Montezpalos v. Star Rooter and Plumbing CA1/5 ( 2024 )

Filed 9/20/24 Montezpalos v. Star Rooter and Plumbing CA1/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
LUCIA ERENDIRA
MONTEZPALOS,
A168052
Plaintiff and Appellant,
v.
(Alameda County Super. Ct. No.
STAR ROOTER AND PLUMBING, HG21097341)
INC.,
Defendant and Respondent.
In this personal injury action, plaintiff Lucia Erendira
Montezpalos appeals after the trial court granted defendant Star
Rooter and Plumbing, Inc.’s (Star Rooter) motion for summary
judgment. Montezpalos primarily contends that Star Rooter, as
the party moving for summary judgment, failed to meet its
burden to show its entitlement to judgment as a matter of law on
her negligent entrustment cause of action. Although Star Rooter
is entitled to summary adjudication on Montezpalos’s cause of
action for statutory owner liability (Veh. Code, § 17150),1 we
otherwise agree with Montezpalos and reverse and remand for
entry of a new order denying in part and granting in part the
motion for summary adjudication.
1 Undesignated statutory references are to the Vehicle
Code.
1
BACKGROUND
A.
On April 25, 2019, Javier Figueroa Gutierrez was driving a
truck owned by Star Rooter, on Interstate 880, when he looked
down at his cell phone, failed to stop, and hit Montezpalos’s
vehicle. One of the owners of Star Rooter, Juan Coronado, gave
Gutierrez (who was never an employee of Star Rooter) permission
to drive the truck.
B.
In April 2021, Montezpalos sued Gutierrez and Star Rooter.
In her form complaint she checked boxes indicating that she was
alleging “[m]otor [v]ehicle” and “[g]eneral [n]egligence” causes of
action. With respect to her negligence cause of action, she alleged
that Gutierrez and Star Rooter “negligently owned, maintained,
controlled, operated, and/or otherwise entrusted Defendant’s
vehicle so that the same collided into another vehicle operated by
[Montezpalos]. [Montezpalos] sustained major bodily injuries as
a result of Defendant’s negligence.”
A year later, Montezpalos served an offer to compromise
(Code Civ. Proc., § 998) for $100,000 on Gutierrez. Gutierrez
timely accepted the offer. Montezpalos obtained a separate
judgment against Gutierrez, who is not a party to this appeal.
Thereafter, Star Rooter moved for summary judgment, or
in the alternative, summary adjudication. With respect to
Montezpalos’s negligent entrustment claim, Star Rooter argued
that it was entitled to summary adjudication because there is no
evidence that Gutierrez was unfit or incompetent to drive the
truck much less any evidence that Star Rooter knew (or should
have known) of Gutierrez’s incompetence or unfitness. Star
Rooter also argued that the settlement between Gutierrez and
Montezpalos—in excess of $15,000—extinguished Star Rooter’s
statutory ownership liability under sections 17150 and 17151.
2
In support of its motion, Star Rooter offered a declaration
from Coronado, who attested that he met Gutierrez through “the
local rodeo community.” Coronado further stated that, at the
time of entrustment, he had never ridden in a vehicle that
Gutierrez was driving, that before the accident Coronado had no
knowledge of Gutierrez being involved in motor vehicle accidents,
and that before the accident Coronado did not know of any
incidents of Gutierrez driving while distracted. Coronado’s
declaration concludes: “When I gave . . . Gutierrez permission to
use Star Rooter’s dump truck, I had no reason to believe that [he]
could not safely drive the Star Rooter truck.”
Montezpalos opposed the motion. Although she admitted
that the settlement with Gutierrez extinguished Star Rooter’s
statutory ownership liability under sections 17150 and 17151,
she contended that the settlement did not extinguish Star
Rooter’s independent liability for negligent entrustment. As to
that negligent entrustment cause of action, Montezpalos insisted
that triable issues of fact remain because breach of the duty to
inquire about a driver’s valid license, pursuant to section 14604,
subdivision (a), may be found to be constructive knowledge of
incompetence.
In support, Montezpalos pointed to Coronado’s deposition
testimony, wherein he admitted that, before Gutierrez borrowed
the truck, he did not ask to see Gutierrez’s driver’s license or ask
him any questions about his driving history. She also presented
evidence, again from Coronado’s deposition, that before loaning
the truck Coronado had only met Gutierrez on one occasion, at a
rodeo, one month before the accident.
C.
After a hearing, the trial court granted the motion for
summary judgment. As relevant to the negligent entrustment
claim, the court concluded that Star Rooter had met its burden to
show that no reasonable jury could conclude Coronado had actual
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or constructive knowledge of Gutierrez’s incompetence or
unfitness to drive. The trial court also determined that
Montezpalos failed to present any triable issue because there was
no evidence that Gutierrez was in fact unlicensed or otherwise
unfit to drive. Furthermore, the court determined that Star
Rooter’s statutory owner’s liability was extinguished by virtue of
the settlement with Gutierrez. Judgment was entered in Star
Rooter’s favor.
