Judge: Lynne M. Hobbs, Case: 22STCV30628, Date: 2023-10-25 Tentative Ruling

Case Number: 22STCV30628    Hearing Date: April 8, 2024    Dept: 30

PEDRO SERRANO-TRUJILLO, et al. vs SYSTEMS SOURCE, INC., et al.

TENTATIVE

Defendant’s motion for summary judgment is DENIED. Plaintiff is ordered to give notice.

Legal Standard

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).)

Discussion

Defendant moves for summary judgment, arguing that Plaintiffs are unable to establish vicarious liability for the acts of Cadena. Defendant also argues as to the negligent entrustment claim, that Cadena was a good employee, and that he was not the owner of the vehicle, Enterprise was.

As an initial matter, Plaintiff argues in opposition that Defendant’s separate statement is defective because it ignores the central facts of the case.

“This is the ‘golden rule’ of summary adjudication: if it is not set forth in the separate statement, it does not exist. Both the court and the opposing party are entitled to have all the facts upon which the moving party bases its motion plainly set forth in the separate

statement. [Citations.]” (Allen v. Smith (2002) 94 Cal.App.4th 1270, 1282) (emphasis in original).

However, Plaintiff does not argue Defendant uses facts that are not in the separate statement, but rather, Plaintiff argues that Defendant did not use the facts Plaintiff thinks Defendant should have used. There is no such rule, and the argument is without merit.

I. Respondeat Superior

“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.)

One test California courts have used to determine whether an employee is under the scope of employment under the respondeat superior doctrine asks whether (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 Cadena was not in the scope of employment at the time of the incident as a matter of law because he was engaged in a purely personal act of driving home from visiting his parents for dinner, which was a substantial deviation from his employment duties.

Personal Act Exception to Respondeat Superior

“Undoubtedly, courts have exempted ‘purely personal’ conduct from the scope of employment.” (Marez, supra, 48 Cal.App.5th at 578.) “Where an employee’s activity does not come within the scope of employment, it is not part of the special employer-employee relationship.” (Id.) “If an employee’s act is purely personal, it is not ‘typical of or broadly incidental to the employer’s enterprise.’ [Citation.]” (Id. (quoting Sunderland v. Lockheed Martin Aeronautical Systems Support Co. (2005) 130 Cal.App.4th 1, 11).) “If the main purpose of the injury-producing activity ‘was the pursuit of the employee’s personal ends, the employer is not liable.’” (Id. (quoting Sunderland, supra, 130 Cal.App.4th at 11).) “Courts have held ‘even if a prong of the scope of employment test described in [Halliburton] had been established, an exception to the test existed for purely personal business.’ [Citations.]” (Id. (quoting Moreno v. Visser Ranch (2018) 30 Cal.App.5th, 568, 583).)

While a minor deviation is foreseeable and will not excuse the employer from liability, a deviation from the employee's duties that is “so material or substantial as to amount to an entire departure” from those duties will take the employee's conduct out of the scope of employment. (Halliburton, supra, 220 Cal.App.4th at 95.) For example, when the employee leaves the employer's premises on a lunch break, to get lunch or run a personal errand, and the employee is not engaged in any errand or task for the employer, the employee is not acting within the scope of his or her employment. (Id.)

Here, Defendant presents evidence that on the day of the Accident, Cadena got off work around 3:00-4:00 p.m. (UMF No. 25.) Instead of driving home, he drove the Van to his parent’s house for dinner. (UMF No. 26.) His then wife and his children drove to his parents in another vehicle. (UMF No. 27.) Cadena drank “around five or eight” beers before he left his parents’ house to drive the Van home which was 15 to 20 minutes away. (UMF No. 28.)

In opposition, Plaintiffs argue that the incidental benefit exception to the “going and coming” rule applies.

Going and Coming Rule and its Incidental Benefit Exception

“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.

As relevant here, Plaintiffs argue that the “vehicle-use exception” (which includes the “incidental benefit” exception under its umbrella) applies. (Pierson v. Helmerich & Payne Internat. Drilling Co. (2016) 4 Cal.App.5th 608, 625.)

The incidental benefit 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.)

Where the incidental benefit exception applies, the employee's commute directly between work and home is considered to be within the scope of employment for respondeat superior purposes. Minor deviations from a direct commute are also included. (Halliburton, supra, 220 Cal.App.4th at 97.)

