Jeld-Wen, Inc. v. Superior Court

• Decision Date: 01 August 2005
• Docket Number: No. D045948.,D045948.
• Citation: 131 Cal.App.4th 853,32 Cal.Rptr.3d 351
• Court: California Court of Appeals Court of Appeals
• Parties: JELD-WEN, INC. et al., Petitioners, v. The SUPERIOR COURT of San Diego County, Respondent; Theresa Keener et al., Real Parties in Interest.

32 Cal.Rptr.3d 351

131 Cal.App.4th 853

JELD-WEN, INC. et al., Petitioners, v. The SUPERIOR COURT of San Diego County, Respondent;

Theresa Keener et al., Real Parties in Interest.

No. D045948.

Court of Appeal, Fourth District, Division One.

August 1, 2005.

McAtee Harmeyer, Jeff G. Harmeyer, San Diego, and Stephanie M. Alexander for Petitioners.

No appearance for Respondent.

Ward & Ward, Alexandra S. Ward; The Zucker Law Firm, Andrew J. Zucker; Basile Law Firm and J. Jude Basile for Real Parties in Interest.

HUFFMAN, Acting P.J.

In this wrongful death action arising from a motor vehicle collision, the surviving plaintiff Keener family sued the other driver involved in the accident, his employer, and the company which had leased the driver's truck to his employer (respectively, petitioners and defendants Hector Solis (employee), Jeld-Wen, Inc., dba Summit Window and Patio Door (employer), and Penske Trucking (owner); sometimes collectively defendants).¹ Defendants brought a motion for summary adjudication on the grounds that they were entitled to dismissal of the plaintiffs' alternative claim of negligent entrustment of the vehicle, because before trial, defendant-employer Jeld-Wen had admitted vicarious liability for the acts of its employee Solis, under the doctrine of respondeat superior. (Code Civ. Proc., § 437c, subd. (f).) The trial court denied the motion.

Defendants filed this petition for writ of mandate to require the trial court to grant the motion for summary adjudication as to the negligent entrustment claim. Defendants take the position that they are entitled as a matter of law to this summary adjudication order, because negligent entrustment should not be considered to be a separate independent tort, but rather a theory of vicarious liability. According to defendants, the pretrial admission by the employer that its employee was acting in the course and scope of his employment at the time of the accident, such that the employer admits to vicarious liability under the doctrine of respondeat superior for any such alleged employee negligence, leads only to the conclusion that the negligent entrustment theory is essentially superfluous to the basic cause of action for damages for negligence and therefore may not be separately pursued at trial. Defendants contend that this approach is required by the leading case in the area, Armenta v. Churchill (1954) 42 Cal.2d 448, 457-458, 267 P.2d 303 (Armenta), and is necessary to avoid prejudicial evidentiary problems that would otherwise arise about admissibility of evidence of the employee's prior motor vehicle accidents, as known to the employer (even though the same evidence would ordinarily not be admissible to prove such negligence on a particular occasion under Evidence Code section 1104).

We agree with one of the petitioner-defendants, Jeld-Wen/Summit, that under these circumstances, the plaintiffs' negligent entrustment theory against it is unsupported as a matter of law and should not be separately pursued, where, as here, there is a binding pretrial admission of liability by the employer under respondeat superior for the employee's alleged negligence, if any is proven. We will grant the petition to require the trial court to vacate its order denying the summary adjudication motion as to the employer and to grant it as to the employer only. No allegations of negligent entrustment are made against the defendant employee, and he was not entitled to the summary adjudication requested. Also, as to the owner/leasing company, Penske, the petition must be denied, because the pleadings and record are insufficient to entitle it to the same treatment as the employer in this factual context, for purposes of summary adjudication based on an admission of liability under respondeat superior.

FACTUAL AND PROCEDURAL BACKGROUND

On July 19, 2002, the plaintiffs' decedent, their husband and father, was riding his motorcycle when he collided with a large truck driven by the employer's employee, Solis, who allegedly failed to yield the right-of-way while driving on duty (delivering windows to residential construction development projects). Solis held a driver's license which enabled him to legally drive this type of truck, and he had been driving it for a period of approximately six months. The employer had leased the truck from its owner, codefendant Penske.