DISCUSSION
A.
Montezpalos contends that the trial court erred in granting
summary judgment because Star Rooter did not meet its burden
to demonstrate that her negligent entrustment cause of action
fails as a matter of law. She relies on the undisputed fact that
Coronado failed to comply with his statutory duty to ask
Gutierrez if he had a valid driver’s license (§ 14604, subd. (a)).
After reviewing the trial court’s order granting summary
judgment de novo (Aguilar v. Atlantic Richfield Co. (2001) 25
Cal.4th 826, 860 (Aguilar)), we agree.
1.
A motion for summary judgment should be granted if the
moving party meets its burden of persuasion and shows that
there is no triable issue as to any material fact and that it is
entitled to judgment as a matter of law. (Code Civ. Proc., § 437c,
subd. (c); Aguilar, supra, 25 Cal.4th at p. 850.) When the moving
party is a defendant, it must show that one of the required
elements of the plaintiff’s cause of action cannot be established,
or that there is a complete defense to that cause of action. (Code
Civ. Proc., § 437c, subd. (p)(2); Aguilar, at p. 850.) If the
defendant meets its “initial burden of production” by making a
prima facie showing of “the nonexistence of any triable issue,” the
burden of production shifts to the opposing party to show the
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existence of a triable issue of material fact. (Aguilar, at p. 850;
accord, Code Civ. Proc., § 437c, subd. (p)(2).)
In reviewing the trial court’s ruling independently, “we
apply the same three-step analysis used by the trial court. First,
we identify the issues framed by the pleadings. Second, we
determine whether the moving party has established facts
justifying judgment in its favor. Finally, in most cases, if the
moving party has carried its initial burden, we decide whether
the opposing party has demonstrated the existence of a triable
issue of material fact.” (Truong v. Nguyen (2007) 156
Cal.App.4th 865, 874.) We view the evidence in a light favorable
to the losing party, liberally construing their evidentiary
submission while strictly scrutinizing the moving party’s
showing. We resolve any evidentiary doubts or ambiguities in
the losing party’s favor. (Id. at p. 876.)
“Summary judgment will be upheld when, viewed in such a
light, the evidentiary submissions conclusively negate a
necessary element of plaintiff’s cause of action, or show that
under no hypothesis is there a material issue of fact requiring the
process of a trial, thus defendant is entitled to judgment as a
matter of law.” (Thompson v. Sacramento City Unified School
Dist. (2003) 107 Cal.App.4th 1352, 1360-1361, italics added.)
California’s tort of negligent entrustment “ ‘recognizes the
liability of an automobile owner who has entrusted a car to an
incompetent, reckless, or inexperienced driver.’ ” (McKenna v.
Beesley (2021) 67 Cal.App.5th 552, 565 (McKenna).) “ ‘ “Liability
for the negligence of the incompetent driver to whom an
automobile is entrusted does not arise out of the relationship of
the parties, but from the act of entrustment of the motor vehicle,
with permission to operate the same, to one whose incompetency,
inexperience, or recklessness is known or should have been
known by the owner.” ’ ” (Ghezavat v. Harris (2019) 40
Cal.App.5th 555, 559, italics added.)
5
To establish negligent entrustment, the plaintiff must
prove all of the following: 1. That the driver was negligent in
operating the vehicle; 2. That the defendant owned the vehicle
operated by the driver or had possession of the vehicle operated
by the driver with the owner’s permission; 3. That the defendant
owner knew, or should have known, that the entrusted driver
was incompetent or unfit to drive the vehicle; 4. That the
defendant permitted the driver to drive the vehicle; and 5. That
the driver’s incompetence or unfitness to drive was a substantial
factor in causing harm to the plaintiff. (CACI No. 724.)
“[O]rdinarily it is for the jury to determine whether the
owner has exercised the required degree of care.” (Allen v. Toledo
(1980) 109 Cal.App.3d 415, 421.) However, the existence or
nonexistence of a negligence-based duty may be determined, in
appropriate cases, as a matter of law on summary judgment.
(Osborn v. Hertz Corp. (1988) 205 Cal.App.3d 703, 712-713.)
2.
We agree with Montezpalos that this is not such a case.
Star Rooter did not satisfy its initial burden of demonstrating
Montezpalos’s negligent entrustment cause of action lacks merit
because, in challenging the third element above, it failed to show
that she could not establish its constructive knowledge of
Gutierrez’s incompetence or unfitness to drive. (See CACI No.
724; Aguilar, supra, 25 Cal.4th at p. 850.) Accordingly, the trial
court’s order granting summary judgment must be reversed.
