Case Number: BC644191 Hearing Date: January 16, 2019 Dept: 2

Motion for Summary Judgment by Defendant, Behavioral Learning Center (“BLC”), filed on 9/28/18, is DENIED. Cal. Code Civil Procedure §598. BLC has not established that it is entitled to judgment in its favor on the entire complaint based on the material facts proffered, which remain in dispute, or otherwise not established by the evidence as further discussed below. Cal. Code Civil Procedure § 437c(p)(2).

Plaintiff’s objections to BLC’s evidence

Objections to BLC’s request for judicial notice #6-9 and Exhibits 6-9 are SUSTAINED.

Declaration of Erika Estrada.

#1 OVERRULE.

#2-5, Ex. 4-5 OVERRULE.

BLC’s objections to evidence

Declaration of Lourdes Goonetilleke.

#6. SUSTAINED.

All remaining objections are OVERRULED.

Declaration of Les Eng, counsel for Goonetilleke.

#1 and #2. OVERRULED.

Goonetilleke’s deposition testimony.

#1 OVERRULED.

The Court declines to rule on objections to Goonetilleke’s and Plaintiff’s Opposing Separate statements and Plaintiff’s Additional Facts. These are not evidentiary objections but are material facts that Plaintiff and Goonetilleke contend are disputed.

The undisputed facts establish that on 11/30/16, Plaintiffs’ decedent was riding a motorcycle when Defendant, Lourdes Goonetilleke (“Goonetilleke”), made a left turn in front of decedent and collided with him. UF 5-6. There is no dispute that at the time of the incident, Goonetilleke was on her way home from her job at The Help Group. UF 7.

Goonetilleke’s day at The Help Group ended at about 3:15 to 3:30 p.m. UF 8. She was driving her personal car. UF 10. There is no dispute that Goonetilleke did have to pick up her Kindle that she would input data from BLC clients. UF 11. Goonetilleke had a BLC appointment at 5:45 p.m. at the residence of a client of BLC. UF 12.

Employer liability

An employer is vicariously liable for an employee’s negligence where the employee was within the course and scope of employment at the time of the incident. Hartline v. Kaiser Foundation Hospitals (2005) 132 Cal. App. 4th 458, 465.

Where the facts are undisputed, the court can determine this issue as a matter of law. Perez v. Van Groningen & Sons (1986) 41 Cal. 3d 962, 968.

An employer is generally exempt from liability for the tortious acts committed by an employee during an employee’s commute. This is referred to as the “going and coming” rule. Jorge v. Culinary Institute of America (Cal. Ct. App. 2016) 207 Cal.Rptr.3d 586, 597.

However, an employer can be vicariously liable under the “incidental benefit” exception to the “going and coming” rule. It applies where the employer derives an “incidental benefit” from the employee’s commute. Huntsinger v. Glass Containers Corp. (1972) 22 Cal.App.3d 803, 810.

Triable issues of fact remain as to whether the “incidental benefit/required vehicle” exception applies to permit liability against an employer. Some of BLC’s material facts are not supported by the evidence as discussed below.

An exception to “going and coming” rule of non-liability applies where the employer derives an “incidental benefit” from the employee’s use of a personal vehicle to and from work and as a condition of employment. It does not apply where the employee is not commuting, but is engaged on a personal errand. Moradi v. Marsh USA, Inc. (2013) 219 Cal.App.4th 886, 897-898.

If the employer derives an incidental benefit from the employer’s commute that is not common to commute trips by ordinary members of the workforce, then the commute may be part of the employee’s workday for purposes of vicarious liability. Halliburton Energy Services, Inc. v. Department of Transportation (2013) 220 Cal.App.4th 87, 96

If the employer requires the employee to furnish a vehicle for transportation on the job, and negligence occurs while the employee is traveling to or from work in that vehicle, the employer is liable. This is known as the “required-vehicle exception.”

The “required-vehicle exception” is one type of an incidental benefit. If the employer requires the employee to furnish a vehicle for transportation on the job, and negligence occurs while the employee is traveling to or from work in that vehicle, the employer is liable. Halliburton at 96.

Application of the “required vehicle” exception “turns on whether the employer expressly or implicitly required the employee to make the vehicle available or has reasonably come to expect that the vehicle will be available for work purposes and whether the employer derived a benefit from the availability of the vehicle.” Lobo v. Tamco (2010) 182 Cal.App.4th 297, 303.

There is no dispute that Goonetilleke was driving her personal car. UF 10. What Defendant has not negated is that she was required to have a car for her BLC job, which Plaintiff establishes with evidence in opposition to Fact 10. Plaintiff’s Additional Fact 4 establishes that BLC technicians were required to travel to BLC’s clients’ homes to discharge their job duties, and BLC required Goonetilleke to carry auto liability insurance. Plaintiff’s Additional Facts 4, 5.

Defendant again argues that regardless, Plaintiff was going home from her first job and was not going to her BLC job (i.e., not commuting to BLC), since the appointment was at 5:45. Whether the BLC appointment was at 5:45 as opposed to 4:00 p.m. is disputed. Facts 19, 20, 21.

It is also undisputed that Goonetilleke was going home to retrieve her Kindle. UF 11. Defendant argues that it was Goonetilleke’s choice to leave the Kindle at home. This is not material. The issue is the purpose of that particular travel when the accident occurred, and whether BLC derived an incidental benefit from that travel to pick up the Kindle. BLC admits Goonetilleke “did have to pick up her Kindle that she would input data from BLC clients on… .” UF 11.

BLC has not established that the “special errand” exception to the “going and coming rule” does not apply.

Under this exception, the employer remains liable if the employee is commuting while on a special errand as part of the employee’s regular duties or at a specific order or request of the employer. Boynton v. McKales (1956) 139 Cal.App.2d 777, 789.

A material consideration is whether the activity was connected with the employment and intended to benefit the employer who requested or expected the employee to attend. Boynton v. McKales (1956) 139 Cal.App.2d 777, 789.

Triable issues remain with respect to this exception as well. As discussed previously, whether Goonetilleke was “commuting” to BLC or just going home for personal reasons remains a triable issue of fact. Whether she had only a 5:45 appointment that day is controverted. Fact 20, 21.

As Boynton makes clear, “[i]t is not necessary that the servant is directly engaged in the duties which he was employed to perform, but included are also missions which incidentally or indirectly contribute to the service, incidentally or indirectly benefit the employer. Boynton v. McKales (1956) 139 Cal.App.2d 777, 789. The exception applies if the “function or the attendance was connected with the employment and for a material part intended to benefit the employer who requested or expected the employee to attend.” Boynton at 789. BLC admits Goonetilleke did have to pick up her Kindle which was necessary for work. Fact 11.

Moving party is ordered to give notice.