Gisselle Morales-Simental, a Minor, etc. v. Genentech, Inc.

I. INTRODUCTION

Plaintiffs and appellants Gisselle Morales-Simental, a minor, et al.1

appeal from

summary judgment granted in favor of defendant and respondent Genentech, Inc., one of

the defendants in this personal injury case. Morales-Simental alleges that she, with the

other named plaintiffs, suffered injuries and sustained damages as a result of the

negligence of defendant Vincent Inte Ong, an employee of Genentech, when Ong’s

vehicle collided with the vehicle in which the decedent was riding.

The issue presented to us is whether Genentech’s employee, Ong, was acting

within the scope of his employment when he was involved in the automobile collision

that killed Marisol Morales. Genentech asserts the trial court correctly determined the



1 Gisselle Morales-Simental is the daughter of the deceased, Marisol Morales.

Plaintiffs and appellants Walter Morales, Sr. and Wilma Morales are the parents of the

deceased. Plaintiff and appellant Louis Deandre Gonzalez, Jr. is the fiancé of the

deceased.

2

“going and coming” rule precludes Genentech’s liability because Ong was driving to

Genentech for his own convenience and not at Genentech’s request or as part of his

regular duties. Plaintiffs argue Genentech is liable under the “special errand” exception

to the going and coming rule because at the time of the collision Ong was on a special

errand requested by Genentech or as part of his regular duties. Plaintiffs contend there

are triable issues of material fact as to whether Ong was on a special errand for

Genentech at the time of the accident, and there were issues of credibility precluding

summary judgment.

We conclude plaintiffs have failed to establish triable issues of material fact

supporting the special errand exception sufficient to overcome summary judgment for

Genentech. Accordingly, we affirm.

II. FACTUAL AND PROCEDURAL BACKGROUND

In the early morning of December 13, 2012, 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. The accident occurred at approximately 3:35 a.m. on

State Route 92 on the San Mateo Bridge. Ong owned the vehicle he was driving.

California Highway Patrol Officer Michael Aquino responded to the scene of the

accident and served as the lead investigator. He interviewed Ong first on-scene and three

more times in the following days. During the first interview at the scene of the collision,

Ong said he was driving to Genentech in South San Francisco on his night off to collect

resumes for “some upcoming interviews he had.” Ong told Officer Aquino that he

worked the night shift at Genentech. Officer Aquino did not recall Ong mentioning any

other purpose for his trip. At about midnight, a few hours before the accident, Ong told

his friend Dan Alvarez that he was going to Genentech to do something important for

work.

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

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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.

Genentech is a biotechnology company that uses human genetic material to

develop and manufacture pharmaceuticals. At the time of the accident, Ong was

employed as a lead technician on the N1 (night) shift of Genentech’s Equipment

Preparation division at its headquarters in South San Francisco, California. The

Equipment Preparation division cleans and sterilizes the tanks used to manufacture drugs

at Genentech facilities. Marc Tumaneng was Ong’s supervisor. Ong’s regular shift at

Genentech was Sunday, Monday, and Tuesday nights, and alternating Saturday nights,

from 7:00 p.m. to 8:00 a.m. Ong’s duties as lead technician included assessing workload

and assigning tasks to the other technicians on his shift. Genentech presented evidence

that all of Ong’s lead technician duties were performed at Genentech during work hours.

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.

As lead technician on his shift, Ong participated with Tumaneng in conducting

interviews and hiring. Beginning in the summer of 2012, Genentech increased its run

rate for drug production. That same year, Genentech began receiving more tanks for

sterilization, at least in part due to a problem with mold found in tanks that were

improperly cleaned in Singapore. As a result, the Equipment Preparation division’s

workload increased in 2012, and Genentech added an additional night shift and hired

more labware technicians. Tumaneng testified that this December 2012 hiring was

conducted at least in part to replace “several” technicians who had recently quit the N1

shift. Genentech hired through an agency called PRO Unlimited. Tumaneng’s role in the

hiring process included using a computer program called WAND to select candidates

from PRO Unlimited to interview.

