Judge: Steven A. Ellis, Case: 22STCV388806, Date: 2024-12-31 Tentative Ruling

Case Number: 22STCV388806    Hearing Date: December 31, 2024    Dept: 29

Ruiz v. Maplebear Inc.
22STCV388806
Motion for Summary Judgment filed by Defendant Maplebear, Inc. dba Instacart 

Tentative

The motion is denied.

Background 

On December 14, 2022, Leydi Johana Ruiz (“Plaintiff”) filed a complaint against Maplebear Inc.; Maplebear Inc. dba Instacart; Instacart; Sybreeyah Hill; and Does 1 through 50, asserting a negligence cause of action arising out of an automobile accident occurring on December 20, 2022.

On July 17, 2023, Maplebear, Inc. dba Instacart (“Defendant”) filed an answer.

On July 27, 2023, Sybreeyah Hill (“Hill”) filed an answer.

On October 17, 2024, Defendant filed this motion for summary judgment.

Plaintiff filed an opposition on December 19, and Defendant filed a reply on December 26.

Legal Standard

“The purpose of the law of summary judgment 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.) “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 cause of action as framed by the complaint, a defendant moving for summary judgment or summary adjudication must satisfy the initial burden of proof by presenting facts to show “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, subd. (p)(2); see also Aguilar, supra, 25 Cal.4th at pp. 850-851; Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) 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.” (Code Civ. Proc., § 437c, subd. (p)(2); see also Aguilar, supra, 25 Cal.4th at pp. 850-851.)

A plaintiff or cross-complainant moving for summary judgment or summary adjudication must satisfy the initial burden of proof by presenting facts to show “that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(1).) Once the plaintiff or cross-complainant has met that burden, the burden shift to the defendant or cross-defendant to show that a “triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Ibid.)

The party opposing a motion for summary judgment or summary adjudication may not simply “rely upon the allegations or denials of its pleadings” but must instead “set forth the specific facts showing that a triable issue of material fact exists.” (Code Civ. Proc., § 437c, subds. (p)(1) & (p)(2). 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.)

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.)

Discussion

In 2020, Defendant Hill and Defendant entered into an agreement for Hill to use the Instacart “Shopper App” to obtain opportunities to provide shopping and delivery services to Instacart customers and to receive, in return, certain compensation from Instacart.  (Jacobs Decl., ¶ 4 & Exh. A.)

On December 22, 2020, at approximately 4:45 pm, Defendant Hill was involved in an automobile accident with Plaintiff.  (Defendant’s Statement of Undisputed Material Facts [“DSUMF”], No. 5.)  This is the accident that is at issue in this litigation.

Earlier in the day, Hill was assigned three shopping opportunities for Instacart and completed two such opportunities.  (DSUMF, No. 6.)  The last of the shopping opportunities was offered to Hill at 2:52 pm, accepted, and completed at 4:26 pm, approximately twenty minutes before the subject accident.  (DSUMF, No. 7.)  During that twenty-minute period, Defendant did not offer Hill any further shopping opportunities.  (DSUMF, No. 7.) 

Accordingly, at the time of the accident, Hill was not on her way to pick up or deliver goods for or to an Instacart customer. 

In the complaint, Plaintiff asserts a single cause of action for negligence against both Hill and Defendant.  As Defendant was not driving either vehicle at the time of the accident, and as Defendant was not the owner of either vehicle (Jacobs Decl., ¶ 6), it appears that Plaintiff’s theory of liability against Defendant is based on vicarious liability, and specifically the doctrine of respondeat superior.

The Court is, of course, well aware that the question of whether drivers for delivery services (such as Defendant’s or DoorDash) or transportation services (such as Uber or Lyft) are employees or independent contractors has been a matter of some controversy, including litigation and the passage of Proposition 22, an initiative measure approved by the votes in November 2020 and codified at Business & Professions Code sections 7448 through 7467.   

Defendant does not, however, bring this motion based on a contention that Hill was its independent contractor, rather than its employee, at the time of the accident.  To the contrary, Defendant asserts in its motion that the distinction between independent contractors and employees is “irrelevant in this case.” (Motion, unnumbered page 6, line 9.)  Rather, Defendant bases the motion on its contention that at the time of the accident, it had “no relationship … whatsoever” with Hill at the time of the accident, and that at the time Hill “was neither employee, contractor, agent, or otherwise” but “was a complete stranger to Instacart.” (Id. at lines 10-12.)

