In an interview immediately following the accident, Zuppardo reported to a police officer that she had been speaking with one of her court reporters, Halkett, about Halkett's son's prom and other family related issues. In their depositions, both Zuppardo and Halkett testified they were
To establish respondeat superior liability, plaintiff relies heavily on the following piece of evidence: at her deposition, Zuppardo testified she spoke on her cell phone with Halkett weekly, if not daily. Zuppardo's cell phone records, however, showed no calls between her and Halkett's cell phone for the prior six months, and only one text message. Plaintiff contends a jury could infer from this that the two did not, in fact, have a close friendship, and that the call concerned work matters, not personal matters.
Code of Civil Procedure section 437c, subdivision (e), provides that "summary judgment shall not be denied on grounds of credibility," with certain exceptions we discuss below, but which we conclude do not apply. Ultimately, plaintiff has no evidence that Zuppardo was operating within the scope of her employment at the time of the accident. Plaintiff attacks Zuppardo's and Halkett's credibility. But that is not enough, and thus the court correctly granted summary judgment.
FACTS
Esquire is a court reporting agency. Esquire hired Zuppardo in 2005. At the time of the accident, Zuppardo was the calendaring manager. Her job was to interact with attorneys seeking to hire a court reporter, make certain that depositions and hearings were calendared correctly, and ensure they were covered by one of the approximately 30 court reporters who worked for Esquire. Zuppardo scheduled depositions by entering data into a software program. Typically, when an attorney called Esquire to schedule a deposition,
Zuppardo usually booked a reporter for a deposition the business day prior to the scheduled deposition date. She would call available court reporters and leave a message if no one answered. She would continue calling available reporters until she found someone to accept the job. Using the phone was a critical part of Zuppardo's job.
At some point prior to the accident, Esquire issued Zuppardo a cell phone that she kept with her at all times. While at the office, she did not use the company cell phone, but instead used the landline. If someone needed to reach Zuppardo, they could call the after-hours answering service at the office, and the answering service would call Zuppardo's work cell phone to pass on a message. This happened only rarely. It was, however, part of her job. On rare occasions, if a court reporter cancelled an appearance for a deposition the following day, Zuppardo would use her cell phone after hours to find a last-minute replacement. Such after-hours tasks, however, were ordinarily the responsibility of the general manager. Zuppardo did not have access to the calendaring software after hours, nor did she have access to all of the court reporters' phone numbers. Zuppardo was supposed to log any hours she worked outside her normal working hours.
Sometime prior to the accident, Esquire disconnected her work cell phone, and it was not replaced. Afterwards, she would use her personal cell phone for work on the rare occasions she needed it.
Esquire had a policy forbidding employees from using a cell phone for work purposes
Michelle Halkett was a court reporter who worked exclusively with Esquire around the time of the accident. She began working for Esquire in 2009, which is when she met Zuppardo. They would speak daily. Halkett would come into the office once or twice per week and make a point of greeting Zuppardo. Over the course of their employment with Esquire, the two became friends. Zuppardo was able to recite Halkett's cell phone number from memory at her deposition. Halkett testified that over the years she had been in Zuppardo's car approximately five times. They had attended the Orange County Fair together on a couple of occasions, and had dinner together on a couple of occasions. Zuppardo had been to Halkett's home approximately three times.
Concerning their friendship, Zuppardo offered the following testimony in her deposition:
"A Very close.
"Q And the two of you would talk on the telephone on your cell phone quite a bit, correct?
"A Yes.
"Q About how often would you speak to Michelle on your cell phone?"
"A I don't know exactly.
"Q Daily or weekly?
"A Probably, yes.
"Q Which one? Daily?
"A Daily or-
[¶] ... [¶]
"Q Would you say it was several times a week?
"A Sometimes maybe.
"Q Okay. That wouldn't be unusual, would it? That would not be unusual?
"A Correct."
