Musgrove v. Silver

Filed 8/25/22
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

RONALD MUSGROVE et al., B311504

Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. BC673010)
v.

JOEL SILVER,

Defendant and
Respondent.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Dennis J. Landin, Judge. Affirmed.

The Wallace Firm and Bradley S. Wallace; Joseph S.
Socher for Plaintiffs and Appellants.

Murchison & Cumming, Corine Zygelman, and Matthew E.
Voss for Defendant and Respondent.
 * * *
As part of an entourage of family and friends, a Hollywood
producer brought the executive assistant he employed through
his company as well as a French chef he personally employed to a
luxurious resort in Bora Bora; the trip was part vacation for both
the assistant and the chef, although the assistant met with the
concierge to plan the entourage’s daily recreational activities and
the chef prepared all lunches and dinners. Tragically, the
executive assistant drowned when she went for a midnight swim
in the lagoon outside her overwater bungalow. The drowning
was accidental, and related to her ingestion of alcohol and cocaine
in the hours prior to her swim. The executive assistant’s parents
sued the producer for wrongful death, on the theory that he is (1)
directly liable, because he paid all resort-related expenses of the
trip, including for alcohol, and (2) vicariously liable, because he
employed the chef, who had met up with the executive assistant
for a late-night rendezvous when she drank half a bottle of wine
and snorted a “significant” amount of cocaine just before going for
a swim. In granting summary judgment, the trial court ruled
that the producer was not liable under either theory as a matter
of law. The primary issue on appeal is whether the chef was
acting within the scope of his employment—thereby rendering
the producer vicariously liable—when the chef met up with the
executive assistant for a nightcap and, by allegedly supplying her
with alcohol and cocaine while knowing she liked to swim at
night, put her in a position of peril from which he failed to protect
her. Although the precedent on vicarious liability is untidy, we
hold that the chef’s late-night activities with the assistant were
not within the scope of his employment under each of the four

2
tests articulated by the California courts for assessing the scope
of employment for purposes of imposing vicarious liability.
Because the trial court’s ruling on direct liability was also correct,
we affirm the judgment for the producer.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
A. A tragic death
In August 2015, 28-year-old Carmel Musgrove (Musgrove)
traveled to the Four Seasons Resort on a private island in Bora
Bora, French Polynesia. She was one of 14 or 15 people—largely
family and friends—whom Hollywood producer Joel Silver
(Silver) had invited to accompany him in attending actress
Jennifer Aniston’s wedding celebration. Musgrove stayed in her
own overwater bungalow at the resort. Along with Silver’s other
guests, she went fishing, played volleyball, and went to the spa.
She also attended the group lunches and dinners Silver hosted,
where she would regularly drink wine. Silver covered all of the
group’s expenses on the trip, including alcohol.
On the evening of August 18, 2015, the group ate dinner
indoors because the wind was howling and the water, choppy.
Musgrove had wine with dinner, but did not become visibly
intoxicated. Around 9 p.m., she went to the Silver’s family
bungalow to watch a movie with his then young children. After
agreeing via text message to meet up with 47-year-old Martin
Herold (Herold), another member of Silver’s encourage, Musgrove
told Silver’s family she was not feeling well and excused herself
to go back to her bungalow a little after 10 p.m.
Musgrove then met up with Herold to “party.” Although
precisely where they met and precisely what they did is subject to
some dispute, it is undisputed that over the next hour or so

3
Musgrove and Herold kissed, Musgrove drank more wine, and
Musgrove ingested cocaine.
At some point around midnight, and after departing from
her rendezvous with Herold, Musgrove disrobed in her bungalow
and climbed down the ladder from her bungalow’s platform into
the dark waters of the lagoon for a nighttime dip.
Musgrove did not show up at breakfast or lunch the next
day.
Her body washed up onto shore the following night. Two
autopsies confirmed that her cause of death was accidental
drowning, with contributing causes of alcohol and drug use. Her
blood alcohol content was 0.20, which is more than twice the legal
limit for drinking. She also had a “significant” amount of cocaine
in her liver.
B. Employment relationships
1. Musgrove
For many years prior to the August 2015 trip, Musgrove
had been working as Silver’s executive assistant. She was
officially employed by Silver Pictures Entertainment.
Going to Bora Bora was not a requirement of her job.
Rather, Silver invited Musgrove to come along if she wanted: If
she came, she would continue to receive her salary and would be
expected to spend “maybe 10 percent” of her time coordinating
with the resort’s staff and others in lining up the recreational
activities and meals for Silver and his guests; the rest of the time,
however, she would be “on vacation” like the others and would
have her travel, lodging, and other expenses paid.
Silver did not prohibit his guests from partaking of alcohol
at dinner, at the resort’s bars, or through room service;

4
conversely, he did not require or pressure anyone to drink.
Whether and how much to drink alcohol was up to each guest.
2. Herold
For over a decade prior to August 2015, Silver had
personally employed Herold as his “family’s personal chef” who
would travel with Silver and his family, and prepare their meals.
Silver paid Herold a salary and covered all of his travel, lodging,
and other expenses, including any alcohol Herold chose to drink.
Herold arrived in Bora Bora a few days before the rest of
Silver’s entourage in order to purchase groceries for the lunches
and dinners he was to prepare during the trip. Herold had no
fixed working hours; instead, he was expected to prepare the
group’s lunches and dinners, but was otherwise free to spend his
remaining time however he wished.
C. Personal relationship between Musgrove and
Herold
By August 2015, Musgrove and Herold were not strangers.
They had met a few years prior, when Musgrove was traveling as
Silver’s executive assistant and Herold was accompanying
Silver’s family as their chef.
Before she departed for the August 2015 Bora Bora trip,
Musgrove emailed Herold and asked if he got “any ‘candy’ down
there.” Herold responded that he “got a bag of bora herb,” which
he later explained meant marijuana. Musgrove was
unimpressed, responding, "Meh. U don’t [have] a hook up there
for the other stuff?” When Herold assured her “Got everything,”
she responded “What I like to hear” with a smiley face symbol.
Herold also knew that Musgrove enjoyed swimming in the
lagoon near the overwater bungalows.

