1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ALFRED HOWARD BACON, No. 2:16-cv-02664-MCE-AC 12 Plaintiff, 13 v. MEMORANDUM AND ORDER 14 PAPE TRUCK LEASING, INC. and ESTENSON LOGISTICS, LLC, 15 Defendants. 16 17 18 Plaintiff Alfred Howard Bacon (“Plaintiff”) filed this suit against Pape Truck 19 Leasing, Inc. (“Pape”) and Estenson Logistics, LLC (“Estenson”) alleging negligence and 20 negligence per se. Presently before the Court are Pape’s Motion for Summary 21 Judgment, ECF No. 33, and Estenson’s Motion for Summary Judgment, ECF No. 39. 22 For the reasons set forth below, both motions are GRANTED.1 23 /// 24 /// 25 /// 26 /// 27 1 Because oral argument would not be of material assistance, the Court ordered these matters 28 submitted on the briefs. E.D. Local Rule 230(g). 1 BACKGROUND2 2 3 A. Plaintiff’s Employment with Estenson 4 Estenson, a trucking company, had a contractual agreement with Quality Driver 5 Solutions, Inc. (“Quality”), a temporary manpower agency, to provide temporary drivers 6 to Estenson. Specifically, Estenson would provide the vehicle as well as comprehensive 7 general liability and property damage insurance to protect against any liability to the 8 public arising out of or related in any manner to the work performed for Estenson by any 9 assigned Quality associate. Furthermore, Quality would not be responsible for any 10 claims, demands, causes of action, or otherwise (except under workers’ compensation 11 laws) resulting from any actions or inactions by any assigned Quality associate as 12 contemplated herein, “while such associate is under the control and direction of 13 Estenson [] or while operating a vehicle owned, leased, or operated under the control of 14 Estenson [] directly or indirectly, at any time, whether or not for the benefit of Estenson 15 [].” Quality was responsible for providing workers’ compensation insurance to its 16 associates. 17 On March 1, 2013, Plaintiff, a commercial truck driver, was placed with Estenson 18 through his employment with Quality. In April 2014, Plaintiff drove a tractor-trailer under 19 Estenson’s direction and control. Specifically, Estenson instructed Plaintiff on his duties, 20 provided the equipment such as the truck tractor and trailer, and controlled Plaintiff’s 21 hours. Plaintiff received his assignments from Estenson’s dispatchers, reported to 22 Estenson’s facilities, and prepared daily inspection reports as directed by Estenson 23 dispatchers. Estenson also had the ability to terminate Plaintiff if he was not performing 24 up to Estenson’s standards. 25 /// 26 /// 27 2 The following recitation of undisputed facts is taken, sometimes verbatim, from Plaintiff’s 28 Complaint (ECF No. 1-1) and the parties’ Statements of Undisputed Facts (ECF Nos. 37, 39-2, 43, 46). 1 B. Pape’s Contractual Relationship with Estenson 2 Pape is the owner of a 2013 KW Truck Tractor (the “subject truck tractor”) and a 3 2006 HYTR Semi Trailer and leased them to Estenson.3 Pursuant to the rental 4 agreement, Estenson agreed, among other things, to visually inspect the subject truck 5 tractor at least daily and to notify Pape if any repair or maintenance was required. 6 Estenson further acknowledged that Pape had no responsibility to inspect the subject 7 truck tractor while in Estenson’s possession. Pape was never notified by Estenson of 8 any issues with the subject truck tractor. 9 C. Plaintiff’s Accident and Workers’ Compensation Claim 10 On April 25, 2014, Estenson provided Plaintiff with the subject truck tractor and 11 asked Plaintiff to pick up an empty trailer from a yard in Lathrop, California. Before 12 leaving the yard, Plaintiff performed a quick pre-trip inspection of the subject truck 13 tractor, which included thumping the tires. Plaintiff did not do his typical required daily 14 inspection of the subject truck tractor because Estenson told him it was unnecessary. 15 Plaintiff was operating the subject truck tractor when it began to rain. When he applied 16 the brakes, the subject truck tractor began to hydroplane out of control. Plaintiff collided 17 with a cement bridge wall, causing a great deal of damage to the subject truck tractor 18 and leaving Plaintiff with serious bodily injuries. 