Demetry v. Leeds>



















Filed 3/29/13 Demetry v. Leeds
CA4/3













>NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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



FOURTH
APPELLATE DISTRICT



DIVISION THREE




>

TAMMY DEMETRY et al., Plaintiffs and Appellants, v. REBECCA LEEDS, Defendant and Respondent.

G046951 (Super. Ct. No. 30-2011-00463812) O P I N I O N

Appeal
from a judgment of the Superior
Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, Derek W. Hunt, Judge.
Affirmed.

Law
Office of Joseph G. Cavallo and Joseph G. Cavallo for Plaintiffs and
Appellants.

Musick,
Peeler & Garrett, Cheryl A. Orr and Scott L. MacDonald for Defendant and
Respondent.

* * *

Plaintiff Tammy Demetry,
a clerk for the County
of Orange, was taking a walk during her break when she
was struck by a car driven by another County employee, Rebecca Leeds, as Leeds was exiting a driveway. Demetry filed a workers’ compensation action,
which was adjudicated. Demetry and her
husband subsequently filed the instant lawsuit against Leeds, alleging negligence and loss of
consortium.

Leeds
filed a motion for summary judgment pursuant
to Code of Civil Procedure, section 437c,href="#_ftn1" name="_ftnref1" title="">[1] arguing that Demetry’s cause of action for
negligence was barred by the doctrine of workers’ compensation exclusivity
because both parties had been acting in the course and scope of their
employment when the accident occurred.
The trial court denied Demetry’s request for a continuance and granted Leeds’s motion.
The court concluded the “required vehicle exception” to the going and
coming rule applied, and therefore the claims by Demetry and her husband were
barred by the workers’ compensation exclusivity doctrine.

On appeal,
Demetry argues that Leeds failed to meet her burden of production in a
manner warranting summary judgment. We
disagree, finding that Leeds met her burden with relevant, admissible and
undisputed evidence, while Demetry
offered none on her own behalf. We
therefore affirm.

I

FACTS

We draw
the facts primarily from the separate statement of facts submitted in support
of Leeds’s motion for summary judgment and related
evidence. As of the date of the
accident, Leeds worked as a deputy county counsel for the County of Orange (the County). Although she usually worked at the office,
she routinely worked from home at least once a week. She occasionally used her car to conduct work
activities, such as client meetings, depositions and court appearances. She used her own car when traveling for work
activities, and drove her car to work every day. The County reimbursed Leeds for mileage when she drove for work
activities.

On May 24,
2010, the date of
the accident, Leeds went to her Santa Ana office in the morning. She left at approximately 10:00 a.m. to pick up her child from his daycare
facility after receiving a call that he was ill. She had permission to work from home that day
after picking up her child. As she was
leaving, Demetry, who was on a break from her job at the County, was walking
eastbound on the north side of Santa Ana Boulevard toward Broadway. She crossed the driveway apron to the parking
garage where Leeds was exiting, and Leeds struck Demetry with her car.

On November
8, 2010, Demetry
filed an application for Adjudication of Claim with the Workers’ Compensation
Appeals Board. As of September 2011, she
was still receiving benefits.

On
April 5, 2011, Demetry filed
her initial complaint against Leeds. She was the only named plaintiff, and the
only cause of action was negligence. Leeds
filed an answer.href="#_ftn2" name="_ftnref2"
title="">[2]

Months
later, on January 6, 2012, Leeds
filed the instant motion for summary judgment.
The only issue raised was that Demetry’s cause of action for negligence
was barred by workers’ compensation exclusivity. Attached to Leeds’s
separate statement were her own declaration, the declaration of her supervisor,
James Harman, and supporting evidence, including excerpts from Demetry’s
deposition and excerpts from Demetry’s responses to form interrogatories. She also filed a request for judicial notice
of Demetry’s application for
Adjudication of Claim with the Workers’ Compensation Appeals Board and the
initial complaint. The motion was
noticed for hearing on March 22, 2012.

On January
18, a stipulation was filed permitting Demetry to file a first amended complaint,
adding her husband Milad Demetry as a plaintiff and alleging a cause of action
for loss of consortium. The trial date
of April 23 was to remain. The first
amended complaint was filed on February 17.
Leeds answered, pleading workers’ compensation
exclusivity as an affirmative defense.
In early March, the parties stipulated that Leeds’s motion for summary judgment would be
deemed to apply to both plaintiffs.
Relevant changes to the language of the motion were part of the
stipulation.

