BLAKE MCKENNA, Plaintiff and Appellant, v. LANCE BEESLEY et al., Defendants and Respondents.
D077189
COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Filed 8/6/21
CERTIFIED FOR PUBLICATION
(Super. Ct. No. 37-2018-00009594-CU-PA-CTL)
APPEALS from judgments of the Superior Court of San Diego County, Gregory W. Pollack, Judge. Judgments and orders reversed.
Ritter & Associates, Dwight F. Ritter, Karen L. Albence; Williams Iagmin and Jon R. Williams for Plaintiff and Appellant.
Friedenthal, Heffernan & Brown and Jay D. Brown for Defendant and Respondent Lance Beesley.
Gordon Rees Scully Mansukhani and Don Willenburg for Defendant and Respondent Smoothreads, Inc.
The California Supreme Court has explained that the tort of negligent entrustment of a motor vehicle and the tort of negligent hiring of a person to drive a vehicle are both premised on the “[a]wareness [by the defendant], constructive or actual, that a person is unfit or incompetent to drive.” (Diaz v. Carcamo (2011) 51 Cal.4th 1148, 1157 (Diaz).) In this appeal, we consider two issues related to the scope of the constructive knowledge element of these torts.
First, we consider the effect of the Legislature‘s enactment of
We also consider whether a person may be held liable for the common law tort of negligent hiring when the person hires another and allows the hiree to drive a vehicle under the hirer‘s control without making a reasonable effort or inquiry to determine whether the hiree has an appropriate driver‘s license, and the hiree in fact lacks such license. (See
him or her or under his or her control upon the highways unless that person is licensed for the appropriate class of vehicle to be driven“].) Under these circumstances, we conclude that a jury may find that the hirer had constructive knowledge of the hiree‘s incompetence to drive.2
A. The complaint
In February 2018, Blake McKenna filed a form complaint against Lance Beesley and Smoothreads, Inc. (Smoothreads).3 McKenna checked boxes on the form complaint indicating that he was bringing causes of action for “Motor Vehicle,” and “General Negligence.” McKenna also checked a box indicating that he was bringing causes of action styled as “Negligence Per Se, [and] Negligent Entrustment.”
In an attachment to the complaint, McKenna alleged that on August 4, 2017, he was a pedestrian lawfully crossing the street when he was struck by a vehicle driven by Ann Rogers. McKenna alleged that Rogers‘s vehicle struck him due to the negligence of “Doe 1,” (i.e., Ronald Wells)4 who had
“negligently [run] a red light.” Specifically, McKenna alleged that Wells negligently drove his vehicle through a red light, striking Rogers‘s vehicle, and that Rogers‘s vehicle in turn struck McKenna.5 McKenna alleged that he suffered severe bodily injuries as a result of the accident.
McKenna also alleged that Wells was driving a vehicle owned by Beesley and Smoothreads.6 McKenna further alleged that Beesley and Smoothreads knew or should have known that, due to Wells‘s past driving experience and/or lack of driving experience, Wells was a negligent driver who created a
B. Smoothreads‘s motion for summary adjudication
Smoothreads filed a motion for summary adjudication in May 2019 in which it sought a determination that McKenna could not prevail on a claim of negligent entrustment against it, among other arguments.8 In a supporting brief, Smoothreads explained that, for purposes of its motion, it assumed that Smoothreads, through Beesley, had granted Wells permission to drive the vehicle that was involved in the accident.9 However, Smoothreads contended that it was entitled to summary adjudication of McKenna‘s negligent entrustment claim against it because there was no “evidence . . . to demonstrate that Smoothreads . . . had any actual or constructive knowledge that the vehicle operator was an incompetent, reckless or inexperienced driver.”
Smoothreads argued in relevant part:
“The sole officer and shareholder of Smoothreads is . . . Beesley. [Citation.] Beesley hired Wells to perform some various home construction projects at the Beesley home. [Citation.] Wells represented that he had an active California contractor‘s license and around 40 years of experience in the industry. [Citation.] In fact, when Wells arrived at the Beesley home, Wells was driving his own vehicle. [Citation.] These undisputed facts demonstrate that Smoothreads, by and through Beesley, had absolutely no reason to suspect any level of driving incompetence or unfitness on the part of Wells. Beesley understood that Wells was an experienced contractor, with an active contractor‘s license, and Wells arrived driving his own
vehicle. Nothing about that situation puts Smoothreads ‘on notice’ of any incompetence or unfitness with respect to Wells[‘s] driving ability.
