Filed 6/22/15

                            CERTIFIED FOR PUBLICATION


                COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                     DIVISION ONE

                                STATE OF CALIFORNIA



MIRIAM NAVARRETE et al.,                         D067454

        Plaintiffs and Appellants,

        v.                                       (Super. Ct. No. RIC1100243)

HAYLEY MEYER,

        Defendant and Respondent.


        APPEAL from a judgment of the Superior Court of Riverside County, Matthew

Perantoni, Judge. Reversed.

        Shernoff Bidart Echeverria Bentley and Gregory L. Bentley, Steven M. Schuetze,

Law Office of Luis A. Carrillo and Luis A. Carrillo, Rogriguez & Associates and Daniel

Rodriguez, for Plaintiffs and Appellants.

        LaFollette Johnson DeHaas Fesler & Ames and Donald C. Fesler, Law Offices of

David J. Weiss and David J. Weiss, Greines, Martin, Stein & Richland and Marc J. Poster

for Defendant and Respondent.

        Plaintiffs and appellants Miriam Navarrete and her minor children Bryan,

Stephanie, and Steven Navarette (collectively Navarrete) appeal from a summary
judgment in favor of defendant and respondent Hayley Meyer on plaintiffs' claims for

violation of Vehicle Code section 21701 and civil conspiracy arising from allegations that

Meyer, a passenger in a vehicle, told the driver to drive at an unsafe speed over a road

Meyer knew had unusual conditions that would cause the car to become airborne,

resulting in a fatal accident. In granting summary judgment, the trial court ruled there

was no evidence to suggest Meyer's act of telling the driver to drive faster affected his

control over the vehicle, and therefore no triable issues of material fact as to either cause

of action. Navarrete contends the evidence raises triable issues for a jury as to whether to

impose joint liability on Meyer for her conduct on the night in question on a theory of

concert of action or conspiracy, and also as to whether she unreasonably interfered with

the safe operation of a vehicle within the meaning of Vehicle Code section 21701 to

support a cause of action. We agree and reverse.

                   FACTUAL AND PROCEDURAL BACKGROUND

       On November 26, 2009, Meyer was the front passenger in a vehicle driven by her

friend Brandon Coleman. Another person, Levi Calhoun, was in the back seat. While

driving to a nearby drugstore, Meyer told Coleman to turn onto Skyview Drive as a

shortcut. Skyview Drive is a residential street with a 25 mile-per-hour speed limit.

Meyer had been on Skyview Drive many times before that day, and she knew it had dips

that would cause a car traveling at a high rate of speed to become airborne. While

Coleman was making the turn onto Skyview Drive, Meyer told him about the dips, that it

was fun to drive fast on them, and that he should do it. Shortly after Coleman turned onto

the street, Meyer told Coleman to "go faster." Coleman asked Calhoun if he should

                                              2
speed up, and Calhoun responded, "You probably shouldn't because you may mess up the

car." Coleman sped up. He accelerated to such a degree that he caught air from the dips

and lost control of the car, which veered sharply to the right and collided into Navarette's

parked vehicle while Navarrete's husband, Esteban Soto, was attempting to put one of

their children in a car seat. Soto's legs were severed and he was killed by the impact. A

data recorder from Coleman's car indicated its speed was 81 miles per hour five seconds

before the impact, and 71 miles per hour one second before the impact. Meyer estimated

the car's speed at about 70 miles per hour. Meyer admitted it was her idea to drive fast on

Skyview Drive.

       Navarette sued Coleman and the County of Riverside, and eventually filed a first

amended complaint naming Meyer as a Doe defendant. She alleged, among others,

causes of action against Meyer for violation of Vehicle Code section 217011 (fourth

cause of action) and civil conspiracy (fifth cause of action). In the fourth cause of action,

Navarette alleged Meyer willfully interfered with Coleman or the mechanism of the

vehicle in such manner as to affect Coleman's control of the car; that Meyer's acts caused

a lapse of Coleman's control as to cause serious injury and death; and that certain

physical features of Skyview Drive increased and intensified the dangers to the decedent

and plaintiffs from Coleman and Meyer's conduct. In the fifth cause of action for

conspiracy, Navarrete alleged that Coleman and Meyer "formed an oral and/or implied


1       Vehicle Code section 21701 provides in part: "No person shall wilfully interfere
with the driver of a vehicle or with the mechanism thereof in such manner as to affect the
driver's control of the vehicle."

                                              3
agreement [to] commit a wrongful act, including but not limited to driving on Skyview

Drive at unsafe speed" and "[s]uch agreement, conspiracy, and/or joint venture between

Defendants to cause wrongful acts caused injuries to Plaintiffs and Decedent." She

alleged that the "conspiracy and agreement is evidenced by the fact, inter alia, that

[Coleman and Meyer]: (a) aided, abetted, approved, ratified, and/or deliberately and

knowingly failed, refused and/or refrained from intervening in or preventing or stopping

the wrongful conduct; and/or (b) deliberately and knowingly failed, refused, and/or

refrained from promptly and accurately reporting such wrongful conduct."

       Meyer moved for summary judgment or alternatively summary adjudication. She

argued Navarette's fourth and fifth causes of action were without merit; that undisputed

facts showed she did not interfere with Coleman's control of the vehicle as needed to

impose liability under Vehicle Code section 21701, and there was no evidence of a tacit

agreement between her and Coleman to support a conspiracy cause of action or

conspiracy to commit any tort. Meyer argued that simply encouraging Coleman to

increase his speed was insufficient to support liability under either cause of action. In

opposition, Navarette argued Meyer was liable as a joint tortfeasor for Coleman's

negligence under the Restatement Second of Torts, section 876 and as a coconspirator;

that Meyer "formulated and communicated the plan for . . . Coleman to race at high speed

on Skyview Drive to become airborne when he hit the dips in the roadway"; and "[v]erbal

encouragement and solicitation to commit a wrongful act can constitute a civil

conspiracy." Navarette maintained the evidence demonstrated "an agreement and a plan

to commit the wrongful act" because "[a]s a result of and in response to Meyer's

                                              4
instructions, Coleman began accelerating." According to Navarette, the court could infer

that Coleman was trying to impress Meyer and acquiesced to her wishes, and an

agreement could be inferred from his actions in response to her encouragement. Finally,

Navarette argued there were triable issues of material fact as to whether Meyer

unreasonably interfered with the safe operation of the vehicle within the meaning of

Vehicle Code section 21701 by her words and actions: "[A] reasonable inference from

the evidence is that as the engine roared and the vehicle started accelerating down the

road, that [Meyer's] instruction to 'Go faster' was unlikely stated in a calm, sterile

manner, but rather the instruction itself was animated and enthusiastic."

