Ayon v. Esquire Deposition Solutions, LLC, 27 Cal. App. 5^th 487 (2018)

Brittini Zuppardo, a scheduling manager for Esquire Deposition Solutions, was talking on her cell phone while driving home from her boyfriend’s house when her vehicle struck Jessica Ayon, causing significant injuries. At the time of the accident, Zuppardo was speaking with Michelle Halkett, one of Esquire’s court reporters. Zuppardo and Halkett both testified that they were good friends and were talking about family matters on the evening of the accident. Although Zuppardo testified that she spoke on her cell phone with Halkett weekly, if not daily, her cell phone records showed no calls between her and Halkett’s cell phone for the prior six months. Since a summary judgment motion cannot be denied on grounds of credibility, the trial court granted Esquire’s motion for summary judgment on the ground that plaintiff had no evidence that Zuppardo was operating within the scope of her employment with Esquire at the time of the accident. The Court of Appeal affirmed, holding that “merely offering reasons why a witness 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.”