Filed 12/10/21 Carradine v. IDrip Vape CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
RONEISHA CARRADINE, B307443
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC716139)
v.
IDRIP VAPE, LLC,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Daniel M. Crowley, Judge. Affirmed.
Wilshire Law Firm and Daniel B. Miller, for Plaintiff
and Appellant.
Wesierski & Zurek, Ronald Zurek and Lynne
Rasmussen; Horvitz & Levy and Rebecca G. Powell, for
Defendant and Respondent.
INTRODUCTION
In May 2018, Eyad Rihani left work at respondent
IDrip Vape, LLC, which he co-owned, and started driving
home in his private vehicle. On his way home, Rihani was
involved in an accident that killed Shaunta Jackson.
Jackson’s mother, appellant Roneisha Carradine, sued
respondent, seeking to hold it vicariously liable for Rihani’s
actions.
Respondent moved for summary judgment, arguing it
could not be held liable for Rihani’s actions. Among other
things, respondent argued that under the “going-and-coming
rule,” Rihani’s drive home from work was outside the scope
of his work and thus could not subject respondent to liability.
Appellant opposed the motion, arguing, inter alia, that
Rihani’s commute fell within an “incidental-benefit
exception” to the going-and-coming rule because respondent
benefitted from the daily availability of Rihani’s vehicle,
which he occasionally used for work purposes on an
“impromptu” basis.
The trial court granted respondent’s motion for
summary judgment. It concluded that the going-and-coming
rule applied because respondent did not require Rihani to
use his car for work, and that Rihani used the car as a
matter of personal convenience, not because emergency
business trips required him to have the car at hand.
Appellant challenges this ruling on appeal. Finding no
error, we affirm.
2
BACKGROUND
A. The Accident and Appellant’s Complaint
Respondent is a limited liability company operating a
vaping store in a shopping center in Santa Clarita. During
the relevant period, respondent was co-owned by two
partners, including Rihani, who generally managed the
business’s day-to-day operations. On the night of May 16,
2018, Rihani closed the store and headed home in his
personal vehicle. As he was pulling out of the shopping
center’s parking lot, Rihani collided with Jackson’s vehicle,
causing her fatal injuries. Appellant, Jackson’s mother,
brought this action against Rihani and others, and later
amended her complaint to add respondent as a defendant.
She sought to hold respondent vicariously liable for Rihani’s
conduct on the theory that his conduct at the time of the
accident was within the scope of his employment with
respondent at the time of the incident.
B. Respondent’s Motion for Summary Judgment
Following discovery, respondent moved for summary
judgment. Initially, it contended the “scope of employment”
test was inapplicable to Rihani, who was a principal of
respondent, rather than its employee. Alternatively, it
argued Rihani was not acting within the scope of his work at
the time of the accident because he was driving home, and
under the “going and coming rule,” an employee’s commute
to and from the workplace is generally not considered within
the scope of employment. Anticipating that appellant would
3
raise the “required vehicle exception” to the going-and-
coming rule, respondent asserted that while Rihani
occasionally used his private vehicle for work purposes, he
was not required to do so, and respondent derived no
significant benefit from Rihani’s use of his vehicle.1
In support of its motion, respondent submitted a
declaration by Rihani, excerpts of Rihani’s deposition
testimony, and copies of respondent’s bank statements for
April 2017 through May 2018. According to Rihani’s
declaration, respondent did not own a company vehicle and
did not need a vehicle to operate. When Rihani ran
occasional errands for the company, he used his private
vehicle for his own convenience, and respondent paid for his
gas. Most of the time, respondent had supplies delivered
directly to the business. However, a few times a month,
Rihani would drive to downtown Los Angeles to pick up
additional supplies on an “impromptu” basis. Although
Rihani chose to obtain these supplies in person, “[a]ny
product could have been, and most often was, delivered
within a matter of days to add to the other ample inventory.”
And if a particular product was running low, it was
unnecessary to “quickly replenish” it because there were
1 As discussed below, under the “required vehicle” exception,
an employer who requires an employee to use a personal vehicle
for work purposes may be liable for torts committed during the
employee’s commute. (Savaikie v. Kaiser Foundation Hospitals
(2020) 52 Cal.App.5th 223, 230 (Savaikie).)
