Judge: William A. Crowfoot, Case: 21STCV02647, Date: 2022-08-31 Tentative Ruling

Case Number: 21STCV02647    Hearing Date: August 31, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.            INTRODUCTION

On January 22, 2021, Plaintiff Gabriel R. Sanchez (“Plaintiff”) filed a complaint against Defendants Kasra Mizban (“Kasra”) and Nasser Mizban (“Nasser”) (collectively “Defendants”) for negligence and negligent entrustment arising from a motor vehicle accident that occurred on or about October 6, 2019.

On April 4, 2022, Defendant Nasser filed this motion for summary adjudication.  Plaintiff filed opposition papers on August 18, 2022.  Defendant Nasser filed reply papers on August 26, 2022.

II.          FACTUAL BACKGROUND

On or about October 6, 2019, Plaintiff was driving his vehicle, traveling west on Wilshire Blvd., between Beverly Glenn Blvd., and Devon Ave.  (Complaint, ¶¶ 11, 14.)  Plaintiff was stopped at a red light when Defendant Kasra rear-ended Plaintiff’s vehicle.  (Id., ¶¶ 14, 15.)  Plaintiff alleges that, immediately prior to the accident, eyewitnesses observed Kasra driving erratically, making sudden movements and failing to stay in a lane and maintain a path of travel.  (Id., ¶ 15.)  Plaintiff alleges the collision was completely avoidable and Kasra was simply too impaired to safely drive a vehicle at the time of the accident.  (Id.)  Plaintiff alleges Defendant Nasser owned, maintained, and entrusted the vehicle Kasra was driving to Kasra and that Naser knew or should have known Kasra was incompetent and unfit to drive the vehicle due to Kasra’s history of drunk driving and multiple at fault crashes.  (Id., ¶¶ 22-23.)

III.        LEGAL STANDARD

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages . . . or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs.  A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.”  (Code Civ. Proc., § 437c, subd. (f)(1).)  A motion for summary adjudication shall proceed in all procedural respects as a motion for summary judgment.  (Code Civ. Proc., § 437c, subd. (f)(2).)

In reviewing a motion for summary judgment or adjudication, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.”  (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)

“[T]he initial burden is always on the moving party to make a prima facia showing that there are no triable issues of material fact.”  (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.)  A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown 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).)  A moving defendant need not conclusively negate an element of plaintiff’s cause of action.  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.)

“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).)  The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.”  (Ibid.)  “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

IV.         REQUEST FOR JUDICIAL NOTICE

Defendant Nasser requests judicial notice of (1) the Traffic Collision Report prepared regarding the motor vehicle accident that is the subject of this action and (2) Plaintiff’s complaint. 

Defendant’s request is granted as to the complaint.

As for the traffic collision report, the Court finds it is unclear what subdivision of Evidence Code section 452 Defendant is contending the traffic collision report may be judicially noticeable under.  As Defendant has failed to demonstrate the traffic collision report is judicially noticeable, the request is denied.

The Court notes that even if the traffic collision report were judicially noticeable, the Court would only be able to take judicial notice of the existence of the report, not the truth of any of the matters asserted within the report.

V.           EVIDENTIARY OBJECTIONS

Plaintiff’s Objections

Plaintiff has submitted evidentiary objections to Defendant’s evidence.  The Court rules on the objections as follows:

1.   OVERRULED

2.   OVERRULED

3.   OVERRULED

4.   OVERRULED

5.   OVERRULED

6.   OVERRULED

7.   Decline to rule

With respect to the traffic collision report, the Court notes that Plaintiff is correct that accident reports are not admissible as evidence in civil actions.  (Veh. Code, § 20013; see also People v. Flaxman (1977) 74 Cal.Ap.3d Supp. 16, 20.)  This would generally mean the Court would sustain Plaintiff’s objection to the traffic collision report.

However, the Court notes that the traffic collision report has not been properly admitted into evidence in this case.  In submitting the traffic collision report for consideration, Defendant Nasser requested judicial notice of the report.  As discussed above, that request is denied.  Defendant has not attempted to submit the traffic collision report as an authenticated document apart from the request for judicial notice.  Defendant has thus failed to admit the traffic collision report as evidence for the Court’s consideration in the first place.  Under these circumstances, there is no need to rule on Plaintiff’s objection as to the admissibility of the traffic collision report.

