Judge Lisa R. Jaskol, Case Number: 21STCV40815, Date: 2024-06-07 Tentative Ruling

All parties are urged to meet and confer with all parties concerning this tentative ruling to see if they can reach an agreed-upon resolution of their matter.  If you are able to reach an agreement, please notify the courtroom staff in advance of the hearing if you wish to submit on the tentative ruling rather than argue the motion by notifying the court by e-mailing the court at: SSCDEPT28@lacourt.org. Include the word "SUBMITS" in all caps and the Case Number in the Subject line. In the body of the email, please provide the date and time of the hearing, your name, your contact information, the party you represent, and whether that party is a plaintiff, defendant, cross-complainant, cross-defendant, claimant, intervenor, or non-party, etc.

            Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may still appear at the hearing and argue the matter, and the court could change its tentative based upon the argument. 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 you submit, but still intend to appear, include the words "SUBMITS, BUT WILL APPEAR" in the Subject line.    If you elect to argue your matter, you are urged to do so remotely, via Court-Connect.

                            Note that once the Court has issued a tentative, the Court has the inherent authority not to allow the withdrawal of a motion and to adopt the tentative ruling as the order of the court. This does not excuse a moving party's need to do one of the following: appear; submit; or take a matter off calendar by canceling the motion in the case reservation system before issuance of the tentative ruling if the matter moving party does not intend to proceed.

        If you submitted a courtesy copy of your papers containing media (such as a DVD or thumb drive), unless you request the return of the media in your papers, the court will destroy it following the hearing of your matter.

Having considered the moving, opposition, and reply papers, the Court rules as follows.

On November 5, 2021, Plaintiff Southern California Edison Company (“Edison”) filed an action against Defendants Jeffery Alan Blanchette, Sr. (“Blanchette”), and Does 1-10 for negligence and damages by self-insured employer under Labor Code section 3852 et seq. (Case number 21STCV40815.)

On December 1, 2022, Edison amended the complaint to include Defendant Seeley Brothers (“Seeley”) as Doe 1 and Seeley Bros (“Seeley Bros”) as Doe 2.

On January 10, 2023, Edison filed a first amended complaint against Blanchette, Seeley, Seeley Bros, and Does 1-10 for negligence and statutory liability.

On January 17, 2023, Blanchette filed an answer to Edison’s first amended complaint.

On March 20, 2023, Seeley filed an answer to Edison’s first amended complaint.

On May 24, 2024, the Court dismissed Seeley and Seeley Bros with prejudice at Edison’s request.

On November 30, 2021, Plaintiff Keith Yarbrough (“Yarbrough”) filed an action against Defendants Jeffery Alan Sr Blanchette and Does 1-10 for negligence and negligence per se. (Case number 21STCV43711.)

On September 9, 2022, Blanchette (erroneously sued as Jeffery Alan Sr Blanchette) filed an answer.

On November 3, 2022, Yarbrough amended the complaint to include Seeley as Doe 1 and Seeley Bros as Doe 2.

On December 28, 2022, Yarbrough filed a first amended complaint against Blanchette, Seeley, Seeley Bros, and Does 1-10 for negligence and negligence per se.

On January 17, 2023, Blanchette filed an answer to Yarbrough’s first amended complaint.

On March 20, 2023, Seeley filed an answer to Yarbrough’s first amended complaint.

On May 17, 2022, the Court found that case numbers 21STCV40815 and 21STCV43711 are related within the meaning of California Rules of Court, rule 3.300(a). 21STCV40815 became the lead case. The cases were assigned to Department 28 at the Spring Street Courthouse for all purposes.

On May 18, 2022, the Court ordered cases numbers 21STCV40815 and 21STCV43711 consolidated and assigned to Department 28 in the Spring Street Courthouse for all purposes. The Court designated 21STCV40815 as the lead case.

On March 22, 2024, Seeley filed a motion for summary judgment of Yarbrough’s first amended complaint, to be heard on June 5, 2024. On May 22, 2024, Yarbrough filed an opposition. On May 31, 2024, Seeley filed a reply.

Seeley asks the Court to grant summary judgment of Yarbrough’s first amended complaint.

