Ursula Norby vs Enrique Astorga-Sotelo et al

Case Number

22CV01342

Case Type

Hearing Date / Time

Mon, 07/01/2024 - 10:00

Nature of Proceedings

Motion: Summary Judgment

Tentative Ruling

Ursula Norby v. Enrique Astorga-Sotelo, et al.      

Case No. 22CV01342       

Hearing Date: July 1, 2024                                                     

MATTERS:             Defendant Restaurant Connection Of Santa Barbara, Inc.’s Motion For Summary Judgment Or, In The Alternative, Summary Adjudication

ATTORNEYS:        For Plaintiff Ursula Norby: Bradford D. Brown, Law Offices of Bradford D. Brown

For Defendant and Cross-Complainant Restaurant Connection of Santa Barbara, Inc.: Edward E. Sipes, Alicen Burtness, Christensen Hsu Sipes LLP

For Defendants Enrique Astorga-Sotelo, Luis Fernando Gonzalez-Salvador, and Delivery Drivers, Inc.: No appearances

TENTATIVE RULING:

The motion of defendant Restaurant Connection Of Santa Barbara, inc., for summary judgment or, in the alternative, summary adjudication, is denied.

Background:

Plaintiff Ursula Norby (Norby) filed a complaint in this matter on April 8, 2022, alleging two causes of action against defendants Enrique Astorga-Sotelo (Sotelo) and Luis Fernando Gonzalez-Salvador (Salvador) for motor vehicle and general negligence. As alleged in the complaint:

On May 11, 2020, Norby was traveling southbound in the number one or fast lane of U.S. Highway 101, 323 feet before South Padaro Lane, when Norby slowed for traffic ahead. (Compl., ¶¶ MV-1 & GN-1.) Salvador was traveling directly behind Norby, and Sotelo was traveling directly behind Salvador. (Id. at ¶¶ MV-2(a) & GN-1.) Norby was nearly at a stop when, without warning, Salvador and Sotelo slammed into the back of Norby’s vehicle causing injuries to Norby. (Id. at ¶ GN-1.) Sotelo and Salvador were driving too fast for the conditions in violation of Vehicle Code section 22350. (Id. at ¶ MV-2(f).)

On June 21, 2023, Norby filed an amendment to the complaint identifying Restaurant Connection of Santa Barbara, Inc. (Restaurant Connection) as defendant Doe 1 named in the complaint.

On August 7, 2023, Restaurant Connection filed an answer to the complaint generally denying its allegations and asserting thirty-one affirmative defenses.

Also on August 7, 2023, Restaurant Connection filed a cross-complaint against cross-defendant Delivery Drivers, Inc. (Delivery Drivers) alleging four causes of action: (1) equitable indemnity; (2) equitable apportionment; (3) implied contractual indemnity; and (4) declaratory relief. In the cross-complaint, Restaurant Connection alleges that on May 25, 2015, it entered into a contract with Delivery Drivers (the contract) for the delivery of certain goods and under which Delivery Drivers must defend and indemnify Restaurant Connection. (Cross-Compl., ¶¶ 10-11 & Exh. B.) Restaurant Connection further alleges that the claims alleged in the complaint of Norby arise from work performed or services provided by Delivery Drivers under the contract. (Id. at ¶ 9.)

On August 29, 2023, Norby filed an amendment to the complaint identifying Delivery Drivers as defendant Doe 2 named in the complaint.

On April 10, 2024, Restaurant Connection filed a motion for summary judgment on the grounds that the evidence in this matter establishes that it did not breach a duty or cause damage to Norby. Alternatively, Restaurant Connection seeks summary adjudication of the first and second causes of action alleged in the complaint on the grounds that it did not employ or control Sotelo or Salvador on the date of the collision in this matter.

The court has no record of any party to this matter having filed opposition to the motion of Restaurant Connection.

