Ayon v. Esquire Deposition Solutions, LLC

• Decision Date: 21 September 2018
• Docket Number: G055396,G054578
• Citation: 238 Cal.Rptr.3d 185,27 Cal.App.5th 487
• Court: California Court of Appeals Court of Appeals
• Parties: Jessica AYON, Plaintiff and Appellant, v. ESQUIRE DEPOSITION SOLUTIONS, LLC, Defendant and Respondent.

27 Cal.App.5th 487

238 Cal.Rptr.3d 185

Jessica AYON, Plaintiff and Appellant,

v.ESQUIRE DEPOSITION SOLUTIONS, LLC, Defendant and Respondent.

G054578

G055396

Court of Appeal, Fourth District, Division 3, California.

Filed September 21, 2018

Law Offices of William D. Shapiro, William D. Shapiro, San Bernardino, and Brian D. Shapiro for Plaintiff and Appellant.

Lewis Brisbois Bisgaard & Smith, Roy G. Weatherup, Los Angeles, Allison A. Arabian, Costa Mesa; Marshall & French and Craig A. French, Irvine, for Defendant and Respondent.

OPINION

IKOLA, J.

Plaintiff Jessica Ayon appeals from an adverse summary judgment in a personal injury case. Late one evening in May 2013, Brittini Zuppardo was driving home from her boyfriend’s house while talking on the phone with Michelle Halkett. Zuppardo was defendant Esquire Deposition Solution’s (Esquire) scheduling manager; Halkett was a court reporter for Esquire. Zuppardo’s vehicle struck plaintiff, who suffered significant injuries. The issue here is whether Esquire can be held liable under a theory of respondeat superior.

In an interview immediately following the accident, Zuppardo reported to a police officer that she had been speaking with one of her court reporters, Halkett, about Halkett’s son’s prom and other family related issues. In their depositions, both Zuppardo and Halkett testified they were good friends and were talking about family matters on the evening of the accident. It was not within Zuppardo’s job description to call court reporters after hours for work purposes, though on rare occasions she had done so.

To establish respondeat superior liability, plaintiff relies heavily on the following piece of evidence: at her deposition, Zuppardo testified she spoke on her cell phone with Halkett weekly, if not daily. Zuppardo’s cell phone records, however, showed no calls between her and Halkett’s cell phone for the prior six months, and only one text message. Plaintiff contends a jury could infer from this that the two did not, in fact, have a close friendship, and that the call concerned work matters, not personal matters.

Code of Civil Procedure section 437c, subdivision (e), provides that "summary judgment shall not be denied on grounds of credibility," with certain exceptions we discuss below, but which we conclude do not apply. Ultimately, plaintiff has no evidence that Zuppardo was operating within the scope of her employment at the time of the accident. Plaintiff attacks Zuppardo’s and Halkett’s credibility. But that is not enough, and thus the court correctly granted summary judgment.

FACTS

Esquire is a court reporting agency. Esquire hired Zuppardo in 2005. At the time of the accident, Zuppardo was the calendaring manager. Her job was to interact with attorneys seeking to hire a court reporter, make certain that depositions and hearings were calendared correctly, and ensure they were covered by one of the approximately 30 court reporters who worked for Esquire. Zuppardo scheduled depositions by entering data into a software program. Typically, when an attorney called Esquire to schedule a deposition, Zuppardo would speak with the attorney and register the deposition in the software program. Her working hours were approximately 8:30 a.m. to 5:00 p.m.

Zuppardo usually booked a reporter for a deposition the business day prior to the scheduled deposition date. She would call available court reporters and leave a message if no one answered. She would continue calling available reporters until she found someone to accept the job. Using the phone was a critical part of Zuppardo’s job.

At some point prior to the accident, Esquire issued Zuppardo a cell phone that she kept with her at all times. While at the office, she did not use the company cell phone, but instead used the landline. If someone needed to reach Zuppardo, they could call the after-hours answering service at the office, and the answering service would call Zuppardo’s work cell phone to pass on a message. This happened only rarely. It was, however, part of her job. On rare occasions, if a court reporter cancelled an appearance for a deposition the following day, Zuppardo would use her cell phone after hours to find a last-minute replacement. Such after-hours tasks, however, were ordinarily the responsibility of the general manager. Zuppardo did not have access to the calendaring software after hours, nor did she have access to all of the court reporters’ phone numbers. Zuppardo was supposed to log any hours she worked outside her normal working hours.

Sometime prior to the accident, Esquire disconnected her work cell phone, and it was not replaced. Afterwards, she would use her personal cell phone for work on the rare occasions she needed it.

