Judge: John C. Gastelum, Case: 22-01242586, Date: 2023-12-07 Tentative Ruling
Motion for Summary Judgment and/or SAI
Tentative Ruling: Defendant M. Lehman Enterprises dba Domino’s Pizza (“Defendant”) moves for summary judgment against Plaintiffs Nolan Heyer and Cierra Valencia (“Plaintiffs”) on the ground that Defendant Hector Sosa (“Sosa”) was not acting within the scope of his employment at the time of the accident underlying this action and the incidental benefit exception does not apply.
Defendant argues that its employee, Sosa, was on his meal break and driving to purchase himself food at the time of the accident. Because his trip was for a purely personal purpose, Defendant contends Sosa substantially deviated from his employment duties such that the incidental benefit exception to the going and coming rule does not apply.
Plaintiffs argue there is a genuine dispute as to whether Sosa was delivering pizzas at the time of the accident. They also argue that that Sosa’s trip should be considered a minor and foreseeable deviation that would not remove him from the course and scope of his employment.
“The doctrine of respondeat superior holds an employer liable for torts of its employees committed within the scope of their employment.” (Moreno v. Visser Ranch, Inc. (2018) 30 Cal.App.5th 568, 575.) However, under the “going and coming” rule, an employer will not be held liable for the torts of an employee when the employee is going to and from work. (Halliburton Energy Services, Inc. v. Department of Transportation (2013) 220 Cal.App.4th 87, 95-96.)
“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.” [Citation.]’ ” (Id. at p. 96.) “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 to or from work in that vehicle.” (Ibid.) “Where the incidental benefit exception applies, the employee’s commute directly between work and home is considered to be within the scope of employment for respondeat superior purposes. Minor deviations from a direct commute are also included, but there is no respondeat superior liability if the employee substantially departs from the employer’s business or is engaged in a purely personal activity at the time of the tortious injury.” (Id. at p. 97.)
The goal of the incidental benefit rule is to extend an employer’s liability or obligation beyond the employer’s premises when an employee is required to drive his or her car for purposes of employment. As explained by the California Supreme Court in Smith v. Workmen’s Comp. App. Bd. (1968) 69 Cal.2d 814, where the Court held that an accident that occurred when an employee was driving his car to the employer’s premises was not shielded by the going and coming rule, “the employer clearly benefited from [the employee’s] bringing the car to work. Indeed, an employer must be conclusively presumed to benefit from employee action reasonably directed towards the execution of the employer’s orders or requirements. An employer cannot request or accept the benefit of an employee’s services and concomitantly contend that he is not ‘performing service growing out of and incidental to his employment.’ ” (Id. at p. 820.)
Further, “ ‘acts necessary to the comfort, convenience, health, and welfare of the employee while at work, though strictly personal to himself and not acts of service, do not take him outside the scope of his employment.’ ” (Lazar v. Thermal Equipment Corp. (1983) 148 Cal.App.3d 458, 465.) For example, in Moradi v. Marsh USA, Inc. (2013) 219 Cal.App.4th 886, the employee was pursuing a personal objective by stopping for frozen yogurt and planning to attend a yoga class. (Id. at p. 904.) However, the employee’s personal pursuits were not so unusual or startling that they could be considered a substantial deviation from the employer’s business. (Id. at p. 905.) Rather, the court found them to be a foreseeable, minor deviation and necessary for the employee’s comfort, convenience, health, and welfare. (Ibid.)
Defendant requires all delivery drivers to use their own personal vehicle while delivering pizzas on behalf of the company. (Undisputed Material Facts (“UMF”), No. 6; Declaration of Mark Kraniger, ¶ 5.) Sosa was hired as a delivery driver and his job duties included delivering customer orders and assisting with cleaning the store after closing. (UMF No. 5.) It was a requirement of employment that Sosa have his own vehicle. (Declaration of Jonathan A. Kaplan, Ex. B, 33:2-4.) On the date of the accident, Sosa clocked in at 5:04 p.m. (UMF No. 9.)
Sosa’s timecard shows that he clocked out at 12:00 a.m. and he did not clock back in until 1:47 a.m. (Kraniger Decl., Ex. A.) The accident occurred at approximately 12:54 a.m. (Kaplan Decl., Exs. H-I.) Sosa testified that he was on his meal break and headed to 7-Eleven at the time of the accident. (Id., Ex. C, 38:12-20, 95:5-8.) He also testified that he was not delivering pizzas at the time of the incident. (4/3/23 Declaration of Mani S. Navab, Ex. 1, 38:12-15.) Plaintiff Heyer testified that he saw another delivery driver come to the scene and take pizza warmers from Sosa’s vehicle and that the warmers appeared to contain pizzas. (Id., Ex. 3, 32:12-33:7.) The Court notes that there are disputed facts as to whether Sosa was delivering pizzas or driving to pick up food on his meal break at the time of the incident. However, the Court need not resolve the issue for purposes of this Motion. Under the first scenario, it would be indisputable that Sosa was within the scope of employment, and under either of the last two scenarios, the incidental benefit rule would apply so long as Sosa had not substantially deviated from his employment duties.
Defendant argues that Sosa was driving for purely personal reasons during his trip and substantially deviated from his employment duties such that the incidental benefit rule does not apply. However, assuming Sosa was driving on his meal break, as in Moradi, his trip to purchase food for himself was necessary for his comfort, convenience, health, and welfare. Moreover, a trip during a meal break at work is not so particularly startling or unusual such that it must be considered a substantial deviation from the employer’s business. Thus, there is a triable issue as to whether Sosa substantially deviated from Defendant’s business or whether the trip was a minor deviation.
The cases cited by Defendant are distinguishable. Bailey v. Filco, Inc. (1996) 48 Cal.App.4th 1552 did not involve an employee who was required to use her personal vehicle as part of her employment and Peccolo v. City of Los Angeles (1937) 8 Cal.2d 532 predates the required vehicle exception applicable here.
Pursuant to all of the above, the Motion is DENIED.
Defendant to give notice.