2016-00193643-CU-PA

Sharon Rose vs. Joseph Allen Overton

Nature of Proceeding: Motion for Summary Judgment

Filed By: Coleman, Michael

The Motion for Summary Judgment, filed by Defendants Jeanine Corbin, Roger Hartley and WSH/JAH Family Preservation Trust, is DENIED.

OBJECTIONS

Plaintiff’s Objection Nos. 1, 2, 5, 8, 9 and 11 are overruled. Plaintiff’s Objection Nos.

3, 4, 6, 7 and 10 are sustained.

Plaintiff’s Objection to the evidence filed by Defendants in conjunction with Defendant’s Reply – namely, Declarations of Cynthia Brackett, Don Ames, Susan Thomas and Victoria Hansen (Exhs. L-O of Defendant’s Supplemental Compendium of Exhibits); and, additional testimony of Joseph Overton (id., Exh. K) – is sustained. “No such evidence is generally allowed” as part of a Reply supporting a motion for summary judgment because presenting new evidence on reply prevents the opposing party from addressing the evidence in question. (See Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252; San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 316.) There is a due process dimension which must be considered.

FACTS

This action arises out of a vehicle-pedestrian accident. The question before the Court on the instant motion involves whether the driver of the vehicle, Defendant Joseph Overton, was an employee of moving Defendants such that liability for Overton’s operation of the vehicle can be attributed to moving Defendants under principles of respondeat superior or vicarious liability.

The Court finds the following facts to be supported by evidence; unless otherwise noted, the Court concludes these facts are undisputed.

William Hartley purchased property at 5020 Winding Way in Sacramento in 1959. Mr. Hartley had two children, Roger and Jeanine. Mr. Hartley generally worked the land himself and he and Roger renovated the house on the property and built two addition rental homes there, currently addressed as 5026 and 5030 Winding Way. Aside from the main house, the property has three rental units and a separate apartment attached to 5020 Winding Way. Defendant Overton has been a tenant in an apartment at 5020 Winding Way for several years.

Mr. Hartley created a trust, the WSH/JAH Family Preservation Trust, which held title to the property on Winding Way. Defendants aver that after Mr. Hartley died, his children Roger Hartley and Jeanine Hartley Corbin became the trustees of the trust; Roger Hartley was the trustee, and Jeanine Corbin was a contingent trustee. Ms. Corbin eventually took on the responsibility of managing the Winding Way property for the Trust, including collecting rent payments from Overton and other tenants, addressing tenant concerns, and maintaining the property.

It is undisputed that Mr. William Hartley was very independent and did not hire anyone to work on the property or undertake maintenance on the property unless it was

absolutely necessary. Mr. Overton performed work on the Winding Way properties as well as on other homes in the area. Ms. Corbin paid Overton for his work on the Property on behalf of the Trust. Neither moving Defendants, nor Overton himself, considered Overton to be an employee of Defendants or the Trust, nor was he the designated “maintenance man.” According to Defendants, Overton was hired to do maintenance or repair work on the property approximately one or two times each month, but there “were also many months where Overton was never hired to perform any work” (UMF 20); Plaintiff points out that the Trust paid Overton every month during 2014 and 2015, and January through April and June of 2016. (See UMF 20 and Plaintiff Response thereto.) Defendants also aver that Overton “always used his own equipment and tools for work.” (UMF 21.) Defendants contend that Ms. Corbin always hired third-parties for specialized or work on the property that generally requires a license. Plaintiff points out that Overton completed tasks such as flooring, painting, and heating [HVAC] – all of which generally would require a contractor’s license. (See UMF 23 and Plaintiff response thereto.)

On March 9, 2016, Overton decided to go to Home Depot in his own vehicle to buy a water testing kit for his apartment following the breaking national news story of water quality problems in Flint, Michigan. Defendants state that no tenant asked Ms. Corbin to get the water on the property tested, but Plaintiff presents evidence that tenant Stephen Jaeger asked Corbin to confirm that the water quality in his unit was safe for drinking. (UMF No. 38 and Plaintiff Response thereto.) Defendants aver that Overton did not intend to use the water tester to test the water elsewhere on the property, though Overton testified at deposition that he told Jeanine Hartley Corbin that he intended to go buy a water tester “for the tenants’ sake” and that she agreed. (UMFs 30 and 43, and Pl. response thereto.)

On his way to Home Depot, Overton struck Plaintiff Sharon Rose when she walked across Winding Way. (UMF 31.) Defendants contend that Plaintiff crossed at a location where there was no intersection or crosswalk. (Id.) Plaintiff points to evidence that Plaintiff was struck at the intersection of Winding Way and Cavallo Real Way. (Pl. Resp. to UMF 31 and Def. Exh. F at 12:6-7.) Defendants respond that whether here was an intersection is “not a material fact to this issue.” (Def. Resp. to Pl. Opp. to Def. Separate Statement at UMF No. 31.)

