California Court of Appeals, Fourth District, First Division
[As Modification on July 22, 2015]
APPEAL from a judgment of the Superior Court of Riverside County, No. RIC1100243 Matthew Perantoni, Judge.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Shernoff Bidart Echeverria Bentley, Gregory L. Bentley, Steven M. Schuetze, Law Office of Luis A. Carrillo, Luis A. Carrillo; Rogriguez & Associates and Daniel Rodriguez, for Plaintiffs and Appellants.
LaFollette Johnson DeHaas Fesler & Ames, Donald C. Fesler, Law Offices of David J. Weiss, David J. Weiss; Greines, Martin, Stein & Richland and Marc J. Poster for Defendant and Respondent.
Plaintiffs and appellants Miriam Navarrete and her minor children Bryan, Stephanie, and Steven Navarette (collectively Navarrete) appeal from a summary judgment in favor of defendant and respondent Hayley Meyer on plaintiffs' claims for violation of Vehicle Code section
21701 and civil conspiracy arising from allegations that Meyer, a passenger in a vehicle, told the driver to drive at an unsafe speed over a road Meyer knew had unusual conditions that would cause the car to become airborne, resulting in a fatal accident. In granting summary judgment, the trial court ruled there was no evidence to suggest Meyer's act of telling the driver to drive faster affected his control over the vehicle, and therefore no triable issues of material fact as to either cause of action. Navarrete contends the evidence raises triable issues for a jury as to whether to impose joint liability on Meyer for her conduct on the night in question on a theory of concert of action or conspiracy, and also as to whether she unreasonably interfered with the safe operation of a vehicle within the meaning of Vehicle Code section 21701 to support a cause of action. We agree and reverse.
FACTUAL AND PROCEDURAL BACKGROUND
On November 26, 2009, Meyer was the front passenger in a vehicle driven by her friend Brandon Coleman. Another person, Levi Calhoun, was in the back seat. While driving to a nearby drugstore, Meyer told Coleman to turn onto Skyview Drive as a shortcut. Skyview Drive is a residential street with a 25 mile-per-hour speed limit. Meyer had been on Skyview Drive many times before that day, and she knew it had dips that would cause a car traveling at a high rate of speed to become airborne. While Coleman was making the turn onto Skyview Drive, Meyer told him about the dips, that it was fun to drive fast on them, and that he should do it. Shortly after Coleman turned onto the street, Meyer told Coleman to "go faster." Coleman asked Calhoun if he should speed up, and Calhoun responded, "You probably shouldn't because you may mess up the car." Coleman sped up. He accelerated to such a degree that he caught air from the dips and lost control of the car, which veered sharply to the right and collided into Navarette's parked vehicle while Navarrete's husband, Esteban Soto, was attempting to put one of their children in a car seat. Soto's legs were severed and he was killed by the impact. A data recorder from Coleman's car indicated its speed was 81 miles per hour five seconds before the impact, and 71 miles per hour one second before the impact. Meyer estimated the car's speed at about 70 miles per hour. Meyer admitted it was her idea to drive fast on Skyview Drive.
Navarette sued Coleman and the County of Riverside, and eventually filed a first amended complaint naming Meyer as a Doe defendant. She alleged, among others, causes of action against Meyer for violation of Vehicle Code section 21701 (fourth cause of action) and civil conspiracy (fifth cause of action). In the fourth cause of action, Navarette alleged Meyer willfully
interfered with Coleman or the mechanism of the vehicle in such manner as to affect Coleman's control of the car; that Meyer's acts caused a lapse of Coleman's control as to cause serious injury and death; and that certain physical features of Skyview Drive increased and intensified the dangers to the decedent and plaintiffs from Coleman and Meyer's conduct. In the fifth cause of action for conspiracy, Navarrete alleged that Coleman and Meyer "formed an oral and/or implied agreement [to] commit a wrongful act, including but not limited to driving on Skyview Drive at unsafe speed" and "[s]uch agreement, conspiracy, and/or joint venture between Defendants to cause wrongful acts caused injuries to Plaintiffs and Decedent." She alleged that the "conspiracy and agreement is evidenced by the fact, inter alia, that [Coleman and Meyer]: (a) aided, abetted, approved, ratified, and/or deliberately and knowingly failed, refused and/or refrained from intervening in or preventing or stopping the wrongful conduct; and/or (b) deliberately and knowingly failed, refused, and/or refrained from promptly and accurately reporting such wrongful conduct."