19 Plaintiff filed a workers’ compensation claim against Quality’s compensation 20 carrier, Sussex Insurance Company. All of Plaintiff’s medical care was provided through 21 workers’ compensation and Plaintiff was also given lifetime medical care through 22 workers’ compensation. 23 D. Procedural History 24 On April 22, 2016, Plaintiff initiated this action in San Joaquin County Superior 25 Court. ECF No. 1-1. On November 8, 2016, Pape removed the action here. ECF No. 1. 26 Plaintiff alleges Pape and Estenson failed to properly inspect, maintain, service, and 27 3 Pape states that it did not lease the 2006 HYTR Semi Trailer. Pape’s Mem. Supp. Summ. J., 28 ECF No. 34, at 5. 1 repair the subject truck tractor as required by federal and California state law. He further 2 claims that the tires on the subject truck tractor had “Bald/worn tire tread/insufficient tire 3 tread depth.” 4 On December 18, 2017, Pape filed a motion for summary judgment regarding two 5 issues: (1) Plaintiff’s claim for punitive damages, and (2) Plaintiff’s claim for attorney’s 6 fees. ECF No. 18. On August 15, 2018, this Court granted Pape’s motion. ECF No. 27. 7 The following August, both Pape and Estenson filed their instant Motions for Summary 8 Judgment. ECF Nos. 33, 39. 9 10 STANDARD 11 12 The Federal Rules of Civil Procedure provide for summary judgment when “the 13 movant shows that there is no genuine dispute as to any material fact and the movant is 14 entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. 15 Catrett, 477 U.S. 317, 322 (1986). One of the principal purposes of Rule 56 is to 16 dispose of factually unsupported claims or defenses. Celotex, 477 U.S. at 325. 17 Rule 56 also allows a court to grant summary judgment on part of a claim or 18 defense, known as partial summary judgment. See Fed. R. Civ. P. 56(a) (“A party may 19 move for summary judgment, identifying each claim or defense—or the part of each 20 claim or defense—on which summary judgment is sought.”); see also Allstate Ins. Co. v. 21 Madan, 889 F. Supp. 374, 378-79 (C.D. Cal. 1995). The standard that applies to a 22 motion for partial summary judgment is the same as that which applies to a motion for 23 summary judgment. See Fed. R. Civ. P. 56(a); State of Cal. ex rel. Cal. Dep’t of Toxic 24 Substances Control v. Campbell, 138 F.3d 772, 780 (9th Cir. 1998) (applying summary 25 judgment standard to motion for summary adjudication). 26 In a summary judgment motion, the moving party always bears the initial 27 responsibility of informing the court of the basis for the motion and identifying the 28 portions in the record “which it believes demonstrate the absence of a genuine issue of 1 material fact.” Celotex, 477 U.S. at 323. If the moving party meets its initial 2 responsibility, the burden then shifts to the opposing party to establish that a genuine 3 issue as to any material fact actually does exist. Matsushita Elec. Indus. Co. v.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ALFRED HOWARD BACON, No. 2:16-cv-02664-MCE-AC 12 Plaintiff, 13 v. MEMORANDUM AND ORDER 14 PAPE TRUCK LEASING, INC. and ESTENSON LOGISTICS, LLC, 15 Defendants. 16 17 18 Plaintiff Alfred Howard Bacon (“Plaintiff”) filed this suit against Pape Truck 19 Leasing, Inc. (“Pape”) and Estenson Logistics, LLC (“Estenson”) alleging negligence and 20 negligence per se. Presently before the Court are Pape’s Motion for Summary 21 Judgment, ECF No. 33, and Estenson’s Motion for Summary Judgment, ECF No. 39. 22 For the reasons set forth below, both motions are GRANTED.1 23 /// 24 /// 25 /// 26 /// 27 1 Because oral argument would not be of material assistance, the Court ordered these matters 28 submitted on the briefs. E.D. Local Rule 230(g). 