Opinion
H034893 Monterey County Super. Ct. No. M88025
08-29-2011
GARY S. MAZZURCO et al., Plaintiffs and Appellants, v. WELLS FARGO BANK, Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
At issue in this appeal is whether, under the circumstances of this case and as a matter of law, the "going and coming rule" precludes an employer's respondeat superior liability for injuries sustained by third parties in a motor vehicle accident involving an employee driving his own car home from a worksite other than his main office.
Thomas Gano worked as a full time, salaried employee for Wells Fargo Bank at a branch in Salinas, consulting on home loans. But as part of his job, he sometimes worked at sales offices located in two residential subdivisions in King City and Greenfield, respectively, where he performed "point of sale" home loan consulting for Wells Fargo with prospective buyers of homes within the subdivisions. Gano lived in Carmel Valley and drove his own car to work, no matter what work location he went to for the day. At the time, he did not receive reimbursement from Wells Fargo for mileage; nor was he paid for his travel time. He did not need his car during the workday for business purposes and he did not travel for work to multiple work locations during a single workday. But sometimes he had to stop at his office in Salinas to pick up client files before traveling in the opposite direction to one of the subdivisions to work for the day. And he used a company issued laptop computer in order to do his work, using company proprietary software, no matter the location. When Gano was headed to one of the subdivisions to work the next day, he took the laptop home with him the prior evening. When he did not take it home, the laptop stayed locked up in Gano's office in Salinas. About once every five days he worked at home, either after hours or on the weekend, on client files. But he did not ever telecommute from home in the sense that he worked from there during his normal business hours.
On April 28, 2007, Gano was driving home from one of the subdivisions, having concluded his work there for the day. On the way home, he was involved in an auto accident with plaintiffs and appellants Gary and Jennifer Mazzurco, who were together on a motorcycle. The Mazzurcos were injured and Gano suffered minor injuries. He did not claim work related injuries as a result of the accident.
The Mazzurcos sued Gano and ultimately, his employer, Wells Fargo Bank. As against Wells Fargo, who was sued for negligence and for damages resulting from emotional distress and loss of consortium, the Mazzurcos contended that Gano was acting in the course and scope of his employment when the accident happened and therefore that Wells Fargo was responsible for their damages based on principles of respondeat superior. Wells Fargo moved for summary judgment, asserting that Gano was not acting within the course and scope of his employment at the time of the accident and that the "going and coming rule" precluded its vicarious liability for Gano's negligence as a matter of law.
The Mazzurcos initially sued as defendants Gano, the County of Monterey, and the California Department of Transportation. As we glean from Wells Fargo's motion for summary judgment, it was later sued as a Doe defendant but the papers comprising the amendment to the complaint in this regard are not in the record. The disposition of the action vis-a-vis the defendants other than Wells Fargo are not relevant to this appeal.
The trial court granted summary judgment and the Mazzurcos appeal, contending that there are triable issues of fact about whether Gano was acting in the course and scope of his employment at the time of the accident. They also challenge some evidentiary rulings the trial court made in connection with Wells Fargo's motion for summary judgment. Finally, they contend that the court should have granted their motion to tax Wells Fargo's costs of suit to the extent that Wells Fargo claimed $945.63 in voluntary mediation costs. We reject the Mazzurcos' contentions and affirm the judgment.
STATEMENT OF THE CASE
We take the underlying facts from the papers submitted in connection with the motion for summary judgment.
In April 2007, Gano worked as a salaried home mortgage consultant for Wells Fargo. Gano's office was located at the main Wells Fargo bank branch in Salinas, where he physically worked most days. But he also rotated with another employee, working out of the sales offices of two residential subdivisions in King City and Greenfield, respectively, where he performed home loan consulting functions for Wells Fargo but at "point of sale" where the homes to be sold to potential Wells Fargo customers were located.
Gano drove his own car to and from work no matter which of the three locations he was headed to for the day. Once at work, he remained there for the day and he did not need his car for any business purposes during the workday, either to travel to multiple work locations in a single day or to meet with clients. As a salaried employee, he was not paid for his travel time. He was not reimbursed for mileage or auto expenses; nor was he eligible to receive an employee auto allowance from Wells Fargo.
Gano carried a personal cell phone with him that he also used for business calls. And he was required to use a company issued laptop equipped with Wells Fargo proprietary software for his work no matter the location. He brought the laptop home with him from the Salinas office on the days before he was to work at one of the subdivisions. He also brought client files home with him from the office the preceding day about half of the time that he was going to work the next day at one of the subdivisions. This was so he would not have to first drive to Salinas from home before heading in the opposite direction to one of the subdivisions. The other half of the time before a subdivision workday, he needed to go from home to his office in Salinas to pick up client files before traveling to one of the subdivisions for a day of work. If he did not bring the laptop home, it remained locked up in his Salinas office. After working at one of the subdivisions for the day, Gano would regularly bring the laptop and client files home with him. About one day in five, and at his own discretion, Gano worked on a client file at home either after hours or on the weekend. But he did not telecommute in the sense that he ever worked from home during normal business hours, though it was within his discretion to do so.
After concluding his work business for the day on April 28, 2007, Gano proceeded on his commute home. On the way home, he was involved in a traffic accident on Carmel Valley Road with the Mazzurcos, who were together on a motorcycle. Gano sustained minor injuries but he made no claim of an occupational injury so as to obtain workers' compensation benefits. At the time of the accident, Gano had his company laptop and his personal cell phone with him in his car.
