Judge Lee S. Arian, Case Number: 23CHCV00877, Date: 2025-02-20 Tentative Ruling

On January 13, 2023, Plaintiff filed the instant case. Defendant Nicole Linton worked as a nurse for Defendant AMN Healthcare, which placed her at Kaiser West LA as a temporary nurse. At approximately 1:00 p.m. on August 4, 2022, Linton left during her shift without notifying her supervisors. While driving her vehicle, Linton was involved in a multi-vehicle collision over four miles away, which resulted in several fatalities, including Plaintiff’s daughter.

Plaintiff brings causes of action for negligence, wrongful death, negligent entrustment, negligent supervision, hiring, and retention.

On August 14, 2024, the Court granted Defendant Kaiser’s motion for summary adjudication as to the causes of action for negligence, wrongful death, and negligent entrustment.

Defendant AMN Healthcare now moves for summary adjudication as to Plaintiff’s causes of action for negligence, wrongful death, and negligent entrustment.

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”].)¿

“‘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 Intern’l. Drilling Co. (2016) 4 Cal.App.5th 608, 618.)

Courts have recognized exceptions to the “going and coming” Rule.¿ (Marez v. Lyft, Inc. (2020) 48 Cal.App.5th 569, 578; Lantz v. Workers’ Comp. Appeals Bd. (2014) 226 Cal.App.4th 298, 309; Halliburton Energy Services, Inc. v. Department of Transportation (2013) 220 Cal.App.4th 87, 96.)¿ One such exception arguably applicable here is the “special risk” exception.

¿ Under the “special risk” exception, “an injury is compensable if, before entry upon the premises, an employee suffers injury from a special risk causally related to employment.”¿ (Santa Rosa Junior College v. Workers’ Comp. Appeals Bd. (1985) 40 Cal.3d 345, 353.)¿ “[T]he exception will apply (1) if ‘but for’ the employment the employee would not have been at the location where the injury occurred and (2) if ‘the risk is distinctive in nature or quantitatively greater than risks common to the public.’”¿ (Id. at 354 (quoting Gen. Ins. Co. v. Workers’ Comp. App. Bd. (Chairez) (1976) 16 Cal.3d 595, 600).)¿

Defendant AMN Healthcare has met its initial burden in bringing this motion for summary adjudication by presenting evidence that Nicole Linton was not acting within the course and scope of her employment at the time of the accident, thereby establishing a defense under the going and coming doctrine to the negligence and wrongful death causes of action.

Through this evidence, Defendant demonstrated that Linton had left work at the time of the accident and was not performing any tasks or errands at AMN’s request. She was not traveling to another Kaiser location as part of her job duties or under her supervisor’s instructions. Linton's departure, without informing her supervisors, was unrelated to her employment responsibilities. Given this, Defendant has met its initial burden in asserting a defense under the going and coming rule, negating liability for negligence and wrongful death.

AMN neither owned, controlled, nor had possession of the vehicle that Linton drove during the accident at issue on August 4, 2022. (UMF 14, 15, 16). AMN also did not control access to the vehicle in any manner. (UMF 16). Defendant has met its initial burden in negating the negligent entrustment cause of action by demonstrating that it had no ownership, possession, or control over the vehicle involved in the accident.

Plaintiff argues that Defendant failed to meet its burden because “the thrust of [the plaintiff’s] claim for vicarious liability was that [the employee] was an ‘instrumentality of danger’ because of what had happened to her at work.” (Purton v. Marriott International, Inc. (2013) 218 Cal.App.4th 499, 508). However, Plaintiff’s argument is misplaced because the complaint contains no allegations that Nicole Lorraine Linton became an instrumentality of danger due to a workplace condition or custom in the way that the employee in Purton became intoxicated from alcohol provided at a work-sponsored event. (Id. at 506). Since Plaintiff has not alleged that Linton’s work environment created or exacerbated the risk of harm, Defendant was not required to negate this unpled theory in its motion.

A motion for summary judgment or summary adjudication is framed by the allegations in the complaint, and Defendant is not required to address issues that Plaintiff has not raised. In Westlye v. Look Sports, Inc. (1993) 17 Cal.App.4th 1715, the court held that when a defendant asserts an affirmative defense, such as a release, it must only address exceptions or counter-theories that Plaintiff has explicitly alleged which could undermine the defense.

