Tognazzini v. San Luis Coastal Unified Sch. Dist.

Opinion

PERREN, J. By statute, the state has mandated that all noncertificated school district employees be fingerprinted. (Ed. Code, § 45125.) In conformity with the mandate, the school district tells its employee to comply. But it is the employee who decides when and where to be printed. She elects to do so on a day off. Immediately after being printed, she collides with a motorcycle. We conclude that substantial evidence supports the jury’s finding that she was not acting within the scope of her employment.

[1056]Ryon Alan Tognazzini appeals from the judgment after jury trial in favor of respondent, San Luis Coastal Unified School District (District). District hired Thuy Than Ho as a classroom tutor. Shortly thereafter, Ho’s supervisor told her that she must be fingerprinted as required by state law. Ho was fingerprinted on a day she was not scheduled to work. As she drove home, Ho collided with Tognazzini, injuring him. Tognazzini sued District on the theory that it is vicariously liable for Ho’s conduct.

The jury returned a special verdict finding that Ho was not acting within the scope of her employment at the time of the accident. Accordingly, the court entered judgment in favor of District. The court denied Tognazzini’s motion for judgment notwithstanding the verdict (JNOV). Because Ho was fulfilling a state mandate on her own time without specific direction from District, we affirm.

Facts

District hired Ho to work Tuesdays and Thursdays as an hourly classroom tutor. Her supervisor, Colleen Spafford, informed Ho that under new state legislation, she must be fingerprinted to continue working with students in the classroom. (Ed. Code, §§ 45125, 45125.1.) Spafford did not tell Ho when or where to do this. Spafford simply gave Ho a telephone number to make arrangements for fingerprinting. Spafford hoped that Ho would fulfill this state mandate, but she never checked to see whether Ho complied.

Eight days after Ho began working, she drove her car from the Cal Poly campus, where she was enrolled as a student, to San Luis High School to be fingerprinted. Ho intended to go directly home afterwards. She had no plans to work or speak with Spafford that day. As Ho drove away after being fingerprinted, she struck Tognazzini’s motorcycle, injuring him.

Tognazzini sued District on the theory of respondeat superior. By special verdicts, the jury found that Ho was not acting within the scope of her employment at the time of the accident. The court entered judgment in favor of District and denied Tognazzini’s motion for JNOV. Tognazzini appeals.