Motion to vacate judgment and enter a different judgment
within the course and scope of his employment with Swish at the time of the incident. “Despite the broad range of acts that may give rise to the imposition of vicarious liability, before such liability will be imposed on the employer there must be a connection between the employee’s intentional tort and the employee’s work.” (Perry v. County of Fresno (2013) 215 Cal.App.4th 94, 101 (Perry).) “The law is clear that an employer is not strictly liable for all actions of its employees during working hours. (Farmers Ins.
Group v. County of Santa Clara (1995) 11 Cal.4th 992, 1004, 47 Cal.Rptr.2d 478, 906 P.2d 440 (Farmers).) Rather, there must be a causal nexus between the tort and the employee’s work, i.e., the tort ... must be engendered by or arise from the work. ([Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291,] 297-298, 48 Cal.Rptr.2d 510, 907 P.2d 358.) ‘That the employment brought tortfeasor and victim together in time and place is not enough.’ (Id. at p. 298, 48 Cal.Rptr.2d 510, 907 P.2d 358.)” (Perry, at p. 101.)
“For a causal nexus to exist ‘the incident leading to injury must be an “outgrowth” of the employment [citation]; the risk of tortious injury must be “ ‘inherent in the working environment’ ” [citation] or “ ‘typical of or broadly incidental to the enterprise [the employer] has undertaken [citation]. ’ ” ’ (Lisa M., supra, 12 Cal.4th at p. 298, 48 Cal.Rptr.2d 510, 907 P.2d 358.) In other words, the risk of the tort must be a generally foreseeable consequence of the enterprise. (Id. at p. 300, 48 Cal.Rptr.2d 510, 907 P.2d 358.)
If the employee acts out of personal malice unconnected with the employment, the employee is not acting within the scope of employment. (Farmers, supra, 11 Cal.4th at p. 1005, 47 Cal.Rptr.2d 478, 906 P.2d 440.) The mere fact that an employee has an opportunity to abuse facilities or authority necessary to the performance of that employee’s duties does not render the employer vicariously liable. (Id. at p. 1006, 47 Cal.Rptr.2d 478, 906 P.2d 440.) A tort will not be considered engendered by the employment unless its motivating emotions were fairly attributable to work-related events or conditions. (Lisa M., supra, at p. 301, 48 Cal.Rptr.2d 510, 907 P.2d 358.)” (Perry, at pp. 101-102.)
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Swish shall give notice of this ruling.
53. Bales v. Defendant Susan Belenardo’s motion to vacate judgment and Belenardo enter a different judgment is DENIED.
2021- Defendant moves under C.C.P. § 663. That section states (in 01201005 relevant part):
A judgment . . . when based upon . . .the special verdict of a jury, may, upon motion of the party aggrieved, be set aside and vacated by the same court . . . for either of the following causes, materially affecting the substantial rights of the party and entitling the party to a different judgment: (2) a judgment. . . not consistent with or not supported by the special verdict.
In this case, there was a jury trial. The jury found that defendant engaged in conduct with malice. (ROA 923). Thereafter, the jury awarded punitive damages. (ROA 924).
Therefore, the judgment rendered was consistent with the special verdict.
Defendant’s motion argues that there was not sufficient evidence to support the award of punitive damages due to plaintiff’s failure to present sufficient evidence of defendant’s overall financial condition.
But Section 663 does not allow the court to re-weigh evidence. Section 663 “authorizes simply the substitution of the judgment that should have been given as a matter of law upon the findings of fact in the case where the judgment already given is an incorrect conclusion from such findings. The court cannot on such a motion in any way change any finding of fact. The sole remedy in the trial court of a party who is aggrieved by any finding of fact is a motion for a new trial.” Jones v. Clover (1937) 24 Cal. App. 2d 210, 212. Here, the “judgment for [plaintiff] was consistent with and fully supported by the jury’s special verdict which found [defendant] was engaged [with malice] at the time of the accident. The special verdict itself cannot be attacked under Code of Civil Procedure section 663.” Acosta v. Los Angeles Unified School Dist. (1995) 31 Cal. App. 4th 471, footnote 7.
Section 663 can only be used where “the trial judge draws an incorrect legal conclusion or renders an erroneous judgment upon the facts found by [the jury] to exist.” County of Alameda v. Carleson (1971) 5 Cal. 3d 730, 738.
Here, the judgment is consistent with the special verdict rendered by the jury.
The motion is therefore DENIED.
Plaintiff shall give notice of this ruling.
54. Mutton v. Defendants Osborne Homes, Inc. and Michael Osborne’s Osborne motion to compel plaintiff Matthew Mutton to submit his Homes, Inc. claims against them to binding contractual arbitration is GRANTED.