Opinion
D071814
09-26-2017
ANDRES OLMOS, Plaintiff and Appellant, v. A-Z BUS SALES, INC., Defendant and Respondent.
Workman Law and Christopher J. Workman, Aaron Matthew Sibley for Plaintiff and Appellant. Wood Smith Henning & Berman and Patrick John Raue, Nicholas M. Gedo for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2015-00041728-CU-PA-CTL) APPEAL from a judgment of the Superior Court of San Diego County, Joan M. Lewis, Judge. Reversed. Workman Law and Christopher J. Workman, Aaron Matthew Sibley for Plaintiff and Appellant. Wood Smith Henning & Berman and Patrick John Raue, Nicholas M. Gedo for Defendant and Respondent.
While riding his bicycle, Andres Olmos collided into the door of Brian Hunt's personal vehicle when Hunt opened its door. Olmos sued Hunt and Hunt's employer, A-Z Bus Sales, Inc. (A-Z Bus), alleging negligence and respondeat superior liability. The court granted summary judgment in A-Z Bus's favor on the ground that the "going and coming" rule barred employer liability for Hunt's tort committed during his commute to work. Olmos argues A-Z Bus did not meet its initial burden of production on summary judgment to show the going and coming rule applies. He further argues triable issues of material fact exist as to the rule's applicability here. Whether the going and coming rule applies in this case cannot be decided as a matter of law; therefore, we reverse the summary judgment.
FACTUAL AND PROCEDURAL BACKGROUND
We state the facts from the record before the trial court when it made its summary judgment ruling, viewing the evidence and resolving all inferences and doubts from it in Olmos's favor as the nonmoving party. (Hampton v. County of San Diego (2015) 62 Cal.4th 340, 347.)
Hunt has worked for A-Z Bus as a territory sales manager since 2010. His primary duty is to develop sales accounts and sell buses to customers in his territory throughout California. As part of his job, Hunt is required to travel and maintain an acceptable driving record. Hunt drives a vehicle to visit his clients and to A-Z Bus's headquarters in Colton, California for bimonthly meetings, but he does not have a fixed personal office space in Colton.
A-Z Bus has never provided Hunt a company car, giving him instead a $400 monthly car allowance to use as he sees fit. From at least 2013 to 2016, Hunt has used the entire car allowance for a month-to-month car rental with no mileage limits. A-Z Bus insures Hunt's rental car only. Hunt stated in his deposition that he is always careful to use the rental car for work, thus avoiding adding to the mileage on his personal vehicle.
For over one year before the underlying traffic incident, Hunt followed the same routine: He drove his personal vehicle approximately three times a week from his home in Rosarito Beach, Mexico to Chula Vista, California, where he parked it on Brandywine Avenue. He then transferred to the rental vehicle to begin making his work appointments. After finishing work, Hunt parked the rental car on Brandywine Avenue because he could not take it to Mexico. Hunt drove home in his personal vehicle.
On October 16, 2014, Hunt drove his personally owned Chevrolet Suburban from his home and parked on Brandywine Ave. He stayed in his personal vehicle for a few minutes to gather his phone, wallet, and other items. Olmos was riding his bicycle and collided into the door of Hunt's personal vehicle as soon as Hunt opened it.
Based on that incident, Olmos filed the present law suit, alleging he suffered injury during the accident and pleading a respondeat superior theory. A-Z Bus answered, generally and specifically denying the complaint's allegations.
A-Z Bus moved for summary judgment on the grounds that it was not liable for Olmos's injuries under respondeat superior, and undisputed facts showed the going and coming rule barred Olmos's claim. A-Z Bus argued: "Hunt did not have a fixed office location that he commuted to on a regular basis, but instead as a territory manager for A-Z Bus, would regularly drive to his rental vehicle to make sales calls. As such, his company-reimbursed rental vehicle was his 'fixed place of business' and his commute to and from the rental car was his normal commute that fell under the going and coming rule."
Olmos opposed the motion, relying on Richards v. Metropolitan Life Ins. Co. (1941) 19 Cal.2d 236 (Richards) and other judicially created exceptions to the going and coming rule.
