Judge: Anne Hwang, Case: 21STCV22827, Date: 2023-12-01 Tentative Ruling

Case Number: 21STCV22827    Hearing Date: December 1, 2023    Dept: 32

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. 

TENTATIVE RULING

MOVING PAPERS:

1. Notice of Motion for Summary Judgment, or in the Alternative Summary Adjudication; Memorandum of Points and Authorities
2. Separate Statement of Undisputed Material Facts in Support of Motion for Summary Judgment, or in the Alternative Summary Adjudication[1]
3. Declaration of Gina Schifano
4. Declaration of Steven Hepps
5. Declaration of Tim Grau

OPPOSITION PAPERS:

1. Plaintiff’s Opposition
2. Plaintiff’s Separate Statement of Undisputed Facts
3. Plaintiff’s Objections to Evidence
4. Declaration of Irving Pedroza

REPLY PAPERS:

1. Reply Brief
2. Response to Plaintiff’s Separate Statement
3. Response to Plaintiff’s Objections to Evidence
4. Supplemental Separate Statement
5. Supplemental Declaration of Steven Hepps

BACKGROUND

On June 18, 2021, Plaintiff Makenna Brown (Plaintiff) filed a complaint against Defendants Muhamad Akhtar, David Hanrahan, Myles Ahead Concierge Service, Gregory Lewis, Fremantle Productions North America, Inc., Family Feud, and Does 1 to 50 for negligence surrounding a motor vehicle accident. Plaintiff alleges the incident occurred on June 24, 2019 while she was a passenger in a vehicle driven by Defendant Muhamad Akhtar (Akhtar). Plaintiff alleges that Moving Defendant Fremantle Productions North America, Inc. (Fremantle) owned, operated, and entrusted the subject vehicle, and employed the driver. Plaintiff also alleges that the driver Akhtar and Myles Ahead Concierge Service (Myles Ahead) were Fremantle’s agents.  

Fremantle now moves for summary judgment, or in the alternative, summary adjudication arguing that it did not: (1) operate, employ, entrust, or own the subject vehicle; or (2) create an agency relationship with anyone involved in the incident, thereby precluding vicarious liability. Fremantle also argues that a Release signed by Plaintiff precludes any recovery. Plaintiff opposes and Fremantle replies.

LEGAL STANDARD – SUMMARY JUDGMENT

“[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.)  “[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.)

“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”].) 

EVIDENTIARY OBJECTIONS

The Court overrules Plaintiff’s objections to Fremantle’s evidence.

DISCUSSION

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.)

“A corporation may be held vicariously liable as a principal for the torts of its agents.” (Secci v. United Independant Taxi Drivers, Inc. (2017) 8 Cal.App.5th 846, 855.) “ ‘Whether a person performing work for another is an agent or an independent contractor depends primarily upon whether the one for whom the work is done has the legal right to control the activities of the alleged agent.’ [citation omitted.] ‘Actual agency typically arises by express agreement. [Citations.].... [¶] ‘Agency is the relationship which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act.’ [Citation.] ‘The principal must in some manner indicate that the agent is to act for him, and the agent must act or agree to act on his behalf and subject to his control.’ [Citation.] Thus, the ‘formation of an agency relationship is a bilateral matter. Words or conduct by both principal and agent are necessary to create the relationship ....’ [Citation.] [citation omitted.] ‘In the absence of the essential characteristic of the right of control, there is no true agency....’ [Citations.] [¶] ‘The fact that parties had a preexisting relationship is not sufficient to make one party the agent for the other.... [Citation.] An agency is proved by evidence that the person for whom the work was performed had the right to control the activities of the alleged agent.” (Id.)

 “ ‘Ostensible authority is such as a principal, intentionally or by want of ordinary care, causes or allows a third person to believe the agent to possess.’ (Civ. Code § 2317; see Civ. Code § 2316 [actual authority defined].) A corollary derived from this principle is that ostensible authority of an agent cannot be based solely upon the agent’s conduct.” (Pierson v. Helmerich & Payne Internat. Drilling Co. (2016) 4 Cal.App.5th 608, 635.) Therefore, “[a] defendant may be held liable as a ‘principal’ for the acts of the defendant's ostensible agent (that is, the third party who is not actually his agent) only if (1) the plaintiff, when dealing with the agent, did so ‘with [a reasonable] belief in the agent's authority,’ (2) that ‘belief [was] generated by some act or neglect by the principal,’ and (3) the plaintiff was not negligent in relying on the agent's apparent authority.” (Pereda v. Atos Jiu Jitsu LLC (2022) 85 Cal.App.5th 759, 768.)

Whether an entity is the ostensible agent of another is a typically a question of fact for the jury, but may be decided as a matter of law on summary judgment when neither the evidence nor inferences are in conflict. (Id. at 771.)

Here, Fremantle is the company that produces the game show, Family Feud. Plaintiff was a contestant on Family Feud, and as a result, Fremantle arranged for Plaintiff’s travel on June 24, 2019, including being picked up at the airport by a Myles Ahead driver. The alleged incident occurred while Plaintiff was being driven from the airport to her hotel.

Fremantle argues it did not create an agency relationship with anyone involved in the motor vehicle accident.

Fremantle offers the following facts:

-          MYLES AHEAD CONCIERGE SERVICE is a business entity NOT owned or operated by FREMANTLE. (UMF 5.)

-          MYLES AHEAD CONCIERGE SERVICE provided a rate sheet to FREMANTLE stating the costs for transporting patrons. (UMF 6.)