“Similarly, [McKenna] cannot show any actual knowledge of unfitness. Wells never informed Beesley of any history with bipolar disorder [citation], never informed him of any history of alcohol problems [citation], never
informed him of any history of DUI arrests [citation], never informed him of any arrests in his driving history [citation], and never informed him that he did not have a driver‘s license.10 [Citation.] Simply stated, Smoothreads, by and through Beesley, lacked the required actual knowledge in order for [McKenna] to prevail on a negligent entrustment theory. Given this lack of knowledge, either actual or constructive, about any level of unfitness or incompetence with respect to Wells, Smoothreads, by and through Beesley, had absolutely no ‘duty to inquire’ any further. Instead, Smoothreads was ‘entitled to rely on [Wells] to discharge [his] responsibilities with reasonable care.‘”11
C. Beesley‘s motion for summary judgment
Beesley filed a motion for summary judgment in May 2019, presenting an argument similar to Smoothreads‘s argument in its motion for summary adjudication. In a supporting brief, Beesley stated that he is the chief executive officer of Smoothreads and acknowledged that Smoothreads was
the owner of a vehicle involved in the accident. However, Beesley stated that Wells was “never employed by [Smoothreads] and never performed work of any kind for [Smoothreads].” Beesley did acknowledge that Beesley had “used Mr. Wells for various . . . handyman jobs at his residence.”
Beesley maintained that he could not be liable for negligent entrustment because, even assuming that Wells was the operator of the Smoothreads vehicle involved in the accident and that Beesley gave Wells permission to drive the vehicle, “Beesley had no knowledge that Mr. Wells was incompetent [to] drive the subject vehicle.” Specifically, Beesley argued, “At no time was [Beesley] aware that . . . Wells did not have a valid driver‘s license, or that he had a history of alcohol-related driving incidents.” Beesley also stated, “Wells never told Mr. Beesley [t]hat he was in any way incompetent to operate a vehicle.”
D. McKenna‘s oppositions
In his oppositions to Beesley‘s and Smoothreads‘s motions, McKenna argued that “Beesley, president [and chief executive officer] of Smoothreads, negligently hired, supervised, or retained . . . Wells, and knew or should have
“Beesley negligently hired, negligently supervised, and negligently retained . . . Wells. [Citation.] . . . Wells did not have a valid driver‘s license, nor auto insurance coverage. [Citation.] Also, Wells[‘s] driving history included [three] suspensions for [three] separate [driving under the influence] criminal convictions. . . . Beesley, [president], and [chief executive officer] of Smoothreads, did not ask Wells, his employee, whether he had a valid driver‘s
license. [Citation.] Beesley did not ask Wells, his employee, before Wells drove, or after, whether he had auto insurance coverage. [Citation.]
“Beesley did not ask Wells before he drove, or after, about Wells[‘s] driving history or verify Wells[‘s] driving history in the State of California which contained multiple suspensions, including [three driving under the influence] criminal convictions. [Citation.] Wells worked at Beesley‘s home throughout the months of June, July and August of 2017. [Citation.] Beesley had multiple opportunities while working to ask Wells if he had a valid driver‘s license and, if not, any driving restrictions or suspensions. [Citation.] As a matter of fact, the State of California would not license Wells as a competent driver and suspended him from driving on [three] occasions. The State of California knew and treated Wells as an incompetent driver. Beesley knew or should have known that Wells was being negligently supervised, negligently retained, and incompetent to drive [Smoothreads‘s vehicle]. [Citation.]”13
E. The trial court‘s order granting Smoothreads‘s motion for summary adjudication and granting Beesley‘s motion for summary judgment
After Smoothreads and Beesley filed replies to McKenna‘s oppositions, the trial court held a hearing on the motions. The court subsequently entered an order on September 6, 2019 granting both Smoothreads‘s motion for summary adjudication and Beesley‘s motion for summary judgment. The trial court reasoned in part:
“Neither Beesley nor Smoothreads had any actual knowledge of any facts that would have placed either on notice of Wells‘[s] lack of licensure or otherwise unfitness to
operate a motor vehicle. See Richards v. Stanley (1954) 43 Cal.2d 60, 63 [(Richards)] (‘[I]t has generally been held that the owner of an automobile is under no duty to persons who may be injured by its use to keep it out of the hands of a third person in the absence of facts putting the owner on notice that the third person is incompetent to handle it.‘). Accordingly, neither Beesley nor Smoothreads had a legal duty to conduct any investigation or make any inquiry regarding Wells‘[s] fitness to operate a motor vehicle.
“The question whether a legal duty exists is to be resolved by the court, not a jury. [Citation.] ‘Duty, being a question of law, is particularly amenable to resolution by summary judgment.’ [Citation.]
“McKenna cites no persuasive legal authority to the effect that an owner entrusting his vehicle to a third party faces liability for negligent entrustment when, not knowing any facts to put him on notice of the third party‘s unfitness, simply fails to conduct an investigation to determine fitness. This would create a new legal duty in California, and this court is not inclined to make new law. . . .
