Judge: Lynne M. Hobbs, Case: 21STCV04196, Date: 2024-03-08 Tentative Ruling

Case Number: 21STCV04196    Hearing Date: March 8, 2024    Dept: 30

JUAN PEDRO SALAZAR-RODRIGUEZ, et al. vs FEDEX GROUND PACKAGE SYSTEM, INC., A CORPORATION, et al.

TENTATIVE

Defendants’ motion for summary adjudication is DENIED.  Plaintiff to give notice.

Request for Judicial Notice

The court must consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court. (Code Civ. Proc., § 437c(c).) Therefore, Plaintiff’s request is unnecessary and the Court declines to rule on the request.

Evidentiary Objections

Defendant’s Objections to Plaintiff’s Evidence:

· The following objections are SUSTAINED: 1. The remainder of the objections are Moot.

· The following objections are OVERRULED: n/a

Plaintiff’s Objections to Defendant’s Evidence:

· The following objections are SUSTAINED: 1, 2, 3

Vehicle Code section 20013 specifically precludes accident reports from being used as evidence in any civil action. (Veh. Code, § 20013; see also People v. Flaxman (1977) 74 Cal.App.3d Supp. 16, 20.)

· The following objections are OVERRULED: n/a

Legal Standard

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. Atl. 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.) The moving party is entitled to

summary judgment if they can show that there is no triable issue of material fact or if they have a complete defense thereto. (Aguilar v. Atlantic Richfiend Co. (2001) 25 Cal. 4th 826, 843.)

Once the moving party has met that burden, section 437c shifts the burden to the opposing party to show that there is a triable issue of material fact as to the cause of action. If the opposing party cannot do so, summary judgment should be granted. (Avivi v. Centro Medico Urgente Med. Ctr. (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.)

Discussion

Defendants move for summary adjudication of the punitive damages claim, arguing it has no merit because there is no clear and convincing evidence of malice as to Estrada. As for Defendants FedEx, Bonanno and Zara, Defendants argue there is no clear and convincing evidence that FedEx, Bonanno, and Zara had advance knowledge of Estrada's alleged unfitness, or that any alleged oppressive, fraudulent, or malicious conduct allegedly perpetrated by Estrada was authorized or knowingly ratified by an officer, director, or managing agent of FedEx, Bonanno, or Zara, or by these Defendants themselves.

Civil Code § 3294 provides, in pertinent part, as follows:

(a)¿In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.

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“Malice” is defined in section 3294(c)(1) as “conduct which is intended by the defendant to cause injury” or “despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” “Oppression” is defined in section 3294(c)(2) as “despicable conduct subjecting a person to cruel and unjust hardship in conscious disregard of that person’s rights.”

The term “despicable” has been defined in the case law as actions that are “base,” “vile,” or “contemptible.” (See, e.g., Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78 Cal. App. 4th 847, 891.) To prove that a defendant acted with “willful and conscious disregard of the rights or safety of others,” it is not enough to prove negligence, gross negligence or even recklessness. (Dawes v. Superior Court (1980) 111 Cal. App. 3d 82, 87.)

Further, “[t]here must be evidence that defendant acted with knowledge of the probable dangerous consequences to plaintiff’s interests and deliberately failed to avoid these consequences.” (Flyer’s Body Shop Profit Sharing Plan v. Ticor Title Ins. Co., 185 Cal. App. 3d 1149, 1155 (1986); see also Angie M. v. Superior Court, 37 Cal. App. 4th 1217, 1228 (1995) [“Conscious disregard for the safety of another may be sufficient where the defendant is aware of the probable dangerous consequences of his or her conduct and he or she willfully fails to avoid such consequences”].)

