Judge: Shirley K. Watkins, Case: 19STCV37977, Date: 2023-03-08 Tentative Ruling
Case Number: 19STCV37977 Hearing Date: March 8, 2023 Dept: T
3/8/2023
SALINAS v TRANSIT 19STCV37977
CONSOLIDATED WITH:
19STCV41653,20STCV39458,19STCV
44511,
20STCV17386,20STCV35396,
20STCV37023,
20STCV38966,20STCV39216,
20STCV39249,
20STCV36631
RELATED
WITH: 21STCV07756
[TENTATIVE] ORDER RE:
1. MOTION FOR SUMMARY JUDGMENT
OR ALTERNATIVELY FOR SUMMARY ADJUDICATION AGAINST PLAINTIFFS ARCELIA QUINTEROS
AND MIGUEL IBARRA’S COMPLAINT BY DEFENDANT THE UNIVERSAL CHURCH, INC.
2. MOTIONS FOR SUMMARY
JUDGMENT OR ALTERNATIVELY FOR SUMMARY ADJUDICATION AGAINST PLAINTIFF ROSA
PANIAGUA GONZALEZ’S COMPLAINT BY DEFENDANT THE UNIVERSAL CHURCH, INC.
3. MOTION FOR SUMMARY JUDGMENT
AGAINST PLAINTIFF ISABEL LOPEZ LEMUS’ COMPLAINT BY DEFENDANT THE UNIVERSAL
CHURCH, INC.
[TENTATIVE] ORDER:
1. Defendant The Universal
Church, Inc.’s Motion for Summary Judgment and alternatively for Summary
Adjudication against Plaintiffs Arcelia Quinteros and Miguel Ibarra’s Complaint
is DENIED.
2. Defendant The Universal Church, Inc.’s
Motion for Summary Judgment and alternatively for Summary Adjudication against
Plaintiff Rosa Paniagua Gonzalez’s Complaint is GRANTED.
3.
Defendant The Universal Church, Inc.’s Motion for Summary Judgment
against Plaintiff Isabel Lopez Lemus’
Complaint is DENIED.
4. Plaintiffs Arcelia Quinteros and
Miguel Ibarra’s Request for Joinder in Co-Plaintiffs' oppositions is DENIED.
INTRODUCTION
Defendant The Universal Church,
Inc. (Defendant) filed a motion for summary judgment (MSJ) and alternatively a
motion for summary adjudication (MSA) against the Complaint titled, ARACELI
QUINTEROS and MIGUEL IBARRA v. TRANSIT SYSTEMS UNLTD., INC., et al., Case No.
20STCV17386 (MSJ/MSA reservation no. ending in x5798). Defendant’s MSA against Quinteros Plaintiffs’
Complaint asserted two issues: (1) Issue 1 is against the first Cause of Action
(COA) for motor vehicle liability; and (2) Issue 2 is against the second COA for
negligence. Plaintiffs Araceli Quinteros
and Miguel Ibarra are collectively referred to as “Quinteros Plaintiffs.”
Defendant filed an MSJ/MSA
against the Complaint titled, ROSA PANIAGUA GONZALEZ v. TRANSIT SYSTEMS UNLTD.,
INC., et al., Case No. 20STCV37023 (MSJ/MSA reservation no. ending in x6514.) Defendant’s MSA against Gonzalez’s Complaint
asserted two issues: (1) Issue 1 is against the first COA for motor vehicle
liability; and (2) Issue 2 is against the second COA for negligence. Plaintiff Rosa Paniagua Gonzalez is referred
to as “Gonzalez Plaintiff.”
Defendant filed an MSJ only
against the Complaint filed in ISABEL LOPEZ LEMUS v. OFELIA SANDOVAL RODRIGUEZ
et al., Case No. 19STCV44511 (MSJ reservation no. ending in x1145.) Plaintiff
Isabel Lopez Lemus is referred to as “Lemus Plaintiff.” Lemus Plaintiff’s Complaint only alleged a
single COA for negligence.
All responding party plaintiffs
are collectively referred to as “Plaintiffs.”
PROCEDURE
Quinteros Plaintiffs requested
joinder to the Oppositions filed by Co-Plaintiffs. However, Quinteros Plaintiffs failed to
submit a Separate Statement addressing the Separate Statements filed by
Defendant against Co-Plaintiffs.
Defendant filed Separate Statements that were different for each set of
Plaintiffs. Quinteros Plaintiffs request
for joinder is DENIED.
Defendant argued that Gonzalez
Plaintiff’s separate statement did not respond to the 44 facts presented in
Defendant’s separate statement but listed 26 facts that is the number of facts
stated in the separate statement attached to Defendant’s MSJ against Lemus
Plaintiff’s Complaint. The opposing
party's failure to comply with the separate statement requirement may, in the
court's discretion, constitute a sufficient ground for granting the
motion. (Code Civ. Proc. sec.
