Modification: Musgrove v. Silver

RONALD MUSGROVE et al.,

Plaintiffs and Appellants,

v.

JOEL SILVER,

Defendant and Respondent.

No. B311504

(Los Angeles County

Super. Ct. No. BC673010)

California Court of Appeal

Second Appellate District

Division Two

Filed September 13, 2022

ORDER MODIFYING

OPINION AND DENYING

REHEARING

NO CHANGE IN THE

JUDGMENT

THE COURT:

It is ordered that the opinion filed herein on August 25, 2022, be

modified as follows:

1. At the end of the first (partial) sentence on page 8, which ends with "from our consideration," insert footnote 3 as follows:

3 In a petition for rehearing, plaintiffs contend that we impermissibly failed to address their evidentiary objections. We did no such thing. We assumed them to have merit, and proceeded to analyze the summary judgment on that assumption. As a result, analyzing the merits of the objections serves no purpose. Plaintiffs assert that we "necessarily relied" on the evidence we assumed to be invalidly admitted, contrary to our assumption. They are wrong.

2. After the next sentence on page 8, which is the first whole sentence on that page, insert footnote 4 as follows (and renumber subsequent footnotes accordingly):

4 In a petition for rehearing, plaintiffs also contend that we synthesized the relevant law differently than they and the trial court did. Because, as noted in the text, our review of a summary judgment motion is de novo, our task is to analyze the trial court's ruling---not its reasoning. We are not bound by the parties' synthesis of the law and are free to conduct our legal research and synthesize the law without running it by the parties first.

3. In the first sentence beneath the heading "c. Benefit- and custom-focused test," which begins on page 15 and continues onto page 16, omit the phrase "allegedly tortious" (on page 16) so that the sentence reads:

This test focuses on whether the employee's conduct "either" (1) "provided [some conceivable] benefit to the employer" or (2) has otherwise become a '"customary incident of the employment relationship."'

4. On page 16, in the sentence immediately preceding the heading "d. Public policy-focused test," omit the phrase "allegedly tortious," so that the sentence reads:

Although a benefit need only be "conceivable," the benefit must nevertheless be '"sufficient enough to justify making the employer responsible"' for the employee's conduct.

5. In the first sentence beneath the heading
"3. Benefit- and custom-focused test," which begins on page 23 and continues onto page 24, omit the word "tortious" (on page 23), so that the sentence reads:

Silver is also not vicariously liable, as a matter of law, under the test that examines whether the employee's conduct (1) conceivably benefited the employer or (2) was a customary incident of the employment relationship.

6. In the second-to-last sentence on page 24, omit the word "tortious," so that the sentence reads:

Plaintiffs' argument ignores that what matters for this analysis is whether the employee's conduct benefits the employer or is a customary part of the employment relationship.

7. In the last sentence on page 24, omit the word "tortious," so that the sentence reads:

According to the allegations of plaintiffs' operative complaint, Herold's conduct was plying Musgrove with alcohol and cocaine and allowing her to swim.

* * *

There is no change in the judgment.

Appellant's petition for rehearing is denied.

LUI, P. J.

ASHMANN-GERST, J.

HOFFSTADT, J.