Case Name: Stephanie Pearson-Ruddy, et al. v. State of California, et al.

Case No.: 115CV285426

Defendant VMware, Inc.’s Renewed Motion for Summary Judgment, or in the Alternative, Summary Adjudication

On July 23, 2014, at approximately 11:55 p.m., James F. Ruddy (“Decedent”), was a restrained passenger in a vehicle driven by defendant Stephen C. Hunt (“Hunt”) from southbound Great America Parkway onto northbound US Highway 101. (First Amended Complaint (“FAC”), ¶5.) The vehicle went off the on-ramp, down the embankment, across the lanes of traffic into the median barrier between northbound and southbound US Highway 101. (Id.) Decedent suffered significant injuries, lived for some time, however brief, before dying due to the injuries sustained in the collision. (Id.)

Defendant VMWare, Inc. (“VMware”) employed defendant Hunt who was operating the vehicle in the course and scope of his employment, owned the vehicle, entrusted the vehicle to defendant Hunt, and/or was the agent/employee of other defendants and acted within the scope of the agency with respect to the vehicle. (FAC, ¶7.)

On September 9, 2015, plaintiff Stephanie Pearson-Ruddy, Decedent’s surviving wife, filed this action individually, as successor in interest to the Decedent, as personal representative of the Decedent’s estate, and as guardian ad litem on behalf of Decedent’s surviving biological child, Liam Ruddy (“Plaintiffs”).

On July 9, 2016, Plaintiffs amended the complaint to substitute defendant VMware for a Doe defendant. On August 22, 2016, defendant VMware filed its answer to the complaint and also filed a demurrer to Plaintiffs’ complaint.

On September 7, 2016, Plaintiffs filed the operative FAC against defendants Hunt and VMware asserting causes of action for:

(1) Negligence – Wrongful Death
(2) Negligence – Survival Action

On October 5, 2016, defendant Hunt filed an answer to Plaintiffs’ FAC.

On December 19, 2016, pursuant to stipulation, the court issued an order consolidating this action with Santa Clara County Superior Court, case number 115CV285409, Dylan James Ruddy, et al. v. Stephen Hunt, et al. (“Consolidated Case”).

On December 20, 2017, defendant VMware filed the motion now before the court, a motion for summary judgment, or in the alternative, summary adjudication of Plaintiffs’ FAC as well as the pleading in the Consolidated Case.

I. Defendant VMware’s motion for summary judgment/ adjudication of Plaintiffs’ FAC is DENIED.

In the instant action, defendant VMware’s liability is premised on a theory of respondeat superior. “Under the doctrine of respondeat superior, an employer is vicariously liable for his employee’s torts committed within the scope of the employment.” (Perez v. Van Groningen & Sons (1986) 41 Cal.3d 962, 967; see also CACI, No. 3700.)

Under the respondeat superior doctrine, the term “scope of employment” has been interpreted broadly. (Farmers Ins. Group v. County of Santa Clara (1995) 11 Cal.4th 992, 1004, 47 Cal.Rptr.2d 478, 906 P.2d 440 (Farmers).) “ ‘[T]he employer’s liability extends beyond his actual or possible control of the employee to include risks inherent in or created by the enterprise.’ ” (Id. at p. 1003, 47 Cal.Rptr.2d 478, 906 P.2d 440, italics omitted.) “ ‘[T]he fact that an employee is not engaged in the ultimate object of his employment at the time of his wrongful act does not preclude attribution of liability to an employer.’ ” (Id. at p. 1004, 47 Cal.Rptr.2d 478, 906 P.2d 440.) Thus, an employer’s vicarious liability may extend to the employee’s negligence, willful and malicious torts, or acts that contravene an express company rule and confer no benefit to the employer. (Ibid.)

The plaintiff bears the burden of proving that the employee’s tortious act was committed within the scope of employment. (Mary M., supra, 54 Cal.3d at p. 209, 285 Cal.Rptr. 99, 814 P.2d 1341.) “Ordinarily, the determination whether an employee has acted within the scope of employment presents a question of fact; it becomes a question of law, however, when ‘the facts are undisputed and no conflicting inferences are possible.’ ” (Id. at p. 213, 285 Cal.Rptr. 99, 814 P.2d 1341.)

