Judge Anne Hwang, Case Number: 21STCV18410, Date: 2024-08-13 Tentative Ruling

PLEASE NOTE: Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached. If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit. The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling. If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court. If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely. Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court.

1. Notice of Motion and Motion for Summary Judgment or in the alternative, Summary Adjudication

On June 29, 2023, Plaintiff Farhad Beroukhim (“Plaintiff”) filed the operative first amended complaint (“FAC”) against Defendants Angel Daniel Correa Ramirez, George’s and George’s LLC, Miguel Angel Correa, Geller Group, and Does 1 to 50 based on an alleged motor vehicle accident. The form complaint alleges that on February 27, 2021, “Plaintiffs vehicle was struck by Defendants' vehicle which made an unsafe lane change.” (FAC, 4.)

Plaintiff asserts a negligence cause of action and alleges that Moving Defendant George’s and George’s LLC (“Defendant”) operated the vehicle, employed the person who operated the vehicle, owned the vehicle which was operated with its permission, entrusted the vehicle, and was the agent and employees of the other defendants.

Defendant now moves for summary judgment or alternatively, summary adjudication, arguing that the subject vehicle had been stolen by co-defendant Angel Daniel Correa Ramirez. Plaintiff opposes and Defendant replies.

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law[.] There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.”¿(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).) ¿“[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Ibid.; Smith v. Wells Fargo Bank, N.A. (2005) 135 Cal.App.4th 1463, 1474 [summary judgment standards held by Aguilar apply to summary adjudication motions].) Further, in line with Aguilar v. Atlantic Richfield Co., “[o]n a motion for summary adjudication, the trial court has no discretion to exercise. If a triable issue of material fact exists as to the challenged causes of action, the motion must be denied. If there is no triable issue of fact, the motion must be granted.” (Fisherman's Wharf Bay Cruise Corp. v. Superior Court (2003) 114 Cal.App.4th 309, 320.) .) “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382.)

“On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues. Only when the inferences are indisputable may the court decide the issues as a matter of law. If the evidence is in conflict, the factual issues must be resolved by trial.” (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839 [cleaned up].) Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true. Nor may the trial court grant summary judgment based on the court's evaluation of credibility.” (Id. at p. 840 [cleaned up]; see also Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].)

The Court grants the request for judicial notice of Plaintiff’s first amended complaint. (Evid. Code § 452(d).)

The Court makes the following rulings on Plaintiff’s objections to Defendant’s evidence:

1. Overruled. In reply, Defendant filed a Notice of Errata which contains the two pages of the deposition transcript of Adam Hughes where he states he is the General Manager of LV Cars, which is a dealership in Las Vegas and a subsidiary of George’s, LLC. (Notice of Errata, Exh. A, Hughes Depo., 11:22-12:23.)[1] (See Forest Lawn Memorial-Park Ass’n v. Superior Court (2021) 70 Cal.App.5th 1, 8 [“A statement lacks foundation if no jury could reasonably find that the witness has personal knowledge of the matter.”] [Citation and alterations omitted, emphasis in original.].)

5. Sustained to the extent the testimony relies on payroll and employee files. (Evid. Code § 1272.)

The elements of a cause of action for negligence are: (1) a duty on the part of defendant toward plaintiff; (2) defendant’s breach of that duty; and (3) harm to the plaintiff caused by that breach. (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1142.)

Generally, “one who places or entrusts his [or her] motor vehicle in the hands of one whom he [or she] knows, or from the circumstances is charged with knowing, is incompetent or unfit to drive, may be held liable for an injury inflicted by the use made thereof by that driver, provided the plaintiff can establish that the injury complained of was proximately caused by the driver's disqualification, incompetency, inexperience or recklessness.” (Flores v. Enterprise Rent-A-Car Co. (2010) 188 Cal.App.4th 1055, 1063 [quoting Osborn v. Hertz Corp. (1988) 205 Cal.App.3d 703, 708] [alteration in original; citation omitted].)

“Absent ‘special circumstances,’ the owner or bailee of a motor vehicle has no duty to protect third persons against the possibility a thief will steal the vehicle and injure them with it. [Citation.] Leaving the keys in the ignition, and the vehicle unlocked and unattended, is not by itself one of these special circumstances.” (May v. Nine Plus Properties, Inc. (2006) 143 Cal.App.4th 1538, 1541.)

