Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court for the County No. PC036665,of Los Angeles. Barbara M. Scheper, Judge.
Netzah & Jankielewicz, Lenny Janner and Raviv Netzah for Plaintiff and Appellant.
Horvitz & Levy, Barry R. Levy and Karen M. Bray; Norton & Melnik and John J. Walker for Defendants and Respondents.
BOLAND, J.
INTRODUCTION
In this appeal, we review the trial court’s decision granting summary judgment in favor of respondent and dismissing her from the proceeding. We find that the trial court applied the incorrect legal standard for respondeat superior and that the evidence offered by appellant in opposition to respondent’s summary judgment motion was sufficient to create a triable issue of material fact as to whether respondent was liable for the injuries sustained by appellant.
FACTS AND PROCEDURAL BACKGROUND
On January 30, 2005, appellant Vanessa Bourgoyne was injured in a traffic accident while a passenger in a vehicle driven by Thao Thi Vo (Vo). Appellant knew Vo and was friends with her before the accident. Before January 30, appellant had spent time at Vo’s house and at respondent Dara Chong’s donut shop. On the morning of the accident, appellant spoke with Vo on the phone and arranged for Vo to pick her up at her house and drive her to the donut shop. After Vo picked up appellant, they proceeded to a coffee shop and then to the donut shop. On their way to the donut shop, Vo became distracted, lost control of her vehicle, and struck a parked car. Both appellant and Vo sustained serious injuries and were transported by ambulance to a hospital. Appellant’s injuries proved to be life threatening, and she remained in a coma for some time before recovering.
As a result of the accident, appellant filed a complaint on April 28, 2005 alleging negligence on the part of respondent and Trung Vo, who was Vo’s mother and the registered owner of the vehicle Vo was driving. Respondent was named on a theory of respondeat superior. Specifically, appellant alleged Vo was an employee of respondent and was acting within the scope of her employment when transporting appellant to respondent’s donut shop.
Thao Thi Vo is not a party to this appeal. Trung Vo is Thao Thi Vo’s mother and is not a party to this appeal.
Respondent moved for summary judgment seeking to dismiss the claim against her. She argued she was not related in any way to the accident, appellant was not her employee, and even if Vo and appellant were employees, they were not acting within the scope of employment at the time of the accident. In her response, appellant argued the commute was within the scope of employment. For summary judgment purposes, it was assumed that Vo and appellant were employed by respondent and were on the way to work when the accident occurred. The trial court granted summary judgment in favor of respondent and dismissed her from the claim, citing the “going and coming rule.” That rule renders employers immune to claims brought against them for injuries occurring during an ordinary commute.
Appellant appeals from the grant of summary judgment on the grounds that Vo was not undertaking an ordinary commute when the accident occurred. Rather, she was transporting appellant to the donut shop according to respondent’s instructions. Appellant contends her declaration in opposition to the summary judgment motion, stating respondent had told her that Vo was to provide her transportation, was sufficient to create an triable issue of material fact as to whether Vo’s actions fell within the “special errand” exception to the “going and coming rule.”
DISCUSSION
The central issue on appeal is whether the “special errand” exception to the “going and coming” rule could impute Vo’s liability to respondent. We will analyze first the summary judgment standard and whether appellant carried her burden of showing a triable issue of material fact as to her respondeat superior claim. We will then analyze the evidence set forth by appellant in opposition to the summary judgment and determine whether that evidence assumed as true could sustain a respondeat superior claim against respondent.
I. Appellant Has Carried Her Burden In Opposing Summary Judgment.
This court reviews summary judgment motions under a de novo standard, construing the evidence presented for the summary judgment motion anew in accordance with the appropriate legal standard. (Romero v. American President Lines, Ltd. (1995) 38 Cal.App.4th 1199, 1202.) In order for respondent to prevail on a summary judgment motion, she was required to show the absence of any triable issue of material fact regarding whether Vo was acting within the scope of employment while transporting appellant. (Code Civ. Proc., § 437c (c).) We must view the evidence in the light most favorable to appellant and draw all reasonable inferences from the evidence. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)
All subsequent code references will be to the Code of Civil Procedure.
