Filed 12/16/19; Certified for Publication 1/9/20 (order attached)




IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                    SECOND APPELLATE DISTRICT

                               DIVISION THREE

 MARK BINGENER et al.,                                    B291112

         Plaintiffs and Appellants,                       (Los Angeles County
                                                          Super. Ct. No. BC604284)
         v.

 CITY OF LOS ANGELES et al.,

         Defendants and Respondents.


      APPEAL from a judgment of the Superior Court of
Los Angeles County, Gerald R. Rosenberg, Judge. Affirmed.
      Mardirossian & Associates, Garo Mardirossian, Armen
Akaragian, Adam Feit, for Plaintiffs and Appellants.
      Michael N. Feuer, City Attorney, Blithe S. Bock, Assistant
City Attorney, Hall R. Marston and Jonathan H. Eisenman,
Deputy City Attorneys, for Defendant and Respondent.
                   _________________________
                       INTRODUCTION

       Mark and Eric Bingener appeal the trial court’s grant of
the City of Los Angeles’s (City) motion for summary judgment.
The City argued that it was not liable for the injuries caused by
Kim Rushton because he was not acting within the course of his
employment at the time of the accident. Specifically, the City
argued that the coming and going rule insulated it from liability.
       It is undisputed that on February 24, 2015, an employee of
the City, Rushton, struck and killed pedestrian Ralph Bingener.
It is also undisputed that when the accident occurred, Rushton
was commuting to work in his own car and on his usual morning
route and was not performing work for the City while driving to
work. The parties also agree that, on the day of the accident,
Rushton was driving to his workplace at the Hyperion Treatment
Plant, where he worked in a water quality lab checking water for
semi-volatile organic compounds. A self-described “lab rat,”
Rushton’s job did not require him to be in the field or use his
personal automobile for his employment. The City moved for
summary judgment on these uncontroverted facts, arguing that
because the “going and coming rule” applied, without exception,
to this case, the City was not liable under respondeat superior for
the accident.
       Plaintiffs countered that there was a dispute of fact
regarding an exception to the going and coming rule–the “work-
spawned risk” exception. This exception applies when an
employee endangers other with a risk arising from or related to
work. For example, where an employee gets into a car accident
on the way home after drinking alcohol at work with his
supervisor’s permission, courts have carved out an exception to
the going and coming rule. Where, as in such a case, there is a


                                 2
sufficient link between the drinking and the accidents as to make
the collisions neither starling nor unusual, the courts have found
that the risk was one that may be regarded as typical of or
broadly incidental to the employer’s enterprise. (Childers v.
Shasta Livestock Auction Yard, Inc. (1987) 190 Cal.App.3d 792;
see Bussard v. Minimed, Inc. (2003) 105 Cal.App.4th 798, 803,
807 (Bussard) [employee’s exposure to pesticides during work
hours impaired her ability to safely drive home and, therefore,
the going and coming rule did not apply].)
       Applying this exception to the facts here, plaintiffs argued
that the City knew about Rushton’s health conditions and how it
might impair his ability to drive because certain medical
expenses were being paid for Rushton’s back injury through the
City’s worker compensation program. According to plaintiffs,
Rushton’s then-present injuries and medications rendered him
unfit to drive. Despite this knowledge, the City allowed Rushton
to return to work prematurely without placing any restrictions on
his driving. Given that Rushton was impaired and unfit to drive,
his driving to work was a foreseeable risk of the City’s activities.
The City, should, therefore, be held liable for “a negligently
created work-spawned risk endangering the public.”
       We affirm the judgment. At summary judgment, plaintiffs
failed to adduce sufficient facts upon which they could establish a
triable issue of fact on their claim that Rushton’s accident was a
foreseeable event arising from or relating to his employment for
the City at its water plant laboratory. Nothing about the
enterprise for which the City employed Rushton made his hitting
a pedestrian while commuting a foreseeable risk of this
enterprise. The “going and coming rule” was created for precisely




                                 3
the situation presented here and its application in this case
precludes plaintiffs’ claim of vicarious liability against the City.

