Judge: Michael E. Whitaker, Case: 19STCV40951, Date: 2023-04-10 Tentative Ruling

Case Number: 19STCV40951    Hearing Date: April 10, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOVING PAPERS:

1. Notice of Motion and Motion for Summary Judgment; Memorandum of Points and Authorities
2. Separate Statement of Undisputed Material Facts in Support of Motion for Summary Judgment
3. Declaration of Stacy R. Goldscher in Support of Motion for Summary Judgment
4. Compendium of Evidence in Support of Motion for Summary Judgment

OPPOSITION PAPERS:

1. Opposition to Motion for Summary Judgment; Memorandum of Points and Authorities
2. Evidentiary Objections and Motions to Strike in Opposition to Motion for Summary Judgment
3. Separate Statement of Disputed and Undisputed Facts in Opposition to Motion for Summary Judgment
4. Compendium of Declarations and Exhibits in Opposition to Motion for Summary Judgment

REPLY PAPERS:

1. Reply in Support of Motion for Summary Judgment
2. Objection to Jacqueline Weintraub’s Declaration in Support of Opposition to Motion for Summary Judgment
3. Objection to Stephen Beres Declaration in Support of Opposition to Motion for Summary Judgment
4. Reply to Separate Statement in Opposition to Motion for Summary Judgment
5. Declaration of Stacy R. Goldscher in Support of Reply[1]

SUR-OPPOSITION PAPERS:

1. Opposition to Evidentiary Objections to Beres Declaration

BACKGROUND

Plaintiffs Mahnaz Barsiasa, Mahtalat Barsiasa, Maliheh Barsiasa, and Jacob Barsiasa (collectively, Plaintiffs) sued Defendant Stephen Beres (Beres) for wrongful death based on a vehicle versus pedestrian collision which resulted in the death of Yousef Barsiasa (Decedent). 

On October 9, 2020, Plaintiffs filed an amendment to their complaint naming Defendant Home Box Office, Inc. (HBO) as a Doe Defendant.  Plaintiffs allege Beres struck Decedent with his vehicle while acting within the course and scope of his employment with HBO. 

HBO moves for summary judgment on Plaintiffs’ complaint.  Plaintiffs oppose the motion.  HBO replies.

LEGAL STANDARD–SUMMARY JUDGMENT

“[T]he 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[.] There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)  “[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.”  (Ibid.)  

“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.  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 [cleaned up].)  Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true.  Nor may the trial court grant summary judgment based on the court's evaluation of credibility.”  (Id. at p. 840 [cleaned up]; 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”].) 

EVIDENCE

            With respect to Plaintiffs’ objections to HBO’s evidence submitted in support of its motion for summary judgment, the Court rules as follows:

a.       Stephen Beres’ Calendar for the week of September 16, 2019-Sustained

b.      Deposition of Stephen Beres, pp. 139:11-140:5 ¿ Sustained

c.       Traffic Collision Report prepared by the Los Angeles Police Department-Sustained

d.      Deposition of Adan Marin, p. 33:5-9 ¿ Sustained

e.       Deposition of Derek Whitfield, p. 28:2-20 ¿ Sustained

f.        Deposition of Stephen Beres, pp. 150:19-153:4; 157:24-158:5 ¿ Sustained

g.      Stephen Beres’ September 2019 Expense Report ¿ Sustained

            The Court overrules HBO’s objection to the Declaration of Jacqueline Weintraub.  Further, the Court overrules HBO’s objections to the Declaration of Stephen Beres. 

DISCUSSION

HBO moves for summary judgment on the sole cause of action for wrongful death based on negligence in Plaintiffs’ complaint.  HBO asserts that Plaintiffs cannot establish that Beres was acting within the scope of his employment with HBO at the time of the incident. 

1.      Vicarious Liability: Respondeat Superior

Under the doctrine of respondeat superior, an employer is vicariously liable for the torts of its employees committed within the scope of the employment.  (Rodgers v. Kemper Construction Co. (1975) 50 Cal.App.3d 608, 617.)  Respondeat superior is a form of strict liability: The employer is responsible for the employee’s wrongful acts notwithstanding the exercise of due care in hiring the employee or supervising his or her conduct.  (Hinman v. Westinghouse Electric Company (1970) 2 Cal.3d 956, 960.)

             Plaintiffs bear the burden of proving the tortious act was committed within the course and scope of the employment. (Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 209.) 