This principle is further reinforced by Conn v. National Can Corp. (1981) 124 Cal.App.3d 630, where the employees anticipated the employer’s defense of failure to exhaust contractual remedies by alleging that the union had breached its duty of fair representation, thereby excusing compliance with the grievance process. The Conn court held:

“If ... the plaintiff pleads several theories or anticipates affirmative defenses by a showing of excusing events or conditions, the challenge to the opponent is made by the complaint, requiring the moving defendant to affirmatively react to each theory and excusing or justifying event, or condition which supports a theory, if the motion is to be successful.” (Id. at p. 639, original italics.)

Here, Defendant has properly raised the going and coming rule as an affirmative defense. Plaintiff argues that Defendant must demonstrate that Linton was not an "instrumentality of danger" due to workplace conditions or customs, similar to the employee in Purton v. Marriott Int’l, Inc. (2013) 218 Cal.App.4th 499, who became intoxicated at a work-sponsored event, creating a foreseeable risk of harm. However, this theory was never alleged in the complaint. Plaintiff’s complaint does not argue that Linton’s work conditions or employment customs contributed to the accident. Instead, the complaint focuses on Linton’s pre-existing mental health conditions and Defendants’ alleged failure to act upon observable signs of her mental health crisis. These allegations might be relevant to Plaintiff’s negligent supervision claim, but they do not implicate an exception to the going and coming rule.

Furthermore, Plaintiff fails to identify any proximate cause of industrial origin in this case. Unlike Purton v. Marriott Int’l, Inc. (2013) 218 Cal.App.4th 499, where the proximate cause of industrial origin was clearly identified as alcohol provided at a work-sponsored event, a practice found to be customary to employment. The plaintiff here does not point to any comparable employer-created condition that contributed to the accident.

Plaintiff argues that in order for AMN to invoke the going and coming rule, it must present undisputed evidence that Linton was going home when she left West Los Angeles Hospital around 1:00 p.m. on August 4, 2022. Plaintiff contends that AMN has failed to produce any evidence establishing where Linton was going, and therefore, has not met its burden in asserting this defense.

The Court is unpersuaded by this argument. First, Defendant has presented undisputed evidence that Linton’s work did not require her to travel anywhere—her job duties were confined to West Los Angeles Hospital, and she was not required or authorized to leave the premises as part of her employment. Second, Linton left without authorization or direction from either Kaiser or AMN, and did not inform anyone that she was leaving.

Plaintiff’s focus on where Linton was going is misplaced. The going and coming rule applies regardless of an employee’s destination after leaving work, as long as the employee is not rendering service to the employer. (Feltham v. Universal Prot. Serv., LP (2022) 76 Cal.App.5th 1062, 1069 [“The theory behind the going and coming rule is that the employment relationship is suspended from the time the employee leaves work until she returns, or, put another way, that in commuting, the employee is not rendering service to the employer ”]). Courts have consistently applied the going and coming rule even when an employee is not heading home. Blackman v. Great American First Savings Bank (1991) 233 Cal.App.3d 598,604[driving to a night class] Because Defendant has established that Linton was not rendering a service on behalf of AMN and Kaiser at the time of the incident, Plaintiff’s argument fails, and Defendant has met its burden in asserting the going and coming rule as a defense.

Plaintiff cites the “commercial traveler” rule in workers’ compensation law, which provides that an employee traveling on the employer's business is considered to be acting within the course of employment. (Stonedeggs, Inc. v. Workers' Compensation Appeals Board (2024) 101 Cal.App.5th 1136, 1142.) However, this doctrine applies in the context of workers’ compensation and requires that the employee be engaged in business travel at the employer’s direction or benefit.

Here, Defendant has provided evidence demonstrating that Linton’s travel was entirely personal, with no connection to her employment duties. Plaintiff has not presented any evidence that Linton’s departure from West Los Angeles Hospital was for any business-related purpose.