Plaintiffs present evidence that at the time of the accident, Cadena was driving a vehicle that Defendant had furnished to him for job-related duties. Plaintiffs present evidence that the vehicle was provided to Cadena so that he could respond to emergency unexpected

calls. (PSS No. 69.) The vehicle provided the benefit of transporting tools. (Id.) Further, if there are adjustments in Cadena’s schedule, the vehicle was provided to him so that he is able to make it there on time. (Id.) Defendant reimbursed Cadena for gas. (Cadena Depo. 86:14-16.) Defendant paid for the rental. (Id., 84: 3-5.) 17.) Defendant also presents evidence that Cadena was provided with the van for work to keep his tools in and drive to work sites. (UMF No. 7.)

The Court finds that the evidence presented shows that there are triable issues of material fact as to whether the incidental benefit exception to the going and coming rule applies because Cadena was furnished a van by Defendant in order to further his employment duties for Defendant, such as having his vehicle available for company business, having his tools available, driving to work sites, and efficiency.

Plaintiffs also argue that stopping at Cadena’s parents’ house for dinner was a minor deviation from Cadena’s commute home.

Courts have concluded that stopping to make a personal purchase (Lazar v. Thermal Equipment Corp. (1983) 148 Cal.App.3d 458), stopping to purchase groceries (State Farm Mut. Auto. Ins. Co. v. Haight (1988) 205 Cal.App.3d 223), and stopping for frozen yogurt before attending a yoga class (Moradi v. Marsh USA, Inc. (2013) 219 Cal.App.4th 886) were all minor deviations from employees’ commutes home, and were therefore foreseeable and sufficient to subject their employers to vicarious liability. By contrast, driving children to school before returning home to work from home (Le Elder v. Rice (1994) 21 Cal.App.4th 1604), spending the afternoon packing and terminating the rental of an apartment, visiting family to say goodbye, and then stopping for fast food (Sunderland v. Lockhed Martin Aeronautical Systems Support Co. (2005) 130 Cal.App.4th 1), and driving three hours out of the way to purchase a new family car (Halliburton Energy Services, Inc. v. Department of Transportation (2013) 220 Cal.App.4th 87) were all, as a matter of law, substantial departures from the commute, such that the employers were not vicariously liable.

The Court also notes that the minor deviation standard typically includes “planned deviation[s]” that are “necessary for [an employee’s] comfort, convenience, health, and welfare.” “[W]e can think of no conduct more predictable than an employee's stopping [for something to eat or taking an exercise class]… on the way home.” (Moradi v. Marsh USA, supra, 219 Cal.App.4th at 905 [italics added].)

The Court finds there are triable issues of material fact as to whether Cadena stopping for dinner at his parents’ house was a minor deviation. As the Court reasoned in the Moradi, stopping to eat on the way home is predictable. (Moradi v. Marsh USA, supra, 219 Cal.App.4th at 905.) While the Court in Sunderland ruled otherwise when the defendant stopped to get fast food, that case is distinguishable based on the fact that the defendant there had made multiple stops in a long period of time. He went to his apartment, packed up his belongings, terminated his rental space, visited his family to say goodbye, and then he stopped to get food. The facts here only show that Cadena stopped by his parents’ house to eat dinner on the way home, which is no different than stopping to get yogurt and attending a yoga class before heading home like in Moradi. As a result, Defendant is not entitled to summary judgment.

Lastly, the Court notes that Defendant also appears to seek summary adjudication of the cause of action for negligent entrustment, arguing that Cadena was a good employee, and that it did not own the vehicle. However, Defendant moved only for summary judgment. Defendant did not alternatively move for summary adjudication, so the Court cannot rule on individual causes of action. (See Jimenez v. Protective Life Ins. Co. (1992) 8 Cal.App.4th 528, 534 [noting that courts may not grant summary adjudication when motion was only for summary judgment]; see also Slovensky v. Friedman (2006) 142 Cal.App.4th 1518, 1527, 49 Cal.Rptr.3d 60 [absent alternative motion for summary adjudication, defendant “must show conclusively” that all of the plaintiff's causes of action or legal theories fail as a matter of law]; cf. Barber v. Chang (2007) 151 Cal.App.4th 1456, 1469, 60 Cal.Rptr.3d 760 [where defendant failed to meet burden and did not alternatively move for summary adjudication on another ground, summary judgment was improper].)

Conclusion

Accordingly, Defendant’s motion for summary judgment is DENIED.