437c(b)(3); Oldcastle Precast, Inc. v. Lumbermens Mut. Cas. Co. (2009) 170
Cal.App.4th 554, 568; Batarse v. Service Employees Int'l Union Local 1000
(2012) 209 Cal.App.4th 820, 831-833.)
Although Gonzalez Plaintiff’s separate statement addressed the wrong
separate statement filed by Defendant, the Court exercised its discretion and
reviewed the 26 facts presented in Gonzalez Plaintiff’s separate statement as
being responsive to Defendant’s 44 facts stated in Defendant’s separate
statement.
DISCUSSION
Defendant argued that there is no
triable issue of fact as to Quinteros Plaintiffs' and Gonzalez Plaintiff’s
first and second COAs and Lemus Plaintiff’s sole COA for negligence because
there are no disputed material facts to show direct negligent conduct and a
vicarious relationship with Co-Defendants U.S. Coachways (Coachways,) Transit
Systems (Transit,) or Ofelia Rodriguez (Rodriguez.) Defendant provided testimony/facts from Maurice
Venegas (Venegas,) Transit’s person most knowledgeable, and Rodriguez, to show
that Defendant did not own, operate, manage, entrust, permit, control, or drive
the bus either directly or through Rodriguez, the driver. (Defendant’s Separate Statement of Facts as
to Quinteros Plaintiffs (DSSFQP) 3-4, 11-13, 27-28, and 35-37; Defendant’s
Separate Statement of Facts as to Gonzalez Plaintiff (DSSFGP 2-3, and 24-25;
Defendant’s Separate Statement of Facts as to Lemus Plaintiff (DSSFLP)
2-3.) Defendant provided testimony/facts
from Venegas and Rodriguez, again, to show that Defendant did not employ or
enter any agency relationship with Coachways, Transit, or Rodriguez. Defendant also provided as to Lemus
Plaintiff’s MSJ that Defendant did not train, instruct, supervise, or direct
Rodriguez. (DSSFQP 5-6, 14-15, 18-24,
29-30, 38-39, and 42-48; DSSFGP 4-6, 13-19, 26-28, and 35-41; DSSFLP 4-6,
11-15, and 18-26.) Further, Defendant
provided facts to show that non-party American Fleet Services and third-party vendors
maintained, repaired, serviced, or inspected the bus. (DSSFQP 7-10, and 31-34; DSSFGP 7-10, and
29-32; DSSFLP 7-10.) Based upon these
facts/testimony/evidence, Defendant met their burden of proof to show that
there is no triable issue of material fact as to the first and second COAs claim
that Defendant owned, operated, managed, entrusted, permitted, controlled,
drove, maintained, repaired, serviced, or inspected the bus at issue; or
employed, or entered any agency relationship with any Co-Defendants. The burden of proof shifted to Plaintiffs to
show that a triable issue of material fact exists.
Plaintiffs argued four legal
grounds to support the argument that a triable issue of material facts exists:
ownership, ratification; ostensible agency; and Defendant employed Rodriguez. To support these legal theories, Quinteros
and Lemus Plaintiffs provided that Defendant advertised through a flier that
stated, “Come grab your seat ticket with us!” and “Reserve your seat… with us.” (Quinteros Plaintiffs’ Separate Statement of
Disputed Facts (QPSSDF) 1-6, 11-24, 25-30, and 35-48; Lemus Plaintiff Separate
Statement of Disputed Facts (LPSSDF) 2-6, 11-15, 18-19, 23-24, and 26.) Defendant objected to the submission of the
flier because Plaintiffs did not previously produce the flier during discovery
and only produced the flier for the first time in Plaintiffs’ opposition to the
MSJ/MSA to “create” disputed facts.
Defendant argued that the Court has authority to disregard the flier. (Field v. U.S. Bank N.A. (2022) 79
Cal.App.5th 703, 705 (Field.))
Preliminarily, the response at issue in the Field case was a one-word
response of, “Unsure,” to a contention interrogatory asking if Plaintiff Field
asserted that the Notice of Trustee Sale (NTS) was not mailed to her. The Court found that the response was
ambiguous and obfuscated the grounds for Plaintiff Field’s basis for her
wrongful foreclosure claims – failure to mail the NTS. The Court opined that Plaintiff Field could
not create a disputed fact in opposing an MSJ/MSA with an assertion she had
failed to formulate or to disclose during discovery. (Id. at pg. 708.) Quinteros Plaintiffs’ responses, in summary,
stated that they were not in possession of facts to respond to the discovery
and that their investigation was on-going.
