Case Number: BC525111??? Hearing Date: December 19, 2016??? Dept: J
Re: German Gutierrez Garcia, et al. v. Container Intermodal Transport, Inc., et al. (BC525111, C/W BC547880, BC558528, BC580378, BC584475, BC590617 and BC593568)
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION (X2)
Moving Parties: (1) Defendant Maersk Agency U.S.A., Inc.; (2) Defendant Maersk Line A/S
Respondents: Plaintiffs, Jeffrey Roncone, Edgar Henriquez, Patricia Henriquez, Natalie Henriquez, German Gutierrez Garcia, Gabriela Escalona Rivera, the Estate of Victor Hernandez Gutierrez Escalona, Gerardo Yanez, Cesar Navarro and Ismael Escarcega (joinders by Defendants Container Intermodal Transport, Inc., Hector Avina and Edgar Henriquez)
POS: (1) and (2) Moving OK; Opposing OK; Reply OK. CITI?s 11/2/16 joinders served by regular mail contrary to CCP ? 1005(c); Avina?s 11/10/16 and Henriquez?s 11/17/16 joinders untimely filed and served for the prior 11/18/16 hearing date.
This case involves seven consolidated actions for personal injury/wrongful death arising from a multi-vehicle accident on 8/19/13 on Interstate 10 near the Towne Avenue exit in Pomona. In Lead Case, BC525111, on 10/22/13 Plaintiffs German Gutierrez Garcia, Gabriela Escalona Rivera, and the Estate of Victor Hernandez Gutierrez Escalona, by and through His Successors in Interest, German Gutierrez Garcia and Gabriela Escalona Rivera (?Garcia Plaintiffs?) filed their complaint against Defendants Container Intermodal Transport, Inc. (?CITI?), Hector Avina (?Avina?) and DOES 1-50. Numerous cross-complaints and amendment have since been file in the consolidated actions.
A Trial Setting Conference is set for 12/19/16.
(1) MOTION OF MAERSK AGENCY U.S.A., INC.:
Defendant Maersk Agency U.S.A., Inc. (?Maersk Agency?) moves for summary judgment against Plaintiffs German Gutierrez Garcia, Gabriela Escalona Rivera, the Estate of Victor Hernandez Gutierrez Escalona, by and through its successors in interest, German Gutierrez Garcia and Gabriella Escalona Rivera (collectively, ?Garcia?), Plaintiffs Edgar Henriquez, Patricia Henriquez and Natalie Henriquez (collectively, ?Henriquez?), Plaintiff Jeffrey Roncone (?Roncone?), Plaintiffs Gerardo Yanez and Cesar Navarro (collectively, ?Yanez?), and Ismael Escarcega (?Escarcega?) and in its favor as to each of the causes of action in the Garcia, Henriquez, Roncone, Yanez, and Escarcega Complaints.
Maersk Agency alternatively seeks summary adjudication as follows:
