This case was last updated from Los Angeles County Superior Courts on 06/19/2019 at 14:54:36 (UTC).

ROGER ALLEN OVERTON ET AL VS TOYOTA MOTOR CORPORATION ET AL

Case Summary

On 05/04/2016 ROGER ALLEN OVERTON filed a Personal Injury - Other Product Liability lawsuit against TOYOTA MOTOR CORPORATION. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are DEIRDRE HILL and MICHELLE WILLIAMS COURT. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****9463

  • Filing Date:

    05/04/2016

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Product Liability

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

DEIRDRE HILL

MICHELLE WILLIAMS COURT

 

Party Details

Plaintiffs and Petitioners

OVERTON ROGER ALLEN

OVERTON GAIL

Defendants and Respondents

RO-ANN ENTERPRISES INC.

TOYOTA MOTOR SALES U.S.A. INC.

DENSO INTERNATIONAL AMERICA INC.

TOYOTA MOTOR NORTH AMERICA INC.

TOYOTA MOTOR ENGINEERING & MANUFACTURING

TOYOTA MOTOR CORPORATION

DENSO CORPORATION

DOES 1 TO 160

CEH AUTOMOTIVE CORP.

JIFFY LUBE INTERNATIONAL INC.

BIG TWO TOYOTA OF CHANDLER

SAM'S WEST INC.

MICHELIN NORTH AMERICA INC.

JIFFY LUBE INTERNATIONAL INC

INDUSTRIAS MICHELIN DOE 1 AND DOE 61

TOYOTA MOTOR SALES USA INC.

CEH AUTOMOTIVE CORP DBA BIGO TWO TOYOTA

11 More Parties Available

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

HOMAMPOUR LAW FIRM PC THE

HOMAMPOUR ARASH

Defendant and Respondent Attorneys

SWEDO JEFFREY A. ESQ.

JEFFIFER WEIDINGER ESQ.

KOHN ANDREW N. ESQ.

HINCHELIFFE EVERETT

YUKEVICH & SONNETT

BOWMAN AND BROOKE LLP

CHRISTINE E. POLITO ESQ.

MCCATHERN LLP

YUKEVICH JAMES J. ESQ.

SWEDO JEFFREY A.

GALVIN VINCENT JR. ESQ.

 

Court Documents

Case Management Statement

3/3/2017: Case Management Statement

Answer

4/21/2017: Answer

Unknown

7/11/2017: Unknown

Minute Order

9/12/2017: Minute Order

Unknown

11/15/2017: Unknown

Request for Judicial Notice

11/15/2017: Request for Judicial Notice

Case Management Statement

1/16/2018: Case Management Statement

Notice of Ruling

2/5/2018: Notice of Ruling

Request for Judicial Notice

12/28/2018: Request for Judicial Notice

Unknown

1/25/2019: Unknown

Declaration

3/4/2019: Declaration

Minute Order

4/10/2019: Minute Order

Notice of Ruling

4/11/2019: Notice of Ruling

Declaration

6/3/2019: Declaration

Reply

6/7/2019: Reply

PROOF OF SERVICE OF SUMMONS

6/24/2016: PROOF OF SERVICE OF SUMMONS

DEFENDANT SAM'S WEST, INC.'S AMENDED NOTICE OF MOTION AND MOTION TO TRANSFER VENUE

8/23/2016: DEFENDANT SAM'S WEST, INC.'S AMENDED NOTICE OF MOTION AND MOTION TO TRANSFER VENUE

DEFENDANTS TOYOTA MOTOR SALES, UIS.A., INC., TOYOTA MOTOR NORTH AMERICA, INC., TOYOTA MOTOR ENGINEERING & MANUFACTURING NORTH AMERICA, INC., AND TOYOTA MOTOR CORPORATION'S OBJECTION TO PLAINTIFFS' REQ

11/2/2016: DEFENDANTS TOYOTA MOTOR SALES, UIS.A., INC., TOYOTA MOTOR NORTH AMERICA, INC., TOYOTA MOTOR ENGINEERING & MANUFACTURING NORTH AMERICA, INC., AND TOYOTA MOTOR CORPORATION'S OBJECTION TO PLAINTIFFS' REQ