While “the ‘clear and convincing’ evidentiary standard is a stringent one, it does not impose on a plaintiff the obligation to ‘prove’ a case for punitive damages at summary judgment.” (Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1053.) However, where the plaintiff's ultimate burden of proof will be by clear and convincing evidence, the higher standard of proof must be taken into account in ruling on a motion for summary judgment or summary adjudication, since if a plaintiff is to prevail on a claim for punitive damages, it will be necessary that the evidence presented meet the higher evidentiary standard. (Basich v. Allstate Ins. Co. (2001) 87 Cal.App.4th 1112, 1118–1120, 105 Cal.Rptr.2d 153.) Further, summary judgment “on the issue of punitive damages is proper” only “when no reasonable jury could find the plaintiff’s evidence to be clear and convincing proof of malice, fraud or oppression.” (Id.)

i. Estrada

Here, Plaintiffs allege Estrada was driving, as part of his employment duties. In the scope of this employment, while driving, he used his cell phone, drove well above the speed limit and with his headlights turned off in low light conditions in high volume of commuter traffic, during the early morning rush hour. (FAC, ¶ 7(C)(1)-(9).) Defendants do not dispute that Estrada was driving while using his cell phone or driving above the speed limit. However, Defendants contend that whether Estrada was using his cell phone at the time of the incident is disputed. In fact, different witnesses have different impressions of the video evidence, and Mr. Estrada himself does not say that he was "using" his cell phone at the time of the collision. (UMF Nos. 8-10.)

Estrada concedes that he was traveling approximately 52 m.p.h. before the incident. This is 12 m.p.h. above the posted speed limit. However, Defendants present video evidence that as Estrada was traveling northbound on Corbin Avenue, the traffic traveling northbound and ahead of Mr. Estrada's vehicle was almost non-existent. (UMF No. 4.) Further, the Mercedes-Benz Sprinter van had automated headlights, meaning the headlights automatically went on when the vehicle was started. The headlights on the vehicle driven by Estrada automatically came on once the engine is started. (UMF No. 3.)

The Court finds that Defendants have not presented evidence sufficient to show that there are no triable issues of material fact as to whether there is clear and convincing evidence of malice as to Estrada. The evidence shows that Defendant Estrada was operating a sprinter truck in low lighting conditions in an area with plenty of other vehicles around, driving over the speed limit, while looking down at his cell phone just moments before the collision occurred. Defendants’ attempt to cast doubt as to whether Estrada was using his cellphone the exact moment the collision occurred is unavailing because had he been paying attention even prior to the exact moment the collision occurred, he would have had a better opportunity to avoid the collision. Further, Defendants use their own self-serving evidence for this proposition. While they have evidence that the lights automatically turned on, the evidence still shows that it was not completely light out; thus, all of the aggravating circumstances added to the probability of the risk of injury to others.

The Court notes that Donnelly v. Southern Pacific Co. (1941) 18 Cal.2d 863, 869-870 and Dawes v. Superior Court (1980) 111 Cal.App.3d 82, 90 both hold that driving recklessly can support a prayer for punitive damages. Although Dawes v. Superior Court (1980) 111 Cal.App.3d 82 was a DUI case, the Court noted that the circumstances constituted more than the “ordinary driving while intoxicated,” where there was a probable risk of injury to others due to the defendant running a stop sign, at a high rate of speed, zigzagging through traffic, in the middle of the afternoon on a Sunday in summer, and in a crowded beach recreation area. (Id. pp. 88-89.) It was these aggravating circumstances that made the risk of injury to others probable.

Defendants improperly attempt to introduce the police report and introduce evidence that the detective investigating this case could not say who was more culpable, Decedent or Defendant Estrada. However, even if Decedent was culpable, that would be a question of comparative negligence. Further, this is improper opinion testimony. As such, Defendant Estrada is not entitled to summary adjudication of the claim for punitive damages.

ii. FedEx, Bonanno, & Zara

Defendants argue there is no clear and convincing evidence that FedEx, Bonanno, and Zara had advance knowledge of Estrada's alleged unfitness, or that any alleged oppressive, fraudulent, or malicious conduct allegedly perpetrated by Estrada was authorized or knowingly ratified by an officer, director, or managing agent of FedEx, Bonanno, or Zara, or by these Defendants themselves.

“An employer shall not be liable for [punitive] damages ..., based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, [or] ratification ... must be on the part of an officer, director, or managing agent of the corporation.” (Civil Code § 3294.) The California Supreme Court interpreted the “latter statement as requiring the officer, director, or managing agent to be someone who ‘exercise[s] substantial discretionary authority over decisions that ultimately determine corporate policy.’” (White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 577.)