(See Defendant’s Quinteros Plaintiffs’ Exhs. 10-15, Quinteros
Plaintiffs’ Responses to Request for Admissions (RFA) 13 and 15; Quinteros
Plaintiffs’ Responses to Form Interrogatory (FI) 17.1; and Quinteros
Plaintiffs’ Responses to Special Interrogatories (SI) 1-2.) Lemus Plaintiff responses to Defendant’s
special interrogatories, in summary, stated that Lemus Plaintiff believed that
Rodriguez was an agent or employee of Defendant based upon the fact that
Defendant hired Transit. Quinteros and
Lemus Plaintiffs’ responses were not ambiguous but straightforward. Further, there are no facts to show
obfuscation of the grounds for the negligence claim – agency. Quinteros and Lemus Plaintiffs expressly
alleged in the Complaint that agency was a legal theory upon which liability
was being alleged. Defendant also argued
in their MSJ/MSA that there were no triable issues of fact as to agency, and
more specifically ostensible agency.
Another glaring difference between the evidence at issue in Field and
the instant action is that Plaintiff Field was the only party in “possession”
of the fact/evidence that the NTS was not mailed. In the instant action, the flier being
presented by Quinteros and Lemus Plaintiffs was created by Defendant and in
Defendant’s possession. Defendant’s
argument presumes that Quinteros and Lemus Plaintiffs and/or their Counsel were
the only ones in possession of the flier prior to the filing of the Complaint
and through responses to discovery were served.
Defendant failed to present any facts/evidence to support such a
presumption. Without such facts,
Defendant failed to show that Quinteros and Lemus Plaintiffs “hid the
ball.” Defendant’s objection to the
flier based upon Field is unpersuasive and the Court considered Quinteros and
Lemus Plaintiffs’ arguments based upon the flier and that Defendant allegedly
controlled the reservation of seats on the bus.
Specifically as to Gonzalez
Plaintiff, Gonzalez Plaintiff failed to submit any declarations in support of
the opposition. Without declarations,
the exhibits are unauthenticated and inadmissible. Without admissible exhibits, Gonzalez
Plaintiff’s opposition and separate statement are unsupported with facts,
especially as to the flier. Gonzalez
Plaintiff’s contention that Defendant’s flier provided facts to show ownership,
ratification, agency, or an employment relationship is merely argument without
evidence. Gonzalez Plaintiff's Separate
Statement of Disputed Facts (GPSSDF) 2-6, 11, 13-15, 23, 24, and 26 reliance
upon the flier cannot be considered.
Further, without a declaration from Gonzalez Plaintiff, there is no
evidence to support the contention that an ostensible agency existed because
Gonzalez Plaintiff has not submitted evidence to show that she saw the flier
prior to the accident and relied upon it.
On this defect, Gonzalez Plaintiff failed to meet her burden of proof to
show that a triable issue of fact exists.
Defendant’s MSJ/MSA as to Gonzalez Plaintiff is GRANTED.
Quinteros and Lemus Plaintiffs
argued that Transit and/or Rodriguez were ostensible agents of Defendant. At issue is not an express agency but an
ostensible agency. The essential
elements of ostensible agency are: (1) a representation (or omission) by the
principal (some act or neglect by the principal sought to be charged leading
plaintiff reasonably to believe the third person was the principal's
agent/employee); (2) plaintiff's
justifiable reliance thereon (plaintiff dealt with the supposed agent in the
reasonable belief he or she (defendant) was authorized to act on the
principal's behalf and was not negligent in relying upon the supposed agent's
apparent authority); (3) plaintiff's
change of position or injury resulting from such reliance. (Civ. Code sec. 2300; Markow v. Rosner (2016)
3 Cal.App.5th 1027, 1038; CACI 3709.) In
order to establish an agency relationship, there must be conduct showing the
principal's sufficient right to control the agent. (Secci v. United Indep. Taxi Drivers, Inc.,
(2017) 8 Cal.App.5th 846, 855.) With the
statements in the flier, Quinteros and Lemus Plaintiffs presented evidence
showing that there is a triable issue as to Defendant controlled the seating on
the bus since Defendant was the sole point-of-contact for the bus ride to the
event. This is sufficient evidence to
show a triable issue as to Defendant’s representation on the first element for
ostensible agency. Quinteros and Lemus
Plaintiffs' evidence supports their claim that they justifiably relied upon the
representation by making their seat reservation on the bus through
Defendant. Neither party presented
facts/evidence to show Quinteros and Lemus Plaintiffs were negligent in relying
upon the representation. Lastly, Quinteros
and Lemus Plaintiffs’ evidence support their claim that they were injured as a
result of their reliance. The Court
finds that these facts are sufficient to raise a triable issue of material fact
as to ostensible agency and is grounds to deny the MSJ/MSA as to Quinteros
Plaintiffs and the MSJ as to Lemus Plaintiff.
