 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Schwartzberg v. Warmington Homes California1/30/2002
NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
The plaintiffs, Allison Herring Schwartzberg and Starlyn Herring (her minor daughter), appeal from the judgment dismissing defendant Warmington Homes California (Warmington) from their ongoing personal injury action, following defendant Warmington's successful motion for summary judgment. As the judgment acted as an implied denial (by operation of law) of their outstanding motion for reconsideration, we deem their notice of appeal to embrace that issue as well (notwithstanding the argument to the contrary of defendant Warmington). The trial court ruled that the plaintiffs failed to produce evidence supporting the theories of respondeat superior or negligent hiring and supervision under which they would hold defendant Warmington liable for the actions of its employee. We agree and thus shall affirm.
Scope of Review
The purpose of summary judgment "is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute." Under " he historic paradigm for our de novo review of a motion for summary judgment . . . e first identify the issues framed by the pleadings since it is these allegations to which the motion must respond. We then determine if the moving party has established a prima facie entitlement to judgment in its behalf. Only if the moving party has satisfied this burden do we consider whether the opposing party has produced evidence demonstrating there is a triable issue of fact with respect to any aspect of the moving party's prima facie case."
" he Legislature has given a `federal' flavor to the nature of the moving party's prima facie case. Previously, the moving party could establish its prima facie entitlement to judgment only by demonstrating the existence of facts which negated an element of the opponent's case. (AARTS Productions, Inc. v. Crocker National Bank[ (1985)] 179 Cal.App.3d [1061,] 1064.) Now, however, the moving party is not limited to supporting its motion with affirmative evidence. It may also establish its prima facie entitlement to judgment by demonstrating [that] its opponent's discovery responses are devoid of evidence to support an element of the opponent's case," and that the opponent "cannot reasonably obtain . . . evidence that would allow [a reasonable] trier of fact to find any underlying material fact more likely than not." In evaluating circumstantial evidence, the court must take into consideration all inferences reasonably drawn from the evidence in favor of the opponent.
The Pleadings
According to the plaintiffs' amended pleading, on August 19, 1999, Carl Mignone (another defendant not a party to this appeal) negligently crashed his pickup truck into the plaintiffs' vehicle as they were travelling on the interstate, causing them injuries. In their first "cause of action," the plaintiffs alleged that defendant Mignone "was the agent and employee" of defendant Warmington, "and in performing the acts referred to herein was acting in the course and scope of his agency and employment" with defendant Warmington. In their alternative theory of liability, the plaintiffs alleged the defendants "knew . . . or in the exercise of reasonable diligence should have known that defendant MIGNONE was incompetent and unfit to perform the duties for which he was employed, an
Page 1 2 3 4 5 6 7 California Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|