Meyer moved for summary judgment or alternatively summary adjudication. She argued Navarette's fourth and fifth causes of action were without merit; that undisputed facts showed she did not interfere with Coleman's control of the vehicle as needed to impose liability under Vehicle Code section 21701, and there was no evidence of a tacit agreement between her and Coleman to support a conspiracy cause of action or conspiracy to commit any tort. Meyer argued that simply encouraging Coleman to increase his speed was insufficient to support liability under either cause of action. In opposition, Navarette argued Meyer was liable as a joint tortfeasor for Coleman's negligence under the Restatement Second of Torts, section 876 and as a coconspirator; that Meyer "formulated and communicated the plan for... Coleman to race at high speed on Skyview Drive to become airborne when he hit the dips in the roadway"; and "[v]erbal encouragement and solicitation to commit a wrongful act can constitute a civil conspiracy." Navarette maintained the evidence demonstrated "an agreement and a plan to commit the wrongful act" because "[a]s a result of and in response to Meyer's instructions, Coleman began accelerating." According to Navarette, the court could infer that Coleman was trying to impress Meyer and acquiesced to her wishes, and an agreement could be inferred from his actions in response to her encouragement. Finally, Navarette argued there were triable issues of material fact as to whether Meyer unreasonably interfered with the safe operation of the vehicle within the meaning of Vehicle Code section 21701 by her words and actions: "[A] reasonable inference from the evidence is that as the engine roared and the vehicle started accelerating down the road, that [Meyer's] instruction to 'Go faster' was unlikely stated in a calm, sterile manner, but rather the instruction itself was animated and enthusiastic."
The trial court granted summary judgment in Meyer's favor. It acknowledged that the material facts were undisputed; that Meyer told Coleman to drive faster to catch air over the dips on Skyview Drive, but ruled "there is no evidence to suggest that Meyer's act of telling Mr. Coleman to drive faster affected Mr. Coleman's control over the vehicle" and thus there was no triable issue of material fact as to the fourth cause of action for violation of Vehicle Code section 21701. The court applied the same reasoning to grant summary judgment on the conspiracy cause of action.
Navarette filed this appeal.
I. Standard of Review
" 'Because this case comes before us after the trial court granted a motion for summary judgment, we take the facts from the record that was before the trial court when it ruled on that motion. [Citation.] " 'We review the trial court's decision de novo, considering all the evidence set forth in the moving and opposing papers except that to which objections were made and sustained.' " [Citation.] We liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.' " (Conroy v. Regents of University of Cal. (2009) 45 Cal.4th 1244, 1249-1250 [91 Cal.Rptr.3d 532, 203 P.3d 1127]; see DiCola v. White Brothers Performance Products, Inc. (2008) 158 Cal.App.4th 666, 675 [69 Cal.Rptr.3d 888] (DiCola).)
"A defendant meets his or her burden upon a motion for summary judgment or summary adjudication if that party has proved 'one or more elements of the cause of action... cannot be established....' [Citation.] The defendant need not conclusively negate an element of the plaintiff's cause of action, but must only show that one or more of its elements cannot be established. [Citation.] To shift the burden to the nonmoving party, the evidence produced by the moving party must 'persuade the court that there is no material fact for a reasonable trier of fact to find....' [Citation.] The moving party also bears a burden of production 'to make a prima facie showing of the nonexistence of any triable issue of material fact.' [Citation.] 'A prima facie showing is one that is sufficient to support the position of the party in question.' [Citation.] [¶] 'Once the defendant... has met that burden, the burden shifts to the plaintiff... to show that a triable issue of one or more material facts exists....' " (DiCola, supra, 158 Cal.App.4th at p. 674.)
" 'A trial court properly grants summary judgment where no triable issue of material fact exists and the moving party is entitled to judgment as a
matter of law.' [Citation.] The materiality of a disputed fact is measured by the pleadings [citations], which 'set the boundaries of the issues to be resolved at summary judgment.' " (Conroy v. Regents of University of California, supra, 45 Cal.4th at p. 1250; see Coral Construction, Inc. v. City and County of San Francisco (2010) 50 Cal.4th 315, 336 [113 Cal.Rptr.3d 279, 235 P.3d 947]; Judicial Council of California v. Superior Court (2014) 229 Cal.App.4th 1083, 1090 [177 Cal.Rptr.3d 602].) Nevertheless, "[w]hen a motion for summary judgment is used to test whether the complaint states a cause of action, the court will apply the rule applicable to demurrers and accept the allegations of the complaint as true." (American Airlines, Inc. v. County of San Mateo (1996) 12 Cal.4th 1110, 1118 [51 Cal.Rptr.2d 251, 912 P.2d 1198].) "' "[T]he allegations must be liberally construed with a view to attaining substantial justice among the parties." [Citation.] "Our primary task is to determine whether the facts alleged provide the basis for a cause of action against defendants under any theory." ' " (Ibid.; see Varshock v. Department of Forestry & Fire Protection (2011) 194 Cal.App.4th 635, 651-652 [125 Cal.Rptr.3d 141] [in reviewing a summary judgment to determine the legal effect of the complaint its allegations must be liberally construed ...