Judge: Salvatore Sirna, Case: 24PSCV00005, Date: 2025-05-14 Tentative Ruling
Case Number: 24PSCV00005 Hearing Date: May 14, 2025 Dept: G
Defendant CITY OF La Habra’s Motion for Summary Judgment
Respondent: Plaintiffs Haichang Lu and Yankun Zhang
TENTATIVE RULING
Defendant CITY OF La Habra’s Motion for Summary Judgment is DENIED.
BACKGROUND
On January 2, 2024, Plaintiffs Haichang Lu, and Yankun Zhang (“Plaintiffs”) filed a Complaint against Defendants City of La Habra (“Defendant”) and James Devlin Vlietstra (“Vlietstra”) asserting two causes of action: (1) motor vehicle negligence; and (2) general negligence.
On June 20, 2024, Plaintiffs filed the operative first amended complaint (“FAC”), alleging a cause of action for motor vehicle negligence, and citing the statutory basis for liability against a public entity, such as the City, as Government Code section 815.2 (vicarious liability).
The FAC alleges that on December 29, 2022, Defendant Vlietstra, who was employed by the City of La Habra, and acted within the scope of employment, operated a vehicle negligently, which collided with Plaintiffs’ vehicle, causing injuries.
On February 21, 2025, Defendant filed the instant Motion for Summary Judgment. On April 23, 2025, Plaintiffs filed an opposition. On May 2, 2025, Defendant filed a reply.
DISCUSSION
Defendant moves for summary judgment, arguing that Plaintiffs are unable to establish vicarious liability for the acts of Defendant Vlietstra.
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).)
Evidentiary Objections
Defendant’s Objections to Plaintiff’s Evidence
The Court declines to rule on Defendant’s objections to Plaintiff’s evidence. While the Court “must” rule on all evidentiary objections made at the summary judgment stage, it is permitted to focus its attention on those which are “important.” (See Reid v. Google, Inc. (2010) 50 Cal.4th 512, 532; see also Code Civ. Proc., § 437c, subd. (q) [the court need only rule those objections to evidence that were material in the disposition of the MSJ].) In deciding Defendant’s Motion for Summary Judgment, the court did not rely on evidence presented by Plaintiffs. Accordingly, the court need not consider Defendant’s objections to this evidence.
Analysis
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 Vlietstra 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 his grandmother’s house after work, 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 thise 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 action within the scope of his or her employment. (Id.)
Here, Defendant presents evidence that Vlietstra was employed by Defendant City of La Habra as a water services technician. (UMF No. 4.) Defendant also presents evidence that on the date of the incident, after Vlietstra finished work, he drove the vehicle to his grandmother’s house to wait out traffic for 1-2 hours in case he was called back to work or before driving home. (UMF Nos. 5, 6.) Vlietstra drove from his grandmother’s residence to his own home. (UMF No. 7.) The accident with Plaintiffs took place on Vlietstra’s drive home from his grandmother’s house. (Id.) Vlietstra’s grandmother’s residence was out of the way from Vlietstra’s drive home, and was not on the route Vlietstra would have taken if driving from work to home. (UMF No. 6.) Vlietstra’s grandmother lived in the City of La Habra Heights, and Vlietstra lived in the City of Upland. (UMF Nos. 5-6.)
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.) The court recognizes, however, there are exceptions to the going and coming rule.
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, but there is no respondeat superior liability if the employee substantially departs from the employer’s business or is engaged in a purely personal activity at the time of the tortious injury. (Halliburton, supra, 200 Cal.App.4th at 97.)
Plaintiffs present evidence that in Vlietstra’s employment with Defendant as a water technician, he was responsible for servicing water breaks, reading the meters, checking reservoir levels, and more. (Plaintiff’s Additional Material Facts (“AMF”) No. 12.) On December 29, 2022, Vlietstra had completed his regular workday and was the on-call technician that day. (AMF No. 21.) The on-call technician was expected to respond to any emergency, at any time of the day, and without regard to the worker’s after-hour location. (AMF No. 14.) As such, the on-call technician was authorized to drive Defendant’s vehicle home and use Defendant’s vehicle throughout the week that he was on-call. (AMF No. 15.) Vlietstra was driving Defendant’s Ford Ranger at the time of the collision. (AMF No. 21.)
Vlietstra lived in Upland, but his grandmother lived much closer, in La Habra Heights. (AMF No. 22.) Over the two years that Vlietstra worked as an on-call water technician, he developed a routine. (AMF No. 23.) If he was on-call, Vlietstra would often stop in La Habra Heights by his grandmother’s house, to be better positioned to respond to the more frequent late-afternoon calls. (AMF No. 23.) To travel home right away would require Vlietstra to sit in traffic—on either CA-60, CA-57, or I-10—only to have to return to La Habra if there was a call. (AMF No. 23.) And there was no way to predict when—or how often—calls would come in. (AMF No. 23.)
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 Vlietstra was furnished a vehicle by Defendant in order to further his employment duties for Defendant, such as responding to emergencies, and driving to work sites.
Plaintiffs also argue that stopping at Vlietstra’s grandmother’s house for dinner was, at best, a minor deviation from his 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, supra, 130 Cal.App.4th 1), and driving three hours out of the way to purchase a new family car (Halliburton, supra, 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.
Importantly, 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, supra, 219 Cal.App.4th at 905 [italics added].)
Additionally, the court finds there are triable issues of material fact as to whether Vlietstra stopping at his grandmother’s house on his way home from work was a minor deviation. Similar to stopping on the way home to eat in Moradi (Moradi, supra, 219 Cal.App.4th at 905), this stop was also predictable. It was a planned deviation that was necessary for Vlietstra’s comfort and convenience, in that he stopped in order to avoid traffic on his commute home from work. (Id.)
The facts in Sunderland and Halliburton are distinguishable. In Sunderland the defendant 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. In Halliburton, the defendant drove 140 miles out of the way to purchase a new family car. The facts here only show that Vlietstra stopped by his grandmother’s house located in La Habra Heights, the city adjacent to the city of his workplace, La Habra, to avoid traffic for his convenience and comfort, or because he could be called back to work on the way home. The court finds Plaintiff’s situation analogous to stopping to get yogurt and attending a yoga class before heading home like in Moradi. Moreover, while Defendant argues that Vlietstra’s grandmother’s house was out of the way from his route home, the facts show that she lives in the city adjacent to the city in which he worked. Thus, the court finds his deviation to his grandmother’s house raises a triable issue as to whether this action constituted a substantial departure. After all, his entire purpose of going there was to avoid traffic. As a result, the court finds Defendant did not satisfy its burden on demonstrating no triable issues of material fact that would entitle it to summary judgment.
Lastly, Defendant failed to present evidence or argument as to the negligent entrustment claim in the FAC. The motion for summary judgment is also denied for this independent reason, since Defendant did not move for summary adjudication. Thus, the failure to present evidence as to this claim is fatal to the entire motion. In response to this argument, Defendant contends in the reply that negligent entrustment is a theory of direct negligence, and a public entity such as the City of La Habra may not be held liable on a theory of direct negligence. (See Gov. Code, § 815.) However, it was incumbent upon Defendant to address this issue in its moving papers (or in a previous demurer). The issue may not be raised initially in the reply. Due process requires proper notice to Plaintiff and an opportunity to respond, which Defendant failed to provide.
CONCLUSION
Based on the above analysis, Defendant’s motion for summary judgment is DENIED.
Defendant is ordered to give notice.