II. Procedural Background
The Mazzurcos filed their complaint, seeking damages, as relevant here, for general negligence, including for loss of consortium and infliction of emotional distress. Wells Fargo, having been sued as a defendant by Doe amendment, filed its answer, which included the affirmative defense that its employee, Gano, had not been acting in the course and scope of his employment at the time of the accident.
Wells Fargo moved for summary judgment on the complaint, contending that it could not be vicariously liable for the Mazzurcos' injuries as a matter of law based on principles of respondeat superior because Gano was not acting in the course and scope of his employment in that he was on his regular commute home in his personal vehicle and the "going and coming" rule precluded such liability.
Included in Wells Fargo's moving papers were requests for admission and special interrogatories propounded to Gano, also a party to the action, along with his responses. The moving papers also included the declaration of Stephanie Challis, Gano's supervisor, which included statements to the effect that she did not view Gano's accident as work related; she did not consider him to be acting within the course and scope of his employment at the time; he was not acting on Wells Fargo's behalf; and he was not performing a special errand for Wells Fargo at the time. Challis also stated that Gano's practice of bringing the company laptop and client files home with him before going to work the next day at one of the subdivisions was "for his personal convenience."
The Mazzurcos opposed the motion, contending that the "going and coming" rule did not bar Wells Fargo's respondeat superior liability as a matter of law because there were disputed material facts about whether Gano was required to have and use his personal vehicle for his work and whether his home was an additional work site, making his commute to and from his home part of the course and scope of his employment. The Mazzurcos requested as part of their opposition that the court take judicial notice of the various distances between Gano's home and the three locations to which he traveled for work and the directions in which he traveled to and from these locations. And they submitted the transcript of portions of Gano's deposition testimony, as had Wells Fargo in support of its motion.
The Mazzurcos filed objections to the court's consideration of the requests for admission and interrogatories propounded to Gano, and his responses thereto. As to the requests for admission, their objections were based on Code of Civil Procedure section 2033.410in that "[o]ne party's responses to a request for admission [are] not binding on another party" and Monroy v. City of Los Angeles (2008) 164 Cal.App.4th 248, 260-261 (Monroy). As to the interrogatories, their objection was based on section 2030.410 in that "one party's answers to interrogatories are not admissible against another party."
Further statutory references are to the Code of Civil Procedure unless otherwise indicated.
Other stated grounds for objection are not relevant here.
The Mazzurcos also objected to portions of the Challis declaration that expressed her views about whether Gano was acting in the course and scope of his employment at the time of the accident. The objection asserted that the statements are "inadmissible opinion and legal conclusion, and not [based on] the personal knowledge of the witness," citing Evidence Code sections 702, 800, and 801. The Mazzurcos further objected to Challis's statement that Gano brought his laptop home "for his personal convenience" on the basis that the statement was "inadmissible hearsay, opinion and conclusion, and not [based on] the personal knowledge of the witness," citing Evidence Code sections 702, 800, 801, and 1200.
Wells Fargo, for its part, responded to the evidentiary objections and filed its own objections, as relevant here, to the court's consideration of various portions of the transcript of Gano's deposition testimony, i.e., those concerning his prior work for First Western Mortgage, and the Mazzurcos' request for judicial notice, both on the basis of relevance and that the probative value of the evidence was outweighed by its prejudicial effect under Evidence Code section 352.
Both parties raised their evidentiary objections in argument at the hearing on the motion. The court sustained from the bench the Mazzurcos' objections to portions of the Challis declaration but overruled their objections as to the requests for admission and special interrogatories. And the court's subsequent written order sustained all of Wells Fargo's evidentiary objections.
As to the merits, the court's written order granted the motion, citing "the undisputed facts" that brought the case within the "going and coming" rule that precluded respondeat superior liability against Wells Fargo. The order specifically concluded that there was no evidence that Wells Fargo derived any "incidental benefit from Gano's ordinary commute" to "one of three definite places of business" or that he was compensated for his travel time. In support of its ruling, the court cited Anderson v. Pacific Gas & Electric Co. (1993) 14 Cal.App.4th 254 (Anderson), which held that an employee is not considered to be acting in the course and scope of employment when going to or coming from his or her place of work even if the employee receives a travel allowance, but that an exception to this rule will generally apply if the employer derives some incidental benefit from the employee's trip. The court also observed that the incidental benefit to the employer " 'must be sufficient enough to justify making the employer responsible for the risks inherent in the travel,' " citing Blackman v. Great American First Savings Bank (1991) 233 Cal.App.3d 598, 604 (Blackman).
The court later entered another written order granting the motion, which comprehensively incorporated its evidentiary rulings and the rationale for its ruling on the merits. This order reflected that the court granted the motion, sustained Wells Fargo's evidentiary objections, sustained the Mazzurcos' objections to portions of the Challis declaration, and overruled the Mazzurcos' objections to the requests for admission and interrogatories propounded to Gano and his responses thereto.
Before entry of judgment, Wells Fargo filed a memorandum of costs as the prevailing party, which included a claim of $945.63 incurred for voluntary mediation costs. The Mazzurcos challenged this claim by motion to tax on the basis that there was no statutory authority for it because the mediation had been voluntary and unsuccessful. Wells Fargo opposed the motion to tax, which the court heard and denied on the basis that the expense was "reasonably necessary." Entry of judgment in favor of Wells Fargo and against the Mazzurcos followed, which included an award of all costs requested by Wells Fargo in the amount of $9,394.03.
