Judge: Shirley K. Watkins, Case: BC696215, Date: 2022-09-02 Tentative Ruling

Case Number: BC696215    Hearing Date: September 2, 2022    Dept: T

            [TENTATIVE] ORDER:  Defendant Tha Lights Global’s Motion for Summary Judgment is DENIED. 

Defendant Tha Lights Global’s alternative Motion for Summary Adjudication is GRANTED in Part and DENIED in Part.  The motion is GRANTED as to Issues 1 and 11; and DENIED as to Issues 2 - 10. 

Defendant Herbert Battle’s Motion for Summary Judgment is DENIED. 

Defendant Herbert Battle’s alternative Motion for Summary Adjudication is GRANTED in Part and DENIED in Part.  The motion is GRANTED as to Issue 1 and 11; and DENIED as to Issues 2 – 10.

Introduction

Defendant Tha Lights Global (TLG) and Defendant Herbert Battle (Battle) (collectively “Defendants”), separately move for summary judgment (MSJ) against Plaintiff Donald Barron (Plaintiff) First Amended Complaint (FAC).  Alternatively, TLG and Battle, separately move for summary adjudication (MSA).  The two MSAs assert the same eleven issues.  The first nine issues area against the first cause of action (“COA”) for negligence.  The tenth issue is against the second COA for negligent entrustment.  The eleventh COA is against punitive damages.

Procedure

Plaintiff objects to Battle’s and TLG’s separate statement based upon California Rules of Court Rule 3.1350.  The rule on separate statements applied to the moving party is Rule 3.1350(d).  Despite Battle’s and TLG’s MSA’s separate statement incorporating the same facts identified in the MSJ’s separate statement, the Court does not find the procedural defect prejudicial to Plaintiff, especially since Plaintiff was able to respond to the facts alleged in Battle’s and TLG’s separate statement.  Plaintiff’s objection against the separate statement of Battle’s and TLG’s MSA’s is overruled. The court, however, admonishes counsel for this rule violation.

            Discussion 

            Battle and TLG argue that there is no triable issue of fact as to any of the duties alleged: “owned, leased, maintained, inspected, entrusted, delegated, managed, regulated, negotiated for, controlled and operated” the Bentley (Vehicle).  (FAC par. 17.)  As to MSA Issue 1, Battle and TLG assert that there is no triable issue as to whether Battle or TLG “owned, inspected, or maintained” the Vehicle.    Battle and TLG provide the deposition testimony of Co-Defendant Eric Stenger (Stenger) showing that he owned and maintained the Vehicle.  (Defendants’ Undisputed Material Fact (DUMF) 2.)  Plaintiff does not present any evidence to dispute the ownership and maintenance of the Vehicle.  Without any disputed facts, there is no triable issue of fact as to ownership and maintenance of the Vehicle. 

The evidence cited by Battle and TLG do not present any admissible evidence as to the duty to inspect.  However, with ownership and maintenance of the Vehicle, the inference, only as to the instant Motion, is that Stenger had the duty to inspect the Vehicle.  Despite the parties’ failure to provide citation to evidence in their Separate Statements regarding inspection, Stenger’s testimony supports the contention that Battle and TLG did not owe a duty as to ownership, inspection, or maintenance of the Vehicle.  There is no triable issue of material fact as to Battle and TLG negligently owning, inspecting or maintaining the Vehicle.

Battle and TLG’s MSA as to Issue 1 is GRANTED.

            Battle and TLG’s MSA Issue 2 assert that there is no triable issue of fact as to them leasing the Vehicle.  To support their argument, they cite to the Agreement to argue that they are not contracting parties and the Vehicle was leased to Garcia.  (DUMF 9.) The Agreement is not the only method by which obligations may have arisen between the parties. The Agreement is apparently signed by Stenger’s Echelonlive Music Group.  The other "contracting party" is Tha Lights Global Records Touring, LLC (TLGRT) but the signature line is empty.  Garcia is not identified on the signature line as a contracting party and apparently did not sign the Agreement.  Because the Agreement is not signed by all contracting parties, on these limited facts, it does not appear to be an enforceable express written contract.  If it is not an enforceable express written contract, Battle and TLG’s reliance upon it is unpersuasive.  At most, the Agreement may be evidence as to the duties owed by the parties.  Despite Battle and TLG not being identified as contracting parties, evidence is submitted showing that Battle is the party that negotiated the lease of the Vehicle with Stenger.  (DUMF 26 and Plaintiff’s Disputed Material Fact (PDMF) 26.)  Stenger testifies that he negotiated and came to an agreement about leasing the Vehicle with Battle.  (Id.)  The parties’ evidence presents a dispute as to Battle’s contention that he did not lease the Vehicle. 

