Case Number: BC617838 Hearing Date: May 29, 2018 Dept: 2

Motion for Summary Adjudication by Defendant, Richard Nalbandian, filed on 3/5/18, is GRANTED. Defendant has established that he is entitled to adjudication of the 2nd cause of action for negligent entrustment alleged against him based on the undisputed material facts proffered. Cal Code Civil Procedure § 437c(p)(2).

Plaintiff’s evidentiary objections

Declaration of Mr. Nabandian.

#11, 14, 17, 18. SUSTAIN. Hearsay

#16. SUSTAIN. Lacks personal knowledge

All remaining objections are OVERRULED.

Plaintiffs argue that the Declaration of Richard Nalbandian is defective since it is not made under penalty of perjury, in violation of Cal Code Civil Procedure §2015.5

Defendant’ counsel has cured the defect by filing a Notice of Errata, stating that the certification was inadvertently omitted. Demarest Declaration, ¶ 5. Defendant includes a properly certified declaration. The facts otherwise contained within the Declaration are unchanged. Demarest Declaration ¶7.

Plaintiffs’ objection that submission of the properly signed declarations is untimely is without merit. Plaintiffs have had notice of the content of the declaration since it was timely submitted with the moving papers. Plaintiffs had sufficient time to respond to the declaration.

Defendant can amend a pleading in any respect based on mistake, inadvertence, surprise, or excusable neglect so long as the opposing party does not suffer prejudice. Cal Code Civ Procedure § 473.

“(a) (1) The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.” Cal Code Civ Procedure § 473.

Additionally, the court can disregard a defect in any pleading or proceeding so long as it does not result in substantial prejudice. Cal Code Civ Proc § 475.

“The court must, in every stage of an action, disregard any error, improper ruling, instruction, or defect, in the pleadings or proceedings which, in the opinion of said court, does not affect the substantial rights of the parties. No judgment, decision, or decree shall be reversed or affected by reason of any error, ruling, instruction, or defect, unless it shall appear from the record that such error, ruling, instruction, or defect was prejudicial, and also that by reason of such error, ruling, instruction, or defect, the said party complaining or appealing sustained and suffered substantial injury, and that a different result would have been probable if such error, ruling, instruction, or defect had not occurred or existed. There shall be no presumption that error is prejudicial, or that injury was done if error is shown.” Cal Code Civ Proc § 475.

The court notes that the first two pages of Plaintiffs’ opposition describe another case entirely that involves express indemnity and a toxic exposure resulting in a fall. It is disingenuous for Plaintiffs to argue that these defects, which are ostensibly drafting errors, are fatally defective and beyond cure, especially where Plaintiffs have not shown any substantial prejudice.

Plaintiffs also takes issue with the proof of service as service of the motion was made by way of a messenger, and the messenger does not show when service was made. The declarant, Andrea Dona, attests that on 3/15/18, she placed the motion in a sealed envelope and provided it to a messenger service for delivery. Given that 3/15/18 is the 75th calendar day before the hearing, which is the required time for personal service of a motion for summary adjudication under Cal Code Civil Procedure § 437c(a), it is reasonable to assume that the package was personally delivered by the messenger service on that same day.

Plaintiffs do not claim that the package was never delivered on 3/15/18, nor do Plaintiffs contend that the papers were untimely served under Cal Code Civil Procedure § 437c(a). Therefore, this purported “defect” in the proof of service did not result in any prejudice to the Plaintiffs. Notwithstanding the foregoing, Defendant submits the declaration of the messenger, who personally delivered the motion on 3/15/18.

Defendant’s objections to the deposition testimony of Richard Nalbandian, cited by Plaintiffs.

#19-20. SUSTAIN. Jason’s employment status, how he supports himself, or pays for money, food and entertainment is IRRELEVANT

#27. SUSTAIN. Irrelevant.

#28. SUSTAIN. Named insureds on the policy is irrelevant.

#30. SUSTAIN. Where Jason lives is irrelevant

Deposition testimony of Jason Nalbandian cited by Plaintiffs.

#19-23. SUSTAIN. Jason’s living arrangements and who pays for it is irrelevant.

#24-25. Overrule.

#26. Overrule. That Richard is the registered owner is relevant to liability. His knowledge of Jason’s medication is relevant to the alleged incapacity and knowing entrustment of the vehicle to Jason.

Objections to the Declaration of Leor Shabtai. SUSTAIN. Evidence of Plaintiff’s damages is irrelevant.

Deposition testimony of Leor Shabtai. SUSTAIN. Plaintiff did not submit this evidence

with the opposition.

DISCUSSION.

The parties do not dispute the following facts: The Second Amended Complaint alleges a claim for negligent entrustment against Defendant, Richard Nalbandian (“Richard”), arising out of an automobile accident that took place on 9/16/16. UF 1-3. Richard owned the vehicle involved in the accident, which was driven by Jason Nalbandian (“Jason”), who is Richard’s son. UF 4, 8.

Liability for negligent entrustment will be imposed on a motor vehicle owner, who knowingly entrusts his vehicle to an “incompetent or dangerous driver” with actual or constructive knowledge of his incompetence. Dodge Center v. Superior Court (1988) 199 Cal.App.3d 332, 338. It requires evidence that the motor vehicle owner knew or should have known of the driver’s “incapacitating condition.” Dodge at 338.

