Judge: Anne Hwang, Case: 21STCV23086, Date: 2024-08-19 Tentative Ruling

Case Number: 21STCV23086    Hearing Date: August 19, 2024    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 and Motion for Summary Judgment, or in the alternative, Summary Adjudication; Memorandum of Points and Authorities

2.     Separate Statement of Undisputed Material Facts

3.     Defendants’ Appendix of Evidence in Support

OPPOSITION PAPERS

1.     Plaintiff’s Memorandum of Points and Authorities in Opposition

2.     Plaintiff’s Response to Defendants’ Separate Statement

3.     Plaintiff’s Evidentiary Objections to the Declaration of Jay Shaw

4.     Declaration of Guy T. Beasecker in Support

REPLY PAPERS

1.     Reply to Plaintiff’s Opposition

2.     Reply to Plaintiff’s Separate Statement

BACKGROUND

On June 21, 2021, Plaintiff Jingwei Huang (“Plaintiff”) filed a complaint against Defendants Call Pro’s Inc., Enterprise Fleet Management, Inc., Rooter Hero Plumbing, Inc., Kevin Eugene Bussey Jr., and Does 1 to 50 related to a pedestrian and motor vehicle collision.

Plaintiff alleges that the injury took place on March 15, 2021 and Kevin Eugene Bussey Jr. (“Bussey”) drove the subject car. Against Moving Defendants, Plaintiff alleges they owned the subject vehicle, negligently entrusted the vehicle to Bussey, and permitted use of the vehicle.[1]

Defendants Call Pro’s Inc., Rooter Hero Plumbing, LLC, Rooter Hero Plumbing, Inc., and Plumber Hero Inc. (“Defendants”) now move for summary judgment or adjudication on the following issues: (1) Bussey was not acting within the course and scope of employment with Rooter Hero Plumbing at the time of the incident; and (2) there is no triable issue of fact for the negligent entrustment claim.

Plaintiff opposes and Defendants reply.

LEGAL STANDARD

“[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”].)       

EVIDENTIARY OBJECTIONS

Plaintiff objects that the Declaration of Jay Shaw, Defendants’ HR Manager, does not provide adequate foundation or information to satisfy the business records hearsay exception. In reply, Defendant argues the exception applies because Shaw testified that the documents were “business records … maintained in the regular course and scope of the business operations.” (Reply, 3.)

Evidence Code section 1271 provides:

“Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered to prove the act, condition, or event if:

(a) The writing was made in the regular course of a business;

(b) The writing was made at or near the time of the act, condition, or event;

(c) The custodian or other qualified witness testifies to its identity and the mode of its preparation; and

(d) The sources of information and method and time of preparation were such as to indicate its trustworthiness.”

            Here, the Declaration of Jay Shaw states the following: “The following facts are within my own personal knowledge, and/or are known to be based on my investigation and review of the documents referenced herein which were created and/or are maintained by Defendants . . . in the regular course and scope of the business operations.” (Shaw Decl. ¶ 1.) He further declares that he has “been employed by Rooter Hero Plumbing as a HR Manager since 9/11/2023,” that he has “access to employee’s personnel records,” and that he has “reviewed Mr. Bussey’s personnel files including his work schedule, timesheet, and the vehicle storage requirements relevant at all times herein.” (Id. ¶¶ 2, 5, 9.) He then declares that true and correct copies of various documents are attached as Exhibits 1 through 5. (Id. ¶¶ 10-14.) The remainder of the declaration relating to Bussey appears to describe the information contained in the exhibits.

            Although Shaw declares that the documents were made in the regular course of business, he does not provide competent testimony that the documents were made at or near the time of the act, condition, or event, or the mode of their preparation.[2] (See, e.g., Rodwin Metals, Inc. v. Western Non-Ferrous Metals, Inc. (1970) 10 Cal.App.3d 219, 225 [“the trial court has some discretion in determining just how much proof concerning the ‘mode of preparation’ of a chemical analysis is required. In the present case, however, there was none at all.”].) Accordingly, the Court sustains Plaintiff’s objections to the Declaration of Jay Shaw and the attached exhibits 1 through 5,[3] except for Plaintiff’s objections 18, 20, and 26, which are overruled.

The Court declines to rule on Defendants’ objections as they have no effect on the ruling herein.   

DISCUSSION

Negligence and Negligent Entrustment

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].) 

Respondeat Superior

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.)

There are two tests for determining when an employee was “within the scope of employment.” Under the first test, “the employer is liable if the activities that caused the employee to become an instrument of danger to others were undertaken with the employer's permission and were of some benefit to the employer, or in the absence of proof of benefit, the activities constituted a customary incident of employment.” (Marez, supra, 48 Cal.App.5th at 577 [quoting Purton v. Marriott Internat., Inc. (2013) 218 Cal.App.4th 499, 509, 159 Cal.Rptr.3d 912 (Purton)].)

The second test (Halliburton Test) requires finding that “(1) the act performed was either required or incident to his duties or (2) the employee's misconduct could be reasonably foreseen by the employer in any event. [citation.]  In this test, foreseeability means that in the context of the particular enterprise, an employee's conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among the costs of the employer's business. [citation.]” (Marez, supra, 48 Cal.App.5th at 577.) 

Here, the following facts are undisputed. This case arises from a motor vehicle versus pedestrian accident that occurred on March 15, 2021 at approximately 8:01 a.m. (UMF 8.) Plaintiff has alleged claims for negligence, negligence entrustment, and violations of various Vehicle Code sections against Moving Defendants. (UMF 1.) Bussey was employed with Rooter Hero Plumbing and was the driver involved in the motor vehicle accident arising out of this lawsuit. (UMF 4.)  Bussey was driving a 2019 Chevrolet Express Van at the time of the accident. The van was owned by Enterprise Fleet Management, Inc. and leased by Rooter Hero Plumbing. (UMF 9.)

Bussey was hired by Rooter Hero Plumbing on March 8, 2021, as a plumbing service technician. (UMF 14.) In connection with his employment, Bussey was provided use of a company car. (UMF 15.)

In light of the evidentiary rulings herein, Defendants fail to offer admissible evidence to show that Bussey was not acting within the course and scope of employment, or that the vehicle was not negligently entrusted to him. As a result, Defendants fail to meet their initial burden. Therefore, the motion for summary judgment/adjudication is denied.

CONCLUSION AND ORDER

Based on the foregoing, Defendants Call Pro’s Inc., Rooter Hero Plumbing, LLC, Rooter Hero Plumbing, Inc., and Plumber Hero Inc.’s Motion for Summary Judgment/adjudication is DENIED.

            Defendants are ordered to give notice of this ruling and file a proof of service of such.