Defendant’s Objections

Defendant has filed objections to Plaintiff’s evidence.  The Court rules on these objections as follows:

1.   OVERRULED

2.   SUSTAINED

With respect to portions of the deposition transcript of Kasra Mizban, the Court finds that the included cover page for the deposition transcript indicating it is a certified copy is sufficient to authenticate the deposition transcript.  There are no indications that this deposition transcript is in fact not the deposition transcript for the deposition of Kasra Mizban.

As for the witness statement of Cesar Montoya, the Court finds Plaintiff’s counsel has failed to properly authenticate and lay foundation for the witness statement.

VI.         DISCUSSION

Untimely Opposition

Defendant Nasser argues the opposition should not be considered because the opposition was not filed and served until August 18, 2022, even though Plaintiff’s counsel represented under penalty of perjury that the opposition was served on August 16, 2022.

“An opposition to the motion shall be served and filed not less than 14 days preceding the noticed or continued date of hearing, unless the court for good cause orders otherwise.”  (Code Civ. Proc., § 437c, subd. (b)(2).) 

Here, based on the August 31, 2022, hearing date, any opposition was to be filed and served by August 17, 2022.  Plaintiff’s opposition was filed on August 18, 2022.  While the proof of service attached to the opposition indicates the opposition was served on August 16, 2022, Defendant has submitted corrected proofs of service signed by Plaintiff’s counsel showing the opposition was actually served on August 18, 2022.  (Reply, Kang Decl., ¶ 5, Ex. B.)  Plaintiff’s opposition was thus untimely served and filed.

Despite the opposition being untimely filed and served, the Court notes that Defendant’s reply addresses the merits of Plaintiff’s opposition.  A court may consider papers that are not timely filed unless “substantial rights” are affected.  (Cal. Rules of Court, rule 3.1300, subd. (d); Code Civ. Proc., § 475.)  The appearance of a party at the hearing of a motion and his or her opposition to the motion on the merits is a waiver of any procedural defects or irregularities in a motion.  (Carlton v. Quint (2000) 77 Cal.App.4th 690, 697.)  Given Defendant’s reply addresses the merits of the opposition, the Court finds there has been no prejudice to Defendant.  The Court will thus exercise its discretion to consider the merits of the opposition.

Failure to Comply with CRC Rules

Defendant Nasser argues that Plaintiff’s opposition and evidence do not comply with California Rules of Court Rules 3.1350, 3.1116, and 3.1113 because Plaintiff’s evidence was not submitted as a separate document, the full copy of the deposition transcript is attached and the opposition fails to include a table of contents and a table of authorities.

CRC Rule 3.1350 provides that an opposition to a motion for summary judgment must consist of the following separate documents: memorandum in opposition to the motion, separate statement in opposition to the motion, evidence in opposition to the motion, and a request for judicial notice, if appropriate.  (Cal. Rules of Court, rule 3.1350, subd. (e).)  CRC Rule 3.1116  provides that for deposition testimony used as an exhibit, the exhibit must contain only the relevant pages of the transcript.  (Cal. Rules of Court, rule 3.1116, subd. (b).)  CRC Rule 3.1113 provides that a memorandum that exceeds 10 pages must include a table of contents and a table of authorities.  (Cal. Rules of Court, rule 3.1113, subd. (f).)

The Court finds Plaintiff’s opposition papers do not comply with CRC Rules 3.1350, 3.1113 and 3.1116.  However, Defendant has failed to show how Plaintiff’s lack of compliance with these rules has prejudiced Defendant.  While Plaintiff is admonished to comply with these rules in the future, the Court finds the lack of compliance does not affect consideration of the opposition.

Motion for Summary Adjudication

Defendant Nasser moves for summary adjudication in his favor and against Plaintiff on the second cause of action for negligent entrustment.

“In California, ‘ ‘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’ ‘ . . . [¶] . . . [¶] ‘Under the theory of ‘negligent entrustment,’ liability is imposed on [the] vehicle owner or permitter because of his [or her] own independent negligence and not the negligence of the driver, in the event plaintiff can provide that the injury or death resulting therefrom was proximately caused by the driver’s incompetency.’”  (McKenna v. Beesley (2021) 67 Cal.App.5th 552, 569 (quoting Syah v. Johnson (1966) 247 Cal.App.2d 534, 539) (alterations in original).)

