Filed 9/12/13 Wang v. Core General Contractor CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT

DONGSHENG WANG et al.,                                               H038335
                                                                    (Santa Clara County
         Plaintiffs and Appellants,                                  Super. Ct. No. CV166834)

         v.

CORE GENERAL CONTRACTOR, INC.,

         Defendant and Respondent.



                                              I. INTRODUCTION
         Plaintiffs Dongsheng Wang and Xingdi Meng sued defendant Core General
Contractor, Inc. (Core) after its employee, Mitulkumar K. Patel, allegedly struck Wang in
a crosswalk while Patel was driving to work. Core moved for summary judgment on the
ground that it was not vicariously liable for the conduct of its employee, because Patel
was driving his personal vehicle to work at the time of the accident. The trial court
granted the motion. Plaintiffs filed a motion for a new trial, which the court denied.
         On appeal, plaintiffs contend that the trial court erred in granting Core’s motion
for summary judgment and in denying their motion for a new trial because triable issues
of material fact exist regarding the employee’s use of his vehicle for work.
         For reasons that we will explain, we will affirm the judgment in Core’s favor.
                                    II. BACKGROUND
       A. The Accident
       Patel was the driver of the vehicle that hit Wang in January 2010. At the time of
the accident, Patel was employed by Core and was driving from home to work in his
wife’s car.
       B. The Complaint
       Wang and Meng filed a complaint against Patel and others. Plaintiffs alleged that
Patel drove and struck Wang who was walking in a crosswalk. Plaintiffs further alleged
that Patel was an employee of the other defendants and was at all times acting within the
course and scope of his employment. In the first cause of action, Wang alleged that he
suffered personal injuries as a result of the negligence of defendants. In the second cause
of action, Wang’s wife Meng sought damages for loss of consortium. Plaintiffs later filed
an amendment to the complaint substituting Core for one of the Doe defendants.1
       C. Core’s Motion for Summary Judgment
       Core filed a motion for summary judgment, arguing that “Wang’s claims against
Core necessarily fail as a matter of law.” Core contended that an employer is liable for
the acts of an employee only if the employee is acting within the course and scope of
employment, and that an employee is not acting with that scope when going to or coming
from work. Core argued that Patel “was merely on his way to the office” when the
accident occurred. Core further contended that the “ ‘required vehicle exception’ ” to the
“ ‘going and coming’ rule” did not apply, and that Patel’s use of his car did not confer an
incidental benefit on the company. Core argued that it did not require Patel to use his car,
that it was his “own choice to use his vehicle for work purposes,” and that he could have
used the company vehicle, a courier service, or public transportation. Core also argued


       1
           Of the defendants named in plaintiffs’ complaint, only Core is a party to this
appeal.

                                               2
that its payment of Patel’s gas expenses on a few occasions was an insufficient basis to
invoke the “required vehicle exception.”
       In opposition to the motion, plaintiffs argued that they had submitted sufficient
evidence to create triable issues of fact that precluded summary judgment. Plaintiffs
contended that Patel needed his car for work, that his job description required him to
drive to the building department, that the company vehicle was not always available to
him, and that Core benefitted from Patel using his own vehicle rather than public
transportation.
       Core reiterated in its reply brief that Patel was commuting to work at the time of
the accident, was not engaged in any work activities at that time, was not required to have
a personal vehicle at work, and had the option of using the company vehicle. Core
contended that summary judgment was warranted based on the absence of any triable
issue of fact.
       D. The Trial Court’s Order Granting the Motion for Summary Judgment
       After a hearing on Core’s motion, the trial court took the matter under submission
and subsequently filed a written order granting the motion for summary judgment. In the
order, the court determined that Core had met “its initial burden to demonstrate that . . . it
is not vicariously liable for Patel’s acts during his commute because the undisputed facts
demonstrate that Patel was not acting within the scope of employment at the time of the
subject incident and that it did not derive an incidental benefit from Patel’s trip that was
‘sufficient enough to justify making the employer responsible for the risks inherent in the
travel.’ ” The court further determined that plaintiffs did “not present facts that
demonstrate that any incidental benefit to Core was ‘sufficient enough to justify making
the employer responsible for the risks inherent in the travel,’ ” and that any conflicting
inferences to be drawn from plaintiff’s evidence did “not present a triable issue of




