Feltham v. Universal Prot. Serv., LP

• Decision Date: 30 March 2022
• Docket Number: A161190
• Citation: 76 Cal.App.5th 1062,292 Cal.Rptr.3d 183
• Parties: Lucy R. FELTHAM et al., Plaintiffs and Appellants, v. UNIVERSAL PROTECTION SERVICE, LP, Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

76 Cal.App.5th 1062

292 Cal.Rptr.3d 183

Lucy R. FELTHAM et al., Plaintiffs and Appellants,

v.UNIVERSAL PROTECTION SERVICE, LP, Defendant and Respondent.

A161190

Court of Appeal, First District, Division 3, California.

Filed March 30, 2022

Certified for Partial Publication.^*

Law Office of Scott Righthand and Scott D. Righthand, San Francisco, for appellants.

Wilson Elser Moskowitz Edelman & Dicker, Thomas H. Nienow, San Francisco, for respondent Universal Protection Service, LP.

Rodríguez, J.

While driving home from her job as a hospital security guard, Clanisha J. Villegas crossed into oncoming traffic and hit — and seriously injured — Lucy R. Feltham. Feltham and her husband, Mathieu A. Leonelli, (collectively, plaintiffs) filed a lawsuit alleging Villegas's employer, Universal Protection Service, LP, erroneously sued as Allied Universal Corporation (Allied), was liable for Villegas's negligence. The trial court granted Allied's summary judgment motion. It concluded Allied was entitled to judgment as a matter of law because Villegas was not acting within the course and scope of her employment at the time of the accident, and the accident was not a foreseeable consequence of Villegas's employment. We affirm.

BACKGROUND

Allied provided security guard services at several University of California, San Francisco (UCSF) medical facilities. Allied hired security guards and assigned them to a particular location. UCSF was responsible for supervising the security guards.

Villegas worked for Allied from approximately February 2015 to May 2016. Thereafter, she had a baby. In 2017, Villegas reapplied for a security guard position and requested the overnight shift. During her job interview, Villegas disclosed that she did not have daytime childcare for her infant, who was then eight months old. The interviewer did not ask Villegas to describe her daytime activities; the interviewer believed asking such a question was illegal.

Allied hired Villegas and assigned her to work the overnight shift — from 11:00 p.m. to 7:00 a.m. — five nights per week. Villegas worked at the Mission Bay and Parnassus Street facilities. Allied did not require Villegas to use her car for work and did not dictate how she traveled to and from work. Using Villegas's personal vehicle, Villegas's mother often drove Villegas from their shared home in the East Bay to UCSF and picked Villegas up when Villegas's shift ended. After dropping her mother off at work in the Inner Richmond neighborhood, Villegas drove home.

Villegas's first shift was on July 10, 2017. She frequently requested extra shifts and often worked six shifts per week rather than five. On August 21, Villegas began her fourth straight day of work. When her shift ended the following morning, Villegas's mother picked Villegas up. Villegas dropped her mother off at work, then began driving home. About an hour after finishing her shift, and as she neared her home, Villegas fell asleep and drove into oncoming traffic, hitting and severely injuring Feltham, who was riding a motorcycle. Feltham's husband — who was also riding a motorcycle — witnessed the accident.

I.

Plaintiffs filed a complaint against Allied and others, alleging claims for motor vehicle negligence, third party negligence, negligent infliction of emotional distress, and loss of consortium. In their third party negligence cause of action, plaintiffs alleged Allied, as Villegas's employer, negligently "required" and "allowed" Villegas "to work excessive hours so as to fatigue and tire her to the point of her falling asleep at the wheel in the course and scope of her employment." Plaintiffs further alleged Allied negligently "failed to provide transportation" for Villegas, who fell asleep while driving in the "course and scope of her employment," thereby causing the collision and Feltham's injuries.¹

Allied moved for summary judgment. It argued the "going and coming" rule — which holds that an employer is not vicariously liable for torts committed by an employee commuting to or from work — barred liability. (See Depew v. Crocodile Enterprises, Inc. (1998) 63 Cal.App.4th 480, 486–487, 73 Cal.Rptr.2d 673 ( Depew ).) Allied disclaimed application of the "special risk" exception to the going and coming rule, asserting there was no causal connection between Villegas's work and the accident such as, for example, that Allied caused Villegas to work excessive hours, that Villegas's work schedule caused her to be fatigued, or that Allied was aware of Villegas's purported fatigue. ( Id. at pp. 488–490, 73 Cal.Rptr.2d 673.)

