Opinion
D040188.
7-3-2003
TED FORREST WHITCOMB, JR., et al., Plaintiffs and Appellants, v. EL CAJON FORD, Defendant and Respondent.
This appeal involves a wrongful death action brought by plaintiffs and appellants Ted Forrest Whitcomb, Jr., Adam Spencer Whitcomb, and their minor brothers Jonathan Mitchell Whitcomb and Matthew Charles Whitcomb (through their guardian ad litem Ted Forrest Whitcomb, Sr.) (collectively the Whitcombs) after their mother, Lisa Whitcomb, was killed in an automobile accident in March 2000. The accident occurred when a truck driven by defendant Michael Andrew Rossignol (Rossignol) collided head-on with the vehicle driven by Lisa Whitcomb.
Rossignol is not a party to this appeal.
Defendant and respondent El Cajon Ford sold the truck to Rossignols mother and Rossignols business one month before the accident occurred, after Rossignol was unable to purchase it in his own name due to poor credit. After he had test driven the truck, and after the sale was approved, Rossignol informed El Cajon Fords finance representative that he did not have a valid drivers license. The manager of El Cajon Ford later handed the keys to the truck to Rossignol, who drove it off the lot. When the collision occurred one month later, Rossignol, who was driving the truck without a valid drivers license, was looking at his cell phone rather than the road.
In their amended complaint, the Whitcombs alleged a common law claim for negligent entrustment against El Cajon Ford. El Cajon Ford brought a motion for summary judgment. The court granted the motion, finding that (1) the undisputed fact that an employee of El Cajon Ford allowed Rossignol to drive the truck off the lot, knowing that Rossignol was unlicensed, was not sufficient to establish a cause of action for common law negligent entrustment; and (2) the Whitcombs had failed to present facts showing El Cajon Ford had knowledge of Rossignols incompetence or inability to drive safely.
The Whitcombs appeal, contending (1) El Cajon Ford negligently entrusted the truck to Rossignol because when it handed the keys to him and watched him drive off the lot, El Cajon Ford knew he did not have a drivers license, and thus knew he was "legally incompetent" to drive; and (2) El Cajon Fords negligent entrustment of the truck was a substantial factor in the death of their mother because Rossignol was driving the truck at the time of the accident. We conclude the court properly granted summary judgment in favor of El Cajon Ford.
FACTUAL BACKGROUND
On February 15, 2000, Rossignols company, Professional Leak Detection, Inc., and his mother, Barbara Rossignol, purchased a 2000 Ford Ranger from El Cajon Ford. Prior to the purchase, Rossignol drove his Ford F150 truck to El Cajon Ford to trade it in for a Ford Ranger. He had been driving the Ford F150 without a California drivers license for about two weeks to a month before he drove it to El Cajon Ford. Rossignol had been convicted of drunk driving in 1995 or 1996, and his drivers license had been suspended until he met certain conditions imposed by the terms of his sentence. He never met those conditions, and thus did not have a valid license when he drove his Ford F150 to El Cajon Ford.
Rossignol test drove the Ford Ranger with a salesperson at El Cajon Ford. Although the salesperson drove the truck off the lot, he then handed it over to Rossignol for the test drive. The salesperson did not ask Rossignol for his license before he allowed Rossignol to test drive the Ranger.
After the test drive, Rossignol filled out a credit application. The salesperson told Rossignol he could not purchase the Ranger because of his poor credit. Rossignol had not told El Cajon Ford that he did not have a valid license.
El Cajon Fords sales manager then approached Rossignol and asked him whether he could get a cosigner. Rossignol replied that his mother would cosign. Rossignol also told the manager that he wished to establish credit for his business, Professional Leak Detection, Inc., and thus he wanted to buy the Ranger in the name of his business. After Rossignols mother completed the credit application process, the manager came back and said, "Youre approved. Lets go talk to the finance lady."
The sales manager left them with the finance department representative, who asked to see Rossignols drivers license. When Rossignol told her he did not have a license, she said, "I didnt hear that," proceeded with the sales transaction and obtained a copy of Barbara Rossignols license. Although the purchase and finance documents were in the names of Professional Leak Detection, Inc. and Barbara Rossignol, El Cajon Ford knew that Rossignol would be driving the Ranger. Rossignol did not inform El Cajon Ford or any of its employees that he had been convicted of driving under the influence or that his license had been suspended as a result of that conviction.
When the paperwork was completed, Barbara Rossignol left the dealership. The keys to the Ranger were given to Rossignol, who drove it off the lot.
