Department 30, Spring Street Courthouse

January 5, 2022 

19STCV36149

Motion for Summary Judgment filed by Defendant No Ordinary Moments, Inc.

The motion is denied.  

Moving party to provide notice.

This is an action for negligence arising from a vehicle collision which took place in September 2018. Plaintiff Elise Young filed her Complaint against Defendant Lester Barlow Cook Salcedo on October 9, 2019.

On February 1, 2021, Plaintiff filed a Doe Amendment naming No Ordinary Moments, Inc. as a Defendant in this action.

On June 14, 2021, No Ordinary Moments filed a Cross-Complaint against Plaintiff Elise Young.

On May 27, 2022, Defendant No Ordinary Moments, Inc. (“NOM”) filed its motion for summary judgment.

NOM moves for summary judgment on the grounds that Defendant Salcedo was not in the course and scope of his employment under the going and coming rule at the time of the incident.

Plaintiff argues that NOM remains liable under the vehicle use exception to the going and coming rule.

NOM argues that the vehicle use exception does not apply because it only required its employees to have reliable transportation to report for work.  

The purpose of a motion for summary judgment “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c(c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) 

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established.” (Code Civ. Proc., section 437c(p)(2).) “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467.) 

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi, supra, 159 Cal.App.4th at p. 467; see also Code Civ. Proc., section 437c(c).) 

NOM moves for summary judgment on the grounds that at the time of the accident Salcedo was not working within the course and scope of his employment under the going and coming rule. 

“‘Under the ‘going and coming’ rule, an employee going to and from work is ordinarily considered outside the scope of employment so that the employer is not liable for his torts.’” (Halliburton Energy Services, Inc. v. Department of Transportation (2013) 220 Cal.App.4th 87, 95-96 (quoting Hinman v. Westinghouse Electric Co. (1970) 2 Cal.3d 956, 961).) “The rationale for the rule is that the employment relationship is suspended from the time the employee leaves work until he or she returns because an employee ordinarily renders no service to the employer while traveling.” (Pierson v. Helmerich & Payne Internat. Drilling Co. (2016) 4 Cal.App.5th 608, 618.)   

“One exception to the going and coming rule has been recognized when the commute involves ‘‘an incidental benefit to the employer, not common to commute trips by ordinary members of the work force.’” (Halliburton Energy Services, Inc. v. Department of Transportation (2013) 220 Cal.App.4th 87, 96 (quoting Jeewarat v. Warner Bros. Entertainment, Inc. (2009) 177 Cal.App.4th 427, 435-36) (citation omitted in original).) “When the employer incidentally benefits from the employee’s commute, that commute may become part of the employee’s workday for the purposes of respondeat superior liability.” (Id.) “The incidental benefit exception has been applied when the employer furnishes, or requires the employee to furnish, a vehicle for transportation on the job, and the negligence occurs while the employee is traveling t or from work in that vehicle.” (Id.) 

Here, Defendant’s motion shows that at the time of the accident, Salcedo was driving from his home in Wilmington, California to his client’s home in Rancho Palos Verdes. (UMF Nos. 1-2.) Salcedo was employed with NOM as a personal attendant for the developmentally disabled. (UMF No. 3.) Salcedo had driven to that client’s residence 3 or 4 times a week. (UMF No. 4.) That client was his only client that day. (UMF No. 5.) At the time of the accident, Salcedo was making a U-turn to park his car at the client’s residence. (UMF No. 6.) The subject accident took place before he began working that day. (UMF No. 7.) After the accident, Salcedo worked his entire shift and then drove directly home. (UMF No. 8.)

NOM primarily relies on Salcedo’s deposition testimony in support of its motion:

“Q:…Before I ask you some more questions about that, what is No Ordinary Moment about? What do they do?

A: We take care of adults and children with developmental – that are developmentally disabled. So we go to their home and watch over them, make sure that they are safe, not hurting themselves and stuff like that.

Q: So you actually drive to the home of the customers of your employer; correct?

A:Correct.”

(Salcedo Depo, 11:14-21.)

“Q: Okay. What car were you driving?

A: I was driving a 2015 Kia optima.

Q: Did you buy the car brand new?

A: I purchased it...”

(Salcedo Depo, 13:21-24.)

NOM’s evidence shows that Salcedo was driving to a NOM client’s house at the time of the accident. Salcedo’s deposition testimony shows that he drove regularly to clients’ homes to perform services as a personal attendant. This is not the common commute contemplated by the going and coming rule because Salcedo traveled directly to his clients’ homes rather than to a single office. NOM received an incidental benefit from Salcedo’s commute because its business is in-home care and Salcedo traveled to each client’s home using his own vehicle. Because it appears Salcedo agreed to use his own vehicle to transport himself to his clients’ homes, NOM fails to meet its burden of showing no triable issues of material fact exist over whether the going and coming rule applies.

Even if NOM did meet its burden, Plaintiff offers additional evidence showing NOM required its employees to furnish their own vehicles and incidentally benefitted from its employees’ commutes. Plaintiff provides the deposition of Luis Pena of NOM, who testifies the following:

“Q: Are the personal attendants at NOM required to go supervise your consumers at their residences or outside the offices of NOM?

A: Yes.” 

(Pena Depo., 17:17-20.)

“Q: What about geography, is that a factor? In other words, location.

A: Well, we tell them in orientation that we serve people in all 34 cities in Orange County. And back then we were serving the Harbor Regional Center area, which is Long Beach, LAX, et cetera, so they may be assigned to a case in any of these areas, and they needed to be able to get there.

Q: So you did require them to be able to go to any city in Orange County and also you said, what, Long Beach? …

A: The Harbor Regional Center includes Long Beach, Cerritos, Bellflower, those areas all the way up to Palos Verdes and beyond actually. And the Answer is yes.”

(Pena Depo., 21:12-24.)

“Q: But part of the duties and responsibilities of the personal attendant is to potentially transport a consumer for various reasons, not just a doctors appointment, true?

A: Yes.

Q: They could take them potentially out to the park or just for leisure reasons as well, correct?

A: In 2018, yes. Now, no.”

(Pena Depo., 23:5-11.)

Additionally, Plaintiff provides a section of NOM’s Handbook which requires that employees possess and maintain an operating, legal vehicle throughout his or her employment at NOM. (Elias Decl., Exh. E.) Plaintiff’s evidence shows that NOM relied on its employees’ vehicles to transport them to cities throughout Orange County and Long Beach to provide in-home care to clients. Employees were required to have working vehicles and could not have carried out their duties without their vehicles. Thus, there is a triable issue of material fact over whether the incidental benefit exception to the going and coming rule applies here. NOM’s motion for summary judgment is denied.