Judge: Ronald F. Frank, Case: 19STCV32212, Date: 2025-01-03 Tentative Ruling
Case Number: 19STCV32212 Hearing Date: January 3, 2025 Dept: 8
Tentative Ruling
HEARING DATE: January 3, 2025
CASE NUMBER: 19STCV32212
CASE NAME: Tanda Orelia Rucker v. Fernando Pineda, et al.
MOVING PARTY: Defendant, Executive Car Leasing Company
RESPONDING PARTY: Plaintiff, Tenda Orelia Rucker
TRIAL DATE: February 5, 2025
MOTION: (1) Motion for Summary Judgement, or in the alternative, Summary Adjudication
Tentative Rulings: (1) MSJ denied, but MSA as to negligent entrustment cause of action granted.
I. BACKGROUND
A. Factual
On September 11, 2019, Plaintiff, Tanda Orelia Rucker (“Plaintiffs”) filed a complaint against Defendants, Fernando Pineda, and DOES 1 through 50. The complaint alleges one cause of action for Negligence. The complaint is based on the allegation that on October 10, 2017, Plaintiff was lawfully traveling westbound on Manchester Blvd/, approaching the intersection at West Blvd., when her vehicle was involved in a collision caused by Defendant, Fernando Pineda’s vehicle. (Complaint, ¶ 12.) Plaintiff alleges that Defendant Pineda was traveling directly behind her and failed to observe the red light facing him and Plaintiff’s vehicle ahead of him, causing a rear-end collision with Plaintiff. (Plaintiff, ¶ 12.) The complaint also states that Defendant Pineda was intoxicated at the time of the collision, was arrested by the police at the scene of the collision and was charged with a felony count of driving under the influence. (Plaintiff, ¶ 12.)
On November 16, 2020, Plaintiff filed a Doe Amendment naming Defendant, Executive Car Leasing Company as DOE 1. Now, Executive Car Leasing Company has filed a Motion for Summary Judgment or, in the alternative, Summary Adjudication. Mr. Pineda, the alleged driver of the striking vehicle, is represented separately form Executive Car Leasing.
B. Procedural
This litigation was pending for years in the PI hub court downtown, and was recently reassigned to the Southwest District. On October 17, 2024, Executive Car Leasing Company filed a Motion for Summary Judgment, or in the alternative, Summary Adjudication. On December 20, 2024, Plaintiff filed an opposition brief. On December 27, 2024, Defendant Executive Car Leasing Company filed a reply brief.
II. EVIDENTIARY OBJECTIONS
Plaintiff’s Objections to Defendant’s Moving Evidence:
Sustain: none.
Overrule: all.
Defendant’s Objections to Plaintiff’s Opposing Evidence:
Sustain: 1, 2, 3, 5 to Pineda depo excerpts
Overrule: remainder
III. ANALYSIS
A. Legal Standard
The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) CCP Section 437(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.)¿ “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.”¿ (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382.)¿
As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (CCP § 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520. ) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.”¿ (Dore v. Arnold Worldwide, Inc.¿(2006) 39 Cal.4th 384, 389.)¿
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 that cause of action or a defense thereto.¿¿¿
To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)
B. Whether Defendant Pineda was Acting in The Course and Scope of His Employment with Defendant ECL at The Time of The Accident.
Here, Defendant, Executive Car Leasing Company (“ECL”) moves for summary judgment or, in the alternative, summary adjudication, on the grounds it argues Defendant, Fernando Pineda, was not acting within the course and scope of his employment for Defendant the time of the incident, and because ECL argues it has no liability to Plaintiff arising from the motor vehicle accident involving Plaintiff and Mr. Pineda.