                     BACKGROUND FACTS

      The parties do not dispute the essential facts in this case.
All agree that Rushton was employed as a chemist at the
Hyperion Treatment Plant for over twenty years. Rushton
performed his analysis of water samples only at the lab and
rarely left the plant on work-related travel. Rushton’s job did not
require him to work in the field and his employer did not require
him to use his car at work. Rushton was not compensated for his
commute time.
      At the time of the accident, Rushton was 68 years old and
receiving treatment for chronic health problems, including
neuropathy in his feet, a tremor and occasional seizures, which
caused him to have a few seconds of a déjà vu feeling and a “kick
in the pit of my stomach.” These conditions, including his seizure
condition, were well controlled and Rushton testified at his
deposition that “[his neurologic condition was] the best I’ve ever
been right now.” Rushton used a walking stick at the workplace
and took various medications.1
      Rushton testified that none of these conditions or
medications interfered with his ability to operate a vehicle.
Rushton also stated that his health conditions did not contribute
to the accident in any way. Rushton testified that he felt great on
the morning of the accident and hadn’t taken any medications.2

1
 Rushton’s supervisor never saw Rushton taking medications during
the work day.
2
 The facts cited by the Bingeners to controvert Rushton’s own
statement regarding when he took his medications and whether he


                                  4
       In December 2014, Rushton had a fall at work when he
bent over while carrying paperwork. Rushton was out of work
due to that injury until the week of February 2, 2015. Rushton
was diagnosed with lower back strain and was prescribed
medication. Rushton’s physicians cleared him to return to work
on February 2, 2015 with restrictions on standing and/or walking
for more than four hours a day, and stooping, bending, kneeling
and squatting. The doctors placed no restriction on Rushton
driving. On February 20, 2015, Rushton received an epidural
injection of steroids to relieve his back pain.
       On the day of the accident, Rushton awoke feeling fine. He
had not ingested alcohol the evening before and was not under
the influence of any drugs or medications at the time of the
accident.
       As he was driving through dark streets in Culver City
going about 40 to 50 mph, he struck Ralph Bingener, a
pedestrian.3 Rushton testified that he had no warning before
striking Bingener, who was stepping off the curb into a
crosswalk. After hitting Bingener, Rushton was in shock.
Rushton stopped his car and went to attend Bingener. Moments
later a number of nurses pulled up to the scene and started


was under the influence of those medicines at the time of the accident
do not support a reasonable inference to the contrary. Conjecture that
some combination of prescription medicine and underlying illness
impaired an employee’s ability to drive, where some of those
medications were prescribed due to a work-related injury sustained
months before, does not create a triable issue of fact about the issue
presented here—whether the employer should be vicariously liable for
the accident.
3 Rushton estimated his speed at 35 to 40 mph, but crash data showed
that his car was going approximately 48.5 mph at the point of impact.


                                  5
emergency treatment. The police and paramedics arrived shortly
thereafter, and later Rushton went with the police to the station.
Rushton did not appear to the officers to be under the influence of
any alcohol or drug at the time of the accident and, when PAS
tested, Rushton had no alcohol in his system. Officers at the
scene described Rushton as fully cooperative. Rushton was not
charged criminally as a result of the accident. Later
investigation disclosed that the streetlight on the corner that
Bingener stepped off from was inoperable.
      The Department of Motor Vehicles later suspended
Rushton’s driver’s license. At that point in time, Rushton was
not driving his car. Rushton later had his driving privileges
reinstated and the City returned his parking pass to him.
      Ralph Bingener’s surviving brothers filed a timely
Government Claims Act claim against the City, then filed a
complaint alleging that the City was vicariously liable for
                                       4
Rushton’s negligence in the collision. The City moved for
                                                           5
summary judgment based on the going and coming rule. The
trial court agreed that the rule applied to Rushton, who was
engaged in his regular commute at the time of the accident. The
trial court entered judgment against the Bingeners on April 18,
        6
2018.
        The Bingeners timely appealed.


4
    Rushton was later added by a doe amendment.
5
  Rushton did not join in that motion. Rushton was represented by
independent counsel and not defended by the City.
6
 The Bingeners moved for a new trial, which was denied by the trial
court.


                                  6
                         DISCUSSION

I.    Standard of Review
      On appeal from the grant of summary judgment, we review
the record de novo and apply the same standard as did the trial
court. We identify the issues framed by the pleadings and then
determine whether “ ‘ “the moving party’s showing has
established facts which justify a judgment in moving party’s
favor” ’ ” on those issues. (Stokes v. Baker (2019) 35 Cal.App.5th
946, 956.) If the moving party has made that showing, we then
determine whether the opposition has demonstrated “ ‘ “the
existence of a triable, material factual issue.” ’ ” (Ibid.) In
making that determination, we keep in mind that the party
opposing the motion is entitled to have any reasonable inferences
from the facts drawn in its favor. (American Alternative Ins.
Corp. v. Superior Court (2006) 135 Cal.App.4th 1239, 1245.)

