Filed 7/22/15 Unmodified version attached
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
MIRIUM NAVARRETE et al., D067454
Plaintiffs and Appellants,
v. (Super. Ct. No. RIC1100243)
HAYLEY MEYER, ORDER MODIFYING OPINION
Defendant and Respondent. [NO CHANGE IN JUDGMENT]
THE COURT:
It is ordered that the opinion filed herein on June 22, 2015, be modified as follows:
On page 8, second paragraph, line 8, the sentence beginning with "Meyer's
complaint need only . . . " should be changed to "Navarette's complaint need only . . . ."
The full sentence should now read as follows:
Navarette's complaint need only meet fact-pleading requirements; it
must contain " '[a] statement of the facts constituting the cause of
action, in ordinary and concise language' " and should "allege
ultimate facts that 'as a whole apprise[] the adversary of the factual
basis of the claim.' "
There is no change in judgment.
McINTYRE, Acting P. J.
Copies to: All parties
Filed 6/22/15 Unmodified version
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
MIRIAM NAVARRETE et al., D067454
Plaintiffs and Appellants,
v. (Super. Ct. No. RIC1100243)
HAYLEY MEYER,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Riverside County, Matthew
Perantoni, Judge. Reversed.
Shernoff Bidart Echeverria Bentley and Gregory L. Bentley, Steven M. Schuetze,
Law Office of Luis A. Carrillo and Luis A. Carrillo, Rogriguez & Associates and Daniel
Rodriguez, for Plaintiffs and Appellants.
LaFollette Johnson DeHaas Fesler & Ames and Donald C. Fesler, Law Offices of
David J. Weiss and David J. Weiss, Greines, Martin, Stein & Richland and Marc J. Poster
for Defendant and Respondent.
Plaintiffs and appellants Miriam Navarrete and her minor children Bryan,
Stephanie, and Steven Navarette (collectively Navarrete) appeal from a summary
judgment in favor of defendant and respondent Hayley Meyer on plaintiffs' claims for
violation of Vehicle Code section 21701 and civil conspiracy arising from allegations that
Meyer, a passenger in a vehicle, told the driver to drive at an unsafe speed over a road
Meyer knew had unusual conditions that would cause the car to become airborne,
resulting in a fatal accident. In granting summary judgment, the trial court ruled there
was no evidence to suggest Meyer's act of telling the driver to drive faster affected his
control over the vehicle, and therefore no triable issues of material fact as to either cause
of action. Navarrete contends the evidence raises triable issues for a jury as to whether to
impose joint liability on Meyer for her conduct on the night in question on a theory of
concert of action or conspiracy, and also as to whether she unreasonably interfered with
the safe operation of a vehicle within the meaning of Vehicle Code section 21701 to
support a cause of action. We agree and reverse.
FACTUAL AND PROCEDURAL BACKGROUND
On November 26, 2009, Meyer was the front passenger in a vehicle driven by her
friend Brandon Coleman. Another person, Levi Calhoun, was in the back seat. While
driving to a nearby drugstore, Meyer told Coleman to turn onto Skyview Drive as a
shortcut. Skyview Drive is a residential street with a 25 mile-per-hour speed limit.
Meyer had been on Skyview Drive many times before that day, and she knew it had dips
that would cause a car traveling at a high rate of speed to become airborne. While
Coleman was making the turn onto Skyview Drive, Meyer told him about the dips, that it
was fun to drive fast on them, and that he should do it. Shortly after Coleman turned onto
the street, Meyer told Coleman to "go faster." Coleman asked Calhoun if he should
2
speed up, and Calhoun responded, "You probably shouldn't because you may mess up the
car." Coleman sped up. He accelerated to such a degree that he caught air from the dips
and lost control of the car, which veered sharply to the right and collided into Navarette's
parked vehicle while Navarrete's husband, Esteban Soto, was attempting to put one of
their children in a car seat. Soto's legs were severed and he was killed by the impact. A
data recorder from Coleman's car indicated its speed was 81 miles per hour five seconds
before the impact, and 71 miles per hour one second before the impact. Meyer estimated
the car's speed at about 70 miles per hour. Meyer admitted it was her idea to drive fast on
Skyview Drive.
Navarette sued Coleman and the County of Riverside, and eventually filed a first
amended complaint naming Meyer as a Doe defendant. She alleged, among others,
causes of action against Meyer for violation of Vehicle Code section 217011 (fourth
cause of action) and civil conspiracy (fifth cause of action). In the fourth cause of action,
Navarette alleged Meyer willfully interfered with Coleman or the mechanism of the
vehicle in such manner as to affect Coleman's control of the car; that Meyer's acts caused
a lapse of Coleman's control as to cause serious injury and death; and that certain
physical features of Skyview Drive increased and intensified the dangers to the decedent
and plaintiffs from Coleman and Meyer's conduct. In the fifth cause of action for
conspiracy, Navarrete alleged that Coleman and Meyer "formed an oral and/or implied
1 Vehicle Code section 21701 provides in part: "No person shall wilfully interfere
with the driver of a vehicle or with the mechanism thereof in such manner as to affect the
driver's control of the vehicle."
3
agreement [to] commit a wrongful act, including but not limited to driving on Skyview
Drive at unsafe speed" and "[s]uch agreement, conspiracy, and/or joint venture between
Defendants to cause wrongful acts caused injuries to Plaintiffs and Decedent." She
alleged that the "conspiracy and agreement is evidenced by the fact, inter alia, that
[Coleman and Meyer]: (a) aided, abetted, approved, ratified, and/or deliberately and
knowingly failed, refused and/or refrained from intervening in or preventing or stopping
the wrongful conduct; and/or (b) deliberately and knowingly failed, refused, and/or
refrained from promptly and accurately reporting such wrongful conduct."
