Case Number: BC496195    Hearing Date: August 01, 2014    Dept: 91

Defendants’ motion for summary judgment, filed on 3/7/14, is GRANTED as to Defendant, Samoukhian Motlag. GRANT summary judgment as to Defendant Motlag. The undisputed facts establish that Defendant Motlag did not owe Plaintiff a duty for which he is individually liable.

Plaintiff cites Motlag’s testimony that all rental trucks belonged to Budget. Fact 6. The parties’ dispute whether the trucks were owned and operated by Budget or Best Value, and whether Motlag worked for Budget or Best Value, but Plaintiff does not dispute Motlag’s status as an employee. Plaintiff has not established how an employee is personally liable for a defective truck owned and maintained by another party.

Fact 6 is not disputed to the extent that it is established that Mr. Motlag works for Best Value Trucks. Plaintiff cites Motlag’s testimony which does not support that he worked for both Budget and Best Value. Regardless of who he worked for, there is no basis for imposing individual liability for Plaintiff’s injuries as an employee.

The motion is DENIED as against Defendant, Budget Truck Rental, LLC as the material facts are in dispute.

Whether Budget owned and/or had the duty to maintain the truck remains in dispute. Facts 4 and 5, relevant to the owner of the truck remains disputed. See evidence cited therein.

Both parties do not dispute that the rental agreement had the Budget logo on it. Defendant states Plaintiff only vaguely remembered it, but her testimony actually says, “I mean, it just said Budget-something Truck. But it did say ‘Budget.’ That I’m 100 percent sure.” Plaintiff’s Ex. 5, 31:6-17. Fact 11 is undisputed that the rental agreement said “Budget.” Whether Plaintiff’s daughter’s recollection was vague or absolute is immaterial.

Whether or not Budget rents unmarked vehicles remains disputed. See Disputed Facts 27 and 28, and evidence cited therein.

Budget claims there is no record to prove a rental occurred. Fact 31 is undisputed in that regard. However, this does not establish that there is no evidence that a rental occurred. Where summary judgment is based on absence of evidence as Defendants argue here, Defendants must make an affirmative showing by way of direct or circumstantial evidence that the plaintiff not only does not have but cannot reasonably expect to obtain a prima facie case. Hagen v. Hickenbottom, 41 Cal. App. 4th 168, 186 (Cal. App. 6th Dist. 1995). Plaintiffs still have their own testimony of the rental. It is further undisputed at Fact 10 that Motlag provided Plaintiff’s daughter with a one-page document they believed was the rental agreement, and the paper had the Budget Logo on it. Fact 10 and 11 are undisputed.

Defendant has not affirmatively established that there is no evidence of a breach of duty. Defendant argues there is “zero supporting” evidence of deficits in maintenance. Defendant has to establish this with affirmative evidence under Hagen, and cannot simply argue that there is no evidence of negligent maintenance. It is undisputed that when the lift gate was demonstrated, it stopped mid-movement. Fact 16 is undisputed. Plaintiff can provide some information about the style of the truck and that it had a lift-gate. Fact 32 is disputed.

Whether the lift-gate was defective or malfunctioning is in dispute. Plaintiff and his daughter testified that the gate was not working properly. Facts 35 and 36 are disputed. It is undisputed that Budget has no record reflecting a lease rental with Maria or Plaintiff. Fact 24. Again the lack of a rental agreement does not establish that Plaintiffs did not in fact rent the truck.

It is undisputed that Budget did not receive any payment for the alleged lease and/or rental. UF 26 is undisputed. This does not establish that Plaintiff did not rent a Budget truck given the other facts that remain in dispute.

Defendant has not persuasively argued or proffered undisputed evidence that its conduct was not a substantial factor in causing Plaintiff’s injuries where Plaintiff alleges that Defendant failed to fix the ramp before renting the truck to Plaintiff, causing injury. Complaint ¶ 20.

Defendants’ objections to evidence 1-3 are SUSTAINED as hearsay, lacks foundation and lacks authentication. Objection #4 is OVERRULED.