The Mazzurcos timely appealed from the judgment, specifically noting that they were also appealing the prejudgment order denying their motion to tax costs.
From the record before us, we assume there is no issue as to the timing of the appeal from the court's prejudgment order denying the Mazzurcos' motion to tax costs, as appealed from the judgment. A postjudgment order denying or awarding costs is appealable as an order after judgment under section 904.1, subdivision (a)(2). (People v. Bhakta (2008) 162 Cal.App.4th 973, 981.) The motion to tax costs here was denied from the bench at the hearing on June 19, 2009, and counsel for Wells Fargo was directed to prepare a formal order, meaning the minute order was not itself appealable under rule 8.104(c)(2) of the California Rules of Court. The subsequent written order appears to have been signed by the court on July 29, 2009, but it does not appear to have been filed, as it bears no stamp indicating that. Nor is there a proof of service attached to the order showing a date of service. The judgment, which included the cost award, was filed on September 29, 2009, and notice of its entry served on October 9, 2009. Notice of appeal from the judgment and order denying motion to tax costs was filed on October 26, 2009. We will consider the appeal from the prejudgment order denying the motion to tax costs from the judgment given the timing of events and that the judgment awards to Wells Fargo all costs requested, including the challenged mediation costs.
DISCUSSION
I. The Court Did Not Err in Granting Summary Judgment as There Were No Triable Issues of Material Fact to Dispute That Gano Was Not Acting in the Course and Scope of His Employment on His Commute Home and That the Going and Coming Rule Bars Vicarious Liability as a Matter of Law
A. Standard of Review
The general standard of review for summary judgment is well established. The motion is well taken "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 judgment [or adjudication] as a matter of law." (§ 437c, subd. (c).) A moving defendant has met its burden of showing that a cause of action has no merit by establishing that one or more elements of the cause of action cannot be established or that there is a complete defense. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849-850 (Aguilar); Lackner v. North (2006) 135 Cal.App.4th 1188, 1196; § 437c, subds. (f)(1) & (p)(2).) The defendant does this either through evidence that conclusively negates an element of the plaintiff's cause of action or conclusively establishes a defense or by evidence the plaintiff does not possess and cannot reasonably obtain needed evidence. (Aguilar, supra, at p. 855.) Only if the defendant meets this burden does the burden shift to the plaintiff to show the existence of a triable issue of fact with respect to the cause of action or defense. (Id. at p. 850.)
Thus, Wells Fargo had the initial burden of furnishing prima facie evidence of no liability in that Gano was not acting within the course and scope of his employment at the time of the accident because the going and coming rule applied. If Wells Fargo met that burden, it was up to the Mazzurcos to present evidence sufficient to create a triable issue of fact that Wells Fargo was liable under the respondeat superior doctrine or facts sufficient to create a reasonable inference that an exception to the going and coming rule applied.
We independently review an order granting summary judgment, viewing the evidence in the light most favorable to the nonmoving party. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768; Lackner v. North, supra, 135 Cal.App.4th at p. 1196.) In performing our independent review, "we apply the same three-step analysis as the trial court. First, we identify the issues framed by the pleadings. Next, we determine whether the moving party has established facts justifying judgment in its favor. Finally, if the moving party has carried its initial burden, we decide whether the opposing party has demonstrated the existence of a triable, material fact issue." (Chavez v. Carpenter (2001) 91 Cal.App.4th 1433, 1438.)
In determining whether there are triable issues of fact, we consider all the evidence set forth by the parties, except that to which objections have been made and properly sustained. (§ 437c, subd. (c); Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.) In construing the evidence the moving party's showing is "strictly scrutin[ized]" while the opposing party's showing is viewed "liberally." (Saelzler v. Advanced Group 400, supra, 25 Cal.4th at p. 768.) Any doubts about whether the motion should have been granted "should be resolved in favor of the party opposing the motion." (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107, superseded by statute on another ground as stated in Aguilar, supra, 25 Cal.4th at p. 854.) Notwithstanding the liberality afforded to a plaintiff's showing in opposition to summary judgment, his or her evidence remains subject to close examination. (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 433.) There is a triable issue of material fact "if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof." (Aguilar, supra, 25 Cal.4th at p. 850, fn. omitted.)
Whether an employee was acting within the course and scope of employment when he or she committed a tort—the question presented in this case—is generally an issue of fact, unless the facts are undisputed and no conflicting inferences are possible, in which case the question is one of law. (Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 299 (Lisa M.); Anderson, supra, 14 Cal.App.4th at p. 261.)
B. Applicable Substantive Law
"[U]nder the doctrine of respondeat superior, an employer is vicariously liable for torts committed by an employee within the scope of employment. [Citation.] The doctrine is based on a policy that an employer should be responsible for losses caused by the torts of employees that occur in the conduct of the employer's enterprise. [Citation.]" (Anderson, supra, 14 Cal.App.4th at p. 258, fn. omitted.) Policy reasons for the doctrine include " '(1) to prevent recurrence of the tortious conduct; (2) to give greater assurance of compensation for the victim; and (3) to ensure that the victim's losses will be equitably borne by those who benefit from the enterprise that gave rise to the injury. [Citation.]' [Citation.]" (Id. at fn. 1; Sunderland v. Lockheed Martin Aeronautical Systems Support Co. (2005) 130 Cal.App.4th 1, 8-9 (Sunderland).) "These rationales derive from a deliberate allocation of the risk, by which losses caused by employees' torts that '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.' [Citation.] The respondeat superior doctrine is also 'based on a " 'deeply rooted sentiment' " that it would be unjust for an enterprise to disclaim responsibility for injuries occurring in the course of its characteristic activities.' (Mary M. v. City of Los Angeles [(1991)] 54 Cal.3d [202,] 208 [(Mary M.)].)" (Sunderland, supra, 130 Cal.App.4th at pp. 8-9.)