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A few days before the accident, Ong and Tumaneng together interviewed six

candidates for two open positions on the N1 shift. On Monday, December 10, 2012, after

completing the six interviews, Tumaneng and Ong chose two candidates to hire. The

work week for Ong and Tumaneng ended at 8:00 a.m. on Wednesday, December 12. On

Wednesday, December 12, 2012 at 3:37 p.m., while he was off-duty, Tumaneng received

an email from Maybelle Gonzales, a Client Services Coordinator at PRO Unlimited,

advising him that Genentech’s human resources department had rejected one of the two

candidates he and Ong had chosen. At 5:53 p.m., Tumaneng replied to Gonzales’s email

to say he would look into other candidates; Tumaneng copied Ong on the reply email.

By 6:06 p.m., through WAND, Tumaneng had chosen four additional candidates to

schedule for interviews.

At 6:06 p.m. on December 12, 2012, PRO Unlimited, also through WAND, sent

Ong four automated messages. The body of each email stated that it was an “automated

email from the WAND system.” Each email stated that Tumaneng had requested an

interview and gave the candidate’s name, but did not show that any interviews had been

scheduled. The evidence does not establish whether Ong opened any of those emails

before the time of the accident at 3:35 a.m. on December 13, 2012; however, Ong stated

he can access his work email on his personal cell phone.

Plaintiffs filed a complaint in May 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. Although the trial court issued a tentative

ruling in plaintiffs’ favor,

2

following argument it reversed course and granted the motion.

The court then entered judgment in favor of Genentech, dismissing it from the case and

leaving Ong as the sole defendant. This timely appeal followed.



2 The trial court’s tentative ruling of March 2, 2015 does not appear in the record,

despite plaintiffs’ request that it be included.

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III. DISCUSSION

A. Standard of Review

We review the trial court’s entry of summary judgment de novo. (Nazir v. United

Airlines, Inc. (2009) 178 Cal.App.4th 243, 253.) “[S]ummary judgment shall be granted

if all the papers submitted show that there is no triable issue as to any material fact and

that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc.,

§ 437c, subd. (c).) A moving defendant can meet its initial burden by showing that one

or more elements of the plaintiff’s cause of action cannot be separately established.

(Nazir, supra, 178 Cal.App.4th at p. 253.) Once the defendant meets the initial burden,

the burden shifts to the plaintiff to show the existence of a triable issue of material fact.

(Ibid.)

On appeal, we view the evidence in the light most favorable to the plaintiffs as the

parties opposing summary judgment, and we liberally construe the plaintiffs’ evidence

and strictly scrutinize the defendant’s evidence, resolving ambiguities in the plaintiffs’

favor. (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142.) On

appeal, “we must decide independently whether the facts not subject to triable dispute

warrant judgment for the moving party as a matter of law.” (Intel Corp. v. Hamidi (2003)

30 Cal.4th 1342, 1348.)

The weight of authority holds that the standard for reviewing the trial court’s

evidentiary rulings is abuse of discretion (Serri v. Santa Clara University (2014) 226

Cal.App.4th 830, 852), but there is some dispute as to whether evidentiary rulings made

in the summary judgment context should instead be reviewed de novo (see In re

Automobile Antitrust Cases I & II (2016) 1 Cal.App.5th 127, 141). We need not resolve

this issue, because, as we discuss below, our conclusions as to the evidentiary issues

raised on appeal would be the same under either standard. An appellate court’s review of

the evidence on summary judgment does not include evidence to which objections have

been made and properly sustained. (Code Civ. Proc., § 437c, subd. (c).)

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B. Applicable Principles of Respondeat Superior, the Going and

Coming Rule, and the Special Errand Exception

Under the doctrine of respondeat superior, an employer is vicariously liable for the

tortious conduct of its employees within the scope of their employment. (Jorge v.

Culinary Institute of America (2016) 3 Cal.App.5th 382, 396.) “ ‘[T]he modern

justification for vicarious liability is a rule of policy, 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.’ ” (Hinman v. Westinghouse Elec. Co. (1970) 2 Cal.3d

956, 959–960 (Hinman).) The principal justification for the application of the doctrine of

respondeat superior is that the employer may spread the risk through insurance and carry

the expense as part of its costs of doing business. (Johnston v. Long (1947) 30 Cal.2d 54,

64.)