Plaintiff raises various arguments centered on the contention that no one knows where Linton went or intended to go at the time of the incident and, therefore, the going and coming rule does not apply. However, Linton’s destination is irrelevant, whether she was going home, to a party, or to a class, the key issue is whether she was traveling to render a service on behalf of Defendants. Defendant has presented evidence establishing that Linton was not performing any work-related task or errand at the time she left West Los Angeles Hospital and therefore the going and coming rule applies.

Plaintiff relies on Hinman v. Westinghouse Elec. Co. (1970) 2 Cal.3d 956, 962-963, which held that when an employer and employee contractually designate travel time as part of the working day, the employer may be liable under respondeat superior during that travel time. Plaintiff argues that because Linton received a per diem while employed as a travel nurse for AMN, there is a triable issue as to whether Linton should be treated as an employee during her travel time.

However, Plaintiff’s argument is unsupported by the terms of the agreement, which expressly limit the scope of the per diem payments. The agreement states:

Thus, the per diem is explicitly intended to cover living expenses during the assignment, not travel time, and the agreement expressly declines travel reimbursements.

Unlike Hinman, where the employer paid travel expenses to expand its labor market and designated travel time as compensable work, Plaintiff has provided no evidence that Linton’s per diem payments were intended to cover travel expenses. In fact, the contract explicitly states otherwise.

Furthermore, Plaintiff has not provided any evidence that Linton received a per diem payment for the date of the incident. Defendant’s evidence only establishes that Linton remained employed until August 8, but there is no indication that she received per diem payments for the date of the incident.

Plaintiff then points to timesheets showing that Kaiser recorded Plaintiff’s work hours as 7:00 a.m. to 1:15 p.m. on the date of the incident, excluding time after Plaintiff left the premises. Plaintiff argues that because an earlier absence for personal reasons was included in the timesheets and compensated, Kaiser must have reimbursed Plaintiff for personal time.

This argument is speculative and insufficient to raise a triable issue of fact for several reasons. First, there is no indication that Kaiser was aware Plaintiff initially left the premises for personal reasons, let alone that it made a conscious decision to compensate Plaintiff for that absence. Second, Kaiser’s choice to exclude time after the incident suggests a deliberate choice to exclude personal time from compensation. Third, this argument contradicts the plain language of the service agreement, which explicitly states that travel expenses are not reimbursed. Fourth, in Hinman, the employer benefited from expanding its labor market by providing payment for travel in the contract, whereas Plaintiff has not shown that any payment received was for the employer’s benefit rather than perhaps an oversight by the accounting department.

Accordingly, Plaintiff failed to raise a triable issue of fact. Summary adjudication as to Defendant’s negligence and wrongful death causes of action is granted.

Plaintiff’s argument for negligent entrustment is unsupported by the evidence. Moreno v. Visser Ranch, Inc. (2018) 30 Cal.App.5th 568, 573 applies only when an employer requires an employee to use a vehicle for work-related travel after hours. Here, Plaintiff has failed to show that AMN had any such requirement.

First, Plaintiff’s own proffered evidence, the Professional Services Agreement, explicitly contradicts the argument. The agreement states that traveling away from the assignment location is not considered “in furtherance of the Company’s interests” and that AMN does not reimburse travel expenses.

Second, Plaintiff points to Linton’s per diem payments and continued employment status as supposed proof of employer control over her travel. However, per the agreement, a per diem is intended to cover living expenses while on assignment, not travel expenses. It also does not indicate that the employer has any control over Plaintiff’s transportation. Additionally, merely remaining an employee on the date of the incident does not create liability absent evidence that the employer dictated Linton’s use of her vehicle, to which none was provided

Third, Defendant has presented undisputed evidence that Linton’s job description did not require her to work outside of West LA Hospital, nor was she required to report to or work at any other facility. (UMF 5, 6, 7.) AMN also did not require Linton to use a vehicle as a condition of employment or dictate any method of transportation. (UMF 8, 9, 10.) Linton was not performing a special errand for AMN at the time of the incident. (UMF 12, 13, 17.) In fact, she never informed Defendant where she was headed. Plaintiff has presented no evidence to contradict this.

Accordingly, Plaintiff failed to raise a triable issue of fact. The motion for summary adjudication as to Plaintiff’s negligent entrustment cause of action 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