Filed 12/20/18




                             CERTIFIED FOR PUBLICATION

             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              FIFTH APPELLATE DISTRICT

 RAY DAVID MORENO,
                                                                      F075822
  Plaintiff and Appellant,
                                                            (Super. Ct. No. VCU254522)
  v.

 VISSER RANCH, INC., et al.,                                        OPINION
  Defendants and Respondents.


        APPEAL from a judgment of the Superior Court of Tulare County. Melinda
Myrle Reed, Judge.
        Dordick Law Corporation and Gary A. Dordick for Plaintiff and Appellant.
        Taylor Anderson, Kevin S. Taylor and Jorge A. Martinez for Defendants and
Respondents.
                                           -ooOoo-
        Plaintiff was injured while a passenger in a pickup truck involved in a single-
vehicle, rollover accident. Plaintiff sued the driver (his father), the corporation that
employed the driver, and an affiliated corporation that owned the vehicle. Plaintiff
alleged the driver was acting in the scope of his employment at the time of the accident
and claimed the defendant corporations were vicariously liable under California’s
doctrine of respondeat superior. The defendant corporations obtained summary
adjudication of the respondeat superior claim on the ground that the driver, who was
returning home late in the evening after attending a family gathering, was not acting in
the scope of his employment at the time of the accident.
       Scope of employment is a question of fact. Here, the evidence shows defendants
required the driver to be on call 24 hours a day, seven days a week to respond
immediately to cell phone calls for repairs and maintenance needed at the ranches, farms
and dairies operated by defendants. Also, there is conflicting evidence about whether the
driver was required to use the company-owned vehicle, which contained tools and spare
parts, at all times so he could respond quickly to call for repairs at defendants’ various
locations. Based on this evidence and other details about the driver’s job, a reasonable
trier of fact could find the driver was acting within the scope of his employment when the
accident occurred.
       We publish this decision because it is distinguishable from most other cases
involving an employee’s required use of a company-owned vehicle. Usually, those cases
involve an employee who is required to use the vehicle only for the commute to and from
work but is not required to use the vehicle while off work.1 Here, a trier of fact
reasonably could find the driver’s use of the truck for personal travel after work was
dictated by the employer’s requirement. In such circumstances, the risk of the truck’s
involvement in an accident is a foreseeable risk that is attributable to the business
enterprise under California’s risks-of-the-enterprise principle, which is the primary
justification for its respondeat superior doctrine. Consequently, responsibility for that
risk is best allocated to the enterprise, which is able to spread the risk (and actually did
so) by obtaining insurance.

1      Also, a substantial number of those cases address accidents that occurred during
the employee’s travel to or from the workplace—circumstances governed by the going
and coming rule and its exceptions. (See pt. I.A.3., post; CACI No. 3725 [going-and-
coming rule, vehicle-use exception].) Here, the going and coming rule and its exceptions
are not applicable because the accident occurred while the driver was returning home
from a family gathering at his brother’s home, not on the way to or from work.


                                              2.
       We therefore reverse the judgment and remand for further proceedings.
                                          FACTS
       Plaintiff Ray David Moreno was seriously injured on September 12, 2012, when
the 2004 GMC Sierra pickup truck in which he was a passenger left the roadway, hit an
embankment and rolled over. At the time, plaintiff was not wearing his seat belt. The
truck was driven by plaintiff’s father, Ernesto Moreno Lopez (Driver). They were
traveling on I Street, a rural road owned and maintained by the County of Tulare.
Unbeknownst to Driver, a section of I Street was under construction and a resurfacing of
the roadway, which had begun earlier that day, was not completed when the accident
occurred.
       The defendants named in plaintiffs’ lawsuit were Visser Ranch, Inc., a California
corporation; Graceland Dairy, Inc., a California corporation;2 the County of Tulare and
its Resource Management Agency; the State of California and its Department of
Transportation; General Motors Company; and Driver. For purposes of this opinion,
Visser Ranch, Inc. and Graceland Dairy, Inc., collectively, are referred to as
“defendants.”
       Driver was an employee of Visser Ranch, Inc., a company owned by John Visser.
His supervisors or bosses were John Visser and Visser’s son-in-law, Brian Schaap.
Driver had been hired in September 2004 as a supervisor/manager and was required to
work at virtually all of Visser’s properties, which included multiple farms, ranches, and
Graceland Dairy. These operations involved equipment that ran around the clock. When
maintenance or repair issues arose, they would need to be addressed immediately to


