Motion for Summary Judgment and/or Adjudication
# Case Name
1 Alkurdi vs. Tu Motion for Summary Judgment and/or Adjudication
2024-01373765 The Court denies Defendant Mark IV Capital, Inc.’s Motion for summary judgment of Plaintiff Rafi Alkurdi’s (a minor by and through his guardian ad litem Ahmad Alkordi) First Amended Complaint (FAC).
Defendant filed a separate statement response to Plaintiffs’ separate statement filed in opposition. (ROA 202.) California Rules of Court, rule 3.1350 does not contemplate a reply separate statement. Defendant did not obtain prior permission from the court to file the additional separate statement. Accordingly, the document was not considered.
Objections Defendant provides evidentiary objections on reply. The Court overrules objection nos. 1-21.
Merits Plaintiff brings a singular claim of negligence in the FAC.
Defendant Mark IV, Capital, Inc. (“Mark IV”) hosted a holiday party on December 7, 2023, with a cocktail hour starting at or about 6:00 p.m. (the “holiday party”) at Lido House in Newport Beach, California. (Separate Statement of Undisputed Fact (SSUF) 1, 2)
On December 7, 2023, Defendant Wiki Tu had been an employee of Mark IV for four to five years as an accountant. (SSUF 4) On December 7, 2023, Wiki Tu left Mark IV’s offices in Newport Beach and drove to her home in Lake Forest, California, making it home safely. (SSUF 5) After arriving at her home in Lake Forest from Mark IV’s offices in Newport Beach, Wiki Tu prepared her things and left home to head to the Lido House early. (SSUF 22) On her way to the Lido House in Newport Beach, Wiki Tu struck Plaintiff Rafi Alkurdi with her vehicle, at around 3:30 p.m. (the “incident”). (SSUF 23) The incident occurred at the intersection of Jeffrey Road and Quailcreek Road in Irvine, California. (SSUF 24)
In the FAC, Plaintiff seeks to hold Mark IV responsible for Wiki Tu’s accident on the ground Wiki was acting within the course and scope of her employment with Defendant Mark IV at the time of the accident. (FAC, ¶13.)
To recover from an employer under respondeat superior, a plaintiff must establish both that an employment relationship exists between the tortfeasor and the defendant and that the tort was committed within the scope of the tortfeasor’s employment. (See, e.g., Alma W. v. Oakland Unified Sch. Dist. (1981) 123 Cal.App.3d 133, 139
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“ ‘An offshoot of the doctrine of respondeat superior is the so-called “going and coming rule.” Under this rule, an employee is not regarded as acting within the scope of employment while going to or coming from the workplace. ... This is based on the concept that the employment relationship is suspended from the time the employee leaves work until he or she returns, since the employee is not ordinarily rendering services to the employer while traveling. ...’ ” (Jeewarat v. Warner Bros. Entertainment, Inc. (2009) 177 Cal.App.4th 427, 435.)
Under the going-and-coming rule, commute time is not within the scope of employment. However, if the employee is engaged in a “special errand” or a “special mission” for the employer while commuting, it will negate the going-and-coming rule and put the employee within the scope of employment. (Jeewarat v. Warner Brothers Entertainment, Inc. (2009) 177 Cal.App.4th 427, 435−436, summary judgment in favor of driver's employer reversed; triable issue existed as to whether employee's attendance at a business conference was a special errand so as to hold the employer vicariously for injuries sustained by plaintiff in an automobile accident; Lynn v. Tatitlek Support Services, Inc. (2017) 8 Cal.App.5th 1096, 1111, commute time is within the scope of employment if the employer compensates the employee for the time spent commuting.)
While respondeat superior liability does not generally require an employee's actions benefit her employer, courts have required injured plaintiffs to show some benefit to the employer when invoking an exception to the “going-and-coming rule.” (Fields v. State (2012) 209 Cal.App.4th 1390, 1396; Moradi v. Marsh USA, Inc. (2013) 219 Cal.App.4th 886, 896.)
There is a “special errand” exception, which applies where the employee is on a special errand for the employer, either as part of his regular duties or at a specific order or request of his employer.
(Morales-Simental v. Genentech, Inc. (20180 16 Cal.App.5th 445, 452–453.)
“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. Thus, we have chosen to use the term ‘business errand’ throughout this opinion, as it is more precise and descriptive.” (Sumrall v. Modern Alloys, Inc. (2017) 10 Cal.App.5th 961, 968, fn. 1.)
“The special [errand] exception requires three factors to be met: (1) the activity is extraordinary in relation to the employee’s routine duties, (2) the activity is within the course of the employee’s employment, and (3) the activity was undertaken at the express or implied request of the employer and for the employer’s benefit.” (Feltham v. Universal Protection Service, LP (2022) 76 Cal.App.5th 1062, 1072, internal citation omitted.)
Here, Defendant argues that Wiki Tu was not required to attend the holiday party as it was meant as a leisure event, to allow employees to socialize and celebrate the holidays together. (SSUF 7-10)
But the Court finds triable issues of material fact as to whether Plaintiff was paid for the time she was traveling, whether the event was not in fact optional, and whether the company funded function provided an employer-benefit such as team-building, networking, workplace cohesion, and leadership messaging, including acknowledging all of the employees at Mark IV and their contributions. (Additional Material Fact (AMF) Nos. 1-17.)
Attendance at social functions may fall within the “special errand” rule where the event is connected with the employment and intended to benefit the employer who requested or expected the employee to attend. (Boynton v. McKales (1956) 139 Cal.App.2d 777, 789; see CACI 3726.)
Thus, the Motion is denied.
Defendant is ordered to serve notice.