Respondent, as the moving party, had the initial burden of making a prima facie showing that no triable issue existed as to whether Vo was acting within the scope of employment. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850.) Appellant then had the burden of making a prima facie showing that a triable issue did exist as to the scope of employment question. (Ibid.) In analyzing appellant’s evidence put forth in opposition of the motion, we cannot weigh the credibility of her declaration, except where the declaration would be facially incredible as a matter of law. (Estate of Housley (1997) 56 Cal.App.4th 342, 360-361.) The declaration alone, if admissible, may be sufficient to defeat the motion. (Ibid.) Any evidentiary objections to appellant’s declaration that respondent failed to make, either orally or in writing at the hearing, are waived. (§ 437c (d) ; Miles Laboratories, Inc. v. Superior Court (1982) 133 Cal.App.3d 587, 594.)
Code of Civil Procedure section 437c, subdivision (d) states: “Supporting and opposing affidavits or declarations shall be made by any person on personal knowledge, shall set forth admissible evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated in the affidavits or declarations. Any objections based on the failure to comply with the requirements of this subdivision shall be made at the hearing or shall be deemed waived .”
Since the court narrowed the issue for the summary judgment, by assuming that appellant and Vo were employees of respondent and were on their way to work, appellant and respondent were left to argue whether the commute was within the scope of employment. Respondent carried her initial burden of making a prima facie showing that no evidence showed that she could be held liable under a theory of respondeat superior. Respondent offered evidence that Vo was not acting under any directive from her and was instead transporting appellant for personal reasons, and pointed out the absence of evidence indicating Vo was acting within the scope of employment. The burden next shifted to appellant to make a prima facie showing that a triable issue of material fact existed as to whether Vo was acting within the scope of her employment. Appellant attempted to do this in her declaration stating that, “There were repeated conversations between myself and Dara, that I would be driven to the donut shop by Thao and/or Thao’s parents.” This statement alone, even if countered by contrary evidence from the respondent, would be enough to defeat summary judgment since we may not weigh evidence for the purposes of summary judgment.
Respondents did not object to this statement in appellant’s declaration either at the hearing or in writing. Respondent therefore waived any objections to the statement since she chose instead to object to statements preceding and following it. Even though objections were waived, the statement would have been admissible nonetheless since the statement concerned a direct conversation between appellant and respondent, and appellant’s participation in the conversation provides a foundation for the statement. Even though the statement does not appear to contain evidentiary deficiencies, the statement must be analyzed in the context of respondeat superior law to determine whether it creates a triable issue of material fact as to the potential liability of respondent for the injuries suffered by appellant.
II. The Special Errand Exception Defeats Summary Judgment.
Generally, respondent would be liable for the torts committed by her agents. (§ 2338.) Respondent may be held vicariously liable for accidents caused by her employees when they are acting within the scope of their employment, even where respondent physically played no active role in the accident. (Doe 1 v. City of Murrieta (2002) 102 Cal.App.4th 899, 906.) Although generally true that employers will be held to answer for their employee’s torts committed within the scope of employment, exceptions to this rule can free the employer from liability. (Kephart v. Genuity, Inc. (2006) 136 Cal.App.4th 280, 291.) One exception is the “going and coming” rule. Under the rule, respondent would not be liable for the torts committed by her employees when commuting to or from work. Her employees would be outside of the scope of their employment until they reached the donut shop and would be outside of the scope their employment again as soon as they left the donut shop to return home. (Ibid.)
