Judge: Ashfaq G. Chowdhury, Case: 22GDCV00954, Date: 2024-03-22 Tentative Ruling

Case Number: 22GDCV00954    Hearing Date: March 22, 2024    Dept: E

Hearing Date: 03/22/2024 – 8:30am

Case No:   22GDCV00954
Trial Date: 06/10/2024

Case Name: ASHKEN SARGSYAN, an individual; v. ARYAN KHODABAKHSIAN, an individual; VICTOR KHODABAKHSIAN; an individual; EDITA ZARGARYAN, an individual; and DOES 1-50 inclusive

[MOTION FOR SUMMARY ADJUDICATION] 

RELIEF REQUESTED
“Defendant, Edita Zargayan, moves the Court for an order granting summary adjudication in her favor and against Plaintiff Ashkhen Sargsyan (“Plaintiff”) on Plaintiff’s cause of action for negligent entrustment, pursuant to section 43c of the Code of Civil Procedure.

The motion will be made on the following grounds:

1. There is no evidence that Ms. Zargaryan, the purported lessee of the vehicle involved in the accident giving rise to Plaintiff’s complaint, knew or reasonably should have known that defendant/driver Aryan Khodabakhshian was an incompetent, impaired or unfit driver prior to the accident giving rise to Plaintiff’s claims.

Ms. Zargaryan is therefore entitled to summary adjudication as a matter of law on the issue of negligent entrustment.

The motion will be based on this notice as well as the accompanying memorandum of points and authorities, declaration of Edita Zargaryan, request for judicial notice, and separate statement of undisputed material facts filed and served concurrently herewith; the record of this action; and such further evidence as may be adduced at the hearing on this motion.”

PROCEDURAL

Moving Party: Defendant, Edita Zargaryan

Responding Party: Plaintiff, Ashken Sargsyan

Moving Papers: Notice; Decl. Edita Zargaryan; Request for Judicial Notice; Separate Statement; Memorandum

Opposition Papers: Opposition; Separate Statement;

Reply Papers: Reply; Decl. Weixel

75/80 Days

Under § 437c(2), notice of the motion and supporting papers shall be served on all other parties to the action at least 75 days before the time appointed for hearing. If the notice is served by mail, the required 75-day period of notice shall be increased by 5 days if the place of address is within the State of California. If the notice is served by facsimile transmission, express mail, or another method of delivery providing for overnight delivery, the required 75-day period of notice shall be increased by two court days. (CCP §437c(a)(2).)

Here, moving papers were served by electronic transmission on December 28, 2023. This motion is thus timely.

BACKGROUND
Plaintiff, Ashken Sargsyan, filed the instant Complaint on 12/01/2022. Plaintiff named three defendants – Aryan Khodabakhsian (Aryan), Victor Khodabakhsian (Victor) , and Edita Zargaryan (Edita or Zargaryan).

Plaintiff filed a form Complaint that is somewhat confusing.

The first cause of action is titled “Motor Vehicle.” In relevant part, it alleges that Defendant Aryan Khodabakhsian operated a motor vehicle, and the Defendants who owned the motor vehicle (which was allegedly operated with their permission) are Victor Khodabakhsian and Edita Zargaryan.

It is difficult to glean any information about the basis for the lawsuit from reading the allegations in the first cause of action.

The second cause of action is titled “General Negligence.” It stems from an alleged incident when Plaintiff was driving and Defendant Aryan made a left turn but failed to yield the right of way to approaching vehicles and collided with Plaintiff. Plaintiff alleges that Defendants were negligent per se for driving in violation of California Vehicle Code §§ 21801 and 22350.

LEGAL STANDARD

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) “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.)

CCP § 437c(f)(1) states:

A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. 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.

(CCP § 437c(f)(1).)

Further, CCP § 437c(f)(2) provides:

A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. A party shall not move for summary judgment based on issues asserted in a prior motion for summary adjudication and denied by the court unless that party establishes, to the satisfaction of the court, newly discovered facts or circumstances or a change of law supporting the issues reasserted in the summary judgment motion.

(CCP § 437c(f)(2).)

Further, for purposes of motions for summary judgment and summary adjudication:

A plaintiff or cross-complainant has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action. Once the plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The defendant or cross-defendant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.

(CCP § 437c(p)(1).)

ANALYSIS
Preliminary Matter
At the hearing, the Court will ask Defendant and Plaintiff to address what cause of action this motion for summary adjudication is directed at.

Defendant argues that the only theory of negligence-based liability as to Edita is for negligent entrustment for negligently entrusting the vehicle to Aryan.

However, it appears that Edita is named as a defendant in both causes of action in the Complaint.

Despite the fact that there is no cause of action in the Complaint titled “Negligent Entrustment,” Plaintiff also argues as to why there is in fact a claim for negligent entrustment.

