Judge: Michael E. Whitaker, Case: 19STCV29485, Date: 2022-09-20 Tentative Ruling

Case Number: 19STCV29485    Hearing Date: September 20, 2022    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOVING PAPERS:

1. Notice of Motion and Motion for Summary Judgment or, in the Alternative, Summary Adjudication; Memorandum of Points and Authorities
2. Separate Statement of Undisputed Material Facts in Support of Motion for Summary Judgment or, in the Alternative, Summary Adjudication
3. Appendix of Exhibits in Support of Motion for Summary Judgment or, in the Alternative, Summary Adjudication
4. Declaration of Sevan Gobel in Support of Motion for Summary Judgment or, in the Alternative, Summary Adjudication

OPPOSITION PAPERS:

1. Opposition to Motion for Summary Judgment; Memorandum of Points and Authorities
2. Evidence in Support of Opposition to Motion for Summary Judgment
3. Response to Separate Statement of Undisputed Facts in Support of Motion for Summary Judgment

REPLY PAPERS:

1. Reply in Support of Motion for Summary Judgment
2. Reply to Response to Separate Statement of Undisputed Facts
3. Evidentiary Objections to Evidence in Support of Opposition to Motion for Summary Judgment
4. Request for Judicial Notice in Support of Objections to Evidence in Support of Opposition to Motion for Summary Judgment

BACKGROUND

Plaintiffs Winnie Cheung and Michael Cheung (collectively, “Plaintiffs”) sued defendant Navigators Real Estate, Inc. (“Navigators”) based on a vehicle-to-pedestrian collision that resulted in the death of Chan Shu Cheung (“Decedent”).  Plaintiffs allege defendant Vanna Phung (“Phung”) struck Decedent with her vehicle while acting within the course and scope of her employment with Navigators.  Navigators moves for summary judgment on Plaintiffs’ complaint.  Plaintiffs oppose the motion.

In the alternative, Navigators moves for summary adjudication of four issues.  The Court notes that Navigators have not complied with the applicable procedural requirements for summary adjudication. “If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claim for damages, or issues of duty must be stated in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts.” (Cal. Rules of Court, rule 3.1350, subd. (b).) Under Rule 3.1450, subdivision (d)(1), “[t]he Separate Statement of Undisputed Material Facts in support of a motion must separately identify: (A) Each cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion; and (B) Each supporting material fact claimed to be without dispute with respect to the cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion.” (Cal. Rules of Court, rule 3.1350, subd. (d)(1).)

Here, Navigators’ separate statement of undisputed material facts does not separately identify the four issues on which Navigators seeks summary adjudication with each supporting material fact.  The Court therefore considers the motion as a motion for summary judgment.  

LEGAL STANDARD–SUMMARY JUDGMENT

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law[.] There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)  “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.”  (Ibid.; Smith v. Wells Fargo Bank, N.A. (2005) 135 Cal.App.4th 1463, 1474 [summary judgment standards held by Aguilar apply to summary adjudication motions].)  Further, in line with Aguilar v. Atlantic Richfield Co., “[o]n a motion for summary adjudication, the trial court has no discretion to exercise.  If a triable issue of material fact exists as to the challenged causes of action, the motion must be denied. If there is no triable issue of fact, the motion must be granted.”  (Fisherman's Wharf Bay Cruise Corp. v. Superior Court (2003) 114 Cal.App.4th 309, 320.)

“On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues.  Only when the inferences are indisputable may the court decide the issues as a matter of law. If the evidence is in conflict, the factual issues must be resolved by trial.”  (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839 [cleaned up].)  Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true.  Nor may the trial court grant summary judgment based on the court's evaluation of credibility.”  (Id. at p. 840 [cleaned up]; see also Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].) 

REQUEST FOR JUDICIAL NOTICE

Under Evidence Code section 451, “[j]udicial notice shall be taken of the following: (a) The decisional, constitutional, and public statutory law of this state and of the United States and the provisions of any charter described in Section 3, 4, or 5 of Article XI of the California Constitution…(f) Facts and propositions of generalized knowledge that are so universally known that they cannot reasonably be the subject of dispute. ” (Evid. Code, § 451, subds. (a), (f).)

