Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. PC038389 Barbara M. Scheper, Judge. Affirmed.
Stone, Dolginer & Wenzel, Mark D. Wenzel; Law Offices of Robert H. Pourvali and Robert H. Pourvali for Plaintiff and Appellant.
Wood, Smith, Henning & Berman, Kevin D. Smith, Anne K. McIntyre and Nicholas M. Gedo for Defendant and Respondent Twentieth Century Fox Film Corporation.
No appearance for Defendant and Respondent Davis Entertainment Company.
EPSTEIN, P.J.
Edward Avedikian appeals from an adverse judgment in his personal injury action stemming from an automobile accident. He contends the trial court erred in granting summary judgment on the ground that the going-and-coming rule precludes vicarious liability based on respondeat superior as to defendants and respondents. Appellant also contends the trial court erred in denying his request for a continuance of the summary judgment hearing to enable him to obtain a declaration from an expert witness.
We find no abuse of discretion in denial of the continuance. We conclude that the exceptions to the going-and-coming rule invoked by appellant do not apply and that respondents were entitled to summary judgment.
FACTUAL AND PROCEDURAL SUMMARY
Adam Nevarez fell asleep at the wheel of his automobile on the morning of September 22, 2005, on his way to work. He struck appellant, who was riding his bicycle. Appellant sued Nevarez and the owner of the car Nevarez was driving, alleging that his personal injuries were the result of their negligence. The complaint was amended to name Twentieth Century Fox Film Corporation (Fox) and Davis Entertainment Company (Davis) as Doe defendants on a theory of vicarious liability because Nevarez allegedly was acting as their employee at the time of the accident.
Fox and Davis brought a joint motion for summary judgment on the grounds that (1) Davis never employed Nevarez, did not determine his work schedule, and did not own or entrust the vehicle involved in the accident to him; (2) the going-and-coming rule precluded Fox from incurring respondeat superior liability; and (3) Fox did not own, operate, maintain or entrust to Nevarez the car he was driving in the accident. Appellant opposed the motion and filed a response to the moving parties’ separate statement of undisputed facts.
Appellant’s ex parte application to continue the summary judgment hearing was denied. The motion for summary judgment was granted. The court found that appellant had failed to present facts to dispute the showing that he was not employed by Davis. As a matter of law, the trial court concluded that Davis had no responsibility for the accident.
As to Fox, the trial court refused to extend the special risk exception to the going-and-coming rule as appellant urged. The trial court also found it undisputed that Nevarez finished work at 8:36 p.m. on Wednesday, September 21, and was scheduled to report back to work the following morning at 7:30 a.m. Since the accident occurred while Nevarez was driving to work, the court found there was no “‘work-related event’” that appellant could point to as causally connected to the accident. It found no support in the evidence for appellant’s claim that the accident was the result of the alleged industry-wide practice of working employees in the film industry long hours. The court further held that even if “the court were to accept the proposition that it is common in the film industry to work crew members long hours, the evidence in this case demonstrates only that defendant Nevarez worked on two consecutive days for defendant Fox with an 11 hour break in between.” Based on the going-and-coming rule, the court concluded that the undisputed facts established that respondeat superior liability could not attach to Fox as a matter of law. In addition, the court found that the accident was not a foreseeable risk of any work-related event such that Fox could be held liable.
Summary judgment in favor of Fox and Davis was entered. Judgment was entered in their favor. Appellant filed a timely appeal from the judgment.
Although appellant appealed from the judgment in favor of both Fox and Davis, in his opening brief, he stated that he was only pursuing the appeal as to Fox.
DISCUSSION
I
Appellant argues the trial court erred in denying his application for a continuance of the hearing on the motion for summary judgment. Although appellant did not cite it in his application, Code of Civil Procedure section 437c, subdivision (h) governs continuances of summary judgment hearings: “If it appears from the affidavits submitted in opposition to a motion for summary judgment... that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented, the court shall deny the motion, or order a continuance to permit affidavits to be obtained or discovery to be had or may make any other order as may be just. The application to continue the motion to obtain necessary discovery may also be made by ex parte motion at any time on or before the date the opposition response to the motion is due.”
