Judge Stephen Morgan, Case 21AVCV01038 2022-12-13 Tentative Ruling

This is a personal injury action stemming from a motor vehicle incident. Plaintiffs Martha Beltran (“Beltran”) and Giselle Munoz, by and through her Guardian ad Litem, Marth Beltran (“Munoz” and collectively “Plaintiffs”), allege that on or about January 10, 2020, Martha was driving with Munoz as a passenger, in a prudent and careful manner, heading eastbound on Rancho Vista Boulevard in the number 1 lane, approaching Homeridge Drive, within the City of Palmdale, County of Los Angeles, State of California while, simultaneously, Defendant Elijah Martin (“Martin”) was heading westbound on Rancho Vista Boulevard in the number 1 lane, when he attempted to make a U-turn at the intersection of Rancho Vista Boulevard and Homeridge Drive, in front Plaintiffs’ vehicle, colliding into them. It is further alleged that Defendant Marcia Hairston Carlton (“Carlton” and with Martin “Defendants”) owned the vehicle that Martin was driving. Plaintiffs present that they have received sever injuries to their bodies and were required to, did employ, and continue to employ physicians and others for medical care of said injuries.

On December 30, 2021, Plaintiffs filed their Complaint alleging two causes of action for Negligence and Negligent Entrustment.

On September 15, 2022, Carlton filed this Motion for Summary Judgment, or in the alternative, Summary Adjudication.

Standard for Summary Judgment – 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.) Cal. Code Civ. Proc.¿§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 party moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (Cal.¿Code Civ.¿Proc.¿§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 opposing party 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.)¿¿

Objection No. 1 - ¶12: On the date of the subject accident, Defendant Martin did not have my permission to use the Mazda vehicle. Moreover, no one had permission to use the Mazda vehicle.

Objection No. 2 - ¶14: Prior to the date of the subject accident, I never provided consent nor permitted Defendant Martin to use the Mazda vehicle.

Objection No. 3 - ¶15: On the date of the subject accident, I was not aware that Defendant Martin had taken the Mazda vehicle.

Objection No. 4 - ¶16: On the date of the subject accident, I did not entrust the Mazda vehicle to Defendant Martin.

The Court notes that Plaintiffs have presented that Martin gave a recorded statement to Mercury Insurance explicitly stating that Carlton gave him express permission to use the subject vehicle. “It is axiomatic that questions of credibility are exclusively within the province of the jury. (§ 312, subd. (b); see also Pen. Code, § 1127.)” (Vorse v. Sarasy (1997) 53 Cal. App. 4th 998.) Should inconsistent testimony arise from Carlton, herself, such testimony provides fertile ground for impeachment at trial. (See Cal. Evid. Code §§769–770; Cal. Code Civ. Proc. §2025.620(a).)

Objection No. 1 [Defendant Elijah Martin’s Transcribed Recorded Statement in its entirety.] – SUSTAINED.

Objection No. 2 [Tiffany Holloway’s Audio Recorded Statement in its entirety.] – SUSTAINED.

Objection No. 3 [They were left in plain sight, not hidden in a purse, and not concealed in any way. Plaintiff’s Special Interrogatory (Set One) No. 16, Ex. 6 to Baca Decl.; Defendant’s Responses to Special Interrogatory (Set One) No. 16, Ex. 7 to Baca Decl.] – SUSTAINED.

Objection No. 4 [Defendant’s granddaughter and Elijah’s girlfriend, Tiffany Holloway (“Tiffany”) had keys to Defendant’s home and slept there a few nights per month. Plaintiff’s Request for Admission (Set Two) Nos. 33, 42, Ex. 4 to Baca Decl.; Defendant’s Responses to Request for Admission (Set Two) Nos. 33, 42, Ex. 5 to Baca Decl.; Plaintiff’s Special Interrogatory (Set Two) No. 21, Ex. 8 to Baca Decl.; Defendant’s Responses to Special Interrogatory (Set Two) No. 21, Ex. 9 to Baca Decl.] – SUSTAINED.