1 BACKGROUND2 2 3 A. Plaintiff’s Employment with Estenson 4 Estenson, a trucking company, had a contractual agreement with Quality Driver 5 Solutions, Inc. (“Quality”), a temporary manpower agency, to provide temporary drivers 6 to Estenson. Specifically, Estenson would provide the vehicle as well as comprehensive 7 general liability and property damage insurance to protect against any liability to the 8 public arising out of or related in any manner to the work performed for Estenson by any 9 assigned Quality associate. Furthermore, Quality would not be responsible for any 10 claims, demands, causes of action, or otherwise (except under workers’ compensation 11 laws) resulting from any actions or inactions by any assigned Quality associate as 12 contemplated herein, “while such associate is under the control and direction of 13 Estenson [] or while operating a vehicle owned, leased, or operated under the control of 14 Estenson [] directly or indirectly, at any time, whether or not for the benefit of Estenson 15 [].” Quality was responsible for providing workers’ compensation insurance to its 16 associates. 17 On March 1, 2013, Plaintiff, a commercial truck driver, was placed with Estenson 18 through his employment with Quality. In April 2014, Plaintiff drove a tractor-trailer under 19 Estenson’s direction and control. Specifically, Estenson instructed Plaintiff on his duties, 20 provided the equipment such as the truck tractor and trailer, and controlled Plaintiff’s 21 hours. Plaintiff received his assignments from Estenson’s dispatchers, reported to 22 Estenson’s facilities, and prepared daily inspection reports as directed by Estenson 23 dispatchers. Estenson also had the ability to terminate Plaintiff if he was not performing 24 up to Estenson’s standards. 25 /// 26 /// 27 2 The following recitation of undisputed facts is taken, sometimes verbatim, from Plaintiff’s 28 Complaint (ECF No. 1-1) and the parties’ Statements of Undisputed Facts (ECF Nos. 37, 39-2, 43, 46). 1 B. Pape’s Contractual Relationship with Estenson 2 Pape is the owner of a 2013 KW Truck Tractor (the “subject truck tractor”) and a 3 2006 HYTR Semi Trailer and leased them to Estenson.3 Pursuant to the rental 4 agreement, Estenson agreed, among other things, to visually inspect the subject truck 5 tractor at least daily and to notify Pape if any repair or maintenance was required. 6 Estenson further acknowledged that Pape had no responsibility to inspect the subject 7 truck tractor while in Estenson’s possession. Pape was never notified by Estenson of 8 any issues with the subject truck tractor. 9 C. Plaintiff’s Accident and Workers’ Compensation Claim 10 On April 25, 2014, Estenson provided Plaintiff with the subject truck tractor and 11 asked Plaintiff to pick up an empty trailer from a yard in Lathrop, California. Before 12 leaving the yard, Plaintiff performed a quick pre-trip inspection of the subject truck 13 tractor, which included thumping the tires. Plaintiff did not do his typical required daily 14 inspection of the subject truck tractor because Estenson told him it was unnecessary. 15 Plaintiff was operating the subject truck tractor when it began to rain. When he applied 16 the brakes, the subject truck tractor began to hydroplane out of control. Plaintiff collided 17 with a cement bridge wall, causing a great deal of damage to the subject truck tractor 18 and leaving Plaintiff with serious bodily injuries. 19 Plaintiff filed a workers’ compensation claim against Quality’s compensation 20 carrier, Sussex Insurance Company. All of Plaintiff’s medical care was provided through 21 workers’ compensation and Plaintiff was also given lifetime medical care through 22 workers’ compensation. 23 D. Procedural History 24 On April 22, 2016, Plaintiff initiated this action in San Joaquin County Superior 25 Court. ECF No. 1-1. On November 8, 2016, Pape removed the action here. ECF No. 1. 26 Plaintiff alleges Pape and Estenson failed to properly inspect, maintain, service, and 27 3 Pape states that it did not lease the 2006 HYTR Semi Trailer. Pape’s Mem. Supp. Summ. J., 28 ECF No. 34, at 5. 1 repair the subject truck tractor as required by federal and California state law. He further 2 claims that the tires on the subject truck tractor had “Bald/worn tire tread/insufficient tire 3 tread depth.” 