Statutory references are to the Code of Civil Procedure unless otherwise indicated.
“The statute mandates a continuance of a summary judgment hearing upon a good faith showing by affidavit that additional time is needed to obtain facts essential to justify opposition to the motion. [Citations.] Continuance of a summary judgment hearing is not mandatory, however, when no affidavit is submitted or when the submitted affidavit fails to make the necessary showing under section 437c, subdivision (h). (Frazee [v. Seely (2002)] 95 Cal.App.4th [627,] 633-634; see also California Automobile Ins. Co. v. Hogan (2003) 112 Cal.App.4th 1292, 1305-1306.) Thus, in the absence of an affidavit that requires a continuance under section 437c, subdivision (h), we review the trial court’s denial of appellant’s request for a continuance for abuse of discretion. (FSR Brokerage, Inc., v. Superior Court (1995) 35 Cal.App.4th 69, 72.)” (Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 253-254 (Cooksey).) Therefore, we must examine the application and the procedural history to determine the applicable standard of review.
A. The Application
The application for a continuance was brought on Friday, November 16, 2007, and the hearing on the summary judgment motion was set for the following Monday, November 19. Counsel for appellant explained that he had opposed the motion based on the special risk exception to the going-and-coming rule of vicarious liability. His theory was that the long hours of work required by respondents significantly increased the risk of injury to employees and other motorists, and that accidents were a reasonably foreseeable consequence.
We address this legal theory in the second and third parts of our discussion.
Counsel for appellant acknowledged that he had filed an unsigned declaration by Haskell Wexler in support of his opposition to the summary judgment motion. Wexler had prepared a documentary film entitled “Who Needs Sleep” which chronicled his experience in the movie industry, the increasing demands on workers in the industry, and the significant increase in traffic accidents involving industry workers caused by excessive work hours and lack of sleep. Counsel had read the declaration to Wexler on November 2, and Wexler had agreed to meet counsel at his home to execute the declaration on November 5, 2007. Wexler did not keep the November 5 appointment. Counsel for appellant called Wexler’s assistant, Leslie Ward, who said that Wexler had been at the doctor’s office that morning and that she would attempt to get more information. On November 7, counsel for appellant received an e-mail or a telephone call from Ward “in which she stated that Mr. Wexler could not be involved in this case at this time.” Wexler’s son later told counsel for appellant that his father had a serious medical condition which would preclude him from participating in appellant’s case. Counsel for appellant declared: “Mr. Wexler’s unavailability came as a complete surprise to me as I had all along reasonably believed that Mr. Wexler would continue to assist my client in this case and, based upon my conversations with Mr. Wexler, prepared the declaration which was submitted to the Court without signature on November 5, 2007.”
Appellant sought a continuance to submit a new declaration from Dr. William Dement and to revise the opposition papers in light of that declaration. He explained that Dr. Dement, an expert in sleep disorders, previously had been retained and designated as an expert for appellant. Dr. Dement appears in Wexler’s documentary film “Who Needs Sleep.” According to counsel for appellant, he “provides factual scientific information explaining the [phenomenon] of excessive hours worked, resulting in sleep deprivation and an increased risk of tragic vehicular accidents.” Counsel for appellant was advised by Dr. Dement’s assistant that he was out sick that week, but counsel had made arrangements to work with Dr. Dement the following week to secure his declaration to submit in opposition to the summary judgment motion. A brief continuance of the hearing on the summary judgment motion and the trial (set for Dec. 10, 2007) was sought to obtain and present this evidence, which counsel described as “pertinent evidence supporting his claim that the special risk exception to the [going-and-coming] rule applies in this case.”
B. Hearing on Application
At the hearing on the application for continuance the court indicated that it had already prepared its tentative ruling on the summary judgment motion and was prepared to proceed on that motion. The court indicated that the reasons given for the requested continuance were not relevant to the court’s proposed ruling on the merits of the summary judgment. Counsel for Fox and Davis contended that the application for a continuance was untimely because counsel for appellant had known for nine days that Wexler was unavailable. All the reply papers and evidentiary objections by respondents had been filed. In addition, she argued that Dr. Dement’s area of expertise, sleep disorders, was entirely different from Wexler’s expertise on cinematography. Counsel for respondents argued her clients would be prejudiced by giving appellant an additional opportunity to present evidence in opposition to the summary judgment motion.
