Filed 3/16/15 Rodriguez v. Grayd A Metals CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

ALBERTO RODRIGUEZ et al.,

 Plaintiffs and Appellants,

v.

GRAYD A METALS,

 Defendant and Respondent.

 G049962

 (Super. Ct. No. 30-2012-00601306)

 O P I N I O N 

Appeal from a judgment of the Superior Court of Orange County, Janet C. 

Pesak, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.

John L. Dodd & Associates, John L. Dodd, Andrea F. Jackson; Law Offices 

of Timothy J. Donahue and Timothy J. Donahue for Plaintiffs and Appellants.

Michael Maguire & Associates, Paul Kevin Wood and Juan C. Delgado for 

Defendant and Respondent.

* * *
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Plaintiffs Alberto Rodriguez and Antonio Jimenez appeal from a summary 

judgment granted in favor of defendant Grayd A Metals. Plaintiffs’ vehicle was struck 

by an employee of Grayd A Metals, and plaintiffs seek damages under a theory of 

respondeat superior. They contend the employee was on his way to a welding class held

at Fullerton Community College based on the encouragement of Grayd A Metals. To 

establish this fact, plaintiffs relied on a declaration from an individual who had been in a 

minor car accident with the same employee only minutes before the accident at issue. 

The driver of the other car declared that the employee stated he was on his way to a 

welding class held at Fullerton Community College. The trial court excluded this 

declaration on the basis that the declarant failed to include boilerplate language that the 

declaration was based on personal knowledge, and on the basis that it included 

inadmissible hearsay. Plaintiffs claim this was error.

Grayd A Metals makes little attempt to defend the court’s evidentiary 

rulings, but instead argues the summary judgment should be affirmed because, even 

conceding the error and that the employee was on his way to a welding class as a result of 

encouragement from his supervisor, there is not a sufficient nexus between that trip and 

the employee’s duties on the job to warrant liability under respondeat superior. 

Alternatively, plaintiffs argue the court abused its discretion by denying 

their request for a continuance to obtain additional discovery. In particular, plaintiffs’

counsel declared that a recent deposition of Grayd A Metals’ timekeeper revealed that a 

portion of the employee’s time card for the day of the accident had been altered with 

correction fluid. However, counsel did not yet have a transcript at the time of filing 

plaintiffs’ opposition.

We agree the court’s evidentiary rulings were error, but we also agree with 

Grayd A Metals that it made no difference because the evidence was insufficient to 

establish respondeat superior liability in any event. Further, we conclude the court’s 
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ruling on the continuance was harmless because evidence of the time record alteration 

was insufficient to create liability. Accordingly, we affirm.

FACTS

Michael Harding was employed by Grayd A Metals as a welding fabricator 

on April 13, 2012, the date of the car accident. That day, Harding worked a shift from 

4:30 a.m. to 12:30 p.m. After he left work, he had two accidents. The first was a minor 

“fender bender” in which he was not hurt. The second, the accident at issue, was a more 

serious accident. It resulted in Harding being hospitalized for three to four weeks with a 

fractured ankle, injuries to his rib cage, internal bleeding, injury to his spleen, and a 

broken nose. Plaintiffs allege they were also injured in this accident. Harding does not 

remember how the accident was caused. He describes having a hole in his memory. He 

simply remembers waking up in the hospital.

Grayd A Metals had a policy of reimbursing welders, such as Harding, for 

attending classes pertaining to the metal fabricating industry. Harding would be eligible 

for promotions by increasing his knowledge. Harding was told by his supervisor that he 

would have to attend classes to do so. Harding had informed William Gray, the vice 

president of the company, that he was taking a mechanical drawing class, to which Gray 

responded, “[G]ood job.” He was taking this class in the spring of 2012.

The principal disputed issue of fact was whether Harding was on his way to 

a work-related class at the time of the accident. Harding testified in his deposition that he 

was on his way home after work and “off the clock.” Plaintiffs produced a declaration 

from Alex Avalos, the other individual involved in the first of Harding’s accidents. 

