Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County Super. Ct. No. KC048403, Robert A. Dukes, Judge. Affirmed.
Law Offices of Lowell Steiger, Lowell Steiger, Julia Swanson and Ira Cohen for Plaintiff and Appellant.
Horvitz & Levy, Karen M. Bray, Kris Bahr; Halas & McDonough and Patrick J. McDonough for Defendant and Respondent High Desert Cable, Inc.
KLEIN, P. J.
Roberto Drilon appeals an order granting summary judgment in favor of defendant High Desert Cable (HDC). Drilon sued HDC on a theory of respondeat superior after HDC’s employee, Jose Chavez, struck Drilon in a crosswalk on the morning of February 16, 2006. The trial court granted summary judgment in favor of HDC based on its finding the “special errand” exception to the “going and coming” rule is not applicable to the facts of this case. We agree and affirm the order.
FACTS AND PROCEDURAL BACKGROUND
1. The accident.
On the morning of February 16, 2006, Chavez left his girlfriend’s home in Rowland Heights in a Chevy Silverado intending to go to his home in El Monte to obtain the Toyota truck he used in his work as a residential satellite technician for HDC. Chavez personally owned both the Silverado and the Toyota. The previous evening, Chavez received a telephone call from an HDC dispatcher advising him that, although he had not been assigned a specific route, there would be work available for him on the morning of February 16, 2006. Chavez received a telephone call from an HDC dispatcher every evening advising him whether he was scheduled to work the next day. On the morning of February 16, 2006, Chavez intended to report for work at HDC in El Monte at his usual time of between 6:00 and 6:30 a.m.
A short distance from his girlfriend’s home, driving in inclement weather conditions, Chavez struck Drilon as Chavez made a left turn.
Drilon sued Chavez individually and sued HDC on a theory of respondeat superior.
2. HDC seeks summary judgment.
HDC sought summary judgment on the ground that Chavez was not in the course and scope of his employment at the time of the accident.
HDC noted Chavez testified at his deposition that one of HDC’s two dispatchers would call Chavez every evening, generally between 5:00 and 9:00 p.m., to advise whether Chavez was “routed” for the next day. On some occasions Chavez would be advised he was not routed for the next day. When HDC was busy, Chavez sometimes worked seven days a week.
On February 15, 2006, an HDC dispatcher called Chavez between 9:00 and 10:00 p.m. and informed Chavez he was “not routed” for the next day. The dispatcher nonetheless asked Chavez to come to work. Chavez explained HDC frequently anticipated extra work in the morning. When the dispatcher told Chavez to come in, Chavez indicated he would arrive at his regular time, which was between 6:00 and 6:30 a.m. Chavez testified technicians who did not receive job assignments were welcome to go to the HDC office and wait for extra work. Technicians had no set work schedule or days off. They might work one day a week or seven days a week. Technicians paid for their own tools, gasoline and vehicle maintenance. HDC provided the equipment to be installed.
In support of the motion, HDC argued Chavez’s deposition testimony showed Chavez was within the going and coming rule at the time of the accident.
3. Drilon’s opposition.
Drilon opposed the motion and argued Chavez had been called to work on his regularly scheduled day off. Drilon relied on the testimony of Chavez’s superior who stated: “Mr. Chavez was not scheduled to work on the 16th. We only had so many jobs on that day and we have a numerical order we go through.” Drilon argued the evidence established that HDC extended a special invitation to Chavez to come in on his day off, outside his regular assignment. Thus, Chavez was on a special errand or special mission within the meaning of Schreifer v. Industrial Acc. Com. (1964) 61 Cal.2d 289 (Schreifer) and its progeny.
4. The trial court’s ruling.
The trial court granted HDC’s motion for summary judgment. It found Chavez was not in the course and scope of his employment at the time of the accident.
The trial court found the special errand exception did not apply because Chavez was not going to HDC to perform services outside his regular duties and it was a common practice for Chavez to be told to report for extra work. Also, Chavez was going to work at his regular time. The trial court noted the special request for unusual service is the decisive factor in determining whether the special errand exception applies.
However, there was no evidence of a special errand in this case. The trial court noted HDC technicians could receive work assignments seven days a week; they had no set schedule; a dispatcher would call each technician on a daily basis between 5:00 and 9:00 p.m. to advise whether there was work for that technician the next day; the technicians were expected to be at the office between 6:00 and 6:30 a.m. to pick up their job assignment; and the technicians who did not receive job assignments were welcome to come to the office in the morning and wait for extra work.
