Case Name: Maria Kung, et al. v.. Darlene Burch, et al.
Case No.: 2013-1-CV-248537

This is an action for motor vehicle and general negligence arising out of an April 15, 2013 automobile accident. Currently before the Court is the motion for summary judgment/adjudication by Defendants Sean Burch and Pacific States Industries, Inc. (“PSI”) (collectively, “Defendants”).

The pleadings limit the issues presented for summary judgment or summary adjudication. (See Government Employees Ins. Co. v. Sup. Ct. (2000) 79 Cal.App.4th 95, 98; Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258; Nieto v. Blue Shield of Calif. Life & Health Ins. (2010) 181 Cal.App.4th 60, 73 [“the pleadings determine the scope of relevant issues on a summary judgment motion.”].) The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) 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. (See CCP §437c(f)(1); McClasky v. California State Auto. Ass’n (2010) 189 Cal.App.4th 947, 975 [“If a cause of action is not shown to be barred in its entirety, no order for summary judgment—or adjudication—can be entered.”]) Summary adjudication of general “issues” or of facts is not permitted. (See Raghavan v. The Boeing Company (2005) 133 Cal.App.4th 1120, 1136.)

The moving party’s declarations and evidence will be strictly construed in determining whether they negate or disprove an essential element of a plaintiff’s claim “in order to resolve any evidentiary doubts or ambiguities in plaintiff’s (or opposing party’s) favor.” (Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64, parentheses added.) While the same standards of admissibility govern both, the opposition declarations are liberally construed while the moving party’s evidence is strictly scrutinized. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.) The evidence must be liberally construed in support of the opposing party, resolving any doubts in favor of that party. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037.) The moving party may generally not rely on additional evidence filed with its Reply papers. (San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 316.)

“A defendant seeking summary judgment must show that at least one element of the plaintiff’s cause of action cannot be established, or that there is a complete defense to the cause of action. … The burden then shifts to the plaintiff to show there is a triable issue of material fact on that issue.” (Alex R. Thomas & Co. v. Mutual Service Casualty Ins. Co. (2002) 98 Cal.App.4th 66, 72; internal citations omitted.) “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable finder of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar, supra, at 850.)

The basis for the alleged liability of the moving Defendants is that they negligently entrusted Defendant Darlene Burch with the automobile she was driving on the day on the accident, a vehicle which she did not own and had no right of access to absent Defendants’ entrustment. The stated basis for Defendants’ motion for summary judgment and for summary adjudication of both causes of action (motor vehicle and general negligence) in the alternative is the same: “Plaintiffs are unable to show that Defendants were in any way negligent in entrusting their vehicle to Darlene Burch. Plaintiffs cannot show that Defendants knew or should have known that Ms. Burch was incompetent or unfit to drive. Or alternatively . . . Defendants seek summary adjudication on Plaintiffs’ First Cause of Action for Motor Vehicle and Second Cause of Action for General Negligence . . . for the following reasons: Plaintiffs are unable to show that Defendants were in any way negligent in entrusting their vehicle to Ms. Burch. Plaintiffs cannot show that Defendants knew, or should have known, that Ms. Burch was incompetent or unfit to drive.” (Defendants’ Notice of Motion at 2:3-13.)

“It is generally recognized that one who places or entrusts his motor vehicle in the hands of one whom he 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 the injury complained of was proximately caused by the driver’s disqualification, incompetency, inexperience or recklessness.” (Allen v. Toledo (1980) 109 Cal.App.3d 415, 420, emphasis added; see also Dodge Center v. Superior Court (1988) 199 Cal.App.3d 332, 341 [stating that “[f]or liability to exist, knowledge must be shown of the user’s incompetence or inability safely to use the chattel”].) “Liability for the negligence of the incompetent driver to whom an automobile is entrusted does not arise out of the relationship of the parties, but from the act of entrustment of the motor vehicle, with permission to operate the same, to one whose incompetency, or recklessness is known or should have been known by the owner.” (Allen, supra, 109 Cal.App.3d at 420.) Moreover, liability is imposed on the vehicle owner because of his or her own independent negligence in permitting a known reckless or incompetent driver to operate the vehicle, and not because of the negligence of the driver. (See Osborn v. Hertz Corp. (1988) 205 Cal.App.3d 703, 709. See also Croskey, et al., Cal. Practice Guide: Insurance Litigation (Rutter Group 2015) §7:1324 [negligent entrustment “is not vicarious (imputed) liability. Rather, the defendant’s entrusting the vehicle to a driver known to be incompetent is an act of negligence independent of the driver’s negligence.” Emphasis in original.])

“‘Liability for negligent entrustment is determined by applying general principles of negligence, and ordinarily it is for the jury to determine whether the owner [or other entruster] has exercised the required degree of care.’ [Citation.] … ‘In its simplest form the question is whether the owner [or other supplier] when he permits an incompetent or reckless person, whom he knows to be incompetent or reckless, to take and operate his car [or any other instrumentality], acts as an ordinarily prudent person would be expected to act under the circumstances.’ [Fn. omitted.] [Citation.]” (White v. Inbound Aviation (1999) 69 Cal.App.4th 910, 920.)

