Morales-Simental v. Genentech, Inc.

• Decision Date: 22 September 2017
• Docket Number: A145865
• Citation: 16 Cal.App.5th 445,224 Cal.Rptr.3d 319
• Court: California Court of Appeals Court of Appeals
• Parties: Gisselle MORALES-SIMENTAL, a Minor, etc., et al., Plaintiffs and Appellants, v. GENENTECH, INC., Defendant and Respondent.

16 Cal.App.5th 445

224 Cal.Rptr.3d 319

Gisselle MORALES-SIMENTAL, a Minor, etc., et al., Plaintiffs and Appellants,

v.GENENTECH, INC., Defendant and Respondent.

A145865

Court of Appeal, First District, Division 4, California.

Filed September 22, 2017

Mastrangelo Law Offices, Nicholas J. Mastrangelo and Margaret Blodgett, Orinda; Gillin, Jacobson, Ellis Larsen & Lucey and Luke Ellis, San Francisco for Plaintiffs and Appellants.

Ropers, Majeski, Kohn & Bentley and Stephan A. Barber, San Jose; McNamara, Ney, Beatty, Slattery, Borges & Ambacher, Thomas G. Beatty, Michael P. Clark, and Wilma J. Gray, Walnut Creek for Respondent.

Streeter, J.

I. INTRODUCTION

Plaintiffs and appellants Gisselle Morales-Simental, a minor, et al.¹ appeal from summary judgment granted in favor of defendant and respondent Genentech, Inc., one of the defendants in this personal injury case. Morales-Simental alleges that she, with the other named plaintiffs, suffered injuries and sustained damages as a result of the negligence of defendant Vincent Inte Ong, an employee of Genentech, when Ong's vehicle collided with the vehicle in which the decedent was riding.

The issue presented to us is whether Genentech's employee, Ong, was acting within the scope of his employment when he was involved in the automobile collision that killed Marisol Morales. Genentech asserts the trial court correctly determined the "going and coming" rule precludes Genentech's liability because Ong was driving to Genentech for his own convenience and not at Genentech's request or as part of his regular duties. Plaintiffs argue Genentech is liable under the "special errand" exception to the going and coming rule because at the time of the collision Ong was on a special errand requested by Genentech or as part of his regular duties. Plaintiffs contend there are triable issues of material fact as to whether Ong was on a special errand for Genentech at the time of the accident, and there were issues of credibility precluding summary judgment.

We conclude plaintiffs have failed to establish triable issues of material fact supporting the special errand exception sufficient to overcome summary judgment for Genentech. Accordingly, we affirm.

II. FACTUAL AND PROCEDURAL BACKGROUND

In the early morning of December 13, 2012, Ong's vehicle collided with a vehicle driven by Louis Deandre Gonzalez, Jr. A passenger in the Gonzalez vehicle, Marisol Morales, was killed in the collision. The accident occurred at approximately 3:35 a.m. on State Route 92 on the San Mateo Bridge. Ong owned the vehicle he was driving.

California Highway Patrol Officer Michael Aquino responded to the scene of the accident and served as the lead investigator. He interviewed Ong first on-scene and three more times in the following days. During the first interview at the scene of the collision, Ong said he was driving to Genentech in South San Francisco on his night off to collect resumes for "some upcoming interviews he had." Ong told Officer Aquino that he worked the night shift at Genentech. Officer Aquino did not recall Ong mentioning any other purpose for his trip. At about midnight, a few hours before the accident, Ong told his friend Dan Alvarez that he was going to Genentech to do something important for work.

During his deposition, Ong gave various reasons for his trip to Genentech that morning. Ong testified that he intended to stop at Genentech to retrieve old resumes he had left in his mailbox and some personal belongings from his locker on his way to visit his grandmother in hospice care in South San Francisco. He also said one purpose of the trip to Genentech was to pick up the resume of his unemployed friend, Dan Alvarez, who had asked Ong if he could recommend Alvarez for a job. Ong's testimony with respect to Alvarez's resume was impeached; Alvarez stated he does not have a resume and never gave one to Ong.

Genentech is a biotechnology company that uses human genetic material to develop and manufacture pharmaceuticals. At the time of the accident, Ong was employed as a lead technician on the N1 (night) shift of Genentech's Equipment Preparation division at its headquarters in South San Francisco, California. The Equipment Preparation division cleans and sterilizes the tanks used to manufacture drugs at Genentech facilities. Marc Tumaneng was Ong's supervisor. Ong's regular shift at Genentech was Sunday, Monday, and Tuesday nights, and alternating Saturday nights, from 7:00 p.m. to 8:00 a.m. Ong's duties as lead technician included assessing workload and assigning tasks to the other technicians on his shift. Genentech presented evidence that all of Ong's lead technician duties were performed at Genentech during work hours.

