Ewart v. County of Los Angeles CA2/7 ( 2022 )

Filed 7/7/22 Ewart v. County of Los Angeles CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
ALLISON EWART, B312295
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No.
v. 20STCV37314)
COUNTY OF LOS ANGELES, ORDER MODIFYING
OPINION
Defendant and Respondent. (NO CHANGE IN THE
APPELLATE
JUDGMENT)
THE COURT:
It is ordered that the opinion filed herein on June 27, 2022
be modified as follows:
On page 2, line seven of the first full paragraph, the word
“Ewart” in the phrase “holding, because Ewart was an unpaid
volunteer” is deleted and replaced with the word “Galloway.”
There is no change in the appellate judgment.
____________________________________________________________
*
PERLUSS, P. J FEUER, J. WISE, J.
*
Judge of the Alameda County Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
2
Filed 6/27/22 Ewart v. County of Los Angeles CA2/7 (unmodified opinion)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
ALLISON EWART, B312295
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No.
v. 20STCV37314)
COUNTY OF LOS ANGELES,
Defendant and Respondent.
APPEAL from an order of the Superior Court of
Los Angeles County, Barbara M. Scheper, Judge. Affirmed.
Cole & Loeterman and Dana M. Cole for Plaintiff and
Appellant.
Collins + Collins, Tomas A. Guterres and James C. Jardin
for Defendant and Respondent.
____________________
Allison Ewart was hit by a car and seriously injured when
Widge Galloway, serving as a volunteer traffic control officer for
Los Angeles County during a triathlon, directed an automobile to
turn into Ewart’s path. Although Ewart prevailed at trial in her
negligence action against both Galloway and the County, the
court of appeal reversed the judgment against the County,
holding, because Ewart was an unpaid volunteer, the County
could not be found vicariously liable for her negligence. (Ewart v.
County of Los Angeles (July 9, 2019, B286379) [nonpub. opn.].)
Faced with a $1.2 million judgment, Galloway assigned to
Ewart any rights she might have against the County. Ewart, as
Galloway’s assignee, then filed this lawsuit against the County
alleging Galloway, who had been provided counsel by the County
during the negligence action, was entitled to be indemnified for
the judgment. The County demurred, contending as to a claim
for equitable indemnity, there was no duty to indemnify absent
liability and the County had been determined to be not liable to
Ewart, and as to a claim for express indemnity, Galloway was a
volunteer with no statutory indemnity rights. The County also
argued Galloway’s failure to file a timely claim for indemnity
under the Government Claims Act (Gov. Code, § 810 et seq.) was
independently fatal to Ewart’s complaint. The trial court agreed
with all the County’s arguments, sustained the demurrer without
leave to amend and dismissed the action. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Following Galloway’s assignment of rights to Ewart, Ewart,
as Galloway’s assignee, sued the County, alleging a single claim
of “implied indemnity.” Ewart alleged Galloway, acting as a
volunteer traffic officer on the day of the accident, was an agent
of the County and entitled to indemnification. Ewart did not
2
identify a contract under which a right to indemnity was
expressed or implied or a statute authorizing indemnity.
The County demurred. Construing the claim as one for
equitable indemnity, the County argued there could be no
equitable indemnity without joint liability and it had been found
not liable for Ewart’s injuries as a matter of law.1 The County
alternatively argued Galloway had failed to file a timely claim for
indemnity as required under the Government Claims Act as a
precondition to maintaining an action for indemnity against the
County. (See Gov. Code, § 901 [defining date of accrual of a cause
of action for equitable indemnity for purpose of claim
presentation to the responsible public entity].)
In opposition Ewart argued Labor Code section 2802, which
requires an employer to indemnify employees for liability
incurred while acting in the course and scope of their
employment, applied to this case. Because Labor Code
section 2802 did not define “employee,” Ewart contended,
whether an individual was an employee should be governed by
the common law test articulated in Estrada v. FedEx Ground
Package System, Inc. (2007) 154 Cal.App.4th 1 (Estrada),
adopting the “right of control” test of S.G. Borello & Sons, Inc. v.