The following facts are not disputed. Restaurant Connection is a marketing service that coordinates deliveries from restaurants to consumers in Santa Barbara, Goleta, and Montecito. (Sep. Stmt., UMF No. 15 & evidence cited therein [Exh. 4 (Declaration of Saul Plasencia, Owner of Restaurant Connection)].) When consumers place orders with Restaurant Connection, a dispatcher will assign an available driver to deliver the order. (Id. at UMF No. 16 & evidence cited therein [Exh. 4].) Restaurant Connection has software that logs data, including delivery driver, order number, delivery time, delivery fee, tip, and date. (Id. at UMF No. 17 & evidence cited therein [Exh. 4].) Restaurant Connection can use this software to generate reports showing the dates each delivery driver works and the orders they delivered. (Id. at UMF No. 18 & evidence cited therein [Exh. 4].)

On May 25, 2015, Restaurant Connection entered into a written contract with Delivery Drivers (the contract), who employs drivers to deliver goods, under which Delivery Drivers was responsible for locating and employing or contracting with delivery drivers to deliver orders for Restaurant Connection. (Sep. Stmt., UMF Nos. 7-8, 10 & evidence cited therein [Exh. 3 (contract) & Exh. 4].) The contract was in effect on the date of the incident. (Id. at UMF No. 9 & evidence cited therein [Exhs. 3 & 4].)

Under the contract, the parties agreed that Restaurant Connection would have no employment or contractual relationship with the delivery drivers. (Sep. Stmt., UMF No. 11 & evidence cited therein [Exhs. 3 & 4].) The terms of the contract also provide that Delivery Drivers “shall screen all Delivery Professionals to ensure that they are legally able to work in the United States, to assure that they carry adequate auto liability insurance not less than the minimum amount required in the state where delivery services are to be provided. [Delivery Drivers] shall also assure that Delivery Professionals meet minimum standards set forth by the Company as set forth in Schedule 3.1.2.” (Id. at UMF No. 12 & evidence cited therein [Exhs. 3 & 4].) Further, the contract lays out the minimum standards for which Delivery Drivers was responsible including with respect to drivers’ licenses, equipment, and motor vehicle records. (Id. at UMF No. 13 & evidence cited therein [Exhs. 3 & 4].)

A Traffic Collision Report prepared by a California Highway Patrol officer states that that Sotelo caused the collision at issue when he drove his vehicle at an unsafe speed in violation of California Vehicle Code section 22350, and failed to safely slow, stop, or take evasive action. (Sep. Stmt., UMF No. 5 & evidence cited therein [Exh. 2 (Traffic Collision Report) at p. 8].) Though Sotelo was employed by Delivery Drivers to make deliveries for Restaurant Connection, Sotelo did not make any deliveries for Restaurant Connection on May 11, 2020, the date of the collision at issue. (Id. at UMF Nos. 1, 6, 14 & evidence cited therein [Exhs. 1 (complaint), 3, 4, & 5 (Restaurant Connection’s driver report for Sotelo)].)

Analysis:

A motion for summary judgment “shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Code Civ. Proc. § 437c, subd. (c).) “From commencement to conclusion, the moving party bears the burden of persuasion that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 845, 850 (Aguilar).)

A defendant moving for summary judgment bears the burden of persuasion that “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 the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, supra, 235 Cal.4th at p. 850, 853 [also noting that a defendant is not required to conclusively negate the element that defendant contends the plaintiff cannot establish].) A moving defendant also bears an initial burden of production to make a sufficient prima facie showing of the nonexistence of any triable issue of material fact. (Aguilar, supra, 25 Cal.4th at pp. 845, 850-851.)

If the moving defendant carries its burden of production, this “causes a shift, and the [plaintiff] 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.” (Aguilar, supra, 25 Cal.4th at p. 850.) The plaintiff must set forth specific facts showing that a triable issue of material fact exists. (Code Civ. Proc., § 437c, subd. (o).)

If the plaintiff fails to meet its burden of proof, the defendant will be entitled to judgment as a matter of law. (Saelzler v. Advanced Group 400 (2001) 35 Cal.4th 763, 780-781.) However, there is no obligation by the plaintiff to establish anything unless and until the defendant has by affidavit stated facts establishing every element necessary to sustain a judgment in its favor. (Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468.)