“Every owner of a motor vehicle is liable and responsible for death or injury to person or property resulting from a negligent or wrongful act or omission in the operation of the motor vehicle, in the business of the owner or otherwise, by any person using or operating the same with the permission, express or implied, of the owner.”

“The liability which [section 17150] imposes upon the owner of a motor vehicle is predicated upon a theory of imputed negligence in cases where the principle of respondeat superior is inapplicable. This section defines the owner's liability in such cases ‘in order to make him liable for the negligence of any person to whom he had expressly or impliedly given permission to Operate his car, and thereby prevent him from escaping liability by saying that his car was being used without express authority or not in his business. (Citations.)’ (Emphasis added.) The foundation of an owner's liability under section 17150 is the permission, express or implied, given by the owner to another to use the motor vehicle.” (Glens Falls Ins. Co. v. Consolidated Freightways (1966) 242 Cal.App.2d 774, 778-79 [internal citations omitted].)

An employer is vicariously liable for an employee’s tort under the doctrine of respondeat superior if the tort was committed within the scope of the employment. (See Montague v. AMN Healthcare, Inc. (2014) 223 Cal.App.4th 1515, 1520.) “[A]n employee must be driving a personal vehicle in the course and scope of his employment at the time of the accident to extend vicarious liability to an employer.” (Newland v. County of Los Angeles (2018) 24 Cal.App.5th 676, 678–79.) “A plaintiff suing an employer under the doctrine must prove the person who committed the tort was acting within the scope of his or her employment.” (Marez v. Lyft, Inc. (2020) 48 Cal.App.5th 569, 577.)

Here, the following is undisputed. Plaintiff claims he was involved in a motor vehicle incident with a 2020 Lamborghini, License No. NX513682 on February 27, 2021. (UMF 1.) At the time of the Subject Incident, the Defendant Vehicle was being driven by Defendant Angel Daniel Correa Ramirez ("Ramirez"). (UMF 2.)

- The Defendant Vehicle was in California during its transport to LV Cars on February 27, 2021, as Gellar Group was delivering another vehicle to a LV Cars' affiliate in Los Angeles. (UMF 6.)

- Ramirez did not have George's permission to operate the Defendant Vehicle on the date of the Subject Incident.[2] (UMF 8.)

Although Defendant does not produce conclusive admissible evidence showing that Ramirez stole the subject vehicle, it produces sufficient evidence that Ramirez did not have permission to drive the vehicle and was not an employee of Defendant. Therefore, it meets its initial burden to show it is not liable. The burden shifts to Plaintiff to establish a triable issue of fact.

Plaintiff has not produced evidence in opposition and appears to only dispute Defendant’s facts based on evidentiary objections. Accordingly, the Court finds based on the evidence presented and all reasonable inferences the absence of a triable issue of fact.

Based on the foregoing, Defendant George’s and George’s LLC’s Motion for Summary Judgment is GRANTED. Defendant shall file a proposed judgment within 10 days.

Defendant is ordered to give notice of this ruling and file a proof of service of such.

[1] While additional evidentiary matter submitted with the reply ordinarily should not be allowed, the court has discretion to consider it as long as the party opposing the motion for summary judgment has notice and an opportunity to respond to the new material. (Plenger v. Alza Corp. (1992) 11 Cal.App.4th 349, 362, fn. 8.) The Court notes that the missing pages identifying the witness are part of the deposition in this case, where counsel was present. Accordingly, Plaintiff’s argument that this testimony is from “a completely unknown person” is not well taken. (Opposition at p. 5.)

[2] Plaintiff did not object to Gantchev’s declaration at paragraph 8.

[3] Plaintiff did not object to Gantchev’s declaration at paragraph 9 on hearsay grounds, but only the basis that this paragraph lacks foundation as to “agent.”

DEPT:	32
HEARING DATE:	August 13, 2024
CASE NUMBER:	21STCV18410
MOTIONS:	Motion for Summary Judgment, or in the alternative, Summary Adjudication
MOVING PARTY:	Defendant George’s and George’s LLC
OPPOSING PARTY:	Plaintiff Farhad Beroukhim