2017-00218719-CU-PA

Francisco Barrientos vs. Enrique Oregel

Nature of Proceeding: Motion for Summary Judgment

Filed By: Gonzalez, Jose R.

Defendant Aida Rivera’s unopposed motion for summary judgment is GRANTED.

Plaintiff Francisco Barrientos filed his complaint on September 7, 2017, naming Enrique Oregel as defendant and asserting two causes of action: (1) motor vehicle, and (2) general negligence arising from an automobile versus semi-tractor trailer. The litigation arose from an accident that occurred on September 8, 2015. (UMF 1.) There were two individuals involved in the accident: Plaintiff and Defendant Oregel. (UMF 2.)

Defendant Rivera, the moving party, was added as a defendant by Doe Amendment on October 19, 2017. (UMF 3.) It is undisputed that Defendant Rivera was not involved in the accident giving rise to this action. (UMF 4.) Defendant Rivera’s client is Defendant Oregel; Defendant Rivera is not the insurance agent for Plaintiff. (UMF 5.)

Defendant Rivera moves for summary judgment on the basis that he was not involved in the subject accident and therefore the motor vehicle cause of action fails, and Defendant Rivera owes no legal duty to Plaintiff and therefore the negligence cause of action fails.

Legal Standard

The Court must grant a motion for summary judgment if all the papers submitted reveal there is no triable issue as to any material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc. § 437c(c); Mann v. Cracchiolo (1985) 38 Cal.3d 18, 35.) The court must determine if a triable issue of fact exists; if none does, and the sole remaining issue is one of law, the Court must determine it. ( Pittelman v. Pearce (1992) 6 Cal.App.4th 1436, 1441; also also Seibert Sec. Servs., Inc. v. Superior Court (1993) 18 Cal.App.4th 394, 404.) 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 Cal.3d 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 in dispute. If the evidence accompanying the summary judgment motion is not sufficient, the moving party cannot rely on the unsupported allegations in his or her pleadings to prove their case. (Lipson, supra, 31 Cal.3d at 374.)

In evaluating a motion for summary judgment or summary adjudication, the Court engages in a three-step process. First, the Court identifies the issues as framed by the pleadings. The pleadings define the scope of the issues. (FPI Dev. Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381-382.) Because a motion for summary judgment or summary adjudication is limited to the issues raised by the pleadings ( Lewis v. Chevron (2004) 119 Cal.App.4th 690, 694), all evidence submitted in support of or in opposition to the motion must be addressed to the claims and defenses raised in the pleadings. The Court does not consider an unpleaded issue in ruling on a motion for summary judgment or summary adjudication. (Roth v. Rhodes (1994) 25 Cal.App.4th 530, 541.)

Next, the Court must determine whether the moving party has met its burden. A defendant moving for summary judgment or summary adjudication bears the burden of persuasion that one or more elements of the plaintiff’s cause of action cannot be established, or that there is a complete defense to the cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, quoting Civ. Proc. Code § 437c(p)

(2).) A defendant is not required to conclusively negate one or more elements of the plaintiff’s cause of action. (Saelzler v. Advance Group 400 (2001) 25 Cal.4th 763, 780-781). Rather, to meet its burden, the defendant is only required to show that the plaintiff cannot prove an element of its cause of action, i.e., that the plaintiff does not possess and cannot reasonably obtain evidence necessary to show this element. ( Aguilar, supra, 25 Cal.4th at 853-855.)

Once the moving party has met its burden, the burden shifts to the opposing party to show that a material factual issue exists as to the cause of action alleged or a defense to it. (Civ. Proc. Code § 437c(p); see generally Bush v. Parents Without Partners (1993) 17 Cal.App.4th 322, 326-327.) In ruling on the motion, the Court must consider the evidence and inferences reasonably drawn from the evidence in the light most favorable to the party opposing the motion. (Aguilar, supra, 25 Cal.4th at 843.)

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). Summary judgment provides “courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.

Analysis

Motor Vehicle Cause of Action

The complaint alleges that Defendant Oregel was negligent in operating the subject motor vehicle and that Does 16-25 (for whom Defendant Rivera was substituted as Doe 16) employed Defendant Oregel, owned the motor vehicle which was operated with their permission, and entrusted the motor vehicle, and that Plaintiff was injured by the negligent acts and omissions of all Defendants. (Compl. P. 4, MV-2(a)-(d); p. 5, GN -1.)