“Finally, McKenna‘s reliance upon [section] 14606 is misplaced. In Dodge Center v. Superior Court (1988) 199 Cal.App.3d 332, 338 [(Dodge Center)], the court stated:
“‘[]Section 14606, like the common law cause of action for entrustment, requires a showing of knowledge of the incapacitating condition which under the statute is lack of a license. In the absence of such knowledge there is no duty to inquire. [Emphasis added.][] ‘”
F. The trial court‘s judgments
The trial court entered a judgment in favor of Beesley on the basis of its summary judgment order on October 30, 2019. On February 28, 2020, the trial court entered a judgment in favor of Smoothreads. The trial court‘s February 28 judgment states in relevant part:
“On or about September 6, 2019, the Court granted [Smoothreads‘s] Motion for Summary Adjudication, ruling that Smoothreads‘[s] liability, if any, to [McKenna] for his causes of action of General Negligence and Motor Vehicle Negligence was limited to $15,000 pursuant to the permissive use statute ([§] 17151). [McKenna] has since waived his right to collect under a permissive use claim.”14
In December 2019, McKenna timely filed an appeal from the October 30, 2019 judgment in favor of Beesley, and in March 2020, McKenna timely filed an appeal from the February 28, 2020 judgment in favor of Smoothreads.
III. DISCUSSION
The trial court erred in granting Smoothreads‘s motion for summary adjudication and Beesley‘s motion for summary judgment
McKenna contends that the trial court erred in granting Smoothreads‘s motion for summary adjudication and Beesley‘s motion for summary judgment. Specifically, McKenna claims that a reasonable jury could find
Smoothreads liable for negligent entrustment and Beesley liable for negligent hiring.
We first provide an overview of the relevant legal principles, before addressing in detail McKenna‘s claims as to each defendant.
A. The law governing summary adjudication and summary judgment
” ‘Summary judgment and summary adjudication 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. [Citations.] A defendant moving for summary judgment or summary adjudication may demonstrate that the plaintiff‘s cause of action has no merit by showing that (1) one or more elements of the cause of action cannot be established, or (2) there is a complete defense to that cause of action.’ ” (Camacho v. Target Corp. (2018) 24 Cal.App.5th 291, 296 (Camacho).)
A party is entitled to summary adjudication of a cause of action if there is no triable issue of material fact and the party is entitled to judgment as a
matter of law on that cause of action. ( Code Civ. Proc., § 437c, subd. (f)(1) , (2).) A trial court shall grant summary judgment if “all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law,” (id.,subd. (c) ), with respect to the entire “action.” (id.,subd. (a) .)“On appeal, the reviewing court makes ‘an independent assessment of the correctness of the trial court‘s ruling [regarding summary adjudication or summary judgment], applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law.‘”
[Citation.] Our task is to determine whether a triable issue of material fact exists.” (Camacho, supra, 24 Cal.App.5th at p. 297.)
B. Substantive law
1. The torts of negligent entrustment and negligent hiring
a. Negligent entrustment
“California is one of several states [that] recognizes the liability of an automobile owner who has entrusted a car to an incompetent, reckless, or inexperienced driver” (italics omitted) through the tort of negligent entrustment. (Allen v. Toledo (1980) 109 Cal.App.3d 415, 420.)
In Ghezavat v. Harris (2019) 40 Cal.App.5th 555, 559, the court outlined the tort of negligent entrustment, where the object entrusted is a motor vehicle:
“Negligent entrustment is a common law liability doctrine, which arises in numerous factual contexts. [Citation.] In cases involving negligent entrustment of a vehicle, liability ’ “is imposed on [a] vehicle owner or permitter because of his own independent negligence and not the negligence of the driver.“’ [Citations.] “Liability for the negligence of the incompetent driver to whom an automobile is entrusted does not arise out of the relationship of the parties, but from the act of entrustment of the motor vehicle, with permission to operate the same, to one whose incompetency, inexperience, or recklessness is known or should have been known by the owner.“’ [Citation.]; accord, Rest.2nd Torts, § 308 [‘It is negligence to permit a third person to use a thing or to engage in an activity which is under the control of the actor, if the actor knows or should know that such person intends or is likely to use the thing or to conduct himself in the activity in such a manner as to create an unreasonable risk of harm to others‘].)”
CACI No. 724 outlines the elements of the tort of negligent entrustment of a motor vehicle:
“1. That [name of driver] was negligent in operating the vehicle; “2. That [name of defendant] [owned the vehicle operated by [name of driver]/had possession of the vehicle operated by [name of driver] with the owner‘s permission];
“3. That [name of defendant] knew, or should have known, that [name of driver] was incompetent or unfit to drive the vehicle;
“4. That [name of defendant] permitted [name of driver] to drive the vehicle; and
“5. That [name of driver]‘s incompetence or unfitness to drive was a substantial factor in causing harm to [name of plaintiff].”15
b. Negligent hiring
“California case law recognizes the theory that an employer can be liable to a third person for negligently hiring, supervising, or retaining an unfit employee.16 [Citation.] Liability is based upon the facts that the
employer knew or should have known that hiring the employee created a particular risk or hazard and that particular harm materializes.” (Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1054.)
