Filed 9/22/17; Certified for Publication 10/19/17 (order attached)




               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FIRST APPELLATE DISTRICT

                                               DIVISION FOUR


GISSELLE MORALES-SIMENTAL, a
Minor, etc., et al.,
         Plaintiffs and Appellants,                             A145865

v.                                                              (Alameda County
GENENTECH, INC.,                                                Super. Ct. No. HG13678136)
         Defendant and Respondent.


                                         I.       INTRODUCTION
         Plaintiffs and appellants Gisselle Morales-Simental, a minor, et al.1 appeal from
summary judgment granted in favor of defendant and respondent Genentech, Inc., one of
the defendants in this personal injury case. Morales-Simental alleges that she, with the
other named plaintiffs, suffered injuries and sustained damages as a result of the
negligence of defendant Vincent Inte Ong, an employee of Genentech, when Ong’s
vehicle collided with the vehicle in which the decedent was riding.
         The issue presented to us is whether Genentech’s employee, Ong, was acting
within the scope of his employment when he was involved in the automobile collision
that killed Marisol Morales. Genentech asserts the trial court correctly determined the


         1
         Gisselle Morales-Simental is the daughter of the deceased, Marisol Morales.
Plaintiffs and appellants Walter Morales, Sr. and Wilma Morales are the parents of the
deceased. Plaintiff and appellant Louis Deandre Gonzalez, Jr. is the fiancé of the
deceased.

                                                          1
“going and coming” rule precludes Genentech’s liability because Ong was driving to
Genentech for his own convenience and not at Genentech’s request or as part of his
regular duties. Plaintiffs argue Genentech is liable under the “special errand” exception
to the going and coming rule because at the time of the collision Ong was on a special
errand requested by Genentech or as part of his regular duties. Plaintiffs contend there
are triable issues of material fact as to whether Ong was on a special errand for
Genentech at the time of the accident, and there were issues of credibility precluding
summary judgment.
        We conclude plaintiffs have failed to establish triable issues of material fact
supporting the special errand exception sufficient to overcome summary judgment for
Genentech. Accordingly, we affirm.
               II.    FACTUAL AND PROCEDURAL BACKGROUND
        In the early morning of December 13, 2012, Ong’s vehicle collided with a vehicle
driven by Louis Deandre Gonzalez, Jr. A passenger in the Gonzalez vehicle, Marisol
Morales, was killed in the collision. The accident occurred at approximately 3:35 a.m. on
State Route 92 on the San Mateo Bridge. Ong owned the vehicle he was driving.
        California Highway Patrol Officer Michael Aquino responded to the scene of the
accident and served as the lead investigator. He interviewed Ong first on-scene and three
more times in the following days. During the first interview at the scene of the collision,
Ong said he was driving to Genentech in South San Francisco on his night off to collect
resumes for “some upcoming interviews he had.” Ong told Officer Aquino that he
worked the night shift at Genentech. Officer Aquino did not recall Ong mentioning any
other purpose for his trip. At about midnight, a few hours before the accident, Ong told
his friend Dan Alvarez that he was going to Genentech to do something important for
work.
        During his deposition, Ong gave various reasons for his trip to Genentech that
morning. Ong testified that he intended to stop at Genentech to retrieve old resumes he
had left in his mailbox and some personal belongings from his locker on his way to visit
his grandmother in hospice care in South San Francisco. He also said one purpose of the

                                              2
trip to Genentech was to pick up the resume of his unemployed friend, Dan Alvarez, who
had asked Ong if he could recommend Alvarez for a job. Ong’s testimony with respect
to Alvarez’s resume was impeached; Alvarez stated he does not have a resume and never
gave one to Ong.
       Genentech is a biotechnology company that uses human genetic material to
develop and manufacture pharmaceuticals. At the time of the accident, Ong was
employed as a lead technician on the N1 (night) shift of Genentech’s Equipment
Preparation division at its headquarters in South San Francisco, California. The
Equipment Preparation division cleans and sterilizes the tanks used to manufacture drugs
at Genentech facilities. Marc Tumaneng was Ong’s supervisor. Ong’s regular shift at
Genentech was Sunday, Monday, and Tuesday nights, and alternating Saturday nights,
from 7:00 p.m. to 8:00 a.m. Ong’s duties as lead technician included assessing workload
and assigning tasks to the other technicians on his shift. Genentech presented evidence
that all of Ong’s lead technician duties were performed at Genentech during work hours.
       Ong resided in Hayward, California and commuted to Genentech in his own
vehicle. Genentech never owned, leased, or possessed Ong’s 1999 Range Rover or Land
Rover, the vehicle he was driving at the time of the accident. Genentech did not require
Ong to drive or own a vehicle, and did not compensate Ong for travel time or expenses.
       As lead technician on his shift, Ong participated with Tumaneng in conducting
interviews and hiring. Beginning in the summer of 2012, Genentech increased its run
rate for drug production. That same year, Genentech began receiving more tanks for
sterilization, at least in part due to a problem with mold found in tanks that were
improperly cleaned in Singapore. As a result, the Equipment Preparation division’s
workload increased in 2012, and Genentech added an additional night shift and hired
more labware technicians. Tumaneng testified that this December 2012 hiring was
conducted at least in part to replace “several” technicians who had recently quit the N1
shift. Genentech hired through an agency called PRO Unlimited. Tumaneng’s role in the
hiring process included using a computer program called WAND to select candidates
from PRO Unlimited to interview.

