Judge: Michael E. Whitaker, Case: 20STCV40432, Date: 2023-01-11 Tentative Ruling
Case Number: 20STCV40432 Hearing Date: January 11, 2023 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
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DEPARTMENT |
32 |
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HEARING DATE |
January 11, 2023 |
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CASE NUMBER |
20STCV40432 |
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MOTION |
Motion for Summary Judgment |
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MOVING PARTY |
Defendant 323 Auto Collision Center |
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OPPOSING PARTIES |
Plaintiffs Qiang He, Wenfang Yin, Muchin He, Mulin He, and Muzhen He |
MOVING PAPERS:
OPPOSITION PAPERS:
REPLY PAPERS:
BACKGROUND
Plaintiffs Qiang He, Wenfang Yin, Muchun He, Mulin He, and Muzhen He (collectively, Plaintiffs) allege they sustained injuries in a motor vehicle collision when a tow truck driven by Defendant Jesus Gallegos (Gallegos) struck the rear of Plaintiffs’ vehicle. Plaintiffs allege that, at the time of the incident, Gallegos was an employee or agent of 323 Auto Collision (323 Auto) when the incident occurred. (See Complaint, MV.2(e), p. 4.) 323 Auto alleges it was not the employer of Gallegos at the time of the incident, it did not own the tow truck involved in the incident, nor did it have control over the manner in which Gallegos operated the tow truck.
323 Auto moves for summary judgment on Plaintiffs’ complaint which alleges motor vehicle and general negligence causes of action against 323 Auto. Plaintiffs oppose the motion. 323 Auto replies.
LEGAL STANDARD – MOTION FOR 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.)
“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”].)
JUDICIAL NOTICE
The Court grants 323 Auto’s requests for judicial notice of the following documents:
The Complaint filed in this action, case # 20STCV40432, filed October 20, 2020
Traffic Collision Report number CR 19-002 filed with the Los Angeles County Police Department Alhambra Judicial District, City of San Marino on January 2, 2019
California CVR Vehicle Registration Inquiry Report concerning Vehicle Identification Number (VIN) 3FRLL45Z26V336402
The Court notes that while it may take judicial notice of court records and official acts of state agencies, the truth of matters asserted in such documents is not subject to judicial notice. (See Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 482.)
EVIDENTIARY OBJECTIONS
With respect to Plaintiffs’ objections set forth in the response to 323 Auto’s separate statement of undisputed material facts, the Court finds Plaintiffs’ objections do not comply with the requirements set forth in California Rules of Court, rule 3.1354. Rules 3.1354 provides in pertinent part:
All written objections to evidence must be served and filed separately from the other papers in support of or in opposition to the motion. Objections to specific evidence must be referenced by the objection number in the right column of a separate statement in opposition or reply to a motion, but the objections must not be restated or reargued in the separate statement. Each written objection must be numbered consecutively and must:
(1) Identify the name of the document in which the specific material objected to is located;
(2) State the exhibit, title, page, and line number of the material objected to;
(3) Quote or set forth the objectionable statement or material; and
(4) State the grounds for each objection to that statement or material.
Written objections to evidence must follow one of the following two formats: [¶] . . . [¶]
A party submitting written objections to evidence must submit with the objections a proposed order. The proposed order must include places for the court to indicate whether it has sustained or overruled each objection. It must also include a place for the signature of the judge. The court may require that the proposed order be provided in electronic form. The proposed order must be in one of the following two formats: [¶] . . . [¶]
(See Cal. Rules of Court, rule 3.1354(b)-(c), emphasis added.) Here, Plaintiffs did not adequately describe the specific material objected to by stating for example the exhibit or quoting the objectionable material. Further Plaintiffs did not follow one of the permitted formats, and Plaintiffs did not submit a proposed order following one of the prescribed formats. As such, the Court declines to rule on Plaintiffs’ evidentiary objections set forth in the response to 323 Auto’s separate statement of undisputed material facts.
With respect to Plaintiffs’ objections to the declaration of Barbara A. Keough, the Court rules as follows:
With respect to 323 Auto’s objections to Plaintiffs’ Evidence Submitted with their Opposition to Motion for Summary Judgment, the Court rules as follows:
DISCUSSION
323 Auto argues that Plaintiffs cannot establish that 323 Auto was negligent in regard to the motor vehicle collision at issue to support the motor vehicle and general negligence causes of action alleged against 323 Auto in Plaintiffs’ complaint.
The elements of a cause of action for negligence are: (1) a duty on the part of defendant toward plaintiff; (2) defendant’s breach of that duty; and (3) harm to the plaintiff caused by that breach. (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1142.)
“To state a cause of action for negligence, a plaintiff must establish the defendant owed a legal duty of care. Generally speaking, all persons have a duty to take reasonable care in their activities to avoid causing injury, though particular policy considerations may weigh in favor of limiting that duty in certain circumstances.” (Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 209 (hereafter Brown).) In general, “[e]veryone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.” (Civ. Code, § 1714.) Section 1714 “establishes the default rule that each person has a duty to exercise, in his or her activities, reasonable care for the safety of others.” (Brown, supra, 11 Cal.5th at p. 214.)
AGENCY
323 Auto specifically argues it did not owe a duty to Plaintiffs, nor breach a duty to Plaintiffs in regard to the underlying accident because 323 Auto (1) did not own, possess, and/or control the vehicle that Gallegos was driving at the time of the subject incident, and (2) did not have a relationship with Gallegos, nor entrust the subject vehicle to Gallegos. In other words, 323 Auto attests it cannot be liable for Gallegos’ actions because Gallegos was not an employee or agent of 323 Auto at the time of the incident.
