Metropolitan News-Enterprise


Thursday, December 15, 2016


Page 1


Supreme Court Declines to Hear Claim of Exception to ‘Going-and-Coming’ Rule




The state Supreme Court yesterday declined to hear an injured pedestrian’s bid to reinstate a jury verdict against the employer of a man who hit him while driving home from work in his personal vehicle.

No justice at yesterday’s weekly conference in San Francisco voted to grant review in Jorge v. Culinary Institute of America (2016) 3 Cal. App. 5th 382, leaving standing the First District Court of Appeal, Div. Two ruling that tossed an $885,000 jury verdict in favor of Leopoldo Jorge Jr.

The Court of Appeal held that the case should never have gone to the jury because there was no substantial evidence to support the plaintiff’s theory that the Culinary Institute of America required Almir Da Fonseca to use his own car while working away from campus.

Justice James Richman authored the opinion for the panel.

Leopoldo Jorge Jr., then 14, was one of two people hit by Da Fonseca in the 2010 incident. It occurred while Da Fonseca, a chef instructor at the institute’s Greystone campus in St. Helena, was driving to his home in Sebastopol at the end of the workday.

Jorge sued Da Fonseca and the institute, which he claimed was responsible on the basis of respondeat superior. The institute moved for summary judgment, citing the “going-and-coming” rule, under which an employee driving to or from work is generally regarding as doing so outside the scope of employment, absolving the employer of liability for the employee’s negligent driving.

‘Thin’ Evidence

Sonoma Superior Court Judge Elliot Daum denied the motion, saying there was evidence—“[h]owever thin”—from which a jury might find that Da Fonseca was within the scope of his employment.

The case was bifurcated, so that liability was tried before damages. The plaintiff presented evidence that his duties included consulting on behalf of the institute and presenting at conferences and other events, some off-campus.

The defense countered with testimony from school officials, who acknowledged that DaFonseca did a good deal of work away from the campus, but said they did not require him to use his own car to do so.

Adam Busby, DaFonseca’s immediate supervisor, testified:

“It was up to the instructor how they got from point A to point B,” he said. “It wasn’t up to me to decide. It was up to them.”

If an employee rented a vehicle to travel to a conference, he said, he would be reimbursed. It was undisputed that Da Fonseca had received a number of mileage reimbursements for work-related travel in his personal vehicle.

Jury Instructions

Daum instructed the jury on the going-and-coming rule and the “required vehicle” exception first recognized in Smith v. Workmen’s Comp. App. Bd. (1968) 69 Cal.2d 814 , a case involving a claim for worker’s compensation benefits when a county social worker was fatally injured in a single-car accident while driving to work. The high court said the going-and-coming rule should not be applied because the employer required the employee to bring his car to work so that he could visit clients in the field.

Jurors in Jorge’s case found that Da Fonseca—who had settled out of the case for $30,000—was negligent and that he was acting within the scope of employment. The plaintiff was found not to be negligent.

Richman, writing for the appellate panel, said none of the published appellate opinions applying the required vehicle exception supported the plaintiff’s position.

The drivers in those cases, he explained, were all required to transport themselves to other locations for work and had no other means of transportation available.

Richman noted that the instructor “could have carpooled to work if another chef instructor lived near him, his wife could have driven him to work, or he could have taken public transportation.” The school did not pay him for time spent commuting between his home and the campus, and its officials paid no attention to how he got to and from work because they had no reason to, the justice said.

In other conference action:, the justices:

•Declined to disturb an order of this district’s Div. Three, terminating a disbarred British lawyer’s suit against the Daily Mail.

The panel held in Mireskandari v. Associated Newspapers Limited, B262942, that the action ran afoul of the anti-SLAPP statute because it threatened the British tabloid’s free speech rights. That decision partially reversed Los Angeles Superior Court Judge Gerald Rosenberg, who had granted the company’s anti-SLAPP motion as to claims for common law intrusion and statutory information theft, but allowed a claim for false-light invasion of privacy to go forward.

Presiding Justice Lee S. Edmon, in her unpublished opinion, said it would have been impossible for Mireskandari to prevail on his claim that the company portrayed him falsely by reporting that he took a “leading role” in a fraudulent telemarketing business, and that he was a “convicted conman with bogus legal qualifications” and a “a fraudster who had conned his way into the UK legal profession.”

All of the statements were constitutionally protected, either as true or as opinion, Edmon said.

Mireskandari was represented briefly, at an early stage of the litigation, by the international law firm of Edwards Wildman Palmer LLP, which he sued for malpractice. That case is set for trial next year.

•Left standing the Fourth District, Div. One’s ruling allowing San Diego officials to close Cheetah’s Totally Nude, a strip club that gained fame when three City Council members were charged with trading their votes on a proposal to loosen the city’s nude entertainment ordinance in exchange for campaign contributions.

A hearing officer found that entertainers had repeatedly violated the ordinance by, among other things, touching, or allowing themselves to be touched by, patrons, and that owner Suzanne Coe was aware of the violations and was negligent in failing to stop them. The Court of Appeal panel, in Coe v. City of San Diego (2016) 3 Cal. App. 5th 772, rejected her arguments that the ordinance is unconstitutionally vague and that the city’s administrative procedures violated the Due Process Clause.

Coe, a South Carolina attorney and businesswoman, acquired the club after prior owner Michael Galardi pled guilty more than a decade ago to donating tens of thousands of dollars to then-Councilmembers Michael Zucchet, Ralph Inzunza, and Charles Lewis in exchange for their support, and other crimes. 

Galardi was sentenced to 30 months in prison.

Zucchet went free after his convictions on most of the counts were thrown out by the trial judge and prosecutors elected not to proceed on the two charges that remained. Inzunza was sentenced to 21 months and released in 2013, and Lewis died of liver disease before trial.


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