“A claim that an employer was negligent in hiring or retaining an employee-driver rarely differs in substance from a claim that an employer was negligent in entrusting a vehicle to the employee. Awareness, constructive or actual, that a person is unfit or incompetent to drive underlies a claim that an employer was negligent in hiring or retaining that person as a driver.
contractor,” (Camargo, at p. 1241) but concluding that “an employee of a contractor should be barred from seeking recovery from the hirer under the theory of negligent hiring set forth in section 411,” (id. at p. 1244, italics added)].) It is undisputed that McKenna is not an employee of Beesley, and thus Camargo has no relevance to this case.
entrustment. (See CACI No. 724.) In a typical case . . . the two claims are functionally identical.” (Diaz, supra, 51 Cal.4th at p. 1157.)
2. The relationship of the common law to statutory law in this context
In determining the scope of common law tort duties pertaining to those who allow unlicensed or unfit drivers to drive a vehicle, California courts have long looked to statutory law. (See, e.g., Philadelphia Indemnity Ins. Co. v. Montes-Harris (2006) 40 Cal.4th 151, 161 (Philadelphia Indemnity Ins. Co.) [“As courts [considering common law claims for negligent entrustment] have long recognized, the statutory provisions addressing vehicle use by unlicensed drivers represent a legislatively expressed public policy to provide protection to members of the public upon the streets and highways“]; Richards, supra, 43 Cal.2d at p. 63 [noting the relevance of statutory law in determining “the scope of the duty of the owner of an automobile to control his property for the protection of persons on the public streets“]; Osborn v. Hertz Corp. (2018) 205 Cal.App.3d 703, 709 (Osborn) [observing that a statute “prohibits a rental car agency from renting to unlicensed drivers,” and concluding that “[a] rental car agency may therefore be liable for negligently entrusting a car to an unlicensed driver“]; Dodge Center, supra, 199 Cal.App.3d at pp. 338–342 [discussing California statutory law pertaining to unlicensed drivers in determining whether a seller of a motor vehicle has a “statutory or common law duty to investigate a buyer‘s driver‘s license” (id. at p. 336)]; Hartford Accident & Indemnity Co. v. Abdullah (1979) 94 Cal.App.3d 81, 92 (Hartford Accident & Indemnity Co.) [in considering negligent entrustment of a vehicle cause of action, stating, “[t]wo sections of the Vehicle Code are pertinent . . . in suggesting the standard of care
“4. That [name of employer defendant]‘s negligence in [hiring/ supervising/ [or] retaining] [name of employee] was a substantial factor in causing [name of plaintiff]‘s harm.”
required“]; Owens v. Carmichael‘s U-Drive Autos, Inc. (1931) 116 Cal.App. 348, 352 (Owens) [stating that “violation of the statute [pertaining to entrusting a car to
3. Relevant statutes
The Vehicle Code contains two statutes pertaining to unlicensed drivers that are relevant to our determination of the scope of the defendants’ duties in this case.
“No owner of a motor vehicle may knowingly allow another person to drive the vehicle upon a highway unless the owner determines that the person possesses a valid driver‘s license that authorizes the person to operate the vehicle. For the purposes of this section, an owner is required only to make a reasonable effort or inquiry to determine whether the prospective driver possesses a valid driver‘s license before allowing him or her to operate the owner‘s vehicle. An owner is not required to inquire of the department whether the prospective driver possesses a valid driver‘s license.”
“A person shall not employ, hire, knowingly permit, or authorize any person to drive a motor vehicle owned by him or her or under his or her control upon the highways unless that person is licensed for the appropriate class of vehicle to be driven.”
C. The trial court erred in granting judgment as a matter of law in favor of Smoothreads on McKenna‘s negligent entrustment cause of action
McKenna argues that the trial court erred in granting judgment as a matter of law in favor of Smoothreads on his negligent entrustment cause of action. McKenna contends, “In light of the [defendants‘] legal duty to inquire
into whether Wells had a valid driver‘s license, a reasonable jury could find Smoothreads liable for negligent entrustment.” (Boldface & some capitalization omitted). Specifically, McKenna contends that a jury could reasonably find that Smoothreads breached its duty to determine whether Wells had a valid driver‘s license and could rely on this finding in determining that Smoothreads had constructive knowledge that Wells was incompetent or unfit to drive. Thus, McKenna maintains that the trial court erred in granting judgment as a matter of law for Smoothreads on McKenna‘s negligent entrustment cause of action on the ground that McKenna would be unable to establish the constructive knowledge element of that cause of action.
a. Negligent entrustment of a motor vehicle
In California, ” ‘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 driver‘s disqualification, incompetency, inexperience or recklessness. . . . [] . . . [] Under the theory of “negligent entrustment,” liability is imposed on [the] vehicle owner or permitter because of his [or her] own independent negligence and not the negligence of the driver, in the event plaintiff can prove that the injury or death resulting therefrom was
proximately caused by the driver‘s incompetency.’ ” (Syah v. Johnson (1966) 247 Cal.App.2d 534, 539 (Syah).)