Meyer moved for summary judgment or alternatively summary adjudication. She
argued Navarette's fourth and fifth causes of action were without merit; that undisputed
facts showed she did not interfere with Coleman's control of the vehicle as needed to
impose liability under Vehicle Code section 21701, and there was no evidence of a tacit
agreement between her and Coleman to support a conspiracy cause of action or
conspiracy to commit any tort. Meyer argued that simply encouraging Coleman to
increase his speed was insufficient to support liability under either cause of action. In
opposition, Navarette argued Meyer was liable as a joint tortfeasor for Coleman's
negligence under the Restatement Second of Torts, section 876 and as a coconspirator;
that Meyer "formulated and communicated the plan for . . . Coleman to race at high speed
on Skyview Drive to become airborne when he hit the dips in the roadway"; and "[v]erbal
encouragement and solicitation to commit a wrongful act can constitute a civil
conspiracy." Navarette maintained the evidence demonstrated "an agreement and a plan
to commit the wrongful act" because "[a]s a result of and in response to Meyer's
4
instructions, Coleman began accelerating." According to Navarette, the court could infer
that Coleman was trying to impress Meyer and acquiesced to her wishes, and an
agreement could be inferred from his actions in response to her encouragement. Finally,
Navarette argued there were triable issues of material fact as to whether Meyer
unreasonably interfered with the safe operation of the vehicle within the meaning of
Vehicle Code section 21701 by her words and actions: "[A] reasonable inference from
the evidence is that as the engine roared and the vehicle started accelerating down the
road, that [Meyer's] instruction to 'Go faster' was unlikely stated in a calm, sterile
manner, but rather the instruction itself was animated and enthusiastic."
The trial court granted summary judgment in Meyer's favor. It acknowledged that
the material facts were undisputed; that Meyer told Coleman to drive faster to catch air
over the dips on Skyview Drive, but ruled "there is no evidence to suggest that Meyer's
act of telling Mr. Coleman to drive faster affected Mr. Coleman's control over the
vehicle" and thus there was no triable issue of material fact as to the fourth cause of
action for violation of Vehicle Code section 21701. The court applied the same
reasoning to grant summary judgment on the conspiracy cause of action.
Navarette filed this appeal.
DISCUSSION
I. Standard of Review
" 'Because this case comes before us after the trial court granted a motion for
summary judgment, we take the facts from the record that was before the trial court when
it ruled on that motion. [Citation.] " 'We review the trial court's decision de novo,
5
considering all the evidence set forth in the moving and opposing papers except that to
which objections were made and sustained.' " [Citation.] We liberally construe the
evidence in support of the party opposing summary judgment and resolve doubts
concerning the evidence in favor of that party.' " (Conroy v. Regents of University of Cal.
(2009) 45 Cal.4th 1244, 1249-1250; see DiCola v. White Bros. Performance Products,
Inc. (2008) 158 Cal.App.4th 666, 675 (DiCola).)
"A defendant meets his or her burden upon a motion for summary judgment or
summary adjudication if that party has proved 'one or more elements of the cause of
action . . . cannot be established . . . .' [Citation.] The defendant need not conclusively
negate an element of the plaintiff's cause of action, but must only show that one or more
of its elements cannot be established. [Citation.] To shift the burden to the nonmoving
party, the evidence produced by the moving party must 'persuade the court that there is
no material fact for a reasonable trier of fact to find . . . .' [Citation.] The moving party
also bears a burden of production 'to make a prima facie showing of the nonexistence of
any triable issue of material fact.' [Citation.] 'A prima facie showing is one that is
sufficient to support the position of the party in question.' [Citation.] [¶] 'Once the
defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a
triable issue of one or more material facts exists . . . .' " (DiCola, supra, 158 Cal.App.4th
at p. 674.)
" 'A trial court properly grants summary judgment where no triable issue of
material fact exists and the moving party is entitled to judgment as a matter of law.'
[Citation.] The materiality of a disputed fact is measured by the pleadings [citations],
6
which 'set the boundaries of the issues to be resolved at summary judgment.' " (Conroy v.
Regents of University of Cal., supra, 45 Cal.4th at p. 1250; see also Coral Const., Inc. v.
City and County of San Francisco (2010) 50 Cal.4th 315, 336; Judicial Council of
California v. Superior Court (2014) 229 Cal.App.4th 1083, 1090.) Nevertheless, "[w]hen
a motion for summary judgment is used to test whether the complaint states a cause of
action, the court will apply the rule applicable to demurrers and accept the allegations of
the complaint as true." (American Airlines, Inc. v. County of San Mateo (1996) 12
Cal.4th 1110, 1118.) " ' "[T]he allegations must be liberally construed with a view to
attaining substantial justice among the parties." [Citation.] "Our primary task is to
determine whether the facts alleged provide the basis for a cause of action against
defendants under any theory." ' " (Ibid.; see also Varshock v. California Dept. of
Forestry and Fire Protection (2011) 194 Cal.App.4th 635, 651-652 [in reviewing a
summary judgment to determine the legal effect of the complaint its allegations must be
liberally construed under Code of Civil Procedure section 452].) We ignore erroneous or
confusing labels in the pleading and look to its gravamen to determine what cause of
action is stated. (See K.C. Multimedia, Inc. v. Bank of America Technology &
Operations, Inc. (2009) 171 Cal.App.4th 939, 959.)
On review of an order granting summary judgment the appellate court owes the
superior court no deference; we are not bound by its stated reasons because we review its
ruling not its rationale. (Coral Const., Inc. v. City and County of San Francisco, supra,
50 Cal.4th at p. 336; Judicial Council of California v. Superior Court, supra, 229
Cal.App.4th at p. 1090.)
7
II. Threshold Issues
We initially address and reject Meyer's argument that Navarette has improperly
asserted a new cause of action on appeal—aiding and abetting an exhibition of speed in
violation of Vehicle Code section 231092—and that any such claim is barred by the
"theory of the trial" doctrine. (See DiCola, supra, 158 Cal.App.4th at p. 676 [an
argument or theory will not be considered if it is raised for the first time on appeal; a
party is not permitted to change his position and adopt a new and different theory on
appeal].) Meyer points out there is no reference to Vehicle Code section 23109 or the
words aiding and abetting an exhibition of speed in Navarette's operative complaint.