4
multiple other products for sale.2 Rihani made no
work-related trip on the day of the accident.
In his deposition, Rihani acknowledged that having
items delivered “would delay the process,” but explained that
the main reason he would make supply runs in person was
“to know what’s going on in in the market . . . , to see what’s
there . . . .” Rihani stated he used his own vehicle as a
matter of “comfort,” but noted that he could have used Uber
to make his supply runs. Finally, respondent’s bank records
listed Rihani’s occasional purchases on behalf of respondent
from businesses in downtown Los Angeles and elsewhere
throughout the months preceding the accident.3
Appellant opposed respondent’s motion, arguing that
for purposes of vicarious liability, similar rules applied to
employees and principals. She asserted that the
going-and-coming rule was inapplicable because Rihani was
required to make his vehicle available to respondent so he
could make supply runs on an emergency basis.
2 Rihani also noted he made weekly trips to respondent’s
bank, which was in the same shopping center as respondent’s
store. While it would have been easy to walk there, for his own
convenience, Rihani would often drive there in his vehicle.
3 Based on respondent’s bank records, appellant contends
Rihani used his vehicle for work-related trips on 26 days in the
four and a half months preceding the accident, while respondent
contends he used his vehicle on only 17 days during that period.
Regardless of the precise number, it is undisputed that Rihani
used his vehicle for work purposes a few times per months, on
average.
5
Alternatively, she claimed that respondent obtained a
benefit from the availability of Rihani’s vehicle, giving rise to
an incidental-benefit exception to the going-and-coming
rule.4
C. The Trial Court’s Ruling
Following a hearing, the trial court granted
respondent’s motion for summary judgment. The court
reasoned that based on the uncontroverted evidence, Rihani
was not required by respondent to have his personal vehicle
available on a daily basis, but used it for work as a matter of
personal convenience. It also rejected appellant’s contention
that Rihani’s work trips were done on an emergency basis
(and thus required the availability of his vehicle). Thus, the
court concluded that there was “no evidence that
[respondent] was deriving any benefit from Mr. Rihani’s use
of his vehicle at the time of the accident . . . .” Appellant
timely appealed.5
4 As discussed below, some courts have recognized an
exception to the going-and-coming rule where an employee’s use
of a vehicle provided the employer a sufficient benefit, even if the
employer did not require the use of the vehicle. (See, e.g., Pierson
v. Helmerich & Payne Internat. Drilling Co. (2016) 4 Cal.App.5th
608, 629 (Pierson).)
5 Following the trial court’s entry of judgment, appellant
moved for a new trial, but the court ultimately denied her motion
for lack of jurisdiction because it was not heard within 60 days
from the date of appellant’s notice of intent to move for a new
trial. Appellant does not challenge that ruling.
6
DISCUSSION
Challenging the trial court’s grant of summary
judgment, appellant contends a triable issue exists as to
respondent’s vicarious liability for Rihani’s conduct at the
time of the accident. She argues the “incidental benefit”
exception to the going-and-coming rule brought Rihani’s
drive home within the scope of his employment because
respondent benefitted from the continuous availability of his
private vehicle. As discussed below, we conclude that
respondent did not draw sufficient benefit from the
availability of Rihani’s vehicle to justify holding it liable for
Rihani’s conduct.6
A. Legal Principles
1. Summary Judgment
“Summary judgment is appropriate only ‘where no
triable issue of material fact exists and the moving party is
entitled to judgment as a matter of law.’” (Regents of
University of California v. Superior Court (2018) 4 Cal.5th
607, 618.) “‘“We review the trial court’s decision de novo,
considering all the evidence set forth in the moving and
opposing papers except that to which objections were made
6 Given our conclusion, we need not consider respondent’s
contentions that exceptions to the going-and-coming rule are
inapplicable to Rihani because he was a principal of respondent,
rather than its employee, and that “incidental benefit” is not an
independent exception to the rule.
