Tuesday, October 22, 2013

Not a Question of Law, But We'll Decide it Anyway

State of California ex re Department of California Highway Patrol v. Superior Court, No. G047922 (D4d3 Oct. 15, 2013)

This opinion reversing a denial of summary judgment, published at the petitioner’s request under Rule of Court 8.1105(c), mostly deals with whether a tow truck driver is an employee of the Highway Patrol for the purposes of respondeat superior. In denying the Highway Patrol’s summary judgment motion, the trial court had certified the question under Code of Civil Procedure § 166.1, which permits a trial judge to “certify a controlling question of law as to which there are substantial grounds for difference of opinion, appellate resolution of which may materially advance the conclusion of the litigation.” But in a footnote, the court of appeal determines that the issue presented—whether or not the defendant was an employee—is not a “controlling question of law” and thus interlocutory review under §166.1 is inappropriate. In any event, the court considers the appeal as a writ and orders the court on remand to grant the motion.

Writ granted.

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