Meyer's contention fails under the above-summarized principles permitting this
court to look beyond the labels of the pleadings and to the gravamen of the claim to
assess whether the first amended complaint states a cause of action. Because Navarette
alleges that Meyer "formed an oral and/or implied agreement" or joint venture with
Coleman to commit a wrongful act, "including but not limited to driving on Skyview
Drive at unsafe speed" and that Mayer "aided [or] abetted" the "wrongful conduct," her
allegations encompass such a theory notwithstanding her failure to specifically reference
Vehicle Code section 23109. Meyer's complaint need only meet fact-pleading
requirements; it must contain " '[a] statement of the facts constituting the cause of action,
2 Subdivision (c) of Vehicle Code section 23109 provides: "A person shall not
engage in any motor vehicle exhibition of speed on a highway, and a person shall not aid
or abet in any motor vehicle exhibition of speed on any highway." The Vehicle Code
defines a "Highway" as "a way or place of whatever nature, publicly maintained and open
to the use of the public for purposes of vehicular travel. Highway includes street." (Veh.
Code, § 360.)
8
in ordinary and concise language' " and should "allege ultimate facts that 'as a whole
apprise[] the adversary of the factual basis of the claim.' " (Davaloo v. State Farm Ins.
Co. (2005) 135 Cal.App.4th 409, 415; see Code Civ. Proc., § 425.10, subd. (a)(1).) And
Navarette raised these very issues in opposition to Meyer's summary judgment motion, so
there is no basis to claim Meyer was without opportunity to address the questions in the
trial court.
Meyer further contends Navarette's aiding and abetting an exhibition of speed
theory cannot be considered on appeal because "it is premised on a factual theory 'the
consequences of which are open to controversy and were not put in issue or presented at
the trial' . . . and are not such that they 'could not be altered by the presentation of
additional evidence.' " Her apparent reasoning is that the aiding and abetting theory is
"flatly inconsistent" with Navarette's pleaded theory of interference with Coleman's
operation of the vehicle; she maintains interference on the one hand and aiding and
abetting, on the other, are "antithetical concepts involving entirely opposite states of
mind" and thus the theories cannot coexist. Meyer compares the circumstances to those
in Sumner Hill Homeowners' Assn. Inc. v. Rio Mesa Holdings (2012) 205 Cal.App.4th
999.
In Sumner Hill, "[a]t every step of [the] case" (Sumner Hill Homeowners' Assn.
Inc. v. Rio Mesa Holdings, supra, 205 Cal.App.4th. at p. 1025) from the filing of the
operative complaint to the court's statement of decision after trial, the defendants argued a
map violated the Subdivision Map Act, but then in an "eleventh-hour turnabout" on
appeal took the entirely contrary position that the County properly approved the map,
9
which complied with that law. (Id. at pp. 1025-1026.) The appellate court in Sumner
Hill declined to consider the new position, reasoning it would be unfair to allow the
defendants to reinvent the case on appeal and there was no opportunity for the parties or
trial court to consider the ramification of such a position or how it might relate to other
issues, evidence or arguments. (Id. at pp. 1025, 1027.)
The theory of the trial principle of Sumner Hill does not apply here. The essential
facts of Meyer's conduct and the accident are not in dispute; indeed Meyer conceded that
for purposes of the motion, "she wanted Coleman to speed over the dips and she told him
to do so." The trial court observed in its minute order that "[t]he facts in this case are not
disputed" that "Meyer did tell Mr. Coleman to drive faster to 'catch air' over the speed
bumps." We see nothing about the basic factual theory of Navarette's case that was not
presented in the trial court. Rather, we are to assess whether these facts support liability
under any pleaded theory or cause of action so as to defeat Meyer's summary judgment
motion. Nor do we agree that a theory that Meyer aided and abetted Coleman's wrongful
speeding is antithetical to the notion that she interfered with Coleman's control of the
vehicle. As we explain more fully below, where a passenger encourages a driver to speed
on a road that the passenger knows can render the speeding car airborne, it is for a trier of
fact to decide whether the passenger's actions constitute interference within the meaning
of Vehicle Code section 21701.
III. Joint Liability Under Concert of Action/Aiding and Abetting Theory
Navarette contends that Meyer is jointly liable for Coleman's negligent conduct
under a concert of action theory as set forth in section 876(b) of the Restatement Second
10
of Torts and Sindell v. Abbott Laboratories (1980) 26 Cal.3d 588. She maintains Meyer
abetted, urged and encouraged Coleman to engage in the prohibited activity of unlawful
exhibition of speed within the meaning of Vehicle Code section 23109 for the purpose of
the vehicle's tires losing traction and becoming airborne. Relying in part on Agovino v.
Kunze (1960) 181 Cal.App.2d 591 (Agovino), she asserts Meyer as a passenger owed a
duty under that statute not to aid or abet Coleman in such action, and is jointly liable for
the consequences of such conduct.
Though Navarette's contentions are couched on the merits, our role on summary
judgment is simply to decide whether the parties possess evidence requiring the fact-
weighing procedures of a trial. (Soto v. County of Riverside (2008) 162 Cal.App.4th 492,
496; City of Oceanside v. Superior Court (2000) 81 Cal.App.4th 269, 273.) "The purpose
of the summary judgment procedure is not to try the issues, but merely to determine
whether there are issues to be tried." (Orser v. George (1967) 252 Cal.App.2d 660, 668.)
We view the evidence most favorably to Navarette and ascertain whether it raises a
triable issue of material fact for a jury on any cause of action reasonably alleged in the
first amended complaint. Undertaking that analysis, we perceive a straightforward basis
to reverse the summary judgment.
A. Legal Principles
Section 876 of the Restatement Second of Torts provides: "For harm resulting to a
third person from the tortious conduct of another, one is subject to liability if he (a) does
a tortious act in concert with the other or pursuant to a common design with him, or (b)
knows that the other's conduct constitutes a breach of duty and gives substantial
11
assistance or encouragement to the other so to conduct himself, or (c) gives substantial
assistance to the other in accomplishing a tortious result and his own conduct, separately
considered, constitutes a breach of duty to the third person." In Sindell v. Abbott
Laboratories, supra, 26 Cal.3d 588, the California Supreme Court determined whether a
complaint stated a cause of action under the Restatement's "concert of action" doctrine,
and explained these principles by quoting Dean Prosser's comment that " 'those who, in
pursuance of a common plan or design to commit a tortious act, actively take part in it, or
further it by cooperation or request, or who lend aid or encouragement to the wrongdoer,
or ratify and adopt his acts done for their benefit, are equally liable with him. [¶]
Express agreement is not necessary, and all that is required is that there be a tacit
understanding . . . ." (Sindell, at p. 604, quoting Prosser, Law of Torts (4th ed. 1971)
§ 46, p. 292.)