7
and sustained.”’” (Yanowitz v. L’Oreal USA, Inc. (2005) 36
Cal.4th 1028, 1037.) “We liberally construe the evidence in
support of the party opposing summary judgment and
resolve doubts concerning the evidence in favor of that
party.” (Ibid.)
2. Employers’ Vicarious Liability for the Torts of
Employees
“Under the doctrine of respondeat superior, an
employer is vicariously liable for an employee’s tortious
conduct within the scope of employment.” (Newland v.
County of Los Angeles (2018) 24 Cal.App.5th 676, 685
(Newland).) The employer is held liable not because it
controls the employee’s conduct or is at fault for the third
party’s injuries, but because the employer’s business creates
inevitable risks: “‘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.
They are placed upon the employer because, having engaged
in an enterprise which will, on the basis of past experience,
involve harm to others through the torts of employees, and
sought to profit by it, it is just that he, rather than the
innocent injured plaintiff, should bear them; and because he
is better able to absorb them, and to distribute them,
through prices, rates or liability insurance, to the public, and
8
so to shift them to society, to the community at large.’”7
(Hinman v. Westinghouse Elec. Co. (1970) 2 Cal.3d 956,
959-960 (Hinman).)
Whether an employee was acting within the scope of
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.” (Morales-Simental v. Genentech,
Inc. (2017) 16 Cal.App.5th 445, 453 (Morales-Simental).)
The burden is on the plaintiff to show that the alleged
negligent act was committed within the scope of
employment. (Bingener v. City of Los Angeles (2019) 44
Cal.App.5th 134.)
7 A similar framework applies in workers’ compensation law
to determine whether an employee injured while traveling to or
from work sustained an injury “‘“arising out of and in the course
of the employment”’” for purposes of Labor Code section 3600.
(Pierson, supra, 4 Cal.App.5th at 619.) But while the tests are
closely related, the test applicable to respondeat superior is more
restrictive, as workers’ compensation cases apply statutory
admonitions for liberal construction that are absent in
respondeat superior law. (Newland, supra, 24 Cal.App.5th at
689.) As one court has observed, the two bodies of law “‘are
driven in opposite directions based on differing policy
considerations’” (Fields v. State of California (2012) 209
Cal.App.4th 1390, 1398). Thus, workers’ compensation cases may
provide guidance, but are not controlling in respondeat superior
cases. (Fields, supra, at 1398.)
9
3. The Going-and-Coming Rule and Exceptions to
the Rule
“An employee’s commute to and from the workplace is
generally not considered to be within the course and scope of
employment.” (Newland, supra, 24 Cal.App.5th at 685.)
“This rule, commonly referred to as the ‘going and coming
rule,’ is grounded in the notion 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.’” (Id at 686.)
Courts have recognized an exception to the
going-and-coming rule, commonly referred to as the
“‘required-vehicle’” exception. This exception covers
situations in which the employer “‘“requires an employee to
furnish a vehicle as an express or implied condition of
employment . . . .”’” (Savaikie, supra, 52 Cal.App.5th at 230,
italics omitted.) “In cases where an employee was expressly
or impliedly required to bring a means of transportation to
the job, ‘“the obligations of the job reach out beyond the
premises, making the vehicle a mandatory part of the
employment environment, and compel the employee to
submit to the hazards associated with private motor travel,
which otherwise he would have the option of avoiding.”’”
(Newland, supra, 24 Cal.App.5th at 688.)
Some courts have recognized a related exception,
sometimes called the “incidental benefit exception,”
applicable where an employee’s use of a vehicle was not
10
required, but provided the employer a meaningful benefit.8
(Pierson, supra, 4 Cal.App.5th at 629; see also, e.g., Lobo v.
Tamco (2010) 182 Cal.App.4th 297, 302-303 (Lobo).) “[N]ot
all benefits to the employer are of the type that satisfy the
incidental benefits exception.” (Pierson, supra, at 630.)
Trivial benefits, or benefits “‘common to commute trips by
ordinary members of the work force’” will not suffice. (Jorge
v. Culinary Institute of America (2016) 3 Cal.App.5th 382,
398 (Jorge).) “[T]he benefit must be sufficient enough to
justify making the employer responsible for the risks
inherent in the travel.”9 (Blackman v. Great American First
Sav. Bank (1991) 233 Cal.App.3d 598, 604.)