The Court did not consider Plaintiffs’ facts to show that Defendant had complete dominance over the event and/or Plaintiffs’ argument/contention that Defendant acquired liability insurance for the bus. The Court sustained Defendant’s objection to Quinteros and Lemus Plaintiff Counsel’s declaration which contained the testimony as to liability insurance. In any event, Quinteros and Lemus Plaintiffs’ Exhibits Bate Stamp 000057-000058 does not show that Defendant “acquired” the policy; it only shows that Defendant is a “Certificate Holder” and the company acquiring the insurance is American Tour & Travel, Inc. – the insured. Plaintiffs’ contention that Defendant “acquired” the policy is not supported by its submitted evidence.
Quinteros and Lemus Plaintiffs
further argued that Defendant ratified Transit/Rodriguez’s negligence. “[A]n agency may be created, and an authority
may be conferred, by a precedent authorization or a subsequent ratification.” (Civ. Code sec. 2307.) “Ratification is the voluntary
election by a person to adopt in some manner as his own an act which was
purportedly done on his behalf by another person, the effect of which, as to
some or all persons, is to treat the act as if originally authorized by him. [Internal citation omitted.]” (Rakestraw v. Rodrigues (1972) 8 Cal.3d 67,
73.) “A purported agent’s act may be adopted expressly or it may be adopted by
implication based on conduct of the purported principal from which an intention
to consent to or adopt the act may be fairly inferred, including conduct which
is ‘inconsistent with any reasonable intention on his party, other than that he
intended approving and adopting it.
[Internal citation omitted.]’”
(Id.) Quinteros and Lemus
Plaintiffs first argued that Defendant had prior knowledge that
Transit/Rodriguez would be providing transportation services and failed to
disavow Transit/Rodriguez’s services.
However, ratification requires conduct subsequent to the negligent act. Defendant’s prior knowledge is insufficient
to show subsequent conduct. Further,
Defendant’s "failure to disavow" is only evidence of “silence” and
“silence” does not show an intention to consent to or adopt the negligent act. Quinteros and Lemus Plaintiffs’ argument as
to ratification is not persuasive to show a triable issue of fact as to agency
created by subsequent ratification.
Quinteros and Lemus Plaintiffs
also argued that there is evidence that an employment relationship was created
directly with Rodriguez based upon the flier.
However, the flier makes no representations referencing Rodriguez. The flier only had a picture of a bus and
representations that Defendant was the contact to reserve a seat on the bus. Without evidence specifically referencing
Rodriguez, Quinteros and Lemus Plaintiffs’ evidence does not support their
contention that an employment relationship was created between Defendant and
Rodriguez. This argument is
insufficient to show that a triable issue of fact exists as to any employment
relationship between Defendant and Rodriguez.
Defendant’s MSJs/MSAs against
Quinteros Plaintiffs’ Complaint and Defendant’s MSJ against Lemus Plaintiff’s
Complaint are DENIED. Defendant’s
MSJs/MSAs against Gonzalez Plaintiff Complaint is GRANTED.
_________________________________________________________________________
[TENTATIVE] ORDER RE:
MOTION FOR SUMMARY JUDGMENT OR
ALTERNATIVELY FOR SUMMARY ADJUDICATION BY DEFENDANT THE UNIVERSAL CHURCH, INC. AGAINST:
(1) PLAINTIFFS LUCIDIO SANCHEZ MEJIA, VERONICA
GUADALUPE SANCHEZ, ROSALIA GONZAGA HIDALGO, JOSE PABLO ARELLANO, VICTORINO
GONZAGA, JR., RAUDEL MUNOZ QUIJAS, LILIANA VICTORIA QUIJAS by and through
Guardian Ad Litem RAUDEL MUNOZ QUIJAS, VALERIE VICTORIA QUIJAS by and through
Guardian Ad Litem RAUDEL MUNOZ QUIJAS, YURIDIA ARELLANO, ANTONION DIEGO DE
JESUS by and through Guardian Ad Litem YURIDIA ARELLANO’s COMPLAINT;
AND
(2) ROSA URCIEL’S COMPLAINT
[TENTATIVE] ORDER:
Defendant The Universal
Church, Inc.’s Motion for Summary Judgment against Plaintiffs Lucidio Sanchez
Mejia, Veronica Guadalupe Sanchez, Rosalia Gonzaga Hidalgo, Jose Pablo
Arellano, Victorino Gonzaga, Jr., Raudel Munoz Quijas, Liliana Victoria Quijas
by and through Guardian Ad Litem Raudel Munoz Quijas, Valeria Victoria Quijas
by and through Guardian Ad Litem Raudel Munoz Quijas, Yuridia Arellano, Antonio
Diego De Jesus by and through Guardian Ad Litem Yuridia Arellano’s Complaint is
GRANTED.
Defendant The Universal
Church, Inc.’s alternative Motion for Summary Adjudication is MOOT as to Issues
1 & 2.
