Case Number: BC664032 Hearing Date: May 23, 2019 Dept: 2

Motion for Summary Adjudication, by Plaintiff Garo Mardirossian, filed on 12/21/2018, is DENIED. Plaintiff has not established he is entitled to judgment on the issue of duty based on the material facts proffered. Cal. Code Civil Procedure § 437c(f)(1).

Motion for Summary Judgment, by Defendants J. Ginger Masonry and Masonry Gen Par, Inc., filed on December 10, 2018, is DENIED. Defendants have not established that they are entitled to judgment on Plaintiff’s negligence claim. Cal. Code Civil Procedure § 437c(a)(1).

Motion for Summary Adjudication, by Plaintiff Garo Mardirossian

The complaint alleges that on June 12, 2015, Plaintiff was involved in an automobile collision with Defendant Hernan Hernandez Godinez (“Godinez”). Plaintiff brings this action against Defendant and his employers J. Ginger Masonry and Masonry Gen Par, Inc. (collectively “Defendants”) under a theory of respondeat superior.

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty . . .” Cal. Code Civil Procedure § 437c(f)(1).

Plaintiff’s motion for summary adjudication requests that the court adjudicate the issue of duty owed to Plaintiff by the Masonry Defendants.

“The rule of respondeat superior is familiar and simply stated: an employer is vicariously liable for the torts of its employees committed within the scope of the employment. Equally well established, if somewhat surprising on ¿rst encounter, is the principle that an employee’s willful, malicious and even criminal torts may fall within the scope of his or her employment for purposes of respondeat superior, even though the employer has not authorized the employee to commit crimes or intentional torts.” Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 296–297. Furthermore, “[u]nder the ‘going and coming’ rule, an employee going to and from work is ordinarily considered outside the scope of employment so that the employer is not liable for his torts.” Hinman v. Westinghouse Elec. Co. (1970) 2 Cal.3d 956, 961.

Defendants do not dispute that Godinez has been employed as a mason for Defendants since 2011, including at the time of the collision, and that Godinez was on his way to a jobsite when the collision occurred. (UMF 1-6).

Plaintiff cites to Hinman, where the Court held that the “employer, having found it desirable in the interests of his enterprise to pay for travel time and for travel expenses and to go beyond the normal labor market or to have located his enterprise at a place remote from the labor market, should be required to pay for the risks inherent in his decision. Hinman v. Westinghouse Elec. Co. (1970) 2 Cal.3d 956, 962.

Thus, Plaintiff argues that Godinez was compensated for his travel to worksites, and that under Hinman, such travel compensation arrangement places Godinez’s travel within the course and scope of his duties, and Defendants accepted the risks of liability arising from Godinez’s commute.

Plaintiff submits evidence to support his allegation that Defendants pay Godinez for his commute. (UMF 16-17; Godinez Depo. 41:13-42:6). However, the deposition testimony reveals that Plaintiff denied being paid for his commute, rather that Godinez stated that “[Defendants] don’t pay me, but they give me something for having me use my own car.” (Godinez Depo. 42:19-20). Godinez testified that he is paid an additional $50 directly in each paycheck as a gas allowance. (Id. 69:13-16).

Plaintiff argues that Defendants should be held liable under the “incidental benefit” exception of the coming and going rule. Discussing case law relevant to the coming and going rule, the Hinman court held that “exceptions will be made to the “going and coming” rule where the trip involves an incidental benefit to the employer, not common to commute trips by ordinary members of the work force. The cases also indicate that the fact that the employee receives personal benefits is not determinative when there is also a benefit to the employer.” Hinman 2 Cal.3d at 962. In Caldwell, the court held “that the mere payment of a travel allowance as shown in the present case does not reflect a sufficient benefit to defendant so that it should bear responsibility for plaintiff’s injuries.” Caldwell v. A.R.B., Inc. (1986) 176 Cal. App. 3d 1028, 1042.

In addition to showing that Godinez was paid an allowance for use of his vehicle, Plaintiff submits undisputed evidence that Godinez transported Defendants’ equipment to and from work sites in his truck, and that the items were necessary for Godinez’s performance of his work duties. (UMF 10-11). Plaintiff also alleges that Godinez was compensated for transporting the work equipment. (UMF 18). Defendants dispute this allegation, contending again that any additional payment was characterized as a gas allowance provided to Godinez for the use of his personal truck. (Response UMF 18).

“Carrying employer-owned tools of the trade to work does not render an employee’s commute within the course and scope of employment, as the Supreme Court has recognized: transporting work materials—even essential ones—to facilitate work does not warrant exception to the going and coming rule ‘unless such materials require a special route or mode of transportation or increase the risk of injury . . .’” Jorge v. Culinary Inst. of Am. (2016) 3 Cal.App.5th 382, 406. Here, Plaintiff provides no evidence that the transportation of work tools required a special route or increased the risk of injury.