169 More Documents Available

 

Docket Entries

  • 06/14/2019
  • at 08:30 AM in Department B, Deirdre Hill, Presiding; Hearing on Motion to Compel Further Discovery Responses - Not Held - Advanced and Continued - by Court

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  • 06/14/2019
  • at 08:30 AM in Department B, Deirdre Hill, Presiding; Hearing on Motion to Compel Further Discovery Responses - Not Held - Advanced and Continued - by Court

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  • 06/13/2019
  • Notice (of Change of June 14, 2019 Motion to Compel Hearing Date); Filed by Roger Allen Overton (Plaintiff)

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  • 06/07/2019
  • Declaration (Rebuttal of Stephen R.Syson); Filed by Roger Allen Overton (Plaintiff)

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  • 06/07/2019
  • Reply (In Support of of his Motion Compelling Further Responses to First Set of Interrogatories amd Request for Documents From Defendant Toyta Motor Corporation); Filed by Roger Allen Overton (Plaintiff)

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  • 06/03/2019
  • Objection (Toyota Motor Corporation's Evidentiary Objections to Declaration of Stephen Syson); Filed by TOYOTA MOTOR CORPORATION (Defendant)

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  • 06/03/2019
  • Opposition (Toyota Motor Corporation's Opposition to Plaintiff Roger Overton's Separate Statement ISO Motion to Compel Further Responses to Request for Production); Filed by TOYOTA MOTOR CORPORATION (Defendant)

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  • 06/03/2019
  • Opposition (Toyota Motor Corporation's Opposition to Plaintiff Roger Overton's Motion to Compel Further Responses to 1st Set of Special Interrogatories and 1st Set of Requests for Production); Filed by TOYOTA MOTOR CORPORATION (Defendant)

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  • 06/03/2019
  • Declaration (of Barry Hare in Support of Toyota Motor Corporation's Opposition to Plaintiff Roger Overton's Motion to Compel); Filed by TOYOTA MOTOR CORPORATION (Defendant)

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  • 06/03/2019
  • Opposition (Toyota Motor Corporation's Opposition to Plaintiff Roger Overton's Separate Statement ISO Motion to Compel Further Responses to Special Interrogatories); Filed by TOYOTA MOTOR CORPORATION (Defendant)

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361 More Docket Entries
  • 06/07/2016
  • Proof of Service (DENSO INTERNATIONAL AMERICA INC ); Filed by Attorney for Plaintiff/Petitioner

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  • 06/07/2016
  • Proof-Service/Summons; Filed by GAIL OVERTON (Plaintiff)

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  • 05/16/2016
  • CIVIL DEPOSIT

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  • 05/16/2016
  • Receipt (CIVIL DEPOSIT ); Filed by Attorney for Plaintiff/Petitioner

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  • 05/16/2016
  • Receipt; Filed by Roger Allen Overton (Plaintiff)

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  • 05/04/2016
  • SUMMONS

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  • 05/04/2016
  • COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)

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  • 05/04/2016
  • Complaint; Filed by Roger Allen Overton (Plaintiff); GAIL OVERTON (Plaintiff)

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  • 05/04/2016
  • Complaint

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  • 05/04/2016
  • Summons; Filed by null

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Tentative Rulings

Case Number: BC619463    Hearing Date: August 11, 2020    Dept: M

Superior Court of California

County of Los Angeles

Southwest District

Torrance Dept. M

ROGER OVERTON, et al.,

Plaintiffs,

Case No.:

BC619463

vs.

[Tentative] RULING

TOYOTA MOTOR CORPORATION, et al.,

Defendants.

Hearing Date: August 11, 2020

Moving Parties: Defendant Michelin North America, Inc.

Responding Party: None

Motion for Determination of Good Faith Settlement

The court considered the moving papers.

RULING

Defendant Michelin North America, Inc.’s Motion for Determination of Good Faith Settlement is GRANTED.