As to punitive damages against Defendants Fedex, Bonanno and Zara, the FAC alleges that prior to the fatal collision, an officer, director and/or managing agent of defendants actually knew that defendant Estrada was unfit and incompetent to drive the Fedex truck. Defendants knew that Estrada would: drive on public roadways and streets in Los Angeles in low light conditions without using headlights; ignore posted speed limit signs and drive at speeds that were unsafe for the prevailing conditions at the time; consistently fail to use the utmost care in operating commercial vehicles, like the Fedex truck, on public roadways, consistently fail to drive the Fedex truck with two hands on the wheel at all times; fail to drive the Fedex truck with constant attention and awareness to his surroundings, without any distractions; and consistently drive the Fedex truck while texting or otherwise using a cellphone without the hands-free feature thereby taking his eyes completely off the roadway which prevented him from ever seeing other otherwise perceiving other vehicles and drivers on the roadway.

The FAC further alleges that despite this express knowledge, these defendants, and their officers, directors, and/or managing agents, still authorized and allowed Estrada to drive the Fedex truck at all times however he wanted, including the date of the fatal collision. Further, despite this actual knowledge, these defendants approved of Estrada’s conduct that caused the fatal collision after the fatal collision occurred.

The FAC further alleges that included in the cab of the Fedex truck was an internal camera that recorded Estrada at all times the engine was on. The express purpose of these written policies and the internal camera was to make sure and certain Estrada would not engage in the above-described illegal and unsafe conduct. Defendants never warned, suspended or disciplined Estrada for his persistent illegal and unsafe driving, even though it was recorded by the internal camera every time he got behind the wheel of the Fedex truck.

Defendants argue that there is no evidence that they actually knew Estrada was unfit. Defendants argue that Plaintiff’s theory of advance knowledge is based on the internal cameras. Defendants present evidence that the video cameras and recording do not allow for "real-time" or "live" monitoring. (UMF No. 33.) Moreover, there is no evidence that Estrada was under constant surveillance. Instead, Zara of Bonanno would randomly, like once a week, monitor the video recordings for a random date that were captured by the video cameras on the vehicles as part of Bonanno's safety program with the drivers. (UMF No. 31.) As part of his random monitoring of these video recordings, Zara would see, for example, if a driver is not distracted, driver is wearing seatbelt, or a driver was using or holding his or her cell phone. (UMF No. 32.) There is also no evidence that FedEx had access to this video recording and monitored the videos in Mr. Estrada's van.

Next, Defendants argue even if there was testimony that established that FedEx or Bonanno officers or managing agents authorized something, the conduct they ratified was far from despicable. Before the incident, according to Mr. Estrada, he admitted to using his cell phone as he did in the video, but not all the time. (UMF No. 34.) However, again, there is no evidence that FedEx, Bonanno, and Mr. Zara, in fact, knew this before December 11, 2019. Prior to the incident, Bonanno had rules on safety and service, such as having a safety training program, ensuring drivers do not have moving violations, or having a standard delivery process for all packages. (UMF No. 20.) According to Estrada, he received training from Bonanno on cell phone use while driving. (UMF No. 22.) In fact, Estrada testified that Bonanno did not allow him to use his cell phone while driving FedEx vehicles. (UMF No. 23.)

Further, before the incident, Zara never saw Estrada holding or using his cell phone while driving or going over the posted speed limit. (UMF No. 35.) Before the incident, Mr. Estrada never got into an accident while driving for Bonanno. (UMF No. 36.) Before the incident, Estrada never received any traffic citations or tickets while driving for Bonanno. (UMF No. 37.)

FedEx did not supervise Bonanno, an independent service provider ("ISP"), but dealt with it on a contractual level. (UMF No. 39.) FedEx itself does not have policies for ISP employees, such as Estrada, regarding their cell phone use or safe driving; thus, FedEx does not require ISPs do anything with their employees. (UMF No. 40.)