                                             3
       A few days before the accident, Ong and Tumaneng together interviewed six
candidates for two open positions on the N1 shift. On Monday, December 10, 2012, after
completing the six interviews, Tumaneng and Ong chose two candidates to hire. The
work week for Ong and Tumaneng ended at 8:00 a.m. on Wednesday, December 12. On
Wednesday, December 12, 2012 at 3:37 p.m., while he was off-duty, Tumaneng received
an email from Maybelle Gonzales, a Client Services Coordinator at PRO Unlimited,
advising him that Genentech’s human resources department had rejected one of the two
candidates he and Ong had chosen. At 5:53 p.m., Tumaneng replied to Gonzales’s email
to say he would look into other candidates; Tumaneng copied Ong on the reply email.
By 6:06 p.m., through WAND, Tumaneng had chosen four additional candidates to
schedule for interviews.
       At 6:06 p.m. on December 12, 2012, PRO Unlimited, also through WAND, sent
Ong four automated messages. The body of each email stated that it was an “automated
email from the WAND system.” Each email stated that Tumaneng had requested an
interview and gave the candidate’s name, but did not show that any interviews had been
scheduled. The evidence does not establish whether Ong opened any of those emails
before the time of the accident at 3:35 a.m. on December 13, 2012; however, Ong stated
he can access his work email on his personal cell phone.
       Plaintiffs filed a complaint in May 2013 alleging Ong and Genentech were both
liable for the accident that caused Marisol Morales’ death, asserting causes of action for
motor vehicle negligence and general negligence, together with a survivorship action.
Plaintiffs’ claim against Genentech was based on the doctrine of respondeat superior.
Genentech moved for summary judgment. Although the trial court issued a tentative
ruling in plaintiffs’ favor,2 following argument it reversed course and granted the motion.
The court then entered judgment in favor of Genentech, dismissing it from the case and
leaving Ong as the sole defendant. This timely appeal followed.


       2
         The trial court’s tentative ruling of March 2, 2015 does not appear in the record,
despite plaintiffs’ request that it be included.

                                             4
                                     III.   DISCUSSION
          A.     Standard of Review
          We review the trial court’s entry of summary judgment de novo. (Nazir v. United
Airlines, Inc. (2009) 178 Cal.App.4th 243, 253.) “[S]ummary judgment shall be granted
if all the papers submitted show that there is no triable issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc.,
§ 437c, subd. (c).) A moving defendant can meet its initial burden by showing that one
or more elements of the plaintiff’s cause of action cannot be separately established.
(Nazir, supra, 178 Cal.App.4th at p. 253.) Once the defendant meets the initial burden,
the burden shifts to the plaintiff to show the existence of a triable issue of material fact.
(Ibid.)
          On appeal, we view the evidence in the light most favorable to the plaintiffs as the
parties opposing summary judgment, and we liberally construe the plaintiffs’ evidence
and strictly scrutinize the defendant’s evidence, resolving ambiguities in the plaintiffs’
favor. (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142.) On
appeal, “we must decide independently whether the facts not subject to triable dispute
warrant judgment for the moving party as a matter of law.” (Intel Corp. v. Hamidi (2003)
30 Cal.4th 1342, 1348.)
          The weight of authority holds that the standard for reviewing the trial court’s
evidentiary rulings is abuse of discretion (Serri v. Santa Clara University (2014) 226
Cal.App.4th 830, 852), but there is some dispute as to whether evidentiary rulings made
in the summary judgment context should instead be reviewed de novo (see In re
Automobile Antitrust Cases I & II (2016) 1 Cal.App.5th 127, 141). We need not resolve
this issue, because, as we discuss below, our conclusions as to the evidentiary issues
raised on appeal would be the same under either standard. An appellate court’s review of
the evidence on summary judgment does not include evidence to which objections have
been made and properly sustained. (Code Civ. Proc., § 437c, subd. (c).)




