Moreno v. Visser Ranch, Inc.

Scope of employment is a question of fact. Here, the evidence shows defendants required the driver to be on call 24 hours a day, seven days a week to respond immediately to cell phone calls for repairs and maintenance needed at the ranches, farms and dairies operated by defendants. Also, there is conflicting evidence about whether the driver was required to use the company-owned vehicle, which contained tools and spare parts, at all times so he could respond quickly to call for repairs at defendants' various locations. Based on this evidence and other details about the driver's job, a reasonable trier of fact could find the driver was acting within the scope of his employment when the accident occurred.

We publish this decision because it is distinguishable from most other cases involving an employee's required use of a company-owned vehicle. Usually, those cases involve an employee who is required to use the vehicle only for the commute to and from work but is not required to use the vehicle while off

Defendants provided Driver with an office at the property known as Visser Ranch, and he worked from 6:00 a.m. to 4:30 p.m. six days a week, with Sundays off. In addition, he was "on call" 24 hours a day, seven days a week, which meant he was expected to respond to any problems or issues that arose on any Visser property at any time of the day or night.

Driver was provided a house on one of the Visser properties, Graceland Dairy, where he lived with his family, including plaintiff. The distance between Driver's office at Visser Ranch and the home at Graceland Dairy was approximately eight miles. To facilitate Driver's ability to respond efficiently to repair and maintenance problems arising outside his usual daytime schedule, defendants provided Driver a cell phone and a pickup truck. The GMC truck that Driver was operating on the day of the accident was owned by Graceland Dairy, Inc. Driver kept a toolbox and spare parts in the GMC truck so he would have them available whenever he was contacted to respond to a maintenance or repair issue. When Driver was not working his regular shift, he used the GMC truck so he could respond quickly to work-related calls. Driver's use of the GMC truck while not performing his regular shift was part of his employment and

PROCEEDINGS

In April 2013, plaintiff filed a complaint for damages alleging a negligence cause of action against Driver, Visser Ranch, Inc., Graceland Dairy, Inc., and General Motors Company. The negligence cause of action asserted defendants were liable because (1) Graceland Dairy, Inc. owned the vehicle negligently operated by Driver, (2) Driver was acting in the course and scope of this employment with defendants at the time he lost control of the vehicle, and (3) defendants negligently failed to screen, train and supervise Driver.

In addition, plaintiff alleged a cause of action against the State of California and the County of Tulare based on the dangerous condition of the public property where Driver lost control of the vehicle. Plaintiff also alleged causes of action against General Motors Company for strict liability, negligent product liability, and breach of warranty.

In June 2015, defendants filed a motion for summary adjudication addressing the claims that they were vicariously liable and that they had negligently entrusted the vehicle to Driver. Plaintiff opposed the motion, asserting the existence of disputed facts and arguing the scope of Driver's employment was a factual question for the jury.

In addition, codefendants Driver and the County of Tulare filed separate oppositions to defendants' motion for summary adjudication. Driver supported his opposition by submitting a declaration stating (1) plaintiff was employed by Cream of the Crop, Ag Service, Inc. to perform work services at the Graceland Dairy site and other Visser properties; (2) the night of the incident, plaintiff was scheduled to perform work at Graceland Dairy; and (3) Driver "was driving him back to the Graceland Dairy site so that he could begin his work shift." The final paragraph of Driver's declaration stated: "On the night of the incident, when I was driving [plaintiff] from my brother's home to the Graceland Dairy

"[T]he undisputed deposition testimony reveals [plaintiff] (1) lived at the family home located at Graceland Dairy; (2) was not employed by Visser Ranch; (3) did not have to be at work at any particular time; (4) was planning to go to work whenever he got home; and (5) walked to the barn close to his house at Graceland Dairy to get to work. [Citation.] As such, the deposition testimony does not support the opposing parties' argument [that Driver] was transporting [plaintiff] for purposes related to Visser Ranch's business activities."

