Mount v. California Highway Patrol CA2/2

Opinion

Filed 9/21/26 Mount v. California Highway Patrol CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

ALVIN MOUNT et al., B342089 Plaintiffs and Respondents, (Los Angeles County Super. Ct. No. v. 20STCV19067)

CALIFORNIA HIGHWAY PATROL et al., Defendants and Appellants.

APPEAL from a judgment of the Superior Court of Los Angeles County, Michael B. Harwin, Judge. Reversed and remanded with directions. Rob Bonta, Attorney General, Iveta Ovsepyan, Assistant Attorney General, Elizabeth Angres and Joshua K. Bart, Deputy Attorneys General, for Defendants and Appellants. Law Offices of Annee Della Donna, Annee Della Donna; The Ehrlich Law Firm and Jeffrey I. Ehrlich for Plaintiffs and Respondents. California Highway Patrol (CHP) and Alfredo Gutierrez appeal a $40 million jury verdict arising from the death of a pedestrian. Respondents Alvin and Nella Mount (collectively, Mount) are the decedent’s parents. Over appellants’ objections, the trial court allowed the jury to render verdicts against Gutierrez for negligence and CHP for negligent entrustment. The verdict is contrary to law. Once CHP admitted vicarious liability for Gutierrez’s negligence, it could not be found separately liable for negligent entrustment under Diaz v. Carcamo (2011) 51 Cal.4th 1148 (Diaz) and Armenta v. Churchill (1954) 42 Cal.2d 448 (Armenta). Further, Mount cites no statutory basis for finding CHP liable for negligent entrustment. We reverse the judgment and remand the case for retrial. FACTS Early on October 27, 2019, Gutierrez was riding a CHP motorcycle on Del Amo Boulevard in Long Beach, on the way to begin his 5:00 a.m. work shift. He was not on a CHP call or using a siren or emergency lights. The road is three lanes wide. Gutierrez was in the lane closest to the center median. At the same time, 24-year-old Cezannie Mount (decedent) was walking on Del Amo. Though there is a pedestrian sidewalk, he was not using it. Instead, he was in the lane closest to the center median, with his back to approaching vehicles, wearing dark clothing. He was under the influence of alcohol and marijuana. Security cameras filmed decedent walking in the roadway. A motorist driving to a supermarket saw decedent walking “very slowly” and “aimlessly” in the opposite direction, “straight down the middle of the street in the fast lane.” On his way home 20 minutes later, the motorist came upon decedent, still walking 2 slowly in the road, and swerved to avoid him. A truck driver delivering fuel saw decedent walking slowly “in the middle of the street.” Gutierrez did not see decedent walking in the road and struck him, killing him on impact. He did not swerve or apply his brakes to avoid the collision. Gutierrez was injured and in a coma for two weeks. Appellants offered to stipulate that decedent’s back was to oncoming traffic when Gutierrez collided with him, and the cause of death was blunt force trauma. The issue at trial was not cause of death but rather who was legally responsible for it. Appellants asserted that decedent was responsible because he was walking in the road in the dark. Mount argued that Gutierrez was responsible because he was speeding and had impaired vision, and CHP was responsible because it allowed Gutierrez to ride a motorcycle with impaired vision. Appellants denied that Gutierrez’s vision contributed to the accident. Appellants conceded that Gutierrez exceeded the posted speed limit of 40 miles per hour when he struck decedent. CHP investigator Hector Castaneda estimated Gutierrez’s speed at 67 miles per hour, based on the motorcycle skidding 352 feet from the impact area. He opined that 84 percent of the general population driving the speed limit could not have avoided striking decedent. Mount’s expert opined that Gutierrez was going 69.6 miles per hour. Six days before the accident, Gutierrez sought medical treatment for a vision problem that caused him to see a dark spot and have blurriness in one eye. Ophthalmologist Mitul Mehta diagnosed Gutierrez with central serous retinopathy (CSR) in one eye. He placed no restrictions on Gutierrez’s ability to drive 3 because he did not believe public safety was at risk. He noted that Gutierrez had normal vision in his other eye. Dr. Mehta instructed Gutierrez to stop using a medication, wear goggles, and use eye drops. Gutierrez believed he was fit to work because Dr. Mehta imposed no restrictions. Gutierrez testified that he informed his supervisor about Dr. Mehta’s findings and instructions. No one at CHP told him not to ride his motorcycle or demanded a medical clearance from a CHP doctor. His supervisor did not recall Gutierrez reporting an eye problem, and CHP records did not show a report. A serious eye problem would require that an officer be examined by a CHP doctor and cleared for work. Mount’s eye expert testified that CSR affects night vision and depth perception. Gutierrez testified that his eye condition went away the day he saw Dr. Mehta. However, he was examined a month after the accident by an ophthalmologist who found he still had CSR. Two months after the accident, Gutierrez was retested and still had CSR. Mount’s expert conducted a visibility study at the accident site. He opined that an attentive driver with normal vision could have seen decedent walking in lanes from 488 feet away. PROCEDURAL HISTORY In 2020, Mount sued appellants for wrongful death and negligence. Citing Vehicle Code section 21950, the complaint alleged that Gutierrez was traveling at an unlawful and excessive speed in the course and scope of his employment at CHP.1 It also 1 “(a) The driver of a vehicle shall yield the right-of-way to a pedestrian crossing the roadway within any marked crosswalk or within any unmarked crosswalk at an intersection, except as otherwise provided in this chapter.