                                              3
material fact as to Core’s vicarious liability.” Judgment was subsequently entered in
favor of Core.2
       E. Plaintiffs’ Motion for a New Trial
       Plaintiffs filed a motion for a new trial, contending that the trial court made an
error in law by granting Core’s motion for summary judgment. Plaintiffs argued that in
granting Core’s motion, the court used an incorrect legal standard with respect to the
“vehicle use exception,” did not properly apply the exception to the evidence, and
erroneously failed to find triable issues of fact. In opposition, Core contended that
plaintiffs’ new trial motion “simply rehashe[d]” the arguments plaintiffs had made in
opposition to the summary judgment motion, and that the court did not commit an error
in law in determining that summary judgment was warranted. After a hearing, the trial
court denied plaintiffs’ motion for a new trial.
       Plaintiffs filed a timely notice of appeal from the judgment.
                                    III. DISCUSSION
       A. The Motion for Summary Judgment
       On appeal, plaintiffs contend that the trial court erred in granting Core’s motion
for summary judgment because triable issues of fact exist concerning whether Core was
vicariously liable under the doctrine of respondeat superior for Patel’s conduct in injuring
Wang. Before addressing plaintiffs’ contentions, we will outline the applicable standard

       2
          As we have noted, in the complaint Wang alleged a claim for personal injury
against Core, and Meng alleged a claim for loss of consortium. Core’s motion for
summary judgment clearly challenged Wang’s personal injury claim. Although it is not
entirely clear from Core’s motion, or from the judgment itself, whether the claims of both
plaintiffs were encompassed in the motion and judgment, plaintiffs have made arguments
in the trial court and in this court based on the assumption that the motion and judgment
applied to both of them. Further, plaintiffs recognize that a spouse’s loss of consortium
claim is dependent on the existence of a cause of action for tortious injury to the other
spouse. (LeFiell Manufacturing Co. v. Superior Court (2012) 55 Cal.4th 275, 285
(LeFiell).) Under the circumstances of this case, we will construe the judgment as
against both plaintiffs.

                                              4
of review and set forth the general principles concerning an employer’s liability for an
employee’s tort.
              1. The Standard of Review
       The standard of review for an order granting a motion for summary judgment is
de novo. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860 (Aguilar).) The
trial court’s stated reasons for granting summary judgment are not binding on the
reviewing court, “which reviews the trial court’s ruling, not its rationale. [Citation.]”
(Ramalingam v. Thompson (2007) 151 Cal.App.4th 491, 498.)
       In performing our independent review, we apply the same three-step process as the
trial court. “Because summary judgment is defined by the material allegations in the
pleadings, we first look to the pleadings to identify the elements of the causes of action
for which relief is sought.” (Baptist v. Robinson (2006) 143 Cal.App.4th 151, 159
(Baptist).)
       “We then examine the moving party’s motion, including the evidence offered in
support of the motion.” (Baptist, supra, 143 Cal.App.4th at p. 159.) A defendant moving
for summary judgment has the initial burden of showing that a cause of action lacks merit
because one or more elements of the cause of action cannot be established or there is a
complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (o); Aguilar,
supra, 25 Cal.4th at p. 850.) If the defendant fails to make this initial showing, it is
unnecessary to examine the plaintiff’s opposing evidence and the motion must be denied.
However, if the moving papers make a prima facie showing that justifies a judgment in
the defendant’s favor, the burden shifts to the plaintiff to make a prima facie showing of
the existence of a triable issue of material fact. (Code Civ. Proc., § 437c, subd. (p)(2);
Aguilar, supra, at p. 849.)
       In determining whether the parties have met their respective burdens, “the court
must ‘consider all of the evidence’ and ‘all’ of the ‘inferences’ reasonably drawn
therefrom [citation], and must view such evidence [citations] and such inferences