ALLEGATIONS OF THE OPERATIVE COMPLAINT

Plaintiff filed her Complaint on April 26, 2016. The Complaint alleges a single cause of action for negligence against all Defendants. Overton was sued as the driver of the vehicle. Plaintiff later filed Doe Amendments to the Complaint, naming the moving Defendants herein and the Trust as Parties under a theory of respondeat superior.

SUMMARY JUDGMENT STANDARD

The Court must grant a motion for summary judgment if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (CCP §437c(c); Mann v. Cracchiolo (1985) 38 Cal.3d 18, 35.) The Court must decide if a triable issue of fact exists; if none does, and the sole remaining issue is one of law, the Court has a duty to determine it. (Pittelman v. Pearce (1992) 6 Cal.App.4th 1436, 1441; see also Seibert Sec. Servs., Inc. v. Superior Court (1993) 18 Cal.App.4th 394, 404.) In so doing, the court must consider the evidence and inferences reasonably drawn from the evidences in the light most

favorable to the party opposing the motion. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Summary judgment is properly granted only if the moving party’s evidence establishes that there is no issue of material fact to be tried. (Lipson v. Superior Court (1982) 31 Cad 362, 374; Huynh v. Ingersoll-Rand (1993) 16 Cal. App. 4th 825,830.) The Court may not grant summary judgment when any material factual issue is disputed. (O’Riordan v. Federal Kemper Life Assur. (2005) 36 Cal.4th 281, 289.)

ANALYSIS

Here, as support for their motion for summary judgment, Defendants offer 43 material facts that they claim are undisputed. While Defendants have identified certain “issues” in their Notice of Motion and Separate Statement, their papers make clear that they are moving for summary judgment only and therefore the Court construes the motion as one for summary judgment rather than summary adjudication. (See Homestead Savings v. Superior Court (1986) 179 Cal.App.3d 494, 498 [“If a party desires adjudication of particular issues or sub issues, that party must make its intentions clear in the motion.”].) In addition, even if the Court could somehow construe the motion as one for summary adjudication of issues, Defendants rely on the same 43 materials facts in support of each of the issues identified in the motion. For these reasons, if there is a triable issue of material fact with respect to any of the proffered UMFs, summary judgment must be denied. (See Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252.)

While most of Defendants’ proffered facts are undisputed, the Court in its review, has identified disputed issues of fact with regard to UMF Nos. 20, 23, 30, 31, 38 and 43. The Court notes that, in certain of these instances in which it is clear that a factual dispute exists, Defendants attempt to explain away each problem in reply by simply arguing that the fact is not truly material to the Court’s evaluation of the motion. Such argument does not save the motion from being denied, as it is Defendants who identified the fact as being material in the first instance. As noted in Nazir, supra: a party moving for summary judgment should “[i]nclude only those facts which are truly material to the claims or defenses involved because the separate statement effectively concedes the materiality of whatever facts are included. Thus, if a triable issue is raised as to any of the facts in your separate statement, the motion must be denied [.]” (178 Cal.App.4th at 252 [quoting Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2009) ¶ 10:95.1, p. 10-35 (rev. # 1, 2009)].) Since Defendants have assigned each of these identified disputed facts to the motion as a whole as well as to each and every discrete issue upon which they have purported to move for summary judgment, the Court cannot grant the instant motion in any respect. (See id.) The Court is aware that the current section of the Practice Guide cited in Nazir (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2009) ¶ 10:95.1, p. 10-39 (rev. # 1, 2013)) changes “must be denied” to “may be denied.” This modification does not change the tenor of the motion or the Court’s ruling. It remains good advice that moving parties should include only those facts which are truly material to the claims or defenses involved because the separate statement effectively concedes the materiality of whatever facts are included.

Even if the Court were to conclude that all of the identified factual disputes are immaterial, the motion nevertheless would still be denied. The moving and opposing papers make clear that there are disputed issues of fact pertaining to agency. These disputes include how often Overton was paid for his work (i.e., whether it was any sort

of a “retainer”), the nature of his work for the Trust and the Property, whether Overton was going to Home Depot to obtain a water testing kit for the benefit of all tenants rather than merely himself, and whether Jeanine Corbin expressly or impliedly assented to Overton undertaking that errand for the benefit of the tenants. All of these are factual questions that pertain directly to the relationship between Overton and the Trust and thus whether liability may be imposed against the Trust for Overton’s collision with Plaintiff. As the California Supreme Court has explained: “[A]n employer is liable for risks ‘arising out of the employment.’ A risk arises out of the employment when ‘in the context of the particular enterprise an employee’s conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer’s business. In other words, where the question is one of vicarious liability, the inquiry should be whether the risk was one “that may fairly be regarded as typical of or broadly incidental” to the enterprise undertaken by the employer.’ Accordingly, the employer’s liability extends beyond his actual or possible control of the employee to include risks inherent in or created by the enterprise.” ( Perez v. Van Groningen & Sons, Inc. (1986) 41 Cal.3d 962, 968.)

Accordingly, based on the foregoing, Defendants’ motion for summary judgment is DENIED.