30-2015-00822165

Bookout vs. Hoeven

1) Motion for Summary Judgment and/or Adjudication

2) Motion for Summary Judgment and/or Adjudication

3) Motion to Vacate 998 Offer & Acceptance

#1 – Defendant Todd Caviola’s motion for summary judgment on plaintiff Nancy Bookout’s complaint is denied. His motion for summary adjudication of Plaintiff’s third cause of action for negligent entrustment is granted.

#2 – Defendant Richard Benter motion for summary judgment is denied. His motion for summary adjudication of Plaintiff’s third cause of action for negligent entrustment is granted.

#3 – Plaintiff’s motion for an order vacating her CCP 998 offer to Defendant, and his acceptance of it, is denied.

Motions #1 and #2

Negligence

The elements for a cause of action for negligence are: (i) a legal duty to use due care; (ii) a breach of such legal duty; and (iii) the breach as the proximate or legal cause of the resulting injury. Ladd v. County of San Mateo (1996) 12 Cal. 4th 913, 917.

According to Quiroz v. Seventh Ave. Center (2006) 140 Cal. App. 4th 1256, “negligence per se” is not a separate, stand-alone cause of action but merely “an evidentiary presumption rather than an independent right of action.” Id., at 1286. “Under the doctrine of negligence per se, the plaintiff ‘borrows’ statutes to prove duty of care and standard of care. Johnson v. Honeywell Intern. Inc. (2009) 179 Cal. App. 4th 549, 558.

Section 669 of the Evidence Code provides that: “(a) The failure of a person to exercise due care is presumed if: (1) He violated a … regulation of a public entity; (2) The violation proximately caused death or injury …; (3) The death or injury resulted from an occurrence of the nature which the … regulation was designed to prevent; and (4) The person suffering the death or injury to his person … was one of the class of persons for whose protection the … regulation was adopted.” The burden is on the proponent of a negligence per se instruction to demonstrate that these elements are met. (Ronald M. v. White (1980) 112 Cal.App.3d 473, 477 [169 Cal.Rptr. 370].) . . . The third and fourth elements of Evidence Code section 669 must be determined by the court as a matter of law.

Traxler v. Varady (1993) 12 Cal. App. 4th 1321, 1328.

Imputed Liability (Permissive Use Statute)

Vehicle Code §17150 states:

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.

The purpose of the above statute is to protect innocent third parties from the careless use of automobiles and that this protection should be paramount to the rights of an owner who has permitted the use of his car by others even though he, personally, was not guilty of negligence. Mason v. Russell (1958) 158 Cal. app. 2d 391.

The owner’s liability under Vehicle Code § 17150 is capped at $15,000 per injury, $30, 000 per occurrence. Veh. Code § 17151. Further, most courts take the position that any recovery against the driver should be credited against the owner’s statutory liability. See Walker v. Belvedere (1993) 16 Cal. App. 4th 1663, 1666 (stating proposition and citing cases and noting that it is the payment of the amount, not simply a judgment or acknowledgment, that extinguishes the car owner’s imputed liability). See also Lindgren v. Baker Eng. Corp. (1988) 197 Cal. App. 3d 1351, 1352 (granting car owner summary judgment on showing of payment by driver) but see id., 1355-57 (Crosby, J., dissenting).

Direct Liability

The elements of a negligent entrustment claim are:

(1) there was an entrustment of a chattel;

(2) to an entrustee who was incompetent, inexperienced, or reckless, or to an incapacitated person or one who is incapable of using due care;

(3) by an entrustor with a superior right to control the property (the requisite control involves the ability to determine whether another may use a potentially dangerous instrumentality);

(4) who knew or had reason to know of the entrustee’s limitations or proclivities;

(5) the entrustment created an appreciable risk of harm to the plaintiff and a relational duty on the part of the defendant;

(6) harm or damages to the plaintiff ensued;

(7) proximately or legally caused by negligence of the defendant.

See Diaz v. Carcamo (2011) 51 Cal. 4th 1148, 1157; Jeld-Wen, Inc. v. Superior Court (2005) 131 Cal. App. 4th 853, 863-64; Lindstrom v. Hertz Corp. (2000) 81 Cal. App. 4th 644, 648; White v. Inbound Aviation (1999) 69 Cal. App. 4th 910, 927-30.