8 Some cases have referred to the incidental-benefit
exception and the required-vehicle exception interchangeably.
(See Pierson, supra, 4 Cal.App.5th at 625-626 [noting caselaw’s
variable terminology in discussing these concepts].) Indeed, in
Savaikie, supra, 52 Cal.App.5th at 232, our colleagues in Division
Eight questioned whether an incidental benefit to the employer
provided an independent exception to the going-and-coming rule,
or was merely a factor in determining whether the employer
impliedly required the employee’s use of a personal vehicle. The
Savaikie court nevertheless concluded that the defendant did not
derive sufficient benefit from its volunteer’s use of his personal
vehicle to justify imposing liability on the defendant. (Id. at 233.)
As noted, we need not decide whether incidental benefit to the
employer provides an independent exception because it would not
apply to the facts of this case.
9 Some cases have stated that the incidental-benefit
exception is satisfied when “‘(1) the employee has agreed to make
the vehicle available as an accommodation to the employer, and
(2) the employer has reasonably come to rely on the vehicle’s use
(Fn. is continued on the next page.)
11
A sufficient benefit from employees’ use of a personal
vehicle may exist, for example, where an employer enlarges
the available labor market by compensating an employee for
both travel time and expenses incident to the employee’s
commute. (Hinman, supra, 2 Cal.3d at 962.) However, the
payment of expenses alone, without compensation for travel
time, has been held insufficient to justify holding the
employer vicariously liable. (Caldwell v. A.R.B. (1986) 176
Cal.App.3d 1028, 1042 (Caldwell); Harris v. Oro-Dam
Constructors (1969) 269 Cal.App.2d 911, 917 (Harris).)
Moreover, compensation for travel time related to work trips
does not bring the employee’s ordinary commute within the
scope of employment. (See Jorge, supra, 3 Cal.App.5th at
405 [payment of travel time for off-site events is irrelevant
where injury occurred during uncompensated commute].)
As relevant to appellant’s theory here, the daily
availability of the employee’s personal vehicle may benefit
the employer if the conditions of the job require the employee
to make work-related trips using that vehicle on short
notice, regardless of whether the employee makes a
work-related trip on the day of the relevant incident. (See
Lobo, supra, 182 Cal.App.4th at 302-303 [availability of
employee’s personal car benefitted employer because
and expects the employee to make it available regularly.’”
(Pierson, supra, 4 Cal.App.5th at 630.) Yet even under this
formulation, “the key inquiry is whether there is an incidental
benefit derived by the employer.” (Lobo, supra, 182 Cal.App.4th
at 301.)
12
employee was required to arrive at customer sites promptly
in response to complaints, but had no company car, and
other employees were not always available to drive him]; cf.
County of Tulare v. Workers’ Comp. Appeals Bd. (1985) 170
Cal.App.3d 1247, 1249 (County of Tulare) [under workers’
compensation law, daily availability of employee’s personal
vehicle benefitted employer, where employer encouraged
employee to use personal vehicle to run required work
errands on as-needed but regular basis, because alternative
was more expensive to employer and required advance
notice].)
Conversely, where the employee can plan work-related
trips, the availability of the employee’s vehicle on days when
no such trips occur will not constitute a sufficient benefit to
the employer. (See Newland, supra, 24 Cal.App.5th at 693
[employee knew in advance when he would have duties that
required use of his car; thus, bringing his car to work on day
of accident, when employee had no such duties, provided
employer no benefit]; Jorge, supra, 3 Cal.App.5th at 406
[even if employer benefitted from employee’s occasional use
of personal vehicle to attend planned off-site events, the
going-and-coming rule applied to his ordinary commute
home from regular worksite on days that included no such
events].) Similarly, the availability of the employee’s vehicle
will not constitute a sufficient benefit if the employee can
use other suitable forms of transportation, and the employer
is indifferent to the method used. (See Savaikie, supra, 52
Cal.App.5th at 233 & 231 [organization derived no “different
13
or additional benefit from [volunteer]’s use of his car to
commute . . . than it would have received had he used any
other form of transportation,” such as Uber or Lyft]; Lynn v.
