Filed 9/17/13; pub. order 10/15/13 (see end of opn.)




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                  FOURTH APPELLATE DISTRICT

                                             DIVISION THREE


STATE OF CALIFORNIA ex rel.
DEPARTMENT OF CALIFORNIA
HIGHWAY PATROL,

    Petitioner,                                         G047922

         v.                                             (Super. Ct. No. 30-2008-00116111)

THE SUPERIOR COURT OF ORANGE                            OPINION
COUNTY,

    Respondent;

MAYRA ANTONIA ALVARADO et al.,

    Real Parties in Interest.



                  Original proceedings; petition for a writ of mandate to challenge an order of
the Superior Court of Orange County, Robert J. Moss, Judge. Petition granted.
                  Kamala D. Harris, Attorney General, Kathleen A. Kenealy, Chief Assistant
Attorney General, Alberto L. Gonzalez and Joel A. Davis, Deputy Attorneys General for
Petitioner.
                  No Appearance for Respondent.
                 Allred, Maroko & Goldberg, Michael Maroko and John S. West for Real
Parties in Interest.
                                           INTRODUCTION
                 The California Highway Patrol (CHP) has petitioned for a writ of mandate
to compel the trial court to grant a summary judgment motion made in a personal injury
lawsuit involving the CHP‟s Freeway Service Patrol (FSP) program. Tow truck
companies in this program contract with county transportation authorities to patrol urban
freeways, helping out stranded motorists. The transportation authorities in turn contract
with the CHP, which certifies and supervises both the drivers and the truck companies.
                 One of the FSP tow trucks collided with a car, injuring the driver and her
infant son. The CHP moved for summary judgment in the subsequent lawsuit, on the
ground that it was not the driver‟s special employer and therefore not responsible for his
negligence. The trial court denied the motion, and the CHP has petitioned for a writ of
mandate to reverse the trial court. The writ petition is based solely on the legislative
intent behind the FSP program.
                 We grant the petition. Our examination of the relevant statutes in the
Streets and Highways Code and the Vehicle Code persuades us that the Legislature
intended to distinguish between the people and companies employing tow truck drivers in
the FSP program (“employers”) on the one hand and the CHP on the other. There was,
therefore, no legislative intent to make the CHP liable as a special employer of FSP tow
truck drivers for the drivers‟ negligence.
                                                  FACTS
                 A tow truck driven by one J. Guzman1 on the I-5 freeway rear-ended a car
driven by real party Mayra Alvarado. Guzman was employed by California Coach

        1         There is some confusion about the driver‟s first name. The caption of the second amended
complaint identifies him as Joshua Guzman. His name in the body of the complaint is given as Juan Guzman. The
CHP officer whose declaration was used to support the CHP‟s motion for summary judgment called him Jose
Guzman. The driver‟s deposition transcript identifies him as Joshua Guzman.


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Orange, Inc., which had a contract with the Orange County Transportation Authority
(OCTA) to participate in the FSP program.2 OCTA in turn contracted with the CHP to
provide funding for the CHP‟s involvement in the program in Orange County. The CHP
supervised the FSP – performing background checks, training the drivers, inspecting the
vehicles, dispatching drivers, and investigating complaints – pursuant to its statutory duty
to “make adequate provision for patrol of the highways at all times of the day and night”
(Veh. Code, § 2401) and to rapidly remove all “impediments to traffic on highways
within the state.” (Id., § 2435, subd. (a).) 3
                 Alvarado sustained catastrophic brain injuries in the accident. She is
permanently disabled. Her infant son was also injured, although less seriously than his
mother. Alvarado and her son sued the driver, the tow truck company, OCTA, and the
CHP for damages.
                 By the time of the second amended complaint, the sole remaining issue
with respect to the CHP was whether it was Guzman‟s special employer and therefore
liable for his negligence. The CHP moved for summary judgment on this issue, arguing
that it did not meet the definition of special employer and that legislative intent prevented
FSP drivers from being considered special employees of the CHP.
                 The trial court denied the motion for summary judgment and certified the
following controlling question of law for interlocutory review under Code of Civil
Procedure section 166.1: “[W]hether, in light of the statutory nature of the [FSP]
program, the CHP can be a „special employer‟ of a tow truck driver whose general
employer is a towing contractor engaged to provide services in the FSP program as a


          2        See Streets and Highways Code sections 2560 et seq.
          3        FSP drivers patrol a “beat,” which consists of a designated stretch of freeway. They may be sent
to the scene of a problem by a CHP dispatcher, but they are also authorized to stop and help stranded motorists
without being dispatched. Each tow truck is required to display two FSP logos. “The FSP logo signifies the three
different governmental agencies responsible for the FSP Program, Caltrans, OCTA, and CHP. . . . The magnets
serve to identify the truck as working for the FSP Program and put motorists in disabled vehicles at ease when they
see the truck.”


