 Filed 6/18/2018
                   CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                   SECOND APPELLATE DISTRICT

                         DIVISION FIVE


 JAKE NEWLAND,                           B277638

        Plaintiff and Respondent,        (Los Angeles County
                                         Super. Ct. No. BC514945)
        v.

 COUNTY OF LOS ANGELES,

        Defendant and Appellant.


      APPEAL from a judgment and order of the Superior
 Court of Los Angeles County, Patrick T. Madden, Judge.
 Reversed with directions.
      Greines, Martin, Stein & Richland, Timothy T. Coates,
 Edward L. Xanders, Feris M. Greenberger; Collins Collins
 Muir & Stewart, Brian K. Stewart, Joshua A. Cohen,
 Christian E. Foy Nagy, for Defendant and Appellant.
      Law Offices of Martin N. Buchanan and Martin N.
 Buchanan; Panish, Shea & Boyle, Rahul Ravipudi, Thomas
 A. Schultz, Erika Contreras, for Plaintiff and Respondent.
                 __________________________
       An employee driving home from work on a day that he
did not have any job duties outside of the office injured a
third party. After a jury trial, the trial court imposed
liability on the employer based on evidence that the
employee regularly used his personal vehicle for work on
other days. The employer contends there was no substantial
evidence to support finding that the employee was driving in
the course and scope of his employment at the time of the
accident, because he was not required to use a personal
vehicle that day.
       We agree that an employee must be driving a personal
vehicle in the course and scope of his employment at the
time of the accident to extend vicarious liability to an
employer. Liability may be imposed on an employer for an
employee’s tortious conduct while driving to or from work, if
at the time of the accident, the employee’s use of a personal
vehicle was required by the employer or otherwise provided
a benefit to the employer. The evidence showed that the
employee in this case was driving a routine commute to and
from work on the day of the accident. He was not required to
use his personal vehicle for work purposes that day, and his
employer did not otherwise benefit from his use of a personal
vehicle that day. The employer is entitled to judgment as a
matter of law. We reverse the judgment with directions.




                             2
                           FACTS

       Defendant and appellant County of Los Angeles hired
Donald Prigo as a deputy public defender in the early 1980s.
In February 2013, Prigo lived in Long Beach and performed
felony trial work from his office in the Norwalk Courthouse.
The County does not expressly require deputy public
defenders to provide vehicles to carry out their job duties.
The minimum requirements of Prigo’s job class specification
were to have a valid California class C driver’s license or the
ability to use alternative transportation when needed to
carry out job-related essential functions.
       As a trial lawyer, however, Prigo needed to use his
personal vehicle for several job-related tasks. He regularly
made appearances in branch courts in Bellflower, Whittier,
Downey, and downtown Los Angeles for arraignments,
preliminary hearings, and other proceedings. He drove his
car from home or from his office at the Norwalk Courthouse
to attend proceedings at the branch courts, which was the
most frequent use of his car for work purposes. When Prigo
received an assignment at a branch court, he had three to
ten days advance notice of the first hearing date in the
branch court. If he could not make it to an appearance at a
branch court, he could call an attorney assigned to that
branch court to have the matter continued. Trials were
rarely assigned to branch courts and Prigo had not had a
trial in another courthouse since 2006, but he drove to the
branch court if he had a trial there. It was not practical or




                               3
reasonable to use public transportation to get from the
Norwalk Courthouse to the other courts that he needed to
attend.
       Prigo also used his car to drive to different jails as a
regular part of his job. Eighty-five percent of his clients
were in custody in downtown Los Angeles or in Castaic.
Prigo needed to speak with them in person to establish trust
and represent them properly. Public defenders can use
videoconferencing from their offices to interview clients in
custody, which Prigo made use of, but it was not intended to
replace personal contact and a detailed interview with the
client. There are interview rooms available at the Norwalk
Courthouse to meet with clients. When Prigo visited a client
in jail, he typically left his office in Norwalk in the early
afternoon after the morning court calendar. He often drove
directly home. No trains, buses, or public transportation go
to the county jails within a reasonable amount of time.
There was no practical alternative to driving his car.
       Throughout his career as a trial lawyer, Prigo also
drove his car to view crime scenes. Visiting a crime scene
helped him to understand the testimony and examine the
witnesses in a case. He would visit a crime scene when he
was preparing for a motion or a trial. He sometimes went to
a crime scene on the way to or from work, but he usually
went during the work day. Typically, he left his office in
Norwalk in the afternoon to visit a crime scene. He might
return to the office if the location was close, but he often
drove directly home.




                               4
       On occasion, Prigo drove his car to the coroner’s office
or to meet witnesses. Witnesses normally came to Prigo’s
office at the courthouse to speak with him. On a few
occasions, he had to drive to visit an expert witness, because
the equipment used by the expert was located at his or her
place of business. Public defenders use their judgment in
retaining, meeting, and preparing expert witnesses. Most
meetings with a client’s family and friends to gather
mitigation information for sentencing took place at Prigo’s
office, but there were a few times that he drove his car to
people’s homes because they could not travel. He could also
apply for a paralegal’s assistance in gathering mitigation
evidence.
       Prigo had the authority and discretion to determine
when he needed to drive to a location for work. His
supervisor was aware that he used his car to do his job,
including going to the jails. The public defender’s office
reimburses attorneys for mileage when they travel between
courthouses, but not for commuting to and from their own
office. Prigo had submitted two or three requests for mileage
reimbursement in his entire career. He used his car as a
regular part of his job. If a supervisor wanted to send him
outside of the Norwalk Courthouse, his car was available to
him at work every day that he drove. Public defenders never
had emergency work situations that required the use of a car
to leave the office right away.
       Prigo could not realistically do his job in Los Angeles
County without a vehicle. Prigo’s work as a trial lawyer was