Significantly, the imposition of respondeat superior liability is not dependent on the employer’s undertaking any act or upon any fault by the employer. (Perez v. Van Groningen & Sons, Inc. (1986) 41 Cal.3d 962, 967, 227 Cal.Rptr. 106, 719 P.2d 676 (Perez).) Rather, an employer may be vicariously liable for an employee’s tort if the employee’s act was an “ ‘outgrowth’ ” of his employment, “ ‘ “inherent in the working environment,” ’ ” “ ‘ “typical of or broadly incidental to” ’ ” the employer’s business, or, in a general way, foreseeable from the employee’s duties. (Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 298–299, 48 Cal.Rptr.2d 510, 907 P.2d 358.) Foreseeability in the context of respondeat superior liability must be distinguished from foreseeability as a test for negligence. (Farmers, supra, 11 Cal.4th at p. 1004, 47 Cal.Rptr.2d 478, 906 P.2d 440.) “ ‘ “[F]oreseeability” as a test for respondeat superior merely 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 other costs of the employer’s business.’ ” (Ibid. italics omitted.)

(Purton v. Marriott International, Inc. (2013) 218 Cal.App.4th 499, 505 (Purton); see also CACI, Nos. 3720, 3722, and 3724.)

In moving for summary judgment, VMware contends it bears no responsibility for the conduct of its employee, Hunt, based on the following facts. The accident occurred on July 23, 2014 after defendant Hunt had dinner at the Characters Sports Bar & Grill with Decedent, Sam Marraccini (“Marraccini”), Aaron Chaisson (“Chaisson”), and Fred Nix (“Nix”). All five used to work together at EMC and, with the exception of Marraccini, used to be part of a team called “vSpecialists.” All of those individuals left the vSpecialists group at least a year before the dinner. All except for defendant Hunt were EMC employees in town for different reasons. The only person at dinner not employed by EMC was defendant Hunt, an employee of VMware for eight days.

Chaisson was the most senior EMC employee at the dinner. Chaisson did not know Decedent was in town until told by Nix before dinner that day. Chaisson testified that it was a dinner among friends. If the dinner was a business dinner, Chaisson would have picked up the check [on behalf of EMC] and “added Stephen [Hunt] as a partner, as a VMware partner to the bill;” but it was not [a business dinner], so Chaisson did not do that. Chaisson described the group as colleagues who were together because they happened to be in the same place at the same time for different reasons.

Chaisson and Marraccini were in town to do a promotional video for EMC software that was created to work with a variety of platforms. The video was for EMC only about a technology that worked across hundreds of workloads, of which VMware’s was only one. Hunt had no involvement in a video shoot being done for EMC. Marraccini was in town with his immediate manager, Chaisson, to do briefings with EMC customers. Marraccini was invited to dinner by Chaisson who mentioned that he was getting together with a few friends and Marraccini was welcome to join. Marraccini had no idea who he was meeting with for dinner. Marraccini chose to go to dinner and was not required to attend by Chaisson. Marraccini did not expense the dinner having reached his $50 limit before dinner and because he did not have an itemized receipt.

Hunt had been recruited by VMware as a sales engineer. Sales engineers could not see customers without another sales engineer as a mentor while they were in training which lasts 40 to 60 days. Hunt was only on his eighth day of training. Hunt had not been out on a call and was not seeing any clients on his own without salespersons. Hunt invited his VMware trainer, Josh Gwyther (“Gwyther”), to the dinner on the day of the accident because Gwyther was a former vSpecialist but Gwyther knew of no business purpose for the dinner. Gwyther previously knew Hunt, Nix, and Chaisson when he was employed by EMC as a vSpecialist. Gwyther had no prior plans to meet until Hunt invited him on the day of the accident. Gwyther had no instruction from VMware supervisor, Rob Engle (“Engle”), other than to train Hunt on the day following the accident. Gwyther declined the dinner invitation because his plane was late and because he did not get along with Nix. Hunt did not tell his supervisor, Engle, that he was meeting up with Decedent, Chaisson, Marraccini, and Nix for dinner on July 23, 2014 and did not receive any authorization to appear in any video for EMC.

Decedent’s manager at the time of the accident, Ken Durazzo (“Durazzo”), declared Decedent had no business purpose for EMC at the time of the accident. Decedent informed Durazzo that he was exploring job opportunities outside of EMC and was traveling to California to interview at a company called Pivotal which is based in San Francisco. Durazzo had no interaction with any of the other dinner participants. Durazzo was familiar with the vSpecialists group, but vSpecialists was no longer a business group in July 2014 and there could be no business purpose or benefit to Decedent meeting with a group of former vSpecialists.