Defendant The Universal
Church, Inc.’s Motion for Summary Adjudication is DENIED as to Issue 3 and GRANTED
as to Issue 4.
Defendant The Universal
Church, Inc.’s Motion for Summary Judgment against Rosa Urciel’s Complaint is
MOOT.
Plaintiffs Lucidio Sanchez
Mejia, Veronica Guadalupe Sanchez, Rosalia Gonzaga Hidalgo, Jose Pablo
Arellano, Victorino Gonzaga, Jr., Raudel Munoz Quijas, Liliana Victoria Quijas
by and through Guardian Ad Litem Raudel Munoz Quijas, Valeria Victoria Quijas
by and through Guardian Ad Litem Raudel Munoz Quijas, Yuridia Arellano, Antonio
Diego De Jesus by and through Guardian Ad Litem Yuridia Arellano, and Rosa
Urciel’s Request for Joinder is DENIED.
INTRODUCTION
Defendant The Universal Church,
Inc. (Defendant) filed a single MSJ/MSA against two separately filed actions:
(1) LUCIDIO SANCHEZ MEJIA, VERONICA GUADALUPE SANCHEZ, ROSALIA GONZAGA HIDALGO,
JOSE PABLO ARELLANO, VICTORINO GONZAGA, JR., RAUDEL MUNOZ QUIJAS, LILIANA
VICTORIA QUIJAS by and through Guardian Ad Litem RAUDEL MUNOZ QUIJAS, VALERIE
VICTORIA QUIJAS by and through Guardian Ad Litem RAUDEL MUNOZ QUIJAS, YURIDIA
ARELLANO, ANTONION DIEGO DE JESUS by and through Guardian Ad Litem YURIDIA
ARELLANO v. TRANSIT SYSTEMS UNLTD., INC., et al., LASC Case No. 19STCV41653 and
(2) ROSA URCIEL v. TRANSIT SYSTEMS UNLTD., INC., et al., LASC Case No.
20STCV39458 (MSJ/MSA reservation no. ending in x2464.)
Plaintiffs Lucidio Sanchez Mejia,
Veronica Guadalupe Sanchez, Rosalia Gonzaga Hidalgo, Jose Pablo Arellano,
Victorino Gonzaga, Jr., Raudel Munoz Quijas, Liliana Victoria Quijas by and
through Guardian Ad Litem Raudel Munoz Quijas, Valeria Victoria Quijas by and
through Guardian Ad Litem Raudel Munoz Quijas, Yuridia Arellano, Antonio Diego
De Jesus by and through Guardian Ad Litem Yuridia Arellano are collectively
referred to as “Mejia Plaintiffs.”
Plaintiff Rosa Urciel is referred to as “Urciel Plaintiff.”
Mejia Plaintiffs and Urciel
Plaintiff are collectively referred to as “Plaintiffs.”
Defendant’s MSA presented four
issues: (1) Issue 1 is against Mejia Plaintiffs’ first cause of action (COA)
for negligence; (2) Issue 2 is against Mejia Plaintiffs' second COA for
negligent hiring; (3) Issue 3 is against Urciel Plaintiff’s first COA for
negligence; and (4) Issue 4 is against Urciel Plaintiff’s second COA for
negligent hiring.
PROCEDURE
Mejia Plaintiffs requested
joinder to the Oppositions filed by Gonzalez Plaintiff, Quinteros Plaintiffs,
and Lemus Plaintiff. However, Mejia
Plaintiffs failed to submit Separate Statements addressing the Separate
Statements filed by Defendant against Gonzalez Plaintiff, Quinteros Plaintiffs,
and Lemus Plaintiff. Defendant filed
Separate Statements that are different for each set of plaintiffs. Mejia Plaintiffs request for joinder is
DENIED.
DISCUSSION
A. MSJ/MSA as to Mejia Complaint
In MSA Issues 1 and 2, Defendant
argued that there is no triable issue of fact as to Mejia Plaintiffs’ first COA
and second COAs because there are no disputed material facts as to direct
liability negligence and as to any vicarious relationship with Co-Defendants
U.S. Coachways (Coachways,) Transit Systems (Transit,) or Ofelia Rodriguez
(Rodriguez.) Under the first COA, Mejia
Plaintiffs alleged that Defendant negligently owned, operated, hired,
supervised, trained, controlled, maintained, inspected, repaired the bus, or
negligently failed to install safety devices.
Defendant provided testimony/facts from Maurice Venegas (Venegas,)
Transit’s person most knowledgeable, and Rodriguez, supporting its position
that Defendant did not own, operate, inspect, or control the bus either
directly or vicariously. (Defendant’s
Separate Statement of Facts (DSSF) 2-3, 5, 12-14.) Because evidence is presented supporting the
position that Defendant did not own, operate, inspect, or control the bus,
Defendant met its initial burden to show that no triable issue of fact exists
as to these claims.