4 On December 18, 2017, Pape filed a motion for summary judgment regarding two 5 issues: (1) Plaintiff’s claim for punitive damages, and (2) Plaintiff’s claim for attorney’s 6 fees. ECF No. 18. On August 15, 2018, this Court granted Pape’s motion. ECF No. 27. 7 The following August, both Pape and Estenson filed their instant Motions for Summary 8 Judgment. ECF Nos. 33, 39. 9 10 STANDARD 11 12 The Federal Rules of Civil Procedure provide for summary judgment when “the 13 movant shows that there is no genuine dispute as to any material fact and the movant is 14 entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. 15 Catrett, 477 U.S. 317, 322 (1986). One of the principal purposes of Rule 56 is to 16 dispose of factually unsupported claims or defenses. Celotex, 477 U.S. at 325. 17 Rule 56 also allows a court to grant summary judgment on part of a claim or 18 defense, known as partial summary judgment. See Fed. R. Civ. P. 56(a) (“A party may 19 move for summary judgment, identifying each claim or defense—or the part of each 20 claim or defense—on which summary judgment is sought.”); see also Allstate Ins. Co. v. 21 Madan, 889 F. Supp. 374, 378-79 (C.D. Cal. 1995). The standard that applies to a 22 motion for partial summary judgment is the same as that which applies to a motion for 23 summary judgment. See Fed. R. Civ. P. 56(a); State of Cal. ex rel. Cal. Dep’t of Toxic 24 Substances Control v. Campbell, 138 F.3d 772, 780 (9th Cir. 1998) (applying summary 25 judgment standard to motion for summary adjudication). 26 In a summary judgment motion, the moving party always bears the initial 27 responsibility of informing the court of the basis for the motion and identifying the 28 portions in the record “which it believes demonstrate the absence of a genuine issue of 1 material fact.” Celotex, 477 U.S. at 323. If the moving party meets its initial 2 responsibility, the burden then shifts to the opposing party to establish that a genuine 3 issue as to any material fact actually does exist. Matsushita Elec. Indus. Co. v. Zenith 4 Radio Corp., 475 U.S. 574, 586-87 (1986); First Nat’l Bank v. Cities Serv. Co., 391 U.S. 5 253, 288-89 (1968). 6 In attempting to establish the existence or non-existence of a genuine factual 7 dispute, the party must support its assertion by “citing to particular parts of materials in 8 the record, including depositions, documents, electronically stored information, 9 affidavits[,] or declarations . . . or other materials; or showing that the materials cited do 10 not establish the absence or presence of a genuine dispute, or that an adverse party 11 cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). The 12 opposing party must demonstrate that the fact in contention is material, i.e., a fact that 13 might affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, 14 Inc., 477 U.S. 242, 248, 251-52 (1986); Owens v. Local No. 169, Assoc. of W. Pulp and 15 Paper Workers, 971 F.2d 347, 355 (9th Cir. 1987). The opposing party must also 16 demonstrate that the dispute about a material fact “is ‘genuine,’ that is, if the evidence is 17 such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 18 477 U.S. at 248. In other words, the judge needs to answer the preliminary question 19 before the evidence is left to the jury of “not whether there is literally no evidence, but 20 whether there is any upon which a jury could properly proceed to find a verdict for the 21 party producing it, upon whom the onus of proof is imposed.” Anderson, 477 U.S. at 251 22 (quoting Improvement Co. v. Munson, 81 U.S. 442, 448 (1871)) (emphasis in original). 23 As the Supreme Court explained, “[w]hen the moving party has carried its burden under 24 Rule [56(a)], its opponent must do more than simply show that there is some 25 metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586. Therefore, 26 “[w]here the record taken as a whole could not lead a rational trier of fact to find for the 27 nonmoving party, there is no ‘genuine issue for trial.’” Id. at 587. 