Under Evidence Code section 452, “[j]udicial notice may be taken of the following matters to the extent that they are not embraced within Section 451: (a) The decisional, constitutional, and statutory law of any state of the United States and the resolutions and private acts of the Congress of the United States and of the Legislature of this state. (b) Regulations and legislative enactments issued by or under the authority of the United States or any public entity in the United States. (c) Official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States (d) Record of (1) any court of this state or (2) any court of record of the United States or of any state of the United States…(g) Facts and propositions that are of such common knowledge within the territorial jurisdictions of the court that they cannot reasonably be the subject of dispute. (h) Facts and propositions that are not reasonably subject to dispute and are capably of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code, § 452, subds. (a)-(d), (g), (h).)

The Court “shall take notice of any matter specified in Section 452 if a party requests it and: (a) Gives each adverse party sufficient notice of the request, through the pleadings or otherwise, to enable such adverse party to prepare to meet the request; and (b) Furnishes the court with sufficient information to enable it to take judicial notice of the matter.” (Evid. Code, § 453.)

            Here, Navigators requests the Court to take judicial notice of certain documents filed in this case as support for Navigators’ objections to Plaintiffs’ evidence in opposition to the motion for summary judgment.  The Court declines to take judicial notice of the requested records because the Court does not find them to be relevant to the Court’s determination of Navigators’ evidentiary objections.  (Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063 (disapproved on other grounds by In re Tobacco Cases II (2007) 41 Cal.4th 1257, 1276).)  Accordingly, the Court denies Navigators’ requests for judicial notice Nos. 1 and 2.

EVIDENCE

            With respect to Navigators’ objections to the Plaintiffs’ evidence submitted in support of the opposition to motion for summary judgment, the Court rules as follows:

1. Overruled.

2. Overruled.

    

   DISCUSSION

    

   Navigators moves for summary judgment on the sole cause of action for wrongful death based on negligence in Plaintiffs’ complaint.  Navigators asserts that Plaintiffs cannot establish that Phung was acting within the course and scope of her employment with Navigators at the time of the incident.  Specifically, Navigators contends that Plaintiffs’ argument that Phung was at Gold World Plaza (“Plaza”) on the morning of the incident to attend a meeting of the West San Gabriel Valley Association of Realtors (“WSGVAR”) is speculative, and Plaintiffs have no evidence to establish otherwise.

    

1. Vicarious Liability: Respondeat Superior

    

   Under the doctrine of respondeat superior, an employer is vicariously liable for the torts of its employees committed within the scope of the employment.  (Rodgers v. Kemper Construction Co. (1975) 50 Cal.App.3d 608, 617.)  Respondeat superior is a form of strict liability: The employer is responsible for the employee’s wrongful acts notwithstanding the exercise of due care in hiring the employee or supervising his or her conduct.  (Hinman v. Westinghouse Electric Company (1970) 2 Cal.3d 956, 960.)

    

   Respondeat superior may also be based on either actual or ostensible agency.  A principal may be vicariously liable for injury committed by an act of its actual agent where: (i) The principal directly authorizes the act to be committed; (ii) The agent commits the act in the scope of his or her employment and in performing service on behalf of the principal; or (iii) The principal ratifies its agent’s conduct after the fact by voluntarily electing to adopt the agent’s conduct.  (Doe v. Roman Catholic Archbishop of Los Angeles (2016) 247 Cal.App.4th 953, 969.)  With respect to ostensible agency, a principal may be precluded from denying an agency relationship if the principal, expressly or by conduct, caused others to believe that such a relationship exists and they reasonably relied thereon in dealing with the supposed agent or employee.  (Civ. Code, §§ 2298, 2300; Ermoian v. Desert Hosp. (2007) 152 Cal.App.4th 475, 502.) 

