Judge: Linda S. Marks, Case: 01156384, Date: 2022-08-01 Tentative Ruling

Defendant’s, Justin Mayall Installations, Inc., Motion for Summary Judgment

This action arises out of a rear-end automobile accident. Those facts are not in dispute. The Complaint at pg. 4 alleges that:

On July 24, 2019, Plaintiff Craig Roman was traveling north bound on Pacific Coast Highway (“PHC”) from Dana Point toward Laguna Beach, California. Plaintiff’s vehicle came to rest at a red traffic signal at the intersection of Wesley Drive and PCH in the number 1 lane. While sitting idle at the red traffic signal, a vehicle driven by Defendant Justin Mayall Installations, Inc.’s employee, Defendant Romualdo Lobatopozos [sic], rear-ended Plaintiff. As a result of the collision, Plaintiff suffered severe personal injuries requiring medical treatment.

It is further undisputed that Mayall is being sued under the theory of respondeat superior. “Under the doctrine of respondeat superior, an employer is liable for the torts of his employees committed within the scope of their employment (Citations.) The burden of proof is on the plaintiff to demonstrate that the negligent act was committed within the scope of employment.” (Ducey v. Argo Sales Co. (1979) 25 Cal.3d 707, 721.)

This motion hinges on whether Driver was working for Mayall at the time of the accident. If it is determined that Driver was not working for Mayall at the time of the accident, then it is immaterial whether Driver is an employee or an independent contractor.

Mayall contends that Driver was not working for it at the time of the accident. (SSUMF 5). Mayall further contends Driver was wearing a Mayall t-shirt at the time of the accident, but Mayall gives them out as a form of advertising and does not require Driver to wear them while working and therefore did not mean he was working for Mayall at the time of the accident. (SSUMP 6). Mayall presents evidence that Driver was not working for Mayall at the time of the accident. In addition to fact the Driver was driving his own car, Deposition testimony of the Driver, the deposition testimony of Mayall’s principal, and Mayall’s discovery responses establish how that Driver was not working for Mayall in any capacity on the day of the accident.. Further, Driver testified that he has t-shirts from several companies and wears them whenever, without regard to the job. Thus, Mayall has met its burden to establish that Driver was not working for Mayall at the time of the accident and cannot be liable under respondeat superior.

In opposition, Plaintiff disputes this fact. Plaintiff presents evidence that after the accident, Driver told Plaintiff that he was on his way to a job site in Newport Beach. Further, when Plaintiff noted Driver’s Mayall t-shirt and asked if that was Driver’s employer, Driver said, “yes.” Plaintiff also presents evidence that Driver was wearing a Mayall t-shirt at the time of the accident. Further, Plaintiff presents paychecks for July through August 2019, and specifically points to Check No. 5344 to show that Driver was working for Mayall the week of the accident, which occurred on July 24, 2019. Lastly, Plaintiff also contends that the cross-complaint filed by Driver against Mayall raises a reasonable inference that Driver was working for Mayall at the time of the accident.

None of this evidence creates a triable issue of material fact that Driver was working for Mayall at the time of the accident.

First, Driver made two statements after the accident. Driver stated that he was on his way to a job in Newport Beach. Then, when Plaintiff asked Driver if the company on the t-shirt he was wearing (Mayall) was his employer, to which Driver said, “yes.” However, these statements were made independent of one another. Driver is not wrong in either instance. But, these statements do not create a triable issue. It is undisputed that Driver does work for Mayall. However, Mayall presents deposition testimony that Driver works for two to three companies, not just Mayall, and that Driver was not working for Mayall on the day of the accident. The statements made by Driver after the accident do not contradict the deposition testimony or discovery responses presented by Mayall.

Second, the fact that Driver was wearing a Mayall t-shirt on the day of the accident is of no consequence as Mayall does not require workers to wear its t-shirts. Further, Driver owns t-shirts of several companies, and wears them without regard to job assignments. The fact that Driver was wearing Mayall’s t-shirt at the time of the accident do not contradict the deposition testimony by Mayall.

Third, the existence of checks issued from Mayall to Driver are also insufficient to raise a triable issue that Driver was working for Mayall at the time of the accident. As noted by Mayall in reply, it appears that Plaintiff has misrepresented the date of Check No. 5344. Plaintiff represents that the date of Check No. 5344 is July 26, 2019. Ex. 7 to Plaintiff’s opposition is nearly illegible, but it appears that the check is dated July 20, 2019. Ex. 7, pg. MAYA_000011. Regardless of whether the check is dated July 20 or 26th, it fails to establish that Driver was working for Mayall on the day of the accident. It is undisputed that the checks are evidence of payment for services rendered by Driver, but there is no evidence payment was made for any work performed on July 24, 2019, the day of the accident. The existence of the other checks do nothing more than enforce the fact that Driver performed work for Mayall at various times in 2019. Again, it is undisputed that Driver did work for Mayall, but not established that Driver was working for Mayall on the day of the accident.

Lastly, is the Cross-Complaint. Plaintiff submits the cross-complaint filed by Driver in an attempt to create a triable issue of material fact. Plaintiff argues that the allegations in the cross-complaint raise a reasonable inference that Driver would not have alleged such facts unless Driver was working for Employer at the time of the accident. Plaintiff’s argument is nothing more than speculation or conjecture on Plaintiff’s part, especially because the cross-complaint was later dismissed. In reality, the filing of the cross-complaint was likely a strategic move on the part of Driver’s counsel, to preserve Driver’s rights, but once it was discovered that Driver was not working for Mayall the day of the accident, he later dismissed the cross-complaint. In order to successfully oppose a motion for summary judgment, Plaintiff must produce competent evidence of a triable issue of material fact and Plaintiff has not met his burden to show that the Driver's allegations in his cross-complaint constitutes competent evidence.

Mayall has met its initial burden of demonstrating that it is entitled to summary judgment because Defendant Romualdo Lobato Pozos (Driver) was not working for Mayall at the time of the accident. SSUMF 5, 6. Plaintiff does not create a triable issue of material fact.

Tentative Ruling: The motion for summary judgment by Defendant Justin Mayall Installations, Inc. (Mayall) is GRANTED.

Mayall’s Objections to Fiore, Jr. Declaration, Paras. 4 and 9 are OVERRULED.Mayall’s Objections to Fiore, Jr. Declaration, Paras. 6, 10 are SUSTAINED. The court declines to rule on Objections to Fiore, Jr. Declaration, Paras. 7, 8, 12 as they are not material to the Tentative Ruling. CCP§ 437c(q). Mayall’s objection to Plaintiff’s request for judicial notice is SUSTAINED. The court declines to take judicial notice of the cross-complaint.

Moving Party to give notice.