                                                5
       B.      Applicable Principles of Respondeat Superior, the Going and
               Coming Rule, and the Special Errand Exception

       Under the doctrine of respondeat superior, an employer is vicariously liable for the
tortious conduct of its employees within the scope of their employment. (Jorge v.
Culinary Institute of America (2016) 3 Cal.App.5th 382, 396.) “ ‘[T]he modern
justification for vicarious liability is a rule of policy, a deliberate allocation of a risk. [¶]
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.’ ” (Hinman v. Westinghouse Elec. Co. (1970) 2 Cal.3d
956, 959–960 (Hinman).) The principal justification for the application of the doctrine of
respondeat superior is that the employer may spread the risk through insurance and carry
the expense as part of its costs of doing business. (Johnston v. Long (1947) 30 Cal.2d 54,
64.)
       The scope of employment has been interpreted broadly under the respondeat
superior doctrine in California. (Farmers Ins. Group v. County of Santa Clara (1995) 11
Cal.4th 992, 1004.) Acts necessary for the employee’s comfort or convenience at work,
or where an employee is tending to his own business at the same time as that of his
employer, do not remove the employee from the scope of employment, “ ‘ “unless it
clearly appears that neither directly nor indirectly could he have been serving his
employer.” ’ ” (Ibid.) The employer’s liability extends to risks inherent in or incidental
to the employer’s enterprise. (Rodgers v. Kemper Constr. Co. (1975) 50 Cal.App.3d 608,
618–619.)
       Nevertheless, there are exceptions to the respondeat superior doctrine. (Hinman,
supra, 2 Cal.3d at p. 960.) Under the going and coming rule, for example, an employee
commuting to or from work is typically outside the scope of employment, and the
employer is not liable for the employee’s torts. (Id. at p. 961, citing 1 Witkin, Summary
of Cal. Law (7th ed. 1960) pp. 448–449.) “The ‘going and coming’ rule is sometimes
ascribed to the theory that the employment relationship is ‘suspended’ from the time the
employee leaves until he returns [citation], or that in commuting he is not rendering

                                                6
service to his employer [citation].” (Hinman, supra, 2 Cal.3d at p. 961.) With a few
exceptions, employees are not within the scope of employment while commuting. (Ibid.)
       One exception to the going and coming rule is the special errand rule, which
provides that an employee is within the scope of his employment while performing an
errand either as part of his regular duties or at the specific order or request of his
employer. (Boynton v. McKales (1956) 139 Cal.App.2d 777, 789 (Boynton).) “[T]he
employee is considered to be in the scope of his employment from the time he starts on
the errand until he has returned or until he deviates therefrom for personal reasons.”
(Ibid.) The employer is liable for the employee’s torts in the course of a special errand
because the errand benefits the employer. (Ibid.) It is not necessary that the employee is
directly engaged in his job duties; included also are errands that incidentally or indirectly
benefit the employer. (Ibid.) It is essential, however, that the errand be either part of the
employee’s regular duties or undertaken at the specific request of the employer. (Ibid.)
       Many court decisions on the going and coming and special errand rules include
some discussion of workers’ compensation law. (Harris v. Oro-Dam Constructors
(1969) 269 Cal.App.2d 911, 913–914 (Harris).) Workers’ compensation decisions
construe the scope of employer liability more broadly than do tort cases. (Munyon v.
Ole’s, Inc. (1982) 136 Cal.App.3d 697, 702–703 (Munyon).) Instead of the tort law
requirement that an employee be acting within the “scope of employment,” workers’
compensation cases use the phrase, “ ‘arising out of and occurring in the course of
employment,’ ” which has been interpreted to include activities such as collecting a
paycheck or commuting to work where the employee receives a per diem allowance for
travel expenses. (Id. at pp. 701–702; see Anderson v. Pacific Gas & Electric Co. (1993)
14 Cal.App.4th 254, 259 (Anderson).) One reason for the broader interpretation is that
the goal of workers’ compensation law is to reimburse the injured worker, whereas the
object in tort cases is to determine whether vicarious liability should be extended beyond
those who were directly negligent. (Munyon, supra, 136 Cal.App.3d at p. 702.)
“Workers’ compensation decisions can be helpful in determining whether an employer


