Judge Lee S. Arian, Case Number: 22STCV19707, Date: 2025-05-21 Tentative Ruling

This case arises from a pedestrian versus vehicle incident that occurred on July 20, 2020. Defendant Gregory Alexander Scott was driving a 2008 Ford truck (the “subject vehicle”) that he jointly owned with his wife, Karissa Guglielmo. (Undisputed Material Fact “UMF” No. 1.) Defendant Scott failed to stop at a red light and struck Plaintiff Walter Alan Chism, who was crossing the street (the “subject accident”).

On November 15, 2022, Plaintiff amended his complaint to name Argee Construction as Doe 1. Plaintiff’s Complaint and Doe Amendment assert causes of action for negligence and negligence per se against all named and Doe defendants. Plaintiff’s theory of liability against Argee Construction is based on the allegation that Defendant Scott was employed by Argee Construction at the time of the subject accident. Argee Construction now moves for summary judgment on the ground that Defendant Scott was not acting within the course and scope of his employment under the coming and going rule.

In reviewing a motion for summary judgment or adjudication, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.”¿(Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)

“[T]he initial burden is always on the moving party to make a prima facia 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 or summary adjudication “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, or that there is a complete defense to the cause of action.”¿(Code Civ. Proc., § 437c, subd. (p)(2).)¿If the moving party fails to carry its burden, the inquiry is over, and the motion must be denied. (See Id.; see also Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468.)¿Even if the moving party does carry its burden, the non-moving party will still defeat the motion by presenting evidence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849-50.)

To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.”¿(Aguilar, supra, 25 Cal.4th at p. 854.)¿It is insufficient for the defendant to merely point out the absence of evidence.¿(Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.)¿The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.”¿(Ibid.)¿The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken.¿(Aguilar, supra, 25 Cal.4th at p. 855.)

“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.” (Code Civ. Proc., § 437c, subd. (p)(2).) The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.”¿(Ibid.)¿“If the plaintiff cannot do so, summary judgment should be granted.”¿(Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

The court must “liberally construe the evidence in support of the party opposing summary judgment and resolve all doubts concerning the evidence in favor of that party,” including “all inferences reasonably drawn therefrom.”¿(Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037; Aguilar, supra, 25 Cal.4th at pp. 844-45.) “On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence.¿While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues.¿[Citation.]¿Only when the inferences are indisputable may the court decide the issues as a matter of law.¿ If the evidence is in conflict, the factual issues must be resolved by trial.”¿(Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839.)¿Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true.¿[Citation.]¿Nor may the trial court grant summary judgment based on the court’s evaluation of credibility. [Citation.]” (Id. at p. 840; see also Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].)
Evidentiary Ruling

· Defendant Scott and his wife, Karissa Guglielmo, personally owned and operated the 2008 Ford that Scott was driving at the time of the subject accident.

· Argee Construction has no ownership interest in the vehicle that Defendant Scott was driving at the time of the subject accident.

· At the time of the subject accident, Karissa Guglielmo was not an employee, agent, or principal at Defendant Argee Construction.

· 5.On July 20, 2020, Defendant Scott was employed by Defendant Argee Construction and was working on the Clairmont HSLocker Room project (the “Locker Room Project”) located at 1601 North Indian Hill Blvd., Claremont, California 91711 (the “worksite”).

· Scott was a project manager on the date of the collision and was present at the work site on the date of the collision.

“Under the doctrine of respondeat superior, an employer may be held vicariously liable for torts committed by an employee within the scope of employment.” Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 208. “For the doctrine of respondeat superior to apply, the plaintiff must prove that the employee's tortious conduct was committed within the scope of employment.” Id. at 209. “[W]here the question is one of vicarious liability, the inquiry should be whether the risk was one that may fairly be regarded as typical of or broadly incidental to the enterprise undertaken by the employer.” Id. at 209 [internal quotations and citations omitted].

Generally, an employee is not acting within the course and scope of employment when commuting to or from the workplace at the beginning or end of a work day. (Sumrall v. Modern Alloys, Inc. (2017) 10 Cal.App.5th 961, 967-968.) 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.)