Defendant Rivera contends that he was merely Defendant Oregel’s insurance agent and was not otherwise involved in the subject accident. (UMF 4, 5.) As such, Defendant Rivera has presented a prima facie case that Defendant Rivera does not have liability as a matter of law. (See Pacific Rim Mechanical Contractors, Inc. v. Aon Risk Ins. Services West, Inc. (2012) 203 Cal.App.4th 1278, 1283 (“Insurance brokers owe a limited duty to their clients, which is only ‘to use reasonable care, diligence, and judgment in procuring the insurance requested by an insured.’ [Citations.]”).)

As a relevant corollary to this, it bears noting that a plaintiff has no direct cause of action against a defendant’s insurer based on these pleaded facts (see, e.g. Moradi-Shalal v. Fireman’s Fund Ins. Companies (1988) 46 Cal.3d 287, 304.) Generally, an insurer may not be joined as a party-defendant in the underlying action against the insured by the injured third party. The fact that an insurer has agreed to indemnify its insured for any judgment rendered in the action does not make the insurer a proper party. Liability insurance is not a contract for the benefit of the injured party so as to allow it to sue the insurer directly. (Royal Surplus Lines Ins. Co., Inc. v. Ranger Ins. Co. (2002) 100 Cal.App.4th 193, 200; Croskey et al., Cal. Practice Guide: Insurance Litigation (The Rutter Group 2001) P 15.44).

Plaintiff has failed to oppose Defendant Rivera’s motion for summary judgment. As such, Defendant Rivera is entitled to judgment in his favor.

Negligence Cause of Action

The elements of negligence are as follows: (1) duty, (2) breach, (3) causation, and (4) damages. (Quelamine Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 57.) Whether a legal duty exists is a question of law. (Wylie v. Gresch (1987) 191 Cal.App.3d 412, 416.)

Here, Defendant Rivera contends and has submitted evidence that he was Defendant Oregel’s insurance agent and owed him a limited legal duty, but no such duty extended to Plaintiff. (See, e.g., Pacific Rim, 203 Cal.App.4th at 1283; Jones v. Grewe (1987) 189 Cal.App.3d 950, 954; Kotlar v. Hartford Fire Ins. Co. (2000) 83 Cal.App.4th 1116, 1123; Travelers Property Casualty Co. of America v. Superior Court (2013) 215 Cal.App.4th 561, 578-579; San Diego Assemblers, Inc. v. Work Comp for Less Ins. Services, Inc. (2013) 220 Cal.App.4th 1363, 1369.)

The existence of a legal duty owed to the plaintiff by the defendant is a necessary element of the cause of action plaintiff alleges. (Chee v. Amanda Goldt Property

Management (2006) 143 Cal.App.4th 1360, 1369.) “Liability founded upon a claim of negligence cannot exist unless a duty of care is owed by the alleged wrongdoer to the person injured or to the class of which the injured person is a member.” [Citations.] Steinmetz v. Stockton City Chamber of Commerce (1985) 169 Cal. App. 3d 1142, 1145.

“The determination of duty is primarily a question of law. [Citation.] It is the court’s ‘expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.’ [Citation.] … While the question whether one owes a duty to another must be decided on a case-by-case basis, every case is governed by the rule of general application that all persons are required to use ordinary care to prevent others from being injured as the result of their conduct.” ( Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 46, fn. omitted; see Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 770 [reaffirming that duty is a legal question].) Duty, in other words, is measured by the scope of the risk which negligent conduct foreseeably entails.”’” Bryant v. Glastetter (1995) 32 Cal.App.4th 770, 778-

779. ‘“Courts … invoke[] the concept of duty to limit generally ‘the otherwise potentially infinite liability which would follow from every negligent act … .’”’” (Vasilenko v. Grace Family Church (2017) 3 Cal.5th 1077, 1083.

Defendant Rivera has accordingly presented a prima facie case that Plaintiff’s negligence claim against him fails for lack of duty. Once the moving party has met its burden, the burden shifts to the opposing party to show that a material factual issue exists as to the cause of action alleged or a defense to it. CCP 437c(p). (see generally Bush v. Parents Without Partners (1993) 17 Cal. App. 4th 322, 326-327; Planned Parenthood v. City of Santa Maria (1993) 16 Cal. App. 4th 685, 690.) Plaintiff fails to oppose the motion, therefore there are no issues of material fact.

Conclusion

Defendant Rivera’s motion for summary judgment is GRANTED.

The notice of motion does not provide notice of the Court’s tentative ruling system, as required by Local Rule 1.06(A). Moving party’s counsel is directed to contact other counsel forthwith and advise counsel of Local Rule 1.06 and the Court’s tentative ruling procedure. If moving party’s counsel is unable to contact counsel prior to hearing, moving party’s counsel shall be available at the hearing, in person or by telephone, in the event other counsel appears without following the procedures set forth in Local Rule 1.06.

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