CONTENTIONS
Drilon contends the trial court erroneously granted summary judgment. Drilon asserts Chavez was not within the going and coming rule because he was traveling at the specific request or order of his employer. (O’Connor v. McDonald’s Restaurants (1990) 220 Cal.App.3d 25, 29, fn. 2.)
In the reply brief, Drilon additionally argues HDC’s requirement that its residential satellite technicians use their own tools and truck gives rise to the incidental benefit exception to the going and coming rule. (Hinojosa v. Workmen’s Comp. Appeals Bd. (1972) 8 Cal.3d 150, 160-161; Huntsinger v. Glass Containers Corp. (1972) 22 Cal.App.3d 803, 810.) Drilon further contends HDC’s method of notifying its employees of work for the next day constitutes a daily “special call” from the employer and there were numerous issues of triable fact that prevented summary judgment in this case.
On September 11, 2008, we denied HDC’s request to strike Drilon’s reply brief but granted HDC’s request to file a supplemental brief to address the issues raised by Drilon for the first time in the reply brief.
DISCUSSION
1. General principles.
Under the doctrine of respondeat superior, an employer is vicariously liable for torts committed by employees acting within the course and scope of their employment. (Perez v. Van Groningen & Sons, Inc. (1986) 41 Cal.3d 962, 967; Bussard v. Minimed, Inc. (2003) 105 Cal.App.4th 798, 803; Tryer v. Ojai Valley School (1992) 9 Cal.App.4th 1476, 1480; Felix v. Asai (1987) 192 Cal.App.3d 926, 931; Civ. Code, § 2338.) The doctrine is justified as “ ‘. . . a deliberate allocation of a risk. The losses caused by the torts of employees, which as a practical matter are sure to occur in the conduct of the employer’s enterprise, are placed upon that enterprise itself, as a required cost of doing business. . . .’ ” (Hinman v. Westinghouse Elec. Co. (1970) 2 Cal.3d 956, 959-960, quoting Prosser, Law of Torts (3d ed. 1964) p. 471, fns. omitted.)
“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.” ’ [Citations.] ‘Conversely, the employer is not liable when the employee is pursuing “his own ends.” ’ [Citation.]” (Tryer v. Ojai Valley School, supra, 9 Cal.App.4th at p. 1481.)
Under the going and coming rule, an employer is generally not liable for torts committed by an employee who is engaged in the ordinary commute going to or coming from his or her place of work. (Ducey v. Argo Sales Co. (1979) 25 Cal.3d 707, 722; Hinman v. Westinghouse Elec. Co., supra, 2 Cal.3d at p. 961; Tryer v. Ojai Valley School, supra, 9 Cal.App.4th at p. 1481; Felix v. Asai, supra, 192 Cal.App.3d at p. 931.)
An exception to this rule arises where the employee is engaged in a “special errand” for the employer. (Ducey v. Argo Sales Co., supra, 25 Cal.3d at p. 722.) In that case, the employee is considered to be acting within the scope of employment during the time he or she is engaged in the special errand. (Boynton v. McKales (1956) 139 Cal.App.2d 777, 789.) “Thus, it is necessary to determine the main purpose of injury-producing activity: If it was the pursuit of the employee’s personal ends, the employer is not liable. [Citation.]” (Le Elder v. Rice (1994) 21 Cal.App.4th 1604, 1607.)
Another exception arises where the employer requires the employee to have his or her vehicle available for company business or imposes an unusual condition on the employee’s commute. Such a requirement “removes the transit from the employee’s choice or convenience and places it within the ambit of the employer’s choice or convenience, restoring the employer-employee relationship.” (Hinojosa v. Workmen’s Comp. Appeals Bd., supra, 8 Cal.3d at p. 157.)
Whether an employee was acting within the course and scope of his employment is ordinarily a question of fact. However, it is a question of law when the operative facts are undisputed. (Perez v. Van Groningen & Sons, Inc., supra, 41 Cal.3d at p. 968; Baptist v. Robinson (2006) 143 Cal.App.4th 151, 162; Tognazzini v. San Luis Coastal Unified School Dist. (2001) 86 Cal.App.4th 1053, 1057; Depew v. Crocodile Enterprises, Inc. (1998) 63 Cal.App.4th 480, 489; Munyon v. Ole’s, Inc. (1982) 136 Cal.App.3d 697, 701.)
2. The call to work was not a “special call.”
Drilon places great reliance on the assertion Chavez was going to work on his “scheduled day off, [after] a special late-night or early morning request conveyed and transmitted by a telephone call from his employer.” Drilon concludes this trip falls outside the going and coming rule because it was made at the specific request or order of his employer. (O’Connor v. McDonald’s Restaurants, supra, 220 Cal.App.3d at p. 29, fn 2.)
