Judge Lisa K. Sepe-Wiesenfeld, Case Number: 23SMCV00427, Date: 2024-12-19 Tentative Ruling

Judge: Lisa K. Sepe-Wiesenfeld, Case: 23SMCV00427, Date: 2024-12-19 Tentative Ruling

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment or summary adjudication “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 . . . cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467.)

“Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, 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.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) “[T]he court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection) … in the light most favorable to the party opposing summary judgment.” (Avivi, supra, 159 Cal.App.4th at p. 467; see also Code Civ. Proc., § 437c, subd. (c).)

Notably, Plaintiffs have alleged three causes of action against Defendant in the complaint: (1) negligence, (2) negligent entrustment, and (3) loss of consortium. On the one hand, the notice of motion fails to seek judgment or adjudication as to the first cause of action for negligence and third cause of action for loss of consortium, stating only that “[t]his Motion is made pursuant to Code of Civil Procedure 437c (a)(1) on the ground that plaintiff’s cause of action for negligent entrustment against defendant GHAZAL POOYA has no merit.” (Mot., p. 2, ll. 3-5, italics omitted.) Given that the notice of motion seeks summary judgment rather than summary adjudication, the Court would be within its discretion to deny the motion outright given that only one cause of action is mentioned, and Defendant does not identify the negligent entrustment of the vehicle as a theory or issue for which it seeks adjudication. However, the general rationale behind denying a motion in this way when a party does not seek adjudication is that “the opposing party may have decided to raise only one triable issue of fact in order to defeat the motion, without intending to concede the other issues,” and “[i]t would be unfair to grant a summary adjudication order unless the opposing party was on notice that an issue-by-issue adjudication might be ordered if summary judgment was denied.” (Gonzales v. Superior Court (1987) 189 Cal.App.3d 1542, 1546.)

Upon review of the complaint, it is clear that the basis for liability for each of Plaintiffs’ causes of action against Defendant is a theory of negligent entrustment. Specifically, in the negligence cause of action, Plaintiff alleges only that “Defendant Pooya breached the standard of reasonable care when she negligently entrusted her Bentley to Defendant Arashfar even though she knew or should have known that Defendant Arashfar was incompetent or unfit to drive her Bentley,” and “Defendant Arashfar’s incompetence or unfitness to drive was a substantial factor in causing harm to Plaintiffs.” (Compl. ¶ 17.) The same theory is alleged in the second cause of action for negligent entrustment (Compl. ¶¶ 22-25), and the third cause of action for loss of consortium relies on the prior allegations to support a claim that “Plaintiff, Lupeng Liao suffered loss of consortium as a result of Defendants’ tortious acts, which severely injured his wife, Ms. Zhou” (Compl. ¶ 30). It follows that Plaintiffs had full opportunity to brief as to this theory and its application as to each cause of action, and there is no basis to conclude that continuing the hearing on the motion or denying the motion would yield any different briefing or evidence from Plaintiffs. Thus, the Court considers this motion to be one for summary judgment as to all three causes of action, and Plaintiffs had a full and fair opportunity to address the arguments applicable to all causes of action given there is one theory for all three causes of action. (See Silva v. See’s Candy Shops, Inc. (2016) 7 Cal.App.5th 235, 256, disapproved on other grounds by Donohue v. AMN Services, LLC (2021) 11 Cal.5th 58, 77 [where party requested the trial court allow amendment to the notice of motion to seek summary adjudication, it was error not to allow the amendment where opposing party had a full and fair opportunity to address the summary adjudication arguments].)

In support of the motion, Defendant provides a separate statement with seven undisputed facts to support her defense that there is no evidence as to Defendant Arashfar’s unfitness to operate a motor vehicle or that Defendant had knowledge as to any purported unfitness. Code of Civil Procedure section 437c, subdivision (b)(1), makes that clear that each material fact included within a separate statement “shall be followed by a reference to the supporting evidence,” and “[t]he failure to comply with this requirement of a separate statement may in the court’s discretion constitute a sufficient ground for denying the motion.” The Court notes that the citations to evidence are disappointing, as Defendant references discovery responses generally for the first three facts and generally references a declaration for the fourth fact. However, again, the Court finds that, despite these failures, Plaintiffs had sufficient notice of the evidence supporting each fact given that Defendant’s declaration is short, and the reference to discovery responses generally simply identifies that no responsive fact has been provided.

“Liability for negligent entrustment is determined by applying general principles of negligence, and ordinarily it is for the jury to determine whether the owner or other entruster has exercised the required degree of care. . . . In its simplest form the question is whether the owner or other supplier when he permits an incompetent or reckless person, whom he knows to be incompetent or reckless, to take and operate his car or any other instrumentality, acts as an ordinarily prudent person would be expected to act under the circumstances.” (White v. Inbound Aviation (1999) 69 Cal.App.4th 910, 920, quotation marks, citations, and brackets omitted.)

