Judge: Keri G. Katz, Case: 37-2022-00051776-CU-PO-CTL, Date: 2024-02-27 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - February 01, 2024

02/02/2024  08:30:00 AM  C-74 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Keri Katz

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Civil - Unlimited  PI/PD/WD - Other Summary Judgment / Summary Adjudication (Civil) 37-2022-00051776-CU-PO-CTL MCGARRY VS UBER TECHNOLOGIES INC [IMAGED] CAUSAL DOCUMENT/DATE FILED:

The court addresses the evidentiary issues. Defendant/Cross-Defendant/Cross-Complainant Mark Rycz's evidentiary objections are SUSTAINED. In light of the court's ruling, the court does not each Cross-Defendant/Cross-Complainant Richard Middleton Rall III's evidentiary objections. CCP § 437c(q).

The court then rules as follows. Cross-Defendant/Cross-Complainant Richard Middleton Rall III's motion for summary judgment against Defendant/Cross-Defendant/Cross-Complainant Mark Rycz on Rycz's cross-complaint against Rall is DENIED.

Rycz's operative First Amended Cross-Complaint alleges three causes of action against Rall – implied indemnity, contribution and apportionment. Rall argues that Decedent Stella Grace Yeh was instantly killed when the vehicle driven by Cross-Defendant Vasthi Curcio struck Decedent and thus already deceased when Rall's vehicle struck Decedent. In this circumstance, Rall argues that Rycz cannot establish that Rall hitting Decedent caused Decedent any harm. Rall relies on the following analysis in Lareau v. Southern Pac. Transportation Co. (1975) 44 Cal.App.3d 783.

. . . [W]hen several negligent automobile drivers, not acting in concert, successively collide with a plaintiff's person or his property, and the resulting damage is not capable of apportionment, the burden 'shifts to any defendant who might have contributed to the injuries to prove his own innocence or limited liability by showing that such injuries or some particular injury did not result from his negligent conduct.' (Italics added.) [Citations omitted.] Lareau, 44 Cal.App.3d at 791.

Rall submits evidence which Rall contends establishes that Decedent was already deceased when Decedent was struck by the vehicle driven by Rall [SSUMF 10-19]. The evidence Rall submits consists of the Declaration of Raymond Bangle III, Rall's counsel, the Declaration of Bahram Ravani, Ph.D., Rall's accident reconstruction and biomechanical analysis expert and the Declaration of Marvin Pietruszka, M.D., M.Sc., F.C.A.P., Rall's medical expert. Attorney Bangle states: 2. That attached hereto as Exhibit A is a true and correct copy of documents STELLA000307-000318 produced by plaintiff on December 21, 2020, in response to request to produce nos. 1 and 2 by defendant UBER TECHNOLOGIES, INC.

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3017552  11 CASE NUMBER: CASE TITLE:  MCGARRY VS UBER TECHNOLOGIES INC [IMAGED]  37-2022-00051776-CU-PO-CTL 3. That attached hereto as Exhibit B is a true and correct copy of documents STELLA000279-000290 produced by plaintiff on December 21, 2020, in response to request to produce nos. 1 and 2 by defendant UBER TECHNOLOGIES, INC.

The documents attached as Exhibit A/STELLA000307-000318 appear to be portions of a police report.

(Rycz identifies this document as 'pages 9-20 of a Traffic Collision Report prepared by Officer Antonio Pacheco, ID Number 020992, which is incomplete.') The document attached as Exhibit B/STELLA000279-000290 is titled 'AUTOPSY REPORT' and references 'STELLA YEH.' Rall does not submit the discovery from Defendant Uber Technologies, Inc. to which Plaintiff was responding in producing the identified documents. Nor does Rall submit Plaintiff's written response to Uber's discovery requests. More importantly, Rall fails to submit any evidence sufficient to lay a foundation for either the collision report or the Autopsy Report. In reply Rall relies on Rycz's verified discovery responses to Form Interrogatory No. 12.1, wherein Rycz refers to various reports, to authenticate the collision report and Autopsy Report. As with Plaintiff's discovery responses, Rall fails to establish how Rycz's discovery responses authenticate either the collision report or the Autopsy Report. Absent a proper foundation, this evidence is inadmissible. Evidence Code §§ 1400, 1401.