The scope of employment has been interpreted broadly under the respondeat

superior doctrine in California. (Farmers Ins. Group v. County of Santa Clara (1995) 11

Cal.4th 992, 1004.) Acts necessary for the employee’s comfort or convenience at work,

or where an employee is tending to his own business at the same time as that of his

employer, do not remove the employee from the scope of employment, “ ‘ “unless it

clearly appears that neither directly nor indirectly could he have been serving his

employer.” ’ ” (Ibid.) The employer’s liability extends to risks inherent in or incidental

to the employer’s enterprise. (Rodgers v. Kemper Constr. Co. (1975) 50 Cal.App.3d 608,

618–619.)

Nevertheless, there are exceptions to the respondeat superior doctrine. (Hinman,

supra, 2 Cal.3d at p. 960.) Under the going and coming rule, for example, an employee

commuting to or from work is typically outside the scope of employment, and the

employer is not liable for the employee’s torts. (Id. at p. 961, citing 1 Witkin, Summary

of Cal. Law (7th ed. 1960) pp. 448–449.) “The ‘going and coming’ rule is sometimes

ascribed to the theory that the employment relationship is ‘suspended’ from the time the

employee leaves until he returns [citation], or that in commuting he is not rendering

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service to his employer [citation].” (Hinman, supra, 2 Cal.3d at p. 961.) With a few

exceptions, employees are not within the scope of employment while commuting. (Ibid.)

One exception to the going and coming rule is the special errand rule, which

provides that an employee is within the scope of his employment while performing an

errand either as part of his regular duties or at the specific order or request of his

employer. (Boynton v. McKales (1956) 139 Cal.App.2d 777, 789 (Boynton).) “[T]he

employee is considered to be in the scope of his employment from the time he starts on

the errand until he has returned or until he deviates therefrom for personal reasons.”

(Ibid.) The employer is liable for the employee’s torts in the course of a special errand

because the errand benefits the employer. (Ibid.) It is not necessary that the employee is

directly engaged in his job duties; included also are errands that incidentally or indirectly

benefit the employer. (Ibid.) It is essential, however, that the errand be either part of the

employee’s regular duties or undertaken at the specific request of the employer. (Ibid.)

Many court decisions on the going and coming and special errand rules include

some discussion of workers’ compensation law. (Harris v. Oro-Dam Constructors

(1969) 269 Cal.App.2d 911, 913–914 (Harris).) Workers’ compensation decisions

construe the scope of employer liability more broadly than do tort cases. (Munyon v.

Ole’s, Inc. (1982) 136 Cal.App.3d 697, 702–703 (Munyon).) Instead of the tort law

requirement that an employee be acting within the “scope of employment,” workers’

compensation cases use the phrase, “ ‘arising out of and occurring in the course of

employment,’ ” which has been interpreted to include activities such as collecting a

paycheck or commuting to work where the employee receives a per diem allowance for

travel expenses. (Id. at pp. 701–702; see Anderson v. Pacific Gas & Electric Co. (1993)

14 Cal.App.4th 254, 259 (Anderson).) One reason for the broader interpretation is that

the goal of workers’ compensation law is to reimburse the injured worker, whereas the

object in tort cases is to determine whether vicarious liability should be extended beyond

those who were directly negligent. (Munyon, supra, 136 Cal.App.3d at p. 702.)

“Workers’ compensation decisions can be helpful in determining whether an employer

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should be vicariously liable, but they are not controlling precedent.” (Anderson, supra,

14 Cal.App.4th at p. 259.)

Whether an employee was acting within the course and scope of his employment

is generally a question of fact, but if the facts are undisputed and no conflicting

inferences are possible, the question is one of law. (Munyon, supra, 136 Cal.App.3d at

p. 701.)

