Judge: Lisa R. Jaskol, Case: 22STCV26442, Date: 2025-02-20 Tentative Ruling

Case Number: 22STCV26442    Hearing Date: February 20, 2025    Dept: 28

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

BACKGROUND 

On August 16, 2022, Plaintiff Mark Andrew McNairy (“Plaintiff”) filed this action against Defendants Ilyse Tara Levine (“Levine”) and Does 1-50 for motor vehicle tort and general negligence. 

On September 6, 2022, Levine filed an answer. 

On July 13, 2023, Plaintiff amended the complaint to include Defendant The Wonderful Company, LLC (“TWC”) as Doe 11. On November 30, 2023, TWC filed an answer. 

On December 22, 2023, the Court granted in part TWC’s ex parte application to continue the trial.  The Court continued the trial from February 13, 2024 to August 30, 2024. 

On May 17, 2024, TWC filed a motion for summary judgment or, in the alternative, summary adjudication.  The motion was set for hearing on October 23, 2024.  The Court continued the hearing to February 20, 2025.  On January 17, 2025, Plaintiff filed an opposition.  On January 27, 2025, TWC filed a late reply.  (The Court exercises its discretion to consider the late reply.) 

On June 17, 2024, the Court continued the trial from August 30, 2024 to April 9, 2025. 

Trial is scheduled for April 9, 2025. 

PARTIES’ REQUESTS 

TWC asks the Court to grant summary judgment or, in the alternative, summary adjudication. 

Plaintiff asks the Court to deny the motion. 

PLAINTIFF’S REQUEST FOR JUDICIAL NOTICE 

          Denied. 

LEGAL STANDARD 

A.   Summary judgment and summary adjudication 

“‘[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, emphasis omitted.) 

“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 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.) 

B.   Vicarious liability 

“ ‘Under the doctrine of respondeat superior, an employer is liable for the torts of his employees committed within the scope of their employment [citations]. The burden of proof is on the plaintiff to demonstrate that the negligent act was committed within the scope of employment. [Citations.]’ [Citation.] ‘Where the facts of the case make it arguable whether the employee has acted within the scope of his employment, then the scope of employment issue is one properly decided by the trier of fact. However, where the facts would not support an inference that the employee acted within the scope of his employment and where there is no dispute over the relevant facts, the question becomes one of law.’  [Citation.]”  (Halliburton Energy Services, Inc. v. Department of Transportation (2013) 220 Cal.App.4th 87, 93-94.) 

“[A]n employee's conduct is within the scope of his or her employment 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.  [Citation.] In this test, foreseeability means that in the context of the 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. [Citation.]”  (Moreno v. Visser Ranch, Inc. (2018) 30 Cal.App.5th 568, 577.) 

C.   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.) 

D.   Special errand exception to coming and going rule 

The courts have recognized an exception to the going and coming rule “when the employee commits a negligent act while engaged in a ‘special errand’ or ‘special mission’ for the employer.”  (Caldwell v. A.R.B., Inc. (1986) 176 Cal.App.3d 1028, 1036.) “ ‘If the employee is not simply on his way from his home to his normal place of work or returning from said place to his home for his own purpose, but is coming from his home or returning to it on a special errand either as part of his regular duties or at a specific order or request of his employer, the employee is considered to be in the scope of his employment from the time that he starts on the errand until he has returned or until he deviates therefrom for personal reasons. [Citations.] To such special missions the general test as to scope of employment applies. It is not necessary that the servant is directly engaged in the duties which he was employed to perform, but included are also missions which incidentally or indirectly contribute to the service, incidentally or indirectly benefit the employer.’ ” (Ibid., quoting Boynton v. McKales (1956) 139 Cal.App.2d 777, 789.)  Attendance at an employment social function has been considered a special errand.  (See id. at pp. 1036-1037; see Boynton, supra, 139 Cal.App.2d at p. 789 [“The attendance at a social function, although not forming part of the normal duties of the employee, may come under the ‘special errand rule’ if the function or the attendance was connected with the employment and for a material part intended to benefit the employer who requested or expected the employee to attend”].) 