The conduct of an employee falls within the scope of his or her employment if the conduct either (1) is required by or incidental to the employee’s duties, or (2) it is reasonably foreseeable in light of the employer’s business.  (Crouch v. Trinity Christian Center of Santa Ana, Inc. (2019) 39 Cal.App.5th 995, 1015.)  If the employee’s conduct meets either test, the employer is vicariously liable regardless of whether the employee acted maliciously and/or intentionally.  (Ibid.)  Stated differently, “there must be a nexus between the employee’s tort and the employment to ensure that liability is properly placed on the employer.”  (Marez v. Lyft, Inc. (2020) 48 Cal.App.5th 569, 582.)

“Where an employee’s activity does not come within the scope of employment, it is not part of the special employer-employee relationship.  If an employee’s act is purely personal, it is not ‘typical of or broadly incidental to the employer’s enterprise.’  If the main purpose of the injury-producing activity ‘was the pursuit of the employee’s personal ends, the employer is not liable.’”  (Sunderland v. Lockheed Martin Aeronautical Systems Support Co. (2005) 130 Cal.App.4th 1, 11 [cleaned up].)   “There is simply no basis to impose vicarious liability where the employee’s ‘entire trip serves only his or her own personal purposes.’”  (Marez v. Lyft, Inc., supra, 48 Cal.App.5th at p. 582.)

2.      The “Going and Coming Rule”

HBO contends that because Beres was commuting home from the office when the incident occurred, the “going-and-coming rule” applies, precluding HBO’s vicarious liability for Beres’ alleged wrongful conduct. 

The going and coming rule provides “[i]n general, an employee is not acting within the scope of employment while traveling to and from the workplace.”  (Judicial Council Of California Civil Jury Instruction 3725 (hereinafter CACI 3725.)  However, there are exceptions to this rule.  (Hinman v. Westinghouse Electric Co. (1970) 2 Cal.3d 956, 961.)

For example, the “Vehicle-Use” exception dictates “[i]f an employer requires an employee to drive to and from the workplace so that the vehicle is available for the employer’s business, then the drive to and from work is within the scope of employment. The employer’s requirement may be either express or implied.”  (CACI 3725; see also Pierson v. Helmerich & Payne International Drilling Co. (2016) 4 Cal.App.5th 608.)  Further, “[t]he drive to and from work may also be within the scope of employment if the use of the employee’s vehicle provides some direct or incidental benefit to the employer. There may be a benefit to the employer if (1) the employee has agreed to make the vehicle available as an accommodation to the employer, and (2) the employer has reasonably come to rely on the vehicle’s use and expects the employee to make it available regularly. The employee’s agreement may be either express or implied.” (CACI 3725; see also Lobo v. Tamco (2010) 182 Cal.App.4th 297.) 

“The broad formulation of the vehicle-use exception in CACI No. 3725 correctly informs the jury that the issue of ultimate fact—namely, the scope of employment—may be proven in different ways.”  (Pierson v. Helmerich & Payne International Drilling Co., supra, 4 Cal.App.5th at p. 625)  Whether there is an express or implied requirement can be a question of fact for the jury, or in some cases be decided by a court as a matter of law.  (Savaikie v. Kaiser Foundation Hospitals (2020) 52 Cal.App.5th 223, 230.) [2]

3.      HBO’s Evidence

HBO advances the following Undisputed Material Facts (hereinafter UMFs) in support of its contentions which are two-fold:  first, the going and coming rule applies to the subject incident, and second, the “vehicle-use” exception is inapposite. 

• Defendant Stephen Beres is Vice President, Media & Production Operations for HBO.
• At the time of the accident, Mr. Beres was on his regular commute home, traveling Eastbound on Idaho Avenue on his way to the 405 freeway.
• There is no evidence that Mr. Beres was on the telephone or texting in general at the time of the accident, let alone on the telephone or texting for work at the time of the accident.
• Mr. Beres is in control of his calendar and can schedule off-site visits to his liking.
• Janet Borba, Mr. Beres' direct supervisor at HBO testified that he was not required to accept calls on his drive as a condition of employment, but was expected to return calls as necessary.
• Mr. Beres' direct supervisor, Janet Borba testified that HBO does not require Mr. Beres to use his vehicle as a condition or employment, and denied that HBO derives a benefit from the use of his vehicle; clarifying that the company derived a benefit from the work performed by Mr. Beres and not the use of his car.
• Ms. Borba further testified that she is responsible for approving Mr. Beres' expense reports submitted for reimbursement and that she has no recollection of Mr. Beres ever seeking reimbursement for mileage.
• Mr. Beres' employment contracts do not contain any requirements that he own a vehicle or make that vehicle available for use as a condition of employment. 