Department of Industrial Relations (1989) 48 Cal.3d 341(Borello), or by the more recent “ABC test” established in
Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal.5th
903 (Dynamex). Either way, Ewart asserted, she had pleaded, or
could plead if given leave to amend, sufficient facts describing the
1
Ewart acknowledged in the complaint the appellate
decision in the negligence action holding the County not liable for
Galloway’s negligence.
3
County’s control of the manner and means in which Galloway
performed her duties as a volunteer traffic officer for Galloway to
be considered an employee.
Ewart alternatively argued that Galloway was properly
considered an employee based on Labor Code section 3366, which
authorizes workers’ compensation benefits for volunteers
assisting peace officers in their duties at the request of the peace
officer. Ewart also asserted Galloway’s indemnification claim
was not subject to the claim filing requirement of the
Government Claims Act; and, even if it were, because the
County-provided counsel for Galloway in the negligence action
failed to file such a claim on her behalf, the County was equitably
estopped from using that omission to bar the indemnity suit.
The court sustained the County’s demurrer without leave
to amend. The court ruled the County had been found not liable
in the negligence action and thus had no equitable indemnity
obligation; Galloway was not an employee as a matter of law, so
no statutory obligation to indemnify existed; and Galloway’s
failure to file a government claim under the Government Claims
Act was independently fatal to the indemnity action.
The court entered a signed order of dismissal. Ewart filed
a timely notice of appeal.
DISCUSSION
1. Standard of Review
A demurrer tests the legal sufficiency of the factual
allegations in a complaint. We independently review the superior
court’s ruling on a demurrer and determine de novo whether the
complaint alleges facts sufficient to state a cause of action or
discloses a complete defense. (Mathews v. Becerra (2019)
8 Cal.5th 756, 768; T.H. v. Novartis Pharmaceuticals Corp. (2017)
4
4 Cal.5th 145, 162.) We assume the truth of the properly pleaded
factual allegations, facts that reasonably can be inferred from
those expressly pleaded and matters of which judicial notice has
been taken. (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 20;
Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.)
However, we are not required to accept the truth of the legal
conclusions pleaded in the complaint. (Mathews, at p. 768; Zelig
v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.) We
affirm the judgment if it is correct on any ground stated in the
demurrer, regardless of the trial court’s stated reasons (Aubry v.
Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967; Las Lomas
Land Co., LLC v. City of Los Angeles (2009) 177 Cal.App.4th 837,
848), but liberally construe the pleading with a view to
substantial justice between the parties. (Code Civ. Proc., § 452;
Ivanoff v. Bank of America, N.A. (2017) 9 Cal.App.5th 719, 726;
see Schifando, at p. 1081.) “Further, we give the complaint a
reasonable interpretation, reading it as a whole and its parts in
their context.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
“‘Where the complaint is defective, “[i]n the furtherance of
justice great liberality should be exercised in permitting a
plaintiff to amend his [or her] complaint.’”” (Aubry v. Tri-City
Hospital Dist., supra, 2 Cal.4th at p. 971.) A plaintiff may
demonstrate for the first time to the reviewing court how a
complaint can be amended to cure the defect. (Code Civ. Proc.,
§ 472c, subd. (a) [“[w]hen any court makes an order sustaining a
demurrer without leave to amend the question as to whether or
not such court abused its discretion in making such an order is
open on appeal even though no request to amend such pleading
was made”]; see Sierra Palms Homeowners Assn. v. Metro Gold
Line Foothill Extension Construction Authority (2018)
5
19 Cal.App.5th 1127, 1132 [plaintiff may carry burden of proving
an amendment would cure a legal defect for the first time on
appeal]; Rubenstein v. The Gap, Inc. (2017) 14 Cal.App.5th 870,
881 [“‘[w]hile such a showing can be made for the first time to the
reviewing court [citation], it must be made’”]; Smith v. State
Farm Mutual Automobile Ins. Co. (2001) 93 Cal.App.4th 700,
711.)
2. Indemnity
Indemnity “refers to ‘the obligation resting on one party to
make good a loss or damage another party has incurred.’” (Prince
v. Pacific Gas & Electric Co. (2009) 45 Cal.4th 1151, 1157
(Prince).) There are three distinct types of indemnity:
contractual (express and implied), equitable and statutory.