28 /// 1 In resolving a summary judgment motion, the evidence of the opposing party is to 2 be believed, and all reasonable inferences that may be drawn from the facts placed 3 before the court must be drawn in favor of the opposing party. Anderson, 477 U.S. at 4 255. Nevertheless, inferences are not drawn out of the air, and it is the opposing party’s 5 obligation to produce a factual predicate from which the inference may be drawn. 6 Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff’d, 7 810 F.2d 898 (9th Cir. 1987). 8 9 ANALYSIS 10 11 A. Estenson’s Motion for Summary Judgment 12 Estenson moves for summary judgment on the basis that Plaintiff’s claims are 13 barred by the exclusive remedy provisions of the Workers’ Compensation Act (“WCA”). 14 Estenson’s Mem. Supp. Summ. J., ECF No. 39-1, at 1. Plaintiff filed a statement of non- 15 opposition to Estenson’s Motion. ECF No. 44. While “[a] district court may not grant a 16 motion for summary judgment solely because the opposing party has failed to file an 17 opposition,” Van Mathis v. Safeway Grocery, No. C 09-2026 WHA (PR), 2010 WL 18 3636213, at *1 (N.D. Cal. Sept. 14, 2010), the Court agrees here that Estenson has 19 satisfied “its burden of showing entitlement to judgment.” Cristobal v. Siegal, 26 F.3d 20 1488, 1491 (9th Cir. 1994). 21 Under California substantive law, a special employment status “arises when an 22 employer lends an employee to another employer and relinquishes to the borrowing 23 employer all right of control over the employees’ activities. The borrowed employee is 24 held to have two employers—his original or ‘general’ employer and a second, the 25 ‘special’ employer.” Wedeck v. Unocal Corp., 59 Cal. App. 4th 848, 856-57 (1997) 26 (internal citations omitted). The question of whether a special employment relationship 27 exists is generally a question of fact reserved for the jury. Kowalski v. Shell Oil Co., 28 23 Cal. 3d 168, 175 (1979). “However, if neither the evidence nor inferences are in 1 conflict, then the question of whether an employment relationship exists becomes a 2 question of law which may be resolved on summary judgment.” Riley v. Southwest 3 Marine, Inc., 203 Cal. App. 3d 1242, 1248 (1988). There are multiple factors to be 4 considered in determining whether a special employment relationship exists, but the 5 primary one is “whether the special employer has the right to control the direct activities 6 of the alleged employee or the manner in which the work is performed, whether 7 exercised or not.” Wedeck, 59 Cal. App. 4th at 857 (listing additional factors such as 8 length of employment, existence of agreement between original and special employers, 9 and whether the employee is performing the special employer’s work). 10 Here, the undisputed facts evidence the existence of a special employment 11 relationship between Plaintiff and Estenson. First, Plaintiff’s placement with Estenson 12 through Quality, a temporary manpower agency, does not negate the existence of a 13 special employment relationship. Santa Cruz Poultry, Inc. v. Super. Ct., 14 194 Cal. App. 3d 575, 579 (1987) (“[I]n cases such as this where the general employer is 15 a temporary employment agency . . . and the business to which the employee is 16 assigned has the right of supervision and direction of the employment duties, the typical 17 result is to find the existence of a special employment relationship.”). Second, the 18 control factor weighs heavily in Estenson’s favor: Plaintiff received his assignments from 19 Estenson’s dispatchers, reported to Estenson’s facilities, and prepared daily inspection 20 reports as directed by Estenson’s dispatchers. Estenson’s Statement of Undisputed 21 Facts, ECF No. 39-2, ¶¶ 12, 16-20. Estenson also provided Plaintiff with the equipment 22 (including the subject truck tractor) and controlled the number of hours Plaintiff worked. 