To hold a defendant liable for negligent entrustment, the plaintiff must prove that (1) the driver was negligent in operating the vehicle, (2) that the defendant was an owner of the vehicle operated by the driver, (3) that the defendant knew, or should have known, that the driver was incompetent or unfit to drive the vehicle, (4) that the defendant permitted the driver to use the vehicle, and (5) that the driver’s incompetence or unfitness to drive was a substantial factor in causing harm to the plaintiff.  (Jeld-Wen, Inc. v. Superior Court (2005) 131 Cal.App.4th 853, 863-64.)

According to the notice of motion, Defendant Nasser is moving for summary adjudication on the second cause of action on grounds that Plaintiff cannot establish Nasser knew or should have known that co-defendant Kasra was incompetent or unfit to drive the vehicle. 

Defendant Nasser has submitted a declaration attesting that he had no knowledge that Kasra was intoxicated and/or under the influence at the time of the incident and/or when Kasra took the vehicle involved in the incident from their home on the night of the incident.  (Nasser Decl., ¶ 4.)  Nasser further declares that, to his knowledge, there was no evidence that Kasra was intoxicated and/or under the influence at the time of the incident or that charges had been filed against Kasra for driving under the influence related to the incident.  (Id., ¶¶ 5-6.)

Nasser’s declaration is insufficient to establish that he lacked knowledge as to Kasra’s incompetence and unfitness to drive in this case.  As pled, Plaintiff’s theory against Nasser is that Nasser knew or should have known that Kasra was incompetent and unfit to drive the vehicle due to Kasra’s history of drunk driving and multiple at fault crashes.  (Complaint ¶ 23.)  Nasser’s declaration only addresses his lack of knowledge as to Kasra being intoxicated and/or under the influence at the time of the accident.  It does not address Nasser’s lack of knowledge based on Kasra’s history of drunk driving and multiple at-fault crashes.

Plaintiff’s responses to Defendant Nasser’s request for admissions also do not establish Plaintiff’s lack of evidence as to Nasser’s knowledge of Kasra’s incompetence or unfitness to drive.  These requests for admissions only requests Plaintiff admit he has no evidence Nasser knew or should have known Kasra was intoxicated or under the influence when he operated the vehicle on the date of the accident.  (Kang Decl., ¶ 9; Defendant’s Compendium of Exhibits, Ex. 10.)  The requests do not address whether Plaintiff had any evidence of Nasser’s knowledge as to Kasra’s incompetence or unfitness to drive based on Kasra’s history of drunk driving and multiple at-fault crashes. 

Without evidence showing Nasser lacked knowledge as to Kasra’s incompetence and unfitness to drive based on Kasra’s history of drunk driving and multiple at-fault crashes, Nasser has failed to meet his burden of demonstrating Plaintiff cannot establish Nasser knew or should have known Kasra was incompetent or unfit to drive the vehicle.  (Binder v. Aetna Life Insurance Company (1999) 75 Cal.App.4th 832, 838-39 (stating that, as a general rule, in reviewing the evidence presented on summary judgment, the moving party’s evidence is strictly construed).)

The Court notes that, while not set forth in the notice, Defendant Nasser has also made arguments in the memorandum of points and authorities that Plaintiff cannot establish Kasra’s incompetence or unfitness to drive was a substantial factor in causing harm to Plaintiff.  (Motion, pp. 6:14-28, 7:1-10.)  A review of Plaintiff’s opposition demonstrates that Plaintiff has addressed Defendant’s arguments regarding Kasra’s incompetence or unfitness to drive at the time of the accident.  (Opposition, pp. 3: 22-28, 4:1-7.)  As Plaintiff had sufficient notice of this argument from the memorandum of points and authorities and has in fact addressed this argument in opposition, the Court will address this argument, despite such grounds not being set forth in the notice of motion.

Nasser has submitted a declaration from co-defendant Kasra.  Kasra declares that, at the time of the accident on October 6, 2019, he was not intoxicated and/or under the influence, that no charges have been filed against him for driving under the influence related to the incident, and that he had a valid California driver’s license.  (Kasra Mizban Decl., ¶¶ 2-4.)  This is sufficient for Defendant Nasser to meet his burden of demonstrating Plaintiff cannot establish Kasra’s incompetence or unfitness to drive was a substantial factor in causing Plaintiff’s harm.