       The trial court granted summary judgment in Meyer's favor. It acknowledged that

the material facts were undisputed; that Meyer told Coleman to drive faster to catch air

over the dips on Skyview Drive, but ruled "there is no evidence to suggest that Meyer's

act of telling Mr. Coleman to drive faster affected Mr. Coleman's control over the

vehicle" and thus there was no triable issue of material fact as to the fourth cause of

action for violation of Vehicle Code section 21701. The court applied the same

reasoning to grant summary judgment on the conspiracy cause of action.

       Navarette filed this appeal.

                                         DISCUSSION

                                      I. Standard of Review

       " 'Because this case comes before us after the trial court granted a motion for

summary judgment, we take the facts from the record that was before the trial court when

it ruled on that motion. [Citation.] " 'We review the trial court's decision de novo,

                                               5
considering all the evidence set forth in the moving and opposing papers except that to

which objections were made and sustained.' " [Citation.] We liberally construe the

evidence in support of the party opposing summary judgment and resolve doubts

concerning the evidence in favor of that party.' " (Conroy v. Regents of University of Cal.

(2009) 45 Cal.4th 1244, 1249-1250; see DiCola v. White Bros. Performance Products,

Inc. (2008) 158 Cal.App.4th 666, 675 (DiCola).)

       "A defendant meets his or her burden upon a motion for summary judgment or

summary adjudication if that party has proved 'one or more elements of the cause of

action . . . cannot be established . . . .' [Citation.] The defendant need not conclusively

negate an element of the plaintiff's cause of action, but must only show that one or more

of its elements cannot be established. [Citation.] To shift the burden to the nonmoving

party, the evidence produced by the moving party must 'persuade the court that there is

no material fact for a reasonable trier of fact to find . . . .' [Citation.] The moving party

also bears a burden of production 'to make a prima facie showing of the nonexistence of

any triable issue of material fact.' [Citation.] 'A prima facie showing is one that is

sufficient to support the position of the party in question.' [Citation.] [¶] '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 . . . .' " (DiCola, supra, 158 Cal.App.4th

at p. 674.)

       " 'A trial court properly grants summary judgment where no triable issue of

material fact exists and the moving party is entitled to judgment as a matter of law.'

[Citation.] The materiality of a disputed fact is measured by the pleadings [citations],

                                                6
which 'set the boundaries of the issues to be resolved at summary judgment.' " (Conroy v.

Regents of University of Cal., supra, 45 Cal.4th at p. 1250; see also Coral Const., Inc. v.

City and County of San Francisco (2010) 50 Cal.4th 315, 336; Judicial Council of

California v. Superior Court (2014) 229 Cal.App.4th 1083, 1090.) Nevertheless, "[w]hen

a motion for summary judgment is used to test whether the complaint states a cause of

action, the court will apply the rule applicable to demurrers and accept the allegations of

the complaint as true." (American Airlines, Inc. v. County of San Mateo (1996) 12

Cal.4th 1110, 1118.) " ' "[T]he allegations must be liberally construed with a view to

attaining substantial justice among the parties." [Citation.] "Our primary task is to

determine whether the facts alleged provide the basis for a cause of action against

defendants under any theory." ' " (Ibid.; see also Varshock v. California Dept. of

Forestry and Fire Protection (2011) 194 Cal.App.4th 635, 651-652 [in reviewing a

summary judgment to determine the legal effect of the complaint its allegations must be

liberally construed under Code of Civil Procedure section 452].) We ignore erroneous or

confusing labels in the pleading and look to its gravamen to determine what cause of

action is stated. (See K.C. Multimedia, Inc. v. Bank of America Technology &

Operations, Inc. (2009) 171 Cal.App.4th 939, 959.)

       On review of an order granting summary judgment the appellate court owes the

superior court no deference; we are not bound by its stated reasons because we review its

ruling not its rationale. (Coral Const., Inc. v. City and County of San Francisco, supra,

50 Cal.4th at p. 336; Judicial Council of California v. Superior Court, supra, 229

Cal.App.4th at p. 1090.)

                                             7
                                    II. Threshold Issues

       We initially address and reject Meyer's argument that Navarette has improperly

asserted a new cause of action on appeal—aiding and abetting an exhibition of speed in

violation of Vehicle Code section 231092—and that any such claim is barred by the

"theory of the trial" doctrine. (See DiCola, supra, 158 Cal.App.4th at p. 676 [an

argument or theory will not be considered if it is raised for the first time on appeal; a

party is not permitted to change his position and adopt a new and different theory on

appeal].) Meyer points out there is no reference to Vehicle Code section 23109 or the

words aiding and abetting an exhibition of speed in Navarette's operative complaint.

       Meyer's contention fails under the above-summarized principles permitting this

court to look beyond the labels of the pleadings and to the gravamen of the claim to

assess whether the first amended complaint states a cause of action. Because Navarette

alleges that Meyer "formed an oral and/or implied agreement" or joint venture with

Coleman to commit a wrongful act, "including but not limited to driving on Skyview

Drive at unsafe speed" and that Mayer "aided [or] abetted" the "wrongful conduct," her

allegations encompass such a theory notwithstanding her failure to specifically reference

Vehicle Code section 23109. Meyer's complaint need only meet fact-pleading

requirements; it must contain " '[a] statement of the facts constituting the cause of action,


2       Subdivision (c) of Vehicle Code section 23109 provides: "A person shall not
engage in any motor vehicle exhibition of speed on a highway, and a person shall not aid
or abet in any motor vehicle exhibition of speed on any highway." The Vehicle Code
defines a "Highway" as "a way or place of whatever nature, publicly maintained and open
to the use of the public for purposes of vehicular travel. Highway includes street." (Veh.
Code, § 360.)
                                              8
in ordinary and concise language' " and should "allege ultimate facts that 'as a whole

apprise[] the adversary of the factual basis of the claim.' " (Davaloo v. State Farm Ins.

