Filed 9/16/16
                           CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              FIRST APPELLATE DISTRICT

                                      DIVISION TWO


LEOPOLDO JORGE, JR.,
        Plaintiff and Respondent,
                                                    A143545
v.
CULINARY INSTITUTE OF AMERICA,                      (Sonoma County
                                                    Super. Ct. No. SCV 247676)
        Defendant and Appellant.



        Respondent Leopoldo Jorge, Jr. (Jorge) sued Almir Da Fonseca (Da Fonseca) and
appellant Culinary Institute of America (Culinary Institute or Institute) for injuries
sustained when he was struck by a car driven by Da Fonseca, a chef instructor employed
by the Culinary Institute. Despite that Da Fonseca had finished his shift at the Culinary
Institute and was driving home in his own car at the time of the accident, a jury found the
Institute liable for Jorge’s injuries on a theory of respondeat superior. The Culinary
Institute moved for judgment notwithstanding the verdict on the ground there was no
evidence supporting the jury’s finding that Da Fonseca was acting in the scope of his
employment at the time of the accident. More specifically, it argued that there was no
evidence supporting application of the “required vehicle” exception to the “going and
coming” rule and so it could not be vicariously liable for Da Fonseca’s negligent conduct
while he was commuting home from work. The trial court denied the motion.
        The Culinary Institute appeals, again arguing that it cannot be liable to Jorge for
injuries caused by Da Fonseca’s negligence because there was no evidence that at the
time of the accident Da Fonseca was acting within the scope of his employment. We
agree, and we reverse.


                                              1
                                        BACKGROUND
       The Accident and Jorge’s Claims
       On February 10, 2010, Da Fonseca drove his car to work to start his shift at the
Culinary Institute’s campus in St. Helena. At the end of his workday, he left in his car,
heading towards his home in Sebastopol. As he was driving down Calistoga Road, he
struck two pedestrians, 14-year-old Jorge and his then girlfriend.
       Jorge, through his guardian ad litem, filed a complaint for negligence against Da
Fonseca. A first amended complaint added a claim against the Culinary Institute based
on a respondeat superior theory.1
       The Motion for Summary Judgment
       On July 20, 2012, the Culinary Institute moved for summary judgment on the
ground that it could not be vicariously liable under the respondeat superior doctrine for
damages caused by Da Fonseca’s negligent conduct, because he was not acting in the
scope of his employment at the time of the accident. The trial court denied the motion in
an order that stated in its entirety:
       “Defendant Culinary Institute of America’s motion for summary judgment is
hereby denied. However thin the evidence, there remains a triable issue of fact as to the
issue of whether Defendant Da Fonseca was in the course and scope of his duties for
Defendant Culinary Institute of America when the accident occurred.
       “ ‘The respondeat superior doctrine is to be given a broad application as the
Supreme Court explained in Farmer’s Ins. Group v. County of Santa Clara (1995)
11 Cal.4th 992. “For example, the fact that an employee is not engaged in the ultimate
object of his employment at the time of his wrongful act does not preclude attribution of
liability to an employer.’ Thus, acts necessary to the comfort, convenience, health and
welfare of the employee while at work, though strictly personal and not acts of service,
do not take the employee outside the scope of employment. Moreover, ‘where the

       1
         The first amended complaint also added a premises liability claim against the
city of Santa Rosa, with the premises liability allegations amended in a second amended
complaint. Jorge later dismissed the city of Santa Rosa.


                                             2
employee is combining his own business with that of his employer, or attending to both at
substantially the same time, no nice inquiry will be made as to which business he was
actually engaged in at the time of the injury, unless it clearly appears that neither directly
nor indirectly could he have been serving his employer.’ Jeewarat v. Warner Bros.
Entertainment, Inc. (2009) 177 Cal.App.4th 427, 434.
       “Whether there is an exception to the ‘going and coming’ rule remains, as do
consideration of the other salient parameters of respondeat superior as they relate to this
case, the province of factual determination by a jury. However[] stretched and tortured
the logic of the ‘dirty uniforms’ and chef’s knives may be, these factors cannot be ruled
out as a matter of law.”2
       Trial
       Prior to the commencement of trial, the court ordered the issues of liability and
damages bifurcated, with the issues of negligence and vicarious liability tried first.
       The first phase of trial began on July 11, 2014. At the conclusion of closing
arguments, the Culinary Institute moved for a directed verdict on the ground Jorge failed
to present sufficient evidence to support his respondeat superior theory. The court denied
the motion, ruling that the application of the required vehicle exception remained a
question of fact for the jury.
       During jury instructions, the jury was instructed on the going and coming rule and
the required vehicle exception. Specifically, the court instructed: “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

       2
         Jorge also moved for summary adjudication, arguing that as a matter of law Da
Fonseca was acting in the scope of his employment at the time of the accident because
the going and coming rule did not apply where he used his car for consulting work and to
commute to the St. Helena campus. The court denied the motion, concluding that “there
remain questions of material facts that should properly go before a jury.” Jorge filed a
petition for writ of mandate, which we denied. (Jorge v. Superior Court (2014) No.
A142182.)


                                              3
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 expect the employee to make it
available regularly. The employer’s agreement may be either expressed or implied.”3
       The jury was also instructed on the transport of an employee’s tools, as follows:
“The fact that an employee took his or her tools home every night, does not make the use
of his or her car a condition of employment or constitute such a special advantage or
service to his or her employer as to extend the employment relation off the job site.”
       On August 1, the jury reached a verdict in the liability phase of the trial, finding
that Da Fonseca was negligent and that he was acting within the scope of his employment
by the Culinary Institute when he injured Jorge. The jury found that Jorge was not
negligent.
       After the verdict on liability, Jorge settled his action against Da Fonseca for
$30,000, resulting in Da Fonseca’s dismissal. The damage phase thus proceeded only as
to the Culinary Institute, and on August 19, the jury awarded Jorge $885,083.
       On September 4, the court entered judgment to that effect, and notice of entry of
judgment was filed the following day.
       The Motion for Judgment Notwithstanding the Verdict
       On September 19, the Culinary Institute moved for judgment notwithstanding the
verdict, arguing that the evidence was insufficient to support the jury’s finding that Da
Fonseca was acting in the scope of his employment at the time of the accident. The court
denied the motion.