2       On February 23, 2015, defendants Visser Ranch, Inc. and Graceland Dairy, Inc.
filed certificates of dissolution with the California Secretary of State. The date of filing
of a certificate of dissolution (Corp. Code, § 1905) is the date a California corporation’s
“corporate existence shall cease.” (Corp. Code, § 1905.1; see Corp. Code, § 1903
[proceedings for winding up corporation].)


                                              3.
prevent the farm and dairy operations from being disrupted. Driver’s duties included
performing maintenance and repair work on the Visser properties, which he often
performed alone. Driver’s responsibilities also included transporting workers to various
Visser properties where they would work.
       Defendants provided Driver with an office at the property known as Visser Ranch,
and he worked from 6:00 a.m. to 4:30 p.m. six days a week, with Sundays off. In
addition, he was “on call” 24 hours a day, seven days a week, which meant he was
expected to respond to any problems or issues that arose on any Visser property at any
time of the day or night.
       Driver was provided a house on one of the Visser properties, Graceland Dairy,
where he lived with his family, including plaintiff. The distance between Driver’s office
at Visser Ranch and the home at Graceland Dairy was approximately eight miles. To
facilitate Driver’s ability to respond efficiently to repair and maintenance problems
arising outside his usual daytime schedule, defendants provided Driver a cell phone and a
pickup truck. The GMC truck that Driver was operating on the day of the accident was
owned by Graceland Dairy, Inc. Driver kept a toolbox and spare parts in the GMC truck
so he would have them available whenever he was contacted to respond to a maintenance
or repair issue. When Driver was not working his regular shift, he used the GMC truck
so he could respond quickly to work-related calls. Driver’s use of the GMC truck while
not performing his regular shift was part of his employment and benefited defendants
because Driver could respond immediately to defendants’ maintenance, repair and
operational needs. This aspect of Driver’s use of the GMC truck had been discussed by
Driver and Schaap, with Schaap telling Driver that he was the lone exception to the
defendants’ policy that company vehicles were to be used for business purposes only.
       On September 12, 2012, Driver left work at approximately 4:30 p.m., drove to his
home at Graceland Dairy, loaded a grill into the GMC truck, and drove to his brother’s
house for a family gathering. None of defendant’s other employees attended, or were

                                             4.
aware of, the family gathering. At approximately 11:45 p.m., Driver got back into the
GMC truck to return to his home at Graceland Dairy. Plaintiff rode along in the
passenger seat. Driver followed a route that he had taken on many prior occasions.
Driver lost control of the GMC truck while attempting to negotiate an S-curve in the
roadway that was being resurfaced.
       When the single-vehicle accident occurred, plaintiff was employed by Cream of
the Crop, Ag Service, Inc. to perform services at the Graceland Dairy site, other Visser
properties and various other unrelated farms in the area. Cream of the Crop was not
owned or controlled by defendants. Driver’s declaration, cited in defendants’ undisputed
statement of material facts, stated plaintiff was scheduled to perform work services at the
Graceland Dairy site that night and he was driving plaintiff back to Graceland Dairy so
that plaintiff could begin his work shift. Plaintiff would get to work by walking to the
barn close to the house at Graceland Dairy.
                                     PROCEEDINGS
       In April 2013, plaintiff filed a complaint for damages alleging a negligence cause
of action against Driver, Visser Ranch, Inc., Graceland Dairy, Inc., and General Motors
Company. The negligence cause of action asserted defendants were liable because (1)
Graceland Dairy, Inc. owned the vehicle negligently operated by Driver, (2) Driver was
acting in the course and scope of this employment with defendants at the time he lost
control of the vehicle, and (3) defendants negligently failed to screen, train and supervise
Driver.
       In addition, plaintiff alleged a cause of action against the State of California and
the County of Tulare based on the dangerous condition of the public property where
Driver lost control of the vehicle. Plaintiff also alleged causes of action against General
Motors Company for strict liability, negligent product liability, and breach of warranty.
       In June 2015, defendants filed a motion for summary adjudication addressing the
claims that they were vicariously liable and that they had negligently entrusted the

