Judge: Christian R. Gullon, Case: 19STCV10467, Date: 2023-06-20 Tentative Ruling

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Case Number: 19STCV10467    Hearing Date: December 14, 2023    Dept: O

Tentative Ruling

DEFENDANT C.H. ROBINSON WORLDWIDE, INC. MOTION FOR SUMMARY JUDGMENT AGAINST PLAINTIFFS is GRANTED.

Background

This lawsuit arises out of a July 9, 2017 fatal motor vehicle collision.[1]

On March 27, 2019, Plaintiffs, Jaime Valenzuela, individually, and as successor in interest to Irving Valenzuela, deceased, and Tammy Martinez, individually, and as successor in interest to Irving Valenzuela, deceased filed suit.

On February 24, 2021, Plaintiffs filed their third amended complaint (TAC) for:

1.     Strict Products Liability –Negligence

2.     Strict products liability –failure to warn

3.     Strict products liability

4.     Survival[2]

5.     Declaratory relief

On September 28, 2023, Defendant C.H. ROBINSON WORLDWIDE, INC. (“CHRW”) filed the instant motion. (The COAs asserted against CHRW are (1) negligence and (2) survival action. As to CHRW, it brokered the subject load of fruit that Defendant ERICK'S TRANSPORTATION, INC. ("Erick's Transportation") agreed to transport in or about July 2017. Martin Abarca, the driver, worked for Erick’s Transportation.

On November 30, 2023, Plaintiff filed its opposition.

Discussion

Defendant brings forth the instant motion based upon the following reasons:

1. CHRW owed no cognizable duty to Plaintiffs.

2. CHRW did not breach any duty to Plaintiffs because it was a freight broker, not a shipper or the owner/operator of the involved tractor-trailer driven by Defendant Abarca at the time of the accident.

3. CHRW did not cause any of Plaintiffs' alleged damages because CHRW is a transportation broker and had no involvement with the incident other than brokering the load, i.e., CHRW did not select the driver and knew nothing about the motor carrier's or driver's experience or track record.

4. Plaintiffs have no evidence to show that CHRW is responsible for the driver's conduct.

5. CHRW did not negligently hire or retain Defendant Abarca, the driver who allegedly caused the subject accident.

6. CHRW is indemnified from any liability for Plaintiffs' alleged damages.

(Motion p. 8.)

For purposes of this ruling, the court will focus on the issue of whether Defendant owed decedent/Plaintiffs a duty.

a.     Whether CHRWI “Employed” The Driver As Its “Agent” By Virtue Of The Tremendous “Control” Exerted By CHRWI Over Him, With Resulting Vicarious Liability[3]

The appellate court in Secci v. United Independent Taxi Drivers, Inc. (2017) 8 Cal.App.5th 846 provided the following recitation of rules regarding agency and vicarious liability:[4]

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.” (Malloy v. Fong (1951) 37 Cal.2d 356, 370, 232 P.2d 241.) “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.]’ [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.]” (Van't Rood v. County of Santa Clara (2003) 113 Cal.App.4th 549, 571, 6 Cal.Rptr.3d 746.) “ ‘In the absence of the essential characteristic of the right of control, there is no true agency....’ [Citations.] [¶] . . . 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. [Citation.]’ [Citations] . . .

Other factors may be considered to determine if an independent contractor is acting as an agent, including: whether the ‘principal’ and ‘agent’ are engaged in distinct occupations; the skill required to perform the ‘agent's’ work; whether the ‘principal’ or ‘agent’ supplies the workplace and tools; the length of time for completion; whether the work is part of the ‘principal’ regular business; and whether the parties intended to create an agent/principal relationship. [Citation.] (Id. at p. 855, emphasis added.)

A finding of agency would allow the principle to be responsible to third persons for the negligence of his agent. (Opp. p. 10, citing Wickham v. Southland Corp. (1985) 168 Cal.App.3d 49, 55.)

Plaintiff avers that there are facts showing control and even the imposition of fines, the requirement of check-ins, and a promise of express indemnity by the driver and Erick’s running in favor of CHRWI.

Here, however, applying Secci’s multifactored test, there are no facts showing a bilateral agreement.

Defendant’s Evidence

The following evidence is provided from Bruce Johnson’s declaration, the Director of Truckload Services for Defendant C.H. ROBINSON WORLDWIDE, INC.[5]

-        Defendant Erick's Transportation transported the load of cherries and apples pursuant to the parties’ Contract for Motor Contract Carrier Services.

-        Paragraph 6(a) of the Contract further specifically states that Defendant Erick's Transportation "shall ensure that its drivers are properly trained and licensed, and are competent and capable of safely handling and transporting [CHRW's customer's] shipments.

-        As to Abarca specifically, CHRW did not select nor hire Abarca

-        CHRW had no knowledge of Erick’s Transportation or Abarca’s experience with respect to transporting such loads

-        CHRW was not the owner of the tractor-trailer that Abarca was driving.

Thus, Defendant has provided evidence (via Johnson’s declaration) that CHRW was not involved in any way with the hiring of Abarca as the party responsible for his hiring was Erick’s Transportation.

