The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) “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.) 

 

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facia 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(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.” (Id.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.) 

 

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi, 159 Cal.App.4th at 467; Code Civ. Proc., §437c(c).) 

 

First Class moves for summary adjudication on the grounds that (1) Plaintiff cannot establish any material fact to support a cause of action against it and (2) Plaintiff named First Class as a defendant in this action after the statute of limitations had already passed. 

 

Negligence 

 

First Class first alleges it is not a proper defendant in this action because it did not employ Defendant Crump, the driver of the vehicle, and did not own the vehicle in dispute.  

 

“Every owner of a motor vehicle is liable and responsible for the death or injury to person or property resulting from a negligent or wrongful act or omission in the operation of the motor vehicle, in the business of the owner or otherwise, by any person using or operating the same with the permission, express or implied, of the owner.”¿ (Vehicle Code, section 17150.)¿“Liability arises solely from the owner’s status as owner of the vehicle, not from any independent fault or wrongdoing on the owner’s part.”¿ (Galvis v. Petito (1993) 13 Cal.App.4th 551, 555 (emphasis in original).)¿For purposes of permissive use liability, the owner and driver are treated as a single tortfeasor and whatever noneconomic damages are properly charged to the operator are likewise the burden of the owner. (Id at 568.) 

 

“[R]espondeat superior liability attaches if the activities that cause[d] the employee to become an instrumentality of danger to others’ were undertaken with the employer’s permission and were of some benefit to the employer or, in the absence of proof of benefit, the activities constituted a customary incident of employment.” (Purton v. Marriott International., Inc. (2013) 218 Cal.App.4th 499,509. Because it can be difficult to demonstrate “that a corporation is directly liable for the actions of its employees or agents,” respondeat superior “can allow a plaintiff to proceed against a corporation that could have been liable under a burdensome direct liability theory.” (Presbyterian Camp & Conference Centers, Inc. v. Superior Court (2021) 12 Cal.5th 493, 515) “‘Employee[s]’ include most persons ‘in the service of an employer under any ... contract of hire’ ..., but do not include independent contractors.” (S. G. Borello & Sons, Inc. v. Dept. of Indus. Rel. (1989) 48 Cal.3d 341, 349, 256 (Borello).) 

 

Respondeat superior may also be based on either actual or ostensible agency. “‘An agent is one who represents another, called the principal, in dealings with third persons…In California agency is either actual or ostensible…An agency is actual when the agent is really employed by the principal…An agency is ostensible when a principal causes a third person to believe another to be his agent, who is really not employed by him…An agent has the authority that the principal, actually or ostensibly, confers upon him…Ostensible authority… is the authority of the agent which the principal causes or allows a third person to believe that the agent possesses.”¿ (J.L. v. Children’s Institute, Inc. (2009) 177 Cal.App.4th 388, 403.)¿¿ 

A principal is bound by the acts of his agent, under a merely ostensible authority, to those persons only who have in good faith, and without want of ordinary care, incurred a liability or parted with value, upon the faith thereof. (Civ. Code, section 2334.) There is no basis to hold a principal liable for the actions of an ostensible agent if a plaintiff did not rely on conduct within the agent’s ostensible authority to his injury. (Van Den Eikhof v. Hocker (1978) 87 Cal.App.3d 900, 906.) 

Here, Plaintiff’s Complaint alleges that on September 20, 2018, Plaintiff’s vehicle was struck by a vehicle driven by Defendant Crump and owned by First Class. (Compl. p.5.) The Complaint also alleges that Defendants were the agents and employees of other defendants in this action. (Comp., p. 4.) 