    

                Plaintiff bears the burden of proving the tortious act was committed within the course and scope of the employment. (Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 209.) 

   The conduct of an employee falls within the scope of his or her employment if the conduct either (1) is required by or incidental to the employee’s duties, or (2) it is reasonably foreseeable in light of the employer’s business.  (Crouch v. Trinity Christian Center of Santa Ana, Inc. (2019) 39 Cal.App.5th 995, 1015.)  If the employee’s conduct meets either test, the employer is vicariously liable regardless of whether the employee acted maliciously and/or intentionally.  (Ibid.)  Stated differently, “there must be a nexus between the employee’s tort and the employment to ensure that liability is properly placed on the employer.”  (Marez v. Lyft, Inc. (2020) 48 Cal.App.5th 569, 582; see Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 297-298 [the tort must be “engendered by or arise from” – or be an “outgrowth” of – the employee’s work].)

    

   “Where an employee’s activity does not come within the scope of employment, it is not part of the special employer-employee relationship.  If an employee’s act is purely personal, it is not ‘typical of or broadly incidental to the employer’s enterprise.’  If the main purpose of the injury-producing activity ‘was the pursuit of the employee’s personal ends, the employer is not liable.’”  (Sunderland v. Lockheed Martin Aeronautical Systems Support Co. (2005) 130 Cal.App.4th 1, 11 [cleaned up].)   “There is simply no basis to impose vicarious liability where the employee’s ‘entire trip serves only his or her own personal purposes.’”  (Marez, supra, 48 Cal.App.5th at p. 582.)

    

2. Navigators’ Evidence

    

   Navigators advances the transcript of Phung’s deposition taken December 17, 2020.  At deposition, Phung testified that, on the date of the incident, she left her house at 8:00 A.M. to drive her children to school.  (Appendix of Exhibits, Exhibit D, p. 21.)  Phung testified that she dropped off her children at school at approximately 8:15 A.M.  (Appendix of Exhibits, Exhibit D, p. 22.)  From there, Phung testified that she drove to the Plaza, where the incident later occurred, to buy prepared food from a restaurant.  (Appendix of Exhibits, Exhibit D, pp. 22, 25.)  Phung testified that she has been to the Plaza more than 20 times to buy food from its restaurants.  (Appendix of Exhibits, Exhibit D, pp. 23.)  Phung testified that she did not meet any friends at the Plaza and was there for approximately 30 minutes.  (Appendix of Exhibits, Exhibit D, p. 26.)  Finally, Phung testified she returned to her car and exited the parking lot of the Plaza with the intent to return home.  (Appendix of Exhibits, Exhibit D, p. 67.) 

    

   Navigators also advances the transcript of the deposition of Brian Hwai-Ming Chen (“Chen”), who is the COO for Navigators.  At deposition, Chen testified that Navigators does not reimburse its sales agent for vehicle expenses or gas mileage.  (Appendix of Exhibits, Exhibit E, p. 66.)  Chen testified that Navigators does not reimburse membership fees or dues for its sales agents within organizations like WSGVAR.  (Appendix of Exhibits, Exhibit E, p. 22.)  Finally, Chen testified that Navigators does not encourage its agents to attend association meetings, though they are free to join any such organization of which he is a member.  (Appendix of Exhibits, Exhibit E, p. 117.) 

    

               This evidence is sufficient to meets Navigators’ burden to show Plaintiffs cannot establish Phung was acting within the course and scope of her employment with Navigators at the time of the collision.  Navigators has shifted the burden to Plaintiffs to raise triable issues of material fact as to whether Phung’s conduct at the time of the incident was either required or incidental to her employment or reasonably foreseeable in light of Navigators’ business.