(UMFs 2, 4-5, 19-20, 22-23, 25.)  The foregoing evidence establishes the following: (1) Beres was on his commute home from work when the subject accident occurred, (2) Beres was not impliedly or expressly required to use his personal vehicle as a condition of his employment with HBO, and (3) as stated by Janet Borba (Borba), Beres supervisor’s, Beres was not required to accept work related calls during his commute.  HBO’s evidence shows that it did not come to reasonably rely on Beres’ use of his personal vehicle.  (See Lobo v. Tamco, supra, 182 Cal.App.4th at p. 297.)  As such the Court finds HBO has meet its burden of production that the going and coming rule is applicable here, and further Beres’ use of his personal vehicle in commuting to and from work is not susceptible to the vehicle-use exception.  HBO has shifted the burden of production to Plaintiffs to raise triable issues of material fact as to whether Beres was in fact commuting home from work at the time of the incident, or whether the conditions of Beres use of his personal vehicle fall within the vehicle-use exception.   

4.      Plaintiffs’ Evidence

In opposition Plaintiffs argue there is a triable issue of material fact as to whether the going and coming rule is applicable to Beres’ use of his personal vehicle in relation to his employment with HBO at the time of the incident.  Further Plaintiffs argue if the going and coming rule is found to be applicable, there is a triable issue of fact as to whether Beres’ use of his personal vehicle falls into an exception to the going and coming rule.  Plaintiffs advance the following facts set forth in Plaintiffs’ Separate Statement, hereinafter PSSMFs, in support of their contention that based on Beres’ job duties, his commute to and from work in his personal vehicle was part of his workday and duties:

• Defendant Beres is not merely the Vice President, Media & Production Operations for HBO. Rather he is, and was at the time of the incident, a Senior Vice President, Media & Production Operations for HBO.
• Mr. Beres’s day is scheduled by his assistant and it is made up of many tasks including visits to post-production facilities and shooting locations. These off-site visits were a necessary part of his job duties, they were not “optional” or something he could do “to his liking” as the mood struck him.
• Beres testified that, as a practical matter, routinely making and accepting phone calls during his ride home was an understood part of his job duties as it was his custom and practice.
• Beres testified that, as a practical matter, routinely making and accepting phone calls during his ride home was an understood part of his job duties as it was his custom and practice.
• As senior vice president of production, media and production operations for HBO, Defendant Beres had a demanding job in that his standard workday duties meant that he was typically rendering service to HBO even during his commute to and from his home to his formal office.
• At the time of the Subject Traffic Collision, Mr. Beres’s duties as a senior vice president of production, media and production operations for HBO meant that he was in the “senior most supervisory management role of the technology facing – production facing technology group on the west coast.”
• The nature of Mr. Beres’s work required frequent work-related telephone calls outside normal fixed 9 – 5 business hours.
• The course and scope of Beres’s workday did not end when he began his commute home, rather it regularly continued throughout his commute home.
• Defendant Beres rendered services to HBO while commuting to and from work by scheduling, conducting, and holding “office hours” to receive work calls.
• While Mr. Beres did not make work phone calls every time he drove to and from work, making, receiving and holding office hours in the event that such work calls were needed during his commute was common-place and was a necessary incidental part of his employee duties. Thus, Beres’s use of his vehicle to make and receive work related phone calls during his commute to and from home constituted a customary incident of employment.
• As Mr. Beres’s custom and practice was to conduct work calls during his drives to and from the office, he required his personal vehicle and could not use alternative transportation (public transit, Lyft, Uber, etc.) since the nature of his work is highly sensitive and confidential and could not be discussed in a public setting or in front of third-party drivers.
• Beres’s HBO supervisor, Janet Borba, would call him to discuss work related matters during Beres’s commute home from his formal office.
• Beres’s use of his vehicle to make and receive work related phone calls during his commute to and from home were undertaken with HBO’s permission.
• Mr. Beres admits that he couldn’t do his job without using his personal vehicle.
• Mr. Beres’s use of his personal car to conduct his job duties and responsibilities (such as phone calls) allowed him to increase his efficiency in that it freed up his time spent in his formal office to perform other tasks for HBO.
• Because Beres was a salaried employee, he was being compensated for the time he spent commuting, including the time of the accident.