                                              5.
vehicle to Driver. Plaintiff opposed the motion, asserting the existence of disputed facts
and arguing the scope of Driver’s employment was a factual question for the jury.
       In addition, codefendants Driver and the County of Tulare filed separate
oppositions to defendants’ motion for summary adjudication. Driver supported his
opposition by submitting a declaration stating (1) plaintiff was employed by Cream of the
Crop, Ag Service, Inc. to perform work services at the Graceland Dairy site and other
Visser properties; (2) the night of the incident, plaintiff was scheduled to perform work at
Graceland Dairy; and (3) Driver “was driving him back to the Graceland Dairy site so
that he could begin his work shift.” The final paragraph of Driver’s declaration stated:
“On the night of the incident, when I was driving [plaintiff] from my brother’s home to
the Graceland Dairy site, I was on 24/7 call and I was acting within the course and scope
of my duties as a Visser employee.”
       In September 2015, following a hearing on the motion for summary adjudication,
the court filed an order granting defendants’ motion for summary adjudication “only on
liability arising from the theories of vicarious liability/respondeat superior and negligent
entrustment.” The court overruled all of the evidentiary objections raised by the parties
because the objections were not submitted in accordance with the requirements of the
California Rules of Court. As to the negligent entrustment theory of liability, the court
noted only the County of Tulare had opposed the summary adjudication of that claim and
its factual arguments were insufficient to require the theory be presented to a jury. As to
the scope of employment issue, the court stated:

       “[T]he undisputed deposition testimony reveals [plaintiff] (1) lived at the
       family home located at Graceland Dairy; (2) was not employed by Visser
       Ranch; (3) did not have to be at work at any particular time; (4) was
       planning to go to work whenever he got home; and (5) walked to the barn
       close to his house at Graceland Dairy to get to work. [Citation.] As such,
       the deposition testimony does not support the opposing parties’ argument
       [that Driver] was transporting [plaintiff] for purposes related to Visser
       Ranch’s business activities.”


                                             6.
       The court rejected Driver’s declaration to the extent that it contradicted his
deposition testimony and summarized the evidence presented by stating Driver “engaged
in a distinctly personal event when he traveled to the family outing.” The court
determined a reasonable trier of fact could not find Driver “was acting in furtherance of
Visser Ranch’s business activities by going home with his son after the family event.
Moreover, where the purpose was beyond the scope of employment, [plaintiff’s] plans to
go to work after he arrived home did not transform the trip into company business.” The
court concluded Driver was engaged in a purely personal pursuit with his son when the
accident happened, and inferences to the contrary were not reasonable.
       In May 2017, the trial court entered a judgment as to defendants based on (1) the
August 2015 order that granted them summary adjudication of the claims of vicarious
liability and negligent entrustment and (2) the remaining claim that defendants had
statutory liability arising out of the ownership of the vehicle. The judgment stated
plaintiff had reached a settlement in excess of $15,000 with Driver and the settlement
satisfied the $15,000 statutory liability based on ownership of the vehicle. As a result,
judgment was entered in favor of defendants and against plaintiff. Plaintiff timely
appealed from the judgment.
                                      DISCUSSION
I.     BASIC LEGAL PRINCIPLES
       A.     Respondeat Superior
       The doctrine of respondeat superior holds an employer liable for torts of its
employees committed within the scope of their employment. (Halliburton Energy
Services, Inc. v. Department of Transportation (2013) 220 Cal.App.4th 87, 93–94
(Halliburton); Rest.3d Agency, § 7.07, subd. (1), p. 198; Rest.2d Agency, § 219, subd.
(1); see Civ. Code, § 2338 [“principal is responsible to third persons for the negligence of
his agent in the transaction of the business of the agency”].) A plaintiff suing an



