Tentative Ruling

Judge Donna Geck
Department 4 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107

CIVIL LAW & MOTION
Sean Carmean vs Martha Rodriguez et al
Case No: 18CV03763
Hearing Date: Fri Nov 22, 2019 9:30

Nature of Proceedings: Motion for Summary Judgment

Tentative Ruling: The court denies defendant LTK Home Care, Inc.’s motion for summary judgment.

Background: This action arises out of an automobile-motorcycle collision on December 22, 2017. Plaintiff Sean Carmean alleges that defendant Martha Rodriguez caused the collision. LTK Home Care, Inc., was Rodriguez’s employer at the time of the collision.

Motion: LTK moves for summary judgment on the ground that Rodriguez was not acting within the scope of her employment at the time of the collision. Carmean opposes the motion.

LTK’s lodgment of evidence does not comply with CRC 3.1110(f)(4), which provides: “[E]lectronic exhibits must include electronic bookmarks with links to the first page of each exhibit and with bookmark titles that identify the exhibit number or letter and briefly describe the exhibit.” LTK has not provided electronic bookmarks to exhibits. This has made the court’s task in reviewing the evidence difficult.

Carmean’s memorandum in opposition to the motion does not comply with CRC 3.1113(h), which provides: “The pages of a memorandum must be numbered consecutively beginning with the first page and using only Arabic numerals (e.g., 1, 2, 3). The page number may be suppressed and need not appear on the first page.” The tables are numbered with Roman numerals, with the substance of the memorandum beginning with Arabic page number 2. This made it difficult for the court to locate pages in the electronically filed pleading that correspond to the pages listed in the table of contents.

Both CRC 3.1113(h) and CRC 3.1110(f)(4) have been in effect since January 1, 2017. Responsible counsel must familiarize themselves with and follow applicable court rules.

1. Summary Judgment Standards: Summary judgment is appropriate where there is no triable issue as to any material fact and the moving party is entitled to a judgment as a matter of law. CCP § 437c(c). “The party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” Aguilar v. Atlantic Richfield Co., 25 Cal.4th 826, 850 (2001). “A defendant bears the burden of persuasion that ‘one or more elements of’ the ‘cause of action’ in question ‘cannot be established,’ or that ‘there is a complete defense’ thereto. (§ 437c, subd. (p)(2).)” Id.

“[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” Id. A burden of production entails only the presentation of evidence, while a burden of persuasion “entails the establishment through such evidence of a requisite degree of belief.” Id. Summary judgment is appropriate when no reasonable juror could find facts necessary for a plaintiff’s case and there are not equally conflicting inferences to be drawn from the evidence. Eddins v. Redstone, 134 Cal.App.4th 290, 328 (2005).

A party moving for summary judgment has the burden to show that it is entitled to judgment with respect to all of the plaintiff’s theories of liability. Lopez v. Superior Court, 45 Cal.App.4th 705, 717 (1996). The court “must deny the motion if there is a single issue of material fact in dispute.” Cates v. California Gambling Control Com., 154 Cal.App.4th 1302, 1308 (2007).

“In ruling on the motion, the court must view the evidence in the light most favorable to the opposing party.” Shin v. Ahn, 42 Cal.4th 482, 499 (2007). “[T]he moving party’s evidence must be strictly construed, while the opposing party’s evidence must be liberally construed. Binder v. Aetna Life Ins. Co., 75 Cal.App.4th 832, 838 (1999). The court must “consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence.” Id. The court may not weigh conflicting evidence in the context of a summary judgment motion. Spangle v. Farmers Ins. Exchange, 166 Cal.App.4th 560, 576 (2008).

2. Objections to Evidence:

a. Plaintiff’s Objections: Carmean objects to statements in Larry Kreider’s declaration. Kreider is the co-owner of LTK.

#1: Kreider says that Rodriguez did not advise him that she drove Patricia M. using her own vehicle. Carmean objects, citing conflicting LTK records. But the existence of contrary evidence does not make the statement inadmissible. Carmean cites Evid. Code § 1271, which addresses business records as an exception to the hearsay rule, and Evid. Code § 1400, which addresses authentication of writings. Neither of these statutes are relevant to the admissibility of Kreider’s statement. The court overrules the objection. The court notes that the lack of advisement from Rodriguez is of minimal relevance.

