Filed 3/11/15 Maiello v. LA Digitial Post CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


RAYMOND MAIELLO,                                                     B255029

         Plaintiff and Appellant,                                    (Los Angeles County
                                                                     Super. Ct. No. EC058784)
         v.

LA DIGITAL POST,

         Defendant and Respondent.



         APPEAL from a judgment of the Superior Court of Los Angeles County,
Samantha P. Jessner, Judge. Affirmed.
         McGuire Coats and Wendy McGuire Coats; The Simon Law Group and Brad M.
Simon for Plaintiff and Appellant.
         Slack and Associates, Chad M. Slack and Janelle M. White for Deborah Callaway
as Amicus Curiae on behalf of Plaintiff and Appellant.
         Bragg & Kuluva and Christina Y. Morovati for Defendant and Respondent.


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       Appellant Raymond Maiello was involved in a car accident with Deborah
Callaway, an employee of LA Digital Post. At the time of the collision, Callaway was
returning to work from a doctor’s appointment that she had attended while on her lunch
break. Maiello filed a negligence claim against LA Digital under the doctrine of
respondeat superior. LA Digital moved for summary judgment arguing that it could not
be held vicariously liable for Callaway’s conduct because she was attending a personal
errand on her lunch break when the accident occurred. In opposition, Maiello contended
that all of Callaway’s travel to and from work fell within the scope of her employment
because she regularly used her car for job-related activities. The trial court granted the
motion and entered judgment in favor of LA Digital. We affirm.

                 FACTUAL AND PROCEDURAL BACKGROUND

       A. The Traffic Accident and Maiello’s Complaint1
       Deborah Callaway was employed by LA Digital Post as a credit and collections
manager. Callaway traveled to work in her own car and was not compensated for her
commute time. As part of her job duties, Callaway regularly stopped at a bank during her
commute home to make deposits on behalf of LA Digital.
       On July 18, 2011, Callaway arrived at work sometime between 8:00 a.m. and 9:00
a.m. At approximately 10:00 a.m., Callaway left the office and drove to a doctor’s
appointment that had no relation to her employment. Callaway obtained permission to
attend the appointment, which was treated as her lunch break. She did not engage in any
work-related activity during the appointment. While driving back to the office, Callaway
collided with a vehicle driven by Raymond Maiello.
       Maiello filed a negligence action against Callaway for injuries he suffered in the
accident. He later added LA Digital as a “Doe defendant,” alleging that the company was
vicariously liable for Callaway’s conduct under the doctrine of respondeat superior.

1      The background facts regarding Callaway’s employment at LA Digital and the
events that preceded the incident that gave rise to Maiello’s negligence action are
undisputed.

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       B. LA Digital’s Motion for Summary Judgment
       LA Digital filed a motion for summary judgment arguing that the undisputed
evidence demonstrated Callaway was not acting within the scope of her employment
when the accident occurred because she was traveling back to the office from a personal
errand while on her lunch break. In support, LA Digital cited numerous prior decisions
holding that an employer is generally not liable for negligence of its employees that
occurs while traveling during a lunch break.
       Maiello conceded that the accident had occurred while Callaway was returning
from a personal errand during her lunch break. He further conceded that an employee’s
travel to and from work during a commute or break period is generally deemed to be
outside the scope of employment. Maiello argued, however, that LA Digital could
nonetheless be held liable under the “required-vehicle” exception, which places an
employee’s commute within the scope of employment when the employer requires the
employee to drive to and from work as a condition of employment. Maiello theorized
that because Callaway regularly used her vehicle to make bank deposits for LA Digital,
she was “‘on the clock’ anytime she [drove] to or from work.”
       The trial court granted LA Digital’s motion for summary judgment, concluding
that the “required-vehicle” exception only applied to an employee’s commute to and from
work and did not extend to personal travel during a lunch break. On February 10, 2014,
the court entered judgment in favor of LA Digital.