1. Issue #1: Plaintiff Garcia?s negligence cause of action fails;
2. Issue #2: Plaintiff Henriquez?s negligence cause of action fails;
3. Issue #3: Plaintiff Roncone?s negligence cause of action fails;
4. Issue #4: Plaintiff Yanez?s negligence cause of action fails;
5. Issue #5: Plaintiff Escarcega?s negligence cause of action fails;
6. Issue #6: Plaintiff Escarcega?s vehicle negligence cause of action fails;
7. Issue #7: Plaintiff Henriquez?s negligence per se cause of action fails;
8. Issue #8: Plaintiff Roncone?s negligence per se cause of action fails;
9. Issue #9: Plaintiff Yanez?s negligence per se cause of action fails;
10. Issue #10: Plaintiff Garcia?s negligence per se cause of action fails;
11. Issue #11: Plaintiff Henriquez?s negligent hiring/training/supervision/retention/entrustment cause of action fails;
12. Issue #12: Plaintiff Roncone?s negligent hiring/training/supervision/retention/entrustment cause of action fails;
13. Issue #13: Plaintiff Yanez?s negligent hiring/training/supervision/retention/entrustment cause of action fails;
14. Issue #14: Plaintiff Garcia?s negligent hiring/training/supervision/retention/entrustment cause of action fails.
Maersk Agency contends as follows:
At the time of the accident, Hector Avina, the driver of the tractor-trailer rig, was acting within the course and scope of his employment by Co-Defendant Container Intermodal Transport, Inc. (?CITI?). Avina was delivering a shipping container loaded with furniture from the Port of Los Angeles to Fontana (?Container?). The Container was shipped from Malaysia by Maersk Line A/S, which at the time of the events in issue was the trade name for A.P. Moeller-Maersk A/S, a Danish shipping firm (?APMM?). Maersk Agency was the agent for APMM in the United States at the time of the accident. Maersk Agency is and was at all times registered as a broker with the Federal Motor Carrier Safety Administration. It arranged for transport of the Container Avina was delivering at the time of the accident. In retaining CITI, Maersk Agency acted as a broker and agent for APMM.
CITI was an independent contractor. A defendant who hires an independent contractor is not liable for the negligence of the independent contractor or the independent contractor?s employees in performing the contract. Although the Henriquez, Roncone and Yanez complaints assert that CITI and Avina were statutory employees of Maersk Agency under 49 C.F.R. ? 390.5, this claim fails because Maersk Agency is not a statutory ?employer? under the definitions set forth therein; more specifically, it does not own or lease commercial motor vehicles. CITI cannot be a statutory employee, moreover, because (1) under the definition of ?employee? only individuals can be statutory employees, and (2) because CITI is itself a statutory employer.
There is no basis for claims of negligent retention against Maersk Agency, because it required CITI and all motor carriers it engaged to enter into the Uniform Intermodal Interchange and Facilities Access Agreement (?UIIA?), which provided it with continuous monitoring of CITI?s safety performance to ensure CITI maintained the highest federal safety rating. Maersk Agency also required CITI to maintain a minimum of $1,000,000.00 in liability coverage. CITI was in full compliance with these requirements at the time of the accident, and Maersk Agency had no reason to believe CITI or Avina posed an unreasonable risk of harm to the public. There is no basis for imposing liability on Maersk Agency under theories of negligent hiring, retention, etc. on the grounds that it retained control over CITI?s operations, because there was, in fact, no such control.
JOINDER:
Defendant Container Intermodal Transport, Inc.?s (?CITI?) joinder in opposition filed 11/2/16 is summarily denied inasmuch as it failed to file its own opposing separate statement. See Frazee v. Sealy (2002) 95 Cal.App.4th 627, 636. Defendants Hector Avina?s joinder filed 11/10/16 and Edgar Henriquez?s joinder in opposition filed 11/17/16 are both denied on the same basis, as well as on untimeliness grounds.
REQUEST FOR JUDICIAL NOTICE:
Defendant Maersk Agency U.S.A., Inc. (?Maersk Agency?)?s request for judicial notice is granted in full.
EVIDENTIARY OBJECTIONS:
Maersk Agency?s evidentiary objections:
1-10. Overruled
ANALYSIS:
?For purposes of motions for summary judgment and summary adjudication:?[a] defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if that 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 that cause of action. Once the defendant or cross-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 that cause of action or a defense thereto.? CCP ? 437c(p)(2).
The Garcia complaint asserts causes of action for Negligence, Negligence Per Se and Negligent Hiring/Training/Supervision/Retention/Entrustment. The Henriquez complaint asserts causes of action for Negligence, Negligence Per Se and Negligent Hiring/Training Supervision/Retention/Entrustment. (Buzzard Decl., ? 14; Notice of Lodgment (?NOL?), Exhibit ?M?). The Roncone complaint asserts causes of action for Negligence, Negligence Per Se and Negligent Hiring and Entrustment. (Buzzard Decl., ? 15; NOL, Exhibit ?N?). The Yanez Complaint asserts causes of action for Negligence, Negligence Per Se and Negligent Hiring/Training/ Supervision/Retention/Entrustment. (Buzzard Decl., ? 16; NOL, Exhibit ?O?).