In determining whether Hunt was acting in the course of his employment with VMware, the court adopts the analysis undertaken in Purton, supra, 218 Cal.App.4th at pp. 506 – 507, 509:

In McCarty v. Workmen’s Comp. Appeals Bd. (1974) 12 Cal.3d 677, 117 Cal.Rptr. 65, 527 P.2d 617 (McCarty), our high court considered whether an employee’s intoxication at an office party “arose in the course of his employment” within the meaning of workers’ compensation law. (Id. at pp. 681–682, 117 Cal.Rptr. 65, 527 P.2d 617.) It concluded that “[e]mployee social and recreational activity on the company premises, endorsed with the express or implied permission of the employer, falls within the course of employment if the ‘activity was conceivably of some benefit to the employer’ ” or otherwise was a “customary incident of the employment relationship.” (Ibid.) Although McCarty is a workers’ compensation case, our high court has considered workers’ compensation cases to be helpful in determining an employer’s vicarious liability for its employee’s torts because both fields of law allow recovery for an injured party irrespective of proof of the employer’s fault. (Perez, supra, 41 Cal.3d at pp. 967–968, fn. 2, 227 Cal.Rptr. 106, 719 P.2d 676.)

…

Under McCarty, respondeat superior liability attaches if the activities “that cause[d] the employee to become an instrumentality of danger to others” were undertaken with the employer’s permission and were of some benefit to the employer or, in the absence of proof of benefit, the activities constituted a customary incident of employment. (Childers, supra, 190 Cal.App.3d at p. 805, 235 Cal.Rptr. 641.)

As indicated above, VMware proffers evidence that Hunt did not have permission from VMware to attend the dinner because Hunt never told his supervisor that he was meeting with his former EMC co-workers for dinner on July 23, 2014 and Hunt did not have authorization to appear in a video for his former employer EMC. In opposition, Plaintiffs proffer evidence which would at least present a triable issue with regard to whether Hunt had VMware’s implied permission. Plaintiffs proffer evidence that EMC and VMware were not two entirely separate companies, but were rather partners. Pivotal, the company Decedent planned to interview with, is another technology company that was jointly funded and founded by a partnership between EMC and VMware. The video that Marraccini, Chaisson, and Nix were filming was a cross-promotional EMC/VMware marketing video to be shown at VMWorld in August 2014, a global conference hosted by VMware. EMC and VMware are partners and it benefits EMC and VMware for EMC to promote VMware software. It was part of Hunt’s job to go to VMWorld. While Hunt was a vSpecialist at EMC, it was encouraged to do teambuilding with VMware sales engineers, including going out to bars and restaurants. There was no policy to the contrary at VMware. Before starting at VMware, Hunt frequently had dinner with Gwyther and other VMware employees to share information between the companies. After Gwyther left EMC and went to VMware, there was still ongoing collaboration between those still at EMC and those at VMware in terms of VMware products when the vSpecialists were together. VMware advocates working with EMC with VMware customers; there is a lot of cross-pollination between VMware and EMC; and VMware and EMC share cross-specialty knowledge across various points. It was customary for EMC and VMware sales engineers to do client meetings together, client lunches together, client dinners together and team building together. Engle testified it is best practices in the technology industry to maintain good relationships with others in the technology industry. Networking was part of Hunt’s job: meeting with others in the industry helped them keep up with technology; it was always good to expand the network of people they know; and finding out what other people are doing helps VMware know what it should be looking at. It was part of VMware sales engineer’s job, like Hunt, to meet with employees from other companies like EMC to discuss use of VMware products within EMC in informal settings like dinner. Hunt considered the dinner on July 23, 2014 to be a teambuilding event.

Based on these facts above, there is at least a quantum of evidence to suggest that Hunt had implied permission from VMware to attend the dinner. On a motion for summary judgment, the court is not tasked with weighing the evidence. The court is merely to determine whether there is a triable issue of material fact. Here, based on the evidence submitted, a reasonable trier of fact could find that Hunt had implied permission from VMware to attend the dinner with EMC employees. Moreover, the evidence also presents a triable issue as to whether VMware derived some benefit from Hunt’s attendance at the dinner by networking with former EMC employees. Specifically, Hunt having a network and knowing people around the industry was useful to VMware. Hunt talking to people in other areas of technology and what’s going in the technology world could benefit VMware. In sum, whether defendant Hunt acted within the scope of his employment with defendant VMware presents a triable question of material fact. Accordingly, defendant VMware’s renewed motion for summary judgment, or in the alternative, summary adjudication of Plaintiffs’ FAC is DENIED.

The court declines to rule on Plaintiffs’ objections to evidence. “In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.” (Code Civ. Proc., §437c, subd. (q).) Additionally, Plaintiffs’ objections fail to comply with California Rules of Court, rule 3.1354, subd. (b)(3).