Contractual indemnity refers to an obligation that arises by
contract, either through the express words of the contract
(express contractual indemnity) or implied from a contract even
though the contract itself does not mention indemnity (implied
contractual indemnity). (Prince, supra, 45 Cal.4th at p. 1158.)
Equitable indemnity refers to an obligation that arises from
the equities of a particular circumstance. Such indemnity “‘is
premised on a joint legal obligation to another for damages,’”
“subject to allocation of fault principles and comparative
equitable apportionment of loss.” (Prince, supra, 45 Cal.4th at
p. 1158; see C.W. Howe Partners Inc. v. Mooradian (2019)
43 Cal.App.5th 688, 700 [“‘“[t]he elements of a cause of action for
[equitable] indemnity are (1) a showing of fault on the part of the
indemnitor and (2) resulting damages to the indemnitee for
which the indemnitor is . . . equitably responsible”’”].) “A key
restrictive feature of traditional equitable indemnity is that, on
matters of substantive law, the doctrine is ‘wholly derivative and
6
subject to whatever immunities or other limitations on liability
would otherwise be available’ against the injured party.” (Prince,
at pp. 1158-1159.) While traditionally known as equitable
indemnity, more recently, it has also been referred to as
noncontractual implied indemnity. (Id. at p. 1157.)
Statutory indemnity is an indemnity obligation imposed by
legislation. (Orange County Water Dist. v. Alcoa Global
Fasteners, Inc. (2017) 12 Cal.App.5th 252, 301 [citing Labor Code
section 2802’s requirement for employers to indemnify employees
for necessary expenditures or losses incurred by the employee in
direct consequence of the discharge of his or her duties as an
example of a statutory, that is, a legislatively-mandated,
indemnity].)
3. The Trial Court Did Not Err in Sustaining the County’s
Demurrer Without Leave To Amend
Ewart’s complaint alleged a single cause of action for
implied indemnity. The complaint did not refer to a contract
between Galloway and the County under which an indemnity
obligation was either express or implied, nor did Ewart assert
equitable indemnity existed based on the County’s vicarious
liability, which, she recognized in her complaint, was decided in
the County’s favor in the negligence action. Rather, Ewart
argued in the trial court, and contends on appeal, that she stated,
or could state if allowed to amend her complaint, a cause of action
for statutory indemnity pursuant to Labor Code section 2802,
subdivision (a), which provides, “An employer shall indemnify his
or her employee for all necessary expenditures or losses incurred
by the employee in direct consequence of the discharge of his or
her duties or of his or her obedience to the directions of the
employer, even though unlawful, unless the employee, at the time
of obeying the directions, believed them to be unlawful.”
7
At the threshold, Ewart’s argument based on Labor Code
section 2802 ignores that claims against public entities, including
noncontractual indemnity for an employee’s torts, are governed
exclusively by the Government Claims Act. (Cordova v. City of
Los Angeles (2015) 61 Cal.4th 1099, 1104-1105 [“[t]he
Government Claims Act [citation] ‘is a comprehensive statutory
scheme that sets forth the liabilities and immunities of public
entities and public employees for torts’”]; State ex rel Dept. of
California Highway Patrol v. Superior Court (2015) 60 Cal.4th
1002, 1009 [“a public entity is not liable [for an injury] ‘[e]xcept as
otherwise provided by statute,’” citing Gov. Code, § 815,
subd. (a)].)2 Government Code section 825, not Labor Code
section 2802, provides the statutory basis for an indemnity claim
against a public entity. That section requires the public entity to
“pay the judgment, compromise or settlement” against an
employee or former employee “only if it is established that the
injury arose out of an act or omission occurring in the scope of his
or her employment as an employee of the public entity.” (Gov.
Code, § 825, subd. (a); see generally Farmers Ins. Group v.
2
The County does not argue principles of issue preclusion
bind Ewart to the holding in the negligence action that the
County was not vicariously liable for Galloway’s negligence
because Galloway was not an employee. Ewart is not appearing
in this indemnity action in her individual capacity, but as
Galloway’s assignee; and Galloway and the County did not
litigate that issue as adversaries in the negligence action. (See
generally DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813,
825 [issue preclusion applies “(1) after final adjudication (2) of an
identical issue (3) actually litigated and necessarily decided in
the first suit and (4) asserted against one who was a party in the
first suit or one in privity with that party”].)
