Partners Gary Hoffman (retired) and Maria Pleše receive favorable decision from Court of Appeal, 4th District, in opinion certified for publication, overturning denial of Motion for Summary Judgment.
Defendant, JB, caused a multi-vehicle collision resulting in catastrophic injuries to plaintiff and the deaths of two others. JB was a temp employee of our client and questionably on his way to work when the accident occurred. Plaintiff alleged our client was vicariously liable for the conduct of its temp employee. We moved for summary judgment on the basis that the temp was not in the course and scope and even had he been heading to work, the “going and coming” rule applied, which holds that you are not within the scope of employment while going to or coming from work.
Plaintiff argued the “vehicle use” exception applied, which requires the employee to furnish their own vehicle for work – a fact we denied. Plaintiff submitted a Declaration from a witness stating she witnessed JB use his own car for work. The court denied our MSJ based on this Declaration. Shortly after the MSJ ruling, the witness was deposed and denied the entirety of her declaration, testifying she was pressured to sign it by plaintiff’s counsel.
Following the denial of our MSJ, we filed a Petition for Writ of Mandate with the Court of Appeal. A day prior to oral argument, plaintiff reached a settlement with three of the defendants. As the settlement was not fully finalized, the parties proceeded with oral argument and the Court of Appeal ultimately issued an opinion that was certified for publication. The COA concluded that the declaration was not admissible evidence and found that the trial court erred in determining it could look at the declaration in isolation and disregard the deposition testimony. The trial court was directed to enter summary judgment in favor of our client.
Maria Plese, Partner Gary Hoffman, Retired