Co. (2005) 135 Cal.App.4th 409, 415; see Code Civ. Proc., § 425.10, subd. (a)(1).) And

Navarette raised these very issues in opposition to Meyer's summary judgment motion, so

there is no basis to claim Meyer was without opportunity to address the questions in the

trial court.

        Meyer further contends Navarette's aiding and abetting an exhibition of speed

theory cannot be considered on appeal because "it is premised on a factual theory 'the

consequences of which are open to controversy and were not put in issue or presented at

the trial' . . . and are not such that they 'could not be altered by the presentation of

additional evidence.' " Her apparent reasoning is that the aiding and abetting theory is

"flatly inconsistent" with Navarette's pleaded theory of interference with Coleman's

operation of the vehicle; she maintains interference on the one hand and aiding and

abetting, on the other, are "antithetical concepts involving entirely opposite states of

mind" and thus the theories cannot coexist. Meyer compares the circumstances to those

in Sumner Hill Homeowners' Assn. Inc. v. Rio Mesa Holdings (2012) 205 Cal.App.4th

999.

        In Sumner Hill, "[a]t every step of [the] case" (Sumner Hill Homeowners' Assn.

Inc. v. Rio Mesa Holdings, supra, 205 Cal.App.4th. at p. 1025) from the filing of the

operative complaint to the court's statement of decision after trial, the defendants argued a

map violated the Subdivision Map Act, but then in an "eleventh-hour turnabout" on

appeal took the entirely contrary position that the County properly approved the map,

                                                9
which complied with that law. (Id. at pp. 1025-1026.) The appellate court in Sumner

Hill declined to consider the new position, reasoning it would be unfair to allow the

defendants to reinvent the case on appeal and there was no opportunity for the parties or

trial court to consider the ramification of such a position or how it might relate to other

issues, evidence or arguments. (Id. at pp. 1025, 1027.)

       The theory of the trial principle of Sumner Hill does not apply here. The essential

facts of Meyer's conduct and the accident are not in dispute; indeed Meyer conceded that

for purposes of the motion, "she wanted Coleman to speed over the dips and she told him

to do so." The trial court observed in its minute order that "[t]he facts in this case are not

disputed" that "Meyer did tell Mr. Coleman to drive faster to 'catch air' over the speed

bumps." We see nothing about the basic factual theory of Navarette's case that was not

presented in the trial court. Rather, we are to assess whether these facts support liability

under any pleaded theory or cause of action so as to defeat Meyer's summary judgment

motion. Nor do we agree that a theory that Meyer aided and abetted Coleman's wrongful

speeding is antithetical to the notion that she interfered with Coleman's control of the

vehicle. As we explain more fully below, where a passenger encourages a driver to speed

on a road that the passenger knows can render the speeding car airborne, it is for a trier of

fact to decide whether the passenger's actions constitute interference within the meaning

of Vehicle Code section 21701.

         III. Joint Liability Under Concert of Action/Aiding and Abetting Theory

       Navarette contends that Meyer is jointly liable for Coleman's negligent conduct

under a concert of action theory as set forth in section 876(b) of the Restatement Second

                                              10
of Torts and Sindell v. Abbott Laboratories (1980) 26 Cal.3d 588. She maintains Meyer

abetted, urged and encouraged Coleman to engage in the prohibited activity of unlawful

exhibition of speed within the meaning of Vehicle Code section 23109 for the purpose of

the vehicle's tires losing traction and becoming airborne. Relying in part on Agovino v.

Kunze (1960) 181 Cal.App.2d 591 (Agovino), she asserts Meyer as a passenger owed a

duty under that statute not to aid or abet Coleman in such action, and is jointly liable for

the consequences of such conduct.

       Though Navarette's contentions are couched on the merits, our role on summary

judgment is simply to decide whether the parties possess evidence requiring the fact-

weighing procedures of a trial. (Soto v. County of Riverside (2008) 162 Cal.App.4th 492,

496; City of Oceanside v. Superior Court (2000) 81 Cal.App.4th 269, 273.) "The purpose

of the summary judgment procedure is not to try the issues, but merely to determine

whether there are issues to be tried." (Orser v. George (1967) 252 Cal.App.2d 660, 668.)

We view the evidence most favorably to Navarette and ascertain whether it raises a

triable issue of material fact for a jury on any cause of action reasonably alleged in the

first amended complaint. Undertaking that analysis, we perceive a straightforward basis

to reverse the summary judgment.

A. Legal Principles

       Section 876 of the Restatement Second of Torts provides: "For harm resulting to a

third person from the tortious conduct of another, one is subject to liability if he (a) does

a tortious act in concert with the other or pursuant to a common design with him, or (b)

knows that the other's conduct constitutes a breach of duty and gives substantial

                                              11
assistance or encouragement to the other so to conduct himself, or (c) gives substantial

assistance to the other in accomplishing a tortious result and his own conduct, separately

considered, constitutes a breach of duty to the third person." In Sindell v. Abbott

Laboratories, supra, 26 Cal.3d 588, the California Supreme Court determined whether a

complaint stated a cause of action under the Restatement's "concert of action" doctrine,

and explained these principles by quoting Dean Prosser's comment that " 'those who, in

pursuance of a common plan or design to commit a tortious act, actively take part in it, or

further it by cooperation or request, or who lend aid or encouragement to the wrongdoer,

or ratify and adopt his acts done for their benefit, are equally liable with him. [¶]

Express agreement is not necessary, and all that is required is that there be a tacit

understanding . . . ." (Sindell, at p. 604, quoting Prosser, Law of Torts (4th ed. 1971)

§ 46, p. 292.)

       The concert of action theory of group liability "may be used to impose liability on

a person who did not personally cause the harm to plaintiff, but whose ' "advice or

encouragement to act operates as a moral support to a tortfeasor[,] and if the act

encouraged is known to be tortious[,] it has the same effect upon the liability of the

adviser as participation or physical assistance. If the encouragement or assistance is a

substantial factor in causing the resulting tort, the one giving it is himself a tortfeasor and

is responsible for the consequences of the other's act." ' " (Cadlo v. Owens-Illinois, Inc.