Counsel for appellant argued the application was not late under Code of Civil Procedure section 437c, subdivision (h). Contrary to his declaration, which said he learned Wexler would not be available on November 7, at the hearing counsel said he did not learn this information until November 13 from Wexler’s son. After confirming that the court felt the declaration by Wexler would not have impacted its reasoning on the merits of summary judgment, counsel for appellant said he might withdraw the application if the Dement declaration would not be germane. The court said it would consider the merits of the application for continuance without regard to the proposed ruling on the summary judgment. It said that there was no reason to continue the hearing in the hope that Wexler would be able to execute the declaration soon enough to accommodate the court and counsel.
As to the request to substitute a declaration from Dr. Dement, the court said it would not be appropriate. “What I recall from reading the motion is that he was someone that you have been consulting with. You did refer to him and to his studies and his work. I believe there was even an abbreviated CV included in the materials. [¶] I think it was incumbent upon you in filing the original opposition to obtain admissible evidence from that person without regard to the issue of Mr. Wexler’s availability. I understand the prime reason for Dr. [sic] Wexler’s proposed declaration... to put this issue of sleep deprivation in the context of the... film industry, where the defendant Nevarez was working at the time of this accident. [¶] Dr. [Dement], separate and apart from whatever may be happening in a particular industry, was proposed to talk about the effects of sleep deprivation on people in general.” The court concluded that Wexler’s unavailability did not create “a reason for you not to provide admissible evidence that you could and should have provided in the initial opposition.” The request for continuance was denied.
In response, counsel for appellant said, “I appreciate what your honor says and indeed it makes sense. A declaration should have been provided in opposition. On the other hand, I thought that the evidence that we had presented in opposition to the summary judgment motion with Mr. Wexler was sufficient. So that is why I didn’t do it, and Dr.[Dement] does have additional things to talk about.”
C. Timeliness
Under section 437c, subdivision (h), the application for a continuance may be made “by ex parte motion at any time on or before the date the opposition response to the motion is due.” The opposition to a summary judgment motion must be filed 14 days before the hearing date. (§ 437c, subd. (b)(2).) Since appellant’s application was filed after the deadline for filing opposition, it was untimely. (Cooksey, supra, 123 Cal.App.4th 246, 255.) The declaration could have been disregarded on that basis. (Id. at p. 259.) We therefore review the trial court’s denial of appellant’s request for a continuance for abuse of discretion because there was no affidavit that requires a continuance under section 437c, subdivision (h). (Cooksey, supra, 123 Cal.App.4th at pp. 253-254.)
D. Sufficiency of Application
“A declaration in support of a request for continuance under section 437c, subdivision (h) must show: ‘(1) the facts to be obtained are essential to opposing the motion; (2) there is reason to believe such facts may exist; and (3) the reasons why additional time is needed to obtain these facts. [Citations.]’ [Citation.] ‘“The purpose of the affidavit required by Code of Civil Procedure section 437c, subdivision (h) is to inform the court of outstanding discovery which is necessary to resist the summary judgment motion. [Citations.]”’ (Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 397 (Bahl).) ‘It is not sufficient under the statute merely to indicate further discovery or investigation is contemplated. The statute makes it a condition that the party moving for a continuance show “facts essential to justify opposition may exist.”’ [Citation.]” (Cooksey, supra, 123 Cal.App.4th at p. 254.)
There is a split of authority as to whether lack of diligence of the party seeking a continuance may be a basis for denial of the application. Appellant cites Bahl, supra, 89 Cal.App.4th 389, 398 for the proposition that the court’s discretion is strictly limited “‘when a party submits an affidavit demonstrating that facts essential to justify opposition may exist but have not been presented to the court because the party has not been diligent in searching for the facts through discovery....’”
