Case Name:??? Mohammed Haniff v. James Nathan Hohman, et al.????? ?????????????
Case No.:??????? 2013-1-CV-252992
Factual and Procedural Background?
This is a personal injury case.? Plaintiff Mohammed Haniff (?Plaintiff?), a delivery driver, was struck and pinned against the back of his delivery van by an unoccupied vehicle that rolled down a hill.? Plaintiff alleges that defendant James Nathan Hohman (?Hohman?) negligently parked the vehicle on the top of a hill immediately prior to the incident.? Plaintiff filed the operative complaint against defendants Hohman and Moonhee Kim (?Kim?), the registered owner of the vehicle, alleging claims for negligence.? Subsequently, Plaintiff filed a Doe Amendment to the complaint, substituting defendant The Board of Trustees of the Leland Stanford Junior University??? (?Stanford?) for Doe 6.? Plaintiff alleges that Stanford is vicariously liable for his injuries because Hohman was a postdoctoral research fellow at Stanford acting in the course and scope of his employment at the time of the incident.
Currently before the Court is Stanford?s motion for summary judgment to the complaint.? (Code Civ. Proc., ? 437c.)? Stanford has filed a request for judicial notice in conjunction with the motion.? Plaintiff has filed written opposition to the motion.? Defendants Hohman and Kim have also filed written opposition and submitted various objections to Stanford?s evidence.? Stanford filed reply papers and objections to evidence.? No trial date has been set.
Motion for Summary Judgment?
Request for Judicial Notice?????
Stanford requests judicial notice of (1) Plaintiff?s Complaint filed on September 13, 2013 and (2) Plaintiff?s Amendment to the Complaint filed on April 2, 2014.? As these documents constitute records of the superior court, the Court may take judicial notice of them under Evidence Code section 452, subdivision (d).?? Accordingly, the request for judicial notice is GRANTED.
Legal Standard
?Summary judgment is properly granted when no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law.? A defendant moving for summary judgment bears the initial burden of showing that a cause of action has no merit by showing that one or more of its elements cannot be established or that there is a complete defense.? Once the defendant has met that burden, the burden shifts to the plaintiff ?to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.?? ?There is a triable issue of material fact if, and 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.??? (Madden v. Summit View, Inc. (2008) 165 Cal.App.4th 1267, 1272 [internal citations omitted].)
Analysis?????
The sole argument raised on the motion for summary judgment is that there is no evidence showing that Hohman?s negligence occurred within the course and scope of his employment with Stanford.
?Under the theory of respondeat superior, an employer is vicariously liable for an employee?s torts committed within the scope of employment.? [Citations.]? This theory is justified as ?a deliberate allocation of a risk.? The losses caused by the torts of employees, which as a practical matter are sure to occur in the conduct of the employer?s enterprise, are placed upon that enterprise itself, as a required cost of doing business.?? [Citation.]? The employer is liable not because the employer has control over the employee or is in some way at fault, but because the employer?s enterprise creates inevitable risks as a part of doing business.? [Citations.]? Under this theory, an employer is liable for ?the risks inherent in or created by the enterprise.?? [Citation.]?? (Bailey v. Filco, Inc. (1996) 48 Cal.App.4th 1552, 1558-1559.)
?As a general rule, whether an act is within the scope of employment is a question of fact.? However, where the facts are undisputed and no conflicting inferences are possible, the question is one of law.?? (Munyon v. Ole?s, Inc. (1982) 136 Cal.App.3d 697, 701.)
As a threshold matter, Stanford argues that the burden is on Plaintiff to show that Hohman?s negligence occurred within the course of scope of his employment with Stanford.? ?The burden of proof is on the plaintiff to demonstrate that the negligent act was committed within the scope of employment.?? (Munyon v. Ole?s, Inc., supra, 136 Cal.App.3d at p. 701.)? However, this is a burden that Plaintiff must meet for purposes of trial.? Conversely, on a motion for summary judgment, Stanford bears the burden of demonstrating that Plaintiff has no evidence establishing that Hohman?s negligence occurred within the course and scope of his employment with the university.? (See Pieper v. Commercial Underwriters Ins. Co. (1997) 59 Cal.App.4th 1008, 1015 [?The moving defendant bears the burden of proving the absence of any triable issue of material fact, even though the burden of proof as to a particular issue may be on the plaintiff at trial.?]; see also Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840 [?A responding plaintiff has no evidentiary burden unless the moving defendant has first met its initial burden.?].)? Stanford fails to meet that burden.
In support of the motion, Stanford includes material fact no. 29 which cites to Hohman?s response to Plaintiff?s Form Interrogatory (?FI?), Set One, No. 2.11.? (See Stanford?s Separate Statement of Undisputed Facts at No. 29; see also Plaintiff?s Additional Fact at No. 6.)? FI No. 29 specifically asks ?At the time of the INCIDENT were you [Hohman] acting as an agent or employee for any person??? (Ibid.)? Hohman initially responded ?no? but later amended his answer to ?yes.?? (Ibid.)? Furthermore, the oppositions provide evidence indicating that Hohman was employed by Stanford at the time of the incident.? (See Plaintiff?s Additional Fact at No. 7 [Hohman Depo at p. 33:24-25]; Hohman and Kim?s Additional Fact at No. 30 [same].)? Therefore, a triable issue of fact exists as to whether Hohman was acting within the scope of his employment with Stanford when the subject incident occurred.
Consequently, the motion for summary judgment is DENIED.
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Evidentiary Objections?
The Court declines to render formal rulings on the evidentiary objections submitted by defendants Hohman and Kim and Stanford as the moving party fails to meet its initial burden on the motion for summary judgment.