Motion #1 – Defendant Caviola

Evidentiary Objections

Defendant Caviola’s objections do not comply with CRC 3.1354. They are not directed at and do not quote actual evidence but instead quote the separate statement of an undisputed material fact that then cites to the evidence. There is no feasible way to rule on these objections as evidentiary objections. They are therefore denied.

Merits

Negligence/Negligence Per Se

Caviola argues he had no duty to Plaintiff as he did not own the van or control Hoeven’s actions. In his separate statement, Caviola asserts that Benter was responsible for maintaining the van. The evidence cited to – Benter Depo. at 41 — has not been submitted to the court, however. Plaintiff, on the other hand, has submitted evidence that Caviola was responsible for maintaining the vehicle. [Benter Depo. at 22-23, 28.]

Plaintiff relies on this, plus a purportedly dirty windshield that obscured Hoeven’s view when he hit Plaintiff, to argue that there are triable issues of fact as to her negligence claim against Caviola. Caviola did not in the first instance make any showing that no failure by him in maintaining the van caused or contributed to Plaintiff’s injuries.

Negligent Entrustment

Caviola has declared though that he had no knowledge that Hoeven ever drove in a way that created an unreasonable risk of harm. [Caviola Decl., ¶ 12.]

On its face, this fact negates an essential element of a negligent entrustment action.

Plaintiff seeks to raise a triable issue of fact by contending, based on Hoeven’s testimony, that Caviola knew that Hoeven was under stress due to a divorce. [Hoeven Depo. at 114.] Being under stress does not necessarily make one an incompetent or reckless driver, however. So knowing someone is under stress is not the equivalent of having reason to believe that person will be an incompetent or reckless driver.

Motion # 2 – Defendant Richard Benter

As the admitted owner of the van, Benter has imputed liability under Veh. Code § 17150. Should Hoeven in fact pay Plaintiff $15,000 or more in settlement of her claims, then this liability will be discharged. Walker v. Belvedere (1993) 16 Cal. App. 4th 1663, 1666; Lindgren v. Baker Eng. Corp. (1988) 197 Cal. App. 3d 1351

Currently, however, the record does not reflect that Hoeven has actually paid the settlement amount in addition to agreeing to entry of judgment in the amount of $149.999.00. [Kinoshita Decl., Ex. F.] Under Walker and Lindgren, supra, this would not appear to be enough – even if the Court denies Plaintiff’s motion to vacate the Hoeven 998 offer and acceptance. It cannot be said, therefore, that Benter’s imputed liability has yet been discharged. Accordingly, Plaintiff’s claim for negligence (and negligence per se, to the extent it is treated as a cause of action) still stands against Benter.

By his own and Caviola’s testimony, Benter established that he did not loan, or approve the loan of, the van to Hoeven. Further, he testified that he did not know Hoeven. [Caviola Decl., ¶¶ 8, 9, 1, 12, 13. Benter Depo. At 15, 20-22, 24, 28, 29-31, 110.] This evidence establishes that there is no triable issue of fact that Benter entrusted the van to Hoeven – or that Caviola was acting as Benter’s agent in doing so — despite having reason to know that Hoeven was or would be an incompetent or reckless driver. Hoeven’s testimony that he believes he met Benter at some time in the past does not change this. [Hoeven Depo. at 23.]

Motion #3 – to Vacate CCP 998 Offer and Acceptance

The discretionary relief provision of section 473 (b) provides: “The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.”

Relief can be available under the statute from a judgment that is entered pursuant to a settlement under a Section 998 offer. Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal. 4th 249, 254, 257-58. Indeed, such relief can be granted even where the trial court has not yet formally entered a judgment upon the Section 998 offer (as is the case here). Id. at 253 n.2.

In Zamora, however, the mistake in question was essentially a typographical error by counsel’s assistant. As discussed further below, where the mistake is counsel’s understanding as to the terms, such mistake is considered intrinsic and not a basis for relief.