       3
        This instruction was based on CACI No. 3725, which was revised effective June
2014, the month before trial commenced.


                                              4
        The Culinary Institute appeals from the judgment and the denial of its motion for
judgment notwithstanding the verdict.
                                  EVIDENCE AT TRIAL
        Da Fonseca and the Culinary Institute
        The Culinary Institute is a non-profit culinary educational institute with its main
campus in New York City and branches in St. Helena (known as Greystone) and other
locations. It offers a two-year associate degree program and provides educational
opportunities in the culinary arts to students, professional chefs, and other clients,
including businesses, schools, universities, public and private companies, wineries, and
more.
        Da Fonseca is a native of Brazil. His culinary experience includes work as a chef
instructor at the Cordon Bleu and as an executive chef at some of the top restaurants in
San Francisco. He successfully competed in food competitions for many years and also
travelled to Brazil multiple times to research manioc, a starch made by leaching and
drying the root of the cassava plant.
        Da Fonseca was hired as a chef instructor by the Culinary Institute in 2007.
During the hiring process, he interviewed with Charles Henning, managing director of the
Institute, and Adam Busby, supervisor of the Institute’s chef instructors (including Da
Fonseca).
        The Day of the Accident
        On the morning of February 10, 2010, Da Fonseca drove his car to the St. Helena
campus and parked in the school parking lot. He taught classes that day, working from
approximately 6:15 a.m. to 5:30 p.m.
        When Da Fonseca left the St. Helena campus that evening, he drove his car
towards his home in Sebastopol, with one or two dirty chef’s jackets and possibly a set of
chef’s knives in the car with him. As he was driving down Calistoga Road, he struck two
pedestrians, one of whom was 14-year-old Jorge.




                                              5
       Da Fonseca’s Teaching Duties in the Associate Degree Program
       Da Fonseca’s primary duty as a chef instructor at the Institute was to teach courses
in the associate degree program, which chef instructors taught in three-week blocks. The
classes were taught in two shifts: the morning shift, for which Da Fonseca would arrive
between 6:00 a.m. and 6:30 a.m. and finish around 6:30 p.m., and the afternoon shift, for
which he would arrive around 11:00 a.m. and finish around 9:15 p.m. Da Fonseca would
arrive before class started to prepare his lessons, and would stay after class ended to meet
with students and complete his work. He did not take work home with him. As Da
Fonseca was a professional instructor, the Culinary Institute did not dictate to him when
he was supposed to arrive, what he was supposed to do, when he was supposed to leave,
or where he went. Rather, he had the freedom in his professional capacity to make those
determinations. Da Fonseca accommodated his employer with regard to his work
schedule, and his schedule sometimes changed based on the needs of the students and the
school.
       Da Fonseca used his personal vehicle to commute to the St. Helena campus.
However, he could have carpooled to work if another chef instructor lived near him,
his wife could have driven him to work, or he could have taken public transportation.
Busby and Henning did not know whether Da Fonseca brought his personal vehicle to
work at the St. Helena campus as they had no reason to know. Da Fonseca was paid
hourly, but his pay did not include the commute time between the St. Helena campus and
his home in Sebastopol.
       Da Fonseca was never asked to have his car available during the day and did not
make any accommodations to have his car available for the Culinary Institute. He did not
need to have his personal vehicle on campus, as chef instructors were not expected to
drive their personal vehicles. The Culinary Institute did not have any policies pertaining
to the use of personal vehicles, and no one ever told Da Fonseca that a car was required
for any of his job duties.




                                             6
       If an instructor wanted to arrange a field trip with students, the Culinary Institute
had vans with drivers available to chef instructors. Drivers of the vans required a special
license, and the chef instructors were not authorized to drive the vans.
       Da Fonseca’s Additional Duties at the Culinary Institute
       In addition to its regular classes, the Culinary Institute offered many specialized
classes that were also taught by the chef instructors. For example, it offered catalog
classes, which were “basically continuing education [for] professional chefs.” Such a
class could be in the morning or afternoon, and during the week or on the weekend.
Sometimes the catalog classes were about a very specific subject in which Da Fonseca
had expertise, and the Culinary Institute would have him teach that class.
       The Culinary Institute also held customer classes on Saturday for food enthusiasts
who wanted to learn “from the best.” According to Henning, the chefs liked to teach
those classes because they could make extra money—and the classes were fun.
       In addition to teaching classes, chef instructors could also help the Culinary
Institute host a variety of on- and off-campus events, conferences, and retreats for
students, chefs, the food industry, and the public. Some of the events were held on
weekends, allowing chef instructors the option of picking up extra shifts. Although
participation in off-campus events was voluntary, chef instructors usually chose to work
at these special events if they were not also scheduled to be teaching a course.
       For example, the Culinary Institute hosts an annual Latin Flavors conference in
San Antonio, and every year Da Fonseca volunteered to attend. It also hosts a three-day
retreat for physicians and an annual three-day Worlds of Flavor event for professional
chefs and media from around the world. Other institute activities include the annual
retreat for the North American Association of Food Equipment Manufacturers’ and an
annual competition for up and coming chefs sponsored by San Pellegrino.
       Besides its curriculum, conferences, competitions, and retreats, the Culinary
Institute has a consulting arm. When a business, such as a food producer or retailer, asks
the Culinary Institute for consulting services, like creating a recipe, the chef instructors
provide the services. Henning testified that the Culinary Institute accepted more