Plaintiffs filed a wrongful death complaint against the employer, the employee, and the leasing company. They alleged a single cause of action which encompassed three theories of liability: negligence, negligence per se, and negligent entrustment of a vehicle.

During discovery, the plaintiffs learned that in addition to the leased Penske truck involved in the accident, Solis had driven pickup trucks for Summit, and while doing so, he had had three property damage collisions on the job in 1998, 2000, and 2002 (two in parking lots and once on the freeway). There was no evidence produced indicating that Solis was incompetent, ill, or otherwise unfit to drive the Penske truck on the date of the incident, and the results of a blood test taken immediately after the accident showed no alcohol or drugs in Solis's system at the time.

All defendants moved for summary adjudication of plaintiffs' claim. They provided a separate statement referring to Jeld-Wen/Summit's admission in discovery and in a declaration by its manager that it, as the employer, would assume vicarious liability for any alleged negligence of its employee. Defendants contended that, as a matter of law, this admission meant that no separate theory of negligent entrustment of the vehicle could be pursued at trial, due to unavoidable evidentiary prejudice from such a showing. By making this admission, the employer sought to keep out prejudicial evidence of the employee's prior motor vehicle accidents, under Evidence Code section 1104.² Rather, the employer defendant would be liable, if at all, under a common negligence theory under the doctrine of respondeat superior.

The trial court denied defendants' motion for summary adjudication: "Defendants have failed to meet their burden of establishing that Plaintiffs' cause of action for Negligent Entrustment has no merit because one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to Plaintiff's negligent entrustment causes of action."³ In argument, the court explained its reasoning by saying that the employer had only made a qualified acceptance of vicarious liability, and because no determination had yet been made of the employee's liability, the negligent entrustment count remained a triable issue for the jury, as did the negligence of the employee. The court noted that it still remained to be shown whether the employer had given adequate or inadequate training to the employee.

Defendants filed a writ petition in this court in which they all claimed that the trial court improperly denied the motion for summary adjudication. We issued an order to show cause why the relief should not be granted and stayed further proceedings in the trial court. We also obtained supplemental briefing on the effect of the enactment of Civil Code section 1431.2 (implementing certain comparative negligence principles) on the Armenta, supra, 42 Cal.2d 448, 267 P.2d 303 decision.

DISCUSSION

I ISSUES PRESENTED

It is appropriate for this court to review defendants' petition for a writ of mandate to avoid a potential trial on nonactionable claims. (Code Civ. Proc., § 437c, subds. (f)(1), (m); Knowles v. Superior Court (2004) 118 Cal.App.4th 1290, 1294-1295, 13 Cal.Rptr.3d 700 (Knowles).) "`Since a motion for summary judgment "involves pure matters of law," we review a ruling on the motion independently. [Citation.] Summary judgment is proper when there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. [Citation.]' [Citation.]" (Id. at p. 1295, 13 Cal.Rptr.3d 700.)

To prevail in a motion for summary adjudication, defendants must bear a burden of persuasion "`that "one or more elements of" the "cause of action" in question "cannot be established," or that "there is a complete defense" thereto. [Citation.] . . . [T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact. . . . A prima facie showing is one that is sufficient to support the position of the party in question. [Citation.]'" (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851, 107 Cal.Rptr.2d 841, 24 P.3d 493, as cited in Knowles, supra, 118 Cal.App.4th at p. 1301, 13 Cal.Rptr.3d 700.)

Put another way, have defendants "conclusively negated a necessary element of the [plaintiff's] case or demonstrated that under no hypothesis is there a material issue of fact that requires the process of trial"? (Lindstrom v. Hertz Corp. (2000) 81 Cal.App.4th 644, 648, 96 Cal.Rptr.2d 874.) Separate counts in a single pleading may be summarily adjudicated. (Lilienthal & Fowler v. Superior Court (1993) 12 Cal.App.4th 1848, 1854-1855, 16 Cal.Rptr.2d 458.) The issue of whether a defendant's negligence was a legal cause of an alleged injury is also subject to summary adjudication. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 488-491, 110 Cal.Rptr.2d 370, 28 P.3d 116.)

To resolve these issues, we first outline negligent entrustment authority, then apply it to the employer-employee context, and address the evidentiary concerns involving an employee's prior accidents. Before doing so, however, we seek to clarify that although all three defendants were moving parties in the summary adjudication motion, the separate...