However, at common law, “[i]n the absence of . . . a statute . . . it has generally been held that the owner of an automobile is under no duty to persons who may be injured by its use to keep it out of the hands of a third person in the absence of facts putting the owner on notice that the third person is incompetent to handle it.” (Richards, supra, 43 Cal.2d at p. 63, italics added.) The tort of negligent entrustment of a motor vehicle ordinarily required “demonstration of actual knowledge of facts showing or suggesting the driver‘s incompetence.” (Dodge Center, supra, 199 Cal.App.3d at p. 341, italics added.)
California statutory law has long provided that a factfinder may find that an owner should have known of the prospective driver‘s incompetence if the owner knows that the prospective driver is not appropriately licensed. In Owens, supra, 116 Cal.App. 348, the Court of Appeal considered whether a person injured by an unlicensed driver could maintain a cause of action for negligent entrustment against the owner of the vehicle. Citing a predecessor statute to
“[Former
section 76 of the California Vehicle Act18] now requires the examination of all persons applying for
licenses, and an operator‘s license is no longer merely a means of identification but is in effect a certificate evidencing the fact that the holder had demonstrated his competency. Under these circumstances, we believe that the violation of the statute is material. [Citations.] The distinction between violations of statutes which are designed for the protection of the public and violations of statutes which have no such purpose is pointed out in Austin v. Rochester Folding Box Co., 111 Misc. 292. In our opinion, where an examination is required to test the competency of the applicant before the issuance of an operator‘s license and it is provided by statute that no person shall knowingly permit his motor vehicle to be driven by an unlicensed person, a showing of a violation of the statute by the owner makes out a prima facie case against him in favor of a person who has sustained injury through the negligence of such unlicensed driver. (Correira v. Liu, 28 Haw., 145.) As is said in the concurring opinion in that case at page 154, ‘The fact that Miller was unlicensed is evidence prima facie in the eyes of the law that Miller was incompetent and that Correira committed a breach of his common-law duty not to entrust his car to a driver who was known by him to be incompetent or who, under the circumstances, should have been known by him to be incompetent and was sufficient to put Correira upon inquiry as to Miller‘s competency or incompetency.‘”
(Owens, supra, 116 Cal.App. at pp. 351–352, some italics omitted.)
The importance of statutory law in determining the scope of a common law liability for negligent entrustment was also apparent in both Dodge Center, supra, 199 Cal.App.3d 332 and Osborn, supra, 205 Cal.App.3d 703. In Dodge Center, the Court of Appeal concluded that a seller of a motor vehicle could not be held liable for negligent entrustment by plaintiffs who
him or under his control, to be driven by any person who has no legal right to do so or in violation of the provisions of this act.” (Stats. 1923, ch. 266, § 76.)
were injured in a motor vehicle accident with the unlicensed purchaser of the vehicle. (Dodge Center, supra, at pp. 335, 342.) The Dodge Center court reasoned that the sellers “owed no legal duty” to plaintiffs “to inquire into [the purchaser‘s] driving record before selling him a vehicle.” (Id. at p. 342.) The Dodge Center court noted that
Just a few months later in Osborn, the Court of Appeal succinctly stated that a rental car agency‘s violation of
“[S]ection 14608 prohibits a rental car agency from renting to unlicensed drivers. . . . A rental car agency may therefore be liable for negligently entrusting a car to an unlicensed driver.” (Osborn, supra, 205 Cal.App.3d at p. 709.)
b. Section 1460419
In 1994, approximately six years after the Court of Appeal decisions in Dodge Center and Osborn, the Legislature enacted
that the person possesses a valid driver‘s license that authorizes the person to operate the vehicle.” (Italics added.) The statute further specifies that the owner is required “to make a reasonable effort or inquiry to
Case law discussing
c. The effect of section 14604 on common law liability for negligent entrustment of a motor vehicle
In considering the effect of the enactment of
“The Legislature finds and declares all of the following:
“(a) Driving a motor vehicle on the public streets and highways is a privilege, not a right.
“(b) Of all drivers involved in fatal accidents, more than 20 percent are not licensed to drive. A driver with a suspended license is four times as likely to be involved in a fatal accident as a properly licensed driver.
“(c) At any given time, it is estimated by the Department of Motor Vehicles that of some 20 million driver‘s licenses issued to Californians, 720,000 are suspended or revoked. Furthermore, 1,000,000 persons are estimated to be driving without ever having been licensed at all.
“(d) Over 4,000 persons are killed in traffic accidents in California annually, and another 330,000 persons suffer injuries.
“(e) Californians who comply with the law are frequently victims of traffic accidents caused by unlicensed drivers. These innocent victims suffer considerable pain and property loss at the hands of people who flaunt [sic] the law. The Department of Motor Vehicles estimates that 75 percent of all drivers whose driving privilege has been withdrawn continue to drive regardless of the law.”22
(
§ 14607.4 )
In Smith, the court observed that, although
“[S]ection 14604 is a criminal statute. . . . [S]ection 14604 imposes criminal liability upon an owner who knowingly allows another person to drive the owner‘s vehicle without first determining the driver possesses a valid driver‘s license. . . .