Although the “going and coming” rule would prevent victims from holding liable respondent for injuries caused by an employee while on a commute, an exception to this rule is permitted when respondent sends an employee on a “special errand” while going to or coming from work. (Kephart v. Genuity, Inc., supra, 136 Cal.App.4th at p. 291.) An employee can be on a special errand during her commute if she is acting according to a specific directive by respondent or engaging in a regular duty of her employment. The special errand lasts from the time an employee departs on the errand until she returns to her place of employment. (Id. at pp. 291-292.) If respondent specifically asked Vo to transport appellant to the donut shop for the respondent’s benefit, the special errand rule would apply and respondent could be held liable for torts committed by Vo while acting within the scope of that directive. (Caldwell v. A.R.B., Inc. (1986) 176 Cal.App.3d 1028, 1037 (Caldwell).) The directive must, however, be specific and the transportation must not have been offered by Vo to appellant with no participation by respondent. In Caldwell, the court concluded that co-workers giving each other rides, absent a specific order from the employer, were not acting within the scope of their employment. On the other hand, if Vo’s regular duties included driving appellant during her commute, then the special errand rule would apply even without a specific order from respondent. (Ibid.)
Even though no worker’s compensation claim has been made in this case, we will discuss the applicability of workers’ compensation cases since appellant and respondent discuss the varying standards of “scope of employment” in both workers’ compensation cases and respondeat superior cases. Although similar, cases that involve workers’ compensation claims are not controlling with respect to respondeat superior claims. (Sunderland v. Lockheed Martin Aeronautical Systems Support Co. (2005) 130 Cal.App.4th 1, 10 (Sunderland).) Workers’ compensation claims turn on whether an injury occurred “ ‘arising out of and in the course of employment.’ ” (Ibid.) This standard is more permissive than the “within the scope of employment” standard in respondeat superior cases. (Ibid.) Workers’ compensation claims cover injuries sustained by the employee without regard for fault, due to policy reasons designed to maximize the benefit of workers’ compensation to employees. Conversely, respondeat superior claims are not as broad since they are claims made by third parties, not arising out of the employer-employee relationship, asserted against employers, and do not involve the same policy concerns for making the standard a permissive one. (Id. at pp. 10-11.) In Sunderland, the court refused to apply workers’ compensation case law to the commute of an employee, where workers’ compensation case law would have found this activity arising out his employment. (Id. at p. 11.) The court in Sunderland went on to explain that even where an employee receives some payment for his travel in the form of a per diem and thus can recover under workers’ compensation for injuries sustained during a commute, there will be no liability for the employer due to respondeat superior towards third party victims for the same accident. (Anderson v. Pacific Gas & Electric Co. (1993) 14 Cal.App.4th 254, 261.)
Appellant correctly contends that she raised a triable issue of material fact as to whether respondent could be held liable for her injuries. Respondent successfully carried her burden, demonstrating a lack of evidence showing that she could be liable for the injuries sustained by appellant. Appellant, in her declaration opposing summary judgment, stated that she was told by respondent that Vo was directed to transport appellant to and from the donut shop. This statement sustained appellant’s burden of showing that there is a triable issue of material fact as to the “special errand” exception to the “coming and going rule.” This statement is evidence that it was the general duty of Vo to drive appellant to the donut shop and, since it was a general duty, it did not matter that it was executed while on a commute. Appellant’s foundation for such a claim is that she was personally told by respondent that these would be the duties of Vo. Such a statement would be an admission on the part of respondent and would be admissible at summary judgment as an exception to the hearsay rule. The statement, although vigorously denied by the respondent, does not exceed the bounds of reason so that it may be disregarded as a matter of law. If respondent had employed the two young high school age girls to work for her, she must have contemplated the difficulty involved in their ability to get to work. Since appellant has properly shown that there is a triable issue of material fact as to whether Vo was acting within the scope of her employment while transporting her to work the day of the accident, we must reverse the trial court’s ruling on summary judgment.
DISPOSITION
The judgment is reversed, and the case is remanded with instructions to deny the motion for summary judgment. Appellant Vanessa Bourgoyne is awarded her costs on appeal.
We concur: RUBIN, Acting P. J., FLIER, J.