C. Plaintiffs’ Three Causes of Action

Plaintiffs seek damages pursuant to three causes of action against Ong and

Genentech: two in the form of negligence claims (for motor vehicle negligence and

general negligence, respectively), and one in the form of a survivorship action

incorporating the negligence allegations. Plaintiffs allege they suffered injuries and

sustained damages as a result of the negligence of defendant Ong when his vehicle struck

the vehicle of Marisol Morales, resulting in her injury and death. It is undisputed that

Ong was the driver and owner of the vehicle that hit the vehicle in which Marisol

Morales was a passenger. Accordingly, the only theory of Genentech’s liability as to all

three causes of action is the doctrine of respondeat superior, as Ong’s employer.

Genentech asserts the material facts show that, at the time of the accident, Ong

was not performing a special errand for Genentech as a matter of law, since he was not

acting on a special request from Genentech or as part of his regular duties. Plaintiffs

contend there are triable issues of material fact as to whether, at the time of the accident,

Ong was performing a special errand for Genentech. Plaintiffs advance three arguments

to bring Ong’s trip within the special errand exception: 1) Ong, as a lead technician

tasked with hiring, could order himself to perform a special errand in connection with

that task; 2) the emails of December 12, 2012 were a request to Ong to perform a special

errand to complete the hiring; and 3) Ong’s trip to Genentech on his night off to review

resumes was within his regular duties at Genentech.

We address each argument in turn to determine whether it creates a triable issue of

material fact as to whether, at the time of the accident, Ong was engaged in a special

errand either at Genentech’s request or as part of his regular duties.

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1. Ong, As a Shift Lead Who Was Tasked with Hiring, Could Not

Request Himself to Perform a Special Errand on Genentech’s

Behalf.

First, plaintiffs contend the evidence supports a reasonable inference that

Genentech delegated authority to Ong as a shift lead tasked with hiring responsibilities,

and that Ong’s decision to drive to Genentech on December 13, 2012 to review resumes

was a reasonable exercise of that authority. Plaintiffs argue this creates a triable issue of

material fact as to whether Ong had the authority to request the errand of himself on

Genentech’s behalf. We disagree.

The appellate court in Vivion v. National Cash Register Co. (1962) 200

Cal.App.2d 597, 601, 603–606 (Vivion) affirmed a jury verdict releasing the employer

from liability, holding the jury could determine that the employee was not acting within

the scope of employment when she decided independently to drive to her workplace

outside of working hours, without any request or expectation from her employer. In

Vivion, an employee (Rauscher) decided to return to her workplace after her shift to

practice using an accounting machine she was responsible for demonstrating the

following day. (Id. at p. 603.) On her drive home after practicing at the office, Rauscher

was involved in a collision. (Ibid.) Rauscher, like her fellow employees, had a key to the

office, but her employer did not require her to work overtime or to come in after hours for

additional training. (Id. at pp. 603–604.) No supervisor or any other employee had asked

Rauscher to go to the office that evening. (Id. at p. 604.)

Vivion was not decided at summary judgment, but instead went to the jury, which

found in favor of the employer. (Vivion, supra, 200 Cal.App.2d at pp. 600–601.) In

affirming the judgment, the appellate court in Vivion observed that the mere fact that a

trip may be related to an employee’s job does not impose liability on the employer. (Id.

at p. 606; see Harris, supra, 269 Cal.App.2d at p. 917 [“It is said that the right of control

‘goes to the very heart of tortious responsibility.’ [Citation.] . . . [Citation.] The question

is one of a right to control the trip.”].) The Vivion court held that, to bring an employee’s

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trip within the special errand exception, the employer must request or at least expect it of

the employee. (Vivion, at p. 606.)

Furthermore, in Munyon, supra, 136 Cal.App.3d at pp. 706–707, the appellate

court affirmed summary judgment for the employer because there were no triable issues

of material fact as to whether the employee (Edwards) was on a special errand when she

went to her workplace on her day off to pick up her paycheck. Edwards, a hardware store

cashier, did not use her car at work, and her employer did not require her to have a car.