On March 17, 2000, about one month later, Rossignol was driving the Ranger southbound on Wildcat Canyon Road, attempting to make a call on his cell phone. Rossignol was looking at his phone, not at the road, when the Ranger entered a curve in the road and collided head-on with the vehicle being driven by the Whitcombs mother, who died in the accident. Undisputed evidence shows that Rossignol had not consumed any alcoholic beverages that day prior to the accident.
PROCEDURAL BACKGROUND
In their amended complaint, the Whitcombs alleged a cause of action for common law negligent entrustment against El Cajon Ford. El Cajon Ford brought a motion for summary judgment on grounds the undisputed material facts established as a matter of law that (1) it did not proximately cause the death of the Whitcombs mother; (2) California law does not recognize the tort of negligent sale of an automobile, and thus El Cajon Ford, which did not own or control the truck at the time of the accident, could not be held liable on a negligent entrustment theory for a sale to an unlicensed driver; and (3) at the time of the sale, El Cajon Ford did not know, or have reason to know, that Rossignol was an incompetent or dangerous driver.
The court granted summary judgment in favor of El Cajon Ford, finding (among other things) that (1) the undisputed fact that an employee of El Cajon Ford allowed Rossignol to drive the truck off the lot, knowing that Rossignol was unlicensed, was not sufficient to establish a cause of action for common law negligent entrustment; (2) the Whitcombs had failed to present facts showing El Cajon Fords knowledge of Rossignols incompetence or inability to drive safely; and (3) the Whitcombs reliance on the unpublished decision in Roland v. Golden Bay Chevrolet was improper under California Rules of Court, rule 977(a) (discussed, post). The Whitcombs timely appeal followed.
STANDARD OF REVIEW
On an appeal from an order granting summary judgment, we independently examine the record to determine whether a triable issue of material fact exists. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767.) In performing our review, we view the evidence in the light most favorable to the losing parties (here the Whitcombs), resolving any evidentiary doubts or ambiguities in their favor. (Id. at p. 768.)
"The party moving for summary judgment [(here El Cajon Ford)] bears the burden of persuasion that there is no triable issue of material fact and that [it] is entitled to judgment as a matter of law. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, fn. omitted (Aguilar).) A defendant moving for summary judgment bears the burden of persuasion that one or more elements of the cause of action in question cannot be established or that there is a complete defense thereto. (Ibid.; Code Civ. Proc., § 437c, subd. (o).) In such a case, the defendant "bears the initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact." (Aguilar, supra, 25 Cal.4th at p. 850.)
Code of Civil Procedure section 437c, subdivision (o) provides: "A cause of action has no merit if either of the following exists: [P] (1) One or more of the elements of the cause of action cannot be separately established, even if that element is separately pleaded. [P] (2) A defendant establishes an affirmative defense to that cause of action."
If the defendant meets its burden of production, the burden shifts to the plaintiffs to make their own prima facie showing of the existence of a triable issue of material fact. (Aguilar, supra, 25 Cal.4th at p. 850.) "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." (Ibid., fn. omitted.)
DISCUSSION
I. COMMON LAW NEGLIGENT ENTRUSTMENT LIABILITY
The Whitcombs contend the courts granting of summary judgment in favor of El Cajon Ford must be reversed because the evidence shows El Cajon Ford negligently entrusted the Ranger to Rossignol, knowing that he did not have a valid drivers license, and such entrustment was a substantial factor in causing the accident in which their mother died. For reasons we shall discuss, we conclude the court properly granted summary judgment in favor of El Cajon Ford.
A. Applicable Legal Principles
On appeal, the Whitcombs acknowledge that their claim against El Cajon Ford was "based upon the common law tort of negligent entrustment." Under the common law theory of negligent entrustment, ""one who places or entrusts his [or her] motor vehicle in the hands of one whom he [or she] knows, or from the circumstances is charged with knowing, is incompetent or unfit to drive, may be held liable for an injury inflicted by the use made thereof by that driver, provided the plaintiff can establish that the injury complained of was proximately caused by the drivers disqualification, incompetency, inexperience or recklessness." [Citation.]" (Lindstrom v. Hertz Corp. (2000) 81 Cal.App.4th 644, 648, italics added; see also BAJI No. 13.80 & Flahavan et al., Cal. Practice Guide: Personal Injury (The Rutter Group 2002) P 2:401, p. 2-115 (rev. # 1, 2001).)