Drilon notes in the opening brief that Chavez initially testified at his deposition that he received a call from HDC on the morning of the accident and that he “was scheduled off.” Chavez changed this deposition testimony when he signed the deposition to reflect that Chavez received the telephone call from the dispatcher the night before the accident.
Drilon claims Chavez would not have driven the Silverado had he known he had to work the next day. Drilon notes Chavez testified the accident happened when the Silverado suddenly lost power. Chavez was not aware of this problem because he had not driven the Silverado for some time and he had to jump start the Silverado before he drove it to his girlfriend’s home. Based on this testimony, Drilon suggests Chavez did not expect to work the next morning because he would not have taken an unreliable vehicle to his girlfriend’s if he had to work in the morning.
Drilon concludes the evidence shows Chavez left his girlfriend’s home on the morning of February 16, 2006, exclusively in response to the telephone call from the HDC dispatcher inviting him to come to work. (Shell Oil Co. v. Industrial Acc. Com. (1962) 199 Cal.App.2d 426, 428-429.)
However, as the trial court found, Chavez simply received his customary telephone notification as to whether he had been routed for work the following day. The record establishes that Chavez had no set day off and he could be called to work seven days a week depending on the volume of HDC’s business. On February 15, the dispatcher directed Chavez to report to work the following day because HDC anticipated extra assignments would arise. This was a common practice. Accordingly, February 16 was not a day off for Chavez and there was nothing about Chavez’s trip home to get his work truck on the morning of February 16 that was extraordinary in relation to his routine duties, so as to render it a “special errand.” Chavez was simply notified in the customary manner that he should report to work at his regular time.
In the case Drilon relies on, Schreifer, supra, 61 Cal.2d at p. 289, a deputy sheriff was found to be on a special errand within the meaning of the worker’s compensation law when he was commuting to work because his employer called him six hours ahead of his scheduled work shift and asked him to come to work immediately. No similar situation obtains here.
Drilon also argues Chavez was in the course and scope of his employment because he was en route to retrieve tools needed for his work. Drilon cites Caldwell v. A.R.B., Inc. (1986) 176 Cal.App.3d 1028, 1036-1037, for the proposition that an employee’s trip to pick up tools for the employer’s work falls within special errand exception. However, Caldwell involved one co-worker who gave another co-worker a ride to a remote jobsite and no exception to the going and coming rule was found to apply.
The case Caldwell cites for the proposition that “special errands” include getting or returning tools is Munyon v. Ole’s Inc., supra, 136 Cal.App.3d at pp. 703-704, which in turn cites Tarasco v. Moyers (1947) 81 Cal.App.2d 804, 810. Tarasco involved a collision that occurred at a remote intersection between a sedan driven by a farm employee and a passenger stage. Tarasco found the employee was acting within the course and scope of his employment at the time of the collision because “he was required to return his field working tools each evening to the ‘headquarters’ of his employer on the same farm, rather than to leave them in the field . . . . The tools were found in his car after the accident occurred. . . . These facts indicate [the employee] was actually engaged in performing a part of his duties of employment in going to his allotted residence on the farm and in returning his working tools after the irrigating of the alfalfa had been completed for the day. [Citation.] ” (Id. at p. 809.)
Chavez, unlike the employee in Tarasco, was not transporting tools needed for his work at the time of the accident.
Drilon argues the drive home to get the tools should be within the course and scope of his employment because it was foreseeable that Chavez would be engaged in a social event after getting an evening work call and would have to drive home to get his truck and tools. “[A]ccidents occurring during such minor and foreseeable deviations [while on a trip for the benefit of the employer] become part of the ‘inevitable toll of a lawful enterprise.’ ” (Lazar v. Thermal Equipment Corp. (1983) 148 Cal.App.3d 458, 466.) Also, where accidents involve a combination of the employee’s personal business and the employers business, they fall within the scope and course. (Perez v. Van Groningen & Sons, Inc., supra, 41 Cal.3dat p. 970.)
However, the special errand exception does not apply to activities undertaken by an employee “without expectation, express or implied, or request therefor by his employer . . . .” (Vivion v. National Cash Register Co. (1962) 200 Cal.App.2d 597, 606.) Thus, for example, an employee who, without her employer’s knowledge and “for her ‘own convenience,’ ” goes into work on her day off to pick up her paycheck is not engaged in a special errand. (Munyon v. Ole’s, Inc., supra, 136 Cal.App.3d at p. 700.) Similarly, an employee driving children to school is on a personal errand (Le Elder v. Rice, supra, 21 Cal.App.4th at p. 1608), as is a winemaker who makes a trip to get grapes to make a personal stock of wine (Baptist v. Robinson, supra, 143 Cal.App.4th at p. 163).
