Evans v. Organizing for Action CA2/2 ( 2024 )

Filed 10/24/24 Evans v. Organizing for Action CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
RICHARD EVANS et al., B327044
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. BC663094)
v.
ORGANIZING FOR ACTION
et al.,
Defendants and
Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Lawrence H. Cho, Judge. Affirmed.
Mortimer Law Firm, Thomas F. Mortimer, Jr.; Orland Law
Group and James J. Orland for Plaintiffs and Appellants.
Kramer, deBoer & Keane, Jeffrey S. Kramer and Kelsey G.
Artinger for Defendant and Respondent Organizing for Action.
Law Offices of Cleidin Z. Atanous and Cleidin Z. Atanous
for Defendant and Respondent Greg Kawczynski.
******
A local volunteer of a national advocacy group got into a car
accident while picking up another volunteer so they could attend
a planning meeting with a third volunteer. The driver of the
other car who was injured in the accident sued the volunteer-
driver and the national group. After a bifurcated trial, the trial
court ruled that the national group was not liable for the
volunteer-driver’s alleged negligence under the “going-and-
coming” exception to vicarious liability. Because the record does
not compel a ruling in the injured driver’s favor as a matter of
law, we affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Facts1
On February 20, 2016, Greg Kawczynski (Kawczynski) got
into an accident when his car collided with a car driven by
Richard Evans (Evans) at an intersection in San Pedro,
California.
At the time of the accident, Kawczynski was a volunteer for
the Long Beach chapter of Organizing for Action (OFA).
OFA is a nationwide issue advocacy and advocacy
educational group headquartered in Chicago, Illinois. It was
1 Consistent with the substantial evidence review standard
applicable in this case, we set forth the facts in the light most
favorable to the trial court’s ruling.
2
formed in 2013 and dissolved in 2019. OFA was a “bottom-up”
organization that relied on locally formed chapters of volunteers.
During its existence, OFA organized “National Days of Action,”
for which it “strongly urged” but did not require local chapters to
host events geared toward a specific policy issue on the same day
or days.
In February 2016, OFA invited its local chapters to
participate in a National Day of Action regarding the potential
nomination of then-Judge Merrick Garland to the United States
Supreme Court.
At that time, Kawczynski was the co-“chapter lead” for the
Long Beach chapter of OFA. He and the other co-chapter lead,
Daniel Mulherin (Mulherin), decided to have a meeting on
February 20, 2016, to plan a “phone bank” activity in support of
the Garland-related National Day of Action. The decision as to
whether and where to hold the planning meeting was
Kawczynski’s and Mulherin’s alone, without any involvement
from OFA.
Kawczynski and Mulherin also invited Nicholas Maldonado
(Maldonado), who was at that time the Long Beach chapter’s
“volunteer coordinator,” because Maldonado would be “critical” to
planning the phone bank activity. Because Maldonado did not
have his own car, Kawczynski drove from his home in Long
Beach to Maldonado’s residence in San Pedro to pick him up.
The collision with Evans happened as Kawczynski was driving
back from Maldonado’s residence to the meeting at Mulherin’s
house.
The Long Beach chapter’s volunteers would sometimes
carpool. Kawczynski had given Maldonado a ride to chapter
events “at least 10 times” prior to the date of the accident.
3
OFA staff were aware that the volunteers at the local
chapters sometimes would carpool, but had no official national
policy regarding carpooling and thus did not require or “expect[]”
local chapter volunteers to carpool. OFA did not require its local
volunteers to have a vehicle, to have a driver’s license, or to
provide proof of insurance. OFA did not reimburse its volunteers
for mileage or gas. OFA carried a $1 million automobile
insurance policy and a $5 million umbrella policy to protect
against liability.
It is undisputed that Maldonado could have found an
alternative means to get to the planning meeting (such as a bus
or a rideshare), that the decision to give Maldonado a ride to the
planning meeting was Kawczynski’s and Kawczynski’s alone, and
that OFA had no role in that decision whatsoever.
II. Procedural Background
On May 30, 2017, Evans and his wife (collectively,
plaintiffs) sued Kawczynski for (1) negligence, and (2) loss of
consortium. Plaintiffs subsequently substituted OFA for a
fictitiously named defendant.2
Plaintiffs and OFA agreed to bifurcate the issue of whether
OFA was vicariously liable for any negligence by Kawczynski,
and consented to a bench trial on that issue. The matter
proceeded to a three-day trial on that preliminary issue in
November and December 2022.
2 Plaintiffs originally sued the City of Los Angeles and Home
Depot U.S.A., Inc. for dangerous condition of public property and
premises liability, respectively, but subsequently dismissed them.
OFA cross-claimed against the City, but subsequently dismissed
its cross-claim.
