Case Number: SC119690    Hearing Date: August 28, 2014    Dept: 92

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

CHRISTINE OQUENDO, ET AL.,
Plaintiff(s),
vs.

BAHAR KAMJOO AZARI, ET AL.,
Defendant(s).

Case No.: SC119690

[TENTATIVE] ORDER GRANTING DEFENDANT, JON AZARI’S MOTION FOR SUMMARY JUGDMENT

Dept. 92
1:30 p.m. — #18
August 28, 2014

Defendant, Jon Azari’s Motion for Summary Judgment is Granted. Defendant, Bahar Kamjoo Ahari’s Motion for Summary Judgment is Taken Off Calendar.

1. Background Facts
Plaintiffs, Christine and William Oquendo and Amy Caine filed their original complaint on 1/09/13. The complaint is for damages arising out of an automobile accident that occurred on 1/13/11. The original complaint named “Bahar Kamjoo Azari aka Jon Azari” as a defendant. The original complaint, at ¶¶9 and 11, used the male pronouns (him, his) to refer to the defendant.

On 5/08/13, Defendant “Jon Azari erroneously sued and served as Bahar Kamjoo Azari aka Jon Azari” filed an answer to the complaint.

On 12/30/13, Plaintiffs filed an amendment to the complaint; the amendment indicates that “Bahar Kamjoo Azari aka Jon Azari” was the incorrect name of Defendant, and the correct name is “Bahar Kamjoo Azari.” On 12/24/13, Plaintiffs filed an amendment to the complaint, adding Jon Azari as Doe 1.

On 3/25/14, the Court overruled Defendant, Bahar Kamjoo Azari’s demurrer, which was brought on statute of limitations grounds.

2. Motion for Summary Judgment
At this time, Bahar Kamjoo Azari moves for summary judgment on the ground that the statute of limitations ran against her prior to the 12/30/13 amendment to the complaint, and the statute of limitations was not tolled. Jon Azari moves for summary judgment on the ground that he neither owned nor drove the car in question at the time of the accident.

a. Initial Note
Defendant, Bahar Kamjoo Azari has withdrawn her motion for summary judgment at this time. The only pending issue before the Court, therefore, is whether Jon Azari’s motion for summary judgment should be granted.

b. Merits
Defendant, Jon Azari moves for summary judgment, contending he did not own the subject automobile at the time of the accident, and was not driving the subject automobile at the time of the accident. Defendant shows that he was not driving the vehicle at the time of the accident and was not a passenger in the vehicle at the time of the accident (facts 16-18), and Plaintiffs concedes as much in opposition. The issue, therefore, is whether fact 15 (that Defendant did not own the subject automobile) is supported with admissible evidence, and if so, whether Plaintiffs raise a triable issue of material fact in this regard.

Defendant attempts to establish that he did not own the subject automobile with his own declaration, ¶3. ¶3 of his declaration states, “I am not and never have been a registered owner of the 2010 Mercedes ML350W2 that was allegedly involved in the accident of January 13, 2011 as alleged by plaintiffs in the complaint.”

Plaintiffs argue:
• The declaration is not sufficient evidence to shift the burden;
• Defendant has not produced the DMV records for the subject automobile;
• This is a motion for judgment on the pleadings, and the Court cannot consider a declaration;
• Defendant is listed on the insurance policy for the subject automobile.

Plaintiffs’ first argument is that the declaration is not sufficient to shift the burden. Plaintiffs fail, however, to provide any authority for this position. CCP §437c(b)(1) specifically permits a moving party to meet the burden through admissible evidence, including declarations. Plaintiffs do not object to Defendant’s declaration, and do not show that it is not admissible. While the declaration may not be Defendant’s “best evidence” concerning ownership of the vehicle, Plaintiffs fail to show that “best evidence” is required.

Plaintiffs’ second argument is that the DMV records of ownership have not been produced. Plaintiffs fail to show that they propounded discovery seeking these records, and that the discovery was thwarted. They fail to show there is a pending motion concerning these records. They fail to seek a continuance on the ground that discovery is outstanding. Absent some showing concerning a failure to produce records that have been sought in litigation, the fact that the records have not been produced is not relevant.

Plaintiffs’ third argument is that this is a motion for judgment on the pleadings, and the Court cannot consider a declaration in support of such a motion. This argument is confusing; the motion is for summary judgment, not for judgment on the pleadings.

Plaintiffs’ fourth argument is that Defendant is listed on the insurance policy. Neither party briefs this argument with authority. As noted above, Defendant met his moving burden to establish he does not own the subject automobile. Absent authority on the issue, Plaintiffs failed to establish that being listed on the automobile’s insurance policy raises a triable issue of material fact concerning ownership of the automobile.

Defendant met his burden to establish he is entitled to judgment as a matter of law. Plaintiffs failed to raise a triable issue of material fact. Defendant’s motion is therefore granted.

Dated this 28th day of August, 2014

Hon. Elia Weinbach
Judge of the Superior Court