Judge Michael C. Kelley, Case 19AVCV00770 2022-08-16 Tentative Ruling

This personal injury case arises from a vehicle collision that occurred on the night of April 24, 2018, on northbound 165th Street East, in an unincorporated area of the County of Los Angeles. (First Am. Compl. ¶¶ 12-13.) Plaintiffs Oscar Majin Hernandez, Vladimir Hernandez, Joel Hernandez, Jose Hernandez, and Rosa Miriam Menjivar-Hernandez (collectively, “Plaintiffs”) allege that Decedent Baldomero Hernandez Guerra (“Decedent”) was driving his Ford F-150 pickup truck down the subject street when he accidentally drove over the dirt shoulder, causing him to lose control of his vehicle. (Id., ¶ 12.) As a result, Decedent’s car rolled over multiple times before eventually coming to a halt in the middle of the northbound lane of the subject street. (Ibid.)

Meanwhile, Defendant Martin Castillo Zamago (“Zamago”) was driving a 2006 Freightliner in the course of his employment with Defendant and moving party Jose Angel De La Garza Doing Business As De La Garza Trucking (“De La Garza”). (First Am. Compl. ¶ 9.) De La Garza was the owner of the Freightliner. (Ibid.) Zamago allegedly collided with Decedent’s vehicle while Decedent was still inside. (Id., ¶ 13.) Decedent sustained injuries from the collision and died at the scene. (Ibid.)

Plaintiffs Oscar Majin Hernandez, Vladimir Hernandez, Joel Hernandez, and Jose Hernandez are Decedent’s children. (First Am. Compl. ¶ 1.) Plaintiff Rosa Miriam Menjivar-Hernandez is Decedent’s widow. (Id., ¶ 2.) They filed this action on October 15, 2019, and filed the operative First Amended Complaint on January 6, 2020. In the operative complaint, Plaintiffs allege two causes of action for (1) negligence and (2) negligent infliction of emotional distress. The cause of action for negligent infliction of emotional distress is brought by Plaintiff Joel Hernandez (sometimes referred to in the parties’ papers as “Mr. Menjivar”) only, as he allegedly witnessed the collision and Decedent’s subsequent injury.

Defendant De La Garza filed an answer to the First Amended Complaint on March 11, 2020. Though substitute service on Defendant Zamago was completed on February 3, 2020, Zamago has not made an appearance.

De La Garza filed the instant Motion for Summary Judgment on June 2, 2022. Plaintiffs filed a timely opposition on August 2, 2022, as well as 46 evidentiary objections.

De La Garza filed a timely reply. He also filed a “reply” separate statement, although the statutory language of Code of Civil Procedure section 437c suggests this is not permissible (Code Civ. Proc., §§ 437c, subd. (b)(4); Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252); and new evidence in the form of third-party witness Jose Manuel Tavera Santa Cruz’s deposition transcript (Ibid.; San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 315). Because both were unauthorized, the Court did not consider these filings when making its ruling.

De La Garza also filed evidentiary objections, but the objections were unnumbered and therefore did not comply with the Rules of Court. (Cal. Rules of Court, rule 3.1354(b).) These formatting rules, when followed, assist the court with referring to and ruling on the high volume of objections that are frequently before it. De La Garza’s unenumerated objections were difficult and inefficient to navigate. The Court declined to rule on them. (See Joshi v. Fitness International, LLC (2022) 80 Cal.App.5th 814, 830, fn. 9.)

De La Garza argues he is entitled to summary judgment because there is no triable issue of material fact as to whether Defendants breached their duty of care.

Objection 1: Vehicle Code section 20008 requires drivers who were involved in a car accident that resulted in injuries or death to report the accident to the Department of California Highway Patrol or the relevant police department. (Veh. Code, § 20008, subd. (a).) However, these reports may not be “used as evidence in any trial, civil or criminal, arising out of an accident[.]” (Id., § 20013; see Box v. Cal. Date Growers Assn. (1976) 57 Cal.App.3d 266, 271 [“[I]t is well established that traffic accident reports are not admissible in evidence.”].) The purpose of this rule is to encourage “truthful and complete accident reports[.]” (Davies v. Superior Court (1984) 36 Cal.3d 291, 298.)

These statutes do not refer to accident reports made by investigating officers, but rather, “those filed by drivers and passengers of vehicles involved in accidents resulting in death or bodily injury, and by witnesses to such accidents.” (People v. Ansbro (1984) 153 Cal.App.3d 273, 277.)

Here, Plaintiffs object to the entirety of Defendant’s Exhibit C on the grounds that it is inadmissible hearsay, its admission is prohibited under Vehicle Code section 20013, it contains improper opinion evidence, and it lacks authentication. Exhibit C is the Department of California Highway Patrol’s Traffic Collision Report. (Def. De La Garza Decl. Hooker Supp. Mot. Summ. Judg. at Ex. C.)

The report itself is not hearsay because it falls under the exception for writings made by a public employee as a record of an event. (Evid. Code, § 1280.) However, some of the statements contained in the report are hearsay or improper opinion (see Objections 2-4).

The report as a whole is not inadmissible under Vehicle Code section 20013, because that statute only prohibits the admission of reports made by drivers, passengers, and witnesses. Exhibit C is a traffic collision report prepared by an investigating officer. Therefore, Section 20013 does not apply.

As for authentication, a writing may be authenticated by its contents and circumstantial evidence. (People v. Cruz (2020) 46 Cal.App.5th 715, 729.) Here, De La Garza’s attorney attests that this is a true and correct copy of the California Highway Patrol’s report. (Def. De La Garza Decl. Hooker Supp. Mot. Summ. Judg. ¶ 5.) It bears indicia of trustworthiness, in that it has the same general appearance as all traffic reports prepared by the California Highway Patrol. This is sufficient to establish its authenticity.