                              5
cyclical and his workload varied, so there were months when
he had an increased need to use his car for work and weeks
when he did not need to use his car for work at all. He used
his car an average of eight to ten days per month for work
purposes. Prigo could use public transportation to commute
on the days that he did not have work-related tasks outside
the office. Prigo spent 95 percent of his time in the Norwalk
Courthouse. Public transportation was never sufficient to do
the job completely. He still needed to use his car to do his
job, such as when he planned to visit a crime scene or client
in jail.
       Prigo first used public transportation for his commute
when he lived in Rancho Cucamonga and was assigned to
the public defender’s office in downtown Los Angeles in
1985. He took public transportation to downtown Los
Angeles from 1985 to 1996, including after he became a
Public Defender Grade IV in 1988. He had a heavy caseload
of felony trials and was qualified to work on special
circumstances cases. The number of days per month that he
took the bus varied. He knew in advance when he would
need to use his car for work, so he drove to work on those
days. He drove to work if he was in trial, because he might
need to stay late at the office to do legal research or go
somewhere to look at something that came up during trial.
When he was in trial, he might work 16-hour days. Public
defenders were also expected to attend educational meetings
held downtown on Wednesday nights, so he often drove to




                              6
work on those days to socialize after the meeting without
missing the last bus.
       Prigo was living in Pasadena when he was assigned to
the Norwalk Courthouse in 2006. He took a Metro rail line
from Pasadena and other public transportation to reach the
Norwalk Courthouse. He did not take public transportation
every day, but it was a good option. Prigo still needed to use
his car to perform tasks outside the Norwalk Courthouse.
He knew in advance if he needed his car for work on a
particular day. If he was going to another location, such as a
crime scene, branch court, or jail, he would use his car to
commute to work. He used the Metro system to commute
until he moved to Lakewood.
       In 2008, Prigo loaned his car to his son for a semester
of school. A public defender named Mark DiSabatino gave
Prigo a ride to and from work for two or three months. His
brother-in-law lent him a truck on days that Prigo needed a
vehicle. It did not occur often, but Prigo would drive his
brother-in-law to work, then drive himself to the Norwalk
Courthouse. In February 2013, at the time of the accident,
Prigo lived in Long Beach. There was no practical public
transportation from Long Beach to Norwalk. If there had
been reasonable public transportation to get from Long
Beach to Norwalk, he would have used it.
       Prigo turned in a mileage request claim to his
supervisor Anthony Patalano seeking reimbursement for six
jail visits in May 2012 in a potential death penalty case.
After Prigo resolved the potential death penalty case in




                              7
August 2012, his practice slowed down and he did not leave
the office for work purposes other than appearances in
branch courts. He may have visited the jails twice between
August 2012 and the date of the accident in February 2013.
He went to crime scenes a few times between October 2012
and the accident in February 2013. He did not have any
other special circumstances cases prior to the accident.
       On February 28, 2013, Prigo had six cases on calendar
in the Norwalk Courthouse, including two pre-trial
conferences that were noted on his personal calendar. Prigo
was preparing for trial, since both cases were set to begin
trial on March 19, 2013, but cases often settled at pre-trial
proceedings. The first matter was scheduled for another pre-
trial conference a few days later. One of the cases on
calendar was a probation violation. In another, the client
paid an amount to participate in a diversion program and
the case was dismissed. Prigo’s clients did not appear in the
last two matters that he had on calendar. Prigo was
working on serious felony cases, but he did not have any
capital or special circumstances cases. He was not in the
trial rotation. He did not use his car to drive anywhere
during the work day.
       Prigo left in his car after work to go home. A post office
was located approximately an eighth of a mile, or a very long
city block, from the Norwalk Courthouse. Prigo was turning
in to the post office to mail his rent check when he hit a car
driven by Kevin Vargas. Vargas was forced off the road and
injured plaintiff and respondent pedestrian Jake Newland.




                               8
     Prigo returned to work within a few days of the
accident, but his car was not driveable. DiSabatino drove
Prigo to and from work while his car was repaired. Prigo
purchased a new car a few months later.

             PROCEDURAL BACKGROUND

      On August 12, 2013, Newland filed the operative
complaint for negligence against Prigo, the County, and
Vargas. The trial court bifurcated the issues for trial. After
jury selection, an eight-day trial was held to determine
whether Prigo was expressly or impliedly required to use his
personal vehicle for work purposes.
      The trial court denied the County’s request for jury
instructions on vicarious liability, including CACI No. 3700
(introduction to vicarious liability), CACI No. 3701 (essential
elements of tort liability against a principal), and CACI No.
3703 (essential elements of tort liability against a principal
when employment relationship is not in dispute). Each of
the rejected instructions required the jury to find that Prigo
was acting in the course and scope of his employment when
the accident occurred. The County objected to the trial
court’s denial of these instructions.
      The County had also requested standard jury
instructions based on CACI No. 3723 (substantial deviation)
and CACI No. 3725 (the vehicle use exception to the going-
and-coming rule). The trial court ruled that a combined
instruction based on CACI Nos. 3723 and 3725 would be