Defendant Argee has met its initial burden under the coming and going rule. Defendant Argee’s evidence shows that on July 20, 2020, Scott was employed by Defendant Argee Construction and was working as a project manager/superintendent on the Claremont HS Locker Room Project located at 1601 North Indian Hill Blvd., Claremont, California 91711. (UMF 15–16.) Scott was required to be physically present at the worksite while on the job. (UMF 16.) The subject accident did not occur at the worksite but instead occurred while Scott was driving to pick up his children from school. (UMF 17–18.) Scott had left the worksite, had clocked out, was no longer being paid, and was not expected to return to work that evening. (UMF 20–21, 23.) Defendant Argee Construction did not pay Scott to commute from his home to the worksite and did not exercise control over his actions at the time of the accident. (UMF 19, 22.) These facts demonstrate that Scott was off duty and engaged in a personal errand at the time of the accident, thereby triggering application of the coming and going rule and shifting the burden to Plaintiff to raise a triable issue as to the applicability of any exception.

Plaintiff argues that triable issues of fact exist under both the required vehicle exception and the special errand exception to the going and coming rule.

The required vehicle exception to the going and coming rule applies when an employer requires an employee to make their personal vehicle available for work-related duties during the workday. When an employee must use their personal vehicle for job responsibilities, such as field work or attending off-site meetings, the commute itself provides an incidental benefit to the employer, distinguishing it from the commute of an ordinary employee whose mode of transportation is irrelevant. (Huntsinger v. Glass Containers Corp. (1972) 22 Cal.App.3d 803, 810.) This benefit arises from the vehicle’s availability for work purposes throughout the day. As confirmed in Jorge v. Culinary Institute of America (2016) 3 Cal.App.5th 382, 403, the exception applies only where the employer requires the employee to drive his/her vehicle to work or have the vehicle available for performing job duties during the workday. If there is no such requirement, the exception does not apply. (See Ducey v. Argo Sales Co. (1979) 25 Cal.3d 707; Tryer v. Ojai Valley School (1992) 9 Cal.App.4th 1476.) Furthermore, where the employee merely uses a personal vehicle to commute and could have used alternate means such as public transit, there is no basis to apply the required vehicle exception. (Jorge, supra, 3 Cal.App.5th at 403.) Thus, where the employer has no expectation that the employee’s vehicle be available for use during the day, and the employee’s duties do not depend on it, the commute is not incidentally beneficial to the employer and remains outside the scope of employment.

Plaintiff presented no evidence that Defendant Argee required the employee to drive or have a vehicle available to perform job duties during the workday.

Plaintiff argues that the employee’s use of Defendant Argee’s credit card to purchase fuel for commuting to and from home supports an inference that the vehicle was required, analogizing this to the mileage reimbursement in Jorge. However, this argument was explicitly rejected in Jorge. There, the court held that an employee’s submission of a travel expense form to seek reimbursement for miles driven to an off-campus assignment did not constitute evidence of an implied requirement to have a personal vehicle available for use during the workday. The court stated that “ by that logic, any time an employee drove a personal vehicle to an airport while traveling for work and subsequently sought reimbursement for the miles driven, the employer would be vicariously liable for an accident caused by the employee while driving to his or her regular workplace on a different day. That is not the law.” (Jorge, supra, 3 Cal.App.5th at 403.)

Mileage reimbursement by itself is not evidence of an implied requirement to have a personal vehicle available for work purposes. Rather, the core inquiry is whether the employer expressly or implicitly required the employee to drive to work or have a vehicle available to perform job duties during the workday. Again, Plaintiff offers no such evidence here.

Second, Plaintiff argues that Argee’s policy required workers to take tools home. (AOE, Ex. 6, Claremont PD Incident Report; AOE, Ex. 2, Scott Depo., pp. 86–88:11–5.) However, the cited evidence does not support this assertion. Nowhere does it state that Argee had a policy requiring employees to take tools home. In fact, there is no evidence that any such requirement existed.

Furthermore, “[t]ransporting work materials—even essential ones—to facilitate work does not warrant exception to the going and coming rule unless such materials require a special route or mode of transportation or increase the risk of injury.” (Id. at 405 citing Wilson v. Workers’ Comp. Appeals Bd. (1976) 16 Cal.3d 181, 185.) “Such cartage is common and must be viewed as incident to the commute rather than as part of the employment.” (Id.)