DISCUSSION 

A.   The complaint 

The complaint alleges the following: 

On December 15, 2021, Plaintiff was driving eastbound on Sunset Boulevard at the intersection with Bristol Circle in Los Angeles when Levine, in the course of her employment with Wonderful Company (Doe 11), negligently made an unsafe left turn and crashed into Plaintiff. As a result of Defendants' negligence, Plaintiff suffered and continues to suffer damages. The complaint asserts claims for motor vehicle tort and general negligence. 

B.   Undisputed facts 

This case involves an auto and motorcycle accident that occurred on December 15, 2021 on Sunset Boulevard and Bristol Court in Los Angeles, CA 90049.  Plaintiff alleges that Levine “negligently operated her vehicle by making an unsafe left turn and crashed into the Plaintiff.”  Plaintiff further alleges that TWCl employed Levine, “who operated a motor vehicle in the course of [her] employment.” 

Levine is a salaried Senior Corporate Counsel for TWC and works on a part-time basis. 

On December 15, 2021, a workday for Levine, TWC hosted a holiday lunch party at James Beach (previously located in Venice, California) from noon to 3:00 p.m. for the entire legal department.  The luncheon was to bring the entire legal department together, in-person, since the pandemic closures.  The luncheon was scheduled to take place during work hours.  Levine’s time at the holiday party would have been paid.  Levine logged and was paid for six work hours, a complete work day, on December 15, 2021. Notwithstanding Levine’s attendance at the lunch holiday party, Levine worked on December 15, 2021 and sent work-related emails. 

TWC did not provide transportation to or from the holiday lunch party to any of its employees, including Levine. TWC employees are entitled to seek reimbursement for work-related expenses.  TWC reimburses employees for their submitted mileage when they use their personal vehicles for work.  Levine has not sought reimbursement for any costs associated with the use of her personal vehicle from 2010 to the present. 

At approximately 3:40 p.m., while driving home from the TWC holiday lunch party, Levine attempted to cross Sunset Boulevard at an uncontrolled intersection.  The intersection has two east bound lanes, a center turn lane for both directions and two westbound lanes. Immediately before the impact, Levine was using her TWC-issued cell phone to speak with Rachel Waterman, who is also an attorney for TWC. 

The TWC legal department was working remotely during 2021 due to the Covid-19 pandemic and employees were not required to go into the office. Levine was also working remotely throughout 2021, including on December 15, 2021. 

DISCUSSION         

          TWC argues that Plaintiff cannot prove TWC is vicariously liable for Levine’s alleged negligence because Levine was not acting in the course and scope of her employment when her vehicle collided with Plaintiff’s vehicle.  To support this argument, TWC points to evidence that Levine’s attendance at the holiday luncheon was voluntary, that TWC did not direct or require Levine to attend the luncheon, that Levine was not engaged in any task or errand for TWC at the time of the accident, and that Levine was driving her personal vehicle on her way home when the accident occurred. 

          Assuming for the sake of argument that TWC’s evidence carries its initial burden on summary judgment, Plaintiff has presented evidence that raises a triable issue of fact.  It is undisputed that TWC invited all legal department employees to attend the holiday luncheon.  (UMF 20.)  Levine was a legal department employee.  (UMF 7.)  TWC paid Levine for her time at the party.  (UMF 21-22.)  This evidence and inferences reasonably drawn from it raise a triable issue concerning whether the holiday luncheon “was connected with [Levine’s] employment and for a material part intended to benefit the employer who requested or expected [Levine] to attend.”  (See Boynton, supra, 139 Cal.App.2d at p. 789.) 

          The Court denies the motion. 

CONCLUSION 

          The Court DENIES Defendant The Wonderful Company, LLC’s motion for summary judgment or, in the alternative, summary adjudication. 

Moving party is ordered to give notice of this ruling. 

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