After Zuppardo offered this testimony, plaintiff's counsel obtained Zuppardo's cell phone records for the six months prior to the accident. They did not reflect even a single phone call between Zuppardo's cell phone and Halkett's cell phone, other than the night of the accident. They disclosed a single text message in February of 2013.
Zuppardo would schedule depositions for Halkett a few times per week. However, neither could recall any times where Zuppardo scheduled a deposition with Halkett after hours using her cell phone. Halkett testified that on the few occasions where she was contacted after hours, it was by the office manager.
The accident occurred on May 29, 2013, a Wednesday. Zuppardo left work and spent the evening with her boyfriend, eating dinner, shopping, and
Zuppardo was still speaking with Halkett when her vehicle struck plaintiff, who was walking across the street in dark clothing, not in a crosswalk. Zuppardo did
A police investigator filed a report about the incident, some of which Zuppardo disagreed with at the time of her deposition. For example, according to the report, Zuppardo had dinner with her boyfriend, then went shopping, then went to a friend's house, but Zuppardo testified the dinner was later in the evening. The report stated Zuppardo had "narrowed down" the time of her departure based on the phone call she made, but Zuppardo denied it, saying, "I personally never narrowed down anything." The report said Zuppardo decelerated to 40 miles per hour before the impact in anticipation of a turn, but Zuppardo testified the correct number was 25 or 30 miles per hour. Perhaps the most significant discrepancy, according to plaintiff, is the report's recital that Zuppardo said she was on the phone with "one of her court reporters." Zuppardo testified that she told the police officer she was speaking with her "court reporter friend."
Plaintiff filed suit against Zuppardo and Esquire for personal injuries.
DISCUSSION
The only issue on appeal is whether plaintiff created a disputed issue of material fact concerning whether Esquire may be held liable under a theory
"The rule of respondeat superior is familiar and simply stated: an employer is vicariously liable for the torts of its employees committed within the scope of the employment." ( Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995)
However, "[t]hat the employment brought tortfeasor and victim together in
"Ordinarily, the determination whether an employee has acted within the scope of employment presents a question of fact; it becomes a question of law, however, when 'the facts are undisputed and no conflicting inferences are possible.' [Citation.] In some cases, the relationship between an employee's work and wrongful conduct is so attenuated that a jury could not
Here, plaintiff has only one theory of respondeat superior liability: that Zuppardo was calling Halkett concerning a scheduling issue for a deposition. Plaintiff contends this would support a finding of respondeat superior liability, citing Miller v. American Greetings Corp. (2008)
Esquire, however, presented testimony from both Zuppardo and Halkett denying they were discussing anything concerning work. This testimony was supported by the undisputed evidence that Zuppardo only made after-hours work calls on rare occasions, and that it was not within her usual job duties. It was also supported by evidence that the two were friends. The issue, therefore, is whether plaintiff presented substantial evidence to dispute their testimony.
Plaintiff contends a jury could reasonably infer they were discussing a scheduling matter based on various pieces of circumstantial evidence. Plaintiff's starting point is the discrepancy between Zuppardo's testimony that she and Halkett spoke frequently on her cell phone, and Zuppardo's cell phone records that reflect no calls between the two prior to the night of the accident. We agree that this is strong evidence bearing adversely on Zuppardo's testimony about the closeness of their friendship.
This evidence is not enough, however, to conclude the two had no friendship at all.
Plaintiff's only response to this was to suggest Halkett had a reason to lie. In particular, Halkett testified that she valued her relationship with Esquire, had a good arrangement with Esquire regarding her earnings, and would not
None of these facts offer any true factual dispute about the substance of Halkett's testimony. At most, they marginally undermine Halkett's credibility, but merely offering reasons why a witnesss might have an incentive to lie, without offering any evidence to suggest Halkett actually was lying, is not enough to create a disputed issue of material fact. In most respondeat superior cases, an employee's testimony will be crucial to the defense. Summary judgment would become virtually impossible if merely pointing out that an employee's interests are aligned with the employer were enough to not only undermine the employee's testimony, but also prove the opposite is true. That is not the law.