4 alleged that CHP provided negligent training. The civil suit was stayed while Gutierrez was prosecuted for misdemeanor vehicular manslaughter; the stay lifted when the criminal proceeding ended in a mistrial. The lawsuit came to trial in 2024. Mount filed 15 motions in limine and appellants filed 26. Appellants sought to exclude photographs, diagrams, and testimony about decedent’s injuries, arguing that evidence about injuries was irrelevant and “(b) This section does not relieve a pedestrian from the duty of using due care for his or her safety. No pedestrian may suddenly leave a curb or other place of safety and walk or run into the path of a vehicle that is so close as to constitute an immediate hazard. No pedestrian may unnecessarily stop or delay traffic while in a marked or unmarked crosswalk. “(c) The driver of a vehicle approaching a pedestrian within any marked or unmarked crosswalk shall exercise all due care and shall reduce the speed of the vehicle or take any other action relating to the operation of the vehicle as necessary to safeguard the safety of the pedestrian. “(d) Subdivision (b) does not relieve a driver of a vehicle from the duty of exercising due care for the safety of any pedestrian within any marked crosswalk or within any unmarked crosswalk at an intersection.” (Veh. Code, § 21950.) Despite relying on Vehicle Code section 21950 in the complaint, Mount successfully asked the trial court to exclude a jury instruction (CACI No. 710) based on that statute, and other instructions pertaining to pedestrians walking in the roadway. If the matter is retried, the trial court should consider the relevance of Vehicle Code sections 21950, 21954, and 21955 in instructing the jury given that the decedent was walking in the lane closest to the center median, in the fast lane, in the middle of a street and not in a crosswalk or intersection when struck by Gutierrez.

5 prejudicial. There was no dispute about the cause of death or that decedent had his back to traffic. Appellants’ trial brief stated that they would move for a nonsuit and directed verdict “as to any claims against defendant CHP that are not based upon vicarious liability.” They objected to proposed instructions, arguing, “plaintiffs cannot maintain common law negligence causes of action against defendant California Highway Patrol [f]or negligent supervision, negligent training, hiring, or entrustment causes of action.” (Capitalization and boldface deleted.) They cited Diaz. After the parties rested, the court allowed Mount to add a claim for negligent entrustment, over appellants’ objection. Appellants offered a special verdict form apportioning liability between Gutierrez and decedent. Mount’s special verdict form apportioned liability between decedent, Gutierrez, and CHP. When the court adopted Mount’s special verdict form, appellants reiterated that the court was allowing “a common law cause of action for negligent entrustment against [CHP] that has no statutory base.” Appellants moved for a directed verdict on the grounds that CHP cannot be sued on a common law negligence theory and Gutierrez was not negligent. The court denied the motion. The jury returned a verdict finding that Gutierrez was negligent and CHP negligently entrusted its motorcycle to him, which was a substantial factor in causing decedent’s death. It awarded $9 million in past noneconomic damages and $31 in future noneconomic damages, apportioning fault as 37 percent to Gutierrez; 26 percent to CHP; and 37 percent to decedent. The court entered judgment against appellants for $25,200,000.