Respondent urges us to adopt the rationale of the court in Cooksey, supra, 123 Cal.App.4th 246 as the better reasoned approach. We agree. In Cooksey, the Court of Appeal reviewed the cases on the impact of a failure to explain why the discovery sought could not have been completed sooner. It observed that Courts of Appeal in the First, Second and Sixth Appellate Districts have held that there must be some showing of diligence by the party seeking a continuance in order to conduct additional discovery. (Cooksey, supra, 123 Cal.App.4th at pp. 255-256.) It concluded: “We agree with the majority of courts holding that lack of diligence may be a ground for denying a request for a continuance of a summary judgment motion hearing. Although the statute does not expressly mention diligence, it does require a party seeking a continuance to declare why ‘facts essential to justify opposition... cannot, for reasons stated, then be presented’ (§ 437c, subd. (h), italics added), and courts have long required such declarations to be made in good faith. [Citations.] There must be a justifiable reason why the essential facts cannot be presented. An inappropriate delay in seeking to obtain the facts may not be a valid reason why the facts cannot then be presented. The statute itself authorizes the imposition of sanctions for declarations presented in bad faith or solely for purposes of delay. (§ 437c, subd. (j).) A good faith showing that further discovery is needed to oppose summary judgment requires some justification for why such discovery could not have been completed sooner.” (Id. at p. 257.)
In Cooksey, the declaration of counsel in support of the request for continuance failed to explain why the discovery sought could not have been initiated sooner. (123 Cal.App.4th at p. 257.) A factor taken into consideration by the Cooksey court was that appellant’s counsel acknowledged that he had intentionally delayed discovery for tactical reasons. (Ibid.) Here, counsel for appellant admitted that he chose not to provide a declaration by Dr. Dement in his original opposition to the motion: “A declaration [by Dr. Dement] should have been provided in opposition. On the other hand, I thought that the evidence that we had presented in opposition to the summary judgment motion with Mr. Wexler was sufficient. So that is why I didn’t do it, and Dr. [Dement] does have additional things to talk about.” This tactical choice by counsel for appellant does not excuse his lack of diligence in providing the declaration by Dr. Dement earlier.
For these reasons, we conclude the trial court did not abuse its discretion in denying appellant’s application for a continuance of the summary judgment hearing.
II
We turn to the merits of respondents’ summary judgment motion. “‘“A trial court properly grants a motion for summary judgment only if no issues of triable fact appear and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c);...) The moving party bears the burden of showing the court that the plaintiff ‘has not established, and cannot reasonably expect to establish,’” the elements of his or her cause of action. [Citation.]’ (Wilson v. 21st Century Ins. Co. (2007) 42 Cal.4th 713, 720.) We review the trial court’s decision de novo, liberally construing the evidence in support of the party opposing summary judgment and resolving doubts concerning the evidence in favor of that party. [Citation.].)” (State of California v. Allstate Ins. Co. (2009) 45 Cal.4th 1008, 1017.)
Under the respondeat superior doctrine, an employer may be vicariously liable for torts committed by an employee within the scope of employment. (Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 296 (Lisa M.); Kephart v. Genuity, Inc. (2006) 136 Cal.App.4th 280, 291 (Kephart).) Appellant has the burden of proving the negligent act of Nevarez was committed within the scope of his employment by respondents. Whether an act is within the scope of employment is a question of fact, unless the facts are undisputed and no conflicting inferences are possible, in which case the question is one of law. (Hartline v. Kaiser Foundation Hospitals (2005) 132 Cal.App.4th 458, 465-466 (Hartline), citing Lisa M. v. Henry Mayo Newhall Memorial Hospital, supra, at p. 299; John Y. v. Chaparral Treatment Center, Inc. (2002) 101 Cal.App.4th 565, 574.) Here, as we discuss below, the facts relevant to the scope of employment issue are undisputed, so we treat the issue as a question of law.
The going-and-coming rule excludes an employee’s normal commute from the scope of employment for purposes of determining vicarious liability. “Under the ‘going-and-coming’ rule, an employee going to or coming home from work is ‘ordinarily considered outside the scope of employment so that the employer is not liable for his torts.’ (Hinman v. Westinghouse Elec. Co. (1970) 2 Cal.3d 956, 961 (Hinman).) ‘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.]’ (Ibid.)” (Hartline, supra, 132 Cal.App.4th at pp. 465-466.)
