Judge: Steven A. Ellis, Case: 20STCV34257, Date: 2023-08-16 Tentative Ruling

DEPARTMENT 29 - LAW AND MOTION RULINGS IMPORTANT  (PLEASE SEND YOUR E-MAIL TO DEPT. 29 NOT DEPT. 2)

Communicating with the Court Staff re the Tentative Ruling 1. Please notify the courtroom staff by email not later than 9:30 a.m. on the day of the hearing if you wish to submit on the tentative ruling rather than argue the motion. The email address is SSCDEPT29@lacourt.org. Please do not use any other email address. 2. You must include the other parties on the email by "cc." 3. Include the word "SUBMISSION" in all caps in the Subject line and include your name, contact information, the case number, and the party you represent in the body of the email. If you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the motions. THE COURT WILL HEAR ARGUMENT UNLESS BOTH SIDES SUBMIT ON THE TENTATIVE.  4. Include the words "SUBMISSION BUT WILL APPEAR" if you submit, but one or both parties will nevertheless appear. 5. For other communications with Court Staff a. OFF-CALENDAR should appear in all caps in the Subject line where all parties have agreed to have a matter placed off-calendar. All counsel should be cc'ed (and where appropriate parties not represented by counsel) and the body of the email should state: (a) name and case number; (b) date of proceeding. b. CASE SETTLED should appear in all caps in the Subject line where all parties have agreed that the case has settled for all purposes. All counsel should be cc'ed (and where appropriate parties not represented by counsel) and the body of the email should state: (a) name and case number; (b) whether notice of settlement/dismissal documents have been filed; (c) if (b) has not been done, a date one year from the date of your email which will be a date set by the court for an OSC for dismissal of the case. c. STIPULATION should appear in all caps in the Subject line where all parties have stipulated that a matter before the court can be postponed. All counsel should be cc'ed (and where appropriate parties not represented by counsel) and the body of the email should state: (a) name and case number; (b) what proceeding is agreed to be postponed e.g. Trial, FSC; (c) the agreed-upon future date; (d) whether all parties waive notice if the Court informs all counsel/parties that the agreed-upon date is satisfactory. This communication should be used only for matters that are agreed to be postponed and not for orders shortening time. 6. PLEASE MAKE SURE THAT ALL COMMUNICATIONS WITH COURT STAFF DEAL ONLY WITH SCHEDULING AND ADMINISTRATIVE MATTERS AND DO NOT DISCUSS THE MERITS OF ANY CASE. (UPDATED 6/17/2020) 

IMPORTANT:  In light of the COVID-19 emergency, the Court encourages all parties to appear remotely.  The capacity in the courtroom is extremely limited.  The Court appreciates the cooperation of counsel and the litigants. 

ALSO NOTE:  If the moving party does not contact the court to submit on the tentative and does not appear (either remotely or in person), the motion will be taken off calendar.  THE TENTATIVE RULING WILL NOT BE THE ORDER OF THE COURT.

Case Number: 20STCV34257    Hearing Date: August 24, 2023    Dept: 29

TENTATIVE

THIS IS A TENTATIVE RULING. IT IS NEITHER COMPLETE NOR FINAL.

THE COURT WISHES TO HEAR  ORAL ARGUMENT.

THIS TENTATIVE RULING IS PROVIDED TO ASSIST COUNSEL IN PREPARING FOR ARGUMENT. THE COURT EXPECTS TO TAKE THE MATTER UNDER SUBMISSION AT THE CLOSE OF ARGUMENT.

THE COURT HAS QUESTIONS FOR COUNSEL, INCLUDING (BUT NOT LIMITED TO) THOSE SET FORTH BELOW.

Background

This case has a long factual and procedural history, only some of which will be summarized here.

According to the Complaint, Plaintiff Arpi Baghoomian (“Plaintiff”) was seriously injured in an automobile accident on March 17, 2020. The other vehicle was driven by Defendant Ricardo Arturo Fierro (“Fierro”). On September 9, 2020, Plaintiff filed her Complaint against Fierro, Fletcher Jones Motor Cars, Inc./Audi of Beverly Hills (“Audi BH” or “Defendant”), VW Credit, Inc., and Does 1 through 50, asserting claims for negligence and negligent entrustment.

On March 3, 2021, Plaintiff named Donald Stephenson (“Stephenson”) as Doe 1. On May 10, 2021, Plaintiff dismissed his claims against VW Credit, Inc. On January 11, 2022, the Clerk entered Fierro’s default.