The parties should clarify if there is a cause of action for negligent entrustment in the Complaint, and if the Court can even hear this matter.

“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.)

Moving Arguments
Defendant argues that Plaintiff produced no evidence in discovery to support a negligent entrustment claim because the attached declaration of Edita establishes that she had no reason to believe Aryan was unfit or an unsafe driver at any time prior to the accident giving rise to the lawsuit.

Defendant cites cases on negligent entrustment and argues that the cases in which a defendant was found liable for negligent entrustment hinge on the car owner’s prior knowledge of a driver’s competence or fitness to drive and the facts do not even approach the standard for negligent entrustment.

Defendant submitted the declaration of Edita Zargaryan. In relevant part, Edita’s declaration states:

4. I am shown as the lessee on the title to the 2020 Chevrolet Equinox, California license plate number 8PUA127, that Aryan Khodabakhshian (“Aryan”), who is related to me through marriage, was driving in accident that took place in Glendale on October 18, 2022 (“the accident”) which this lawsuit concerns. A copy of the title is attached as Exhibit A.

5. Until the accident happened, I had no knowledge that Aryan ever drove the Equinox.

6. At the time of the accident, I had no information or knowledge that Aryan had ever been cited for traffic violations.

7. At the time of the accident, I had no information or knowledge that Aryan had ever been involved in any previous accidents.

8. At the time of the accident, I had no information or knowledge that anyone had ever warned Aryan about his driving.

9. At the time of the accident, I had no information or knowledge that made me concerned about Aryan’s driving.

10. At the time of the accident, I had no information or knowledge that would make me believe that Aryan was a dangerous, incompetent, or negligent driver.

11. At the time of the accident, I had no information or knowledge that Aryan ever had his driver’s license suspended or had other action taken against him by the DMV, the police, or anyone else because of his driving.

(Decl. Zargaryan ¶¶4-11.)

TENTATIVE RULING
Preliminary Matter
As a preliminary matter, the Reply argues that the Opposition should be disregarded since it was submitted late and caused Defendant prejudice by not being able to prosecute the matter in a timely fashion because the Opposition was three days late. The Court will not disregard the Opposition. The Court will hear argument as to whether this motion should be continued.

The Court notes that the Proof of Service on Plaintiff’s Opposition states that it was served electronically on the following email addresses pursuant to an agreement between the parties:

            liu@darlaw.com

            wes@darlaw.com

            cab@darlaw.com

The Defense, in Reply argues the following:

The proofs of service on Plaintiff’s opposition papers – the combined memorandum of points and authorities in opposition, declaration, and evidence in support in one document, and the opposing separate statement in another – show they were emailed to Pennie Liu and Kelly Kim, Esqs. (See Service Lists for Plaintiff’s Opposition (p. 106 of 106, numbered as page 13) and for Plaintiff’s Opposing Separate Statement (p. 14).) Those two attorneys are no longer with defense counsel’s firm. (Declaration of James V. Weixel in Support of Reply, ¶ 3.) Accordingly, defense counsel did not receive those papers when they were filed. (Id., ¶ 4.) Instead, on Monday, March 11, 2024, counsel instructed his assistant to retrieve the documents from the Court’s online docket. (Id.) That means counsel lost almost three days in which to review the opposition papers and prepare this reply.

Motion papers are required to be served on counsel correctly and in a timely manner. (Code Civ. Proc., § 1010.) This is especially important in this case, where the reply must be prepared, filed, and served only five court days after the opposition is due. (§ 437c(b)(2), (b)(4).) In the case of electronic service, the proof of service must indicate the email address to which service was made. (§ 1013b(b)(3).) Ms. Zargaryan has been prejudiced by Plaintiff’s failure to serve her counsel correctly. (Weixel Reply Decl., ¶ 5.) The Court is respectfully requested to disregard Plaintiff’s opposition for that reason.

(Oppo. at 6.)

In his declaration, Defense counsel James V. Weixel states

No one in my office received Plaintiff’s opposition papers by electronic service on March 8, 2024, the date on which Plaintiff’s opposition was due to be filed and served. Therefore, on Monday, March 11, 2024, I instructed my assistant, Michelle Bonilla, to check the Court’s online docket and retrieve any opposition papers that may have been filed. Ms. Bonilla did so that day.

(Weixel Decl. ISO Reply at ¶ 4.)

The Court is confused by Defendant’s argument.

Where did Plaintiff’s counsel get the email addresses listed in the Proof of Service if not from the email addresses on file with the Court for the Defendant? (See, e.g., Defendant’s Answer.)

Defense argues that Pennie Liu and Kelly Kim are no longer with defense counsel’s firm. How was Plaintiff’s counsel to know that? Did Defense counsel advise Plaintiff’s counsel (or the Court) of their personnel turnover?