That standard for criminal liability could conceivably furnish a basis for a negligence finding in a civil action for damages against an owner who did not make a reasonable effort to determine whether the prospective driver possessed a valid license before allowing the driver to operate the owner‘s vehicle where injuries were proximately caused thereby. (See Evid. Code, § 669 [24]; see generally 6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts §§ 818, 819, pp. 170-173 [violation of a criminal statute may constitute negligence per se].)” (Smith, supra, 97 Cal.App.4th at p. 565, italics added.)25
While we do not consider here whether a violation of
It is true, as Smoothreads points out in its brief, that
However, a jury that finds that an owner failed to comply with the affirmative statutory duty to make a “reasonable effort or inquiry” (
In Hartford Accident & Indemnity Co., the court considered whether a car dealer could be liable for negligent entrustment where the dealer made no inquiry into the license status of a prospective customer before allowing the prospective customer to test drive a vehicle. After citing former sections 14606 and 14608,28 the Hartford Accident & Indemnity Co. court reasoned:
“Taken together, these sections attempt to ensure that only licensed drivers will operate vehicles on the streets and highways in this state; the protected class are members of the public using those streets and highways. We think it clear that ‘ordinary care and skill’ on the part of a used car dealer requires inquiry of persons wishing to test drive the dealer‘s cars as to whether or not they are validly licensed drivers. Those persons who cannot produce a valid license to operate such automobiles test drive at the dealer‘s peril.” (Hartford Accident & Indemnity Co., supra, 94 Cal.App.3d at p. 92.)
Similarly, in this case,
Thus, given the enactment of “section 14604‘s duty of inquiry” (Smith, supra, 97 Cal.App.4th at p. 565),29 the Dodge Center court‘s statement that, under California law, “there can be no liability [for negligent entrustment] unless permission to drive is given to one known to be unlicensed,” is no longer correct.30 (Dodge Center, supra, 199 Cal.App.3d at p. 339; citing Johnson v. Casetta (1961) 197 Cal.App.2d 272, 274 [sellers of motor vehicle could not be liable for negligent entrustment because sellers had no knowledge purchaser was “an inexperienced, incompetent and unlicensed driver,” and “in the absence of any such knowledge, they had no legal duty or obligation to inquire“].)
We therefore conclude that a jury may reasonably find that an owner of a vehicle had constructive knowledge that a prospective driver was incompetent or unfit to drive if there is evidence from which the jury could
For the reasons discussed below, we conclude that there is such evidence in this case.
2. The trial court erred in granting judgment as a matter of law in favor of Smoothreads on the ground that McKenna would be unable to establish the constructive knowledge element of his negligent entrustment cause of action
With respect to the evidence from which a reasonable jury could find that Smoothreads breached its section 14604 duty as the owner of a vehicle32 to “make a reasonable effort or inquiry to determine whether the prospective driver possesses a valid driver‘s license before allowing him . . . to operate the owner‘s vehicle” (
“Q: Did you tell the Beesleys you didn‘t have a driver‘s license?
“A: They never asked.
“Q: Did you tell them?
“A: I didn‘t tell them because they never asked.”
Smoothreads‘s argument to the contrary is not persuasive. Smoothreads argues:
“If someone drives their car to your house one day, and asks to borrow your car the next, you do not have reason to suspect they are unlicensed or an unfit driver. Even less if that someone is an adult whose job (here, contractor) is commonly understood to require use of a vehicle.”
With respect to whether there is evidence that Smoothreads allowed an unlicensed driver to drive its vehicle, Smoothreads conceded for purposes of its summary adjudication motion that it permitted Wells to drive its vehicle that was involved in the accident, and it is undisputed that Wells did not possess a valid driver‘s license at the time of the accident.
Accordingly, we conclude that the jury could reasonably find that Smoothreads had constructive knowledge that Wells was incompetent or unfit to drive and that Smoothreads allowed an unlicensed driver to drive its vehicle. We therefore further conclude that the trial court erred in granting judgment as a matter of law because Smoothreads did not demonstrate that McKenna would be unable to establish the constructive knowledge element of his negligent entrustment cause of action against it.36
McKenna claims that the trial court erred in granting judgment as a matter of law in favor of Beesley on McKenna‘s negligent hiring claim. Specifically, McKenna argues that the trial court erred in concluding that McKenna could not establish that Beesley knew or should have known that Wells was unfit or incompetent to drive, as required to prove a negligent hiring claim.
