RICHARD EVANS ET AL VS GREG KAWCZYNSKI ET AL

Tentative Rulings

Case Number: BC663094    Hearing Date: November 26, 2019    Dept: 4B

[TENTATIVE] ORDER RE: DEEFENDANT ORGANIZING FOR ACTION’S MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

On May 30, 2017, plaintiffs Richard Evans and Lydia Evans (collectively, “Plaintiffs”) filed this action against defendants Gregg Kawczynski (“Kawczynski”) and Organizing for Action (“OFA”) for negligence, dangerous condition of public property, premises liability, and loss of consortium. OFA moves for summary judgment in its favor or, in the alternative, summary adjudication of the First Cause of Action for Negligence and Fourth Cause of Action for Loss of Consortium, the two causes of action alleged against OFA. Kawcyznski and Plaintiffs oppose the motion.

II. FACTUAL BACKGROUND

On February 20, 2016, Kawczynski and Richard Evans were involved in a three vehicle collision in San Pedro. (Defendant’s Undisputed Material Facts (“UMF”) No. 1.) Kawczynski was the driver of one vehicle and had a passenger in his car, Nicholas Maldonado (“Maldonado”). (UMF Nos. 2-3.) Both Kawcyznski and Maldonado were volunteers for defendant OFA and on the way to another volunteer’s home in Long Beach to discuss actions to take regarding a proposed nomination for the Supreme Court. (UMF Nos. 4-5.)

OFA is a 501(c)(4) nonprofit organization and issue advocacy group that relies mostly on fundraising and volunteer efforts to operate. (UMF No. 6-7.) OFA, through its thousands of grassroots volunteers, holds community events across the country to raise awareness about political and environmental issues. (UMF No. 8.) At its peak, OAF had approximately 150 employees generally located in Chicago. (UMF Nos. 9-10.) As of 2017, OFA has 23 paid employees in Chicago, with one employee working remotely from Ann Arbor, Michigan. (UMF No. 11.)

Kawczynski has not been employed since December 2010. (UMF No. 20.) He began volunteering with OFA in about 2013. (UMF No. 12.) At the time of the accident, Kawcyznski was the OFA chapter lead of Long Beach. (UMF No. 13.) Kawczynski did not receive any type of compensation or benefits from OFA. (UMF No. 15.) OFA chapter leads have the discretion to meet and plan events with local volunteers without direct oversight from OFA’s headquarters. (UMF No. 17.) OFA has no records that any OFA events were scheduled in Long Beach on the day of the accident. (UMF No. 19.)

III. LEGAL STANDARDS

In reviewing a motion for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages . . . or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).) A motion for summary adjudication shall proceed in all procedural respects as a motion for summary judgment. (Code Civ. Proc., § 437c, subd. (f)(2).)

“[T]he initial burden is always on the moving party to make a prima facia showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) A moving defendant need not conclusively negate an element of plaintiff’s cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.)

To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.” (Aguilar, supra, 25 Cal.4th at p. 854.) It is insufficient for the defendant to merely point out the absence of evidence. (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.) The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.” (Ibid.)  The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken. (Aguilar, supra, 25 Cal.4th at p. 855.)

“Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).) The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

IV. EVIDENTIARY OBJECTIONS

OFA’s Objection No. 1 to the Kawczynski Declaration is overruled. OFA’s other objections are to Plaintiff’s Separate Statement of Additional Facts, rather than to the specific deposition excepts and exhibits cited in the Separate Statement. Instead of making evidentiary objections to the cited evidence, OFA makes arguments disputing the Additional Facts.

V. DISCUSSION

OFA argues it is not liable for Kawczynski’s acts because he was a volunteer. OFA contends that in Munoz v. City of Palmdale (1999) 75 Cal.App.4th 367, the court held that vicarious liability could not be imposed for the alleged torts of unpaid volunteers at public agencies and private nonprofit organizations, without regard to the right of control. Plaintiffs argue Kawczynski was acting as an agent of OFA, making OFA vicariously liable.