5
II. Procedural Background
A. Pleadings
In August 2017, Musgrove’s parents—Ronald and Ann
Musgrove (collectively, plaintiffs)—sued Herold and Silver for the
wrongful death of their daughter.1 In the operative second
amended complaint,2 plaintiffs alleged that Herold and Silver
were liable because they had “exposed” Musgrove to “an
unreasonable risk of harm” by “furnishing” her with “an excessive
amount of alcohol” and “drugs,” and simultaneously “promoting
dangerous activities, including alcohol consumption, drug
consumption, and swimming in a lagoon late at night during
unfavorable conditions.” Plaintiffs more specifically alleged two
theories of liability against Silver—namely, that Silver was (1)
directly liable for Musgrove’s death because he “caused [her] to be
in a vulnerable state on the night” of her death, and (2)
“vicariously liable for the negligence” of Herold because Herold
was “acting within the course and scope of [his] . . . employment
at the time of [Herold’s] negligence.”
B. Summary judgment
Silver moved for summary judgment. Following a full
round of briefing, evidentiary objections, and a hearing, the trial
court granted Silver’s motion. The court ruled that Silver was
not directly liable for Musgrove’s death because Silver had no
“special relationship” with Musgrove that would legally obligate

1 They also sued Silver Pictures Entertainment and Silver-
Katz Holdings, LLC, but those defendants were dismissed
following a good faith settlement.

2 The trial court granted plaintiffs leave to amend and file a
second amended complaint after we issued an alternative writ
effectively instructing it to do so.

6
him to “assume[] control of her safety and welfare”; to hold Silver
directly liable simply because Musgrove “accompanied him” to
Bora Bora, the court reasoned, would “contradict[]” California
tort law. The court further ruled that Silver was not vicariously
liable for Musgrove’s death. Although the court found triable
issues of fact as to whether Herold owed Musgrove a duty of care
and breached that duty, the court concluded as a matter of law
that Silver was not vicariously liable for Herold’s arguably
negligent conduct “in placing Musgrove in a position of peril” by
plying her with alcohol and drugs and then not protecting her
from swimming. More specifically, the court reasoned that
Herold’s conduct was outside the scope of his employment by
Silver because (1) it was “not an ‘outgrowth’ of his employment
[as a chef or] ‘inherent in the working environment,’” (2) it was
not “‘typical of or broadly incidental to’ [Silver’s employment of
him as a chef] or, in a general way, foreseeable from [Herold’s]
duties”; and (3) it was “neither a benefit to the company nor a
customary incident” of Herold’s “employment relationship” with
Silver because Herold’s work as a chef “did not cause him to
invite Musgrove to his bungalow or to put her in a vulnerable
situation and to not protect her from danger.”
C. Appeal
Following entry of judgment, plaintiffs filed this timely
appeal.
DISCUSSION
Plaintiffs argue that the trial court erred in (1) granting
summary judgment, and while doing so, (2) not excluding
portions of Silver’s declaration as impermissible and conclusory
lay opinion. We need not consider plaintiffs’ evidentiary
objections because, as we discuss below, summary judgment is

7
warranted even if we assume evidentiary error and exclude that
evidence from our consideration. We independently review a trial
court’s grant of summary judgment. (Hartford Casualty Ins. Co.
v. Swift Distribution, Inc. (2014) 59 Cal.4th 277, 286 (Hartford).)
I. Pertinent Law
A. The law of summary judgment
“Summary judgment is appropriate only ‘where no triable
issue of material fact exists and the moving party is entitled to
judgment as a matter of law.”’ (Regents of University of
California v. Superior Court (2018) 4 Cal.5th 607, 618 (Regents);
Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476; Code Civ.
Proc., § 437c, subd. (c).) To prevail on such a motion, the moving
party—here, Silver—must show that the plaintiffs “ha[ve] not
established, and reasonably cannot be expected to establish, one
or more elements of the cause of action in question.” (Patterson v.
Domino’s Pizza, LLC (2014) 60 Cal.4th 474, 500.) In
independently examining whether Silver has made this showing,
we evaluate the issues framed by the plaintiffs’ operative
pleading (Lona v. Citibank, N.A. (2011) 202 Cal.App.4th 89, 115),
consider all of the evidence before the trial court except evidence
to which an objection was made and sustained (as well as
evidence we will assume should have been excluded) (Hartford,
supra, 59 Cal.4th at p. 286), liberally construe that evidence in
support of the party opposing summary judgment, and resolve all
doubts concerning that evidence in favor of that party (id. at p.
286; Code Civ. Proc., § 437c, subd. (c)). We independently review
all subsidiary legal questions—such as whether a duty of care or
a special relationship exists—as we do all questions of law.
(Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 213 (Brown)
[duty of care]; Regents, at p. 620 [special relationship].) And

8
although ‘“the determination whether an employee has acted
within the scope of employment”’ ‘“[o]rdinarily”’ ‘“presents a
question of fact[,] it becomes a question of law”’—and hence an
appropriate basis for a grant of summary judgment—“‘when “the
facts are undisputed and no conflicting inferences are possible.’””
(Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12
Cal.4th 291, 299 (Lisa M.), quoting Mary M. v. City of Los Angeles
(1991) 54 Cal.3d 202, 213 (Mary M.).)
B. Pertinent tort principles
To prevail against Silver on their sole claim of wrongful
death, plaintiffs must prove “(1) a ‘wrongful act or neglect’ on the
part of one or more persons [(that is, negligence)] that (2)
‘cause[s]’ (3) the ‘death of [another] person.’” (Norgart v. Upjohn
Co. (1999) 21 Cal.4th 383, 390.) A person may be liable either for
(1) his own negligence, in which case he is directly liable for the
resulting death, or (2) someone else’s negligence, in which case he
is vicariously liable because—in the eyes of the law—the other
person’s negligence is deemed to be his own. (E.g., Hooker v.
Department of Transportation (2002) 27 Cal.4th 198, 210; de
Villers v. County of San Diego (2007) 156 Cal.App.4th 238, 247.)
A person acts negligently only if he ‘“had a duty to use due care”’
and ‘“breached that duty.”’ (Brown, supra, 11 Cal.5th at p. 213.)
1. Duty
The default rule of tort law in California is that “each
person has a duty to act with reasonable care under the
circumstances.” (Regents, supra, 4 Cal.5th at p. 619; Civ. Code, §
1714, subd. (a).) At the same time, a person generally “has no
duty to come to the aid of another” by “assist[ing] or protect[ing]”
them “unless there is some relationship between them which

