One of the downsides of writing your opinion before oral argument is that you're not especially able to incorporate recent developments into your analysis.
Here's a perfect example.
It's another employee coming-and-going respondeat superior case. Employee. Auto accident. Coming or going to work. Is the employer liable for the accident?
Just a couple of weeks ago, the Court of Appeal decided a case that reversed the grant of summary judgment to the employer in a starkly similar case (which I discussed here). The employee in that case was driving her personal vehicle to a frozen yogurt store on her way to yoga after leaving work, and the Court of Appeal held that the employer might be liable. In the present case, the employee's has just finished some similarly personal errands (going to lunch with his wife), but was (1) on his way back to work, and (2) driving his employer's vehicle. So you'd think the case for employer liability would be even stronger.
Nope. The Court of Appeal affirms the grant of summary judgment to the employer.
The Court of Appeal drops a footnote that discusses the latest case, which was mentioned at oral argument. But the footnote merely describes the case. Doesn't attempt to distinguish it. Doesn't attempt to say if that analysis is right or wrong. Just says (essentially): "Yep, we're aware of it."
I think you gotta do more. The two cases are sharply similar. Seems to be one of them's got to be wrong.
As a pair of cases, maybe it's worth taking both of these up to the California Supreme Court. It doesn't make sense that whether an employer's liable should depend entirely upon what particular appellate panel the parties happen to draw. And this stuff happens with sufficient frequency -- which is to say, every single day -- that having the Court step in and articulate a uniform rule makes sense. Taking both cases would also not only highlight the various factual underpinnings of these types of cases, but would also make sure that there's a case on both sides for the Court to consider.
Politics makes strange bedfellows. Maybe counsel for defendants in Moradi (the earlier case) should get together with counsel for plaintiffs in this case and file coordinated petitions for review. I think that'd present a pretty persuasive petition.
And my bet's that one of the two parties would obtain a reversal of their loss.