“Musings From The Peanut Gallery” COVID-19 WC FAQ

 

Pete Almeida - Attorney at Law (Firm Partner)

COVID-19 Musings
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Musings From The Peanut Gallery
COVID-19 WC FAQ

Veatch Carlson, LLP is a Martindale-Hubbell AV rated firm with 64 years of litigation and trial experience. The firm is comprised of creative and experienced attorneys. We assertively advocate for our clients and work to obtain efficient outcomes through beneficial settlement, trial or other resolution-oriented strategies. We attract, recruit and hire experienced attorneys recognized by respected industry organizations. We have never varied from the vision of Wayne Veatch, which was to provide aggressive representation for all clients while continually reevaluating the variables that are brought into any legal dispute.

 

 

Contact

PHONE:
213-381-2861

WEBSITE:
www.Veatchfirm.com

EMAIL:
palmeida@veatchfirm.com

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Contact

PHONE:
213-381-2861

WEBSITE:
www.Veatchfirm.com

EMAIL:
palmeida@veatchfirm.com

 

 

 

 

 

 

 

 

 

 

 

Contact

PHONE:
213-381-2861

WEBSITE:
www.Veatchfirm.com

EMAIL:
palmeida@veatchfirm.com

 

 

 

 

 

 

Contact

PHONE:
213-381-2861

WEBSITE:
www.Veatchfirm.com

EMAIL:
palmeida@veatchfirm.com

IS IT INDUSTRIAL?

In the absence of new presumptions for compensability, it is expected that the legal principles already in place will be dispositive of whether an employee’s COVID-19 diagnosis is determined to be work related.

The COVID-19 virus is different from other infectious viruses in that it has been declared a worldwide pandemic, it is highly contagious and it is believed that up to 25% of infected people may go completely asymptomatic and therefore such individuals may unknowingly be transmitting the virus both inside and outside the workplace.

As the COVID-19 symptoms may first appear up to 14 days after initial exposure, there are a plethora of potential scenarios where an employee may claim his/her COVID-19 diagnosis was contracted at work.  In the absence of a statutory presumption, the employee must show that there was some peculiar condition or particular to the work environment that created a special risk of contracting the virus to a greater degree and in a different manner than by the public at large.

This “special exposure” requirement for non-industrial diseases requires that the employee prove by a preponderance of the evidence that the risk of contracting the disease is materially greater than that of the general public.  While the burden is on the employee to prove this special exposure or increased risk, there are many cases that have found that the employee met his/her burden.  (School teacher had a special exposure due to interacting with large numbers of students.  Culver City v. WCAB 82 CCC 757).

In Harman v. Republic Aviation Corp., 298 N.Y. 285, the court pointed out: ‘An ailment does not become an occupational disease simply because it is contracted on the employer’s premises. It must be one which is commonly regarded as natural to, inhering in, an incident and concomitant of, the work in question.’

There is no catch-all formula for determining industrial causation but claims professionals and counsel will have to make a case determination based on the facts of each case.

One thing to consider is OSHA’s recent publication “Guidance on Preparing Workplaces for COVID-19” which may provide a general threshold evaluation since OSHA has separated workplaces into four risk zones:

(1) Very High Exposure – healthcare or laboratory personnel,

(2) High Exposure – Healthcare delivery, support staff, medical transport

(3) Medium Exposure – Employees with high-frequency contact with the public like schools, retail workers.

(4) Lower Exposure – Office workers or those that have minimal occupational contact with general public or other coworkers.

This should be highlighted to the trier of fact especially where the employee’s job falls into the “lower exposure” risk zone and refer the WCAB to the requirement of “special exposure” that is greater than the general public.

“Safer at Home” order and modified duty

What happens when the employer has been providing alternate or modified work in lieu of temporary disability and the employer is not an essential service or the employee’s job is not essential as defined by a local, state or federal proclamation?

Since the current pandemic is unprecedented, there is no clear answer.   The argument is that, “but for” the government shutdown the employee would be working and therefore not eligible for temporary disability.  Specifically, we will take the position that the government proclamation is akin to the job position was eliminated for cause.  Specifically, the employer is precluded from offering the alt/mod work due to the government order.  This would invoke Civil code §3531 “The law never requires impossibilities” and Civil code §3532 “The law neither does nor requires idle acts”

However, please recall that although the initial burden of proof is on the employee, Labor code §3202 requires that all reasonable inferences are to be found in favor of extending benefits to injured workers.   As such, there will be many court hearings on the issue of whether TD is now owed where the alt/mod positions are no longer available.  The argument to be made is that Civil code 3531 says since it is impossible for the the employer  to offer the alt/mod work then the loss of earning capacity, which is required for there to be liability for temporary disability, is not due to the industrial injury but instead due to the absence of available work.

FRAUD

“The world of workers’ comp may never be the same again. This may be where the most dramatic long-term effect comes, from COVID-19,” said Matt Smith, executive director of the Coalition Against Insurance Fraud.

The COVID-19 pandemic has already produced what appears to be an increase in vehicle related fraud and we can expect to see these coming up more in workers compensation cases.  With millions of workers working from home, we can expect workers to claim they were injured in the home during work hours.  If the employee says they were walking from the desk where they are doing work and were somehow injured in the home, how do you investigate that without witnesses.

With the push for telemedicine appointments, we will have to watch the medical providers since the providers can more easily claim additional appointments that are more difficult to disprove.

Decree/Legislation

The California Labor Federation on March 19 sent a letter to Governor Newsom requesting a workers’ compensation presumption that exposure to the coronavirus counts as job-related for essential employees.

The California Applicants’ Attorneys Association said they are looking into drafting a possible executive order for Newsom to issue, according to a CAAA email newsletter sent Monday.

The CAAA said it hopes for “a conclusive presumption rather than rebuttable presumption” to avoid red tape or legal obstacles for workers who remain on the job and may be exposed to the coronavirus every day.

The proposed presumption would cover workers Newsom declared essential as well as “any employees deemed essential thereafter,” and disaster workers, CAAA said.

 

 

Burgueno v. Regents of the Univ. of Cal.