            Battle and TLG’s argument that it was Garcia who entered into the lease for the Vehicle is an additional fact to show that a dispute exists.  The terms of the Agreement show that Garcia had approval rights as to the “details [of the Vehicle] including dates, times, and specific model.”  (DUMF 9: Exh. J, pg. 2, par. 6(f).)  The inference is that Garcia is the leasing party, either with or without Battle/TLG.  However, as provided above, there is evidence to show that Battle/TLG was the leasing party.  In any event, there is a triable issue of fact as to whether Battle/TLG leased the vehicle.

Plaintiff provides evidence showing that Battle is the CEO of TLG (Plaintiff’s Additional Material Facts (PAMF) 3.)  Because the leasing of the Vehicle included Garcia’s agreement to perform at a concert, there is a reasonable inference that Battle’s agreement with Stenger, whether it be oral or implied, was made within Battle’s scope as Garcia’s agent or TLG’s CEO.    A triable issue of fact exists as to whether Battle and/or TLG leased the Vehicle.

Battle and TLG’s MSA Issue 2 is DENIED

Battle and TLG’s MSA Issue 3 argues that this claim in the first COA is duplicative of the second COA for negligent entrustment.  This is a pleading argument and does not meet Battle and TLG’s initial burden to show by admissible evidence that a triable issue of fact does not exist.  To that extent, this claim under the first COA can be argued under the second COA, the Court’s ruling on the MSA as to Issue 10 applies to Issue 3.

Battle and TLG’s MSA Issue 3 is DENIED.

            Battle and TLG’s MSA Issue 4 argues that there is no triable issue of fact as to the claim that Defendants negligently delegated, managed, or regulated the Vehicle.  Battle/TLG re-assert that they did not lease the Vehicle and owe no duty attributed to lessees.  As analyzed above in Issue 2, there are triable issues of fact as to whether Battle/TLG leased the Vehicle.  Because their status as lessees is at issue, the alleged delegation, management or regulation of the Vehicle is at issue due to the claim that persons other than Battle drove the Vehicle.

            Battle and TLG’s MSA Issue 4 is DENIED.

            Battle and TLG’s MSA Issue 5 argues that there is no triable issue of fact as to their alleged negotiation of the Agreement.  The analysis under Issue 2 again applies to this argument.  As analyzed above, there is a triable issue of fact as to Battle and TLG negotiating the Agreement and/or leasing the Vehicle.  Further, Battle and TLG’s argument that Co-Defendant William Morris Endeavor Entertainment, LLC (WME) brokered the Agreement also presents a triable issue since WME argues that Battle/TLG brokered the Agreement. 

            Battle and TLG’s MSA Issue 5 is DENIED. 

Battle and TLG’s MSA Issue 6 argues that there is no triable issue of fact as to control of the Vehicle.  Battle and TLG argue that they did not drive the Vehicle once Heidtmann took possession of the Vehicle.  (DUMF 4-8, 15-18, 20.)  However, there being a triable issue as to whether Battle and/or TLG are lessees of the Vehicle, there is necessarily a triable issue of fact as to whether Battle/TLG had control over the Vehicle.  The fact that Heidtmann, an arguably permissive driver, had possession of the Vehicle does not diminish the fact that ordinarily, a lessee is deemed to have control of the Vehicle.  A triable issue of fact exists as to the claim of control.

Battle and TLG’s MSA Issue 6 is DENIED. 

Battle and TLG’s MSA Issue 7 argues that there is no triable issue of fact as to their operation of the Vehicle.  Battle provides that he did not drive the Vehicle prior to or at the time of the accident.  (DUMF 5-7.)  However, Plaintiff’s evidence provides that Battle admitted to Stenger that he was driving the Vehicle at the time of the accident.  (PDMF 5-7.)  Battle argues around this fact by showing that Stenger subsequently stated that Battle was not being truthful about Battle’s admission of driving.  (DUMF 7.)  Battle/TLG’s own facts present a triable issue of fact since there is evidence showing both that Battle did and did not operate the Vehicle at the time of the accident. 

Battle/TLG argue that Plaintiff acknowledges that Battle was not driving at the time of the accident.  (DUMF 4.)  The statement quoted was taken out of context as this response was concerning analysis of Heidtmann's testimony.  There was no admission of this fact.  The court does not consider this a binding admission.  Therefore, the only "supporting" evidence is Plaintiff’s response to Defendant Heidtmann’s Separate Statement.  A separate statement is not admissible evidence.  Further, incorporating or joining in on another party’s separate statement is impermissible.  (Frazee v. Seely (2002) 95 Cal.App.4th 627, 636.)  Even if considered, the evidence to support the facts alleged in the separate statement still show a triable issue of fact as to whether Battle was driving the Vehicle or was in another location driving a different vehicle.  Battle/TLG do not meet their initial burden of proof.

Battle and TLG’s MSA Issue 7 is DENIED.