Objection No. 5 [There was no legal action was taken against Elijah to evidence the subject vehicle being taken without permission. Plaintiff’s Request for Admission (Set One) Nos. 27, 28, 29, 30, Ex. 2 to Baca Decl.; Defendant’s Responses to Request for Admission (Set One) Nos. 27, 28, 29, 30, Ex. 3 to Baca Decl.] – SUSTAINED.

Objection No. 6 [Defendant never filed a police report, never reported the vehicle as stolen, and no criminal investigation occurred. Plaintiff’s Request for Admission (Set One) Nos. 27, 28, 29, 30, Ex. 2 to Baca Decl.; Defendant’s Responses to Request for Admission (Set One) Nos. 27, 28, 29, 30, Ex. 3 to Baca Decl.] – OVERRULED.

Issues Framed by the Pleadings – As an initial matter, the Court’s review of the issues framed by the pleadings indicates that the entirety of the complaint is predicated upon whether Carlton was negligent in entrusting her Mazda vehicle to Martin, ultimately leading to Plaintiffs’ injury. (See Complaint.) While Plaintiff has alleged two Causes of Action sounding in General Negligence and Negligent Entrustment, the gravamen of the complaint is one sounding entirely in Negligent Entrustment.[1] Accordingly, the Court will assess the instant motion for summary judgment or adjudication on that basis.[2]

On the date and supposed time of the collision, Defendant Carlton, was asleep at her daughter’s home after receiving upsetting news from a neurologist appointment she had. (SS, UF 2.) Defendant Carlton believes to have left her Mazda vehicle keys on the counter in her daughter’s home and does not recall having the keys on her person as she slept. (Declaration of Marcia Hairston Carlton ¶ 5.) Defendant Carlton was made aware of the accident upon being awoken by her daughter. (Declaration of Marcia Hairston Carlton ¶ 6.)

Carlton also presents that, at the time of the collision, Martin was her granddaughter’s boyfriend. (Pl.’s UMF No. 3) and that he did not reside with Carlton or her daughter (Pl.’s UMF No. 4).

Every owner of a motor vehicle is liable and responsible for death or injury to person or property resulting from a negligent or wrongful act or omission in the operation of the motor vehicle, in the business of the owner or otherwise, by any person using or operating the same with the permission, express or implied, of the owner.

Carlton argues that she did not give either express nor implied permission to Martin to use her 2017 Mazda CX5 and that it follows that Plaintiffs cannot prove that Defendant Carlton gave permissive use to Defendant Martin and therefore cannot establish breach in their negligence claim

Carlton believes that, as she did not give either express nor implied permission to Martin to use her 2017 Mazda CX5, it follows that Plaintiffs cannot establish that there was an entrustment that would then lead to a claim for negligent entrustment. Specifically, Carlton believes that “Plaintiffs cannot present evidence of facts that show that Defendant Carlton permitted Defendant Martin to drive or otherwise entrust her Mazda vehicle to him. . .[and] ‘absence of evidentiary support for a negligent entrustment theory of liability dooms Plaintiffs’ claim.’ [Citation.]” (Motion 6:19-23.)

Regarding negligence as generally a question of fact for the jury, Carlton cites Osborn v. Hertz Corp. (1988) Cal.App.3d 703, 712-13 which states: “. . . a lack of negligence may be determined as a matter of law in appropriate cases.”

“ ‘The elements of a cause of action for negligence are well established. They are “(a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c)the breach as the proximate or legal cause of the resulting injury.” ’ ” (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.) “Liability for negligent entrustment is determined by applying general principles of negligence, and ordinarily it is for the jury to determine whether the owner has exercised the required degree of care.” (Allen v. Toledo (1980) 109Cal.App.3d 415, 421, internal citations omitted.)

