Filed 4/18/17 (unmodified opn. attached)




                                CERTIFIED FOR PUBLICATION

             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                 FOURTH APPELLATE DISTRICT

                                           DIVISION THREE



MICHAEL J. SUMRALL et al.,

    Plaintiffs and Appellants,                         G052678

        v.                                             (Super. Ct. No. 30-2012-00571554)

MODERN ALLOYS, INC.,                                   ORDER MODIFYING OPINION;
                                                       NO CHANGE IN JUDGMENT
    Defendant and Respondent.



                 This court hereby orders that the opinion filed herein on April 13, 2017, be
modified as follows:
                 1. On page 1, second paragraph the name “Waylie” is deleted and replaced
with “Wylie” so the paragraph reads:
                 “Law Offices of William J. Kopeny and William J. Kopeny; Aitken,

Aitken, Cohn, Wylie A. Aitken and Megan G. Demshki; Hunt & Adams and John C.
Adams for Plaintiffs and Appellants.”
                 2. On page 7, second sentence of the first full paragraph, the word “cannot”
is deleted and replaced with “can” so the sentence reads:
             “Thus, the question of whether Campos was engaged in a business errand—
and was therefore acting within the scope of his employment—is not a question of law
that can be resolved in a motion for summary judgment.”
             This modification does not change the judgment.



                                              MOORE, ACTING P. J.

WE CONCUR:



ARONSON, J.



THOMPSON, J.
Filed 4/13/17 (unmodified version)




                                CERTIFIED FOR PUBLICATION

             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                 FOURTH APPELLATE DISTRICT

                                         DIVISION THREE



MICHAEL J. SUMRALL et al.,

    Plaintiffs and Appellants,                      G052678

        v.                                          (Super. Ct. No. 30-2012-00571554)

MODERN ALLOYS, INC.,                                OPINION

    Defendant and Respondent.



                 Appeal from a judgment of the Superior Court of Orange County, John C.
Gastelum, Judge. Reversed.
                 Law Offices of William J. Kopeny and William J. Kopeny; Aitken, Aitken,
Cohn, Waylie A. Aitken and Megan G. Demshki; Hunt & Adams and John C. Adams for
Plaintiffs and Appellants.
                 Wait & Hufnagel, Thomas B. Wait, Robert A. Hufnagel and Danica Y.
Chang for Defendant and Respondent.
                                     *         *          *
                                             I
                                    INTRODUCTION
              “In general, an employee is not acting within the scope of employment
while travelling to and from the workplace. But if the employee, while commuting, is on
an errand for the employer, then the employee‟s conduct is within the scope of his or her
employment from the time the employee starts on the errand . . . .” (CACI No. 3724 [The
Going-and-Coming Rule—Business Errand Exception], italics added; Jeewarat v.
Warner Bros. Entertainment Inc. (2009) 177 Cal.App.4th 427, 435-436 (Jeewarat).)
              Here, a construction company paid its employee only for the hours he
worked at a jobsite. But rather than driving his vehicle directly from his home to the
jobsite, the company expected the employee to first commute to the company‟s “yard.”
The employee would then drive a company truck from the yard to the jobsite,
transporting coworkers and materials. One day, while driving from his home to the yard,
the employee collided with a motorcyclist, who sued the construction company. The trial
court granted defendant summary judgment, finding that the employee was commuting to
his “work,” and therefore he was not acting within the scope of his employment.
              However, there is a material, triable issue: the location of the “workplace.”
If the yard is the employee‟s “workplace,” then he apparently was on an ordinary
commute and he was not acting within the scope of his employment. In this lawsuit,
defendant infers from the undisputed facts that its yard is the employee‟s “workplace,”
even though it paid its employee only from the time he arrived at the jobsite. But if the
employee‟s jobsite is his “workplace,” as plaintiff infers, then the employee was arguably
on a business errand to the yard for the employer‟s benefit, and that business errand
would have started when the employee left his home.
              We cannot state as a matter of law that the employee was not on a business
errand while commuting from his home to the employer‟s yard. Thus, we will reverse
the trial court‟s granting of defendant‟s summary judgment motion.