                               9
given, followed by a special instruction proposed by
Newland. The County objected to the combined instruction
and Newland’s special instruction. At the end of the
presentation of evidence, the trial court granted Newland’s
motion for a directed verdict on the defense of substantial
deviation, and the related instruction on substantial
deviation was deleted.
       The sole instruction provided to the jury on vicarious
liability was in the language of CACI No. 3725 as follows:
“In general, an employee is not acting within the scope of
employment while traveling to and from the workplace[.]
But if an employer requires an employee to drive to and from
the workplace so that the vehicle is available for the
employer’s business, then the drive to and from work is
within the scope of employment. The employer’s
requirement may be either express or implied. [¶] . . . [¶]
The drive to and from work may also be within the scope of
employment if the use of the employee’s vehicle provides
some direct or incidental benefit to the employer. There may
be a benefit to the employer if: [¶] One, the employee has
agreed to make the vehicle available as an accommodation to
the employer, and, [¶] two, the employer has reasonably
come to rely on the vehicle’s use and expects the employee to
make it available regularly. [¶] The employee’s agreement
may be either express or implied.”
       The County proposed several special verdict forms,
including one which asked, “When the accident occurred on
February 28, 2013, was Defendant Donald Prigo acting




                             10
within the course and scope of his employment?” The trial
court refused to give any of the County’s special verdict
forms. The court stated that whether Prigo was acting
within the course and scope of his employment at the time
the accident occurred was not an issue in the case. Instead,
the court selected the special verdict form supplied by
Newland. Newland’s form asked simply, “Was Donald Prigo
expressly or impliedly required to use his personal vehicle to
perform his job for Defendant County of Los Angeles?” If the
jury answered no, the form asked, “Did the County of Los
Angeles directly or indirectly benefit from Donald Prigo’s use
of his personal vehicle?” The County objected to Newland’s
special verdict form because it did not include the relevant
time frame or ask the jury to determine whether Prigo
required his car as of February 28, 2013.
      The jury answered the first question on the verdict
form in the affirmative: it found that Prigo was required to
use his personal vehicle to perform his job for the County. In
the second phase of the trial, the jury found that Prigo’s
negligence caused the accident and awarded damages to
Newland totaling $13,935,548. On June 23, 2016, the trial
court entered judgment in favor of Newland and against the
County in the amount of $13,935,548.
      The County filed a motion for judgment
notwithstanding the verdict on several grounds, including
that there was insufficient evidence to support the vehicle
use exception to the going and coming rule, and the special
verdict form in the first phase of trial failed to dispose of all




                               11
issues in controversy. The County also filed a motion for a
new trial. The trial court denied both motions. The County
filed a timely notice of appeal from the judgment and the
postjudgment order denying judgment notwithstanding the
verdict. The County filed a separate notice of appeal from a
postjudgment order awarding costs to Newland. The appeals
have been consolidated for all purposes.

                       DISCUSSION

Standard of Review

      “‘The trial court’s power to grant a motion for judgment
notwithstanding the verdict is the same as its power to grant
a directed verdict. (Code Civ. Proc., § 629.) “A motion for
judgment notwithstanding the verdict may be granted only if
it appears from the evidence, viewed in the light most
favorable to the party securing the verdict, that there is no
substantial evidence in support.” [Citations.] On appeal
from the denial of a motion for judgment notwithstanding
the verdict, we determine whether there is any substantial
evidence, contradicted or uncontradicted, supporting the
jury’s verdict. [Citations.] If there is, we must affirm the
denial of the motion. [Citations.]’ (Wolf v. Walt Disney
Pictures & Television (2008) 162 Cal.App.4th 1107, 1138;
accord, Sweatman v. Department of Veterans Affairs (2001)
25 Cal.4th 62, 68 [‘As in the trial court, the standard of
review is whether any substantial evidence—contradicted or




                             12
uncontradicted—supports the jury’s conclusion.’].) For
evidence to be substantial, it must be of ponderable legal
significance, reasonable, credible, and of solid value. (Kuhn
v. Department of General Services (1994) 22 Cal.App.4th
1627, 1633.) The ‘focus is on the quality, not the quantity, of
the evidence.’ (Toyota Motor Sales U.S.A., Inc. v. Superior
Court (1990) 220 Cal.App.3d 864, 871.) We resolve all
evidentiary conflicts and indulge all reasonable inferences in
support of the judgment. (Leung v. Verdugo Hills Hospital
(2012) 55 Cal.4th 291, 308.)” (Jorge v. Culinary Institute of
America (2016) 3 Cal.App.5th 382, 396 (Jorge).)

Vicarious Liability for Accident During Commute

      The County contends there is no evidence that Prigo
was driving his car within the course and scope of his
employment when the accident occurred. We agree. In
order for Prigo’s commute to come within the course and
scope of his employment, the County must have required
him to drive his car or otherwise benefitted from Prigo
having his car available for work purposes that day. There
is no evidence that Prigo was commuting in his car at the
time of the injury because the County required him to have
his car available, or that his commute provided any other
benefit to the County that day. The evidence is insufficient
to support the judgment.




                              13
     A. Rationale for Respondeat Superior

      Under the doctrine of respondeat superior, an employer
is vicariously liable for an employee’s tortious conduct within
the scope of employment. (Jorge, supra, 3 Cal.App.5th at
p. 396.) The employer is liable not because it controls the
employee’s actions or has any fault, “‘but because the
employer’s enterprise creates inevitable risks as a part of
doing business. [Citations.]’ [Citation.]” (Halliburton
Energy Services, Inc. v. Department of Transportation (2013)
220 Cal.App.4th 87, 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.”’
(Hinman v. Westinghouse Elec. Co. (1970) 2 Cal.3d 956, 959–
960 (Hinman), quoting Prosser, Law of Torts (3d ed. 1964)
p. 471; accord, Lisa M. v. Henry Mayo Newhall Memorial
Hospital (1995) 12 Cal.4th 291, 304 [policy goals of the
doctrine are ‘preventing future injuries, assuring
compensation to victims, and spreading the losses caused by




                              14
an enterprise equitably’]; Farmers Ins. Group v. County of
Santa Clara (1995) 11 Cal.4th 992, 1004 [‘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’].)” (Jorge, supra, 3
Cal.App.5th at pp. 396–397.)