8
County of Santa Clara (1995) 11 Cal.4th 992, 1001 [“In 1963, the
Tort Claims Act was enacted in order to provide a comprehensive
codification of the law of governmental liability and immunity in
California. [Citation.] As part of its overall statutory scheme,
the Tort Claims Act provides that in the usual civil case brought
against a public employee, a public entity is required to defend
the action against its employee [citation] and to pay any claim or
judgment against the employee in favor of the third party
plaintiff” (fn. omitted)]; Chang v. County of Los Angeles (2016)
1 Cal.App.5th 25, 33 [same].)
To be sure, as Ewart observes, the term “employee” is not
3
well-defined in the Government Claims Act. Recognizing this, to
determine whether an unpaid volunteer working at a senior
citizen center was an employee of the public entity defendant for
purposes of vicarious liability under the Government Claims Act,
our colleagues in Division One of this court in Munoz v. City of
Palmdale (1999) 75 Cal.App.4th 367 (Munoz) borrowed the
volunteer exclusion of Labor Code section 3352, former
subdivision (i) (now subdivision (a)(9)). That Labor Code
provision specifically excludes from the definition of employee “[a]
person performing voluntary service for a public agency or a
private, nonprofit organization who does not receive
remuneration for the services, other than meals, transportation,
lodging, or reimbursement for incidental expenses.” Relying on
3
Government Code section 810.2 provides, “‘Employee’
includes an officer, judicial officer as defined in Section 327 of the
Elections Code, employee, or servant, whether or not
compensated, but does not include an independent contractor.”
Labor Code section 2802, upon which Ewart relies, similarly does
not define the term “employee.”
9
this language and the public policy it represented, the Munoz
court held the legislative intent to exclude volunteers from the
definition (and benefits) of public employment and to protect a
public entity from vicarious liability for the actions of a volunteer
under the Government Claims Act was clear. (See Munoz, at
p. 372.)
In applying this definition of an employee for purposes of
determining vicarious liability under Government Code
section 815.2, the Munoz court relied on Townsend v. State of
California (1987) 191 Cal.App.3d 1530, in which the plaintiff
sought to impose vicarious liability on a state university for the
negligent actions of its student athlete who injured a player on
the opposing team during a basketball game. Applying Labor
Code section 3352’s exclusion of uncompensated student athletes
from the workers’ compensation statutes (Lab. Code, § 3352,
former subd. (k), now subd. (a)(11)) to hold the student athlete
was not the university’s employee as a matter of law, the
Townsend court explained, “[S]tatutory law is a primary source of
public policy declarations, and one of the most significant modern
adjuncts of the employer-employee relationship is the workers’
compensation scheme. Hence the Legislature’s definition of
‘employee’ in that area is of great significance in analyzing the
issue confronting us.” (Townsend, at p. 1535.)
Ewart urges us not to follow the reasoning of Munoz and
Townsend applying the volunteer exclusion of Labor Code
section 3352 to determine a public entity’s liability under the
Government Claims Act. Instead, she argues we should use the
10
“right to control” test of Borello, supra, 48 Cal.3d 341,4 as did the
court of appeal in Estrada, supra, 154 Cal.App.4th 1, or the “ABC
test” of Dynamex, supra, 4 Cal.5th 9085 to resolve the issue.
4
In Borello, supra, 48 Cal.3d 341, the Supreme Court held,
in determining one’s status as an employee or independent
contractor, the principal test is whether the person to whom
services are rendered has the right to control the manner and
means of accomplishing the desired results. The Court stated the
analysis should also include evaluating (1) whether the worker is
engaged in a distinct occupation or business; (2) whether the
work is done under the principal’s direction or by a specialist
without supervision; (3) the skill required; (4) whether the
principal or the worker provides the instrumentalities, tools and
place of work; (5) the length of time for which the services are to
be performed; (6) the method of payment, whether by time or by
job; (7) whether the work is part of the principal’s regular
business; and (8) whether the parties believe they are creating an
employer-employee relationship. (Id. at pp. 350-351.)