(Id. at p. 700.) After picking up her paycheck, Edwards was involved in a traffic accident

on her way home. (Ibid.) The court rejected plaintiff’s argument that the employer

created the risk by holding her paycheck, reasoning that such a theory was “too

attenuated and does not comport with the realities of commercial and industrial

relationships.” (Id. at p. 706.) The Munyon court held that Edwards’ trip to pick up her

paycheck was undertaken for her own convenience, not at the request of her employer,

and therefore did not come within the special errand exception. (Id. at pp. 700, 706.)

On the other hand, in Jeewarat v. Warner Bros. Entertainment Inc. (2009) 177

Cal.App.4th 427, 436 (Jeewarat), the court reversed summary judgment for the employer

(Warner), holding that an employee’s attendance at a business conference authorized and

funded by the employer may come within the special errand exception. There, the

employee (Brandon) was vice-president of anti-piracy internet operations at Warner. (Id.

at p. 431.) Brandon was involved in a traffic accident while driving home from the

airport after attending an out-of-town business conference sponsored by one of Warner’s

anti-piracy vendors. (Id. at pp. 431–432.) The Jeewarat court held the evidence Warner

paid for Brandon’s airfare, hotel, and airport parking, coupled with the reasonable

inference that Warner would benefit from the information Brandon learned at the

conference, created triable issues of material fact as to whether the business trip was a

special errand. (Id. at pp. 437, 438–439.)

In this case, like the employees in Vivion and Munyon, Ong, on his own, for his

own reasons in the pre-dawn hours of December 13, chose to drive to Genentech. The

record shows no evidence that anyone from Genentech requested that Ong drive to

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Genentech in the dead of night. Ong testified in his deposition that he did not expect to

be paid for the trip. And in contrast to Jeewarat, there was no evidence Genentech

authorized Ong’s trip by paying his travel expenses.

Plaintiffs point out that, unlike the employee in Vivion who had no authority to

assign or delegate tasks, Ong was a shift lead whose duties included assigning tasks to

other technicians on his shift. They assert that Ong, as a supervisorial employee tasked

with hiring, had authority to act on Genentech’s behalf and, in essence, request himself to

complete a special errand connected to that task. This argument finds no support in the

extensive body of going and coming case law, and 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.

Even in Jeewarat, where the employee was a vice-president, the court did not base

its conclusion on a theory that the vice-president had the authority to order himself to go

on the business trip on Warner’s behalf; instead, an important factor in the court’s

decision was Warner’s authorization of the trip by paying the vice-president’s travel

expenses. (Jeewarat, supra, 177 Cal.App.4th at p. 437.) Ong was a shift lead with less

authority than the vice-president in Jeewarat, and he worked under his direct supervisor,

Tumaneng. We cannot accept the theory that Ong had the authority to order himself to

perform a special errand for Genentech. Such reasoning would expand the special errand

rule to allow employees at various levels to request special errands of themselves on

behalf of their employers, thereby stripping the employer of the ability to control when it

will be liable for an employee’s off-shift activities.

In its order granting summary judgment for Genentech, the trial court observed

that even in workers’ compensation cases, which embrace the more lenient standard of

“ ‘arising out of and occurring in the course of employment’ ” (see Munyon, supra, 136

Cal.App.3d at pp. 701, 702), 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.

Plaintiffs cite several workers’ compensation cases in order to distinguish them from the

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facts here, but as noted, workers’ compensation cases are not controlling precedent in tort

cases. (Anderson, supra, 14 Cal.App.4th at p. 259.) 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, under Vivion, an employee’s unilateral decision to commute to work after

hours does not bring the trip within the special errand rule. (Vivion, supra, 200

Cal.App.2d at p. 606.) We reject the argument that Ong could order himself to perform a

special errand on Genentech’s behalf.

2. The Hiring Assignment, Coupled with the Genentech Emails of

12/12/12 Advising Further Action Was Necessary, Was Not a

Request to Ong to Perform a Special Errand to Complete the

Assigned Hiring Task.

Next, plaintiffs argue that, because Genentech gave Ong the ongoing assignment

of assisting with the allegedly urgent hiring, and because Ong received emails on

December 12, 2012 advising further action was necessary, it can be inferred that those

emails constituted a request by Genentech to Ong to perform a special errand. Again, we

must disagree.