9
gives rise to a duty to act.” (Williams v. State of California (1983)
34 Cal.3d 18, 23 (Williams); Regents, at p. 619.)
This “no duty to assist or protect” rule has two exceptions
pertinent to this case.
First, the “‘general duty to exercise due care includes the
duty not to place another person in a situation in which the other
person is exposed to an unreasonable risk of harm’”; in other
words, it includes the duty not to “‘“mak[e] the [other person’s]
position worse”’” by placing them in peril. (Zelig v. County of Los
Angeles (2002) 27 Cal.4th 1112, 1128 (Zelig), quoting Lugtu v.
California Highway Patrol (2001) 26 Cal.4th 703, 716; Brown,
supra, 11 Cal.5th at p. 214.) If a person’s conduct puts another
person in peril, that conduct not only constitutes a breach of the
duty of care but also obligates him to take “affirmative action to
assist or protect” the other person from that peril. (Regents,
supra, 4 Cal.5th at p. 619; Williams, supra, 34 Cal.3d at p. 23;
Zelig, at p. 1129; Weirum v. RKO General, Inc. (1975) 15 Cal.3d
40, 48-49 (Weirum); McHenry v. Asylum Entertainment Delaware,
LLC (2020) 46 Cal.App.5th 469, 485 [“a duty to act can arise from
one party’s conduct in creating the very peril that necessitates
aid and intervention”]; Jane Doe No. 1 v. Uber Technologies, Inc.
(2022) 79 Cal.App.5th 410, 424 [“when a defendant has
affirmatively ‘created a peril’ that foreseeably leads to the
plaintiff’s harm . . ., the defendant can . . . be held liable for
failing to also protect the plaintiff from that peril”].)
Second, a person (typically, the person who becomes the
defendant) can have a “duty to protect or assist” another
(typically, the person who becomes the plaintiff) if he has a
“special relationship” with either (1) the third person who injures
the plaintiff or (2) the plaintiff herself. (Regents, supra, 4 Cal.5th

10
at p. 619; Zelig, supra, 27 Cal.4th at p. 1129; Davidson v. City of
Westminster (1982) 32 Cal.3d 197, 203 (Davidson); Brown, supra,
11 Cal.5th at p. 216.) The first type of special relationship runs
between the defendant and the third person who injured the
plaintiff, and obligates the defendant to control the third person.
(Regents, at p. 621; Zelig, at p. 1129; Davidson, at p. 203.) The
second type of special relationship runs between the defendant
and the plaintiff, and obligates the defendant to protect the
plaintiff. (Zelig, at p. 1129; Davidson, at p. 203.)
Special relationships have “defined boundaries,” insofar as
they are “limited” both “to specific individuals” and to the ‘“risks
that arise within the scope of the [special] relationship [at
issue].”’ (Regents, supra, 4 Cal.5th at p. 621; Rest.3d Torts, § 40,
subd. (a); Doe v. Roman Catholic Archbishop of Los Angeles
(2021) 70 Cal.App.5th 657, 670 (Doe).) Whether a special
relationship between two people exists turns on “the particular
facts and circumstances of their association with one another.”
(Brown, supra, 11 Cal.5th at p. 221.) Because the existence of a
duty to act is ultimately a public policy question (Weirum, supra,
15 Cal.3d at p. 46), and because special relationships are one
means by which a duty may be found to exist, it is not surprising
that whether a special relationship exists in a particular case is,
at bottom, also a question of law based upon public policy
considerations. (Rest.3d Torts, § 40, com. h. [“Whether a
relationship is deemed special is a conclusion based on reasons of
principle or policy.”].) What is more, the existence of a special
relationship does not automatically create a duty to act; instead,
as our Supreme Court recently reaffirmed, courts must also
assess whether public policy concerns warrant “limiting” the duty

11
that might otherwise arise by virtue of a special relationship.
(Brown, at pp. 209, 218-219; Doe, at p. 670.)
2. Vicarious liability based on the special
relationship between employer and employee
Employers have a special relationship with their
employees. (Rest.3d Torts, § 40, subd. (b).) This relationship
rests (1) partly on employers’ ability to control their employees’
conduct and (2) partly on the public policy notion that employers
who benefit from their employees’ conduct should concomitantly
bear “the risks incident to [their] enterprise” as a “cost of doing
business.” (Hinman v. Westinghouse Elec. Co. (1970) 2 Cal.3d
956, 960 (Hinman); Perez v. Van Groningen & Sons, Inc. (1986)
41 Cal.3d 962, 968 (Perez); Mary M., supra, 54 Cal.3d at pp. 208-
209; Rodgers v. Kemper Constr. Co. (1975) 50 Cal.App.3d 608,
618-619 (Rodgers).) Imposing liability for the employee’s conduct
upon the employer has nothing to do with the employer’s fault.
(Hinman, at p. 960.)
Due to this special relationship, California deems
employers to be vicariously liable for the torts committed by their
employees if, but only if, the employee is acting within the scope of
employment. (Mary M., supra, 54 Cal.3d at p. 208; Lisa M.,
supra, 12 Cal.4th at p. 296; Farmers Ins. Group v. County of
Santa Clara (1995) 11 Cal.4th 992, 1005 (Farmers).) This legal
principle is known more commonly as respondeat superior.
(Mary M., at p. 208; Moreno v. Visser Ranch, Inc. (2018) 30
Cal.App.5th 568, 575 (Moreno).)
One court has described the task of assessing whether an
employee is acting within the scope of employment as “difficult.”
(Kephart v. Genuity, Inc. (2006) 136 Cal.App.4th 280, 291
(Kephart).) This is an understatement. The difficulty stems in