Meanwhile,
on February 24, Demetryhref="#_ftn3"
name="_ftnref3" title="">[3] served a deposition notice on Leeds. The
deposition was set for March 15, a week before the scheduled March 22 hearing
on the motion for summary judgment. Demetry also noticed the deposition of James
Harman, Leeds’s supervisor, for March 23, the day after
the hearing.

On
March 5, Demetry filed her opposition to Leeds’s motion for summary
judgment. She argued that questions of
material fact existed as to whether Leeds was acting within the course and
scope of her employment at the time of the accident, and she also claimed Leeds
had not established the “required vehicle” exception to the coming and going
rule. She further argued that summary
judgment was improper under section 437c, subdivision (h), because facts
essential to justify opposition exist but could not be presented at the time of
the motion. She noted that the
depositions of Leeds and Harman were noticed for March 15 and 23, respectively,
and “will be useful in opposing” the motion.
Thus, she asked for a continuance to enable her to “complete
discovery.” Her attorney’s attached
declaration again stated the scheduled deposition dates, but did not offer any
reason as to why the depositions could not have been taken earlier.

Demetry
also filed her response to Leeds’s separate statement. She did not dispute any of Leeds’s material
facts, although with respect to several, she stated: “Undisputed, however, this fact does not
evidence that the County required Leeds to perform work at home or use her
vehicle as a condition of her employment.”
She did not offer any additional material facts. Leeds subsequently filed her reply, arguing,
among other things, the lack of disputed material facts.

On
March 22, before the calendar call, both parties advised the clerk that the
case had settled. Leeds requested a
continuance, and the hearing was continued to April 5. According to Demetry, until just a few days
before the continued hearing, “Respondent had led Appellants to believe the
matter was settled and it was just a matter of drafting up the documents. Appellants canceled the scheduled depositions
of Respondent and her employer. The
settlement was not finalized because of an issue Respondent had with her
employer, the County of Orange.”

The trial
court rejected Demetry’s argument that a continuance was appropriate. The court noted that regardless of what had
happened with respect to a settlement, the summary judgment motion was filed on
January 6, and Demetry had failed to notice any depositions until mid-February. The trial date was a mere two weeks away, and
Demetry had failed to seek any ex parte or other relief. The trial court granted the motion for
summary judgment on the ground that the “required vehicle exception” to the
going and coming rule applied, and therefore, Demetry’s claims were barred by
the workers’ compensation exclusivity doctrine.
Further, if the negligence claim was barred, the loss of consortium
cause of action also failed.

Judgment
was entered on April 26, and notice of entry of judgment was served on May
2. Demetry timely appeals.

II

DISCUSSION

A. Standard of Review

Summary
judgment “provide[s] courts with a mechanism to cut through the parties’
pleadings in order to determine whether, despite their allegations, trial is in
fact necessary to resolve their dispute.”
(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826,
844.) The trial court properly grants a
motion for summary judgment if all the papers submitted
establish there is no triable issue of material fact and the moving party is
entitled to judgment as a matter of law.
(§ 437c, subd. (c); Aguilar v. Atlantic Richfield Co., supra,
25 Cal.4th at p. 843.)

“[T]he party moving for summary
judgment bears an initial burden of production to make a prima facie showing of
the nonexistence of any triable issue of material fact; if he carries his
burden of production, he causes a shift, and the opposing party is then
subjected to a burden of production of his own to make a prima facie showing of
the existence of a triable issue of material fact.” (Aguilar
v. Atlantic Richfield Co., supra, 25 Cal.4th at
p. 850.) “A prima facie showing is one that is sufficient to support the
position of the party in question.” (Id.
at p. 851.) “There is a triable issue of
material fact if, and only if, the evidence would allow a reasonable trier of
fact to find the underlying fact in favor of the party opposing the motion in
accordance with the applicable standard of proof. [Fn. omitted.]” (Id. at p. 850.)

We
review the trial court’s decision de novo, considering all evidence the parties
offered in connection with the motion and the uncontradicted inferences the
evidence reasonably supports. (>Herberg v. California Institute of the Arts
(2002) 101 Cal.App.4th 142, 148.)