Avalos declared he had a conversation with Harding after the accident in which Harding 

stated he was on his way to Fullerton Community College to take a welding class. Grayd 

A Metals objected to this declaration.
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The court granted summary judgment and sustained the objection to the 

Avalos declaration. With respect to the declaration, the court found it was insufficient 

because Avalos did not include the usual boilerplate language that his declaration was 

made based on personal knowledge. The court also ruled the Avalos declaration was 

hearsay. Summary judgment was granted on the ground that plaintiffs had not met their 

burden to show “Harding was acting within the scope of his employment or that there 

was any incident[]al benefit to his employer . . . .” Plaintiffs subsequently filed a motion 

for new trial, which was denied. Plaintiffs’ timely appealed the judgment.

DISCUSSION

The principal focus of plaintiffs’ brief is their contention that the court 

erred by excluding the Avalos declaration. We agree the court erred in excluding the 

declaration, but also conclude the evidence was insufficient to establish the respondeat 

superior liability of Grayd A Metals. 

The first ground on which the court excluded the declaration was that it did 

not contain a boilerplate statement that the declaration was based on personal knowledge. 

This was plainly error. “The requirement of [Code of Civil Procedure section 437c] is 

not that the declarant recite the conclusion that he can competently testify but that he 

allege facts showing his competence.” (Roy Brothers Drilling Co. v. Jones (1981) 123 

Cal.App.3d 175, 182.)

Here, Avalos declared he was personally involved in an accident with 

Harding on April 13, 2012. He then declared he personally had a conversation with 

Harding in which Harding claimed to be on his way to a welding class held at Fullerton 

Community College. Plainly, Avalos, being personally involved, had personal 

knowledge of these facts. He did not need to recite a formulaic conclusion to establish 

his personal knowledge. The court’s ruling was in error.
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The court also ruled Avalos’s recitation of Harding’s statement was 

inadmissible hearsay. This was also error. Harding testified in deposition that he was on 

his way home. His hearsay statement to Avalos that he was on his way to class is 

admissible as a prior inconsistent statement. (Evid. Code, § 1235.)

Grayd A Metals only halfheartedly defends the court’s evidentiary rulings; 

it spends the bulk of its brief arguing that, even if Harding had been on his way to a 

welding class, it would be insufficient to establish liability under the doctrine of 

respondeat superior. We agree. 

“The standard of review on a motion for summary judgment or summary 

adjudication is familiar. A defendant meets his or her burden in a summary adjudication 

motion ‘by negating an essential element of the plaintiff’s case, or by establishing a 

complete defense, or by demonstrating the absence of evidence to support the plaintiff’s 

case.’ [Citations.] ‘We review questions of law as well as orders granting summary 

adjudication under the de novo standard of review.’” (Angelica Textile Services, Inc. v. 

Park (2013) 220 Cal.App.4th 495, 504.)

In contending plaintiffs cannot establish liability under respondeat superior, 

Grayd A Metals relies heavily on Blackman v. Great American First Savings Bank (1991) 

233 Cal.App.3d 598 (Blackman). Because Blackman is so closely on point, we quote 

from it extensively. 

In Blackman the plaintiff was injured in a car accident with an employee of 

the defendant Great American First Savings Bank (Great American). “At the time of the 

collision, [employee] was leaving the Great American parking lot and intending to drive 

to San Diego State University. [Employee], a full-time Great American payroll 

accountant, was pursuing a business administration degree with emphasis in accounting 

under Great American’s educational assistance program, which provided her with 

financial aid. In return, [employee] signed a contract which stated she agreed to remain 

an employee of Great American for five years, or reimburse a portion of the tuition-
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related funds provided by her employer.” (Blackman, supra, 233 Cal.App.3d at p. 601.) 