Tatitlek Support Services, Inc. (2017) 8 Cal.App.5th 1096,
1109 (Lynn) [employee’s commute in personal vehicle did not
give rise to incidental benefit exception despite being
extraordinarily lengthy, “particularly when [employer]
provided optional, free transportation by bus”].)
B. Analysis
Whether considered in the context of the required
vehicle exception or as an independent exception to the
going-and-coming rule, we conclude as a matter of law that
respondent did not draw sufficient incidental benefit from
the availability of Rihani’s vehicle, and thus the
going-and-coming rule precluded respondent’s vicarious
liability for his conduct at the time of the accident. It is
undisputed that Rihani was simply driving home from work
at the time and was not performing a work-related task.
(See Newland, supra, 24 Cal.App.5th at 685; Jorge, supra, 3
Cal.App.5th at 405.) He had made no work-related trips
that day. (See Jorge, supra, at 406.) And respondent did not
compensate him for travel time or expenses related to his
commute. (See Caldwell, supra, 176 Cal.App.3d at 1042;
Harris, supra, 269 Cal.App.2d at 917; Hinman, supra, 2
Cal.3d at 962.) In short, nothing suggested Rihani’s use of
his private vehicle to drive home benefitted respondent in
any way.
14
Appellant contends that because Rihani occasionally
used his vehicle for work-related trips on an “‘impromptu’”
basis, respondent obtained substantial benefit from the daily
availability of Rihani’s vehicle, regardless of whether he
used it for work purposes on a particular day. However, the
record establishes that Rihani’s work trips did not require
him to have his vehicle available daily, as those trips were
non-urgent, and Rihani could have used alternative means of
transportation.
In the months before the accident, Rihani only
occasionally used his personal vehicle to make supply runs.
According to Rihani, the primary purpose of his trips was to
engage with suppliers in person. While he acknowledged in
his deposition that obtaining the supplies personally was
faster than having them delivered, he explained in his
declaration that it was unnecessary to “quickly replenish” a
product that was running low, as there were multiple other
products for sale. And “[a]ny product could have been, and
most often was, delivered within a matter of days to add to
the other ample inventory.” Thus, while Rihani suggested
his supply runs were unplanned, uncontradicted evidence
showed they were non-urgent and did not require Rihani to
have his vehicle available for these purposes on a daily basis.
(See Newland, supra, 24 Cal.App.5th at 693; Jorge, supra, 3
Cal.App.5th at 406; cf. Lobo, 182 Cal.App.4th at 303; County
of Tulare, supra, 170 Cal.App.3d at 1249.)
Moreover, Rihani testified at his deposition, and
appellant does not dispute, that he could have used Uber to
15
make his supply runs.10 He explained he used his own
vehicle as a matter of “comfort.” Nothing in the record
suggests that the occasional use of Rihani’s vehicle for
supply runs provided respondent a different or additional
benefit compared to using Uber for the same purpose.11
Thus, nothing in the record supported that the availability of
Rihani’s vehicle provided respondent any meaningful
benefit.12 (See Savaikie, supra, 52 Cal.App.5th at 231, 233;
10 The parties debate whether Rihani actually used Uber to
make supply runs, but it is undisputed that this was an available
alternative to the use of his private vehicle.
11 Similarly, and contrary to appellant’s suggestion, Rihani’s
use of his vehicle to drive to respondent’s bank did not benefit
respondent, as it is undisputed that the bank was in the same
shopping center as respondent’s store, that Rihani could easily
have walked there, and that he would instead drive to the bank
only for his own convenience. Pointing only to respondent’s bank
records, appellant conclusorily asserts that Rihani made trips to
businesses other than those in downtown Los Angeles, such as
Lowe’s and Costco. However, appellant presents no argument
regarding the nature, frequency, or import of those additional
trips and thus has forfeited any contention in that regard. (See
Sviridov v. City of San Diego (2017) 14 Cal.App.5th 514, 521
[failure to present reasoned argument constitutes forfeiture].)