B. Leeds’s Initial Burden of Production

As noted
above, the moving party bears the initial burden of production to make a prima
facie case demonstrating no material issues of triable fact exist. (Aguilar v. Atlantic Richfield
Co., supra,
25 Cal.4th at p. 850.) “[H]ow the parties moving for, and
opposing, summary judgment may each carry their burden of persuasion and/or
production depends on which would bear what burden of proof at
trial.” (Id. at p. 851.) When
the burden of proof at trial would be the civil standard, preponderance of the
evidence, “if a defendant moves for summary judgment . . . he must present
evidence that would require a reasonable trier of fact not to find any
underlying material fact more likely than not . . . .” (Ibid.,> fn. omitted.)

Because
Leeds’s motion was based entirely on workers’ compensation exclusivity, we next
explore both the legal underpinnings and the evidence she presented to
determine if she adequately met her burden of production.



>1.
Demetry’s Receipt of Workers’ Compensation Benefits

“Labor
Code section 3600, subdivision (a), provides that, subject to certain
particular exceptions and conditions, workers’ compensation liability, ‘in lieu
of any other liability whatsoever’ will exist ‘against an employer for any
injury sustained by his or her employees arising out of and in the course of
the employment.’” (Fermino v. Fedco,
Inc. (1994) 7 Cal.4th 701, 708, fn. omitted.) “[T]his rule of
exclusivity is based on the ‘“presumed ‘compensation bargain,’ pursuant to
which the employer assumes liability for industrial personal injury or death
without regard to fault in exchange for limitations on the amount of that
liability. The employee is afforded
relatively swift and certain payment of benefits to cure or relieve the effects
of industrial injury without having to prove fault but, in exchange, gives up
the wider range of damages potentially available in tort.”’ [Citations.]” (Torres
v. Parkhouse Tire Service, Inc. (2001) 26 Cal.4th 995, 1001-1002.)

“To
prevent employees from circumventing the exclusivity rule by bringing lawsuits
for work-related injuries against coemployees, who in turn would seek indemnity
from their employers, the Legislature in 1959 provided immunity to
coemployees. [Citation.] . . . For
conduct committed within the scope of employment, employees, like their
employers, should not be held subject to suit.
[Citations.]” (Torres v.
Parkhouse Tire Service, Inc.,
supra, 26 Cal.4th at p. 1002.)
The only exceptions to this rule are those created by statute, specifically
willful and unprovoked aggression and intoxication. (Lab. Code, § 3601, subd. (a); see >Oliva v. Heath (1995) 35 Cal.App.4th
926, 931-932.)

It is
undisputed that both Demetry and Leeds were employees of the County. As to whether Demetry’s break was conduct in
the scope of employment, “The [Workers’ Compensation Appeals Board] and
the superior court have concurrent precedential jurisdiction to determine the
threshold question of subject matter jurisdiction, namely, whether a cause of
action comes within workers’ compensation laws, and, thus, within the exclusive
jurisdiction of the Board.
[Citation.] Where two tribunals
have such concurrent jurisdiction to determine jurisdiction, ‘the question of
which shall have exclusive [subject matter] jurisdiction shall be determined by
the tribunal whose jurisdiction was first invoked, and proceedings in the
tribunal whose jurisdiction was subsequently sought will, if not voluntarily
stayed, be halted by prohibition until final determination of the jurisdictional
question where jurisdiction was first laid.’
[Citation.] ‘[W]here
several courts have concurrent jurisdiction over a certain type of proceeding,
the first one to assume and exercise such jurisdiction in a particular
case acquires an exclusive jurisdiction.’
[Citation.]” (>Yavitch
v. Workers’ Comp. Appeals Bd.
(1983) 142 Cal.App.3d 64, 70.)

According to
Demetry’s deposition testimony, she was receiving workers’ compensation
benefits as of September 2011. This
necessarily required a determination that she was acting within the course of
her employment at the time of the accident, and she does not argue
otherwise. Leeds has met her burden of
production on this point.