Appellant invokes the special risk exception to the going-and-coming rule, a doctrine developed in the context of workers’ compensation cases. In General Ins. Co. v. Workers’ Comp. Appeals Bd. (Chairez) (1976) 16 Cal.3d 595, the Supreme Court explained the exception: “If, prior to entry upon the premises, an employee suffers injury from a special risk causally related to employment, the injury is compensable under the ‘special risk’ exception to the going and coming rule. ‘The facts that an accident happens upon a public road and that the danger is one to which the general public is likewise exposed, however, do not preclude the existence of a causal relationship between the accident and the employment if the danger is one to which the employee, by reason of and in connection with his employment, is subjected peculiarly or to an abnormal degree.’ [Citations.]” (Id. at p. 600, italics added.)
In Santa Rosa Junior College v. Workers’ Comp. Appeals Bd. (1985) 40 Cal.3d 345, 354, the Supreme Court reiterated the two-prong test devised in General Ins. Co. v. Workers’ Comp. App. Bd. (Chairez), supra,16 Cal.3d at page 600. The exception applies “(1) if ‘but for’ the employment the employee would not have been at the location where the injury occurred and (2) if ‘the risk is distinctive in nature or quantitatively greater than risks common to the public.’” (Santa Rosa Junior College, supra, 40 Cal.3d at p. 354.)
Appellant cites no tort cases in which the special risk doctrine has been applied to establish an employer’s liability to a third party on the basis of respondeat superior. In Depew v. Crocodile Enterprises, Inc. (1998) 63 Cal.App.4th 480 (Depew)the court assumed without deciding that the doctrine applied in order to reach the issue of causation. (Id. at p. 488.) But it acknowledged that the “special risk” exception was a creation of the workers’ compensation system and had not been applied to third party claims against an employer based on respondeat superior. (Id. at p. 487.) It recognized that workers’ compensation law is not controlling with respect to exceptions to the going-and-coming rule in the context of respondeat superior and discussed the distinct policy considerations underlying the workers’ compensation system and respondeat superior law. (Ibid.) “‘Workers’ compensation law takes a different approach to exceptions to the going-and-coming rule.... [¶]... Workers’ compensation and respondeat superior law are driven in opposite directions based on differing policy considerations. Workers’ compensation has been defined as a type of social insurance designed to protect employees from occupational hazards, while respondeat superior imputes liability to an employer based on an employee’s fault because of the special relationship.... Further, courts heed statutory admonitions for a liberal construction favoring coverage in workers’ compensation cases which are not present in respondeat superior law.’ (Blackman v. Great American First Savings Bank (1991) 233 Cal.App.3d 598, 604-605, citations omitted; accord, Anderson v. Pacific Gas & Electric Co. [(1993)] 14 Cal.App.4th [254,] 259; see also Perez v. Van Groningen & Sons, Inc. (1986) 41 Cal.3d 962, 967, fn. 2 [workers’ compensation cases not controlling when liability predicated on respondeat superior principles]; Bailey v. Filco, Inc. [(1996)] 48 Cal.App.4th [1552,] 1562 [same]; Wank v. Richman & Garrett (1985) 165 Cal.App.3d 1103, 1110-1111 [distinguishing between ‘course of employment’ test used in workers’ compensation cases and more narrow ‘scope of employment’ test used under respondeat superior doctrine].)” (Depew, supra, 63 Cal.App.4th at pp. 487-488.)
Appellant speculates that the special risk doctrine “would surely have been applied” in Depew if the facts there established that the employer subjected the employee “to excessive work hours and having to operate a motor vehicle while extremely fatigued.” He emphasizes that the employee in Depew had a 16-hour break between shifts.
In Hartline, supra, 132 Cal.App.4th 458, an employee of Kaiser Foundation Hospitals struck plaintiff as she turned into the driveway to her employer’s parking lot on the way to work. Defendant Kaiser sought summary adjudication of the issues based on the going-and-coming rule. In response, the plaintiff argued that Kaiser was liable under the “premises line” rule recognized in workers’ compensation law, which holds that the employment relationship begins when the employee enters the employer’s premises. (Id. at p. 467.) The Hartline court observed that no case had applied the rule to tort liability under the theory of respondeat superior: “The California Supreme Court in Hinman expressly noted the workers’ compensation test for whether an injury arises out of and in the course of employment is ‘not identical,’ although it is ‘closely related,’ to the test for whether an employee is acting within the scope of employment under respondeat superior.” (Id. at pp. 467-468, quoting Hinman, supra, 2 Cal.3d at p. 962, fn. 3, italics added.) It described workers’ compensation cases as not controlling on the issue of respondeat superior liability. (Hartline, supra, 132 Cal.App.4th at p. 468.)