The court rejected Driver's declaration to the extent that it contradicted his deposition testimony and summarized the evidence presented by stating Driver "engaged in a distinctly personal event when he traveled to the family outing." The court determined a reasonable trier of fact could not find Driver "was acting in furtherance of Visser Ranch's business activities by going home with his son after the family event. Moreover, where the purpose was beyond the scope of employment, [plaintiff's] plans to go to work after he arrived home did not transform the trip into company business." The court concluded Driver was engaged in a purely personal pursuit with his son when the accident happened, and inferences to the contrary were not reasonable.

In May 2017, the trial court entered a judgment as to defendants based on (1) the August 2015 order that granted them summary adjudication of the claims of vicarious liability and negligent entrustment and (2) the remaining claim that defendants had statutory liability arising out of the ownership of the vehicle. The judgment stated plaintiff had reached a settlement in excess of $15,000 with Driver and the settlement satisfied the $15,000 statutory liability based on ownership of the vehicle. As a result, judgment was entered in favor of defendants and against plaintiff. Plaintiff timely appealed from the judgment.

DISCUSSION

A

. Respondeat Superior

The doctrine of respondeat superior holds an employer liable for torts of its employees committed within the scope of their employment.

Under the test described by this court in Halliburton , an employee's conduct is within the scope of his or her employment if (1) the act performed was either required or incident to his duties or (2) the employee's misconduct could be reasonably foreseen by the employer in any event. ( Halliburton , supra , 220 Cal.App.4th at p. 94, 162 Cal.Rptr.3d 752 .) In this test, foreseeability 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 the costs of the employer's business. ( Id . at p. 95, 162 Cal.Rptr.3d 752 .) In Halliburton ,

Appellate courts independently review an order granting summary judgment or summary adjudication. ( Miller v. Department of Corrections (2005) 36 Cal.4th 446 , 452, fn. 3, 30 Cal.Rptr.3d 797 , 115 P.3d 77 [review of a grant of summary judgment or summary adjudication is de novo]; Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763 , 768, 107 Cal.Rptr.2d 617 , 23 P.3d 1143 ( Saelzler ).) In performing this independent review, appellate courts apply the same three-step analysis as the trial court. ( Brantley v. Pisaro (1996) 42 Cal.App.4th 1591 , 1602, 50 Cal.Rptr.2d 431 ( Brantley ).)

The first step requires the court to identify the issues framed by the pleadings. ( Brantley , supra , 42 Cal.App.4th at p. 1602, 50 Cal.Rptr.2d 431 .) Here, plaintiff's complaint sought to impose vicarious liability on defendants under a respondeat superior theory by alleging Driver was operating the GMC truck while in the course and scope of his employment with defendants.

The second step requires the court to determine whether the moving party has satisfied its burden of establishing facts that justify a judgment in its favor. ( Brantley , supra , 42 Cal.App.4th at p. 1602, 50 Cal.Rptr.2d 431 .) Here, defendants attempted to establish that Driver was not acting in the scope or course of employment by setting forth facts and presenting evidence that showed Driver was engaged in personal activities when the GMC truck rolled and injured plaintiff.

If the moving party has carried its initial burden, the court proceeds to the third step and decides whether the opposing party has demonstrated the existence of a triable issue of material fact. ( Brantley , supra , 42 Cal.App.4th at p. 1602, 50 Cal.Rptr.2d 431 .) Here, plaintiff contends (1) the question of scope of employment ordinarily is one of fact for the jury to decide

A. Permission and Benefit Test

Under the test for scope of employment set forth in Purton , the employer is liable if the activities that caused the employee to become an instrument of danger to others (1) were undertaken with the employer's permission and (2) were of some benefit to the employer. ( Purton , supra , 218 Cal.App.4th at p. 509, 159 Cal.Rptr.3d 912 .)

Here, the activity that caused Driver to become an instrument of danger to others was driving the GMC truck. Plaintiff contends the first element of the test-employer permission-was satisfied based on Driver's declaration. Paragraph 24 of Driver's August 2015 declaration stated:

"Visser required me to have the Truck available for immediate use at all times. My use of the Truck on a 24/7 basis was not simply permissive or a personal favor to me, but rather it was a part of my job for Visser's benefit so that I could respond immediately to Visser's maintenance, repair, and operation[al] needs."