An employee is generally 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. Thus, accidents caused during the employee's normal transit between home and work generally cannot support respondeat superior liability (so-called “going and coming” rule). (See, e.g., Caldwell v. A.R.B., Inc. (1986) 176 Cal.App.3d 1028, 1035), holding that an employee sent home early because of heavy rain making work conditions difficult and unsafe fell within the “going and coming” rule; Henderson v. Adia Services, Inc. (1986) 182 Cal.App.3d 1069, 1076-1078, holding that an employee for a temporary employment agency was within “going and coming” rule while commuting to a temporary job assignment.) This principle is based on the theory that the employment relationship is suspended from the time employees leave their jobs until they return; and on the theory that during normal commutes, employees are not rendering services directly or indirectly to their employers. (See Pierson v. Helmerich & Payne Int'l Drilling Co. (2016) 4 Cal.App.5th 608, 618.)
There are, however, various exceptions to the going-and-coming rule. For example, the result is otherwise if the employee is not simply in normal transit to or from work, but is “coming or going” on a special (business) errand incident to his or her regular duties or at the employer's specific order or request. When there is an additional business purpose to the activity, employees are deemed to be in the scope of employment from the time they commence the “errand” until they return or deviate therefrom for personal reasons. (See Sumrall v. Modern Alloys, Inc. (2017) 10 Cal.App.5th 961, 968, holding that whether an employee was on special/business errand ordinarily is factual issue for jury to decide.) The “special errand” rule covers any activity that indirectly or incidentally benefits the employer: e.g., picking up or returning tools used on the job; or a trip during which the employee responds to a service call for the employer's business; or a trip to attend an out-of-town business conference. (See Caldwell v. A.R.B., Inc. (1986) 176 Cal.App.3d 1028, 1036-1037.)
Another exception to the “going and coming” rule applies where the employer furnishes, or requires the employee to furnish, a vehicle as an express or implied condition of employment. In such event, the employee is in the scope of employment while commuting to and from the place of employment even if the employee's actual use of the vehicle for work-related purposes is infrequent. (See Moradi v. Marsh USA, Inc. (2013) 219 Cal.App.4th 886, 895.)
i. The Halliburton Test
In ECL’s moving papers, it more specifically asserts that Mr. Pineda was not in the scope and course of his employment under Halliburton Energy Services, Inc. v. Department of Transportation (2013) 220 Cal.App.4th 87 (“Halliburton”)
In Halliburton, the Court of Appeal for the Fifth District described a test for determining whether an employee’s conduct was within the scope of his or her employment by analyzing 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, supra, 220 Cal.App.4th at 94.) The Halliburton Court described that foreseeability meant 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.) “An example of this tyle of foreseeability occurs when an employer requires an employee to drive his own vehicle to and from its office so the vehicle is available for company business during the workday.” (Moreno v. Visser Ranch, Inc. (2018) 30 Cal.App.5th 568, 581 (“Moreno”).) In this example, “ ‘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.’” (Halliburton, supra, 220 Cal.App.4th at 96.) The Court in Halliburton reasoned that the rationale for this is that “ ‘[t]he employer is liable not because the employer has control over the employee or is in some way at fault, but because the employer’s enterprise creates inevitable risks as part of doing business.’” (Id. at 94.)
1. Required Acts
Under the Halliburton Test, “[w]hether the act performed by the Driver was required turns on how the act is described or characterized.” (Moreno, supra, 30 Cal.App.5th at 581.) In Halliburton, the employee who lived near Bakersfield, California - where he worked 50 percent of the time - was assigned by his employer to work 12-hour shifts on an oil rig near Seal Beach, California, approximately 140 miles from Bakersfield. (Halliburton, supra, 220 Cal.App.4th at 92.) Between one of his shifts, the employee used a company truck to make a personal errand when he drove back to Bakersfield to meet his wife and daughter at a car dealership to purchase a vehicle for his wife. (Ibid.) However, on his return trip to Seal Beach, he was involved in an automobile accident in the company truck. (Ibid.) The Court of Appeal in Halliburton held that the doctrine of Respondeat Superior did not apply because the employee’s trip to Bakersfield “was entirely personal” an was “not made in the furtherance of any business activity of the employer.” (Id. at 102.) The Halliburton Court found that the risk of the automobile accident was “not a risk inherent in, or’ “ ‘typical of or broadly incidental’ to” Halliburton’s enterprise.” (Ibid.)
