Newland v. Cnty. of L. A., B277638

• Decision Date: 18 June 2018
• Docket Number: B277638
• Citation: 24 Cal.App.5th 676,234 Cal.Rptr.3d 374
• Court: California Court of Appeals Court of Appeals
• Parties: Jake NEWLAND, Plaintiff and Respondent, v. COUNTY OF LOS ANGELES, Defendant and Appellant.

24 Cal.App.5th 676

234 Cal.Rptr.3d 374

Jake NEWLAND, Plaintiff and Respondent,

v.COUNTY OF LOS ANGELES, Defendant and Appellant.

B277638

Court of Appeal, Second District, Division 5, California.

Filed June 18, 2018

Greines, Martin, Stein & Richland, Timothy T. Coates, Edward L. Xanders, Feris M. Greenberger, Los Angeles; Collins Collins Muir & Stewart, Brian K. Stewart, South Pasadena, Joshua A. Cohen, Christian E. Foy Nagy, South Pasadena, for Defendant and Appellant.

Law Offices of Martin N. Buchanan and Martin N. Buchanan ; Panish, Shea & Boyle, Rahul Ravipudi, Los Angeles, Thomas A. Schultz, San Francisco, Erika Contreras, Los Angeles, for Plaintiff and Respondent.

KRIEGLER, Acting P.J.

An employee driving home from work on a day that he did not have any job duties outside of the office injured a third party. After a jury trial, the trial court imposed liability on the employer based on evidence that the employee regularly used his personal vehicle for work on other days. The employer contends there was no substantial evidence to support finding that the employee was driving in the course and scope of his employment at the time of the accident, because he was not required to use a personal vehicle that day.

We agree that an employee must be driving a personal vehicle in the course and scope of his employment at the time of the accident to extend vicarious liability to an employer. Liability may be imposed on an employer for an employee’s tortious conduct while driving to or from work, if at the time of the accident, the employee’s use of a personal vehicle was required by the employer or otherwise provided a benefit to the employer. The evidence showed that the employee in this case was driving a routine commute to and from work on the day of the accident. He was not required to use his personal vehicle for work purposes that day, and his employer did not otherwise benefit from his use of a personal vehicle that day. The employer is entitled to judgment as a matter of law. We reverse the judgment with directions.

FACTS

Defendant and appellant County of Los Angeles hired Donald Prigo as a deputy public defender in the early 1980s. In February 2013, Prigo lived in Long Beach and performed felony trial work from his office in the Norwalk Courthouse. The County does not expressly require deputy public defenders to provide vehicles to carry out their job duties. The minimum requirements of Prigo’s job class specification were to have a valid California class C driver’s license or the ability to use alternative transportation when needed to carry out job-related essential functions.

As a trial lawyer, however, Prigo needed to use his personal vehicle for several job-related tasks. He regularly made appearances in branch courts in Bellflower, Whittier, Downey, and downtown Los Angeles for arraignments, preliminary hearings, and other proceedings. He drove his car from home or from his office at the Norwalk Courthouse to attend proceedings at the branch courts, which was the most frequent use of his car for work purposes. When Prigo received an assignment at a branch court, he had three to ten days advance notice of the first hearing date in the branch court. If he could not make it to an appearance at a branch court, he could call an attorney assigned to that branch court to have the matter continued. Trials were rarely assigned to branch courts and Prigo had not had a trial in another courthouse since 2006, but he drove to the branch court if he had a trial there. It was not practical or reasonable to use public transportation to get from the Norwalk Courthouse to the other courts that he needed to attend.

Prigo also used his car to drive to different jails as a regular part of his job. Eighty-five percent of his clients were in custody in downtown Los Angeles or in Castaic. Prigo needed to speak with them in person to establish trust and represent them properly. Public defenders can use videoconferencing from their offices to interview clients in custody, which Prigo made use of, but it was not intended to replace personal contact and a detailed interview with the client. There are interview rooms available at the Norwalk Courthouse to meet with clients. When Prigo visited a client in jail, he typically left his office in Norwalk in the early afternoon after the morning court calendar. He often drove directly home. No trains, buses, or public transportation go to the county jails within a reasonable amount of time. There was no practical alternative to driving his car.