Plaintiff’s Burden

Plaintiff has provided no evidence that Defendant hired Abarca. Defendant hired Erick’s Transportation who then hired Abarca. In fact, according to Plaintiff’s response to Defendant’s SS, “CHRW was advised that Abarca was the driver of a refrigerated trailer” (Response to No. 2, emphasis added), indicating that Abarca told CHRW who would be the driver, not vice versa.

Plaintiff has offered no evidence that Abarca used CHRW’s vehicles (i.e., supplies). Plaintiff has offered no evidence that CHRW gave Abarca instructions on how to operate his vehicle. Plaintiff has offered no evidence that Defendant CHRW required a certain size or type of trailer to be used. Plaintiff has offered no evidence that Defendant paid Abarca. Plaintiff has offered no evidence that Defendant “rushed” Abarca (i.e., a phone log showing a call right before the accident).

To the extent that CHRW required the driver to do something, it was to be on time. But working in a timely manner is far from a material form of control as that is a tacit requirement of any job. Plus, this involved the transportation of fruit, which readily spoils. To the extent that CHRW required the driver to not commingle food, that too is not “control” because a customer pays for delivery of a full truckload of food and does not want its food shipment to be intermingled with freight belonging to another customer. (See Reply p. 9:1-3: [“Imagine a situation where food was being shipped with a product like motor oil.”].

Therefore, the driver was not Defendant’s employee/agent.

B. Whether CHRWI Was Acting As A Carrier- And Not Just A Broker- With Resulting Vicarious Liability Even For The Negligence Of A Driver That Might Be Construed As “Independent Contractor” Given The Peculiar Risk Associated With Commercial Trucking due to the Public Policy that prohibits CHRWI from delegating its duty of due car to a so-called “Independent Contractor”

Next, Plaintiff argues that with “Carrier status” comes non-delegable duty as a matter of policy.

Defendant’s Evidence:

According to Johnson, CHRW is a freight transportation broker headquartered in Eden Prairie, Minnesota, which arranges for transportation of property by motor carriers for its customers. CHRW is registered as a property broker with the Federal Motor Carrier Safety Administration. (Johnson Decl., P2.)

Plaintiff’s Evidence

Plaintiff has not offered evidence that Defendant was a carrier. Rather, Plaintiff cites to Johnson’s deposition wherein he states that he believes CHRWI does not have freight broker authority; he did not state that CHRWI is a carrier.[6]

Therefore, CHRW owed no non-delegable duty to the public/Plaintiff.

C. Whether CHRWI Negligently Hired/Selected the Company That Engaged The Driver Who Collided with Decedent’s Vehicle

There is a common-law duty of care by companies to hire competent contractors. (Opp. p. 18, citing Risley v. Lenwell (1954) 129 Cal.App.2d 608.) A broker is liable for selecting an incompetent and careless carrier if at the time of the contract, (1) the carrier lacked competence in providing reasonably safe highway equipment, and (2) the shipper knew, or in the exercise of reasonable care should have known, of this deficiency. (See: e.g, L. B. Foster Co. v. Hurnblad (9th Cir. 1969) 418 F.2d 727, 730).

In opposition, Plaintiff avers that Defendant’s did not address this theory of liability in the TAC, citing to PAMF No. 1. In turn, that provides the following:

Plaintiffs' Third Amended Complaint ("TAC") states causes of action for negligence and survival against CHR WI making detailed factual allegations supporting duty, breach, and causation, including allegations of employment, agency, joint venture, and alter ego at 57-61, 70, 88 and 94-109 of the TAC, including allegations of "employment," coupled with "control," and additional allegations that CHRWI "rushed the driver", that the driver was "knowingly unfit", and that the driver had a "history of violations and reckless driving", that CHR WI hired with (i.e., contracted) the driver, and thereby selected the driver, and that it controlled the driver, and specifically alleged that CHRWI is a "shipper/broker", "employed the driver", "engaged in activity over state lines", was in a "partnership and joint venture" with other defendants, "coordinated the method and means of transport", "rushed the driver", had a "non-delegable duty", acted as a "motor carrier", acted as a "public carrier", knowingly "selected" an "unfit driver", "provided the driver detailed instructions", and thereby "exercised substantial control over him", and "hired him" "despite knowledge that he had a history of moving violations and even a DUI," and buttressed these allegations further with alleging the existence of insurance and indemnification agreements, driving instructions, rules and regulations, etc., which all factually support Plaintiffs' allegations of control and agency, and that CHRWI violated the Code of Federal Regulations acting not just as a broker, but a carrier, and hired a reckless, unfit driver with a history of DUI's, thereby rendering it jointly and severally liable with the driver who was alleged to be negligent due to the application of 49 CFR 371, 371.1, 371.2, 371.3, 371.7, 371.9, 373.01, 49 CFR 14916, 49 CFR 390.5 T, 49 USC 13102 (2), 49 CFR 371.2(a), 49 CFR 382.217. (See: TAC 94-99 dealing primarily with control and causation and 100-107 dealing primarily with violations of Federal law.), most of which allegations were not addressed by the defendant's MSJ.

Based on the court’s reading, there are no allegations that CHRW negligently hired Erick’s Transportation. Instead, Plaintiff alleges negligence based upon Defendant’s negligent hiring of Abarca.

The Reply does not appear to address this argument. In any event, it appears inapposite.

All in all, having found no duty, the analysis ends there.

Conclusion

Based on the foregoing, the motion is GRANTED.