                                               7
should be vicariously liable, but they are not controlling precedent.” (Anderson, supra,
14 Cal.App.4th at p. 259.)
       Whether an employee was acting within the course and scope of his employment
is generally a question of fact, but if the facts are undisputed and no conflicting
inferences are possible, the question is one of law. (Munyon, supra, 136 Cal.App.3d at
p. 701.)
       C.     Plaintiffs’ Three Causes of Action
       Plaintiffs seek damages pursuant to three causes of action against Ong and
Genentech: two in the form of negligence claims (for motor vehicle negligence and
general negligence, respectively), and one in the form of a survivorship action
incorporating the negligence allegations. Plaintiffs allege they suffered injuries and
sustained damages as a result of the negligence of defendant Ong when his vehicle struck
the vehicle of Marisol Morales, resulting in her injury and death. It is undisputed that
Ong was the driver and owner of the vehicle that hit the vehicle in which Marisol
Morales was a passenger. Accordingly, the only theory of Genentech’s liability as to all
three causes of action is the doctrine of respondeat superior, as Ong’s employer.
       Genentech asserts the material facts show that, at the time of the accident, Ong
was not performing a special errand for Genentech as a matter of law, since he was not
acting on a special request from Genentech or as part of his regular duties. Plaintiffs
contend there are triable issues of material fact as to whether, at the time of the accident,
Ong was performing a special errand for Genentech. Plaintiffs advance three arguments
to bring Ong’s trip within the special errand exception: 1) Ong, as a lead technician
tasked with hiring, could order himself to perform a special errand in connection with
that task; 2) the emails of December 12, 2012 were a request to Ong to perform a special
errand to complete the hiring; and 3) Ong’s trip to Genentech on his night off to review
resumes was within his regular duties at Genentech.
       We address each argument in turn to determine whether it creates a triable issue of
material fact as to whether, at the time of the accident, Ong was engaged in a special
errand either at Genentech’s request or as part of his regular duties.

                                              8
              1.      Ong, As a Shift Lead Who Was Tasked with Hiring, Could Not
                      Request Himself to Perform a Special Errand on Genentech’s
                      Behalf.

       First, plaintiffs contend the evidence supports a reasonable inference that
Genentech delegated authority to Ong as a shift lead tasked with hiring responsibilities,
and that Ong’s decision to drive to Genentech on December 13, 2012 to review resumes
was a reasonable exercise of that authority. Plaintiffs argue this creates a triable issue of
material fact as to whether Ong had the authority to request the errand of himself on
Genentech’s behalf. We disagree.
       The appellate court in Vivion v. National Cash Register Co. (1962) 200
Cal.App.2d 597, 601, 603–606 (Vivion) affirmed a jury verdict releasing the employer
from liability, holding the jury could determine that the employee was not acting within
the scope of employment when she decided independently to drive to her workplace
outside of working hours, without any request or expectation from her employer. In
Vivion, an employee (Rauscher) decided to return to her workplace after her shift to
practice using an accounting machine she was responsible for demonstrating the
following day. (Id. at p. 603.) On her drive home after practicing at the office, Rauscher
was involved in a collision. (Ibid.) Rauscher, like her fellow employees, had a key to the
office, but her employer did not require her to work overtime or to come in after hours for
additional training. (Id. at pp. 603–604.) No supervisor or any other employee had asked
Rauscher to go to the office that evening. (Id. at p. 604.)
       Vivion was not decided at summary judgment, but instead went to the jury, which
found in favor of the employer. (Vivion, supra, 200 Cal.App.2d at pp. 600–601.) In
affirming the judgment, the appellate court in Vivion observed that the mere fact that a
trip may be related to an employee’s job does not impose liability on the employer. (Id.
at p. 606; see Harris, supra, 269 Cal.App.2d at p. 917 [“It is said that the right of control
‘goes to the very heart of tortious responsibility.’ [Citation.] . . . [Citation.] The question
is one of a right to control the trip.”].) The Vivion court held that, to bring an employee’s