Throughout his career as a trial lawyer, Prigo also drove his car to view crime scenes. Visiting a crime scene helped him to understand the testimony and examine the witnesses in a case. He would visit a crime scene when he was preparing for a motion or a trial. He sometimes went to a crime scene on the way to or from work, but he usually went during the work day. Typically, he left his office in Norwalk in the afternoon to visit a crime scene. He might return to the office if the location was close, but he often drove directly home.

On occasion, Prigo drove his car to the coroner’s office or to meet witnesses. Witnesses normally came to Prigo’s office at the courthouse to speak with him. On a few occasions, he had to drive to visit an expert witness, because the equipment used by the expert was located at his or her place of business. Public defenders use their judgment in retaining, meeting, and preparing expert witnesses. Most meetings with a client’s family and friends to gather mitigation information for sentencing took place at Prigo’s office, but there were a few times that he drove his car to people’s homes because they could not travel. He could also apply for a paralegal’s assistance in gathering mitigation evidence.

Prigo had the authority and discretion to determine when he needed to drive to a location for work. His supervisor was aware that he used his car to do his job, including going to the jails. The public defender’s office reimburses attorneys for mileage when they travel between courthouses, but not for commuting to and from their own office. Prigo had submitted two or three requests for mileage reimbursement in his entire career. He used his car as a regular part of his job. If a supervisor wanted to send him outside of the Norwalk Courthouse, his car was available to him at work every day that he drove. Public defenders never had emergency work situations that required the use of a car to leave the office right away.

Prigo could not realistically do his job in Los Angeles County without a vehicle. Prigo’s work as a trial lawyer was cyclical and his workload varied, so there were months when he had an increased need to use his car for work and weeks when he did not need to use his car for work at all. He used his car an average of eight to ten days per month for work purposes. Prigo could use public transportation to commute on the days that he did not have work-related tasks outside the office. Prigo spent 95 percent of his time in the Norwalk Courthouse. Public transportation was never sufficient to do the job completely. He still needed to use his car to do his job, such as when he planned to visit a crime scene or client in jail.

Prigo first used public transportation for his commute when he lived in Rancho Cucamonga and was assigned to the public defender’s office in downtown Los Angeles in 1985. He took public transportation to downtown Los Angeles from 1985 to 1996, including after he became a Public Defender Grade IV in 1988. He had a heavy caseload of felony trials and was qualified to work on special circumstances cases. The number of days per month that he took the bus varied. He knew in advance when he would need to use his car for work, so he drove to work on those days. He drove to work if he was in trial, because he might need to stay late at the office to do legal research or go somewhere to look at something that came up during trial. When he was in trial, he might work 16-hour days. Public defenders were also expected to attend educational meetings held downtown on Wednesday nights, so he often drove to work on those days to socialize after the meeting without missing the last bus.

Prigo was living in Pasadena when he was assigned to the Norwalk Courthouse in 2006. He took a Metro rail line from Pasadena and other public transportation to reach the Norwalk Courthouse. He did not take public transportation every day, but it was a good option. Prigo still needed to use his car to perform tasks outside the Norwalk Courthouse. He knew in advance if he needed his car for work on a particular day. If he was going to another location, such as a crime scene, branch court, or jail, he would use his car to commute to work. He used the Metro system to commute until he moved to Lakewood.

In 2008, Prigo loaned his car to his son for a semester of school. A public defender named Mark DiSabatino gave Prigo a ride to and from work for two or three months. His brother-in-law lent him a truck on days that Prigo needed a vehicle. It did not occur often, but Prigo would drive his brother-in-law to work, then drive himself to the Norwalk Courthouse. In February 2013, at the time of the accident, Prigo lived in Long Beach. There was no practical public transportation from Long Beach to Norwalk. If there had been reasonable public transportation to get from Long Beach to Norwalk, he would have used it.

Prigo turned in a mileage request claim to his supervisor Anthony Patalano seeking reimbursement for six jail visits in May 2012 in a potential death penalty case. After Prigo resolved the potential death penalty case in August 2012, his practice slowed down and he did not leave the office for work purposes other than appearances in branch courts. He may have visited the jails twice between August 2012 and the date of the accident in February 2013. He went to crime scenes a few times between October 2012 and the accident in February 2013. He did...