In Zamora, the California Supreme Court in fact affirmed the granting of a motion for relief even where the trial court had not formally entered a judgment upon the Section 998 offer – as is the case here. Id. at 253 n.2.

Plaintiff seeks relief on the basis of her counsel’s mistake, inadvertence or neglect. A party who seeks relief on this basis must demonstrate that the attorney’s mistake, inadvertence, or general neglect was excusable. Zamora, 28 Cal. 4th 249, 258 (citation omitted). In determining whether an attorney’s mistake or inadvertence is excusable, the court inquires whether a reasonably prudent person under the same or similar circumstances might have made the same error. Zamora, 28 Cal. 4th 249, 258 (citation omitted); accord Pazderka v. Caballeros, Dimas, Alang (1998) 62 Cal. App. 4th 658, 671. Relief from attorney error is available only for mistakes “anyone could have made.” Zamora, 28 Cal.4th 249, 258. Under the “reasonably prudent person standard,” an attorney receives the benefit of relief where the mistake is one which might ordinarily be made by a person with no special training or skill. Pazderka, 62 Cal. App. 4th at 671.

In Zamora, the legal assistant for an attorney prepared the client’s 998 offer and inadvertently wrote that judgment could be entered against the firm’s client for $149,999 instead of in favor of the client. The California Supreme Court stated:

“Here, the trial court reasonably concluded that the mistake made by Zamora’s counsel was excusable. The erroneous substitution of the word ‘against’ for the phrase ‘in favor of’ is a clerical or ministerial mistake that could have been made by anybody. While counsel’s failure to review the document before sending it out was imprudent, we cannot say that his imprudence rendered the mistake inexcusable under the circumstances. Indeed, appellate courts have routinely affirmed orders vacating judgments based on analogous mistakes made by an attorney or his or her staff. For example, courts have set aside judgments where: (1) The attorney mistakenly checked the ‘with prejudice’ box instead of the ‘without prejudice’ box . . . .”

28 Cal.4that 259.

But in Pazderka the result was different. There, the party presenting the Section 998 offer intended to settle the case, but the attorney who drafted the offer failed to state that the offer included attorney fees and costs. The Court of Appeal concluded this “is not the type of mistake ordinarily made by a person with no special training or skill.” 62 Cal. App. 4th at 671 (finding also that policy goals, and a need for finality of statutory 998 offers, must override traditional contractual grounds for setting aside these offers).

In Premium Comm. Serv. Corp. (1999) 72 Cal. App. 4th 1493, the same error occurred. The attorney drafting the Section 998 offer failed to include a provision for each side to bear its’ own costs. The Court of Appeal reached the same conclusion as in Pazderka: this is not the type of error ordinarily made by a person with no special training or skill. 72 Cal. App. 4th 1493, 1495-97.

Here, counsel’s mistake is more like that in Premium and Pazderka than in Zamora – that is, it is one of judgment than simply a clerical error.

It appears counsel believed the entire amount of Benter’s coverage limits would remain available regardless of the proffered 998 settlement with Hoeven. He indicates he made something like this clear to others, but there is nothing specific about communication with Benter’s counsel – much less assurances made by Benter’s counsel.

Months after Hoeven accepted Plaintiff’s 998 offer (and Benter had not accepted the simultaneous 998 offer to him), Plaintiff’s counsel was surprised when Benter’s counsel explained his understanding was that Plaintiff would not be entitled to any further recovery under the remaining insurance policies (presumably speaking of Benter’s policy). [Olan Decl., ¶ 11.] While Plaintiff’s counsel does not explain what, if any, basis Benter’s counsel gave for his opinion, given Benter’s MSJ it seems that his counsel was referring to the effect set off effect of Hoeven’s settlement on Benter’s imputed liability.

Plaintiff’s counsel’s blind spot on this point does not appear to be a mistake due to representations by opposing counsel, but his own mistake — a knowledge gap — about applicable law. Such a mistake is one of understanding and judgment, not a clerical typographical mistake. A settlement with Hoeven on the terms stated was intended – Plaintiff’s counsel simply that not understand or appreciate how those terms would play out vis-à-vis Defendant Benter’s liability.