Judge: Michelle C. Kim, Case: 19STCV44775, Date: 2024-04-23 Tentative Ruling


Case Number: 19STCV44775    Hearing Date: April 23, 2024    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

ADAM GLICK and MARY GLICK, 

Plaintiff(s),  

vs. 

 

VISTA GENERAL ENGINEERING 

COMPANY, INC., ET AL., 

 

Defendant(s). 

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      CASE NO: 19STCV44775 

 

[TENTATIVE] ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 

 

Dept. 31 

1:30 p.m.  

April 23, 2024 

 

I. BACKGROUND 

Plaintiffs Adam Glick (“Adam”) and Mary Glick (“Mary”) (collectively, “Plaintiffs”) filed a First Amended Complaint (“FAC”) against defendants Vista General Engineering Company Inc. (“Vista”), Arturo Orozco Torres (“Torres”), and Does 1 to 10 for damages arising from a motor vehicle accident that occurred on August 24, 2018. The FAC sets forth four causes of action for (1) motor vehicle negligence, (2) general negligence, and (3) negligence per se, and (4) loss of consortium against all defendants.  

Vista now moves for summary judgment against Plaintiffs’ operative complaint on the grounds that its employee, Torres, had already clocked off work at the time of the incident.  

Plaintiffs oppose the motion, and Vista filed a reply. 

 

II. EVIDENTIARY OBJECTIONS 

Vista submits eleven objections to the declaration of Plaintiffs’ counsel Julia A. Farrugia. Objections 1 to 5 are sustained, and objections 6-10 are overruled.  

 

III. MOTION FOR SUMMARY JUDGMENT 

A. Burdens on Summary Judgment 

A party may move for summary judgment “if it is contended that the action has no merit or that there is no defense to the action or proceeding.”  (Code Civ. Proc. § 437c, subd. (a).) “[I]f 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,” the moving party will be entitled to summary judgment.  (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. (Code Civ. Proc. § 437c, subd. (f)(2).)    

The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if the party does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact.  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; accord Code Civ. Proc. § 437c, subd. (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.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Med. Ctr. (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, supra, 159 Cal.App.4th at p. 467; see also Code Civ. Proc., § 437c(c).) 

 

B. Analysis 

“The elements of negligence are (1) a legal duty to use due care, (2) the breach of such legal duty, and (3) the breach was the proximate or legal cause of injury.” (Orey v. Superior Court (2013) 213 Cal.App.4th 1241, 1255.)  As in any negligence action, whether a duty was owed under the facts is a question of law for the court. (Castaneda v. Olsher (2007) 41 Cal.4th 1205, 1213.)  “Under the theory of respondeat superior, an employer is vicariously liable, irrespective of fault, for the tortious conduct of its employees within the scope of their employment.” (Jorge v. Culinary Institute of America (2016) 3 Cal.App.5th 382, 396.)  “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.)   

Here, the undisputed material facts are as follows. Torres was driving the truck, and the accident occurred at around 3:00 p.m. on August 24, 2018. In response to requests for admissions, Torres admitted that he had clocked out of work for Vista on August 24, 2018 at 2:45 p.m. and that he was off the clock. In addition to working as a laborer for Vista, Torres also did work separate from Vista. Torres admitted that he was going from a work site to a personal job site at the time of the accident, in which he was on his way to his cousin’s house to remove grass. The truck Torres drove on the incident date was purchased in 2016 from Vista. It is further undisputed that Torres was the sole registered owner of the truck at the time of the incident, and that the truck was considered Torres’ personal truck. Scott Saunders (“Saunders”), the owner of Vista, had requested Torres to remove the company logo and contractor license from the side of the truck since it was no longer a company truck, but Torres did not do so. Vista did not compensate Torres for gas or mileage to or from work, and Torres used tools he purchased from Saunders for work. 

Generally an employee is not acting within the course and scope of employment when commuting to or from the workplace at the beginning or end of a work day. (Sumrall v. Modern Alloys, Inc. (2017) 10 Cal.App.5th 961, 967-968.) Thus, accidents caused during the employee's normal transit between home and work cannot support respondeat superior liability (so-called “going and coming” rule). This principle is based on the theory that the employment relationship is suspended from the time employees leave their jobs until they return and that during normal commutes, employees are not rendering services directly or indirectly to their employers. (Pierson v. Helmerich & Payne Int'l Drilling Co. (2016) 4 Cal.App.5th 608, 618.) Here, Vista has demonstrated that Torres was transiting to a personal jobsite that was not for the benefit of Vista, and that the truck driven by Torres as owned by Torres solely for personal use at the time of the incident. Accordingly, Vista has met its prima facie burden that Torres was not acting within the scope of his employment at the time of the incident. 