                                              7
consulting work if it had the available people and less consulting work if it did not have
the resources. While the Institute is a not-for-profit entity, it uses the consulting money it
earns to cover its costs.
       Consulting, like attending the conferences, was not a required employment duty,
but was available to instructors based on expertise and availability. Busby testified that
the chef instructors who were available to travel off campus did the consulting work. He
had 17 chef instructors to draw from, and Da Fonseca liked to travel. According to
Henning, the Culinary Institute assigned the consulting work to its chef instructors based
on their abilities, knowledge, and expertise.
       Consulting clients met with chef instructors at the St. Helena campus or at the
client’s business. The particular client’s facility operation hours determined the hours the
chef instructor worked.
       Between 2007 and the date of the accident, Da Fonseca did consulting projects on
behalf of the Culinary Institute and presented at conferences, retreats, summits, and
international culinary conferences, both on and off campus. His consulting work
included the following clients: Mezzetta, Blue Diamond Almonds, Young Corporation,
University of San Diego, Olive Garden, Harris Ranch, Stanford University, Rich’s Food
Products, and the USA Dry Pea and Lentil Council. Da Fonseca’s timesheets confirmed
that from January 2009 to the date of the incident in February 2010, he did consulting
work for “Rutgers,” “Mezzetta,” “Canola info/trade show,” “Sonic” and “Sonic & Coke,”
“BSH,” “Diamond Foods,” “USD” (University of San Diego), “USA D.P.L. & C.,” and
“PJB Demo.”
       In the month of the accident alone (February 2010), Da Fonseca worked two hours
consulting with Mezzetta. He also worked eight hours on Saturday, February 6, at an
American Culinary Federation convention doing a demonstration, and he worked nine
hours on Sunday, February 7, doing hands on training for the North American
Association of Food Equipment Manufacturers. On his time sheet, Da Fonseca coded
this weekend work to the Culinary Institute’s consulting department.



                                                8
       In the month prior to the accident, in addition to traveling and teaching, Da
Fonseca spent 14 hours doing education and office class work, and two hours doing
conference work for the Culinary Institute’s and Harvard School of Public Health’s
World of Healthy Flavors (WOHF) invitational leadership retreat. He worked eight
hours preparing for the retreat, and worked 24 regular-time hours, nine and one-quarter
overtime hours, and one-and-a-half double-time hours for WOHF. He also worked eight
regular-time hours, as well as an unclear number of overtime hours, on Saturday, January
23, for the Culinary Institute’s Produce First retreat.
       In addition to the above responsibilities, Da Fonseca did research for the Culinary
Institute. Henning testified that the Institute approved Da Fonseca’s project to conduct
research in Brazil for several weeks on manioc, a food staple for Africa and South
America. The Institute paid his salary while he was in Brazil, and subsequently promoted
his research findings because the culinary and food industry was interested in knowing
what the Institute had potentially discovered or what it could “bring to the table.”
       Da Fonseca’s Travel on Behalf of the Culinary Institute
       Henning testified that some of the chef instructor’s work activities might require
travel. Asked whether there was a limit as to how many hours within a certain timeframe
a chef instructor could travel, he testified the Culinary Institute did not have a maximum
limit, or a minimum requirement. It was a question of availability: if the Institute had
the “manpower” allowing a chef instructor to go on a consulting assignment for three or
four weeks, and scheduling and staffing permitted, the instructor was permitted to go.
The Culinary Institute paid chef instructors for the time they were on-site at a consulting
event, which sometimes resulted in overtime.
       Between 2007 and 2010, Da Fonseca chose to travel off-campus on behalf of the
Culinary Institute. While travel was optional for chef instructors, he enjoyed traveling
and volunteered for consulting jobs and special events when he was available. He also
volunteered to work at and attend conferences, both on and off campus.




                                              9
       In the less than three years prior to the February 10, 2010 accident, Da Fonseca
spent over 150 days4 working off-campus, with each successive year involving more
travel. The off-campus locations to which Da Fonseca traveled included two different
countries, seven different states, and six different cities (and an air force base) in
California. For example, in the weeks preceding the accident, Da Fonseca spent a day
travelling to Rutgers University in New Jersey, where he worked for five days doing
consulting work. Next, he spent a day travelling to the Culinary Institute’s Hyde Park,
New York campus, where he spent two days working on curriculum. He then spent one
day travelling home.
       Da Fonseca testified that he was sometimes paid for his travel time. If a trip
involved a substantial amount of travel, he was compensated for the travel time; if it was
one or two hours, he would not be.
       In response to requests for admissions, Da Fonseca admitted he was entitled to
reimbursement for his mileage when he drove to work locations away from the Greystone
facility. He also admitted that the Culinary Institute paid him for his travel time when he
travelled on behalf of the Culinary Institute anywhere other than the Greystone facility.
       When Da Fonseca traveled off campus in his car, he was also reimbursed for his
mileage, and parking expenses, expenses that were ultimately paid for by the consulting
client. To reimburse chef instructors for travel-related expenses, the Culinary Institute
used a preprinted expense report. The form contained spaces for employees to specify
whether their expenses were budgeted, the dates of their travel, the “Foreign Currency
Conversion Rate (if applicable),” the purpose for the travel, whether an “Outside
Organization” was reimbursing expenses, and, if applicable, the name of the
organization. Da Fonseca submitted expense reimbursement forms for his mileage, and
so long as he was conducting business, the Culinary Institute would reimburse him for his