-          FREMANTLE arranged transportation for the Brown Family to/from the Airport and Hotel. (UMF 7.)

-          FREMANTLE did not own, control, direct MYLES AHEAD regarding its business operations. (UMF 8.)

-          FREMANTLE did not own, maintain, or operate the vehicle in which Plaintiff was riding when the collision occurred. (UMF 9.)

-          FREEMANTLE did not provide instructions regarding who was to pick up Plaintiff, what vehicle to use to transport her to the hotel, what route to take, or how to drive. (UMF 10.)

-          FREMANTLE was not operating the vehicle in which Plaintiff was a passenger when the accident happened. (UMF 11.)

-          FREMANTLE did not employ anyone who was operating a vehicle at the time of the accident. (UMF 12.)

-          FREMANTLE did not entrust to MYLES AHEAD or AKHTAR any motor vehicle involved in the accident. (UMF 15.)

-          FREMANTLE was not the agent of any other Defendants in this matter. (UMF 16.)

-          FREMANTLE did not employ any of the Defendants in this matter. (UMF 17.)

-          Plaintiff Makenna Brown signed a “Family Feud” Contestant Release Agreement on June 25, 2019. (UMF 19.)

Plaintiff offers the following facts:

-          Plaintiff was given a telephone number by Family Feud to call when she arrived at the airport to tell the driver we were ready to be picked up. (PAMF 4.)

-          About 20 minutes after she called the number given to her by Family Feud personnel, Plaintiff was notified that the driver had arrived to take her from the airport to the hotel. (PAMF 5.)

-          Plaintiff Makenna Brown signed the subject “Release” on the date of filming, June 25, 2019, the day after her collision. (PAMF 12.)

-          Paragraph 14 on page 4 of the “Release” states: “All travel I undertake in connection with the taping of the Program will be at my sole risk.” (PAMF 13.)

-          Paragraph 20 on page 5 of the “Release” states: “I am aware that this is a release of liability for future injuries and a contract between me and, Wanderlust Productions Inc. and/or its affiliated organizations, and sign it of my own free will…” (PAMF 14.)

-          Prior to the subject collision, Freemantle had been hiring Myles Ahead to transport their contestants for 12 years. (PAMF 15.)

-          Since the subject incident, Freemantle has continued to use Myles Ahead as their contestant transportation, sending them to drive contestants at least 47 times since the incident. (PAMF 16.)

-          Freemantle pays Myles Ahead to transport contestants of the Program. (PAMF 19.)

-          Fremantle instructs Myles Ahead on what types of vehicles to use when transporting Family Feud contestants. (PAMF 21.)

Here, Fremantle has met its burden to show that there is no triable issue of fact regarding whether it operated or owned the subject vehicle. It also has met its burden to show that there is no triable issue of fact regarding an actual agency relationship between Myles Ahead, Akhtar, and itself because it did not exercise the requisite amount of control over Myles Ahead’s activities.  However, Fremantle fails to set forth sufficient evidence to demonstrate that there is no triable issue of fact regarding ostensible authority. For example, Fremantle’s evidence does not address its acts or omissions that would give Plaintiff a reasonable belief in Myles Ahead’s authority, or whether Plaintiff knew or should have known that the driver was not acting on behalf of Fremantle. Therefore, Fremantle fails to meet its burden regarding agency.

Next, Fremantle argues that Plaintiff signed a Contestant Release Agreement (Release) on June 25, 2019. (UMF 19.) Contract principles apply when interpreting a release; normally, the meaning of contract language is a question of law. (Huverserian v. Catalina Scuba Luv, Inc. (2010) 184 Cal.App.4th 1462, 1466.) A release does not need to be perfect. “As long as the release constitutes a clear and unequivocal waiver with specific reference to a defendant's negligence, it will be sufficient. [Citations.] For it to be valid and enforceable, a written release exculpating a tortfeasor from liability for future negligence or misconduct must be clear, unambiguous and explicit in expressing the intent of the parties. [Citation.] If a tortfeasor is to be released from such liability the language used ‘must be clear, explicit and comprehensible in each of its essential details. Such an agreement, read as a whole, must clearly notify the prospective releasor or indemnitor of the effect of signing the agreement.’ [Citation.]” [citations omitted.] (Paralift, Inc. v. Superior Court (1993) 23 Cal.App.4th 748, 755.)

The release states in relevant part: “All travel I undertake in connection with the taping of the Program will be at my sole risk.” (Grau Decl., Exh. E. ¶ 15.) Plaintiff argues that the language “will be” only addresses future claims. Plaintiff also argues the release also states: “I am aware that this is a release of liability for future injuries . . .” (Id., Exh. E ¶ 20.)

Here, because the Release contains language that it involves future injuries, it is unclear whether the release pertained to the subject accident the day before. Additionally, though Fremantle argues Plaintiff waived her rights under Civil Code section 1542, it does not show whether the Release was general; instead, based on the above, it appears the Release only involved future injuries. Since Plaintiff signed the release the day after the accident, without any language that it applies retroactively, Fremantle has not established the absence of a triable issue of fact that the release bars the claims at issue here.

Fremantle’s Notice of Motion identifies three issues for summary adjudication. However, issues one and two involve the issue of agency. Issue three involves the Release. Therefore, the motion for summary adjudication is denied.

CONCLUSION AND ORDER

            Based on the foregoing, Fremantle Productions North America, Inc.’s Motion for Summary Judgment/Adjudication is DENIED.

Moving Defendant shall provide notice of this ruling and file a proof of service of such.