Defendant presented facts to show
support its position that non-party American Fleet Services and third-party
vendors maintained, inspected and/or repaired the bus. (DSSF 9-11.)
Because evidence is presented by Defendant supporting its position that
third-party entities maintained, inspected, or repaired the bus, it is
established its prima facie defense that there is no triable issue of fact as
to these claims for negligence.
Defendant argued that there is no
triable issue of fact as to Mejia Plaintiffs’ claims related to the lack of
seat belts. With Defendant’s facts
supporting its claim showing lack of ownership, there is no triable issue of
fact that Defendant owed a duty to either provide seat belts or move any concerned
Plaintiffs onto another bus or warn passengers that the bus did not have seat
belts. Defendant submitted Vanegas’
testimony to show his understanding that regulations did not require seat belts
on the bus at issue. (Motion Exh. 7 at
8:9-11; 115:4-15; and Brinkerhoff Decl. pars. 6-7.) Because Defendant’s evidence supports its
position that there is no triable issue of fact as to ownership of the bus and
no triable issue of fact as to an affirmative duty regarding the seat belts,
Defendant has sufficiently met its initial burden of proof as to these claims.
Defendant again provided
testimony/facts from Venegas and Rodriguez to support its position that
Defendant did not hire, train, supervise, retain, employ, or enter any agency
relationship with Coachways, Transit, or Rodriguez. Rodriguez testified that she worked for
Transit. Defendant asserted that Transit
was not employed by or an agent of Defendant.
Defendant’s facts support its position that Defendant did not control
Rodriguez or the buses. (DSSF 6-8, 15-17, 21-27.) Based upon these facts, Defendant met its
burden of proof to show that there is no triable issue of material fact as to
Mejia Plaintiffs’ first and second COAs’ claim that Defendant hired, trained,
supervised, retained, employed, or entered any agency relationship with any
Co-Defendants.
As Defendant met its initial
burden of proof as to Issues 1 & 2, then the burden shifted to Mejia
Plaintiffs to show that a triable issue of fact exists.
Mejia Plaintiffs’ separate
statement did not dispute most of Defendant’s evidence in support of the issues
of ownership, operation, management, entrustment, permission, control, driving,
maintenance, repair, service, inspection, hiring, training, supervision, and
retention. However, as to claims based
upon vicarious liability (i.e., employment and agency,) Mejia Plaintiffs
disputed Defendant’s denial of any agency relationship. Mejia Plaintiffs’ separate statement asserted
disputes as to DSSF 8, 15, 17, 35, 42, 44.
Mejia Plaintiffs asserted that Rodriguez was Defendant’s employee
through ostensible agency. The essential
elements of ostensible agency are: (1) a representation (or omission) by the
principal (some act or neglect by the principal sought to be charged leading
plaintiff reasonably to believe the third person was the principal's
agent/employee); (2) plaintiff's justifiable reliance thereon (plaintiff dealt
with the supposed agent in the reasonable belief he or she (defendant) was
authorized to act on the principal's behalf and was not negligent in relying upon
the supposed agent's apparent authority);
(3) plaintiff's change of position or injury resulting from such
reliance. (Civ. Code sec. 2300; Markow
v. Rosner (2016) 3 Cal.App.5th 1027, 1038; CACI 3709.) However, the deposition testimony of Mejia
Plaintiffs to support these facts fail to present any evidence to show that
Defendant made a representation to Mejia Plaintiffs or that Mejia Plaintiffs
justifiably relied upon the representation.
None of Mejia Plaintiffs’ deposition testimony presented any evidence in
support that Mejia Plaintiffs relied upon a flyer or any advertisement by
Defendant. (Mejia Plaintiffs’ Additional
Facts (MPAF) 109-110, 116.) Further,
Mejia Plaintiffs’ reliance upon declarations from Co-Plaintiffs Isabel Lemus,
Miguel Ibarra, and Arcelia Quinteros is unavailing to show a triable issue as
to the first two elements for ostensible agency because representations made to
Co-Plaintiffs are insufficient to show that representations were made to Mejia
Plaintiffs by Defendant. Mejia Plaintiffs’
arguments as to ostensible agency is insufficient to raise a triable issue of
material fact as to vicarious liability on their claims. Mejia Plaintiffs’ arguments as to ostensible
agency are insufficient to meet their burden to show the existence of a triable
issue of fact on their claims.
Mejia Plaintiffs then argued that
Defendant had a duty to provide safe transportation to and from the event, and
such duty was non-delegable to Co-Defendants.