On 8/19/13, Hector Avina (?Avina?) was driving a tractor-trailer rig in the eastbound lanes of Interstate 10 in the City of Pomona (UMF No. 1). The accident at issue in this matter is alleged to have resulted from Avina?s negligence in failing to obey the speed law for the then-existing surface and traffic conditions and failing to stop. (UMF No. 5). At the time of the accident, Avina was transporting an APMM shipping container which was being shipped from Malaysia to Fontana, California by APPM. (UMF No. 19). Maersk Agency was APMM?s agent in the United States at that time and registered as a broker with the Federal Motor Carrier Safety Administration (?FMCSA?). (UMF Nos. 8 and 14).
Negligence Causes of Action (Issues Nos. 1-6):
?Actionable negligence is traditionally regarded as involving the following: (a) a legal duty to use due care; (b) a breach of such legal duty; (c) the breach as the proximate or legal cause of the resulting injury.? Seo v. All-Makes Overhead Doors (2002) 97 Cal.App.4th 1193, 1202.
?[T]he existence of a duty if a question of law for the court.? Kentucky Fried Chicken of Cal., Inc. v. Superior Court (1997) 14 Cal.4th 814, 819. ?[A] court’s task-in determining ?duty?-is not to decide whether a particular plaintiff’s injury was reasonably foreseeable in light of a particular defendant’s conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed on the negligent party.? Friedman v. Merck & Co. (2003) 107 Cal.App.4th 454, 465.
At the outset, Maersk Agency claims that it owed plaintiffs no duty, because ?[e]ach of the Complaints?at issue in this motion allege that Avina was an employee of CITI and was acting in the course and scope of his employment with CITI.? (Motion, 13:13-15). Not so. Plaintiffs Henriquez alleged, inter alia, that ?HECTOR AVINA was operating the subject vehicles with the express or implied authority and permission of Defendant MAERSK, as an agent or employee of Defendant MAERSK, and within the course and scope of his agency or employment with Defendant MAERSK.? (Buzzard Decl., ? 14, NOL, Exhibit ?M,? ? 17; see also NOL, Exhibit ?O,? ?? 8, 20, 33, 40 & 41 [Yanez Complaint]).
Maersk Agency next contends that it is insulated from liability on the basis that the evidence supports a finding that CITI was an independent contractor. An independent contractor determination is significant, because ??[a]t common law, a person who hired an independent contractor generally was not liable to third parties for injuries caused by the contractor?s negligence in performing the work. [Citations.] Central to this rule of nonliability was the recognition that a person who hired an independent contractor had ??no right of control as to the mode of doing the work contracted for.??? (Privette v. Superior Court (1993) 5 Cal.4th 689, 693).? Johnson v. Ralphs Grocery Co. (2012) 204 Cal.App.4th 1097.
