Opinion
B211873 No. LC078530
09-10-2010
PAUL T. VERTULLO et al., Plaintiffs and Appellants, v. L.A. CARS WAREHOUSE, Defendant and Respondent.
Brice E. Bryan & Associates, Brice E. Bryan, Penny L. Wheat and Christopher J.Brantingham for Plaintiffs and Appellants.Summers & Shives, Martin L. Shives and Sandra P. Llaneta for Defendant andRespondent.
Brice E. Bryan & Associates, Brice E. Bryan, Penny L. Wheat and Christopher J. Brantingham for Plaintiffs and Appellants.
Summers & Shives, Martin L. Shives and Sandra P. Llaneta for Defendant and Respondent.
APPEAL from the judgment of the Superior Court of Los Angeles County. Richard Adler, Judge. Affirmed in part, reversed in part and remanded.
GRIMES, J.
Walter Hanley (Hanley) was involved in a traffic accident with plaintiff Paul Vertullo (plaintiff). Hanley was driving a used pickup truck he bought from defendant L.A. Cars Warehouse, Inc. (defendant) less than two months earlier. Hanley had entered into a conditional sales contract with defendant, made a down payment, applied for financing, and drove off the lot in the truck. But he did not qualify for financing, and defendant was unable to repossess the truck before the accident. Plaintiff sued Hanley, Federal Express, and defendant, alleging defendant was liable for negligence, negligent entrustment, and as an owner under Vehicle Code section 17150. Plaintiffs wife also sued defendant for loss of consortium. Defendant moved for summary judgment or, in the alternative, for summary adjudication of the first and second causes of action. The trial court granted summary judgment. The focus of this appeal is whether there are triable issues as to defendants liability as an owner of the truck.
We address the loss of consortium claim in section 6 of the discussion below and otherwise refer only to Paul Vertullo as "plaintiff."
THE SUMMARY JUDGMENT MOTION
1. The undisputed facts
Hanley signed a retail installment sales contract for the purchase of a 2000 Chevrolet S10 pickup truck from defendant on May 22, 2005. Hanley met with the assistant to the finance manager, Ingrid Franko, and permitted her to make copies of his drivers license and Social Security card. Defendant obtained an Experian credit report on Hanley. In addition to speaking with him personally, Ms. Franko observed Hanleys interaction with the salespeople during the transaction. Nothing that she observed caused her to question Hanleys fitness or competence to drive. The subject of Hanleys driving record was not discussed during the transaction. Hanley paid $700 cash as a down payment toward the purchase.
Defendant never transferred title to Hanley because he did not qualify for a loan. After defendant tried without success to get Hanley to return the truck, the dealer engaged repossession agents to take it. Before the truck was repossessed, on July 13,
2005, Hanleys truck collided with the Fed Ex delivery truck driven by plaintiff, causing injuries. A police officer reported to the scene and filed a traffic collision report, listing the same drivers license number for Hanley as the one he had shown defendant. The officer took statements from plaintiff and Hanley but apparently did not issue a citation to either driver.
Plaintiff objected to the police report as hearsay, and the court sustained the objection. However, plaintiff attached the police report as an exhibit in support of the opposition. The trial court properly considered the police report, as it was obligated to consider all the admissible evidence. (Code Civ. Proc., § 437c, subd. (c).)
Plaintiff opposed the motion with evidence of the credit report defendant had received before Hanley drove off the lot with the truck. In the top portion of the first page of the credit report, the name "Walter H. Chamberlain" appears, followed by two addresses in Portland, Oregon, and beneath the addresses, the name "Walter Hanley." Plaintiff also offered the opinion of Robert N. Gale, a forensic scientist who has extensive experience in law enforcement and as a security consultant. Mr. Gale researched the public records of Walter Chamberlains driving history in Oregon and discovered numerous offenses, including driving under the influence, reckless driving, driving uninsured, failure to obey a traffic control device, and other offenses. Based on his review of documents obtained in discovery and his interview of plaintiff, Mr. Gale opined the collision was caused by "Walter Chamberlains" negligence and that "Chamberlain" was an unfit, incompetent, and reckless driver.