4
After the presentation of evidence and post-trial briefing,
the trial court issued a written ruling in December 2022. The
court ruled that (1) Kawczynski was OFA’s “agent,” but that (2)
OFA was not vicariously liable for Kawczynski’s alleged
negligence because “he was on his way (with passenger
Maldonado) to a work meeting” and hence the “going-and-
coming” exception exempting OFA from vicarious liability
applied. The court went on to find that (1) the “incidental
benefit/required vehicle” exception to the going-and-coming
exception did not apply because (a) OFA did not expressly or
impliedly require Kawczynski to pick up Maldonado, and (b) the
“benefit” of having Maldonado at the planning meeting did not
constitute a qualifying “incidental benefit” under the pertinent
precedent; and (2) the “special errand” exception to the going-
and-coming exception did not apply because there was “no
directive from OFA for [Kawczynski] to pick up Maldonado” and
because that carpool was the product of an “‘informal agreement’”
between Kawczynski and Maldonado.
After the trial court entered judgment for OFA, plaintiffs
filed this timely appeal.3
DISCUSSION
Plaintiffs argue that the trial court erred in determining
that Kawczynski’s alleged negligence was outside the course and
scope of his agency with OFA under the going-and-coming
exception. Because this determination occurred after a
bifurcated trial proceeding, our review is for substantial evidence.
“By definition, substantial evidence review is deferential to the
3 We take judicial notice of the trial court’s docket indicating
plaintiffs thereafter dismissed their claims against Kawczynski.
(Evid. Code, §§ 452, subd. (d), 459, subd. (a).)
5
ruling below—and makes it difficult to show reversible error—
due to the prism through which it mandates we review the
evidence: We must resolve all conflicts in the evidence in favor of
the ruling below [citation], must draw all reasonable inferences
from that evidence in favor of the ruling below [citation], and may
not reweigh the evidence or any credibility findings [citation].”
(Estate of Berger (2023) 91 Cal.App.5th 1293, 1307.) What is
more, because plaintiffs bore the burden of proving that
Kawczynski was acting within the course and scope of his agency
(Ducey v. Argo Sales Co. (1979) 25 Cal.3d 707, 721-722 (Ducey)),
plaintiffs can prevail on their appeal only if “the evidence compels
a finding” in their “favor as a matter of law.” (Berger, at p. 1307.)
I. Overview of Pertinent Law
A. General rule of vicarious liability
The general rule is that a principal (including an employer)
“may be vicariously liable for the tortious act committed by an
agent [including an employee] within the course and scope of the
agency.” (Peredia v. HR Mobile Services, Inc. (2018) 25
Cal.App.5th 680, 691; see also Pierson v. Helmerich & Payne
Internat. Drilling Co. (2016) 4 Cal.App.5th 608, 618 (Pierson)
[same, as to employers and employees].)
B. Going-and-coming exception
Under the so-called “going-and-coming” exception, an agent
or employee “is not regarded as acting within the scope of [their
agency or] employment while going to or coming from [their]
place of work.” (Ducey, supra, 25 Cal.3d at p. 722; Hinman v.
Westinghouse Elec. Co. (1970) 2 Cal.3d 956, 961 (Hinman).) This
exception exempts the principal or employer from the usual rule
of vicarious liability because the agent or employee is not
“‘rendering services to the [principal or] employer while
6
traveling.’” (Jeewarat v. Warner Bros. Entertainment, Inc. (2009)
177 Cal.App.4th 427, 435.)
C. Exceptions to the going-and-coming exception
The going-and-coming exception itself has “‘many’”
exceptions (Hinojosa v. Workman’s Comp. Appeals Bd. (1972) 8
Cal.3d 150, 156 (Hinojosa)), a few of which are pertinent here.
1. The required vehicle/incidental benefit
exception to the going-and-coming exception
a. Required vehicle variant
Under this exception-to-an-exception, a principal or
employer remains liable for its agent’s or employee’s negligence
while commuting to or from the place of employment if the
principal or employer requires the agent or employee to “‘furnish
a vehicle as an express or implied condition of employment.’”
(Pierson, supra, 4 Cal.App.5th at p. 625; Savaikie v. Kaiser
Foundation Hospitals (2020) 52 Cal.App.5th 223, 230 (Savaikie);
Ducey, supra, 25 Cal.3d at p. 723; Hinojosa, supra, 8 Cal.3d at p.
