In 2012, Mr. 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.
Ong told the officer who investigated the accident that he was driving to his employer, Genentech in South San Francisco on his night off to collect resumes for “some upcoming interviews he had.” Ong said that he worked the night shift at Genentech. A few hours before the accident, Ong told his friend Dan Alvarez that he was going to Genentech to do something important for work.
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.
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.
Plaintiffs filed a civil complaint in 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. The trial court entered judgment in favor of Genentech, dismissing it from the case and leaving Ong as the sole defendant. The court of appeal affirmed in the unpublished case of Morales-Simental v. Genentech.
Under the doctrine of respondeat superior, an employer is vicariously liable for the tortious conduct of its employees within the scope of their employment. The scope of employment has been interpreted broadly under the respondeat superior doctrine in California. Nevertheless, there are exceptions to the respondeat superior doctrine. Pursuant to the going and coming rule the employment relationship is ‘suspended’ from the time the employee leaves until he returns or that in commuting he is not rendering service to his employer.
An employee’s decision to take work home or to drive to work at an unusual time does not bring the trip within the scope of employment. Even accepting as true plaintiffs’ assertion that Ong took it upon himself to drive to Genentech on his day off to respond to a hiring crisis, an employee’s unilateral decision to commute to work after hours does not bring the trip within the special errand rule.
The court concluded by stating “we decline plaintiffs’ invitation to expand the special errand exception in the manner they suggest. What they propose is an invitation to self-serving pretense by anyone with a plausible claim to supervisorial authority.”