In its motion, Star Rooter argued it did not have actual or
constructive notice of any problem with Gutierrez’s driving, but
its evidence to support the motion focused solely on its lack of
actual knowledge that there was anything amiss.
Evidence of actual knowledge (at the time of the
entrustment) that a driver is incompetent, inexperienced, or
reckless is certainly one way to demonstrate that an owner
6
breached its duty of care. (CACI No. 724; McKenna, supra, 67
Cal.App.5th at pp. 565-566.) But Montezpalos is correct that
either actual or constructive knowledge of a driver’s incompetence
can be used to prove negligent entrustment. (CACI No. 724;
McKenna, at pp. 565-566, 574.) Although inexperience alone does
not necessarily make a driver incompetent (White v. Inbound
Aviation (1999) 69 Cal.App.4th 910, 920), lacking a driver’s
license does. (See McKenna, at p. 575 [“ ‘[t]he fact that the driver
is unlicensed makes a prima facie case of negligence in allowing
him to drive the vehicle’ ”].)
Section 14606, subdivision (a), prohibits the owner of a
motor vehicle from authorizing another to drive “unless that
person is licensed for the appropriate class of vehicle to be
driven.” Section 14604 furthers this prohibition by requiring an
owner of a motor vehicle “to make a reasonable effort or inquiry
to determine whether the prospective driver possesses a valid
driver’s license before allowing him or her to operate the owner’s
vehicle.” (§ 14604, subd. (a).)2 “[S]ection 14604 prohibits an
owner of a motor vehicle from knowingly allowing another person
to drive its vehicle without first determining that the person
possesses a valid and appropriate driver’s license.” (Philadelphia
Indemnity Ins. Co. v. Montes-Harris (2006) 40 Cal.4th 151, 161.)
Accordingly, it is undisputed that owners have “a legal duty
to make a ‘reasonable effort or inquiry,’ into a prospective driver’s
2 Section 14604, subdivision (a), provides in full: “No owner
of a motor vehicle may knowingly allow another person to drive
the vehicle upon a highway unless the owner determines that the
person possesses a valid driver’s license that authorizes the
person to operate the vehicle. For the purposes of this section, an
owner is required only to make a reasonable effort or inquiry to
determine whether the prospective driver possesses a valid
driver’s license before allowing him or her to operate the owner’s
vehicle. An owner is not required to inquire of the department
whether the prospective driver possesses a valid driver’s license.”
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license status before allowing the prospective driver to operate
the owner’s vehicle.” (§§ 14604, subd. (a), 14606, subd. (a);
McKenna, supra, 67 Cal.App.5th at p. 572.) The parties also
agree that an owner who entrusts a motor vehicle to an
unlicensed driver without making a reasonable inquiry—thereby
committing a misdemeanor violation of section 14604, subdivision
(a)—may be held liable for negligent entrustment. (McKenna, at
pp. 558, 574, 576-577.) Specifically, “a jury may find that an
owner who breaches its section 14604 duty and permits an
unlicensed driver to drive the owner’s vehicle had constructive
knowledge of the driver’s incompetence to drive.” (McKenna, at p.
558, italics added.) Stated another way, “ ‘constructive
knowledge of no license supports constructive knowledge of
incompetence.’ ” (Id. at p. 575, fn. 27.)
Star Rooter recognizes the above rules but seeks to
preserve the ruling in its favor by distinguishing McKenna and
suggesting it was Montezpalos’s burden to show Gutierrez was
unlicensed. It points out (correctly) that, in McKenna, the
plaintiff presented evidence, in opposition to the defendant’s
summary judgment motion, that showed both that the motor
vehicle owner did not inquire about the entrusted driver’s license
and that the driver did not have a valid driver’s license.
(McKenna, supra, 67 Cal.App.5th at pp. 561-562, fns. 10, 13.)
McKenna went on to conclude that this evidence was sufficient to
demonstrate a triable issue of material fact. (Id. at pp. 577-578.)
Here, in contrast, there is no evidence one way or the other
as to whether Gutierrez had a valid license to drive any class of
vehicle at the time Star Rooter loaned him its truck. But that
does not mean that the trial court was right that Star Rooter met
its burden as the party seeking summary judgment to make a
prima facie showing it had no constructive knowledge of
Gutierrez’s incompetence or unfitness. Nor was it Montezpalos’s
burden—in order to demonstrate a triable issue of material fact—
8
to present evidence that Gutierrez did not have a valid driver’s
license.
We agree that it would be Montezpalos’s burden to show as
much at trial. (See McKenna, supra, 67 Cal.App.5th at p. 558.)
