Jeewarat v. Warner Bros. Entertainment Inc.

• Decision Date: 03 September 2009
• Docket Number: No. B212323.,B212323.
• Citation: 98 Cal. Rptr. 3d 837,177 Cal.App.4th 427
• Court: California Court of Appeals Court of Appeals
• Parties: CHUENCHOMPORN JEEWARAT et al., Plaintiffs and Appellants, v. WARNER BROS. ENTERTAINMENT INC., Defendant and Respondent.

177 Cal.App.4th 427

98 Cal. Rptr. 3d 837

CHUENCHOMPORN JEEWARAT et al., Plaintiffs and Appellants, v. WARNER BROS. ENTERTAINMENT INC., Defendant and Respondent.

No. B212323.

Court of Appeals of California, Second District, Division Five.

September 3, 2009.

[177 Cal.App.4th 431]

Zukor & Nelson, Abram Charles Zukor and Marilyn H. Nelson for Plaintiffs and Appellants.

Wood, Smith, Henning & Berman, Kevin D. Smith, Anne K. McIntyre and Nicholas M. Gedo for Defendant and Respondent.

OPINION

KRIEGLER, J.

An employee returning home after a three-day business conference was driving his regular commute route when he was involved in a car accident that injured several pedestrians. Plaintiffs sought to impose liability against the employer based on principles of respondeat superior. The employer filed a motion for summary judgment based on the "going and coming rule," which provides that an employer is not subject to vicarious liability for accidents occurring during an employee's commute to or from the workplace. The trial court granted the motion and entered judgment in favor of the employer. On appeal, plaintiffs contend the business conference was a special errand under the "special errand doctrine," which holds an employer vicariously liable for accidents occurring while an employee is engaged in a special errand for the employer, including the employee's commute to or from the special errand.

We hold that an employee's attendance at an out-of-town business conference may be considered a special errand under the special errand doctrine. In addition, when an employee intends to drive home from the errand, the errand is not concluded simply because the employee drives his regular commute route, but rather, the errand is concluded when the employee returns home or deviates from the errand for personal reasons. Because the employer failed to show that the employee was not acting within the course and scope of his employment at the time of the accident, summary judgment was improperly granted. We reverse.

FACTS

Marc Brandon worked for Warner Bros. Entertainment Inc. (Warner) as vice-president of anti-piracy Internet operations. Warner did not provide him with a car or gas allowance, and he was not reimbursed for mileage. He typically left his office on a workday between 5:00 p.m. and 6:00 p.m.

In August 2006, he attended a three-day business conference in Sunnyvale, California that was sponsored by one of Warner's anti-piracy vendors. Warner approved Brandon's trip and paid for his airfare, hotel, and airport parking.

On August 11, 2006, Brandon left the conference early and flew back to the Burbank Airport, where he retrieved his car from a satellite parking lot. He did not intend to go to his office, but instead planned to return to his home and take his dogs for a walk. On his way home, he drove around the studio complex where his office was located without stopping and took his normal route home for approximately two to three miles, until he was involved in an automobile collision with Jared Southard. The accident occurred at approximately 4:35 p.m.

One or both cars struck and injured pedestrians Chuenchomporn Jeewarat, Tipphawan Tantisriyanurak and Kanhathai Vutthicharoen. Vutthicharoen died as a result of her injuries.

PROCEDURAL BACKGROUND

On February 2, 2007, Jeewarat and Tantisriyanurak filed a personal injury action against Brandon and Southard. On July 5, 2007, Jeewarat and Tantisriyanurak filed an amendment to the complaint substituting Warner as a Doe defendant. An amended complaint was filed which added as plaintiffs Vutthicharoen's parents Anek Vutthicharoen and Kanchana Vutthicharoen, individually and as administrators of their child's estate. The amended complaint alleged causes of action for negligence and wrongful death against Warner.

In May 2008, Warner filed a motion for summary judgment on the grounds that Brandon was commuting from work to home when the accident occurred, and therefore, under the "going and coming rule," Brandon was not acting within the scope of his employment and Warner could not be held vicariously liable. Warner further argued that the "commercial traveler exception," which extends workers' compensation liability to accidents occurring during commercial travel, does not apply in third party tort cases, and the "special errand" doctrine does not apply to cases involving commercial travel. Warner asserted that even if the special errand doctrine applied, any special errand ended when Brandon drove his regular commute route home.