Third, Plaintiff argues that the employee was picking up Argee’s tools at the time of the incident and contends that this nexus between the tools and the accident supports respondeat superior liability, as the risk was allegedly tied to Scott’s work-related activity. (Moradi v. Marsh USA, Inc. (2013) 219 Cal.App.4th 886, 905.) However, Moradi does not support the proposition that a work-related distraction or a nexus between tools and an accident during a commute gives rise to respondeat superior liability. The court in Moradi did not impose liability based on any finding that the employee was distracted by work-related matters, tools, or tasks at the time of the collision. Rather, the court held that the employee’s planned stops for frozen yogurt and yoga were minor deviations that did not remove her from the scope of employment. (Id. at 905.) There is no evidence showing that Scott was engaged in a minor deviation; the record shows he was traveling home.

The special errand exception to the going and coming rule applies when the employee was (1) engaged in activity that was extraordinary in relation to their routine duties; (2) performing acts within the course of employment; and (3) undertaking those acts at the express or implied direction of the employer for the employer’s benefit. (Feltham v. Universal Protection Service, LP (2022) 76 Cal.App.5th 1062, 1072–1073.) The exception is narrowly applied and does not extend to ordinary commutes. (Ibid.)

Plaintiff fails to present evidence satisfying any of the required elements. First, although Plaintiff claims that Argee required workers to take tools home to prevent theft, there is no evidence of any formal policy requiring employees to do so. (See AOE, Ex. 6; AOE, Ex. 2, Scott Depo., pp. 86–88.) The cited deposition testimony does not show that the employer required the employee to take tools home, only that Scott may have voluntarily taken tools home. Voluntary conduct without direction from the employer does not qualify as a special errand.

Second, Plaintiff points to Scott’s transportation of construction plans to suggest work-related activity. (AOE, Ex. X, Scott Depo., 102:7–14.) But the cited portion of the deposition does not support this claim. There is no testimony indicating that Scott was carrying plans at the time of the accident or that he was transporting them at the direction of Argee. Furthermore, mere possession of work materials during a commute is not sufficient to show that Scott engaged in activity that was extraordinary in relation to their routine duties.

Third, Plaintiff argues that Scott was not actually on his way to pick up his children because he told police he was heading toward the freeway. However, this argument concerns Scott’s credibility and does not constitute affirmative evidence that he was engaged in a special errand for Argee. Plaintiff cannot create a triable issue of fact based on credibility attacks alone; rather, Plaintiff must present affirmative evidence that Scott was undertaking an extraordinary task.

Finally, there is no evidence that Scott’s activity was extraordinary or outside his regular routine. Without evidence that Scott was performing a task at Argee’s request, outside his usual duties, and for Argee’s benefit at the time of the accident, the special errand exception does not apply.

Citing Union Bank v. Superior Court (Demetry) (1995) 31 Cal.App.4th 573, Plaintiff argues that when a defendant fails to produce evidence within its control that could resolve factual disputes, courts may deny summary judgment and draw an adverse inference against the evasive party. However, Union Bank does not stand for the rule that a court may draw an adverse inference and deny summary judgment based on a defendant’s failure to produce evidence. To the contrary, Union Bank confirms that a defendant may meet its initial burden on summary judgment by showing that the plaintiff’s discovery responses are factually devoid. Once that burden is met, the burden shifts to the plaintiff to set forth specific facts showing a triable issue of material fact. The Court held: “A moving defendant may rely on factually devoid discovery responses to shift the burden of proof... Once the burden shifts as a result of the factually devoid discovery responses, the plaintiff must set forth the specific facts which prove the existence of a triable issue of material fact.” (Union Bank, supra, 31 Cal.App.4th at 590.)

Union Bank never discusses or endorses drawing adverse inferences against a defendant for failing to produce evidence after the defendant has met its initial burden. In fact, the Court made clear that once the defendant satisfies its burden, the plaintiff must come forward with affirmative evidence. Plaintiff’s contention is not supported by Union Bank or any applicable legal authority.

Accordingly, Plaintiff has failed to raise a triable issue of material fact, and summary judgment is 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’s 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.

Hon. Lee S. Arian

Judge of the Superior Court