The concert of action theory of group liability "may be used to impose liability on
a person who did not personally cause the harm to plaintiff, but whose ' "advice or
encouragement to act operates as a moral support to a tortfeasor[,] and if the act
encouraged is known to be tortious[,] it has the same effect upon the liability of the
adviser as participation or physical assistance. If the encouragement or assistance is a
substantial factor in causing the resulting tort, the one giving it is himself a tortfeasor and
is responsible for the consequences of the other's act." ' " (Cadlo v. Owens-Illinois, Inc.
(2004) 125 Cal.App.4th 513, 521, quoting Chavers v. Gatke Corp. (2003) 107
Cal.App.4th 606, 617.) The doctrine is likened to aiding and abetting. (See Saunders v.
Superior Court (1994) 27 Cal.App.4th 832, 846 [describing concert of action theory
12
under the Restatement as aiding and abetting]; Fiol v. Doellstedt (1996) 50 Cal.App.4th
1318, 1325-1326 [referencing the Restatement Second of Torts, section 876 in describing
aiding and abetting liability]; Casey v. U.S. Bank National Ass'n (2005) 127 Cal.App.4th
1138, 1144; Gerard v. Ross (1988) 204 Cal.App.3d 968, 983 ["In the civil arena, an aider
and abettor is called a cotortfeasor"].)3
Courts have applied the concert of action/aiding and abetting principles in various
civil contexts, including "the 'drag race' and like cases, opinions in which courts held the
reciprocal ' "inciting and encouraging one another to drive at a fast and reckless rate of
speed" ' furnished the necessary 'proximate cause' to support joint and several liability of
both racers, including the defendant whose car did not strike the plaintiff." (Chavers v.
Gatke Corp., supra, 107 Cal.App.4th at p. 616.)
3 " ' "Liability may . . . be imposed on one who aids and abets the commission of an
intentional tort if the person (a) knows the other's conduct constitutes a breach of duty
and gives substantial assistance or encouragement to the other to so act or (b) gives
substantial assistance to the other in accomplishing a tortious result and the person's own
conduct, separately considered, constitutes a breach of duty to the third person." ' "
(Richard B. LeVine, Inc. v. Higashi (2005) 131 Cal.App.4th 566, 574, quoting Fiol v.
Doellstedt, supra, 50 Cal.App.4th at pp. 1325-1326.) Though closely related to
conspiracy (Richard B. LeVine, Inc., at p. 574; Janken v. GM Hughes Electronics (1996)
46 Cal.App.4th 55, 78), aiding and abetting is a distinct theory. (See Nasrawi v. Buck
Consultants LLC (2014) 231 Cal.App.4th 328, 345; Berg & Berg Enterprises, LLC v.
Sherwood Partners, Inc. (2005) 131 Cal.App.4th 802, 823, fn. 10 [describing differences
between conspiracy and aiding and abetting theories; aider and abettor's conduct need
not, as separately considered, constitute a breach of duty]; Saunders v. Superior Court,
supra, 27 Cal.App.4th at pp. 845-846.) "[W]hile aiding and abetting may not require a
defendant to agree to join the wrongful conduct, it necessarily requires a defendant to
reach a conscious decision to participate in tortious activity for the purpose of assisting
another in performing a wrongful act." (Howard v. Superior Court of Los Angeles
County (1992) 2 Cal.App.4th 745, 749.)
13
Agovino, supra, 181 Cal.App.2d 591 is one such case. There, a defendant's joint
liability was predicated on his participation in a drag race with a third party, Gary Miner,
even though the defendant's vehicle did not contact the car in which the plaintiff was a
passenger. (Id. at p. 593.) The appellate court reversed a nonsuit granted at the close of
the plaintiff's case, stating "it was for the jury to determine the manner of defendant's
driving and whether the same was done in concert with Gary Miner. The evidence, both
direct and circumstantial, is substantial and if believed by the jury is more than sufficient
to prove that, both immediately before and at the time of the collision, defendant was
racing his vehicle with the car involved in the collision in violation of [Vehicle Code]
section 601.5, [former Vehicle Code section 23109], thus establishing a prima facie case
of negligence as a matter of law. [That section] provides that '(N)o person shall engage
in any motor vehicle speed contest or exhibition of speed on a highway and no person
shall aid or abet in any such motor vehicle speed contest or exhibition on any highway.'
Factually, the record at this stage of the trial contains sufficient evidence to support a
finding that defendant was engaged in and aided and abetted in an unlawful speed contest
with Gary Miner, along Laurel Grove Avenue through the Erwin Street intersection, at
the time of the collision between the Parker and Miner cars. [Defendant] was familiar
with the neighborhood—he knew that the two streets intersected at a point surrounded by
the activity of residents who lived in the area, and adults and children who frequented the
nearby park; and that Laurel Grove Avenue along which he raced his car was intersected
by various residential cross streets, and had located thereon Victory-Van Owen Park in
which children played and picnicked." (Id. at pp. 596-597.) The appellate court also
14
determined there was enough evidence of proximate cause to submit the case to the jury:
"[W]hether the two boys, in so many words agreed to race, or from their conduct a tacit
mutual understanding of such an agreement may be inferred, the collision with Gary
[Miner's] car nevertheless occurred during the time they were engaged in racing each
other. The fact the defendant's automobile did not actually come into contact with the
[plaintiff's] car is of little importance on the issue of proximate cause." (Id. at pp. 597-
598.) The court analogized the circumstances to a criminal manslaughter case stemming
from two codefendants racing separate cars in which one defendant killed the plaintiff
and the other moved on; there, the evidence was " 'sufficient to show that [the
defendants] were not acting independently of each other, and that they were jointly
engaged in a series of acts which led directly to the collision.' " (Id. at p. 597, quoting
People v. Kemp (1957) 150 Cal.App.2d 654, 659.)4
4 A concert of action case decided in the summary judgment context is Orser v.
George, a wrongful death action in which the trial court granted a summary judgment in
favor of multiple defendants. (Orser v. George, supra, 252 Cal.App.2d at pp. 665-666.)