Certain facts are undisputed. On March 12, 2020, Stephenson brought his car to Audi BH for repairs and was provided with a loaner vehicle. (SUMF No. 8.) At some point between March 12 and 16, 2020, Stephenson left the state. (SUMF No. 11.) On or before March 15 or 16, 2020, Audi BH contacted Stephenson about a swap of the loaner vehicle (the “first loaner vehicle”) for a different one (the “second loaner vehicle”), but because Stephenson was out of state he informed Audi BH that he would have his friend Fierro assist with the swap. (SUMF No. 13.) Stephenson advised Audi BH that Fierro would have the first loaner vehicle for the swap or exchange of loaner vehicles at 1213 N. Alexandria. (SUMF No. 17.) A “porter” sent by Audi BH but employed by a third party picked up the first loaner vehicle from Fierro and delivered the second loaner vehicle to him. (SUMF No. 15.) On March 17, 2020, Fierro, who did not have a driver’s license, drove the second loaner vehicle to Little Tujunga Canyon Road, crossed over a solid double yellow lone on a 2-lane road, and collided with Plaintiff, causing injuries to her. (SUMF Nos. 21-22.)

On May 4, 2023, the Court granted Stephenson’s motion for summary judgment, ruling (among other things) that Stephenson had shown that he did not know that Fierro did not have a driver’s license; that Stephenson had established that there were no triable issues of fact as to Plaintiff’s claim of negligent entrustment; and that even if Fierro acted as an agent for Stephenson in connection with the exchange of the loaner cars, the undisputed facts showed that Fierro was acting outside the scope of that agency when, on the following day, he drove the second loaner vehicle and ultimately collided with Plaintiff.

On April 25, 2023, Audi BH filed the instant motion for summary judgment or, in the alternative, for summary adjudication, along with supporting evidence, a separate statement, and a request for judicial notice.  

On August 2, 2023, Plaintiff filed an opposition, supporting evidence, a response to Defendant’s separate statement, her own statement of additional material facts, objections to Defendant’s evidence, and an objection to Defendant’s request for judicial notice.

On August 11, 2023, Audi BH filed a reply.

Legal Standard 

“The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Code of Civil Procedure 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 cause of action as framed by the complaint, a defendant moving for summary judgment or summary adjudication must satisfy the initial burden of proof by presenting facts to show “that one or more elements of the cause of action ... cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2); see also Aguilar, supra, 25 Cal.4th at 850-51; 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 the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2); see also Aguilar, supra, 25 Cal.4th at 850-51.) 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.)

Request for Judicial Notice

Defendant requests that the Court take judicial notice of five documents in the court file: (1) Plaintiff’s Complaint filed September 9, 2020; (2) Defendants’ Answer to Plaintiff’s Complaint filed October 16, 2020; (3) Defendant Donald Stephenson’s Motion for Summary Judgment; (4) Defendant Donald Stephenson’s Separate Statement of Undisputed Material Facts; and (5) Defendant Audi BH’s Opposition to Donald Stephenson’s Motion for Summary.

Plaintiff objects to this request, arguing that the Court may take judicial notice only of the existence of such records, not the truth of the matters asserted therein. That is a correct statement of the law. (See Gong v. City of Rosemead (2014) 226 Cal.App.4th 363, 369-70 n. 1; see also Fowler v. Howell (1996) 42 Cal.App.4th 1746, 1752-53.)

Accordingly, the Court will grant the Defendant’s request for judicial notice under Evidence Code section 452, subdivision (d), and will consider the existence of these records but will not (without more) accept the truth of the matters asserted in the documents.

Evidentiary Objections 

Plaintiff objects to certain portions of the declarations of Omar Solis and Catherine Martinez submitted by Defendant in support of its motion. Evidence presented in support of, or in opposition to, a motion for summary judgment must be admissible. (Code Civ. Proc., § 437c, subd. (d); Perry v. Bakewell Hawthorne LLC (2017) 2 Cal.5th 536, 541-43.)  The court must “consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained.” (Code Civ. Proc., § 437c, subd. (c).)

The Court has considered and OVERRULES all of Plaintiff’s objections. The objections raise matters that may be explored on cross-examination but do not provide a basis to exclude the testimony.

Discussion

1.      The Graves Amendment

As a threshold issue, Defendant argues that the federal Graves Amendment, 49 U.S.C. section 30106, applies here and bars either all, or at least some, of Plaintiff’s claims against Defendant.

The text of the statute provides:

“An owner of a motor vehicle that rents or leases the vehicle to a person (or an affiliate of the owner) shall not be liable under the law of any State or political subdivision thereof, by reason of being the owner of the vehicle (or an affiliate of the owner), for harm to persons or property that results or arises out of the use, operation, or possession of the vehicle during the period of the rental or lease, if--

(1) the owner (or an affiliate of the owner) is engaged in the trade or business of renting or leasing motor vehicles; and

(2) there is no negligence or criminal wrongdoing on the part of the owner (or an affiliate of the owner).” (49 U.S.C. § 30106.)  