 

First Class provides a copy of the vehicle registration card showing the disputed vehicle was owned by Phinizy Elite Trans SVCS, LLC, dba Prime time Shuttle (“Phinizy”) at the time of the collision. (Bavilski Decl., Exh. 1.) First Class also provides the attachment to the statement of information for Phinizy showing Defendant Crump was an employee of Phinizy at the time of the collision. (Id., Exh. 4.) Additionally, photographs of the subject vehicle show the vehicle displayed the name Prime Time Shuttle on the sides and back of the vehicle. (Id., Exh. 5.) First Class also provides a copy of an insurance ID card showing the vehicle was insured under a policy held by First Class Transportation SVC dba Prime Time Shuttle at the time of the collision. (Id., Exh. 6.) 

 

First Class also provides the declaration of its administrative manager, Layla Soto. Soto testifies that at the time of the collision, the subject vehicle was registered to and owned by Phinizy. (Soto Decl., ¶¶3-4.) Additionally, Crump was an employee of Phinizy. (Id., ¶¶5-8.) The subject vehicle was insured under First Class’s insurance policy. (Id., ¶10.) First Class added Phinizy as an additional insured under its insurance policy. (Id.) 

 

The evidence shows that First Class did not own the vehicle and did not employ Crump at the time of the collision because Phinizy owned the vehicle in question and employed Crump. Because First Class neither owned nor operated the subject vehicle, First Class meets its burden of showing there are no triable issues of material fact remaining over whether it is directly liable for Plaintiff’s injuries under Veh. Code, section 17150. 

 

The Court concludes that Crump and Phinizy were not ostensible agents of First Class. Phinizy and Crump were not actual agents of First Class because they were not employed by First Class. First Class and Phinizy both did business as “Prime Time Shuttle.” First Class was also the primary insurance holder of the policy covering the subject vehicle. First Class does not explain what its relationship with Phinizy is or why a vehicle owned by Phinizy is covered under First Class’s insurance policy. However, Plaintiff did not know the vehicle was insured by First Class or that the two companies operated under the same name until after the collision. Additionally, there is no evidence that Phinizy or Crump engaged in conduct under any ostensible authority that caused or contributed to the collision. Therefore, Plaintiff did not rely on any ostensible authority to her injury. First Class meets its burden of showing that no triable issues of material fact remain over whether First Class is vicariously liable for Plaintiff’s injuries under Veh. Code, section 17150. 

 

Plaintiff failed to oppose this motion and thus fails to meet her burden of proof. Summary judgment is granted on this ground. 

 

Negligent Entrustment 

 

First Class also argues that the cause of action for negligent entrustment against it fails because it did not own the subject vehicle. 

 

Under the theory of negligent entrustment, liability is imposed on¿the vehicle¿owner or permitter because of the owner’s independent¿negligence¿and not the¿negligence¿of the driver. (Safeco Ins. Co. v. Gilstrap¿(1983) 141 Cal.App.3d 524, 530(. A person who places or entrusts his motor vehicle in the hands of another “whom he knows, or from 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 the plaintiff can establish that the injury complained of was proximately caused by the driver's disqualification, incompetency, inexperience or recklessness.” (Flores v. Enterprise Rent-A-Car Co.¿(2010) 188 Cal.App.4th 1055, 1063.) 

 

Here, First Class’s evidence shows it did not own the subject vehicle. Additionally, as discussed above, there is no evidence of an agency relationship between First Class and the other two defendants. Therefore, First Class meets its burden of showing no triable issues of material fact remain over whether it negligently entrusted the vehicle to Crump.  

 

Plaintiff failed to oppose this motion and thus fails to meet her burden of proof. Summary judgment is granted on this ground. 

 

Negligent Hiring 

 

The Court also notes that Plaintiff’s Complaint contained a cause of action against First Class for negligent hiring that First Class did not address in its memorandum of points and authorities. However, the notice of motion states that Plaintiff cannot establish any material fact that can support any cause of action against First Class. 

