Opinion
NOT TO BE PUBLISHED
APPEALS from a judgment of the Superior Court of San Diego County, No. GIE030830, Laura W. Halgren, Judge.
BENKE, Acting P. J.
Plaintiff was injured when the motorcycle he was riding collided with a truck being driven by a construction worker. The construction worker was driving to defendant's construction site where he planned to commence working at a building site where defendant was the general contractor. The trial court granted defendant's motion for summary judgment. We affirm.
Like the trial court, we find defendant was not responsible for the construction worker's negligence, if any. The record shows that, as a matter of law, the construction worker was on his way to begin working and, if he was an employee of defendant, his conduct was subject to the "going and come rule," which protects employers from liability for their employee's conduct while the employees are either going to or coming from work. The fact the construction worker was carrying tools in his truck which he planned to use on the job did not take his trip outside the "going and coming" rule.
FACTUAL AND PROCEDURAL BACKGROUND
On February 4, 2004, Jesus Flores was standing in front of a building supply store looking for work as a day laborer. Randy Leach was a cement subcontractor who was working on a condominium project on First Avenue in Coronado where defendants CBU Builds, Inc., and Carl B. Uveges (collectively CBU) were acting as the general contractor. Leach approached Flores, who had previously worked for Uveges, and asked him if he wanted work. Flores responded that he did. According to Flores, Leach told him to follow him to the construction site in Coronado. Flores went to his truck and began following Leach. However, at that point Flores did not know what job he would be performing at the job site or how much he would be paid. Flores testified that he kept a shovel, a pick, spoon to lay blocks and a level in his truck.
Flores followed Leach to First Avenue in Coronado near the condominium project. At the project, traffic was being controlled by another contractor's worker who was unloading equipment at the project. Plaintiff William H. Durant was following Leach and Flores down First Avenue on his motorcycle; Durant attempted to get around the slowed traffic by riding on the right near the shoulder. When Flores reached the intersection controlled by the other contractor's worker, Flores turned right and Durant's motorcycle collided with Flores's truck. Flores stopped and after providing information about the accident, unsuccessfully attempted to find Leach at the construction site.
Flores never worked for Leach or CBU on the day of the accident. Significantly, Flores testified that he was never paid by CBU and that after the accident he went back to the building supply store.
Durant and his wife Carla M. Durant filed a personal injury action against Flores, CBU and Leach. Durant eventually settled with Flores and gave Flores a release which included not only claims Durant had against Flores, but claims Durant had against "all other persons, firms and corporations."
At his deposition Leach testified he was an independent contractor, had never been an employee of CBU and that all he told Flores on the day of the accident was that there was work on Coronado and that if Flores followed him over to Coronado he could probably find work there. Based on Flores's and Leach's deposition, CBU moved for summary judgment. In addition to arguing that Flores was not an employee of CBU, CBU argued that in releasing Flores, Durant had also released CBU.
Following receipt of CBU's motion, Durant's attorneys contacted Leach, who was representing himself in the litigation. As a result of discussions with plaintiff's counsel, Leach executed declarations which set forth a version of events which was diametrically opposed to the one he provided at his deposition. In the declarations he supplied for plaintiff's counsel, Leach stated he was in fact acting as an employee of CBU when he approached Flores on the day of the accident, that he in fact hired Flores at the building supply store and required that Flores, as condition of employment, bring his tools and follow him to the work site. After receiving Leach's declarations, Durant entered a dismissal of his claims against Leach.
In opposing CBU's motion for summary judgment, Durant relied on Leach's declarations. In response to the declarations, CBU's attorneys obtained a further declaration from Leach in which he recanted material portions of the declarations he had provided Durant's attorney. Leach also stated that he had signed the initial declarations because Durant's counsel had promised him that in return for signing the declarations he would be dismissed from the lawsuit and that the declarations would not prejudice Uveges's interests.
CBU made a motion to strike the initial declarations signed by Leach at the behest of Durant's attorneys and for sanctions.