                                             7.
employer under the doctrine must prove the person who committed the tort was acting
within the scope of his or her employment. (Halliburton, supra, at p. 94.)
              1.      Policy Considerations
       Conceptually, California’s doctrine of respondeat superior is justified by public
policy considerations relating to the allocation of risk. (Hinman v. Westinghouse Electric
Co. (1970) 2 Cal.3d 956, 959; Halliburton, supra, 220 Cal.App.4th at p. 94.) “‘The
losses caused by the torts of employees, which as a practical matter are sure to occur in
the conduct of the employer’s enterprise, are placed upon that enterprise itself, as a
required cost of doing business. They are placed upon the employer because, having
engaged in an enterprise which will, on the basis of past experience, involve harm to
others through the torts of employees, and sought to profit by it, it is just that he, rather
than the innocent injured plaintiff, should bear them; and because he is better able to
absorb them, and to distribute them, through prices, rates or liability insurance, to the
public, and so to shift them to society, to the community at large.’ (Prosser, Law of Torts
(3d ed. 1964), p. 471; fns. omitted.)” (Hinman, supra, at pp. 959–960.) In other words,
an employer is vicariously liable for the risks that may fairly be regarded as typical of or
broadly incidental to the enterprise undertaken by the employer—that is, “the risks
inherent in or created by the enterprise.” (Id. at p. 960; see Comment, Pouring New Wine
into an Old Bottle: A Recommendation for Determining Liability of an Employer Under
Respondeat Superior (1994) 39 S.D. L.Rev. 570, 583–585 [“California Supreme Court
was the first court to manifestly apply the enterprise theory” in developing a scope of
employment test] (Pouring New Wine).) The risks-of-the-enterprise principle is the main
justification supporting California’s respondeat superior doctrine. (Marsh v. Tilley Steel
Co. (1980) 26 Cal.3d 486, 494.)3

3     In contrast, most states apply a control theory to determine the scope of
employment for purposes of respondeat superior. (Pouring New Wine, supra, 39 S.D.
L.Rev. at p. 578.) This is the approach adopted in subdivision (2) of section 7.07 of the

                                               8.
              2.     Tests for Scope of Employment
       California courts have used different language when phrasing the test for scope of
employment under the respondeat superior doctrine. (See Sources and Authorities for
CACI No. 3720 [scope of employment].) Under one test, the employer is liable if the
activities that caused the employee to become an instrument 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. (Purton v. Marriot Internat., Inc. (2013) 218 Cal.App.4th 499, 509
(Purton).)
       Under the test described by this court in Halliburton, an employee’s conduct is
within the scope of his or her employment if (1) the act performed was either required or
incident to his duties or (2) the employee’s misconduct could be reasonably foreseen by
the employer in any event. (Halliburton, supra, 220 Cal.App.4th at p. 94.) In this test,
foreseeability 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 the costs of the employer’s business. (Id. at p. 95.) In
Halliburton, we acknowledged the rationale that “‘[t]he employer is liable not because
the employer has control over the employee or is in some way at fault, but because the
employer’s enterprise creates inevitable risks as part of doing business.’” (Id. at p. 94,
quoting Bailey v. Filco, Inc. (1996) 48 Cal.App.4th 1552, 1559.)
              3.     The “Going and Coming” Rule
       A specific principle, along with many exceptions, has been developed to address
whether an employee is acting within the scope of employment when involved in a
vehicular accident on the way to or from work. Called the “going and coming” rule, this
principle holds that an employee going to or from work ordinarily is considered outside

Restatement Third of Agency, which was published in 2006. (Cf. Rest.2d Agency, §§
228, 229.)