Burgueno v. Regents of the Univ. of Cal.
Sixth Appellate District

Adrian was a full-time student at UCSC, living in an off-campus apartment. He commuted to the university on his bicycle, traveling on the Great Meadow Bikeway, a paved bike path that runs through part of the UCSC campus. Constructed in 1973, the purpose of the Bikeway is bicycle transportation to and from the central campus that is separate from automobile traffic. There have been several bicycle accidents on the Bikeway. After Adrian was fatally injured in a bicycle accident on the Bikeway, his family sued, alleging that the Regents of the University of California were liable for Adrian’s death due to the dangerous condition of the Bikeway. The trial court granted the Regents summary judgment on the ground that the action was barred under the recreational trail immunity provided by Government Code section 831.4.2 The court of appeal affirmed, holding that the causes of action for dangerous condition of public property and wrongful death are barred as a matter of law because the Regents have absolute immunity from claims arising from Adrian’s accident.

The Regents argued the bike path “is a trail within the meaning of section 831.4 because section 831.4 has been construed to apply to a paved bike path that, like the Great Meadow Bikeway, is used directly for recreational activity or scenic viewing, or provides access to recreational activity or scenic viewing. For that reason, the Regents contended that the causes of action for dangerous condition of public property and wrongful death failed and summary judgment should be granted.”

Plaintiffs “argued that the motion must be denied because the Great Meadow Bikeway is not a recreational trail within the meaning of section 831.4, and therefore the Regents do not have immunity from plaintiffs’ claims. According to plaintiffs, the evidence shows that the Great Meadow Bikeway is a “major transportation corridor” designed and used for bicycle commuting to the UCSC campus, not recreation. Plaintiffs further argued that any incidental recreational use of the Great American Parkway was insufficient to make it a recreational trail to which trail immunity under section 831.4 applies.”

Section 831.4 provides: “A public entity, public employee, or a grantor of a public easement to a public entity for any of the following purposes, is not liable for an injury caused by a condition of:

(a) Any unpaved road which provides access to fishing, hunting, camping, hiking, riding, including animal and all types of vehicular riding, water sports, recreational or scenic areas and which is not a (1) city street or highway or (2) county, state or federal highway or (3) public street or highway of a joint highway district, boulevard district, bridge and highway district or similar district formed for the improvement or building of public streets or highways.

(b) Any trail used for the above purposes.

(c) Any paved trail, walkway, path, or sidewalk on an easement of way which has been granted to a public entity, which easement provides access to any unimproved property, so long as such public entity shall reasonably attempt to provide adequate warnings of the existence of any condition of the paved trail, walkway, path, or sidewalk which constitutes a hazard to health or safety. Warnings required by this subdivision shall only be required where pathways are paved, and such requirement shall not be construed to be a standard of care for any unpaved pathways or roads.

HELD

In the present case, the evidence shows that it is undisputed that the Great Meadow Bikeway is primarily used for its intended purpose as a route for bicycle commuting to and from the UCSC campus. It is also undisputed that the Great Meadow Bikeway is used for recreation. In their response to the Regents’ separate statement of undisputed material facts, plaintiffs state: “UNDISPUTED that, although the admitted ‘purpose’ of the Great Meadow bike path is to facilitate students commuting via bicycle to/from the USCS main campus and that it is primarily used for such purpose, some bicyclists may utilize the Great Meadow bike path for recreation.” Since the Great Meadow Bikeway has mixed uses that undisputedly include recreation, the Regents have trail immunity under section 831.4, subdivision (b) from claims, such as the plaintiffs’ claims, that arise from the condition of the Great Meadow Bikeway. (See Hartt, supra, 197 Cal.App.4th at pp. 1399-1400; Montenegro, supra, 215 Cal.App.4th at p. 932.)

Moreover, plaintiffs do not dispute the evidence showing that recreational bicyclists used the Great Meadow Bikeway as part of their route to access the mountain biking paths in the redwood forests above the UCSC campus. Section 831.4 has been construed to apply to bike paths that, like the Great Meadow Bikeway, provide access to recreational activities. (See, e.g., Armenio, supra, 28 Cal.App.4th at pp. 417-418.)

For these reasons, we determine that the causes of action for dangerous condition of public property and wrongful death are barred as a matter of law because the Regents have absolute immunity from claims arising from Adrian’s tragic accident on the Great Meadow Bikeway pursuant to section 831.4. We therefore conclude that the trial court did not err in granting the Regents’ motion for summary judgment, and we will affirm the judgment.

Note: “The fact that a trail has a dual use—recreational and nonrecreational—does not undermine section 831.4, subdivision (b) immunity.”

Worgul, John P.

JOHN P. WORGUL graduated from Duquesne University Bayer School of Natural Sciences with Bachelor of Science in Biology in 2005 and earned his Juris Doctorate degree from Duquesne University School of Law in 2008. During law school John became licensed with the United States Patent and Trademark Office, achieved distinction in Moot Court competition, and graduated Cum Laude. He is licensed in all California State Courts, and the U.S. District Courts for the Central District and Southern District of California.

Upon moving to California in 2008 John began to actively litigate cases. He has handled all aspects of a case through trial, and when necessary, at the Appellate Level. John has extensive experience in Personal Injury Litigation including in the areas of Catastrophic Personal Injuries, Medical Malpractice, and Insurance Bad Faith. He has also handled matters involving Construction Defect Litigation, Contractual disputes, and Intellectual Property.

John brings a unique perspective to his litigation practice having represented both Plaintiffs and Defendants. He has represented a wide array of persons including celebrities, corporate entities, professionals, homeowners, automobile owners and the “average Joe.” John brings the same passion to every case regardless of its circumstances.

John was born and raised in Pittsburgh, Pennsylvania and is the second of six children. He is an accomplished surfer and enjoys spending time with his wife and children.

Selarz, Gregory B.

GREGORY B. SELARZ graduated from the University of California, San Diego in 2012 and thereafter obtained his law degree from Southwestern Law School in 2015.  He is admitted to practice in the State of California and the Central District of the U.S. District Court of California.  While in law school, he was selected to the Trial Advocacy Honors Program where he competed on a national level in mock trial competitions and was a finalist in the San Diego Defense Lawyers Trial Advocacy Competition in 2014.  He also was a staffer for both Southwestern Law School’s Law Review and Law Journal.

Greg has authored two articles relating to what damages could be awarded in “distracted driving” accidents. His “Punitive Damages For Texting While Driving” article was published in Southwestern’s Law Review in 2015.

Greg is a native of Los Angeles. Before joining Veatch Carlson, he was a judicial extern for the Honorable Samantha Jessner and Honorable Teresa Beaudet where he was exposed to the inner workings of how personal injury matters are adjudicated.  Greg then became a trial attorney for Early Maslach where his practice focused on general liability and insurance defense.  At Early Maslach, he successfully tried personal injury cases arising from auto accidents and premises liability matters.