12
part from the fact that the decision whether an employee is
acting within the scope of employment is imbued with policy
considerations (Hinman, supra, 2 Cal.3d at p. 959; Perez, supra,
41 Cal.3d at p. 967), and in part from the fact that the courts—
while agreeing that the scope of employment should be
“interpreted broadly” (Farmers, supra, 11 Cal.4th at p. 1004)—
have nevertheless articulated no fewer than four different tests
for assessing whether particular acts should be deemed to be
within the scope of employment and hence a basis for imposing
vicarious liability (Moreno, supra, 30 Cal.App.5th at p. 577).3
We now set forth each of those tests.

3 There are further refinements-slash-corollaries to these
tests, many of which turn on whether the employee is at the work
site at the time of the allegedly tortious conduct (in which case
liability turns on whether the employee’s conduct is a
“substantial deviation” from his duties or instead just an act
necessary to his personal "comfort, convenience, [or] health”
(Alma W. v. Oakland Unified School Dist. (1981) 123 Cal.App.3d
133, 138-139 (Alma W.)), is “going or coming” to the work site (in
which case liability turns on whether the employee-in-transit was
on a “special errand” that incidentally benefitted the employer)
(Halliburton Energy Services, Inc. v. Department of
Transportation (2013) 220 Cal.App.4th 87, 95-96); Jeewarat v.
Warner Bros. Entertainment Inc. (2009) 177 Cal.App.4th 427,
431), or is completely offsite (in which case liability turns more
generally on whether the employee’s activity was within the
scope of his employment, as articulated by one or more of the
tests recounted in this opinion). Because these various rules are
little more than specialized applications of one or more of the four
general tests, and because they are becoming increasingly quaint
as the line between “work site” and home becomes hopelessly
blurred in a post-pandemic world, we focus on the four main tests
rather than this intricate web of sub-rules.

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 a. Risk-focused test
This test focuses on whether the “risk” engendered by the
employee’s allegedly tortious conduct is “inherent in the working
environment” or ‘“‘“may fairly be regarded as typical of or broadly
incidental’ to the enterprise undertaken by the employer.””’
(Mary M., supra, 54 Cal.3d at p. 209, quoting Perez, supra, 41
Cal.3d at p. 968; Farmers, supra, 11 Cal.4th at p. 1003; Alma W.,
supra, 123 Cal.App.3d at p. 139; Baptist v. Robinson (2006) 143
Cal.App.4th 151, 160.) Given this focus, an employee’s allegedly
tortious conduct is deemed to be within the scope of employment
only if that conduct is required by, engendered by, or an
“‘outgrowth’” of his employment. (Lisa M., supra, 12 Cal.4th at
pp. 298, 300; Farmers, at p. 1005.) Put differently, there must be
“a ‘nexus’ between the employee’s tort and the employment.”
(Marez v. Lyft, Inc. (2020) 48 Cal.App.5th 569, 582.) This is why
an employee’s conduct is not within the scope of employment
merely because he “uses property or facilities entrusted to him
by” his employer. (Alma W., at p. 140.)
b. Foreseeability-focused test
As its name suggests, this test focuses on whether ‘“the
employee’s [allegedly tortious] []conduct could be reasonably
foreseen by the employer.”’ (Alma W., supra, 123 Cal.App.3d at p.
139, italics added.) For these purposes, the concept of
“foreseeability” has a different—and, significantly, a narrower—
definition than it does in tort law generally. Under this narrower
definition, an employee’s allegedly tortious conduct is sufficiently
foreseeable to be deemed within the scope of employment only if,
“in the context of the particular enterprise,” the employee’s
“conduct is not so unusual or startling that it would seem unfair
to include the loss resulting from it among other costs of the

14
employer’s business.” (Lisa M., supra, 12 Cal.4th at p. 302,
italics in original; Farmers, supra, 11 Cal.4th at pp. 1003, 1009;
Rodgers, supra, 50 Cal.App.3d at pp. 618-619.) As the italicized
language indicates, what matters is whether “the employee’s act
is foreseeable in light of the duties the employee is hired to
perform” (Alma W., at p. 142, italics added; Martinez v. Hagopian
(1986) 182 Cal.App.3d 1223, 1230), and hence whether the
plaintiff’s injury is the type of injury “that ‘“as a practical matter
[is] sure to occur in the conduct of the employer’s enterprise.”’”
(Lisa M., at p. 299, quoting Hinman, supra, 2 Cal.3d at p. 959.)
c. Benefit- and custom-focused test
This test focuses on whether the employee’s allegedly
tortious conduct “either” (1) “provided [some conceivable] benefit
to the employer” or (2) has otherwise become a “‘customary
incident of the employment relationship.’” (CACI No. 3724,
italics added; Rodgers, supra, 50 Cal.App.3d at p. 620, quoting
McCarty v. Workmen’s Comp. Appeals Bd. (1974) 12 Cal.3d 677,
681-683 (McCarty); Perez, supra, 41 Cal.3d at p. 969 [benefit to
employer is not required to impose vicarious liability].) Although
a benefit need only be “conceivable,” the benefit must
nevertheless be “‘sufficient enough to justify making the
employer responsible’” for the employee’s allegedly tortious
conduct. (Newland v. County of Los Angeles (2018) 24
Cal.App.5th 676, 686.)
d. Public policy-focused test
This test more explicitly focuses on how neatly a finding
that the employer should be vicariously liable for the employee’s
allegedly tortious conduct squares with the public policy
rationales animating the respondeat superior doctrine. Courts
have identified three rationales for the doctrine: “(1) to prevent