Liability under the respondeat superior doctrine does not rely on the employer's fault and it is thus " 'a departure from the general tort principle that liability is based on fault.' " (Sunderland, supra, 130 Cal.App.4th at p. 8, citing Mary M., supra, 54 Cal.3d at p. 208.) The predicate for application of the doctrine is that the employee was acting in the course and scope of employment when he or she engaged in the tortious conduct. (Mary M., at p. 209.) " '[T]he determining factor in ascertaining whether an employee's act falls within the scope of his employment for respondeat superior liability is not whether the act was authorized by the employer, benefited the employer, or was performed specifically for the purpose of fulfilling the employee's job responsibilities. [Citation.] Rather, the question is whether the risk of such an act is typical of or broadly incidental to the employer's enterprise. [Citation.] 'The employee's activities must be inherent in, typical of or created by the work so that it is a foreseeable risk of the particular employment. [Citations.]' " (Sunderland, supra, 130 Cal.App.4th at p. 9.) In order to impose vicarious liability, "the incident leading to injury must be an 'outgrowth' of the employment [citation]; the risk of tortious injury must be ' "inherent in the working environment" ' [citation] or ' "typical of or broadly incidental to the enterprise [the employer] has undertaken." ' " (Lisa M., supra, 12 Cal.4th at p. 298.) A related approach is to ask "whether the tort was, in a general way, foreseeable from the employee's duties. Respondeat superior liability should apply only to the types of injuries that ' "as a practical matter are sure to occur in the conduct of the employer's enterprise." ' " (Id. at p. 299.)
Foreseeability here is distinguished from foreseeability as a test for negligence. In the negligence sense, foreseeability " 'means a level of probability which would lead a prudent person to take effective precautions whereas "foreseeability" as a test for respondeat superior merely means that in the context of the particular enterprise an employee's conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among the other costs of the employer's business. [Citations.] In other words, where the question is one of vicarious liability, the inquiry should be whether the risk was one "that may fairly be regarded as typical of or broadly incidental" to the enterprise undertaken by the employer. [Citation.]' ([Rodgers v. Kemper Constr. Co. (1975) 50 Cal.App.3d 608,] 618-619.)" (Bailey v. Filco, Inc. (1996) 48 Cal.App.4th 1552, 1559; see also Perez v. Van Groninger & Sons (1986) 41 Cal.3d 962, 968.)
An employee is generally not considered to be acting within the course and scope of employment when going to or coming from his or her place of work. (Blackman, supra, 233 Cal.App.3d at p. 602.) This is commonly referred to as the "going and coming rule." (Ibid.) The 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 a service to his employer. [Citation.]" (Hinman v. Westinghouse Electric Co. (1970) 2 Cal.3d 956, 961 (Hinman); Caldwell v. A.R.B., Inc. (1986) 176 Cal.App.3d 1028, 1035.) The going and coming rule generally extends only to the ordinary commute, when the employee is traveling straight from home to begin work or straight home at the end of the workday. The ordinary commute is also typified by an employee traveling to and from work at a particular location and where job duties during the workday do not include driving. (Huntsinger v. Glass Containers Corp. (1972) 22 Cal.App.3d 803, 809-810 [use of personal vehicle amounted to implied condition of employment from which employer derived incidental benefit where employee regularly needed to meet with customers at their places of business]; Lobo v. Tamco (2010) 182 Cal.App.4th 297, 301 (Lobo) [required-vehicle exception to coming and going rule applies where employer expressly or impliedly required employee to make personal car available or had come to expect that car would be available for work purposes and employer derived benefit from that availability].) But in order for liability to arise for deviations from a fixed working location or for the use of a personal car, there must be "regular use of a vehicle to accomplish the job." (Tryer v. Ojai Valley School (1992) 9 Cal.App.4th 1476, 1481, see id. at pp. 1479-1480, 1481-1482 [use of own car to commute to two different fixed job sites in a day does not make driving integral part of employee's job].)
Thus, an exception to the going and coming rule will be found when the employer makes the commute part of the workday or derives some incidental benefit from the employee's trip, "not common to commute trips by ordinary members of the work force." (Hinman, supra, 2 Cal.3d at p. 962; Anderson, supra, 14 Cal.App.4th at p. 258.) This exception to the going and coming rule has become widely accepted as a limitation to its application. (Lazar v. Thermal Equipment Corp. (1983) 148 Cal.App.3d 458, 462; Depew v. Crocodile Enterprises, Inc. (1998) 63 Cal.App.4th 480, 486 [exception to going and coming rule will be found when employer derives some incidental benefit from employee's trip]; Felix v. Asai (1987) 192 Cal.App.3d 926, 931; Henderson v. Adia Services, Inc. (1986) 182 Cal.App.3d 1069, 1073.) Still, liability requires not just any benefit to the employer no matter how trivial but a benefit "sufficient enough to justify making the employer responsible for the risks inherent in the travel." (Blackman, supra, 233 Cal.App.3d at p. 604.)