Greg pitched for the nationally ranked, UCSD NCAA Baseball Team.  He brings that same work ethic and competitive edge when representing his clients in and out of trial. Outside of work, he embraces the entertainment, food, and outdoor activities that Los Angeles has to offer and enjoys spending time with his family.

Porter, Clara L

CLARA L. PORTER attended Amherst College where she majored in the Classics. She earned her Juris Doctor degree from the University of San Francisco School of Law. While there, Clara was an associate editor of the USF Maritime Law Journal and a first-round finalist in USF’s Advocate of the Year Competition. She is admitted to practice law in the State of California, in the U.S. District Courts for the Northern and Eastern Districts of California, and the U.S. Court of Appeals for the Ninth Circuit.

Before joining Veatch Carlson, Clara was an associate at a civil litigation firm in San Francisco. She has handled all phases of litigation, including successful-bench trials, for a variety of civil matters involving small business litigation, commercial landlord/ tenant disputes, employment law and medical malpractice. ln addition to state and federal trial court litigation, Clara has drafted appellate briefs for the California Court
of Appeal and argued before the Ninth Circuit Court of Appeals. She joins the firm’s law and motion team.

In her free time Clara enjoys traveling, hiking, camping, and DIY projects.

Nervez, Serena L.

SERENA L. NERVEZ attended the University of California, Davis, and graduated in 1999 with a Bachelor of Arts degree in psychology.  She earned her Juris Doctor degree, cum laude, from California Western School of Law in 2003.  During law school, Ms. Nervez served as the Editor-in-Chief of the International Law Journal, and held internships with the United States District Court for the Southern District of California and the Offices of the United States Attorneys.

After law school, Ms. Nervez began her legal career in a small trial firm in Orange County that specialized in medical malpractice, wrongful death, and elder abuse cases.  Ms. Nervez then worked as a litigation attorney and successfully defended claims involving toxic tort, dietary supplement, business fraud, and catastrophic personal injury. She has also successfully handled cases at the appellate level.

Ms. Nervez joined Veatch Carlson in 2017 and is presently focused on law and motion, brief writing, and oral argument.

Veatch Carlson, named a Top Ranked Law Firm in California, Martindale-Hubbell®

TopRankedLawFirms(2015)MartinHubbleTo compile a list of Top Ranked Law Firms in California, Martindale-Hubbell®—the authoritative source for information about U.S. lawyers since 1868—researched their comprehensive database of lawyers and firms and identified law firms headquartered in the state with 10 or more attorneys, in which at least one out of five of their lawyers achieved the AV® Preeminent ‘TM’ Peer Review Rating ‘SM’. This rating indicates the rated lawyer has been deemed by his or her peers to have demonstrated the highest level of ethical standards and legal ability. Martindale-Hubbell Peer Review Ratings are driven by the confidential opinions of lawyers and members of the judiciary who provide reviews of lawyers about whom they have professional knowledge. Contact LegalLeaders@alm.com or visit Martindale.com for more information.

BasedOnAVLogo
We are pleased to announce, one out of five of our lawyers has achieved the AV® Preeminent ‘TM’ Peer Review Rating ‘SM’ thus allowing our firm to be named one of the ‘TOP’ Ranking California Law Firms in 2015!

Rosas v. BASF Corporation

Rosas v. BASF Corporation

Second Appellate District
Filed May 21, 2015

Delayed Discovery Rule in Toxic Tort Cases

Plaintiff and appellant Ismael Rosas appealed from judgments entered after the trial court granted summary judgment in favor of defendants and respondents BASF Corporation and other company’s that manufactured certain chemicals to which plaintiff alleges he was exposed.

The trial court concluded that a two-year statute of limitations began to run on Rosas’s claims in 2003, because the undisputed evidence demonstrated he was hospitalized with an unknown disease that he suspected was caused by exposure to a particular chemical at his work in a food flavoring plant.  The Court of Appeal concluded the evidence is susceptible to more than one legitimate inference, and that it is a question of fact for the jury to determine whether the facts known to Rosas before November 2006 were enough to put a reasonable person on inquiry notice that his lung disease was caused by the wrongful act of another.

The case serves as an affirmation of the delayed discovery rule first articulated in the Norgart v. Upjohn Co. (1999) 21 Cal.4th 383 and Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103.  The touchstone for accrual of the statute of limitations is “suspicion of wrongdoing.”

“An important exception to the general rule of accrual is the ‘discovery rule,’ which postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action. [Citations.] [¶] A plaintiff has reason to discover a cause of action when he or she ‘has reason at least to suspect a factual basis for its elements.’ [Citations.]” (Id. at p. 807.) A potential plaintiff “discovers the cause of action when he at least suspects a factual basis, as opposed to a legal theory, for its elements, even if he lacks knowledge thereof—when, simply put, he at least ‘suspects . . . that someone hasdone something wrong’ to him [citation], ‘wrong’ being used, not in any technical sense,but rather in accordance with its ‘lay understanding’ [citation].” (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397-398 (Norgart), fn. omitted.)

The discovery rule only delays accrual until the plaintiff has, or should have, inquiry notice of the cause of action. The discovery rule does not encourage dilatory tactics because plaintiffs are charged with presumptive knowledge of an injury if they have ‘“‘information of circumstances to put [them] on inquiry’”’ or if they have ‘“‘the opportunity to obtain knowledge from sources open to [their] investigation.’”’ [Citations.]” (Fox, supra, 35 Cal.4th at pp. 807-808, fn. omitted.) “A plaintiff need not be aware of the specific ‘facts’ necessary to establish the claim; that is a process contemplated by pretrial discovery. Once the plaintiff has a suspicion of wrongdoing, and therefore an incentive to sue, she must decide whether to file suit or sit on her rights. So long as a suspicion exists, it is clear that the plaintiff must go find the facts; she cannot wait for the facts to find her.” (Jolly, supra, 44 Cal.3d at p. 1111.) Statutes of limitation serve two potentially competing purposes. First, they “give defendants reasonable repose, that is, to protect parties from defending stale claims.” (Id. at p. 1112.) Second, they “require plaintiffs to diligently pursue their claims.” (Ibid.) The discovery rule strikes a balance between the two purposes. “Because a plaintiff is under a duty to reasonably investigate and because a suspicion of wrongdoing, coupled with a knowledge of the harm and its cause, will commence the limitations period, suits are not likely to be unreasonably delayed, and those failing to act with reasonable dispatch will be barred. At the same time, plaintiffs who file suit as soon as they have reason to believe that they are entitled to recourse will not be precluded.” (Ibid., fn. omitted.)