                                             9.
the scope of employment and, therefore, the employer is not liable for torts committed
during the commute. (Halliburton, supra, 220 Cal.App.4th at pp. 95–96.) The going and
coming rule is not applicable to this case because Driver was not commuting to or from
work at the time of the accident. (See generally, CACI No. 3725 [going-and-coming
rule, vehicle-use exception].) Consequently, this opinion does not describe the rule and
its many exceptions in the detail provided in other decisions published by this court. (See
Pierson v. Helmerich & Payne Internat. Drilling Co. (2016) 4 Cal.App.5th 608, 618–624
[overview of going and coming rule]; Lantz v. Workers’ Comp. Appeals Bd. (2014) 226
Cal.App.4th 298, 308–311 [going and coming rule and special mission exception];
Halliburton, supra, at pp. 95–96 [going and coming rule and incidental benefit
exception].)
       B.      Standard of Review for Summary Judgment
       Appellate courts independently review an order granting summary judgment or
summary adjudication. (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 452,
fn. 3 [review of a grant of summary judgment or summary adjudication is de novo];
Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768 (Saelzler).) In performing
this independent review, appellate courts apply the same three-step analysis as the trial
court. (Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1602 (Brantley).)
       The first step requires the court to identify the issues framed by the pleadings.
(Brantley, supra, 42 Cal.App.4th at p. 1602.) Here, plaintiff’s complaint sought to
impose vicarious liability on defendants under a respondeat superior theory by alleging
Driver was operating the GMC truck while in the course and scope of his employment
with defendants.
       The second step requires the court to determine whether the moving party has
satisfied its burden of establishing facts that justify a judgment in its favor. (Brantley,
supra, 42 Cal.App.4th at p. 1602.) Here, defendants attempted to establish that Driver



                                             10.
was not acting in the scope or course of employment by setting forth facts and presenting
evidence that showed Driver was engaged in personal activities when the GMC truck
rolled and injured plaintiff.
       If the moving party has carried its initial burden, the court proceeds to the third
step and decides whether the opposing party has demonstrated the existence of a triable
issue of material fact. (Brantley, supra, 42 Cal.App.4th at p. 1602.) Here, plaintiff
contends (1) the question of scope of employment ordinarily is one of fact for the jury to
decide and (2) a jury reasonably could infer Driver was in the scope of his employment
because he was on call 24 hours a day, seven days a week and, while on call, he was
required to drive the truck and keep his tools handy.
       During the second and third steps of the analysis, an appellate court considers the
evidence in a light favorable to the nonmoving party, liberally construing that party’s
evidentiary submission while strictly scrutinizing the moving party’s own showing and
resolving any evidentiary doubts or ambiguities in the nonmoving party’s favor.
(Saelzler, supra, 25 Cal.4th at pp. 768–769.) Furthermore, an appellate court’s
evaluation of the evidence presented with motions for summary judgment or adjudication
does not include evidence to which objections have been made and properly sustained.
(Code Civ. Proc., § 437c, subd. (c).) Here, the trial court overruled all of the evidentiary
objections presented by the parties because those objections were not presented in the
manner required by the California Rules of Court. Accordingly, our review considers all
of the evidence presented.
II.    SCOPE OF EMPLOYMENT
       A.     Permission and Benefit Test
       Under the test for scope of employment set forth in Purton, the employer is liable
if the activities that caused the employee to become an instrument of danger to others (1)




                                             11.
were undertaken with the employer’s permission and (2) were of some benefit to the
employer. (Purton, supra, 218 Cal.App.4th at p. 509.)
       Here, the activity that caused Driver to become an instrument of danger to others
was driving the GMC truck. Plaintiff contends the first element of the test—employer
permission—was satisfied based on Driver’s declaration. Paragraph 24 of Driver’s
August 2015 declaration stated:

       “Visser required me to have the Truck available for immediate use at all
       times. My use of the Truck on a 24/7 basis was not simply permissive or a
       personal favor to me, but rather it was a part of my job for Visser’s benefit
       so that I could respond immediately to Visser’s maintenance, repair, and
       operation[al] needs.”
       In addition, Driver stated that his supervisors were aware that he had the GMC
truck with him at all times. Viewing this evidence in the light most favorable to plaintiff,
we conclude it is sufficient to establish the first element of the Purton test. Specifically,
Driver’s use of the GMC truck for personal trips, including traveling to and from a family
gathering at his brother’s home, was undertaken with defendants’ permission.
       As to the second element of some benefit to the employer, the parties disagree on
whether Driver’s use of the GMC truck for a personal trip benefited defendants.
Plaintiff’s theory of benefit asserts that defendants benefited from requiring Driver to use
the GMC truck on personal trips because doing so allowed Driver to respond directly to a
phone call that repairs were required at one of defendants’ sites. Driver kept tools and
spare parts in the GMC truck and, as a result, could go immediately to the location where
the repairs were needed. Plaintiff also notes that defendants received the benefit of
Driver returning plaintiff to Graceland Dairy to begin his shift. In contrast, defendants
and the trial court viewed Driver as being “engaged in a purely personal pursuit with his
son when the accident happened.”
       Based on the evidence presented, we conclude there is a triable issue of material
fact as to the second element of the Purton test—that is, whether Driver’s use of the