However, under well-established summary judgment standards,
a plaintiff’s burden to demonstrate—with evidence—a triable
issue of material fact is only triggered once the moving party
shows “one or more elements of the cause of action . . . cannot be
established, or that there is a complete defense to the cause of
action.” (Code Civ. Proc., § 437c, subd. (p)(2).) McKenna itself
recognized that, in moving for summary judgment, the burden
was on the defendant to demonstrate that the plaintiff would be
unable to demonstrate the constructive knowledge element of a
negligent entrustment cause of action. (McKenna, at p. 577 [“a
defendant/owner fails to meet its summary adjudication burden
of establishing that a plaintiff cannot establish the constructive
knowledge element of a negligent entrustment of a motor vehicle
claim, where there is evidence from which a jury could reasonably
find that an owner of a vehicle breached its section 14604 duty
and allowed an unlicensed driver to drive its vehicle”]; id. at p.
578.)
We agree with Montezpalos that, as a defendant moving for
summary judgment, it was Star Rooter’s burden to present
evidence that demonstrated that the question of whether it knew
or should have known of Gutierrez’s unfitness to drive was not a
question for the trier of fact. Had Star Rooter challenged a
constructive knowledge theory as factually unsupported by
Montezpalos’s discovery responses, the burden might have
shifted. (See Weber v. John Crane, Inc. (2006) 143 Cal.App.4th
1433, 1439-1441 [factually devoid discovery responses may
support inference that plaintiff has no evidence to support claim
and shift burden on summary judgment].) Alternatively, Star
Rooter could have met its burden by presenting evidence that
9
Gutierrez had—at the time the truck was entrusted—a valid
license to drive that class of vehicle. But because Star Rooter
failed to take either approach, it did not carry its burden to show
Montezpalos cannot establish constructive knowledge of
incompetence and the burden did not shift to Montezpalos.
Because Star Rooter did not satisfy its initial burden to
show one of the required elements of negligent entrustment
cannot be established, we must reverse the summary judgment
without considering the sufficiency of Montezpalos’s evidence.
(See Hawkins v. Wilton (2006) 144 Cal.App.4th 936, 939-940, 945
[defendant’s summary judgment motion failed to show plaintiff
could not prove all theories of liability and thus “the trial court
should have held that [the defendant] failed to carry his initial
burden and stopped there”]; Binder v. Aetna Life Ins. Co. (1999)
75 Cal.App.4th 832, 840 [“[a] responding plaintiff has no
evidentiary burden unless the moving defendant has first met its
initial burden”].)
B.
Montezpalos also argues that the trial court incorrectly
determined that her settlement with Gutierrez extinguished her
negligent entrustment cause of action. Neither the record nor the
law supports this claim.
The only reasonable construction of the trial court’s order is
that it ruled a cause of action for statutory ownership liability
(§ 17150) was extinguished by the settlement.3 (See § 17151,
subd. (a) [owner’s liability under § 17150 is limited to $15,000 per
person in any one accident]; McKenna, supra, 67 Cal.App.5th at
3 Section 17150 provides: “Every owner of a motor vehicle
is liable and responsible for death or injury to person or property
resulting from a negligent or wrongful act or omission in the
operation of the motor vehicle, in the business of the owner or
otherwise, by any person using or operating the same with the
permission, express or implied, of the owner.”
10
p. 563, fn. 14 [although owner’s liability under § 17150 is limited
to $15,000 per person, “common law cause of action for ‘negligent
entrustment is an independent tort’ that may be brought
separately from [the statutory] cause of action”]; Fremont Comp.
Ins. Co. v. Hartnett (1993) 19 Cal.App.4th 669, 673, 675-676
[$15,000 limit of liability does not apply if the owner of the car
was independently negligent]; Fenley v. Kristoffersen (1979) 94
Cal.App.3d 139, 141-142 [$15,000 settlement with negligent
driver discharged owner’s statutory liability under §§ 17150 &
17151].)
Montezpalos does not argue that the trial court’s ruling
with respect to statutory ownership liability was in error. In fact,
she concedes that she was limited to recovering $15,000 on such a
statutory cause of action. Any additional argument not raised on
appeal was forfeited. (See Frittelli, Inc. v. 350 North Canon
Drive, LP (2011) 202 Cal.App.4th 35, 41.)
DISPOSITION
The judgment in favor of Star Rooter is reversed and the
matter is remanded to the trial court with directions to enter a
new order that denies Star Rooter’s motion for summary
judgment, denies summary adjudication with respect to
Montezpalos’s negligent entrustment cause of action, and
otherwise grants the motion for summary adjudication.
Montezpalos is entitled to her costs on appeal. (Cal. Rules of
Court, rule 8.278(a)(1), (3).)
BURNS, J.
WE CONCUR:
JACKSON, P.J.
CHOU, J.
Montezpalos v. Star Rooter and Plumbing, Inc. (A168052)
11