1. The precise nature of the appellate claim at issue
At the outset, we clarify our understanding of the nature of the appellate claim at issue. While McKenna correctly states that a negligent hiring claim technically is a “separate cause of action,” from a negligent entrustment claim, he notes the close relationship between the two causes of action, stating, “In the context of entrusting a vehicle to a hired worker, a claim of negligent hiring is generally equivalent to a claim of negligent entrustment” (italics omitted). (Citing Diaz, supra, 51 Cal.4th at p. 1157; see ibid. [negligent hiring and negligent entrustment “claims are functionally identical” in this context]; see also ibid. [referring to a single “claim against the employer—for negligent entrustment, hiring, or retention” (italics added)].) Negligent hiring in this context and negligent entrustment of a motor vehicle are both premised on “[a]wareness [by the defendant], constructive or actual, that a person is unfit or incompetent to drive.” (Ibid.)
Thus, we understand McKenna to be arguing that there is a triable issue of fact as to whether Beesley may be liable for negligent hiring based on Beesley‘s allegedly wrongful act of entrusting a vehicle to Wells.37 Specifically, McKenna claims that the trial court erred in concluding that McKenna
2. A person who hires another and permits that person to drive a vehicle under the hirer‘s control has a duty to make a reasonable effort or inquiry to determine whether the hiree has a valid driver‘s license; a hirer who breaches this duty, and who permits an unlicensed driver to drive the vehicle, may be found to have constructive knowledge of the hiree‘s incompetence to drive for purposes of a negligent hiring claim
We are not aware of any authority, and neither party has cited any, that addresses whether a person who hires another to drive a vehicle under the hirer‘s control has a duty to make a reasonable effort or inquiry to determine whether the hiree has a valid driver‘s license. (See
As we explain below, Dodge Center, the principal case that Beesley and the trial court relied on, was never authority as to a hirer‘s duty under
“[S]ection 14606, subdivision (a) in relevant part provides that no person shall ‘knowingly permit or authorize the driving of a motor vehicle, owned by him or under his control, upon the highways by any person unless the person is then licensed for the appropriate class of vehicle to be driven.’ This statute (and its predecessors) make a motor vehicle owner who knowingly entrusts his vehicle to an unlicensed driver liable for a third party‘s injuries caused by the driver‘s negligence.” (Dodge Center, supra, at p. 338, italics added.)
Second, Dodge Center lacks persuasive force because the court relied on case law requiring that a person have actual knowledge of a prospective driver‘s lack of a driver‘s licensure that predated the enactment of
“As Dodge points out, the Legislature could readily have imposed a duty of inquiry upon motor vehicle sellers, as it did, for example, upon those who rent motor vehicles, in section 14608. Sections 14606 and 14608 were enacted during the same legislative session as part of the same statute. [Citation.] Since that time, section 14606 has been amended three times, but no language has been inserted requiring a seller to examine the purchaser‘s license. [Citations.]” (Dodge Center, supra, 199 Cal.App.3d at p. 342.)
As discussed in part III.C, ante, six years after Dodge Center was decided, with the enactment of
In considering a hirer‘s common law duties in this context, we observe that
However, we need not reach such a broad holding to decide this case. Instead, we need consider only whether McKenna is correct in arguing
Finally, for the same reasons we concluded that a jury may find the constructive knowledge element of a cause of action for negligent entrustment proven by evidence that an owner allowed an unlicensed driver to drive the owner‘s vehicle without making a reasonable effort or inquiry whether the person has a valid license (see pt. III.C, ante), we conclude that a jury may find the constructive knowledge element of a cause of action for negligent hiring of a driver proven by evidence that a hirer entrusted a vehicle to a hiree and: (1) the hirer did not make any “reasonable effort or inquiry” (
For the reasons discussed in the following section, we conclude that there is such evidence in this case.
A reasonable jury could find that Beesley47 did not make a reasonable effort or inquiry into whether Wells had an appropriate driver‘s license, based on the evidence discussed in part III.C.2, ante, concerning Beesley‘s permitting Wells to drive the Smoothreads vehicle without asking Wells whether he had a valid driver‘s license. Beesley‘s argument that “[t]here was no reason for Mr. Beesley to suspect that a 57-year old man, who had come to do work driving his own vehicle, would be unlicensed, or otherwise unfit to operate a pickup truck,” is unpersuasive because, as we explained in rejecting Smoothreads‘s similar argument, a hirer must make a reasonable effort or inquiry into the prospective driver‘s license status, irrespective of whether the hirer “ha[s] . . . reason to suspect,” that the hiree is unlicensed. As to the second requirement, it is undisputed that Wells did not have a driver‘s license at the time of the accident.
Accordingly, we conclude that the jury could reasonably find that Beesley had constructive knowledge that Wells was incompetent or unfit to drive and that Beesley allowed an unlicensed driver to drive a vehicle. We therefore conclude that the trial court erred in granting judgment as a matter of law in favor of Beesley on McKenna‘s negligent hiring claim on the ground that McKenna would be unable to establish the constructive knowledge element of his claim.48
The February 28, 2020 judgment in favor of Smoothreads and the September 6, 2019 order granting Smoothreads‘s motion for summary adjudication are reversed. Smoothreads shall bear costs on appeal with respect to McKenna‘s appeal from the February 28, 2020 judgment.
