Judge Lee S. Arian, Case Number: 21STCV41773, Date: 2023-11-29 Tentative Ruling

MANUEL DE JESUS NOLASCO,

Plaintiff,

vs.

AUTHENTIC8, INC., et al.,

Defendants.

)

CASE NO.: 21STCV41773

[TENTATIVE] ORDER RE: DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

Dept. 27

1:30 p.m.

January 19, 2024

On November 12, 2021, Manuel De Jesus Nolasco (“Plaintiff”) filed this action against Authentic8, Inc., (“Authentic8”), Brian Ulysses Cuerdon (“Brian”), Mark Cuerdon (“Mark”), and DOES 1 to 50 (collectively “Defendants”) for injuries arising from a motor vehicle accident occurring on November 21, 2019.

On November 2, 2022, Authentic8 filed the instant motion, along with a separate statement and the Declarations of Brian Zaugg and Erin Hallissy.

Defendant Authentic8 objects to the following piece of evidence attached to Plaintiff’s opposition: “Cuerdon believed he was still on the job at the time of the accident.” (Cuerdon Depo. 24:13- 22.)

Authentic8 contends it is improper to ask witnesses to opine on legal contentions at deposition and states that it timely and properly objected to the question when it was asked at deposition.

A party seeking summary judgment has the burden of producing evidentiary facts sufficient to entitle him/her to judgment as a matter of law. (Code Civ. Proc. § 437c(c).) The moving party must make an affirmative showing that he/she is entitled to judgment irrespective of whether or not the opposing party files an opposition. (Villa v. McFerren (1995) 35 Cal.App.4th 733, 742- 743.) Thus, “the initial burden is always on the moving party to make 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 (citing Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.). When a plaintiff seeks summary judgment, he/she must produce admissible evidence on each element of each cause of action on which judgment is sought. (Code Civ. Proc., § 437c(p)(1).) The moving party’s “affidavits must cite evidentiary facts, not legal conclusions or ‘ultimate’ facts” and the courts must construe the evidence in support of the opposing party, resolving any doubts in favor of the opposing party. (Hayman v. Block (1986) 176 Cal.App.3d 629, 639; Scalf, 128 Cal.App.4th at 1519; Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

The opposing party on a motion for summary judgment is under no evidentiary burden to produce rebuttal evidence until the moving party meets his or her initial movant’s burden. (Binder v. Aetna Life Insurance Company (1999) 75 Cal.App.4th 832, 840.) Once the initial movant’s burden is met, then the burden shifts to the opposing party to show, with admissible evidence, that there is a triable issue requiring the weighing procedures of trial. (Code Civ. Proc. § 437c(p).) The opposing party may not simply rely on his/her allegations to show a triable issue but must present evidentiary facts that are substantial in nature and rise beyond mere speculation. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 162.) Summary judgment must be granted “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.)

Defendant Authentic8 moves for summary judgment against Plaintiff on the grounds that the evidence irrefutably establishes that co-Defendant Brian Ulysses Cuerdon (“Cuerdon”) was not acting in the course and scope of his employment at the time of the subject accident and thus, as a matter of law, Authentic8 cannot be held vicariously liable for Cuerdon’s alleged tortious conduct.

Cuerdon was employed by Authentic8 as a security researcher in San Jose, California on the date of the subject accident. (UMF 1.) Authentic8 did not require him to use his car as part of his job, or as a condition of his employment. (UMF 2.) Cuerdon predominantly worked out of Authentic8’s Redwood City office. (UMF 3.) Cuerdon requested authority from his manager Brian Zaugg to attend a Jamf technical training course in Los Angeles from November 18 through November 21, 2019. (UMF 4.) Jamf provided training courses in Northern California that Cuerdon could have attended. (UMF 5.) Cuerdon specifically chose the Los Angeles location so he could see his girlfriend after the course was over. (UMF 6.) Cuerdon attended the Jamf training Monday through Thursday from 9:00 a.m. until 5:00 p.m. (UMF 7.) During the three days preceding the accident, November 18 through 20, Cuerdon walked to breakfast, lunch, and dinner. (UMF 8.) Cuerdon requested, and Authentic8 approved, PTO after the training was over so he could spend time with his girlfriend in Los Angeles. (UMF 9.)

On the date of the subject accident, November 21, 2019, Cuerdon checked out of the Standard Hotel where he had been staying during his training course. (UMF 10.) After the training ended, at 5:00 p.m., Cuerdon walked back to his hotel to pick up his luggage. (UMF 11.) His girlfriend, who was using Cuerdon’s personal vehicle at UCSB, drove the vehicle from Santa Barbara to Los Angeles to pick him up at the Standard Hotel. (UMF 12.) Cuerdon confirmed that Authentic8 did not agree to compensate him for any gas and mileage while he was in Los Angeles. (UMF 13.)

Cuerdon was driving his personal vehicle to dinner with his girlfriend at the time of the subject accident. (UMF 14.) Cuerdon did not have any coworkers in his car. (UMF 15.) Cuerdon did not have any plans to meet with clients at dinner. (UMF 16.) Cuerdon did not have any plans to meet with anyone from the Jamf training course at dinner. (UMF 17.) Cuerdon did not do any work at dinner or after dinner. (UMF 18.) Cuerdon testified that to his knowledge Authentic8 did not receive any benefit from this dinner with his girlfriend, nor did Authentic8 receive any benefit from him remaining in Los Angeles through the weekend. (UMF 19.) Cuerdon did not ask permission from anyone at Authentic8 to go to dinner in Koreatown with his girlfriend. (UMF 20.) According to Cuerdon, the sole reason he remained in Los Angeles after the training ended at 5:00 p.m. was for personal reasons. (UMF 21.) At approximately 5:45 p.m., Cuerdon entered the intersection of Western Avenue and 18th Street, and he was unable to avoid hitting Plaintiff who stepped into the crosswalk. (UMF 22.)

