Case Name: Kyung Min v. Nicholas Romeo Simard, et al.
Case No.: 17CV319439

I. Factual Background

This is a personal injury action filed by plaintiff Kyung Min (“Plaintiff”) against defendants Nicholas Romeo Joseph Simard (“Simard”) and American Golf Corporation dba Summitpointe Golf Club (“AGC”) (collectively “Defendants”).

As alleged in Plaintiff’s form complaint (“Complaint”), on September 28, 2016, while walking on a golf trail at AGC’s club in Milpitas, CA, Plaintiff was struck and injured by a golf cart driven by Simard, an employee of AGC. (Complaint at p. 5.)

The Complaint alleges a cause of action against Defendants for motor vehicle negligence and a cause of action against Simard for general negligence.

Currently before the Court is AGC’s motion for summary judgment or, in the alternative, summary adjudication. Plaintiff opposes the motion and submits written evidentiary objections in support.

II. Legal Standard

A party may move for summary judgment in any action or proceeding if it is contended the action has no merit. (Code Civ. Proc., § 437c, subd. (a)(1).) To demonstrate an action has no merit, a defendant moving for summary judgment must show one or more of the elements of a cause of action cannot be established or there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) “If the defendant fails to make this initial showing, it is unnecessary to examine the plaintiff’s opposing evidence and the motion must be denied.” (Intrieri v. Superior Court (2004) 117 Cal.App.4th 72, 82.) “However, if the moving papers establish a prima facie showing that justifies a judgment in the defendant’s favor, the burden then shifts to the plaintiff to make a prima facie showing of the existence of a triable material factual issue.” (Ibid.; Code Civ. Proc., § 437c, subd. (p)(2).) “The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).)

“A motion for summary adjudication may be made…as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment.” (Code Civ. Proc., § 437c, subd. (f)(2).) Such a motion may be brought on the grounds a cause of action has no merit, there is no affirmative defense to a cause of action, there is no merit to an affirmative defense as to any cause of action, there is no merit to a claim for damages, or one or more defendants owed or did not owe a duty to the plaintiff. (Code Civ. Proc., § 437c, subd. (f)(1).)

III. Preliminary Issue Regarding Summary Adjudication

At the outset, the basis for AGC’s motion for summary adjudication is unclear. There is only one cause of action pled against AGC (i.e. the motor vehicle negligence claim). Thus, if it is determined that this cause of action lacks merit, the entire action would necessarily fail and summary judgment would be granted thereby rendering the motion for summary adjudication superfluous. (See Lopez v. Super. Ct. (1996) 45 Cal.App.4th 705, 713-14 [a defendant is entitled to summary judgment if it demonstrates each and every cause of action and legal theory pled lacks merit].)

AGC’s moving papers do not illuminate the purpose of the motion for summary adjudication as AGC does not, at any point, clearly articulate the basis for that motion as required under California Rules of Court, rule 3.1350. (See Cal. Rules of Court, rule 3.1350(b) [“If summary adjudication is sought…the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts.”].) AGC’s notice of motion generally asserts the motion is made on the “grounds” Simard was acting outside the course and scope of his employment when driving the golf cart, and no violation of the Vehicle Code occurred or caused injury to Plaintiff. (See Not. of Mtn. at p. 2:4-7.) But these are not recognized bases for summary adjudication. (See Code Civ. Proc., §437c, subd. (f)(1) [a motion for summary adjudication shall be granted only if it disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty].) It appears the arguments advanced are intended to demonstrate the first cause of action lacks merit.

As such, AGC’s motion will be treated solely as one for summary judgment.

IV. Merits of the Motion

The motor vehicle negligence claim alleges AGC is liable for Plaintiff’s injuries because it owned the golf cart driven by its employee Simard, entrusted the golf cart to him, and permitted him to drive it. (Complaint at p. 4.)

AGC moves for summary judgment on the basis it is not liable for Simard’s negligence under a respondeat superior theory of liability. AGC also asserts it did not violate various Vehicle Code sections and, even if it did, these violations did not cause Plaintiff any injury. The Court will address these arguments in turn.

A. Respondeat Superior Liability

AGC first argues there is no respondeat superior liability because Simard was not acting within the course and scope of his employment when he operated the golf cart.