Rather, the law is clear that summary judgment may not be denied solely on the basis of the credibility of the moving party's witnesses. Code of Civil Procedure section 437c, subdivision (e), provides, "If a party is otherwise entitled to summary judgment pursuant to this section, summary judgment shall not be denied on grounds of credibility ..., except that summary judgment may be denied in the discretion of the court if the only proof of a material fact offered in support of the summary judgment is an affidavit or declaration made by an individual who was the sole witness to that fact; or if a material fact is an individual's state of mind, or lack thereof, and that fact is sought to be established solely by the individual's affirmation thereof." Neither of the listed exceptions applies here. Zuppardo's and Halkett's testimony was not furnished in the form of a declaration; rather, they testified at depositions where they were subject to cross-examination. (See Morales-Simental v. Genentech, Inc. (2017)
Code of Civil Procedure section 437c, subdivision (e) embodies the principle that disbelief of a witness's statement is not proof that the opposite is true. (
The issue in Donchin was whether a landlord had actual knowledge of the dangerous propensities of two Rottweiler dogs who bit the plaintiff. ( Donchin , supra ,
The court reasoned, "There is more than one way to prove the existence of a fact, and thus more than one way to create a triable issue about the existence of that fact. One way is to introduce affirmative evidence tending to show the fact exists-the testimony of someone who observed it or who observed something from which the existence of the fact may be inferred. Another way, however, is to introduce evidence tending to show an opponent's denial of the existence of the fact is to be disbelieved, that is, evidence challenging the credibility of his denial. For, as a matter of common sense as well as formal logic, to disbelieve the denial of the existence of a fact is to believe in the existence of that fact. (For example, a defendant's alibi defense denying he was at the scene of the crime but rather was somewhere else is proven false. The jury thus disbelieves his denial and instead believes he was at the scene.) [¶] This alternative form of proof becomes especially important when the 'fact' at issue is a party's state of mind-whether it is the party's psychological condition, attitudes, motives, or as in this case, his knowledge. It often will be difficult for others to know what a person knows or does not know. They cannot peer into his brain and unless the party tells others about what he knows there will not be witnesses who can testify about what is going on inside." ( Donchin , supra , 34 Cal.App.4th at pp. 1839-1840,
Here, the important point of distinction is that Donchin involved the witness's state of mind. Section 437c, subdivision (e), specifically permits a court, in its discretion, to deny summary judgment where the only issue is the credibility of a witness making a statement about state of mind. That exception simply does not apply here, where two witnesses testified to an objective fact: the topic of their conversation.
But we are also uncomfortable with the reasoning in Donchin for at least four reasons.
Second, as a matter of formal logic, Donchin 's rule holds, if at all, in the context of a witness's mental state, but not in many other contexts. Thus, to disbelieve the landlord's statement about the dogs' dangerous propensities, one could only conclude the landlord believes they are dangerous, not that they actually are dangerous. Since the issue was the landlord's belief, that reasoning held. But imagine a different case where a witness testified the light was red, but then evidence emerged that the witness was nowhere near the light at the time. We would not conclude the light was green. Nor would we conclude the light was yellow. We would simply conclude the witness was lying in affirming the belief the light was red. Formal logic could take us no further.
This leads to our fourth criticism, which is that Donchin gave inadequate attention to the need for a plaintiff to present substantial evidence. The point of the summary judgment procedure is to test whether the plaintiff has enough evidence to support a jury verdict. Substantial evidence, however, is not synonymous with any evidence. Rather, substantial evidence must be sufficient to support the essential elements underlying a verdict. ( Bigler-Engler v. Breg, Inc. (2017)
DISPOSITION
The judgment is affirmed. Esquire shall recover is costs incurred on appeal.
WE CONCUR:
BEDSWORTH, ACTING P.J.
THOMPSON, J.
Notes
She also named two apparent family members of Zuppardo and Doe defendants.