Issue by: Elizabeth Stewart
Jessica Ayon v. Esquire Deposition Solutions, LLC
Court of Appeal, Fourth Appellate District (September 2018)

California Code of Civil Procedure section 437c, subdivision (e), states that summary judgment may not be denied solely on the basis of the credibility of the moving party’s witnesses. However, summary judgment may be denied at the court’s discretion 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 the fact. The court may also deny summary judgment if the only proof of a material fact offered in support of the motion is an individual’s state of mind, or lack thereof, and that fact is to be established solely by the individual’s affirmation of the fact. Id. The court examined this issue in Ayon v. Esquire Deposition Solutions, LLC.

In Ayon v. Esquire Deposition Solutions, LLC, the plaintiff was injured in a motor vehicle accident caused by Brittini Zuppardo. Zuppardo, Esquire Deposition Solutions, LLC (“Esquire”) scheduling manager, was driving home from her boyfriend’s house while talking on the phone with Michelle Halkett, a court reporter for Esquire. Zuppardo’s vehicle struck plaintiff’s vehicle while she was on the phone with Halkett. Zuppardo reported to the police officer at the scene she had been speaking with one of her court reporters about her son’s prom and other family related issues. Both Zuppardo and Halkett testified at their respective depositions that they were good friends and had been talking about family matters at the time of the accident.

Esquire filed a motion for summary judgment on the grounds that Zuppardo was not operating within the scope of her employment at the time of the accident. Plaintiff opposed the motion relying on Zuppardo’s deposition testimony that she spoke on her cell phone with Halkett weekly, if not daily. However, Zuppardo’s cell phone records showed no calls between her and Halkett for the prior six months and only one text message. Plaintiff argued that a jury could infer that the two did not have a close personal relationship and that the call concerned work matters rather than personal matters.

The trial court granted Esquire’s motion for summary judgment, holding that plaintiff failed to introduce evidence that Zuppardo was operating within the scope of her employment with Esquire at the time of the accident. The court noted that, pursuant to California Code of Civil Procedure section 437c, subdivision (e), Plaintiff’s attack on Zuppardo’s and Halkett’s credibility does not amount to the substantial evidence required to defeat a motion for summary judgment. Plaintiff appealed.

The only question considered on appeal was whether plaintiff created a disputed issue of material fact concerning whether Esquire may be held liable under a theory of respondeat superior. The rule of respondeat superior states that ‘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) 12 Cal.4th 291, 296. Generally, the determination of whether an employee has acted within the scope of employment presents a question of fact. Mary M. v. City of Los Angeles (1991) 54 Cal. 3d 202. However, it becomes a question of law when the facts are undisputed and no conflicting inferences are possible. Id.

Here, plaintiff presented only one theory of respondeat superior liability: that Zuppardo was calling Halkett concerning a scheduling issue for a deposition. Esquire presented admissible evidence in the form of deposition testimony from both Zuppardo and Halkett that they were not discussing anything concerning work. This testimony was supported by undisputed evidence that Zuppardo only made after-hour work calls on rare occasions, that it was not within her normal job duties, and that the two were friends.

Plaintiff only presented evidence challenging the credibility of Zuppardo and Halkett by offering evidence relating to the extent of Zuppardo’s and Halkett’s cell phone contacts in an attempt to establish the actual conversation at the time of the accident was related to work. The court found that the exception to the general rule allowing the court to deny summary judgment where the only issue is the credibility of a witness making a statement about state of mind did not apply because the witnesses testified to the topic of their conversation which was an objective fact. The court reasoned that a lie about the extent of their cell phone contacts in the past was not substantial evidence creating a conflict of material fact regarding the actual topic of conversation that night, and did not establish the conversation was work-related. Because plaintiff failed to present substantial evidence to dispute their testimony, the court upheld the trial court’s ruling granting summary judgment in favor of Esquire.


The summary judgment procedure is to test whether the plaintiff has enough evidence to support a jury verdict. Substantial evidence is not synonymous with any evidence. The plaintiff must offer substantial admissible evidence to support the essential elements of her case. Challenging a witness’ credibility, without offering more, does not constitute substantial evidence and is not sufficient to defeat a motion for summary judgment.

For a copy of the complete decision, see: Ayon v. Esquire

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