Chevron U.S.A., Inc. v. Superior Court

Citation4 Cal.App.4th 544,5 Cal.Rptr.2d 674
Decision Date10 March 1992
Docket NumberNo. F015594,F015594
CourtCalifornia Court of Appeals
PartiesCHEVRON U.S.A., INC. et al., Petitioners, v. SUPERIOR COURT, Kern County, Respondent. Peter J. COBB et al., Real Parties in Interest.

DIBIASO, Associate Justice.

Petitioners Chevron, U.S.A., Inc., G & D Construction, Jack Moseley, David Moseley, and Gary Moseley seek a writ of mandate compelling the trial court to grant their motion for summary judgment. We will deny the petition, on the ground petitioners failed to satisfy the demands of CODE OF CIVIL PROCEDURE SECTION 437C1. This case is a laboratory example of the application of section 437c; we publish for this reason alone.


Petitioners hired Whitten Excavation Company, an independent contractor, to haul water. Whitten employed real party Peter Cobb to drive a water truck. He was doing so when he lost control of the truck and it overturned. The accident took place "at South 10th Street (also known as 25 Hill Road), 148 feet north of Buena Vista Place, Kern County, California." Petitioners were the agents and employees of each other and were acting within the course and scope of such agency at all relevant times.

Real parties allege in the fifth cause of action that petitioners are liable for Cobb's injuries arising out of the accident for the following reasons:

"At all times relevant herein [petitioners] knew or should have known that Whitten Excavation Company would use mechanically defective trucks to haul the water and that such method of hauling water would constitute a hazard to [Cobb] as the driver of the truck.

"[Petitioners] negligently failed to exercise reasonable care to employ a competent and careful contractor to haul the water by employing Whitten Excavation Company knowing that the trucks used to haul the water were mechanically defective. Such negligence was the proximate cause of [Cobb's] injuries and damages alleged herein."

Petitioners brought a motion for summary judgment and, in the alternative, for summary adjudication of numerous listed issues. Opposition was filed. The court announced at the hearing it would grant summary adjudication as to one issue, 2 but would otherwise deny the motion. Thereafter, petitioners filed this challenge to the trial court's written order denying the motion for summary judgment.


A defendant who moves for summary judgment must either prove an affirmative defense which would bar every cause of action pled in the complaint or disprove at least one essential element of each cause of action in the complaint. (Twain Harte Associates, Ltd. v. County of Tuolumne (1990) 217 Cal.App.3d 71, 79-80, 265 Cal.Rptr. 737.) The moving party must show that under no possible hypothesis within the reasonable purview of the allegations of the complaint is there a material question of fact which requires examination by trial. (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107, 252 Cal.Rptr. 122, 762 P.2d 46; Pultz v. Holgerson (1986) 184 Cal.App.3d 1110, 1114, 229 Cal.Rptr. 531.) If the defendant does not satisfy its burden as the moving party, the motion must be denied, and it is unnecessary for the court to consider the plaintiff's opposition, if any. (Conn v. National Can Corp. (1981) 124 Cal.App.3d 630, 639, 177 Cal.Rptr. 445; Residents of Beverly Glen, Inc. v. City of Los Angeles (1973) 34 Cal.App.3d 117, 127, 109 Cal.Rptr. 724.)

In evaluating the correctness of a ruling under section 437c, we must independently review the record before the trial court. Because the grant or denial of a motion under section 437c involves pure questions of law, we are required to reassess the legal significance and effect of the papers presented by the parties in connection with the motion. (Saldana v. Globe-Weis Systems Co. (1991) 233 Cal.App.3d 1505, 1513, 285 Cal.Rptr. 385.) We thus must apply the same three-step analysis required of the trial court:

" 'First, we identify the issues framed by the pleadings since it is these allegations to which the motion must respond ... [p] Secondly, we determine whether the moving party's showing has established facts which negate the opponent's claim and justify a judgment in movant's favor ... [p] When a summary judgment motion prima facie justifies a judgment, the third and final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue.' " (Zuckerman v. Pacific Savings Bank (1986) 187 Cal.App.3d 1394, 1400-1401, 232 Cal.Rptr. 458; see also Saldana v. Globe-Weis Systems Co., supra, 233 Cal.App.3d at p. 1513, 285 Cal.Rptr. 385.)