       4
        Jorge’s respondent’s brief says 153 days; at oral argument his counsel
represented it was 178 days.


                                              10
mileage. He could not recall how many expense reimbursements he had submitted to his
employer, but admitted it could be “many.”
       Da Fonseca’s Use of His Personal Vehicle
       If a chef instructor was going to travel, Busby did not tell the instructor what mode
of transportation to use. For local travel on consulting trips, the chef instructor could
choose to rent a car, take public transportation, carpool, or take a personal vehicle.
According to Busby, “It was up to the instructor how they got from point A to point B. It
wasn’t up to me to decide. It was up to them.” For example, if Da Fonseca needed to
travel to Stanford and decided to rent a car, the Culinary Institute would reimburse him
for that expense.
       Henning testified that a personal vehicle was not required for consulting jobs.
He further testified that the Culinary Institute had no policies in place for its employees
who used their personal cars for work. The Culinary Institute did not require proof of a
valid driver’s license or of auto insurance, nor did it do a DMV background check
(although it did do a full background check, so if a prospective employee had an arrest
for driving under the influence, it would show up).
       If a trip required a flight, the Culinary Institute would provide the flight
information. But Busby and Henning did not control—or even know—how the
instructor got to the airport. An instructor could take a shuttle or a taxi.
       Da Fonseca testified that for shorter trips, he would drive himself to the airport.
On longer trips, he usually took an airport shuttle or asked his wife to take him, as she
did on many occasions. If he flew out of San Francisco, he would make his own way to
the airport, either by driving his own car or taking an airport shuttle. When he went on a
research trip to Brazil, for example, Da Fonseca took the Airporter from Santa Rosa to
the airport. He testified that the Culinary Institute never asked or required him to
drive his car to the airport when he traveled, explaining, “No. That’s—you know, we
just need to get there. How we get there is our own responsibility.”
       Da Fonseca never had a conversation with anyone at the Culinary Institute about
using his personal car to participate in consulting work. Nobody told him how to get


                                              11
where he was going when he was doing a consulting job. Da Fonseca acknowledged that
he used his car on “many occasions” to get to off-campus jobs, driving for example, to
Travis Air Force Base, University of California at Davis, Coalinga, Fresno, and Palo
Alto. He drove to the San Francisco International Airport when he was invited to speak
at a three-day conference in Seattle, taught a four-day class to the chefs from the food
operation of Ohio State University, went to Texas for a three- or four-day conference, and
went to other Culinary Institute campuses.
         Da Fonseca testified no employee retained as a driver for the Culinary Institute
ever drove him to meet with the Institute’s clients. He sometimes rode in a Culinary
Institute van when he took a field trip with his students, but the Institute did not authorize
him to drive any of its vehicles. And when he was travelling, he did not use the
Institute’s vans.
         In response to requests for admissions, Da Fonseca admitted that the Culinary
Institute had not authorized him to drive an institute-owned vehicle; that he never drove
an institute-owned vehicle; and that no employee retained as a driver for the Culinary
Institute ever drove him to meet with any clients (excluding class field trips.)
         Da Fonseca testified that he was never transported in the van to a consulting job.
The court asked Da Fonseca if the Culinary Institute van would drive just one person to a
conference or event. Da Fonseca was not sure, testifying, “I never took a [Culinary
Institute] vehicle, but you know, other people have, so I am not sure.” By this, he meant
that he never took an Institute van by himself, although he had travelled in it for field
trips.
         Busby did not recall an institute-owned vehicle ever transporting Da Fonseca off
site from the St. Helena campus. According to Busby, it would have been unreasonable
for the Culinary Institute to use a 20-person van to transport Da Fonseca to a consulting
job in Coalinga.
         The Culinary Institute’s Promotion of Its Chef Instructors’ Experiences
         The Culinary Institute told the world about its chef instructors’ experience for
consulting services, seminars, and conferences. Da Fonseca testified, for example, that


                                              12
the Culinary Institute incorporated his research in Brazil into its programs, including the
Latin Flavors program. As he described it, his Brazil research project on manioc was
going to help humanity because people with celiac disease could eat it. He had studied
this root more than anyone else had, and it was important research. He testified the
Culinary Institute’s “bio” for him said he travelled extensively in South America
documenting indigenous ingredients and traditional culture, and was a frequent presenter
at international culinary summits and conferences. And he admitted potential Culinary
Institute clients might see his faculty “bio.”
       When Da Fonseca taught at conferences, like the Latin Flavors conference in San
Antonio, there would be a “bio” about him in the brochure so people would know about
him and his experience. He acknowledged the Culinary Institute shared his information
in order to promote its conferences, summits, and seminars. To the extent he became a
better instructor, it provided benefit to the Institute because the better he was as an
instructor, the better service he could provide to its students. As Henning described it,
the “quality of the curriculum, the quality of education provided to our students depends
on the quality of [our] faculty.”
       Tools of the Trade: Chef’s Knives and Jackets
       Like most chef instructors, Da Fonseca owned a personal set of knives, which
he used in his teaching, at off-site Culinary Institute events, and for personal use. The
Culinary Institute also has sets of knives available on campus. Da Fonseca sometimes
left his knives on campus, but often brought them home with him for safe keeping. He
testified that he could not recall if his knives were in his car on the day of the accident.
In response to a request for admission, however, Da Fonseca admitted that at the time
of the accident, he was travelling with his chef’s knives.
       Henning testified the Culinary Institute did not “require” chefs to take their own
knives when they travelled, but acknowledged that they did. He also testified the
Institute did not provide knives to their chef instructors and expected them to use their
own knives.



                                                 13
       Chef instructors wear chef’s jackets with the Culinary Institute logo when they
work at, or on behalf of, the Culinary Institute. The Institute provided the instructors
with jackets (Da Fonseca had 10 to 12 at the time of the accident) and paid for
instructors to have their jackets laundered at Klass Cleaners in St. Helena. Instructors
were free, however, to launder their jackets at a different dry cleaner or to launder them
at home.5 Instructors were not required to use their own car to drop off their chef’s
jackets.
       When Da Fonseca first started working at the Culinary Institute, his wife
laundered his jackets for him. At the time of the accident, he was having them laundered
at Klass Cleaners. He would leave his dirty jackets in his car at the end of each day and,
after accumulating four or five jackets, would drop them off on his way to or from work,
about once a week. At the time of the accident, he had one or two chef’s jackets in his
car.
       To get to Klass Cleaners, Da Fonseca would leave the Culinary Institute, take a
right, and drive into downtown St. Helena. To get home, he would leave Klass Cleaners,
take a left, and go back past the Institute and through Calistoga to get to his home in
Sebastopol. Klass Cleaners was in the opposite direction from the route he travelled to
and from work. It was undisputed that Da Fonseca was not on his way to Klass Cleaners
on the day of the accident.
       Da Fonseca testified that he always carried his chef’s knives and jackets with him
when he travelled back and forth to the St. Helena campus and to other locations where
he did consulting, seminars, conferences, or summits.
                                      DISCUSSION
       A. 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


       5
        Da Fonseca testified that the Institute would reimburse chef instructors if they
used a different cleaner, while Henning testified that it would not.