??Whether a person is an employee or an independent contractor is ordinarily a question of fact but if from all the facts only one inference may be drawn it is a question of law.? (Brose v. Union-Tribune Publishing Co. (1986) 183 Cal.App.3d 1079, 1081).? Millsap v. Federal Express Corp. (1991) 227 Cal.App.3d 425, 431. ??An ?independent contractor? is generally defined as a person who is employed by another to perform work; who pursues an ?independent employment or occupation? in performing it; and who follows the employer?s ?desires only as to the results of the work, and not as to the means whereby it is to be accomplished.? The most significant factor in determining the existence of an employer-independent contractor relationship is the right to control the manner and means by which the work is to be performed. [Citations.] ?If control may be exercised only as to the result of the work and not the means by which it is accomplished, an independent contractor relationship is established.? [Citations.].? (White v. Uniroyal, Inc. (1984) 155 C.A.3d 1, 24-25).? Id. Additional factors have been derived in the context of from the Restatement Second of Agency, including ?(a) whether the one performing services is engaged in a distinct occupation or business; (b) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the principal or by a specialist without supervision; (c) the skill required in the particular occupation; (d) whether the principal or the worker supplies the instrumentalities, tools, and the place of work for the person doing the work; (e) the length of time for which the services are to be performed; (f) the method of payment, whether by the time or by the job; (g) whether or not the work is a part of the regular business of the principal; and (h) whether or not the parties believe they are creating the relationship of employer-employee. (Tieberg [v. Unemployment Ins. App. Bd. (1970) 2 Cal.3d 943,] at p. 949; Empire Star Mines [Co. v. Cal. Emp. Com (1946)] 28 Cal.2d [33,] at pp. 43-44; see Rest.2d Agency, ? 220).? S.G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341, 351.
Here, the facts suggest that CITI transported the subject shipping container as an independent contractor. APMM and CITI were parties to a written Motor Carrier Services Agreement dated 2/22/10 (?MCSA?) at the time of the accident. (UMF No. 17). The MCSA expressly states that ?CARRIER shall perform the services hereunder as an independent contractor.? (Id., p. 4). The MCSA further provides that CITI would ?be solely responsible for its day to day operations.? (Id.; see also, UMF No. 30). The MCSA required CITI to have a ?satisfactory? safety rating with the FMCSA as a condition to entering into the MCSA and required it to notify Maersk Agency if its safety rating with the FMCSA fell below ?satisfactory.? (Id.; see also UMF Nos. 37 & 39). CITI agreed, ?at its sole cost and expense,? to ?furnish all equipment necessary or required for the performance of its obligations hereunder (the ?Equipment?), to ?pay all expenses related, in any way, with the use and operation of the Equipment,? to ?maintain the Equipment in good repair, mechanical condition and appearance? and to ?procure and maintain?Commercial General Liability (?CGL?) Insurance covering the transportation of shipments and other operations under this Agreement in an amount not less than $1,000,000.00 (U.S. Dollars) combined single limit.? (Id.; see also UMF Nos. 33 and 35). CITI also agreed that it would ?utilize only competent, able and legally licensed personnel in the performance of services hereunder,? that it would ?have full control of such personnel? and that it would be ?solely responsible for ensuring, and [would] ensure, at [its] cost and expense, that such personnel [were] fully qualified to perform services hereunder?? (Id.; see also, UMF Nos. 32 & 34).
Additionally, the subject shipping container was transported by ship to the Port of Los Angeles. (UMF No. 20). After the container arrived, Maersk Agency issued a Work Order to CITI pursuant to the MCSA to transport same from the Port of Los Angeles to Fontana. (UMF No. 21). On the day of the accident, Avina was issued a delivery ticket by CITI directing him to pick up the container and deliver it to the consignee. (UMF No. 22). Avina then drove his tractor to the Port of Los Angeles and personally chose the chassis he used to transport the container. (UMF No. 23). He was free to choose among chassis owned by a variety of suppliers and was not required to use a chassis supplied by Defendant Direct ChassisLink, Inc. (UMF No. 25). Avina attached the chassis to the tractor after the shipping container was secured to the chassis. (UMF No. 26). APMM did not attach the trailer to the tractor at the Port of Los Angeles. (UMF No. 29). APMM did not dictate to Avina or CITI the route of travel it should take in delivering the container from the Port of Los Angeles to Fontana. (UMF No. 31).
