Opinion
B321596
10-18-2024
SARMEN ESSAGHOLIAN, Plaintiff and Appellant, v. LETTER FOUR, INC., et al., Defendants and Respondents.
Heidari Law Group, Sam Ryan Heidari, and Mitch Oviedo for Plaintiff and Appellant. LloydWinter, Jody L. Winter, Jennifer J. Panicker, and Sean A. Fredin for Defendants and Respondents.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. 20STCV38239, William A. Crowfoot, Judge. Affirmed.
Heidari Law Group, Sam Ryan Heidari, and Mitch Oviedo for Plaintiff and Appellant.
LloydWinter, Jody L. Winter, Jennifer J. Panicker, and Sean A. Fredin for Defendants and Respondents.
KLINE, J. [*]
As relevant to this appeal, appellant Sarmen Essagholian filed a complaint for negligence and negligent hiring against respondents Letter Four, Inc., Jeremy Baker, and Lauren Adams. Essagholian alleged that a vehicle driven by "Alfred Jr. Anderson" [sic] (Anderson) hit a vehicle driven by Essagholian, and that respondents were liable for Anderson's actions because Anderson was their employee or agent.
Respondents moved for summary judgment, alleging that they had no relation with Anderson. They supported their motion in part with declarations previously filed in the case, which they asked the trial court to judicially notice. The trial court granted the motion for summary judgment and Essagholian appealed.
On appeal, Essagholian argues that: (a) the court erred in overruling his objections to its consideration of the judicially noticed declarations, because a court may not judicially notice the truth of factual allegations contained within a pleading; and (b) there existed a triable issue of fact as to whether Anderson was respondents' agent. Finding no error, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
We limit our summary to the facts and procedural history relevant to the issues raised on appeal.
A. Essagholian Files a Complaint
In October 2020, Essagholian filed a complaint against respondents, Anderson, Shieda Monique Brown Anderson (Brown), and Willie D. Campbell, regarding a February 2019 traffic accident that occurred at the intersection of Smiley Drive and Genesee Avenue in Los Angeles. Essagholian alleged that he was driving east on Smiley Drive when Anderson, who was driving south on Genesee Avenue, "failed to exercise due care and carelessly proceeded through the intersection[,] failing to stop at the stop sign[,] and violently struck Plaintiff ESSAGHOLIAN's vehicle." Essagholian claimed that Brown owned the vehicle Anderson was driving. He also alleged that Letter Four was a California corporation, that Baker and Adams were managers and members of Letter Four, and that Campbell owned the real property where "Defendants" worked at the time of the accident. He additionally alleged that Anderson was an "agent, employee, or servant" of Letter Four, Adams, Baker, and Campbell, and was employed by "Defendants" at the time of the accident.
Based on these allegations, Essagholian alleged a cause of action for negligence against all defendants, a cause of action for negligent entrustment against Brown, and a cause of action for negligent hiring, supervision, or retention of employee against respondents and against Campbell.
B. Respondents Move for Summary Judgment
In December 2021, respondents moved for summary judgment. While the "Notice of Motion" indicated that the motion was based in part on a "memorandum of points and authorities," such a memorandum does not appear in the appellate record. However, respondents' Separate Statement of Undisputed Facts included that Anderson was not an employee or agent of respondents and was not driving the car on respondents' behalf or at their request. Respondents also did not own the car. These facts were supported by reference to declarations of Baker, Adams, and Anderson that respondents asked the court to judicially notice. Specifically, filed simultaneously with the summary judgment motion, was a request for judicial notice, asking the court to take notice of an August 2021 declaration signed by Baker in support of a motion for sanctions, an August 2021 declaration signed by Adams in support of a motion for sanctions, and a June 2021 declaration signed by Anderson.These declarations were all filed in this case.
While the caption page to Anderson's declaration does not specify what motion it was supporting, it was served on the same day as the Baker and Adams declarations.
Baker's declaration stated that he was the Chief Financial Officer and co-owner of Letter Four, that neither he nor Adams had hired Anderson, that he did not know of Anderson's existence until he was served with the complaint, and that Letter Four owned no company cars. The declaration also attached lists showing Letter Four's employees and independent contractors and averred that Anderson's name did not appear on these lists. Adams's declaration stated she was the Chief Executive Officer and co-owner of Letter Four and similarly claimed neither she nor Baker had ever hired Anderson, and in fact did not know of his existence until she was served with the complaint. She also confirmed Letter Four owned no company cars. Finally, Anderson's declaration stated that he had never worked for or been hired by Letter Four, had never heard of Letter Four, Baker, or Adams until being served with the complaint, and had never driven a van with Letter Four's logo.