The court ruled that the going and coming rule applied because Hunt was using his personal vehicle when the incident occurred.
DISCUSSION
On appeal, Olmos contends that based on the evidence presented in the motion papers, A-Z Bus has not met its initial burden of production because exceptions to the going and coming rule set forth in Richards, supra, 19 Cal.2d 236, the "required vehicle" exception; and the "implicit requirement" exception apply here. Olmos further argues A-Z Bus presented no evidence showing the nature or scope of its business enterprise to support application of the coming and going rule, and no showing that Hunt's rental car was a "fixed place of business." Olmos alternatively argues, based on the above exceptions to the going and coming rule, that triable issues of material fact exist to defeat the grant of summary judgment and require reversal.
I. Standard of Review
We independently review an order granting summary judgment. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768; Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334), applying the same three-step analysis as the trial court. (Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1602.) The legal principles involved in motions for summary judgment are well established. The moving party bears the initial burden to make a prima facie showing that no triable issue of material fact exists. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) If this burden is met, the party opposing the motion bears the burden of showing the existence of disputed facts. (Ibid.) Courts " 'construe the moving party's affidavits strictly, construe the opponent's affidavits liberally, and resolve doubts about the propriety of granting the motion in favor of the party opposing it.' " (Seo v. All-Makes Overhead Doors (2002) 97 Cal.App.4th 1193, 1201-1202.)
"In determining if the papers show that there is no triable issue as to any material fact, the court shall consider all of the evidence set forth in the papers . . . and all inferences reasonably deducible from the evidence, . . . summary judgment shall not be granted by the court based on inferences reasonably deducible from the evidence if contradicted by other inferences or evidence that raise a triable issue as to any material fact." (Code Civ. Proc., § 437c, subd. (c), italics added.)
The rules of law defining the role of inferences in creating a triable issue of material fact are contained in subdivision (c) of Code of Civil Procedure section 437c. When reviewing a motion, the court shall consider the evidence set forth in the papers and "all inferences reasonably deducible from the evidence." (Ibid.) Generally, when conflicting inferences can be reasonably drawn from the evidence, a triable issue of fact is deemed to exist. (Ibid.; see Lantz v. Workers' Compensation Appeals Board (2014) 226 Cal.App.4th 298, 317.) Whether a particular inference is reasonable is not decided by evaluating an item of evidence in isolation. Instead, the reasonableness of an inference depends on all the evidence relevant to the issue. (See Halliburton Energy Services, Inc. v. Department of Transportation (2013) 220 Cal.App.4th 87, 105 (Halliburton) [inference supported by two general facts was not reasonable when evaluated in light of undisputed fact that the driver was pursuing his own activities for his own purposes at the time of the accident].)
II. Applicable Law
Under the doctrine of respondeat superior, a plaintiff suing an employer must prove that the tort was committed within the scope of employment. (Halliburton, supra, 220 Cal.App.4th at p. 105.) The public policy supporting this doctrine is based on " '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 (Hinman).) Thus, the respondeat superior doctrine: (1) encourages accident prevention; (2) generally means that an innocent person who has been injured by an employee's tortious conduct will be more likely to collect damages; and (3) encourages employers to protect against that risk by obtaining insurance and spreading those costs over the entire business and ultimately to its customers. (Ibid.)
A corollary of the doctrine of respondeat superior is the going and coming rule, which states that employees do not act within the scope of employment while going to or coming from the workplace. (Jeewarat v. Warner Bros. Entertainment, Inc. (2009) 177 Cal.App.4th 427, 435.)
The rationale for the going and coming rule is that the employment relationship is suspended from the time the employee leaves work until he or she returns because an employee ordinarily renders no service to the employer while traveling. (Ibid.) The going and coming rule is used in tort law to determine the scope of employment for purposes of respondeat superior liability and also in workers' compensation law to determine whether an employee injured while traveling to or from work sustained an injury " 'arising out of and in the course of the employment' " for purposes of Labor Code section 3600. (Hinman, supra, 2 Cal.3d at p. 962, fn. 3.) The analysis used by courts in workers' compensation cases to direct or affirm coverage for the employee provide some guidance for analyzing respondeat superior cases because situations will arise where workers' compensation coverage overlaps with respondent superior liability. Despite this overlap, the analysis used in workers' compensation cases should not be applied in tort cases as though it was controlling. (Pierson v. Helmerich & Payne International Drilling Co. (2016) 4 Cal.App.5th 608, 620.)