161; CACI No. 3725.) The use of a vehicle is “impliedly required”
when, as a practical matter, “the job is [necessarily] structured,
and dependent upon,” the agent or employe using their own
vehicle. (Hinojosa, at p. 162.)
b. Incidental benefit variant
Under this exception-to-an-exception, a principal or
employer remains liable for its agent’s or employee’s negligence
while commuting to or from the place of employment if the “‘use
of the [agent’s or employee’s vehicle] gives some incidental benefit
to the employer.’”4 (Lobo, supra, 182 Cal.App.4th at p. 301;
4 There is a subvariant of this variant that applies when an
agent or employee “agree[s] . . . to make [their] vehicle available
as an accommodation to the employer and the employer has
7
Pierson, supra, 4 Cal.App.5th at pp. 629-630.) Because this
exception-to-an-exception renders the principal or employer
“responsible for the risks inherent in the” commute, “not all”
benefits “are of a type that satisfy the incidental benefit[]
exception.” (Pierson, at p. 630; Blackman v. Great American First
Savings Bank (1991) 233 Cal.App.3d 598, 604.) To qualify under
this exception, the incidental benefit (1) must be something
beyond a benefit “‘common to commute trips by ordinary
members of the work force’” (Hinojosa, supra, 8 Cal.3d at p. 158;
Hinman, supra, 2 Cal.3d at p. 962), and (2) must come from the
agent’s or employee’s use of the vehicle itself (Hinojosa, at p. 156;
Newland v. County of Los Angeles (2018) 24 Cal.App.5th 676,
694). Thus, a principal or employer derives a qualifying
incidental benefit when it explicitly or implicitly requires its
agent or employee to use their personal vehicle so it is available
for them to use to complete their work during the workday
(Hinojosa, at p. 156; Lobo, at p. 301; CACI No. 3725), or when the
principal or employer pays for commute time in order to expand
the radius of potential agents or employees (Hinman, at p. 962).
Conversely, a principal or employer does not derive a qualifying
incidental benefit merely because the agent or employee elects to
use their personal vehicle—rather than some other form of
transportation—in order to commute and the principal or
employer gets the “benefit” of merely having the agent or
employee physically present at work (Newland, at p. 693;
Savaikie, supra, 52 Cal.App.5th at p. 234); if that were sufficient,
‘reasonably come to rely upon its use’” during the course and
scope of the agency or employment. (Lobo v. Tamco (2010) 182
Cal.App.4th 297, 301 (Lobo).) This subvariant is not at issue
here.
8
the incidental benefit exception would negate the going-and-
coming exception entirely.
2. The special errand exception to the going-and-
coming exception
Under this exception-to-an-exception, a principal or
employer remains liable for its agent’s or employee’s negligence
while commuting to or from the place of work if that commute
occurred while the agent or employee “was engaged in a special
errand” “either as part of [their] regular duties or at a specific
order or request of [the principal or] employer.” (Ducey, supra, 25
Cal.3d at p. 722; Felix v. Asai (1987) 192 Cal.App.3d 926, 931;
Hinojosa, supra, 8 Cal.3d at p. 169.) The special errand exception
does not apply, however, if it is the agent or employee who
decides, on their own, to undertake the errand. (Morales-
Simental v. Genentech, Inc. (2017) 16 Cal.App.5th 445, 456.)
II. Analysis
The trial court’s ruling that OFA is not vicariously liable
for Kawczynski’s alleged negligence while driving himself and
Maldonado to a local chapter meeting must be affirmed under the
substantial evidence standard. Even if we assume that
Kawczynski is OFA’s agent,5 the evidence presented at the
bifurcated trial does not compel the finding—as a matter of law—
that OFA is liable for Kawczynski’s alleged negligence. Because
substantial evidence supports the trial court’s finding that the
accident occurred while Kawczynski was commuting to a
planning meeting for an upcoming OFA-encouraged activity—
and hence that the going-and-coming exception to vicarious
5 This assumption obviates any need to address the parties’
arguments as to the propriety of the trial court’s finding that
Kawczynski was OFA’s agent.
9
liability applies—the main issue on appeal is whether the
evidence at the bifurcated trial compels the finding that any
exception to the going-and-coming exception applies.
The evidence does not compel a finding that the required
vehicle or incidental benefit exceptions to the going-and-coming
exception apply. As to the required vehicle variant, the evidence
does not compel a finding that OFA explicitly or implicitly
required local volunteers to pick each other up while attending
OFA-encouraged events or meetings to plan those events. OFA
had no policy requiring or expecting volunteers to carpool; while
OFA was ostensibly aware that carpooling occurred, OFA was
ambivalent as to whether volunteers got to events or meetings by
carpool or by some other means of transportation. For the first
time at oral argument, plaintiff argued that OFA’s decision to
carry insurance constitutes evidence that OFA foresaw that its
employees or volunteers might drive; plaintiff’s decision not to
press this argument in its briefing constitutes a waiver. (People
v. Crow (1993) 6 Cal.4th 952, 960, fn. 7).) In any event, we doubt
that an organization’s decision to carry automobile and umbrella
insurance policies to guard against liability (which is necessary
whether or not a claim of liability has merit) is evidence of a
mandatory requirement by the organization to use one’s car;
more to the point, we are sure that such policies do not compel a
finding that car use was a mandatory policy. As to the incidental
benefit variant, the evidence does not compel a finding that OFA
derived any qualifying incidental benefit from Kawczynski’s use
of his car to pick up Maldonado: OFA did not require volunteers
to use their personal vehicles in order to complete their work for
OFA, and did not pay for commute time in order to expand the
universe of possible volunteers. The evidence showed that the
10
sole benefit OFA derived from Kawczynski picking up Maldonado
was that Maldonado was able to attend the planning meeting;
that is not a qualifying incidental benefit. What is more, the
evidence supported a finding that OFA was ambivalent as to how
Maldonado got to the meeting and that the decision to carpool
was Kawczynski’s and not OFA’s.