The Court finds that Defendant Fedex has not presented any evidence that it did not have advance knowledge of the unfitness of Estrada as alleged in the FAC. While Fedex did not have constant surveillance, or real-time monitoring, Fedex never presents evidence that, for example, it had watched surveillance footage and did not see any acts of negligent or reckless driving, or that it never watched the footage to know of the reckless driving. Defendants argue without any evidence that “There is also no evidence that FedEx had access to this video recording and monitored the videos in Mr. Estrada's van.” However, Defendants are required to submit evidence to support this assertion. Then, Defendant Fedex only argues, again without citing to any evidence, that there is no evidence it knew Estrada used his cell phone. For purposes of this motion for summary adjudication, it is Defendant’s burden to present this evidence. None of the evidence presented shows that Defendant Fedex did not have advance knowledge and did not employ Estrada with a conscious disregard of the rights or safety of others or did not authorize the wrongful conduct as alleged in the FAC. Thus, Defendant Fedex is not entitled to summary adjudication as to the claim for punitive damages.

On the other hand, the Court finds that Zara and Bonanno have submitted evidence sufficient to show that they did not have advance knowledge of Estrada’s unfitness, and thus, did not employ him with a conscious disregard of the rights of others, and they did not authorize his conduct. Zara, who is Bonanno’s owner, testified that he never saw Estrada holding or using his cell phone while driving or going over the posted speed limit, and Estrada never got into an accident or received tickets while driving for Bonanno. As such, Defendants Zara and Bonanno met their burden and the burden shifts to Plaintiff to show there are triable issues of fact as to punitive damages claim against Defendants Zara and Bonanno.

To meet their burden, Plaintiffs argue that Zara and Bonanno ratified Estrada’s conduct. Plaintiff presents evidence to this effect.

There are issues with Plaintiff’s evidence. A writing must be authenticated by declarations or other evidence establishing that the writing is what it purports to be. (Evidence Code. §§ 250, 1401(a); O'Laskey v. Sortino (1990) 224 Cal.App;3d 241, (disapproved on other grounds in Flanagan v. Flanagan (2002) 27 Cal.4th 766.)

In the instant action, Plaintiffs’ evidence is authenticated via the declaration of Plaintiffs’ counsel. However, there is no indication that Plaintiffs’ counsel, presumably hired after the operative facts occurred, has personal knowledge to authenticate the documents.

In addition, CCP § 2015.5 requires that a declaration be made under penalty of perjury under the laws of the State of California, and “(1) if executed within this state, states the date and place of execution, or (2), if executed at any place, within or without this state, states the date of execution and that it is so certified or declared under the laws of the State of California.”

Plaintiffs’ counsel’s declaration does not provide a place, or whether it is declared under the laws of the State of California. Thus, the declaration is improper and will not be considered by the Court.

Technical defects in a declaration, such as the failure to comply with Code Civ. Proc. § 2015.5 pertaining to sworn statements and its failure to state it is based on personal knowledge, will preclude its use as evidentiary support for the motion. (Witchell v. De Korne, (1986) 179 Cal.App.3d 965, 975.) As such, Defendant’s objections are well taken, and the opposing papers are largely unsupported.

However, the evidence that Zara and Bonanno did not fire Estrada after learning of the incident at issue is also presented in Defendants’ evidence. (Zara Depo., pg. 39:15-25.) “The failure to discharge an employee who has committed misconduct may be evidence of ratification.” (Baptist v. Robinson¿(2006) 142 Cal.App.4th 151, 169.) Zara testified that he continued to employ Estrada even after the collision, albeit as a helper. (Id.) Thus, this evidence shows that even after learning of Estrada’s conduct, Zara and Bonanno did not discharge Estrada. As such, the evidence presented shows there are triable issues of material fact as to whether Zara and Bonanno ratified the conduct of Estrada.

In reply, Defendant argues that the ratification is a new theory introduced in the opposition to the motion for summary adjudication. However, in the FAC, Plaintiffs alleged that Defendants approved of Estrada’s conduct that caused the collision. (FAC, 16.) As such, ratification is not a theory introduced for the first time.

Conclusion

Accordingly, Defendants’ motion for summary adjudication is DENIED.