The going and coming rule and its exceptions do not set forth a formula of automatic application. (Hinojosa v. Workmen's Comp. Appeals Bd. (1972) 8 Cal.3d 150, 156.) Accidents involving employees traveling to and from work, or engaged in other types of travel, arise in so many varying circumstances that the application of the going and coming rule depends upon the facts of the particular case. (Id. at p. 155 ["each case should be adjudged on its own unique facts"].) "Generally, whether an employee is within the scope of employment is a question of fact; however, when the facts of a case are undisputed and conflicting inferences may not be drawn from those facts, whether an employee is acting within the scope of employment is a question of law." (Blackman v. Great American First Savings Bank (1991) 233 Cal.App.3d 598, 602, italics added.)
III. Application of the Going and Coming Rule is a Jury Question
We conclude that here we may not decide the applicability of the going and coming rule as a question of law because more than one reasonable inference can be drawn from the undisputed facts. A first reasonable inference that may be drawn is that under the Richards case, Hunt was a traveling salesman with no fixed place of business. (Richards, supra, 19 Cal.2d 236.) Accordingly, irrespective of whether he was driving his personal vehicle or his rental vehicle within his sales territory in California during a workday, he was benefitting A-Z Bus and thus within the scope of employment. Under this particular inference, the coming and going rule would be inapplicable and A-Z Bus liable for the harm Hunt caused Olmos because Hunt was within his employment at the time of the accident.
A conflicting inference that also is permissible here is that Hunt never performed work for A-Z Bus until he got into the rental vehicle that A-Z Bus paid for and insured. Therefore, the going and coming rule would apply because the accident occurred during the first portion of Hunt's commute, before he transferred to the rental vehicle. At that time, he was not benefitting A-Z Bus and thus not within the scope of employment. Given that these inferences would lead to disparate results, this case is not suitable for adjudication as a matter of law. We thus reverse the summary judgment. A jury must consider and weigh all of the relevant circumstances.
Sumrall v. Modern Alloys, Inc. (2017) 10 Cal.App.5th 961 is an analogous case addressing a summary judgment motion on the issue of respondeat superior liability. The Court of Appeal concluded that the facts permitted two separate reasonable inferences; therefore, the issue presented was not amenable to summary judgment adjudication. The Court of Appeal summarized the facts as follows: "Here, a construction company paid its employee only for the hours he worked at a jobsite. But rather than driving his vehicle directly from his home to the jobsite, the company expected the employee to first commute to the company's 'yard.' The employee would then drive a company truck from the yard to the jobsite, transporting coworkers and materials. One day, while driving from his home to the yard, the employee collided with a motorcyclist, who sued the construction company. The trial court granted defendant summary judgment, finding that the employee was commuting to his "work," and therefore he was not acting within the scope of his employment." (Id. at pp. 964-965.) The appellate court ruled: "We cannot state as a matter of law that the employee was not on a business errand while commuting from his home to the employer's yard. Thus, we will reverse the trial court's granting of defendant's summary judgment motion." (Id. at p. 965.)
DISPOSITION
The judgment is reversed. Olmos is entitled to his costs on appeal.
O'ROURKE, J. I CONCUR: BENKE, Acting P. J. Aaron, J., concurring in the result.
Olmos argues on appeal that A-Z Bus Sales, Inc. (A-Z Bus) failed to meet its burden of production on summary judgment to show that the going and coming rule applies and precludes a finding of liability on the part of A-Z Bus. I agree with the majority that Olmos is correct, and that the trial court's grant of summary judgment in favor of A-Z Bus on the ground that the going and coming rule applies as a matter of law was error.