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result of the CHP‟s right to control the activities of FSP tow truck drivers in the
performance of FSP duties.”4 The CHP then filed a petition for a writ of mandate to
order the trial court to grant its motion for summary judgment.
                                                 DISCUSSION
                  “The possibility of dual employment is well recognized in the case law.
„Where an employer sends an employee to do work for another person, and both have the
right to exercise certain powers of control over the employee, that employee may be held
to have two employers – his original or “general” employer and a second, the “special”
employer.‟ [Citation.] . . . [T]his court [has] stated that „an employee may at the same
time be under a general and a special employer, and where, either by the terms of a
contract or during the course of its performance, the employee of an independent
contractor comes under the control and direction of the other party to the contract, a dual
employment relation is held to exist. [Citations.]‟” (Kowalski v. Shell Oil Co. (1979) 23
Cal.3d 168, 174-175.)
                  We are not called upon to determine whether Guzman was a special
employee of the CHP at the time of the Alvarado accident. 5 The issue before us is one of
legislative intent in general regarding the employment relationship, if any, between the
CHP and FSP tow truck drivers.
                  We review the interpretation of a statute de novo. “When interpreting
statutes, the Legislature‟s intent should be determined and given effect. Legislative intent
is generally determined from the plain or ordinary meaning of the statutory language.


         4         Code of Civil Procedure section 166.1 provides: “Upon the written request of any party or his or
her counsel, or at the judge‟s discretion, a judge may indicate in any interlocutory order a belief that there is a
controlling question of law as to which there are substantial grounds for difference of opinion, appellate resolution
of which may materially advance the conclusion of the litigation. Neither the denial of a request for, nor the
objection of another party or counsel to, such a commentary in the interlocutory order, may be grounds for a writ or
appeal.”
         5         This case is in the Court of Appeal because of a certification under Code of Civil Procedure
section 166.1. Whether Guzman is a special employee of the CHP is not a “controlling question of law” and thus
not subject to interlocutory review.


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The statute‟s every word and provision should be given effect so that no part is useless,
deprived of meaning or contradictory. Interpretation of the statute should be consistent
with the purpose of the statute and statutory framework. [Citations.] . . . [¶] Where the
meaning of statutory language is uncertain, rules of construction or legislative history
may aid in determining legislative intent. [Citations.] Even if the statutory language is
clear, a court is not prohibited from considering legislative history in determining
whether the literal meaning is consistent with the purpose of the statute. [Citations.] In
enacting a statute, the Legislature is deemed to have been aware of existing statutes and
judicial interpretations. [Citation.]” (Fireman’s Fund Ins. Co. v. Workers’ Comp.
Appeals Bd. (2010) 189 Cal.App.4th 101, 109-110.)
                 The legislative mandate for the statewide FSP program can be found in
Streets and Highways Code sections 2560 et seq. The chapter is quite short; it mainly
focuses on funding for the program and on allocating these funds. It also includes
sections on logos for participating tow trucks and on training and certifications for drivers
and operators. (Id. §§ 2562.5, 2563.) A final section addresses developing and updating
operational guidelines. (Id. § 2565.)
                 Legislation concerning the FSP program is, however, not restricted to the
Streets and Highways Code. Portions of the Vehicle Code also deal with FSP tow truck
drivers (Veh. Code, §§ 2430 et seq.) and with emergency roadside assistance, including
the FSP program. (Veh. Code, §§ 2435 et seq.) Each of these Vehicle Code articles, as
well as the Freeway Service Patrol Act, uses the same definition of “employer.” (Veh.
Code, §§ 2430.1, subd. (b), 2436, subd. (d); Sts. & Hy. Code, § 2561, subd. (b).)6


          6         “[A] person or organization that employs those persons defined in subdivision (a), or who is an
owner-operator who performs the activity specified in subdivision (a), and who is involved in freeway service patrol
operations pursuant to an agreement or contract with a regional or local entity.” (Veh. Code, § 2430.1, subd. (b).)
                   Vehicle Code section 2430.1, subdivision (a), provides in pertinent part: “„Tow truck driver‟
means a person who operates a tow truck, who renders towing service or emergency road service to motorists while
involved in freeway service patrol operations, pursuant to an agreement with a regional or local entity, and who has
or will have direct and personal contact with the individuals being transported or assisted.”