(2004) 125 Cal.App.4th 513, 521, quoting Chavers v. Gatke Corp. (2003) 107

Cal.App.4th 606, 617.) The doctrine is likened to aiding and abetting. (See Saunders v.

Superior Court (1994) 27 Cal.App.4th 832, 846 [describing concert of action theory

                                              12
under the Restatement as aiding and abetting]; Fiol v. Doellstedt (1996) 50 Cal.App.4th

1318, 1325-1326 [referencing the Restatement Second of Torts, section 876 in describing

aiding and abetting liability]; Casey v. U.S. Bank National Ass'n (2005) 127 Cal.App.4th

1138, 1144; Gerard v. Ross (1988) 204 Cal.App.3d 968, 983 ["In the civil arena, an aider

and abettor is called a cotortfeasor"].)3

       Courts have applied the concert of action/aiding and abetting principles in various

civil contexts, including "the 'drag race' and like cases, opinions in which courts held the

reciprocal ' "inciting and encouraging one another to drive at a fast and reckless rate of

speed" ' furnished the necessary 'proximate cause' to support joint and several liability of

both racers, including the defendant whose car did not strike the plaintiff." (Chavers v.

Gatke Corp., supra, 107 Cal.App.4th at p. 616.)




3       " ' "Liability may . . . be imposed on one who aids and abets the commission of an
intentional tort if the person (a) knows the other's conduct constitutes a breach of duty
and gives substantial assistance or encouragement to the other to so act or (b) gives
substantial assistance to the other in accomplishing a tortious result and the person's own
conduct, separately considered, constitutes a breach of duty to the third person." ' "
(Richard B. LeVine, Inc. v. Higashi (2005) 131 Cal.App.4th 566, 574, quoting Fiol v.
Doellstedt, supra, 50 Cal.App.4th at pp. 1325-1326.) Though closely related to
conspiracy (Richard B. LeVine, Inc., at p. 574; Janken v. GM Hughes Electronics (1996)
46 Cal.App.4th 55, 78), aiding and abetting is a distinct theory. (See Nasrawi v. Buck
Consultants LLC (2014) 231 Cal.App.4th 328, 345; Berg & Berg Enterprises, LLC v.
Sherwood Partners, Inc. (2005) 131 Cal.App.4th 802, 823, fn. 10 [describing differences
between conspiracy and aiding and abetting theories; aider and abettor's conduct need
not, as separately considered, constitute a breach of duty]; Saunders v. Superior Court,
supra, 27 Cal.App.4th at pp. 845-846.) "[W]hile aiding and abetting may not require a
defendant to agree to join the wrongful conduct, it necessarily requires a defendant to
reach a conscious decision to participate in tortious activity for the purpose of assisting
another in performing a wrongful act." (Howard v. Superior Court of Los Angeles
County (1992) 2 Cal.App.4th 745, 749.)
                                             13
       Agovino, supra, 181 Cal.App.2d 591 is one such case. There, a defendant's joint

liability was predicated on his participation in a drag race with a third party, Gary Miner,

even though the defendant's vehicle did not contact the car in which the plaintiff was a

passenger. (Id. at p. 593.) The appellate court reversed a nonsuit granted at the close of

the plaintiff's case, stating "it was for the jury to determine the manner of defendant's

driving and whether the same was done in concert with Gary Miner. The evidence, both

direct and circumstantial, is substantial and if believed by the jury is more than sufficient

to prove that, both immediately before and at the time of the collision, defendant was

racing his vehicle with the car involved in the collision in violation of [Vehicle Code]

section 601.5, [former Vehicle Code section 23109], thus establishing a prima facie case

of negligence as a matter of law. [That section] provides that '(N)o person shall engage

in any motor vehicle speed contest or exhibition of speed on a highway and no person

shall aid or abet in any such motor vehicle speed contest or exhibition on any highway.'

Factually, the record at this stage of the trial contains sufficient evidence to support a

finding that defendant was engaged in and aided and abetted in an unlawful speed contest

with Gary Miner, along Laurel Grove Avenue through the Erwin Street intersection, at

the time of the collision between the Parker and Miner cars. [Defendant] was familiar

with the neighborhood—he knew that the two streets intersected at a point surrounded by

the activity of residents who lived in the area, and adults and children who frequented the

nearby park; and that Laurel Grove Avenue along which he raced his car was intersected

by various residential cross streets, and had located thereon Victory-Van Owen Park in

which children played and picnicked." (Id. at pp. 596-597.) The appellate court also

                                              14
determined there was enough evidence of proximate cause to submit the case to the jury:

"[W]hether the two boys, in so many words agreed to race, or from their conduct a tacit

mutual understanding of such an agreement may be inferred, the collision with Gary

[Miner's] car nevertheless occurred during the time they were engaged in racing each

other. The fact the defendant's automobile did not actually come into contact with the

[plaintiff's] car is of little importance on the issue of proximate cause." (Id. at pp. 597-

598.) The court analogized the circumstances to a criminal manslaughter case stemming

from two codefendants racing separate cars in which one defendant killed the plaintiff

and the other moved on; there, the evidence was " 'sufficient to show that [the

defendants] were not acting independently of each other, and that they were jointly

engaged in a series of acts which led directly to the collision.' " (Id. at p. 597, quoting

People v. Kemp (1957) 150 Cal.App.2d 654, 659.)4




4       A concert of action case decided in the summary judgment context is Orser v.
George, a wrongful death action in which the trial court granted a summary judgment in
favor of multiple defendants. (Orser v. George, supra, 252 Cal.App.2d at pp. 665-666.)
Three defendants were alleged to have fired their guns at mudhens in the direction of the
decedent, two of whom alternately fired a pistol, the bullet from which killed the
decedent. (Id. at pp. 664-666.) The third defendant, James, could not have fired the fatal
bullet because he was shooting a rifle. (Id. at p. 668.) In part, the Orser court reversed
the summary judgment in favor of James, the rifle-shooting defendant, on a theory of
concerted action reasoning: "[A]though he did not fire the fatal bullet, there is evidence
(which may or may not be sufficient to prove him liable at the trial) creating a question
for the trier of fact. This evidence indicates he was firing alternately with [another
defendant, Vierra] at the same mudhen, in the same line of fire and possibly tortiously.
In other words . . . , the record permits a possibility James knew Vierra's conduct
constituted a breach of duty owed [plaintiff] and that James was giving Vierra substantial
'assistance or encouragement'; also that this was substantial assistance to Vierra in a
tortious result with James' own conduct, 'separately considered, constituting a breach of
                                              15
B. The Evidence Raises Triable Issues of Fact as to Joint Liability Stemming from

