Ayon v. Esquire Deposition Solutions, LLC, No. G054578 (D4d3 Sept. 21, 2018)
Defendant’s employee ran over plaintiff while talking on the phone with another employee. Whether defendant can be liable under a respondeat superior theory appears to turn on the contents of the conversation. At deposition, both employees say they were friends and talking about personal, not work stuff. Plaintiff doesn’t believe them and suggests they had motive to lie.
But that isn’t enough to avoid summary judgment. Disbelief in the truth of a statement is not evidence that the opposite it true. Indeed, Code of Civil Procedure § 437c(e) specifically says summary judgment can’t be denied on credibility grounds.
There are two exceptions that give a court discretion to deny SJ based on credibility questions. First, when the only evidence is a declaration from an individual who is a the sole witness to a fact. And second, when the issue is an individual’s state of mind and the only evidence is the individual’s attestation thereof. Neither of those apply here. Both employees were deposed. And state of mind isn’t the issue. So absent some affirmative evidence to contradict the employees’ testimony—there was none—there is no dispute of material fact.
Affirmed.
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