The holding in Munoz was not as sweeping as OFA contends. That case concerned whether a city could be liable for the acts of an unpaid volunteer. Because the plaintiff was suing a public entity, the plaintiff needed to establish the city’s liability “based on statutory not common law.” (Munoz, supra, 75 Cal.App.4th at p. 369.) The plaintiff relied on Government Code section 815.2, which makes a public entity liable for injury proximately caused by acts “of an employee of the public entity within the scope of his employment.” (Ibid.) The case then analyzed whether a volunteer was an “employee” as used in section 815.2. The term “employee” is defined in Government Code section 810.2 as an officer, judicial officer “employee, or servant, whether or not compensated” (id. at pp. 369-370), but Labor Code section 3352 excludes unpaid volunteers from the definition of employee. (Id. at p. 368.) Therefore, and based on public policy considerations, the court in Munoz concluded that “employee” as used in section 815.2 and defined in section 810.2 did not included unpaid volunteers. (Id. at p. 372.)

The Munoz court did not analyze whether a private non-profit organization can be liable for injuries caused by an act of an unpaid volunteer and did not address whether an unpaid volunteer can be the agent of a private non-profit organization. Indeed, in defining “employee” in section 810.2, the Legislature specifically excluded agents. The Legislative Committee Comments to section 810.2 state that the bill as introduced originally defined “employee” as “an officer, agent or employee.” The term “servant” was substituted for “agent” because “ ‘servant’ was believed to be more restrictive than ‘agent.’” Thus, the analysis and holding in Munoz do not require the conclusion that a volunteer for a private non-profit organization cannot be an agent of the organization for purposes of vicarious liability.

“An agent is anyone who undertakes to transact some business, or manage some affair, for another, by authority of and on account of the latter, and to render an account of such transactions.” (Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1171 [citations and quotations omitted].) “The significant test of an agency relationship is the principal’s right to control the activities of the agent. (Id. at pp. 1171-1172 [citations and quotations omitted].) “‘[A] principal is liable to third parties . . . for the frauds or other wrongful acts committed by [its] agent in and as part of the transactio of’ the business of the agency. [Citation.]” (Id. at p. 1172.)

Plaintiffs contend the facts establish that Kawczynski was an agent because, among other things, OFA provided him with a toolkit about how to host events and recruit volunteers and talk points to discuss during meetings. (Kawczynski Decl., ¶¶ 5, 6.) OFA provided guidelines and techniques on how to conduct training sessions and required chapter leads to report back to OFA on new volunteer signups. (Id., ¶¶ 7, 8.) OFA instructed chapter leads on hosting OFA events and deadlines for volunteers. (Id., ¶¶ 10, 11.) OFA required chapter leads to meet on a regular basis with chapter members and volunteers, hold certain periodic meetings, and make certain postings, and ensure others receive resources, guidance and training. (Exh. E, pp. 26:20-24, 30:20-31:8, 36:20-37:25.) Thus, according to Plaintiffs, OFA directed Kawczynski to take certain actions, and he was in the process of taking those actions – going to a meeting to plan a OFA phone bank – when the accident occurred. OFA disputes many of these facts, arguing that OFA did not require, but merely enouraged or incentivized, these actions, did not control the actions of chapter leads like Kawczynski, did not know about the meeting to which Kawczynski was driving, and had not instructed Kawczynski to attend the meeting.

In sum, there are disputed facts about Kawczynski’s role at OFA and the extent of instruction and control OFA exercised over him in his position as chapter lead. The Court cannot decide as a matter of law that Kawczynski was not acting as an agent of OFA at the time of the accident.

In its reply OFA makes a new argument – that even if Kawczynski was an OFA agent, OFA is not liable under the coming and going rule. The Court will not consider a new argument made in a reply brief.

VI. CONCLUSION

In light of the foregoing, the Motion for summary judgment is DENIED.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT4B@lacourt.org indicating intention to submit on the tentative.