The Whitcombs did not allege, nor could they have properly alleged, a statutory claim against El Cajon Ford under Vehicle Code section 14606, subdivision (a), which provides: "No person shall . . . knowingly permit or authorize the driving of a motor vehicle, owned by him or her or under his or her control, upon the highways by any person unless the person is then licensed for the appropriate class of vehicle to be driven." (Italics added.) "Vehicle Code section 14606 refers only to the act of allowing another to drive a vehicle owned by the entrustor or under his control; it does not refer to a sales transaction in which ownership and control pass from the seller to the purchaser. Obviously such a transaction does not result in any form of an entrustment, because the dealership retains no control." (Dodge Center v. Superior Court (1988) 199 Cal. App. 3d 332, 339, 244 Cal. Rptr. 789, italics added.) Here, it is undisputed that El Cajon Ford sold the Ranger to Rossignols company and his mother in February 2000, and thus did not own or control it when the accident occurred about one month later.
BAJI No. 13.80 provides in part: "One who permits [his] [her] motor vehicle to be used by another person who [he] [she] knows, or from facts known to [him] [her] should know, is [under the influence of intoxicating liquor] [[a reckless] [or] [an incompetent] driver], is liable for injuries resulting from the negligent operation of the motor vehicle a cause of which was the [intoxication] [recklessness] [or] [incompetence] of the person permitted to use the vehicle."
The tort of negligent entrustment "requires demonstration of actual knowledge of facts showing or suggesting the drivers incompetence—not merely his lack of a license. [Citations.] For liability to exist, knowledge must be shown of the users incompetence or inability safely to use the chattel." (Dodge Center v. Superior Court, supra, 199 Cal. App. 3d at p. 341, fn. omitted, italics added.) The lack of a valid drivers license does not demonstrate negligence of the driver per se. (Ibid.) "The knowledge requirement is satisfied if defendant either actually knew that the driver was incompetent or had knowledge of circumstances reasonably indicating that the driver would create an unreasonable risk of harm to others—e.g., knowledge of the drivers youth or inexperience." (Flahavan et al., Cal. Practice Guide: Personal Injury, supra, P 2:403, p. 2-115, citing Dodge Center v. Superior Court, supra, 199 Cal. App. 3d at p. 341, & Rest.2d Torts, § 390.)
B. Analysis
The Whitcombs maintain the evidence shows El Cajon Ford negligently entrusted the Ranger to Rossignol because when it handed the keys to him following completion of the sale and watched him drive off the lot, it knew he did not have a valid drivers license, and thus knew he was "legally incompetent" to drive.
The undisputed facts show that Rossignol had been convicted of drunk driving in 1995 or 1996, and his drivers license had been suspended until he met certain conditions imposed by the terms of his sentence. Because he never met those conditions, he did not have a valid license when he drove his Ford F150 to El Cajon Ford in February 2000 to trade it in for a Ford Ranger. Because Rossignol was unable to purchase the Ranger in his own name due to poor credit, El Cajon Ford sold the truck to his mother and his company at his request.
The undisputed facts also show that after Rossignol test drove the Ranger and, after the sale was approved, he informed El Cajon Fords finance representative that he did not have a valid drivers license. Upon completion of the sale, the manager of El Cajon Ford handed the keys to the Ranger to Rossignol, who drove it off the lot.
The Whitcombs do not dispute that Rossignol never informed El Cajon Ford that he had been convicted for driving under the influence. They also do not dispute that Rossignol had not consumed any alcoholic beverages from the time he woke up on March 17, 2000, the day of the accident, to the time the accident occurred.
Based on the foregoing undisputed facts, we conclude that El Cajon Ford met its burden of persuasion and demonstrated as a matter of law that the Whitcombs could not establish the "knowledge" element of their negligent entrustment cause of action. As already discussed, imposition of tort liability for negligent entrustment of a motor vehicle requires proof that the defendant placed or entrusted the motor vehicle in the hands of a person who the defendant actually knows, or from the circumstances reasonably should know, was unfit to drive. (Dodge Center v. Superior Court, supra, 199 Cal. App. 3d at p. 341.) Although the Whitcombs presented evidence showing that El Cajon Ford knew that Rossignol did not have a valid drivers license before he drove the Ranger off the lot following completion of the sale, they presented no evidence showing that El Cajon Ford knew or reasonably should have known that Rossignol had been convicted of driving under the influence or that he was unfit to drive and would pose an unreasonable risk of harm to others by driving the Ranger.
The Whitcombs cannot satisfy the knowledge requirement by merely presenting evidence that El Cajon Ford knew Rossignol did not have a valid drivers license. As already discussed, the tort of negligent entrustment requires proof of actual or constructive knowledge of facts showing or suggesting the drivers incompetence behind the wheel, not merely his lack of a license. (Dodge Center v. Superior Court, supra, 199 Cal. App. 3d at p. 341.) Accordingly, the Whitcombs claim that El Cajon Ford is liable for negligent entrustment because Rossignol was unlicensed and "legally incompetent" to drive is unavailing. (Ibid.)