Respondents also attached discovery responses from Essagholian, stating that the facts supporting his assertion of respondents' liability were that the accident occurred "near a Letter Four, Inc. construction site" and that Essagholian "believes that Alfred Anderson is affiliated with or otherwise an agent of Letter Four because he was observed at the construction site."
C. Essagholian Opposes the Motion
Essagholian disputed respondents' assertion that Anderson was not an employee or agent based on the facts that: (1) Essagholian saw "an Ohm meter, electrical wires, plugs, and boxes used for the construction of homes inside" Anderson's car on the day of the accident; and (2) the day after the accident, Essagholian saw Anderson "inside the gated worksite of LETTER FOUR, INC. on Genesee Avenue," which was "approximately 5 or 6 houses away from the scene of the accident." Specifically, he saw Anderson "enter the house under construction by" Letter Four and saw Anderson "close[] the door with two other workers on the construction site." When Essagholian saw Anderson, Anderson "covered his face, and a worker made a statement to . . . Anderson about the Plaintiff, 'is he the same one you were referring to.'" Essagholian added that, on the day of the accident, Anderson said that he was leaving work to go have lunch. Anderson had "previously provided services in electrical work," had an "electrical certificate," had "worked in construction," and would "wire homes." He also could not remember all the companies he worked for in 2019 and was frequently paid in cash.
Essagholian additionally claimed that there were Letter Four employees, contractors, subcontractors, and employees of the subcontractors at the Letter Four construction site, and complained that Baker "generated a list of employees and subcontracts but the list of contractors and subcontractors were not provided to Plaintiff's Counsel."
Based on these facts, Essagholian argued that "Anderson was an agent of Letter Four, Inc. based on actual or ostensible authority." (Capitalization removed.)
Along with his opposition, Essagholian objected to respondents' request for judicial notice, contending that "[w]hile a Court may take judicial notice of the existence of a document in a Court file, it cannot take judicial notice of [the] truth of factual findings made in another action, or notice of [the] truth of statements even in the same action that were not reduced to an order or final disposition."
In respondents' reply, they argued that there was no evidence Anderson was their employee, and they had no liability for the actions of a subcontractor or a non-employee agent. They also argued there was no evidence that respondents did anything to cause Essagholian to believe Anderson was their agent. Lastly, they argued that even if Anderson were an employee, he was not working within the scope of his employment when the accident occurred because-citing Essagholian's evidence- Anderson was leaving work to go to lunch when the accident happened, and therefore respondents were not liable for the accident.
D. The Court Grants Summary Judgment
In April 2022, the court granted respondents' motion for summary judgment. First, the court overruled Essagholian's objections to its judicial notice of previously filed declarations, holding that the court was "permitted to take judicial notice of the sworn statements previously submitted by Defendants." After finding that respondents had established "a prima facie case that there are no triable issues of material fact," the court found that Essagholian's facts-seeing electrical equipment in Anderson's vehicle, seeing Anderson at Letter Four's worksite on Genesee, and the alleged behavior of Anderson and the workers there-were "insufficient to raise a triable issue regarding any agency relationship between Defendants and Anderson." It also held that "even if Anderson were a subcontractor or a crew member of a subcontractor, that is insufficient to impart liability upon Defendants as a matter of law" and that respondents would not be liable "for the acts of a nonemployee agent."
The court noted respondents' argument that "even if Anderson were an employee, the fact that the accident occurred after he left the worksite in order to go home and 'have lunch' means that he was not acting within the course and scope of his employment at the time of the accident." It then concluded that Essagholian "has not met his burden to raise a triable issue of material fact" and that there was "insufficient evidence to show that there was any kind of relationship between Anderson and Defendants which would impose vicarious liability upon Defendants for Anderson's actions."
After the court denied a motion for reconsideration, Essagholian timely appealed a "Judgment after an order granting a summary judgment motion."
DISCUSSION
"We review a grant of summary judgment or summary adjudication de novo and decide independently whether the facts not subject to triable dispute warrant judgment for the moving party or a determination a cause of action has no merit as a matter of law." (Husman v. Toyota Motor Credit Corp (2017) 12 Cal.App.5th 1168, 1179 (Husman).) "The trial court's stated reasons for granting summary judgment are not binding on us because we review its ruling, not its rationale." (Kids' Universe v. In2Labs (2002) 95 Cal.App.4th 870, 878.)