“(2) Vehicle Code section 14606, subdivision (a) in relevant part provides that no person shall “knowingly permit or authorize the driving of a motor vehicle, owned by him or under his control, upon the highways by any person unless the person is then licensed for the appropriate class of vehicle to be driven.” This statute (and its predecessors) make a motor vehicle owner who knowingly entrusts his vehicle to an unlicensed driver liable for a third party’s injuries caused by the driver’s negligence. (Owens v. Carmichael’s U-Drive Autos, Inc. (1931) 116 Cal.App. 348 [2 P.2d 580]; Hartford Accident & Indemnity Co. v. Abdullah (1979) 94 Cal.App.3d 81 [156 Cal.Rptr. 254].) The cause of action parallels that at common law for negligent entrustment, resting on a demonstration of knowing entrustment to an incompetent or dangerous driver with actual or constructive knowledge of his incompetence. (See Hartford Accident & Indemnity Co. v. Abdullah, supra; see generally Rest.2d Torts, § 390, P. 314; 4 Witkin, Summary of Cal. Law (8th ed. 1974) Torts § 650 pp. 2929-2931.)” Dodge Center v. Superior Court (1988) 199 Cal.App.3d 332, 338.

Plaintiffs’ case authority similarly holds that one who entrusts his motor vehicle to another whom he knows or “from the circumstances is charged with knowing, is incompetent or unfit to drive” is liable for injury inflicted by that driver. Lindstrom v. Hertz Corp. (2000) 81 Cal.App.4th 644, 648.

“It is generally recognized that 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 ….’ ” (Id. at p. 708.) “The cause of action parallels that at common law for negligent entrustment, resting on a demonstration of knowing entrustment to an incompetent or dangerous driver with actual or constructive knowledge of his incompetence.” Lindstrom v. Hertz Corp. (2000) 81 Cal.App.4th 644, 648.

Plaintiffs’ evidence is insufficient to controvert the issue that Defendant had no facts sufficient to conclude that Jason was unfit or incompetent to drive. Plaintiffs cite to a 2004 accident wherein Jason drove over a pipe and did not involve another person and a single rear-end accident in 2013. Plaintiff’s Additional Facts (PAF) 15-16.

Plaintiffs also cite to one traffic ticket for speeding, and one citation for failing to stop at a red light, all issued against Jason within the last five years. PAF 111-12.

Plaintiffs’ evidence does not persuasively infer that two moving violations and two accidents during 14 years of driving (PAF 13), with the single incident involving another car occurring three years before this incident, renders Jason “unfit or incompetent to drive.”

Plaintiffs also cite to the fact that Jason was taking Lexapro at the time of the accident, and this was known to Richard. PAF 25-26. Plaintiffs do not provide any evidence that the amount of Lexapro taken by Jason on the day of the accident rendered him unfit to drive, or that the drug otherwise affects one’s ability to drive. It is speculation to conclude otherwise. Speculation, conjecture, imagination or guess work does not create a conflict of evidence. Sinai Memorial Chapel v. Dudler (1991) 231 Cal.App.3d 190, 196-197,

Plaintiffs argue that Richard knew his son was taking medication and did not independently verify the safety of this drug while operating a car. However, “in the absence of knowledge of an incapacitating condition, there is no duty to inquire.” Dodge at 338.

Plaintiffs cite Jeld-Wen, Inc. v. Superior Court (2005) 131 Cal.App.4th 853 for the proposition that evidence of other accidents is admissible to show knowledge of the driver’s unfitness or incompetence to drive. The issue at bar in Jeld-Wen was whether the plaintiff could pursue a theory of negligent entrustment against the employer of the negligent driver, where the employer admitted to vicarious liability. It did not address the sufficiency or adequacy of evidence. Jeld-Wen, Inc. v. Superior Court (2005) 131 Cal.App.4th 853, 862.

Plaintiffs cite another case that is factually distinguishable since there the employee, in one month’s time, was involved in three separate incidents involving a dizzy spell where the car he was driving ran over a curb, a second occasion where the employee fell, and a third occasion where he struck his head on a car door. Syah v. Johnson (1966) 247 Cal.App.2d 534, 544–545.

These facts were sufficient to raise a triable issue that in a small span of time, the employee suffered from some condition that affected his driving, and this was known to his employer.

Plaintiffs argue that three prior accidents known to the owner will support liability for negligent entrustment. Plaintiffs rely on a case that is factually distinguishable. In Allen v. Toledo (1980) 109 Cal.App.3d 415, the case concerned three earlier accidents, two occurring eight months before the collision at issue, and one of them 19 days before, where the driver collided with another vehicle and a house. Allen v. Toledo (1980) 109 Cal.App.3d 415, 422.

Here, Plaintiffs cite to only one prior accident involving Jason and another vehicle that occurred three years before this accident, which occurred on 9/16/16. UF 3.

Plaintiffs have not proffered any evidence to dispute Richard’s actual knowledge of Jason’s driving history, education, and experience or the lack of any evidence to suggest that Jason was unfit and/or incompetent to drive. See Facts 1-42. In response to these facts, Plaintiffs object to the admissibility of Richard Nalbandian’s declaration, but offer no evidence to dispute the facts.

Even if the court does not consider Richard’s statement that he was told of a 2004 and 2013 incident involving Jason and two traffic tickets issued to Jason (¶¶ 18-20), the remaining 28 paragraphs are sufficient to establish that Richard did not have knowledge that Jason was incompetent or unfit to drive, which is sufficient to shift the burden of proof to Plaintiffs to proffer facts to controvert the issue. Plaintiffs’ Additional Facts 11 – 16, are insufficient to meet that shifting burden. Cal Code Civil Procedure § 437c(p)(2).

Moving party is ordered to give notice.