23 Id. ¶¶ 13-14. Thus, the Court finds that a special employment relationship existed. See 24 Santa Cruz Poultry, 194 Cal. App. 3d at 584 (finding existence of special employment 25 relationship when special employer “had the ability to control the result of [temporary 26 worker]’s work and the means by which it was accomplished, including the details 27 relating to his job performance at the time of the injuries alleged”). 28 /// 1 Since Plaintiff was a special employee of Estenson, the WCA’s exclusive remedy 2 rule precludes Plaintiff’s claims only if the accident at issue occurred during the course 3 and scope of the special employment. Here, Estenson asked Plaintiff to pick up an 4 empty trailer at the yard in Lathrop and provided him with the subject truck tractor. The 5 accident occurred while Plaintiff was driving the subject truck tractor on Estenson’s 6 assignment. Because the accident occurred during the course and scope of the special 7 employment, Estenson is entitled to the protections of the WCA’s exclusive remedy rule 8 and Plaintiff’s claims against Estenson are thus barred.4 Based on the above and 9 Plaintiff’s failure to provide any evidence to the contrary, Estenson’s Motion is 10 GRANTED.5 11 B. Pape’s Motion for Summary Judgment 12 1. Negligence (First Cause of Action) 13 Pape argues that it did not owe a duty to Plaintiff because it leased the subject 14 truck tractor to Estenson who assumed all responsibilities for their use and maintenance. 15 Pape’s Mem. Supp. Summ. J., ECF No. 34, at 5. In California, a plaintiff must prove the 16 following elements for a negligence claim: (1) a legal duty to use care; (2) breach of that 17 duty; (3) causation; and (4) damages. Ladd v. Cty. of San Mateo, 12 Cal. 4th 913, 917 18 (1996). 19 As an initial matter, there are no undisputed facts in this case. Significantly, it is 20 undisputed that Estenson was contractually responsible to visually inspect the subject 21 truck tractor daily as well as notify Pape should any repair or maintenance be necessary. 22 4 Given the medical treatment and coverage Plaintiff received by way of his workers’ 23 compensation claim, the inability to bring a tort claim is supported by the case law. See Santa Cruz Poultry, 194 Cal. App. 3d at 583 (“Further, the employee here has received the quid pro quo—workers’ 24 compensation coverage with attendant quick recovery and simplified procedures—which justifies loss of the right to bring a tort case.”). 25 5 Estenson further moves for summary adjudication on Plaintiff’s claim for punitive damages, arguing that there is no evidence of malicious, oppressive, or fraudulent conduct. Estenson’s Mem. Supp. 26 Summ. J., ECF No. 39-1, at 15-17. The Court agrees that no evidence has been proffered in support of the assertion that Estenson acted with malice, or in an oppressive or fraudulent manner, nor has Plaintiff 27 raised a genuine issue of material fact regarding the ratification of any malicious, oppressive, or fraudulent conduct by an officer, director, or managing agent of Estenson. Therefore, Estenson’s Motion is also 28 GRANTED with respect to punitive damages. 1 It is further undisputed that Estenson acknowledged Pape had no responsibility to 2 inspect the subject truck tractor while it was in Estenson’s possession. Finally, both 3 parties agree that Estenson inspected the subject truck tractor prior to leaving Pape’s 4 possession and that Plaintiff performed his own pre-trip inspection, with both inspections 5 failing to find any problems or deficiencies with the tires. 6 Plaintiff does not provide any evidence in opposition to the foregoing and instead 7 argues that leasing the subject truck tractor to Estenson does not excuse Pape from 8 liability. Pl.’s Opp., ECF No. 41, at 6. Not only does Plaintiff fail to cite any legal 9 authority for this proposition, but it is undisputed that Pape had no responsibility for the 10 subject truck tractor while in Estenson’s possession. Based on the undisputed facts, it is 11 unclear what duty Pape owed to Plaintiff if Estenson was responsible for inspections 12 while the subject truck tractor was in its possession, and such inspections failed to reveal 13 any issues with the tires. See also 49 C.F.R. § 376.12(c)(1) (providing the authorized 14 carrier lessee “shall have exclusive possession, control, and use of the equipment” and 15 “assume complete responsibility for the operation of the equipment for the duration of 16 the lease”); 13 C.C.R. § 1235.7(d)(3)(A) (same). 