Metropolitan News-Enterprise


Tuesday, April 8, 2008


Page 1


C.A. Overturns Order for Discovery Sanctions in Auto Accident Case

Plaintiffs’ Claim That Driver May Have Been Doing Business by Cell Phone Held in Good Faith




A Los Angeles Superior Court judge abused his discretion by imposing discovery sanctions against the plaintiffs in an automobile accident case for refusing to admit that the other driver was acting outside the scope of his employment, the Court of Appeal for this district ruled yesterday.

Div. Eight, while agreeing with Judge C. Edward Simpson that the driver’s employer was entitled to summary judgment in the case, said the plaintiffs were entitled to explore whether Christopher Magdaleno was conducting business by cell phone from his personal vehicle when he struck Holly Miller on Huntington Drive in South Pasadena in March 2004. 

Miller, who was standing next to her car when Magdaleno’s pickup struck her, and her husband sued Magdaleno two months after the accident. At his deposition, Magdaleno testified that although he is an installation supervisor for American Greetings Corporation, he was not working on the day of the accident and was on his way to an appointment with a probate lawyer when he struck the plaintiff.

He said he could not remember the lawyer’s name and did not receive a bill for what he said was a five-minute consultation.

Amended Complaint

The plaintiffs amended the complaint to add American Greetings as a defendant, alleging that Magdaleno—who did not have an office, traveled around the county supervising installations, and often did business by cell phone—was acting within the scope of employment at the time of the accident.

American Greetings served requests for admission, asking that the plaintiffs admit that Magdaleno, at the time of the accident, was operating his “personal vehicle,” that he “was not acting within the scope of any employment,” that he “was en route from his home to the office of an attorney,” and that he was “traveling on personal business.”

The plaintiffs admitted that Magdaleno was using his personally owned vehicle at the time of the accident, but otherwise denied the requests for admission. They settled with Magdaleno, while continuing to litigate with American Greetings.

Summary Judgment Motion

In moving for summary judgment, the company cited Magdaleno’s testimony, as well as records showing that the accident occurred at 9:35 in the morning, some eight minutes after Magdaleno completed his only work-related cell phone call of the morning, which lasted less than a minute.

The plaintiffs responded that given the fuzziness of Magdaleno’s recollection of the meeting with the lawyer, the fact that he had made the one work-related call before the accident and several later that day, the existence of crossed-out calendar entries showing that he had been scheduled to visit worksites later in the day, and the fact that he received no vacation or sick pay for the day of the accident, a reasonable trier of fact could find that he had actually been working at the time of the accident.

Simpson ruled that Magdaleno’s activities after the accident were irrelevant to whether he was working when the accident occurred, and that his unrefuted testimony that he was off work and on his way to a lawyer’s office was determinative of the motion.

The judge subsequently awarded American Greetings cost of proof of more than $8,000, ruling that it was unreasonable for the plaintiffs not to admit that Magdaleno was on a personal errand at the time of the accident. The plaintiffs settled with Magdaleno.

Justice Laurence Rubin, writing for the Court of Appeal, agreed with the defendant that because Magdaleno was using his personal vehicle and made only one work-related call, which ended minutes before the accident, no reasonable juror could find that he was acting within the scope of employment.

The justice also concluded, however, that the fact that Magdaleno was using his personal vehicle, which the Millers admitted, did not preclude them from denying the other requests in good faith, based on the facts known to them at the time.

He wrote:

“The court’s seeming focus on whether Magdaleno was talking on his cell phone about work when he hit Miller was too narrow because...the law of respondeat superior is not so cut and dried....Using one’s car as a mobile office from which one places and receives work-related calls and conducts an employer’s business is a relatively recent, and growing, business practice.  As that practice spreads, the doctrine of respondeat superior must necessarily evolve....”

Attorneys on appeal were Maryann P. Gallagher for the plaintiffs and Delos E. Brown and John J. Stumreiter of Brown, Brown & Klass for the defendants.

The case is Miller v. American Greetings Corporation, 08 S.O.S. 2062.


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