                                             12.
GMC truck for a personal trip was of some benefit to defendants. In Halliburton, this
court recognized the theory that the employer benefits when a vehicle is available to the
employee during off-duty hours in case it is needed for emergency business trips.
(Halliburton, supra, 220 Cal.App.4th at p. 96.) A similar conclusion as to employer
benefit was reached in Snodgrass v. United States (7th Cir. 1992) 957 F.2d 482
(Snodgrass). In that case, an FBI agent was authorized to use his government car to
travel between work and home. (Id. at p. 484.) The court addressed whether the
employer benefited from this arrangement by noting the car was equipped with a radio,
the agent often responded to emergency calls at night directly from his home using the
FBI car, and the FBI policy authorized agents to drive government owned cars home,
provided they followed an expeditious route. (Id. at pp. 485–486.) The court stated the
agent’s “driving an FBI car provided at least as great a benefit to the FBI” as the benefit
provided to an employer in an Illinois case involving an automobile dealership that
supplied several of its employees with an automobile for performing company business
and for personal use. (Id. at p. 486.) Specifically, the court stated the agent “had a
greater need to respond to FBI emergencies than a car salesman would to customer
service needs.” (Ibid.)4
       In Lazar v. Thermal Equipment Corp. (1983) 148 Cal.App.3d 458, the court
concluded the employee was acting within the scope of his employment while driving the
employer’s truck on a personal errand on his way home from work. (Id. at p. 460.) The
court stated “an object of the commute was to transport the [company owned] vehicle to
[the employee’s] home where it would be at the ready for business use in case [the


4       Ultimately, the Seventh Circuit concluded the FBI agent was not acting in the
scope of his employment at the time of the collision with the plaintiff because under
Illinois law the agent had left the scope of employment when he went to a bar for four to
five hours (i.e., an activity that qualified as a “frolic” under Illinois law) before resuming
his trip home. (Snodgrass, supra, 957 F.2d at p. 486.)


                                             13.
employee] received emergency after-hours calls for repair from the employer’s
customers.” (Id. at p. 463.) Based on the approach to employer benefits taken in the
foregoing case, we conclude a trier of fact reasonably could find that defendants derived
some benefit from requiring Driver to use the GMC truck while on personal trips because
this requirement increased his ability to respond quickly to calls for repairs outside his
regular hours. In addition, plaintiff asserted as an undisputed material fact that Driver’s
responsibilities during his regular daytime shift, and when he was on call, included
transporting workers to various Visser properties so that they could work. If a jury were
to find this assertion about Driver’s responsibilities as true and were to find Driver was
taking plaintiff to Graceland Dairy so plaintiff could begin his shift, the jury reasonably
could infer that defendants received another type of benefit from Driver’s trip from his
brother’s home to Graceland Dairy. (Code Civ. Proc., § 437c, subd. (c) [conflicting
inferences].)
       Consequently, defendants will be entitled to summary adjudication of the
respondeat superior claim against them only if they show the Purton test is subject to an
exception that can be applied as a matter of law at this stage of the proceeding. We
consider the existence of such an exception after discussing the application of a second
test for the scope of employment.
       B.       Halliburton Test
       The test for scope of employment described by this court in Halliburton can be
satisfied in multiple ways. An employee’s conduct is within the scope of his employment
if the act performed was (1) required or (2) incident to his duties. (Halliburton, supra,
220 Cal.App.4th at p. 94.) When neither of these elements is satisfied, the employee’s
misconduct is regarded as within the scope of employment if it could be reasonably
foreseen by the employer. (Ibid.) An example of this type of foreseeability occurs when
an employer requires an employee to drive his own vehicle to and from its office so the