     B. No Liability for Commute

      An employee’s commute to and from the workplace is
generally not considered to be within the course and scope of
employment. “While an employer’s vicarious liability for the
torts of its employees is well established, courts have
recognized that an employee’s commute ‘to and from work is
ordinarily considered outside the scope of employment so
that the employer is not liable for [the employee’s] torts’
committed during the employee’s commute. (Hinman,
supra, 2 Cal.3d at p. 961; Anderson v. Pacific Gas & Electric
Co. (1993) 14 Cal.App.4th 254, 258 (Anderson) [employee is
not acting within the scope of employment when going to or
coming from his or her place of work]; Tryer v. Ojai Valley
School (1992) 9 Cal.App.4th 1476, 1481 (Tryer) [employer is
generally not responsible for torts committed by an employee
who is going to or coming from work].) This rule, commonly
referred to as the ‘going and coming rule,’ is grounded in the
notion that ‘“the employment relationship is ‘suspended’
from the time the employee leaves until he returns [citation],




                              15
or that in commuting he is not rendering service to his
employer.”’ (Tryer, supra, 9 Cal.App.4th at p. 1481, quoting
Hinman, supra, 2 Cal.3d at p. 961; Baptist v. Robinson
(2006) 143 Cal.App.4th 151, 162 [employee is not ordinarily
rendering a service to the employer while commuting];
Blackman v. Great American First Savings Bank (1991) 233
Cal.App.3d 598, 602 (Blackman) [‘employment relationship
is suspended from the time the employee leaves his place of
work until he returns’].)” (Jorge, supra, 3 Cal.App.5th at
p. 397.)

     C. Required Vehicle Exception

      There are exceptions to the going and coming rule
which hold an employer liable for an employee’s conduct
during his or her commute. (Hinman, supra, 2 Cal.3d at
p. 962.) Exceptions are made “where the trip involves an
incidental benefit to the employer, not common to commute
trips by ordinary members of the work force.” (Id. at p. 962;
Hinojosa v. Workmen’s Comp. Appeals Bd. (1972) 8 Cal.3d
150, 157 (Hinojosa).) “[T]his means not just any trivial
benefit to the employer, but a benefit ‘sufficient enough to
justify making the employer responsible for the risks
inherent in the travel.’ (Blackman, supra, [223 Cal.App.3d]
at p. 604.)” (Jorge, supra, 3 Cal.App.5th at pp. 397–398.)
      The California Supreme Court recognized the required
vehicle exception to the coming and going rule in Smith v.
Workmen’s Comp. App. Bd. (1968) 69 Cal.2d 814 (Smith),




                             16
holding that an employee is acting in the course of
employment during his or her commute when the employer
requires the employee to bring a car to work. The employee
in Smith was a county social worker who was killed in a car
accident while driving to work. (Id. at p. 815.) The evidence
showed that the social worker was required to have a car
available for client visits on field days and for emergency
visits on regular office days. (Id. at p. 816.) If an employee’s
car was unavailable, the county would provide a car on
request, but the social worker had never requested the use of
a county car. (Ibid.) This evidence compelled finding that
the employer required the employee to bring his car to work
on the morning of the accident. (Ibid.)
      The Smith court noted that an employee “‘is
performing service growing out of and incidental to his
employment’ (Lab. Code, § 3600)” under the worker’s
compensation statutes when the employee “engages in
conduct reasonably directed toward the fulfillment of his
employer’s requirements, performed for the benefit and
advantage of the employer.” (Smith, supra, 69 Cal.3d at
pp. 819–820.) The court concluded that a requirement to
provide a car for work purposes limited the going and coming
exclusion. (Id. at p. 820.) The employment relationship
resumes “when the employer requires that the employee
engage in conduct, whether prior to the workday or after it,
whether on the premises of that employer or away from
them, that inures to the benefit of the employer.” (Ibid.)
“[T]he employer instructed [the employee] to have his car




                              17
available on the job every morning. In driving the car to and
from work, [the employee] carried out this order in a
reasonable and normal manner, acquiesced in by his
employer. Accordingly, even though [the employee’s]
employment contract said nothing about the manner of his
transit to the job, he nevertheless acted within the course of
his employment in thus furnishing his own car.” (Id. at
p. 821.)
      Similarly in Hinojosa, supra, 8 Cal.3d 150, the
Supreme Court found the going and coming rule did not bar
recovery, because the employer required employees to
provide vehicles for transportation at work every day.
Hinojosa worked as a farm laborer. (Id. at p. 152.) When
employees finished work at one ranch, the foreman assigned
the workers to another ranch operated by the same
employer. On any particular day, Hinojosa did not know in
which field he would be working or the duration of the work
to be done on that field. (Ibid.) Because of the nature of the
work, employees were required to provide their own vehicles
for transportation between fields during the work day.
(Ibid.) Hinojosa did not own a car, so he paid another
worker for transportation. (Id. at pp. 152–153.) He was
injured in an accident on the commute home. (Id. at p. 153.)
      The Supreme Court distilled a formula from the case
law to determine whether the coming and going rule applied
in worker’s compensation cases. Injuries were non-
compensable when they occurred “during a local commute
enroute to a fixed place of business at fixed hours in the




