Kephart v. Genuity, Inc., No. C047659.

CourtCalifornia Court of Appeals
Writing for the CourtScotland
Citation38 Cal.Rptr.3d 845,136 Cal.App.4th 280
PartiesLily KEPHART et al., Plaintiffs and Appellants, v. GENUITY, INC., Defendant and Respondent.
Docket NumberNo. C047659.
Decision Date01 February 2006
38 Cal.Rptr.3d 845
136 Cal.App.4th 280
Lily KEPHART et al., Plaintiffs and Appellants,
v.
GENUITY, INC., Defendant and Respondent.
No. C047659.
Court of Appeal, Third District.
February 1, 2006.
Certified for Partial Publication.*

[38 Cal.Rptr.3d 847]

McManis Faulkner & Morgan, James McManis, Colleen Duffy Smith, Neda Mansoorian, Matthew Schechter and Jessica Valenzuela Santamaria, San Jose, for Plaintiffs and Appellants.

Matheny Sears Linkert & Long, Eric R. Wiesel and Michael A. Bishop, Sacramento, for Defendant and Respondent.

SCOTLAND, P.J.


136 Cal.App.4th 284

Plaintiffs Lily Kephart, Huan Kephart, and their children, Jaymar Kephart, Huan Kephart II, and Dylan Kephart, suffered harm when their Toyota 4-Runner rolled over after being forced from the road by another driver, Duncan Graham. They sued Graham for damages. They also sued his employer, Genuity, Inc. (Genuity), on the theory that Graham caused the accident while acting in the course and scope of his employment and, therefore, Genuity was vicariously liable for the harm caused by its employee, Graham. In addition, plaintiffs sued Toyota Motor North America, Inc., Toyota Motor Sales, U.S.A., Inc., and Toyota of Santa Cruz, alleging that design defects in the Toyota 4-Runner (the Toyota) contributed to the harm suffered by plaintiffs.

Graham settled his civil liability with plaintiffs and was dismissed from the action. The case was then tried before a jury, which returned verdicts in favor of Genuity and the Toyota defendants.

Plaintiffs appeal only from the judgment entered in favor of Genuity. Among other things, they contend the trial court erred in denying their motion for judgment notwithstanding the verdict, which was based on their claim that, as a matter of law, Graham was acting within the course and scope of his employment.

136 Cal.App.4th 285

In the published part of this opinion, we conclude that from the evidence presented

38 Cal.Rptr.3d 848

to it, the jury reasonably could find that Graham's conduct at the time of this incident was motivated entirely by personal malice and did not occur within the course and scope of his employment. In the unpublished part of our opinion, we reject plaintiffs' other claims of error. Accordingly, we shall affirm the judgment.

FACTS

This litigation arose out of what may fairly be called a road rage incident that occurred around 5:00 p.m., on Sunday, October 17, 1999, on Interstate 205 near Tracy. Various witnesses to the incident had differing perspectives of the event.

Doctor Deena Lenser was on her way to San Francisco to take an examination to become board certified. Her husband was driving while Lenser studied for the examination. Lenser testified that, at some point, she looked up from her reading and saw plaintiffs' Toyota in the left lane. It appeared that the Toyota was being chased by a green Pontiac (the Pontiac).1 The Pontiac was tailgating the Toyota so closely that it looked like the Pontiac was being towed. They were traveling at about 70 miles per hour. When the Toyota moved to the right lane in a controlled lane change, the Pontiac moved to the right lane behind the Toyota in an aggressive manner. It appeared to Lenser that the driver of the Pontiac was chasing the Toyota and was quite angry. The Toyota moved back to the left lane in a controlled lane change, and the Pontiac pulled along side of the Toyota. Lenser thought the Pontiac would pass the Toyota, but instead the Pontiac swerved into the left lane and forced the Toyota off the roadway. The Pontiac was inches from the Toyota, which had to move or get hit. At some point, all four of the Toyota's wheels were on a gravel and dirt area off of the roadway. The driver of the Toyota accelerated to get around the Pontiac. When he tried to turn back onto the roadway, the Toyota flipped and rolled over a couple of times.

Susan Ryan was driving on Interstate 205 on her way to celebrate her brother's birthday. She testified that, in her rearview mirror, she saw the Toyota and the Pontiac weaving and swerving. It appeared they were fighting with each other or trying to hit and evade each other. Ryan believed the driver of the Pontiac was the aggressor because the Pontiac made more moves toward the Toyota, which appeared to be trying to avoid the Pontiac. Ryan saw the Toyota go completely off the roadway onto the dirt and gravel

136 Cal.App.4th 286

median. The Toyota began to slide but then straightened out. When the Toyota attempted to get back on the roadway, it went down on its side and then rolled. The Pontiac did not stop, instead sped away. As it passed Ryan, she wrote down its license number.