Three defendants were alleged to have fired their guns at mudhens in the direction of the
decedent, two of whom alternately fired a pistol, the bullet from which killed the
decedent. (Id. at pp. 664-666.) The third defendant, James, could not have fired the fatal
bullet because he was shooting a rifle. (Id. at p. 668.) In part, the Orser court reversed
the summary judgment in favor of James, the rifle-shooting defendant, on a theory of
concerted action reasoning: "[A]though he did not fire the fatal bullet, there is evidence
(which may or may not be sufficient to prove him liable at the trial) creating a question
for the trier of fact. This evidence indicates he was firing alternately with [another
defendant, Vierra] at the same mudhen, in the same line of fire and possibly tortiously.
In other words . . . , the record permits a possibility James knew Vierra's conduct
constituted a breach of duty owed [plaintiff] and that James was giving Vierra substantial
'assistance or encouragement'; also that this was substantial assistance to Vierra in a
tortious result with James' own conduct, 'separately considered, constituting a breach of
15
B. The Evidence Raises Triable Issues of Fact as to Joint Liability Stemming from
Coleman Engaging in, and Meyer Aiding and Abetting, an Exhibition of Speed
We see little to distinguish the facts of this case from those in Agovino, supra, 181
Cal.App.2d 591. Construed most favorably to Navarette, the evidence shows that in
response to Meyer's urging, Coleman deliberately accelerated his vehicle to well over
Skyview Drive's 25-mile-per-hour speed limit for the specific purpose of rendering it
airborne such that the tires left the roadway and lost traction, causing the fatal collision.
Indeed, the fact Meyer was a passenger in Coleman's vehicle rather than driving a
separate car strengthens the inference that she encouraged and incited him, and that they
jointly engaged in a series of acts that led directly to the collision with Navarette's
vehicle. (Agovino, at p. 597.) Meyer was familiar with Skyview Drive and its unique
characteristics, and a reasonable fact finder could readily infer she knew other vehicles
could be parked or other people would be present on such a residential street. Meyer
attempts to distinguish Agovino on grounds "there was no race" in this case and her
"conduct as a passenger by itself would not and could not have caused injury to anyone."
But Meyer's encouragement to Coleman to speed from within Coleman's car is not
materially different from that of a separate driver encouraging and engaging in a race,
and her assertion that she could not cause injury because she was merely a passenger, is
the very argument rejected by Agovino and other concert of action cases.
duty to' [plaintiff]." (Id. at p. 668 [paraphrasing the Restatement of Torts § 876,
subdivisions (b) and (c)].)
16
Meyer additionally argues that the evidence does not show Coleman engaged in an
exhibition of speed; that "the only reasonable inference . . . is that he lost traction because
he wanted to become airborne over some dips in the road" and "[t]here is no evidence
that he intended to show off a fast car to his passengers or to anyone else at night in a
residential neighborhood." We disagree with Meyer's characterization of the statute and
view of the facts.
An early case addressed what the Legislature meant by "exhibition of speed"
within the meaning of Vehicle Code section 23109: "Webster's New International
Dictionary, 2d Edition, defines . . . exhibition as [an] 'Act or instance of exhibiting for
inspection, or of holding forth to view; manifestation; display.' Thus it would appear that
[the] section . . . could be violated . . . by one person displaying the speed of his vehicle
on the highway to another person in the first person's car or in another car." (In re
Harvill (1959) 168 Cal.App.2d 490, 492-493, italics added.) In Harvill, the appellate
court held that a trier of fact could reasonably infer that a driver who was " 'revving up'
his engine and . . . speeding at a rate of 55-60 miles per hour was exhibiting or displaying
the speed of his car to the female occupants of [another car]." (Id. at p. 493.)
In People v. Grier (1964) 226 Cal.App.2d 360, the appellate court addressed a
defendant's contention that the evidence was insufficient to show an exhibition of speed
within the meaning of the statute where a police officer testified that during a turn, the
defendant's vehicle tires " 'peeled, screeching, losing traction with the roadway.' " (Id. at
p. 362.) The Grier court affirmed, stating: "It is common knowledge that maximum
control of a vehicle upon the highway is maintained through the retention of traction
17
between tires and pavement and that, during any process of skidding of the wheels of a
vehicle, there is a corresponding diminution of the driver's control over the vehicle.
Accordingly, safety measures are designed to reduce the skidding of vehicles, even
during the process of reducing speed through the application of brakes. [Citation.]
Where a person accelerates a vehicle in such manner as to deliberately cause it to skid, he
is not only diminishing his control but increasing the hazard to bystanders or other
vehicles from flying gravel. Whether the action is deliberate or not is for the trier of fact
under the circumstances of the particular case. Obviously, not all cases of tire 'peeling'
or 'screeching' would constitute violations of the statute. It is also common knowledge
that the deliberate screeching and screaming of tires on the pavement are tension
producers which increase nervousness in drivers and others, thereby increasing the
likelihood of accident." (Id. at p. 363, italics added.) The Grier court defined an
exhibition of speed broadly, holding that the observer of the exhibition did not need to be
known to the defendant or be coupled with the defendant's intent to impress the observer
with the speed obtained, and because the defendant's display took place in a "highly
developed and populated area," there was sufficient evidence to infer observation by
some person or persons. (Id. at p. 364.)
The evidence here permits a reasonable jury to infer that Coleman accelerated the
vehicle at Meyer's request so Meyer (and possibly Calhoun) could observe and
experience the car "gain air," as she had experienced in past trips along that road. This
conduct manifestly comes within the ambit of an exhibition of speed under Harvill,
Grier, and Vehicle Code section 23109.