Here, ECL maintains that similar to the accident in Halliburton, the accident in the case at bar, was not a required or incidental act of Mr. Pineda’s employment as the accident took place at 11:50 p.m., over six-and-a-half hours after Mr. Pineda completed his workday, and only took place after he was watching soccer with his brother at a sports bar, became intoxicated there, and drove his brother home – actions that were not required by nor incidental to his duties as a service manager for ECL. (ECL’s SSUMF No. 20, Pineda Depo at 64:25-67:18, 68:20-73:7, & 85:9-25.) Based on these facts, this Court believes that Defendant ECL has carried its initial burden.
In Plaintiff’s opposition, Plaintiff argues that triable issues of material fact exist as to whether driving ECL’s vehicle during personal time was “either required or incident to” Pineda’s use of ECL’s vehicle.” Plaintiff provides evidence that Pineda stated in his deposition that both a benefit and responsibility of his position as Service Manager was that each evening, he selected a different vehicle of Defendant ECL’s fleet of loaner vehicle to take home and conduce a “test drive” (Plaintiff’s SSDMF Nos. 1-5, Pineda Depo. at 27:4-25, 29:5-10, 29:20- 30:1, 40:5-17, 44:7-19, 46:11-14, 51:7-18, 54:11-55:2.) As reviewed by the Court, Pineda stated in his deposition, that he was tasked with test driving loaner and leased vehicles to ensure that they were operating correctly before being provided and/or returned to customers as well as reporting back to ECL what, if any, repairs needed to be performed. Pineda confirmed that the test driving did not include going to a track to drive those vehicles. Instead, Pineda answered in the affirmative, that the test-driving included acts such as driving home or driving to the grocery store to determine, for instance, whether the lights in the vehicle came on, or whether the brakes came on. (Pineda Depo. at 54:20-55:2.)
Based on Pineda’s deposition regarding test-driving, Plaintiff argues that ECL was provided an incidental benefit from Pineda simply driving the vehicles generally. Plaintiff also asserts that Pineda’s deposition testimony was corroborated by the testimony of Defendant ECL’s PMQ, their insurance department supervisor, Laura Bracken, who confirmed that part of Pineda’s job responsibilities was to make sure the loaner vehicles were running properly and safely. (Bracken Depo. at 106:12-23.) Further, Plaintiff also submits that David Godman, President of ECL, testified that the company benefited from allowing employees to drive company owned vehicles because it helped attract employees by giving them perks. (Plaintiff’s SSDMF Nos. 4, Goldman Depo. at 10:19-22, 98:7-25.)
Plaintiff argues that the case at bar is much more analogous to Moradi v. Marsh USA, Inc. (2013) 219 Cal.App.4th 886 (“Moradi”). In Moradi, the Court of Appeal for the Second District recognized an exception to the “going and coming” rule where the employer furnishes, or requires the employee to furnish, a vehicle as an express or implied condition of employment. In such event, the employee is in the scope of employment while commuting to and from the place of employment even if the employee's actual use of the vehicle for work-related purposes is infrequent. (219 Cal.App.4th at 895.) In Moradi, the employer required the employee to use her personal vehicle to travel to and from the office and make other work-related trips during the day. Therefore, the employee was acting within the scope of her employment when she was commuting to and from work. (Id.) The Court found that the planned stops were only a minor deviation due to the fact that she used her vehicle for work. (Id.)
Thus, the Court finds that the crux of the issue presented here was whether Pineda’s acts of meeting his brother at a sports bar and subsequently driving after being intoxicated was a minor deviation from his work activities. In the reply brief, ECL draws on the Fourth District Court of Appeal Decision of Le Elder v. Rice (1994) 21 Cal.App.4th 1604 (“Le Elder”) to make this same determination. In Le Elder, an employee, who was required to be available 24 hours a day, seven days a week, was using his personal vehicle to return home after dropping his children off at school when he struck plaintiff on her bicycle. (Id. at 1606-1607.) The Court concluded that the employee was not acting in the scope of his employment at the time of the accident, despite technically being on call.