However, a “duty to provide safe transport” is merely a generalized
characterization of the specific duties addressed above. Safe transportation of passengers is
necessarily encompassed within the duty of care resulting from ownership,
operation, management, entrustment, permission, control, driving, maintenance,
repair, service, inspection, hiring, training, supervision, retention,
providing safety devices, manufacture, assembly, and/or sale. A claim that there is a “duty to provide safe
transport” alone is insufficient to assert a viable duty of care.
Mejia Plaintiffs argued that the
duties of care at issue are non-delegable.
However, this is a non-sequitur argument because the duties of care
resulting from ownership, operation, management, entrustment, permission,
control, driving, maintenance, repair, service, inspection, hiring, training,
supervision, retention, providing safety devices, manufacture, assembly, and
sale can apply to Defendant, only if it has direct liability or vicarious
liability. The review above applied the
duties as not being delegable because there was insufficient evidence presented
by the Mejia Plaintiffs to support a triable issue of fact on either direct or
vicarious liability.
Defendant met its initial burden to show that no triable issue of fact exists as the first and second COAs alleged by Mejia Plaintiffs. Mejia Plaintiffs failed to meet their burden to show that a triable issue of facts exists.
Defendant’s MSJ as to Mejia
Plaintiffs' Complaint is GRANTED.
Defendant’s MSA is MOOT as to Issues 1 & 2.
B. MSJ/MSA as to Urciel Complaint:
For MSA Issue 3 and 4, Defendant
argued that there is no triable issue of fact as to Urciel Plaintiff’s first
COA and second COAs because there are no disputed material facts as to direct
liability negligence and as to any vicarious relationship with Co-Defendants
U.S. Coachways (Coachways,) Transit Systems (Transit,) or Ofelia Rodriguez
(Rodriguez.) Under the first COA, Urciel
Plaintiff alleged that Defendant negligently owned, operated, hired,
supervised, trained, controlled, maintained, inspected, repaired the bus, or
negligently failed to install safety devices.
Defendant provided testimony/facts from Maurice Venegas (Venegas,)
Transit’s person most knowledgeable, and Rodriguez, as evidence in support of
its position that Defendant did not own, operate, inspect, or control the bus
either directly or vicariously. (DSSF
56-57, 59, 66-68.) Because evidence is
presented that Defendant did not own, operate, inspect, or control the bus,
Defendant met its initial burden to show that no triable issue of fact exists
as to these claims.
Defendant presented facts to
support its position that non-party American Fleet Services and third-party
vendors maintained, inspected and/or repaired the bus. (DSSF 63-65.)
Because evidence is presented that third-party entities maintained,
inspected, or repaired the bus, there is no triable issue of fact as to these
claims for negligence.
Defendant argued that there is no
triable issue of fact as to Urciel Plaintiff’s claims related to the lack of
seat belts. With Defendant’s
facts/evidence showing lack of ownership, there is no triable issue of fact
that Defendant owed a duty to either provide seat belts or move any concerned
Urciel Plaintiff onto another bus or warn passengers that the bus did not have
seat belts. Defendant submitted Vanegas’
testimony to show his understanding that regulations did not require seat belts
on the bus at issue. (Motion Exh. 7 at
8:9-11; 115:4-15; and Brinkerhoff Decl. pars. 6-7.) Because Defendant’s evidence shows that there
is no triable issue of fact as to ownership of the bus and no triable issue of
fact as to an affirmative duty regarding the seat belts, Defendant has
sufficiently met its initial burden of proof as to these claims.
As to Urciel Plaintiff’s first
and second COA, Defendant again provided testimony/facts from Venegas and
Rodriguez to show its position that Defendant did not hire, train, supervise,
retain, employ, or enter any agency relationship with Coachways, Transit, or
Rodriguez. Rodriguez testified that she
worked for Transit. Defendant asserted
that Transit was not employed by or an agent of Defendant. Defendant’s facts/evidence support
Defendant's position that it did not control Rodriguez or the buses. (DSSF
60-62, 69-71, 75-81, 87-89, 96-98, and 102-104.) Based upon these facts, Defendant met its
burden of proof to show that there is no triable issue of material fact as to
Urciel Plaintiff’s first and second COAs’ claim that Defendant hired, trained,
supervised, retained, employed, or entered any agency relationship with any
Co-Defendants.
The Court notes that the issue of
sale of the bus alleged in Urciel Plaintiff’s first COA was supported by
testimony showing that Defendant was not involved in the sale/purchase of the
bus and that the bus was purchased by Transit from a reseller. (DSSF 59.)
As to the claim of negligent sale of the bus, Defendant met its initial
burden to show that no triable issue of fact exists.
Specifically, in MSA Issue 3,
Urciel Plaintiff’s first COA alleged that Defendant negligently manufactured,
assembled, and sold the bus. As to the
claims for negligent manufacturing and assembly, Defendant submitted that
Urciel Plaintiff alleged in the Complaint that North American Bus Industries,
Inc (NABI) manufactured/assembled the bus.