“‘[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.’” (LAOSD Asbestos Cases (2023) 87 Cal.App.5th 949, 945, quoting Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).) “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Aguilar, supra, 25 Cal.4th at p. 850.)

When the moving party is a defendant, it must show that the plaintiff cannot establish at least one element of the cause of action. (Aguilar, supra, 25 Cal.4th at p. 853.) “The defendant has shown that the plaintiff cannot establish at least one element of the cause of action by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Id. at p. 854.) The defendant must “present evidence, and not simply point out that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Ibid.) Thus, “the defendant must ‘support[ ]’ the ‘motion’ with evidence including ‘affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice’ must or may ‘be taken.’ [Citation.] The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff’s cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing.” (Id. at p. 855, original emphasis.)

“Supporting and opposing affidavits or declarations . . . shall set forth admissible evidence.” (Code Civ. Proc., § 437c, subd. (d).) “Matters which would be excluded under the rules of evidence if proffered by a witness in a trial as hearsay, conclusions or impermissible opinions, must be disregarded in supporting affidavits.” (Hayman v. Block (1986) 176 Cal.App.3d 629, 639.)

In addition, a party moving for summary judgment or summary adjudication must support the motion with “a separate statement setting forth plainly and concisely all material facts which the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence.” (Parkview Villas Assn. v. State Farm Fire & Casualty Co. (2006) 133 Cal.App.4th 1197, 1209 (Parkview Villas), quoting Code Civ. Proc., § 437c, subd. (b)(1) [motion for summary judgment]; see Code Civ. Proc., § 437c, subd. (f)(2) [motion for summary adjudication “shall proceed in all procedural respects as a motion for summary judgment”].) The party opposing the motion must file with the opposition papers “a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating whether the opposing party agrees or disagrees that those facts are undisputed. The statement also shall set forth plainly and concisely any other material facts that the opposing party contends are disputed. Each material fact contended by the opposing party to be disputed shall be followed by a reference to the supporting evidence.” (Code Civ. Proc., § 437c, subd. (b)(3).) If either party fails to comply with the applicable separate statement requirement, that failure may in the court’s discretion constitute a sufficient ground to decide the motion adversely to the offending party. (Code Civ. Proc., § 437c, subds. (b)(1), (3).)

In ruling on the motion, the court must consider all the evidence and all the inferences reasonably drawn from it and must view such evidence and inferences in the light most favorable to the opposing party. (Aguilar, supra, 25 Cal.4th at p. 843.)

“[A] principal who personally engages in no misconduct may be vicariously liable for the tortious act committed by an agent within the course and scope of the agency. [Citation.] Agency is the relationship which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act . . . .[Citation.]” (Barenborg v. Sigma Alpha Epsilon Fraternity (2019) 33 Cal.App.5th 70, 85.)

On December 5, 2019, Blanchette’s pickup truck rear-ended Yarbrough’s vehicle on the southbound 405 freeway in Los Angeles, injuring Yarbrough. At the time of the accident, Blanchette was acting within the course and scope of his employment for Seeley. Blanchette “performed a job assignment of carpentry work for [Seeley] in the city of Century City, Los Angeles County, immediately before the incident. [Blanchette] needed to drive his own vehicle to commute from his home to perform [Seeley’s] job in Century City for the benefit of [Seeley].” Blanchette “regularly drove his vehicle to different job sites for performing job duties required by [Seeley].”

Seeley is responsible for Yarbrough’s injuries because Blanchette was acting as Seeley’s agent when the incident occurred. Seeley authorized Blanchette to act within the course and scope of his employment, representation, and/or agency.

Blanchette was employed by Seeley. On December 5, 2019, Blanchette was assigned to install cabinets at 1942 Century Park East in Century City. Blanchette drove his personal vehicle from his home to the job in Century City.

The same day, vehicles driven by Yarbrough and Blanchette were involved in an accident. Yarbrough alleges he was injured in the accident.

Yarbrough argues that Blanchette was acting within the course and scope of his employment with Seeley at the time of the accident, making Seeley liable.

At his October 24, 2022 deposition, Blanchette testified that in December 2019, when Seeley assigned him to install cabinets, he would commute to the places he needed to install the cabinets by “get[ting] in my car . . . and driv[ing] to the job . . . .” (Blanchette depo. p. 11.)