Great American’s educational assistance program “reimburse[d employee] for her tuition 

and book expenses for all relevant courses.” (Ibid.) Plaintiff sought to hold Great 

American liable under respondeat superior. (Id. at p. 602.)

“Under the doctrine of respondeat superior, an employer is liable for those 

torts committed by employees acting within the scope of their employment.” (Blackman, 

supra, 233 Cal.App.3d at p. 602.) “In analyzing cases of vicarious liability, the inquiry 

should be whether the risk may fairly be regarded as typical of, or broadly incidental to, 

the employer’s business. [Citation.] The risk arising out of the employment should not 

be so unusual or startling that it would seem unfair to include the loss resulting from it 

among other costs of the employer’s business.” (Id. at p. 604.) “The going-and-coming 

doctrine states an employee is outside the scope of his employment while engaged in the 

ordinary commute to and from his place of work. [Citation.] This rule is based on the 

principle that the employment relationship is suspended from the time the employee 

leaves his place of work until he returns.” (Id. at p. 602.) “Although an exception to the 

going-and-coming rule will be made when the trip involves an incidental benefit to the 

employer, the benefit must be sufficient enough to justify making the employer 

responsible for the risks inherent in the travel.” (Id. at p. 604.)

“The special errand doctrine is an exception to the going-and-coming rule 

which states an employee is within the scope of his employment while coming from 

home or returning to it while on a special errand either as part of his regular duties or at a 

specific order or request of his employer.” (Blackman, supra, 233 Cal.App.3d at p. 602.)

“Generally, whether an employee is within the scope of employment is a 

question of fact; however, when the facts of a case are undisputed and conflicting 

inferences may not be drawn from those facts, whether an employee is acting within the 

scope of employment is a question of law.” (Blackman, supra, 233 Cal.App.3d at p. 

602.)
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The Blackman court concluded that under these doctrines, Great American 

could not be held liable under respondeat superior: “Here, notwithstanding Great 

American’s apparent view that they would receive a benefit from [employee’s] college 

attendance, the reimbursement for college coursework can only be seen as broadly 

collateral to Great American’s business, banking. Although Great American may have 

enhanced its banking business by facilitating its employees’ educational advancement, 

the schoolwork has no direct impact on the day-to-day banking operations and the benefit 

is derived only indirectly over time.” (Blackman, supra, 233 Cal.App.3d at p. 604.)

Grayd A Metals contends Blackman is on all fours, and we agree. Plaintiffs 

argue it is distinguishable because, in Blackman, Great American produced extensive 

evidence documenting its educational assistance program, establishing that it was a 

voluntary program that only 1 to 2 percent of employees took advantage of. (Blackman, 

supra, 233 Cal.App.3d at p. 602.) As plaintiffs stated, Grayd A Metals did “not state one 

single fact in its separate statement of facts indicating Harding was not required to take 

the welding class in order to be a welder for” Grayd A Metals. The flaw in plaintiffs’

response, however, is that “‘[t]he burden of proof is on the plaintiff to demonstrate that 

the negligent act was committed within the scope of employment.’” (Halliburton Energy 

Services, Inc. v. Department of Transportation (2013) 220 Cal.App.4th 87, 94.) It was 

not Grayd A Metals’ burden to show Harding’s class was not a substantial benefit to the 

company or a special errand; rather, it was plaintiff’s burden to show that it was. Here, 

the evidence shows no more than Grayd A Metals encouraged employees to increase 

their education, and that the company would reimburse employees for the costs of 

relevant course work, but nothing more. There is no evidence that Grayd A Metals 

required, or even requested, that Harding take a welding class. Under these 

circumstances, Blackman is persuasive and plaintiffs did not establish liability under 

respondeat superior.
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In the alterative, plaintiffs contend the court abused its discretion in 

denying a continuance to obtain additional evidence. In their opposition to the summary 

judgment motion, plaintiffs requested a continuance. Their counsel declared that on 

December 6, 2013, he had taken the deposition of Christine Gray (Grayd A Metals’ time 

keeper), who testified that, “the time recorded on April 13, 2012 was changed with”

correction fluid. He had not yet obtained a transcript of the deposition.