The trial court granted CBU's motion for summary judgment. The trial court found that while there was a question of fact with respect to whether Leach was employed by CBU on the day of the accident, Flores's negligence if any, was not attributable to CBU because he was going to his place of employment. The trial court rejected, as unsubstantiated, Leach's contention that he required that Flores bring his tools as a condition of employment. Later, the trial court denied CBU's motion for sanctions. Judgment on the order granting summary judgment was entered.
Durant and his wife filed a notice of appeal and CBU filed a notice of cross-appeal.
DISCUSSION
I
"A defendant's motion for summary judgment should be granted if no triable issue as to any issue exists as to any material fact and the defendant is entitled to a judgment as a matter of law. [Citation.] [¶].... We review the record and the determination of the trial court de novo." (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1002-1003.) Importantly, it is well established that "[a] court may disregard a declaration prepared for purposes of a summary judgment motion, which conflicts with deposition testimony of the declarant. [Citations.]" (Jacobs v. Fire Ins. Exchange (1995) 36 Cal.App.4th 1258, 1270.)
II
The court in Tryer v. Ojai Valley School (1992) 9 Cal.App.4th 1476, 1480-1481, set forth the principles which govern Durant's appeal: " 'Under the doctrine of respondeat superior, an employer is vicariously liable for his employee's torts committed within the scope of the employment. This doctrine is based on " 'a rule of policy, 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.' " ' [Citations].
" 'Generally, the issue of scope of employment is a question of fact. [Citation.] However, the issue becomes a question of law when the facts are undisputed and no conflicting inferences are possible.' [Citation.] Because there are no material factual disputes here, we independently consider whether OVS is entitled to summary judgment as a matter of law. [Citations.]
"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.]
"Generally, an employer is not responsible for torts committed by an employee who is going to or coming from work. [Citations.] The reason for this 'going and coming' rule is 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].' [Citations.]
"The rule 'has particular application to vehicle accidents of employees whose jobs do not embrace driving.' [Citation.] Accordingly, courts apply the rule when the employee performs the employment services ' "at or in a particular plant or upon particular premises...." ' [Citation.] There are exceptions to the rule, however. [Citation.]" (Tryer v. Ojai Valley School, supra, 9 Cal.App.4th at pp. 1480-1481.)
In Tryer v. Ojai Valley School plaintiff argued that the going and coming rule did not apply because a woman employed to feed horses at defendant's schools was required to use her truck as part of her job when, following a lunch break between shifts of work, she struck plaintiff's decedent on the way back to work. The court rejected plaintiff's arguments. "Tryer opines that she may invoke the 'required-vehicle' exception to the rule because OVS required West to use her own vehicle to get to work. Not so. The cases invoking the required-vehicle exception all involve employees whose jobs entail the regular use of a vehicle to accomplish the job in contrast to employees who use a vehicle to commute to a definite place of business. (See and compare Richards v. Metropolitan Life Ins. Co. (1941) 19 Cal.2d 236, 242—concerned an outside insurance sales agent required to use vehicle daily to meet prospects and customers in a territory allocated to him by the company; Smith v. Workmen's Comp. App. Bd. (1968) 69 Cal.2d 814, 816, 825—employer held liable for car accident involving social worker whose job required regular use of vehicle during work hours to visit clients in the field; Hinojosa v. Workmen's Comp. Appeals Bd. (1972) 8 Cal.3d 150, 157—employer held liable for accident involving one of its farm laborers who traveled amongst seven noncontiguous fields as involving 'extraordinary transits that vary from the norm'—case distinguished its facts from ordinary commutes; Huntsinger v. Glass Containers Corp. (1972) 22 Cal.App.3d 803, 810—traveling repairman's job entailed extensive use of a truck in field to call on customers.)" (Tryer v. Ojai Valley School, supra, 9 Cal.App.4th at pp. 1481-1482.)