                                       DISCUSSION

       A. Legal Standards Governing Summary Judgment

       Summary judgment is appropriate when a defendant establishes through
undisputed material facts that the plaintiff cannot prove a necessary element of his or her
case, or that an affirmative defense bars the cause of action, and the plaintiff fails to
present admissible evidence to the contrary. (Code Civ. Proc., § 437c, subd. (o)(2).)
“[I]f there is no material fact to be tried and the sole question is whether the claim of the


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moving party is tenable on the undisputed facts, the trial court’s obligation is to
determine that issue of law. [Citation.] On appeal, the reviewing court determines de
novo whether an issue of material fact exists and whether the moving party was entitled
to summary judgment as a matter of law. [Citation.]” (Redevelopment Agency v.
International House of Pancakes, Inc. (1992) 9 Cal.App.4th 1343, 1348.)
       “Whether a tort was committed within the scope of employment is generally a
question of fact. [Citation.] But when the material facts are undisputed and no
conflicting inferences are possible, as here, the question becomes one of law for our
independent consideration.” (Bailey v. Filco, Inc. (1996) 48 Cal.App.4th 1552, 1558
(Bailey); see also Halliburton Energy Services, Inc. v. Department of Transportation
(2013) 220 Cal.App.4th 87, 94 (Halliburton); Tryer v. Ojai Valley School (1992) 9
Cal.App.4th 1476, 1480 (Tryer).)

       B. The Doctrine of Respondeat Superior

           1. General principles governing respondeat superior
       “Under the theory of respondeat superior, an employer is vicariously liable for an
employee’s torts committed within the scope of employment. [Citations.] This theory is
justified as ‘“a deliberate allocation of a risk. The losses caused by the torts of
employees, which as a practical matter are sure to occur in the conduct of the employer’s
enterprise, are placed upon that enterprise itself, as a required cost of doing business.”’
[Citations.] The employer is liable not because the employer has control over the
employee or is in some way at fault, but because the employer’s enterprise creates
inevitable risks as a part of doing business. [Citations.] Under this theory, an employer
is liable for ‘the risks inherent in or created by the enterprise.’ [Citation.]” (Bailey,
supra, 48 Cal.App.4th at p. 1558.)
       “[F]or respondeat superior liability to attach there must be ‘a nexus between the
employee’s tort and the employment to ensure that liability is properly placed upon the
employer.’ [Citation.]” (Halliburton, supra, 220 Cal.App.4th at p. 95.) “‘The nexus
required for respondeat superior liability -- that the tort be engendered by or arise from


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the work -- is to be distinguished from “but for” causation. That the employment brought
tortfeasor and victim together in time and place is not enough. [Our courts] have used
varied language to describe the nature of the required additional link . . .: the incident
leading to injury must be an “outgrowth” of the employment . . .; the risk of tortious
injury must be “‘inherent in the working environment’” . . . or “‘typical of or broadly
incidental to the enterprise [the employer] has undertaken.’” . . .’ [Citation.) Yet another
way to describe the necessary linkage is the employee’s tort must be ‘foreseeable in light
of [the employee’s] duties.’ [Citation.]” (Bailey, supra, 48 Cal.App.4th at p. 1558
[italics in original].)

               2. Special rules governing break periods and commute travel

       Applying the principles above, our courts have held that an employer is generally
not liable for negligent acts its employees commit while traveling outside the office
during break periods: “It is well settled . . . that an employee, while taking time away
from his work for meals, is not in the service of his employer and that the latter therefore
is not responsible for negligence of the employee during such periods of absence from
work.” (Peccolo v. City of Los Angeles (1937) 8 Cal.2d 532, 539.) As “a general rule, . .
. when an employee travels to and from lunch in the employee’s own car and is not
engaged in furthering any end of the employer, the employee is not acting within the
scope of employment.” (Bailey, supra, 48 Cal.App.4th at p. 1566; Halliburton, supra,
220 Cal.App.4th at p. 95; Tryer, supra, 9 Cal.App.4th at pp. 1482-1483; Gipson v. Davis
Realty Co. (1963) 215 Cal.App.2d 190, 209-210 [“it is the general rule that an employee
on his way to lunch, even though he is driving an automobile which is the property of the
master, is not engaged in furthering any end of the employer, and that therefore under
such circumstances, the servant is not acting within the scope of his employment”].)
       This “‘lunch break’ rule” (Tryer, supra, 9 Cal.App.4th at p. 1482) has been
extended to travel for personal errands conducted during other types of break periods.
For example, in Bailey, supra, 48 Cal.App.4th 1552, the court held that an employee was
not acting within the scope of her duties when she traveled to a store to purchase cookies