6 Appellants moved for a new trial and JNOV, arguing that the verdict is contrary to law; errors and irregularities occurred at trial; they were prevented from having a fair trial; and damages are excessive. CHP argued that it cannot be sued for negligent entrustment as a matter of law, citing Diaz. CHP observed that it objected to Mount’s claim in its trial brief; in opposition to jury instructions; in opposition to Mount’s motion to add a negligent entrustment claim; in its motion for a directed verdict; and in its objection to Mount’s special verdict form. CHP also argued prejudice. When Mount added a negligent entrustment claim after the close of evidence, CHP was denied an opportunity to show Gutierrez’s collective bargaining agreement and the Peace Officer Bill of Rights prevented CHP from compelling a medical exam by a CHP doctor. The court denied the motions. It awarded Mount costs of $340,419.75. Appellants appeal the judgment and the costs award. (Code Civ. Proc., § 904.1, subd. (a)(1)–(2).) DISCUSSION 1. The Negligent Entrustment Verdict “ ‘[A] special verdict’s correctness is analyzed as a matter of law and therefore subject to de novo review.’ ” (Martinez v. Rite Aid Corp. (2021) 63 Cal.App.5th 958, 969; Bermudez v. Ciolek (2015) 237 Cal.App.4th 1311, 1316.) We independently interpret applicable statutes. (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 527.) Appellants stipulated at trial that Gutierrez was “in the course and scope of his employment as a CHP officer” and “on his way to work as a CHP officer.” CHP was thus vicariously liable 7 for Gutierrez’s negligence.2 Despite CHP’s admission of vicarious liability, the jury found it liable for negligent entrustment, in addition to being liable for Gutierrez’s negligent driving. The verdict is contrary to law. The law is clear. “[A]n employer’s admission of vicarious liability for an employee’s negligent driving in the course of employment bars a plaintiff from pursuing a claim for negligent entrustment.” (Diaz, supra, 51 Cal.4th at p. 1161.) Diaz was injured in a collision with a commercial truck. She asserted that the owner was (1) vicariously liable for its driver’s negligence and (2) directly liable for negligently hiring and retaining him. Before closing argument, the truck owner accepted vicarious liability for its driver’s negligence. (Id. at pp. 1152–1153.) The jury found that the truck driver drove negligently and the owner negligently hired the driver; it allocated liability between the driver, his employer, and another motorist. (Id. at p. 1154.) The verdict was upheld by the Court of Appeal. (Ibid.) Our Supreme Court reversed. It wrote, “If . . . an employer offers to admit vicarious liability for its employee’s negligent driving, then claims against the employer based on theories of negligent entrustment, hiring, or retention become superfluous. To allow such claims in that situation would subject the employer to a share of fault in addition to the share of fault assigned to the employee, for which the employer has already accepted liability. To assign to the employer a share of fault greater than that assigned to the employee whose negligent driving was a cause of 2 A public entity is vicariously liable for injury proximately caused by an employee acting within the scope of employment. (Gov. Code, § 815.2; Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 932.)

8 the accident would be an inequitable apportionment of loss.” (Diaz, supra, 51 Cal.4th at p. 1160.) In vicarious liability cases, “the employer’s share of liability for the plaintiff’s damages corresponds to the share of fault that the jury allocates to the employee.” (Diaz, supra, 51 Cal.4th at p. 1157.) Otherwise stated, the damages attributable to employer and employee are coextensive. (Id. at p. 1159.) Diaz relied on Armenta, supra, 42 Cal.2d at pages 457–458, a fatal truck accident case. Plaintiffs sued the driver for negligence and his wife (who owned the truck and employed her husband) for negligent entrustment. (Id. at pp. 451, 456.) She “admitted her liability for all damages sustained by plaintiffs in the event that her husband was found to be liable.” (Id. at p. 456.) The court wrote that vicarious liability and negligent entrustment are “alternative theories under which . . . to impose upon [the owner] the same liability as might be imposed upon [the driver].” (Armenta, supra, 42 Cal.2d at p. 457.) If an employer admits someone “was her agent and employee and that he was acting in the course of his employment at the time of the accident . . . the legal issue of [the employer’s] liability for the alleged tort was thereby removed from the case.” (Id. at pp. 457– 458.) The Armenta-Diaz line of authority controls here. The jury could not find Gutierrez liable for negligence and find CHP liable for negligent entrustment to him once it admitted he was driving in the course and scope of his employment. CHP could “not be mentioned on the special verdict form”; instead, the jury had to “divide fault for the accident among the listed tortfeasors, and the 9 employer is liable only for whatever share of fault the jury assigns to the employee.” (Diaz, supra, 51 Cal.4th at p. 1159.) CHP was prejudiced by the error. With the correct special verdict form, the jury would have assigned fault to Gutierrez and decedent. Though CHP was responsible for the share of fault assigned to Gutierrez, “the result would have been more favorable to [CHP], because [it] would have had no additional, independent liability.” (Diaz, supra, 51 Cal.4th at p. 1163.) Liability for one share of fault (rather than two out of three shares of fault) would have benefited CHP. (Ibid.) Mount contends that this case falls “within Diaz’s express carve-out for employer negligence that is ‘separate from and independent of the employee-driver’s negligence.’ ” The carve-out arises when an employer is “liable for negligence independent of its employee, for example, when the employer provides the driver with a defective vehicle.” (Diaz, supra, 51 Cal.4th at p. 1159, fn. 1.) The carve-out for independent negligence does not apply here. Mount’s theory was that Gutierrez caused the accident by negligently driving too fast with impaired vision, and CHP negligently entrusted its motorcycle to an employee with impaired vision. CHP’s liability was derivative of Gutierrez’s negligence, not independent of it. A negligent entrustment claim is “superfluous” when it arises from an employee’s negligent driving. (Diaz, supra, 51 Cal.4th at p. 1160.) If a jury found Gutierrez zero percent at fault for the accident, CHP’s share of fault would also be zero, even if it knew he was impaired. (Ibid.) Mount argues that CHP waived or forfeited the right to assert the Armenta-Diaz rule or invited the error by allowing the jury to be instructed on negligent forfeiture. We disagree.