Thomas Hendricks testified that he was driving on Interstate 205 toward his mother's house. The Toyota was in the left lane directly in front of him. Hendricks saw the Pontiac enter the right lane of the freeway from an on-ramp. There was a large, slow moving vehicle ahead in the right lane. The Pontiac accelerated to get ahead of the Toyota and then made an aggressive lane change into the left lane. The driver of the Toyota had to lightly hit his brakes. After the cars passed the slower moving vehicle, the Toyota made an aggressive lane change into the right lane and pulled along side the Pontiac. The

38 Cal.Rptr.3d 849

driver of the Toyota began making hand gestures at the driver of the Pontiac and appeared to be saying or yelling something. The Pontiac's driver appeared to make a hand gesture in return, whereupon the driver of the Toyota then accelerated, made an aggressive lane change in front of the Pontiac, and hit his brakes. This caused the Pontiac to brake. The Pontiac moved to the right lane and looked like it was trying to pass the Toyota. However, the Toyota moved into the right lane and forced the Pontiac onto the shoulder of the road. The Pontiac accelerated and moved back into the right lane and the Toyota moved into the left lane. The Pontiac moved in front of the Toyota, and the driver hit the brakes hard. This caused the driver of the Toyota to brake hard and move off the roadway. When the Toyota moved back to the roadway, it flipped and rolled two or three times. Hendricks followed the Pontiac while he called the California Highway Patrol (CHP) on his cell phone. He provided the CHP with the make and color of the vehicle, its license number, and a description of the driver as seen from behind. When the Pontiac began moving erratically, Hendricks was told not to follow any further.

Plaintiff Lily Kephart testified that her family was returning home to Santa Cruz after visiting family in Elk Grove.2 Her husband, Huan, was driving their Toyota. When they were in the vicinity of Tracy, Lily turned to look at her children in the back seat and noticed the green Pontiac was just a few feet behind the Toyota. Huan moved the Toyota to the right lane. The Pontiac passed and then moved into the right lane very close in front of the Toyota. Huan moved the Toyota into the left lane and later moved back to the right lane. The next time Lily noticed the Pontiac, it was approaching from behind on the right hand shoulder. The Pontiac passed the Toyota and then pulled very close in front of it. The driver of the Pontiac slammed on the brakes, and

136 Cal.App.4th 287

Huan hit the Toyota's brakes and tried to move to the left lane. Lily did not remember much else, except for the Toyota rolling over.

Huan testified that the Pontiac entered the freeway and moved directly into the left lane in front of the Toyota. The driver of the Pontiac then applied its brakes, causing Huan to brake. After passing a slow moving truck that was in the right lane, Huan moved to the right lane to pass the Pontiac. As he passed the Pontiac, Huan looked over and the driver of the Pontiac began making obscene hand gestures at him. Huan sped up to pass, and the Pontiac sped up with him. Huan passed the Pontiac and moved into the left lane. He then had to brake because there was traffic in front of him. Huan looked in his mirror and saw the Pontiac was right behind the Toyota. He became nervous and began changing lanes back and forth in an effort to get away from the Pontiac. Everywhere Huan went, the Pontiac followed, harassing him. Huan moved into the right lane, hoping the Pontiac would pass by and leave him alone. The Pontiac moved into the right lane behind the Toyota and then passed it on the shoulder. Lily screamed, and Huan said "oh, my God, this guy's crazy. He's trying to kill us." The Pontiac moved in front of the Toyota, and the driver slammed on the brakes. Huan braked and tried to move left. He lost control and the Toyota rolled over.

38 Cal.Rptr.3d 850

The driver of the Pontiac was identified as Duncan Graham. However, Graham denied that he was involved. According to Graham, this was a matter of mistaken identity. He claimed to have entered Interstate 205 just after the incident occurred but from an on-ramp to the west of the place where it happened. The drivers who saw the incident and obtained the license number of the Pontiac must have confused his green Pontiac with the car that was actually involved. Graham acknowledged, however, that when criminal charges were filed against him, he entered into a plea agreement in which he admitted committing a felony by failing to stop after being involved in an accident resulting in injury or death. (Veh.Code, § 20001, subd. (a).)