                                             14
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
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.)
       B. Respondeat Superior: An Employer’s Liability for Torts of Its
          Employees
       1. General Principles Governing Respondeat Superior
       Under the theory of respondeat superior, an employer is vicariously liable,
irrespective of fault, for the tortious conduct of its employees within the scope of their
employment. (Diaz v. Carcamo (2011) 51 Cal.4th 1148, 1154; John Y. v. Chaparral
Treatment Center, Inc. (2002) 101 Cal.App.4th 565, 574.) This doctrine is based on “ ‘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. 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


                                               15
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 an enterprise equitably”]; Farmers Ins. Group v. County of Santa Clara, supra,
11 Cal.4th at p. 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”].)
       2. The Going and Coming Rule
       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], or that in commuting he is not rendering service to his employer
[citation].’ [Citations.]” (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”].)


                                              16
       3. The Required Vehicle Exception to the Going and Coming Rule
       There are several exceptions to the going and coming rule, however, that if
applicable will result in an employer being liable for its employee’s tortious conduct that
occurs during the commute. (Ducey v. Argo Sales Co. (1979) 25 Cal.3d 707, 722
(Ducey); see also Santa Rosa Junior College v. Workers’ Comp. Appeals Bd. (1985)
40 Cal.3d 345, 352 [going and coming rule is “ ‘riddled with exceptions’ ”].) These
exceptions typically arise “where the trip involves an incidental benefit to the employer,
not common to commute trips by ordinary members of the work force.” (Hinman, supra,
2 Cal.3d at p. 962; Hinojosa v. Workmen’s Comp. Appeals Bd. (1972) 8 Cal.3d 150, 157
(Hinojosa); Blackman, supra, 233 Cal.App.3d at p. 602.) But this 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, at p. 604.)
       The applicability of one such exception—the required vehicle exception—is at the
heart of this case.
       The required vehicle exception6 was first recognized in Smith v. Workmen’s
Comp. App. Bd. (1968) 69 Cal.2d 814 (Smith), a case involving a claim for worker’s
compensation benefits when a county social worker was fatally injured in a single-car
accident while driving to work. His widow’s request for worker’s compensation benefits
was denied on the ground her husband’s death did not arise out of his employment since
he was not acting in the course of his employment on his drive to work, as per the going
and coming rule. Her attempts to obtain reversal by the Workmen’s Compensation
Appeals Board and the Court of Appeal were unsuccessful. (Id. at p. 815.)
       But the widow had success in the Supreme Court, where she urged the court to
recognize an exception to the rule where the employee was bringing his car to work as
required by his employer. (Smith, supra, 69 Cal.2d at p. 816.) It did, and reversed. The
evidence established that the social worker was required to furnish his own car so that he

       6
        The CACI instruction refers to this exception as the “vehicle-use” exception.
(CACI No. 3725.) Consistent with case law, we shall refer to it as the required vehicle
exception.


                                             17
could visit his clients on field days and would be available to see clients in cases of
emergency on regular office days. While there were cars available if requested in
advance by a worker whose car had broken down, the deceased employee had never
requested the use of a county car. According to the Supreme Court, this evidence
compelled the conclusion that the employer required the decedent to bring his car to work
on the morning of the accident. (Ibid.) And since he furnished his own car for the sake
of fulfilling his employment obligations, the commute came within the course of his
employment. (Id. at p. 825.)7
       In Hinojosa, supra, 8 Cal.3d 150, an operator of several non-contiguous ranches
employed Miguel Hinojosa as a farm laborer. Hinojosa would work at one ranch until
completion of the work, at which time the foreman would assign him to a different ranch.
He was required to provide his own transportation “not only to get to the fields but for the
variable inter-ranch transit necessary to perform the day’s work.” (Id. at p. 152.)
Hinojosa did not own a car of his own, so he paid another worker for a ride to and from


       7
         As noted, Smith involved a worker’s compensation claim, rather than a tort
claim. The tests for determining whether an employee was acting within the course and
scope of employment in these two contexts are different, a difference attributable to the
purpose of each claim. While both have the goal of compensating injured victims,
“[w]orkers’ compensation and respondeat superior law are driven in opposite directions
based on differing policy considerations. Workers’ compensation has been defined as a
type of social insurance designed to protect employees from occupational hazards, while
respondeat superior imputes liability to an employer based on an employee’s fault
because of the special relationship. [Citation.]” (Blackman, supra, 233 Cal.App.3d at
p. 605; accord, Munyon v. Ole’s, Inc. (1982) 136 Cal.App.3d 697, 702.)
        Because Labor Code section 3202 directs that the provisions of the Workers’
Compensation Act are to be construed liberally, “courts have tended to be very generous
in finding injured workers are entitled to workers’ compensation benefits. [Citation.]”
(Anderson, supra, 14 Cal.App.4th at p. 260.) On the other hand, scope of employment
for respondeat superior purposes is more restrictive. (Hartline v. Kaiser Foundation
Hospitals (2005) 132 Cal.App.4th 458, 468.) Despite this distinction, in developing the
respondeat superior doctrine, “courts have occasionally looked toward workers’
compensation cases for guidance. [Citations.]” (Bailey v. Filco, Inc. (1996)
48 Cal.App.4th 1552, 1562; Ducey, supra, 25 Cal.3d at p. 722 [California courts often
cite tort and workers’ compensation cases interchangeably in going and coming cases].)