                                             2
                                             II
                   FACTUAL AND PROCEDURAL BACKGROUND
               In October 2010, Modern Alloys Inc. (Modern Alloys) employed Juan
Campos as a cement/mason finisher. Campos‟ job duties entailed setting forms, placing
concrete, and smoothing it out once it set. Campos received an hourly wage for an eight-
hour shift, which began and ended at the jobsite where he performed his work. Modern
Alloys had a contract to install a new center median at a jobsite on the 710 freeway.
               Modern Alloys‟ yard is located in the City of Stanton. Modern Alloys
expected Campos to first arrive at its yard at about 8:00 p.m., before working at the
jobsite from 9:00 p.m. to 5:00 a.m. Crews from Modern Alloys would drive from the
yard to the jobsite in company vehicles. Once Campos arrived at the yard, he would
drive one of the company‟s vehicles, a two-ton dump truck, from the yard to the jobsite
and then return it to the yard at the end of his shift. Campos would take his coworkers
along in the company‟s truck, which was also loaded with construction materials.
               On October 7, at about 7:30 p.m., Campos was driving from his home to
the yard in his own vehicle. Campos collided with Michael Sumrall, who was riding a
motorcycle. The collision occurred on the street outside of the parking lot at the Modern
Alloys yard.
               Sumrall filed a complaint against Modern Alloys alleging respondeat
superior liability for Campos‟ negligence; Sumrall‟s spouse alleged loss of consortium.
Modern Alloys filed a motion for summary judgment, claiming Campos was not acting
within the scope of his employment under the “going and coming” rule. Sumrall filed an
opposition claiming that Modern Alloy was liable under the “business errand” exception.
The trial court granted Modern Alloys‟ summary judgment motion and entered a final
judgment.




                                             3
                                               III
                                        DISCUSSION
               The legal principles involved in motions for summary judgment are well
established. The moving party bears the initial burden to make a prima facie showing
that no triable issue of material fact exists. (Aguilar v. Atlantic Richfield Co. (2001) 25
Cal.4th 826, 843.) If this burden is met, the party opposing the motion bears the burden
of showing the existence of disputed facts. (Ibid.) Courts “„construe the moving party‟s
affidavits strictly, construe the opponent‟s affidavits liberally, and resolve doubts about
the propriety of granting the motion in favor of the party opposing it.‟” (Seo v. All-Makes
Overhead Doors (2002) 97 Cal.App.4th 1193, 1201-1202.) We review the trial court‟s
decision de novo. (Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 65, 67-68.)
               “In determining if the papers show that there is no triable issue as to any
material fact, the court shall consider all of the evidence set forth in the papers . . . and all
inferences reasonably deducible from the evidence, . . . summary judgment shall not be
granted by the court based on inferences reasonably deducible from the evidence if
contradicted by other inferences or evidence that raise a triable issue as to any material
fact.” (Code Civ. Proc., § 437c, subd. (c), italics added.)
               Here, it is undisputed that Campos was driving his own vehicle from his
home to the Modern Alloys yard at the time of the collision. Thus, there is a reasonable
inference that Campos was on a normal commute. However, it is also undisputed that
Campos transported Modern Alloys‟ vehicle, workers, and materials from its yard to the
jobsite, and that Modern Alloys did not pay Campos until he reached the jobsite. Thus,
there is a reasonable inference that Campos was also on a business errand for Modern
Alloys‟ benefit while commuting from his home to the yard.
               Because we can draw two reasonable inferences from these undisputed
facts, we cannot affirm the trial court‟s grant of summary judgment.



                                                4
A. The scope of employment under the respondeat superior doctrine is broad.
              Individuals are usually held legally accountable for their own actions; the
negligence of one person is generally not imputed to another. Vicarious liability is the
exception and it is imposed for public policy reasons. (See, e.g., Civil Code, § 1714.1
[parents are held vicariously liable for the actions of their children]; Pub. Util. Code,
§ 21404 [owners of aircraft are held vicariously liable for the actions of their operators].)
              The doctrine of respondeat superior imposes vicarious liability on
employers for the actions of their employees while acting within the scope of their
employment. (Jeewarat, supra, 177 Cal.App.4th at p. 435.) The public policy
supporting 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. . . .‟” (Hinman v. Westinghouse Elec. Co. (1970) 2 Cal.3d 956, 959-960
(Hinman).) Thus, the respondeat superior doctrine: (1) encourages accident prevention;
(2) generally means that an innocent person who has been injured by an employee‟s
tortuous conduct will be more likely to collect damages; and (3) encourages employers to
protect against that risk by obtaining insurance and spreading those costs over the entire
business and ultimately to its customers. (Ibid.)
              “In California, the scope of employment has been interpreted broadly under
the respondeat superior doctrine. For example, „[t]he 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.‟ [Citation.] . . . Moreover, „“where the
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 injury, unless it clearly appears that neither directly nor
indirectly could he have been serving his employer.”‟” (Farmers Ins. Group v. County of
Santa Clara (1995) 11 Cal.4th 992, 1004, italics added.)