The burden therefore shifts to Plaintiffs to provide evidence of a triable issue of material fact. In opposition, Plaintiffs contend that Torres was in the course and scope of his employment, because there were several other people in the truck wearing orange work shirts and the truck had Vista logos. However, there is no evidence to support Plaintiff’s contention that any other persons in the truck were Vista employees, or that Torres’ transportation of others was for the benefit of Vista. Plaintiff’s assertion of a possibility is but mere speculation. An “opposition to summary judgment will be deemed insufficient when it is essentially conclusionary, argumentative or based on conjecture and speculation.” (Buehler v. Alpha Beta Company (1990) 224 Cal.App.3d 729, 733.) 

Plaintiff’s contention that Vista sold the vehicle to Torres at a discounted rate does not provide an exception to the going-and-coming rule. An exception to the going-and-coming rule will be found when the employer derives some incidental benefit from the employee's trip. (Blackman v. Great American First Savings Bank (1991) 233 Cal.App.3d 598, 604.) One specific exception is when the employer compensates the employee for travel time. (See Hinman v. Westinghouse Elec. Co. (1970) 2 Cal.3d 956, 962, 88 Cal.Rptr. 188.) “The going and coming rule recognizes that travel between home and work is primarily for the employee’s benefit.  Benefit is a tangible fact. When a trip for the employee’s benefit concurrently produces some additional benefit to the employer, an abstract employment relationship may result[,]” which would trigger vicarious liability. (Caldwell v. A.R.B., Inc. (1986) 176 Cal.App.3d 1028, 1041 (citing Harris v. Oro-Dam Constructors (1969) 269 Cal.App.2d 911, 917).)  It is undisputed that Vista did not compensate Torres for travel time.  

Another exception that may apply is where an employer requires an employee to furnish and drive his or her own vehicle as a condition of employment. (Felix v. Asai (1987) 192 Cal.App.3d 926, 032.)  This exception may apply when the use of the employee’s vehicle provides a benefit to the employer, even though the employer did not explicitly require the employee to use his own vehicle.  However, “[t]he requisite benefit must be one that is ‘not common to commute trips by ordinary members of the work force.’ [Citation.]” (Pierson, supra, 4 Cal.App.5th at p. 630; citing to Hinman v. Westinghouse Elec. Co. (1970) 2 Cal. 3d 956, 962.) In other words, there must be a demonstration that the trip involved an incidental benefit to the employer.  

Hinman is particularly instructive in providing a litany of cases indicating the exceptions made to the going and coming rule. (See Harvey v. D & L Const. Co. (1967) 251 Cal. App. 2d 48 [employer asked employee to recruit other employees, and employer was furnishing the gas for the trip to the employee’s home], Richards v. Metro. Life Ins. Co. (1941) 19 Cal. 2d 236 [outside salesman employee left home to see clients outside the office, and his work involved both office work and field work], Boynton v. McKales (1956) 139 Cal. App. 2d 777 [attendance of employee at work social function falls under ‘special errand rule’ if function or attendance was connected with employment and for a material part intended to benefit employer who requested or expected employee to attend], Breland v. Traylor Eng'g & Mfg. Co. (1942), 52 Cal. App. 2d 415 [employer sent employee to California from Pennsylvania to help construct a kiln, and employer paid employee traveling and subsistence allowances].) Plaintiff has provided no evidence that, Torres provided any incidental benefit to his employer Vista after he had clocked out of work.  

Further, it is undisputed that Torres was on his way to his cousin’s house to perform personal work unrelated to Vista. “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 Visser Ranch (2018) 30 Cal.App.5th, 568, 583).)  Plaintiff has provided no evidence that, at the time of the motor vehicle collision, Torres was engaged in duties that incidentally or indirectly contributed to the service or benefit of Vista. In other words, there is no nexus between Torres’ negligence and the employment with Vista to ensure that liability is properly placed upon the employer. (Halliburton Energy Servs., Inc. v. Dep’t. of Transp. (2013) 220 Cal.App.4th 87, 94 

Accordingly, Vista has met its prima facie burden, and Plaintiffs have not provided the existence of any connection between Torres’ driving at the time of the accident and Vista’s business. (Marez, 48 Cal.App.5th at 577 [“There is simply no basis to impose vicarious liability where the employee’s ‘entire trip serves only his or her own personal purposes.’ ”].)  

  

IV. CONCLUSION 

Based on the foregoing, Vista’s motion for summary judgment is GRANTED.  

 

Moving party is ordered to give notice.   

 

PLEASE TAKE NOTICE: 

  • Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement. 

  • If a party intends to submit on this tentative ruling,¿the party must send an email to the court at¿sscdept31@lacourt.org¿with the Subject line “SUBMIT” followed by the case number.¿ The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.¿¿ 

  • Unless¿all¿parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.¿ You should assume that others may appear at the hearing to argue.¿¿ 

  • If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.¿ After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.¿ 

 

Dated this 22nd day of April 2024 

 

  

 

 

Hon. Michelle C. Kim 

Judge of the Superior Court