##2, 4: Similarly, these objections are based on inconsistent evidence. The court overrules the objection.

#3: This statement about what Rodriguez told Kreider is inadmissible hearsay. The court sustains the objection.

#5: Kreider says that Rodriguez did not advise him that she did use or needed to use her vehicle to assist LTK’s clients. For reasons stated above with respect to Objection #1, the court overrules the objection.

b. Defendant’s Objections: LTK objects to some evidence in support of Carmean’s opposition.

#1: LTK objects to Rodriguez’s statement in her deposition that she told a law enforcement officer she had just come from a shopping center and was returning to a patient as stated in the police report. LTK contends this is double hearsay. But Carmean is not offering the police report. Counsel asked Rodriguez what she had told the officer. She is the out-of-court declarant in this instance and is simply confirming what she said. The court overrules the objection.

##2, 3: LTK objects to Carmean’s Exhibit 2 and his counsel’s declaration identifying it. However, the Exhibit contains the authentication provided for the subpoenaed record. The court overrules the objection.

#4: LTK objects to a driver’s license report for Rodriguez. The court need rule only on those objections to evidence that it deems material to its disposition of the motion. CCP § 437c(q). The court does not deem this document material to disposition of the motion. The court declines to rule on the objection.

3. Substantive Law Relevant to Motion: “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.” Lisa M. v. Henry Mayo Newhall Memorial Hospital, 12 Cal.4th 291, 296 (1995). “The plaintiff bears the burden of proving that the employee’s tortious act was committed within the scope of his or her employment.” Montague v. AMN Healthcare, Inc., 223 Cal.App.4th 1515, 1520-1521 (2014).

“Under 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., 2 Cal.3d 956, 961 (1970). The “required-vehicle” exception to the “going and coming rule” “can apply if the use of a personally owned vehicle is either an express or implied condition of employment or if the employee has agreed, expressly or implicitly, to make the vehicle available as an accommodation to the employer and the employer has ‘reasonably come to rely upon its use and [to] expect the employee to make the vehicle available on a regular basis while still not requiring it as a condition of employment.’” Lobo v. Tamco, 182 Cal.App.4th 297, 301 (2010) [citations omitted]. “[T]he key inquiry is whether there is an incidental benefit derived by the employer.” Id. [internal quotation and citation omitted].

“The required vehicle exception may apply when an employee is required to bring a car daily to have it available for work, even if the employee rarely has to use the car for work purposes.” Newland v. County of Los Angeles, 24 Cal.App.5th 676, 690 (2018). “Courts have declined to apply the required vehicle exception when evidence showed the employee was not required to drive a personal vehicle to work on the date of the accident, even when the employee had used the vehicle for work purposes at other times.” Id. at 691.

In Newland, the employee—Prigo, a public defender, was required to drive his car to perform several of his job duties outside the office but did not have to perform these duties every day. “He knew in advance when he had tasks outside the workplace for which he needed his car. … He did not have any job duties outside the workplace scheduled for the day of the accident, and he did not use his car for work purposes that day. [He] never had emergency situations that required the use of his car during the day for work, except when he was in trial. In short, he did not need his car for work purposes on the day of the accident.” Id. at 693. “There was no evidence, however, that the County relied on or expected Prigo to make his car available on days that he did not have outside tasks. In fact, the evidence was that Prigo commuted to work for years by bus, Metro train, and carpool on days that he did not have any duties outside the workplace.” Id. at 694. “Since Prigo was not required to drive to work on the day of the accident, and his use of his car that day did not otherwise provide a benefit to the County, there was no evidence to support finding that Prigo was driving in the course and scope of his employment when he injured Newland.” Id.

4. Material Facts: The court has taken material facts from LTK’s separate statement of undisputed material facts (DUF ##1-21), Carmean’s response thereto and statement of additional facts (PUF ##1-15), and LTK’s response thereto. When either party has indicated a dispute, the court has reviewed the underlying evidence to determine whether there is truly a dispute and, if so, the extent to which the fact is undisputed.