10 Appellants objected before trial, during trial, and after trial that CHP is not liable for negligent entrustment. They cited Diaz in objections to jury instructions. They cited Diaz in opposition to Mount’s request to conform the pleading to proof by adding a claim for negligent entrustment. Diaz is not new authority because it was cited below. Even if it was “new,” appellants preserved the issue and can quote different parts of Diaz on appeal. (Giraldo v. Department of Corrections & Rehabilitation (2008) 168 Cal.App.4th 231, 251 [a party may cite new authority on appeal to support an issue raised in the trial court]; Schmidt v. Bank of America, N.A. (2014) 223 Cal.App.4th 1489, 1505, fn. 11; Chen v. Valstock Ventures, LLC (2022) 81 Cal.App.5th 957, 965 [an issue is preserved for review if raised in the trial court, even if the proponent did not cite any legal authority at all].) Appellants preserved their objection to Mount’s claim. They did not expand the issue—CHP’s nonliability for negligent entrustment—on appeal. Contrary to Mount’s argument, appellants did not “engag[e] in gamesmanship by choosing not to object, awaiting the outcome, and then claiming error.” (People v. Kennedy (2005) 36 Cal.4th 595, 612.) Nor did appellants “invite” the court to instruct the jury on negligent entrustment. Once the court overruled their objections to Mount’s belated claim for negligent entrustment, appellants had no choice but to acquiesce in jury instructions on negligent entrustment. Notably, the plaintiff in Diaz asserted that the employer forfeited its right to invoke Armenta “by not admitting vicarious liability before trial.” (Diaz, supra, 51 Cal.4th at p. 1157.) The court rejected the argument. “If, as here, all of a plaintiff’s causes of action depend on a contention that an employee’s negligent driving in the scope of employment was a cause of the 11 plaintiff’s injuries, and if the defendant-employer offers to admit vicarious liability for its employee’s negligent driving, then that offer will ‘remove[] from the case’ the issue of the employer’s liability for any damage caused by its employee’s negligent driving, leaving no ‘material issue’ to which negligent entrustment evidence can be relevant. (Armenta, supra, 42 Cal.2d at pp. 456–457.) It makes no difference that here defendant-employer . . . offered to admit vicarious liability at trial instead of before.” (Diaz, at pp. 1157–1158.) If appellants failed to emphasize Diaz sufficiently during trial, they did so in their motion for new trial. The court erred by failing to grant the motion, because the verdict was improper as a matter of law. CHP’s admission of vicarious liability removed the issue of negligent entrustment from the case. The Armenta-Diaz rule “bars [plaintiffs] from pursuing a claim for negligent entrustment” and “the trial court here erred in not applying that holding to this case.” (Diaz, supra, 51 Cal.4th at p. 1161.) Apart from being barred by the Armenta-Diaz rule, the negligent entrustment claim against CHP is barred for a second reason. As a public entity, CHP has limited liability under the Government Claims Act, which “abolished all common law or judicially declared forms of liability.” (Ellerbee v. County of Los Angeles (2010) 187 Cal.App.4th 1206, 1214.) A public entity can only be held directly liable for its own conduct or omission if authorized by statute. (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1131; Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 829 [“a public entity is not liable for injuries except as provided by statute”].)