    

3. Plaintiffs’ Evidence

    

   In opposition, Plaintiffs advance the transcript of Chen’s deposition.  At deposition, Chen testified that it is required for Navigators’ sales agents to be a member of a real estate association such as WSGVAR to do business.  (Evidence in Support of Opposition, Exhibit 3, pp. 19-20, 51-52.)  Chen testified that he is a member of WSGVAR and, at the time of his deposition, was the president-elect for the organization.  (Evidence in Support of Opposition, Exhibit 3, p. 23.)  Chen testified that WSGVAR holds breakfast meetings at the Plaza where agents can network and potentially find business opportunities.  (Evidence in Support of Opposition, Exhibit 3, pp. 24-28.)  Chen testified that he did not attend a WSGVAR breakfast meeting on the date of the incident.  (Evidence in Support of Opposition, Exhibit 3, p. 28.)  Chen testified that back in 2019, WSGVAR’s breakfast meetings began at 8:30 A.M. and ended at  9:15 to 9:25 A.M.  (Evidence in Support of Opposition, Exhibit 3, p. 71.)  Chen testified that WSGVAR provided donuts and coffee at its breakfast meetings, with additional catering for special events.  (Evidence in Support of Opposition, Exhibit 3, pp. 72-73, 113)  Finally, Chen testified that although Phung had applied for membership with WSGVAR prior to the incident and was free to attend the breakfast meeting at the Plaza on the morning of the incident, he was unsure whether Phung would have been aware of the meeting because Phung had not yet attended WSGVAR orientation – which is when new agents are introduced to the organization and learn of its programs like the breakfast meetings. (Evidence in Support of Opposition, Exhibit 3, p. 114.) 

    

               Plaintiffs also advance the transcript of the deposition of Calvin Gong (“Gong”), who is the COO of Navigators.  At deposition, Gong testified that he sometimes encourages sales agents to attend meetings held by WSGVAR.  (Evidence in Support of Opposition, Exhibit 4, pp. 28-29.)  Gong also testified that Navigators’ agents are required to join at least one local realtors’ association of their choosing.  (Evidence in Support of Opposition, Exhibit 4, pp. 29-31.) 

    

               Plaintiffs also advance Phung’s deposition transcript.  At deposition, Phung testified that she had had breakfast around 7:30 A.M. on the morning of the incident.  (Evidence in Support of Opposition, Exhibit 5, p. 19.)  Phung also testified that she did not plan to do any realty work on the day of the incident because she did not have any showings or any clients.  (Evidence in Support of Opposition, Exhibit 5, p. 19.)  Finally, Phung testified that she did not purchase any food at the Plaza on the date of the incident because she did not see anything that she liked.  (Evidence in Support of Opposition, Exhibit 5, p. 90.)

    

               Plaintiffs also advance a copy of Phung’s application for membership with WSGVAR signed January 24, 2019.  (Evidence in Support of Opposition, Exhibit 6.) 

    

   Plaintiffs’ evidence fails to raise issues of material fact as to whether Phung’s conduct at the time of the incident was either required or incidental to her employment or reasonably foreseeable in light of Navigators’ business.  Specifically, Plaintiffs’ evidence fails to show that Phung was at the Plaza for any work-related activities rather than to buy food, as she testified.  Without such evidence, Plaintiffs’ contention that Phung was present at the Plaza on the morning of the incident is speculative, at best.   Evidence “based on speculation, imagination, guess work, or mere possibilities” is insufficient to meet Plaintiffs’ burden and controvert Navigators’ evidence in support of the motion.  (Doe v. Salesian Society (2008) 159 Cal.App.4th 474, 481.)   

    

   CONCLUSION AND ORDER

    

   In considering the competent evidence proffered by Navigators and Plaintiffs[1], and viewing such evidence in the light most favorable to Plaintiffs, the Court finds Navigators has met its burden of production/persuasion that there is no triable issue of material fact regarding Navigators’ Undisputed Material Facts Nos. 10, 11, and 13 through 16, and that it is entitled to judgment as a matter of law.  Stated differently, the Court determines as a matter of law that Navigators cannot be held vicariously liable for Phung’s conduct with respect to the subject incident.

    

   Accordingly, the Court grants Navigators’ motion for summary judgment.  Navigators shall provide notice of the Court’s ruling, and file a proof of service of the same.