Cline v. Homuth

 

Cline v. Homuth

Court: California Court of Appeal, Third Appellate District
Opinion Date: March 30, 2015

Areas of Law: Contracts, Insurance Law, Injury Law

Plaintiff Ronald Lee Cline was severely injured when his motorcycle collided with a turning car driven by a teenager with a provisional license. He settled with the driver and the driver’s parents for their $100,000 insurance policy limit. Cline executed a release that released the driver and his parents “and any other person, corporation, association, or partnership responsible in any manner or degree” for the accident. Cline subsequently sued defendant Berniece Delores Homuth, the driver’s grandmother and the sole adult in the car with him at the time of the collision, for negligent supervision. Homuth raised the release as an affirmative defense. She moved for summary judgment; the trial court denied the motion. A court trial followed, centering on the validity of the release and whether Homuth was an intended third party beneficiary of the release. Relying on Rodriguez v. Oto (2013) 212 Cal.App.4th 1020, the trial court found the release “unambiguously expresses a mutual intent to benefit a class of persons of which [Homuth] is a member” and that Homuth was entitled to enforce it. Cline appealed the judgment in favor of Homuth, arguing the extrinsic evidence demonstrated that Homuth was not an intended beneficiary of the release. The Court of Appeal affirmed, finding that Cline failed to provide sufficient evidence to counter Homuth’s showing that she was an intended beneficiary of the release.

“A third party may enforce a contract that is expressly made for his benefit. (Civ. Code, § 1559.) The third party need not be named in the contract, but he has the burden to show the contracting parties intended to benefit him. (Garcia v. Truck Ins. Exchange (1984) 36 Cal.3d 426, 436.) Determining this intent is a question of contract interpretation. (Ibid.) “In determining the meaning of a written contract allegedly made, in part, for the benefit of a third party, evidence of the circumstances and negotiations of the parties in making the contract is both relevant and admissible. And, ‘[i]n the absence of grounds for estoppel, the contracting parties should be allowed to testify as to their actual intention . . . .’ [Citations.]” (Id. at p. 437.)”

A reading of the opinion wherein numerous “release the world” cases were analyzed by the court, lead the court to affirm the judgment by the trial court that Cline presented insufficient evidence in the subject release’s negotiated circumstances to demonstrate that the “parties” did not intend that Homuth would be excluded from the release’s broad “and any other person, corporation, association, or partnership responsible in any manner or degree” for the accident language.

Anyone interested in this area of the law should read the entirety of the opinion for a comprehensive primer on when and when not a broadly worded general release will indeed release a later sued “person” or “corporation.”

Fazio v. Fairbanks Ranch Country Club

 

Primary Assumption of Risk – “Inherent Occupational Hazards”

Fazio v. Fairbanks Ranch Country Club (2015) 233 Cal.App.4th 1053

Fazio, a professional musician, filed a lawsuit against Fairbanks claiming negligence after he fell from a stage on Fairbanks’s property before a performance. Fairbanks argued in its motion for summary judgment, among other things, that as a musician who regularly performed on stage Fazio assumed the risk of falling. On appeal, Fazio claims the trial court erred by granting Fairbanks’s motion because a triable issue of fact exists as to whether Fairbanks constructed the stage in a way that unreasonably increased the risk of falling.

“In Knight v. Jewett (1992) 3 Cal.4th 296 (Knight), the Supreme Court considered the proper application of the assumption of risk doctrine in light of its adoption of comparative fault principles in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804. The court “distinguished between (1) primary assumption of risk—‘those instances in which the assumption of risk doctrine embodies a legal conclusion that there is “no duty” on the part of the defendant to protect the plaintiff from a particular risk’—and (2) secondary assumption of risk—‘those instances in which the defendant does owe a duty of care to the plaintiff but the plaintiff knowingly encounters a risk of injury caused by the defendant’s breach of that duty.’ [Citation.] Primary assumption of risk, when applicable, completely bars the plaintiff’s recovery. [Citation.] The doctrine of secondary assumption of risk, by contrast, ‘is merged into the comparative fault scheme, and the trier of fact, in apportioning the loss resulting from the injury, may consider the relative responsibility of the parties.’ ” (Cheong v. Antablin (1997) 16 Cal.4th 1063, 1067–1068, citing Knight, supra, at pp. 308, 314–315.) Although it addressed the assumption of the risk doctrine in the context of sports activities, Knight “provided an analytical framework for evaluating” the doctrine “in other contexts.” (Huffman v. City of Poway (2000) 84 Cal.App.4th 975, 994.) Primary assumption of the risk applies when the court, “after examining the nature of the particular activity and the parties’ relationship to that activity, concludes that a plaintiff engaged in the particular activity is harmed by the risks inherent in the activity.” (Id. at p. 994.) When the risks are inherent, the defendant does not have a “duty to protect the plaintiff from those risks [citation] or to take steps to reduce those risks.”

Inherent Occupational Hazards

“[T]he primary assumption of the risk doctrine is not limited to recreational activities… the doctrine has been applied “to other activities involving an inherent risk of injury to voluntary participants … where the risk cannot be eliminated without altering the fundamental nature of the activity.” (Beninati v. Black Rock City, LLC (2009) 175 Cal.App.4th 650, 658; Nunez v. R’bibo (1989) 211 Cal.App.3d 559, 563 [applying assumption of the risk to gardener who fell from ladder while trimming tree].) “Primary assumption of risk cases often involve recreational activity, but the doctrine also governs claims arising from inherent occupational hazards.”]; Priebe v. Nelson (2006) 39 Cal.4th 1112, 1116 [applying doctrine to bar kennel worker’s claim against dog owner]; and Saville v. Sierra College (2005) 133 Cal.App.4th 857, 867–868 [applying doctrine to student injured while practicing takedown maneuvers in police officer training course].)

“Although defendants generally have no legal duty to eliminate (or protect a plaintiff against) risks inherent in the sport itself, it is well established that defendants generally do have a duty to use due care not to increase the risks to a participant over and above those inherent in the sport.” (Knight, 3 Cal.4th at pp. 315–316.) Likewise, when the doctrine is applied outside the sports context [Inherent Occupational Hazards], summary judgment on primary assumption of risk grounds is unavailable unless the defendant disproves the theory it increased the inherent risks, or establishes a lack of causation between its conduct and the plaintiff’s injury. (Campbell v. Derylo, at p. 830, 89; Lowe v. California League of Prof. Baseball (1997) 56 Cal.App.4th 112, 123.)