                                              5
[citations], in the light most favorable to the opposing party.” (Aguilar, supra, 25 Cal.4th
at p. 843.) “There is a triable issue of material fact if, and only if, the evidence would
allow a reasonable trier of fact to find the underlying fact in favor of the party opposing
the motion in accordance with the applicable standard of proof.” (Id. at p. 850.) Thus, a
party “ ‘cannot avoid summary judgment by asserting facts based on mere speculation
and conjecture, but instead must produce admissible evidence raising a triable issue of
fact. [Citation.]’ [Citation.]” (Dollinger DeAnza Associates v. Chicago Title Ins. Co.
(2011) 199 Cal.App.4th 1132, 1144-1145 (Dollinger).)
              2. Employer Liability for the Tort of an Employee
       Under the doctrine of respondeat superior, “an employer is vicariously liable for
the torts of its employees committed within the scope of the employment. [Citation.]”
(Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 296.) The
policy goals of the doctrine are to “prevent[] future injuries, assur[e] compensation to
victims, and spread[] the losses caused by an enterprise equitably.” (Id. at p. 304; accord,
Farmers Ins. Group v. County of Santa Clara (1995) 11 Cal.4th 992, 1004 [“the central
justification for respondeat superior” is that “losses fairly attributable to an enterprise—
those which foreseeably result from the conduct of the enterprise—should be allocated to
the enterprise as a cost of doing business”].)
       “An employee is not considered to be acting within the scope of employment
when going to or coming from his or her place of work.” (Anderson v. Pacific Gas &
Electric Co. (1993) 14 Cal.App.4th 254, 258 (Anderson).) “This is based on the concept
that the employment relationship is suspended from the time the employee leaves work
until he or she returns, since the employee is not ordinarily rendering services to the
employer while traveling. [Citations.]” (Baptist, supra, 143 Cal.App.4th at p. 162.)
       “The courts, however, have recognized several exceptions to the ‘going and
coming’ rule.” (Ducey v. Argo Sales Co. (1979) 25 Cal.3d 707, 722 (Ducey).) In
particular, “exceptions will be made to the ‘going and coming’ rule where the trip

                                                 6
involves an incidental benefit to the employer, not common to commute trips by ordinary
members of the work force.” (Hinman v. Westinghouse Elec. Co. (1970) 2 Cal.3d 956,
962 (Hinman).) Among the types of cases in which this situation may arise are “cases
where the employer requires an employee to furnish a vehicle of transportation on the
job. [Citations.]” (Ducey, supra, at p. 723.) “Presumably, ordinary members of [an
employer’s] work force would not be required to use their vehicles in company business
and would not, therefore, be required to drive their vehicles to and from work. The
means by which they travel to and from work is a matter of complete indifference to [the
employer].” (Huntsinger v. Glass Containers Corp. (1972) 22 Cal.App.3d 803, 810
(Huntsinger).) In contrast, when an employer requires an employee to have a personal
vehicle available at work, the employee’s commute to and from work in that vehicle is
“incidentally beneficial to [the employer] in a manner not common to commute trips by
ordinary members of its work force. In other words, when a business enterprise requires
an employee to drive to and from its office in order to have his vehicle available for
company business during the day, 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.” (Ibid.)
       “Thus in Hinman, supra, it was held that the ‘going and coming’ rule did not
apply where the employer had made the commute part of the workday by compensating
the employee for his travel time. Similarly, in Huntsinger[, supra], an employee was
required to drive to and from work in order to have his vehicle available for company
business. The court held that these circumstances, if confirmed by a jury, would support
a finding that the employee’s commute conferred an incidental benefit on the employer; a
jury could therefore find that the commute fell within the scope of employment.” (Lazar
v. Thermal Equipment Corp. (1983) 148 Cal.App.3d 458, 462-463 (Lazar).) Likewise, in
Lazar, there was “uncontroverted evidence that [the employer] derived a special benefit