                                               9
trip within the special errand exception, the employer must request or at least expect it of
the employee. (Vivion, at p. 606.)
       Furthermore, in Munyon, supra, 136 Cal.App.3d at pp. 706–707, the appellate
court affirmed summary judgment for the employer because there were no triable issues
of material fact as to whether the employee (Edwards) was on a special errand when she
went to her workplace on her day off to pick up her paycheck. Edwards, a hardware store
cashier, did not use her car at work, and her employer did not require her to have a car.
(Id. at p. 700.) After picking up her paycheck, Edwards was involved in a traffic accident
on her way home. (Ibid.) The court rejected plaintiff’s argument that the employer
created the risk by holding her paycheck, reasoning that such a theory was “too
attenuated and does not comport with the realities of commercial and industrial
relationships.” (Id. at p. 706.) The Munyon court held that Edwards’ trip to pick up her
paycheck was undertaken for her own convenience, not at the request of her employer,
and therefore did not come within the special errand exception. (Id. at pp. 700, 706.)
       On the other hand, in Jeewarat v. Warner Bros. Entertainment Inc. (2009) 177
Cal.App.4th 427, 436 (Jeewarat), the court reversed summary judgment for the employer
(Warner), holding that an employee’s attendance at a business conference authorized and
funded by the employer may come within the special errand exception. There, the
employee (Brandon) was vice-president of anti-piracy internet operations at Warner. (Id.
at p. 431.) Brandon was involved in a traffic accident while driving home from the
airport after attending an out-of-town business conference sponsored by one of Warner’s
anti-piracy vendors. (Id. at pp. 431–432.) The Jeewarat court held the evidence Warner
paid for Brandon’s airfare, hotel, and airport parking, coupled with the reasonable
inference that Warner would benefit from the information Brandon learned at the
conference, created triable issues of material fact as to whether the business trip was a
special errand. (Id. at pp. 437, 438–439.)
       In this case, like the employees in Vivion and Munyon, Ong, on his own, for his
own reasons in the pre-dawn hours of December 13, chose to drive to Genentech. The
record shows no evidence that anyone from Genentech requested that Ong drive to

                                             10
Genentech in the dead of night. Ong testified in his deposition that he did not expect to
be paid for the trip. And in contrast to Jeewarat, there was no evidence Genentech
authorized Ong’s trip by paying his travel expenses.
       Plaintiffs point out that, unlike the employee in Vivion who had no authority to
assign or delegate tasks, Ong was a shift lead whose duties included assigning tasks to
other technicians on his shift. They assert that Ong, as a supervisorial employee tasked
with hiring, had authority to act on Genentech’s behalf and, in essence, request himself to
complete a special errand connected to that task. This argument finds no support in the
extensive body of going and coming case law, and we decline plaintiffs’ invitation to
expand the special errand exception in the manner they suggest. What they propose is an
invitation to self-serving pretense by anyone with a plausible claim to supervisorial
authority.
       Even in Jeewarat, where the employee was a vice-president, the court did not base
its conclusion on a theory that the vice-president had the authority to order himself to go
on the business trip on Warner’s behalf; instead, an important factor in the court’s
decision was Warner’s authorization of the trip by paying the vice-president’s travel
expenses. (Jeewarat, supra, 177 Cal.App.4th at p. 437.) Ong was a shift lead with less
authority than the vice-president in Jeewarat, and he worked under his direct supervisor,
Tumaneng. We cannot accept the theory that Ong had the authority to order himself to
perform a special errand for Genentech. Such reasoning would expand the special errand
rule to allow employees at various levels to request special errands of themselves on
behalf of their employers, thereby stripping the employer of the ability to control when it
will be liable for an employee’s off-shift activities.
       In its order granting summary judgment for Genentech, the trial court observed
that even in workers’ compensation cases, which embrace the more lenient standard of
“ ‘arising out of and occurring in the course of employment’ ” (see Munyon, supra, 136
Cal.App.3d at pp. 701, 702), an employee’s decision to take work home or to drive to
work at an unusual time does not bring the trip within the scope of employment.
Plaintiffs cite several workers’ compensation cases in order to distinguish them from the

                                              11
facts here, but as noted, workers’ compensation cases are not controlling precedent in tort
cases. (Anderson, supra, 14 Cal.App.4th at p. 259.) Even accepting as true plaintiffs’
assertion that Ong took it upon himself to drive to Genentech on his day off to respond to
a hiring crisis, under Vivion, an employee’s unilateral decision to commute to work after
hours does not bring the trip within the special errand rule. (Vivion, supra, 200
Cal.App.2d at p. 606.) We reject the argument that Ong could order himself to perform a
special errand on Genentech’s behalf.
              2.     The Hiring Assignment, Coupled with the Genentech Emails of
                     12/12/12 Advising Further Action Was Necessary, Was Not a
                     Request to Ong to Perform a Special Errand to Complete the
                     Assigned Hiring Task.