5
The Supreme Court in Dynamex held the “ABC test”
determines whether an individual is an independent contractor,
rather than an employee, to whom Industrial Welfare
Commission wage orders do not apply. (Dynamex, supra,
4 Cal.5th at pp. 916-917.) “Under this test, a worker is properly
considered an independent contractor to whom a wage order does
not apply only if the hiring entity establishes: (A) that the worker
is free from the control and direction of the hirer in connection
with the performance of the work, both under the contract for the
performance of such work and in fact; (B) that the worker
performs work that is outside the usual course of the hiring
entity’s business; and (C) that the worker is customarily engaged
in an independently established trade occupation, or business of
the same nature as the work performed for the hiring entity.”
(Ibid.)
11
Because Galloway received training from the Los Angeles County
Sheriff’s Department for her volunteer traffic control assignment,
was dressed in a County uniform issued to her by the County and
subject to the direction and control of the County at the time she
committed the negligent act of directing traffic into Ewart’s path,
Ewart argues Galloway was an employee under either the Borello
or the Dynamex ABC test.
Both of those tests, however, are used to distinguish
between wage-earning workers who are “employees” and those
who are “independent contractors”—the issue before Division One
of this court in Estrada, supra, 154 Cal.App.4th 1, upon which
Ewart places principal reliance. (See id. at p. 10 [“[b]ecause the
Labor Code does not expressly define ‘employee’ for purposes of
[Labor Code] section 2802,” the common law test of employment
articulated in Borello applies to determine whether plaintiff was
an employee or independent contractor].) That issue is quite
different from, and has no reasonable relationship to, the distinct
question whether someone who concededly functioned as an
unpaid volunteer should also be considered an employee. (See
Assembly Bill No. 2257 (2019-2020 Reg. Sess.) (Stats. 2020,
ch. 38, § 2) added section 2775 to the Labor Code, effective
September 4, 2020, expanding in subdivision (b)(1) the use of the
Dynamex ABC test to distinguish between employees and
independent contractors for purposes of the Labor Code generally
and the Unemployment Insurance Code, and not just to
Industrial Welfare Commission wage orders. Labor Code
section 2775, subdivision (b)(2), provides, however,
“Notwithstanding paragraph (1), any exceptions to the terms
‘employee,’ ‘employer,’ ‘employ,’ or ‘independent contractor’” in
the Labor Code, Unemployment Insurance Code or applicable
wage orders “shall remain in effect.”
12
Woods v. American Film Institute (2021) 72 Cal.App.5th 1022,
1037, fn. 10 [“As Woods correctly observes, the decision in
Dynamex concerned the standard that applies in determining
whether workers should be classified as employees or as
independent contractors for purposes of the IWC wage orders.
[Citation.] While the opinion in that case is relevant to the
proper interpretation of the definitions in the wage orders, it does
not bear directly on the specific issue here, i.e., whether
volunteers for nonprofits should be considered employees under
California law”]; Munoz, supra, 75 Cal.App.4th at p. 372 [“[H]ad
the Legislature wished to utilize the right of control as a factor in
the volunteer exclusion, it would have done so. Given the
omission of such language from the statute, we are confident the
Legislature intended for the exclusion to apply to uncompensated
volunteers like Helmer without regard to the right of control”].)
If we reject her Dynamex/Borello argument and conclude,
as did the courts of appeal in Munoz and Townsend, that Labor
Code section 3352’s volunteer exclusion answers the question
who may be considered an employee under the Government
Claims Act, Ewart contends, then we should also apply Labor
Code section 3366, subdivision (a), which provides, “For purposes
of this division, each person engaged in assisting any peace
officer in active law enforcement service at the request of such
peace officer is deemed to be an employee of the public entity that
he or she is serving or assisting in the enforcement of the law,
and is entitled to receive compensation from the public entity in
accordance with the provisions of this division.” Because Ewart
pleaded Galloway was acting as a volunteer traffic officer for the
Los Angeles County Sheriff’s Department at the time of the
accident, Ewart argues she alleged sufficient facts that, if proved
13
true, would deem Galloway as actively assisting law enforcement
at the time of the accident and thus an employee within the
meaning of Labor Code section 3366.