                                             18
work and between the farms during the day. (Id. at pp. 152–153.) On his way home one
day, the car in which he was riding was involved in an accident, injuring him. (Id. at
p. 153.)
       A referee awarded Hinojosa worker’s compensation benefits. The appeals board
vacated the award on the ground the going and coming rule barred his claim. (Hinojosa,
supra, 8 Cal.3d at p. 153.) The Supreme Court reversed, concluding that Smith
controlled: “The necessity for the use of a car to go from one to another of his clients in
the case of the social worker in Smith is no different than the necessity for the use of a car
to go from one to another of the employer’s separate ranches in the instant case.” (Id. at
p. 161.) And the court further explained: “To get from one contiguous field to another
within the work day required the use of automobile transport. Since the employer
furnished no such private transport the employer in effect imposed the requirement that
the employees themselves procure such transport in the form of cars driving to and from
work each day to one of the seven or eight fields designated by the foreman.” (Id. at
pp. 161–162.)
       Meanwhile, shortly before Hinojosa, the Court of Appeal filed Huntsinger v.
Glass Containers Corp. (1972) 22 Cal.App.3d 803 (Huntsinger), the first case to apply
Smith’s required vehicle exception to a claim that an employer was vicariously liable for
the negligence of its employee.8 There, Edward Fell was a service representative whose
principal duties included daily contact with customers, both by telephone and in person.
On some occasions, Fell would leave home and call on customers prior to driving to the
company office; on others, he would call on customers on the way home. And
sometimes, he would carry objects connected with company business with him. In
carrying out these duties, Fell extensively drove his personal pickup truck, although there
was an indication that, at some times, a rental car used by another employee might have
been available for his use. (Id. at p. 806.) One evening, while driving his truck from the

       8
        An earlier case, Harris v. Oro-Dam (1969) 269 Cal.App.2d 911, had discussed
Smith, but in the context of analysis of a “travel expenses” exception to the going and
coming rule.


                                             19
office to his home, Fell collided with a motorcycle, killing motorcyclist Huntsinger.
Huntsinger’s survivors sued for wrongful death, naming Fell’s employer as a defendant.
The trial court granted a nonsuit on the ground that Fell was not acting within the scope
of his employment at the time of the accident. (Id. at pp. 806–807.) The Court of Appeal
reversed, holding there was “ample evidence from which the jury might have concluded
that Fell’s use of his vehicle was an implied or express condition of his employment.”
(Id. at p. 806.)
       Since Huntsinger, a handful of cases have discussed the issue of the required
vehicle exception in the tort context—not one of which has a holding supporting Jorge’s
verdict here.
       Ducey, supra, 25 Cal.3d 707, is illustrative. Dolores Glass, an employee of Argo
Sales Co. (Argo Sales), was involved in a head-on collision, resulting in fatal injuries to
herself and serious injuries to the Duceys, the occupants of the other car. The Duceys
sued Glass’s estate and Argo Sales, among others. A jury found in favor of the Duceys
against the estate but absolved Argo Sales of any liability for Glass’s negligence. The
Duceys appealed, arguing that the trial court erred in submitting the issue of Argo Sales’s
liability to the jury, because the evidence established as a matter of law that Glass was
acting in the scope of her employment at the time of the accident. (Id. at p. 711.) Our
colleagues in Division Four rejected the Duceys’ position, and affirmed, and the Supreme
Court adopted their opinion. (Id. at p. 721.)
       As described in the opinion, the evidence was as follows: “Glass had been
employed by Argo Sales for almost 20 years to clean model homes at various locations in
San Jose, Alameda and Union City and . . . she regularly drove up to 45 miles from her
residence to such model homes several days a week; the accident in this case occurred
when Glass was returning home after performing her job. Although plaintiffs introduced
evidence that on occasion Glass carried some cleaning equipment in her car, and at times
traveled by car to pick up small furnishings for the model homes, there was no evidence
that Argo Sales required Glass to do so; Argo Sales introduced evidence demonstrating
that it had never reimbursed Glass for commuting expenses and did not pay her for the


                                             20
time she spent driving to work.” (Ducey, supra, 25 Cal.3d at p. 714.) Based on that, the
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.)
       Tryer, supra, 9 Cal.App.4th 1476, is similar—Lorraine West was employed by the
Ojai Valley School to feed its horses twice a day at its two campuses during two work
shifts. She was not paid for travel time to or from work or for travel expenses. West was
involved in an accident on her way to her afternoon shift after leaving campus to ride her
own horse and eat her lunch at a ranch. In a lawsuit brought by the survivors of the
victim of the accident, the trial court granted summary judgment for the school on the
ground that West was not engaged in the scope of her work when the accident occurred.
(Id. at pp. 1479–1480.)
       The Court of Appeal affirmed, agreeing there was no evidence supporting the
application of the required vehicle exception because West merely commuted between
two designated school campuses and was never required to use her vehicle for company
errands during work hours. It found Smith, Hinojosa, and Huntsinger all distinguishable
“because they all require the use of a vehicle as an integral part of performing the job at
disparate locations throughout the course of work hours.” (Tryer, supra, 9 Cal.App.4th at
pp. 1482–1483.) As Huntsinger summed up the rule: “[W]hen 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



                                             21
driving to and from work, the risk of such accidents are risks incident to the business
enterprise.” (Huntsinger, supra, 22 Cal.App.3d at p. 810, italics added.)
       These holdings are the bases for the CACI instruction, the first paragraph of which
tells the jury that the drive to and from work is within the scope of employment if the
“employer requires [the] employee to drive to and from the workplace so that the vehicle
is available for the employer’s business,” and the second paragraph, that the drive may be
if “the use of the employee’s vehicle provides some direct or incidental benefit to the
employer” and “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 expect the employee to
make it available regularly.”
       In light of this law, we turn to the question here: was there substantial evidence
supporting the jury’s finding that Da Fonseca was acting in the scope of his employment
at the time he struck Jorge?
       C. Jorge Presented No Evidence from Which the Jury Could Conclude that
          Da Fonseca Was Acting Within the Scope of His Employment at the Time
          of the Accident
       It was undisputed that at the time of the accident Da Fonseca was commuting
home from the Culinary Institute’s St. Helena campus. As such, the going and coming
rule would typically bar a vicarious liability claim against the Institute. To take his claim
outside the rule, Jorge invoked the required vehicle exception, arguing at trial that the
Culinary Institute required Da Fonseca to use his personal vehicle to accomplish his job
duties. The jury agreed, finding that Da Fonseca was acting within the scope of his
employment at the time of the accident. This finding is not supported by substantial
evidence.
       Under the required vehicle exception, the employer’s requirement that an
employee use a personal vehicle may be express or implied. (Hinojosa, supra, 8 Cal.3d
at p. 161; County of Tulare v. Workers’ Comp. Appeals Bd. (1985) 170 Cal.App.3d 1247,
1253; Huntsinger, supra, 22 Cal.App.3d at p. 807.) There was no evidence that the



