INC., Petitioner, v. The SUPERIOR COURT OF RIVERSIDE COUNTY, Respondent Dean BALL, Real Party in Interest.

Civ. 23983.

Court of Appeal, Fourth District, Division 2, California.

Jan. 20, 1981.

Wilson, Borror & Dunn and Richard L. Scott, San Bernardino, for petitioner

No appearance for respondent.

Thomas T. Anderson and Edward Peck, Indio, for real party in interest.

OPINION

McDANIEL, Associate Justice.

INTRODUCTION

In these original proceedings, the petitioner, who is the defendant employer in an action brought to recover damages for injuries suffered by plaintiff in a fistfight with the defendant employee, challenges the propriety of the trial court's denial of petitioner's motion for summary judgment by seeking a writ of mandate to rectify the claimed error. In our view, the trial court should have granted petitioner's motion for summary judgment because the record demonstrates, as a matter of law on undisputed facts, that the defendant employee was not acting in the scope of his employment at the time of the fight with plaintiff. Accordingly, we shall issue the peremptory writ.

SYNOPSIS OF THE PLEADINGS

The issues addressed by the motion for summary judgment were of course framed by certain allegations and denials thereof contained in the pleadings. Plaintiff purported to plead two causes of action against petitioner. The first charged petitioner with negligently employing "a violent and unsuitable employee, Sanford Prudden" who violently assaulted plaintiff by striking him and kicking him. Such allegation was enhanced with the further allegation that petitioner knew Prudden's "inclination, propensity and habit of drinking to excess and after so doing (to) be predisposed to lose his temper." The first count further alleged that the attack upon plaintiff by Prudden was the direct result of petitioner's negligence in employing him. No damages were alleged however.

In the second count, after incorporating certain "housekeeping" allegations, i. e., paragraphs I-IV, the complaint goes on to allege that "On or about March 8, 1974, while within the scope of his employment for defendants, Golden West Broadcrasters (sic) Company Inc., and in furtherance of that employment, defendant, Sanford Anthony Prudden, did intentionally and maliciously attack plaintiff by beating him and kicking him about his body." Again, no damages were alleged.

The third and fourth counts were pleaded against Prudden and sought $1,000,000 in compensatory damages and $2,000,000 in exemplary damages.

From the foregoing it appears that plaintiff by his complaint sought to fix direct liability on petitioner based upon negligence in hiring a person with known propensities for violence, and, alternatively, to fix imputed liability on petitioner based upon respondeat superior.

In its answer petitioner denied each and every allegation contained in paragraphs I through XIV inclusive, being all the paragraphs of the complaint, doing so per section 431.30 of the Code of Civil Procedure. As affirmative defenses, petitioner alleged contributory negligence, assumption of the risk and that the complaint failed to state a cause of action for exemplary damages.

SUMMARY OF THE DECLARATIONS

After the case was at issue, petitioner moved for summary judgment. ¹ In support of its motion, petitioner filed the declarations of Hector Highton and Robert Kenny. In addition portions of the depositions of Sanford Prudden were also submitted.

As relevant to the issues framed by the pleadings, these supporting papers showed that Prudden on March 8, 1974, the date of the altercation, was in the employment of petitioner Golden West Broadcasters, Inc., as a stage manager. The declaration of Hector Highton particularly stated that he was Prudden's immediate superior and that he, Highton, had no knowledge of Prudden's having a propensity to drink heavily or to engage in fights. He described Prudden as an efficient hard-working man.

Kenny's declaration identified the declarant as custodian of petitioner's payroll records and attached as an exhibit Prudden's time card for March 8, 1974, indicating that he had worked from 7 a. m. to 3:30 p. m. on that day with a half hour off for lunch. His position was stated as "Sr. Stage Supervisor." His duties that day were described as "Remote-Palm Springs."

From the excerpt of Prudden's deposition filed in support of the motion it appears that after work Prudden had gone to a bar and had never met the plaintiff before that time. Prudden deposed that plaintiff took exception to what he, Prudden, had said to his wife. This led to plaintiff's inviting Prudden to go outside. Both men, according to the deposition testimony, then proceeded to the parking lot outside the bar where a fight ensued.