1

 Plaintiffs’ 

counsel stated that he had scheduled the deposition “earlier,” but had continued the 

deposition based on defense counsel’s request as a professional courtesy. Plaintiffs’ 

counsel also claimed he had requested documents and information from defendants that 

would show Harding was, in fact, on his way to a work-related class. The court denied 

the continuance, stating, “To get a continuance for evidence you have to demonstrate 

diligence.”

“An opposing party’s declaration in support of a motion to continue the 

summary judgment hearing should show the following: (1) ‘Facts establishing a 

likelihood that controverting evidence may exist and why the information sought is 

essential to opposing the motion’; (2) ‘The specific reasons why such evidence cannot be 

presented at the present time’; (3) ‘An estimate of the time necessary to obtain such 

evidence’; and (4) ‘The specific steps or procedures the opposing party intends to utilize 

to obtain such evidence.’” (Johnson v. Alameda County Medical Center (2012) 205 

Cal.App.4th 521, 532.) Counsel’s declaration fell far short of these requirements. We 

are not enlightened as to what “documents and information” had been requested, or when 

 

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Plaintiffs’ counsel’s declaration did not state he had not yet received the 

transcript. Counsel filed a demand to Grayd A Metals to lodge the deposition transcript, 

but Grayd A Metals responded that it did not have a copy of the transcript, and pointed 

out the deposition had been noticed by plaintiffs. By the time of the hearing, plaintiffs’ 

counsel had apparently obtained a copy of the transcript, and further recited that he asked 

Christine Gray why the time card was altered with correction fluid and what was 

underneath the correction fluid, to which she responded “I don’t know” to both questions.
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the information was requested, much less how that information, whatever it was, may 

show that Harding was on his way to a “work-related class.” Further, as discussed above, 

a mere showing that Harding was on his way to a work-related class is insufficient, 

without more, to establish respondeat superior liability. We also note that the hearing on 

the summary judgment motion was held on December 27, 2013, just 31 days before the 

scheduled trial date. The discovery cutoff date was only one day away (see Code Civ. 

Proc. § 2024.020, subd. (a)), after the case had been pending for 15 months, and the 

summary judgment motion had been pending for 135 days. Plaintiffs did not request an 

extension of the discovery cutoff date or a continuance of trial. Time had essentially run 

out. 

To the extent counsel believed he needed the actual transcript of Christine 

Gray’s deposition, the ruling on the continuance was harmless because counsel’s 

declaration was sufficient to put Christine Gray’s testimony at issue. There was no 

objection to that testimony, and plaintiffs cited it in their response to the separate 

statement of facts. The real issue is whether that evidence was sufficient to create a 

disputed issue of fact. We conclude it was not.

Counsel’s declaration was simply that Christine Gray had testified that a 

time recorded on the time card had been altered with correction fluid. We have reviewed 

the time card, and there are multiple times written on the card by a machine stamp, and 

some notations in handwriting, apparently for the purpose of subtracting the time stamps 

to determine the number of hours worked. It is not obvious that the time card had been 

altered with correction fluid. But even if we accept that a time was altered, we do not 

know which of several entries, and thus we do not know what inference can be drawn 

against Grayd A Metals. Furthermore, plaintiffs did not cite any authority either at trial 

or on appeal demonstrating what difference such an inference, whatever it is, could have 

made, given that we have already determined above that there is no respondeat superior 
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liability for traveling to a work-related class under the circumstances shown by the 

evidence. Accordingly, we affirm.

DISPOSITION

The judgment is affirmed. Grayd A Metals shall recover its costs incurred 

on appeal.

IKOLA, J.

WE CONCUR:

O’LEARY, P. J.

MOORE, J.