Were these attorneys Liu and Kim previously listed as the counsel for service? If so, was that contact information updated when these attorneys left defense counsel’s firm?

In fact, as of 2:50 p.m. on 3/21/24, Attorneys Kim and Liu are still listed on the Court’s docket as the handling attorneys for the defense for the firm of Demler, Armstrong & Rowland LLP.

The Court does not see any document filed at any time by defense counsel advising of the personnel change or advising of any changes in the contact information for service.

The email addresses wes@darlaw.com and cab@darlaw.com appear to be for different counsel than attorneys Liu and Kim. Whose email addresses are those?  (Attorney Kim’s address at defense counsel’s firm, as listed on Defendant’s Answer, was kjk@darlaw.com.)

The Court will hear from defense counsel, but the argument in the Reply and the supporting Declaration regarding purportedly inappropriate service of the opposition appears to be meritless.

Negligent Entrustment
Plaintiff has successfully opposed Defendant’s motion for summary adjudication.

Defendant put the following in her separate statement of UMF:

UMF 4 - At the time of the accident, Ms. Zargaryan had no information or knowledge of Aryan ever being cited for driving violations. Zargaryan Decl., ¶ 5.

UMF 5 - At the time of the accident, Ms. Zargaryan had no information or knowledge of Aryan ever having been involved in any previous accidents. Zargaryan Decl., ¶ 6.

UMF 6 - At the time of the accident, Ms. Zargaryan had no information or knowledge that anyone had ever warned Aryan about his driving. Zargaryan Decl., ¶ 7.

(Def. Sep. Stmt. UMF 4-6.)

In Plaintiff’s Opposition to the Separate Statement for UMF 4-6, Plaintiff argues that these alleged facts do not disprove that Defendant breached her duty of care when she failed to inquire as to whether Aryan had a valid driver’s license and whether she had constructive knowledge that Aryan was incompetent or unfit to drive.

The Reply argues that Defendant Edita did not have a duty to conduct an investigation because Dodge Center v. Superior Court (1988) 199 Cal.App.3d 332, 341 explains that negligent entrustment relies entirely on the owner or lessee’s actual knowledge of facts showing or suggesting the driver’s incompetence and that the owner or lessee has no legal duty to conduct an inquiry into the driver’s driving abilities.

However, Defendant’s citation is not availing in light of Plaintiff’s citation to McKenna v. Beesley (2021) 67 Cal.App.5th 552, which was decided after Dodge and distinguishes Dodge.

“In California, 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 that the plaintiff can establish that the injury complained of was proximately caused by the driver’s disqualification, incompetency, inexperience or recklessness…” (McKenna v. Beesley (2021) 67 Cal.App.5th 552, 569.)

“California is one of several states [that] recognizes the liability of an automobile owner who has entrusted a car to an incompetent, reckless, or inexperienced driver” (italics omitted) through the tort of negligent entrustment.” (McKenna v. Beesley (2021) 67 Cal.App.5th 552, 565 citing Allen v. Toledo (1980) 109 Cal.App.3d 415, 420.)

“Liability for negligent entrustment is determined by applying general principles of negligence, and ordinarily it is for the jury to determine whether the owner has exercised the required degree of care.” (Allen v. Toledo (1980) 109 Cal.App.3d 415, 421.)

In Opposition, Plaintiff included its own Separate Statement of Undisputed Material Facts that sufficiently demonstrated a jury could potentially determine that Defendant knew or should have known that Aryan was unfit or incompetent to drive.

Plaintiff included the deposition of Aryan which showed that Aryan admitted to having had a prior driver’s license suspended or revoked; getting a ticket for making a right on red when he was not supposed to; being in an at fault collision; and being in three to four collisions prior. (Aryan Depo. p. 13-18.)

Even though Edita’s declaration states that she had no knowledge or information about several driving related matters, Edita does not state she ever made any type of inquiry as to whether Aryan was unfit or incompetent to drive.

Additionally, the deposition of Aryan submitted by Plaintiff calls into question the credibility of Edita. In Edita’s declaration at ¶5 she states that until the accident happened, she had no knowledge that Aryan ever drove the Equinox. However, Aryan’s deposition on page 56 stated that Edita was aware at the time she leased the vehicle that it was going to be driven by him.

“A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established…” (CCP § 437c(p)(2).)

Defendant has not shown that one or more elements of the negligent entrustment claim cannot be established. A jury could find that Defendant knew, or should have known, that Aryan was incompetent or unfit to drive the vehicle.

Defendant’s motion for summary adjudication is tentatively DENIED.

At hearing, the parties are to address what cause of action this is directed at/if this motion can be heard, and whether the motion needs to be continued in light of the Reply’s argument about the Opposition being late.

Defendant’s request for judicial notice is GRANTED.