Because El Cajon Ford demonstrated as a matter of law that the Whitcombs cannot establish the knowledge element of their negligent entrustment cause of action, we need not reach the issue of whether El Cajon Ford "entrusted" the Ranger to Rossignol by selling the truck to his company and his mother, and then giving the keys to Rossignol and watching him drive it off the lot with knowledge that he did not have a valid drivers license. We note, however, that the Whitcombs have cited no case law or statutory authority, and we are aware of none, that would have obligated El Cajon Ford to inquire as to the reasons why Rossignol did not have a valid drivers license. We also note the undisputed facts show that El Cajon Ford did not own the Ranger and had no control over its use at the time the accident occurred about one month after it sold the vehicle, and thus no entrustment of the vehicle is apparent on the record presented.
The Whitcombs reliance on the decision in Hartford Accident & Indemnity Co. v. Abdullah (1979) 94 Cal. App. 3d 81, 156 Cal. Rptr. 254 (Abdullah) is misplaced. In Abdullah, a used car dealer permitted Abdullah to test drive a car two days after the dealer permitted Abdullah to test drive another. During the first test drive, Abdullah was arrested for having outstanding traffic tickets, and the car was impounded. During the second test drive, Abdullah drove the car off the lot and did not return. Two days later he caused a fatal traffic accident while driving the car the dealer had allowed him to test drive. (Abdullah, supra, 94 Cal. App. 3d at pp. 84-87.)
Abdullah is distinguishable. Here, as already discussed, the Whitcombs cannot establish the knowledge element of their negligent entrustment cause of action. In Abdullah, the car dealer knew before he permitted Abdullah to test drive the second car that Abdullah had outstanding traffic tickets, and thus knew or reasonably should have known that he was an unfit or dangerous driver. Furthermore, unlike El Cajon Ford in the instant case, the car dealer in Abdullah was still the owner of the car at the time of the accident.
The Whitcombs reliance on the unpublished Roland v. Golden Bay Chevrolet case is improper under rule 977(a) of the California Rules of Court, as the court expressly found in its order granting El Cajon Fords summary judgment motion. That rule provides:
"An opinion that is not ordered published shall not be cited or relied on by a court or a party in any other action or proceeding except as provided in subdivision (b)." (Cal. Rules of Court, rule 977(a).)
The Whitcombs do not contend, nor can they, that either of the two exceptions to the foregoing rule set forth in California Rules of Court, rule 977(b) applies in the instant case. We note that El Cajon Ford objects in its respondents brief to the Whitcombs continued reliance on the unpublished Roland decision, and the Whitcombs have not filed a reply brief.
California Rules of Court, rule 977(b) provides: "Such an opinion may be cited or relied on: [P] (1) when the opinion is relevant under the doctrines of law of the case, res judicata, or collateral estoppel; or [P] (2) when the opinion is relevant to a criminal or disciplinary action or proceeding because it states reasons for a decision affecting the same defendant or respondent in another such action or proceeding."
As the Whitcombs conceded during the summary judgment proceeding, and as they again concede in their appellants opening brief, the California Supreme Court granted a hearing in Roland but subsequently dismissed review "as moot." In effect, the Court of Appeals opinion in Roland, on which the Whitcombs rely, was superseded when the high court granted review in that matter. By dismissing review as moot, the Supreme Court dismissed review as improvidently granted. Such dismissal in effect rendered the case noncitable. Absent an express publication order, a Court of Appeal opinion is considered unpublished after disposition of a grant of review by the Supreme Court, even if (as occurred here) the Supreme Court dismisses review as improvidently granted. Here, the high court did not expressly order publication of the Court of Appeals opinion in Roland when it dismissed review. We thus conclude the Whitcombs citation to, and reliance on, the Court of Appeals Roland opinion contravenes the provisions of California Rules of Court, rule 977(a), and we have not considered that opinion.
A review of page 111 of volume No. 161 of the official California Appellate Reports, third series, shows that the Court of Appeals opinion in Roland v. Golden Bay Chevrolet was omitted. A footnote indicates the California Supreme Court granted a hearing, but subsequently dismissed Roland as moot. The footnote states: "Hearing granted. Dismissed as moot on July 18, 1985."
Causation
The Whitcombs also contend that El Cajon Fords alleged entrustment of the Ranger was a substantial factor in the death of the Whitcombs mother because Rossignol was driving it at the time of the accident. In light of our conclusion that El Cajon Ford conclusively negated the knowledge element of the Whitcombs negligent entrustment claim, it is not necessary for this court to reach the merits of this contention. In sum, we conclude the court properly granted summary judgment in favor of El Cajon Ford.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McINTYRE, J. and OROURKE, J.