Battle and TLG’s MSA Issue 8 asserts that there is no triable issue of fact as to the element of causation.  Battle and TLG’s argument contains an underlying issue of fact – whether it was Garcia, Taylor or Battle that operated the Vehicle at the time of the accident.  Without identification of the driver, causation remains to be seen.  Because the identity of the driver is a triable issue of fact, causation remains to be a triable issue of fact. 

Battle and TLG’s MSA Issue 8 is DENIED.

Battle’s MSA Issue 9 argues that there is no triable issue of fact as to negligence per se since there is no evidence that he was driving.  However, as analyzed above in Issue 7, a triable issue of fact exists as to whether Battle was operating the Vehicle at the time of the accident.  Battle’s argument as to the Vehicle Code sections 22350, 20001 and 20003 is unpersuasive. 

Battle’s MSA Issue 9 is DENIED.

TLG’s MSA Issue 9 argues that there is no triable issue of fact as to negligence per se because TLG is a business entity and was not driving at the time of the accident.  TLG presents no legal authority to support its contention that negligence per se cannot be alleged against business entities.  Without legal authority to support the contention, the Court does not find the argument persuasive. 

TLG’s MSA Issue 9 is DENIED.

Battle and TLG’s MSA Issue 10 argues that there are no triable issues of fact as to the second COA for negligent entrustment.  Battle and TLG assert that there no facts to show that Battle/TLG had possession of the Vehicle.  Battle/TLG re-assert that they did not lease the Vehicle (i.e., Garcia leased the Vehicle.)  Assuming Garcia was the driver, Battle/TLG argue that there is no negligent entrustment.  However, this argument makes presumptions that are not based upon evidence.   As of yet, there is a triable issue of fact as to the identity of the driver.  The arguments as to negligent entrustment has an inherent triable issue of fact – the identity of the driver.  Battle/TLG argue that when two plausible events could cause the injury and the matter remains speculative, then a directed verdict for the defendant is required.  (Levya v. Garcia (2018) 20 Cal.App.5th 1095, 1104 (Levya).) Moreover, the facts presented in this case are distinguishable from Levya.  In Levya, the cause of the fire was unknown and the experts could only speculate on how the fire started.  Here, the alleged single cause of the injuries is negligent driving.  The only issue is the identity of the driver.  Identifying the person that controlled the instrumentality that caused the injuries is not the same as identifying the instrumentality that caused the injuries.  Battle/TLG’s argument that causation is speculative or conjecture is not persuasive.  There is a triable issue of fact as to who was driving.  A directed verdict in Battle/TLG’s favor is not warranted on the facts as presented. 

Battle and TLG’s MSA Issue 10 is DENIED. 

Battle and TLG’s MSA Issue 11 argues that there is no triable issue of fact as to punitive damages, specifically malice, oppression or fraud.  Battle/TLG cite to the same facts reviewed above regarding evidence allegedly showing that Battle did not drive the Vehicle, did not lease, control or entrust the Vehicle to anyone and that Plaintiff cannot establish the identity of the driver.  At most, the claims alleged are based upon negligence theories and are insufficient to show malice, oppression or fraud.  Plaintiff argues that driving at a high rate of speed into an intersection crowded with pedestrians or through a crowded residential area in which children were playing in the street creates an inference of malice.  (Dawes v. Superior Court (1980) 111 Cal.App.3d 82, 90 (Dawes.))  However, the Dawes Court reviewed the above facts, inclusive of the driver’s intoxication, to determine that there was a conscious disregard of probable injury to others and allowed punitive damages.  (Id.)  In this action, the only evidence related to the accident is that the driver of the Vehicle was involved in the accident at 2:20 PM and ran away after the accident.  (DUMF 1.)  There are no other facts to show that a triable issue of fact exists as to punitive damages.  The Dawes Court found had facts showing that “defendant intentionally drove his vehicle at a high speed into an intersection crowded with pedestrians, or if he drove at a high speed through a crowded residential area where children were playing in the street.”  (Dawes v. Superior Court (1980) 111 Cal.App.3d 82, 90.)  Without more evidence as to the conditions leading up to the accident, there are insufficient facts to show a triable issue of fact to support punitive damages.

Battle and TLG’s MSA Issue 11 is GRANTED. 

TLG separately argues that there is no triable issue of fact as to vicarious liability via agency theories.  The issue agency is not listed as an MSA Issue in the Notice or the Separate Statement.  For this defect, the Court has discretion to deny the MSA arguing agency theories.  Further, issues of agency are not a COA, affirmative defense, issue of duty, or claim for damages.  MSAs are limited to these four issues.  (Code Civ. Proc. sec. 437c(f)(2).)  Even if there are no triable issues of fact as to agency, TLG would not be dismissed from the action because TLG did not dispose of respondeat superior issues.

            IT IS SO ORDERED, CLERK TO GIVE NOTICE.

NO ORDERS ON OBJECTIONS WERE SUBMITTED. 

CRC 3.1354 STATES:

"Proposed order