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.)
Civil Code sections 2330, 2334 and 2338 set forth provisions for holding a principal liable for the acts of an agent.
An agent represents his principal for all purposes within the scope of his actual or ostensible authority, and all the rights and liabilities which would accrue to the agent from transactions within such limit, if they had been entered into on his own account, accrue to the principal.
A principal is bound by 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.
Unless required by or under the authority of law to employ that particular agent, a principal is responsible to third persons for the negligence of his agent in the transaction of the business of the agency, including wrongful acts committed by such agent in and as a part of the transaction of such business, and for his willful omission to fulfill the obligations of the principal.
(Civ. Code, §§ 2330, 2334, 2338.)
CACI Jury Instruction 3705 provides the following guidelines for determining whether an agency relationship has been established:
If [name of plaintiff] proves that [name of defendant] gave [name of agent] authority to act on [his/her/nonbinary pronoun/its] behalf, then [name of agent] was [name of defendant]’s agent. This authority may be shown by words or may be implied by the parties’ conduct. This authority cannot be shown by the words of [name of agent] alone.
(Judicial Council Of California Civil Jury Instruction 3705.) Further, CACI Jury Instruction 3709 provides:
[Name of plaintiff] claims that [name of defendant] is responsible for [name of agent]'s conduct because [name of agent] was [name of defendant]'s apparent [employee/agent]. To establish this claim, [name of plaintiff] must prove all of the following:
1. That [name of defendant] intentionally or carelessly created the impression that [name of agent] was [name of defendant]'s [employee/agent];
2. That [name of plaintiff] reasonably believed that [name of agent] was [name of defendant]'s [employee/agent]; and
3. That [name of plaintiff] reasonably relied on [his/her/nonbinary pronoun] belief.
(Judicial Council Of California Civil Jury Instruction 3709.)
323 Auto advances the following Undisputed Material Facts (UMFs) in support of its contentions that it did not own or control the subject tow truck, nor did it have an employer/employee relationship with Gallegos, and thus is not liable for injuries that may have been sustained as a result of Gallegos’ conduct:
(UMFs 7-13.)
The Court notes, the following additional material facts contained within the declaration of Elizabeth Amezquita, Owner of 323 Auto Collision Center (Amezquita), advanced by 323 Auto:
(Declaration of Elizabeth Amezquita, Owner of 323 Auto Collision Center, ¶¶ 4, 6, emphasis added.)
Amezquita’s description of 323 Auto’s “arrangement” and the resulting inference that 323 Auto received tow truck services from Gallegos to transport the Dodge Charger from one location of 323 Auto to another location of 323 Auto shows that there is a triable issue of fact regarding whether an agency relationship, actual or ostensible, existed between 323 Auto and the other defendants including Gallegos (the tow truck driver) and Javier Flores (the tow truck owner). Moreover, the other reasonable inference drawn from Amezquita’s statements is that she “arranged” for the Dodge Charger to be transported from one location to another to benefit 323 Auto’s business.
Notwithstanding, Amezquita states in her declaration: “On the date of the subject accident, neither EC Collision nor 323 Auto Collision hired nor employed JESUS GALLEGOS. There was no employer-employee relationship nor any type of principal-agent relationship. He was merely a tow truck driver whom I understand worked for a tow truck company.” (Declaration of Elizabeth Amezquita, Owner of 323 Auto Collision Center, ¶ 7.) But Amezquita’s contentions that no relationship existed between 323 Auto and the other defendants is unconvincing when she states unequivocally that she arranged for the subject vehicle’s tow to benefit her company.
Without further evidence disputing that Gallegos was completing tow truck services arranged by, and as reasonably inferred, to aid 323 Auto at the time of the incident, 323 Auto has not met its burdens of production and persuasion that it is not liable to Plaintiffs because no agency, actual or ostensible, existed between 323 Auto and the other defendants.
BURDEN SHIFTING
“A defendant or cross-defendant 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, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2); accord Doe v. Good Samaritan Hosp. (2018) 23 Cal.App.5th 653, 661 [“It is not until the defendant meets this burden that the burden of production shifts to the plaintiff to show that a triable issue of one or more material facts exists as to the defense”].) And “[w]here the evidence presented by defendant does not support judgment in his favor, the motion must be denied without looking at the opposing evidence, if any, submitted by plaintiff.” (Hawkins v. Wilton (2006) 144 Cal.App.4th 936, 940.)
Because 323 Auto fails to advance evidence which conclusively rebuts the existence of any agency relationship between itself and the other defendants including Gallegos and Flores, the Court finds that 323 Auto has not met its initial burdens of production and persuasion that no triable issue of material fact exits. Consequently, the Court determines that the burden of production does not shift to Plaintiffs to produce evidence that raises triable issues of material fact.
CONCLUSION AND ORDER
Having found that 323 Auto has not met its initial burdens of production and persuasion, the Court denies 323 Auto’s motion for summary judgment. 323 Auto has failed to produce sufficient, competent evidence to persuade the Court that it is entitled to judgment as a matter of law on Plaintiffs’ complaint.
The Clerk of the Court shall provide notice of the Court’s ruling.
[1] Arranged is defined in part as “to bring about an agreement or understanding,” “to make preparations,” or “to bring about an agreement or understanding concerning.” (Merriam-Webster’s Collegiate Dict. (10th ed. 1999) p. 64.)