"When a defendant moves for summary judgment in a situation in which the plaintiff would have the burden of proof at trial by a preponderance of the evidence, the defendant may, but need not, present evidence that conclusively negates an element of the plaintiff's cause of action. Alternatively, the defendant may present evidence to' "show[] that one or more elements of the cause of action . . . cannot be established" by the plaintiff.'" (Husman, supra, 12 Cal.App.5th at pp. 1179-1180.) "Once the defendant's initial burden has been met, the burden shifts to the plaintiff to demonstrate, by reference to specific facts, not just allegations in the pleadings, there is a triable issue of material fact as to the cause of action." (Id. at p. 1180.)
A. The Court Did Not Err in Overruling Essagholian's Evidentiary Objections
A motion for summary judgment "shall be supported by affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken." (Code Civ. Proc., § 437c, subd. (b)(1).) Here, respondents supported their motion in part with the declarations of Baker, Adams, and Anderson, filed in the same case several months prior. Essagholian objected to these declarations, arguing that "[w]hile a Court may take judicial notice of the existence of a document in a Court file, it cannot take judicial notice of [the] truth of factual findings made in another action, or notice of [the] truth of statements even in the same action that were not reduced to an order or final disposition." The trial court overruled these objections, finding that it was "permitted to take judicial notice of the sworn statements previously submitted by Defendants."
On appeal, Essagholian renews his contention that the court erred in considering these declarations, arguing that the court "improperly took judicial notice of the factual allegations contained within said declarations." We disagree.
First, the summary judgment statute states that the motion may be supported by "declarations." (Code Civ. Proc., § 437c, subd. (b)(1).) Although we recognize that such declarations are typically filed contemporaneously with the summary judgment motion, we are aware of no authority that states the motion cannot be supported by declarations previously filed. Essagholian does not dispute that the declarations were filed in the same action by respondents several months before they filed the motion for summary judgment, and we see no reason why respondents could not have relied on the sworn statements contained therein as support for their motion (much like parties often rely on sworn deposition statements taken before the motion is filed or perhaps even contemplated).
Second, Essagholian contends that a court may not judicially notice the truth of statements contained in other pleadings. But the trial court was not judicially noticing the indisputable truth of the sworn factual statements themselves, but rather the fact that the declarants had made certain factual allegations under penalty of perjury. In other words, the trial court did not improperly judicially notice the declarations as indisputable proof that Letter Four did not hire Anderson in any capacity but rather as evidence that three individuals-Baker, Adams, and Anderson himself-had made a sworn statement that Letter Four did not hire Anderson in any capacity. Essagholian remained free to dispute whether Letter Four had hired Anderson by submitting his own evidence on that issue. The prior declarations were evidence the court could consider in ruling on a summary judgment motion along with any evidence Essagholian himself submitted.
B. There Is No Triable Issue of Fact as to Respondents' Liability for Anderson's Actions "Under the doctrine of respondeat superior, an employer is liable for the torts of his employees committed within the scope of their employment." (Ducey v. Argo Sales Co. (1979) 25 Cal.3d 707, 721.) "A plaintiff suing an employer under the doctrine must prove the person who committed the tort was acting within the scope of his or her employment." (Moreno v. Visser Ranch, Inc. (2018) 30 Cal.App.5th 568, 576.)" 'Generally, the issue of scope of employment is a question of fact. [Citation.] However, the issue becomes a question of law when the facts are undisputed and no conflicting inferences are possible.'" (Tryer v. Ojai Valley School (1992) 9 Cal.App.4th 1476, 1480.)
1. Respondents Are Not Liable for Anderson's Actions Because He Was Going Home for Lunch
In opposing respondents' motion for summary judgment, Essagholian proffered evidence that, at the time of the accident, Anderson was going home for lunch. No one has disputed this evidence. Both in the proceedings below and on appeal, respondents have pointed out that, if Anderson was going home for lunch, then even if he were respondents' employee or agent, they would still not be liable for the accident. (See Peccolo v. Los Angeles (1937) 8 Cal.2d 532, 539 [" 'It is well settled by the authorities that an employee, while taking time away from his work for meals, is not in the service of his employer and that the latter therefore is not responsible for negligence of the employee during such periods of absence from work' "]; Martinelli v. Stabnau (1935) 11 Cal.App.2d 38, 40 ["The case presents the sole question whether the employee, while on his way home to lunch, was acting in the service of his employer and not solely in his own behalf, while he was doing no act or thing which pertained to the business of his employer. The question contains its own answer. The finding we have quoted is conclusive as to the question of fact involved. The servant was not at the time of the accident actually performing any service for his employer. Therefore the latter was not responsible for his acts"].)