The court ORDERS that in this action, all present claims and cross-complaints of any kind for implied indemnity, equitable comparative contribution and apportionment or partial or comparative indemnity and apportionment based on comparative negligence or comparative fault against Toyota be and are dismissed with prejudice. Any and all present and future claims against Toyota by or on behalf of joint tortfeasors or co-obligors are barred.

BACKGROUND

On May 4, 2016, Plaintiffs Roger Allen Overton and Gail Overton filed a complaint against Defendants Toyota Motor Corp., Toyota Motor North America, Inc., Toyota Motor Engineering & Manufacturing North America, Inc., Toyota Motor Sales USA, Inc., Denso Corporation, Denso International America, Inc., Ro-Ann Enterprises, Inc., Jiffy Lube International, Inc., CEH Automotive Corp. dba Big Two Toyota of Chandler, Sam’s West, Inc., and Michelin North America, Inc. for general negligence and products liability. Plaintiffs allege that on May 6, 2014, at approximately 4:30 a.m., Plaintiff Roger was injured while operating a 2008 Toyota Prius in a reasonably foreseeable and expected manner, on Ogilby Road south of State Route 78. Plaintiffs further allege that Roger was travelling northbound on Ogilby Road in an unincorporated area of Imperial County at approximately 55 to 60 mph. He was driving alone on his way to work when his rear passenger tire failed and experienced a double side wall blow out. He took his foot off the gas and tried to steer the vehicle to remain on the road. He held the steering wheel to keep the vehicle on the road, but the vehicle’s stability control failed to function effectively to maintain the vehicle on the road. The vehicle crossed the center line against Plaintiff’s steering inputs and veered left and went off the road and flipped over onto the roof, causing severe and permanent injuries to Plaintiff Roger. The vehicle was quipped with a Michelin Pilot Exalto A/S size 205/55R16 91H, which was manufactured by Michelin and sold by Sam’s.

On May 28, 2020, Defendant Michelin North America, Inc. filed the instant motion for determination of good faith settlement. No opposition has been filed.

DISCUSSION

Defendant Michelin North America, Inc. (“MNA”) moves for a court order determining that the settlement entered into between Defendant and Plaintiff was reached in good faith, thereby barring and dismissing any pending or future claims or cross-complaints for equitable contribution or indemnity against Defendant.

In City of Grand View Terrace v. Superior Court (1987) 192 Cal. App. 3d 1251, 1261, the court provided the following guidance regarding a motion for a good faith settlement determination:

This court notes that of the hundreds of motions for good faith determination presented for trial court approval each year, the overwhelming majority are unopposed and granted summarily by the trial court. At the time of filing in many cases, the moving party does not know if a contest will develop. If each motion required a full recital by declaration or affidavit setting forth a complete factual response to all of the Tech-Bilt factors, literally thousands of attorney hours would be consumed and inch-thick motions would have to be read and considered by trial courts in an exercise which would waste valuable judicial and legal time and clients’ resources. . . . That is to say, when no one objects, the barebones motion which sets forth the ground of good faith, accompanied by a declaration which sets forth a brief background of the case is sufficient.

If the good faith settlement is contested, section 877.6, subdivision (d), sets forth a workable ground rule for the hearing by placing the burden of proving the lack of good faith on the contesting party. Once there is a showing made by the settlor of the settlement, the burden of proof on the issue of good faith shifts to the nonsettlor who asserts that the settlement was not made in good faith. If contested, declarations by the nonsettlor should be filed which in many cases could require the moving party to file responsive counterdeclarations to negate the lack of good faith asserted by the nonsettling contesting party.

192 Cal. App. 3d 1251, 1260-1261 (citation omitted).

“[Code of Civil Procedure] Section 877.6 was enacted by the Legislature in 1980 to establish a statutory procedure for determining if a settlement by an alleged joint tortfeasor has been entered into in good faith and to provide a bar to claims of other alleged joint tortfeasors for equitable contribution or partial or comparative indemnity when good faith is shown.” IRM Corp. v. Carlson (1986) 179 Cal. App. 3d 94, 104.