                                              7
from [the employee’s] commute. This commute was made in the company vehicle, and
an object of the commute was to transport the vehicle to [the employee’s] home where it
would be at the ready for business use in case [the employee] received emergency
after-hours calls for repair from the employer’s customers. In traveling to and from
work, [the employee] was thus acting in the scope of his employment, conferring a
tangible benefit on his employer” and the court thus determined that the “going and
coming” rule was inapplicable. (Id. at p. 463.)
       The employer’s requirement that an employee use a personal vehicle may be
express or implied. (Huntsinger, supra, 22 Cal.App.3d at p. 809; accord Hinojosa v.
Workmen’s Comp. Appeals Bd. (1972) 8 Cal.3d 150, 161 (Hinojosa); see Hartline v.
Kaiser Foundation Hospitals (2005) 132 Cal.App.4th 458, 468 [workers’ compensation
cases may be helpful in determining an employer’s vicarious liability for employee torts
although such cases are not controlling precedent when liability is based on respondeat
superior principles].) For example, the condition may be implied where the employee’s
duties require “the use of automobile transport” and the employer “furnished no such
private transport.” (Hinojosa, supra, at p. 161.)
       An employer’s payment of a travel allowance to an employee “does not
automatically make it vicariously liable” to a third party injured by a traveling employee.
(Anderson, supra, 14 Cal.App.4th at p. 260; see also id. at p. 261; Caldwell v. A.R.B., Inc.
(1986) 176 Cal.App.3d 1028, 1042 (Caldwell).)
       “Although it is generally a question of fact whether conduct is within the scope of
employment, if the facts are undisputed and no conflicting inferences are possible, the
question is one of law. [Citation.]” (Baptist, supra, 143 Cal.App.4th at p. 162.)
              3. Analysis
       To determine whether defendant Core met its initial burden to show that it was not
vicariously liable under the doctrine of respondeat superior for Patel’s conduct in



                                             8
connection with the accident, we first examine the facts presented in Core’s motion for
summary judgment.
       At the time of the accident, Patel was driving from home to work in his wife’s car.
Patel was employed by Core as a project manager and was responsible for the
supervision, planning, review, and oversight of construction projects. When a
construction project was ongoing, Patel reported directly to an office that was set up in a
trailer on the site of the project. When a construction project was not ongoing, he
reported to Core’s main office on South Market Street in San Jose. The accident
occurred while Patel was driving to the South Market Street office. Patel did not make
any business calls on his way to work on the morning of the accident, he did not have any
blueprints in the car, and he did not make any stops for work-related items.
       Core’s president stated in a declaration in support of the motion that Patel’s job
duties did not require him to use his personal vehicle for work-related purposes, Core did
not explicitly or implicitly require Patel or any of its employees to use their own vehicle
for work-related purposes, and Core did not rely on Patel’s use or access to his car as a
condition of employment. Patel similarly stated in a declaration in support of the motion,
“I did not use my own vehicle for work related purposes on a regular basis, nor did my
job at Core ever require me to. It is not a requirement of my employment at Core that I
use my own vehicle for work related purposes.”
       Core has a company vehicle for employees to use for work-related purposes, and
the vehicle was available for Patel’s use. Core also allows employees to use a courier
service to deliver or pick up documents from various government offices. Patel could
have also taken public transportation for work-related errands. Patel understood that he
could use the company vehicle, public transportation, or a courier service to accomplish
work errands. In the five years prior to the accident, Patel used the company credit card
for gas on four occasions when he chose to use his own vehicle for work. The amounts
ranged from $20 to approximately $64.

                                             9
       These facts show that when the accident occurred, Patel was going to his place of
work, during which time an employee generally “is not considered to be acting within the
scope of employment.” (Anderson, supra, 14 Cal.App.4th at p. 258.) The facts also
show that Patel was not required by Core to use a personal vehicle for work-related
duties, a requirement that might have made Patel’s commute to work incidentally
beneficial to Core and his use of a personal vehicle within the scope of employment.
(See Huntsinger, supra, 22 Cal.App.3d at p. 810.) Instead, Core had or allowed
alternative means by which Patel could complete work-related tasks, including by using a
company vehicle. (See Hinojosa, supra, 8 Cal.3d at pp. 161-162.) Further, Core’s
payment of Patel’s gas on a few occasions did “not automatically make it vicariously
liable” to plaintiffs. (Anderson, supra, at p. 260; see also id. at p. 261; Caldwell, supra,
176 Cal.App.3d at p. 1042.)
       Based on the facts presented in the motion for summary judgment, Core met its
burden of making a prima facie showing that Patel was not acting within the scope of his
employment at the time of the accident. “The burden then shifted to the plaintiffs to
show that a triable issue of one or more material facts existed as to their theory that
[Core] was vicariously liable under a theory of respondeat superior. [Citations.]”
(Baptist, supra, 143 Cal.App.4th at p. 163.)
       On appeal, plaintiffs contend that triable issues of fact exist regarding Patel’s use
of his vehicle for work. Plaintiffs assert that the evidence shows Patel was required to
travel as part of his employment duties, the company vehicle was not available to him,
and he needed his car for work.
       With respect to employment-required travel, plaintiffs produced the following
evidence. Patel was required to visit the local building department as needed, which was
on average once or twice during a construction project. It was important to have a good
relationship with the building department. Patel also traveled to Core’s South Market
Street office once or twice per month while he was stationed at a jobsite for a

