## Facts

- Juana Mercado and her infant daughter were crossing Lankershim Boulevard when they were struck by a vehicle driven by Bryce Wicks, a Los Angeles Police Department officer.
- Before the collision, Wicks attended an off-site retirement party for two LAPD employees; some attendees carpooled from the police station to the party.
- The party was still going around 7:00 p.m., though many guests had left; the collision occurred at about 7:50 p.m.
- Wicks’s most direct route home from the party did not take him onto Lankershim Boulevard, and the record did not clearly explain why he was there.
- Lankershim Boulevard was in the same general neighborhood as the police station, which Mercado relied on to argue Wicks may have been returning to the station after the party.
- Mercado sued Wicks for negligence and sued the City of Los Angeles under respondeat superior, arguing Wicks was acting within the scope of employment based on a “special errand” theory tied to the retirement party and an alleged return toward the station.
- Wicks died before trial; the jury found Wicks negligent, and Mercado settled separately with Wicks’s estate.
- The jury deadlocked on whether Wicks was acting within the scope of employment at the time of the collision.
- After the deadlock, the trial court entered a judgment of nonsuit against Mercado’s claim against the City.
- On appeal, Mercado asked the court to take judicial notice of a map and related geographic facts, including that Lankershim Boulevard is near the police station.

## Issues

1. Whether the trial court could enter a judgment of nonsuit in favor of the City after the jury found Wicks negligent but deadlocked on scope of employment.
2. Whether the evidence permitted a jury determination that Wicks was acting within the scope of employment under California’s special-errand doctrine and respondeat superior rules.
3. Whether the appellate court could take judicial notice of maps or geographic facts offered for the first time on appeal to support an inference about Wicks’s route and purpose.

## Decision

- The Court of Appeal held the judgment of nonsuit was procedurally defective in the posture presented (a negligence verdict against the employee and a hung jury on scope of employment).
- The court ruled that scope of employment in this record turned on competing inferences and could not be resolved against Mercado through the nonsuit procedure used after the jury’s deadlock.
- The court limited the use of appellate judicial notice, declining to treat new map/geography materials as a substitute for trial evidence or as a basis for resolving disputed inferences about where Wicks was going and why.
- The judgment for the City was reversed and the matter returned for further proceedings consistent with the procedural error identified.

## Legal Principles

- A nonsuit is proper only when, viewing the evidence most favorably to the plaintiff, no reasonable trier of fact could find for the plaintiff.
- When a case has been tried to a jury and the jury cannot reach a verdict on a material issue, the court must use procedures designed for deadlocked juries (such as mistrial and retrial on the unresolved issue), not a nonsuit mechanism that functions as a post-verdict cut-off.
- Under respondeat superior, an employer may be vicariously liable for an employee’s torts committed within the scope of employment.
- The “going and coming” rule generally excludes ordinary commuting from scope of employment, but the “special errand” exception may apply when the employee’s travel is tied to a work-related task or an event sufficiently connected to the employment relationship, including some employer-related social functions.
- A deviation from a special errand does not automatically remove the employee from the scope of employment; whether a deviation is minor or amounts to abandonment is commonly a fact question.
- An appellate court’s power to take judicial notice is limited; it cannot be used to rebuild the evidentiary record on appeal or to resolve disputed factual questions by drawing inferences that were not established through the trial process.

## Conclusion

De La Cruz v. City of Los Angeles reversed a judgment entered for the City after a jury found the officer negligent but could not agree on scope of employment, holding that the nonsuit procedure used was improper and that scope-of-employment inferences tied to a retirement-party “special errand” theory were for the factfinder, not to be decided through new map-based materials noticed for the first time on appeal.


De La Cruz v. City of Los Angeles, 2002 WL 358825 (2002)