                                                         5
                  The definition of “employer” itself does not, as the CHP argues, show that
the Legislature did not intend the CHP to be the special employer of the FSP tow truck
drivers. The definition is essentially circular. An “employer” is, among other things, an
organization that employs FSP tow truck drivers. If the CHP, an organization, meets the
criteria of a special employer, most notably control, then it is an “employer” of FSP tow
truck drivers.7
                  In other pertinent portions of the Vehicle Code, however, the statutes draw
a clear distinction between the CHP on the one hand and an “employer” on the other. For
example, the CHP may enter into contracts with “employers” for freeway service patrol
operations (Veh. Code, § 2435, subd. (a)), and the CHP, in conjunction with CalTrans, is
responsible for establishing minimum training standards for “employers.” The CHP must
provide training for all “employers,” and the “employers” are required to attend training
sessions. (Veh. Code, §§ 2436.5, 2436.7.) The tow truck drivers are required to inform
both their “employers” and the CHP if they are arrested for or convicted of certain
crimes. (Id., § 2430.3, subd. (a).)8 The CHP must obtain employers‟ fingerprints and
verify that the employers have valid California driver‟s licenses. ( Id., § 2431, subd.
(a)(1) & (3).) The employer must maintain lists of eligible and non-eligible drivers at its
place of business for inspection by the CHP. (Id., § 2430.5, subd. (c).) Vehicle Code
section 2432.1 provides for penalties for employers that fail to comply with the
requirements of the law on tow truck drivers or the emergency roadside assistance
statutes; they may lose their right to participate in the freeway service patrol operation.
                  We believe these Vehicle Code statutes, to which the Freeway Service
Patrol Act explicitly refers (see Sts. & Hy. Code, §§ 2561, 2563), establish a legislative


         7         The CHP also argues that tow truck drivers are independent contractors, rather than special
employees. Guzman, the driver of the truck involved in the accident in this case, was indisputably not an
independent contractor. At the very least, he was an employee of California Coach Orange, Inc.
         8         This statute was amended in 2001 to require the tow truck drivers to notify the CHP, in addition to
their employers, if they were arrested or convicted.


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intent to distinguish between employers of tow truck drivers and the CHP.9 Accordingly,
the CHP cannot as a matter of law be the special employer of a “tow truck driver” as
defined in Vehicle Code section 2430.1, subdivision (a), and by extension of a tow truck
driver operating under the Freeway Service Patrol Act.
                                               DISPOSITION
                 The State‟s petition is granted. Let a peremptory writ of mandate issue
directing respondent the Superior Court of Orange County to vacate its order of January
4, 2013, and to enter an order granting the motion for summary judgment in favor of the
California Highway Patrol. The temporary stay is lifted upon finality of this opinion as to
this court. Each party is to bear its or her own costs on appeal.




                                                              BEDSWORTH, J.

WE CONCUR:



RYLAARSDAM, ACTING P. J.


THOMPSON, J.




          9         We do not hold, as advocated by the CHP, that the statutory nature of the FSP program in and of
itself precludes a special employer/special employee relationship. Other government agencies have been found to
be special employers, notwithstanding the statutory origins of their existence. (See, e.g., Societa Per Azioni De
Navigazione Italia v. City of Los Angeles (1982) 31 Cal.3d 446, 459-462 [collision in Los Angeles Harbor]; County
of Los Angeles v. Workers’ Comp. Appeals Bd. (1981) 30 Cal.3d 391, 405-406 [workers‟ compensation for injured
employee]; Bradley v. Department of Corrections & Rehabilitation (2008) 158 Cal.App.4th 1612, 1627, 1628
[FEHA claim by Department contract employee]; Wilson v. County of San Diego (2001) 91 Cal.App.4th 974, 983-
984 [county child welfare workers]; Brassinga v. City of Mountain View (1998) 66 Cal.App.4th 195, 215-217
[police officer killed while participating in training exercise]; In-Home Supportive Services v. Workers’ Comp.
Appeals Bd. (1984) 152 Cal.App.3d 720, 732 [injured home services worker employee of both state and of home
services recipient].)


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Filed 10/15/13




                             CERTIFIED FOR PUBLICATION
             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FOURTH APPELLATE DISTRICT

                                      DIVISION THREE


STATE OF CALIFORNIA ex rel.
DEPARTMENT OF CALIFORNIA
HIGHWAY PATROL,

    Petitioner,                                       G047922

        v.                                            (Super. Ct. No. 30-2008-00116111)

THE SUPERIOR COURT OF ORANGE                          ORDER GRANTING REQUEST
COUNTY,                                               FOR PUBLICATION

    Respondent;

MAYRA ANTONIA ALVARADO et al.,

    Real Parties in Interest.



                 Petitioner has requested that our opinion, filed on September 17, 2013, be
certified for publication. Pursuant to California Rules of Court, rule 8.1105(c)(6), the
request is GRANTED.
          The opinion is ordered published in the Official Reports.




                                            BEDSWORTH, J.

WE CONCUR:



RYLAARSDAM, ACTING P. J.



THOMPSON, J.




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