2. The inadmissible expert opinions
Defendant objected to the Gale declaration as irrelevant, lacking foundation, and relying on mischaracterized deposition testimony, hearsay, and speculation. Defendant also objected that Gale did not opine, and offered no foundation for the opinion that defendant knew or should have known that Hanley was unfit to drive. The trial court issued a lengthy order granting summary judgment, reciting the evidence, ruling on the objections to evidence, and thoroughly explaining its reasoning. In its order, the trial court initially stated it overruled all of defendants objections to plaintiffs evidence.
However, in the portion of the order analyzing the plaintiffs proffered expert testimony, the trial court found that what defendant knew or should have known was outside the scope of admissible expert testimony. In addition to the Gale declaration, plaintiff offered the declaration of David A. Stivers, an auto industry consultant, who opined defendant should have known Hanleys true name was Chamberlain and that his drivers license was false and invalid.
The trial court found the expert opinions that Hanleys drivers license was invalid to be a legal conclusion without foundation and entitled to no weight. The court reasoned, "At best Gale merely establishes that Hanley has an alias. No witness from Experian was called to explain the meaning of the report or how or why Hanley and Chamberlin [sic] were on the same report. Using an alias is not necessarily illegal and, in any regard, is not an indication that Hanley was an incompetent driver. Further, there is no evidence, other than inadmissible legal conclusions, that Defendant would be able to determine Hanleys license was invalid based upon the Experian report."
DISCUSSION
1. Standard of review
Our Supreme Court has said that the purpose of the 1992 and 1993 amendments to the summary judgment statute was "to liberalize the granting of motions for summary judgment." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.) "It is no longer called a disfavored remedy. It has been described as having a salutary effect, ridding the system, on an expeditious and efficient basis, of cases lacking any merit." (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 248.) On appeal, "we take the facts from the record that was before the trial court.... [Citation.] "We review the trial courts decision de novo, considering all the evidence set forth in the moving and opposing papers except that to which objections were made and sustained." " (Yanowitz v. LOreal USA, Inc. (2005) 36 Cal.4th 1028, 1037.)
2. Evidence in support of and in opposition to a summary judgment motion must be admissible, just like at trial.
The same rules of evidence that apply at trial also apply to the declarations submitted in support of and in opposition to motions for summary judgment. Declarations must show the declarants personal knowledge and competency to testify, state facts and not just conclusions, and not include inadmissible hearsay or opinion. (Code Civ. Proc., § 437c, subd. (d); DiCola v. White Brothers Performance Products, Inc. (2008) 158 Cal.App.4th 666 (DiCola) [affirming summary judgment where trial court properly sustained hearsay objections].) The declarations in support of a motion for summary judgment should be strictly construed, while the opposing declarations should be liberally construed. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 758.) This does not mean that courts may relax the rules of evidence in determining the admissibility of an opposing declaration. Only admissible evidence is liberally construed in deciding whether there is a triable issue.
3. An experts declaration must provide a foundation establishing expertise in an area beyond a laypersons knowledge.
An expert declaration is admissible to support or defeat summary judgment if the experts testimony would be admissible at trial in accordance with Evidence Code section 720. An expert may testify to an opinion on a subject "that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact." (Evid. Code, § 801, subd. (a).) We review the trial courts rulings on evidentiary objections for an abuse of discretion. (DiCola, supra, 158 Cal. App.4th at p. 679.)
We interpret the trial courts statement that it overruled all defendants objections to evidence, followed by the rulings that certain expert opinions were inadmissible, to mean the trial court admitted all plaintiffs evidence, including the expert opinions, except the portions of the expert opinions offered to prove what defendant knew or should have known and other inadmissible legal conclusions. The trial court did not abuse its discretion in excluding these portions of the expert opinions. Expert opinion is not required to decide whether the true identity of the purchaser of the truck was Walter Hanley or Walter Chamberlain, or to prove what defendant knew or should have known.
(People v. Torres (1995) 33 Cal.App.4th 37, 45 ["Expert opinion is not admissible if it consists of inferences and conclusions which can be drawn as easily and intelligently by the trier of fact as by the witness"].)