The Court of Appeal explained that “‘“scope of employment”’ for purposes of respondeat superior is more restrictive than ‘“arising out of and in the course of employment”’” for workers’ compensation. (Hartline, supra, 132 Cal.App.4th at p. 468.) It concluded that the premises line rule, developed in the context of the policies behind workers’ compensation, does not fit the policy justification for making employers vicariously liable for their employee’s torts. (Id. at p. 469.) Instead, under the doctrine of respondeat superior, an employer’s liability extends to include risks inherent in or created by the enterprise because the employer, rather than the injured party, is best able to spread the risk through prices, rates or liability insurance. (Ibid., citing Rodgers v. Kemper Constr. Co. (1975) 50 Cal.App.3d 608, 618 .)
As discussed in Depew and Hartline, the distinct policies underlying workers’ compensation and respondeat superior liability in tort compel us to conclude that the special risk exception to the going-and-coming rule should not be extended to this case. In reaching this conclusion, we adopt the reasoning of the cases cited above, and do not rely on the Bureau of Labor Statistics material and the publication by the Public Policy Institute of California regarding commute times submitted by respondents in support of their arguments.
We also conclude that appellant failed to raise a triable issue of material fact as to liability under the general respondeat superior rules. The test to determine whether a risk is inherent in or created by an enterprise has been given several formulations. The court in Hartline quoted two formulations developed by the court in Rodgers, supra, 50 Cal.App.3d 608. The first isthat a risk falls within this test when “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. (Hartline, supra, 132 Cal.App.4th at p. 469.) Alternatively, the Rodgers court characterized the inquiry as whether the risk was one ‘““that may fairly be regarded as typical of or broadly incidental” to the enterprise undertaken by the employer.”’ (Ibid.) The Hartline court cautioned that “‘[t]he employee’s activities must be inherent in, typical of or created by the work so that it is a foreseeable risk of the particular employment.’” (Id. at p. 469, quoting Tognazzini v. San Luis Coastal Unified School Dist. (2001) 86 Cal.App.4th 1053, 1057.)
We conclude that the undisputed facts preclude a finding that respondents were liable based on respondeat superior. Although Nevarez testified that he had been working 72 hour weeks (15 hour days) on the television series “House” the week of the accident, it was undisputed that he actually worked two days as a lighting technician on the Davis production of the movie “Garfield 2” that week. It was undisputed that he worked 14 hours on September 20, 2005. The day before the accident, September 21, he worked over 13 hours and got off work at 8:36 p.m. Appellant did not contest that Nevarez, along with other personnel in the lighting department, were not scheduled to report for work again until 7:30 a.m. on September 22, 2005, the morning of the accident. Nevarez testified that he had a nine-hour turn around “‘at the least’” between the end of his September 21 shift and the scheduled start of his September 22 shift. The evidence presented by respondents established that he had a 10-hour, 54-minute break between finishing work on September 21 and the time to report to work the next morning. The record does not establish that Nevarez was compelled to work such excessive hours before the accident that respondents should be held vicariously liable for his conduct.
The conclusion by the Depew court that an employee must be responsible for managing his time between shifts supports our conclusion that respondents are not chargeable with liability for the accident here: “Indeed, in light of Stivers’s 16-hour break between shifts, he ‘should be charged with the ability to manage his time in accord with the nature of his job.... The employer had every reason to assume that the employee, upon reporting to work, had received sufficient rest in the previous [16] hours, just as an employer whose employees report to work on Monday morning has every right to assume that those employees received sufficient rest over the weekend.’ (Note, Wherein Lies the Duty? Determining Employer Liability for the Actions of Fatigued Employees Commuting From Work (1994) 42 Wayne L.Rev. 2091, 2098-2099, fn. 31.) To the extent Stivers was too tired to drive home without causing a fatal crash, his condition was neither an ‘outgrowth’ of his employment nor ‘“‘inherent in the working environment.’”’ (Lisa M., supra, 12 Cal.4th at p. 298.) Further, such extreme fatigue is not ‘“‘typical of or broadly incidental to the enterprise’”’ of operating a restaurant.” (Depew, supra, 63 Cal.App.4th at p. 490.)