>2.
The Going and Coming Rule and the Required Vehicle Exception

Because
the parties are both employed by the County, the question of whether Leeds was
acting in the course and scope of her employment at the time of the accident is
the crux of the matter. If she was not,
workers’ compensation exclusivity does not apply. It is undisputed that Leeds was leaving work
to pick up her child. “The
going-and-coming doctrine states an employee is outside the scope of his
employment while engaged in the ordinary commute to and from his place of
work. [Citation.] This rule is based on the principle that the
employment relationship is suspended from the time the employee leaves his
place of work until he returns.
[Citation.]” (>Blackman
v. Great American First Savings Bank (1991) 233 Cal.App.3d 598, 602.)


“‘A
well-known exception to the going-and-coming rule arises where the use of
the car gives some incidental benefit to the employer. Thus, the key inquiry is whether there is an
incidental benefit derived by the employer.
[Citation.]’ [Citation.] This exception to the going and coming rule,
carved out by this court in Huntsinger [v. Glass Containers Corp. (1972)] 22 Cal.App.3d 803, 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.]”
[Fn. omitted.] (Lobo v. Tamco
(2010) 182 Cal.App.4th 297, 301 (Lobo).)


>Lobo was a respondeat superior case.href="#_ftn4" name="_ftnref4" title="">[4] A
vehicle driven by Luis Duay Del Rosario, an employee of Tamco, struck and killed Daniel Lobo. (Lobo,> supra, 182 Cal.App.4th at p. 299.) Del Rosario, a metallurgist who had been
employed by Tamco for 16 years, was going home on the day of the accident. (Id.
at pp. 301-302.) One of the
requirements of his written job description was, if necessary, to visit
customer facilities to answer complaints, obtain information, and maintain
customer relations. (>Ibid.)
Del Rosario testified that if a customer called with quality concerns,
he and a sales engineer would go to the site, riding in the sales engineer’s
car. (Id. at p. 302.) On
occasion, he would use his own car if no sales engineer was available. He had visited customer sites “very few”
times, using his own car less than 10 times.
(Ibid.) His supervisor testified that Del Rosario was
required to use his personal car on the occasions where it was necessary to
visit customers, and no company car was provided. (Ibid.)

On
this evidence, the court concluded the employer derived a benefit from Del
Rosario’s ability to use his vehicle when customer visits were required. “[A]pplication of the doctrine turns on
whether the employer expressly or implicitly required the employee to make the
vehicle available or had reasonably come to expect that the vehicle would be
available for work purposes and whether the employer derived a benefit from the
availability of the vehicle.
[Citations.]” (>Lobo,
supra, 182 Cal.App.4th at p. 303.)
The frequency of using the car for business purposes was not
determinative. “Here, [the supervisor]
testified that Tamco required Del Rosario to make his car available rather than
providing him with a company car in part because the need arose
infrequently. Thus, the availability of
Del Rosario’s car provided Tamco with both the benefit of insuring that Del
Rosario could respond promptly to customer complaints even if no sales engineer
was available to drive him to the customer’s site and the benefit of not having
to provide him with a company car. Based
on this evidence, a reasonable trier of fact could find that the
‘required-vehicle’ exception does apply.”
(Ibid.)

In support
of her argument that the County derived a benefit from Leeds’s use of her
vehicle, she submitted her own declaration, which stated: “[T]he nature of my work as a litigation
attorney for the County requires that I attend other work-related activities,
including but not limited to, meetings with clients, depositions and court
appearances, which frequently require me to travel. [¶] As part of my employment with the County,
I use my own car when I am required to travel to a work-related activity. I take my own car to work every day so that
if I have a work-related activity to attend, I can use my car.” She also stated the County reimbursed her for
mileage and expenses incurred in attending such activities. Her supervisor, Harman, stated in his
declaration: “Rebecca [Leeds] often
attends work-related activities such as meetings with clients, depositions and
court appearances. In the ordinary
course of business, Rebecca regularly uses her own car to go to work-related
activities.”

Thus,
despite Demetry’s characterization of Leeds’s declaration as “self-serving,”
this evidence met the required burden of production. The declaration testimony here is competent
and admissible, and no objections to it are present in the record. (Evid. Code, § 702, subd. (b); § 437c, subds.
(d), (e).)