                                             22
Culinary Institute expressly required Da Fonseca to use his car for work purposes. Busby
and Henning both testified that chef instructors were never told to use their private
vehicles for any purpose. And Da Fonseca confirmed this, that he was never told he was
required to use his car for any of his employment duties. Jorge did not present any
evidence to the contrary. There was, in sum, no evidence of any express requirement.
Or, we conclude, an implied requirement.
       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. Henning and Busby both
testified that they did not know—and had no reason to know—how Da Fonseca arrived at
the campus each day. Da Fonseca was not paid for his commute time to or from the
campus. He was never required—indeed, never asked—to run errands on his way to or
from the campus or during his work day. Simply, there was no evidence that during his
on-campus work days, Da Fonseca was impliedly required to use his car to fulfill any of
his work obligations.
       Nor was there evidence—substantial or otherwise—Da Fonseca was impliedly
required to use his car for the off-campus travel he did to conferences, retreats, seminars,
or consulting jobs on behalf of the Institute. The evidence showed only that he used his
personal vehicle to get to and from his off-campus commitments and that he could have
used alternative means to get there. This is insufficient to take Da Fonseca’s negligent
conduct outside the scope of the going and coming rule, because the required vehicle
exception applies only where the employer requires the employee to use his or her
vehicle to perform his or her work duties during the work day, as Smith, supra, 69 Cal.2d
814, and Huntsinger, supra, 22 Cal.App.3d 803, confirm.
       Here, unlike Smith, Huntsinger, or Hinojosa, and like Ducey and Tryer, there was
no evidence Da Fonseca needed to use his car or have it be available during his work day
in order to perform his duties.



                                             23
       The few cases relied on by Jorge are not to the contrary. Lobo v. Tamco (2010)
182 Cal.App.4th 297 (Lobo), heavily relied on by Jorge because of the employee’s
relatively infrequent use of the vehicle, held that the applicability of the required vehicle
exception was a question for the jury. In that case, Luis Duay Del Rosario, an 16-year
employee of Tamco, was driving home from work when he struck and killed Deputy
Sheriff Daniel Lobo. (Id. at pp. 299, 301.) One of the requirements of Del Rosario’s
written job description was, if necessary, to visit customer facilities to answer complaints,
obtain information, and maintain customer relations. (Id. at pp. 301–302.) Del Rosario
testified that if a customer called with quality concerns, he and a sales engineer would go
to the site, riding in the engineer’s car. (Id. at p. 302.) On occasion, he would use his
own car if no sales engineer was available. He had visited customer sites “ ‘very few’ ”
times, using his own car fewer than 10 times. His supervisor testified that Del Rosario
was required to use his personal car on the occasions where it was necessary to visit
customers, and no company car was provided. (Ibid.)
       Lobo’s survivors filed wrongful death suits, naming Tamco as a defendant on a
respondeat superior theory. Tamco moved for summary judgment, contending that the
evidence established as a matter of law that Tamco was not vicariously liable for Lobo’s
death because Del Rosario was not acting within the scope of employment when he was
commuting home. The trial court granted summary judgment. Plaintiffs appealed, and
the Court of Appeal reversed. (Lobo, supra, 182 Cal.App.4th at pp. 299–300.) Doing so,
the court noted that application of the required vehicle exception turned on “whether the
employer expressly or implicitly required the employee to make the vehicle available or
had reasonably come to expect that the vehicle would be available for work purposes and
whether the employer derived a benefit from the availability of the vehicle. [Citations.]”
(Id. at p. 303.) And, it further noted, the frequency of using the car for business purposes
was not determinative: “Here, [the 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


                                              24
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.”
(Ibid.)
          Lobo is distinguishable from the facts here in critical ways: Del Rosario was
required to visit customer sites during his work day; no company car was provided for
that purpose; and Del Rosario’s supervisor testified that the employee was “required to
use his personal car to discharge that duty.” (Lobo, supra, 182 Cal.App.4th at p. 302.)
There was no evidence here that Da Fonseca was required to use any car, let alone his
own car, to accomplish his work duties during his work day. Where there is no evidence
that the employee was required to have his or her car available during the work day, there
is no question for the jury as to the applicability of the required vehicle exception. 9
          Moradi v. Marsh USA, Inc. (2013) 219 Cal.App.4th 886, the other tort case
holding the required use exception applicable, is similarly inapposite. That case involved
an employee of an insurance broker who was “required each workday to drive to and
from the office in her personal vehicle,” which she “had to use . . . to visit prospective
clients.” (Id. at p. 890.)
          Jorge contends that there was “ample evidence” from which the jury could have
found that Da Fonseca’s automobile use was an implied condition of his employment.
He makes much of Da Fonseca’s off-campus work assignments, highlighting the
extensive travel he did on behalf of the Culinary Institute. But Anderson, supra,
14 Cal.App.4th 254, dispensed with the notion that the need to show up for work at
different sites rendered the employee’s commute extraordinary—or for the benefit of the

          9
         Indeed, it may be said that the case does not assist Jorge at all, as on remand the
jury found the required vehicle exception inapplicable. (Lobo v. Tamco (2014)
230 Cal.App.4th 438, 440–441 [jury’s finding that exception did not apply was supported
by substantial evidence: employee’s occasional use of personal vehicle for work was
only for employee’s own convenience and did not benefit employer, and employer never
asked employee to use vehicle but merely sometimes acquiesced in employee’s desire to
do so].)