II.   The City is not vicariously liable.

       Under the doctrine of respondeat superior, an employer is
liable for the torts of its employees committed within the scope of
their employment. (Ducey v. Argo Sales Co. (1979) 25 Cal.3d 707,
721.) The burden of proof is on the plaintiff to demonstrate that
the negligent act was committed within the scope of employment.
(Ibid.) But where, as here, the facts relating to the applicability
of the doctrine are undisputed, the question of its application is
one of law. (Hinman v. Westinghouse Elec. Co. (1970) 2 Cal.3d
956, 962; Jeewarat v. Warner Bros. Entertainment Inc. (2009) 177
Cal.App.4th 427, 434.)
       The doctrine is based upon a policy that the employer
should be responsible for losses caused by the torts of its
employees that occur in the conduct of the employer’s enterprise.


                                 7
(Depew v. Crocodile Enterprises, Inc. (1998) 63 Cal.App.4th 480,
486.) An employee is generally not considered to be acting within
the scope of his employment when going to or coming from his or
her regular place of work. (Ibid.; see also Bussard, supra, 105
Cal.App.4th at p. 804.)
       This rule—the “ ‘going-and-coming rule’ ”—has several
exceptions, which are generally understood to encompass those
situations in which the employer derives some benefit from the
employee’s trip. (Depew v. Crocodile Enterprises, Inc., supra, 63
Cal.App.4th at p. 486.) In such instances, the employer’s
responsibility extends beyond his “actual or possible control of
the servant to injuries which are within the ‘risks of the
enterprise.’ ” (Hinman v. Westinghouse, supra, 2 Cal.3d at
p. 960.) For example, where the employer has instructed an
employee to use his car to recruit other workers and is furnishing
the gas for the trip, the risk of the enterprise surely encompasses
the employee’s travel to and from the remote work site. (Harvey
v. D & L Constr. Co. (1967) 251 Cal.App.2d 48, 51 [special errand
exception].) Similarly, where the employee’s work involves both
office work and field work, it is immaterial whether he is driving
to his office or driving to other locations. (Richards v.
Metropolitan Life Ins. Co. (1941) 19 Cal.2d 236, 243 [automobile
use as a condition of employment].)
       One other exception to the “ ‘ “going-and-coming rule” ’ ”
arises where an employee endangers others with a risk inherent
in or created by the enterprise. In such a situation, the risk is
foreseeable and the employee’s conduct is not “so unusual or
startling” that it would seem unfair to include the loss in the
employer’s costs of doing business. (Bussard, supra,105
Cal.App.4th at p. 804; Farmers Ins. Group v. County of Santa



                                 8
Clara (1995) 11 Cal.4th 992, 1004.) For example, in Bussard, the
employer’s improper use of pesticides at the work place, which
sickened and rendered an employee unable to drive safely, caused
that employee to rear-end another car on her way home.
(Bussard, at p. 801.) In such an instance, conditions for the
occurrence of the accident had been created within the scope of
the driver’s employment. (Ibid. at pp. 805–806.) By contrast,
“ ‘[i]f the employee’s tort is personal in nature, mere presence at
the place of employment and attendance to occupational duties
prior or subsequent to the offense will not give rise to a cause of
action against the employer … .’ ” (Farmers, at p. 1005.)
         The uncontroverted facts presented in this case support the
                                               7
application of the going and coming rule. There is no dispute
that when Rushton collided with Bingener, Rushton was on his
normal morning commute to the Hyperion Treatment Plant.
Rushton’s work did not require him to use his personal car in the
performance of his job, nor was he performing a special errand for
his employer. Rushton rarely left his laboratory and, when he


7
  Although the Bingeners challenge the trial court’s evidentiary
rulings, we find no abuse of discretion in these rulings. (Sargon
Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th
747, 773.) A court abuses its discretion if its ruling is “ ‘so irrational or
arbitrary that no reasonable person could agree with it.’ ” (Ibid.) It is
the appellant’s burden to show the trial court abused its discretion.
(Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939,
957.) And, although a court is required to construe plaintiffs’
admissible evidence liberally, it is not required to allow otherwise
inadmissible evidence to be used in opposition to a motion for summary
judgment. (Sanchez v. Kern Emergency Medical Transportation Corp.
(2017) 8 Cal.App.5th 146, 155–156; see Shiffer v. CBS Corp. (2015) 240
Cal.App.4th 246, 252–253 [an expert’s opinion is only as good as the
facts that it is based on].)