                             18
absence of special or extraordinary circumstances. The
decisions have thereby excluded the ordinary, local commute
that marks the daily transit of the mass of workers to and
from their jobs; the employment, there, plays no special role
in the requisites of portage except the normal need of the
presence of the person for the performance of the work.”
(Hinojosa, supra, 8 Cal.3d at p. 157.) In contrast were
“extraordinary transits that vary from the norm because the
employer requires a special, different transit, means of
transit, or use of a car, for some particular reason of his own.
When the employer gains that kind of particular advantage,
the job does more than call for routine transport to it; it
plays a different role, bestowing a special benefit upon the
employer by reason of the extraordinary circumstances. The
employer’s special request, his imposition of an unusual
condition, removes the transit from the employee’s choice or
convenience and place it within the ambit of the employer’s
choice or convenience, restoring the employer-employee
relationship.” (Ibid.) In cases where an employee was
expressly or impliedly required to bring a means of
transportation to the job, “‘the obligations of the job reach
out beyond the premises, making the vehicle a mandatory
part of the employment environment, and compel the
employee to submit to the hazards associated with private
motor travel, which otherwise he would have the option of
avoiding. Since this is the theory, it is immaterial whether
the employee is compensated for the expenses of the trip.’ (1




                              19
Larson, The Law of Workmen’s Compensation [(1968)] §
17.50.)” (Id. at p. 160.)
      Based on the facts of Hinojosa, the court held: “[T]he
instant case clearly differs from the normal routine
commute; it is instead the extraordinary situation in which
the job is structured, and dependent upon, transportation
from one place of work to another so that the use of an
instrument of such transportation is a requisite of
employment. The employer could have provided, at his own
expense, company vehicles to transport the workers between
his various farms during their workday. His failure to do so
made it necessary for the workers to supply their own on-
the-job transportation. Thus [Hinojosa] made use of the car
from his residence to the first ranch, and thereafter from
ranch to ranch and finally from ranch to his residence
because the car was an essential requirement of the job; the
presence of the car was requisite to performance of the job;
the worker was impliedly required to bring the car to the job
and to take it from the job. Thus the injury suffered in the
car was covered by the Workmen’s Compensation Act.”
(Hinojosa, supra, 8 Cal.3d at p. 162.) Hinojosa’s injuries as a
passenger in the vehicle were compensable because he was
required to supply a vehicle for work, and employees who are
injured in the same car accident under identical employment
circumstances are not treated differently based on the
ownership of the car. (Id. at p. 162.)
      The test for liability under worker’s compensation law,
which requires finding “at the time of the injury, the




                              20
employee is performing service growing out of and incidental
to his or her employment and is acting within the course of
his or her employment” (Lab. Code, § 3600, subd. (a)(2)), is
not identical to the test for liability under the respondeat
superior doctrine based on “scope of employment.” (Hinman,
supra, 2 Cal.3d at p. 962, fn. 3.) The tests are closely
related, because they both consider the benefit to the
employer and the allocation of risk for industrial injuries.
(Ibid.) Worker’s compensation provisions are construed
liberally, however, to protect employees, and courts have
been generous in finding injured workers entitled to benefits.
(Jorge, supra, 3 Cal.App.5th at pp. 398–399, fn. 7.) Although
California courts look to worker’s compensation cases for
guidance, the scope of employment for imposing vicarious
liability is more restrictive in tort claims based on the
differing policy considerations. (Ibid.)
       Courts have applied the required vehicle exception to
hold an employer vicariously liable when the facts show an
employee was required to bring a car to work every day or on
the day of the accident. In Hinman, supra, 2 Cal.3d 956, an
employee’s contract required the employer to pay “carfare”
and travel time under certain circumstances, depending on
the location of the job site. (Id. at p. 959.) The employee
injured a third party on his way home from a job site which
qualified for the payment of travel time and expenses. The
Hinman court reasoned that paying travel time and
expenses allowed the employer to locate its enterprise at a
remote place and enlarge the available labor market, but it




                             21
also increased the risk of injury during transportation. (Id.
at p. 962.) The court concluded that when travel time is part
of the working day by contract, “the employer should be
treated as such during the travel time, and it follows that so
long as the employee is using the time for the designated
purpose, to return home, the doctrine of respondeat superior
is applicable.” (Ibid.) Since the employee injured the third
party during paid travel time, the employer was vicariously
liable as a matter of law. (Id. at p. 963.)
       The required vehicle exception was similarly applied in
Huntsinger v. Glass Containers Corp. (1972) 22 Cal.App.3d
803 (Huntsinger), when an employee was required to bring a
car to work every day to have it available for work purposes.
Service representative Edward Fell had daily contact with
customers “not only by telephone but in person at the
customers’ plants as the need arose. Thus, Fell performed
his duties both in the company office and in the field. Many
of his field trips were unplanned and unpredicted. He was
not required to punch a timeclock at the office, nor was he
required to sign in or out.” (Id. at p. 806.) On the day of the
accident, Fell drove his car from his office to a customer’s
plant and back to the office. While driving home from the
office later that day, he killed a motorcyclist. The court
reasoned that “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




                              22
employer].” (Id. at p. 810.) When an employer requires an
employee to have a personal vehicle available at work,
however, the employee’s commute to and from the workplace
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.) The appellate court concluded
there was substantial evidence from which a jury could find
that “Fell was acting within the scope of his employment at
the time of the accident.” (Ibid.)
       The required vehicle exception may apply when an
employee is required to bring a car daily to have it available
for work, even if the employee rarely has to use the car for
work purposes. In Lobo v. Tamco (2010) 182 Cal.App.4th
297 (Lobo I), the appellate court reversed a summary
judgment in favor of employer Tamco, concluding there was
a triable issue of material fact as to whether the required
vehicle exception applied. Tamco employee Luis Duay Del
Rosario was commuting home when he killed a deputy
sheriff. (Id. at pp. 299, 301.) The plaintiff presented
evidence that Del Rosario’s job description required him to
answer customer complaints, and if necessary, to visit