“In cases involving negligent entrustment of a vehicle, liability ‘ “is imposed on [a] vehicle owner or permitter because of his own independent negligence and not the negligence of the driver.” ’ ” (Ghezavat v. Harris (2019) 40 Cal.App.5th555, 559 [252 Cal.Rptr.3d 887].)

As the standard of review of negligence and premises liability are identical. the Court will assess the instant motion for summary judgment or adjudication on that basis.

At the center of this Motion for Summary Judgment is whether Carlton give either express nor implied permission to Martin to use her 2017 Mazda CX5, thus breaching the duty imposed on Carlton by Cal. Veh. Code § 17150.

Based on the declaration, it is clear that Carlton did not provide express permission to Martin to use her 2017 Mazda CX5.

The Court next turns to its analysis of implied permission. Carlton’s declaration provides the following events of the day of:

As to Martin, Carlton presents that Martin did not live with her nor her daughter, was not related to Carlton, was not her employee, and was not running an errand or driving at her direction. (Id. at ¶¶ 8-11.)

Case law holds that “[t]he existence of the requisite permission under section 17150 is to be determined by the trier of fact based on all the circumstances and inferences reasonably to be drawn therefrom.” (Fremont Comp. Ins. Co. v. Hartnett (1993) 19 Cal. App. 4th 669, 674-75.) However, “summary judgment is proper where the evidence in support of the moving party is sufficient to sustain a judgment in his favor and there are no triable issues of fact to be determined.” (Marquez v. Enter. Rent-A-Car (1997) 53 Cal.App.4th 319, 322.)

Further, Negligent Entrustment requires a showing of knowledge on behalf of the defendant – “[T]he tort requires demonstration of actual knowledge of facts showing or suggesting the driver’s incompetence - not merely his lack of a license. . . . For liability to exist, knowledge must be shown of the user’s incompetence or inability safely to use the [vehicle].” (Dodge Center v. Superior Court (1988)199 Cal.App.3d 332, 341.)

“Persons who loan a car to a person they know is an incompetent driver may be liable for negligent entrustment.” See Talbott v. Csakany (1988) 199 Cal.App.3d 700, 703. Further, “it is generally recognized that one who places or entrusts his or her motor vehicle in the hands of one whom he or she knows, or from the circumstances is charged with knowing, is incompetent or unfit to drive, may be held liable for an injury inflicted by the use made thereof by that driver, provided the plaintiff can establish that the injury complained of was proximately caused by the driver’s disqualification, incompetency, inexperience or recklessness…” ) See Flores v. Enterprise Rent-A-Car (2010) 188 Cal.App4th 1055, 1063. A claim for negligent entrustment is that a vehicle owner negligently permitted a driver to operate the vehicle. See Osborn v. Hertz Corp. Cal.App.3d 708-709 and CACI 724 [the plaintiff must prove that the defendant “permitted the driver to use the vehicle”].

Martin’s competency is unaddressed as Carlton focuses on the entrustment of the vehicle in her moving papers. The Court addresses only the arguments presented by the parties.

Here, from the evidence presented, Carlton did not give Martin express permission to drive her vehicle on the day of the incident or otherwise. Instead, Martin took the keys to Carlton’s vehicle from the counter vehicle while she was sleeping. The evidence does not support a finding that Carlton gave Martin implied permission to use her vehicle.

The burden shifts to the opposing party to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.

Plaintiffs argue that a triable issue of fact exists as Elijah had access to the subject vehicle’s key, Defendant never expressly told Elijah he could not use the subject vehicle, and Carlton is related to Tiffany. Plaintiffs highlight several cases: Mucci v. Winter (1951) 103 Cal.App.2d 627; Elkinton v. California State Automobile Assn. Interstate Insurance Bureau (1959) 173 Cal.App.2d 338 (“Elkinton”); and Fremont Comp. Ins. Co. v. Hartnett (1993) 19 Cal.App.4th 669. Plaintiff also presents circumstantial evidence that Carlton never filed a police report, never reported the vehicle as stolen, and no criminal investigation occurred.