17 Pape further contends that Plaintiff fails to identify any negligent conduct by Pape 18 or how Pape’s actions caused the accident. Pape’s Mem. Supp. Summ. J., ECF No. 34, 19 at 6. Plaintiff alleges that the subject truck tractor had “[b]ald tires/worn tire 20 tread/insufficient tire tread depth,” which caused the accident. Ex. C, Robertson Decl., 21 ECF No. 36, at 7 (Plaintiff’s Response to Interrogatory No. 19). However, Plaintiff’s 22 contention is purely conclusory and speculative and fails to point to any direct evidence, 23 including which tires suffered these deficiencies. Furthermore, it is undisputed that both 24 Estenson and Plaintiff inspected the subject truck tractor and found no issues with the 25 tires, with Estenson performing its inspection prior to the subject truck tractor leaving 26 /// 27 /// 28 /// 1 Pape’s possession. Accordingly, there is no genuine issue for trial as to this claim, and 2 Pape’s Motion is GRANTED as to Plaintiff’s negligence cause of action.6 3 2. Negligence Per Se (Second Cause of Action) 4 Negligence per se is not an independent cause of action recognized in California. 5 Rather, the term refers to the borrowing of a statute to establish either the duty or 6 standard of care in a negligence cause of action. Elsner v. Uveges, 34 Cal. 4th 915, 927 7 n.8 (2004). Regardless, Plaintiff fails to identify a proper statute or regulation that would 8 establish a duty on the part of Pape. Plaintiff cites a federal regulation which requires 9 tires to have a tread groove pattern of a minimum of 2/32 of an inch but fails to provide 10 evidence that the tires did not meet this standard, especially since Plaintiff agrees that 11 his and Estenson’s inspections did not reveal such deficiencies. See 49 C.F.R. 12 § 393.75. Plaintiff also cites California Vehicle Code §§ 1215 and 6336(i), but such 13 sections do not exist. Finally, Plaintiff cites California Vehicle Code § 21059, but this 14 section relates to the operation of rubbish or garbage trucks.7 Therefore, Pape’s Motion 15 is GRANTED as to Plaintiff’s negligence per se cause of action. 16 /// 17 /// 18 /// 19 /// 20 /// 21 /// 22 6 Plaintiff submitted a declaration in support of his Opposition to Pape’s Motion, which Pape asks 23 the Court to strike in its entirety as a sham declaration. Pl.’s Decl., ECF No. 42; Pape’s Objection to Decl., ECF No. 47. “The general rule in the Ninth Circuit is that a party cannot create an issue of fact by an 24 affidavit contradicting his prior deposition testimony.” Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th Cir. 1991). The Court notes that Plaintiff’s Declaration attempts to create genuine issues of material 25 fact by asserting new arguments not previously found in the Complaint and contradicting statements he made during his deposition. However, given that there are no undisputed facts in this case, the Court reached its decision on that basis and did not need to rely on Plaintiff’s Declaration. Therefore, Pape’s 26 request to apply the sham declaration rule is denied as moot.
27 7 Plaintiff cites additional statutes and regulations in his Opposition that were not previously pleaded in the Complaint. See ECF No. 41, at 4-6. Such assertions are improper and thus there is no 28 basis on which to grant judgment as to these statutes and regulations. 1 CONCLUSION 2 3 For the reasons set forth above, Pape’s Motion for Summary Judgment, ECF 4 | No. 33, is GRANTED, and Estenson’s Motion for Summary Judgment, ECF No. 39, is 5 | also GRANTED. The Clerk of the Court is directed to enter judgment in favor of Pape 6 | and Estenson and to close this case. 7 IT 1S SO ORDERED. g | Dated: February 18, 2020 9 J Lat LEK 10 MORRISON C. ENGLAND, J UNITED STATES DISTRI 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11