15
recurrence of tortious conduct; (2) to give greater assurance of
compensation for the victim; and (3) to ensure that the victim’s
losses will be equitably borne by those who benefit from the
enterprise that gave rise to the injury.” (Mary M., supra, 54
Cal.3d at p. 209; Perez, supra, 41 Cal.3d at p. 967; Lisa M., supra,
12 Cal.4th at p. 304; Farmers, supra, 11 Cal.4th at pp. 1013-
1014.) The various rationales are not hermetically sealed from
one another, as “vicarious liability is invoked to provide greater
assurance of compensation to victims” (the second rationale)
“where it is equitable to shift losses to the employer because the
employer benefits from the injury-producing activity and such
losses are, as a practical matter, sure to occur from the conduct of
the enterprise” (the third rationale). (Kephart, supra, 136
Cal.App.4th at p. 297.) Respondeat superior, however, is not
“merely a justification for reaching a ‘deep pocket’”; instead, all
three policy rationales are grounded in the “‘deeply rooted
sentiment that a business enterprise cannot justly disclaim
responsibility for accidents which may fairly be said to be
characteristic of its activities.’” (Rodgers, supra, 50 Cal.App.3d at
p. 618.)
Despite the different formulations of the scope-of-
employment standard, the courts articulating these tests all
agree that an employee’s tortious acts may qualify as within the
scope of employment—assuming they satisfy the pertinent test—
even if the employer did not authorize the employee’s conduct
(Perez, supra, 41 Cal.3d at p. 969), even if the employee acted
without the motive of serving the employer’s interest (Lisa M.,
supra, 12 Cal.4th at p. 297), and even if the employee engaged in
intentional (or even criminal) conduct (id. at pp. 296-297).

16
II. Analysis
Because plaintiffs in their operative complaint as well as in
their opposition to Silver’s summary judgment motion seek to
hold Silver liable on theories of direct liability as well as vicarious
liability, we will address both theories on appeal. We will then
discuss plaintiffs’ remaining arguments.
A. Direct liability
To hold Silver directly liable for Musgrove’s death,
plaintiffs need to establish either that (1) Silver placed Musgrove
in peril and failed to protect her from that very same peril (e.g.,
Regents, supra, 4 Cal.5th at p. 619), or (2) Silver has a special
relationship with Musgrove that otherwise obligates him to
protect her (e.g., Zelig, supra, 27 Cal.4th at p. 1129).
1. Placing in peril
Under the operative pleading that frames the issues on
summary judgment, plaintiffs seek to hold Silver liable for (1)
placing Musgrove in peril by furnishing her with (a) “an excessive
amount of alcohol” and (b) drugs, and (2) not preventing her from
engaging in the “dangerous activit[y]” of swimming in the lagoon
at night. The evidence before the trial court at the time of
summary judgment refuted the allegation that Silver “furnished”
Musgrove with drugs; to the contrary, the undisputed facts
showed that Silver did not supply anyone with cocaine, or have
any knowledge that anyone was ingesting it. At most, the
undisputed evidence showed that Silver furnished Musgrove with
alcohol in two ways—by allowing her to drink the wine served
with the meals prepared by Herold and by covering the cost of
any alcohol she purchased at the resort. This is insufficient, as a
matter of law, to establish liability. That is because our
Legislature has explicitly established that a private person

17
cannot be held liable in tort for furnishing alcohol to another
adult. (Civ. Code, § 1714, subd. (c) [“[N]o social host who
furnishes alcoholic beverages to any person may be held legally
accountable for . . . injury to [that] person . . . resulting from the
consumption of those beverages.”]; Bus. & Prof. Code, § 25602,
subd. (b) [same]; Allen v. Liberman (2014) 227 Cal.App.4th 46, 56
(Allen) [social host immunity also reaches hosts who do not
directly furnish but do not stop others from drinking alcohol they
make available].)
2. Special relationship between Silver and
Musgrove
As noted above, employers have a special relationship with
their employees, which can give rise to a duty to control those
employees to ensure that they do not harm third parties.
(Rest.3d Torts, § 40, subd. (b)(4).) This special relationship can
also give rise to a duty to protect those employees. (Brown, supra,
11 Cal.5th at p. 216 [“Relationships between . . . employers and
employees . . . give rise to an affirmative duty to protect.”].)
California law forecloses holding Silver liable for failing to
protect Musgrove by virtue of the special relationship between an
employer and employee. We come to this conclusion for three
reasons.
First, there may not be an employee-employer relationship
between Musgrove and Silver that gives rise to any special
relationship. That is because the undisputed facts show that
Musgrove was employed by Silver Pictures Entertainment, not
Silver himself. Plaintiffs also failed to adduce evidence bearing
directly on whether Silver Pictures Entertainment was an alter
ego of Silver.

18
 Second, and even if we assume that Musgrove was
employed by Silver, plaintiffs are seeking to hold Silver liable for
Silver’s own conduct in failing to protect her from the alcohol he
furnished or subsidized. This is not a viable theory because, as
noted above, California statutory law provides that a person
cannot be liable in tort for furnishing alcohol to another adult.
(Civ. Code, § 1714, subd. (c); Bus. & Prof. Code, § 26502, subd.
(b).) This statutory prohibition trumps any potential tort liability
that might otherwise come into being by virtue of any special
relationship obligating Silver to protect Musgrove. (Allen, supra,
227 Cal.App.4th at p. 50 [“special relationship, by itself, does not
negate the specific statutory social host immunity applicable to
these facts” (that is, when the special relationship obligates the
defendant to protect the injured party)]; cf. Childers v. Shasta
Livestock Auction Yard, Inc. (1987) 190 Cal.App.3d 792, 798
(Childers) [statutory immunity does not apply when the special
relationship obligates the defendant to control the tortfeasor].)
Third, and even if we assume that the special employment
relationship between Silver and Musgrove somehow supersedes
the immunity conferred by statute, Silver’s duty to protect his
employees is limited to while they are “at work” or otherwise in a
locale the employer controls. (Rest.3d Torts, § 40, subd. (b)(4);
Colonial Van & Storage, Inc. v. Superior Court (2022) 76
Cal.App.5th 487, 500-501.) Here, the undisputed facts show that
what Musgrove needed protection from was her further alcohol
consumption and ingestion of cocaine while in a private bungalow
after 10 p.m.; that she was not “at work” or undertaking any
work-related activities when she did so; and that Silver had no
control over any private bungalow at the resort other than his
own. On these facts, Silver had no employment-related duty to