Defendant contends that Plaintiffs have not provided any facts to support their theory that Defendant Arashfar was unfit to operate a motor vehicle; Plaintiffs have no documents or witnesses to support their contention of Defendant Arashfar’s unfitness to drive; Defendant was unaware of any alleged unfitness; Defendant Arashfar had a valid California driver’s license on the date of the incident; Defendant Arashfar had no physical, emotional, or mental disability immediately prior to the incident; and Defendant Arashfar was not impaired at the time of the incident. (Def.’s UMF Nos. 1-7.) This evidence allows Defendant to meet its burden of establishing that no triable issue of material fact exists as to whether Defendant can be liable under a negligent entrustment theory.

In their initial opposition, Plaintiffs disputed these facts with Plaintiffs’ counsel’s declaration stating he believes that both Defendants were drinking at lunch before the crash, and to confirm this, he needed to subpoena the restaurant and depose Defendant Arashfar. (Opp’n, Ganji Decl. ¶ 3.) The only additional evidence provided by Plaintiffs is that Defendants were previously engaged; Defendant owned the subject vehicle; Defendants went to lunch before the accident; Defendant was conversing with Defendant Arashfar at the time of the accident; and Defendant Arashfar ran a red light and t-boned Plaintiff Zhou in the vehicle. (Pls.’ UMF Nos. 1-3, 6, 7.)

An attorney’s subjective belief that evidence may show intoxication does not create a triable issue of material fact. The additional evidence could not create a triable issue of material fact as to a negligent entrustment theory, as the trier of fact could not conclude based on that evidence that Defendant knowingly allowed an unfit person to operate her vehicle. While Code of Civil Procedure section 437c, subdivision (h), allows the Court to deny a motion or order a continuance to obtain additional discovery where “it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented,” the Court was not convinced that a continuance was warranted.

First, Plaintiffs provided no competent evidence to support their belief that Defendants were intoxicated because, again, an attorney’s subjective belief without any supporting testimony to date essentially makes any further discovery sought into this issue a fishing expedition. The Court was not prepared to conclude that eating lunch before an accident supports a conclusion that a driver was intoxicated. Second, the police report from the incident states on page two that all parties stated they had not been drinking. (Opp’n, Ganji Decl. ¶ 6, Ex. B.) Third, Defendant stated in her deposition that Defendant Arashfar did not have any alcoholic beverages at lunch, nor did Defendant. (Opp’n, Ganji Decl. ¶ 2, Ex. A, at 27:7-14, 30:4-6.) Plaintiffs essentially asked the Court to order a continuance for additional discovery based solely on Plaintiffs’ counsel’s subjective belief, despite evidence to the contrary. However, at the hearing on the motion, the Court opted to continue the hearing for 60 days because Defendant would not suffer prejudice from such a continuance.

On December 12, 2024, Plaintiffs filed their supplemental opposition to Defendant’s motion. Plaintiffs argued that Defendant Arashfar had three prior driving under the influence convictions, he had his driver’s license suspended, and he likely drank alcohol before the crash. Plaintiffs also argue that Defendant Arashfar admitted he was distracted while talking to Defendant Pooya as he drove, it is indisputable that Defendant is liable to Plaintiffs for loss of consortium, and regardless of Defendant’s negligence, she is liable for at least $35,000 per the language of the Vehicle Code.

Plaintiffs provide Defendant Arashfar’s deposition testimony that he did not drink at lunch, but Plaintiffs argue this is not credible. The Court cannot find there is a triable issue where Plaintiffs again provide only a subjective belief that other evidence not yet obtained may show intoxication or mere presence at a lunch means that a driver drank alcohol. Plaintiffs argue that evidence as to the charges at Elephante has not been obtained, but the Court has provided Plaintiffs sufficient opportunity to obtain this evidence, and Plaintiffs had opportunity to obtain this evidence long before this motion was filed. Whether Defendant Arashfar was distracted is a non-issue as to whether Defendant Pooya can be liable for negligently entrusting her vehicle to Defendant Arashfar. As to prior driving under the influence convictions, again, Plaintiffs have provided no evidence that the accident was the result of intoxication.

Further, as to whether Defendant may be liable for loss of consortium, “[a] loss of consortium cause of action is triggered by the spouse’s injury. A cause of action for loss of consortium is, by its nature, dependent on the existence of a cause of action for tortious injury to a spouse.” (Vanhooser v. Superior Court (2012) 206 Cal.App.4th 921, 927, citations and quotation marks omitted.) “Without injury to the spouse, the plaintiff has no loss of consortium claim.” (Id. at p. 928.) Plaintiffs have not shown that Defendant is liable for negligence or negligent entrustment, such that there can be no claim for loss of consortium. Insofar as Plaintiffs seek damages under the Vehicle Code, this has not been alleged in the complaint, such that the Court will not analyze this issue because “the pleadings determine the scope of relevant issues on a summary judgment motion.” (Nieto v. Blue Shield of California Life & Health Insurance Co. (2010) 181 Cal.App.4th 60, 74.)