In opposition, plaintiffs argued Villegas was within the scope of her employment at the time of the accident; they also urged the trial court to apply an exception to the going and coming rule. In the alternative, plaintiffs asserted — for the first time — that Allied negligently hired and supervised Villegas and that such "independent" negligence was a substantial factor in causing Feltham's injuries. According to plaintiffs, Allied should not have hired Villegas to work the overnight shift because it knew "she had daytime obligations that would keep her from sleeping." Plaintiffs maintained that Allied negligently supervised Villegas by assigning her "additional shifts on her days off, leaving her with minimal time to catch up on sleep," and by failing "to implement countermeasures to combat chronic fatigue and mitigate [Villegas's] sleep deprivation."

Plaintiffs offered two supporting declarations, one from Thomas Roth, and another from Randy Stedman. Roth — a specialist on "sleep and sleep disorders" — averred Allied knew or should have known Villegas, a new mother with no daytime childcare, "most likely would not have adequate sleep to perform [her job] or to safely get back and forth to work" if she drove. Roth also opined that working overnight, and working an extra shift per week, were "each a substantial factor in causing the subject collision." According to Roth, Villegas's "sleep debt" was akin to driving with a .10 percent blood alcohol level. Roth faulted Allied for not taking measures to mitigate its employees’ sleep deprivation problems. Stedman, a "Human Resources professional," offered similar testimony. He opined Allied was negligent for failing to mitigate (or attempt to mitigate) Villegas's "sleep debt," and that the car accident was a foreseeable consequence of that negligence.

In reply, Allied emphasized the lack of a causal connection between Villegas's employment and the accident and argued any fatigue experienced by Villegas was due to her childcare responsibilities, "which have nothing to do with her work as a security guard for Allied." Allied also urged the court to reject plaintiffs’ "direct" negligence theory of liability.

II.

The trial court granted Allied's summary judgment motion. It concluded Allied was exempt from liability under the going and coming rule based on undisputed evidence that at the time of the accident, Villegas had finished her shift and was on her way home. The court declined to apply the special risk exception, concluding there was "no evidence that Allied caused Villegas to work excessive hours or that her schedule caused her to be fatigued." Villegas — the court observed — had "sixteen hours off work before she returned to work a normal shift of eight hours." The court acknowledged Villegas worked the overnight shift but observed that she "was never called upon to work a double shift. Although Villegas sometimes worked six days a week, the evidence ... shows that Villegas routinely had sixteen hours off in a twenty-four hour day. A reasonable trier of fact could not find that the accident was a foreseeable consequence of Villegas’ employment."

The trial court also rejected plaintiffs’ contention that Allied "was liable because [it] knew that Villegas was a new mother and knew or should have known Villegas would not get adequate rest during her off hours." The court determined Stedman's declaration did not create a triable issue as to whether Allied was liable for negligent hiring; as the court explained, Stedman's declaration established it was Villegas's childcare "duties – not her employment – that led to Villegas’ fatigue."

The trial court entered judgment for Allied.

DISCUSSION

"On appeal from the grant of summary judgment, we review the record de novo and apply the same standard as did the trial court. We identify the issues framed by the pleadings and then determine whether ‘ " ‘the moving party's showing has established facts which justify a judgment in movant's favor’ " ’ on those issues. [Citation.] If the moving party has made that showing, we then determine whether the opposition has demonstrated ‘ " ‘the existence of a triable, material factual issue.’ " ’ [Citation.] In making that determination, we keep in mind that the party opposing the motion is entitled to have any reasonable inferences from the facts drawn in its favor." ( Bingener v. City of Los Angeles (2019) 44 Cal.App.5th 134, 140, 257 Cal.Rptr.3d 166 ( Bingener ).)

I.

Plaintiffs challenge the trial court's conclusion that Allied was entitled to judgment as a matter of law on their third party negligence claim. We are not persuaded.

"Under the doctrine of respondeat superior, an employer is liable for the torts of its employees committed within the scope of their employment. [Citation.] The burden of proof is on the plaintiff to demonstrate that the negligent act was committed within the scope of employment. [Citation.] But where, as here, the facts relating to the applicability of the doctrine are undisputed, the question of its application is one of law. [Citations.] [¶] The doctrine is based upon a policy that the employer should be responsible for losses caused by the torts of its employees that occur in the conduct of the employer's enterprise." ( Bingener , supra , 44 Cal.App.5th at pp. 140–141, 257 Cal.Rptr.3d 166 ; Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 296, 48...