In Boynton, supra, 139 Cal.App.2d at p. 791, the appellate court upheld the verdict

against the employer (McKales), holding the jury could reasonably infer that the

employee (Brooks) was on a special errand for his employer when he caused an accident

on his way home from a company banquet. While McKales argued the banquet was

purely a social function Brooks chose to attend for his own enjoyment, the facts showed

it was an annual company banquet where the vice-president of sales honored employees

for their years of service. (Id. at pp. 790–791.) Attendance was not compulsory, but was

expected, and McKales may have benefitted from the banquet by encouraging long-term

employment. (Id. at p. 791.) Nonetheless, Boynton made clear that it is not enough for

the errand to benefit the employer; the employer must also request or expect the

employee to attend. (Id. at pp. 789, 791.)

In Tognazzini v. San Luis Coastal Unified School Dist. (2001) 86 Cal.App.4th

1053, 1059–1060 (Tognazzini), the appellate court affirmed a jury verdict releasing the

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employer (the District) from liability for an accident caused by the employee (Ho) while

she was on her way home from fingerprinting. Ho worked for the District as a tutor, and

the state required all persons working with children to be fingerprinted. (Id. at p. 1056.)

The District itself did not mandate fingerprinting, but Ho’s supervisor at the District told

her about the state law requirement and gave her a phone number to call to make an

appointment. (Ibid.) Ho was free to choose the date, time, and location of the

fingerprinting appointment, and the District did not pay her travel expenses. (Id. at

p. 1058.) The Tognazzini court upheld the conclusion that Ho was not on a special errand

for the District at the time of the collision, noting that the fingerprinting was not a direct

request of the District, but rather was a state mandate, and because Ho paid her own

travel expenses, controlled her own method of travel, and chose when and where to fulfill

the requirement. (Id. at pp. 1058–1059.)

In contrast to Boynton, the facts in this case do not create a reasonable inference

that Genentech expected Ong to drive to work on the early morning of December 13,

2012, to respond to a hiring crisis. In Boynton, the employee received an invitation to

attend a company banquet, and the practice of honoring employees for their service

created an inference that attendance was not only invited, but expected. (Boynton, supra,

139 Cal.App.2d at pp. 790–791.) Here, the day before the accident, Ong was copied on

an email from Tumaneng, and received automated emails from PRO Unlimited, letting

him know that one of the new hires had fallen through and further interviews were

necessary. It is not clear whether Ong read these emails before the collision, but even

assuming he did, and assuming he decided to drive to Genentech on the morning of

December 13, 2012 to prepare for those interviews, there is still no evidence that anyone

at Genentech requested or expected that Ong would drive to work that morning.

Moreover, even if it could be inferred that Ong read the emails before driving to

Genentech and those emails constituted a request that Ong continue to assist with the

hiring process, it is clear they did not require Ong to come in at a specific day or time.

Even though Tognazzini involved fingerprinting ordered by the state and not by the

employer, it was also germane to the court’s decision that the employee had full control

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over when and where she completed the requirement, and over her means of

transportation. (Tognazzini, supra, 86 Cal.App.4th at pp. 1058–1059.) On this record,

even if the December 12 emails to Ong could be interpreted as a request to continue work

on the overall assignment of hiring, they cannot be interpreted as a request that Ong drive

to Genentech on December 13, or on any of his days off.

3. Ong’s Trip to Genentech Was Not Part of His Regular Duties of

Hiring for the N1 Shift.

Finally, Plaintiffs assert there are triable issues of material fact concerning the

extent of Ong’s hiring duties and whether they included driving to Genentech on his day

off to review resumes. Again, we disagree.

In Harvey v. D & L Constr. Co. (1967) 251 Cal.App.2d 48, 49, 52–53 (Harvey),

the appellate court reversed a nonsuit in favor of the employer (D & L), holding that the

jury could reasonably infer that the employee (Chism) was on a special errand as part of

his regular duties when he was involved in a collision while driving himself and a

coworker (Richards) from their work site in Yuma, Arizona to their homes in Pasadena,

California. Chism, an experienced cement finisher, first worked for D & L in California.

