TENTATIVE

Defendants’ motion for summary judgment is DENIED.

Legal Standard

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) CCP Section 437c(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.) “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.”  (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense.  (CCP §437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.)  Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.”  (Dore v. Arnold Worldwide, Inc.¿(2006) 39 Cal.4th 384, 389.) 

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 that cause of action or a defense thereto.   To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.) 

“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.  But… the defendant must indeed present evidence.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 855, original italics.) 

Discussion

Defendants move for summary judgment on the ground that it owed no duty of care to Plaintiff and breached no duty of care.

            Negligence

The elements of a cause of action for negligence are duty, breach, causation, and damages.¿¿(Castellon v. U.S. Bancorp¿(2013) 220 Cal.App.4th 994, 998.)   The element of duty “may be imposed by law, be assumed by the defendant, or exist by virtue of a special relationship.”  (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 985.)  “The issue of whether a duty exists is a question of law to be determined by the court . . . .”  (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1620.)  A party who moves for summary judgment because it did not owe a duty of care must affirmatively negate the existence of duty.  (Eriksson v. Nunnink (2011) 191 Cal.App.4th 826, 848-850.) 

“The doctrine of respondeat superior imposes vicarious liability on an employer for the torts of an employee acting within the scope of his or her employment, whether or not the employer is negligent or has control over the employee… ‘[W]here the question is one of vicarious liability, the inquiry should be whether the risk was one “that may fairly be regarded as typical of or broadly incidental” to the enterprise undertaken by the employer.” (Jeewarat v. Warner Bros. Entertainment Inc. (2009) 177 Cal. App. 4th 427, 434.)

The complaint alleges that on or about August 6, 2017, at the subject location, the defendants, and each of them, so negligently entrusted, managed, maintained, drove, and operated said defendants' vehicle so as to cause defendants' vehicle to collide with the plaintiff's vehicle. (Complaint ¶ 9.)

Defendant argues that Plaintiff could not even identify the offending vehicle or if Defendant gave permission to have the offending vehicle to be driven. (SMUF 9) and claimed that no one witnessed the accident. (SMUF 10.) Defendant also argues that in his complaint, Plaintiff alleged the vehicle that was involved in the accident had California license plates. (SUMF 4.) However, in discovery responses, Plaintiff emphasized that Defendant’s vehicle a newer black dodge caravan with no front plate and a rear Arizona license plate. (SMUF 14, 19.) Twelve days after the accident, on 18 August 2017, Plaintiff reported it as a hit and run accident. (SMUF 11, 13.) Plaintiff described the offending driver as a “35 year old white bi-racial male . . . approximately 5’8” tall, and 180 lbs., . . . had a short beard and mustache as well as and tattoos on both forearms.” (SMUF 15.) After asking for identification and proof of insurance, Plaintiff alleges that the offending driver and his passenger returned to their unidentified vehicle and fled the scene. (SMUF 16.) He then followed the unidentified driver to a parking facility belonging to Defendant. (SMUF 17.) Plaintiff observed the vehicle approach the gate of the Hotel’s gated subterranean garage, but when he observed Plaintiff pulling up, he reversed out of the driveway and drove away. (SMUF 17.) Later that evening at about 9 p.m., Plaintiff returned to the Hotel and discovered a vehicle which matched the description of the driver’s vehicle parked inside. (SMUF 18.) However, instead of displaying a single Arizona plate on its rear, the vehicle which Plaintiff observed at the Hotel had front and rear Colorado plates. (SMUF 19.)

The Court finds that Defendant has not met its burden to show no triable issues of material fact exist as to whether it owned or operated the vehicle. First, Defendant’s evidence in the form of Plaintiff’s responses to discovery do not show that Plaintiff has no evidence. In these responses, Plaintiff makes no admissions that he cannot establish an essential element of fact. 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.  But… the defendant must indeed present evidence.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 855, original italics.) Moreover, the evidence submitted in fact shows there are triable issues of fact. First, the accident report that Defendant cites to in evidence contains a further clarification as to why the license plate of the vehicle parked in Defendant’s parking garage matching Plaintiff’s description of the vehicle that collided into him are different. The evidence states that although the license plates were different, Plaintiff believes that the vehicle parked in the garage shielded license plates after the incident. (SMUF 18.) Further, the report also states that the vehicle parked in the garage was misaligned, indicating that it had been in a front collision. (Id.) Moreover, the reasonable inferences drawn from this evidence show there are triable issues of fact as to whether the driver of the vehicle was an employee of Defendant because it was attempting to enter a gated parking structure. While it may be true that the fact that the parking garage was gated does not conclusively demonstrate that it was an employee parking structure, there are no other facts suggesting one way or another. As such, these are triable issues of fact. The burden does not shift to Plaintiff.

As there are no other bases asserted in Defendant’s motion for summary adjudication or summary judgment, the motion is denied.

Conclusion

Accordingly, Defendants’ motion for summary judgment is DENIED.

Defendants are ordered to give notice.