The Court held: “We agree with Fairbanks that falling off stage is an inherent risk for all stage performers… That risk “cannot be eliminated entirely without altering the fundamental nature” of performing on stage. (Beninati v. Black Rock City, LLC, 175 Cal.App.4th at p. 658.) As a result, Fairbanks was under no duty to protect Fazio from this inherent risk.

Defendant Increasing the inherent risk involved in the activity – Question of Law or Fact?

“Court of Appeal decisions addressing the determination of whether increased risk is a legal question for the court or a factual one for the jury conflict.” The Court analyzed the numerous cases, with a special emphasis on the Supreme Court case of Shin v. Ahn (2007) 42 Cal.4th 482: “[T]he California Supreme Court addressed the analogous question of whether the trier of fact or the court, as a matter of law, determines if a defendant has breached a limited duty of care by engaging in reckless conduct outside the range of activity for which the plaintiff assumed the risk. (Id. at pp. 488–489.) Shin affirmed the denial of a motion for summary judgment by a golfer who struck another player with a stray ball. The court held the primary assumption of the risk doctrine was applicable to the sport of golf, but also concluded that (“golfers have a limited duty of care to other players, breached only if they intentionally injure them or engage in conduct that is so ‘reckless as to be totally outside the range of the ordinary activity involved in the sport.’ ”Id. at p. 497.) The court held summary judgment was properly denied on the record before it, which was “too sparse to support a finding, as a matter of law, that defendant did, or did not, act recklessly.” (Id. at p. 500.) The court then concluded the “jury will ultimately resolve [the question] based on a more complete examination of the facts.” (Ibid.)

The Fazio Court, thus, held: “In light of the Supreme Court’s decision in Shin, we conclude as the Luna court did, that resolving the question of whether Fairbanks increased the risk of falling is properly decided by the trier of fact. This question “is not a matter of further defining [Fairbanks’s] duty, which would be a question of law for the court. Rather, it requires application of the governing standard of care (the duty not to increase the [inherent risks] ) to the facts of this particular case—the traditional role of the trier of fact.” (Luna, 169 Cal.App.4th at p. 112.)

Mizen, Scott S.

SCOTT S. MIZEN graduated from the University of Illinois in 1987 and earned his Juris Doctorate Degree from Pepperdine University School of Law in 1990. Mr. Mizen is admitted to practice before all the California Courts and the United States District Court, Southern District of California. He is also a member of the Southern California Association of Defense Counsel and the Orange County Bar Association.

Mr. Mizen has practiced general civil defense litigation, emphasizing construction defect and personal injury matters for more than a decade. His primary specialty at Veatch Carlson is personal injury and property damage defense. He is a seasoned litigator with numerous trials to his credit.

J.P.P. Inv. Partners V. Fair

  • First District
  • 12/05/14
  • Enforcing Settlement Agreements

To enforce settlements the agreements must be signed by the parties. What about settlements consummated via email and the evolving issue of electronic signatures?

The trial court granted a motion to enforce a settlement between plaintiffs and defendants. The trial court found that defendant Fair’s printed name at the end of his email where he had agreed to settlement terms set forth in an email from plaintiffs’ counsel was an “electronic signature” within the meaning of California’s Uniform Electronic Transactions Act (Civ. Code, 1633.1) and what it referred to as the “common law of contract” or “contract case law.” The court of appeal reversed the order enforcing the settlement: the agreement was not signed by plaintiffs and the trial court erred in determining that Fair’s printed name at the end of his email was enforceable. Since plaintiffs are not the prevailing party, they are not entitled to attorney fees.

“Code of Civil Procedure section 664.6 provides: “If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court . . . for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement.” “Because of its summary nature, strict compliance with the requirements of [Code of Civil Procedure] section 664.6 is prerequisite to invoking the power of the court to impose a settlement agreement.” (Sully-Miller Contracting Co. v. Gledson/Cashman Construction, Inc. (2002) 103 Cal.App.4th 30, 37 (Sully-Miller).) Settlement of a lawsuit implicates a substantial right of the litigants; therefore, the Supreme Court has concluded that “parties” in Code of Civil Procedure section 664.6 means the litigants personally and does not include their attorneys of record (Levy v. Superior Court (1995) 10 Cal.4th 578, 584, 586), even if the parties expressly authorized the agent to enter into a settlement on their behalf (see Gauss v. GAF Corp. (2002) 103 Cal.App.4th 1110, 1162-1164). “The litigants’ direct participation tends to ensure that the settlement is the result of their mature reflection and deliberate assent.” (Levy, at p. 585.) Thus, the statute “require[s] the signatures of the parties seeking to enforce the agreement under [Code of Civil Procedure] section 664.6 and against whom the agreement is sought to be enforced.” (Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4th 299, 305.)”

“Attributing the name on an e-mail to a particular person and determining that the printed name is “[t]he act of [this] person” is a necessary prerequisite but is insufficient, by itself, to establish that it is an “electronic signature.” (§ 1633.9, subd. (a).) As counsel and the court seemed unaware, UETA defines the term “electronic signature.” Subdivision (h) of section 1633.2 states that ” ‘[e]lectronic signature’ means an electronic sound, symbol, or process attached to or logically associated with an electronic record and executed or adopted by a person with the intent to sign the electronic record.” (Italics added. See also Cal. Civ. Jury Inst. No. 380 [party suing to enforce an agreement formalized by electronic means must prove “based on the context and surrounding circumstances, including the conduct of the parties, that the parties agreed to use [e.g., e-mail) to formalize their agreement”].)”

“We have independently reviewed the record and conclude, as a matter of law, that it does not show that Fair printed his name at the end of his e-mail with any intent to formalize an electronic transaction. Indeed, substantial evidence in the record refutes such a finding.”

“Whether the parties agree to conduct a transaction by electronic means is determined from the context and surrounding circumstances, including the parties’ conduct. . . .” (§ 1633.5, subd. (b).) The absence of an explicit agreement to conduct the transaction by electronic means is not determinative; however, it is a relevant factor to consider.”

Giannis, Ariadne M.