Authentic8 contends that there are no facts to support that it is liable for Cuerdon’s actions through the doctrine of respondeat superior.

An employer is vicariously liable for an employee’s tort under the doctrine of respondeat superior if the tort was committed within the scope of the employment.¿ (Montague v. AMN Healthcare, Inc. (2014) 223 Cal.App.4th 1515, 1520.)¿ “The conduct of an employee falls within the scope of his or her employment if the conduct either (1) is required by or incidental to the employee’s duties, or (2) it is reasonably foreseeable in light of the employer's business.”¿(Id. at 522.). The determination of whether an employee has acted within the scope of employment presents a question of law when the facts are undisputed and no conflicting inferences are possible. (Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 213, 285.)

While a minor deviation from the employee’s duties is foreseeable and will not excuse the employer from liability, a deviation from the employee's duties that is “so material or substantial as to amount to an entire departure” from those duties will take the employee's conduct out of the scope of employment. (Halliburton Energy Servs., Inc. v. Dep’t. of Transp. (2013) 220 Cal.App.4th 87, 95.) For example, when the employee leaves the employer's premises on a lunch break, to get lunch or run a personal errand, and the employee is not engaged in any errand or task for the employer, the employee is not acting within the scope of his or her employment. (Id.)

An employee is generally not acting within the scope of employment when going to or coming from his or her place of work. (Anderson v. Pacific Gas & Electric Co. (1993) 14 Cal.App.4th 254, 258.) Thus, accidents caused during the employee's normal transit between home and work cannot support respondeat superior liability (so-called “going and coming” rule). This principle is based on the theory that the employment relationship is suspended from the time employees leave their jobs until they return and that during normal commutes, employees are not rendering services directly or indirectly to their employers. (Pierson v. Helmerich & Payne Int'l Drilling Co. (2016) 4 Cal.App.5th 608, 618.)

Generally, an exception to the going-and-coming rule will be found when the employer derives some incidental benefit from the employee's trip. (Blackman v. Great American First Savings Bank (1991) 233 Cal.App.3d 598, 604.) One specific exception is when the employer compensates the employee for travel time. (Hinman v. Westinghouse Elec. Co. (1970) 2 Cal.3d 956, 962, 88 Cal.Rptr. 188.) Another exception to the rule is the special errand rule: where an employee is considered to be acting within the scope of employment while on a special errand as part of his regular duties or at a specific order or request of his employer. (Anderson, supra at 262.)

Here, it is undisputed that Cuerdon’s work concluded at 5:00 p.m. on the date of the incident. It is also undisputed that his girlfriend subsequently arrived at his hotel in his personal vehicle and that Cuerdon began driving both of them to dinner in Koreatown. It is also undisputed that between 5:30 p.m. and 5:45 p.m., while on the way to dinner, Cuerdon ran into Plaintiff in an intersection.

Authentic8 contends that there is no dispute of material fact about whether Cuerdon was acting in the scope of employment at the time of the accident because his work had concluded and he was engaged in a purely personal endeavor that offered zero incidental benefit to Authentic8.

In opposition, Plaintiff contends that Cuerdon was on a mere deviation from the business trip when the accident happened and that Authentic8 did receive an incidental benefit from Cuerdon’s dinner.

To determine whether there has been a complete abandonment of a special errand in pursuit of a personal activity, courts consider the following factors, among others: the intent of the employee, the nature, time and place of the employee’s conduct, the work the employee was hired to do, the incidental acts the employer should reasonably have expected the employee to do, the amount of freedom allowed the employee in performing his duties, and the amount of time consumed in the personal activity. (Felix v. Asai (1987) 192 Cal.App.3d 926.)

Here, looking at the Felix factors, it is undisputed that Cuerdon’s intent at the time of the accident was to go to dinner with his girlfriend. There are no facts to show that Cuerdon intended to conduct any business at dinner or after dinner. It is also undisputed that the accident occurred in Koreatown in Los Angeles, CA, between 5:30 p.m. and 5:45 p.m. on Thursday, November 21, 2019. It is further undisputed that Cuerdon was in Los Angeles at that time to attend an employee-training program for his employer, Authentic8, but that the training had ended at 5:00 p.m.

The parties dispute whether Authentic8 should reasonably have expected Cuerdon to drive to a meal as an act incidental to the employee-training program. Plaintiff contends that the fact that Authentic8 reimbursed Cuerdon for dinner on the night of the accident as well as other meals during the trip demonstrates that it viewed Cuerdon’s meals as incidental to the employee-training program.

Weighing the factors, on balance, the Court determines that there is no material dispute that Cuerdon was engaged in a purely personal endeavor at the time of the accident. The vehicle Cuerdon was driving was not a company vehicle, rather, it was his personal vehicle. Cuerdon did not drive the vehicle regularly for work. Nor was Cuerdon on his way to a work-related activity at the time of the accident, instead he was on the way to dinner with his girlfriend. Additionally, the entirety of Cuerdon’s employee-training program had concluded by the time of the accident, as it was the last day of a four-day program. The fact that Authentic8 reimbursed Cuerdon for the dinner after the fact is trivial and not sufficient to show Cuerdon was not engaged in a purely personal endeavor.

Therefore, Authentic8 has met its burden of showing Cuerdon was not within the scope of employment at the time of the accident. Plaintiff does not meet Plaintiff’s burden, in turn, to demonstrate a triable issue of material fact. Authentic8’s motion for summary judgment is, thus, GRANTED.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.