(DSSF 56, 58, 83, 85.) However,
an unverified pleading is not admissible evidence. As to Urciel Plaintiff’s specific allegation
regarding manufacturing and assembly, Defendant did not meet its initial burden
to show that no triable issue of fact exists.
Because Defendant did not meet its initial burden, the burden as to
Urciel Plaintiff’s first COA did not shift to Urciel Plaintiff to show that a
triable issue of fact exists regarding manufacturing or assembly. Because Defendant did not meet its burden of
proof as to all of Urciel Plaintiff’s claims in the first COA, there is grounds
to deny Defendant’s MSJ as to Urciel Plaintiff’s Complaint and DENY Defendant’s
MSA as to Issue 3.
Because Defendant did not meet
its initial burden as to Issue 3, Defendant’s MSA as to Issue 3 is DENIED.
As to Issue 4, the burden shifts
to Urciel Plaintiff to show that a triable issue of fact exists regarding
hiring, training, supervising, retaining, employing, or entering any agency
relationship with Coachways, Transit, or Rodriguez.
Urciel Plaintiff’s separate
statement did not dispute most of Defendant’s facts in support of the issues of
ownership, operation, management, entrustment, permission, control, driving,
maintenance, repair, service, inspection, hiring, training, supervision, and
retention. However, as to claims based
upon vicarious liability (i.e., employment and agency,) Urciel Plaintiff
disputed Defendant’s denial of any agency relationship. Urciel Plaintiff’s separate statement
asserted disputes as to DSSF 89, 96, 98.
Urciel Plaintiff asserted that Rodriguez was Defendant’s employee
through ostensible agency. The essential
elements of ostensible agency are: (1) a representation (or omission) by the
principal (some act or neglect by the principal sought to be charged leading
plaintiff reasonably to believe the third person was the principal's
agent/employee); (2) plaintiff's justifiable
reliance thereon (plaintiff dealt with the supposed agent in the reasonable
belief he or she (defendant) was authorized to act on the principal's behalf
and was not negligent in relying upon the supposed agent's apparent
authority); (3) plaintiff's change of
position or injury resulting from such reliance. (Civ. Code sec. 2300; Markow v. Rosner (2016)
3 Cal.App.5th 1027, 1038; CACI 3709.)
However, the deposition testimony of Urciel Plaintiff to support these
facts fails to present any evidence to show that Defendant made a
representation to Urciel Plaintiff or that Urciel Plaintiff justifiably relied
upon the representation. None of Urciel
Plaintiff’s deposition testimony presented any evidence that Urciel Plaintiff
relied upon a flyer or any advertisement by Defendant. (Urciel Plaintiff’s Additional Facts (UPAF)
109-110, 116.) Further, Urciel
Plaintiff’s reliance upon declarations from Co-Plaintiffs Isabel Lemus, Miguel
Ibarra, and Arcelia Quinteros is unavailing to show a triable issue as to the
first two elements for ostensible agency because representations made to
Co-Plaintiffs are insufficient to show that representations were made to Urciel
Plaintiff by Defendant. Urciel
Plaintiff’s arguments as to ostensible agency is insufficient to raise a
triable issue of material fact as to vicarious liability. Urciel Plaintiff’s arguments as to ostensible
agency are insufficient to meet the burden to show the existence of a triable
issue of fact.
Urciel Plaintiff argued that
Defendant had a duty to provide safe transportation to and from the event and
such duty was non-delegable to Co-Defendants.
However, a “duty to provide safe transport” is merely a generalized
characterization of the specific duties addressed above. Safe transportation of passengers is
necessarily encompassed within the duty of care resulting from ownership,
operation, management, entrustment, permission, control, driving, maintenance,
repair, service, inspection, hiring, training, supervision, retention,
providing safety devices, manufacture, assembly, and sale. A claim of a “duty to provide safe transport”
is insufficient without evidence of some duty of care (as noted above) to
assert a viable duty of care.
Urciel Plaintiff argued that the
duties of care at issue are non-delegable.
However, this is a non-sequitur argument because Urciel Plaintiff did
not produce evidence sufficient to create a triable issue of fact as to whether
Defendant had duties of care resulting from ownership, operation, management,
entrustment, permission, control, driving, maintenance, repair, service,
inspection, hiring, training, supervision, retention, providing safety devices,
manufacture, assembly, and sale were applied to Defendant, either based upon
direct liability or vicarious liability.
Defendant met its initial burden
to show that no triable issue of fact exists as to the first and second COAs
alleged by Urciel Plaintiff. Urciel
Plaintiff failed to meet her burden to show that a triable issue of facts
exists.
Defendant’s MSA is GRANTED as to
Issue 4.
Defendant’s MSJ as to the Urciel
Complaint is MOOT.