Motions for summary adjudication “proceed in all procedural respects as a motion for summary judgment.” (Code Civ. Proc., § 437c, subd. (f)(2); Oroville Hospital v. Superior Court (2022) 74 Cal.App.5th 382, 399.) “A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty….A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).)

The pleadings frame the issues to be considered on a motion for summary judgment. (Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1253.) In the complaint, Norby alleges that both Sotelo and Salvador were employed by Restaurant Connection and operated their respective vehicles in the course and scope of their employment and in a purportedly negligent manner so as to cause injury to Norby. (Compl., ¶¶ MV-2(a)-(c) & (e)-(f), GN-1.) Norby has identified named defendant Doe 1 as Restaurant Connection. With respect to allegations made against Doe 1 in the complaint, Norby alleges that both Sotelo and Salvador were employed by or the agents of Restaurant Connection and that the purportedly negligent acts of Restaurant Connection include operating, owning, maintaining, entrusting, and controlling the vehicles driven by Sotelo and Salvador. (Compl., ¶¶ MV-1(a)-(f) & GN-1.) Norby further alleges that these acts of Sotelo, Salvador, and Restaurant Connection were the legal or proximate cause of the injuries Norby sustained as a result of the collision. (Id. at ¶¶ MV-1 & GN-1.)

Restaurant Connection offers no information or evidence to show that Norby has in some manner limited the theories of liability alleged in the complaint or the facts upon which Norby relies in seeking to impose liability on Restaurant Connection.  (See, e.g., Memorandum at p. 8, ll. 9-16; Sep. Stmt., UMF Nos. 1-3 [setting forth allegations by Norby that “[d]efendants … negligently owned, operated, maintained, entrusted, and controlled the vehicles driven by [d]efendants so as to cause said vehicles to collide with [Norby]”].) Accordingly, Restaurant Connection bears the burden to negate all theories of liability alleged in the complaint. (Hedayati v. Interinsurance Exchange of the Automobile Club (2021) 67 Cal.App.5th 833, 846.)

The evidence offered by Restaurant Connection indicates that the California Highway Patrol officer who prepared the Traffic Collision Report further discussed above ostensibly obtained statements from the parties involved in the collision, observed damage to the involved vehicles, and determined that Sotelo caused the collision by driving his vehicle in violation of Vehicle Code section 22350. (See Exh. 3 at pp. 5 [statements obtained from Norby]; 6 [statements obtained from Salvador and Sotelo]; 8 [stating that violation of Vehicle Code by Sotelo caused collision].) The evidence also shows that, while Sotelo made deliveries for Restaurant Connection on May 9 and May 12, 2020, Sotelo did not deliver any orders for Restaurant Connection on May 11, 2020, the date of the collision. (See Exhs. 2 [setting forth date of collision]; 5 [Plasencia Decl., ¶ 11].)

To the extent the evidence, absent any objections to the Traffic Collision Report offered in support of the motion, is sufficient to show that Sotelo’s conduct was a substantial factor in causing Norby’s injuries (see Uriell v. Regents of University of California (2015) 234 Cal.App.4th 735, 744) and that Restaurant Connection did not own, operate, control, entrust, or maintain the vehicle driven by Sotelo because Sotelo did not make any deliveries for Restaurant Connection on the date of the incident, Restaurant Connection may be able to prove that Norby cannot establish the causes of action alleged against it based on a vicarious theory of liability for the conduct of Sotelo on the day of the collision. (See, e.g., John Y. v. Chaparral Treatment Center, Inc. (2002) 101 Cal.App.4th 565, 574-575 [where facts are not in dispute, the determination of whether acts are within the course and scope of employment is a question of law].)