On December 22, 2017, Martha Rodriguez was involved in a vehicle to motorcycle collision with Sean Carmean. [DUF #1] On the date of the collision, Rodriguez was separately employed by Home Care Assistance and LTK. [DUF #1] Rodriguez was a personal care aide for LTK, where she provided assistance with activities of daily living to LTK’s clients. [DUF #3] Prior to the collision, Rodriguez was at her job with Home Care Assistance. [DUF #4] Immediately prior to the collision, she had stopped by a shopping center. [DUF #5] She was driving to the home of LTK client Patricia M. when the collision occurred. [DUF #6] She had not seen Patricia M. earlier that day. [DFU #7; Rodriguez Depo. 18:5-7]

Certain clients of LTK do not have transportation needs or may prefer to use their own vehicles. [DUF #8] There can be alternative arrangements made for client transportation for personal care aides who do not have access to a vehicle. Rodriguez did have access to a vehicle. [DUF #9] It was not Rodriguez’s job to get a patient to a doctor or hospital in the event of an emergency. [DUF #10; Rodriguez Depo. 34:7-10]

LTK verified that Rodriguez was insured and capable of operating a vehicle but has not asked her to bring a personal vehicle to work or make one available during her working hours. [DUF #12] During her employment, Rodriguez did not advise LTK that she did use or needed to use her vehicle to assist LTK’s clients. [DUF #15] Rodriguez testified that she would run an errand for a patient maybe once per month. [DUF #16; Rodriguez Depo. 31:24-32:7] Rodriguez testified that she never drove Patricia M. to a restaurant or to a doctor. [DUF ##17, 18] Rodriguez did not claim any mileage reimbursements for December 22, 2017. [DUF #19] It would be hard for Rodriguez to do her job without a car. [DUF #21; Rodriguez Depo. 34:20-22]

LTK did not provide transportation to Rodriguez for work. [PUF #3] Rodriguez commuted to Goleta from Oak View. [PUF #5] She did not carpool. [PUF #6] LTK relied on Rodriguez to provide her own transportation. [PUF #12]

The plan of care for Patricia M. includes shopping/groceries, doctor appointments, checking mail, and picking up medications. [PUF #8; Carmean Exhibit 1] Patricia M.’s Weekly Care Records reflect that the personal care assistant picked up groceries and ran errands at least ten times during the first three weeks of December 2017 and, on December 22, 2017, “Shopping & Errands” is checked. [PUF ##9, 10] LTK contends that the Weekly Care Records do not necessarily reflect what Rodriguez did on those days. But Rodriguez identified Patricia M.’s “Weekly Care Records” as copies of records she prepared as Patricia M.’s personal care assistant. [Carmean Exhibit 6, Requests for Admission #17 at p.5, Exhibit A; Exhibit 7, Responses to Requests for Admission #17, at p.4]

LTK time records reflect that Rodriguez commenced work at 2:00 p.m. on December 22, 2017. [PUF #13] The collision occurred after 2:02 p.m. [PUF #14]

5. Analysis: The court finds there are triable issues of material fact. Rodriguez commuted from Oak View to Goleta in her personal vehicle. Her duties in providing care for LTK’s client on December 22 and other days included running errands. The Weekly Care Records include shopping and errands on several dates, including December 22. LTK says Rodriguez is not necessarily the personal care assistant who did that. But that is a question of fact to be determined. From the evidence, the trier of fact could infer that Rodriguez provided those services and used her car to perform them. LTK has not presented evidence that anyone else worked that day or ran errands.

These triable issues of fact could support a conclusion that having her vehicle available was an implied condition of Rodriguez’s employment and that LTK had reasonably come to rely upon use of Rodriguez’s vehicle “and [to] expect the employee to make the vehicle available on a regular basis while still not requiring it as a condition of employment.” There is disputed evidence supporting a conclusion that LTK derived an incidental benefit from Rodriguez having her vehicle available.

The facts here are different from those in Newland discussed above. The employee in that case knew what days he would need a car and he never had unexpected emergencies arise. So it was easy to determine what days a car was and was not necessary for his work and of an incidental benefit to the employer. Here it does not appear Rodriguez was aware of when she would need a car to run errands or when an emergency might arise. For example, on December 9, there were preparations to evacuate Patricia M. because of a fire. [Carmean Exhibit 5, LTK 0049]

There may well be other material facts in dispute. Since the court must deny the motion if there is a single issue of material fact in dispute, it is not necessary to list all material facts in dispute. Cates v. California Gambling Control Com., 154 Cal.App.4th 1302, 1308 (2007)

6. Order: The court denies defendant LTK Home Care, Inc.’s motion for summary judgment.