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Roman v. Sears4/27/2005
ars as a defendant.
In September 2003, Sears filed a motion for summary judgment. It premised the motion on two grounds: (1) It was not vicariously liable for Demos's actions because Demos was not acting within the course and scope of his employment when he was involved in the accident; and (2) Demos was not negligent as a matter of law because he suffered an unexpected and incapacitating seizure at the time of the accident. With respect to the first ground, it argued that the "going and coming" rule applied, which provides that an employee is generally not considered to be within the course and scope of his employment while commuting to or from work. As evidence supporting the motion, it submitted a declaration from Sears manager Tiratelli, a police report of the accident, discovery responses including Demos's interrogatory responses and Demos's medical records.
Appellants opposed the motion. They argued that questions of fact existed as to whether Demos was acting within the course of scope of his employment when he went home to change clothes and whether the medical evidence adequately demonstrated that he suffered a seizure before the accident. In support of their opposition, appellants submitted the same evidence offered by Sears, adding only excerpts from Demos's deposition.
Following a hearing on November 24, 2003, the trial court granted summary judgment on the ground that no triable issue of fact existed concerning whether Demos was acting within the course and scope of his employment at the time of the accident. The order granting the motion stated: "The Court finds that, as a matter of law, the undisputed facts establish CHRISTOPHER DEMOS was not in the course and scope of his employment with Defendant SEARS at the time of the accident. Mr. DEMOS' actions fall within the `going and coming' rule, and as such he was not in the course and scope of his employment at the time of the accident." The trial court based its ruling on Tiratelli's declaration and Demos's deposition and discovery responses. In view of its ruling, the trial court did not address the other ground raised by the motion.
The trial court thereafter entered judgment in favor of Sears and appellants appealed.
DISCUSSION
Appellants contend that the trial court erroneously granted summary judgment, asserting that triable issues of fact exist as to whether Demos was acting within the course and scope of his employment at the time of the automobile accident. Summary judgment is warranted when "all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c).) A defendant moving for summary judgment meets this burden by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to the action. (Code Civ. Proc., § 437c, subd. (p)(2).) Once the defendant makes this showing, the burden shifts to the plaintiff to set forth specific facts showing that a triable issue of material fact exists as to that cause of action or defense. (Code Civ. Proc., § 437c, subd. (p)(2); Barton v. Elexsys Internat., Inc. (1998) 62 Cal.App.4th 1182, 1187.)
We review a trial court's grant of summary judgment de novo, "considering `all of the evidence set forth in the [supporting and opposition] papers, except that to which objections have been made and sustained by the court, and all [uncontradicted] inferences reasonably deducible from the evidence.'" (Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 612; see also Herberg v. California Institute of the Arts (2002) 101 Cal.App.4th 142, 148.) "In independen
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