CACI 724 [Negligent Entrustment of Motor Vehicle] states the elements to establish such a claim are as follows: 1. That [driver] was negligent in operating the vehicle; 2. That [defendant] owned the vehicle operated by the driver or had possession of the vehicle operated by driver with the owner’s permission; 3. That [defendant] knew or should have known that [driver] was incompetent or unfit to drive the vehicle; 4. That [defendant] permitted [driver] to drive the vehicle; and 5. That [driver’s] incompetence or unfitness to drive was a substantial factor in causing harm to [plaintiff].

Defendants’ motion for both summary judgment and summary adjudication is DENIED for failure to meet their initial burden to establish that Plaintiffs are unable to show that they were negligent in entrusting Darlene Burch with the vehicle in question. Defendants’ own evidence establishes the continuing existence of triable issues of material fact as to 1) whether by the date of the accident Defendant Sean Burch either had actual knowledge of Darlene Burch’s alcoholism or knowledge of circumstances reasonably indicating her alcoholism; 2) whether that knowledge demonstrated that she presented an unreasonable risk of harm to others if she drove while intoxicated such that it was negligent to entrust her with the automobile he (but not she) co-owned with Defendant PSI at any time or specifically while he was away on business, and; 3) whether his level of knowledge at that time can be imputed to Defendant PSI based on his co-ownership of PSI. The existence of these triable issues precludes any finding that Defendants are only vicariously liable such that their liability would be capped pursuant to Vehicle Code §17151.

The moving Defendants offer no argument as to the 1st, 4th and 5th elements of negligent entrustment as set forth in CACI 724; only the 2nd & 3rd elements are placed at issue in this motion. As to the 2nd element (ownership), Defendants’ own evidence (excerpts from the deposition testimony of Sean Burch and PSI executive vice president Austin Vanderhoof, presented as exhibits B and D to the declaration of Defense Counsel Jeffrey Vucinich) confirms that triable issues remain as to the exact ownership of the vehicle Ms. Burch was driving at the time of the accident (and ownership is obviously a material fact). Neither Mr. Burch nor Mr. Vanderhoof testifying on behalf of PSI could explain why Mr. Burch was listed as a co-owner with PSI on the vehicle paperwork. In any event Mr. Vanderhoof testified that Sean Burch is a part-owner of PSI, possibly making his direct ownership of the vehicle irrelevant—as he had PSI’s permission to use it and PSI as co-owner knew of and consented to its use by Ms. Burch—and also raising/preserving a triable issue as to whether his knowledge of his wife’s alcoholism and related incidents (two relapses less than a year before the accident) can be imputed to PSI. Defendants’ evidence (including exhibit C to the Vucinich declaration, excerpts from Defendant Darlene Burch’s deposition testimony) is consistent in asserting that Ms. Burch was not a registered owner of the vehicle, meaning she had no legal right to drive it and her access to it could have been cut off at any point in time and for any reason by either Mr. Burch or PSI.

As to the 3rd element, whether Defendants knew or reasonably should have known of Ms. Burch’s incompetence or unfitness to drive, there is a clear failure to meet the initial burden because Defendants’ own evidence conflicts on this point. Ms. Burch’s further deposition testimony (exhibit E to the Vucinich declaration) that her husband’s denial of any knowledge of her alcoholism and her treatment (including the use of Antabuse) before the accident in his discovery responses (exhibit G to the Vucinich declaration) is untrue, and her testimony that he knew of her alcoholism by no later than February 2012 (when he participated in a family intervention) clearly establishes that a triable issue of material fact remains as to whether both moving Defendants (Sean Burch and through him as part owner, PSI), if they knew of her alcoholism and her relapses, knew or reasonably should have known that she was unfit to drive the automobile they (but not she) owned and knew that she should not have been entrusted with it, particularly while Mr. Burch was out of town on business.

Defendants’ argument that there can be no negligent entrustment as a matter of law unless they knew or should have known that Ms. Burch was unfit to drive on the day of the accident is not supported by any cited authority. Given the open question of whether Sean Burch had actual knowledge of his wife’s alcoholism from at least the Feb. 2012 intervention if not earlier (and through him as part owner, whether PSI had such knowledge), Defendants’ assertion that it was indisputably reasonable for Sean Burch (and PSI) to assume that an alcoholic who had relapsed twice within the last 12 months would not, if left alone with access to an automobile, drink and then drive while impaired is unpersuasive. The reasonableness of this conduct is a question for a jury.

As the Court has determined that Defendants have failed to meet their initial burden, the burden of persuasion did not shift to Plaintiffs, making it unnecessary for the Court to consider Plaintiffs’ evidence or Defendants’ objections to that evidence.