Cerda v. Target Corp. CA4/3

Filed 9/14/16 Cerda v. Target Corp. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

JORDAN P. CERDA, a minor, etc. et al.,

Plaintiffs and Appellants, G051377

v. (Super. Ct. No. 30-2013-00625762)

TARGET CORPORATION, OPINION

Defendant and Respondent.

Appeal from a judgment of the Superior Court of Orange County, Linda Marks, Judge. Affirmed. Law Offices of John F. Gerard and John F. Gerard for Plaintiffs and Appellants. Trachtman & Trachtman, Benjamin R. Trachtman, and Ryan M. Craig for Defendant and Respondent. * * *

This appeal arises from a wrongful death suit based on a tragic car accident. An intoxicated driver drove on the wrong side of State Route 91 for several miles before eventually striking another vehicle and killing two people. Family members of the decedents filed suit against the driver, the owner of the vehicle, and Target Corporation (Target), where the driver worked, and where the driver allegedly became intoxicated. This appeal concerns only Target. The court granted summary judgment in favor of Target, finding it was not liable in respondeat superior. Plaintiffs appealed, contending it is foreseeable that workers would secretly drink on the job, and thus a jury could conclude the driver’s intoxication was incidental to his employment at Target. We disagree and affirm the judgment in favor of Target.

FACTS

Target is a retail provider of merchandise in brick-and-mortar stores and on the Internet. Anthony Louis Fragoso, the intoxicated driver in the fatal accident, worked at a Target Store in Long Beach as a salesman in the electronics department. Upon being hired, Fragoso was required to read and sign Target’s policy prohibiting the possession and use of alcohol on the job or on paid breaks. Fragoso had a negative result for his pre- employment drug test. Target never furnished, supplied, or allowed employees to bring any alcohol to any Target-sponsored event, like a birthday party or holiday celebration. Target never supplied any alcohol to Fragoso. No complaints were ever received by Target management concerning Fragoso consuming alcohol or being under the influence. Fragoso’s duties at Target did not include driving or the need to use a vehicle for work purposes. On January 18, 2011, Fragoso began a shift at the Long Beach Target Store at 3:00 p.m. Another Target employee, Hugo Orozco, also started a shift that day at about the same time. Orozco met Fragoso for the first time that day and the two took