Restaurant held liable when employee gets drunk at bar after shift. $1.5 million. San Diego County.


Course and scope of employment is deciding factor in verdict against San Diego restaurant.

The Case

  • Case Name: Cheng v. Quintanilla, et al.
  • Court and Case Number: San Diego Superior Court Case / 37-2013-00073624-CU-PA-CTL
  • Date of Verdict or Judgment: Friday, February 05, 2016
  • Date Action was Filed: Wednesday, October 30, 2013
  • Type of Case: DUI Accident, Employment, Vehicles - vs. Pedestrian
  • Judge or Arbitrator(s): Hon. Richard E.L. Strauss
  • Plaintiffs:
    Kai-Yen Cheng, 24, exchange student from Taiwan.
  • Defendants:
    On the Border, LP (OTB Mission Valley Restaurant, LP)
  • Type of Result: Jury Verdict

The Result

  • Gross Verdict or Award: $1,546,618.27
  • Award as to each Defendant:

    The jury found Quintanilla to be acting in the course and scope of employment at the time of negligent consumption of alcohol, and found Quintanilla's employer, On the Border, liable.

    $1,546,618.27 as to defendant On the Border Restaurant.

  • Contributory/Comparative Negligence: None.
  • Economic Damages:


  • Non-Economic Damages:


  • Punitive Damages:


  • Trial or Arbitration Time: 2 weeks.
  • Jury Deliberation Time: 2 days.

The Attorneys

  • Attorney for the Plaintiff:

    Foldenauer Law Group by Sean M. Foldenauer, San Diego.

    Gomez Trial Attorneys by John H. Gomez, San Diego.

  • Attorney for the Defendant:

    Yoka & Smith by Christopher Faenza and Andy Mendoza, Los Angeles.

The Experts

  • Plaintiff’s Medical Expert(s):
    Harish Holsaker, M.D., orthopedic surgery. San Diego.
    Munish Batra, M.D., plastic surgery, San Diego.
  • Defendant's Medical Expert(s):

    Richard Greenfield, M.D., orthopedic surgery, San Diego.

  • Plaintiff's Technical Expert(s):
    Stephen Plourd. accident reconstruction, San Diego.
    Darrell Clardy, forensic toxicology, Orange County.

Facts and Background

  • Facts and Background:

    Just after midnight on the morning of December 9, 2012, Vincent Quintanilla weaved out of his lane and struck plaintiff from behind at approximately 40 to 50 miles per hour. Plaintiff was riding a skateboard in a well-lit bike lane near San Diego State University. Four minutes before the collision, a caller called 911 and reported the driver as "obviously drunk," and "zig zagging all over the road." 

    Vincent Quintanilla was coming home from work at On the Border restaurant where he had worked as a food runner. Quintanilla had sat in the On the Border bar area for over three hours consuming margaritas before getting behind the wheel. It was Quintanilla's 24th birthday and he was celebrating with a half dozen co-workers or more. 


  • Plaintiff's Contentions:

    That Quintanilla was acting in the course and scope of his employment with On the Border when he became intoxicated; that his intoxication was a substantial factor in causing the harm after he left the restaurant. 

    That the restaurant was responsible because it regularly allowed its employees to drink alcohol after work on the premises and the consumption benefitted the restaurant monetarily, provided a place for of comradery, and made the bar area appear more inviting to customers.



  • Defendant's Contentions:

    The employee/driver, Vincent Quintanilla, was dismissed by plaintiff on eve of trial for a waiver of costs.

    Defendant restaurant claimed that Quintanilla had clocked out from his shift and changed out of his uniform, so he was allowed to drink like any other customer. Defendant restaurant also contended that Quintanilla was not intoxicated when he left the restaurant.

Injuries and Other Damages

  • Physical Injuries claimed by Plaintiff:

    Broken fibula, torn anterior cruciate ligaments and meniscus, multiple lacerations.

Demands and Offers

  • Plaintiff §998 Demand: $1,250,000
  • Defendant §998 Offer: $15,000

Additional Notes

The employee/driver, Vincent Quintanilla, was dismissed by plaintiff on eve of trial for a waiver of costs.

Over defense objections, the Judge instructed the jury on CACI 3726. Social or Recreational Activities:

Social or recreational activities that occur after work hours are within the scope of employment if:

(a) They are carried out with the employer's stated or implied permission; and(b) They either provide a benefit to the employer or have become customary. 
The Judge denied the restaurant’s request for a Dram Shop jury instruction according to California Civil Code section 1714. Here is the legal authority: Sources and Authority

This aspect of the scope-of-employment analysis was expressly adopted for use in respondeat superior cases in Rodgers v. Kemper Construction Co. (1975) 50 Cal.App.3d 608, 620 [124 Cal.Rptr. 143], and reiterated in Childers v. Shasta Livestock Auction Yard, Inc.(1987) 190 Cal.App.3d 792, 804 [235 Cal.Rptr. 641]. It is derived from the workers' compensation case of McCarty v. Workmen's Compensation Appeals Bd. (1974) 12 Cal.3d 677, 681-683 [117 Cal.Rptr. 65, 527 P.2d 617].)

"[W]here social or recreational pursuits on the employer's premises after hours are endorsed by the express or implied permission of the employer and are 'conceivably' of some benefit to the employer or, even in the absence of proof of benefit, if such activities have become 'a customary incident of the employment relationship,' an employee engaged in such pursuits after hours is still acting within the scope of his employment." (Rodgers, supra, 50 Cal.App.3d at 620.)

McCarty has been overruled by statute in the context of workers' compensation (see Lab. Code, § 3600(a)(9)). However, courts have acknowledged that "it has been adopted as a test in establishing liability under respondeat superior." (West American Insurance Co. v. California Mutual Insurance Co. (1987) 195 Cal.App.3d 314, 322 [240 Cal.Rptr. 540].)