                                             14.
vehicle is available for company business during the workday. In such a situation,
“‘accidents on the way to or from the office are statistically certain to occur eventually,
and, the business enterprise having required the driving to and from work, the risk of
such accidents are risks incident to the business enterprise.’” (Id. at p. 96.)
              1.     Required Acts
       Whether the act performed by Driver was required turns on how that act is
described or characterized. For instance, Driver was not required by defendants to attend
the family gathering. Consequently, if the relevant conduct is described as returning
from a family gathering, that conduct was not an act required by Driver’s employer.
       Alternatively, if the relevant conduct is described as operating the GMC truck
while on a personal trip, there is a triable issue of fact as to whether that conduct was
required by his employer. Plaintiff’s evidence includes Driver’s declaration, which states
his use of the GMC truck at all times was a part of his job, was not permissive, and was
not a personal favor. Thus, Driver’s declaration is evidence that Driver was engaging in
conduct required by his employer at the time of the accident.
       At a minimum, we conclude the different ways to characterize Driver’s activity
presents a question of fact that cannot be decided in defendants’ favor at this stage of the
proceedings. This conclusion is compatible with the general principle addressing
employee conduct that serves a dual purpose—a purpose of the employer and a purpose
of the employee. Section 236 of the Restatement Second of Agency sets forth this
principle as follows: “Conduct may be within the scope of employment, although done
in part to serve the purposes of the servant or of a third person.” This principle applies
“not only as to the act done but as to the manner of doing it.” (Rest.2d Agency, § 236,
com. a.) Here, the manner of doing the act—that is, traveling to and from a family
gathering—can be characterized as driving the GMC truck in accordance with




                                             15.
defendants’ requirements. Thus, a jury reasonably could find driving the GMC truck
served a dual purpose and was conduct within the scope of Driver’s employment.
              2.      Foreseeable Negligent Driving
       Under the alternate prong of the test described in Halliburton, the scope of
employment extends to employee misconduct that could be reasonably foreseen by the
employer. (Halliburton, supra, 220 Cal.App.4th at p. 94.) Foreseeability means that, in
the context of defendants’ enterprise, Driver’s conduct was not so unusual or startling
that it would seem unfair to include the loss resulting from it among the other costs of the
employer’s business. (Ibid.) Here, Driver was required to use the company owned GMC
truck for personal travel and, because vehicular accidents “are statistically certain to
occur eventually” (id. at p. 96), the foreseeability test is met.
       California’s risks-of-the-enterprise principle places responsibility for such
foreseeable losses on the employer because the employer (compared to the plaintiff) “‘is
better able to absorb them, and to distribute them, through prices, rates or liability
insurance, to the public, and so to shift them to society, to the community at large.’”
(Hinman, supra, 2 Cal.3d at p. 959; see State ex rel. Dept. of California Highway Patrol
v. Superior Court (2015) 60 Cal.4th 1002, 1015 [principal justification of respondeat
superior doctrine is that employer may spread risk through insurance and carry the cost as
part of the cost of doing business].) Here, it appears that defendants acted in accordance
with the risks-of-the-enterprise principle because the GMC truck was insured under an
auto liability policy purchased by Visser.5 Thus, defendants themselves may have
recognized (i.e., foreseen) and insured against the risk of a traffic accident involving the
vehicle they required Driver to use for personal transportation.


5      During his deposition, Visser answered “No” when asked if he was trying to go
out of his way to prevent plaintiff from collecting under the insurance policy. The record
does not show whether Driver was named in the policy as an additional insured and does
not show if the insurance coverage was limited to business activities.