                                               10
construction project. Further, during the preconstruction process of the project that he
was working on when the accident occurred, Patel drove to an owner, architect, and
contractor meeting every other Saturday from 2008 until around September 2009. It was
known that project managers were using their personal vehicles to facilitate getting their
jobs done.
       Regarding the circumstances surrounding the company vehicle, plaintiffs
produced the following evidence. Core’s employee manual does not identify the
transportation options for employees. Core has one company truck. Core does not
require employees to use the company truck. At times, there have been two construction
projects ongoing at the same time due to the “overlap” of projects. The company truck is
parked either at Core’s office when it is not in use, or at the jobsite where it may stay for
a period time. No one at the company was responsible for monitoring the use of the
truck, and there was no written document explaining how employees could obtain access
to it. The employees’ use of the truck was by a “fairly informal arrangement.” The
employees “figure out who has . . . the keys and go find the guy who has . . . the keys and
borrow the truck.” The president of Core did not know how a project manager would use
the truck if the project manager is at a jobsite and the truck is parked at the office. A
project manager may seek reimbursement from Core for using a personal vehicle to travel
to meetings and to the building department, and the reimbursement would be a cost of the
project.
       Regarding Patel’s need for the vehicle, plaintiffs provided the following evidence.
Patel testified at his deposition that he would drive his own car from a jobsite to the
office or the building department, and that he “need[ed]” his car for work. In a
subsequent declaration in opposition to the motion for summary judgment, Patel
explained that he “need[ed] it to respond to issues that came up at job sites and the
building department.” He further stated that he did not use public transportation to go to
the building department because taking his car “was much easier and more efficient.”

                                             11
Patel also stated that he never used the company truck because he “didn’t want to waste
[his] time calling around to find out where the truck was, or who had the key. The truck
was not easy to keep track of, because sometimes it was parked at the office, and
sometimes at a job site.” Patel further stated: “I felt it was much more efficient to take
my own car.” Regarding reimbursement, Patel stated that when his “driving was more
than just driving around town, [he] asked to use the company credit card to pay for gas,
and [Core] let [him] do that about 4 times before this accident.” Patel further stated that
he “had no problem with [Core] having the benefit of [his] car on the other occasions
when [he] traveled for work but did not request reimbursement.”
       We are not persuaded that plaintiffs’ showing is sufficient to create a triable issue
of material fact concerning Patel’s use of a personal vehicle for work and the doctrine of
respondeat superior.
       The evidence reflects that Patel needed transportation to carry out some of his job
responsibilities. It is undisputed, however, that Patel knew his transportation options
included the company truck, public transportation, and his own vehicle. There is no
evidence that Core expressly or implicitly required Patel to use his own vehicle. Rather,
Patel’s declaration in opposition to the motion for summary judgment makes clear that
his use of his own vehicle was based on personal preference and his belief that it was
“easier” and “more efficient” to use his own vehicle rather than other transportation
options. However, “[a] practice adopted for the mutual convenience of the employer and
the employee and left to the discretion of the employee . . . does not rise to the status of a
requirement of employment . . . .” (Hinson v. Workmen’s Comp. Appeals Bd. (1974)
42 Cal.App.3d 246, 250-251 (Hinson).)
       The facts relied on by plaintiffs concerning the company truck, including that
there was only one truck and that the arrangement for using it was relatively informal,
are insufficient to create a triable issue concerning its availability for use by Patel.
Plaintiffs offered no evidence regarding the number of employees for whose use the truck

