Judge Michael J. Strickroth, Case 2020-01173674 2022-11-07 Tentative Ruling

Judge: Michael J. Strickroth, Case: 2020-01173674, Date: 2022-11-07 Tentative Ruling

Motion for Summary Judgment and/or Adjudication

Defendants Armin Anvaripour and Mahasti Anvaripour’s motion for summary judgment as to the Complaint filed by plaintiffs Clemente Carrillo Victoriano, Guardian Ad Litem for Luz Marienne Carrillo Victoriano, Individually and Successor-In-Interest to The Estate of Uriel Carrillo; Clemente Carrillo Victoriano, Individually and Successor-In-Interest to The Estate of Uriel Carrillo; C. Hipolita Carrillo Victoriano, Individually and Successor-In-Interest to The Estate Of Uriel Carrillo; Catalina Garcia Soto, Individually an Successor-In-Interest to The Estate of Uriel Carrillo is DENIED.

“A party may move for summary judgment in an action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.” Code of Civil Procedure § 437c(a)(1).) “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(p)(2). “In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.” Code Civ. Proc. § 437c(q).

Defendants’ Objections to Plaintiff’s Evidence:

The Court declines to rule on Defendants’ objections to Plaintiffs’ evidence on the grounds that the evidence is not material to the disposition of the Motion.

Merits:

In the Complaint, Plaintiffs allege the following two causes of action: (1) Wrongful Death; and (2) Survival Action.

“The elements of a wrongful death cause of action are ‘(1) a “wrongful act or neglect” on the part of one or more persons that (2) “cause[s]” (3) the “death of [another] person.” ’ ” Arista v. County of Riverside (2018) 29 Cal.App.5th 1051, 1060 (Arista). A Survival Action is a “separate and distinct cause of action which belonged to the decedent before death but, by statute, survives the event.” Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1264. As such, both causes of action rely on a finding of negligence against Defendants. “The elements of negligence are ‘ “ ‘a legal duty to use due care, a breach of such legal duty, and the breach as the proximate or legal cause of the resulting injury.’ ” ’ ” Arista, supra, at 1060.

New Theories of Liability:

Defendants contend Plaintiffs’ opposition improperly attempts to expand the allegations of their Complaint by raising new theories of Vicarious Liability and Negligent Hiring, Training and Supervision, which were not pled in the Complaint.

“The complaint limits the issues to be addressed at the motion for summary judgment. The rationale is clear: It is the allegations in the complaint to which the summary judgment motion must respond. [Citation.] Upon a motion for summary judgment, amendments to the pleadings are readily allowed. [Citation.] If plaintiff wishes to expand the issues presented, it is incumbent on plaintiff to seek leave to amend the complaint either prior to the hearing on the motion for summary judgment, or at the hearing itself. [Citation.] To allow a party to expand its pleadings by way of opposition papers creates, as it would here, an unwieldy process.” Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258 (Laabs).

“To allow an issue that has not been pled to be raised in opposition to a motion for summary judgment in the absence of an amended pleading, allows nothing more than a moving target. For Code of Civil Procedure section 437c to have procedural viability, the parties must be acting on a known or set stage.” Laabs, Id., at 1258, fn. 7.

“Initially, if a plaintiff wishes to introduce issues not encompassed in the original pleadings, the plaintiff must seek leave to amend the complaint at or prior to the hearing on the motion for summary judgment. Second, new factual issues presented in opposition to a motion for summary judgment should be considered if the controlling pleading, construed broadly, encompasses them. In making this determination, courts look to whether the new factual issues present different theories of recovery or rest on a fundamentally different factual basis.” Laabs, id. at 1257, fn. omitted.

“[T]rial courts are empowered to read the pleadings broadly, ‘in the light of the facts adduced in the summary judgment proceeding,’ if those pleadings give fair notice to the opposing party of the theories on which relief is generally being sought. [Citation.] The test is whether such a particular theory or defense is one that the opposing party could have reasonably anticipated would be pursued, and whether a request for leave to amend accordingly would likely have been granted .... [Citation.]” Howard v. Omni Hotels Management Corp. (2012) 203 Cal.App.4th 403, 422 (Howard).

Here the Complaint alleges: “Plaintiff are informed and believes, and thereby alleges, that each of the Defendants herein was at all times the agent and/or employee of each remaining Defendants, and was at all times mentioned, acting within the course and scope of said agency and/or employment, and each Defendant was acting with full knowledge and consent of his superior or principal, and each such principal or superior at all times ratified and acquiesced in each and every set of each Defendant and agent thereof, and as such each Defendant bound the other by his acts and deeds.” (Complaint, ¶ 11.)

Based on the allegations in paragraph 11 of the Complaint, which alleges “each of the Defendants herein was at all times the agent and/or employee of each remaining Defendants,” the Complaint can be reasonably construed as encompassing a claim of liability based on the principle of agency against Defendants.

Vicarious Liability based on an Agency relationship:

Plaintiffs claim Defendants are vicariously liable for the alleged negligence of defendants Raul Rodriguez and Mohammed Bentadghout under the doctrine of agency.

“[A] principal who personally engages in no misconduct may be vicariously liable for the tortious act committed by an agent within the course and scope of the agency.” (Peredia v. HR Mobile Services, Inc. (2018) 25 Cal.App.5th 680, 691, 236 Cal.Rptr.3d 157.) “An agent is one who represents another, called the principal, in dealings with third persons. Such representation is called agency.” (Code Civ. Proc. § 2295.) “ ‘An agent “is anyone who undertakes to transact some business, or manage some affair, for another, by authority of and on account of the latter, and to render an account of such transactions.” (3 Cal.Jur.3d, Agency, § 1, p. 10.) “The chief characteristic of the agency is that of representation, the authority to act for and in the place of the principal for the purpose of bringing him or her into legal relations with third parties. [Citations.]” [Citation.] .... “The significant test of an agency relationship is the principal’s right to control the activities of the agent. [Citations.] It is not essential that the right of control be exercised or that there be actual supervision of the work of the agent; the existence of the right establishes the relationship.” [Citation.]’ [Citation.]” Violette v. Shoup (1993) 16 Cal.App.4th 611, 620.

“The moving party bears the burden of persuasion that there is no triable issue of material fact. Additionally, the moving party bears the initial burden of production to make a prima facie showing that no triable issue of material fact exists.” Laabs, supra, at 1250.

Here, although the moving papers address Defendants alleged direct negligence and the issue of whether decedent Uriel Carrillo was Defendants’ employee, the moving papers do not address Plaintiffs’ allegations of negligence based on the doctrine of agency. Therefore, Defendants have not met their initial burden to show there is no triable issue of material fact as to Defendants’ vicarious liability based on an agency relationship between Defendants.

Accordingly, the Motion for Summary Judgment is DENIED.

Plaintiffs to give notice.