4. There is no material disputed fact as to the negligence or negligent entrustment causes of action.
The first cause of action for negligence and the second cause of action for negligent entrustment were based on the same allegations that defendant negligently entrusted the truck to Hanley. Defendant argued, and the trial court found, plaintiff did not demonstrate there was a triable issue of fact as to the essential element of negligent entrustment that defendant knew or should have known Hanley was unfit to drive. (Dodge Center v. Superior Court (1988) 199 CalApp.3d 332, 338 (Dodge) [Veh. Code, § 14606, subd. (a), and its predecessors "make a motor vehicle owner who knowingly entrusts his vehicle to an unlicensed driver liable for a third partys injuries caused by the drivers negligence. [Citations.] The cause of action parallels that at common law for negligent entrustment, resting on a demonstration of knowing entrustment to an incompetent or dangerous driver with actual or constructive knowledge of his incompetence"].)
The trial court properly found there was no evidence defendant knew Hanley was unfit or incompetent to drive. Nothing was said about his driving record during the transaction at the dealership, Hanley behaved normally, and there was nothing unusual about the way he drove the truck off the lot. Defendant provided evidence that Hanley presented what appeared to be a valid California drivers license and a Social Security card with the same name as that which appeared on the drivers license. The police report of the accident with plaintiff reflected the same name and drivers license number without any indication the investigating officer suspected the license was invalid. The police report is strong circumstantial evidence that nothing about Hanleys drivers license would put a reasonable auto dealer on notice that it was or might be invalid.
In any event, it is well established that an auto dealer in a sales transaction has no duty to inquire about the license status of a purchaser and may not be held liable for negligent entrustment even if the purchaser has no license at all. (Dodge, supra, 199 Cal.App.3d at pp. 341-342 [negligent entrustment "requires demonstration of actual knowledge of facts showing or suggesting the drivers incompetence--not merely his lack of a license"].) Plaintiff argues the Gale declaration creates a material dispute whether defendant knew or should have known Hanley was using a fake identity since the credit report referred to "Walter H. Chamberlain." However, the trial court properly found the Gale declaration was inadmissible to prove what defendant knew or should have known.
Plaintiff also argues defendant knew Hanley had a problem with his credit, but an auto dealers knowledge a customer has a credit problem does not give the dealer actual or constructive knowledge the customer is a dangerous driver. Put differently, assuming defendant knew Hanley had a credit problem before he drove off the lot with the truck, defendant had no resulting duty to investigate Hanleys driving history because there is no logical relation between poor credit and reckless driving. In any event, as established in Dodge, an auto dealer in a sales transaction has no duty of inquiry as to the purchasers drivers license status or driving record before selling a vehicle. (Dodge, supra, 199 Cal.App.3d at p. 342 ["To impose on Dodge... a duty of inquiry as to the purchasers drivers license status, would not only be without precedent, but would also violate the general principle that it may be presumed that every person will obey the law. [Citations.][¶]...[¶] We conclude Dodge owed no legal duty to plaintiffs to inquire into [buyers] driving record before selling him a vehicle"].)
Plaintiff argues Dodge does not apply to the facts of this case, because in Dodge, the buyer completed the purchase, whereas here, Hanley did not qualify for financing, and defendant never transferred title to Hanley. Plaintiff is correct that Dodge is factually distinguishable on this basis, but it is a distinction without a difference insofar as the negligence causes of action. Plaintiff argues since defendant never transferred title, the transaction was transformed into a loan, and as an automobile lender, defendant violated the duty to inquire whether Hanley had a valid license. (Hartford Accident & Indemnity Co. v. Abdullah (1979) 94 Cal.App.3d 81, 92 ["We think it clear that ordinary care and skill on the part of a used car dealer requires inquiry of persons wishing to test drive the dealers cars as to whether or not they are validly licensed drivers"].) Plaintiff argues the Stivers declaration creates a material dispute whether the transaction was a loan because Stivers opined the sale was a " sham " and "not a real deal because based on Walter Chamberlain using the false identity of Walter Hanley the deal was not approvable by any financial institution."