An exception to the going and coming rule will apply where the employee is engaged in a "special errand" or "special mission" for the benefit of the employer, during which the employee is considered to be acting within the course of employment while he or she is engaged in the task. (Ducey v. Argo Sales Co. (1979) 25 Cal.3d 707, 722; Trejo v. Maciel (1966) 239 Cal.App.2d 487, 495; Sullivan v. Thompson (1939) 30 Cal.App.2d 675, 677-678.) But if the errand is instead in pursuit of the employee's personal ends, rather than for the benefit of the employer, the latter is not vicariously liable. (Le Elder v. Rice (1994) 21 Cal.App.4th 1604, 1607.)
The going and coming rule will also not necessarily be applied to bar vicarious liability against an employer when the employee is compensated for travel time, this fact reflecting that the commute is part of the employee's workday. Yet merely receiving a travel allowance is insufficient to invoke this exception without a showing that the employer enjoyed some incidental benefit of the employee's trip. (Anderson, supra, 14 Cal.App.4th at pp. 258-259.) This is because the payment or receipt of a travel allowance by itself does not alter the fact that the employee's trip between home and the fixed place of work is primarily for his or her own benefit. (Ibid.) But an employer's payment of a travel allowance and paying employees for travel time can together evidence that the employer derives an incidental benefit from the employee travel by being able to attract employees from beyond the employer's normal labor market, for example. Under these circumstances in which travel time is part of the workday, liability under the doctrine of respondeat superior will be imposed against the employer for the negligence of the employee committed while commuting. (See, e.g., Hinman, supra, 2 Cal.3d at p. 962, as discussed in Anderson, supra, 14 Cal.App.4th at p. 261.)
While holding that the payment of a travel allowance alone is insufficient to invoke an exception to the going and coming rule to bring the employee's commute within the course and scope of employment for purposes of imposing respondeat superior liability, the Anderson court also made the distinction between cases making the course-and scope-determination in this context and those making the same determination for purposes of workers' compensation law, with justifiably disparate results. (Anderson, supra, 14 Cal.App.4th at pp. 259-260 and cases cited there.) The tests for determining whether an employee was acting within the course and scope of employment in these two contexts are different and the difference can be attributed to the purposes of each context. 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 [Workers' Compensation Act is a shield protecting injured workers; vicarious tort liability is a sword extending tort liability beyond those directly and immediately negligent].) Moreover, "under Legislative direction to construe the provisions of the Workers' Compensation Act liberally (Lab. Code, § 3202), the 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.)
Workers' compensation claims turn on whether an injury occurred " ' " 'arising out of and in the course of employment.' " ' " (Sunderland v. Lockheed Martin Aeronautical Systems Support Co. (2005) 130 Cal.App.4th 1, 10 (Sunderland).) This standard is more permissive than the "within the scope of employment" standard in respondeat superior cases. (Ibid.) Workers' compensation claims cover injuries without regard for fault, due to policy reasons designed to maximize the benefit of workers' compensation to employees. Conversely, respondeat superior claims are not as broad because they are claims made by third parties against employers, they do not arise out of the employer-employee relationship, and they do not involve the same policy concerns for making the standard a permissive one. (Id. at pp. 10-11.)
Accordingly, while "[w]orkers' compensation decisions can be helpful in determining whether an employer should be vicariously liable, . . . they are not controlling precedent. [Citations.]" (Anderson, supra, 14 Cal.app.4th at p. 259; see also Perez v. Van Groningen & Sons, Inc., supra, 41 Cal.3d at p. 967, fn. 2 [workers' compensation cases helpful but not controlling when liability is predicated on respondeat superior doctrine]; Sunderland, supra, 130 Cal.App.4th at pp. 8-11 [rejecting application of "commercial traveler rule" in workers' compensation law to expand "scope of employment" under respondeat superior doctrine].)
C. The Law Applied to the Undisputed Facts of This Case
The Mazzurcos contend that there was a triable issue of fact as to whether the going and coming rule barred vicarious liability against Wells Fargo for Gano's negligence, if any, and whether his commute was part of his work.
But our review of the record reveals that the following were and remained undisputed material facts below: Gano worked for Wells Fargo as a salaried employee and he traveled in his own car to and from work at three different but fixed locations. He was not compensated for travel time and he received no reimbursement for travel expenses; nor did he receive a travel allowance. He did not travel to multiple work locations during a single workday, but he sometimes went to the Salinas office before work to pick up files on the way to one of the subdivisions. And he did not need his car for any business purpose while at the work site during his actual workday. Gano occasionally worked on business files at home, either after hours or on weekends, about one day in five, at his own discretion. But he did not ever telecommute in the sense that he worked from home during his regular work hours. At the time of the accident, Gano was on his way home from working at one of the subdivisions, after concluding his work for the day. He had his personal cell phone, which he also used for business calls, and his company issued laptop computer that was required for his job at whatever location, with him in the car.