With that said, even if CITI were considered Maersk Agency?s independent contractor, Maersk Agency could nonetheless be liable to plaintiffs under the doctrines of peculiar risk and nondelegable duty, which are exceptions to the common law rule. See Vargas v. FMI, Inc. (2015) 233 Cal.App.4th 638, 646-647 & 649. ?Under the doctrine of peculiar risk, a person who hires an independent contractor to do inherently dangerous work can be held liable for tort damages when the contractor causes injury to others by negligently performing the work.? Toland v. Sunland Housing Group, Inc. (1998) 18 Cal.4th 253, 256. ?The term ?peculiar risk? means neither a risk that is abnormal to the type of work done, nor a risk that is abnormally great; it simply means ??a special, recognizable danger arising out of the work itself.?? (Aceves v. Regal Pale Brewing Co. [(1979)] 24 Cal.3d [502,] at p. 509, quoting Rest.2d Torts, ? 413, com. B.).? Privette, supra, 5 Cal. 4th at 695.
The peculiar risk doctrine is inapplicable to this case, because the injuries at issue did not arise from a peculiar risk but instead arose from the ordinary risks associated with the operation of a motor vehicle. In A. Teichert & Son (1986) 179 Cal.App.3d 657, the Third District Court of Appeal held that there was no peculiar risk as a matter of law when a dump truck which was turning left from a public street into a gravel plant collided with a bicycle, killing the bicycle rider. In rejecting the application of the peculiar risk doctrine the court relied on comment (d) to section 416 of the Restatement Second of Torts, which reads in part that ?[a] ?peculiar risk? is a risk differing from the common risks to which persons in general are commonly subjected by the ordinary forms of negligence which are usual in the community. It must involve some special hazard resulting from the nature of the work done, which calls for special precautions. (See ? 413, Comment b.) Thus if a contractor is employed to transport the employer’s goods by truck over the public highway, the employer is not liable for the contractor’s failure to inspect the brakes on his truck, or for his driving in excess of the speed limit, because the risk is in no way a peculiar one, and only an ordinary precaution is called for. But if the contractor is employed to transport giant logs weighing several tons over the highway, the employer will be subject to liability for the contractor’s failure to take special precautions to anchor them on his trucks.?
In Bowman v. Wyatt (2010) 186 Cal.App.4th 286, the plaintiff motorcyclist argued that the size and weight of a dump truck was a peculiar risk subjecting the hirer to vicarious liability for injuries suffered when the truck failed to stop at a traffic signal. The Second District, Division Four, Court of Appeal held that the peculiar risk doctrine did not apply because the ?character? of the work did not contribute to the accident; rather, the accident resulted from ?ordinary? use of the vehicle.
Here, the accident is alleged to have resulted from Avina?s negligence in failing to obey the speed law for the then-existing surface and traffic conditions and in failing to stop. (UMF No. 5). The accident, then, ?entailed nothing more than ordinary failure to exercise due care in the operation of a motor vehicle.? Id. at 309. Plaintiffs? reliance on Vargas, supra, 223 Cal.App.4th 638 is unavailing, because that case involved a claim by an independent contractor driver against the motor carrier for injuries suffered when his co-driver caused an accident. Vargas thus dealt with the liability of motor carriers, not to a hirer of motor carriers such as Maersk Agency. The court, moreover, discussed, but did not apply, the peculiar risk doctrine; rather, its decision is based primarily on the conclusion that the safety duties of a motor carrier are nondelegable. The doctrine of peculiar risk, then, is not applicable here.
The doctrine of nondelegable duty ??prevents a party that owes a duty to others from evading responsibility by claiming to have delegated that duty to an independent contractor hired to do the necessary work.?? Vargas, supra, 233 Cal.App.4th at 649 (citation omitted). ?If?an individual or corporation undertakes to carry on an activity involving possible danger to the public under a license or franchise granted by public authority subject to certain obligations or liabilities imposed by the public authority, these liabilities may not be evaded by delegating performance to an independent contractor. The original contractor remains subject to liability for harm caused by the negligence of the independent contractor employed to do the work.? Taylor v. Oakland Scavenger Co. (1941) 17 Cal.2d 594, 604.