Plaintiff asks that the court distinguish Jorge on the grounds that the tools in Jorge were not provided by the employer, as is the case here. Id. at 395. In Jorge, the chef was transporting his own personal tools, including a set of knives which he transported for safekeeping rather than leaving them at the culinary institute. Id. at 395. “Henning testified the Culinary Institute did not ‘require’ chefs to take their own knives when they travelled, but acknowledged that they did.” Id. Plaintiff submits that two other masons were employed by Defendants for the worksite, and that they were also expected to carry some tools and equipment to and from the worksite every day. (UMF 13). In his reply, Plaintiff asserts that Godinez was “expressly required to carry Masonry’s equipment to and from the jobsite in his personal vehicle.” However, Plaintiff does not provide evidence to support this contention; if anything, the fact that Plaintiff is provided an allowance for use of his personal vehicle supports the argument that Plaintiff is not required to use a personal vehicle. Plaintiff makes the affirmation that “Hernandez-Godinez did not have the option to carpool, rideshare, or take public transportation” but provides no evidence in support thereof.

Plaintiff submits the deposition of Godinez, in which Godinez testified that he picked up the tools necessary for work from Defendants’ office in Riverside, CA. (Godinez Depo. 47:16-48:3). Godinez then kept the tools in his truck, and transported them to and from work from his home, as he was on the day of the collision. However, Plaintiff’s evidence fails to demonstrate how Godinez transporting the tools from home rather than from Riverside confers a benefit upon Defendant sufficient to carve an exception to the going and coming rule. As stated in Jorge, “as the Supreme Court has recognized: transporting work materials—even essential ones—to facilitate work does not warrant exception to the going and coming rule ‘unless such materials require a special route or mode of transportation or increase the risk of injury . . .’” 3 Cal.App.5th at 406. “Such cartage is common and must be viewed as incident to the commute rather than as part of the employment.” Id.

Plaintiff has not met his burden of showing no triable issue of material fact as to whether Defendants accepted the risk of liability by providing a gas allowance to Godinez for the use of his own vehicle for work purposes under the incidental benefit exception. Plaintiff argues that the $50 payment compensates for a commute which confers an incidental benefit on Defendants by transportation of the work tools. However, Plaintiff has failed to provide evidence that an identifiable benefit was conferred, as opposed to a benefit to Godinez as an employee, and that such benefit is not “incident to the commute.” (Jorge, 3 Cal.App.5th at 406; Response to UMF 18). Based on the foregoing, Plaintiff has not met his burden of demonstrating no triable issue of material fact, nor that he is entitled to adjudication on the issue of duty as a matter of law.

Moving party is ordered to give notice.

Motion for Summary Judgment, by Defendants J. Ginger Masonry, LP and Masonry Gen Par, Inc.

“A party may move for summary judgment in an action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.” Cal. Code Civil Procedure § 437c(a)(1).

Defendants’ motion for summary judgment moves for judgment on the grounds that Plaintiff cannot offer any evidence of negligence on the part of Defendants, and no exceptions to the “going and coming rule” are applicable to the facts at hand.

Course and Scope of Employment

“The rule of respondeat superior is familiar and simply stated: an employer is vicariously liable for the torts of its employees committed within the scope of the employment. Equally well established, if somewhat surprising on ¿rst encounter, is the principle that an employee’s willful, malicious and even criminal torts may fall within the scope of his or her employment for purposes of respondeat superior, even though the employer has not authorized the employee to commit crimes or intentional torts.” Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 296–297. Furthermore, “[u]nder the ‘going and coming’ rule, an employee going to and from work is ordinarily considered outside the scope of employment so that the employer is not liable for his torts.” Hinman v. Westinghouse Elec. Co. (1970) 2 Cal.3d 956, 961.

Defendants submit evidence that Godinez was travelling to work at the time of the collision. (UMF 8). Under the going and coming rule, Godinez would not have been acting within the scope of employment at the time of the collision.

However, at issue here is an allowance Godinez received for the use of his personal truck, and the fact that Godinez was transporting work tools provided to him by Defendants.

Incidental Benefit Exception

Defendant argues that payment of the gas allowance does not reflect a sufficient benefit to the employer so as to confer liability thereupon under the “incidental benefit” exception to the going and coming rule. Discussing case law relevant to the coming and going rule, the Hinman court held that “exceptions will be made to the “going and coming” rule where the trip involves an incidental benefit to the employer, not common to commute trips by ordinary members of the work force. The cases also indicate that the fact that the employee receives personal benefits is not determinative when there is also a benefit to the employer.” Hinman 2 Cal.3d at 962.