In addition, Driver stated that his supervisors were aware that he had the GMC truck with him at all times. Viewing this evidence in the light most favorable to plaintiff, we conclude it is sufficient to establish the first element of the Purton test. Specifically, Driver's use of the GMC truck for personal trips, including traveling to and from a family gathering at his brother's home, was undertaken with defendants' permission.

As to the second element of some benefit to the employer, the parties disagree on whether Driver's use of the GMC truck for a personal trip benefited defendants. Plaintiff's theory of benefit asserts that defendants benefited from requiring Driver to use the GMC truck on personal trips because doing so allowed Driver to respond directly to a phone call that repairs were required at one of defendants' sites. Driver kept tools and spare parts in the GMC truck and, as a result, could go immediately to the location where the repairs were needed. Plaintiff also notes that defendants received the benefit of Driver returning plaintiff to Graceland Dairy to begin his shift. In contrast, defendants and the trial court viewed Driver as being "engaged in a purely personal pursuit with his son when the accident happened."

Based on the evidence presented, we conclude there is a triable issue of material

2. Foreseeable Negligent Driving

Under the alternate prong of the test described in Halliburton , the scope of employment extends to employee misconduct that could be reasonably foreseen by the employer. ( Halliburton , supra , 220 Cal.App.4th at p. 94, 162 Cal.Rptr.3d 752 .) Foreseeability means that, in the context of defendants' enterprise, Driver's conduct was not so unusual or startling that it would seem unfair to include the loss resulting from it among the other costs of the employer's business. ( Ibid . ) Here, Driver was required to use the company

C. Purely Personal Activity

In Halliburton , we did not decide whether a jury reasonably could find the employee was acting in the scope of employment while using a company truck to commute to a work location based on the theory that employee's use of the truck during his commute provided an incidental benefit to the employer. ( Halliburton , supra , 220 Cal.App.4th at p. 96, 162 Cal.Rptr.3d 752 .) We concluded that, even if an incidental benefit was provided, the undisputed facts established that the employee was engaged in purely personal business at the time of the accident and, therefore, was not acting within the scope of his employment for purposes of respondeat superior liability. ( Id . at pp. 96-97, 162 Cal.Rptr.3d 752 .) This approach necessarily holds that even if a prong of the scope of employment test described in that decision had been established, an exception to the test existed for purely personal business. Consequently, here we consider whether the undisputed material facts establish Driver was not acting in the scope of his employment with defendants because he was engaged in purely personal business at the time the GMC truck left the roadway and overturned. Purely personal business also has been described as " 'an end or purpose exclusively and individually [the employee's] own.' " ( Id . at p. 102, 162 Cal.Rptr.3d 752 .)

Contrary to defendants' arguments and the determination of the trial court, we conclude there exists a triable issue of material fact as to whether Driver was engaged in purely personal business

Finally, our conclusion that the issue of purely personal business cannot be decided in defendants' favor at this stage of the proceedings is congruent with the dual purpose principle mentioned earlier. That principle acknowledges that "[t]he fact that the predominant motive of the servant is to benefit himself or a third person does not prevent the act from being within the scope of employment." ( Rest.2d Agency, § 236, com. b.) Here, even if Driver's predominant reasons for attending the gathering and driving home with his son were personal, there was a secondary business purpose underlying the use of the GMC truck. Accordingly, we cannot conclude as a matter of law that Driver was engaged in purely personal business when the accident occurred. It follows that the motion for summary adjudication of the respondeat superior claim should have been denied.

DISPOSITION

The judgment is reversed. Plaintiff shall recover his costs on appeal.

WE CONCUR:

LEVY, Acting P.J.

DESANTOS, J.

On September 12, 2012, Driver left work at approximately 4:30 p.m., drove to his home at Graceland Dairy, loaded a grill into the GMC truck, and drove to his brother's house for a family gathering. None of defendant's other employees attended, or were aware of, the family gathering. At approximately 11:45 p.m., Driver got back into the GMC truck to return to his home at Graceland Dairy. Plaintiff rode along in the passenger seat. Driver followed a route that he had taken on many prior occasions. Driver lost control of the GMC truck while attempting to negotiate an S-curve in the roadway that was being resurfaced.