(Id. at p. 49.) The D & L superintendent in Yuma, Arizona asked Chism several times to

come to work there, and eventually he accepted. (Ibid.) The superintendent sought out

Chism because he was having trouble keeping skilled cement finishers on the Yuma job

due to the heat and the remoteness of the location. (Id. at pp. 50, 52.)

While Chism worked for D & L in Yuma, he drove home to Pasadena every

weekend, sometimes using his own truck, which he was allowed to fill with D & L gas,

or sometimes using his superintendent’s truck. (Harvey, supra, 251 Cal.App.2d at p. 51.)

Chism often used his truck to haul company supplies, both at the work site and as part of

his commute. (Ibid.) Chism hired other cement finishers from California at D & L’s

request. (Ibid.) One of his hires, Richards, regularly rode with Chism on his weekend

commute, and was a passenger in his truck at the time of the accident. (Ibid.) Chism

testified that, on the weekend of the accident, D & L did not ask him to bring any

employees or equipment on his return trip. (Ibid.) The Harvey court found that, even

15

though D & L made no specific request of Chism that weekend, there was sufficient

evidence to support an inference that Chism was performing an errand for D & L as part

of his regular duties at the time of the accident. (Id. at pp. 52–53.)

Here, the evidence does not support an inference that Ong’s regular duties of

hiring at Genentech included driving to work on his day off to review resumes. Unlike

Harvey, where the employer regularly expected the employee to haul materials and

recruit employees as part of his long-distance commute, there is no evidence Genentech

ever expected Ong to come in outside of his normal working hours to assist with hiring.

The evidence plaintiffs introduced to the contrary included that Ong sometimes worked

overtime, and did so on December 10, 2012, to help Tumaneng complete the interviews

scheduled that day. Plaintiffs also point to evidence that Ong attended once-monthly offshift

leadership meetings and occasionally communicated with coworkers on his days off

by text or by phone. Evidence that an employee sometimes worked overtime, attended

scheduled work meetings, and communicated with coworkers outside of working hours

cannot support a reasonable inference that he was regularly expected to come into the

office on his days off to review resumes.

Finally, plaintiffs rely on Jeewarat, supra, 177 Cal.App.4th at p. 437, contending

that, like the vice-president whose regular duties were to prevent internet piracy, Ong’s

regular duties included hiring, and he was carrying out those duties at the time of the

collision. They further argue that the Jeewarat court found that driving home from the

airport was part of the vice-president’s regular duties, without discussing whether the

vice-president had ever driven a car as part of his job. The Jeewarat court, as we note

above, did not base its holding on a theory that driving home from the airport was part of

the vice-president’s regular duties. (Jeewarat, supra, 177 Cal.App.4th at pp. 436–437.)

Instead, the court concluded that the special errand doctrine may be applied to a business

trip, and that Warner’s payment of the vice-president’s travel expenses could support a

reasonable inference that Warner authorized the trip and expected to derive a benefit

from the vice-president’s attendance. (Ibid.) Jeewarat’s reasoning cannot support an

argument that Ong was engaged in his regular duties at the time of the accident. Since

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plaintiffs put forth no evidence that Ong had even once before made a special trip to

Genentech to review resumes or perform any task connected to hiring, it cannot be

inferred that such a trip was part of his regular duties in hiring.

D. Credibility and Summary Judgment

Plaintiffs argue that contradictions in the declarations and deposition testimony of

both Ong and Tumaneng raise credibility questions for the jury. They invoke Code of

Civil Procedure section 437c, subdivision (e), which provides, “[i]f a party is otherwise

entitled to summary judgment pursuant to this section, summary judgment shall not be

denied on grounds of credibility or for want of cross-examination of witnesses furnishing

affidavits or declarations in support of the summary judgment, except that summary

judgment may be denied in the discretion of the court if the only proof of a material fact

offered in support of the summary judgment is an affidavit or declaration made by an

individual who was the sole witness to that fact . . . .” (Code Civ. Proc., § 437c,

subd. (e); see Preis v. American Indemnity Co. (1990) 220 Cal.App.3d 752, 760.)