In substance, then, Defendant argues in its moving papers that even if Hill were classified as its employee, Defendant is not liable for Plaintiff’s injuries as the accident did not occur within the course and scope of Hill’s employment.

The law regarding respondeat superior liability is well established in California. A “principal is responsible to third persons for the negligence of his agent in the transaction of the business of the agency, including wrongful acts committed by such agent in and as part of the transaction of such business.” (Civ. Code, § 2338.) “[A]n employer is vicariously liable for the torts of its employees committed within the scope of employment.” (Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 296.) “The respondeat superior doctrine makes an employer liable, irrespective of fault, for an employee’s tortious conduct in the scope of employment.” (Diaz v. Carcamo (2011) 51 Cal.4th 1148, 1154.)

For more than 50 years, courts in California have based respondeat superior liability not on a theory of control by the principal or employer but rather on the allocation of risk: a business is responsible for the costs associated with the operations of the business, including the tortious conduct of its agent or employee that is “typical of or broadly incidental to the enterprise [the employer] has undertaken,” the “more or less inevitable toll of a lawful enterprise.”  (Hinman v. Westinghouse Elec. Co. (1970) 2 Cal.3d 956, 960.) The “risks inherent in or created by the enterprise” are properly born by the principal or employer, particularly when the agent or employee who committed the tort “was on company time and was engaged in the very conduct contemplated by the employer.” (Ibid.; see also, e.g., Carr v. Wm C. Crowell Co. (1946) 28 Cal.2d 652, 655-656 [referring to the “risks of the enterprise”].)

In determining the scope of agency or employment, the California Supreme Court has adopted and repeatedly relied on a standard set forth by the Court of Appeal in Rodgers v. Kemper Construction Co. (1975) 50 Cal.App.3d 608, 618-619:

“One way to determine whether a risk is inherent in, or created by, an enterprise is to ask whether the actual occurrence was a generally foreseeable consequence of the activity. However, “foreseeability” in this context must be distinguished from “foreseeability” as a test for negligence.  In the latter sense, “foreseeable” means a level of probability which would lead a prudent person to take effective precautions whereas “foreseeability” as a test for respondeat superior merely means that in the context of the 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 other costs of the employer’s business. … In other words, where the question is one of vicarious liability, the inquiry should be whether the risk was one that may fairly be regarded as typical of or broadly incidental to the enterprise undertaken by the employer.”

(See, e.g., Lisa M., supra, 12 Cal.4th at p. 299 [quoting Rodgers]; Farmers Ins. Group v. County of Santa Clara (1995) 11 Cal.4th 992, 1004 [same]; Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 209 [same]; see also CACI No. 3720 (stating that conduct is within the scope of employment if it is “reasonably related to the kinds of tasks that the [employee] was employed to perform” or “reasonably foreseeable in light of the employer’s business or the [employee’s] responsibilities.”)

“To hold an employer vicariously liable the employee must be engaged in the duties which he was employed to perform or those acts which incidentally or indirectly contribute to the employer’s service.  Conversely, the employer is not liable when the employee is pursuing his own ends.”  (Tryer v. Ojai Valley School (1992) 9 Cal.App.4th 1476, 1481 [citations and quotation marks omitted].)

In the context of respondeat superior liability, courts construe “scope of employment” or “scope of agency” broadly.  (Farmers Ins. Group, supra, 11 Cal.4th at p. 1004; Jorge v. Culinary Institute of America (2016) 3 Cal.App.5th 382, 385; Jeewarat v. Warner Bros. Entertainment (2009) 177 Cal.App.4th 427, 434.)  “Where the employee is combining his own business with that of his employer, or attending to both at substantially the same time, no nice inquiry will be made as to which business he was actually engaged in at the time of injury, unless it clearly appears that neither directly or indirectly could he have been serving his employer.”  (Farmers Ins. Group, supra, 11 Cal.4th at p. 1004; accord Perez v. Van Groningen & Sons (1986) 41 Cal.3d 962, 970; Jorge, supra, 3 Cal.App.5th at p. 386; Jeewarat, supra, 177 Cal.App.4th at pp. 434-435.)