(PSSMFs 2, 19, 20, 25, 28-33, 39, 41-42, 50, 52, 58.)  Plaintiffs’ evidence raises questions as to the following: (1) whether Beres was required, whether expressly or impliedly, to accept work calls during his commute to and from work as a condition of his employment, and (2) based on Beres’ supervisor’s admission that she would call him to discuss work related matters during Beres’ commute home, whether HBO had come to reasonably rely on Beres to accept and conduct work calls when using his personal vehicle. 

            In reply, HBO highlights the holding in Newland v. County of Los Angeles (2018) 24 Cal.App.5th 676, 693 (hereafter Newland), which states that the employee must have been using the vehicle to do the employer’s business or provide a benefit for the employer at the time of the accident for the vehicle-use exception to apply.  In Newland, the Court of Appeal noted that while the subject employee was sometimes required to drive his car to perform his job duties as a public defender outside the office, on the day of the accident the employee did not have any job duties outside the workplace scheduled, did not use his car for work purposes that day, and was driving a normal routine commute at the time of the accident.  (Newland, supra, 24 Cal.App.5th at p. 693.)  As such, the Newland court found there was no evidence to support a finding that the employer directly or indirectly required the employee to use his personal vehicle on the day in question, nor that the employer received any benefit from the employee’s use of his car at the time of the accident, and thus concluded the vehicle-use exception was not applicable.  (Id. at p. 696.)

            However, the Court finds HBO’s reliance on Newland to be faulty.  First, although the Newland court concluded that an employee must be driving in the course and scope of employment at the exact time of accident, many cases have applied the vehicle use exception without imposing this time-of-the-accident requirement. (See, e.g., Moradi v. Marsh USA, Inc. (2013) 219 Cal.App.4th 886, 892 [employee was commuting home at the time of the accident]; Lobo v. Tamco, supra, 182 Cal.App.4th at p. 302 [same]; Huntsinger v. Glass Containers Corp. (1972) 22 Cal.App.3d 803, 806-807 [same].)

            Second the facts herein are distinguishable.  As Beres describes in his declaration, Beres regularly scheduled and conducted work calls during his commute.  (Declaration of Stephen Beres, ¶ 9.)  Beres’ supervisor, Janet Borba, admits to conducting calls with Beres during his commute to discuss work related matters.  (Deposition of Janet Proba, 62:2-6.)  Finally, Beres describes that he held “mobile office hours” to receive work calls during his commute.  (Declaration of Stephen Beres, ¶¶ 9-11.)   Accordingly, even if there is no evidence that Beres was conducting “work” at the exact time of the accident (UMF 5, PSSMF 5), there remains a reasonable question as to whether Beres’s use of his personal vehicle to commute was within the course and scope of his employment, on the basis that he intentionally held space and time for work-related calls during his commute, and this time was often utilized by his supervisor and coworkers to conduct work related calls with Beres.  Those facts differ from Newland where the employee’s use of his personal vehicle could only be connected to the course and scope of his work when he used his vehicle to conduct work related duties or errands, and thus a line between work use, and personal use, of the employee’s vehicle, was more readily ascertainable.  

Accordingly, the Court finds Plaintiffs have met their burden of production in creating triable issues of fact as to whether the going and coming rule applies in the first instance, and if the rule applies,  whether the vehicle-use exception applies to Beres’ commute home from work at the time of the accident.  In short, the Court finds that there are triable issues of material fact as to whether Beres was acting within the scope of his employment with HBO at the time of the incident.

5.      Destruction of Evidence

Because the Court finds Plaintiffs have raised triable issues of material fact and denies HBO’s motion on those grounds, it does not need to reach Plaintiffs’ contentions regarding HBO’s purported destruction of evidence.

CONCLUSION AND ORDER

In considering the competent evidence proffered by HBO and Plaintiffs, and viewing such evidence in the light most favorable to Plaintiffs, the Court finds Plaintiffs have sufficiently disputed UMFs 12, 19, 22, and 25, and have partially disputed UMFs 4 and 5. Further Plaintiffs have advanced additional material facts including PSSMFs 28-33, 39, 41-42, 50, 52, and 58.[3] 

Accordingly, the Court finds there are triable issues of material fact regarding whether the nature and responsibilities associated with Beres’ employment make it such that his commute home from work in his personal vehicle would be considered within the scope of his employment with HBO.  As such, the Court cannot determine, as a matter of law, that HBO is not vicariously liable for Beres’ purportedly negligent actions resulting in the death of Decedent. 

Therefore, the Court denies HBO’s motion for summary judgment.  The Clerk of the Court shall provide notice of the Court’s ruling.