As the language of Labor Code section 3366,
subdivision (a), makes clear, however, that statute is a limited
exception to the volunteer exclusion of section 3352; unlike
section 3352 it is applicable by its terms only to provisions of the
Labor Code concerning workers’ compensation. (See § 3366,
subd. (a) [creating exception to section 3352 “for purposes of this
division”]; see also Gund v. County of Trinity (2020) 10 Cal.5th
503, 514-515 [“section 3366 is best understood as an exception to
an exclusion from [workers’ compensation] coverage”].) Had
Galloway been injured while serving as a volunteer traffic officer,
she might well have been entitled to workers’ compensation
benefits. But deeming her an employee for workers’
compensation purposes is very different from deeming her an
employee under the Government Claims Act. Labor Code
section 3366 authorizes the former; it does not speak to, let alone
support, the latter. (See Estrada v. City of Los Angeles (2013)
218 Cal.App.4th 143, 155 [the consequence of a city’s policy
decision to afford workers’ compensation benefits “is not to
convert these uncompensated volunteers into municipal
employees for all purposes”; “[t]he fact the City ensures that
unpaid volunteers such as [plaintiff volunteer firefighter] are
compensated for industrial injuries does not mean that such
persons are deemed employees” for purposes of the Fair
Employment and Housing Act]; see generally Gund, at p. 517
[purposes of Labor Code section 3366 are: “(1) creating an
incentive for individuals to provide requested law enforcement
service; (2) compensating, without concern for fault, someone who
14
is injured while assisting a peace officer with law enforcement
duties; and (3) limiting the state’s financial exposure” to the
exclusive remedy of workers’ compensation].)
Asserting that application of the well-established law in
this area leads to an intuitively unfair result, Ewart urges this
court to find that volunteers performing public safety services
should be considered government employees not simply for
workers’ compensation benefits, but also for purposes of
indemnification rights. We do not disagree a valid policy
argument may be made for authorizing indemnity under
circumstances similar to those in the case at bar or requiring that
6
volunteers be notified of their potential liability exposure. And
we acknowledge it is not clear the Legislature considered the
exposure to personal liability faced by volunteer peace officers
and firefighters on the four occasions it amended Labor Code
section 3352 since Munoz, let alone when it added section 2775 of
the Labor Code in 2020 following the Supreme Court’s decision in
7
Dynamex. Should the Legislature continue to limit the right to
indemnity to public employees, it might consider a requirement
that prospective volunteers be notified of their potential liability
exposure. Nonetheless, any change in the law in this regard
must come from the Legislature, not the courts.
6
The record in this case does not reflect whether County
volunteers such as Galloway are informed they have no
indemnification rights against the County.
7
See footnote 5, above.
15
Ewart has pleaded Galloway was an unpaid volunteer
8
traffic control officer and does not contend she can amend her
complaint in good faith to allege Galloway was an employee for
purposes of Government Code sections 810.2 and 825, other than
by resort to the factors in Dynamex and Borello. Accordingly, the
court did not abuse its discretion in sustaining the County’s
demurrer without leave to amend.
8
Citing Waisgerber v. City of Los Angeles (9th Cir. 2010)
406 Fed.Appx. 150 and Fichman v. Media Center (9th Cir. 2008)
512 F.3d 1157, 1161, Ewart asks us to adopt the view of the
Ninth Circuit that the absence of remuneration is not dispositive
of the question whether a person is an employee for purposes of
the federal employment discrimination statutes. However,
analogies to federal title VII cases are unnecessary. Government
Code section 810.2’s definition of an employee includes an
employee or servant “whether or not compensated.” It is not the
lack of remuneration alone that forecloses Galloway’s (and hence
Ewart’s) indemnity claim, but Galloway’s undisputed status as a
volunteer. (See Townsend v. State of California, supra,
191 Cal.App.3d at pp. 1533-1534 [“The provision in Government
Code section 810.2 that employment may be gratuitous simply
recognizes the fact that some government officers serve without
compensation. It does not expand the concept of ‘employment’”].)
16
DISPOSITION
The order of dismissal is affirmed. The County is to recover
its costs on appeal.
PERLUSS, P. J.
We concur:
FEUER, J.
*
WISE, J.
*
Judge of the Alameda County Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
17