While appellant claimed that employee exhaustion as a result of excessive work hours was inherent in, typical of, or created by the demands of the entertainment industry, the record does not support the contention. Both Rusty Mahmood, first assistant director for the second unit on “Garfield 2,” and Liz Amsden, production supervisor on that film, testified that the shooting hours were limited because the movie was being filmed at Greystone Manor. Mahmood testified that while shooting at Greystone, there was what he called a “hard out time,” when shooting had to be completed for the day to accommodate the concerns of neighbors. The goal was to wrap shooting for the day by 7:30 p.m. or 8:00 p.m. He testified that union rules provide for heavy monetary penalties if workers are kept extra hours. He testified that the only long shooting day was the final day of shooting, and that 15-hour days could not be allowed because of the budget. In addition, Mahmood explained that the shoot for “Garfield 2” involved very little wrap time at the end of the day because it was shot at one location for two to three weeks, including the day before the accident.
Amsden testified that no access was allowed at Greystone for the “Garfield 2” shoot before 8:00 a.m. In addition, she said that the work hours for the crew were determined by the 11-hour turnaround time required by the union for the director of photography.
Appellant failed to raise a triable issue of material fact to counter this evidence. As in Depew, the evidence before us does not establish that Nevarez’ exhaustion was either an “outgrowth” of his employment or “inherent in the working environment.”
III
Appellant also argues respondents’ motion for summary judgment should have been denied under Bussard v. Minimed, Inc. (2003) 105 Cal.App.4th 798 (Bussard). In that case, the Court of Appeal held that the going-and-coming exception to the doctrine of respondeat superior did not apply to an employee while she was driving home after becoming sick at work from exposure to pesticide fumes. (Id. at p. 801.) The employer had its facility sprayed with pesticide by a pest control company overnight. When the employee became ill at work the next day, she declined an offer to be sent to the company doctor and assured a supervisor that she was well enough to drive home. The accident happened when she was driving home and became dizzy and lightheaded.
The Bussard court applied an exception to the going-and-coming rule that applies “when an employee endangers others with a risk arising from or related to work.” (Bussard, supra, 105 Cal.App.4th at p. 804.) “In determining whether such danger arises from or is related to work, case law applies a foreseeability test. Our Supreme Court describes this type of foreseeability, which is different from the foreseeability of negligence, as employees’ conduct that is neither startling nor unusual. ‘“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.... ‘[F]oreseeability’ 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. [Citations.]”... [Such a test is] useful because it reflects the central justification for respondeat superior: that losses fairly attributable to an enterprise—those which foreseeably result from the conduct of the enterprise—should be allocated to the enterprise as a cost of doing business.’ (Farmers Ins. Group v. County of Santa Clara [1995] 11 Cal.4th [992,] 1003-1004, italics omitted.)” (Bussard v. Minimed, Inc., supra, 105 Cal.App.4th at pp. 804-805.)
As we have seen, the evidence presented by appellant in opposition to the motion for summary judgment does not raise a triable issue of material fact that the accident caused by Nevarez was a foreseeable consequence of his employment. Bussard is distinguishable because employees were subjected to pesticide exposure in the workplace after the employer arranged to have the pesticide applied the night before the accident. It was foreseeable that employees would become ill as a result and that their driving would become impaired. In contrast, the evidence here was that Nevarez had a 10-hour, 54-minute break between the end of his shift and the time he was to report for work on the morning of the accident. Work hours on “Garfield 2” had been limited by the conditions for shooting at the location and by union rules and budgetary constraints. In light of those restrictions, it was not foreseeable that despite the nearly 11-hour break, Nevarez would get so little sleep that he would cause an accident on the way to work.
DISPOSITION
The judgment is affirmed.
We concur: WILLHITE, J., MANELLA, J.