When the single-vehicle accident occurred, plaintiff was employed by Cream of the Crop, Ag Service, Inc. to perform services at the Graceland

In September 2015, following a hearing on the motion for summary adjudication, the court filed an order granting defendants' motion for summary adjudication "only on liability arising from the theories of vicarious

3. The "Going and Coming" Rule

A specific principle, along with many exceptions, has been developed to address whether an employee is acting within the scope of employment when involved in a vehicular accident on the way to or from work. Called the "going and coming" rule, this principle holds that an employee going to or from work ordinarily is considered outside the scope of employment and, therefore, the employer is not liable for torts committed during the commute. ( Halliburton , supra , 220 Cal.App.4th at pp. 95-96, 162 Cal.Rptr.3d 752 .) The going and coming rule is not applicable to this case because Driver was not commuting to or from work at the time of the accident. (See generally, CACI No. 3725 [going-and-coming rule, vehicle-use exception].) Consequently, this opinion does not describe the rule and its many exceptions in the detail provided in other decisions published by this court. (See Pierson v. Helmerich & Payne Internat. Drilling Co. (2016) 4 Cal.App.5th 608 , 618-624, 209 Cal.Rptr.3d 222 [overview of going and coming rule]; Lantz v. Workers' Comp. Appeals Bd. (2014) 226 Cal.App.4th 298 , 308-311, 171 Cal.Rptr.3d 829 [going and coming rule and special mission exception]; Halliburton , supra , at pp. 95-96, 162 Cal.Rptr.3d 752 [going and coming rule and incidental benefit exception].)

During the second and third steps of the analysis, an appellate court considers the evidence in a light favorable to the nonmoving party, liberally construing that party's evidentiary submission while strictly scrutinizing the moving party's own showing and resolving any evidentiary doubts or ambiguities in the nonmoving party's favor. ( Saelzler , supra , 25 Cal.4th at pp. 768-769, 107 Cal.Rptr.2d 617 , 23 P.3d 1143 .) Furthermore, an appellate court's evaluation of the evidence presented with motions for summary judgment or adjudication does not include evidence to which objections have been made and properly sustained. ( Code Civ. Proc., § 437c, subd. (c).) Here, the trial court overruled all of the evidentiary objections presented by the parties because those objections were

B. Halliburton Test

The test for scope of employment described by this court in Halliburton can be satisfied in multiple ways. An employee's conduct is within the scope of his employment if the act performed was (1) required or (2) incident to his duties. ( Halliburton , supra , 220 Cal.App.4th at p. 94, 162 Cal.Rptr.3d 752 .) When neither of these elements is satisfied, the employee's misconduct is regarded as within the scope of employment if it could be reasonably foreseen by the employer. ( Ibid . ) An example of this type of foreseeability occurs when an employer requires an employee to drive his own vehicle to and from its office so the vehicle is available for company business during the workday. In such a situation, " 'accidents on the way to or from the office are statistically certain to occur eventually, and, the business enterprise having required the driving to and from work, the risk of such accidents are risks incident to the business enterprise.' " ( Id . at p. 96, 162 Cal.Rptr.3d 752 .)

1. Required Acts

Whether the act performed by Driver was required turns on how that act is described or characterized. For instance, Driver was not required by defendants to attend the family gathering. Consequently, if the relevant conduct is described as returning from a family gathering, that conduct was not an act required by Driver's employer.

Alternatively, if the relevant conduct is described as operating the GMC truck while on a personal trip, there is a triable issue of fact as to whether that conduct was required by his employer. Plaintiff's evidence includes Driver's declaration, which states his use of the GMC truck at all times was a part of his job, was not permissive, and was not a personal favor. Thus, Driver's declaration is evidence that Driver was engaging in conduct required by his employer at the time of the accident.

At a minimum, we conclude the different ways to characterize Driver's activity presents a question of fact that cannot be decided in defendants' favor at this stage of the proceedings. This conclusion is compatible with the general principle addressing employee conduct that serves a dual purpose-a purpose of the employer and a purpose of the employee. Section 236 of the Restatement Second of Agency sets forth this principle as follows: "Conduct

These facts show Driver was on personal business when the accident occurred, but they do not establish as a matter of law that he was engaged in