In California motor carriers have been held to have a nondelegable duty to third parties for injuries caused by the negligence of independent contractors. See Eli v. Murphy (1952) 39 Cal.2d 598, 599; Vargas, supra, 233 Cal.App.4th 638. In Eli v. Murphy (1997) 39 Cal.2d 598 and Vargas, supra, 233 Cal.App.4th 638, the nondelegable duty doctrine was applied to motor carriers. In Serna v. Pettey Leach Trucking, Inc. (2003) 110 Cal.App.4th 1475, 1488 fn. 11, the Second District, Division One, Court of Appeal applied the nondelegable duty doctrine because it concluded that the defendant was acting as a motor carrier, not as a freight broker. Here, although CITI is registered as a carrier with the FMCSA, neither APMM nor MLAS has ever been registered as a motor carrier with the FMCSA and neither APMM nor MLAS has owned, leased or operated commercial motor vehicles in the United States directly or indirectly through subsidiaries at any time relevant to this matter. (UMF Nos. 4, 15 & 16). Plaintiffs have not set forth any evidence suggesting that Maersk Agency, a broker registered with the FMCSA, was ?subject to certain obligations or liabilities imposed by the public authority? such that it must be held responsible for CITI?s negligence. Nothing in Eli or Vargas supports the imposition of a nondelegable duty on hirers of motor carriers; in fact, in Hill Brothers Chemical Company v. Superior Court (2004) 123 Cal.App.4th 1001, the Second District, Division Two Court of Appeal declined to impose a nondelegable duty on a private motor carrier for the negligence of a for-hire carrier it had retained.
Plaintiffs? claim that Avina and CITI ?together with APMM and MLAS, are operating a ?franchise granted by public authority,?? is unsupported. The facts establish that MLAS and CITI are distinct entities and that Maersk Agency ? acting as a broker for APMM ? retained CITI as an independent contractor. Accordingly, the doctrine of nondelegable duty is not applicable here.
Additionally, the complaints in the Henriquez, Roncone and Yanez matters allege that CITI and Avina were statutory employees of Maersk Agency under 49 C.F.R. ? 390.5. Not so. Under this provision, an ?[e]mployee? is defined as ?any individual, other than an employer, who is employed by an employer and who in the course of his or her employment directly affects commercial motor vehicle safety. Such term includes a driver of a commercial motor vehicle (including an independent contractor while in the course of operating a commercial motor vehicle), a mechanic, and a freight handler. Such term does not include an employee of the United States, any State, any political subdivision of a State, or any agency established under a compact between States and approved by the Congress of the United States who is acting within the course of such employment.? An ?[e]mployer? is defined therein as ?any person engaged in a business affecting interstate commerce who owns or leases a commercial motor vehicle in connection with that business, or assigns employees to operate it, but such terms does not include the United States, any State, any political subdivision of a State, or an agency established under a compact between States approved by the Congress of the United States.?
Under the plain language of ? 390.5 a statutory ?employee? must be employed by a statutory ?employer.? Maersk Agency is not a statutory ?employer? under the definitions set forth in ? 390.5 because again, it has not owned, leased or operated commercial motor vehicles in the United States directly or indirectly through subsidiaries at any time relevant to this matter. (UMF No. 16). Additionally, CITI cannot be a statutory employee under the plain language of ? 390.5 because under the definition of ?employee? only individuals can be statutory employees and because CITI itself is an ?employer.?