Another exception to the going and coming rule is the "special errand" exception. "If the employee is not simply on his way from his home to his normal place of work or returning from said place to his home for his own purpose, but is coming from his home or returning to it on a special errand either as part of his regular duties or at a specific order or request of his employer, the employee is considered to be in the scope of his employment from the time that he starts on the errand until he has returned or until he deviates therefrom for personal reasons. [Citations.] To such special missions the general test as to scope of employment applies. It is not necessary that the servant is directly engaged in the duties which he was employed to perform, but included are also missions which incidentally or indirectly contribute to the service, incidentally or indirectly benefit the employer." (Boynton v. McKales (1956) 139 Cal.App.2d 777, 789.) "The following activities have been considered special errands: picking up or returning tools used on the job, attendance at an employment social function when an employee's attendance is expected and it benefits the employer, and a trip in which the employee responds to a service call when the employee is on call for the employer's business. [Citation.]" (Caldwell v. A.R.B., Inc. (1986) 176 Cal.App.3d 1028, 1036-1037.)
Here, the record is hardly convincing that Flores was even an employee of CBU at the time he left the building supply store. Flores did not know what he would be doing at the work site or how much he would be paid. Indeed, if Leach's deposition testimony is to be believed, he did not hire Flores on the day of the accident but simply told him to follow him over to Coronado because Flores could probably find work there. On this record the most that can be said is that there was a triable issue of fact as to whether Flores was an employee of CBU as he drove to the work site. However, there is no reasonable question that if he was an employee of CBU, Flores was on his way to a fixed work site where his truck was only needed to get him there. Thus there is no reasonable question Flores's conduct falls squarely within the going and coming rule. (See Tryer v. Ojai Valley School, supra, 9 Cal.App.4th at pp. 1481-1482.)
Like the trial court, we disregard that portion of the declaration Leach provided Durant's counsel in which he stated that he required Flores to bring his truck and tools as a condition of employment. That portion of the declaration not only contradicts Leach's earlier deposition testimony and the still later declaration he provided CBU's counsel, but it is totally at odds with the tenor of Flores's deposition testimony with respect to the fact Flores did not know what he would be doing at the work site, did not know how much he would be paid and never actually worked for CBU on the day of the accident. This is not the context in which it is reasonable to believe Leach nonetheless imposed specific conditions on Flores's employment. In short, given Leach's and Flores's earlier testimony and Leach's later declaration, the declaration Leach provided Durant's counsel was not sufficiently credible to defeat CBU's otherwise meritorious motion for summary judgment. (See Jacobs v. Fire Ins. Exchange, supra, 36 Cal.App.4th at p. 1270.)
In sum, the trial court did not err in granting CBU's motion for summary judgment.
Because Flores's conduct was not attributable to CBU, we need not and do not consider CBU's alternative argument that the release Durant gave Flores also released CBU.
II
In its cross-appeal CBU argues that the trial court abused its discretion in denying its motions for sanctions.
In ruling on the motion for sanctions, the trial court expressed some reservations about Leach's credibility and the fact that he was not represented by counsel at the time he signed the declarations for Durant's counsel. However, after considering the arguments made by Durant's counsel and their explanation that they did not believe Durant had a separate claim against Leach if Leach was in fact an employee of CBU and that Leach was friendly and cooperative, the trial court found that Durant's counsel had not engaged in any misconduct sufficient to warrant the imposition of sanctions.
On appeal CBU contends that it presented uncontradicted evidence that plaintiff's counsel acted in a dishonest and oppressive manner in obtaining Leach's declarations and that sanctions should have been imposed. (Code Civ. Proc., §§ 128, subd. (a), 128.5.) Our review of the trial court's more generous interpretation of counsel's conduct is governed by familiar principles: "The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court. [Citations.] [¶].... Even though contrary findings could have been made, an appellate court should defer to the factual determinations made by the trial court when the evidence is in conflict. This is true whether the trial court's ruling is based on oral testimony or declarations." (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478-479, fn. omitted.) Here, because the trial court's resolution of the issue is supported by plaintiff's counsel's explanation of events, we are in no position to disturb it.
Judgment affirmed. CBU to recover its costs of appeal.
WE CONCUR: HUFFMAN, J., IRION, J.