18
Nor do we agree with Meyer's contention that there is no evidence she aided and
abetted Coleman. Her claim is premised on the assertion that the law in California does
not permit liability for aiding and abetting "unintentional conduct"; that Navarette alleged
no intentional tort, only that Coleman acted negligently, and there is no evidence he
intended to harm anyone. She argues, "Even if Coleman inadvertently violated the law
against an 'exhibition of speed,' which he did not, [Meyer] could not be liable for aiding
and abetting such unintentional conduct." However, for purposes of joint liability under a
concert of action theory, it suffices that Meyer assist or encourage Coleman's breach of a
duty, which Vehicle Code section 23109 imposed upon him (and also upon her not to aid
and abet Coleman). (Agovino, supra, 181 Cal.App.2d 591; see also Orser v. George,
supra, 252 Cal.App.2d at p. 667; Stueve Bros. Farms, LLC v. Berger Kahn (2013) 222
Cal.App.4th 303 [civil liability for aiding and abetting commission of a tort has no
overlaid requirement of an independent duty, but focuses on whether a defendant
knowingly gave substantial assistance to someone who performed "wrongful conduct"],
Mayhugh v. County of Orange (1983) 141 Cal.App.3d 763, 768 [one may be held jointly
liable where his or her negligence in concurrence with the negligence of another has
caused a single injury]; Staples v. Hoefke (1987) 189 Cal.App.3d 1397, 1415 ["To
establish that a defendant is a joint tortfeasor, it must be shown the defendant proceeded
tortiously—with intent or negligence"].)
IV. Civil Conspiracy
Navarette further contends Meyer is jointly liable based on civil conspiracy, which
can arise from "[v]erbal encouragement and solicitation to commit a wrongful act"; that
19
Meyer "formulated and communicated the plan for . . . Coleman to illegally race at high
speed on Skyview Drive to become airborne when he hit the dips in the roadway" and the
evidence demonstrates an agreement and plan between them to commit the wrongful act.
Civil conspiracy is not an independent cause of action. (Applied Equipment Corp.
v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 510 (Applied Equipment); Kenne v.
Stennis (2014) 230 Cal.App.4th 953, 968.) Instead, it is a theory of co-equal legal
liability under which certain defendants may be held liable for "an independent civil
wrong" (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1062; see also Applied Equipment, at
p. 511; Doctors' Co. v. Superior Court (1989) 49 Cal.3d 39, 44) committed by others. A
participant in the conspiracy "effectively adopts as his or her own the torts of other
coconspirators within the ambit of the conspiracy." (See Applied Equipment, at p. 511.)
" ' "The elements of an action for civil conspiracy are the formation and operation of the
conspiracy and damage resulting to plaintiff from an act or acts done in furtherance of the
common design . . . . In such an action the major significance of the conspiracy lies in
the fact that it renders each participant in the wrongful act responsible as a joint tortfeasor
for all damages ensuing from the wrong, irrespective of whether or not he was a direct
actor and regardless of the degree of his activity." ' " (Id. at p. 511.) " 'The essence of
the claim is that it is merely a mechanism for imposing vicarious liability . . . . Each
member of the conspiracy becomes liable for all acts done by others pursuant to the
conspiracy, and for all damages caused thereby.' " (Stueve Bros. Farms, LLC v. Berger
Kahn, supra, 222 Cal.App.4th at p. 324.)
20
Under a conspiracy theory of recovery, liability depends on the actual commission
of a tort. (See Applied Equipment, supra, 7 Cal.4th at p. 511; Richard B. LeVine, Inc. v.
Higashi, supra, 131 Cal.App.4th at p. 574; Kidron v. Movie Acquisition Corp. (1995) 40
Cal.App.4th 1571, 1582 [" '[t]he basis of a civil conspiracy is the formation of a group of
two or more persons who have agreed to a common plan or design to commit a tortious
act' "].) Liability "presupposes that the coconspirator is legally capable of committing the
tort, i.e., that he or she owes a duty to plaintiff recognized by law and is potentially
subject to liability for breach of that duty." (Applied Equipment, at p. 511.) And for
conspiracy liability, the conspiring defendants must have actual knowledge that a tort is
planned and concur in the scheme with knowledge of its unlawful purpose. (Kidron, at
p. 1582.) Knowledge of the planned tort must be combined with intent to aid in its
commission. (Ibid.) "An agreement may be tacit as well as express. [Citation.] A
conspirator's concurrence in the scheme ' " ' "may be inferred from the nature of the acts
done, the relation of the parties, the interests of the alleged conspirators, and other
circumstances." ' " ' " (Arei II Cases (2013) 216 Cal.App.4th 1004, 1024.)
We cannot say on Meyer's summary judgment showing that the evidence is
insufficient as a matter of law to support joint liability on a theory of civil conspiracy. As
we view it, the evidence raises a triable issue for a jury as to Meyer's co-equal liability on
such a theory. Critically, the law imposed on Meyer personally an independent duty not
to encourage or assist Coleman in engaging in an unlawful exhibition of speed. (Veh.
Code, § 23109.) And for purposes of civil conspiracy, the source of substantive liability
arises out of a preexisting legal duty and its breach, and it "makes no difference in the
21
analysis whether the underlying duty is imposed by statute . . . or by the common law."
(Chavers v. Gatke Corp., supra, 107 Cal.App.4th at p. 614, citing in part Doctor's Co. v.
Superior Court, supra, 49 Cal.3d 39 [involving alleged conspiracy to violate Insurance
Code section 790.03].)
Meyer advances several arguments as to why the facts cannot support her liability
based on a conspiracy. Though she correctly points out there is no independent cause of
action for conspiracy, Meyer asserts any such claim must have an underlying illegal act.
Meyer further argues that a conspiracy can be formed only by parties already under a
legal duty to the plaintiff, and that Navarette has not identified any duty that Meyer, as a
passenger, owed to third persons standing by the roadside. We have already concluded
Meyer had an independent duty under Vehicle Code section 23109, which a reasonable
jury can find was violated by Coleman's and Meyer's actions. That duty inures to
bystanders and other vehicles on the roadways. (See e.g., People v. Grier, supra, 226
Cal.App.2d at p. 363.) And the cases make clear the parties need only expressly or tacitly
agree to commit a tort or "civil wrong," which in this case is met by evidence raising a
fact issue whether Coleman and Meyer agreed that Coleman should engage in an
exhibition of speed. Meyer's encouragement to Coleman to exceed the speed limit on
Skyview Drive, a street with unique dangers, was clearly wrong. The sort of injury that
ensued from Coleman's unlawful conduct—the car losing traction or control and striking
another vehicle or person on the residential street—was foreseeable, and is the very sort
of harm the statute was designed to prevent. (Accord, Michael R. v. Jeffrey B. (1984) 158
Cal.App.3d 1059, 1070-1071 [analyzing whether duty of care to third parties was owed
22
by individuals encouraging their friend to shoot a marble with a slingshot at another
minor; the complaint sounded in conspiracy and there was a triable issue of fact as to
whether the shooter's friends actively encouraged, solicited, or conspired to injure the
plaintiff in violation of Penal Code section 653, subdivision (f) as to constitute negligence
per se].)