Negligence Per Se Causes of Action (Issues Nos. 7-10):
?Although compliance with the law does not prove the absence of negligence, violation of the law does raise a presumption that the violator was negligent. This is called negligence per se. The presumption of negligence arises if: (1) the defendant violated a statute; (2) the violation proximately caused the plaintiff’s injury; (3) the injury resulted from the kind of occurrence the statute was designed to prevent; and (4) the plaintiff was one of the class of persons the statute was intended to protect. (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1284-1285, citing Evid. Code, ? 669, subd. (a)).? Jacobs Farm/Del Cabo, Inc. v. Western Farm Service, Inc. (2010) 190 Cal.App.4th 1502, 1526. ?[T]he trial court decides whether a statute or regulation defines the standard of care in a particular case.? Id. ??Under the doctrine of negligence per se, the plaintiff ?borrows? statutes to prove duty of care and standard of care. [Citation.] The plaintiff still has the burden of proving causation.? (Johnson v. Honeywell Intern., Inc. (2009) 179 Cal.App.4th 549, 558).? David v. Hernandez (2014) 226 Cal.App.4th 578, 584.
Plaintiffs Garcia, Henriquez, Roncone and Yanez premise their negligence per se claim on allegations that Maersk Agency violated Vehicle Code ? 22350, which provides that ?[n]o person shall drive a vehicle upon a highway at a speed greater than is reasonable or prudent having due regard for weather, visibility, the traffic on, and the surface and width of, the highway, and in no event at a speed which endangers the safety of persons or property.?
Again, however, it is undisputed that neither APMM nor MLSA owned, leased or operated commercial motor vehicles in the United States directly or indirectly at any time relevant in this matter, that APMM had no involvement in the hiring, retention, discipline or training of CITI?s drivers, including Avina and that APMM had no involvement in CITI?s scheduling and dispatching of drivers or vehicles. (UMF Nos. 16, 33 and 34).
Even if plaintiffs could establish that Maersk Agency has a connection to the container, it cannot be held liable for a Vehicle Code ? 22350 violation because the container is not a vehicle. Section 670 defines a ?vehicle ? as ?a device by which any person or property may be propelled, moved, or drawn upon a highway, excepting a device moved exclusively by human power or used exclusively upon stationary rails or tracks.?
Negligent Hiring/Training/Supervision/Entrustment Cause of Action (Issues Nos. 11-14):
Plaintiffs Garcia, Henriquez, Roncone and Yanez assert a cause of action for negligent hiring/training/supervision/entrustment against Maersk Agency. ?California case law recognizes the theory that an employer can be liable to a third person for negligently hiring, supervising, or retaining an unfit employee. (Even F. v. Hughson United Methodist Church (1992) 8 Cal.App.4th 828, 836. Liability is based upon the facts that the employer knew or should have known that hiring the employee created a particular risk or hazard and that particular harm materializes. (Id. at pp. 836-837).? Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1054. ?Awareness, constructive or actual, that a person is unfit or incompetent to drive underlies a claim that an employer was negligent in hiring or retaining that person as a driver. (See Judicial Council of Cal. Civ. Jury Instns. (2010) CACI No. 426). That same awareness underlies a claim for negligent entrustment. (See CACI No. 724).? Diaz v. Carcamo (2011) 51 Cal.4th 1148, 1157.
Again, the undisputed evidence demonstrates that CITI was an independent contractor and that Avina was an employee of CITI; with that said, ?[u]nder the negligent hiring exception to the general rule that an employer is not liable for the torts of an independent contractor, an employer who negligently fails to employ a competent and careful contractor may be liable for injuries caused by the contractor?s failure to exercise due care.? 38 Cal.Jur.3d Independent Contractors ? 25.
