Filed 6/29/20 Nader’s Auto Sales v. Superior Court CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

NADER’S AUTO SALES, INC. et al.,

Petitioners,

v.

THE SUPERIOR COURT OF

SAN BERNARDINO COUNTY,

Respondent;

LYNDON GROVE et al.,

Real Parties in Interest.

E073556

(Super.Ct.No. CIVDS1609728)

OPINION

ORIGINAL PROCEEDINGS; petition for writ of mandate. Thomas S. Garza, Judge. Dismissed.

Prindle, Goetz, Barnes & Reinholtz, Jack R. Reinholtz and Gopal S. Patel, for Petitioners.

Law Offices of Robert H. Pourvali and Robert H. Pourvali; Law Offices of William D. Shapiro and William D. Shapiro for Real Parties in Interest Lyndon Grove and Susan Grove.

No appearance by Respondent.

I.

INTRODUCTION

Petitioner, Nader’s Auto Shop, Inc. (Nader’s), sold Caroline Aitui a vehicle knowing that she did not have a valid driver’s license. Ten days later, Aitui got into an accident while driving the vehicle, which injured real party in interest Lyndon Grove. Mr. Grove and his wife, real party in interest Susan Grove, sued Nader’s for negligence. Nader’s moved for summary judgment on the grounds that Aitui was not its agent and it owed no duty to the Groves because it did not own the vehicle at the time of the accident. After the trial court denied the motion, Nader’s filed a petition for a writ of mandate and/or prohibition or other appropriate relief in this court. Nader’s contends the trial court erred in denying its summary judgment motion because it is not liable as a matter of law for Grove’s injuries which were caused by Aitui.

After we issued a tentative opinion, but before we held oral argument, the parties informed us that they had reached a settlement. Nader’s then filed an unopposed motion to dismiss the petition. We exercise our discretion to dismiss the petition without reaching the merits.

II.

FACTUAL AND PROCEDURAL BACKGROUND

On September 6, 2015, Aitui went to Nader’s and expressed interest in purchasing a car. She decided on purchasing a Ford 500 (the Ford). The following day, September 7, 2015, Aitui returned to Nader’s to complete the paperwork to purchase the Ford. During the process, she told Sales Manager Fatem Toma that she did not have a valid driver’s license.

Toma helped Aitui procure financing with Top Finance, Inc. for the remainder of the purchase price. Toma also helped Aitui obtain insurance for the vehicle. Aitui and Toma executed a Department of Motor Vehicles (DMV) Vehicle/Vessel Transfer and Reassignment form, and Aitui executed the purchase contract. Aitui then drove the Ford off the lot. Nader’s reported the sale to the DMV later that day.

Ten days later, on September 17, 2015, Aitui got into an accident with Mr. Grove while driving the Ford, which caused him serious injuries. The Groves sued Nader’s for (1) general negligence and (2) negligent entrustment, and Mrs. Grove sued Nader’s for (3) loss of consortium. The thrust of their complaint was that Nader’s was negligent in selling Aitui the Ford knowing she was an unlicensed driver.

Nader’s moved for summary judgment on the ground it owed no duty to the Groves because it did not own the Ford at the time of the accident and thus it could not have been negligent as a matter of law. Nader’s argued it was not the owner of the Ford because it complied with all DMV requirements, including reporting the sale to the DMV. Finally, Nader’s argued Mrs. Grove’s loss of consortium claim failed because it was contingent on Mr. Grove’s claims, which likewise failed.

In opposing the summary judgment motion, the Groves argued Nader’s was liable for Aitui’s negligence because it had control over the Ford and knowingly let her drive the vehicle without a driver’s license in violation of Vehicle Code section 14606, subdivision (a). The Groves argued whether Nader’s was the owner of the Ford was “irrelevant” because the liability of Nader’s was “based upon Nader’s being ‘in control’ of the Ford” under section 14606, subdivision (a). The Groves further argued Nader’s also was liable for Aitui’s negligence because it negligently entrusted her to drive the Ford, knew that she was an unlicensed driver, and had “a duty to inquire if she could drive before letting her drive off the lot.” Finally, the Groves asserted Nader’s negligently supervised its managers and employees by authorizing them to sell vehicles to unlicensed drivers, including Aitui.

The trial court denied the motion. The trial court found a triable issue of material fact existed as to whether Aitui or Nader’s owned the Ford at the time of the accident due to the 10-day period between when Aitui took possession of the vehicle and when the accident occurred. In the trial court’s view, there was a disputed issue of fact “as to whether or not that [10]-day time gap cuts off liability.”

Nader’s timely filed a writ petition with this court, requesting that this court order the trial court to vacate its order denying Nader’s motion for summary judgment and directing the trial court to grant the motion. Nader’s argued the trial court erred because (1) Nader’s did not owe any duty of care to the Groves; (2) the evidence established Aitui owned the Ford at the time of the accident; and (3) Nader’s did not negligently entrust Aitui with the vehicle because there was no evidence she was incompetent to drive it.

We ordered the parties to show cause why Nader’s requested relief should not be granted. Respondent, the Superior Court of San Bernardino County, did not respond to our order. In their return to the petition, the Groves argue Nader’s was negligent for not inquiring into Aitui’s ability to drive after learning she did not have a license. The Groves further assert the trial court correctly determined an issue of fact remains as to who owned the Ford at the time of the accident. The Groves also contend that, even if Aitui owned the Ford when the accident occurred, Nader’s remains liable for their injuries because Nader’s negligently entrusted Aitui with the vehicle. Finally, the Groves maintain Nader’s negligently supervised its employees, who allowed Aitui to purchase the Ford without a license.

III.

REQUEST FOR DISMISSAL

An appellant may not dismiss an appeal as a matter of right. (Huschke v. Slater (2008) 168 Cal.App.4th 1153, 1160 [imposing $6,000 sanctions on attorney for unreasonable delay in notifying appellate court that parties had settled and dismissed the underlying case].) Rather, pursuant to California Rules of Court, rule 8.244(c)(2), “[o]n receipt of a request or stipulation to dismiss, the court may dismiss the appeal and direct immediate issuance of the remittitur.” (Italics added.) Thus, dismissal is discretionary. Here, because the parties have settled, we grant petitioners’ unopposed request to dismiss the petition.

IV.

DISPOSITION

The petition is dismissed. Each side shall bear their own costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON

Acting P. J.

We concur:

FIELDS

J.

MENETREZ

J.