Meyer finally argues, relying on federal or out-of-state authorities, that because
Navarette only alleged Coleman was negligent and the evidence does not permit a finding
that either she or Coleman intended to harm anyone, there is no basis for liability; that
there cannot be a civil conspiracy to commit a negligent act. We acknowledge there is a
split within out-of-state authorities, most of which hold that parties cannot conspire to
commit a negligent or unintentional act and such a conspiracy is a legal impossibility.5
But the law in California remains that a civil conspiracy requires an express or
tacit agreement only to commit a civil wrong or tort, which then renders all participants
5 See e.g., Koehler v. Pulvers (S.D.Cal. 1985) 606 F.Supp. 164, 173, fn. 10 ["The
act of conspiracy requires two or more persons agreeing to commit intentionally a
wrongful act. [Citation.] This court is unaware of California decisional law imposing
liability for conspiring to commit negligence"]; U.S. v. Sdoulam (8th Cir. 2005) 398 F.3d
981, 987; Wright v. Brooke Group Ltd. (N.D.Iowa 2000) 114 F.Supp.2d 797, 837
["because conspiracy requires an agreement to commit a wrong, there can hardly be a
conspiracy to be negligent—that is, to intend to act negligently"]; Sonnenreich v. Philip
Morris, Inc. (S.D.Fla. 1996) 929 F.Supp. 416, 419 ["Logic and case law dictate that a
conspiracy to commit negligence is a non sequitur"]; compare Wright v. Brooke Group
Ltd. (Iowa 2002) 652 N.W.2d 159, 173 [disagreeing that a civil conspiracy to be
negligent is a non sequitur: "So long as the underlying actionable conduct is of the type
that one can plan ahead to do, it should not matter that the legal system allows recovery
upon a mere showing of unreasonableness (negligence) rather than requiring an intent to
harm"]; Sackman v. Liggett Group, Inc. (E.D.N.Y. 1997) 965 F.Supp. 391, 395-396
[declining to summarily adjudicate cause of action based on alleged conspiracy to market
a defective product].
23
"responsible . . . for all damages ensuing from the wrong . . . ." (Applied Equipment,
supra, 7 Cal.4th at p. 511; see Wyatt v. Union Mortgage Co. (1979) 24 Cal.3d 773, 784-
785 ["As long as two or more persons agree to perform a wrongful act, the law places
civil liability for the resulting damages on all of them, regardless of whether they actually
commit the tort themselves;" "[t]acit consent as well as express approval will suffice to
hold a person liable as a coconspirator"].) Meyer does not cite, nor have we found,
authority requiring the participants to a conspiracy to possess the specific intent to harm a
particular person or commit a specific injury. The authorities cited by Meyer, while they
involve intentional torts, do not expressly limit conspiracy liability to instances where
participants direct their tortious or unlawful acts at a particular person. As we have
summarized above, the evidence need only raise an issue as to the participants'
knowledge of the agreement's unlawful purpose, which here was to drive so fast in excess
of the speed limit as to render the car airborne on Skyview Drive. Viewing the facts most
favorably to Navarette, a jury could reasonably conclude that Meyer and Coleman
expressly or tacitly agreed that Coleman would engage in an unlawful exhibition of
speed, and knew that was the specific unlawful purpose of their agreement. This conduct
is sufficiently intentional to support a cause of action for conspiracy.
V. Claim for Violation of Vehicle Code Section 21701/Negligence Per Se
Navarette contends she presented evidence raising a triable issue of material fact
as to whether Meyer unreasonably interfered with the safe operation of a vehicle by her
words and actions within the meaning of Vehicle Code section 21701. Analogizing the
circumstances to Turner v. Mannon (1965) 236 Cal.App.2d 134 in which a passenger's
24
exclamation to the driver, "This is a curve . . . turn" resulted in an accident,6 Navarette
points out Meyer may claim her exhortation to Coleman to "go faster" was not a "strident
exclamation," but it is for the jury to evaluate how Meyer communicated her desire for
the vehicle to speed up and become airborne; that "[t]he inflections from the verbal
instructions and inferences therefrom are issues for the jury to weigh."
Meyer responds that the cases on which Navarette relies make a distinction
between "merely offering directions" and actual interference with a vehicle's operation.
She argues there is no evidence she shouted at Coleman or startled him, but even if she
had, Coleman did not lose control of his car because of that act. According to Meyer,
"[Coleman] chose to go faster, and that conduct, not [her] supposed shouting, led to the
accident." She maintains that the theory of willful interference proposed by Navarette is
not supported by the statutory language and would lead to absurd results.
6 In Turner v. Mannon, supra, 236 Cal.App.2d 134, a passenger in a vehicle
(Turner) sued the driver (Mannon) and the driver's mother on theories of "willful
misconduct" and negligence after she was injured in a single car accident. (Id. at p. 136.)
Turner and Mannon, both minors at the time of the accident, were driving on a curvy road
when Turner "suddenly and emphatically" stated, "This is a curve, Nancy, turn," causing
Mannon to overcompensate and slide out of control and hit a telephone pole. (Id. at pp.
137-138.) Mannon testified that "she did not observe any such sharp curve as [Turner's]
shouting led her to believe existed at that point." (Id. at p. 138.) On appeal from a
defense verdict, Turner challenged the court's instructions on contributory negligence on
grounds there was no credible evidence to support an inference of negligence on her part.
(Id. at pp. 140-141.) The appellate court rejected the contentions, pointing out that the
accident may have been due in part to Turner's contributory negligence; that the record
"indicates that the sharp and sudden movement to the left on the part of the defendant
driver was due to the strident exclamation of plaintiff concerning the curve. It is obvious
that a plaintiff may be guilty of contributory negligence by reason of an unexpected, or
stressed, exclamation or statement made by her to a defendant, causing alarm and
exaggerated or sudden movement, which leads to an accident." (Id. at p. 141.)