Here, the evidence reflects that Maersk Agency exercised reasonable care in engaging and retaining CITI as a motor carrier. The MCSA required CITI to obtain a minimum of $1,000,000.00 in liability insurance. (UMF No. 36). It required CITI to have a ?satisfactory? safety rating with the FMCSA as a condition to entry into the MCSA. (UMF No. 37). The ?satisfactory? rating is the highest rating by the FMCSSA. (UMF No. 38). The MCSA required CITI to notify Maersk Agency if its safety rating with the FMCSA fell below ?satisfactory? and to utilize only competent, able and legally licensed personnel in the performance of duties thereunder. (UMF No. 39 & 40). Under the MCSA, CITI was required to become a party to the Uniform Intermodal Interchange and Facilities Access Agreement (?UIIA?). (UMF No. 41). Because CITI was a party to the UIIA, Maersk Agency and APMM were provided with continuous monitoring of CITI?s safety rating with the FMCSA and would receive same-day notification if CITI?s safety rating were to fall below ?satisfactory.? (UMF No. 42). CITI had a ?satisfactory? rating with the FMCSA on the date of the incident. (UMF No. 43). Additionally, at the time of the incident, CITI was selected as a Customer Preferred Trucker (CPT) by the shipper, Coaster Co., for the transportation of the goods from the Port of Los Angeles to the final destination in Fontana. (UMF No. 50). When a shipper selects a CPT, in this case CITI, Maersk Agency follows its CPT internal protocol in ascertaining the selected CPT?s safety rating through the Unites States Department of Transportation?s SAFER Web Portal (?SAFER Web?). (UMF No. 51). At the time of the incident, CITI had a rating of ?satisfactory? with SAFER Web, which indicated to Maersk Agency that there was no issue with CITI?s safety record. (UMF No. 52).
Finally, there is no basis for imposing liability on Maersk Agency on the basis that it retained control over the operations of CITI, as it is undisputed that APMM had no involvement in, or authority to direct, the day-to-day operations of CITI. (UMF No. 30).
Defendant Maersk Agency U.S.A., Inc.?s motion for summary judgment is granted.
(2) MOTION OF MAERSK LINE A/S:
Defendant Maersk Line A/S (?MLAS?) moves for summary judgment against Plaintiffs German Gutierrez Garcia, Gabriela Escalona Rivera, the Estate of Victor Hernandez Gutierrez Escalona, by and through its successors in interest, German Gutierrez Garcia and Gabriella Escalona Rivera (collectively, ?Garcia?), Plaintiffs Edgar Henriquez, Patricia Henriquez and Natalie Henriquez (collectively, ?Henriquez?), and Plaintiffs Gerardo Yanez and Cesar Navarro and in its favor as to each of the causes of action in the Garcia and Yanez Complaints. MLAS alternatively seeks summary adjudication as follows:
1. Issue #1: Plaintiff Garcia?s negligence cause of action fails;
2. Issue #2: Plaintiff Henriquez?s negligence cause of action fails;
3. Issue #3: Plaintiff Yanez?s negligence cause of action fails;
4. Issue #4: Plaintiff Escarcega?s negligence cause of action fails;
5. Issue #5: Plaintiff Escarcega?s vehicle negligence cause of action fails;
6. Issue #6: Plaintiff Henriquez?s negligence per se cause of action fails;
7. Issue #7: Plaintiff Yanez?s negligence per se cause of action fails;
8. Issue #8: Plaintiff Garcia?s negligence per se cause of action fails;
9. Issue #9: Plaintiff Henriquez?s negligent hiring/training/supervision/retention/entrustment cause of action fails;
10. Issue #10: Plaintiff Yanez?s negligent hiring/training/supervision/retention/entrustment cause of action fails;
11. Issue #11: Plaintiff Garcia?s negligent hiring/training/supervision/retention/entrustment cause of action fails.
REQUEST FOR JUDICIAL NOTICE:
Defendant Maersk Line A/S/?s request for judicial notice is granted in full.
JOINDER:
Again, Defendant CITI?s joinder filed 11/2/16 is summarily denied, inasmuch as it failed to file its own opposing separate statement. See Frazee, supra, 95 Cal.App.4th at 636. Defendants Avina’s joinder filed 11/10/16 and Henriquez’s joinder filed 11/17/16 are both denied on the SAME basis, as well as on untimeliness grounds.
EVIDENTIARY OBJECTIONS:
Defendant Maersk Line A/S’s evidentiary objections:
1-10. Overruled
Defendant Maersk Line A/S?s motion for summary judgment is granted for the same reasons set forth above.