Rall also relies on declarations from Rall's experts. Ravani concludes: '. . . based on my experience in studying auto versus pedestrian accidents and the resulting injury patterns in such accidents, Ms. Yeh had received fatal injuries before she was hit/run over by the BMW' [Declaration of Bahram Ravani, ¶ 14]. Pietruszka, a physician board certified in pathology, concludes: 'I am of the opinion to a reasonable medical certainty more probably than not, Ms. Yeh was already deceased when she was struck by the second vehicle driven by Mr. Rall' [Declaration of Marvin Pietruszka ¶ 10]. However, Ravani and Pietruszka rely on the same collision report and/or the same Autopsy Report, both of which are inadmissible as set forth above. People v. Sanchez (2016) 63 Cal.4th 665 is clear that '[w]hat an expert cannot do is relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception.' Sanchez, 63 Cal.4th at 686. Absent laying a foundation for the collision report and Autopsy Report, or establishing by competent evidence that these documents are covered by a hearsay exception, Ravani and Pietruszka's opinions are inadmissible. People v. Turner (2020) 10 Cal.5th 786 provides the relevant analysis.

Dr. Scheinin did not perform the autopsy on Regina Washington's fetus. She did, however, relate to the jury observations recorded by the nontestifying medical examiner, including the weight and gestational age of the fetus. These facts were hearsay if offered to prove their truth. (See Sanchez, supra, 63 Cal.4th at p. 674, 204 Cal.Rptr.3d 102, 374 P.3d 320.) Experts enjoy wide latitude in the sources they may draw upon, and they are permitted to rely on hearsay in reaching their conclusions. (Id. at pp.

685–686, 204 Cal.Rptr.3d 102, 374 P.3d 320; People v. Leon (2015) 61 Cal.4th 569, 603, 189 Cal.Rptr.3d 703, 352 P.3d 289; see Evid. Code, § 802.) That is to say, experts can take hearsay into account when forming their own opinions.20 'What an expert cannot do,' however, 'is relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception.' (Sanchez, at p. 686, 204 Cal.Rptr.3d 102, 374 P.3d 320.) Some prior cases had allowed experts to relate case-specific facts on the theory that the material was not offered for its truth, but merely to show the basis of the expert's opinion. Sanchez pointed out the flaw in this logic: 'When an expert relies on hearsay to provide case-specific facts, considers the statements as true, and relates them to the jury as a reliable basis for the expert's opinion, it cannot logically be asserted that the hearsay content is not offered for its truth. In such a case, 'the validity of [the expert's] opinion ultimately turn[s] on the truth' (Williams[ v. Illinois (2012)] 567 U.S. [50,] 108, 132 S.Ct. 2221, 183 L.Ed.2d 89 ... (conc. opn. of Thomas, J.)) of the hearsay statement. If the hearsay that the expert relies on and treats ase is not true, an important basis for the opinion is lacking.' (Sanchez, at pp. 682–683, italics omitted.) When Dr. Scheinin gave facts about gestational age and weight obtained only from the autopsy report, presented them to the jury as true, and represented that those facts bolstered her opinion, she related case-specific hearsay. (See Sanchez, at p. 685, 204 Cal.Rptr.3d 102, 374 P.3d 320.) Calendar No.: Event ID:  TENTATIVE RULINGS

3017552  11 CASE NUMBER: CASE TITLE:  MCGARRY VS UBER TECHNOLOGIES INC [IMAGED]  37-2022-00051776-CU-PO-CTL Turner, 10 Cal.5th at 821–822.

Like the medical expert in Turner, Ravani and Pietruszka, in providing facts about the incident obtained only from the collision report and/or Autopsy Report, present these facts as true and base their opinions on these facts. In so doing, Ravani and Pietruszka are relating case-specific hearsay which is inadmissible, absent an exception.