25
A. Legal Principles
Vehicle Code section 21701 provides in part: "No person shall wilfully interfere
with the driver of a vehicle or with the mechanism thereof in such manner as to affect the
driver's control of the vehicle." In Reclusado v. Mangum (1964) 228 Cal.App.2d 8, the
court explained that the "purpose of [Vehicle Code section 21701] was to prevent anyone
from doing intentionally anything that would unreasonably interfere with the driver in the
operation of the vehicle 'in such manner as to affect the driver's control' irrespective of
whether such person actually intended to affect the operation or not . . . ." (Id. at p. 15.)
Reclusado involved the grant of a defense new trial motion on grounds of errors at
law in jury instructions. (Reclusado v. Mangum, supra, 228 Cal.App.2d at p. 10.) There,
the defendant, a back-seat passenger in a vehicle driven by her 15-year-old son who had
received his instruction permit days earlier, put her 18-month-old child into the front seat
next to her son after which the car went off the road, struck a cement culvert, killed one
person and injured the vehicle's occupants. (Id. at p. 12.) The plaintiff sued the driver's
mother for negligence in part on the theory that she willfully interfered with the driver so
as to affect his control of the car. (Id. at pp. 10, 11.) As relevant here, the trial court
instructed the jury on the language of Vehicle Code section 21701 and told them if a
party violated that statute, a presumption of negligence arose that could be overcome by
other evidence showing that under all the circumstances surrounding the event, the
conduct in question was excusable or justifiable. (Id. at p. 14.)
On appeal, the respondent took the position that the statute required "as a
prerequisite to liability there must be a physical interference with the driver's operation,
26
with specific intent to affect the operation itself." (Reclusado v. Magum, supra, 228
Cal.App.2d at p. 15.) The appellate court rejected that position, stating that the
Legislature's intention seemed "broader in scope . . . ." It reasoned: "Many acts which
the code section is designed to prevent are not accompanied by an actual wish to interfere
directly with the operation of the car, such as turning off the ignition switch, pushing the
driver out of the way, or blinding his view of the road by holding some object in front of
his eyes. Of course, these acts would be breaches of the code section. But there are even
more frequent acts constituting interference with the driver which are reprehensible, and
the evidence on behalf of the plaintiff in the present action seems to present one of them.
When the occupant of a back seat wilfully thrusts a baby forward into the front seat in
such a way as to cause a lapse of the driver's control so that an accident will be caused
and serious injuries inflicted, it is a dangerous and improper act which the code section in
question forbids. The jury had a right to judge from all of the evidence in the case
whether Mrs. Mangum wilfully and negligently interfered with the driver of the vehicle."
(Id. at pp. 15-16.) On these facts, the Reclusado court held the trial court erred by
granting a new trial on defendants' behalf. (Id. at p. 16.)
Here, in the context of a summary judgment, we must decide whether Meyer has
demonstrated as a matter of law that her conduct falls outside what the Legislature
intended to proscribe when it stated a person shall not willfully "interfere with" a driver
"in such manner as to affect the driver's control of the vehicle." In determining the
meaning and scope of a statute, we begin with the statute's plain language and afford its
words their ordinary and commonsense meaning, so as to ascertain the Legislature's
27
intent. (Tract 19051 Homeowners Ass'n v. Kemp (2015) 60 Cal.4th 1135, 1143;
Riverside County Sheriff's Dept. v. Stiglitz (2014) 60 Cal.4th 624, 630.) The statute does
not define the term "interfere." The common meaning of the word "interfere" is broad:
the dictionary definition is "to interpose in a way that hinders or impedes: come into
collision or be in opposition" or "to enter into or take part in the concerns of others."
(Merriam-Webster's Collegiate Dict. (11th ed. 2006) p. 652.) Applying the ordinary
meaning of these words compels us to agree with Reclusado that direct physical
interference is not strictly required to violate the statute: a person can interfere with a
driver so as to affect the driver's control of the vehicle within the meaning of Vehicle
Code section 21701 without necessarily physically touching the driver, physically
hindering the driver's ability to see or drive, tampering with the vehicle, or otherwise
directly affecting the vehicle's machinery.
We accordingly take a broad view of what actions will constitute willful
interference so as to affect a driver's control of a vehicle for purposes of liability under
Vehicle Code section 21701. For purposes of Navarette's summary judgment motion, the
evidence is undisputed that Meyer had special knowledge that a car speeding on Skyview
Drive could become airborne due to the unique road conditions; she had been a passenger
in a vehicle speeding on the road before in which the car became airborne and she
thought it would be "fun" to recreate that scenario. To that end, she encouraged Coleman
to take that road and to speed on it, then told him to drive faster to increase the chance
that the car's tires would leave the roadway. Under the statute, Meyer did not have to
have specific intent to affect Coleman's control, she merely had to take some intentional
28
action that in some way would affect Coleman's control. (Reclusado v. Magum, supra,
228 Cal.App.2d at pp. 15-16.) Because a driver's control is necessarily affected when the
vehicle's tires leave the roadway (see In re F.E. (1977) 67 Cal.App.3d 222, 225; People v.
Grier, supra, 226 Cal.App.2d at p. 363), we cannot say as a matter of law that Meyer's
conduct falls outside the sort of interference that the Legislature sought to prevent in
Vehicle Code section 21701.
We are unpersuaded by Meyer's summary judgment arguments, repeated in part in
her respondent's brief, that unless limited in the manner she proposes, liability under
Vehicle Code section 21701 could unreasonably extend to a person who merely talks on
the phone with a driver and tells them to hurry or drive faster. The facts presented in this
case on summary judgment demonstrate much more than Meyer merely offering
directions to Coleman. Meyer's hypothetical scenarios omit a critical fact present in this
case: that when Meyer urged Coleman to drive faster, she did so with special knowledge
of the likelihood that his speeding vehicle would leave the roadway. Indeed, a reasonable
trier of fact could conclude from the evidence favorable to Navarette that Meyer
specifically intended that result. Under these narrow circumstances, summary judgment
was not warranted on Navarette's cause of action for violation of Vehicle Code section
21701.
29
DISPOSITION
The judgment is reversed. Plaintiffs are awarded costs on appeal.
O'ROURKE, J.
WE CONCUR:
McINTYRE, Acting P. J.
IRION, J.
30
Navarrete v. Meyer
Combined Opinion