Case Number: BC506031 Hearing Date: April 21, 2014 Dept: 92

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

JOSEF ANTHONY DRUMRIGHT,
Plaintiff(s),
vs.

BERNARD LEHENY, ET AL.,

Defendant(s).

Case No.: BC506031

[TENTATIVE] ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION
Dept. 92
1:30 p.m. – add on
April 21, 2014

Plaintiff, Josef Anthony Drumright’s Motion for Summary Judgment, or in the alternative, Summary Adjudication is denied.

1. Background Facts
Plaintiff, Josef Anthony Drumright filed this action against Defendant, Bernard Leheny for damages arising out of an automobile accident allegedly caused by Defendants Bernard Leheny and the Roman Catholic Archbishop of Los Angeles (“RCALA”). Plaintiff sets forth causes of action for Negligence Per Se, Negligence, Negligent Entrustment, and vicarious liability. Plaintiff alleges that on 9/25/12, Defendant Drumright was driving while in the course and scope of his employment with RCALA, when he was driving south on the 405, at approximately 60 miles per hour. Defendant was looking down at his radio and clock when he became aware of the traffic stopped in front of him. Defendant collided into the vehicle in front of him, which then hit into Plaintiff’s vehicle. The Traffic Collision Report indicated that the Defendant violated VC section 22350 which states that no person shall drive at a speed greater than is reasonable for the conditions.

Evidentiary Objections
Defendants object to the following:
(1) Exhibit A to Separate Statement, The Traffic Collision Report- Sustain (Hearsay, Ev. C, §1200, Behr v. County of Santa Cruz (1959) 172 Cal.App.2d 697, 705.);
Declaration of Joseph A Drumright
(2) paragraph 4- Sustain Contradicts deposition testimony;
(3) paragraph 5, Sustain. Lack of knowledge or foundation;
(4) paragraph 9, Overrule.

Standard

A Plaintiff has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on that cause of action. Once the Plaintiff has met that burden, the burden shifts to the Defendant to show a triable issue of one or more material facts exist as to that cause of action or defense. The defendant may not rely on mere allegations or denials to the pleadings to show a triable issue of fact exists, but shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or defense thereto. CCP § 437c (p)(1).

First cause of action for Negligence Per Se

Plaintiff first contends that undisputed material facts indicate that Plaintiff is entitled to judgment as a matter of law on the first cause of action for negligence per se.
The elements of a cause of action for Negligence per se are the following: (1) the defendant violated a statute; (2) the violation proximately caused the plaintiffs injuries; (3) the injury resulted from the kind of occurrence the statute was designed to prevent, and (4) the plaintiff was one of the class of persons the statue was intended to protect. Jacobs Farm/Del Cabo, Inc. v. Western Farm Services, Inc. (2010) 190 Cal.App.4th 1502, 1526. Jacobs, supra provides that the question of whether the defendant violated a statute and whether the violation proximately caused the plaintiffs injury are generally questions for the trier of fact. Id.

Here, Plaintiff contends that Defendant violated Vehicle Code §22350, relying solely upon the fact that the Traffic Collision Report concluded that the accident caused by Defendants violation of this statute. Vehicle Code § 22350 states: “No person shall drive a vehicle upon a highway at a speed greater than is reasonable or prudent having due regard for weather, visibility, the traffic on, and the surface and width of, the highway , and in no event at a speed which endangers the safety of persons or property.”
Plaintiff supports its contention that Defendant violated this statute by attempting to introduce evidence the Traffic Collision Report. However, as pointed out by Defendant, it is well established in California that accident reports are not admissible as evidence in any civil matter. Hoel v. Los Angles (1995) 136 Cal.App.2d 295, Kramer v. Barnes (1963) 212 Cal.App.2d 440. Vehicle Code § 20013 specifically provides, “(n)o such accident report shall be used as evidence in any trial, civil or criminal, arising out of an accident.” Here, the Traffic Collision Report was objected to and sustained.