                              23
customer sites. (Id. at pp. 301–302.) Tamco did not provide
a company car. Del Rosario usually rode in a sales
engineer’s car to a customer site, but he occasionally used
his own car if no sales engineer was available. (Id. at
p. 302.) During the 16 years that he worked at Tamco, he
used his own car to visit customer sites no more than 10
times and had been reimbursed for expenses. (Ibid.) Del
Rosario was on his way home when he left Tamco on the day
of the accident, but he would have used his car to visit a
customer site if he had been asked. (Ibid.)
       The Lobo I court found the evidence “clearly sufficient
to support the conclusion that Tamco requires Del Rosario to
make his car available whenever it is necessary for him to
visit customer sites and that Tamco derives a benefit from
the availability of Del Rosario’s car.” (Lobo I, supra, 182
Cal.App.4th at p. 302.) The frequency of the employee’s use
of the personal vehicle was not determinative. Instead, the
issue depended on “whether the employer expressly or
implicitly required the employee to make the vehicle
available or has reasonably come to expect that the vehicle
will be available for work purposes and whether the
employer derived a benefit from the availability of the
vehicle. [Citations.] If the employer requires or reasonably
relies upon the employee to make his personal vehicle
available to use for the employer’s benefit and the employer
derives a benefit from the availability of the vehicle, the fact
that the employer only rarely makes use of the employee’s
personal vehicle should not, in and of itself, defeat the




                              24
plaintiff’s case. Here, [Del Rosario’s supervisor] testified
that Tamco required Del Rosario to make his car available
rather than providing him with a company car in part
because the need arose infrequently. Thus, the availability
of Del Rosario’s car provided Tamco with both the benefit of
insuring that Del Rosario could respond promptly to
customer complaints even if no sales engineer was available
to drive him to the customer’s site and the benefit of not
having to provide him with a company car. Based on this
evidence, a reasonable trier of fact could find that the
‘required-vehicle’ exception does apply.” (Id. at p. 303.) 1
      Courts have declined to apply the required vehicle
exception when evidence showed the employee was not
required to drive a personal vehicle to work on the date of
the accident, even when the employee had used the vehicle
for work purposes at other times. In Ducey v. Argo Sales Co.


      1 We note that on remand, the jury found the required
vehicle exception did not apply. (Lobo v. Tamco (2014) 230
Cal.App.4th 438, 440–441 (Lobo II).) Del Rosario’s
supervisor had stated in deposition testimony that Del
Rosario was required to make his personal car available to
visit customer sites whenever the need arose, which was
sufficient to create a triable issue of fact in Lobo I. (Id. at p.
444.) At trial, the supervisor stated his deposition testimony
was in error. Tamco did not rely on Del Rosario making his
car available and did not receive any benefit if Del Rosario
used his own car to visit a customer’s site. (Id. at pp. 444–
445.) The Lobo II court found substantial evidence
supported the judgment in favor of Tamco. (Id. at p. 441.)



                               25
(1979) 25 Cal.3d 707, the Supreme Court found employee
Dolores Glass was not required to use her personal vehicle
as a condition of her employment, and therefore, was not
acting in the course and scope of her employment at the time
that she was involved in a car accident. (Id. at p. 721.)
Glass cleaned model homes in San Jose, Alameda, and
Union City. She drove from her home to the model homes,
which were up to 45 miles away, several days per week.
Glass was returning home from cleaning a model home when
she was involved in an accident. The Supreme Court
concluded, “The evidence does not establish as a matter of
law that the company required Glass, as a condition of her
employment, to commute to work in her personal car. The
job was not one that embraced driving, and Glass was not
required to use her vehicle for field work. Although there
was evidence that she occasionally ran errands for her
employer, these trips were not conclusively shown to be a
condition of her employment. The jury could reasonably
have believed that Glass was acting as a volunteer in
running occasional errands for replacement items. She was
not engaged in such an errand at the time of the accident.
There is no evidence that Glass was required to go from
location to location during the day. [Citation.]” (Id. at
p. 723.)
      In Jorge, supra, 3 Cal.App.5th 382, the appellate court
refused to impose liability on an employer for an accident
that occurred during an employee’s commute home from his
regular work duties, even though there was evidence that




                             26
the employee frequently drove his personal vehicle in
connection with extraordinary work duties. In the trial
court, the jury found employee Almir Da Fonseca to be
acting in the scope of his employment for the Culinary
Institute of America when he struck pedestrian Jorge on his
drive home. (Id. at p. 387.) In reversing the judgment, the
appellate court acknowledged extensive evidence that Da
Fonseca drove his personal vehicle to and from off-campus
commitments, but the court declined to hold the Institute
vicariously liable for an accident that occurred when he was
simply commuting from his regular work site. (Id. at
pp. 402–403.) Da Fonseca’s primary job duty as a chef
instructor for the Institute was to teach courses. (Id. at
p. 388.) He drove his personal car to work at the Institute,
but he could have carpooled, gotten a ride, or taken public
transportation. (Id. at p. 389.) In addition to regular
classes, Da Fonseca taught specialized classes. Chef
instructors could assist with events, conferences, and
retreats. The instructors who could travel, including Da
Fonseca, provided consulting services. They provided
consultation services at the Institute or the client’s business.
In addition, Da Fonseca conducted research in Brazil for
several weeks. The Institute paid his salary while he was in
Brazil and promoted his findings.
      The Institute paid for Da Fonseca’s travel time when a
trip involved a substantial amount of travel, and paid for
mileage when he drove to work locations away from the
Institute. (Jorge, supra, 3 Cal.App.5th at p. 392.) For