The October 30, 2019 judgment in favor of Beesley and the September 6, 2019 order granting Beesley‘s motion for summary judgment are reversed. Beesley shall bear costs on appeal with respect to McKenna‘s appeal from the October 30, 2019 judgment.
AARON, J.
WE CONCUR:
MCCONNELL, P. J.
DO, J.
Notes
Smoothreads states in its brief, “As the parties have stipulated, [McKenna] is entitled to $15,000 pursuant to . . .
“[Name of plaintiff] claims that [he/she] was harmed by [name of employee] and that [name of employer defendant] is responsible for that harm because [name of employer defendant] negligently [hired/ supervised/ [or] retained] [name of employee]. To establish this claim, [name of plaintiff] must prove all of the following:
“1. That [name of employee] was [unfit/ [or] incompetent] to perform the work for which [he/she] was hired;
“2. That [name of employer defendant] knew or should have known that [name of employee] was [unfit/ [or] incompetent] and that this [unfitness/ [or] incompetence] created a particular risk to others;
“3. That [name of employee]‘s [unfitness/ [or] incompetence] harmed [name of plaintiff]; and
“Unlawful to employ unlicensed chauffeur. No person shall employ for hire as a chauffeur of a motor vehicle, any person not licensed as in this act provided. No person shall authorize or knowingly permit a motor vehicle owned by
First, McKenna‘s opposition to Smoothreads‘s motion for summary judgment did present the argument that Smoothreads had a duty to inquire as to Wells‘s license status. (Compare with Noe v. Superior Court (2015) 237 Cal.App.4th 316, 335-336 (Noe) [“We generally will not consider an argument ‘raised in an appeal from a grant of summary judgment . . . if it was not raised below and requires consideration of new factual questions’ “])
Further, even if it could be said that McKenna is presenting a new issue on appeal, a court reviewing a summary judgment “may . . . consider a newly[-]raised issue ‘when [it] involves purely a legal question which rests on an uncontraverted record which could not have been altered by the presentation of additional evidence.’ ” (Noe, supra, at p. 336, italics added.) “The existence of a legal duty is a question of law for the court” (John B. v. Superior Court (2006) 38 Cal.4th 1177, 1188), as is the interpretation of
Finally, defendants do not argue in their briefing that McKenna forfeited reliance on
“A rental company is deemed to be in compliance with subdivision (a) if the company rents the vehicle in accordance with Sections 14608 and 14609.”
“A violation of any of the following provisions is a misdemeanor, and not an infraction:
“[¶] . . . [¶]
“(m) Section 14604, relating to unlawful use of a vehicle.”
We also reject Smoothreads‘s characterization of McKenna‘s argument as “essentially a negligence per se, almost a strict liability, argument.” McKenna‘s briefing makes clear that his argument is that “(1) constructive knowledge of an unlicensed driver puts an owner ‘on inquiry [notice]’ of incompetence; and (2) it is for [a] jury to determine under those circumstances whether the owner was negligent in permitting the driver to operate the vehicle.” (Quoting Syah, supra, 247 Cal.App.2d at p. 545.)
Further, while the Richards court stated that “[o]rdinarily . . . there is no duty to control the conduct of a third person so as to prevent him from causing harm to another” (Richards, supra, 43 Cal.2d at p. 65, italics added), the Richards court repeatedly emphasized that this was true only “[i]n the absence of . . . a statute,” establishing such duty. (Id. at p. 63, italics added; see id. at p. 65 [“[i]n the absence of [a] statute“]; id. at p. 67 [“in the absence of [a] statute“].) In this case, there is such a statute—
Smoothreads did not move for summary adjudication on the ground that McKenna would be unable to prove the proximate cause element of his negligent entrustment cause of action. On the contrary, the sole basis on which Smoothreads sought summary adjudication of McKenna‘s negligent entrustment cause of action was its contention that “[McKenna] [cannot] present any triable issue of fact to demonstrate the actual or constructive knowledge required to prevail on a negligent entrustment theory.” Further, the trial court granted Smoothreads‘s motion for summary adjudication solely on the constructive knowledge element and did not discuss proximate cause in any manner in its ruling. Thus, we have no occasion to consider the parties’ contentions as to the proximate cause element of McKenna‘s negligent entrustment cause of action.
While Beesley raised a scope of employment argument in his motion for summary judgment, that argument was directed toward defeating Beesley‘s potential “respondeat superior liability,” a form of vicarious liability not presented by McKenna on appeal. (See J.W. v. Watchtower Bible & Tract Society of New York, Inc., supra, at p. 1164 [distinguishing “direct liability” for negligent hiring from “respondeat superior,” a form of vicarious liability].) Beesley did not move for summary judgment on the ground that McKenna would not be able to prove the proximate cause element of his negligent hiring cause of action, and the trial court granted Beesley‘s motion for summary judgment solely on the constructive knowledge element, and did not discuss proximate cause in any manner in its ruling. Thus, we have no occasion to consider the parties’ contentions as to the proximate cause element of McKenna‘s negligent hiring cause of action.