       Next, plaintiffs argue that, because Genentech gave Ong the ongoing assignment
of assisting with the allegedly urgent hiring, and because Ong received emails on
December 12, 2012 advising further action was necessary, it can be inferred that those
emails constituted a request by Genentech to Ong to perform a special errand. Again, we
must disagree.
       In Boynton, supra, 139 Cal.App.2d at p. 791, the appellate court upheld the verdict
against the employer (McKales), holding the jury could reasonably infer that the
employee (Brooks) was on a special errand for his employer when he caused an accident
on his way home from a company banquet. While McKales argued the banquet was
purely a social function Brooks chose to attend for his own enjoyment, the facts showed
it was an annual company banquet where the vice-president of sales honored employees
for their years of service. (Id. at pp. 790–791.) Attendance was not compulsory, but was
expected, and McKales may have benefitted from the banquet by encouraging long-term
employment. (Id. at p. 791.) Nonetheless, Boynton made clear that it is not enough for
the errand to benefit the employer; the employer must also request or expect the
employee to attend. (Id. at pp. 789, 791.)
       In Tognazzini v. San Luis Coastal Unified School Dist. (2001) 86 Cal.App.4th
1053, 1059–1060 (Tognazzini), the appellate court affirmed a jury verdict releasing the


                                             12
employer (the District) from liability for an accident caused by the employee (Ho) while
she was on her way home from fingerprinting. Ho worked for the District as a tutor, and
the state required all persons working with children to be fingerprinted. (Id. at p. 1056.)
The District itself did not mandate fingerprinting, but Ho’s supervisor at the District told
her about the state law requirement and gave her a phone number to call to make an
appointment. (Ibid.) Ho was free to choose the date, time, and location of the
fingerprinting appointment, and the District did not pay her travel expenses. (Id. at
p. 1058.) The Tognazzini court upheld the conclusion that Ho was not on a special errand
for the District at the time of the collision, noting that the fingerprinting was not a direct
request of the District, but rather was a state mandate, and because Ho paid her own
travel expenses, controlled her own method of travel, and chose when and where to fulfill
the requirement. (Id. at pp. 1058–1059.)
       In contrast to Boynton, the facts in this case do not create a reasonable inference
that Genentech expected Ong to drive to work on the early morning of December 13,
2012, to respond to a hiring crisis. In Boynton, the employee received an invitation to
attend a company banquet, and the practice of honoring employees for their service
created an inference that attendance was not only invited, but expected. (Boynton, supra,
139 Cal.App.2d at pp. 790–791.) Here, the day before the accident, Ong was copied on
an email from Tumaneng, and received automated emails from PRO Unlimited, letting
him know that one of the new hires had fallen through and further interviews were
necessary. It is not clear whether Ong read these emails before the collision, but even
assuming he did, and assuming he decided to drive to Genentech on the morning of
December 13, 2012 to prepare for those interviews, there is still no evidence that anyone
at Genentech requested or expected that Ong would drive to work that morning.
       Moreover, even if it could be inferred that Ong read the emails before driving to
Genentech and those emails constituted a request that Ong continue to assist with the
hiring process, it is clear they did not require Ong to come in at a specific day or time.
Even though Tognazzini involved fingerprinting ordered by the state and not by the
employer, it was also germane to the court’s decision that the employee had full control

                                              13
over when and where she completed the requirement, and over her means of
transportation. (Tognazzini, supra, 86 Cal.App.4th at pp. 1058–1059.) On this record,
even if the December 12 emails to Ong could be interpreted as a request to continue work
on the overall assignment of hiring, they cannot be interpreted as a request that Ong drive
to Genentech on December 13, or on any of his days off.
              3.     Ong’s Trip to Genentech Was Not Part of His Regular Duties of
                     Hiring for the N1 Shift.

       Finally, Plaintiffs assert there are triable issues of material fact concerning the
extent of Ong’s hiring duties and whether they included driving to Genentech on his day
off to review resumes. Again, we disagree.
       In Harvey v. D & L Constr. Co. (1967) 251 Cal.App.2d 48, 49, 52–53 (Harvey),
the appellate court reversed a nonsuit in favor of the employer (D & L), holding that the
jury could reasonably infer that the employee (Chism) was on a special errand as part of
his regular duties when he was involved in a collision while driving himself and a
coworker (Richards) from their work site in Yuma, Arizona to their homes in Pasadena,
California. Chism, an experienced cement finisher, first worked for D & L in California.
(Id. at p. 49.) The D & L superintendent in Yuma, Arizona asked Chism several times to
come to work there, and eventually he accepted. (Ibid.) The superintendent sought out
Chism because he was having trouble keeping skilled cement finishers on the Yuma job
due to the heat and the remoteness of the location. (Id. at pp. 50, 52.)
       While Chism worked for D & L in Yuma, he drove home to Pasadena every
weekend, sometimes using his own truck, which he was allowed to fill with D & L gas,
or sometimes using his superintendent’s truck. (Harvey, supra, 251 Cal.App.2d at p. 51.)
Chism often used his truck to haul company supplies, both at the work site and as part of
his commute. (Ibid.) Chism hired other cement finishers from California at D & L’s
request. (Ibid.) One of his hires, Richards, regularly rode with Chism on his weekend
commute, and was a passenger in his truck at the time of the accident. (Ibid.) Chism
testified that, on the weekend of the accident, D & L did not ask him to bring any
employees or equipment on his return trip. (Ibid.) The Harvey court found that, even