However, many of the factors the Court in Le Elder relied on to come to its determination are distinguishable from the case at bar. In fact, many of these factors from Le Elder, were distinguished in Moreno v. Visser Ranch Inc. There, the Moreno Court concluded that there existed a triable issue of material fact as to whether the employee-driver was engaged in purely personal business at the time of the incident.
In fact, the Moreno Court distinguished that case from both Halliburton and Le Elder, reasoning that unlike Halliburton, “where the employee was not required to use the company truck for his personal business and had not gotten permission to use the company truck for the personal trip in question,” the employee-driver there was required to use the vehicle at all times. (Moreno, supra, 30 Cal.App.5th at 584.) Because of this secondary business purpose, the Moreno Court held that it would not “conclude as a matter of law that Driver was engaged in purely personal business when the accident occurred.” (Ibid.)
The Court finds this case, at the summary judgment stage, to have the same conclusion. Here, Plaintiff has presented disputed issues of material fact as to whether Pineda could have also had a secondary business purpose of testing the vehicles at the time of the incident. Therefore, as to the issue of whether Pineda as acting in the course and scope of his employment with ECL at the time of the accident, the Court DENIES the Motion for Summary Judgment.
ii. Negligent Entrustment
ECL also asserts that this Court should resolve summary judgment in its favor with respect to the negligent entrustment issue.
“Every owner of a motor vehicle is liable and responsible for the death or injury to person or property resulting from a negligent or wrongful act or omission in the operation of the motor vehicle, in the business of the owner or otherwise, by any person using or operating the same with the permission, express or implied, of the owner.” (Veh. Code, § 17150.) “Liability arises solely from the owner’s status as owner of the vehicle, now from any independent fault or wrongdoing on the owner’s part.” (Galvis v. Petito (1993) 13 Cal.App.4th 551, 555 (emphasis omitted).)¿ To hold a defendant liable for negligent entrustment, the plaintiff must prove that (1) the driver was negligent in operating the vehicle; (2) that the defendant was an owner of the vehicle operated by the driver; (3) that the defendant knew, or should have known, that the driver was incompetent or unfit to drive the vehicle; (4) that the defendant permitted the driver to use the vehicle; and (5) that the driver’s incompetence or unfitness to drive was a substantial factor in causing harm to the plaintiff. (Jeid-Wen, Inc. v. Superior Court (2005) 131 Cal.App.4th 853, 863-64.)
ECL provides evidence that Pineda had worked for it for approximately 17 years prior to the subject accident and had been a model employee with a valid driver’s license. (ECL’s SSUMF No. 19.) Prior to hiring Pineda, ECL checked Pineda’s driving record by utilizing a DMV Pull List that would notify ECL if Pineda ever had any activity on his driving record. (ECL’s SSUMF No. 16.) ECL also provided evidence that prior to the accident in the case at bar, Pineda had never been involved in an accident involving driving under the influence, had never been charged with a DUI, had never been involved in any at-fault accidents or accidents involving driving under the influence, or had been involved in any accidents that would cause ECL to not allow him to drive their vehicles. (ECL’s SSUMF Nos. 13-14, 17.)
In opposition, Plaintiff argues that ECL failed to perform a criminal background check on Pineda, which would have revealed that he pleaded guilty to a misdemeanor violation of California Penal Code section 273.5(a). Plaintiff also argues that after the accident ECL conceded to Pineda experiencing prior to the accident in question, ECL should have performed another investigation or re-evaluation of Pineda. The Court disagrees that either of these arguments raise triable issues of fact regarding negligent entrustment of Pineda’s ability to drive ECL vehicles safely. As such, the Court GRANTS the MSA motion as to the negligent entrustment issue.
IV. CONCLUSION
For the foregoing reasons, ECL’s Motion for Summary Judgment, or in the alternative, Summary Adjudication is DENIED as to the issue of Pineda being in the course and scope of his employment at the time of the accident. However, the Court GRANTS the motion as to the issue of negligent entrustment.
Defendant ECL is ordered to give notice.