Plaintiffs contend that Ong and Tumaneng are the sole witnesses to the material

fact of whether Tumaneng asked Ong to perform an errand connected to the hiring

between 3:37 p.m. on December 12 and 3:35 a.m. on December 13, 2012. Ong denies

that anyone from Genentech asked him to perform an errand during that time period, and

Tumaneng states that he cannot remember whether he made any request of Ong.

Plaintiffs note, further, that Ong gave inconsistent testimony about his reasons for driving

to Genentech on December 13, 2012, and that one of those reasons, to pick up Alvarez’s

resume, was proven false. In addition, they point to supposed contradictions in

Tumaneng’s testimony as to the scope of Ong’s duties as shift lead, the extent of Ong’s

involvement in hiring, when future interviews at Genentech were scheduled, and whether

overtime at Genentech must be pre-approved.

Code of Civil Procedure section 437c, subdivision (e) focuses on the inability to

cross-examine a witness who has not been deposed, but has submitted a declaration or

affidavit. Here, Ong and Tumaneng both gave deposition testimony. Genentech deposed

Ong in November 2013. Plaintiffs were unable to depose Ong because Ong asserted his

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Fifth Amendment rights, and the criminal proceeding concerning the collision concluded

on July 28, 2015. Meanwhile, according to plaintiffs, the civil action was stayed pending

appeal from entry of summary judgment on June 16, 2015.

In its summary judgment order, the trial court acknowledged that Ong gave

inconsistent testimony concerning his reasons for driving to Genentech that morning.

The court then stated that, even resolving the conflict in plaintiffs’ favor by taking as true

Ong’s statement that he was driving to Genentech to pick up resumes for upcoming

interviews, there was still no evidence that anyone from Genentech asked Ong to drive to

work on the early morning of December 13, 2012. In essence, the court found that any

credibility issues surrounding Ong’s testimony were not material to the resolution of the

special errand issue on which the motion turned. Suffice it to say we agree.

E. Evidentiary Objections

As noted, there is an outstanding issue as to whether the standard for reviewing the

trial court’s evidentiary objections is de novo or abuse of discretion (In re Automobile

Antitrust Cases I & II, supra, 1 Cal.App.5th at p. 141; Serri v. Santa Clara University,

supra, 226 Cal.App.4th at p. 852), but we need not resolve the issue. Here, the trial court

sustained objections to plaintiffs’ Exhibits G, H, and I as irrelevant and immaterial. The

trial court also noted its decision on summary judgment would be the same regardless of

whether those exhibits were in evidence.

The sustaining of an objection to Exhibit I appears to have been inadvertent error,

since Genentech did not raise an objection to that exhibit. Exhibit I is plaintiffs’ Second

Request for Production of Documents to Genentech and relevant portions of Genentech’s

responses, including Tumaneng’s email of December 6, 2012, advising Genentech’s

hiring agency that he and Ong would be conducting the interviews of December 9 and 10,

2012. Since Genentech raised no evidentiary objection to Exhibit I, the trial court erred

in excluding it from evidence, and we view it as properly admitted into evidence before

the court. Having found it to be admissible, however, we do not see it as material.

The trial court sustained Genentech’s objections to Exhibits G and H as irrelevant

and immaterial. Exhibit G contains portions of plaintiffs’ Second Request for Production

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of Documents to Ong, and Ong’s responses, including documentation of his overtime

hours in 2012 and a chart showing the number of employees on Ong’s shift in March

2013. Exhibit H contains portions of plaintiffs’ First Request for Production of

Documents to Genentech, and responses, including Ong’s December 2012 work schedule

and another chart showing the number of employees on his shift in April 2012. The trial

court found that evidence of Ong’s overtime and the number of employees on his shift

was irrelevant and immaterial to its decision. Whether under the de novo standard or the

abuse of discretion standard, we find no error on this point, since Ong’s overtime hours

and the number of employees on his shift are not essential to our analysis of whether Ong

was on a special errand for Genentech at the time of the accident.

Affirmed.