“The mere payment of a travel allowance . . . does not reflect a sufficient benefit to defendant so that it should bear responsibility for a plaintiff’s injuries.” Caldwell v. A.R.B., Inc. (1986) 176 Cal.App.3d 1028, 1042. In Caldwell, the employees received a “subsistence pay” which was to compensate for use of their personal vehicle, was paid directly into the weekly paycheck, and was paid whether the personal vehicle was used or not. Id. at 1041. The Caldwell court also discussed Harris v. Oro-Dam Constructors:

In Harris v. Oro-Dam Constructors, an employee of defendant had been driving his own vehicle home after a daily work shift, when he had a collision. Plaintiffs acquired a wrongful death verdict against the employee, but the jury exonerated the employer. The employee lived approximately 23 miles from the jobsite. Pursuant to a union contract, the employees received an hourly wage for an eight-hour shift, which began and ended at the jobsite. Defendant, the employer, did not pay for the employees’ travel time, but did pay a daily transportation allowance of $6 as provided in the union contract. Only those employees who lived more than 15 miles from the jobsite received the allowance. Plaintiffs contended the payment of travel expense was an exception to the going-and-coming rule, but the appellate court disagreed.

Id. at 1041.

As such, Defendant has shown that the mere payment of the $50 gas allowance fails to carve an exception to the going and coming rule. However, this case also involves the transportation of work tools to and from the workplace in Godinez’s personal truck. (UMF 9).

Defendants cite to Jorge v. Culinary Inst. of Am. for its holding that “[c]arrying employer-owned tools of the trade to work does not render an employee’s commute within the course and scope of employment, as the Supreme Court has recognized: transporting work materials—even essential ones—to facilitate work does not warrant exception to the going and coming rule ‘unless such materials require a special route or mode of transportation or increase the risk of injury . . .’” Jorge v. Culinary Inst. of Am. (2016) 3 Cal. App. 5th 382, 406.

Jorge can be distinguished from the case at hand. In Jorge, the chef was transporting his own personal tools, including a set of knives which he transported for safekeeping rather than leaving them at the culinary institute. Id. at 395. “Henning testified the Culinary Institute did not ‘require’ chefs to take their own knives when they travelled, but acknowledged that they did.” Id. In the facts at hand, Godinez was transporting Defendants’ equipment, including a chop saw, wheelbarrow, a cooler, hardhat, some buckets, and a level. (UMF 9; Godinez Depo. 47:4-48:3) Defendants further provide that Godinez is responsible for transporting the tools to and from the site. (UMF 12). Such facts do not run parallel with Jorge, where the employee was neither transporting employer provided tools, nor was he required to transport them to and from home.

Defendants provide the testimony of William Fogg, President of Defendant J. Ginger Masonry, who testified that workers had the option of driving to Defendants’ office in Riverside, CA, and dropping off the tools after every day. (Fogg Depo. 26:9-11). Workers would then be able to pick them up from Riverside in the morning to take the tools to the worksite. (Id.) Fogg also testified that should a worker leave the tools on the worksite, no discipline would be imposed. (Id. 33:13-17). From Defendants’ evidence, it appears that Godinez could essentially take the bus to work, leave tools on site, and take the bus home that evening. Although the Fogg testimony reveals that no workers act in such way, no requirements exist for tool transportation, nor do any reprimands exist to deter such conduct. Plaintiff’s opposition asserts that “Masonry concedes that it provides tools to Mr. Godinez, and obligates him to transport these tools to and from the job sites in how own personal vehicle. (Opp. 8:16-17). This is a clear misrepresentation of the above-mentioned evidence.

It is undisputed that Godinez’s work duties did not require use of the vehicle during the day. However, a triable issue remains as to whether transportation of Defendants’ equipment to and from worksites confers an incidental benefit upon Defendants so as to render them liable for negligence occurring during Godinez’s commute. The Fogg Deposition reveals that workers may elect to transport Defendants’ tools to the worksite to from either the office in Riverside or their personal homes. Fogg testified that should a worker pick up the tools from the Riverside office, they would be put on the clock. (Id. 29:9-15). At the time of the collision, Godinez was on his way to work from home. It would be a clearer distinction should Godinez have been travelling from Riverside, on the clock, with Defendants’ tools. Godinez was not on the clock, nor was he required to transport the tools in such a manner. However, the Fogg deposition reveals that workers usually take tools from the worksites as worksites have a tendency to be burglarized. (Id. 32:14-20).

Based on the foregoing, a triable issue remains as to whether the travel allowance and personal transportation of work tools conferred a benefit upon Defendants that would place them outside of the going and coming rule.

Moving party is ordered to give notice.