Filed 9/21/26 Mount v. California Highway Patrol CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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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
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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
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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.
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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.
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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.
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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
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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.)
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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
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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
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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”].)
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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
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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.
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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.”
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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.
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