                                              25
employer. In Anderson, a lineman for Pacific Gas & Electric Company (PG&E) worked
out of various locations. He would report to work at a company point of assembly,
traveling there in his own vehicle and then traveling on to various job sites in a company
vehicle. Per a union contract, he received a per diem travel allowance whenever he
reported to a point of assembly more than 25 miles from his home. At the time of the
accident, he had finished work for the day, had traveled more than 25 miles from his
home to the point of assembly, and had another PG&E employee in his car. (Id. at
pp. 256–257.) Affirming summary judgment for PG&E based on the going and coming
rule, the Court of Appeal concluded that the fact the employee reported to work at
different, and constantly changing, remote locations did not make his regular commute to
and from work part of his job or mean that he was acting within the course and scope of
his employment during his trip home (even with a transportation allowance). (Id. at
p. 262.)
       Jorge also argues that Da Fonseca’s use of the Culinary Institute’s travel expense
form evidenced an implied requirement that he drive his personal vehicle for work
purposes. In Jorge’s words: “Although the [Culinary Institute] did not directly tell
Mr. Da Fonseca how to get to the off-campus work [citations], the evidence shows it
anticipated and expected he would do so by using his own car. The [Culinary Institute’s]
own travel expense form stated that it reimbursed mileage for ‘employee car only.’
Further, it knew early on in his employment that Mr. Da Fonseca was indeed using his
car to travel to his off-campus work assignments because Mr. Da Fonseca submitted a
travel expense form seeking reimbursement for his mileage in December of 2007 (seven
months after starting employment) and the [Culinary Institute] reimbursed him.” But
Da Fonseca’s use of a travel expense form to seek reimbursement for miles traveled to an
off-campus work site is not evidence of an implied requirement that he have his car
available to fulfill his duties during the work day. Indeed, by that logic, any time an
employee drove a personal vehicle to an airport while traveling for work and
subsequently sought reimbursement for the miles driven, the employer would be



                                             26
vicariously liable for an accident caused by the employee while driving to his or her
regular workplace on a different day. That is not the law.
       Jorge also points to evidence that Da Fonseca was paid for travel time to and from
off-campus events to support the jury’s finding that Da Fonseca was acting in the scope
of his employment at the time of the accident. While it is correct that an employee who
was compensated for his or her travel time may be found to have been acting within the
scope of employment during that travel (see generally Hinman, supra, 2 Cal.3d at
p. 963), that is irrelevant here, since Da Fonseca’s commute home when the accident
occurred was not compensated.
       While there was no evidence that Da Fonseca was impliedly required to drive his
private vehicle as a condition of his employment, there was direct evidence that he was
not: Henning, Busby, and Da Fonseca all testified that Da Fonseca was not required to
use his private vehicle. As to his on-campus work commitments, Henning and Busby
both testified that they did not know how Da Fonseca arrived at work each day because
there was no reason for them to know. Da Fonseca testified that as an alternative to
driving, he could have carpooled, been dropped off, or taken public transportation. As to
off-campus commitments, Henning testified that a personal vehicle was not required,
while Busby testified that a chef instructor could travel via a rental car, public
transportation, carpool, or personal vehicle. And Da Fonseca testified that no one at the
Culinary Institute dictated how he was to get to off-campus work commitments.
       But even 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 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.


                                              27
       Finally, Da Fonseca’s use of his car to transport his chef’s knives and jackets to
and from the St. Helena campus, to off-campus work commitments, and, in the case of
his soiled chef’s jackets, to the cleaner, did not extend liability to the Culinary Institute.
Carrying employer-owned tools of the trade to work does not render an employee’s
commute within the course and scope of employment, as the Supreme Court has
recognized: transporting work materials—even essential ones—to facilitate work does
not warrant exception to the going and coming rule “unless such materials require a
special route or mode of transportation or increase the risk of injury . . . .” (Wilson v.
Workers’ Comp. Appeals Bd. (1976) 16 Cal.3d 181, 185.) “Such cartage is common and
must be viewed as incident to the commute rather than as part of the employment.”
(Ibid.; see also Ducey, supra, 25 Cal.3d at p. 714 [evidence did not establish applicability
of required vehicle exception as a matter of law even though employee sometimes
transported cleaning equipment and small furnishings in her car].)
       The same is true of Da Fonseca’s chef’s coats. He testified that he generally left
his soiled chef’s coats in his car until he had collected a few to take to Klass Cleaners as a
matter of convenience. He was not required as a condition of his employment to use
Klass Cleaners for cleaning his coats, as he could use alternative methods to launder
them, including using a different cleaner or washing them himself. Nor did the trips to
Klass Cleaners require the use of his car, as he was free to choose alternative methods of
transportation to take his coats there. On top of all this, it was undisputed that
Da Fonseca was not traveling to Klass Cleaners at the time of the accident.10
                                       DISPOSITION
       The judgment and the order denying the Culinary Institute’s motion for judgment
notwithstanding the verdict are reversed. The trial court is directed to enter an order
granting the motion. The Culinary Institute shall recover its costs on appeal.

       10
          Because we reverse the trial court’s order denying the Culinary Institute’s
motion for judgment notwithstanding the verdict, we need not address the evidentiary
issue the Culinary Institute raises concerning an admission made by Da Fonseca that he
worked a variable schedule to accommodate his employer’s needs.


                                              28
                                        _________________________
                                        Richman, Acting P.J.


We concur:


_________________________
Stewart, J.


_________________________
Miller, J.




A143545; Jorge v. Culinary Institute




                                   29
Trial Court: Sonoma County Superior Court

Trial Judge: Hon. Elliot Lee Daum

Counsel:

Gordon & Rees, Charles S. Custer, Ryan T. Birmingham;
Hayes, Scott, Bonino, Ellingson & McLay, Mark G. Bonino, Gabrielle A. Hollingsworth,
for Defendant and Appellant.

Law Office of Edie Sussman, Edie Sussman;
The Veen Firm, Craig M. Peters, Katherine A. Higgins, David L. Winnett;
Wester Law Firm, Barry Wester for Plaintiff and Respondent.




                                         30