In practical effect, we assume the role of a trial court and redetermine the merits of the motion. In doing so, we must rigidly scrutinize the moving parties' papers. (See Rincon v. Burbank Unified School Dist. (1986) 178 Cal.App.3d 949, 954-955, 224 Cal.Rptr. 88; and Jos. Schlitz Brewing Co. v. Downey Distributor (1980) 109 Cal.App.3d 908, 915-918, 167 Cal.Rptr. 510.)

The fifth cause of action of real parties' first amended complaint asserts petitioners were negligent because they knew or should have known, when they hired Whitten, that it would use defective trucks and that such conditions would create a risk of harm to persons such as real party. As all parties acknowledge, this theory of recovery is the "negligent hiring" exception to the general rule that an employer is not liable for the torts of an independent contractor or of the employees of the independent contractor. (Green v. Soule (1904) 145 Cal. 96, 99, 78 P. 337.) 3 Under this exception, an employer who negligently fails to employ a competent and careful contractor may be liable for injuries caused by the contractor's failure to exercise due care. (Risley v. Lenwell (1954) 129 Cal.App.2d 608, 622, 277 P.2d 897; Gettemy v. Star House Movers, Inc. (1964) 225 Cal.App.2d 636, 643, 37 Cal.Rptr. 441.) The employer's knowledge of the existence of the risk of harm is an important factor in determining whether the exception applies to a particular fact situation. (Risley, 129 Cal.App.2d at p. 622, 277 P.2d 897; Gettemy, 225 Cal.App.2d at p. 643, 37 Cal.Rptr. 441.)

Having identified the theory of liability relied upon in the first amended complaint, we must next determine whether the admissible evidence contained in the moving papers entitles petitioners to judgment as a matter of law. (Zuckerman v. Pacific Savings Bank, supra, 187 Cal.App.3d at p. 1400, 232 Cal.Rptr. 458.) In this regard, the evidence purporting to support petitioners' proposed undisputed facts consists of the following:

Declaration of Gary Whitten

--Whitten owns Whitten Excavation and is familiar with its projects.

--On the day of the accident, Cobb was assigned to work on the Jubilian project, which was unrelated to the Chevron job.

[4 Cal.App.4th 550] --The Jubilian project was located near Elk Hills City and the Elk Hills Naval Reserve.

--Cobb picked up the water truck at the Chevron site; the truck was used at this site until the day before the accident, when it was moved to another, unrelated site.

--Cobb drove the truck to the Jubilian site the day before the accident and returned it to the Chevron site for the evening.

--On the morning of the accident, Cobb was told that the 1969 water truck would be again needed at the Jubilian site, and the accident occurred while he was traveling towards the Jubilian site.

Deposition of Gary Whitten

--On the day of the accident Cobb was driving from the Chevron site to a job site "called Elk Hills City," where "[s]omebody was trying to develop an area."

--Cobb drove the truck the morning of the day before the accident to the same job.

--By reviewing company time cards and talking to "other people," Whitten "figured out" where Cobb was headed "that morning." He was not working at the Chevron site because he was headed away from it. Whitten was convinced that Cobb was working at the Jubilian project after a thorough study of the time cards.

--Jubilian was a developer who was trying to develop a multiple family project.

--Jubilian had never been to Whitten to inspect its equipment before Whitten was hired as a subcontractor, nor had Jubilian asked to see any maintenance schedules, fleet records, or DMV records on Whitten's trucks.

--Jay Robertson was another company employee who worked at the Jubilian site, "running a motor grader."

--The only equipment supplied by Whitten to Jubilian before the accident was a water truck and motor grader, for which Whitten has invoices. All Whitten did at the Jubilian site was rough grading, weed eradication, and dust control.

--Whitten obtained the Jubilian work by telephone contact with someone who cannot now be recalled.

[4 Cal.App.4th 551] --Whitten was at the Jubilian site for three or four days.

--Whitten believed Jubilian identified his project as "Elk Hills City." Whitten does not know if it was "ever developed".

Deposition of Jack Moseley

--Moseley was not "part of" the negotiations which resulted in the Whitten subcontract. It was "David."

--The contract between G & D and Whitten was oral. Whitten did not have to "give Chevron any of the subcontractors' charges in order to be paid ... for this contract."

--Moseley does not recall what Whitten was paid, but thinks "it's 46,000."

--Even though the truck was a "little old," it was "painted good and looked good."

It is obvious these few, detached evidentiary facts are inadequate to prove, without question and as a matter of law, that petitioners, or any one or more of...

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