Ariadne Giannis focuses her practice in the area of general insurance defense litigation. She brings a unique perspective to the table having represented both Plaintiffs and Defendants. Prior to joining Veatch Carlson, Ariadne managed the litigation departments for two Plaintiff firms where she achieved consistent and notable results through trial, arbitration, and mediation.

After graduating magna cum laude from Florida State University, Ariadne obtained her law degree from Loyola Law School, Los Angeles. She is admitted to practice in the State of California in 2013 and the Central District of the U.S. District Court of California.

Weinstein, Mark A.

MARK A. WEINSTEIN received his Bachelor’s degree (cum laude) at the University of California at Los Angeles in 1972 and his Juris Doctorate (cum laude) from Loyola Marymount University School of Law in 1975. After remaining on the Dean’s List throughout law school and earning entry into the Saint Thomas Moore Law Society, he was admitted to the California Bar in 1975. A member of the Los Angeles County Bar Association and the American Board of Trial Advocates (ABOTA), Mr. Weinstein serves as an Arbitrator for the Los Angeles County Superior Court in the field of personal injury.

Mr. Weinstein came to the firm in 1986 from the Office of the California Attorney General. During nine years of practice he was promoted to the highest rank of Deputy Attorney General IV. Mr. Weinstein practiced in the Tort and Condemnation section, representing various state agencies such as the Department of Corrections, California Highway Patrol, Department of Mental Health, Department of Parks and Recreation, and the Department of Insurance. He had full responsibility for multi-party complex litigation including Newman v. Stringfellow, where over 5,000 plaintiffs sued the State and others for damages allegedly resulting from toxic materials deposited at the Stringfellow disposal site in Riverside County; and Sinaloa Homeowners Association v. State of California, an inverse condemnation action filed in Federal Court because of the Department of Water Resources decision to breach a privately owned dam causing property damage to 40 homeowners.

His most recent high-profile civil rights trial, a federal police misconduct action, was successful on appeal–and that is no surprise. In Allen v. Singer, Mark defended before the Ninth Circuit Court of Appeals the CHP officer who pulled over Rodney King’s white Hyundai on the night of his arrest. This case represented a successful conclusion to the civil rights challenges of King and his passengers.

Over the years, Mr. Weinstein has established himself as a preeminent authority in public entity defense with an array of government tort cases, resulting in over 20 published appeals that have, in some circumstances, virtually redefined the scope of public entity liability.

In addition to Allen v. Singer, et al., Mr. Weinstein has to his credit published opinions such as Clemente v. State of California; Chevlin v. Los Angeles Community College District; Kuykendall v. State; State of California v. Meyer; Truong v. James; Guess v. State of California; and Leader v. State, in which Mr. Weinstein persuaded the Court of Appeals to revise the law of collateral estoppel. Mark’s meticulous handling of the Leader case at trial laid the groundwork for appeal, furnishing the appellate court with a sound legal and factual basis for changing the law.

Mr. Weinstein’s trial and appellate work in another case, Hacker v. City of Glendale, was instrumental in focusing the development of the defense of primary assumption of the risk. Mr. Weinstein’s ability to litigate complex and sensitive tort cases has also earned him a reputation in the areas of negligent security, foster care liability, harassment, discrimination, and other similar high-exposure cases. As one of the Firm’s primary trial attorneys, his practice also includes medical malpractice defense, truck accidents, construction disputes, products liability, and intellectual property. Mr. Weinstein also heads the Firm’s appellate practice group.

Recently Mr. Weinstein served as co-instructor of several courses including C.E.B.’s “How to Handle a Government Tort Liability Claim,” and a series of classes presented by Veatch Carlson on basic investigation and litigation techniques.

Rudy, Mark M.

MARK M. RUDY received a Bachelor of Arts degree in History from the University of Santa Clara where he was a four-year member of the University Honors Program. He received his Juris Doctorate from the University of California, Hastings College of Law in May 1986. He served as Associate Articles Editor of the Hastings International and Comparative Law Review in 1985 – 1986. He is a member of the American Bar Association, the Association of Southern California Defense Counsel, and the Southern California Association of Healthcare Risk Managers.

He joined Veatch Carlson after admission to the Bar in December of 1986. Since that time, Mark has practiced primarily in the area of medical and dental malpractice defense. During his tenure with the firm, Mark has tenaciously litigated a multitude of complex matters in the medical malpractice arena.

Mr. Rudy has tried cases to verdict involving claims of death, birth injury, and permanent neurological damage in matters alleging medical malpractice. Favorable trial results have been achieved for insureds of various insurance companies including Truck Insurance Exchange, Shand Morahan & Co., Caliber One Indemnity Co. and Southern California Physicians Insurance Exchange. Mr. Rudy has also handled cases involving allegations of sexual harassment/battery against healthcare providers. He has additional trial experience in the areas of premises liability and motor vehicle accidents.

Mr. Rudy has presented lectures on the medical-legal aspects of nursing at several Los Angeles-area hospitals.

Mackey, Robert T.

ROBERT T. MACKEY graduated from the State University of New York in 1996 and thereafter completed his Juris Doctorate at the University of Quinnipiac, formerly the Bridgeport Connecticut School of Law, in 1999. He holds law licenses in New York, Connecticut and California.

Mr. Mackey began his career litigating serious personal injury cases on behalf of plaintiffs. He then brought that unique experience and perspective to the insurance defense firm of Early, Maslach and Rudnicki, where he tried many cases on behalf of those being sued, before joining Veatch Carlson. Since joining Veatch Carlson Mr. Mackey has continued representing those sued and has tried over 80 civil jury trials with a high rate of success.

In the past ten years, Mr. Mackey’s civil trials have included wrongful death claims, complicated surgical cases and many traumatic brain injuries claims where some of California’s top plaintiffs lawyers have sought seven and eight figure verdicts.

Mr. Mackey is a member of the Federation of Defense and Corporate Counsel (FDCC) and has been a member of the American Board of Trial Advocates (ABOTA) since 2008.

Glazer, William J.

WILLIAM J. GLAZER received his B.A. in history and theater arts from U.C.L.A. in 1972. After graduating with honors from Loyola University School of Law in 1975, Mr. Glazer went to work as a Deputy Attorney General for four years handling all types of civil liability and condemnation matters for the State of California, its agencies and employees. He was a member of two Attorney General Task Forces regarding tort reform and governmental liability, both of which proposed and implemented legislation. He subsequently took a position with an insurance company as senior trial counsel where he handled all manner of large exposure cases. It was there that Mr. Glazer first became involved in the development of a program specifically aimed at the deterrence of fraudulent claims.