                                              5
B. Whether an employee is on a business errand for the benefit of his or her employer is
usually a question of fact for the jury.
              Generally, under the going and coming rule, an employee going to or
coming home from work is “ordinarily considered outside the scope of employment so
that the employer is not liable for his torts.” (Hinman, supra, 2 Cal.3d at p. 961.) “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 service to his employer [citation].” (Ibid.)
              An exception to the going and coming rule occurs when an employee
commits a negligent act while engaged in a “special errand” or a “business errand” for
                                                      1
the benefit of his or her employer while commuting. (Ducey v. Argo Sales Co. (1979)
25 Cal.3d 707, 722; CACI No. 3724.) “If the employee is not simply on his way from his
home to his normal place of work or returning from said place to his home for his own
purpose, but is coming from his home or returning to it on a special errand either as part
of his regular duties or at a specific order or request of his employer, the employee is
considered to be in the scope of his employment from the time that he starts on the errand
until he has returned or until he deviates therefrom for personal reasons.” (Boynton,
supra, 139 Cal.App.2d at p. 789, italics added [employee attended social function after
work where his attendance was expected and it benefitted the employer].)
              Whether an employee is on a business errand is usually a question of “fact
for the jury. All of the relevant circumstances must be considered and weighed in
relation to one another.” (Trejo v. Maciel (1966) 239 Cal.App.2d 487, 494.) “Generally,
whether an employee is within the scope of employment is a question of fact; however,

1
 The term “special errand” is something of a misnomer because it implies that the
employer must make a specific request for a particular errand. However, the “special
errand” can also be part of the employee‟s regular duties. (Boynton v. McKales (1956)
139 Cal.App.2d 777, 789 (Boynton).) Thus, we have chosen to use the term “business
errand” throughout this opinion, as it is more precise and descriptive.

                                              6
when the facts of a case are undisputed and conflicting inferences may not be drawn from
those facts, whether an employee is acting within the scope of employment is a question
of law.” (Blackman v. Great American First Savings Bank (1991) 233 Cal.App.3d 598,
602 (Blackman), italics added.)
              Here, as we noted earlier, there are conflicting inferences that a reasonable
fact finder could draw from the undisputed facts. Thus, the question of whether Campos
was engaged in a business errand—and was therefore acting within the scope of his
employment—is not a question of law that cannot be resolved in a motion for summary
judgment. A jury must consider and weigh all of the relevant circumstances.


C. A jury could reasonably find that Campos’ commute incidentally benefitted Modern
Alloys and was not common to ordinary members of the workforce.
              The business errand exception “will be made to the „going and coming‟ rule
where the trip involves an incidental benefit to the employer, not common to commute
                                                 2
trips by ordinary members of the work force.”        (Hinman, supra, 2 Cal.3d at p. 962.)
Again, the jury‟s instruction on the business errand exception explains it concisely: “In
general, an employee is not acting within the scope of employment while travelling to
and from the workplace. But if the employee, while commuting, is on an errand for the
employer, then the employee‟s conduct is within the scope of his or her employment
from the time the employee starts on the errand . . . .” (CACI No. 3724 [The Going-and-
Coming Rule—Business Errand Exception], italics added.)

2
  The trial court noted in its summary judgment ruling that the entire “work force” at
Modern Alloys purportedly assembled each day at the yard before heading to the jobsite,
citing this same quote from Hinman. The court apparently reasoned that Campos‟
commute was therefore “common” to other members of Modern Alloy‟s “work force.”
However, we interpret that the Supreme Court in Hinman intended that a trier of fact
should consider the broader “work force.” That is, the operative question for a jury in
this case would be whether Campos‟ commute was common as compared to ordinary
members of the public, not as compared to other Modern Alloys employees.

