Judge Michelle C. Kim, Case 21STCV14191 2023-05-17 Tentative Ruling

On April 14, 2021, Plaintiff James Kay (“Plaintiff”) filed this action against Defendant Avis Budget Car Rentals (“Avis”) for damages relating to a hit and run collision. Plaintiff alleges that his vehicle was struck by a vehicle rented through Avis. Plaintiff amended the Complaint to add Defendant Pedro Ivan Jiminez Aguilera (“Aguilera”) on October 14, 2021. Plaintiff asserts causes of action for motor vehicle and general negligence. As against Defendant Avis, the claims are based on negligent entrustment.

Defendant Avis now moves for summary judgment, or alternatively, summary adjudication, as to Plaintiffs claims. Plaintiff opposes the motion, and Avis filed a reply.

Defendant Avis makes objections to facts asserted within Plaintiff’s responsive separate statement. Objections to a separate statement are improper. (CRC, Rule 3.1354(b).) The Court, therefore, declines to rule on the purported objections to the facts asserted in the separate statement.

Summary judgment is proper “if all the papers submitted 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.” (CCP § 437c(c).) The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A defendant moving for summary judgment must show either (1) that one or more elements of the cause of action cannot be established or (2) that there is a complete defense to that cause of action. (Id. at § 437c(p).) A defendant may discharge this burden by furnishing either (1) affirmative evidence of the required facts or (2) discovery responses conceding that the plaintiff lacks evidence to establish an essential element of the plaintiff's case. If a defendant chooses the latter option, he or she must present evidence “and not simply point out that plaintiff does not possess and cannot reasonably obtain needed evidence….” (Aguilar, supra, 25 Cal.4^th at 865-66.)

[A] defendant may simply show the plaintiff cannot establish an essential element of the cause of action “by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Id. at p. 854.) Thus, rather than affirmatively disproving or negating an element (e.g., causation), a defendant moving for summary judgment has the option of presenting evidence reflecting the plaintiff does not possess evidence to prove that element. “The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff's cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing” to support an essential element of his case. (Aguilar, supra, at p. 855.) Under the latter approach, a defendant's initial evidentiary showing may “consist of the deposition testimony of the plaintiff's witnesses, the plaintiff's factually devoid discovery responses, or admissions by the plaintiff in deposition or in response to requests for admission that he or she has not discovered anything that supports an essential element of the cause of action.” (Lona v. Citibank, N.A., supra, 202 Cal.App.4th at p. 110.) In other words, a defendant may show the plaintiff does not possess evidence to support an element of the cause of action by means of presenting the plaintiff's factually devoid discovery responses from which an absence of evidence may be reasonably inferred. (Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 83.)

Thus, a moving defendant has two means by which to shift the burden of proof under the summary judgment statute: “The defendant may rely upon factually insufficient discovery responses by the plaintiff to show that the plaintiff cannot establish an essential element of the cause of action sued upon. [Citation.] [Or a]lternatively, the defendant may utilize the tried and true technique of negating (‘disproving’) an essential element of the plaintiff's cause of action.” (Brantly v. Pisaro (1996) 42 Cal.App.4th 1591, 1598.)

Until the moving defendant has discharged its burden of proof, the opposing plaintiff has no burden to come forward with any evidence. Once the moving defendant has discharged its burden as to a particular cause of action, however, the plaintiff may defeat the motion by producing evidence showing that a triable issue of one or more material facts exists as to that cause of action. (CCP § 437c(p)(2).) On a motion for summary judgment, the moving party's supporting documents are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of summary judgment should be resolved against granting the motion. (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21.) However, “when discovery has produced an admission or concession on the part of the party opposing summary judgment which demonstrates that there is no factual issue to be tried, certain of these stern requirements applicable in a normal case are relaxed or altered in their operation.” (Ibid.) “The reasons for this attitude toward the legitimate products of discovery are clear. As the law recognizes in other contexts (see Evid. Code, §§ 1220–1230) admissions against interest have a very high credibility value. This is especially true when, as in this case, the admission is obtained not in the normal course of human activities and affairs but in the context of an established pretrial procedure whose purpose is to elicit facts. Accordingly, when such an admission becomes relevant to the determination, on motion for summary judgment, of whether or not there exist triable issues of fact (as opposed to legal issues) between the parties, it is entitled to and should receive a kind of deference not normally accorded evidentiary allegations in affidavits.” (Id. at 22.)

Here, Defendant bases the majority of its argument regarding negligent entrustment on Plaintiff’s devoid discovery responses. In opposition, Plaintiff requests a continuance under CCP § 437c(h). Plaintiff represents that at the time of the filing, Plaintiff has not yet taken depositions of Defendant's employees, agents, and/or person(s) most knowledgeable. (Singer Decl., ¶ 7.) The anticipated depositions of Defendant's employees, agents, and/or person(s) most knowledgeable are reasonably believed to uncover further evidence including, but not limited to: (1) Defendant's knowledge of Defendant Aguilera's unfitness at the time of rental; (2) the identities of individuals involved with the rental of Defendant's vehicle; (3) whether rental car affiliates are properly trained to confirm the validity of a presented license; (4) whether rental car affiliates are properly trained to confirm the identity of the person presenting the license at the time of rental; and (5) if such training was provided, whether it was followed at the time Defendant Avis rented its vehicle to Defendant Aguilera. (Singer Decl., ¶ 5.) Moreover, the anticipated depositions of Defendant's employees, agents, and/or person(s) most knowledgeable are reasonably believed to uncover further evidence related to Defendant's maintenance of the subject vehicle and the procedures for verifying the computer-generated reports regarding maintenance are accurate. (Singer Decl., ¶ 6.)

Further, Plaintiff represents that due to difficulties in Plaintiff's counsel's personal life, including long-term health concerns within his family which he has been required to assist, as well as bouts of personal sickness, counsel have been unable to otherwise timely notice and take these depositions prior to the filing of the instant MSJ opposition. (Singer Decl., ¶ 8.) Pursuant to, without limitation, CCP § 437c(h), Plaintiff's counsel reasonably believes that essential evidence to counter the pending motion exists but cannot be presented in time for opposition. (Singer Decl., ¶ 5-6, 9.) Moreover, parties require further written discovery to be completed to ensure efforts have been taken to uncover all evidence necessary to oppose Defendant's MSJ. (Singer Decl., ¶ 10.) Parties have not completed written discovery due to limitations in Plaintiff's counsel's ability to timely serve such requests, which unfortunately threatens Plaintiff's ability to fully and completely oppose Defendant's motion. (Singer Decl., ¶ 11.)

Based on the foregoing, the Court finds that a continuance is justified under CCP § 437c(h), especially in light of Defendant’s reliance on Plaintiff’s factually devoid discovery responses to support this motion.

Defendant’s motion for summary judgment is CONTINUED to August 15, 2023. Opposition papers are due August 1, 2023. Reply papers are due August 7, 2023.

Hon. Michelle C. Kim

Judge of the Superior Court