Ong resided in Hayward, California and commuted to Genentech in his own vehicle. Genentech never owned, leased, or possessed Ong's 1999 Range Rover or Land Rover, the vehicle he was driving at the time of the accident. Genentech did not require Ong to drive or own a vehicle, and did not compensate Ong for travel time or expenses.

As lead technician on his shift, Ong participated with Tumaneng in conducting interviews and hiring. Beginning in the summer of 2012, Genentech increased its run rate for drug production. That same year, Genentech began receiving more tanks for sterilization, at least in part due to a problem with mold found in tanks that were improperly cleaned in Singapore. As a result, the Equipment Preparation division's workload increased in 2012, and Genentech added an additional night shift and hired more labware technicians. Tumaneng testified that this December 2012 hiring was conducted at least in part to replace "several" technicians who had recently quit the N1 shift. Genentech hired through an agency called PRO Unlimited. Tumaneng's role in the hiring process included using a computer program called WAND to select candidates from PRO Unlimited to interview.

A few days before the accident, Ong and Tumaneng together interviewed six candidates for two open positions on the N1 shift. On Monday, December 10, 2012, after completing the six interviews, Tumaneng and Ong chose two candidates to hire. The work week for Ong and Tumaneng ended at 8:00 a.m. on Wednesday, December 12. On Wednesday, December 12, 2012 at 3:37 p.m., while he was off-duty, Tumaneng received an email from Maybelle Gonzales, a Client Services Coordinator at PRO Unlimited, advising him that Genentech's human resources department had rejected one of the two candidates he and Ong had chosen. At 5:53 p.m., Tumaneng replied to Gonzales's email to say he would look into other candidates; Tumaneng copied Ong on the reply email. By 6:06 p.m., through WAND, Tumaneng had chosen four additional candidates to schedule for interviews.

At 6:06 p.m. on December 12, 2012, PRO Unlimited, also through WAND, sent Ong four automated messages. The body of each email stated that it was an "automated email from the WAND system." Each email stated that Tumaneng had requested an interview and gave the candidate's name, but did not show that any interviews had been scheduled. The evidence does not establish whether Ong opened any of those emails before the time of the accident at 3:35 a.m. on December 13, 2012; however, Ong stated he can access his work email on his personal cell phone.

Plaintiffs filed a complaint in May 2013 alleging Ong and Genentech were both liable for the accident that caused Marisol Morales' death, asserting causes of action for motor vehicle negligence and general negligence, together with a survivorship action. Plaintiffs' claim against Genentech was based on the doctrine of respondeat superior. Genentech moved for summary judgment. Although the trial court issued a tentative ruling in plaintiffs' favor,² following argument it reversed course and granted the motion. The court then entered judgment in favor of Genentech, dismissing it from the case and leaving Ong as the sole defendant. This timely appeal followed.

III. DISCUSSION

A. Standard of Review

We review the trial court's entry of summary judgment de novo. ( Nazir v. United Airlines, Inc . (2009) 178 Cal.App.4th 243, 253, 100 Cal.Rptr.3d 296.) "[S]ummary judgment shall be granted 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 a judgment as a matter of law." ( Code Civ. Proc., § 437c, subd. (c).) A moving defendant can meet its initial burden by showing that one or more elements of the plaintiff's cause of action cannot be separately established. ( Nazir, supra, 178 Cal.App.4th at p. 253, 100 Cal.Rptr.3d 296.) Once the defendant meets the initial burden, the burden shifts to the plaintiff to show the existence of a triable issue of material fact. ( Ibid. )

On appeal, we view the evidence in the light most favorable to the plaintiffs as the parties opposing summary judgment, and we liberally construe the plaintiffs' evidence and strictly scrutinize the defendant's evidence, resolving ambiguities in the plaintiffs' favor. ( Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142, 12 Cal.Rptr.3d 615, 88 P.3d 517.) On appeal, "we must decide independently whether the facts not subject to triable dispute warrant judgment for the moving party as a matter of law." ( Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1348, 1 Cal.Rptr.3d 32, 71 P.3d 296.)

The weight of authority holds that the standard for reviewing the trial court's evidentiary rulings is abuse of discretion ( Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 852, 172 Cal.Rptr.3d 732 ), but there is some dispute as to whether evidentiary rulings made in the summary judgment context should instead be reviewed de novo (see In re Automobile Antitrust Cases I & II (2016) 1 Cal.App.5th 127, 141, 204 Cal.Rptr.3d 330 ). We need not resolve this issue, because, as we discuss below, our conclusions as to the evidentiary issues raised on appeal would be the same under either standard. An appellate court's...