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Lobo v. Tamco

February 24, 2010

JENNIFER LOBO ET AL., PLAINTIFFS AND APPELLANTS,
v.
TAMCO, DEFENDANT AND RESPONDENT.
KILEY SAVANNAH LOBO, A MINOR, ETC., ET AL. PLAINTIFFS AND APPELLANTS,
v.
TAMCO, DEFENDANT AND RESPONDENT.



APPEAL from the Superior Court of San Bernardino County. Barry L. Plotkin, Judge. Affirmed in part; reversed in part. (Super.Ct.No. RCV092140) (Super.Ct.No. RCV097029).

The opinion of the court was delivered by: McKinster, Acting P.J.

CERTIFIED FOR PUBLICATION

OPINION

Plaintiffs, the survivors of a deputy sheriff killed in a vehicular collision, appeal a summary judgment in favor of defendant Tamco. We reverse in part.

BACKGROUND

Daniel Lobo, a San Bernardino County deputy sheriff, was killed on October 11, 2005, allegedly as the result of negligent operation of a motor vehicle by defendant Luis Duay Del Rosario while acting in the course and scope of his employment by defendant Tamco. Del Rosario was leaving the premises of his employer, Tamco. 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.

Deputy Lobo's widow, Jennifer Lobo, filed a wrongful death suit on behalf of herself and the Lobos' minor daughter, Madison. Kiley and Kadie Lobo, minor daughters of Deputy Lobo, filed a separate wrongful death action through their guardian ad litem. Both suits alleged that Del Rosario was acting within the course and scope of his employment by Tamco at the time of the accident. The cases were consolidated by the superior court.

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 work day, intending to go home, and was driving his personal vehicle. Kiley and Kadie Lobo filed opposition to the motion; Jennifer and Madison Lobo joined in the opposition.*fn1

The court granted summary judgment and entered a judgment of dismissal as to defendant Tamco. Plaintiffs filed separate notices of appeal. We consolidated the appeals.

LEGAL DISCUSSION

PLAINTIFFS DEMONSTRATED THAT THERE IS A TRIABLE ISSUE OF FACT

Standard of Review

A defendant moving for summary judgment need only show that the plaintiff cannot establish one element of the cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853-854 (Aguilar); see also Code Civ. Proc., § 437c, subd. (p)(2).) If the defendant meets its initial burden of proving the nonexistence of an element of the cause of action, the burden shifts to the plaintiff to show that there is a material issue of fact for a jury to determine. (Aguilar, at p. 850.) All reasonable inferences must be drawn in favor of the plaintiff, and if a reasonable trier of fact could find for the plaintiff, the motion must be denied. (Id. at pp. 856-857.) We use a de novo standard of review for a ruling granting summary judgment.*fn2 (Wachovia Bank v. Lifetime Industries, Inc. (2006) 145 Cal.App.4th 1039, 1048 [Fourth Dist., Div. Two].)

Here, we will assume that defendant met its initial burden. As we discuss below, however, plaintiffs also met their burden, establishing that there is a triable issue of fact as to whether the conditions of Del Rosario's employment required him to ...


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