In its ruling, the trial court noted the argument that "even if Anderson were an employee, the fact that the accident occurred after he left the worksite in order to go home and 'have lunch' means that he was not acting within the course and scope of his employment at the time of the accident." On appeal, Essagholian admits Anderson stated he was going home for lunch when the accident occurred; Essagholian cites no evidence to the contrary. Nevertheless, Essagholian wholly fails to address this issue or the authorities respondents cited in support of their contention. We conclude that, even if Anderson were respondents' agent or employee, they would not be liable for his actions at the time of the accident, and the court therefore did not err in granting summary judgment.
2. There Is No Triable Issue of Fact as to Anderson Being Respondents' Agent
The trial court held that Essagholian failed "to raise a triable issue regarding any agency relationship between Defendants and Anderson," finding insufficient Essagholian's evidence that Anderson had electrical equipment, that Essagholian saw Anderson inside of a gated Letter Four worksite near the accident site, that Anderson closed the door with two other workers there, that Anderson covered his face after he saw Essagholian, or that some worker allegedly heard someone say to Anderson "is he the same one you were referring to." Essagholian disagrees, arguing that these facts "provide overwhelming evidence of ostensible agency in Anderson" and that therefore "issues of material fact exist as to the ostensible agency and authority of Anderson on behalf of the Appellees" and "[s]uch ostensible agency would allow the Appellant to prove the elements of negligence." We agree with the trial court.
That Anderson was at Letter Four's jobsite and appeared to know the workers there does not contradict respondents' evidence that neither Letter Four, nor Baker, nor Adams had ever hired Anderson, or knew who he was. At most, Essagholian's evidence permitted a reasonable inference that Anderson was working for or working with one of the subcontractors at the construction site. But "[a]s a general rule no liability is imposed upon a general contractor for injuries caused by the negligence of the subcontractor or an employee of the subcontractor." (Anderson v. Chancellor Western Oil Dev. Corp. (1975) 53 Cal.App.3d 235, 239; see also Van Den Eikhof v. Hocker (1978) 87 Cal.App.3d 900, 905 ["ordinarily a principal is not liable for physical harm caused by the negligent physical conduct of a nonservant agent even during the performance of the principal's business"].) And while there are exceptions to the general rule, Essagholian invokes none of them, much less proves their application.
Moreover, as Essagholian acknowledges, "[a]n agency is ostensible when the principal intentionally, or by want of ordinary care, causes a third person to believe another to be his agent who is not really employed by him." (Civ. Code, § 2300; see also People v. Surety Insurance Co. (1982) 136 Cal.App.3d 556, 562 ["Ostensible authority is not established by the statements and representations of the agent. It is created only by the acts or declarations of the principal"].) Essagholian cites to nothing that any of the respondents intentionally, or by want of ordinary care, did to cause him to believe that Anderson was their agent.
While Essagholian argues in his reply brief that Anderson "operate[d] an automobile that advertised services for the Respondent/Defendant," he cites to nothing in the record to support this allegation and our independent review of the record reveals no such support. To the contrary, the only evidence on the issue is a sworn statement from Anderson that he was not driving a vehicle that advertised Letter Four.
To the extent Essagholian attempts to argue that respondents caused him to believe Anderson was their agent by permitting Anderson to be at the construction site," '[l]iability of the principal for the acts of an ostensible agent rests on the doctrine of "estoppel," the essential elements of which are representations made by the principal, justifiable reliance by a third party, and a change of position from such reliance resulting in injury.'" (Kaplan v. Coldwell Banker Residential Affiliates, Inc. (1997) 59 Cal.App.4th 741, 747.) Essagholian does not explain how respondents permitting Anderson to enter the construction site the day after the accident could have caused Essagholian to change his position in a way that resulted in the car accident the day before.
We hold that the trial court did not err in concluding that there was no triable issue of fact as to whether respondents were liable for Anderson's actions, and that the court correctly concluded that respondents were not.
DISPOSITION
The trial court's grant of summary judgment is affirmed. Respondents are awarded their costs on appeal.
We concur: ROTHSCHILD, P. J. WEINGART, J.
[*]Retired Justice of the California Court of Appeal, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.