CCP § 877.6(a)(1) provides, in relevant part, that, on noticed motion, “[a]ny party to an action wherein it is alleged that two or more parties are joint tortfeasors or co-obligors on a contract debt shall be entitled to a hearing on the issue of the good faith of a settlement entered into by the plaintiff or . . . and one or more alleged tortfeasors or co-obligors . . . .” “A determination by the court that the settlement was made in good faith shall bar any other joint tortfeasor or co-obligor from any further claims against the settling tortfeasor or co-obligor for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault.” CCP § 877.6(c). Although a determination that a settlement was in good faith does not discharge any other party from liability, “it shall reduce the claims against the others in the amount stipulated” by the settlement. CCP § 877(a).

“The party asserting the lack of good faith shall have the burden of proof on that issue.” CCP § 877.6(d).

In Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488, 499, the California Supreme Court identified the following nonexclusive factors courts are to consider in determining if a settlement is in good faith under section 877.6: “a rough approximation of plaintiffs' total recovery and the settlor's proportionate liability, the amount paid in settlement, the allocation of settlement proceeds among plaintiffs, and a recognition that a settlor should pay less in settlement than he would if he were found liable after a trial. Other relevant considerations include the financial conditions and insurance policy limits of settling defendants, as well as the existence of collusion, fraud, or tortious conduct aimed to injure the interests of nonsettling defendants.”

The evaluation of whether a settlement was made in good faith is required to “be made on the basis of information available at the time of settlement.” Tech-Bilt, 38 Cal.3d at 499. “‘[A] defendant’s settlement figure must not be grossly disproportionate to what a reasonable person, at the time of the settlement, would estimate the settling defendant’s liability to be.’ [Citation.]” Id. at 499.

“The party asserting the lack of good faith, who has the burden of proof on that issue (§ 877.6, subd. (d)), should be permitted to demonstrate, if he can, that the settlement is so far ‘out of the ballpark’ in relation to these factors as to be inconsistent with the equitable objectives of the statute. Such a demonstration would establish that the proposed settlement was not a ‘settlement made in good faith’ within the terms of section 877.6.” Tech-Bilt, 38 Cal.3d at 499-500.

“Thus, Tech-Bilt held that in determining whether a settlement was made in good faith for purposes of section 877.6, a key factor a trial court should consider is whether the amount paid in settlement bears a reasonable relationship to the settlor’s proportionate share of liability. (Tech-Bilt, supra, 38 Cal.3d at pp. 499–500 . . . .) This is because one of the main goals of section 877.6 is ‘allocating costs equitably among multiple tortfeasors.’ (Tech-Bilt, supra, 38 Cal.3d at p. 502 . . . .).” TSI Seismic Tenant Space, Inc. v. Superior Court (2007) 149 Cal.App.4th 159, 166. “Accordingly, a court not only looks at the alleged tortfeasor's potential liability to the plaintiff, but it must also consider the culpability of the tortfeasor vis-à-vis other parties alleged to be responsible for the same injury. Potential liability for indemnity to a nonsettling defendant is an important consideration for the trial court in determining whether to approve a settlement by an alleged tortfeasor. [Citation.]” Id. at 166.

Here, although there is no opposition, the court considered the Tech-Bilt factors as applied to the settlement between Plaintiff and Defendant MNA.

First, as to a rough approximation of Plaintiffs’ total recovery, Plaintiff Roger’s medical billing records produced to date approximate $1,100,000, which has been adjusted to $750,000. Plaintiff Roger is also seeking damages based on his inability to work based on a monthly income of $4,000. Plaintiff Gail sustained no physical injuries and is seeking loss of consortium damages.