“The doctrine of respondeat superior imposes vicarious liability on an employer for the torts of an employee acting within the scope of his or her employment[.]” (Baptist v. Robinson (2006) 143 Cal.App.4th 151, 160, citing Bussard v. Minimed, Inc. (2003) 105 Cal.App.4th 798, 803 and Civ.Code, § 2338.) One of the rationales underlying this theory of liability, namely, that an employer is better able to absorb the losses resulting from the torts of an employee and such losses are a required cost of doing business, is based on the notion of “deep pockets.” (Hinman v. Westinghouse Elec. Co. (1970) 2 Cal.3d 956, 960.) It is also grounded on “a deeply rooted sentiment that a business enterprise cannot justly disclaim responsibility for accidents which may fairly be said to be characteristic of its activities.” (Rodgers v. Kemper Constr. Co. (1975) 50 Cal.App.3d 608, 618.)

In determining whether respondeat superior liability applies, “an essential element…is a causal nexus or reasonable relationship between the duties of employment and the conduct causing injury.” (Baptist, supra, 143 Cal.App.4th at 161.) Put another way, “the incident leading to injury must be an outgrowth of the employment; [and] the risk of tortious injury must be inherent in the working environment or typical of or broadly incidental to the enterprise [the employer] has undertaken.” (Lisa M. v. Henry Mayo Newhall Mem’l Hosp. (1995) 12 Cal.4th 291, 298, internal citations and quotation marks omitted.) Thus, respondeat superior liability may be found even where employees are not carrying out their job duties when the wrongful act occurs or were attending to both a personal matter and the employer’s business at the same time; liability is generally only precluded where it “clearly appears that neither directly nor indirectly could [the employees] have been serving [their] employer.” (Baptist, supra, 143 Cal.App.4th at 161.)

Here, AGC asserts no respondeat superior liability exists because Simard was not acting in the course and scope of his employment and there is no causal nexus between the incident and Simard’s job as a bartender at the golf course.

To this point, AGC first focuses exclusively on Baptist, supra, 143 Cal.App.4th 151, a case concerning an exception to the respondeat superior doctrine known as the “going and coming rule.” AGC goes on to state the present case is just like Baptist and cites the following evidence in support: Simard was not scheduled to work the day of the accident; came to the golf club to retrieve a personal item; worked as a bartender whose general duties did not involve moving golf carts; moved the golf cart off the grassy area on his own and not at the behest of a superior; had only previously moved carts at the specific direction of a superior or to take trash out at the end of a bartending shift; and did not seek permission to move the cart the day of the accident. (Def. Sep. Stmt., Nos. 7-14, 17-18.) AGC’s argument is not well-taken.

In Baptist, supra, the court held a winery employer was not liable for the acts of its employee who caused an accident on his way to work while transporting grapes for personal wine he was making without the permission of his superior. (Baptist, supra, 143 Cal.App.4th at 157.) In arriving at its conclusion, the court discussed the “going and coming rule” which generally stands for the proposition “an employee commuting to or from work is typically outside the scope of employment, and the employer is not liable for the employee’s torts.” (Morales-Simental v. Genentech, Inc. (2017) 16 Cal.App.5th 445, 452, emphasis added.) “The ‘going and coming’ rule is sometimes ascribed to the theory 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.” (Ibid., citing Hinman, supra, 2 Cal.3d at 961.) The Baptist court held this rule applied to preclude the winery’s liability because the evidence demonstrated the activity the employee was engaged in at the time of the accident was purely personal and not a part of his job duties at the winery. (Baptist, supra, 143 Cal.App.4th at 162-67.)

Here, at the outset, it is unclear how Baptist applies since the “going and coming rule” is not implicated in the first instance. The evidence is undisputed the accident at issue occurred at the golf club itself, while Simard was attempting to move the golf cart from the grassy area to the golf cart return, not while he was commuting to and from work. (See Def. Sep. Stmt., Nos. 10, 14-15.) As such, it is not apparent the “going and coming” exception to the respondeat superior doctrine applies.