The Court has (at least) fourth questions for counsel.

First, is Audi BH the “owner” of the motor vehicle that Fierro was driving at the time of the accident? Has either party presented any evidence of this fact in the summary judgment record?

Second, if Audi BH is not the “owner” of the motor vehicle that Fierro was driving at the time of the accident, who is the owner, and is Audi BH “an affiliate of the owner” within the meaning of the statute? What does “affiliate of the owner” mean in this statute? And, whatever the legal standard is, has either party presented any evidence in the summary judgment record that would support a finding that Audi BH is an affiliate of the owner?

Third, if the Graves amendment applies here, and Audi BH is the owner or affiliate of the owner of the vehicle, it appears that the federal statute would bar Plaintiff from pursuing a vicarious liability claim against Audi BH as the owner/affiliate of the owner of the vehicle. Does Audi BH agree that the federal statute does not bar a claim against Audi BH for its own negligence? (49 U.S.C. § 30106, subd. (2).)

Fourth, does the Graves amendment even matter here? The Garves amendment bars a vicarious liability or derivative claim against a blameless vehicle owner for the harm caused by the negligence of a driver of the vehicle. Does the Complaint allege such a claim?

The Court’s tentative ruling is that if there is sufficient proof that Audi BH is the owner/affiliate of the owner of the vehicle, the Graves Amendment applies here. Defendant is an automobile dealership that sells vehicles and also provides repair services. In connection with providing repair services, Defendant, in the regular course of its business, offers its customers loaner vehicles while the repairs are underway. It is true, of course, that Defendant is not a rental company in the same way that Hertz or Avis (for example) is, but the statute does not require that the rental or leasing of vehicles be the only business, or even the primary business, of the entity – it is enough that the vehicle owner is “engaged in the trade or business of renting or leasing motor vehicles,” and that is satisfied here.

Courts in other jurisdictions have reached this same conclusion. For example, in an Eleventh Circuit Court of Appeals case, Thayer v. Randy Marion Chevrolet Buick Cadillac, LLC (2022) 30 F.4^th 1290, the facts are similar to the instant matter. A motorist was in a collision with a customer driving a vehicle provided by an automobile dealership while the customer's vehicle was being repaired. (Thayer, supra at 1291). The motorist filed suit against the dealership, seeking damages for vicarious liability. The United States District Court for the Middle District of Florida granted the dealership’s summary judgment motion. The motorist appealed and the Eleventh Circuit affirmed. (Id.) The Thayer Court reasoned that although the dealership was not a car rental company, the loaned vehicle was a lease and the dealership was engaged in the business of leasing vehicles. (Id. at 1293.). Other rulings reach the same conclusion. (See Collins v. Auto Partners V. LLC (2019) 276 So.3d 817 [“held that the employee had been driving in his capacity as a lessee, not as an employee, and thus Graves Amendment barred vicarious liability claim.”] Also see Garcia v. Steele (2023) 211 N.E.3d 602 [“dealership met Graves Amendment requirement of being in business of renting or leasing vehicles;”].) The Court is not aware of any rulings to the contrary.

2.       Negligence/Negligent Entrustment

The Complaint alleges two causes of action, one for “negligence” and one for “negligent entrustment.” On the facts of this case, it appears that the two causes of action are essentially the same: as to Audi BH, the act of alleged negligence is the act of negligently entrusting a vehicle to Fierro. Does Plaintiff agree, or is there some other theory of liability that Plaintiff is pursuing in the negligence cause of action?

As to negligent entrustment, is Plaintiff’s claim based on a general claim of duty under Civil Code section 1714, subdivision (a), and the Rowland factors; or is it based on Vehicle Code section 14604; or is it based on some other statute or theory? If it is based on section 14604, is Audi BH the “owner” of the vehicle within the meaning of the statute? Is Audi BH a “rental company” within the meaning of the statute?

If Plaintiff is proceeding under a common law theory of negligence/negligent entrustment, is it Plaintiff’s theory that Audi BH had a common law duty of care not to entrust a vehicle to an unlicensed person? Plaintiff, is there case law or other authority to support such a duty? Defendant, do you agree or disagree that such a duty exists. Under what theory would it be consistent with a general duty of ordinary care to entrust a vehicle to an unlicensed person? And, Defendant, if a duty exists, what arguments (if any) do you have, on summary judgment, as to breach, causation, and damages?

Conclusion