Morales-Simental v. Genentech
A145865
| Cal. Ct. App. | Oct 19, 2017Background
- On Dec. 13, 2012, Genentech employee Vincent Ong, driving his own vehicle pre-dawn, collided with a car on State Route 92; passenger Marisol Morales died. Plaintiffs sued Ong and Genentech; Genentech moved for summary judgment.
- Ong was a lead night-shift technician whose duties included assigning tasks and assisting with hiring; he owned and used his personal car and Genentech did not require or reimburse his travel.
- In the days before the crash Ong and his supervisor Tumaneng interviewed candidates for N1-shift openings; one selected candidate was later rejected by HR, and automated emails from the staffing vendor (PRO Unlimited/WAND) were sent to Ong on Dec. 12.
- Ong gave varying reasons for driving to Genentech that morning (retrieve resumes, pick up locker items, help a friend), and one asserted reason (pick up a friend’s resume) was impeached. He denied Genentech requested he come in.
- Trial court granted summary judgment for Genentech under the going-and-coming rule; plaintiffs appealed arguing the special-errand exception applied because Ong was (or was requested to be) performing hiring-related errands for Genentech.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Ong was within scope of employment under special-errand exception when crash occurred | Ong was performing a special errand (hiring duty) or had been asked/expected to continue hiring work on Dec. 13 | Ong was commuting for personal convenience; no Genentech request, authorization, payment, or regular expectation to come in on day off | No triable issue: special-errand exception not shown; summary judgment for Genentech affirmed |
| Whether Ong could unilaterally treat a personal trip as a Genentech errand because he was a shift lead | As shift lead with hiring duties, Ong could self-direct and perform hiring errands on his own initiative | An employee cannot unilaterally create employer authorization; employer must request/expect the errand | Rejected: employees may not self-order special errands on employer’s behalf; no expansion of doctrine |
| Whether Dec. 12 emails constituted a request that Ong come in pre-dawn Dec. 13 | The emails (copied from supervisor and automated vendor notices) created an inference Genentech expected Ong to continue hiring immediately | Emails did not specify time/place or require Ong to come in; no evidence Genentech requested attendance or paid travel | Rejected: emails did not show a request/expectation to come in at that time; insufficient to create triable issue |
| Whether Ong’s hiring duties regularly included coming in on days off to review resumes (regular-duties exception) | Ong’s hiring role, overtime, meetings, and occasional off-shift communications made such trips part of regular duties | No evidence of employer expectation that Ong come in on days off to perform hiring tasks; no history of such trips or travel reimbursement | Rejected: no evidence this was part of regular duties; special-errand exception inapplicable |
Key Cases Cited
- Hinman v. Westinghouse Elec. Co., 2 Cal.3d 956 (scope of employment and going-and-coming rule principles)
- Vivion v. National Cash Register Co., 200 Cal.App.2d 597 (employee’s unilateral return to workplace after hours does not create employer liability)
- Munyon v. Ole’s, Inc., 136 Cal.App.3d 697 (rejecting special-errand theory where trip taken for employee’s convenience)
- Jeewarat v. Warner Bros. Entertainment Inc., 177 Cal.App.4th 427 (business travel authorized/paid by employer may create triable issue under special-errand rule)
- Boynton v. McKales, 139 Cal.App.2d 777 (special-errand exception applies when employer requests/expects attendance benefiting employer)