Elements for Proving the Existence of Agency in a Tort Cause of Action

Civil Code section 2295 provides: “An agent is one who represents another, called the principal, in dealings with third persons. Such representation is called agency.”

“The existence of an agency is a factual question within the province of the trier of fact whose determination may not be disturbed on appeal if supported by substantial evidence.” (L. Byron Culver & Associates v. Jaoudi Industrial & Trading Corp. (1991) 1 Cal.App.4th 300, 305 [1 Cal.Rptr.2d 680], internal citation omitted.)

While, an agency must rest upon an agreement. (D’Acquisto v. Evola (1949) 90 Cal.App.2d 210, 213 [202 P.2d 596].), “Agency may be implied from the circumstances and conduct of the parties.” (Michelson v. Hamada (1994) 29 Cal.App.4th 1566, 1579 [36 Cal.Rptr.2d 343], internal citations omitted.) [emphasis added]

“Whether a person performing work for another is an agent or an independent contractor depends primarily upon whether the one for whom the work is done has the legal right to control the activities of the alleged agent. . . . It is not essential that the right of control be exercised or that there be actual supervision of the work of the agent. The existence of the right of control and supervision establishes the existence of an agency relationship.” (Malloy v. Fong (1951) 37 Cal.2d 356, 370 [232 P.2d 241], internal citations omitted.)

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