However, the majority goes further, asserting that "[w]hether the going and coming rule applies in this case cannot be decided as a matter of law." (Maj. opn. ante, at p. 2.) While the majority states that under Richards v. Metropolitan Life Ins. Co. (1941) 19 Cal.2d 236 (Richards), a jury could reasonably conclude that the going and coming rule does not apply, the majority also asserts that a jury could also reasonably infer, alternatively, that "Hunt never performed work for A-Z Bus until he got into the rental vehicle that A-Z Bus paid for and insured." (Maj. opn. ante, at p. 8.) The majority does not explain how or why the fact that Hunt chose to use both a personal vehicle and a rental car to get from his home to his work appointments has any bearing on whether the rule applies.
In Richards, the Supreme Court addressed whether Metropolitan Life Insurance Company (Metropolitan Life) could be liable for the acts of its employee, Lehman, whose duties consisted for the most part of working in the field selling insurance, delivering policies and collecting and delivering premiums. (Richards, supra, 19 Cal.2d at pp. 237-238.) Lehman was involved in an automobile accident while driving from his home to the office. (Id. at p. 238.) The plaintiff's daughter was killed in the accident and the plaintiff sued both Lehman and Metropolitan Life. (Id. at p. 237.) The question before the court was whether Lehman was acting within the course and scope of his employer's business at the time of the accident. (Id. at p. 239.) The court distinguished the circumstances in Richards from cases in which courts had held that the going and coming rule did apply, on the basis that in those cases, the employee's duties were to be performed at a designated place or did not commence until the employee had arrived at the employer's place of business. (Id. at p. 241.) The Richards court noted that unlike in those cases, "as [Lehman] left his home in the morning, it was optional with him whether he would first go to the office of the company or whether he would go into the field for the purpose of collecting a premium or delivering a policy. In the performance of each of these acts the employee was acting within the course and scope of his employment; or, to put it differently, the scope of his employment comprehended and included both an office visit and a visit to a policyholder or to a prospective policyholder, and there was no requirement of the company as to which of these two acts he was to perform before the other." (Id. at pp. 241-242.) The Richards court concluded, "These duties to report to the office and to perform service in the field defined the scope of [Lehman's] employment, and when he was engaged in either, it cannot be said that he was not acting within the course of his employment." (Id at p. 242, italics added.)
Significantly, the Richards court asserted that under the authorities cited in that case, "it cannot be questioned, had Lehman at the time of the accident been on his way from his home to one of the policyholders of the company for the purpose of delivering a policy or collecting a premium, or on his way to a prospective policyholder for the purpose of selling insurance in his company, that he would have been acting in the scope and course of his employment, and the company would be liable for any tort committed by him on either of said occasions." (Richards, supra, 19 Cal.2d at p. 243, italics added.) Richards thus suggests that where it is undisputed that a salesperson who works in the field is in his sales territory on his way to a sales call or to his employer's office, the going and coming rule is inapplicable as a matter of law.
In this case, it is undisputed that Hunt works as a territory sales manager for A-Z Bus and that his primary duty is to develop sales accounts and to sell buses to customers in his territory. It is further undisputed that Hunt is required to travel as part of his job and that he has no fixed personal office space at A-Z Bus's headquarters in Colton, California. Finally, it is undisputed that A-Z Bus provides Hunt with a $400 monthly car allowance "to use as he sees fit" (maj. opn. ante, at p. 2), and that A-Z Bus does not dictate the means by which Hunt travels to and from his sales calls. Richards suggests that under these circumstances and in the absence of evidence that Hunt was not in his sales territory or that he was doing something other than traveling to a sales call, to another business appointment in the field or to his employer's office, the going and coming rule would not apply as a matter of law.
The majority fails to explain why the fact that Hunt chose to use both a personal vehicle and a rental car to get from his home to his work appointments would take this case out of the ambit of Richards. In my view, there are no facts in the record that would support a finding that the going and coming rule applies. Under these circumstances, I would conclude only that the trial court erred in granting summary judgment for A-Z Bus because A-Z Bus failed to carry its burden on summary judgment to demonstrate, as a matter of law, that the going and coming rule applies. I would refrain from determining an issue that we have no need to address—i.e., whether the question of the applicability of the going and coming rule is, in this case, necessarily a question of fact. However, because the majority has addressed this issue in dicta, I wish to make clear my view that, on this record, there is no basis for any fact-finder to reasonably find that the going and coming rule applies.
AARON, J.