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while “on her morning break.” (Id. at p. 1564.) The court reasoned that there was no
nexus between the employee’s duties as a sales cashier and her decision to “le[ave] the
premises to buy cookies during her break, when she was essentially on her own time.”
(Id. at p. 1565.) The court found “guidance” in “[c]ases involving lunch time travel,”
noting that while “there are differences between a lunch period and a mere break, . . . the
employment nexus is similar in both the lunch and break contexts when the employee
uses his or her own car to travel during these periods [for personal errands].” (Id. at
pp. 1566-1567.)
       Our courts have similarly held that an employee’s commute “to and from work is
ordinarily considered outside the scope of employment so that the employer is not liable
for his torts.” (Hinman v. Westinghouse Elec. Co. (1970) 2 Cal.3d 956, 961 (Hinman).)
“The reason for this ‘going and coming’ rule is that ‘the employment relationship is
“suspended” from the time the employee leaves until he returns [citation], or that in
commuting he is not rendering service to his employer [Citation].’ [Citation.]” (Tryer,
supra, 9 Cal.App.4th at p. 1481 [citing and quoting Hinman, supra, 2 Cal.3d at p. 961.)
There are, however, several “exceptions to the rule.” (Hinman, supra, 2 Cal.3d at
p. 962.)
       One exception “‘arises where the use of the [employee’s] car gives some
incidental benefit to the employer. . . . [T]he key inquiry is whether there is an incidental
benefit derived by the employer. [Citation.]’ [Citation.] This exception to the going and
coming rule . . . has been referred to as the ‘required-vehicle’ exception. [Citation.] The
exception can apply if the use of a personally owned vehicle is either an express or
implied condition of employment [citation], or if the employee has agreed, expressly or
implicitly, to make the vehicle available as an accommodation to the employer and the
employer has ‘reasonably come to rely upon its use and [to] expect the employee to make
the vehicle available on a regular basis while still not requiring it as a condition of
employment.’ [Citation.]” (Lobo v. Tamco (2010) 182 Cal.App.4th 297, 301; see also
Hinman, supra, 2 Cal.3d at p. 962 [recognizing the required-vehicle exception].)



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       The theory underlying the required vehicle exception is that “ordinary members of
[an employer’s] work force would not be required to use their vehicles in company
business and would not, therefore, be required to drive their vehicles to and from work.
The means by which they travel to and from work is a matter of complete indifference to
[the employer].” (Huntsinger v. Glass Containers Corp. (1972) 22 Cal.App.3d 803, 810
(Huntsinger).) In contrast, when an employer requires an employee to have a personal
vehicle available at work, the employee’s commute to and from the workplace in that
vehicle is “incidentally beneficial to [the employer] in a manner not common to commute
trips by ordinary members of its work force. In other words, when a business enterprise
requires an employee to drive to and from its office in order to have his vehicle available
for company business during the day, accidents on the way to or from the office are
statistically certain to occur eventually, and, the business enterprise having required the
driving to and from work, the risk of such accidents are risks incident to the business
enterprise.” (Ibid.)
       The exception normally applies to “the employee’s commute directly between
work and home” and to “[m]inor deviations from a direct commute.” (Halliburton,
supra, 220 Cal.App.4th at p. 97.) For example, in Lazar v. Thermal Equipment Corp.
(1983) 148 Cal.App.3d 458, the court held the exception was applicable despite the fact
that the employee had stopped at a store during his commute home. The court concluded
that because the employer required the employee to use his own vehicle when
commuting, the employer should be held responsible for “accidents occurring during . . .
minor and foreseeable deviations” from the commute. (Id. at p. 466.) Similarly, in
Moradi v. Marsh USA (2013) 219 Cal.App.4th 886, the court held the exception applied
where the employee had stopped to get frozen yogurt on his drive home and had planned
to attend a yoga class. Although the court acknowledged that the employee “was
pursuing, at least in part, a personal objective by stopping for frozen yogurt and planning
to attend a yoga class,” it reasoned that “those activities did not constitute an
unforeseeable, substantial departure from her commute.” (Id. at pp. 904-905.)