Although the Mazzurcos characterized some of these facts as disputed in their separate statement below, as well as in their briefing on appeal, they did not offer evidence in the trial court that actually disputed any of them or that created any reasonable inference of a dispute. For example, that Gano previously worked for First Western Mortgage doing the same home loan consulting work that he did for Wells Fargo plus additional marketing work does not dispute any of the above facts. Nor does the number of miles between Gano's home and each of the three fixed work locations or the directions Gano traveled between them. These latter facts in particular did not raise a reasonable inference that Gano's use of his vehicle was essential to the performance of his job, despite the Mazzurcos' contention to the contrary. The undisputed evidence established nothing other than that Gano commuted to and from work at three fixed locations; that he used his car to do so, sometimes stopping while on the way but before the start of his actual workday to pick up a file; that he didn't need his car during the actual workday for a business purpose; and that he occasionally worked on files at home at his own discretion but not ever during his regular work hours.
As we see it, there is nothing about these undisputed facts that made Gano's regular commute to or from any of the three work locations out of the ordinary, turning the purpose of it into one for Wells Fargo's benefit, however incidental. There is thus nothing about these facts that rendered his commute at the time of the accident within the course and scope of his employment or that invoked an exception to the going and coming rule.
The Mazzurcos cite Hinojosa v. Workmen's Comp. Appeal Board (1972) 8 Cal.3d 150, 157 (Hinojosa), and Smith v. Workmen's Comp. App. Bd. (1968) 69 Cal.2d 814, 825 (Smith), both workers' compensation cases, as well as Lobo. They contend that the facts presented here at least give rise to a reasonable inference that Gano's commute was an extraordinary transit that varied from the norm in that he was required to use his car to perform his job, and that this was a special circumstance that bestowed a benefit on Wells Fargo and made his commute part of the job. They specifically cite his travel to three different but work locations, his occasional work at home during off hours, and that he sometimes stopped to pick up files at the office in Salinas before, but on the way, to work at one of the subdivisions. The crux of this contention is that Gano needed his car to travel between home and his work locations and to be equipped when he got there such that furnishing his car was an implied term of his employment—the "required-vehicle" exception to the going and coming rule. (Hinojosa, supra, 8 Cal.3d at pp. 152-153, 156, 160, 162 [exception can apply if use of a personally owned vehicle while on the job during the workday is express or implied condition of employment]; Huntsinger, supra, 22 Cal.App.3d at p. 810 [risks of commute inure to employer who requires employee to have personal vehicle available for company business during the workday because risks are incident to business enterprise]; Tryer v. Ojai Valley School, supra, 9 Cal.App.4th at
p. 1481; County of Tulare v. Workers' Comp. Appeals Bd. (1985) 170 Cal.App.3d 1247, 1253; Lobo, supra, 182 Cal.App.4th at pp. 301-303 [employee was required to have his car available to visit customers' businesses during work hours; the required vehicle exception to the going and coming rule thus applied]; Ducey v. Argo Sales Co., supra, 25 Cal.3d at p. 723 [employee who cleaned model homes at various locations throughout the workday and used her own car to reach the locations without reimbursement or pay for travel time found not required by employer to commute to work in her own car as condition of employment, as job did not embrace driving and use of vehicle not required for field work].)
But unlike Hinojosa, Smith, or Lobo, Gano did not need to use his car or to have it be available during the actual workday in order to perform his job. He did not need to travel to various work sites during the course of the workday or visit customers at their places of business. Driving was not integral to his work, or even a part of it, notwithstanding the distances between his home and work locations, which were not in any event shown to be out of the ordinary, at least in California where long commutes are common. From Wells Fargo's perspective, Gano could have used another method of transport, such as public transportation, as long as he got to work. In other words, there was no incidental benefit to Wells Fargo that we can see of Gano commuting to and from work in his own vehicle and there are no facts from which it can be reasonably inferred that use or availability of his car during the workday was even an implied condition of his job. In addition, this is not a workers' compensation case in which liberal constructions apply to afford a worker the benefits of that system.
What's more, Anderson dispenses with the notion that the need to show up for work at different work sites renders an employee's commute extraordinary or for the incidental benefit of the employer. There, an employee, 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 to and from there in his own vehicle, and then traveling 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 car accident, the employee 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 on the way home. (Anderson, supra, 14 Cal.App.4th at pp. 256-257.) The court of appeal rejected the plaintiff's claim that the employer's payment of a travel allowance bestowed a significant enough benefit upon it by allowing it to draw from a wider geographical pool of employees such that it should bear vicarious liability for its employee's negligence. (Id. at p. 261.) That 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, a fact absent here. (Id. at p. 262; see also Tryer v. Ojai Valley School, supra, 9 Cal.App.4th at p. 1482 [employee's use of personal vehicle to commute between two different work locations but not to directly accomplish her work did not invoke required-use exception to going and coming rule].)
And as Wells Fargo points out, carrying the employer-owned tools of one's trade to the job in one's own vehicle does not render an employee's commute within the course and scope of employment. (Gurklies v. General Air Conditioning Corp. (1949) 91 Cal.App.2d 734, 735-738.) In any event, a vehicle was not required for Gano to transport files or his company issued laptop, items that could be likely be carried in a briefcase. (Wilson v. Workers' Comp. Appeals Bd. (1976) 16 Cal.3d 181, 185 [transporting work materials to facilitate work does not warrant exception to going and coming rule "unless such materials require a special route or mode of transportation or increase risk of injury"].) "Such cartage is common and must be viewed as incident to the commute rather than as part of the employment." (Ibid.)