Second, as to Defendant MNA’s proportionate liability, MNA contends that it would likely have no proportionate share of liability or, if MNA is found to have fault, would have proportionate liability not exceeding 10 percent in this case. MNA asserts that no party has produced any credible evidence that the subject tire was defectively designed or manufactured. Rather, MNA’s investigation concluded that the tire disablement was not due to any defect, but rather the result of repeated over-deflected operation, including clear evidence that the subject tire was running significantly underinflated on multiple occasions. While MNA confirmed the foreign material found on the subject tire created an opportunity for perpetual air loss, Plaintiffs’ expert confirmed that the foreign material was not a manufacturing defect of the inner liner, but rather solidified hydrocarbon grease. Plaintiffs have no evidence that hydrocarbon grease was ever used by MNA in manufacturing its tires. Furthermore, the evidence demonstrates significant contributory negligence by Plaintiff Roger as he operated his vehicle while under the influence. Roger has admitted to self-injecting 250 mg of heroin intravenously approximately 2-2.5 hours before the subject accident and the Traffic Collision Report has confirmed that three baggies containing heroin were found in Plaintiff Roger’s pants pocket, as well as five hypodermic needles on the floor of his vehicle. MNA’s toxicology expert has also confirmed Plaintiff was impaired at the time of the accident and that impairment would have affected his ability to control his vehicle.

Third, the court considered the amount for which the parties settled, which is the subject of a motion to seal.

Fourth, as to the allocation of settlement proceeds, both Plaintiffs and their counsel will receive the entirety of the proceeds.

Fifth, the court recognizes that Defendant should pay less in settlement than if it were found liable after a trial.

Sixth, as to financial conditions and insurance policy limits of settling Defendant, MNA states that this factor is not relevant as MNA is self-insured to an amount covering the verdict range and that the amount paid was not based on MNA’s ability to make payment.

Seventh, as to whether there is evidence of collusion, fraud, or tortious conduct aimed to injure the interests of the other defendants, there is none. The parties negotiated a settlement after engaging in extensive discovery, including conducting multiple depositions of fact witnesses and inspecting the vehicle and its tires. No opposition has been filed.

After considering the Tech-Bilt factors, the court finds and determines that the settlement entered into between Plaintiffs and Defendant MNA was made in good faith within the meaning of CCP § 877.6. Therefore, the motion is GRANTED.

Moving defendant is ordered to give notice of the ruling.

Case Number: BC619463    Hearing Date: February 11, 2020    Dept: SWB

Superior Court of California

County of Los Angeles

Southwest District

Torrance Dept. B

ROGER ALLEN OVERTON, et al.,

Plaintiffs,

Case No.:

BC619463

vs.

[Tentative] RULING

TOYOTA MOTOR CORPORATION, et al.,

Defendants.

Hearing Date: February 11, 2020

Moving Parties: Defendant Jiffy Lube International, Inc.

Responding Party: None

Motion for Summary Judgment (filed on August 30, 2018)

The court considered the moving papers and plaintiff’s notice of non-opposition.

RULING

The motion is GRANTED.

BACKGROUND

On May 4, 2016, plaintiffs Roger Allen Overton and Gail Overton filed a complaint against defendants Toyota Motor Corp., Toyota Motor North America, Inc., Toyota Motor Engineering & Manufacturing North America, Inc., Toyota Motor Sales USA, Inc., Denso Corporation, Denso International America, Inc., Ro-Ann Enterprises, Inc., Jiffy Lube International, Inc., CEH Automotive Corp. dba Big Two Toyota of Chandler, Sam’s West, Inc., and Michelin North America, Inc. general negligence and products liability. Plaintiffs allege that on May 6, 2014, at approximately 4:30 a.m., plaintiff Roger was injured while operating a 2008 Toyota Prius in a reasonably foreseeable and expected manner, on Ogilby Road south of State Route 78.

Plaintiffs further allege that Roger was travelling northbound on Ogilby Road in an unincorporated area of Imperial County at approximately 55 to 60 mph. He was driving alone on his way to work when his rear passenger tire failed an experienced a double side wall blow out. He took his foot off the gas and tried to steer the vehicle to remain on the road. He held the steering wheel to keep the vehicle on the road, but the vehicle’s stability control failed to function effectively to maintain the vehicle on the road. The vehicle crossed the center line against plaintiff’s steering inputs and veered left and went off the road and flipped over onto the roof, causing severe and permanent injuries to plaintiffs. The vehicle was equipped with a Michelin Pilot Exalto A/S size 205/55R16 91H, which was manufactured by Michelin and sold by Sam’s.