                                              14
though D & L made no specific request of Chism that weekend, there was sufficient
evidence to support an inference that Chism was performing an errand for D & L as part
of his regular duties at the time of the accident. (Id. at pp. 52–53.)
       Here, the evidence does not support an inference that Ong’s regular duties of
hiring at Genentech included driving to work on his day off to review resumes. Unlike
Harvey, where the employer regularly expected the employee to haul materials and
recruit employees as part of his long-distance commute, there is no evidence Genentech
ever expected Ong to come in outside of his normal working hours to assist with hiring.
The evidence plaintiffs introduced to the contrary included that Ong sometimes worked
overtime, and did so on December 10, 2012, to help Tumaneng complete the interviews
scheduled that day. Plaintiffs also point to evidence that Ong attended once-monthly off-
shift leadership meetings and occasionally communicated with coworkers on his days off
by text or by phone. Evidence that an employee sometimes worked overtime, attended
scheduled work meetings, and communicated with coworkers outside of working hours
cannot support a reasonable inference that he was regularly expected to come into the
office on his days off to review resumes.
       Finally, plaintiffs rely on Jeewarat, supra, 177 Cal.App.4th at p. 437, contending
that, like the vice-president whose regular duties were to prevent internet piracy, Ong’s
regular duties included hiring, and he was carrying out those duties at the time of the
collision. They further argue that the Jeewarat court found that driving home from the
airport was part of the vice-president’s regular duties, without discussing whether the
vice-president had ever driven a car as part of his job. The Jeewarat court, as we note
above, did not base its holding on a theory that driving home from the airport was part of
the vice-president’s regular duties. (Jeewarat, supra, 177 Cal.App.4th at pp. 436–437.)
Instead, the court concluded that the special errand doctrine may be applied to a business
trip, and that Warner’s payment of the vice-president’s travel expenses could support a
reasonable inference that Warner authorized the trip and expected to derive a benefit
from the vice-president’s attendance. (Ibid.) Jeewarat’s reasoning cannot support an
argument that Ong was engaged in his regular duties at the time of the accident. Since

                                              15
plaintiffs put forth no evidence that Ong had even once before made a special trip to
Genentech to review resumes or perform any task connected to hiring, it cannot be
inferred that such a trip was part of his regular duties in hiring.
       D.     Credibility and Summary Judgment
       Plaintiffs argue that contradictions in the declarations and deposition testimony of
both Ong and Tumaneng raise credibility questions for the jury. They invoke Code of
Civil Procedure section 437c, subdivision (e), which provides, “[i]f a party is otherwise
entitled to summary judgment pursuant to this section, summary judgment shall not be
denied on grounds of credibility or for want of cross-examination of witnesses furnishing
affidavits or declarations in support of the summary judgment, except that summary
judgment may be denied in the discretion of the court if the only proof of a material fact
offered in support of the summary judgment is an affidavit or declaration made by an
individual who was the sole witness to that fact . . . .” (Code Civ. Proc., § 437c,
subd. (e); see Preis v. American Indemnity Co. (1990) 220 Cal.App.3d 752, 760.)
       Plaintiffs contend that Ong and Tumaneng are the sole witnesses to the material
fact of whether Tumaneng asked Ong to perform an errand connected to the hiring
between 3:37 p.m. on December 12 and 3:35 a.m. on December 13, 2012. Ong denies
that anyone from Genentech asked him to perform an errand during that time period, and
Tumaneng states that he cannot remember whether he made any request of Ong.
Plaintiffs note, further, that Ong gave inconsistent testimony about his reasons for driving
to Genentech on December 13, 2012, and that one of those reasons, to pick up Alvarez’s
resume, was proven false. In addition, they point to supposed contradictions in
Tumaneng’s testimony as to the scope of Ong’s duties as shift lead, the extent of Ong’s
involvement in hiring, when future interviews at Genentech were scheduled, and whether
overtime at Genentech must be pre-approved.
        Code of Civil Procedure section 437c, subdivision (e) focuses on the inability to
cross-examine a witness who has not been deposed, but has submitted a declaration or
affidavit. Here, Ong and Tumaneng both gave deposition testimony. Genentech deposed
Ong in November 2013. Plaintiffs were unable to depose Ong because Ong asserted his