The Mazzurcos also contend that Gano's occasional work at home during off hours turned his home into an additional worksite, making his regular commute part of his employment. They cite Bramall v. Workers' Comp. Appeals Bd. (1978) 78 Cal.App.3d 151, 157-159, another workers' compensation case, in support of this contention. But there, the employee was required to complete her work at home in order to meet her job demands, thus conferring an incidental benefit of her commute on the employer. The "dual purpose" exception to the going and coming rule when work is performed at home thus applied. (Id. at pp. 154-160.) The exception will not apply where there is "mere performance of 'some tidbit of work' at home," for "that would be tantamount to a complete abandonment of the 'going and coming' rule." (Id. at p. 158.) And the benefit to be conferred to the employer must be in furtherance of an express or implied term or condition of employment, such that the home is "a second jobsite." (Ibid.) In Bramall, the evidence showed that the employee's laboring at home beyond normal working hours was a requirement of the job. Here, in contrast, there is no evidence that Gano was required to work at home in order to perform his job, or that it was a condition of employment. The only evidence on the matter was that he occasionally worked on files after hours at his own discretion, a far cry from the facts in Bramall.
D. Conclusion
We conclude that on this record, the Mazzurcos presented no evidence that created a triable issue of material fact, or a reasonable inference of one, to dispute that Gano was not acting in the course and scope of his employment at the time of the accident or that the going and coming rule barred vicarious liability against his employer, Wells Fargo.
II. The Trial Court's Evidentiary Rulings Do Not Change the Outcome
The Mazzurcos challenge the trial court's evidentiary rulings made in connection with Wells Fargo's motion for summary judgment. Specifically, they objected below to the court's consideration of discovery propounded to Gano by Wells Fargo and Gano's responses thereto, but the court overruled their objections. They also objected to portions of the Challis declaration, as described above, and the court sustained these objections, though the Mazzurcos argue on appeal as if they were overruled. Wells Fargo, for its part, objected to portions of Gano's deposition testimony concerning his prior work for First Western Mortgage and the Mazzucos' request for judicial notice of the distances between Gano's home and work locations and the directions of travel in between. The trial court sustained these objections. The Mazzurcos challenge all of these rulings on appeal and we address them in turn.
We generally review a trial court's summary judgment evidentiary rulings on appeal under the abuse of discretion standard. (Carnes v. Superior Court (2005) 126 Cal.App.4th 688; see also Reid v. Google (2010) 50 Cal.4th 512, 535 [high court had no occasion to decide whether evidentiary rulings on summary judgment are to be reviewed de novo or for abuse of discretion].) But here, as we explain, we need not reach the merits of all of the rulings, having reviewed the case in the absence of evidence the Mazzurcos claimed was objectionable and the trial court having partially ruled in their favor in any event.
The Mazzurcos objected to requests for admission and special interrogatories propounded to Gano and his responses thereto. They did so on the basis of section 2033.410 as to the requests for admission and section 2030.410 as to the interrogatories. They also cited Monroy, supra, 164 Cal.App.4th at pp. 260-261. Their argument was essentially that a party's discovery responses are not binding on another party and cannot be used against another party in the litigation. The trial court overruled these objections.
As relevant to the motion, the content of Gano's discovery responses generally related to whether he had completed his work at the subdivision before the accident happened that day and was on his way home; whether he was on a special errand for his employer at the time; and whether he was driving his own car. (See Wells Fargo's separate statement, facts 1-4.) The Mazzurcos did not dispute that Gano was driving home or that he was driving his own car. (See Mazzurcos' response to separate statement, facts 1-4.) But they did dispute whether he had completed his work at the subdivision for the day and that he was not on a special errand for his employer. As to whether Gano had completed his work at the subdivision for the day, the discovery responses were not the only evidence in the record. The Challis declaration states, "Sometime shortly after April 28, 2007, Mr. Gano advised me that he had been in an accident during the afternoon of April 28, 2007[,] while he was driving home from King City to Carmel Valley after concluding his work for the day at Arboleda subdivision." (Italics added.) The Mazzurcos did not object to this portion of the Challis declaration. And while Wells Fargo did not cite the declaration as proof of these stated facts in its separate statement, it was within the trial court's discretion to consider this proffered evidence, and we are free to do so as well. (San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 310-311 [court considers all of the evidence set forth in the papers under section 437c, subd. (c) on a summary judgment motion and it remains within the court's discretion to consider evidence that is offered but not cited in separate statement]; Zimmerman, Rosenfeld, Gersh & Leeds LLP v. Larson (2005) 131 Cal.App.4th 1466, 1478; King v. United Parcel Service, Inc., supra, 152 Cal.App.4th at p. 437.)
In the course of our review, we have disregarded the challenged discovery matters, relying instead for an understanding of the undisputed facts on the Mazzurcos' separate statement responses and the Challis declaration, thus limiting our review of the factual record to matters unrelated to the discovery responses to which the Mazzurcos objected. And the Mazzurcos have not argued the "special errand" exception to the going and coming rule on appeal, thus mooting that issue. Having found no error in the grant of summary judgment in the course of our review, we need not decide whether the trial court abused its discretion by overruling the Mazzurcos' evidentiary objections to the discovery matters. Even if the court did abuse its discretion, the Mazzurcos were not prejudiced, as we have demonstrated by our analysis of the case based on the remaining undisputed evidentiary facts to which there was no objection and the applicable law.
