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Sumrall v. Modern Alloys, Inc.

California Court of Appeals, Fourth District, Third Division

April 13, 2017

MICHAEL J. SUMRALL et al., Plaintiffs and Appellants,
v.
MODERN ALLOYS, INC., Defendant and Respondent.

          Order Date April 18, 2017

         Appeal from a judgment of the Superior Court of Orange County, No. 30-2012-00571554 John C. Gastelum, Judge. Reversed.

          Law Offices of William J. Kopeny and William J. Kopeny; Aitken, Aitken, Cohn, Waylie A. Aitken and Megan G. Demshki; Hunt & Adams and John C. Adams for Plaintiffs and Appellants.

          Wait & Hufnagel, Thomas B. Wait, Robert A. Hufnagel and Danica Y. Chang for Defendant and Respondent.

         ORDER MODIFYING OPINION

         This court hereby orders that the opinion filed herein on April 13, 2017, be modified as follows:

         1. On page 1, second paragraph the name “Waylie” is deleted and replaced with “Wylie” so the paragraph reads:

         “Law Offices of William J. Kopeny and William J. Kopeny; Aitken, Aitken, Cohn, Wylie A. Aitken and Megan G. Demshki; Hunt & Adams and John C. Adams for Plaintiffs and Appellants.”

         2. On page 7, second sentence of the first full paragraph, the word “cannot” is deleted and replaced with “can” so the sentence reads:

         “Thus, the question of whether Campos was engaged in a business errand-and was therefore acting within the scope of his employment-is not a question of law that can be resolved in a motion for summary judgment.”

         This modification does not change the judgment.

          OPINION

          MOORE, ACTING P. J.

         I

         INTRODUCTION

         “In general, an employee is not acting within the scope of employment while travelling to and from the workplace. But if the employee, while commuting, is on an errand for the employer, then the employee's conduct is within the scope of his or her employment from the time the employee starts on the errand....” (CACI No. 3724 [The Going-and-Coming Rule-Business Errand Exception], italics added; Jeewarat v. Warner Bros. Entertainment Inc. (2009) 177 Cal.App.4th 427, 435-436 (Jeewarat).)

         Here, a construction company paid its employee only for the hours he worked at a jobsite. But rather than driving his vehicle directly from his home to the jobsite, the company expected the employee to first commute to the company's “yard.” The employee would then drive a company truck from the yard to the jobsite, transporting coworkers and materials. One day, while driving from his home to the yard, the employee collided with a motorcyclist, who sued the construction company. The trial court granted defendant ...


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