19
protect Musgrove. The fact that Silver expensed the bungalow is
not enough as a matter of law. (Accord, Sakiyama v. AMF
Bowling Centers, Inc. (2003) 110 Cal.App.4th 398, 405-406
[business owner who leases premises not liable for injuries
sustained when lessees bring illegal drugs onto premises without
the owner’s knowledge, causing injury to third parties].)
B. Vicarious liability
To hold Silver vicariously liable for Musgrove’s death under
the theory articulated in the operative pleading that frames the
issues on summary judgment, plaintiffs need to establish that (1)
Herold engaged in negligent conduct that caused Musgrove’s
death, and (2) Herold was acting within the scope of his
employment at the time of his negligent conduct. As noted above,
a person is negligent for placing a third party in a position of
peril and then failing to protect them from that peril. (Regents,
supra, 4 Cal.5th at p. 619; Williams, supra, 34 Cal.3d at p. 23;
Zelig, at p. 1128; Weirum, supra, 15 Cal.3d at p. 48.) Construing
the evidence in the light most favorable to plaintiffs, we
independently agree with the trial court’s conclusion that there
exist disputes of material fact regarding whether Herold engaged
in negligent conduct by placing Musgrove in peril (by supplying
her with alcohol and, allegedly, cocaine in the late evening while
knowing that she enjoyed swimming at night in the lagoon), and
then failing to protect her from that peril. (Accord Carlsen v.
Koivumaki (2014) 227 Cal.App.4th 879, 894-895 (Carlsen)
[defendant is negligent for transporting a visibly intoxicated
person to a hillside cliff and then failing to protect him from
falling]; cf. Civ. Code, § 1714, subd. (c) [merely furnishing alcohol
cannot be a basis for liability].) Thus, assuming it to be true that
Herold placed Musgrove in peril and failed to protect her, Silver’s

20
vicarious liability for Musgrove’s death turns on whether Herold
was acting within the scope of his employment when he engaged
in that tortious conduct.
As explained below, we independently agree with the trial
court’s conclusion that the undisputed (or assumed) facts
establish as a matter of law that Herold was not acting within
the scope of his employment under any of the pertinent tests.
1. Risk-focused test
Silver employed Herold as his family’s personal chef; for
the August 2015 trip, Herold’s job was to purchase groceries and
then to prepare lunches and dinners for the members of Silver’s
entourage who accompanied him in Bora Bora. Herold’s conduct
in meeting up with Musgrove at 10 p.m. in one of their private
bungalows to consume wine and cocaine was not required by,
engendered by, or any outgrowth of Herold’s job as Silver’s chef.
(Lisa M., supra, 12 Cal.4th at pp. 298, 300.) Thus, the risk of
harm to Musgrove attendant to Herold’s conduct in placing her in
peril and then failing to protect her is not, as a matter of law,
“‘“inherent in [his] working environment”’” and cannot ‘“fairly be
regarded as typical of or broadly incidental to”’ Silver’s enterprise
of employing Herold as his family’s personal chef. (Mary M.,
supra, 54 Cal.3d at p. 209; Farmers, supra, 11 Cal.4th at p. 1033;
Alma W., supra, 123 Cal.App.3d at p. 139.)
Plaintiffs resist this conclusion, arguing that Herold sent
an email to Musgrove on the evening of August 18 from the
kitchen at a time when he was still preparing dinner, such that
all of Herold’s conduct later that night was necessarily an
“outgrowth” of that initial email. This argument rests on a
misreading of the test. The pertinent question is whether the
employee’s negligent conduct (and its attendant risk) was an

21
outgrowth of his job, not whether a plaintiff can identify
something the employee did while at work that may have set the
stage for his subsequent negligent conduct. Herold’s flirtation
with Musgrove had nothing to do with his job duties as Silver’s
personal family chef. What is more, the fact that Herold met
Musgrove on prior trips where they were brought together
because Herold happened to be Silver’s personal family chef and
Musgrove happened to be Silver’s executive assistant does not
mean that Herold’s conduct in the course of their personal
relationship is an outgrowth of Herold’s employment as a chef.
2. Foreseeability-focused test
Herold’s conduct in furnishing Musgrove with additional
alcohol and with cocaine while aware that she might try to go
swimming was not, as a matter of law, a “reasonably foreseeable”
result of his employment as Silver’s personal family chef. That is
because, “in the context of th[at] particular enterprise” of working
as a chef, his conduct during his personal interaction with
Musgrove is “so unusual or startling that it would seem unfair to
include the loss resulting from it among other costs of” Silver’s
business of employing Herold as a chef. (Lisa M., supra, 12
Cal.4th at p. 302.) In other words, we conclude as a matter of law
that the type of injuries Musgrove suffered were not “‘“as a
practical matter . . . sure to occur in the conduct”’” of Silver’s
employment of Herold as his family’s personal chef and the duties
that being a chef entailed. (Id. at p. 299; Alma W., supra, 123
Cal.App.3d at p. 144.)
Plaintiffs urge that Herold’s conduct was foreseeable
because Silver either never adopted any anti-drug/anti-alcohol
policy or never communicated such a policy to Herold. This
argument relies on the concept of foreseeability as it is used for a