12 Negligent entrustment is not a statutory basis for recovery. “The question of negligent entrustment is one of common law liability.” (Jones v. Ayers (1963) 212 Cal.App.2d 646, 655.) Mount cites Government Code section 815.2 (section 815.2) as the statutory basis for CHP liability. Section 815.2 creates public entity liability for injury proximately caused by an employee within the scope of his employment. It does not abrogate the Armenta-Diaz rule. Thus, when the public entity admits liability under section 815.2, it cannot be found separately liable for the same employee acts. Mount relies on a case in which our Supreme Court found liability under section 815.2 based on a “special relationship” between the public entity, its employee, and the injured party. (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 868–870 [special relationship between school pupils and a school district and its employees].) The court wrote that a school district may be vicariously liable under section 815.2 for hiring a teacher who it knew or should have known had dangerous propensities. (Id. at p. 875.) The court acknowledged that Diaz makes public entities vicariously liable for employees’ torts in the scope of their employment. (Ibid.) Based on the special relationship between students and schools, “public school personnel may be individually liable for their negligent failure to protect students from harm at others’ hands.” (Ibid.) Mount cites no authority for the proposition that Gutierrez, his supervisor, or CHP had a special relationship with decedent. Mount cites Lugtu v. California Highway Patrol (2001) 26 Cal.4th 703. It is inapposite. The opinion addresses whether a CHP officer was negligent in directing a speeding motorist to stop in the center median of a highway, where the car was hit by a 13 truck. (Id. at p. 707.) Lugtu does not address CHP’s vicarious liability, only the officer’s legal duty of care. In sum, the verdict impermissibly imposes separate liability on CHP for negligent entrustment. The proper disposition is “to reverse the trial court’s judgment and remand the case for a complete retrial.” (Diaz, supra, 51 Cal.4th at p. 1163.) This is true even if the jury made an allocation of fault among the parties. (Id. at pp. 1162–1163.) 2. Evidence of Decedent’s Injuries Appellants asked the court to exclude evidence showing the nature and extent of decedent’s injuries, including postmortem photographs. They objected that the evidence was irrelevant and offered to stipulate that decedent had his back to traffic when he was struck.3 The court allowed Mount’s expert to testify about decedent’s injuries, with detailed descriptions, color photos, and computer graphics. Photos and testimony about injuries are irrelevant. Evidence is relevant if it has “any tendency in reason to prove or disprove any disputed fact that is of consequences to the determination of the action.” (Evid. Code, § 210, italics added.) Appellants concede decedent was struck from behind; they said 3 The photos were purportedly needed to refute CHP investigator Castaneda, whose deposition was read at trial. Mount claimed Castaneda testified that decedent “was facing the bike when he was struck, implying that he intentionally tried to kill himself.” We found no such testimony. Castaneda testified that decedent was reckless because he was walking in the road, in the dark, while intoxicated.

14 as much in opening statements.4 There is no reason to prove an undisputed fact with photos of injuries to decedent’s back and legs. This is not analogous to photographs in a murder case used to support witness statements; prove the state’s felony-murder theory; and show the victims were handcuffed to facilitate robbery. (People v. Scheid (1997) 16 Cal.4th 1, 13–16.) The evidence was not needed to rebut Castaneda’s investigative report, which was excluded at trial. On retrial, evidence showing or describing the nature and extent of decedent’s injuries must be excluded. The cause and mechanism of death are not in dispute. All parties agree decedent was struck from behind and was not suicidal. The only disputed issue is fault. Photographic and other evidence of injury is not relevant to show fault. 3. Costs Award “A disposition that reverses a judgment automatically vacates the costs award in the underlying judgment.” (Ducoing Management, Inc. v. Superior Court (2015) 234 Cal.App.4th 306, 314.) Our reversal of the judgment eliminates any need to address the parties’ arguments regarding the cost award.

4 Defense counsel told jurors decedent “was hit directly from behind.”

15 DISPOSITION The judgment is reversed and the case is remanded for a new trial. Appellants are entitled to recover their costs on appeal. NOT TO BE PUBLISHED.

LUI, P. J. We concur:

RICHARDSON, J.

GOORVITCH, J.