Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from judgments of the Superior Court of Los Angeles County Super. Ct. No. BC313942. Mary Thornton House, Judge.
Niddrie, Fish & Buchanan, Martin N. Buchanan; Girardi & Keese, Thomas V. Girardi and Amanda L. McClintock for Plaintiffs and Appellants.
Horvitz & Levy, Stephen E. Norris, Kim L. Nguyen; West & Miyamoto, Eugene F. West; Goshgarian & Marshall and John Alexander Marshall for Defendants and Respondents.
COOPER, P. J.
Plaintiffs Iraj Beroukhim (plaintiff) and his wife Shahnaz Beroukhim appeal from summary judgments granted to the American Automobile Association (AAA) and the Automobile Club of Southern California (ACSC; collectively respondents), co-defendants in a personal injury action arising from a collision with a tow truck driven by Alexan Ghazerian, an employee of Delta Towing & Transport, Inc. (Delta). Plaintiffs sued not only Ghazerian and Delta, who are not parties to this appeal, but also respondents, on theories of vicarious liability and also direct negligence. Plaintiffs presently claim that the summary judgments were improper because there were unrefuted or triable issues of liability for negligently training, screening, and certifying Delta’s employees, particularly Ghazarian. The relevant record does not support these claims, and we therefore affirm the judgments.
FACTS
In its first cause of action, for negligence (the second was for loss of consortium), plaintiffs’ first amended complaint alleged that on December 26, 2003, defendant Ghazerian, driving a flat bed tow truck for his employer Delta, struck plaintiff’s vehicle on Interstate 10 in Los Angeles, causing plaintiff to crash into a concrete divider and sustain severe injuries including brain damage. Ghazerian had been towing a car for an AAA customer, whom he also was transporting together with another individual. Plaintiffs alleged that Ghazerian had two prior convictions for driving under the influence, as well as one for forgery (on a no contest plea). Apart from the usual allegations of mutual agency or joint venture, the complaint alleged that Delta operated the truck pursuant to a contract with AAA and ACSC, who “employed” Delta notwithstanding its use of known criminals.
Plaintiffs further alleged that AAA and ACSC did not use appropriate screening techniques to ensure that “its” drivers were qualified to provide safe roadside assistance service, and that they did not train “their” employees to be safe drivers. Alleging that all defendants owed duties of care to them, plaintiffs alleged breaches of these duties, on respondents’ part as follows: improper screening of and failure adequately to train employees; use of unsafe towing companies; knowingly hiring and employing drivers with convictions; and recklessly contracting with Delta, with knowledge that Ghazerian was a dangerous and incompetent driver, and without screening systems. As a proximate result, plaintiff had suffered multiple damages.
Respondents moved for summary judgment successively. ACSC’s motion, filed first, advanced evidence that Delta was ACSC’s independent contractor, that neither it nor Ghazarian was ACSC’s employee, and that ACSC had not acted negligently in contracting with Delta to provide roadside assistance. Accordingly, ACSC was not liable for Delta’s negligence. ACSC’s affiant declared that the club provided training seminars to contract stations like Delta, but that attendance was voluntary. ACSC did monitor its contractors’ performance, and Delta had maintained a rating of excellent “through the date of the subject accident.”
AAA’s motion explained that AAA was a membership association of auto clubs, including ACSC, which it facilitated but did not govern. AAA did not provide roadside assistance service in Southern California, or contract with towing contractors. Thus, AAA had no contractual, employment, or joint venture relationship with either Delta or Ghazarian, and they were not AAA’s agents. AAA had had no part in Ghazarian’s hiring. AAA did, however, provide Quality Standards for roadside assistance, which member clubs had to comply with.
Plaintiffs tendered extensive evidence in opposition to ASCS’s summary judgment motion. Among other things, plaintiffs showed that Ghazarian had been convicted of driving under the influence of alcohol in 1993 and 1995. A police report stated that, according to one of Ghazarian’s passengers, the accident had occurred when she told him he had missed the on-ramp to an adjoining freeway, and he cut abruptly into the lane to his right. The other passenger told police she had previously informed Ghazarian that the freeway intersection was ahead. Plaintiffs argued that AAA and ACSC comprised a joint venture, which employed Delta. Alternatively, if Delta was an independent contractor, ACSC had a duty to engage safe contractors, which it had breached by failing to ascertain that Delta employed a driver who was a convicted criminal, and allegedly could not speak English.