                              27
consulting locally, a chef instructor could rent a car, take
public transportation, carpool, or take a personal vehicle.
(Id. at p. 392–393.) If the travel required taking a flight, Da
Fonseca drove to the airport or got a ride from his wife. Da
Fonseca used his car on many occasions to get to jobs away
from the Institute. (Id. at p. 393.) The Institute also
provided jackets and paid for dry cleaning at a particular dry
cleaner. (Id. at 395.) On the day of the accident in Jorge, Da
Fonseca drove to the Institute, taught classes, and drove
home with a few dirty chef’s jackets and a set of knives in
the car. (Id. at p. 388.) He did not intend to go to the dry
cleaner that day.
       Based on this evidence, the Jorge court found that “Da
Fonseca did not need a car for any purpose on the days he
fulfilled his regular chef instructor duties at the St. Helena
campus. He testified that he commuted from home to the
campus and back in his car as a matter of convenience, but
he could have taken public transportation, carpooled, or been
dropped off.” (Jorge, supra, 3 Cal.App.5th at p. 402.)
“[E]ven if there were substantial evidence that Da Fonseca
was impliedly required to drive his car to off-campus events
or that he agreed to make his car available for off-campus
events as an accommodation to the Culinary Institute and
the Institute came to rely on it—which there was not—there
is no authority holding that such evidence took Da Fonseca’s
ordinary commute to and from the St. Helena campus
outside the going and coming rule. In short, the accident
here occurred when Da Fonseca was simply commuting




                              28
home from a day of performing his regular duties as a chef
instructor at the St. Helena campus, a commute that lacked
any imaginable connection to the performance of his duties
at the Culinary Institute.” (Id. at p. 406.)

     D. Application of the Vehicle Use Exception

      In order to apply the vehicle use exception to the
coming and going rule in this case, Newland had to show
that (1) the County required Prigo to drive his car to and
from the workplace at the time of the accident, or (2) Prigo’s
use of his car provided a benefit to the County at the time of
the accident. A benefit to the County may be found if at the
time of the accident, Prigo agreed to make his car available,
the County reasonably came to rely on Prigo’s use of the car,
and the County expected Prigo to make it available. There
was no evidence in this case to support finding a job
requirement or a benefit to the County on the day of the
accident.
      First, there was no evidence to support that Prigo was
required to drive to or from work on the date of the accident.
Prigo was required to drive his car to perform several of his
job duties outside the office, including appearances in branch
courts, visits to the jails, viewing crime scenes and meeting
witnesses. However, he did not have to perform these duties
every day. He knew in advance when he had tasks outside
the workplace for which he needed his car. When he had
reasonable alternatives to driving and did not have tasks




                             29
scheduled outside the workplace, he used public
transportation to commute to work. If reasonable public
transportation had been available from his home in Long
Beach, he would have used it. He did not have any job
duties outside the workplace scheduled for the day of the
accident, and he did not use his car for work purposes that
day. Prigo never had emergency situations that required the
use of his car during the day for work, except when he was in
trial. In short, he did not need his car for work purposes on
the day of the accident. Prigo was driving a normal, routine
commute at the time of the accident from a fixed place of
business to home. (Hinojosa, supra, 8 Cal.3d at p. 157.) He
could have carpooled, been dropped off, or taken public
transportation if it were available. Prigo’s conduct in driving
to and from work on the day of the accident was not
“reasonably directed toward the fulfillment of his employer’s
requirements” or “performed for the benefit and advantage
of the employer.” (Smith, supra, 69 Cal.2d at pp. 819–820.)
It was not an extraordinary situation in which his work
depended upon transportation from one place of work to
another. There was no evidence to support finding that the
County directly or indirectly required Prigo to drive to work
on the day of the accident in order to have his car available
for the County’s business.
      Second, Newland contends that the case should be
remanded to consider whether Prigo’s use of his car provided
a direct or incidental benefit to the County. There is no
evidence, however, to support finding that the County




                              30
received any benefit from Prigo’s use of his car at the time of
the accident. A trier of fact could certainly conclude from the
evidence that when Prigo had job duties outside the
workplace, he made his car available as an accommodation
to the County, and the County reasonably came to rely on
Prigo’s use of his vehicle to complete those tasks. There was
no evidence, however, that the County relied on or expected
Prigo to make his car available on days that he did not have
outside tasks. In fact, the evidence was that Prigo
commuted to work for years by bus, Metro train, and carpool
on days that he did not have any duties outside the
workplace. When Prigo drove his car, it was available to him
for work purposes. But Prigo had discretion to determine
when he needed to drive to a location for work, and he knew
in advance when he needed a car for work purposes. He did
not have emergencies that required him to immediately
perform job duties outside the workplace, and there was no
evidence that he had ever been directed to immediately
perform a task. There is no evidence to support finding that
the County received a benefit from the availability of Prigo’s
car on the day of the accident. Since Prigo was not required
to drive to work on the day of the accident, and his use of his
car that day did not otherwise provide a benefit to the
County, there was no evidence to support finding that Prigo
was driving in the course and scope of his employment when
he injured Newland.
      The facts of Smith, Hinojosa, Hinman, Huntsinger, and
Lobo I are distinguishable, because in each of those cases,




                              31
the employee was required to drive to work on the day of the
accident or was providing a benefit to the employer every
time that the employee had a car available at work. In
contrast, Prigo was not required to drive his car every day or
on the day of the accident, and his use of his car that day did
not provide a benefit to the County.
      Our conclusion that an employee must be driving in
the course and scope of employment at the time of the
accident for the vehicle use exception to apply is supported
by the language of the worker’s compensation statute from
which it was derived in Smith. Labor Code section 3600,
subdivision (a)(1) provides that an employee must have been
acting within the course of his or her employment “at the
time of the injury” to be entitled to compensation. CACI
instructions on vicarious liability and the tort liability of a
principal also require finding an employee was acting in the
course and scope of employment when the accident occurred.
(CACI No. 3700 [introduction to vicarious liability]; CACI
No. 3701 [essential elements of tort liability against a
principal]; CACI No. 3703 [essential elements of tort liability
against a principal when employment relationship is not in
dispute].)
      The policy factors underlying the doctrine of
respondeat superior do not dictate its application in this
case. “Those policy factors are ‘(1) to prevent recurrence of
the tortious conduct; (2) to give greater assurance of
compensation for the victim; and (3) to ensure that the
victim’s losses will be equitably borne by those who benefit