                                              16.
       Accordingly, we conclude a trier of fact reasonably could find Driver’s personal
use of the GMC truck was foreseeable under that prong of the scope of employment test
described in Halliburton. Consequently, as with the Purton test, defendants will prevail
on their motion for summary adjudication as to the respondeat superior claim only if they
show the scope of employment tests are subject to an exception that can be applied as a
matter of law to the evidence presented in this case.
       C.     Purely Personal Activity
       In Halliburton, we did not decide whether a jury reasonably could find the
employee was acting in the scope of employment while using a company truck to
commute to a work location based on the theory that employee’s use of the truck during
his commute provided an incidental benefit to the employer. (Halliburton, supra, 220
Cal.App.4th at p. 96.) We concluded that, even if an incidental benefit was provided, the
undisputed facts established that the employee was engaged in purely personal business
at the time of the accident and, therefore, was not acting within the scope of his
employment for purposes of respondeat superior liability. (Id. at pp. 96–97.) This
approach necessarily holds that even if a prong of the scope of employment test described
in that decision had been established, an exception to the test existed for purely personal
business. Consequently, here we consider whether the undisputed material facts establish
Driver was not acting in the scope of his employment with defendants because he was
engaged in purely personal business at the time the GMC truck left the roadway and
overturned. Purely personal business also has been described as “‘an end or purpose
exclusively and individually [the employee’s] own.’” (Id. at p. 102.)
       Contrary to defendants’ arguments and the determination of the trial court, we
conclude there exists a triable issue of material fact as to whether Driver was engaged in
purely personal business at the time of the accident. Here, (1) Driver was operating a
vehicle owned by his employer; (2) the vehicle held tools and spare parts used by Driver



                                            17.
in performing repair and maintenance work for employer; (3) Driver was on call 24 hours
a day, seven days a week to perform repairs at the employer’s various business sites; (4)
Driver was required to use the vehicle at all times so when he received a repair call
outside his regular work hours he could respond quickly; (5) the employer paid for the
fuel used by the vehicle and for the auto liability insurance policy; (6) Driver was not
subject to the employer’s policy restricting use of company vehicles to company
business; and (7) Driver was returning plaintiff to Graceland Dairy so he could begin his
work shift. The evidence also shows Driver and plaintiff, his son, were returning home
from a family gathering at Driver’s brother’s home when the accident occurred. The
employer was not aware of the gathering and none of defendants’ other employees
attended the gathering.
       These facts show Driver was on personal business when the accident occurred, but
they do not establish as a matter of law that he was engaged in purely personal business.
The requirements of Driver’s job dictated his choice of transportation to and from the
gathering. (Cf. State Farm Mut. Auto Ins. Co. v. Haight (1988) 205 Cal.App.3d 223,
241–242 [use of company van was an express condition of employment].) This fact
distinguishes this case from Halliburton, where the employee was not required to use the
company truck for his personal business and had not gotten permission to use the
company truck for the personal trip in question. It also distinguishes this case from Le
Elder v. Rice (1994) 21 Cal.App.4th 1604, which involved an employee who was
required to be available 24 hours a day, seven days a week. (Id. at p. 1607.) In Le Elder,
the employee was using his personal vehicle and was returning home after dropping his
children at school when he struck the plaintiff on her bicycle. (Id. at pp. 1606–1607.)
The court concluded the employee was not acting in the scope of his employment at the
time of the accident, but, unlike Driver, the employee was not provided with a company
owned vehicle and required to use that vehicle all of the time.



                                            18.
       Finally, our conclusion that the issue of purely personal business cannot be
decided in defendants’ favor at this stage of the proceedings is congruent with the dual
purpose principle mentioned earlier. That principle acknowledges that “[t]he fact that the
predominant motive of the servant is to benefit himself or a third person does not prevent
the act from being within the scope of employment.” (Rest.2d Agency, § 236, com. b.)
Here, even if Driver’s predominant reasons for attending the gathering and driving home
with his son were personal, there was a secondary business purpose underlying the use of
the GMC truck. Accordingly, we cannot conclude as a matter of law that Driver was
engaged in purely personal business when the accident occurred. It follows that the
motion for summary adjudication of the respondeat superior claim should have been
denied.
                                     DISPOSITION
       The judgment is reversed. Plaintiff shall recover his costs on appeal.

                                                                _____________________
                                                                          FRANSON, J.
WE CONCUR:


 _____________________
LEVY, Acting P.J.


 _____________________
DESANTOS, J.




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