In this connection, plaintiffs offered Ghazarian’s deposition testimony (taken through an interpreter) that since emigrating to the United States from Iran in 1991, he had learned to understand English, but was “not so fluent” in it, and had difficulty reading. Ghazarian had taken the two days of courses from ACSC required for a card while he was employed by another tow company, before Delta. The program had included written materials, and he had had someone read to him parts he did not understand. An ACSC deponent testified that as of 2003 at least, this certification was mandatory in order to drive for ACSC road service.
In their opposition to AAA’s motion, plaintiffs advanced much the same arguments as in their opposition to ASCS’s. Essentially the same evidentiary exhibits appeared.
The trial court initially denied the motions for summary judgment, on grounds respondents had not established an absence of ostensible authority between them and Delta. Respondents filed a petition for a writ of mandate, to compel the trial court to grant summary judgment. After receiving and considering opposition, this court issued a notice of intention to grant a peremptory writ requiring the trial court to vacate its denials of summary judgment and grant respondents’ motions. (See Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171.) This notice explained that liability based on agency or joint venture was factually unsupported.
In response, the trial court vacated its prior order and granted the summary judgment motions. More formal orders, and judgments, followed. In the meantime, plaintiffs filed a notice of motion for new trial or alternatively for reconsideration, which included additional evidence. The motion principally claimed that both the trial court and this court had failed to recognize the theory of respondents’ direct liability, for negligence in training and certifying Ghazarian as a tow truck driver. The trial court denied the motion, and plaintiffs filed their notice of appeal.
Among other things, the orders stated that Ghazarian was not an employee of either respondent, because they had neither retained him nor exercised control over any aspect of his retention or employment by Delta. Hence, respondents could not be liable for negligent retention.
Plaintiffs have pursued this appeal only from the grants of summary judgment. Accordingly, the new evidence tendered on motion for new trial or reconsideration, after those grants, is not eligible for consideration. (E.g., Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891, fn. 3.)
DISCUSSION
We review the grants of summary judgment de novo. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476; Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767 (Saelzler.) In so doing, we follow the rules set forth in Code of Civil Procedure section 437c, as explicated in Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826 (Aguilar). In brief, to obtain summary judgment, respondents had to show either that one or more elements of plaintiffs’ claims could not be established, or that there existed a complete affirmative defense to those claims. (Code Civ. Proc., § 437c, subds. (a), (o)(1), (2), (p)(2).) Respondents could do this by advancing evidence that either negatived the claim or element, showed that plaintiffs had insufficient evidence to establish it, or established the complete defense. (Ibid.) Respondents bore the burden of persuading the court to this effect. (Aguilar, at p. 850.)
Moreover, respondents had the initial burden of producing evidence sufficient to make a prima facie showing, i.e., one that would require a trier of fact to find in their favor, more likely than not, on the issue in question. (Aguilar, supra, 25 Cal.4th at pp. 850-851.) If they did, then the burden would shift to plaintiffs, to produce evidence establishing a triable issue of material fact, i.e., a prima facie case that would support a jury finding in plaintiffs’ favor under the applicable burden of proof. (Ibid.) In determining whether these burdens were met, we view the evidence in the light most favorable to plaintiffs, as the nonmoving parties, liberally construing their evidence while strictly scrutinizing respondents’. (Id. at p. 856; Saelzler, supra, 25 Cal.4th at p. 768.)
Appellants do not contend that either the trial court or this court erred in concluding that the causes of action against respondents were not tenable on grounds of actual agency, ostensible agency, or joint venture. Rather appellants assert that either defendants did not sustain their initial summary judgment burden, or there were yet triable issues, regarding liability based on respondents’ having negligently trained Ghazarian as a tow truck driver, or negligently “screened” and certified him to the same end. These contentions unfounded.