                              32
from the enterprise that gave rise to the injury.’ [Citation.]
These factors do not constitute the legal standard for
respondeat superior liability, but they provide guidance to
the courts in considering whether the doctrine should be
applied. [Citation.]” (Kephart v. Genuity, Inc. (2006) 136
Cal.App.4th 280, 296 (Kephart).)
      Holding the County liable on the facts of this case
would not prevent recurrence of the tortious conduct. For
example, if the County provided vehicles for public defenders
to use during the workday for their duties outside the office,
it would not reduce the occurrence of this type of accident,
because Prigo did not require a vehicle at work on the day of
the accident, he did not have emergencies at work that
required the use of a vehicle immediately, and his commute
that day was not related to his work duties outside the office.
He drove to the Norwalk Courthouse on the day of the
accident because he did not have any reasonable public
transportation options from Long Beach.
      “From the perspective of a plaintiff, imposition of
vicarious liability would always serve the policy of giving
greater assurance of compensation to the victim. But
respondeat superior liability is not ‘merely a legal artifice
invoked to reach a deep pocket or that it is based on an
elaborate theory of optimal resource allocation.’ (Alma W. v.
Oakland Unified School Dist. (1981) 123 Cal.App.3d 133,
143–144.) The second and third policy factors are
inextricably bound together (Le Elder v. Rice (1994) 21
Cal.App.4th 1604, 1610; Alma W. v. Oakland Unified School




                              33
Dist., supra, 123 Cal.App.3d at pp. 143–144) and vicarious
liability is invoked to provide greater assurance of
compensation to victims in circumstances where it is
equitable to shift losses to the employer because the
employer benefits from the injury-producing activity and
such losses are, as a practical matter, sure to occur from the
conduct of the enterprise. (Le Elder v. Rice, supra, 21
Cal.App.4th at p. 1610; Alma W. v. Oakland Unified School
Dist., supra, 123 Cal.App.3d at p. 144.)” (Kephart, supra,
136 Cal.App.4th at p. 297.)
       Prigo’s accident during his commute on a day that he
did not need his car for work purposes was no more likely to
occur from the County’s enterprise than other fixed places of
business in the conduct of their enterprise. The County did
not derive any benefit from Prigo’s conduct at the time of the
accident. Public policy does not support imposing liability on
the County for the tortious conduct of an employee who was
not driving in the course and scope of his employment at the
time of the accident.
       There was no evidence that Prigo required a vehicle for
work on the day of the accident, and no evidence that the
County received any direct or incidental benefit from Prigo
driving to and from work that day. It was error to deny the
motion for judgment notwithstanding the verdict, and the
judgment must be reversed.




                             34
                        DISPOSITION

      The judgment and the order denying the County’s
motion for judgment notwithstanding the verdict are
reversed. The trial court is directed to enter a new and
different order granting the motion for judgment
notwithstanding the verdict. Respondent County of Los
Angeles is awarded its costs on appeal.



            KRIEGLER, Acting P.J.

I concur:




            KIM, J. ∗




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



                             35
Jake Newland v. County of Los Angeles
B277638



BAKER, J., Dissenting



      Sufficiently regular use of a personal vehicle for travel
to perform employment duties, where it confers a substantial
incidental benefit on an employer, can properly support
application of the vehicle-use exception even if the vehicle
was not required for such duties “at the time of the
accident,” as the majority today holds. (Lobo v. Tamco
(2010) 182 Cal.App.4th 297, 302-303 [evidence that “[d]uring
2005, the year of the accident, [the employee] visited
customer sites [using his own car only] five times or fewer” is
sufficient to support a conclusion the vehicle use exception
applies even though the employee’s accident occurred during
his commute home on a day the vehicle was not needed for
the employer]; see also Ducey v. Argo Sales Co. (1979) 25
Cal.3d 707, 723 [mere fact that employee was not engaged in
an errand for the employer on the day of the accident not
treated as dispositive; Court further relies on facts showing
the employee’s “occasional[ ]” errands for her employer “were
not conclusively shown to be a condition of her employment”
to hold the vehicle use exception inapplicable]; Zhu v.
Workers’ Comp. Appeals Bd. (2017) 12 Cal.App.5th 1031,
1041 [“[employee’s] transit bestowed a direct benefit on
[employer], as [employer] knew that [employee] had to
transit between homes to service more than one home a
day”]; compare, e.g., Pierson v. Helmerich & Payne Internat.
Drilling Co. (2016) 4 Cal.App.5th 608, 629 [“Hinojosa [v.
Workmen’s Comp. Appeals Bd. (1972) 8 Cal.3d 150] . . . is
factually distinguishable because the moves from field to
field occurred regularly during the course of the workday. In
this case, the moves were not regular and, as a result, [the
employee] did not regularly make his vehicle available to
transport crew members to a new drilling site”].)
       Even assuming the majority’s analysis of the express or
implied requirement justification for applying the vehicle-
use exception is sound on the facts here, it is still the case
that the jury never reached the question of vicarious liability
on a direct or incidental benefit theory of liability. (See, e.g.,
CACI No. 3725 [“The drive to and from work may also be
within the scope of employment if the use of the employee’s
vehicle provides some direct or incidental benefit to the
employer”], italics added.) There is substantial evidence
that would support (but certainly not compel) liability on
that theory, and I therefore dissent from the holding that
directs the trial court to grant judgment notwithstanding the
verdict for the County of Los Angeles.




                           BAKER, J.




                                2