                                              12
was to be available, or the frequency that others besides Patel might need to use it.
Plaintiffs also failed to provide any evidence that Patel had been unsuccessful in trying to
locate the vehicle on a given occasion, or that the truck was not available at a time when
Patel needed to travel for a work-related purpose. Moreover, even assuming that more
than one employee might need access to the vehicle at the same time due to, for example,
the existence of two ongoing construction projects, plaintiffs fail to offer any evidence
suggesting that the nature of any employee’s job duties precluded those employees from
coordinating with each other regarding the use of the truck.
       In arguing that Core implicitly required Patel to use his personal vehicle, plaintiffs
contend that “Patel’s job imposed similar driving requirements as those imposed” in
Huntsinger, supra, 22 Cal.App.3d 803, Richards v. Metropolitan Life Ins. Co. (1941) 19
Cal.2d 236 (Richards), Smith v. Workmen’s Comp. App. Bd. (1968) 69 Cal.2d 814
(Smith), and Lobo v. Tamco (2010) 182 Cal.App.4th 297 (Lobo), where the courts found
sufficient evidence that an employee was acting with the scope of employment. These
cases are distinguishable in material respects.
       In Huntsinger, for example, the employee was a technical service representative
who sometimes drove from home to meet with customers before going to the company
office, and sometimes met with customers on the way home from the office.
(Huntsinger, supra, 22 Cal.App.3d at p. 806; see also Richards, supra, 19 Cal.2d at
pp. 237, 241 [employee was an insurance salesman who met with policyholders or
prospective policyholders before going to the office].) In contrast, the evidence in the
present case established that Patel always reported first to a Core office, whether it was
located at the site of an ongoing construction project or at the South Market Street
location. (See Henderson v. Adia Services, Inc. (1986) 182 Cal.App.3d 1069, 1070, 1076
[although the employee reported to work at different jobsites, the employee was acting
outside the scope of employment when driving to work]; Ducey, supra, 25 Cal.3d at
pp. 714, 723 [evidence did not establish as a matter of law that the employee was

                                             13
required as a condition of employment to commute to work in a personal car, even
though the employee was required to clean model homes in various cities and regularly
drove many miles from her residence to such model homes several days a week].)
       Further, in Huntsinger, although a rental vehicle used by a coworker might have
been an alternative to the employee using his own vehicle, the rental vehicle was
apparently only available to the employee “at some times.” (Huntsinger, supra, 22
Cal.App.3d at p. 806.) In the present case, as we have explained, plaintiffs failed to
present evidence creating a triable issue as to whether the availability of the company
truck was such that Patel was implicitly required to use his own vehicle in order to fulfill
his job responsibilities.
       Smith is also distinguishable. In Smith, the employee was a social worker whose
“immediate supervisor” testified that “every worker was required to furnish his own car,
first, so that he could visit his clients on field days, and, second, so that he would be
available to see clients in cases of emergency on regular office days.” (Smith, supra,
69 Cal.2d at p. 816.) The court concluded that “the evidence compelled the conclusion
that [the] employer required [the employee] to bring his car to work on the morning of”
the accident. (Ibid.; see id. at p. 815.) In contrast, in the present case plaintiffs failed to
present any evidence that Core “instructed [Patel] to have his car available on the job
every morning.” (Id. at p. 821.)
       Lobo is likewise distinguishable. In Lobo, the employee’s duties included visits to
customer sites, no company car was provided for that purpose, and the employee’s
supervisor testified that the employee was “required to use his personal car to discharge
that duty.” (Lobo, supra, 182 Cal.App.4th at p. 302.) In the present case, there was
evidence that a company truck was available to Patel to discharge work-related duties
that entailed traveling, and there was no evidence that Patel was required to use his own
car.



                                               14
       Plaintiffs also argue that “Core came to rely upon Mr. Patel’s vehicle use, even
though it was not technically required.” In support of this argument, plaintiffs cite
County of Tulare v. Workers’ Comp. Appeals Bd. (1985) 170 Cal.App.3d 1247 (County of
Tulare), in which the appellate court affirmed a workers’ compensation award for an
employee’s injuries from a single-car accident while driving to work. (Id. at pp. 1249,
1253-1254.) We find plaintiffs’ reliance on County of Tulare unpersuasive.
       In County of Tulare, the employee’s job duties required the use of a vehicle
although she “was not expressly required to use her car for her job.” (County of Tulare,
supra, 170 Cal.App.3d at p. 1249.) She was reimbursed for mileage but did not always
submit a reimbursement request. (Ibid.) Two vehicles were assigned to the employee’s
department, but they were “unavailable” to her because they were usually being used by
others. (Ibid.) “The county car pool was also available, but a reservation had to be made
at least one day in advance in order to arrange the use of a pool car. The use of
employees’ cars to run errands, such as the ones [the employee] performed, was an
acceptable alternative to the use of pool cars and, in fact, was encouraged by the County
for short trips because it cost the County less than it would to use a pool car.” (Ibid.)
       The appellate court determined that “[t]his case falls within the class of cases . . .
where an employee uses his own vehicle ‘as an accommodation to his employer.’
[Citation.] Such a classification implies that the employer benefits from such usage, and
that while it is not a requirement of the job, it is an implicit expectation dictated by the
job itself. [Citation.] Once an employee has impliedly agreed to accommodate the
employer and use his own vehicle, the employer can reasonably come to rely upon its use
and expect the employee to make the vehicle available on a regular basis while still not
requiring it as a condition of employment. Added to this formulation is the
reimbursement of the employee for mileage on the job and the fact the use of the
employee’s vehicle is to the economic advantage of the employer.” (County of Tulare,
supra, 170 Cal.App.3d at p. 1253.) In distinguishing the case from Hinson, supra,

