2016-00189966-CU-PA

Alicia Long-James vs. Luis Navarro

Nature of Proceeding: Motion for Summary Judgment

Filed By: Wiesner, Fred G.

*** If oral argument is requested, the parties are directed to notify the clerk and opposing counsel at the time of the request which of the Issues identified in the Notice of Motion and which of the Undisputed Material Facts offered by the moving defendant and/or the Additional Material Facts offered by plaintiff will be addressed at the hearing and the parties should be prepared to point to specific evidence which is claimed to show the existence or non-existence of a triable issue of material fact. ***

Defendants Wireless Store, Inc. (“WSI”), Rashed Rashed (“Rashed”), Yasir Rashed (“Yasir”), and Fadi Rashed’s (“Fadi”) motion for summary judgment is ruled upon as follows.

Overview

This is an action for negligence-wrongful death. Plaintiff Alicia Long James (“Plaintiff”) is decedent Jason James (“Jason”) wife. Plaintiff is suing individually and as successor -in-interest to James’ estate. Plaintiff alleges that on February 4, 2014, James was a passenger in a 2008 Ford Superduty truck operated by Luis Navarro (“Navarro”). Plaintiff alleges that Defendants owned and/or operated the truck. The truck rolled over causing James’ death.

Plaintiff dismissed Navarro on 2/27/2018. Co-defendants Prestige Motors, LLC dba Diamond Auto, Ali Sharif and Moe Abboushi settled with Plaintiff and their motion for good faith settlement was granted on 11/3/2017.

Defendants move for summary judgment on the grounds that “Plaintiff cannot establish a triable issue of material fact on the essential element of duty in Plaintiff’s negligence cause of action because Defendants delegated the duty to inspect, warn, and repair/replace the tires to the decedent Jason James. Moreover, as to Plaintiff’s claim for negligent entrustment, moving defendants never even knew the driver, Luis Navarro, would be on the trip and did not explicitly or impliedly give permission to Luis Navarro to operate the vehicle.” (Motion, 2:3-8.)

Analysis

The following facts are undisputed. Rashed first met Jason in a car audio shop because Rashed was interested in installing an audio system in an old car he owned. (UMF 10.) Approximately 6-8 months thereafter, Rashed started seeing Jason at his

cousin, Moe Abboushi’s, car shop and assumed Jason was working there. (UMF 11.) In August 2013, Rashed purchased the truck from Benton Harbor, Michigan for the purposes of serving the needs of WSI. (UMF 13.) Sometime between December 2013 and February 2014 (approximately 1 to 11/2 months prior to the accident), Jason asked Rashed to borrow the truck to pick up a custom trailer he ordered from the mid-west. Rashed agreed to let Jason borrow the truck. (UMF 14.) On February 2, 2014, Rashed and Fadi met Jason and handed over the truck. (UMF 15.) When the accident occurred, Jason was a passenger in the truck which Navarro was driving. (UMF 17.) Plaintiff claims that the condition of the tires on the vehicle is believed to have contributed to the collision. (UMF 2.) The tires on the truck were not replaced from the time of purchase in August 2013 to the date of the incident. (UMF 18.)

Defendants advance that they delegated the duty to inspect or warn of the tire condition to Jason. Plaintiff opposes, arguing that as owners of the vehicle, Defendants have a nondelegable duty to ensure that the vehicle is safe. The Court agrees with Plaintiff.

“An owner or operator of a motor vehicle has both a statutory and common law duty to use reasonable and ordinary care, by properly maintaining the motor vehicle.” ( Yamaha Motor Corp. v. Paseman (1990) 219 Cal.App.3d 958, 965.) “An owner who is aware or reasonably should be aware his or her motor vehicle is defective or in need of repair is liable for negligence upon permitting the defective vehicle to be driven by another person.” (Id.)

“A nondelegable duty operates . . . to assure that when a negligently caused harm occurs, the injured party will be compensated by the person whose activity caused the harm and who may therefore properly be held liable for the negligence of his agent, whether his agent was an employee or an independent contractor. (Maloney v. Rath (1968) 69 Cal. 2d 442, 447 [finding that a car owner’s duty to maintain her brakes within the provisions of the Vehicle Code is nondelegable, despite her mechanic negligently overhauling and inspecting the brakes.)

“The statutory provisions regulating the maintenance and equipment of automobiles constitute express legislative recognition of the fact that improperly maintained motor vehicles threaten ‘a grave risk of serious bodily harm or death.’ The responsibility for minimizing that risk or compensating for the failure to do so properly rests with the person who owns and operates the vehicle. He is the party primarily to be benefited by its use; he selects the contractor and is free to insist upon one who is financially responsible and to demand indemnity from him; the cost of his liability insurance that distributes the risk is properly attributable to his activities; and the discharge of the duty to exercise reasonable care in the maintenance of his vehicle is of the utmost importance to the public.” (Maloney v. Rath, supra, 69 Cal. 2d 442, 448.)

The non-delegable duty has been extended to different parts of the vehicle: repairing and inspecting the brakes (Clark v. Dziabas (1968) 69 Cal. 2d 449, 451) and the

transmission (Kaley v. Catalina Yachts (1986) 187 Cal. App. 3d 1187, 1201.) Vehicle Code §27450 to §27502 regulates the thickness and condition of which the tires should be maintained.

The case upon which Defendants rely, Padilla v. Pomona Coll. (2008) 166 Cal.App.4th 611 is inapposite. Padilla was a personal injury/premises liability action arising from a workplace injury. The court focused on the Privette v. Superior Court (1993) 5 Cal.4th 689 line of cases which hold that an employee of an independent contractor who is injured on the job may successfully sue the hirer of that contractor for dangerous condition on the property only where the injured employee can show: (1) the hirer retained control over some relevant aspect of the work being performed and (2) the hirer’s negligent exercise of such control affirmatively contributes to the injury. ( Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 664, 669-672.) The court also reviewed certain Cal-OSHA regulations and determined that those regulations did not create a nondelegable duty, as the plaintiff had suggested. The question of a landowner’s duty whether delegable or not, is not at issue here. Nor are provisions of Cal-OSHA regulations.

The Court concludes that Defendants fails to show, as a matter of law, that they could delegate the duty to inspect or warn of the tire condition to Jason.

Because Defendants move only for summary judgment and not summary adjudication, the Court need not address Defendants’ argument regarding claim of negligent entrustment.

The motion for summary judgment is DENIED.

The Court declines to rule on Defendants’ objections to evidence as the objected to evidence was not material to the disposition of the motion.