The Court has looked at the appendix of evidence. While Plaintiffs present that both Martin and Tiffany Holloway (Carlton’s granddaughter)’s recorded Mercury Insurance statements state that express consent was given, only Martin’s is attached. Martin states that the person who gave him permission to use the 2017 Mazda CX5 was “. . .[Carlton’s] granddaughter.” (Exh. 1, p. 3.) As the Court sustained the objections to the statements of Martin and Tiffany Holloway, the arguments regarding these statements are not considered.

Plaintiffs also argue that the key placement is a factor that leads to an interpretation of implied permission; however, the relied upon case, Elkinton, focused on the daughter’s knowledge of the keys and how her mother, owner of the car, had no objection to the daughter knowing where the keys were. (See Elkinton, supra, 73 Cal.App.2d at 342-44.) The case at hand is inherently different from Elkinton. Martin is not Carlton’s son, Martin did not live with Carlton, Carlton was not even in her own home at the time, and there is no evidence that Carlton ever showed Martin how to drive his car.

The jury instruction in Elkinton, too, is distinguished. The instruction reads: "Now, the keeping of the keys to a vehicle in an accessible place to members of the household on the part of its owner is a circumstance you may consider in determining whether or not there was implied permission by such an owner of a vehicle to any member of the household to operate the vehicle." (Id. at 347.) Carlton was not in her home and Martin was not a member of the household.

As to whether Holloway’s conveyance of permission of Carlton’s car constitutes some from of permission on behalf of Carlton, no argument is presented. The only mention of Tiffany in the Opposition is in relation to her relationship Martin and her statement to the insurer. Specifically, the most detailed argument presented by Plaintiffs regarding Tiffany is:

It is unclear on how Elijah obtained possession of the subject vehicle’s key on the day of the subject collision. Elijah had access to Defendant’s home (through Tiffany’s key) and could have taken a spare key to the subject vehicle from there. Defendant says she was asleep at her daughter’s home after receiving distressing news from her neurologist but never specifies if this is the location the subject vehicle and/or keys were taken from. What is clear is that the keys were taken from a counter, left in plain sight, not hidden, not in a purse, and not concealed in any way.

While Defendant and Elijah were not blood related, Elijah’s girlfriend, Tiffany was Defendant’s granddaughter, and with a copy of her house key, she always had full access to Defendant’s home and belongings. Tiffany used the subject vehicle in the past and she also gave express permission to Elijah to take the vehicle on the day of the subject collision.

Plaintiffs do not address the alleged fact that Carlton was not at her own home, but rather her daughter’s. Unlike Plaintiffs’ presentation, Carlton actually specifies that the keys were taken from her daughter’s house:

On the date and supposed time of the accident, I was asleep at my daughter’s home after receiving distressing news from my neurologist.

While I was napping at my daughter’s home, I believe I left my Mazda vehicle keys on the counter. I do not believe that the Mazda keys were on my person while I was asleep.

My daughter woke me up from my nap to inform me that the subject accident had occurred.

Plaintiffs do not meet their burden to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto as (1) the evidence presented by Plaintiffs show that Holloway informed Martin he could use Carlton’s vehicle, not Carlton, and (2) Plaintiff focuses on Martin’s access into the home at issue, but neglects to differentiate that Carlton is in her daughter’s home, not her own home. The evidence presented does not support a conclusion of either express or implied consent.

Carlton’s Reply does not change the Court’s analysis, ante. The Court’s opinion remains unchanged.

[1] As discussed more fully infra.

[2] For these purposes, the Court will strike the First Cause of Action for General Negligence as to Carlton pursuant to its own authority in Code of Civ. Proc. §436, as the First and Second Causes of Action are duplicative. Alternatively, as the legal issues are identical, the Court adopts its Negligent Entrustment analysis infra for the First Cause of Action as discussed for the Second Cause of Action.