De La Cruz v. City of Los Angeles

HASTINGS, J.

Appellant, on behalf of herself and as guardian ad litem for her minor daughter, appeals from a judgment entered in favor of the City of Los Angeles, after a jury deadlocked on the question of whether the City's negligent employee was acting within the scope of his employment when he injured appellant and her daughter. We find that the court did not have jurisdiction to enter the judgment as to appellant's second and third causes of action. We agree with the City's contention on cross-appeal that a damage award was unauthorized by law, and reverse that portion of the judgment as well.

BACKGROUND

Appellant Juana Mercado and her infant daughter, Leslie, were seriously injured when Bryce Wicks, a 28-year veteran of Los Angeles Police Department, struck them with his Bronco sport utility vehicle as they crossed Lankershim Boulevard at Arminta in the City of Los Angeles on October 16, 1997, at 7:50 p.m. Appellant was in the crosswalk with her father, pushing Leslie in a baby carriage, when she and Leslie were hit. The baby carriage, with Leslie still in it, was caught under Wicks's Bronco and dragged more that 600 feet until it became dislodged. Wicks left the scene of the accident without stopping. Witnesses reported that Wicks slowed down after the collision, appeared to look back, then sped away.

A witness gave investigating officers a partial license plate number, and the next day, a vehicle registration search turned up Wicks's Bronco as one of several possibly matching automobiles. On October 17, 1997, the investigating officers notified Captain Wahler, who was in charge of the North Hollywood Station where Wicks was employed in the Detective Division. Wicks, who was on duty at the time, was told to remain at the station, but when the investigating officers arrived, he had gone home. The investigating officers went there and found him dead. An inspection of the Bronco confirmed that it had been the vehicle that dragged the baby stroller.

Appellant brought an action on behalf of herself and her daughter against Wicks and the City of Los Angeles. Appellant charged Wicks and the City with negligence, and sought to recover from the City on the basis of respondeat superior, alleging that Wicks was acting in the course and scope of his employment at the time of the accident, under the “special errand” rule. Appellant sought to recover from the City on the additional theory that the crosswalk at Lankershim and Arminta was a dangerous condition of public property.

A jury found, by special verdict, that the crosswalk was not a dangerous condition, that Wicks had been negligent, and that appellant and her daughter had suffered damages in the combined amount of $4.325 million. The jury found that Wicks was the agent of the City of Los Angeles, but deadlocked six to six on whether Wicks had been acting within the scope of his employment at the time of the accident, as set forth in appellant's second and third causes of action. The trial court declared a mistrial and discharged the jury on January 31, 2000. The trial court calendared a trial setting conference and a hearing on the City's motions for nonsuit, made at the end of trial, for March 7, 2000.

Appellant filed opposition to the motions for nonsuit, and on March 7, 2000, the trial court heard argument, denied one of the motions and granted the other. Appellant entered into a settlement with Wicks's estate, and judgment was entered in favor of the City on April 26, 2000. Appellant filed a timely notice of appeal from that portion of the judgment granting nonsuit, and the City filed a timely notice of cross-appeal.

DISCUSSION

I

1. The Procedural Issue

Appellant contends that the trial court erred in granting nonsuit. We agree, and note that, in any event, the court had no power to enter judgment on April 26, 2000, or at any time more than thirty days after discharging the jury, as we shall explain after first reviewing how the motions for nonsuit arose.

At a break during the trial on January 20, the court spoke with counsel about further witnesses and jury instructions. Counsel for respondent told the court that in addition to preparing two more jury instructions “I will be making a motion for nonsuit.”

On January 24, the defense rested “subject to various motions.” The court and counsel then discussed exhibits and jury instructions. Later, counsel for respondent addressed two motions for nonsuit, one with regard to whether Officer Wicks was on a special errand at the time of the accident. The motion was argued and the court took it under submission. Ultimately, the court decided to submit the entire matter to the jury and defer ruling on the motion for nonsuit. The matter was finally ruled upon on March 7, 2000.

Subdivision (f) of Code of Civil Procedure section 630 provides: “When the jury for any reason has been discharged without having rendered a verdict, the court ... may order judgment to be entered in favor of a party whenever a motion for directed verdict for that party should have been granted had a previous motion been made....”

A motion for nonsuit and a motion for judgment under section 630, subdivision (f) are made at different times. A motion for nonsuit is made after the completion of the plaintiff's opening statement or the presentation of the plaintiff's evidence. . . One of its chief objects of a motion for nonsuit is to allow the plaintiff a reasonable opportunity to reopen to cure any deficiency in his or her proof. . . . Once the jury is discharged, that object is lost. No matter how the motion was denominated, after the trial court granted a mistrial and discharged the jury, its options became limited: either order a retrial or proceed pursuant to Code of Civil Procedure section 630. It did not order a retrial. We must therefore review the order according to the requirements of a motion for judgment as set forth in section 630, subdivision (f). . .

