Ayon v. Esquire Deposition Solutions, LLC, 27 Cal. App. 5th 487

Background

Late May 2013, Esquire employee Brittini Zuppardo was driving home while on a cell-phone call with Michelle Halkett and struck plaintiff Jessica Ayon, who was walking in dark clothing outside a crosswalk and seriously injured.
Zuppardo was Esquire’s calendaring/scheduling manager (daytime hours ~8:30–5:00); using the phone was central to her job, but after-hours work calls were rare and generally handled by a manager or answering service.
Esquire had a policy prohibiting cell-phone use while driving; Zuppardo had been issued a work cell that was later disconnected, and she sometimes used her personal phone for rare after-hours work calls.
Zuppardo and Halkett (a court reporter who worked mainly for Esquire) testified they were friends and that their call the night of the accident was personal (about Halkett’s son and prom), not work-related.
Zuppardo’s phone records showed no calls to Halkett in the prior six months (one February text), which plaintiff argued undermined the friendship and supported an inference the crash call was work-related.
Trial court granted Esquire summary judgment on respondeat superior grounds; plaintiff appealed challenging whether triable fact existed that the call was work-related.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether there is a triable issue that Zuppardo was acting within the scope of employment (respondeat superior) at the time of the accident	The call likely concerned scheduling (work) — phone-record discrepancy and other circumstantial evidence allow inference call was job-related	Zuppardo and Halkett both testified the call was personal; after-hours work calls were rare and not within Zuppardo’s usual duties; no direct evidence the call was work-related	No triable issue; summary judgment for Esquire affirmed
Whether impeaching credibility of defense witnesses alone can create a triable issue	Impeachment of Zuppardo’s claimed friendship frequency (phone records) supports inferring lies and thus a work-related call	Credibility attacks alone, absent substantial evidence, cannot convert testimony denial into affirmative proof of the opposite	Credibility disputes alone insufficient under CCP §437c(e); plaintiff needed independent substantial evidence
Whether Donchin v. Guerrero compels denial of summary judgment when only credibility disputes exist	Donchin allows disbelieving a denial to create a triable issue, especially on state-of-mind questions	Donchin is distinguishable (involved witness’s state of mind/knowledge) and is inconsistent with §437c(e) principles	Donchin distinguished; its reasoning is limited and does not control here
What evidence would be substantial enough to survive summary judgment	(Implied) plaintiff need evidence tying the call to work (e.g., scheduling changes, contemporaneous work call, office contact immediately before/after)	(Implied) absence of such evidence means no substantial support for respondeat superior	Affirmed that plaintiff needed objective, substantial evidence beyond impeaching testimony to create triable issue

Key Cases Cited

Lisa M. v. Henry Mayo Newhall Memorial Hospital, 12 Cal.4th 291 (defining scope-of-employment/respondeat superior standards)
Mary M. v. City of Los Angeles, 54 Cal.3d 202 (scope of employment; when issue becomes question of law)
Miller v. American Greetings Corp., 161 Cal.App.4th 1055 (work-related cell-phone calls while driving form a continuum; sometimes give rise to vicarious liability)
Donchin v. Guerrero, 34 Cal.App.4th 1832 (discussed — witness credibility/state-of-mind ruling; distinguished)
Beck Development Co. v. Southern Pacific Transportation Co., 44 Cal.App.4th 1160 (disbelief of testimony does not constitute affirmative evidence of contrary fact)
Bigler-Engler v. Breg, Inc., 7 Cal.App.5th 276 (substantial evidence standard for supporting verdict)
Morales-Simental v. Genentech, Inc., 16 Cal.App.5th 445 (interpretation of CCP §437c(e) regarding declarations vs. testimony)