The evidence does not compel a finding that the special
errand exception to the going-and-coming exception applies.
That is because it is undisputed that the decision to undertake
the “special errand” of picking up Maldonado was Kawczynski’s
decision and his decision alone.
In Pierson, supra, 4 Cal.App.5th 608, the court espoused a
multi-factor test to assess whether a principal or employer should
be liable for torts committed while their agents or employees
carpool to work; the factors in the test derive from the various
exceptions to the going-and-coming exception. (Id. at p. 624.)
Specifically, Pierson urges courts to examine: “(1) the role played
by the [principal or] employer in any carpooling arrangements;
(2) payments by the [principal or] employer to its [agents or]
employees for the time or expenses incurred in commuting to the
jobsite; (3) [principal or] employer control over the commute; (4)
the location of the accident compared to the route the driver
would have taken if not transporting other [agents or] employees;
and (5) any incidental benefits accruing to the employer as a
result of the employees’ carpooling arrangements.” (Ibid.). Here,
the evidence supports findings that OFA had no role in making
carpooling arrangements, did not pay for time or mileage during
the commute, had no control over its volunteers’ commute, and
did not derive any qualifying incidental benefit from the
carpooling; the sole factor cutting in favor of liability is that
11
Kawczynski had to drive out of his way to pick up Maldonado,
such that the accident might not have happened absent
Kawczynski’s decision to pick up Maldonado. Because only one
factor cuts in favor of liability, the evidence in this case does not
compel a finding that OFA is liable for Kawczynski’s accident
while carpooling. (Accord, Pierson, at p. 627 [decision by
employees to carpool does not negate the going-and-coming
exception]; Anderson v. Pacific Gas & Electric Co. (1993) 14
Cal.App.4th 254, 262 [same]; Caldwell v. A.R.B., Inc. (1986) 176
Cal.App.3d 1028, 1037 [same].)
Plaintiffs resist this conclusion. They argue that
substantial evidence supports findings that (1) Maldonado’s
attendance at the planning meeting was “critical,” so OFA
incidentally benefitted from his presence at that meeting; (2)
OFA “encouraged”—and therefore “impliedly required”—its local
chapter leaders to carpool; (3) OFA “specifically directed”
Kawczynski to hold the planning meeting; and (4) Kawczynski
drove nearly three hours out of his way to pick up Maldonado and
bring him to Mulherin’s residence.
We reject plaintiffs’ arguments for several reasons.
As a threshold matter, plaintiffs’ arguments utterly ignore
the standard of review. The question is not whether substantial
evidence would have supported a verdict in their favor; instead, it
is whether the evidence compels a verdict in their favor as a
matter of law. As a result, plaintiffs’ citation to evidence that
might support a verdict in their favor is ultimately unhelpful.
Further, plaintiffs recite the evidence from the bifurcated trial in
the light most favorable to them rather than the light most
favorable to the trial court’s ruling.
12
Plaintiffs’ remaining arguments all lack merit. Whether
Maldonado’s presence at the planning meeting was “critical” is
irrelevant; the fact that an employee gets to work using their car
is not a qualifying incidental benefit, no matter how important or
unimportant they are. Plaintiffs are simply incorrect that the
record compels a finding that OFA “encouraged” or “specifically
directed” Kawczynski to carpool in order to bring volunteers to
local chapter functions; indeed, it is undisputed that the decision
to pick up Maldonado (rather than having Maldonado get to the
meeting using some other mode of transportation) was
Kawczynski’s and Kawczynski’s alone—and that OFA had
nothing to do with it. And the duration of Kawczynski’s commute
to carpool with Maldonado does not alter the undisputed evidence
that the decision to carpool was not attributable to OFA.
Plaintiffs seem to suggest that the commute was so long and so
out of the way that it falls outside of the going-and-coming
exception entirely, but they offer no legal support for that
proposition and substantial evidence supports the trial court’s
finding that Kawczynski was driving to an OFA meeting with
Maldonado, which falls under the plain definition of a “commute”
to or from work.
DISPOSITION
The judgment is affirmed. OFA is entitled to costs on
appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
13
We concur:
_________________________, P. J.
LUI
_________________________, J.
CHAVEZ
14