On March 7, 2000, when the motion was granted, and on April 26, 2000, when judgment was entered, the trial court no longer had the power to do either, since “the power of the court to act under the provisions of this section shall expire 30 days after the day upon which the jury was discharged....” . . . Since the jury was discharged on January 31, 2000, the last day to act on the motion and enter judgment was March 1, 2000. A judgment entered by a court without power to do so is void. . .

2. The Merits of the Ruling

Although we conclude that the judgment is void because of procedural error, the parties have fully briefed the merits of the ruling and the matter is being remanded for further proceedings. Because the legal issues will again be in play in the trial court, we address the merits for further guidance of the court. . . .

A motion for judgment under Code of Civil Procedure section 630, subdivision (f) is reviewed under the same standard as a motion for directed verdict, since they arise under the same statute. . . . Motions for nonsuit and directed verdicts are analytically the same and governed by the same rules. . . . Directed verdict, like a judgment notwithstanding the verdict (JNOV), is proper only “if the trial court determines that, as a matter of law, the evidence presented by plaintiff is insufficient to permit a jury to find in his favor. . .” . . . We do not weigh the evidence or consider the credibility of witnesses; we accept the evidence most favorable to appellant as true, and disregard conflicting evidence, indulging every legitimate inference and resolving all presumptions, inferences and doubts in appellant's favor, interpreting the evidence most strongly against respondent, and finally, affirming the judgment only if required as a matter of law. . . .

Appellant contends that the evidence that Wicks was acting within the scope of his employment was sufficient to withstand a motion for nonsuit. Under the doctrine of respondeat superior, the City would be liable for the damages caused by its employee Wicks, if Wicks was acting within the scope of his employment at the time of the accident. . . . An employee acts within the course and scope of his employment when he engages in activities incident to his duties, or when his misconduct could have been reasonably foreseen by the employer. . . .

Ordinarily, under the “going-and-coming rule,” an employee is not considered to be acting within the scope of his or her employment while en route to work or home. . . . Under the special-errand exception to the going-and-coming rule, however, “If the employee is not simply on his way from his home to his normal place of work or returning from said place to his home for his own purpose, but is coming from his home or returning to it on a special errand either as part of his regular duties or at a specific order or request of his employer, the employee is considered to be in the scope of his employment from the time that he starts on the errand until he has returned or until he deviates therefrom for personal reasons. . . ” . . .

“The attendance at a social function, although not forming part of the normal duties of the employee, may come under the ‘special errand rule’ if the function or the attendance was connected with the employment and for a material part intended to benefit the employer who requested or expected the employee to attend.” . . . Even without direct evidence of benefit to the employer, the requisite connection may be shown by evidence that the function is a recognized, established, and encouraged custom, thus amounting to a “customary incident” of the employment relationship. . . .

On October 16, 1997, Wicks attended a retirement party for two retiring employees of the North Hollywood Station, and appellant sought to prove that the party was a “special errand” from which Wicks was returning home at the time of the accident. The issue is a question of fact, and becomes a question of law only when the facts are undisputed and no conflicting inferences are possible. . . . We agree with appellant that the evidence in the record is sufficient to support a finding of material benefit to the employer and a significant connection to Wicks's employment, as well as a recognized, established, and encouraged custom.

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A substantial deviation from the special errand is an exception to the special-errand doctrine. . . Thus, it became respondent's burden to establish the “exception to the exception” with evidence that Wicks had abandoned his employer's business for his own. . . .

The evidence is silent on whether Wicks ever returned home that evening, or that he was on his way home when the accident occurred. Further, the accident did not occur on a route Wicks was known ever to have taken to return home. Thus, we cannot conclude one way or the other that Wicks had abandoned the special errand. . . .

The scant evidence regarding Wicks's activity after leaving the retirement party was as follows: no one knew why Wicks was on Lankershim Boulevard at the time of the accident; Wicks lived in Acton, which is near Palmdale, and a “fair commute”; the retirement party was in Chatsworth, and Wicks's most direct route home from the party would have been to take the 118 Freeway north; whereas, the North Hollywood Station is near Burbank Boulevard and the Hollywood Freeway (I-170), and Wicks's most direct route home from the station was on the I-170 north; the party began at 4:00 p.m ., and included a happy hour, then a meal, then the presentations, then “a lot more visiting”; and the accident occurred at approximately 7:50 p.m. No witness testified knowing what time Wicks left, but the party was still going on at 7:00 p.m., although most attendees had left by that time.

