2012-00125610-CU-PA

Shawn Burke vs. Adam Anderson

Nature of Proceeding: Motion for Summary Judgment and/or Adjudication

Filed By: Lewis, Luther R.

Defendant EZ Auto Solutions, Inc.’s Motion for Summary Judgment, or in the
Alternative for Summary Adjudication of Issues is unopposed and is GRANTED.

Plaintiff’s First Amended Complaint alleges negligence and negligent entrustment
against defendants for personal injuries arising from a three vehicle motor vehicle
accident on July 12, 2010.

Material Facts

Plaintiff is the owner of Accurate Collision Center, an auto body repair center. (UMF 3,
4.) Plaintiff was hired by defendant EZ Auto Solutions, Inc. to paint a Kia Optima and a
Mercury Sable. (UMF 6.)

The accident occurred while Plaintiff was en route from Accurate Collision Center to
EZ Auto Solutions’ facility to deliver the newly-painted Kia Optima and the Mercury
Sable. (UMF 7.) Prior to the accident, Plaintiff had delivered other EZ Auto vehicles
back to the EZ Auto Solutions facility after doing work on them and had not had any accidents. (UMF 31, 32.)

The Mercury Sable, driven by Jacob Davis, was the lead car. (UMF 9, 11.) Plaintiff
asked Jacob Davis to drive the Mercury Sable to the EZ Auto Solutions’ facility. (UMF
30.) The Kia Optima, driven by Plaintiff, was following behind the Mercury Sable.
(UMF 8, 12.) As the Mercury Sable proceeded onto the freeway, Plaintiff observed the
vehicle decelerate from approximately 25 miles an hour down to about 10 miles an
hour. (UMF 17.) A Toyota Camry, driven by Defendant Anderson was following
plaintiff’s vehicle. The Camry was traveling at approximately 55 to 60 miles per hour.
(UMF 10, 14.) The Toyota Camry rear ended the Kia Optima Plaintiff was driving.
(UMF 8, 13.) The Kia Optima rear ended the Mercury Sable. (UMF 15.) Plaintiff
admitted that he did not have any difficulties with the Kia Optima he was driving. (UMF
16.)

Negligence

For negligence, plaintiff must prove the existence of a duty, a breach of that duty, and
that the breach was the legal cause of injury sustained. United States Liab. Ins. Co. v.
Haidinger-Hayes, Inc. (1970) 1 Cal.3d 586, 594.

Defendant asserts that Plaintiff cannot produce admissible evidence that there was a
breach of any duty. Specifically, Plaintiff cannot show that there was a defective
condition in any car owned by EZ Auto which was involved in the accident.

At the time of the accident, Plaintiff was delivering the Kia Optima and the Mercury
Sable back to EZ Auto after painting them. (UMF 6, 7.) Plaintiff admits that he did not
have any difficulties with the Kia Optima he was driving. (UMF 16.) Thus, with respect
to the Kia Optima, Plaintiff admits that there was no defective condition that would
establish a breach of the duty to maintain the vehicle.

With respect to the Mercury Sable, plaintiff alleges that the defective condition was a
transmission problem. Plaintiff’s theory as to a defective transmission rests primarily
on inadmissible speculation and hearsay. The remaining admissible evidence fails to
prove that there was a transmission problem.

Plaintiff may not prove his case or oppose this summary judgment by relying on
inadmissible speculation and hearsay. (See Evid. Code, §§1200, 701; Code Civ. Proc.,
§ 437c, subd. (d).) yet, much of Plaintiffs case is based on such inadmissible evidence.

At his deposition, Plaintiff recounted the speculative and inadmissible hearsay
statement of Jacob Davis “There’s something wrong with the transmission. The car
won’t go.” (UMF 20.) “As the proponent of the statement, [Plaintiff has] the burden of
establishing its admissibility.” (People v. Miron (1989) 210 Cal.App.3d 580, 583 [citing
Evid. Code, § 405].)” Davis’ deposition testimony reflects that he didn’t know what
caused the Mercury Sable to slow. His speculative guess as to the transmission being
the cause is inadmissible. (Evid. Code, § 701.) Additionally, there is no evidence to
establish Davis is an expert.

At his deposition, Plaintiff also recounted the inadmissible hearsay statement of Chris
Fontaine that the transmission in the Mercury Sable was replaced after the accident.
(UMF 24.) There is no evidence that Fontaine, a former employee of EZ Auto, was an
authorized speaker for EZ Auto. Furthermore, there are no records which show maintenance or transmission work performed on the Mercury Sable and the car has
been sold. (SUF 25, 26, 27.)

Thus, Plaintiff is unable to prove that there was a faulty transmission issue with the
Mercury Sable. The undisputed facts establish that Plaintiff lacks personal knowledge
and cannot be designated as an expert in transmissions. Plaintiff admits that he has
never worked on transmissions; his company does not repair transmissions; and he
does not know what kind of transmission problem would cause the Mercury Sable’s
deceleration. (UMF 3, 5, 22, 23.)

Plaintiff’s only admissible evidence – observing the Mercury decelerate as it
proceeded onto the freeway – is insufficient to establish that there was a transmission
or mechanical problem. As the Mercury was sold after the accident, no tests can be
performed to determine whether there was a defective condition that caused the
accident. As plaintiff cannot establish a breach of duty by defendant EZ Auto, the
motion should be granted.

Negligent Entrustment

The owner of an automobile is under no duty to persons who may be injured by its use
to keep it out of the hands of a third person in the absence of facts putting the owner
on notice that the third person is incompetent to handle it. Richards v.
Stanley (1954) 43 Cal.2d 60, 63.

Here, Plaintiff cannot prove that EZ Auto permitted Davis to drive the Mercury Sable,
as the undisputed evidence is that it was Plaintiff, not EZ Auto, who asked Davis to
drive the Mercury Sable to EZ Auto Solutions’ facility. (UMF 30.)

Moving party has met its initial burden of proof on each of the causes of action. As
plaintiff has failed to submit any opposition, no disputed issues of material fact remain
for trial.

The prevailing party is directed to prepare a formal order complying with C.C.P. §437c
(g) and C.R.C. Rule 3.1312.