Mr. Glazer joined a larger, well-known west side defense firm in 1982 and became a partner in 1985. He was one of the two senior partners in charge of the casualty coverage and litigation unit. He handled myriad insurance and defense matters, including first and third party coverage, auto and trucking cases, declaratory relief actions, suspect and fraudulent claims (property and casualty), multiparty, serious injury and high exposure cases, premises liability and products liability from inception through trial and appeal.

Mr. Glazer subsequently opted to work in a smaller firm environment and specialized in product liability and toxic tort defense with two firms before reuniting with Mr. Weinstein, with whom he attended law school and served in the Attorney General’s Office, at Veatch Carlson.

Mr. Glazer is a member of the California state and federal bars and was admitted to practice before the U.S. Supreme Court in 1980. He currently serves as a Special Master for the Los Angeles County Superior Court, is a member of the Defense Research Institute (serving on the Product Liability Committee), the Los Angeles County Bar Association and the Association of Southern California Defense Counsel and a former member of the American Bar Association Tort and Insurance Practice Section. He lives in Calabasas with his wife, Rea, and has two grown children.

Galloway, James C.

JAMES C. GALLOWAY, JR. was admitted to the California Bar in 1970 and to the U.S. Supreme Court in 1976. He received his Bachelor of Science degree in 1964 from the University of Southern California and his Juris Doctorate degree from Southwestern University in 1969. He has served as the Firm’s Managing Partner, and currently is a member of the Executive Committee.

Mr. Galloway maintains an extremely active litigation and trial calendar specializing in the defense of professional liability matters including dental, medical and real estate, multi-party construction defect matters, product liability, auto and governmental tort actions. His keen sense of the issues and incisive analysis has earned him the reputation as an aggressive no-nonsense litigator.

Upon entering the legal profession, Mr. Galloway served with house counsel at Farmers Insurance Group before joining the Firm. Since 1980 he has volunteered as a Judge Pro Tem on the Los Angeles Municipal Court and is active as an Arbitrator for the Los Angeles Superior Court Arbitration Panel. Additionally, he is a member of the National Panel of Arbitrators of the American Arbitration Association and a Diplomat of the American Board of Trial Advocates (ABOTA). Mr. Galloway has participated as a member in the Los Angeles County and American Bar Associations, the American Judicature Society and the Association of Southern California Defense Counsel. He has been admitted to practice before the U.S. Supreme Court since 1977.

Almeida, Pete E.

PETE E. ALMEIDA was admitted to the California bar in 1992. He received his Bachelor of Arts degree in 1984 from Chapman University and his Juris Doctorate degree from Pepperdine University in 1991.

Mr. Almeida began his career specializing in premises liability, automobile accidents, insurance bad faith, attorney malpractice, property and third party subrogation. His reputation in the legal community led to his speaking extensively throughout Southern California about third party subrogation.

In 1997, Mr. Almeida joined the firm of Tobin & Louie. Mr. Almeida was made a partner within six months and upon Mr. Tobin’s departure in 2000, the firm was renamed to Louie, Almeida & Stettler. In 2000, Mr. Almeida was named the managing partner. The firm grew from 10 attorneys in 2000 to 29 attorneys and 3 offices by 2004.

Mr. Almeida’s focus throughout his career has been to separate cases into those that should be taken to trial and those that should be pushed to a successful, early resolution. He is comfortable with complex medical and legal issues having handled cases involving hematologic, neurologic (including massive brain trauma), orthopedic and psychiatric/psychological issues. As a result of Mr. Almeida’s expertise he has been able to confront opposing counsel with hard facts while refuting grossly inflated injury claims resulting in fair reasonable settlements or “take nothings” from the WCAB. Mr. Almeida has successfully settled workers’ compensation matters that included a resolution of the employees other civil claim resulting in untold savings to the employer.

Gottschall V. Crane Co.

  • First Appellate District
  • 10/22/14
  • Sophisticated User Defense

A concise primer on the “sophisticated user” defense first articulated in Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56:

“Our Supreme Court first endorsed the doctrine of “sophisticated user” in 2008, holding in essence that users of products that could be seen as potentially dangerous cannot hold the producers of those products liable if those users were clearly knowledgeable about the product being used and its potential danger. It was in Johnson, supra, 43 Cal.4th 56, where a unanimous court held as follows: “The sophisticated user defense exempts manufacturers from their typical obligation to provide product users with warnings about the products’ potential hazards. [Citation.] The defense is considered an exception to the manufacturer’s general duty to warn consumers, and therefore, in most jurisdictions, if successfully argued, acts as an affirmative defense to negate the manufacturer’s duty to warn. [Citation.] “Under the sophisticated user defense, sophisticated users need not be warned about dangers of which they are already aware or should be aware. [Citation.] Because these sophisticated users are charged with knowing the particular product’s dangers, the failure to warn about those dangers is not the legal cause of any harm that product may cause. [Citation.] The rationale supporting the defense is that ‘the failure to provide warnings about risks already known to a sophisticated purchaser usually is not a proximate cause of harm resulting from those risks suffered by the buyer’s employees or downstream purchasers.’ (Ibid.) This is because the user’s knowledge of the dangers is the equivalent of prior notice. [Citation.] “As we explain further below, the sophisticated user defense evolved out of the Restatement Second of Torts, section 38

8 (section 388) and the obvious danger rule, an accepted principle and defense in California. [Citations.] In addition . . . the defense applies equally to strict liability and negligent failure to warn cases. The duty to warn is measured by what is generally known or should have been known to the class of sophisticated users, rather than by the individual plaintiff’s subjective knowledge. [Citation.]” (Johnson, supra, 43 Cal.4th at pp. 65-66.)”

Izell V. Union Carbide

  • Second Appellate District
  • 10/22/14
  • Punitive Damages

This is an asbestos related case where much of the discussion focused on aspects of the law unique to asbestos cases. Union Carbide Corporation appeals from a judgment entered in favor of Plaintiffs Bobbie Izell and Helen Izell on claims for personal injuries and loss of consortium stemming from Mr. Izell’s alleged exposure to Union Carbide asbestos and subsequent diagnosis with mesothelioma. After a four-week trial the jury returned special verdicts finding Union Carbide 65 percent comparatively at fault for Plaintiffs’ injuries and awarding Plaintiffs $30 million in compensatory damages plus $18 million in punitive damages against Union Carbide. By remittitur, which Plaintiffs accepted, the trial court reduced the compensatory damage award to $6 million, but declined to disturb the punitive damages. On appeal, Union Carbide contends the evidence was insufficient to support the liability finding, apportionment of comparative fault, and the remitted compensatory damage award. Union Carbide also challenges the punitive damage award as excessive.