Coleman Engaging in, and Meyer Aiding and Abetting, an Exhibition of Speed

       We see little to distinguish the facts of this case from those in Agovino, supra, 181

Cal.App.2d 591. Construed most favorably to Navarette, the evidence shows that in

response to Meyer's urging, Coleman deliberately accelerated his vehicle to well over

Skyview Drive's 25-mile-per-hour speed limit for the specific purpose of rendering it

airborne such that the tires left the roadway and lost traction, causing the fatal collision.

Indeed, the fact Meyer was a passenger in Coleman's vehicle rather than driving a

separate car strengthens the inference that she encouraged and incited him, and that they

jointly engaged in a series of acts that led directly to the collision with Navarette's

vehicle. (Agovino, at p. 597.) Meyer was familiar with Skyview Drive and its unique

characteristics, and a reasonable fact finder could readily infer she knew other vehicles

could be parked or other people would be present on such a residential street. Meyer

attempts to distinguish Agovino on grounds "there was no race" in this case and her

"conduct as a passenger by itself would not and could not have caused injury to anyone."

But Meyer's encouragement to Coleman to speed from within Coleman's car is not

materially different from that of a separate driver encouraging and engaging in a race,

and her assertion that she could not cause injury because she was merely a passenger, is

the very argument rejected by Agovino and other concert of action cases.




duty to' [plaintiff]." (Id. at p. 668 [paraphrasing the Restatement of Torts § 876,
subdivisions (b) and (c)].)

                                              16
       Meyer additionally argues that the evidence does not show Coleman engaged in an

exhibition of speed; that "the only reasonable inference . . . is that he lost traction because

he wanted to become airborne over some dips in the road" and "[t]here is no evidence

that he intended to show off a fast car to his passengers or to anyone else at night in a

residential neighborhood." We disagree with Meyer's characterization of the statute and

view of the facts.

       An early case addressed what the Legislature meant by "exhibition of speed"

within the meaning of Vehicle Code section 23109: "Webster's New International

Dictionary, 2d Edition, defines . . . exhibition as [an] 'Act or instance of exhibiting for

inspection, or of holding forth to view; manifestation; display.' Thus it would appear that

[the] section . . . could be violated . . . by one person displaying the speed of his vehicle

on the highway to another person in the first person's car or in another car." (In re

Harvill (1959) 168 Cal.App.2d 490, 492-493, italics added.) In Harvill, the appellate

court held that a trier of fact could reasonably infer that a driver who was " 'revving up'

his engine and . . . speeding at a rate of 55-60 miles per hour was exhibiting or displaying

the speed of his car to the female occupants of [another car]." (Id. at p. 493.)

       In People v. Grier (1964) 226 Cal.App.2d 360, the appellate court addressed a

defendant's contention that the evidence was insufficient to show an exhibition of speed

within the meaning of the statute where a police officer testified that during a turn, the

defendant's vehicle tires " 'peeled, screeching, losing traction with the roadway.' " (Id. at

p. 362.) The Grier court affirmed, stating: "It is common knowledge that maximum

control of a vehicle upon the highway is maintained through the retention of traction

                                              17
between tires and pavement and that, during any process of skidding of the wheels of a

vehicle, there is a corresponding diminution of the driver's control over the vehicle.

Accordingly, safety measures are designed to reduce the skidding of vehicles, even

during the process of reducing speed through the application of brakes. [Citation.]

Where a person accelerates a vehicle in such manner as to deliberately cause it to skid, he

is not only diminishing his control but increasing the hazard to bystanders or other

vehicles from flying gravel. Whether the action is deliberate or not is for the trier of fact

under the circumstances of the particular case. Obviously, not all cases of tire 'peeling'

or 'screeching' would constitute violations of the statute. It is also common knowledge

that the deliberate screeching and screaming of tires on the pavement are tension

producers which increase nervousness in drivers and others, thereby increasing the

likelihood of accident." (Id. at p. 363, italics added.) The Grier court defined an

exhibition of speed broadly, holding that the observer of the exhibition did not need to be

known to the defendant or be coupled with the defendant's intent to impress the observer

with the speed obtained, and because the defendant's display took place in a "highly

developed and populated area," there was sufficient evidence to infer observation by

some person or persons. (Id. at p. 364.)

       The evidence here permits a reasonable jury to infer that Coleman accelerated the

vehicle at Meyer's request so Meyer (and possibly Calhoun) could observe and

experience the car "gain air," as she had experienced in past trips along that road. This

conduct manifestly comes within the ambit of an exhibition of speed under Harvill,

Grier, and Vehicle Code section 23109.

                                             18
       Nor do we agree with Meyer's contention that there is no evidence she aided and

abetted Coleman. Her claim is premised on the assertion that the law in California does

not permit liability for aiding and abetting "unintentional conduct"; that Navarette alleged

no intentional tort, only that Coleman acted negligently, and there is no evidence he

intended to harm anyone. She argues, "Even if Coleman inadvertently violated the law

against an 'exhibition of speed,' which he did not, [Meyer] could not be liable for aiding

and abetting such unintentional conduct." However, for purposes of joint liability under a

concert of action theory, it suffices that Meyer assist or encourage Coleman's breach of a

duty, which Vehicle Code section 23109 imposed upon him (and also upon her not to aid

and abet Coleman). (Agovino, supra, 181 Cal.App.2d 591; see also Orser v. George,

supra, 252 Cal.App.2d at p. 667; Stueve Bros. Farms, LLC v. Berger Kahn (2013) 222

Cal.App.4th 303 [civil liability for aiding and abetting commission of a tort has no

overlaid requirement of an independent duty, but focuses on whether a defendant

knowingly gave substantial assistance to someone who performed "wrongful conduct"],

Mayhugh v. County of Orange (1983) 141 Cal.App.3d 763, 768 [one may be held jointly

liable where his or her negligence in concurrence with the negligence of another has

caused a single injury]; Staples v. Hoefke (1987) 189 Cal.App.3d 1397, 1415 ["To

establish that a defendant is a joint tortfeasor, it must be shown the defendant proceeded

tortiously—with intent or negligence"].)

