Ursula Norby vs Enrique Astorga-Sotelo et al

Case Number

22CV01342

Case Type

Hearing Date / Time

Mon, 04/21/2025 - 10:00

Nature of Proceedings

Motion: Summary Judgment

Tentative Ruling

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

Case No. 22CV01342

           

Hearing Date: April 21, 2025                                                  

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, is granted. Restaurant Connection of Santa Barbara, Inc. shall prepare a formal order, consistent with this ruling, and submit it to the court for signature.

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 sought 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 motion for summary judgment was unopposed, but on July 11, 2024, was denied because Restaurant Connection failed to meet its initial burden of proof on summary judgment.

Following the denial of summary judgment and summary adjudication, on October 11, 2024, Norby served verified responses to Restaurant Connection’s requests for admission, set two.

Restaurant Connection now moves for summary judgment, or in the alternative summary adjudication, based on new facts discovered by way of Norby’s responses to the requests for admission, set two. The motion was served on counsel for Norby, via electronic service, on December 13, 2024.

Norby has not filed an opposition or any other document in response the motion.

Analysis:

          Standard on Summary Judgment

A defendant’s motion for summary judgment asks the court to determine that the entire action has no merit, and to terminate the action without the necessity of a trial. (Code Civ. Proc., § 437c, subd. (a).) The procedure enables the court to look behind the pleadings to determine whether the party against whom the motion is directed has evidence to back up the claims. The court must determine from the evidence presented 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).)

“[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable 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, 850.) There is no obligation on the opposing party to establish anything by affidavit unless and until the moving party has by affidavit stated facts establishing every element necessary to sustain an adjudication in his favor. (Consumer Cause, Inc. v. Smilecare (2001) 91 Cal.App.4th 454, 468.) “[W]e liberally construe plaintiff’s evidentiary submissions and strictly scrutinize defendant’s own evidence, in order to resolve any evidentiary doubts or ambiguities in plaintiff’s favor.” (Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64.)

“A defendant … has met his or her burden of showing that a cause of action has no merit if the party has shown 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. Once the defendant … has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).)

In resolving the motion, the court may not weigh the evidence. (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840.) Rather, the role of the trial court in resolving a summary judgment motion is to determine whether issues of fact exist, not to decide the merits of the issues. (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107.) A triable issue of material fact exists only if the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof. (Aguilar v. Atlantic Richfield, supra, 25 Cal.4th at p. 850.) Any doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion. (Molko v. Holy Spirit Assn., supra at p. 1107.)

            Separate Statement

“Separate statements serve a laudable purpose. As explained in Weil & Brown, California Practice Guide (The Rutter Group 1996) Civil Procedure Before Trial, paragraph 10:94.1, pp. 10–31, 10–32, these documents are ‘intended to permit the judge to determine quickly whether the motion is supported by sufficient undisputed facts. If the opposing statement disputes an essential fact alleged in support of the motion, the judge merely has to review the evidence cited in support of that fact. This saves the judge from having to review all the evidentiary materials filed in support of and in opposition to the motion.’ ” (Kulesa v. Castleberry (1996) 47 Cal.App.4th 103, 113.)

“The opposition papers shall include a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating if the opposing party agrees or disagrees that those facts are undisputed. The statement also shall set forth plainly and concisely any other material facts the opposing party contends are disputed. Each material fact contended by the opposing party to be disputed shall be followed by a reference to the supporting evidence. Failure to comply with this requirement of a separate statement may constitute a sufficient ground, in the court’s discretion, for granting the motion.” (Code Civ. Proc., § 437c, subd. (b)(3).)

“Separate statements are “ ‘required, not discretionary, on the part of each party, and the statutory language makes the failure to comply with this requirement sufficient grounds to grant the motion.’ ” [Citation.]” (Mandell-Brown v. Novo Nordisk, Inc. (2025) 109 Cal.App.5th 478, 508.) “Thus, if a plaintiff opposing summary judgment fails to file a separate statement, and the trial court reviews the moving papers and concludes the motion is not deficient on its face, it has discretion under subdivision (b)(3) to grant the motion, without first undertaking a detailed analysis of the supporting evidence to determine if a prima facie showing has been made as to one or more of the elements of each claim.” (Ibid.)

By failing to file separate statement, Norby is effectively conceding that the facts set forth in Restaurant Connection’s separate statement are undisputed. While all the facts set forth in the separate statement are material and provide necessary background information, the ones that are of particular significance to the present motion are:

“6. Defendant Enrique Astorga-Sotelo was employed by Delivery Drivers, Inc. to make deliveries for [Restaurant Connection] and other companies. . . .

“14. Defendant ENRIQUE ASTORGA-SOTELO did not make any deliveries for [Restaurant Connection] on the date of the Incident, May 11, 2020. . . .

“24. Defendant Luis Fernando Gonzalez-Salvador was NOT employed or controlled by [Restaurant Connection] on the date of the Incident.

Restaurant Connection supports fact No. 6 with: (1) The contract for delivery services between Delivery Drivers and Restaurant Connection (Exh. 3); (2) The Declaration of Saul Plasencia, the owner of Restaurant Connection, who declares: “I am informed and believe that Defendant Enrique Astorga-Sotelo was employed as a delivery driver by Defendant DELIVERY DRIVERS, INC. to make deliveries for RCSB and other companies.” (Exh. 4, ¶ 7); and (3) A “Driver Report” for Sotelo (Exh. 5).

Restaurant Connection supports fact No. 14 with the Plasencia declaration, at paragraph 11, and the Driver Report submitted as exhibit 5.

Restaurant Connection supports fact No. 24 with plaintiff’s responses to discovery (Exh. 10) and a second declaration of Plasencia. (Exh. 11, ¶ 3.)

            General Negligence

While there are two causes of action alleged in the complaint, motor vehicle and negligence, both are simply iterations of general negligence and are, in effect, a single cause of action. They will be treated as such.

As the court previously ruled on a motion for summary judgment filed by Restaurant Connection, the court will not repeat the discussion contained in that ruling. Rather, the court will incorporate that discussion by reference and focus on the new undisputed fact that Salvador was, like Sotelo, not employed or controlled by Restaurant Connection.

“The elements of a negligence cause of action are the existence of a legal duty of care, breach of that duty, and proximate cause resulting in injury. [Citation.]” (Castellon v. US Bancorp (2013) 220 Cal.App.4th 994, 998.)

“ ‘The question whether a legal duty exists is to be resolved by the court, not a jury. [Citation.] ‘ “Duty, being a question of law, is particularly amenable to resolution by summary judgment.” ’ [Citation.]” (McKenna v. Beesley (2021) 67 Cal.App.5th 552, 563.)

The undisputed material facts show that neither Sotelo or Salvador were employed by Restaurant Connection or making any deliveries for Restaurant Connection on the date of the incident.

Norby’s theory of liability, as it pertains to Restaurant Connection, is respondeat superior. “Under the doctrine of respondeat superior, “ ‘an employer is vicariously liable for the torts of its employees committed within the scope of the employment.’ ” [Citation.]” (Saks v. Charity Mission Baptist Church (2001) 90 Cal.App.4th 1116, 1138.)

As the doctrine of respondeat superior is inapplicable, due to neither Sotelo nor Salvador being employed by Restaurant Connection, no duty, or vicarious liability, exists on the part of Restaurant Connection, with respect to either Sotelo or Salvador. As a duty cannot be established, neither can a breach or proximate cause be established.

Restaurant Connection has met its burden of showing that the cause of action has no merit because it has shown that Norby cannot establish any of the elements of negligence. The motion for summary judgment will be granted.