The accident happened on December 5, 2019. Blanchette had commuted to the work site in Century City from his home in Orange County using his personal car. (Blanchette depo. pp. 14-15.) Blanchette was at the Century City job site, where Seeley had sent him to install cabinets, from 5:00 a.m. to 1:00 p.m. (Blanchette depo. p. 15.) Then Blanchette got off work and was going home. (Blanchette depo. p. 18.) The accident took place at 1:15 or 1:20 p.m. (Blanchette depo. p. 15.)

2. Blanchette’s amended responses to special interrogatories, set one (Exh. N)

Yarborough’s special interrogatory 6 asked, “Describe the purposes of any commutes YOU made on December 5, 2019 prior to the INCIDENT.” In his amended response, Blanchette stated:

“Objection. Irrelevant. Not reasonably calculated to lead to the discovery of admissible evidence. Invasion of privacy. Without waiving said objections, at the time of the subject incident responding party was going home after completing his day at work. Responding party commuted from his residence to the jobsite that morning, was present at the same jobsite all day, and he left work at the end of his workday to go home. He did not make any stops after leaving the jobsite, and was not intending on running any errands after leaving work on his way home. He was traveling from the jobsite to his residence in his own personal vehicle, and his purpose was to go home when the subject incident occurred.”

1. Seeley has carried its initial burden on summary judgment based on the going and coming rule

Seeley argues that it is not vicariously liable for Blanchette’s alleged negligence because, as a matter of law, Blanchette was not acting in the course and scope of his employment with Seeley at the time of the accident.

To support this argument, Seeley cites Blanchette’s discovery responses stating that he was not acting in the course and scope of his employment. “Evidentiary facts are required to support a summary judgment. Conclusions of fact or law are not sufficient.” (L. Edmon & C. Karnow, Cal. Practice Guide: Civil Procedure Before Trial (Rutter 2023) ¶ 10:119, p. 10-52.) Blanchette’s discovery responses stating he was not acting in the course and scope of employment is a conclusion of law that does not carry Seeley’s initial burden on summary judgment.

Seeley also cites the “going and coming” rule. “An employee’s commute to and from the workplace is generally not considered to be within the course and scope of employment.” (Newland v. County of Los Angeles (2018) 24 Cal.App.5th 676, 685.) “This rule, commonly referred to as the ‘going and coming rule,’ is grounded in the notion 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.’ ” (Id. at 686.)

Seeley has presented evidence that Blanchette had finished work for the day and was on his way home when the accident occurred, making a prima facie showing that the “going and coming” rule applies. Therefore, Seeley has carried its initial burden on summary judgment, shifting the burden to Yarborough.

Plaintiff asserts that the “vehicle use exception” to the “going and coming” rule supports his vicarious liability claim. “ ‘The required-vehicle exception to the going and coming rule and its variants have been given many labels.’ ” (Savaikie v. Kaiser Foundation Hospitals (2020) 52 Cal.App.5th 223, 230 (Savaikie), quoting Pierson v. Helmerich & Payne Industrial Drilling Co. (2016) 4 Cal.App.5th 608, 624 (Pierson).) “Regardless of the label, the exception ‘covers situations where there is an express or implied employer requirement. “If an employer requires an employee to furnish a vehicle as an express or implied condition of employment, the employee will be in the scope of his employment while commuting to and from the place of his employment.” ’ ” (Ibid., quoting Pierson, supra, 4 Cal.App.5th a p. 625.) “Whether there is an express or implied requirement ‘ “can be a question of fact for the jury,” ’ but “the question of fact sometimes can be decided by a court as a matter of law.’ ” (Ibid., quoting Pierson, supra, 4 Cal.App.5th at p. 626.)