The trial court properly found expert testimony was inadmissible to prove either that Hanley was not using his proper name or that the retail installment sales contract did not constitute a sale. As to the nature of the transaction, the trial court properly found Stiverss views on questions of law were improper legal conclusions. We agree with the trial court there is no evidence that Hanley was given the truck for the limited purpose of a test drive or leasing. The undisputed evidence is Hanley signed a conditional sales contract, made a cash down payment, and applied for financing to purchase the truck. We agree with the trial courts reasoning that "[s]imply because Defendant Hanley breached the written purchase agreement after he took possession of the automobile does not mean that the sale is retroactively transferred into a lending. " The transaction was a conditional sale subject to rescission if financing could not be obtained, and consequently, defendant had no duty to inquire into the validity of Hanleys drivers license or his driving record.
5. Defendant did not show there is no material dispute as to owners liability under the Vehicle Code section 17150 cause of action.
The third cause of action for owners liability is based on Vehicle Code section 17150, which imposes liability on any vehicle owner who permits another to drive the vehicle where the drivers negligence causes injury or death. Defendant did not move for summary adjudication of this cause of action. The trial court could have properly granted summary judgment if defendant had shown plaintiff could not prove defendant was an owner within the meaning of section 17150. Under certain circumstances, the seller of a vehicle under a conditional sales contract is not an owner for purposes of statutory permissive use liability unless and until the seller repossesses the vehicle. (See Veh. Code, § 17156.)
However, the seller of a vehicle remains exposed to permissive use liability until it has complied with the transfer of registration requirements of Vehicle Code section 5602 (delivery of the pink slip to the buyer or notice of transfer to the California Department of Motor Vehicles). (Stoddart v. Peirce (1959) 53 Cal.2d 105, 120, fn. 15 [construing predecessor statute to Veh. Code, § 17150]; Durbin v. Fletcher (1985) 165 Cal.App.3d 334, 341 ["For purposes of imposing liability under Vehicle Code section 17150, the transferor of an auto continues to be an owner unless he complies with the prerequisites of Vehicle Code section 5602"].) Defendant offered no evidence in support of its motion that it complied with the requirements of Vehicle Code section 5602. It appears from the declaration of Rene Khachatourian and his deposition testimony that defendant did not comply with section 5602 since Hanley did not qualify for financing. On this record, we cannot decide whether defendant is an owner within the meaning of the permissive use statutes, but we find defendant was not entitled to summary judgment because it did not demonstrate absence of a material dispute whether it is an owner.
6. Defendant did not move for summary adjudication of Mrs. Vertullos fourth cause of action for loss of consortium.
Defendant argued that its entitlement to judgment on all of plaintiffs claims barred Mrs. Vertullos claim for loss of consortium. It is true that "an unsuccessful personal injury suit by the physically injured spouse acts as an estoppel that bars the spouse who would claim damages for loss of consortium." (Meighan v. Shore (1995) 34 Cal.App.4th 1025, 1034-1035. Since we have found defendant was not entitled to summary judgment and defendant did not move for summary adjudication of the fourth cause of action, we must reverse the judgment against Mrs. Vertullo. The parties did not address the question whether Mrs. Vertullo has a claim for loss of consortium where there is no surviving tort claim and only a statutory permissive use claim. For that reason, we express no view whether Mrs. Vertullo may pursue her cause of action, but leave it to the trial court to consider the appropriate disposition of this claim.
7. The court did not abuse its discretion in denying the motion for reconsideration.
Plaintiff moved for reconsideration on two grounds, that the court should consider the certified transcript of the deposition of a defense witness, and plaintiff had added Walter Hoyt Chamberlin as a doe defendant. The court found neither of these circumstances constituted new or different facts, circumstances or law justifying reconsideration of the summary judgment ruling. The court also noted plaintiff had submitted an unofficial transcript of the deposition in opposition to the summary judgment motion, which the court had apparently considered. We find no abuse of discretion in the order denying reconsideration.
DISPOSITION
Summary adjudication of the first and second causes of action is affirmed. The judgment is reversed as to the third and fourth causes of action and remanded for further proceedings. The parties shall bear their own costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
GRIMES, J.
We concur:
BIGELOW, P. J.
FLIER, J.