LEGAL AUTHORITY

The purpose of a motion for summary judgment or summary adjudication “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.” Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 843. “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Adler v. Manor Healthcare Corp. (1992) 7 Cal. App. 4th 1110, 1119.

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal. App. 4th 1510, 1519. A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” CCP § 437c(p)(2). “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 as to the cause of action or a defense thereto.” CCP § 437c(p)(2). “If the plaintiff cannot do so, summary judgment should be granted.” Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal. App. 4th 463, 467.

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” Avivi, 159 Cal. App. 4th at 467; CCP §437c(c).

DISCUSSION

Defendant Jiffy Lube International, Inc. requests summary judgment against plaintiffs on the grounds that there are no triable issues of material fact and as a matter of law, defendant prevails.

As to Jiffy Lube, the complaint alleges that on May 5, 2014 (the day before the incident) at approximately 9:43 a.m., Ro-Ann, Jiffy Lube inspected the subject vehicle and failed to detect the defective subject tire causing severe and permanent injuries to plaintiffs. The type of tire failure that occurred to the subject tire was such that both side walls failed during the sudden event. A side wall failure is typically an under inflation which should have been detected the day before by Ro-Ann and Jiffy Lube if the tire is not being run at the proper inflation. The subject tire does not appear to have been running under inflated at the time of the incident, thus if Ro-Ann’s and Jiffy Lube’s inspection confirmed the subject tire was properly inflated, the physical and circumstantial evidence confirms the subject tire was defective.

Jiffy Lube argues that there is no employment relationship between it and Ro-Ann Enterprises, which is the franchisee of the Jiffy Lube store in Yuma that did the service the day before the incident. Thus, Jiffy Lube argues, it is not subject to liability for the torts of employees of Ro-Ann.

“The general rule is where a franchise agreement gives the franchisor the right of complete or substantial control over the franchisee, an agency relationship exists. ‘It is the right to control the means and manner in which the result is achieved that is significant in determining whether a principal-agency relationship exists.’” Cislaw v. Southland Corp. (1992) 4 Cal. App. 4th 1284, 1288 (citations omitted). “[A] second important factor in determining whether one is an agent or an independent contractor . . . [is whether the franchisor has] the right to terminate the relationship at will.” Id. at 1296. In Patterson v. Domino’s Pizza, LLC (2014) 60 Cal. 4th 474, 497, the California Supreme Court stated: “As we have explained, franchisees are owner-operators who hold a personal and financial stake in the business. A major incentive is the franchisee’s right to hire the people who work for him, and to oversee their performance each day. A franchisor enters this arena, and becomes potentially liable for actions of the franchisee’s employees, only if it has retained or assumed a general right of control over factors such as hiring, direction, supervision, discipline, discharge, and relevant day-to-day aspects of the workplace behavior of the franchisee’s employees. Any other guiding principle would disrupt the franchise relationship.”

Jiffy Lube presents evidence that it is the franchisor and Ro-Ann Enterprises, Inc. is the franchisee of the Jiffy Lube store involved in this case. The franchise agreement provides that the franchisee is an independent contractor with the right to complete control and direction of the Franchised Center. According to E. Pat Conner, president of the franchisee Ro-Ann, Ro-Ann has always run the Jiffy Lube store as an independent contractor and has always exercised complete control and direction over the store. All of the individuals that work at the Jiffy Lube store are solely employees of Ro-Ann. No employees of Jiffy Lube were involved in the service work as to the subject vehicle. Further, the franchise agreement is not terminable at will; rather it sets forth that Jiffy Lube may terminate the agreement upon the occurrence of certain defaults. E. Pat Conner decl., Exh. 1 (franchise agreement).

The court finds that moving defendant has shown that plaintiff cannot establish the elements of negligence as to Jiffy Lube.

Plaintiff filed a notice of non-opposition.

The motion is therefore GRANTED.

Moving defendant is ordered to give notice of the ruling.