                                   IV. Civil Conspiracy

       Navarette further contends Meyer is jointly liable based on civil conspiracy, which

can arise from "[v]erbal encouragement and solicitation to commit a wrongful act"; that

                                            19
Meyer "formulated and communicated the plan for . . . Coleman to illegally race at high

speed on Skyview Drive to become airborne when he hit the dips in the roadway" and the

evidence demonstrates an agreement and plan between them to commit the wrongful act.

       Civil conspiracy is not an independent cause of action. (Applied Equipment Corp.

v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 510 (Applied Equipment); Kenne v.

Stennis (2014) 230 Cal.App.4th 953, 968.) Instead, it is a theory of co-equal legal

liability under which certain defendants may be held liable for "an independent civil

wrong" (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1062; see also Applied Equipment, at

p. 511; Doctors' Co. v. Superior Court (1989) 49 Cal.3d 39, 44) committed by others. A

participant in the conspiracy "effectively adopts as his or her own the torts of other

coconspirators within the ambit of the conspiracy." (See Applied Equipment, at p. 511.)

" ' "The elements of an action for civil conspiracy are the formation and operation of the

conspiracy and damage resulting to plaintiff from an act or acts done in furtherance of the

common design . . . . In such an action the major significance of the conspiracy lies in

the fact that it renders each participant in the wrongful act responsible as a joint tortfeasor

for all damages ensuing from the wrong, irrespective of whether or not he was a direct

actor and regardless of the degree of his activity." ' " (Id. at p. 511.) " 'The essence of

the claim is that it is merely a mechanism for imposing vicarious liability . . . . Each

member of the conspiracy becomes liable for all acts done by others pursuant to the

conspiracy, and for all damages caused thereby.' " (Stueve Bros. Farms, LLC v. Berger

Kahn, supra, 222 Cal.App.4th at p. 324.)



                                              20
       Under a conspiracy theory of recovery, liability depends on the actual commission

of a tort. (See Applied Equipment, supra, 7 Cal.4th at p. 511; Richard B. LeVine, Inc. v.

Higashi, supra, 131 Cal.App.4th at p. 574; Kidron v. Movie Acquisition Corp. (1995) 40

Cal.App.4th 1571, 1582 [" '[t]he basis of a civil conspiracy is the formation of a group of

two or more persons who have agreed to a common plan or design to commit a tortious

act' "].) Liability "presupposes that the coconspirator is legally capable of committing the

tort, i.e., that he or she owes a duty to plaintiff recognized by law and is potentially

subject to liability for breach of that duty." (Applied Equipment, at p. 511.) And for

conspiracy liability, the conspiring defendants must have actual knowledge that a tort is

planned and concur in the scheme with knowledge of its unlawful purpose. (Kidron, at

p. 1582.) Knowledge of the planned tort must be combined with intent to aid in its

commission. (Ibid.) "An agreement may be tacit as well as express. [Citation.] A

conspirator's concurrence in the scheme ' " ' "may be inferred from the nature of the acts

done, the relation of the parties, the interests of the alleged conspirators, and other

circumstances." ' " ' " (Arei II Cases (2013) 216 Cal.App.4th 1004, 1024.)

       We cannot say on Meyer's summary judgment showing that the evidence is

insufficient as a matter of law to support joint liability on a theory of civil conspiracy. As

we view it, the evidence raises a triable issue for a jury as to Meyer's co-equal liability on

such a theory. Critically, the law imposed on Meyer personally an independent duty not

to encourage or assist Coleman in engaging in an unlawful exhibition of speed. (Veh.

Code, § 23109.) And for purposes of civil conspiracy, the source of substantive liability

arises out of a preexisting legal duty and its breach, and it "makes no difference in the

                                              21
analysis whether the underlying duty is imposed by statute . . . or by the common law."

(Chavers v. Gatke Corp., supra, 107 Cal.App.4th at p. 614, citing in part Doctor's Co. v.

Superior Court, supra, 49 Cal.3d 39 [involving alleged conspiracy to violate Insurance

Code section 790.03].)

       Meyer advances several arguments as to why the facts cannot support her liability

based on a conspiracy. Though she correctly points out there is no independent cause of

action for conspiracy, Meyer asserts any such claim must have an underlying illegal act.

Meyer further argues that a conspiracy can be formed only by parties already under a

legal duty to the plaintiff, and that Navarette has not identified any duty that Meyer, as a

passenger, owed to third persons standing by the roadside. We have already concluded

Meyer had an independent duty under Vehicle Code section 23109, which a reasonable

jury can find was violated by Coleman's and Meyer's actions. That duty inures to

bystanders and other vehicles on the roadways. (See e.g., People v. Grier, supra, 226

Cal.App.2d at p. 363.) And the cases make clear the parties need only expressly or tacitly

agree to commit a tort or "civil wrong," which in this case is met by evidence raising a

fact issue whether Coleman and Meyer agreed that Coleman should engage in an

exhibition of speed. Meyer's encouragement to Coleman to exceed the speed limit on

Skyview Drive, a street with unique dangers, was clearly wrong. The sort of injury that

ensued from Coleman's unlawful conduct—the car losing traction or control and striking

another vehicle or person on the residential street—was foreseeable, and is the very sort

of harm the statute was designed to prevent. (Accord, Michael R. v. Jeffrey B. (1984) 158

Cal.App.3d 1059, 1070-1071 [analyzing whether duty of care to third parties was owed

                                             22
by individuals encouraging their friend to shoot a marble with a slingshot at another

minor; the complaint sounded in conspiracy and there was a triable issue of fact as to

whether the shooter's friends actively encouraged, solicited, or conspired to injure the

plaintiff in violation of Penal Code section 653, subdivision (f) as to constitute negligence

per se].)