Moreover, nothing suggests those trips were made on an urgent
basis or could not have been done using other means of
transportation. (See, e.g., Newland, supra, 24 Cal.App.5th at
693; Savaikie, supra, 52 Cal.App.5th at 231, 233; cf. Lobo, supra,
182 Cal.App.4th at 302-303.)
12 Zhu v. Workers’ Comp. Appeals Bd. (2017) 12 Cal.App.5th
1031 (Zhu) and Moreno v. Visser Ranch, Inc. (2018) 30
(Fn. is continued on the next page.)
16
Lynn, supra, 8 Cal.App.5th at 1109; cf. Lobo, supra, 182
Cal.App.4th at 302-303; County of Tulare, supra, 170
Cal.App.3d at 1249.)
Appellant emphasizes that Rihani’s supply runs
benefitted respondent, and argues that because he used his
personal vehicle, respondent had no need to provide him
with a company car. The question, however, is not whether
Rihani’s work trips benefitted respondent, but whether the
daily availability of his vehicle did so to such an extent as to
override the policies underlying the going-and-coming rule.
As discussed, given that Rihani’s work trips were not urgent,
and that he could have used another form of transportation
to make them, respondent did not draw meaningful benefit
from the daily availability of his vehicle. Contrary to
appellant’s argument, Rihani’s ability to use Uber meant
that respondent had no need to provide him with a company
car, even if he did not use his personal vehicle for work
purposes.
Appellant argues the fact that respondent gave Rihani
gas money for his supply runs reflected that respondent
benefitted from the availability of his vehicle. But as noted,
Cal.App.5th 568 (Moreno), cited by appellant, are
distinguishable. (See Zhu, supra, at 1041 [employee entitled to
workers’ compensation benefits where she was injured while
traveling between two worksites]; Moreno, supra, at 571
[reversing summary adjudication for employer where there was
evidence that employer required employee to be on call with
company car “24 hours a day, seven days a week”].)
17
the payment of travel expenses is insufficient to justify
imposing respondeat superior liability on an employer. (See
Caldwell, supra, 176 Cal.App.3d at 1042; Harris, supra, 269
Cal.App.2d at 917). And even if it were, compensation for
work-related trips would not bring Rihani’s ordinary
commute within the scope of his work. (See Jorge, supra, 3
Cal.App.5th 382, 405 [“by [plaintiff’s] logic, any time an
employee drove a personal vehicle to an airport while
traveling for work and subsequently sought reimbursement
for the miles driven, the employer would be vicariously liable
for an accident caused by the employee while driving to his
or her regular workplace on a different day. That is not the
law”].)
For the first time in her reply brief, appellant suggests
respondent required Rihani to make his vehicle available for
work purposes. Highlighting Rihani’s status as respondent’s
co-owner and manager, appellant argues that he was
essentially “self-employed,” and his actual practices
establish the requirements of his work. To the extent
appellant seeks to invoke the required-vehicle exception, she
has forfeited any contention in that regard by failing to raise
it in her opening brief. (See Browne v. County of Tehama
(2013) 213 Cal.App.4th 704, 726 [failure to raise contention
in opening brief constitutes forfeiture]). Moreover, appellant
overlooks that the required-vehicle exception demands that
the employee provide a personal vehicle as a “condition of
employment.” (Savaikie, supra, 52 Cal.App.5th at 230.) It
defies common sense to assert that a person who, according
18
to appellant, is essentially self-employed, could require
anything of himself as a condition of employment. (Cf.
Morales-Simental, supra, 16 Cal.App.5th at 456 [rejecting
contention that supervisorial employee “could order himself
to perform a special errand” on employer’s behalf, and noting
this position would “strip[] the employer of the ability to
control when it will be liable for an employee’s off-shift
activities”].) In sum, we discern no triable issue as to
respondent’s vicarious liability for Rihani’s conduct at the
time of the accident.
19
DISPOSITION
The judgment is affirmed. Respondent is awarded its
costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
MANELLA, P. J.
We concur:
COLLINS, J.
CURREY, J.
20