 

 

“[A]n employer can be liable to a third person for negligently hiring, supervising, or retaining an unfit employee.”¿ (Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1054.)¿ To establish a cause of action for negligent hiring, retention, or supervision, a plaintiff must show that the employer knew or should have known that hiring the employee created a particular risk or hazard and that particular harm occurs.¿ (See Z.V. v. County of Riverside (2015) 238 Cal.App.4th 889, 902; see also Doe, supra, 50 Cal.App.4th at p. 1054.)¿ To be liable for negligent supervision and hiring, there must be a connection between the employment and injury.¿ (Mendoza v. City of Los Angeles (1998) 66 Cal.App.4th 1333, 1341.)¿ “Liability for negligent hiring and supervision is based upon the reasoning that if an enterprise hires individuals with characteristics which might pose a danger to customers or other employees, the enterprise should bear the loss caused by the wrongdoing of its incompetent or unfit employees.¿ (Id. at 1339.)¿ “The tort has development in California in factual settings where the plaintiff’s injury occurred in the workplace, or the contact between the plaintiff and the employee was generated by the employment relationship.”¿ (Id. at pp. 1339-1340.)¿¿ 

   

Here, First Class’s evidence shows Crump was not its employee. Therefore, First Class could not have hired Crump. First Class meets its burden of showing no triable issues of material fact remain over whether it hired Crump.  

 

Plaintiff did not oppose this motion and therefore fails to meet her burden of proof. Summary judgment is granted on this ground. 

 

Statute of Limitations  

 

First Class finally argues that Plaintiff’s actions are barred under the statute of limitations because Plaintiff had actual knowledge of its identity at the time of the collision. First Class alleges the Doe Amendment naming it as a defendant does not relate back to the date the Complaint was filed. 

 

Code Civ. Proc., section 474 allows a named defendant to be substituted for a fictitious defendant if, at the time of filing the complaint, the plaintiff was genuinely unaware of the named defendant’s identity or of facts giving rise to a cause of action against the named defendant who was otherwise known to the plaintiff. (San Diego Navy Broadway Complex Coalition v California Coastal Com. (2019) 40 CA5th 563, 579.) The plaintiff’s lack of knowledge must be real and not feigned, but whether the plaintiff’s ignorance was due to misinformation or negligence is irrelevant. (Balon v Drost (1993) 20 CA4th 483, 488, 25 CR2d 12.) If these requirements are met, the amendment relates back to the filing of the original petition. (General Motors Corp. v. Superior Court (1996) 48 Cal.App.4th 580, 589.) The relation back doctrine does not apply when a plaintiff had constructive notice of the identity of a fictitiously named defendant. (Organization Comunidad de Alviso v City of San Jose (2021) 60 CA5th 783, 795.) 

 

An action for assault, battery, or injury to, or for the death or, an individual caused by the wrongful act or neglect of another must commence within two years of the injury. (Code Civ. Proc., 335.1.) 
 

Here, the collision took place in September 2018. Plaintiff named First Class in a Doe Amendment on February 10, 2022, more than two years after the collision. First Class offers Plaintiff’s responses to written discovery showing Plaintiff knew First Class owned the insurance policy covering the subject vehicle because her counsel took pictures of the insurance identification card on the day of the collision. (Bavilski Decl., Exh. 5.) The evidence shows Plaintiff had knowledge of First Class’s identity on the date of the accident. However, knowledge of the insurance policy alone is insufficient to show that Plaintiff had knowledge of the facts giving rise to a cause of action against First Class at the time of the accident. It is not clear from the insurance policy alone what First Class’s relationship was with Phinizy and Crump. Therefore, the evidence that Plaintiff had access to the insurance identification card is insufficient to show that Plaintiff had knowledge of the facts giving rise to her causes of action against First Class at the time of the accident.  

 

First Class fails to meet its burden of showing that there are no triable issues of material fact over whether Plaintiff’s Doe Amendment relates back to the date the Complaint was filed. Summary judgment is denied on this ground. Nevertheless, because summary judgment is granted as to all of Plaintiff’s causes of action, First Class’s motion for summary judgment is granted. 

  No opposition filed.