Esquire had a policy forbidding employees from using a cell phone for work purposes while driving. A violation of the policy could result in firing.

Michelle Halkett was a court reporter who worked exclusively with Esquire around the time of the accident. She began working for Esquire in 2009, which is when she met Zuppardo. They would speak daily. Halkett would come into the office once or twice per week and make a point of greeting Zuppardo. Over the course of their employment with Esquire, the two became friends. Zuppardo was able to recite Halkett’s cell phone number from memory at her deposition. Halkett testified that over the years she had been in Zuppardo’s car approximately five times. They had attended the Orange County Fair together on a couple of occasions, and had dinner together on a couple of occasions. Zuppardo had been to Halkett’s home approximately three times.

Concerning their friendship, Zuppardo offered the following testimony in her deposition:

"Q And with regard to Michelle Halkett, she was a close friend of yours, correct?

"A Very close.

"Q And the two of you would talk on the telephone on your cell phone quite a bit, correct?

"A Yes.

"Q About how often would you speak to Michelle on your cell phone?"

"A I don’t know exactly.

"Q Daily or weekly?

"A Probably, yes.

"Q Which one? Daily?

"A Daily or—

[¶] ... [¶]

"Q Would you say it was several times a week?

"A Sometimes maybe.

"Q Okay. That wouldn’t be unusual, would it? That would not be unusual?

"A Correct."

After Zuppardo offered this testimony, plaintiff’s counsel obtained Zuppardo’s cell phone records for the six months prior to the accident. They did not reflect even a single phone call between Zuppardo’s cell phone and Halkett’s cell phone, other than the night of the accident. They disclosed a single text message in February of 2013.

Zuppardo would schedule depositions for Halkett a few times per week. However, neither could recall any times where Zuppardo scheduled a deposition with Halkett after hours using her cell phone. Halkett testified that on the few occasions where she was contacted after hours, it was by the office manager.

The accident occurred on May 29, 2013, a Wednesday. Zuppardo left work and spent the evening with her boyfriend, eating dinner, shopping, and visiting a friend’s house. She left around 10:10 p.m. to drive home. When she got into the car, she called Michelle Halkett using her car’s hands-free, Bluetooth phone system. She testified she had no specific reason to call Halkett other than to chat with a friend. According to Zuppardo’s statement to the police on the night of the incident, they were casually conversing about Halkett’s son’s prom and other family issues. She reiterated that position in her deposition and emphatically denied the conversation had anything to do with work. Halkett was deposed and likewise testified the conversation was about her son and his prom. Halkett also testified the conversation had nothing to do with work.

Zuppardo was still speaking with Halkett when her vehicle struck plaintiff, who was walking across the street in dark clothing, not in a crosswalk. Zuppardo did not see plaintiff until the instant before impact.

A police investigator filed a report about the incident, some of which Zuppardo disagreed with at the time of her deposition. For example, according to the report, Zuppardo had dinner with her boyfriend, then went shopping, then went to a friend’s house, but Zuppardo testified the dinner was later in the evening. The report stated Zuppardo had "narrowed down" the time of her departure based on the phone call she made, but Zuppardo denied it, saying, "I personally never narrowed down anything." The report said Zuppardo decelerated to 40 miles per hour before the impact in anticipation of a turn, but Zuppardo testified the correct number was 25 or 30 miles per hour. Perhaps the most significant discrepancy, according to plaintiff, is the report’s recital that Zuppardo said she was on the phone with "one of her court reporters." Zuppardo testified that she told the police officer she was speaking with her "court reporter friend."

Plaintiff filed suit against Zuppardo and Esquire for personal injuries.¹ Esquire moved for summary judgment on the ground that plaintiff could not establish Esquire was vicariously liable for any damages Zuppardo caused. The court granted the motion, stating, "[Plaintiff] has not shown sufficient evidence of a triable issue of fact. It was after hours, [Zuppardo] was not on a work errand but was coming home from a social engagement. The phone call was with a friend [albeit a friend she met at work] talking about personal matters. [There was n]o evidence they were talking about work matters." Plaintiff appealed.

DISCUSSION

The only issue on appeal is whether plaintiff created a disputed issue of material fact concerning whether Esquire may be held liable under a theory of respondeat superior. In an appeal from a summary judgment, "we independently examine the record in order to determine whether triable issues of fact exist to reinstate the action." ( Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142, 12 Cal.Rptr.3d 615, 88 P.3d 517.) "In performing our de novo review, we view the evidence in the light...