22
test of negligence in general, rather than the more specialized
and narrower concept of foreseeability applicable when imposing
respondeat superior liability and which, as noted above, views
foreseeability through the prism of the employer’s enterprise and
the employee’s duties. (Rodgers, supra, 50 Cal.App.3d at pp. 618-
619 [contrasting the two tests].) The various definitions of
foreseeability are not interchangeable. Tort law is more like
baking than cooking; there are specific doctrines, each with its
own recipe and whose ingredients cannot be casually swapped.
When viewed through the proper prism, Musgrove’s tragic death
is not a foreseeable consequence of Herold’s work as Silver’s chef.
3. Benefit- and custom-focused test
Silver is also not vicariously liable, as a matter of law,
under the test that examines whether the employee’s tortious
conduct (1) conceivably benefited the employer or (2) was a
customary incident of the employment relationship. (CACI No.
3724; Rodgers, supra, 50 Cal.App.3d at p. 620.) That is because
Herold’s conduct in imperiling Musgrove by furnishing her
additional alcohol and cocaine did not in any conceivable way
benefit Silver’s employment of Herold as his family’s personal
chef. For much the same reason, Herold’s imperiling conduct was
not a “customary incident” of the employment relationship; there
is no evidence that anything like this had ever happened before
with anyone in Silver’s employ. What is more, the fact that
Herold happened to be at the resort where he was providing his
chef services for Silver and that Herold had the chance to use his
free access to amenities to furnish the alcohol Musgrove drank is
insufficient to establish vicarious liability. (Alma W., supra, 123
Cal.App.3d at p. 140 [employee’s “presence at the place of
employment before, during, or after the commission of the

23
offense” and “[t]he mere fact that an employee has the
opportunity to abuse the facilities necessary to the performance
of his duties” each insufficient to create vicarious liability].)
Plaintiffs urge that they have established triable issues of
material fact under this test because Silver’s practice of
furnishing alcohol to Herold at meals and allowing Herold to
expense any further alcohol consumption while traveling with
Silver benefitted Silver because it was a job perquisite that kept
Herold happy (and hence in Silver’s employ) and was a customary
incident of Herold’s employment. We disagree. Plaintiffs’
argument ignores that what matters for this analysis is whether
the employee’s tortious conduct benefits the employer or is a
customary part of the employment relationship. According to the
allegations of plaintiffs’ operative complaint, Herold’s tortious
conduct was plying Musgrove with alcohol and cocaine and
allowing her to swim. That conduct is different from—and far
more egregious than—Herold’s conduct in simply drinking the
alcohol Silver supplied or subsidized. It is analytically
inappropriate to conflate the two.
4. Public policy-focused test
Treating Herold’s conduct as outside the scope of his
employment as Silver’s chef is also warranted as a matter of law
under the test that looks directly at the three main public policy
rationales animating respondeat superior liability. Although
holding Silver liable for Herold’s conduct in imperiling Musgrove
would undoubtedly make strides toward “prevent[ing the]
recurrence of [similar] tortious conduct” and “giv[ing] greater
assurance of compensation [to] the victim” (Mary M., supra, 54
Cal.3d at p. 209), these two factors will always counsel in favor of
imposing liability because they will be furthered whenever a

24
defendant is held vicariously liable for a plaintiff’s injury. The
critical policy consideration is whether holding Silver liable for
Herold’s conduct in imperiling Musgrove would “ensure that [her
parents’] loss[] will be equitably borne by those who benefit from
the enterprise that gave rise to the injury.” (Ibid., italics added.)
Whether “it is equitable to shift losses to the employer” turns on
whether “the employer benefit[ted] from the injury-producing
activity and [whether] such losses are, as a practical matter, sure
to occur from the conduct of the enterprise.” (Kephart, supra, 136
Cal.App.4th at p. 297.) Where the employee’s “injury-producing
activity” is ‘“simply too attenuated”’ from his duties for “the
enterprise,” there is no vicarious liability as a matter of law. (Id.;
Farmers, supra, 11 Cal.4th at p. 1017.) Here, it is inequitable to
shift the burden of loss onto Silver because Silver did not benefit
from Herold’s “injury-producing activity” of supplying Musgrove
with more alcohol and with cocaine late at night before she was
likely to go swimming, and because this conduct is not, “as a
practical matter, sure to occur from” Herold’s employment as
Silver’s personal family chef. In sum, Herold’s malfeasance and
nonfeasance is “simply too attenuated” from his job duties as a
chef to make it equitable to tag Silver with liability arising out of
Herold’s tortious conduct.
Plaintiffs nonetheless suggest that it is equitable to hold
Silver liable for Herold’s late-night activities because Herold, as
Silver’s personal family chef, has no fixed working hours and
hence was effectively on-call to prepare meals at any time. As a
result, plaintiffs reason, it is fair to hold Silver vicariously liable
even for Herold’s late-night private conduct with others like
Musgrove. This argument is a nonstarter, as courts have
“expressly reject[ed] any suggestion that reason, fairness or