Numerous cases have held that under the “going and coming rule,” an employee “is not regarded as acting within the scope of his employment while going to or coming from his place of work.”  Ducey v. Argo Sales Co. (1979) 25 Cal.3d 707, 722; accord Hinman v. Westinghouse Elec. Co. (1970) 2 Cal.3d 956, 961; Sumrall v. Modern Alloys, Inc. (2017) 10 Cal.App.5th 961, 967-968; Pierson v. Helmerich & Payne Int'l Drilling Co. (2016) 4 Cal.App.5th 608, 618; Moradi v. Marsh USA (2013) 219 Cal.App.4th 886, 894; CACI No. 3725.)

Plaintiffs have the burden of proving that “the employee’s tortious conduct was committed within the scope of employment.” (Mary M., supra, 54 Cal.3d at p. 209; accord Ducey v. Argo Sales Co. (1979) 25 Cal.3d 707, 721; Moreno v. Visser Ranch, Inc. (2018) 30 Cal.App.5th 568, 576.)

“Ordinarily, the determination whether an employee has acted within the scope of employment presents a question of fact; it becomes a question of law, however, when the facts are undisputed and no conflicting inferences are possible.”  Lisa M., supra, 12 Cal.4th at p. 299.)

Against this legal background, the Court now turns to the pertinent facts.

In 2020, Defendant Hill was providing shopping and delivery work for Defendant.  (DSUMF, No. 6.)  Her last work assignment was completed at 4:26 pm.  (DSUMF, No. 7.)  The accident at issue occurred approximately 20 minutes later, at about 4:45 pm.  (DSUMF, No. 5.)

After the last delivery, Hill “swiped” on the Instacart Shopper App to note that the delivery was complete.  (Yazdanpanah Decl., Exh. D, at 21:1-11.)  After that, Hill testified, she “was driving around in the area to pick up more orders” for Instacart.  (Id., at 21:12-18.)  She was not headed to any particular location but she was “focused on getting home,” heading toward her home “but hoping that [she] would get another order.”  (Id. at 22:7-15.)

Hill further testified at her deposition as follows:

“Q. Did you have any intentions of stopping anywhere else on the way home?

A. Yes.

Q. Where were you intending on stopping?

A. If I had gotten an Instacart order, I would have picked that up.

Q. Did you have the Instacart app on at the time of the accident?

A. Did I have it on?  Like, was it up?

Q. Yes.

A. Yes.

Q. And you were actively waiting for orders at that time?

A. Yes.

Q. How come you didn’t park and wait in a specific area to see if more orders were going to come in?

A. Because I was driving in the direction of home.  Still having the app open on my dashboard – my phone holder, I can drive actively to where I’m going and still have the app open.”

(Id., at 23:4-23.)

The Court has carefully considered this evidence, as well as all of the other evidence and argument presented by both sides.  On this record, the Court concludes that there are triable issues of fact as to whether Hill was acting within the course and scope of her agency or employment relationship with Defendant at the time of the accident.  The Court gives particular weight to Hill’s testimony that she was “actively waiting for orders” at the time.  Based on this testimony, and the other evidence in the record, a trier of fact could reasonably draw the inference that the accident occurred during the course and scope of Hill’s agency or employment with Defendant.  This is not an issue that, on this record, can be resolved as a matter of law.

To be clear, the Court is not making this ruling based only on the fact that Hill had the Instacart Shopping App open at the time of the accident.  Rather, the Court is also considering Hill’s testimony that she was “actively waiting for orders” when the accident occurred, as well as all of the other evidence in the record.

Accordingly, the Court need not reach, and does not reach, the other arguments Plaintiff makes in her opposition, including relating to the required vehicle exception to the coming and going rule.  (But see Jacobs Decl., ¶ 5 [“Shoppers [including Hill] are required to provide their own equipment, including vehicles.”].)

Finally, the Court notes that Defendant argues in its reply that Hill was an independent contractor with, and not an employee of, Defendant.  (Reply, at pp. 3-5.)  But having argued in its opening brief that it was not material whether Hill was an independent contractor or an employee, Defendant cannot then in its reply argue that it is material to this motion for summary judgment that Hill was an independent contractor.  For purposes of resolving this particular motion, the Court must rule based on the arguments made in the moving papers, not new arguments raised in reply.

Defendant’s motion for summary judgment is denied.

Conclusion

The Court DENIES the motion for summary judgment filed by Maplebear, Inc. dba Instacart.

Moving Party to give notice.