This decision affirms a summary judgment in favor of the at-fault driver’s employer in a post-work-day auto accident case. Plaintiff claimed that the telephone call that the driver was holding when the accident occurred related to the employer’s work since both parties to the call worked for the same employer, and argued that was sufficient to make the employer vicariously liable for the employee’s tort. The driver testified she was talking to the other party about non-work-related matters and that they were friends who talked often about personal matters by cellphone. Plaintiff’s only contrary evidence was cellphone records showing few if any calls between the two. The decision holds that this was not enough to raise a triable issue of fact. That the driver had a motive to lie to preserve her employment was insufficient since most summary judgment evidence is similarly motivated. Also, the cellphone records merely gave a reason to discredit the driver’s testimony but discrediting testimony doesn’t prove that the contrary facts are true. Plaintiff had to produce evidence of the work-related nature of the call, not just reason to disbelieve the driver’s contrary testimony in order to raise a triable issue of fact. To the extent Donchin v. Guerrero (1995) 34 Cal.App.4th 1832 suggests otherwise, it is wrongly reasoned.
California Court of Appeal, Fourth District, Division 3 (Ikola, J.); September 21, 2018; 27 Cal. App. 5th 487