The discussion on punitive damages provides a nice encapsulation of the constitutionality of punitive damages:

“Union Carbide argues the punitive damage award is unconstitutionally excessive under two of the three State Farm guideposts-the degree of reprehensibility of the defendant’s misconduct and the relationship between the punitive damage award and theharm suffered by the plaintiff.”

Degree of reprehensibility

“The degree of reprehensibility of the defendant’s conduct is the most important indicator of the reasonableness of a punitive damages award. (State Farm, supra, 538 U.S. at p. 419; Gore, supra, 517 U.S. at p. 575.) In assessing the reprehensibility of a defendant’s conduct, we are to consider whether “[(1)] the harm caused was physical as opposed to economic; [(2)] the tortious conduct evinced an indifference to or a reckless disregard of the health or safety of others; [(3)] the target of the conduct had financial vulnerability; [(4)] the conduct involved repeated actions or was an isolated incident; and [(5)] the harm was the result of intentional malice, trickery, or deceit, or mere accident. [Citation.] The existence of any one of these factors weighing in favor of a plaintiff may not be sufficient to sustain a punitive damages award; and the absence of all of them renders any award suspect. It should be presumed a plaintiff has been made whole for his injuries by compensatory damages, so punitive damages should only be awarded if the defendant’s culpability, after having paid compensatory damages, is so reprehensible as to warrant the imposition of further sanctions to achieve punishment or deterrence.” (State Farm, at p. 419.)

Disparity between actual harm and punitive damages

“Due process requires that punitive damages bear a ” ‘reasonable relationship’ ” to the actual or potential harm to the plaintiff. (Gore, supra, 517 U.S. at p. 580.) Thus, “courts must ensure that the measure of punishment is both reasonable and proportionate to the amount of harm to the plaintiff and to the general damages recovered.” (State Farm, supra, 538 U.S. at p. 426.)

The United States Supreme Court has “consistently rejected the notion that the constitutional line is marked by a simple mathematical formula.” (Gore, supra, 517 U.S. at p. 582; State Farm, supra, 538 U.S. at pp. 424-425.) As State Farm explains, the due process limitation is elastic, rather than rigid, and depends on the circumstances:

“[B]ecause there are no rigid benchmarks that a punitive damages award may not surpass, ratios greater than those we have previously upheld may comport with due process where ‘a particularly egregious act has resulted in only a small amount of economic damages.’ [Citations.] The converse is also true, however. When compensatory damages are substantial, then a lesser ratio, perhaps only equal to compensatory damages, can reach the outermost limit of the due process guarantee. The precise award in any case, of course, must be based upon the facts and circumstances of the defendant’s conduct and the harm to the plaintiff.” (State Farm, at p. 425.)”

For California’s take, see also Roby v. McKesson Corp. (2009) 47 Cal.4th 686, in which our Supreme Court concluded a one-to-one ratio between compensatory and punitive damages was the federal constitutional limit where the defendant’s conduct involved a “relatively low degree of reprehensibility” and the compensatory verdict included a substantial award of noneconomic damages. (Id. at p. 719, italics added.)

Lobo V. Tamco

  • Fourth District
  • Filed 9/10/14 certified for partial publication 10/8/14
  • Employer Vicarious Liability

In Lobo v. Tamco (2010) 182 Cal.App.4th 297 (Lobo I), the court reversed a summary judgment in favor of the defendant, Tamco, and remanded the matter for further proceedings in the trial court. Trial was held solely on the issue of Tamco’s vicarious liability for the negligence of its employee, Luis Del Rosario. The jury found in favor of Tamco. Plaintiffs, the survivors of a deputy sheriff killed in a vehicular collision with Del Rosario’s car as he left Tamco’s premises, contend that based on the legal principles enunciated in Lobo I, the evidence adduced at trial compels a finding that Del Rosario was acting within the scope of his employment when the accident occurred. They also argue that the trial court erred in refusing a requested jury instruction. The Court in this opinion affirmed the trial court judgmemt.

Del Rosario was leaving Tamco’s premises. As he drove his car out of the driveway and onto Arrow Highway, he failed to notice three motorcycle deputies approaching with lights and sirens activated. Deputy Lobo was unable to avoid colliding with Del Rosario’s car and suffered fatal injuries.

Tamco filed a motion for summary judgment or summary adjudication of issues, contending that the evidence established as a matter of law that Tamco was not vicariously liable for Deputy Lobo’s death, in that Del Rosario was not acting within the course and scope of his employment, but was merely leaving work at the end of his workday, intending to go home, and was driving his personal vehicle. The trial court granted summary judgment.

FOLLOWING A CONCISE DESCRIPTION OF THE LAW ON COMIMNG AND GOING AND REQUIRED USE EXCEPTION

“Under the theory of respondeat superior, employers are vicariously liable for tortious acts committed by employees during the course and scope of their employment. However, under the ‘going and coming’ rule, employers are generally exempt from liability for tortious acts committed by employees while on their way to and from work because employees are said to be outside of the course and scope of employment during their daily commute. 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. 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, 807, has been referred to as the ‘required-vehicle’ exception. The exception can apply if the use of a personally owned vehicle is either an express or implied condition of employment, 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 reply 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.'”

“The modern view of the basis for respondeat superior is that an employer is responsible for injuries resulting from “‘risks that may fairly be regarded as typical of or broadly incidental to the enterprise [the employer] has undertaken.'” (Hinman v. Westinghouse Elec. Co. (1970) 2 Cal.3d 956, 960 (Hinman).) Accordingly, although we held that infrequency of the use of the vehicle “should not, in and of itself, defeat the plaintiff’s case” (Lobo I, supra, 182 Cal.App.4th at p. 303, italics added), the trier of fact remains free to determine in a particular case that the employee’s use of his or her vehicle was too infrequent to confer a sufficient benefit to the employer so as to make it reasonable to require the employer to bear the cost of the employee’s negligence in operating the vehicle. This is particularly true in the absence of an express requirement that the employee make his or her vehicle available for the employer’s benefit or evidence that the employer actually relied on the availability of the employee’s car to further the employer’s purposes.”