Notwithstanding whether Restaurant Connection has met its burden with respect to any conduct by Sotelo, the complaint alleges that both Sotelo and Salvador caused the collision at issue. Even if the Court were to find that Restaurant Connection has sufficiently demonstrated for present purposes that it did not employ Sotelo or that Sotelo’s conduct was a substantial factor in causing harm to Norby, Restaurant Connection has not addressed whether Salvador was or was not also a joint tortfeasor in causing Norby’s injuries, or whether any conduct by Salvador was or was not a substantial factor in causing the collision and Norby’s resulting injuries. (See Newhall Land and Farming Co. v. McCarthy Const. (2001) 88 Cal.App.4th 769, 773-774.)

For example, though the Traffic Collision Report may be sufficient to show that that the preparing officer did not believe that Salvador violated any provisions of the Vehicle Code, this evidence alone is insufficient to permit the Court to conclusively determine for present purposes that Norby cannot establish a civil cause of action against Salvador based on any purportedly negligent conduct apart from a violation of the Vehicle Code. In this regard, Restaurant Connection offers no reasoned argument showing that Norby cannot establish a cause of action against Salvador based on purportedly negligent conduct or showing, to the extent any conduct by Salvador was otherwise negligent as alleged in the complaint, that Salvador’s conduct was not sufficient to bring about any harm to Norby. (See Viner v. Sweet (2003) 30 Cal.4th 1232, 1239-1240 [discussion of substantial factor test]; see also Yanez v. Plummer (2013) 221 Cal.App.4th 180, 187 [a defendant cannot avoid responsibility because another person was also a substantial factor in causing plaintiff’s harm].) To the extent Norby can establish a cause of action against Salvador notwithstanding that the officer who prepared the Traffic Collision Report did not determine that Salvador violated any provisions of the Vehicle Code, Restaurant Connection has failed to show that it also did not employ Salvador, or own, operate, maintain, or entrust the vehicle driven by Salvador on the date of the collision. For these reasons, Restaurant Connection has failed to negate all theories of liability alleged in the complaint.

Restaurant Connection also contends that the discovery responses of Norby show that there exists no evidence that it caused or contributed to the collision at issue. The Court has reviewed the responses of Norby to the special interrogatories and requests for admission served by Restaurant Connection which are set forth in the moving separate statement. The Court notes Norby served the responses on November 13, 2023, approximately five months prior to the date of filing of the present motion. (See Exhs. 7-9.) In addition, the responses state that only that Norby cannot admit or deny that Sotelo was an employee of Restaurant Connection, but that Norby believes that Sotelo was an employee of Restaurant Connection. (Sep. Stmt., UMF Nos. 20 & 22.)

While the discovery responses of Norby appear to indicate that, as of November 13, 2023, Norby did not possess factual support for Norby’s claim that Sotelo was employed by Restaurant Connection on the date of the collision, this alone does not necessarily demonstrate that Norby cannot reasonably obtain necessary evidence. (Aguilar, supra, 25 Cal.4th at p. 854-855 [it is insufficient for defendants to “simply point out” that plaintiff does not possess necessary evidence to establish one or more elements of the cause of action].) In addition, the discovery responses relied by Restaurant Connection do not necessarily show for present purposes that Norby cannot establish that Salvador was not employed by Restaurant Connection on the date of the collision or that Salvador’s conduct was not a substantial factor in causing injury to Norby as further discussed above.

For all reasons further discussed above, Restaurant Connection has failed to demonstrate that Norby cannot establish or reasonably obtain evidence necessary to prevail on any theory of liability alleged against Restaurant Connection. Therefore, the court will deny the summary judgment motion.

Restaurant Connection alternatively seeks summary adjudication of the first and second causes of action alleged in the complaint on the grounds that it did not employ or control either Sotelo or Salvador on the date of the incident. As further discussed above, Restaurant Connection offers no facts in its moving separate statement to demonstrate that Salvador was not an employee or agent of Restaurant Connection or that Salvador’s conduct was not a substantial factor in causing harm to Norby. (San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 313, internal citations and quotation marks omitted [“if it is not set forth in the separate statement, it does not exist”].) Therefore, and for all reasons further discussed above, the Court will also deny the motion for summary adjudication.