In opposition, Plaintiff relies on Kasra’s deposition testimony and a statement from witness Cesar Montoya to raise triable issues of material fact as to whether Kasra was incompetent and unfit to drive at the time of the accident.  As the evidentiary objection to Montoya’s witness statement has been sustained, Montoya’s statement is inadmissible to show triable issues of material fact exist as to Kasra’s incompetence and unfitness to drive at the time of the accident.

As for Kasra’s deposition testimony, Plaintiff relies on Kasra’s alleged testimony that he was aware that Plaintiff sustained multiple injuries and surgeries as a result of the accident; that he had been in approximately eight other car accidents, of which, the ones he remembers were likely his fault; that he smoked marijuana at least once or twice a month; that he still drank alcohol as of the date of the accident; that he generally did not follow traffic signs; that he switched lanes just prior to the accident and then struck Plaintiff’s vehicle; that he described being dazed, losing consciousness, feeling about to go to sleep at or near the time of the impact for the accident; that he has a history of seizures; and that he did not see the rear of the Plaintiff’s vehicle before striking it.  (Plaintiff’s Separate Statement Nos. 20-29.) 

That Kasra was aware Plaintiff sustained injuries and required surgery is insufficient to demonstrate Kasra’s incompetence or unfitness to drive was a substantial factor in causing harm to Plaintiff.  That Kasra switched lanes prior to striking Plaintiff’s vehicle and did not see the rear of Plaintiff’s vehicle before striking it are also insufficient to demonstrate Kasra’s incompetence or unfitness to drive was a substantial factor in causing harm to Plaintiff.  At most, these could indicate Kasra was negligent in operating the vehicle, not that Kasra was incompetent or unfit to drive the vehicle. 

That Kasra smoked marijuana at least once or twice a month, still drank alcohol as of the date of the accident, and has a history of seizures also do not demonstrate incompetence or unfitness to drive absent evidence showing that Kasra smoked marijuana, drank prior to the accident, or had a seizure prior to the accident. 

Kasra’s history of prior accidents is also insufficient to establish he was in fact incompetent or unfit to drive at the time of the accident. 

Regarding testimony that Kasra generally did not follow traffic signs, the portion of the deposition cited by Plaintiff does not support such a statement.  (Plaintiff’s Separate Statement, No. 25; Opposition, Hakim Decl., ¶ 3, Ex. 1, Deposition of Kasra Mizban, p. 136:3-7.)

Further, while Kasra described being dazed, confused, and losing consciousness, this was with respect to what happened immediately after the accident, not what happened prior to or at the time of the accident.  (Plaintiff’s Separate Statement, No. 27; Opposition, Hakim Decl., ¶ 3, Ex. 1, Deposition of Kasra Mizban, pp. 58-59, 63-64, 101-103.)  Feeling dazed, confused, and losing consciousness after impact does not tend to show Kasra was incompetent or unfit to drive at the time of the accident.

Plaintiff also contends Kasra going to dinner, testifying he would have one drink with dinner even though he denied drinking on the date of the accident, and paying for his meal using allowanced provided by his father, Nasser, provide circumstantial evidence that Kasra was an impaired driver.  (Plaintiff’s Separate Statement, Nos. 30-34.)  It is unclear how any of this shows Kasra was impaired at the time of the accident.  Even if Kasra generally had a drink with dinner, Kasra denied drinking on the date of the accident.  This denial has been acknowledged by Plaintiff. 

As Defendant Nasser has met his burden of demonstrating Plaintiff cannot establish Kasra’s incompetence or unfitness to drive was a substantial factor in causing Plaintiff’s harm and Plaintiff has failed to demonstrate triable issues of material fact exist as whether Kasra’s incompetence or unfitness to drive was a substantial factor in causing his injuries, Defendant Nasser is entitled to summary adjudication of the second cause of action.

Request for Continuance

          Plaintiff has requested a continuance to allow for additional discovery.