The court is not persuaded by any of the arguments Rall raises in reply to Rycz's evidentiary objections.

Sanchez does not support Rall's arguments. Nor does People v. Clark (1992) 3 Cal.4th 41. Clark addresses a similar evidentiary issue as follows.

Dr. Carpenter of the coroner's office conducted the autopsy of Jane Doe 99 and prepared a report of his findings. He died before the penalty phase. Dr. Choi, who had performed much of the medical examination in relation to this case, including the autopsy of Jane Doe 28, was permitted over defense objection to testify about the report and findings of Dr. Carpenter. The report itself was not placed into evidence. Defendant contends the report was inadmissible hearsay and violated his right of confrontation. The claim lacks merit.

In People v. Wardlow (1981) 118 Cal.App.3d 375 [173 Cal.Rptr. 500], a deputy coroner testified concerning an autopsy report prepared by another deputy coroner, who had since left the employ of the coroner's office. Because an autopsy report is a public record (People v. Williams (1959) 174 Cal.App.2d 364, 390 [345 P.2d 47]), and the trial court had inquired into both the report and the expertise required of deputy coroners so as to establish the trustworthiness of the report, the deputy coroner's testimony was found to have been properly admitted. (People v. Wardlow, supra, 118 Cal.App.3d 375, 388.) Dr. Choi's testimony was similarly proper here.

Evidence Code section 1280 provides: 'Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered to prove the act, condition, or event if: [¶] (a) The writing was made by and within the scope of duty of a public employee; [¶] (b) The writing was made at or near the time of the act, condition, or event; and [¶] (c) The sources of information and method and time of preparation were such as to indicate its trustworthiness.' These requirements were met in this case. Dr. Carpenter had already testified as an expert at the guilt phase-he performed the autopsies of Gina Marano and Cynthia Chandler. Dr. Choi testified that Dr.

Carpenter performed the autopsy of Jane Doe 99, that Dr. Choi was personally familiar with the manner of preparation of autopsy reports in the medical examiner's office, that it was Dr. Carpenter's duty at the time of the examination to make a report of the Jane Doe 99 autopsy, that the report was made at or near the time of the autopsy examination, and that the report so prepared was an official record of the coroner/medical examiner's office. This was sufficient to establish the report as an official record and to permit Dr. Choi's testimony.

Clark. 3 Cal.4th at 158–159.

Unlike the circumstances in Clark, there is no evidence establishing the trustworthiness of the collision report or Autopsy Report and there is no evidence of any other exception to the hearsay rule. Without such evidence Ravani and Pietruszka's opinions based on this evidence are inadmissible.

The other authorities Rall relies on are also distinguishable. People v. Veamatahau (2020) 9 Cal.5th 16 addresses only the issue of whether sources relied on by an expert are 'case-specific hearsay.' Similarly, Olive v. General Nutrition Centers, Inc. (2018) 30 Cal.App.5th 804 addresses a tangential Sargon issue [Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747] ['expert opinion testimony may not be based upon information furnished by others that is speculative, conjectural or otherwise unreliable']. Olive, 30 Cal.App.5th at 822. Zuniga v. Alexandria Care Center, LLC (2021) 67 Cal.App.5th 871 is distinguishable for the same reasons.

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3017552  11 CASE NUMBER: CASE TITLE:  MCGARRY VS UBER TECHNOLOGIES INC [IMAGED]  37-2022-00051776-CU-PO-CTL Absent admissible evidence the court finds Rall fails to meet Rall's burden on summary judgment.

Accordingly, Rall's motion is DENIED.

Addressing a related issue, court records show that Curcio filed an opposition to this motion. Court records also show that Rall subsequently dismissed Rall's cross-complaint against Curcio. In light of these circumstances, the court does not consider Curcio's opposition or Rall's reply and request to strike Curcio's opposition.

If this tentative ruling is confirmed the Minute Order will be the final order of the court and the parties shall not submit any further order on this motion.

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