16 Cal. App. 5th 445
Cal. Ct. App. 5th2017Background
- On Dec. 13, 2012 at ~3:35 a.m., Genentech employee Vincent Ong, driving his own vehicle, collided with a car, killing passenger Marisol Morales; plaintiffs sued Ong and Genentech (respondeat superior).
- Ong was a night-shift lead technician at Genentech's Equipment Preparation division; his regular shifts were scheduled and Genentech did not require or pay for his personal travel.
- In the days before the accident Ong and supervisor Marc Tumaneng interviewed candidates for open N1 shift positions; after one hire was rejected, additional candidates were selected via the WAND system and automated emails were sent to Ong on Dec. 12.
- Ong gave varying reasons for his pre-dawn trip to Genentech (retrieve resumes/personal items, pick up a friend’s resume—friend later denied giving one); Genentech presented evidence it never requested Ong come in that night or paid his travel.
- Genentech moved for summary judgment arguing the "going and coming" rule applies; plaintiffs argued the "special errand" exception or that Ong was acting within his regular hiring duties. Trial court granted summary judgment for Genentech; appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Ong was within scope of employment at accident time (special errand exception) | Ong was a shift lead with hiring duties and could reasonably undertake the errand (drive in) as part of those duties or at Genentech's request | Ong drove for his own convenience on his day off; no Genentech request, authorization, or payment for travel — going and coming rule bars liability | Held for Genentech: plaintiffs failed to show triable facts that Ong was on a special errand or acting within regular duties when accident occurred |
| Whether automated/work emails on Dec. 12 constituted a specific request that Ong come in that night | The Dec. 12 emails (and Ong being copied on supervisor's reply) can be reasonably read as requesting further action that morning | Emails did not require a specific time/place; no evidence Genentech expected Ong to drive in on his day off | Held: emails alone do not create a triable issue that Genentech requested Ong come in pre-dawn |
| Whether a supervisor/lead can unilaterally "order himself" to perform an errand on employer's behalf | Plaintiffs: shift lead authority to hire implies authority to self-initiate a special errand | Genentech: allowing self-direction would improperly expand special errand doctrine and strip employer control | Held: individual cannot simply self-assign a special errand on employer's behalf; no triable issue from that theory |
| Whether credibility conflicts in testimony preclude summary judgment | Plaintiffs: inconsistencies in Ong and Tumaneng testimony create credibility questions for a jury | Genentech: testimony was deposed; inconsistencies not material to special errand issue | Held: credibility inconsistencies were not material; summary judgment proper |
Key Cases Cited
- Hinman v. Westinghouse Elec. Co., 2 Cal.3d 956 (1970) (describes going-and-coming rule and policy basis for respondeat superior)
- Vivion v. National Cash Register Co., 200 Cal.App.2d 597 (1962) (employee’s unilateral return to workplace after hours was not a special errand for employer)
- Munyon v. Ole's Inc., 136 Cal.App.3d 697 (1982) (workers' compensation scope differs from tort special-errand analysis; picking up paycheck on day off was personal errand)
- Jeewarat v. Warner Bros. Entertainment, Inc., 177 Cal.App.4th 427 (2009) (employer-funded business travel can create triable issue under special errand when employer authorized/benefitted)
- Boynton v. McKales, 139 Cal.App.2d 777 (1956) (special errand exists where employer requests or expects attendance at work-related event)
- Tognazzini v. San Luis Coastal Unified School Dist., 86 Cal.App.4th 1053 (2001) (employee's voluntary compliance with external mandate not requested by employer is not a special errand)
- Harvey v. D & L Constr. Co., 251 Cal.App.2d 48 (1967) (evidence that long‑standing employer practices made employee’s trip part of regular duties supported special errand inference)
- Anderson v. Pacific Gas & Electric Co., 14 Cal.App.4th 254 (1993) (workers' compensation precedent not controlling in tort respondeat superior analysis)