Judge Lee S. Arian, Case Number: 22STCV26932, Date: 2025-06-03 Tentative Ruling

On August 8, 2022, Plaintiffs Morgan Frazier Mizell and Angelica Mayer (“Plaintiffs”) filed a complaint against Defendants Juan Gonzalez and Does 1-100, and later amended the complaint to substitute Doe 1 for PATH (“Defendant”) as a defendant, alleging two causes of action for: (1) negligence, and (2) negligent hiring/retention/supervision/training.

The complaint alleges that on May 8, 2021, Plaintiffs were crossing the street in an unmarked crosswalk near the T-intersection of Beachwood Drive and Santa Monica Boulevard, when Defendant Gonzalez operated a vehicle negligently by failing to yield to pedestrians and struck Plaintiffs. Plaintiffs further allege that Gonzalez was in the course and scope of his employment with Defendant PATH.

On May 14, 2025, Plaintiffs filed an opposition to this motion for summary judgment. On May 22, 2025, Defendant filed a reply.

The purpose of a motion for summary judgment or summary adjudication “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. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (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 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(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.” (Id.) “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.)

“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, 159 Cal.App.4th at 467; Code Civ. Proc., §437c(c).)

1. SUSTAINED. The verification of the interrogatory responses was not part of Exhibit B. That said, the owner of the vehicle appears inconsequential for purposes of this motion, and the complaint itself alleges that Juan Gonzalez was driving the car referenced in the Separate Statement.

As an initial matter, Plaintiff argues that Defendant’s separate statement fails to comply with California Rules of Court, rule 3.1350(d)(1), which requires the separate statement to “separately identify” (A) each cause of action, claim for damages, or issue of duty that is the subject of the motion and (B) each supporting material fact claimed to be without dispute with respect to the particular cause of action, claim for damages, or issue of duty for which summary adjudication is sought. (See also, Rule 3.1350(h) [format for separate statements supporting motion for summary adjudication must include a heading stating the issue to be adjudicated].) Plaintiff contends that Defendant’s separate statement contains no such formatting. Rather, the separate statement simply lists 11 separate facts with no headings and no specification as to which individual claim those 11 facts relate.

The Court has discretion to deny the motion for failure to comply with these requirements.¿ (Civ. Proc. Code § 437c(b)(1);¿Cadlo v Owens-Illinois Inc.¿(2004) 125 Cal. App. 4th¿513, 523.) The Court agrees that Defendant’s separate statement violates California Rules of Court, rule 3.1350(d)(1). However, given that the issues are straightforward, and the evidence is not voluminous, the Court will exercise its discretion to disregard the procedural defect in this instance.

“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.) “A plaintiff suing an employer under the doctrine must prove the person who committed the tort was acting within the scope of his or her employment.” (Marez v. Lyft (2020) 48 Cal.App.5th 569, 577.)

An employee is acting in the course of employment under the respondeat superior doctrine asks if (1) the act performed was either required or incident to his duties or (2) the employee’s misconduct could be reasonably foreseen by the employer in any event. (Halliburton Energy Servs., Inc. v. Dep’t. of Transp. (2013) 220 Cal.App.4th 87, 94.) If the employee's actions fall within either prong, the employer is liable for the injury. (Id.) In this test, foreseeability means that in the context of a particular enterprise, an employee’s conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among the costs of the employer’s business. (Id. at 95) “‘[T]here must be ‘a nexus between the employee’s tort and the employment to ensure that liability is properly placed upon the employer.’’ [Citation.]” (Id.)

Here, Defendant contends that Gonzalez was not in the scope of employment at the time of the incident as a matter of law because he was driving to work in his personal vehicle. “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. [Citation.] The ‘going and coming’ rule is sometimes ascribed to the theory that the employment relationship is ‘suspended’ from the time the employee leaves until he returns [citation]¿or that in commuting he is not rendering service to his employer [citation].” (Hinman v. Westinghouse Elec. Co. (1970) 2 Cal.3d 956, 961.) However, there are exceptions to the going and coming rule. (Id., at 988.)

The incidental benefit use exception (or vehicle use 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. (Halliburton, supra, 220 Cal.App.4th at 96.) “[W]hen a business enterprise requires an employee to drive to and from its office in order to have his vehicle available for company business during the day, accidents on the way to or from the office are statistically certain to occur eventually, and, the business enterprise having required the driving to and from work, the risk of such accidents are risks incident to the business enterprise.” (Huntsinger v. Glass Containers Corp. (1972) 22 Cal.App.3d 803, 810, 99.) “[T]his means not just any trivial benefit to the employer, but a benefit ‘sufficient enough to justify making the employer responsible for the risks inherent in the travel.’” (Newland v. County of Los Angeles¿(2018) 24 Cal.App.5th 676.)