In addition, the report is inadmissible as there is no evidence that the accident report was based on any personal observations by Officer Tanaka, who prepared the report. MacLean v. City & County of San Francisco (1957) 151 Cal.App.2d 133.

Many of Plaintiff’s facts in his separate statement rely on this report, to which the objection has been sustained; and therefore, the following facts are disputed: Nos 2-4, 5, 8-12,14-16, 20, 22-24, 26, 28, and 32-36. Plaintiff has failed to prove any admissible evidence to support his claim that Vehicle Code § 22350 was violated by Defendant, specifically that Defendant was driving at a speed greater than is reasonable or prudent under the circumstances; or that there are no disputed facts as to this issue. Therefore, summary adjudication must be denied.

Second cause of action for Negligence

Plaintiff contends that he is entitled to summary adjudication or judgment on this cause of action because of Defendant’s violation of Vehicle Code § 22350, and the conclusion that Defendant breached a duty of care owed to Plaintiff under the circumstances.

The determination of whether a driver was negligent in colliding with a vehicle in front of it is not a question of law, but rather, one of fact and depends on the conditions surrounding the occurrence of the accident. Pittman v. Boiven (1967) 249 Cal.App.2d 207, 213-214. A driver is not necessarily guilty of negligence because his vehicle struck the rear of another. Hirtz v. Porter (1958) 58 Cal.App.2d 801, 803. In accidents involving rear-end collisions, a variety of factors must be considered to determine which driver is to be charged with the responsibility for the collision. These factors include: (1) alertness of the driver in the rear in discovering the danger of collision, (2) the promptness with which the movement of the vehicle behind was arrested; (3) the efficiency of the brakes; (4) the distance maintained between the vehicles; or (5) the suddenness with which the vehicle ahead came to a stop. Pittman v. Boiven, supra, 249 Cal.App.2d at p.213-214.

As discussed above, Plaintiff did not establish a duty of care was breached under the circumstances since all evidence was based on the inadmissible Traffic Collision Report. In addition, Plaintiff fails to present any admissible evidence addressing any of the above issues or defenses raised in this kind of accident. Defendant disputes that he breached any duty or that he looked down at his radio or clock right before the accident. SS Nos. 1-3. In addition, Defendant contends that he was travelling at a reasonable speed with due care of his surroundings. SS No. 4. Plaintiff fails to establish a prima facie case for negligence. In addition, Plaintiff fails to address any of Defendants affirmative defenses. Plaintiff attempts to rely on Bewley v. Riggs (1968) 262 Cal.App.2d 188 to support his argument that Defendant breached his statutory and common law duty of care, however, Bewley only supports the proposition that this is a question for the fact finder.

4th cause of action Negligent Entrustment

Plaintiff contends that it is entitled to judgment or summary adjudication on this cause of action because Roman Catholic Archbishop of Los Angeles (“RCALA”) knew or should have known Defendant as unfit to operate its vehicle. In support of this cause of action, Plaintiff points to the disputed facts about how the accident occurred; and the fact that Defendant worked for RCALA. SS Nos 37-47.

The elements of a cause of action for negligent entrustment are: (1) that the driver was negligent in operating the vehicle; (2) that defendant owned the vehicle operated by the driver; (3) that the defendant knew, or should have known that driver was incompetent or unfit to drive the vehicle; (4) that defendant permitted the driver to drive the vehicle; and (5) that driver’s incompetence or unfitness to drive was a substantial factor in causing harm to the plaintiff. CACI 724 –Negligent Entrustment of Motor Vehicle.
In a claim for negligent entrustment, “[f]or liability to exist, knowledge must be shown of the user’s incompetence or inability safely to use the chattel.” Dodge Center v. Superior Court (1988) 199 Cal.App.3d 332, 341. A sustainable cause of action requires a “demonstration of knowing entrustment to an incompetent or dangerous driver with actual knowledge of his incompetence.” Lindstrom v. Hertz Corporation (2000) 81 Cal.App.4th 644, 648. Even where the driver’s unfitness is the proximate cause of the resulting injury, a claim for negligent entrustment requires a showing that the person entrusting the vehicle knew that the driver was incompetent, intoxicated, reckless, or unlicensed “at the time of delivery of possession and control.” Talbott v. Csakany (1988) 199 Cal.App.3d 700, 703-704; Richards v. Stanley (1954) 43 Cal.2d 60, 63.