                                              16
Fifth Amendment rights, and the criminal proceeding concerning the collision concluded
on July 28, 2015. Meanwhile, according to plaintiffs, the civil action was stayed pending
appeal from entry of summary judgment on June 16, 2015.
       In its summary judgment order, the trial court acknowledged that Ong gave
inconsistent testimony concerning his reasons for driving to Genentech that morning.
The court then stated that, even resolving the conflict in plaintiffs’ favor by taking as true
Ong’s statement that he was driving to Genentech to pick up resumes for upcoming
interviews, there was still no evidence that anyone from Genentech asked Ong to drive to
work on the early morning of December 13, 2012. In essence, the court found that any
credibility issues surrounding Ong’s testimony were not material to the resolution of the
special errand issue on which the motion turned. Suffice it to say we agree.
       E.     Evidentiary Objections
       As noted, there is an outstanding issue as to whether the standard for reviewing the
trial court’s evidentiary objections is de novo or abuse of discretion (In re Automobile
Antitrust Cases I & II, supra, 1 Cal.App.5th at p. 141; Serri v. Santa Clara University,
supra, 226 Cal.App.4th at p. 852), but we need not resolve the issue. Here, the trial court
sustained objections to plaintiffs’ Exhibits G, H, and I as irrelevant and immaterial. The
trial court also noted its decision on summary judgment would be the same regardless of
whether those exhibits were in evidence.
       The sustaining of an objection to Exhibit I appears to have been inadvertent error,
since Genentech did not raise an objection to that exhibit. Exhibit I is plaintiffs’ Second
Request for Production of Documents to Genentech and relevant portions of Genentech’s
responses, including Tumaneng’s email of December 6, 2012, advising Genentech’s
hiring agency that he and Ong would be conducting the interviews of December 9 and 10,
2012. Since Genentech raised no evidentiary objection to Exhibit I, the trial court erred
in excluding it from evidence, and we view it as properly admitted into evidence before
the court. Having found it to be admissible, however, we do not see it as material.
       The trial court sustained Genentech’s objections to Exhibits G and H as irrelevant
and immaterial. Exhibit G contains portions of plaintiffs’ Second Request for Production

                                              17
of Documents to Ong, and Ong’s responses, including documentation of his overtime
hours in 2012 and a chart showing the number of employees on Ong’s shift in March
2013. Exhibit H contains portions of plaintiffs’ First Request for Production of
Documents to Genentech, and responses, including Ong’s December 2012 work schedule
and another chart showing the number of employees on his shift in April 2012. The trial
court found that evidence of Ong’s overtime and the number of employees on his shift
was irrelevant and immaterial to its decision. Whether under the de novo standard or the
abuse of discretion standard, we find no error on this point, since Ong’s overtime hours
and the number of employees on his shift are not essential to our analysis of whether Ong
was on a special errand for Genentech at the time of the accident.
                                  IV. DISPOSITION
      Affirmed.




                                            18
                                 _________________________
                                 Streeter, J.


We concur:


_________________________
Ruvolo, P.J.


_________________________
Rivera, J.




                            19
Filed 10/19/17

                    COURT OF APPEAL, FIRST APPELLATE DISTRICT
                             350 MCALLISTER STREET
                            SAN FRANCISCO, CA 94102
                                   DIVISION 4




GISSELLE MORALES-SIMENTAL, a minor, etc., et al.,
Plaintiffs and Appellants,
v.
GENENTECH, INC.,
Defendant and Respondent.

A145865
Alameda County No. HG13678136



BY THE COURT:


        The written opinion which was filed on September 22, 2017, has now been
certified for publication pursuant to rule 8.1105(b) of the California Rules of Court, and it
is ordered published in the official reports.

        (Ruvolo, P.J., Rivera, J. and Streeter, J. participated in the decision.)




Date:            October 19, 2017                                    Ruvolo             P.J.


                                                1
Morales-Simental v. Genentech, Inc. (A145865)



Trial court:            Alameda County



Trial judge:            Hon. Lawrence Appel



Attorneys:
Mastrangelo Law Offices, Nicholas J. Mastrangelo and Margaret Blodgett; Gillin, Jacobson, Ellis Larsen &
Lucey and Luke Ellis for Plaintiffs and Appellants.


Ropers, Majeski, Kohn & Bentley and Stephan A. Barber; McNamara, Ney, Beatty, Slattery, Borges &
Ambacher, Thomas G. Beatty, Michael P. Clark, and Wilma J. Gray for Respondent.




                                                   2