Furthermore, the facts in Baptist are otherwise distinguishable from this case. Here, the evidence presented does not indicate Simard moved the golf cart for purely personal reasons or that his actions bore no reasonable relation to his employment. Though the evidence demonstrates Simard was technically off-duty at the time of the incident and was at the club to retrieve a personal item, it also demonstrates he moved the golf cart based on his understanding there was a longstanding policy at the golf club that carts were to be moved off the grassy area because their presence on the grass would dry it out. Specifically, Simard testified at his deposition that he moved the golf cart because a superintendent at the course, Kyle Marshall, previously explicitly advised him that employees were to move carts off the grass if they saw them there because the grass would die if the carts were left there. (Simard Depo. 39:2-40:18.) As previously stated, notwithstanding the fact an employee’s business was mixed at the time, i.e. he or she was attending both to his or her business and that of the employer’s, a connection sufficient to result in respondeat superior liability exists when the incident leading to the injury is an “outgrowth” of the employment and it appears the employee was performing an act of service to their employer. (Lisa M., supra, 12 Cal.4th at 298; Baptist, supra, 143 Cal.App.4th at 161.) Here, it appears Simard’s actions were an outgrowth of his employment and AGC presents no other evidence indicating Simard moved the golf cart for any purpose other than to serve AGC.

Next, AGC argues the special errand exception to the “going and coming rule” does not apply, relying on Munyon v. Ole’s Inc. (1982) 136 Cal.App.3d 697, and Morales-Simental, supra, 16 Cal.App.5th 445 in support. Under that exception, respondeat superior liability may still exist for injuries caused by a commuting employee if the employee was performing an errand for the employer as part of his or her regular duties or at the specific request of his or her employer. (Morales-Simental, supra, 16 Cal.App.5th at 452.) In determining if the special errand rule applies, “it is necessary to determine the main purpose of the injury-producing activity: If it was the pursuit of the employee’s personal ends, the employer is not liable.” (Baptist, supra, 143 Cal.App.4th at 162, citing LeElder v. Rice (1994) 21 Cal.App.4th 1604, 1607.)

Here, there is no need to examine whether the special errand exception applies because, once again, there is no indication the “going and coming rule” applies since the accident occurred at the place of Simard’s employment. Moreover, as already stated, the evidence does not otherwise support the conclusion Simard was acting in pursuit of his personal ends when he moved the golf cart off the grassy area. Instead, it indicates he was acting in service to AGC pursuant to a policy communicated to him by a superior. (See Simard Depo. 39:2-40:18.)

In sum, AGC fails to carry its initial burden of demonstrating respondeat superior liability does not exist.

Moreover, as pointed out by Plaintiff in opposition, AGC’s respondeat superior argument is flawed for the additional reason it is predicated on the assumption the first cause of action is based solely on that theory of liability when, in fact, additional theories of liability are implicated. For example, in addition to pleading AGC employed Simard, the motor vehicle negligence claim alleges AGC negligently entrusted the golf cart to him (Complaint at p. 4), which is a separate and independent theory of liability (see White v. Inbound Aviation (1999) 69 Cal.App.4th 910, 920). Thus, even if AGC successfully demonstrated no respondeat superior liability exists, this would not dispose of the entirety of the claim.

Therefore, AGC is not entitled to summary judgment on the basis it was not liable for Simard’s negligence under a respondeat superior theory of liability.

B. Vehicle Code Violations

AGC asserts it did not violate Vehicle Code sections 16002, 16000, 16020, and 16502 and, even if it did, any alleged violations do not result in liability because they did not cause any injury to Plaintiff. AGC’s contention is not persuasive.

There is no indication in the Complaint that the motor vehicle negligence claim is predicated on violations of the specific Vehicle Code sections referenced by AGC; in fact, these codes are not once referenced in the cause of action. Moreover, though AGC contends that, “[i]n discovery, Plaintiff alleges that Defendant AGC violated Vehicle Code Sections 16002, 16000, 16020, and 16502,” it presents no evidence establishing that fact or the proposition the first cause of action arises only out of these violations. (Mem. of Pts. and Auth. at p. 10:3-4.) As such, even assuming AGC did not violate the referenced Vehicle Code sections, this would not be a basis for granting summary judgment.

C. Conclusion

For the reasons stated, AGC’s motion for summary judgment is DENIED.

The Court will prepare the Order.