                                             7
              Modern Alloys argues that: “Whether or not a jury could have discovered
some hypothesis to find that Mr. Campos was acting within the scope of his employment
is irrelevant.” (Original bolding and capitalization omitted.) We disagree. The
possibility that a jury could reasonably “discover” that Campos may have been on a
business errand at the time of the collision is precisely why this matter cannot be properly
resolved in a motion for summary judgment.
              Here, a jury may need to resolve several questions in order to determine if
Campos was on a business errand. Was the “workplace” the yard where Campos first
arrived, or was it the jobsite where he applied his skills as a concrete worker and was paid
for that work? Was it an incidental benefit for Modern Alloys to have Campos—a
masonry worker—first arrive at the yard and drive material and coworkers in a two-ton
truck to a jobsite without being paid? Is it common for a commuter to drive from his
home to a location where he will not be paid for his work, rather than to drive directly to
the jobsite where the employer will pay him for his work? Would Campos have driven
directly from his home to the jobsite if not expected to do otherwise?
              In granting Modern Alloys‟ summary judgment motion, the trial court
determined that “case law” does not support a conclusion that Campos may have been on
a business errand at the time of the collision. While we (and apparently the parties) could
not find any published opinions that closely resemble the facts in this case, we
                      3
respectfully disagree. Indeed, virtually all of tort law is a creature of case law (including
3
  The published opinions we have reviewed in this area of the law are all readily
distinguishable on their facts. Since each “business errand” question necessarily presents
a unique, fact-intensive inquiry, these resources have not been particularly helpful to our
analysis. (See, e.g., Blackman, supra, 233 Cal.App.3d at p. 601 [no business errand
while employee drove to school after work]; Tognazzini v. San Luis Costal Unified
School Dist. (2001) 86 Cal.App.4th 1053, 1058 [no business errand while employee
drove on day off]; Felix v. Asai (1987) 192 Cal.App.3d 926, 929-930 [no business errand
while employee drove on detour to parent‟s home]; Harvey v. D & L Constr. Co. (1967)
251 Cal.App.2d 48, 49 [possible business errand while employee was providing another
employee a ride home from an out-of-state worksite].)

                                              8
the coming and going rule and the business errand exception). “„[T]he law of torts is
anything but static, and the limits of its development are never set. When it becomes
clear that the plaintiff‟s interests are entitled to legal protection against the conduct of the
defendant, the mere fact that the claim is novel will not of itself operate as a bar to the
remedy.‟” (Beckwith v. Dahl (2012) 205 Cal.App.4th 1039, 1050, citing Prosser &
Keeton, Torts (5th ed. 1984) § 1, p. 4, fn. omitted.)
              Finally, we note that the public policy objectives of the respondeat superior
doctrine support a finding that vicariously liability may attach to Modern Alloys under
these facts. If Modern Alloys had actually paid Campos from the time he arrived at its
yard, then it arguably would not be reasonable to hold the company liable for any of
Campos‟ torts before he got there. That would not be a foreseeable cost of Modern
Alloy‟s business. However, the expenses involved in hauling vehicles, equipment, and
workers from its yard to a jobsite are most definitely a foreseeable cost of Modern
Alloy‟s construction business. Yet Campos performs at least some of those hauling
duties at no additional cost to Modern Alloys, and it accomplishes those savings by
directing Campos to first drive from his home to its yard. Therefore, Modern Alloys has
arguably assumed the “allocation of a risk” under the respondeat superior doctrine, and
the business errand exception to the going and coming rule may reasonably apply. (See
Hinman, supra, 2 Cal.3d at pp. 959-960.)
              In sum, this case presents a decision for a jury to make under its unique
facts and circumstances. We simply cannot state as a matter of law that Campos was not
on a business errand for the benefit of Modern Alloys at the time of the collision.




                                               9
                                       IV
                                DISPOSITION
          The judgment is reversed. Costs on appeal are awarded to appellants.




                                            MOORE, ACTING P. J.


WE CONCUR:



ARONSON, J.



THOMPSON, J.




                                       10