       Meyer finally argues, relying on federal or out-of-state authorities, that because

Navarette only alleged Coleman was negligent and the evidence does not permit a finding

that either she or Coleman intended to harm anyone, there is no basis for liability; that

there cannot be a civil conspiracy to commit a negligent act. We acknowledge there is a

split within out-of-state authorities, most of which hold that parties cannot conspire to

commit a negligent or unintentional act and such a conspiracy is a legal impossibility.5

       But the law in California remains that a civil conspiracy requires an express or

tacit agreement only to commit a civil wrong or tort, which then renders all participants


5       See e.g., Koehler v. Pulvers (S.D.Cal. 1985) 606 F.Supp. 164, 173, fn. 10 ["The
act of conspiracy requires two or more persons agreeing to commit intentionally a
wrongful act. [Citation.] This court is unaware of California decisional law imposing
liability for conspiring to commit negligence"]; U.S. v. Sdoulam (8th Cir. 2005) 398 F.3d
981, 987; Wright v. Brooke Group Ltd. (N.D.Iowa 2000) 114 F.Supp.2d 797, 837
["because conspiracy requires an agreement to commit a wrong, there can hardly be a
conspiracy to be negligent—that is, to intend to act negligently"]; Sonnenreich v. Philip
Morris, Inc. (S.D.Fla. 1996) 929 F.Supp. 416, 419 ["Logic and case law dictate that a
conspiracy to commit negligence is a non sequitur"]; compare Wright v. Brooke Group
Ltd. (Iowa 2002) 652 N.W.2d 159, 173 [disagreeing that a civil conspiracy to be
negligent is a non sequitur: "So long as the underlying actionable conduct is of the type
that one can plan ahead to do, it should not matter that the legal system allows recovery
upon a mere showing of unreasonableness (negligence) rather than requiring an intent to
harm"]; Sackman v. Liggett Group, Inc. (E.D.N.Y. 1997) 965 F.Supp. 391, 395-396
[declining to summarily adjudicate cause of action based on alleged conspiracy to market
a defective product].
                                             23
"responsible . . . for all damages ensuing from the wrong . . . ." (Applied Equipment,

supra, 7 Cal.4th at p. 511; see Wyatt v. Union Mortgage Co. (1979) 24 Cal.3d 773, 784-

785 ["As long as two or more persons agree to perform a wrongful act, the law places

civil liability for the resulting damages on all of them, regardless of whether they actually

commit the tort themselves;" "[t]acit consent as well as express approval will suffice to

hold a person liable as a coconspirator"].) Meyer does not cite, nor have we found,

authority requiring the participants to a conspiracy to possess the specific intent to harm a

particular person or commit a specific injury. The authorities cited by Meyer, while they

involve intentional torts, do not expressly limit conspiracy liability to instances where

participants direct their tortious or unlawful acts at a particular person. As we have

summarized above, the evidence need only raise an issue as to the participants'

knowledge of the agreement's unlawful purpose, which here was to drive so fast in excess

of the speed limit as to render the car airborne on Skyview Drive. Viewing the facts most

favorably to Navarette, a jury could reasonably conclude that Meyer and Coleman

expressly or tacitly agreed that Coleman would engage in an unlawful exhibition of

speed, and knew that was the specific unlawful purpose of their agreement. This conduct

is sufficiently intentional to support a cause of action for conspiracy.

        V. Claim for Violation of Vehicle Code Section 21701/Negligence Per Se

       Navarette contends she presented evidence raising a triable issue of material fact

as to whether Meyer unreasonably interfered with the safe operation of a vehicle by her

words and actions within the meaning of Vehicle Code section 21701. Analogizing the

circumstances to Turner v. Mannon (1965) 236 Cal.App.2d 134 in which a passenger's

                                             24
exclamation to the driver, "This is a curve . . . turn" resulted in an accident,6 Navarette

points out Meyer may claim her exhortation to Coleman to "go faster" was not a "strident

exclamation," but it is for the jury to evaluate how Meyer communicated her desire for

the vehicle to speed up and become airborne; that "[t]he inflections from the verbal

instructions and inferences therefrom are issues for the jury to weigh."

       Meyer responds that the cases on which Navarette relies make a distinction

between "merely offering directions" and actual interference with a vehicle's operation.

She argues there is no evidence she shouted at Coleman or startled him, but even if she

had, Coleman did not lose control of his car because of that act. According to Meyer,

"[Coleman] chose to go faster, and that conduct, not [her] supposed shouting, led to the

accident." She maintains that the theory of willful interference proposed by Navarette is

not supported by the statutory language and would lead to absurd results.


6       In Turner v. Mannon, supra, 236 Cal.App.2d 134, a passenger in a vehicle
(Turner) sued the driver (Mannon) and the driver's mother on theories of "willful
misconduct" and negligence after she was injured in a single car accident. (Id. at p. 136.)
Turner and Mannon, both minors at the time of the accident, were driving on a curvy road
when Turner "suddenly and emphatically" stated, "This is a curve, Nancy, turn," causing
Mannon to overcompensate and slide out of control and hit a telephone pole. (Id. at pp.
137-138.) Mannon testified that "she did not observe any such sharp curve as [Turner's]
shouting led her to believe existed at that point." (Id. at p. 138.) On appeal from a
defense verdict, Turner challenged the court's instructions on contributory negligence on
grounds there was no credible evidence to support an inference of negligence on her part.
(Id. at pp. 140-141.) The appellate court rejected the contentions, pointing out that the
accident may have been due in part to Turner's contributory negligence; that the record
"indicates that the sharp and sudden movement to the left on the part of the defendant
driver was due to the strident exclamation of plaintiff concerning the curve. It is obvious
that a plaintiff may be guilty of contributory negligence by reason of an unexpected, or
stressed, exclamation or statement made by her to a defendant, causing alarm and
exaggerated or sudden movement, which leads to an accident." (Id. at p. 141.)