Recognizing the problematic showing in the trial court, appellant has asked that we take judicial notice of several geographical facts, including the address of the North Hollywood Police Station, the proximity of Lankershim Boulevard to the Hollywood Freeway and the Golden State Freeway (I-5), which lead toward Palmdale. She has submitted map excerpts from the Thomas Guide for Los Angeles County (1999). She has also included counsel's declaration regarding his telephone call to the North Hollywood station to confirm the station's address.

Respondent contends that appellant's request for judicial notice is an improper attempt to place facts before the reviewing court that were not before the trial court. Respondent compares the request to that in People v. Amador . . . where the Supreme Court refused to take judicial notice of maps and information from the United States Postal Service, because it was new evidence offered to support a contention which had not been before the trial court. We agree that the reviewing court will normally decline a request for judicial notice of matters that were not brought to the attention of the trial court or presented to the trier of fact. . . . The reviewing court has the discretion, however, to grant judicial notice even when the information was not presented to the trial court, where the facts are not reasonably open to dispute, and the opposing party does not dispute them. . . .

In any event, a geographical fact may deemed to have been brought to the attention of the trial court and trier of fact when it is probable that “every person in the courtroom at the trial, including judge, jury, counsel, witnesses, parties, and officers of the court, knew perfectly well what the character of the location was.” . . . In this case, the trial took place in Burbank, North Hollywood's next-door neighbor, and the trial judge indicated that he was familiar with Lankershim Boulevard. Further, appellant, pointing to evidence that employees sometimes carpooled from the station, argued that the jury could reasonably infer that Wicks had returned to the station before going home. The comments of the court and counsel lead us to conclude that the general location of the station in relation to the accident scene was in issue and known to the parties, counsel, and the court.

The appellate court has the authority to take judicial notice of the distances between places. . . .

We therefore exercise our discretion to take judicial notice that the accident occurred in the neighborhood of the North Hollywood Police Station, as well as other characteristics of the North Hollywood neighborhood: that Lankershim Boulevard is a north-south street that crosses Burbank Boulevard near the Hollywood Freeway (I-170); and that the I-170 and Lankershim both reach the Golden State Freeway (I-5), which leads northward out of the City of Los Angeles toward Palmdale. We decline to take judicial notice of the address of the station, however, since it was not discussed, and not, therefore in issue, and it is unlikely that the address was known to the court.

For the purposes of this review, it is not necessary to take judicial notice of more than we have. To amount to an abandonment of the special errand, any deviation would have to have been so “unusual or startling” as to be deemed a “complete departure” from the special errand. . . . Wicks's presence in the neighborhood of the station was not “unusual or startling,” but a foreseeable deviation from the special errand. “ ‘[F]oreseeability’ in this context must be distinguished from ‘foreseeability’ as a test for negligence. In the latter sense ‘foreseeable’ means a level of probability which would lead a prudent person to take effective precautions whereas ‘foreseeability’ as a test for respondeat superior merely means that in the context of the particular enterprise an employee's conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer's business. . .” . . .

Wicks usually worked until 3:00 p.m., and the retirement party started around 4:00 p.m. Since he lived far away, it is reasonably foreseeable that Wicks would go to the party directly from work, and return to the station for some reason afterward. Indeed, people sometimes carpooled to retirement parties. The party lasted for several hours. It lasted until at least 7:00 p.m., and may have gone on some time more, since retirement parties usually included a happy hour, followed by a meal and presentations, and “a lot” of socializing afterward. The accident occurred at 7:50 p.m., a time consistent with attendance at a party lasting several hours and a trip back to the station.

Pointing out that no witness testified having known what time Wicks left the party, how he got to the party, or where he went when he left, respondent charges that it is mere conjecture that he returned to the station, or that if he did return, that it was close enough in time to the accident to permit an inference that any deviation was not substantial. “Although a judgment of nonsuit must not be reversed if plaintiff's proof raises nothing more than speculation, suspicion, or conjecture, reversal is warranted if there is ‘some substance to plaintiff's evidence upon which reasonable minds could differ....’” . . .

We agree that the evidence is thin, but the most important witness is dead, and appellant's case depended, to a very large extent, on inferences and circumstantial evidence. The proximity of the accident to the station, the time of the accident, the probable time the party lasted, the probability that Wicks went to the party directly from work due to his long commute, give rise to a reasonable inference that Wicks returned to the station after the party. Wicks's taking nearby Lankershim Boulevard was not so “unusual or startling” as to be deemed a “complete departure” from the special errand as a matter of law. . . . We conclude that although the evidence was weak, it was sufficient to avoid nonsuit. . . .

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