Plaintiffs opposed the motion. They argued that a reasonable inference could be drawn that Brandon was traveling "from work to work" at the time of the accident, because he regularly did work at his home office. As a result, Brandon was acting within the course and scope of his employment and the "going and coming rule" did not apply. Alternatively, plaintiffs argued that the special errand exception to the "going and coming rule" applied, because Brandon had not made any stops and had not yet returned home from the conference at the time of the collision. Thus, Brandon was in the course and scope of his employment for the entire trip until he arrived home.

In its reply, Warner responded that Brandon's work in his home office should not transform his home into a workplace and abrogate the coming and going rule. In addition, Warner argued that the special errand doctrine did not apply to a business trip, and even if it did, Brandon had abandoned any errand for Warner when he resumed his regular commute route home and the "going and coming rule" controlled.

Following a hearing, the trial court denied the motion for summary judgment on the ground that there were triable issues of fact as to whether Brandon was acting within the course and scope of his employment when he drove from the airport to his home, based on the work activities that he regularly conducted from his home office. The trial court did not comment on the applicability of the special errand doctrine.

Warner filed a petition with this court for a writ of mandamus. Warner relied on Santa Rosa Junior College v. Workers' Comp. Appeals Bd. (1985) 40 Cal.3d 345 [220 Cal.Rptr. 94, 708 P.2d 673] (Santa Rosa) to argue that the "going and coming rule" should not be abrogated simply because an employee did work on a home computer at night and on weekends. The writ petition did not refer to the special errand doctrine. On October 2, 2008, based on the analysis in Santa Rosa, this court issued an alternative writ ordering the trial court to vacate its order and grant Warner's motion for summary judgment or show cause why a peremptory writ should not issue. That same day, Tantisriyanurak entered into a settlement with all defendants and dismissed her complaint with prejudice. She is not a party to the instant appeal.

The trial court vacated its order denying Warner's motion for summary judgment. On November 13, 2008, the trial court entered an order granting the motion for summary judgment and entering judgment in favor of Warner. Plaintiffs filed a timely appeal.

DISCUSSION

Plaintiffs contend Warner was not entitled to summary judgment on the ground that the "going and coming rule" precluded vicarious liability for accidents occurring during Brandon's commute to or from work, because the business conference that Brandon attended was a special errand which had not yet concluded at the time of the accident. We agree.

Standard of Review

"A trial court properly grants summary judgment where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. [Citation.] We review the trial court's decision de novo, considering all of the evidence the parties offered in connection with the motion (except that which the court properly excluded) and the uncontradicted inferences the evidence reasonably supports. [Citation.] In the trial court, once a moving defendant has `shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established,' the burden shifts to the plaintiff to show the existence of a triable issue; to meet that burden, the plaintiff `may not rely upon the mere allegations or denials of its pleadings ... but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action ....' [Citations.]" (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476-477 [110 Cal.Rptr.2d 370, 28 P.3d 116].)

(1) Whether an employee was acting within the course and scope of his employment is generally a question of fact, but if the facts are undisputed and no conflicting inferences are possible, the question is one of law. (Munyon v. Ole's, Inc. (1982) 136 Cal.App.3d 697, 701 .)

General Principles of Respondeat Superior

(2) "The doctrine of respondeat superior imposes vicarious liability on an employer for the torts of an employee acting within the scope of his or her employment, whether or not the employer is negligent or has control over the employee. [Citations.] As a matter of policy it is considered fair to allocate to the costs of doing business a loss resulting from a risk that arises in the context of the employment enterprise. [Citation.] `"`[W]here 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.]' [Citation.] Accordingly, the employer's liability extends beyond his actual or possible control of the employee to include risks inherent in or created by the enterprise."' [Citation.]" (Baptist v. Robinson (2006) 143 Cal.App.4th 151, 160 (Baptist).)

(3) "The respondeat superior doctrine is to be given a broad application, as the Supreme Court explained in Farmers [Ins. Group v. County of Santa Clara (1995) 11 Cal.4th 992 [47 Cal.Rptr.2d 478, 906 P.2d 440]]. `For example, "[t]he fact...