Defendant presents evidence that Gonzalez was involved in the accident at issue while driving from his house to his employment as a cook for Defendant. (Gonzalez Depo., 6:25 –7:17.) Gonzalez was not required to have a vehicle available to him as a part of his employment with Defendant. (Id., 7:21-23.) Gonzalez never used his personal vehicle for any errands on behalf of Defendant. (Id., 7:24 – 8:2.) Gonzalez was never asked to run any errands at all for Defendant during his employment. (Id., 9:8-10.) Gonzalez always worked at the same PATH location. (Id., pg. 8:16-23.) Gonzalez was never paid for mileage or fuel expenses for his commute to and from PATH, or paid in any way for transportation costs. (Id., pg. 9:11-13; pg. 12:11-13; pg. 24:22-24.)

The Court finds that Defendant has met its burden on summary judgment to show that there are no triable issues of material fact as to whether Gonzalez was in the scope of employment for Defendant as he was commuting to work, in his own vehicle, and he did not use his vehicle for work. Thus, Defendant has shown no triable issue of material fact exists as to whether the going and coming rule applies. The burden shifts to Plaintiffs to present triable issues of fact as to whether an exception applies.

In opposition, Plaintiffs argue the vehicle use exception applies. They present evidence that Defendant required its employees to have a vehicle for work, a valid California driver’s license, to have proof of insurance, to undergo a DMV record check and to qualify for Defendant’s vehicle insurance. (PSS Nos. 6-11, 14.) Defendant’s own job listing for a cook requires “proof of insurance and ownership for personal vehicles used during work duties.” (PSS No. 14.)

However, there is no evidence that Defendant required use of the vehicle in question for transportation on the job. (Halliburton, supra, 220 Cal.App.4th at 96.) While Plaintiffs’ evidence shows Gonzalez must have a vehicle, it does not show the reason for that requirement. For example, as relevant here, there is no evidence that Gonzalez travels to location to location for work related duties in the vehicle, or that he made any other use of the vehicle for Defendant’s business’ benefit. Requiring the use of a vehicle alone, without also making that vehicle available for work duties is not enough. That is all the evidence shows here. Plaintiffs rely heavily on Lobo v. Tamco (2010) 182 Cal.App.4th 297, 302-303, but ignore the significance of the fact that in that case, one of the employee’s job responsibilities was to visit customer sites in his vehicle. (Id. at 301-302.) As such, the employee needed to make his vehicle available for work related duties. (Id.) In sum, Plaintiffs failed to meet their burden to show that the vehicle was required by Defendant in order to further Gonzalez’s employment duties for Defendant. As such, Plaintiffs have not met their burden to show an exception to the going and coming rule applies.

Defendant also moves for summary judgment as to the cause of action for negligent hiring, retention, supervision and training, arguing that there is no connection between Plaintiff’s injury stemming from the vehicle collision and Gonzalez’s work as a cook.

“[A]n employer can be liable to a third person for negligently hiring, supervising, or retaining an unfit employee.”¿ (Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1054.)¿ To establish a cause of action for negligent hiring, retention, or supervision, a plaintiff must show that the employer knew or should have known that hiring the employee created a particular risk or hazard and that particular harm occurs.¿ (See Z.V. v. County of Riverside (2015) 238 Cal.App.4th 889, 902; see also Doe, supra, 50 Cal.App.4th at p. 1054.)¿ To be liable for negligent supervision and hiring, there must be a connection between the employment and injury.¿ (Mendoza v. City of Los Angeles (1998) 66 Cal.App.4th 1333, 1341.)¿ “Liability for negligent hiring and supervision is based upon the reasoning that if an enterprise hires individuals with characteristics which might pose a danger to customers or other employees, the enterprise should bear the loss caused by the wrongdoing of its incompetent or unfit employees.¿ (Id. at 1339.)¿ “The tort has development in California in factual settings where the plaintiff’s injury occurred in the workplace, or the contact between the plaintiff and the employee was generated by the employment relationship.”¿ (Id. at pp. 1339-1340.)¿¿¿

As noted above, Defendant presents evidence that Gonzalez was involved in the accident at issue while driving from his house to his employment as a cook for Defendant. (Gonzalez Depo., pgs. 6:25 –7:17.) The Court finds that Defendant has presented evidence sufficient to show that there are no triable issues of material fact as to whether Gonzalez’s employment with Defendant was connected to the accident, and thus, Defendant owed no duty to Plaintiff. “Failing to require a connection between the employment and the injured party would result in the employer becoming an insurer of the safety of every person with whom its employees come into contact, regardless of their relationship to the employer.”¿(Mendoza, supra, 66 Cal.App.4th at 1341.)

Plaintiffs fail to meet their burden on summary judgment as they make the same arguments and present the same evidence as above.

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.

Hon. Lee S. Arian

Judge of the Superior Court