In Savaikie, the Court of Appeal held that the plaintiff did not raise a triable issue of fact regarding the required-vehicle exception by testifying that his employer’s “arrangement” was that he would drive his own vehicle.^{^[1]} (Savaikie, supra, 52 Cal.App.5th at p. 230.) The court reasoned, “Even reading ‘arrangement’ broadly to mean ‘agreement,’ an agreement between [the employer] and [the plaintiff] that [the plaintiff] would drive his own car would not establish or suggest that driving a personal vehicle was a requirement of the job. It does not contradict [the employer’s] testimony that using other methods of transportation, such as Uber or Lyft, was permissible, and thus other ‘arrangements’ or agreements were permissible.” (Ibid.) In addition, “[p]ayment for travel expenses is not evidence of an implied requirement that an employee use his own vehicle, or have it available for use, as a condition of employment.” (Id. at p. 231.) And “ ‘the need to show up for work at different sites [does not render] the employee’s commute extraordinary—or for the benefit of the employer.’ ” (Ibid., quoting Jorge v. Culinary Institute of America (2016) 3 Cal.App.5th 382, 405 (Jorge); see Jorge, supra, 3 Cal.App.5th at p. 405 [“the fact the employee reported to work at different, and constantly changing, remote locations did not make his regular commute to and from work part of his job”].)

The Court of Appeal also concluded that the plaintiff’s use of his vehicle did not provide an “incidental benefit” to the employer. (Savaikie, supra, 52 Cal.App.5th at p. 232.) The court viewed the “incidental benefit” inquiry as “a factor to be considered in deciding whether an implied vehicle use requirement exists,” not as an independent basis for the required use exception. (Ibid.) Because the Court of Appeal had determined that the evidence did not support a reasonable inference that the plaintiff was required to drive his own vehicle, the court concluded that the plaintiff had not shown a triable issue of material fact concerning the implied benefit exception. (Id. at p. 233.)

Nonetheless, citing what it viewed as dicta in Lobo v. Tamco (2010) 182 Cal.App.4th 297 (Lobo), the Court of Appeal in Savaikie also considered whether “ ‘the employee has agreed, expressly or implicitly, to make the vehicle available as an accommodation to the employer and the employer has “reasonably come to rely upon its use and [to] expect the employee to make the vehicle available on a regular basis while still not requiring it as a condition of employment.” ’ ” (Savaikie, supra, 52 Cal.App.5th at p. 233, quoting Lobo, supra, 182 Cal.App.4th at p. 301.) The court concluded there was no evidence that the employer encouraged or relied on the plaintiff’s use of his own car to drive to work sites. “There is no evidence [the employer] derived a different or additional benefit from [the plaintiff’s] use of his car to commute to [work locations] than it would have received had he used any other form of transportation.” (Ibid.) Therefore, no triable issue of material fact concerning this variation of the implied benefit exception applied. (Ibid.)

Yarborough attempts to thread the needle of the required use exception by presenting portions of Seeley’s employee handbook and “injury prevention program and safety manual” addressing the company’s policies for the use of private vehicles for company use, including a mileage reimbursement policy. The Court has sustained Seeley’s objections to this evidence because it begs the question whether Seeley expressly or impliedly required Blanchette to use his private vehicle. Absent evidence raising a triable issue of fact on this issue, the policies stated in the handbook and manual are irrelevant.

Yarborough also argues: “Blanchette was employed in a role that necessitated the use of his personal vehicle for work-related tasks. . . . Blanchette, employed as a cabinet installer by [Seeley], had to travel to various job sites to perform installations. . . . [¶] This necessity of personal vehicle use conferred a clear incidental benefit to the employers by ensuring timely and effective completion of job duties, which was essential for maintaining customer satisfaction and operational efficiency.” (Opposition pp. 7-8.) But Yarborough cites no evidence showing that Seeley implicitly or explicitly required Blanchette to use his personal vehicle rather than, for example, public transit, a taxi, or a ride-sharing service.

Yarborough has not raised a triable issue of fact concerning whether the required vehicle exception to the going and coming rule applies in this case. Therefore, the Court finds that Seeley cannot be vicariously liable as a matter of law based on Blanchette’s alleged negligence. The Court grants Seeley’s motion for summary judgment.

The Court GRANTS Defendant Seeley Brothers’s motion for summary judgment of the first amended complaint filed by Plaintiff Keith Yarbrough.

Moving party is ordered to file the proof of service of this ruling with the Court within five days.

[1] The plaintiff was a volunteer but the employer did not contest the trial court’s ruling that the plaintiff, although a volunteer, was to be treated as a paid employee for purposes of vicarious liability. (Savaikie, supra, 52 Cal.App.5th at p. 228 & fn. 1.)