In sum, Chavez’s drive home to get the truck and tools must be seen as a personal errand. Thus, the trial court properly granted summary judgment based on its finding Chavez was not on a “special errand” at the time of the accident. (Hartline v. Kaiser Foundation Hospitals (2005) 132 Cal.App.4th 458, 469-470.)
3. Incidental benefit exception inapplicable.
Drilon contends HDC derived substantial benefit by requiring Chavez to use his personal vehicle during the day. Drilon asserts the going and coming rule does not apply “where the use of the car gives some incidental benefit to the employer.” (State Farm Mut. Auto. Ins. Co. v. Haight (1988) 205 Cal.App.3d 223, 241.)
Drilon argues HDC benefited by requiring its technicians to commute in the employee’s own vehicle which contained the tools needed for the job so that it would be available for company business during the day. (Hinojosa v. Workmen’s Comp. Appeals Bd., supra, 8 Cal.3d at p. 160-161 [incidental benefit exception applies where an employer requires an employee to commute in the employee’s own vehicle so that it would be available for company business during the day]; Huntsinger v. Glass Containers Corp., supra, 22 Cal.App.3d at p. 810.)
Drilon concludes that once Chavez commenced the trip to his home to get the Toyota, he was in the course and scope of his employment. (Singh v. Board of Retirement (1996) 41 Cal.App.4th 1180, 1187.)
Had the accident occurred while Chavez was driving the Toyota, Drilon could argue the incidental benefit exception applied. However, Chavez had not yet started his commute to work. He was on a purely personal mission to return home to get the Toyota.
4. Routine special requests.
In the reply brief, Drilon expands his theory of the “special request” exception and argues HDC’s method of notifying its employees of work for the next day constituted a daily “special call” from the employer. (Schreifer, supra, 61 Cal.2d 289.) Although this practice was routine, the determinative factor is whether HDC derived an incidental benefit from its system of making nightly calls to schedule its technicians. (State Farm Mut. Auto. Ins. Co. v. Haight, supra, 205 Cal.App.3d at p. 241.) Here, the system benefited HDC by permitting it to call its employees into work the night before and thereby save money by bringing only technicians to work when there were assignments.
Drilon concludes HDC technicians were in the course and scope of employment when they responded to such calls and made the trip to work.
This claim fails because, as has been noted, Chavez was not responding to a special call to work and, even if he were, he had not yet commenced his commute.
5. Drilon has waived the asserted triable issues of fact.
In the reply brief, Drilon argues there were numerous triable issues of fact that precluded summary judgment. These issues included whether Chavez typically drove the Toyota to his girlfriend’s home, whether he routinely stayed at his girlfriend’s home when he expected to work the next day, whether he would have taken the Toyota to his girlfriend’s had he known he had to work the next day, whether the call Chavez received on February 15 was special because Chavez received it after 9:00 p.m., and whether the special call system was for the benefit of the employer.
Drilon concedes that if Chavez regularly took the Silverado to his girlfriend’s house, even when he expected to work the next day, then his trip home to get the Toyota would have been a personal errand. However, this was never proven. (Huntsinger v. Glass Containers Corp., supra, 22 Cal.App.3d at pp. 810-811.) Drilon concludes the order granting summary judgment must be reversed.
Drilon did not raise any of these asserted issues of triable fact in the trial court and failed to request a continuance to obtain further discovery to address these claimed issues. (Code Civ. Proc., § 437c, subd. (h).) Consequently, these factual issues must be seen as waived. (Clark v. Optical Coating Laboratory, Inc. (2008) 165 Cal.App.4th 150, 182, fn. 32; Lewinter v. Genmar Industries, Inc. (1994) 26 Cal.App.4th 1214, 1224.)
We therefore affirm the trial court’s finding that the “special errand” exception to the “going and coming” rule is not applicable to the facts of this case.
DISPOSITION
The order granting summary judgment is affirmed. HDC is entitled to its costs on appeal.
We concur: CROSKEY, J., KITCHING, J.
Drilon did not dispute in the trial court that Chavez received the call from the HDC dispatcher on the night before the accident. Accordingly, we view that fact as established for the purpose of the motion for summary judgment. (Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1602.)