Plaintiffs’ argument that respondents did not negative the complaint’s allegations of failure to adequately train employees (i.e., Ghazarian) is mistaken. Respondents showed these allegations to be unfounded, by presenting evidence that ACSC was not Ghazarian’s employer, and that it stood in an independent contractor relationship with his actual employer, Delta. Classically, one who engages an independent contractor assumes no duty to the public to ensure that the contractor or its employees do not cause injury. (Privette v. Superior Court (1993) 5 Cal.4th 689, 693.) This rule necessarily excludes a duty to train the contractor’s employees to protect from such injury.
Appellants’ arguments that there yet were triable issues with regard to negligent training by ACSC are also unavailing. The evidence – principally Ghazarian’s deposition excerpts – did show that ACSC conducted two-day courses resulting in a certificate, which contractors’ employees had to obtain in order to perform roadside assistance for ACSC members. From this evidence, appellants urge there was a triable issue that ACSC undertook to train Ghazarian as a driver for Delta, and therefore assumed a duty of care to third persons. Plaintiffs rely on section 324A of the Restatement Second of Torts, which provides for liability, under certain conditions, by persons who undertake to render services to another. (See Paz v. State of California (2000) 22 Cal.4th 550, 558-560.) But there was no support for this theory here. Whether there was such an undertaking, sufficient to give rise to a duty of care, is a legal question. (Artiglio v. Corning Inc. (1998)18 Cal.4th 604, 615.) The evidence did not reflect that ACSC’s classes stemmed from an undertaking to perform a function of and for Delta, as opposed to ACSC’s own benefit. Nor was there any showing that the classes constituted driver training, as contrasted with instruction in the operations and niceties of roadside assistance. Appellants’ negligent undertaking theory lacks underpinning.
The same is true of appellant’s reply brief argument based on the Restatement Second of Torts section 414, which provides that “[o]ne who entrusts work to an independent contractor, but retains control over any part of the work, is subject to liability for physical harm to others . . . caused by his failure to exercise his control with reasonable care.” The evidence did not show control by respondents of Delta’s performance of its work, and appellants’ terming the classes and certification as constituting such control is artificial. (See Zamudio v. City and County of San Francisco (1999) 70 Cal.App.4th 445, 453.) Furthermore, in the context of injury to a subcontractor’s employee, liability under Restatement Second section 414 has been held to require that the hirer have exercised control in a fashion that affirmatively contributes to the injury. (Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 210-215.)
Appellants also claim that there were triable issues of negligently screening and certifying Ghazarian. In this respect, the complaint referred only to screening, not certifying, and therefore respondents were not obligated to negative the latter. But even if both are considered, just as the complaint charged “improper screening of potential employees,” appellants argue by reference to employers’ duties in hiring personnel. That analysis fails, because here Ghazarian was not an employee of either ACSC or AAA.
Appellants nonetheless contend that respondents had a duty of care in screening the employees of others for qualification as drivers. Appellants rely on Morris v. JTM Materials, Inc. (Tex.App. 2002) 78 S.W.3d 28 (JTM), in which a motorist suffered an accident with a truck that was leased to and utilized by an interstate carrier, but driven by an employee of the truck’s owner-lessor. On a cause of action against the carrier for negligent hiring, the court reversed a summary judgment for the carrier, notwithstanding the driver was not its conventional employee. Federal regulations established “a statutory employee relationship between the employees of the owner-lessors and the lessee-carriers.” [Citations.] (Id. at pp. 38-39.) And in this instance, the carrier had actually qualified the driver for employment – conducting background checks on which the lessor had relied – and had retained control over the driver’s hiring. (Id. at pp. 49-50.) From all these factors, the court found a duty of care with respect to that hiring. (Id. at p. 50.) The situation shown in the present case does not resemble the unusual circumstances present in JTM Materials.
For the foregoing reasons, appellants failed to establish a triable issue, as claimed, against ACSC and AAA. Although our discussion has principally referred to ACSC, its conclusions apply to AAA also. Indeed, AAA’s case for summary judgment was even stronger, because AAA showed even greater factual and legal disconnection from Ghazarian and Delta, and could nowise be claimed to have hired either of them.
DISPOSITION
The judgments are affirmed.
We concur: RUBIN, J., FLIER, J.