Further,
Demetry’s claims as to the insufficiency of this evidence are unpersuasive. Leeds provided sufficient evidence of the
benefit provided to her employer with her testimony that she used her own
vehicle to attend “meetings with clients, depositions and court appearances” as
her supervisor verified. The benefit is
obvious and capable of ready inference, much as the ability of Del Rosario to
travel to client locations in Lobo
was self-evident.href="#_ftn5"
name="_ftnref5" title="">[5]
Indeed, the evidence here is sufficient to imply a requirement that
Leeds have a vehicle available for work use.
(See Hinojosa v. Workmen’s Comp. Appeals Bd. (1972) 8
Cal.3d 150, 152-153, 156, 160, 162 [exception can apply if use of a personally
owned vehicle while on the job during
the workday is express or implied condition of employment].)

Demetry
also claims Leeds did not provide evidence “establishing that Respondent’s
employer had accepted the responsibility for the risks inherent in Respondent’s
travel,” but that is a matter of legal
consequence, not a question of evidence.
If direct evidence of an employer accepting such responsibility was
required, the successful respondeat superior claim would be rare indeed. Demetry’s reliance on >Saala v. McFarland (1965) 63 Cal.2d 124
on the issue of the course and scope of employment is also misplaced, both
because it has been superseded by amendments to Labor Code section 3601 and
because it does not address the required vehicle exception.

To the
extent that Demetry argues “There is nothing about the facts submitted by
Respondent that rendered her commute at
the time of the accident within the course and scope or her employment or
that invoked an exception to the going and coming rule” (italics added), she
misapprehends the relevant standard. The
question is not whether Leeds was acting in the course and scope of her
employment or for her employer’s benefit at the moment of the accident, but
whether, in general, her employer derived sufficient benefit from the use of
her vehicle to apply the required vehicle exception to the going and coming
rule. In Lobo, there was no dispute that Del Rosario was on his way home,
and not conducting any business for his employer, at the time of the
collision. (Lobo, supra, 182
Cal.App.4th at p. 302; see also CACI No. 3275.)

In sum, we
conclude that Leeds met her burden of production on the applicability of the
required vehicle exception by sufficient and admissible evidence. The burden therefore shifted to Demetry to
demonstrate the existence of a triable issue of fact. (Aguilar v. Atlantic Richfield
Co., supra,
25 Cal.4th at p. 850.)



C. Demetry’s Burden of Production

As Demetry
admits, she did not submit any evidence demonstrating the presence of a triable
issue of fact, instead arguing that a material issue of fact existed as to
whether Leeds was acting within the course and scope of her employment. This argument is merely the flip side of her
claim that Leeds failed to produce sufficient evidence. Demetry argues she was not required to submit
evidence, because Leeds had not met the required burden of production. She would be correct, if we agreed with her
on that point, but as discussed above, we do not. The lack of any evidence of a material issue
of triable fact is therefore a critical blow to her argument. Given that Leeds met her initial burden and
Demetry, when the burden shifted back to her, failed to meet hers, the trial
court properly granted summary judgment on her cause of action for
negligence. Because a spouse’s claim for
loss of consortium is also barred if the underlying claim is barred by workers’
compensation exclusivity, summary judgment was also properly granted on Milad’s
claim. (LeFiell Manufacturing Co. v.
Superior Court (2012) 55
Cal.4th 275, 284-285; Gillespie v. Northridge Hosp. Foundation
(1971) 20 Cal.App.3d 867, 869-870.)



D. Continuance

Demetry
alludes to, but does not straightforwardly raise, the issue of whether the
court erred by not granting a continuance.
Her opening brief discusses, in the statement of facts, requesting a
continuance in her opposition before the trial court. She also raises the failed settlement as an
explanation for why she did not proceed with the noticed depositions. What Demetry does not do in her opening brief
is squarely argue the court erred by failing to grant a continuance. Rule 8.204(a)(1)(B) of the California Rules
of Court requires that each point in a brief must be stated under a separate
heading or subheading summarizing the point.
Further, arguments must be supported by legal authority. (Schubert
v. Reynolds (2002) 95 Cal.App.4th 100, 109.) In her reply brief, she argues that she was
not dilatory in conducting discovery, but again fails to argue forthrightly
that a continuance should have been granted.
Nor, once again, does she cite to any legal authority. Any such argument, accordingly, is waived.href="#_ftn6" name="_ftnref6" title="">[6] (Ibid.)

III

DISPOSITION

The
judgment is affirmed. Leeds is entitled
to her costs on appeal.







MOORE,
ACTING P. J.



WE CONCUR:







ARONSON, J.







FYBEL, J.