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       Two additional exceptions to the “going and coming” rule apply when the
employee’s travel involves a business-related purpose. Under the “‘special-errand
exception,” an employee’s travel falls within the scope of employment if he or she “is not
simply on his way from his home to his normal place of work or returning from said
place to his home for his own purpose, but is coming from his home or returning to it on
a special errand either as part of his regular duties or at a specific order or request of his
employer.” (Moradi, supra, 219 Cal.App.4th at p. 906; see also Felix v. Asai (1987) 192
Cal.App.3d 926, 931-932.) Similarly, under the “‘dual’” or “‘combined purposes’”
exception, employee travel to and from work is within the scope of employment
“‘[w]here the [employee] is combining his own business with that of his [employer], or
attending to both at substantially the same time.” (Tryer, supra, 9 Cal.App.4th at
p. 1483.)

       C. The “Required-Vehicle” Exception Does not Apply to Personal Errands
          Conducted During Meal Breaks

       Maiello concedes that an employer is generally “not responsible for an employee’s
torts committed while going and coming to the work place during a break period or lunch
period.” He also does not dispute that the accident occurred while Callaway was
returning from a personal errand (a doctor’s appointment) conducted during her lunch
break. He argues, however, that because Callaway regularly used her vehicle for an
employment-related purpose―making bank deposits during her commute home―all of
her vehicular travel to and from the office fell within the scope of her duties, including
travel to and from personal errands during break periods.2
       LA Digital does not challenge Maiello’s assertion that Callaway’s use of her
vehicle to deposit business checks is sufficient to trigger the “required-vehicle”
exception. LA Digital argues, however, that the exception merely brings an employee’s
commute to and from the workplace within the scope of employment; it does not extend


2      Deborah Callaway, acting as amicus curiae, raises essentially identical arguments
in her amicus brief.

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to travel during a break period for a purely personal errand. We agree that the “required-
vehicle” exception does not apply under the circumstances presented here.
         Maiello has failed to cite any decision that has applied the “required-vehicle”
exception to employee travel to and from the office during a break period. Rather, our
courts have “only” applied the exception in cases involving “the employee’s commute to
and from work.” (Halliburton, supra, 220 Cal.App.4th at p. 105; Felix, supra, 192
Cal.App.3d at p. 932 [“If an employer requires an employee to furnish a vehicle as an
express or implied condition of employment, the employee will be in the scope of his
employment while commuting to and from the place of his employment”].) Our courts
have also emphasized that the exception is generally inapplicable if the employee was
“engaged in a purely personal activity at the time of the tortious injury” (Halliburton,
supra, 220 Cal.App.4th at p. 97) or “if the employee’s entire trip serve[d] only his or her
own personal purposes.” (Id. at p. 102.) In this case, Callaway was not commuting from
her home when the accident occurred. Instead, she was engaged in a purely personal
activity (attending a doctor’s appointment during a lunch break) that served her interests
alone.
         The rationale underlying the “required-vehicle” exception is inapplicable to
employee travel conducted for personal reasons during a break period. As explained
above, the exception is predicated on the theory that while employers are generally
“indifferen[t]” to the means their employees use to travel to work, an employer that
requires (or induces) its employees to commute in their own vehicles is properly assigned
the risks associated with that particular form of transit. (See Huntsinger, supra, 22
Cal.App.3d at p. 810; see also Hinojosa v. Workmen’s Comp. Appeals Bd. (1972) 8
Cal.3d 150, 157 [explaining basis for required-vehicle exception in context of workers’
compensation ].) Here, LA Digital did not require or induce Callaway to attend the
medical appointment during her break period nor did it influence the means by which
she chose to travel to the appointment. There is simply no logical reason why the