                                              15
42 Cal.App.3d 246, in which it was determined that the employee’s injury did not occur
in the course of employment, the appellate court in County of Tulare identified several
factors, including whether the employer “always had transportation readily available to
transport the employees,” (County of Tulare, supra, at p. 1253) whether the employer
“expected the employee to bring his own transportation,” (ibid.) whether the employee
was “compensated for use of his own vehicle,” (ibid.) and whether “it had been to the
employer’s economic advantage for the employee to use his own vehicle.” (Ibid.)
       In the present case, Core presented evidence that it had a company truck available
for Patel’s use. Plaintiffs failed to present evidence creating a triable issue concerning
the unavailability of that vehicle. There was also no evidence that Core expected Patel to
bring his own vehicle to work, nor evidence that it had been to Core’s economic
advantage for Patel to use his own vehicle rather than the company truck. In the latter
regard, plaintiffs offer only speculation regarding the extent to which Core supposedly
benefitted economically from Patel’s use of his own vehicle. For example, although
plaintiffs essentially contend that the costs incurred by Core for Patel’s use of his own
vehicle were minimal, plaintiffs failed to present any evidence regarding the costs
incurred by Core for an employee’s use of the company truck. (See Dollinger, supra,
199 Cal.App.4th at pp. 1144-1145 [a party “ ‘cannot avoid summary judgment by
asserting facts based on mere speculation and conjecture, but instead must produce
admissible evidence raising a triable issue of fact.’ ”].) Lastly, the sole fact that Patel
received reimbursement for gas on a few occasions did “not automatically make [Core]
vicariously liable” to plaintiffs. (Anderson, supra, 14 Cal.App.4th at p. 260; see also id.
at p. 261; Caldwell, supra, 176 Cal.App.3d at p. 1042.)
       In sum, plaintiffs failed to present evidence creating a triable issue of material fact
as to their theory that Core was vicariously liable under the doctrine of respondeat
superior for the alleged tortious injury that Patel caused plaintiff Wang, or for plaintiff



                                              16
Meng’s dependent claim for loss of consortium (see LeFiell, supra, 55 Cal.4th at p. 285).
Summary judgment in Core’s favor was therefore proper.
       B. The Motion for a New Trial
       “A motion for a new trial is appropriate following an order granting summary
judgment. [Citations.]” (Aguilar, supra, 25 Cal.4th at p. 858.) “[A]n order denying a
motion for new trial . . . may be reviewed . . . on appeal from the underlying judgment.
[Citation.]” (Walker v. Los Angeles County Metropolitan Transportation Authority
(2005) 35 Cal.4th 15, 19, italics omitted.)
       In challenging the trial court’s order denying their motion for a new trial, plaintiffs
on appeal do not advance any arguments beyond those already made in connection with
their contention that the summary judgment motion was incorrectly granted. As we have
determined that the trial court properly granted Core’s motion for summary judgment, we
also conclude that the trial court did not err in denying plaintiffs’ motion for a new trial.




                                              17
                                 IV. DISPOSITION
     The judgment is affirmed.




                                 ___________________________________________
                                 BAMATTRE-MANOUKIAN, J.




WE CONCUR:




________________________________
ELIA, ACTING P.J.




________________________________
MÁRQUEZ, J.




                                        18