25
public policy necessarily demands 24-hour employer liability for
the conduct of employees who are on-call 24 hours a day.” (Le
Elder v. Rice (1994) 21 Cal.App.4th 1604, 1607; id. at p. 1609
[“Public policy would be ill-served by a rule establishing 24-hour
employer liability for on-call employees, regardless of the nature
of the employee’s activities at the time of an accident.”];
Sunderland v. Lockheed Martin Aeronautical Systems Support
Co. (2005) 130 Cal.App.4th 1, 12 [same].) Applying this “no
liability” rule makes particular sense here, where the employer
had no control over Herold’s injury-producing activities and
where those activities are wholly unrelated to his work duties as
Silver’s chef.
C. Plaintiffs’ remaining arguments
Plaintiffs raise one further category of arguments—namely,
that precedent (and four cases in particular) dictates that the
trial court’s summary judgment ruling is wrong. As explained
below, we disagree.
First, plaintiffs cite Carlsen, supra, 227 Cal.App.4th 879.
In Carlsen, a group of ministry students took their “clearly
intoxicated” friend to an after-party on the edge of a high cliff.
When he suffered injuries stumbling over that cliff, he sued the
ministry students. Carlsen held that summary judgment for the
students was inappropriate on these facts because they put the
plaintiff in a position of peril by taking him to a cliffside
gathering when the plaintiff was obviously drunk, which
obligated them to protect him. (Id. at pp. 894-895.) Carlsen
supports what we have assumed to be true in this case based on
the disputes of material fact—namely, that Herold had a duty to
protect Musgrove after he put her in a position of peril by giving
her alcohol and cocaine. But Carlsen says nothing about whether

26
Silver should be held vicariously liable for Herold’s negligence (as
Carlsen did not deal with employer-employee relationships at
all). And Carlsen says nothing about whether Silver should be
held directly liable (as there is no evidence in this case that Silver
imperiled Musgrove beyond furnishing or subsidizing her alcohol
intake, which is an act for which he cannot be found liable by
statutory law).
Second, plaintiffs cite Rodgers, supra, 50 Cal.App.3d 608.
In Rodgers, two employees of a contractor suffered injuries in a
melee with two drunken employees of a subcontractor. The
subcontractor had maintained an ironically named “dry house” on
the work premises where it offered its employees alcohol to
encourage them to stay onsite after their work shifts in case the
subcontractor needed to recruit additional help for the round-the-
clock job. (Id. at p. 615.) The melee grew out of a dispute about
the proper operation of work equipment. (Id. at pp. 615-616.)
When the injured employees sued the subcontractor (on the
theory that it was vicariously liable for the conduct of its
employees), Rodgers held that it was error to grant summary
judgment for the subcontractor because its provision of alcohol at
the “dry house” had become “customary” and because the
employees’ “continued presence after completion of their work
shift was ‘conceivably’ of some benefit to” the subcontractor
because “[i]t was a convenience to [the subcontractor] to be able
to recruit additional help by simply contacting employees
remaining in or about the job site.” (Id. at p. 620.) Rodgers did
no more than apply the benefit- and custom-focused test, which
we have already found to dictate a finding for Silver as a matter
of law. Unlike the subcontractor in Rodgers who supplied the
alcohol that was the direct impetus of the melee that caused the

27
plaintiffs’ injuries, Silver in no way made it a custom or
benefitted from Herold’s conduct in supplying Musgrove with
alcohol and drugs during a late-night rendezvous in a private
bungalow.
Third, plaintiffs cite Childers, supra, 190 Cal.App.3d 792.
In Childers, an auction yard “routinely furnished alcohol on the
premises to customers and employees to encourage good customer
relations.” (Id. at p. 806.) When a third party was injured by an
employee who partook of the auction yard’s alcohol and sued the
auction yard, Childers held that the employer’s conduct in
furnishing alcohol in order to further its business enterprise was
sufficient to ward off summary judgment on a theory of vicarious
liability. (Id. at pp. 805-806.) Childers is inapposite. Silver’s
payment of all of his guests’ expenses, including Herold’s alcohol
tabs, has no connection with and certainly does not further the
enterprise of Silver’s employment of Herold as his personal
family chef.
Lastly, plaintiffs cite Purton v. Marriott International, Inc.
(2013) 218 Cal.App.4th 499 (Purton). In Purton, a hotel hosted a
company party where it served alcohol to its employee-attendees.
When one of its employees killed a third party in an auto accident
while still drunk from alcohol imbibed at the party, the third
party’s family sued the hotel under a vicarious liability theory.
Purton held that summary judgment for the hotel was not
warranted; the hotel could be liable, Purton reasoned, because
the party was “a ‘thank you’ for its employees” and an exercise in
“improving employee morale and furthering employer-employee
relationships” that directly benefitted the hotel’s business
enterprise. (Id. at pp. 509-510; accord McCarty, supra, 12 Cal.3d
at p. 682 [office party where alcohol served benefits company by

28
“foster[ing] company camaraderie” and “provid[ing] an occasion
for the discussion of company business”]; Harris v. Trojan
Fireworks Co. (1981) 120 Cal.App.3d 157, 159, 163-164 (Harris)
[office party where alcohol served benefits company by
“improv[ing] employer/employee relations,” “providing
[employees] with [an] opportunity for social contact,” and
constituting a “fringe benefit” that “increase[s] the continuing of
employment”].)
This case is different: Silver did not host a company party
where he furnished the alcohol and drugs ingested by Herold and
Musgrove; he subsidized alcohol, and Herold went off on his own
time and in his own space to consume more substances with
Musgrove. Even if we ignore this critical difference, plaintiffs
continue that Silver’s “business” benefitted by subsidizing
Herold’s alcohol intake because such a perquisite was likely to
make Herold happier (as the sole employee of Silver’s enterprise
of hiring a chef) and hence likely to make him stick around longer
as Silver’s personal family chef. This is not what Purton holds,
and McCarty and Harris involved additional benefits to the
employer such as providing opportunities for camaraderie
between employees and an opportunity to discuss company
business. We decline to read Purton, McCarty, or Harris as
holding that any perquisite that an employer offers its employee
is sufficient, by itself, to justify the imposition of vicarious
liability because such a rule would vastly expand such liability to
apply to just about every employee in the workforce. This would
ride roughshod over the carefully balanced policy inquiry that
animates—and circumscribes—the doctrine of respondeat
superior.

29
 DISPOSITION
The judgment is affirmed. Silver is entitled to his costs on
appeal.
CERTIFIED FOR PUBLICATION.

______________________, J.
HOFFSTADT

We concur:

_________________________, P. J.
LUI

_________________________, J.
ASHMANN-GERST

30