CCP section 437c(h) provides that “[i]f it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other orders as may be just.”  (Code Civ. Proc., § 437c, subd. (h).)  A summary judgment is a drastic measure which deprives the losing party of trial on the merits.  (Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 395.)  To mitigate this harshness, the drafters of CCP section 437c included a provision making continuances virtually mandated.  (Id.)  Where the opposing party submits an adequate affidavit showing that essential facts may exist but cannot be presented in a timely manner, the Court must either deny summary judgment or grant a continuance.  (Dee v. Vintage Petroleum, Inc. (2003) 106 Cal.App.4th 30, 34-35.)

“The nonmoving party seeking a continuance must show: (1) the facts to be obtained are essential to opposing the motion; (2) there is reason to believe such facts may exist; and (3) the reasons why additional time is needed to obtain these facts.  [Citations.]”  (Wachs v. Curry (1993) 13 Cal.App.4th 616, 623.)  If these factors are met, a continuance is mandatory.  (Danieley v. Goldmine Ski Associates, Inc. (1990) 218 Cal.App.3d 111, 127.)  “It is not sufficient under [CCP section 437c(h)] merely to indicate further discovery or investigation is contemplated.”  (Roth v. Rhodes (1994) 25 Cal.App.4th 530, 548.)

          Here, Plaintiff has failed to submit the requisite affidavit or declaration demonstrating the facts to be obtained that are essential for opposing the motion, that there is reason to believe such facts may exist, and the reasons why additional time is needed to obtain those facts.  Plaintiff has thus failed to show a continuance is warranted.  (See Scott v. CIBA Vision Corp. (1995) 38 Cal.App.4th 307, 325-26 (finding that the plaintiff failed to show her proposed discovery would have led to facts essential to her opposition where the plaintiff failed to file an affidavit or declaration indicating such).) 

          Additionally, the Court notes that the proposed discovery is discovery as to Kasra’s medical history and who paid for medical treatment and medications, Kasra’s memory issues, Kasra’s history of panic attacks and seizures, and other medical information.  (Opposition, p. 5:1-8.)  These issues do not appear to go towards whether Kasra was incompetent or unfit to drive at the time of the incident such that Kasra’s incompetence or unfitness to drive was a substantial factor in causing Plaintiff’s harm.  Rather, they appear to go towards Defendant Nasser’s knowledge of Kasra’s incompetence or unfitness to drive, which is not the issue upon which this motion is being granted.  To this extent, it cannot be said that any such facts are essential to opposing this motion.

          Accordingly, Plaintiff’s request for a continuance is denied.

          Request for Sanctions

          Defendant Nasser requests sanctions pursuant to CCP sections 128.5 or 437c(j).  Defendant argues sanctions should be imposed for Plaintiffs meritless objections to Defendant’s evidence and the filing of a frivolous or bad faith separate statement.

          CCP section 128.5 requires a request for sanction to be brought in a separate motion.  (Code Civ. Proc., § 128.5, sudb. (f)(1)(A).)  As Defendant’s request is made within the reply to this motion for summary adjudication, Defendant is not entitled to CCP section 128.5 sanctions.  Additionally, the Court is unpersuaded Plaintiff’s separate statement is frivolous or filed in bad faith.  That a majority of Plaintiff’s objections are without merit is also insufficient to support a finding of bad faith or frivolousness to warrant sanctions under CCP section 128.5.

          The Court also finds sanctions under CCP section 437c subdivision (j) are not warranted.  CCP section 437c subdivision (j) provides that “[i]f the court determines at any time that an affidavit was presented in bad faith or solely for the purpose of delay, the court shall order the party who presented the affidavit to pay the other party the amount of the reasonable expenses the filing of the affidavit caused the other party to incur.”  (Code Civ. Proc., § 437c, subd. (j).)  “Sanctions shall not be imposed pursuant to this subdivision except on notice contained in a party’s papers or on the court’s own noticed motion, and after an opportunity to be heard.  (Id.)  The Court does not find Plaintiff presented any affidavit or declaration in bad faith or solely for the purpose of delay.

          Accordingly, Defendant’s request for sanctions is denied.

VI.     CONCLUSION

          In light of the foregoing, the Motion for Summary Adjudication is GRANTED.

          Plaintiff’s request for a continuance is DENIED.

          Defendant’s request for sanctions is DENIED.

Moving party to give notice. 

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that 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 matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.