In opposition to the motion, the plaintiff submitted excerpts from three depositions. From the portion of the Prudden deposition offered by plaintiff it appeared that Prudden was out in the desert "on assignment" to set up for the telecast of a baseball game. Prudden had come down that day to set up for the game to be played the next day, and the implication was that he would reverse the process after the game and return to his regular base of employment.

According to his deposition testimony, Prudden had been in the bar for several hours before the fracas with plaintiff occurred. It further appeared that Prudden was on per diem paid by petitioner which he was at liberty to spend as he chose. In other words, he did not charge any drinks he purchased in the bar to an expense account.

After the fight in the parking lot, Prudden left the area of the bar and hotel by means of a company car which had been provided to him by petitioner while he was in Palm Springs on assignment.

On cross-examination by plaintiff's counsel, at the deposition, Prudden stated that he was not in the bar at the request of petitioner and had made his own choice to go there. He testified further that his job was an hourly one, and that he received overtime pay if he worked more than 40 hours a week.

In the excerpt of the deposition of Barbara Matson it appeared that at one time she had been married to Prudden and was the lady in the bar the treatment of whom plaintiff had taken exception to. Her deposition otherwise only confirmed that Prudden was in Palm Springs that weekend to set up and take down for the telecast of a California Angels' baseball game scheduled for Sunday, March 9. After the fight Ms. Matson and Prudden drove away in a stationwagon belonging to petitioner, and her deposition testimony further indicated that it was among several kept in Palm Springs for use by petitioner's employees. In other words, Prudden had not driven out to Palm Springs from Los Angeles in a company car.

The excerpt of the deposition by Wayne Schicke provided only the observations of a person who had seen plaintiff just after the fight and who had seen Prudden drive away in a stationwagon with a KTLA inscription painted on its side.

That is the sum and substance of the respective declarations. They present a minimal picture of the circumstances surrounding the event. In this connection, we note that both sides at the time of the motion to the trial court indulged in the questionable practice of including in their written points and authorities extensively detailed recitations of the "facts," many of which are nowhere to be found in any of the declarations. This was particularly true of the plaintiff's filing.

To summarize then, petitioner, in support of its motion for summary judgment, along with what was in Prudden's deposition as offered by plaintiff, submitted under oath the following. Prudden was employed by petitioner as a Senior Stage Supervisor. As here relevant he had been sent down to Palm Springs from Los Angeles to set up the staging, i. e., cameras and supporting equipment, for the telecast of a professional baseball game the next day. After the game was over, he would reverse the set up process and return to Los Angeles.

On the day before the game he worked from 7 a. m. until 3:30 p. m. He was paid a per diem while on "remote" duty, an amount of money not appearing in the record. At any rate, he was at liberty to spend it how he chose. That evening he chose to go to the bar at the Gene Autry Hotel. After being there with his wife for several hours, he was confronted by the plaintiff who, for reasons likewise not appearing in the record, had become offended by Prudden's behavior and then invited him outside. The two men proceeded to the parking lot and a fistfight ensued. According to Prudden, he defended himself.

Otherwise, the supporting papers declare that petitioner had no knowledge of Prudden's propensity to drink and become violent.

What did the plaintiff's materials add to the picture not shown by the supporting items? They show that Prudden, after the fight, left the parking lot in a stationwagon driven by his wife and owned by petitioner. Otherwise they add very little.

Again we note that the factual recitations contained in the respective points and authorities submitted to the trial court are far more elaborate and detailed than those presented under oath. Interestingly enough, however, there is no dispute between the parties over the extrinsic, observable, operational facts reported gratuitously by counsel in this way. Therefore, to better demonstrate an element of plaintiff's showing, the following is a quotation of a portion of the unsupported representations made on behalf of plaintiff to the trial court. "Mr. Ball had noticed that for a certain length of time, Mr. Prudden had been hassling some of the women customers at the bar. As a result, he attempted to quiet Mr. Prudden down and asked him to step outside and talk about the matter in hopes of further calming him down. As they left the barroom, Mr. Prudden, without any provocation, began to severely strike ...