As a preliminary note, Plaintiff has not provided any admissible evidence that Defendant was negligent, incompetent or unfit to drive. In addition, Plaintiff has not provided any evidence that Defendant RCALA “knew, or should have known” that driver was incompetent or unfit to drive; or that this unfitness or incompetence was the substantial cause of the accident. CACI 724. Plaintiff merely comes to a speculative conclusion that “Defendant RCALA [Roman Catholic Archbishop] knew or should have known that Defendant Leheny was incompetent and/or unfit to operate Defendant Roman Catholic Archbishop’s vehicle.” (Plaintiffs Motion, p. 8, lines 19-20,).

Liability for the negligence of the “incompetent driver” to whom an automobile is entrusted does
not arise out of the relationship of the parties alone, but from the act of entrustment of the motor
vehicle, with permission’ to operate the same, to one whose “incompetency, inexperience, or recklessness” is known or should have been known by the owner. Syah v. Johson (1966) 247 Cal.App.2d 534, 539. Plaintiff submitted no evidence demonstrating incompetency or why the RCALA should have known of any alleged incompetency on the part of Defendant.
Plaintiff relies on Syah v. Johnson (1966) 247 Cal.App.2d 534, to support its allegation that Roman Catholic Archbishop is liable for negligent entrustment. In Syah, Hill was employed by defendant Johnson as a delivery driver. Approximately three weeks prior to the accident at issue, Hill suffered a dizzy spell and ran over a curb. Hill’s employers were immediately notified of the incident. Prior to this incident, Hill struck his head on two separate occasions and complained of head pain; these accidents were observed by his co-workers. Hill’s manager allowed him to continue working. The court held that whether the employer’s direct knowledge of three separate incidents involving Hill’s head injury imputed sufficient notice to the employers of the seriousness of his condition represents a question of fact for the jury’s whether Defendant was, in fact, negligent.

Plaintiff fails to set forth evidence to establish a prima facie case, therefore, judgment or summary adjudication is denied.

5th cause of action Vicarious Liability

Plaintiff contends that it is entitled to summary adjudication on the 5th cause of action for Vicarious Liability against RCALA because Defendant gave permission, by word or action, to Defendant to operate RCALA’s vehicle.

To establish vicarious liability, Plaintiff must demonstrate that the employee was negligent, and that the negligent act was committed within the scope of employment. Hartline v. Kaiser Found. Hospitals (2005) 132 Cal.App. 458, 465. The question of scope of employment is ordinarily one of fact for the jury to
determine. Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 221. However, it becomes a question of law when the facts are undisputed and no conflicting inferences are possible. Hinman v. Westinghouse Electric Co. (1970) 2 Cal.3d 956, 963. To establish that the incident was within the scope of the employee’s employment, the California Supreme Court held, “[t]he incident leading to injury must be an ‘outgrowth’ of the employment [or] the risk of tortious injury must be ‘inherent in the working environment’ or ‘typical of or broadly incidental to the enterprise [the employer] has undertaken.” Lisa M v.
Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 298.

As discussed above, Plaintiff failed to establish the first element, that Defendant was negligent.

In addition, Plaintiff failed to establish the second element as facts are disputed whether the incident was committed within the scope of Defendants employment. SS No.53-55, 58-62. Plaintiff has not provided any facts or evidence to establish that the September 25th accident was an outgrowth of Mr. Leheny’s employment as a Pastor of the Parish for the Roman Catholic Archbishop. Therefore, summary adjudication must be denied.

Disposition

Plaintiffs have not met their moving burden of establish a prima facie case of the above causes of action. The motion for summary judgment and or adjudication is therefore denied.

Dated this 21st day of April, 2014

Hon. Elia Weinbach
Judge of the Superior Court