                                             25
A. Legal Principles

       Vehicle Code section 21701 provides in part: "No person shall wilfully interfere

with the driver of a vehicle or with the mechanism thereof in such manner as to affect the

driver's control of the vehicle." In Reclusado v. Mangum (1964) 228 Cal.App.2d 8, the

court explained that the "purpose of [Vehicle Code section 21701] was to prevent anyone

from doing intentionally anything that would unreasonably interfere with the driver in the

operation of the vehicle 'in such manner as to affect the driver's control' irrespective of

whether such person actually intended to affect the operation or not . . . ." (Id. at p. 15.)

       Reclusado involved the grant of a defense new trial motion on grounds of errors at

law in jury instructions. (Reclusado v. Mangum, supra, 228 Cal.App.2d at p. 10.) There,

the defendant, a back-seat passenger in a vehicle driven by her 15-year-old son who had

received his instruction permit days earlier, put her 18-month-old child into the front seat

next to her son after which the car went off the road, struck a cement culvert, killed one

person and injured the vehicle's occupants. (Id. at p. 12.) The plaintiff sued the driver's

mother for negligence in part on the theory that she willfully interfered with the driver so

as to affect his control of the car. (Id. at pp. 10, 11.) As relevant here, the trial court

instructed the jury on the language of Vehicle Code section 21701 and told them if a

party violated that statute, a presumption of negligence arose that could be overcome by

other evidence showing that under all the circumstances surrounding the event, the

conduct in question was excusable or justifiable. (Id. at p. 14.)

       On appeal, the respondent took the position that the statute required "as a

prerequisite to liability there must be a physical interference with the driver's operation,

                                               26
with specific intent to affect the operation itself." (Reclusado v. Magum, supra, 228

Cal.App.2d at p. 15.) The appellate court rejected that position, stating that the

Legislature's intention seemed "broader in scope . . . ." It reasoned: "Many acts which

the code section is designed to prevent are not accompanied by an actual wish to interfere

directly with the operation of the car, such as turning off the ignition switch, pushing the

driver out of the way, or blinding his view of the road by holding some object in front of

his eyes. Of course, these acts would be breaches of the code section. But there are even

more frequent acts constituting interference with the driver which are reprehensible, and

the evidence on behalf of the plaintiff in the present action seems to present one of them.

When the occupant of a back seat wilfully thrusts a baby forward into the front seat in

such a way as to cause a lapse of the driver's control so that an accident will be caused

and serious injuries inflicted, it is a dangerous and improper act which the code section in

question forbids. The jury had a right to judge from all of the evidence in the case

whether Mrs. Mangum wilfully and negligently interfered with the driver of the vehicle."

(Id. at pp. 15-16.) On these facts, the Reclusado court held the trial court erred by

granting a new trial on defendants' behalf. (Id. at p. 16.)

       Here, in the context of a summary judgment, we must decide whether Meyer has

demonstrated as a matter of law that her conduct falls outside what the Legislature

intended to proscribe when it stated a person shall not willfully "interfere with" a driver

"in such manner as to affect the driver's control of the vehicle." In determining the

meaning and scope of a statute, we begin with the statute's plain language and afford its

words their ordinary and commonsense meaning, so as to ascertain the Legislature's

                                             27
intent. (Tract 19051 Homeowners Ass'n v. Kemp (2015) 60 Cal.4th 1135, 1143;

Riverside County Sheriff's Dept. v. Stiglitz (2014) 60 Cal.4th 624, 630.) The statute does

not define the term "interfere." The common meaning of the word "interfere" is broad:

the dictionary definition is "to interpose in a way that hinders or impedes: come into

collision or be in opposition" or "to enter into or take part in the concerns of others."

(Merriam-Webster's Collegiate Dict. (11th ed. 2006) p. 652.) Applying the ordinary

meaning of these words compels us to agree with Reclusado that direct physical

interference is not strictly required to violate the statute: a person can interfere with a

driver so as to affect the driver's control of the vehicle within the meaning of Vehicle

Code section 21701 without necessarily physically touching the driver, physically

hindering the driver's ability to see or drive, tampering with the vehicle, or otherwise

directly affecting the vehicle's machinery.

       We accordingly take a broad view of what actions will constitute willful

interference so as to affect a driver's control of a vehicle for purposes of liability under

Vehicle Code section 21701. For purposes of Navarette's summary judgment motion, the

evidence is undisputed that Meyer had special knowledge that a car speeding on Skyview

Drive could become airborne due to the unique road conditions; she had been a passenger

in a vehicle speeding on the road before in which the car became airborne and she

thought it would be "fun" to recreate that scenario. To that end, she encouraged Coleman

to take that road and to speed on it, then told him to drive faster to increase the chance

that the car's tires would leave the roadway. Under the statute, Meyer did not have to

have specific intent to affect Coleman's control, she merely had to take some intentional

                                              28
action that in some way would affect Coleman's control. (Reclusado v. Magum, supra,

228 Cal.App.2d at pp. 15-16.) Because a driver's control is necessarily affected when the

vehicle's tires leave the roadway (see In re F.E. (1977) 67 Cal.App.3d 222, 225; People v.

Grier, supra, 226 Cal.App.2d at p. 363), we cannot say as a matter of law that Meyer's

conduct falls outside the sort of interference that the Legislature sought to prevent in

Vehicle Code section 21701.

         We are unpersuaded by Meyer's summary judgment arguments, repeated in part in

her respondent's brief, that unless limited in the manner she proposes, liability under

Vehicle Code section 21701 could unreasonably extend to a person who merely talks on

the phone with a driver and tells them to hurry or drive faster. The facts presented in this

case on summary judgment demonstrate much more than Meyer merely offering

directions to Coleman. Meyer's hypothetical scenarios omit a critical fact present in this

case: that when Meyer urged Coleman to drive faster, she did so with special knowledge

of the likelihood that his speeding vehicle would leave the roadway. Indeed, a reasonable

trier of fact could conclude from the evidence favorable to Navarette that Meyer

specifically intended that result. Under these narrow circumstances, summary judgment

was not warranted on Navarette's cause of action for violation of Vehicle Code section

21701.




                                             29
                                    DISPOSITION

      The judgment is reversed. Plaintiffs are awarded costs on appeal.



                                                                          O'ROURKE, J.

WE CONCUR:


McINTYRE, Acting P. J.


IRION, J.




                                          30