As noted, the Mazzurcos objected to portions of the Challis declaration and the trial court sustained those objections. The Mazzurcos proceed on appeal as if the court had overruled these objections, which we attribute to oversight. In any event, we have conducted our review without resort to those portions of the Challis declaration to which objections were sustained.
The Mazzurcos also challenge the trial court's having sustained Well Fargo's objections to portions of Gano's deposition transcript concerning his prior work for First Western Mortgage and evidence concerning the distances between his home and work locations and the direction of travel between these places. The objections were based on relevance and on Evidence Code section 352, in that the probative value of the evidence was asserted to be outweighed by its prejudicial effect. On appeal, the Mazzurcos argue, in skeletal and conclusory fashion, that this evidence was relevant to the issues but they don't say how. They also contend that Evidence Code section 352 is meaningless in the context of summary judgment where there is no jury.
We need not address this latter claim because we conclude that the trial court did not abuse its discretion in that this evidence was not relevant to the issues presented by the motion. That Gano previously worked for First Western Mortgage doing a similar home mortgage consulting job plus marketing work does not bear at all on whether he was in the course and scope of his employment with Wells Fargo on his commute home on the day of the accident.
Likewise, the distances between Gano's home and work location and the direction of his travel between these places was not relevant to the issues below, in the absence of a showing that his regular commute was somehow extraordinary by virtue of its distance or some other fact affecting whether his commute afforded some incidental benefit to his employer. The subject evidence showed one way commutes of 33.49 miles, 45.6 miles, and 34.05 miles, respectively, and that the Salinas office was in the opposite direction from the subdivisions vis-a-vis Gano's home. These facts showed, if anything, that Gano's commute distances were quite ordinary. And because he always commuted outside of his actual working hours, it does not matter what directions in which he traveled, even to pick up files in Salinas before proceeding in the opposite direction to one of the subdivisions. We accordingly find no abuse of discretion in the trial court's exclusion of this evidence.
III. The Trial Court Did Not Abuse its Discretion in Denying the Motion to Tax Mediation Costs
Finally, the Mazzurcos challenge the trial court's denial of their motion to tax costs, which allowed Wells Fargo to recover $945.63 in expenses incurred for its voluntary participation in an unsuccessful mediation because this cost was considered "reasonably necessary." The mediation appears from the record to have occurred outside the court's directed mediation program, and it was voluntary and not court-ordered.
Monterey County Superior Court Local Rule 6.07e states, "The Court recognizes that an early and amicable disposition will minimize costs to the litigants and the public. The Court will encourage referrals to the court-directed mediation program, early voluntary settlement conferences and/or other alternative dispute resolution in all cases."
Section 1032, subdivision (b) provides that a prevailing party is entitled as a matter of right to recover costs of suit except as otherwise expressly provided. Section 1033.5, subdivisions (a) and (b) specify allowable and non-allowable cost items, respectively, and none of these address mediation or other alternative dispute resolution expenses. Section 1033.5, subdivision (c)(4) provides that items not mentioned within that section and assessed on application may be allowed or denied in the court's discretion. Allowable costs must in any event be reasonable in amount and "reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation." (§ 1033.5, subds. (c)(2) & (3).) The determination of reasonableness is peculiarly within the trial court's discretion. (Thon v. Thompson (1994) 29 Cal.App.4th 1546, 1548.) "Whether a cost is 'reasonably necessary to the conduct of the litigation' is a question of fact for the trial court, whose decision will be reviewed for abuse of discretion." (Gibson v. Bobroff (1996) 49 Cal.App.4th 1202, 1209 (Gibson).)
The court in Gibson held that an award of mediator fees is not statutorily prohibited and found policy reasons for ruling that "when an unsuccessful mediation has been court-ordered, reasonably necessary expenses incident thereto may, in the sound discretion of the trial court, be awarded after trial to a prevailing party." (Gibson, supra, 49 Cal.App.4th at p. 1209, fn. omitted.) But the court specifically did not decide, "whether a party prevailing after a trial which is preceded by unsuccessful voluntary mediation would be entitled to such costs." (Id. at fn. 7.) The Mazzurcos articulate policy reasons why an award in this latter circumstance should not obtain, including that the possibility of an adverse mediation cost award would discourage parties from participating in voluntary mediation. They also argue that such a cost is not necessary to the conduct of the litigation.
But we cannot say on this record and in light of the applicable standard of review that the court abused its discretion, especially given the court's local rule that encourages and favors alternative dispute resolution. Moreover, we think the Gibson court's policy reason for awarding mediation costs in the circumstance of a court-ordered mediation equally obtains in the voluntary mediation setting where, as here, the court strongly encourages parties' participation. The Gibson court observed that "mediation is fundamental to the conduct of the litigation as it encourages the parties to settle their disputes before trial and exposes parties who fail to agree to a reasonable settlement proposal to the risk of a discretionary court determination that they should pay their opponent's share of the failed mediation." (Gibson, supra, at p. 1209.) This policy reason favoring the recoverability of voluntary mediation costs is equally as sound as that offered against the award here.
We accordingly conclude that the Mazzurcos have failed to show that the court abused its discretion in denying their motion to tax voluntary mediation costs.
DISPOSITION
The judgment in favor of defendant Wells Fargo Bank and against plaintiffs Gary and Jennifer Mazzurco is affirmed.
Duffy, J.
WE CONCUR:
Bamattre-Manoukian, Acting P.J.
Mihara, J.