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“required-vehicle” exception should apply where the employer did not cause the
employee’s travel nor influence the employee’s mode of travel.3
       Extending the scope of employment to include travel to and from personal errands
during a break period would also be inconsistent with the broader principles underlying
respondeat superior. For employer liability to attach, there must generally be some
“nexus” between the employee’s “activities at the time of the accident” and the
employer’s “business enterprise.” (Halliburton, supra, 105.) In other words, the
“employee’s tort must be ‘foreseeable in light of [the employee’s] duties.’ [Citation.]”
(Bailey, supra, 48 Cal.App.4th at p. 1560 [italics in original].) This “nexus” requirement
is intended to “ensure that liability is properly placed upon the employer.’ [Citation.]”
(Halliburton, supra, 220 Cal.App.4th at p. 95.) Here, there is no connection between
Callaway’s activities at the time of the accident―driving back from a personal errand
during a permitted break period―and LA Digital’s business enterprise. Nor did her job
duties make it foreseeable she would commit a tort while pursuing her own interests
during a break period. There is simply no basis to impose vicarious liability where the
employee’s “entire trip serves only his or her own personal purposes.” (Id. at p. 102.)4


3      Maiello argues that “[b]y driving a required vehicle to [LA Digital’s] offices
following her doctor’s appointment, a jury could find that Callaway was [benefitting] her
employer . . . by bringing the vehicle back to the office for [LA Digital’s subsequent use
and benefit].” This argument ignores that LA Digital did not cause Callaway to take her
vehicle from the workplace to the doctor’s appointment, which had no relation to her
duties at LA Digital. Based on the parties’ evidence, whether and how Callaway attended
her personal errand during her lunch break was a matter of total “indifference” to LA
Digital. (Huntsinger, supra, 22 Cal.App.3d at p. 810 [employer is not liable for torts
committed during employee’s commute when “[t]he means by which [the employee]
travel[s] to and from work is a matter of complete indifference to [the employer”].)

4      Maiello argues for the first time on appeal that there is a triable issue of material
fact whether the “dual” or “combined purpose” exception to the “going and coming” rule
applies here. According to Maiello, a jury could reasonably infer that, when returning
from her personal errand, Callaway was “combining her own business (returning from a
doctor’s appointment) with that of [LA Digital] (driving a required vehicle to [LA


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                                      DISPOSITION

       The judgment is affirmed. The respondent shall recover its costs on appeal.




                                                  ZELON, J.




We concur:




       PERLUSS, P. J.




       FEUER, J.




Digital’s workplace for its use and benefit).” Maiello did not raise this argument in the
trial court. Indeed, his trial court memorandum opposing LA Digital’s motion for
summary judgment does not even reference the dual purpose exception. He has therefore
forfeited the argument on appeal. (Gray1 CPB, LLC v. SCC Acquisitions, Inc. (2015)
233 Cal.App.4th 882, 897. [“‘“‘“‘[I]t is fundamental that a reviewing court will
ordinarily not consider claims made for the first time on appeal which could have been
but were not presented to the trial court.’ Thus, ‘we ignore arguments, authority and facts
not presented and litigated in the trial court. Generally, issues raised for the first time on
appeal which were not litigated in the trial court are [forfeited]. [Citations.]’”’
[Citation.]” [Citation.]’ [Citation.]”].)

        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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