Huan and the three Kephart children were not seriously injured when the Toyota rolled over. Lily suffered severe injuries that left her a quadriplegic.

At the time of the incident, Graham was employed by Genuity as an internet systems engineer (ISE).3 Genuity was in the business of providing internet service to commercial enterprises. It used sales executives to generate business. The job of an ISE was to provide technical support to the sales executives via conference calls and visits at customers' businesses. Whenever

136 Cal.App.4th 288

a customer visit was...

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37 practice notes
  • People v. Mendoza, No. S143743.
    • United States
    • United States State Supreme Court (California)
    • February 11, 2016
    ...trial court's denial of the motion unless there is no substantial evidence to support the verdict" (Kephart v. Genuity, Inc. (2006) 136 Cal.App.4th 280, 289, 38 Cal.Rptr.3d 845 ; see 5 Witkin & Epstein, Cal.Criminal Law (4th ed. 2012) Criminal Trial, § 832, 1260 [rules applicable to civil p......
  • Moradi v. Marsh United States, Inc., B239858
    • United States
    • California Court of Appeals
    • September 17, 2013
    ...one of the parties has relied on the special errand exception to the going and coming rule (see, e.g., Kephart v. Genuity, Inc. (2006) 136 Cal.App.4th 280, 291–292, 38 Cal.Rptr.3d 845; Tognazzini v. San Luis Coastal Unified School Dist. (2001) 86 Cal.App.4th 1053, 1056–1058, 103 Cal.Rptr.2d......
  • Newland v. Cnty. of L. A., B277638
    • United States
    • California Court of Appeals
    • June 18, 2018
    ...provide guidance to the courts in considering whether the doctrine should be applied. [Citation.]" ( Kephart v. Genuity, Inc. (2006) 136 Cal.App.4th 280, 296, 38 Cal.Rptr.3d 845 ( Kephart ).)Holding the County liable on the facts of this case would not prevent recurrence of the tortious con......
  • People v. Mendoza, No. S143743.
    • United States
    • United States State Supreme Court (California)
    • February 11, 2016
    ...trial court's denial of the motion unless there is no substantial evidence to support the verdict" ( Kephart v. Genuity, Inc. (2006) 136 Cal.App.4th 280, 289, 38 Cal.Rptr.3d 845 ; see 5 Witkin & Epstein, Cal.Criminal Law (4th ed. 2012) Criminal Trial, § 832, 1260 [rules applicable to civil ......
  • Request a trial to view additional results
38 cases
  • People v. Mendoza, No. S143743.
    • United States
    • United States State Supreme Court (California)
    • February 11, 2016
    ...trial court's denial of the motion unless there is no substantial evidence to support the verdict" (Kephart v. Genuity, Inc. (2006) 136 Cal.App.4th 280, 289, 38 Cal.Rptr.3d 845 ; see 5 Witkin & Epstein, Cal.Criminal Law (4th ed. 2012) Criminal Trial, § 832, 1260 [rules applicable to civil p......
  • Moradi v. Marsh United States, Inc., B239858
    • United States
    • California Court of Appeals
    • September 17, 2013
    ...one of the parties has relied on the special errand exception to the going and coming rule (see, e.g., Kephart v. Genuity, Inc. (2006) 136 Cal.App.4th 280, 291–292, 38 Cal.Rptr.3d 845; Tognazzini v. San Luis Coastal Unified School Dist. (2001) 86 Cal.App.4th 1053, 1056–1058, 103 Cal.Rptr.2d......
  • Newland v. Cnty. of L. A., B277638
    • United States
    • California Court of Appeals
    • June 18, 2018
    ...provide guidance to the courts in considering whether the doctrine should be applied. [Citation.]" ( Kephart v. Genuity, Inc. (2006) 136 Cal.App.4th 280, 296, 38 Cal.Rptr.3d 845 ( Kephart ).)Holding the County liable on the facts of this case would not prevent recurrence of the tortious con......
  • People v. Mendoza, No. S143743.
    • United States
    • United States State Supreme Court (California)
    • February 11, 2016
    ...trial court's denial of the motion unless there is no substantial evidence to support the verdict" ( Kephart v. Genuity, Inc. (2006) 136 Cal.App.4th 280, 289, 38 Cal.Rptr.3d 845 ; see 5 Witkin & Epstein, Cal.Criminal Law (4th ed. 2012) Criminal Trial, § 832, 1260 [rules applicable to civil ......
  • Request a trial to view additional results

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