                                     9
did, he did not use his personal automobile. Rushton was not
conducting any work for the City on the way to work nor did his
employer require him to do so.
       Further, this accident was not caused by anything inherent
in or created by the enterprise. Nothing about Rushton's job
performing tests on water samples made his hitting a pedestrian
during his ordinary commute a foreseeable risk of the City’s
business. Rushton’s job was performed in a laboratory; he never
went out in the field and, like his co-workers, he walked to other
buildings in the plant if he needed to. Although the job
description required a driver’s license, Rushton’s unit did not
have a mandatory driving requirement. Rushton never, in fact,
drove his personal car for work, nor did he run work-related
errands on his way to or from the plant. Occasionally over the
course of his twenty years of service, he rode in a City vehicle to a
meeting, but Rushton had no interest in or involvement in
anything other than his work testing water samples at the
laboratory. The City’s water-testing enterprise did not obtain
anything from Rushton’s commute and he was doing nothing for
the City in the course of his commute on the day of the accident.
(See Newland v. County of Los Angeles (2018) 24 Cal.App.5th
676, 685–686 [employer must have either required or benefited
extraordinarily from the employee’s commute on the day of the
accident].)
       Plaintiffs’ contention that the going and coming rule does
not apply and that the accident was a foreseeable consequence of
Rushton’s job-related back injury two months earlier is
unsupported by the factual record. Plaintiffs allege, without a
scintilla of evidence, that the City knew or ought to have known
that Rushton’s back strain and the medications he had been



                                 10
prescribed rendered him a dangerous commuter. Rushton’s own
testimony refutes plaintiffs’ contention that he was impaired on
the morning of the accident. He testified to feeling great on the
morning of the accident and denied ever taking any medications
that morning. Rushton stated that his medical conditions—some
of which dated back to his childhood—did not limit or impair his
ability to drive—a conclusion reached also by his treating
physician who cleared him to return to work without limitations
           8
on driving. Plaintiffs contend that nevertheless, the City was
obligated to review Rushton’s worker’s compensation file and
reach a decision that Rushton could not return to work because
he could not safely drive a vehicle. That argument ignores the
undisputed fact that it was a physician, and not the City, who
approved Rushton to return to work and did so without limitation
on his driving. Plaintiffs’ attenuated and unsupported set of
assumptions takes the accident at issue here well beyond a
foreseeable event, as is required to hold an employer vicariously
liable. (Tognazzini v. San Luis Coastal Unified School Dist.
(2001) 86 Cal.App.4th 1053, 1059–1060.) Summary judgment for
the City was, therefore, properly granted.




8
  And, Rushton’s treating neurologist admitted that he never
instructed his patient not to drive.


                                 11
                            DISPOSITION

      The judgment is affirmed. The City shall recover its
costs on appeal.




                                                           *
                                               JONES, J.


We concur:


             LAVIN, Acting P. J.


             EGERTON, J.




*
 Judge of the Los Angeles Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.



                                   12
Filed 1/9/20

                       CERTIFIED FOR PUBLICATION

   IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                        SECOND APPELLATE DISTRICT
                              DIVISION THREE

 MARK BINGENER et al.,                  B291112

         Plaintiffs and Appellants,     Los Angeles County
                                        Super. Ct. No. BC604284
         v.
                                        Order Certifying Opinion for
 CITY OF LOS ANGELES et al.,
                                        Publication
      Defendants and                    [NO CHANGE IN
 Respondents.                           JUDGMENT]



BY THE COURT: *
The Association of Southern California Defense Counsel has requested
that our opinion in the above-entitled matter, filed December 16, 2019,
be certified for publication. It appears that our opinion meets the
standards set forth in California Rules of Court, rule 8.1105(c). The
opinion is ordered published in the Official Reports.




* LAVIN,       Acting P. J.     EGERTON, J.                JONES, J.**




** Judge of the Los Angeles Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
