Judge Audra Mori, Case 21STCV32744 2022-09-07 Tentative Ruling

Plaintiff Hubert Gomez (“Plaintiff”) filed this action against defendants Steve De Marcos (“De Marcos”) and American Vision Windows (“American”) for damages arising from a motor vehicle accident that occurred on September 7, 2019. Plaintiff alleges that De Marcos and American were the owners and/or operators of the vehicle that caused injury to Plaintiff. The complaint alleges causes of action for motor vehicle and general negligence against defendants.

Defendant American now moves for summary judgment. Any opposition to the motion was due by August 24, 2022; as of September 2, 2022, no opposition has been filed.

American avers it is entitled to summary judgment because at the time of the accident, De Marcos was not within the scope of his employment with American and American did not own or maintain the vehicle. American contends there is no basis to impose liability on it for the accident because the evidence shows that the vehicle was owned by a Juan De Marcos, and while defendant De Marcos worked a morning shift for American from 6:00 a.m. to 9:30 a.m., the accident occurred at approximately 9:00 p.m. when De Marcos was off work.

American requests that judicial notice be taken of Plaintiff’s unverified complaint filed in this action, and of American’s answer to the complaint file. The request is granted pursuant to Evidence Code § 452(d).

Summary judgment is proper “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Code Civ. Proc. §437c(c).) The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A defendant moving for summary judgment must show either (1) that one or more elements of the cause of action cannot be established or (2) that there is a complete defense to that cause of action. (Id. at §437c(p).) A defendant may discharge this burden by furnishing either (1) affirmative evidence of the required facts or (2) discovery responses conceding that the plaintiff lacks evidence to establish an essential element of the plaintiff's case. If a defendant chooses the latter option, he or she must present evidence “and not simply point out that plaintiff does not possess and cannot reasonably obtain needed evidence….” (Aguilar, supra, 25 Cal.4^th at 865-66.)

[A] defendant may simply show the plaintiff cannot establish an essential element of the cause of action “by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Id. at p. 854.) Thus, rather than affirmatively disproving or negating an element (e.g., causation), a defendant moving for summary judgment has the option of presenting evidence reflecting the plaintiff does not possess evidence to prove that element. “The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff's cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing” to support an essential element of his case. (Aguilar, supra, at p. 855.) Under the latter approach, a defendant's initial evidentiary showing may “consist of the deposition testimony of the plaintiff's witnesses, the plaintiff's factually devoid discovery responses, or admissions by the plaintiff in deposition or in response to requests for admission that he or she has not discovered anything that supports an essential element of the cause of action.” (Lona v. Citibank, N.A., supra, 202 Cal.App.4th at p. 110.) In other words, a defendant may show the plaintiff does not possess evidence to support an element of the cause of action by means of presenting the plaintiff's factually devoid discovery responses from which an absence of evidence may be reasonably inferred. (Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 83.)

Thus, a moving defendant has two means by which to shift the burden of proof under the summary judgment statute: “The defendant may rely upon factually insufficient discovery responses by the plaintiff to show that the plaintiff cannot establish an essential element of the cause of action sued upon. [Citation.] [Or a]lternatively, the defendant may utilize the tried and true technique of negating (‘disproving’) an essential element of the plaintiff's cause of action.” (Brantly v. Pisaro (1996) 42 Cal.App.4th 1591, 1598.)

Until the moving defendant has discharged its burden of proof, the opposing plaintiff has no burden to come forward with any evidence. Once the moving defendant has discharged its burden as to a particular cause of action, however, the plaintiff may defeat the motion by producing evidence showing that a triable issue of one or more material facts exists as to that cause of action. (Id. at §437c(p)(2).) On a motion for summary judgment, the moving party's supporting documents are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of summary judgment should be resolved against granting the motion. (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21.)

“The elements of negligence are (1) a legal duty to use due care, (2) the breach of such legal duty, and (3) the breach was the proximate or legal cause of injury.” (Orey v. Superior Court (2013) 213 Cal.App.4th 1241, 1255.) As in any negligence action, whether a duty was owed under the facts is a question of law for the court. (Castaneda v. Olsher (2007) 41 Cal.4th 1205, 1213.) “Under the theory of respondeat superior, an employer is vicariously liable, irrespective of fault, for the tortious conduct of its employees within the scope of their employment.” (Jorge v. Culinary Institute of America (2016) 3 Cal.App.5th 382, 396.) “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 (2020) 48 Cal.App.5th 569, 577.)

Here, Plaintiff seeks to recover damages allegedly sustained in a motor vehicle accident on September 7, 2019. (UMF 1.) In its answer to the complaint, American asserted affirmative defenses contending that American did not proximately cause any of the alleged damages, that De Marcos was not in the course and scope of his employment with American at the time of the accident, and that American was not the owner of the vehicle involved in the accident. (UMF 2.) On September 7, 2019, at approximately 9:00 p.m. De Marcos was operating a certain 2008 Ford F250 (the “Ford”), and Plaintiff alleges that De Marcos caused an accident while in the course and scope of his employment with American. (UMF 4-5.)

American provides evidence showing that prior to the accident, on August 20, 2019, American sold the Ford to Juan De Marcos for $1,000.00, and on August 27, 2019, American requested that the Ford be removed from American’s relevant insurance policy. (UMF 6-7.) On the date of the accident, defendant De Marcos was American’s employee and worked a morning shift from about 6:00 to 9:30 a.m. (UMF 8-9.) When the accident occurred at 9:00 p.m., De Marcos was not acting within the course and scope of his employment as he had clocked out of work at 9:30 a.m. (UMF 10.) Furthermore, De Marcos was not operating a vehicle owned by American when the accident occurred. (UMF 11.)

This evidence is sufficient to meet American’s moving burden to show it is entitled to judgment as a matter of law. The burden shifts to Plaintiff to raise a triable issue of material fact. However, Plaintiff does not oppose the motion and thus fails to raise a triable issue of material fact.

Hon. Audra Mori

Judge of the Superior Court