Objection 2: Plaintiffs object to a portion of the Traffic Collision Report which summarizes statements made by Defendant Zamago (“P-2”) to the responding officers:

“. . . he suddenly saw V-1 stopped directly in his lane without any lights on just prior to impact. P-2 slammed on his brakes . . . . P-2 reiterated he could not see V-1 in the roadway since it did not have any lights on. He only saw V-1 just a few feet prior to impact.” (Def. De La Garza Decl. Hooker Supp. Mot. Summ. Judg. at PDF p. 64.) Plaintiffs object on the grounds that this statement is inadmissible hearsay, inadmissible under Vehicle Code section 20013, and lacking authentication.

The Court has already determined that Vehicle Code section 20013 does not apply to this traffic collision report, because it was prepared by an investigating officer as opposed to a driver, passenger, or witness.

The statement, however, is hearsay within hearsay because, although the collision report itself is admissible under the hearsay exception for official records, the challenged statement contained in the report was made out-of-court, at the scene of the accident, to the responding officer, and is being offered for its truth. The statement consists of Zamago’s recollection of what he observed. It does not fall under any hearsay exceptions; it is not, for example, being offered to refresh Zamago’s memory, nor is it being offered against Zamago, since it was not produced by Plaintiffs.

Objection 3: Plaintiffs object to a portion of the Traffic Collision Report which summarizes the statement made by nonparty witness Jose Manuel Tavera Santa Cruz (“W-1”) to the responding officer: “he saw V-1 blacked out in the northbound lane . . . W-1 stated, ‘You could barely see it’ since V-1 was blacked out.” (Def. De La Garza Decl. Hooker Supp. Mot. Summ. Judg. at PDF p. 64.) As with Objection 2, Plaintiffs object on the grounds that the statement is hearsay and inadmissible under Vehicle Code section 20013.

For the same reasons articulated in the Court’s ruling on Objection 2, Objection 3 is SUSTAINED because the statement is inadmissible hearsay.

Objection 4: Plaintiffs object to a portion of the Traffic Collision Report which summarizes the statement made by nonparty witness Gerson Fernando Barrera (“W-2”) to the responding officer: “W-2 saw Mr. Guerra reach for something on the floor with his right hand, possibly chips.” (Def. De La Garza Decl. Hooker Supp. Mot. Summ. Judg. at PDF p. 65.) As with Objections 2 and 3, Plaintiffs object on the grounds that the statement is hearsay and inadmissible under Vehicle Code section 20013.

For the same reasons articulated in the Court’s rulings on Objections 2 and 3, Objection 4 is SUSTAINED because the statement is inadmissible hearsay.

Objection 5: Next, Plaintiffs object to various portions of the “OPINIONS AND CONCLUSIONS” section of the Traffic Collision Report on the grounds that they constitute hearsay, the declarant lacks personal knowledge, the statements lack sufficient authentication, and the report is inadmissible under the Vehicle Code. Specifically, they object to the statement, “Due to the previous collision and witness statements, V-1’s lights became inoperable.” (Def. De La Garza Decl. Hooker Supp. Mot. Summ. Judg. at PDF p. 66.)

This statement belongs to the “OPINIONS AND CONCLUSIONS” section of the Traffic Collision Report, which consists of the author’s conclusions about the events and cause of the accident, based on the author’s interpretation of the events and the witnesses’ statements. According to the report itself, the author of this section of the report was Officer Thomas Caton of the California Highway Patrol. (Def. De La Garza Decl. Hooker Supp. Mot. Summ. Judg. at PDF p. 61.) Because the statement is Officer Caton’s own conclusion, rather than a summary of the witnesses’ statements, it is not hearsay-within-hearsay; it is merely a portion of the Traffic Collision Report, which itself qualifies for the hearsay exception for records created by public employees. It is therefore not inadmissible hearsay.

However, according to the statement itself, Officer Caton based his conclusion that Decedent’s pickup truck’s lights were inoperable on statements made by various witnesses. It is unclear which witness statements he based this conclusion on, as none of the summaries of the statements refer to the headlights being inoperable—only that they were not on. (Def. De La Garza Decl. Hooker Supp. Mot. Summ. Judg. at PDF p. 64.) It is therefore unclear how Officer Caton reached his conclusion, as he himself did not witness the collision in real time. Therefore, the Court agrees Officer Caton did not have personal knowledge of whether or why Decedent’s vehicle’s headlights were inoperable.

Objection 6: “[O]pinion evidence is never admissible upon a subject which is capable of direct proof and when the ultimate question can be otherwise ascertained and made intelligible to the trier of fact. In other words, whenever the question to be determined is the result of the common experience of all people of ordinary education, or such result is to be inferred from particular facts, such inference must be drawn by the jury and not by the witness.” (Moore v. Norwood (1940) 41 Cal.App.2d 359, 366.) Whether a car accident could have been avoided under certain factual circumstances requires “[n]o special training or experience,” and is therefore an issue for the jury. (Id., 366-367.) Expert opinions on this issue are not allowable, and therefore may not be admitted. (Id., 367-368.)

Plaintiffs object to another sentence in the “OPINIONS AND CONCLUSIONS” section of the Traffic Collision Report. Officer Caton wrote, “This collision was determined to be ‘other than driver.’ It is not reasonable for P-2 to have seen V-1 and have time to react or slow down before colliding.” (Def. De La Garza Decl. Hooker Supp. Mot. Summ. Judg. at PDF p. 67.) Plaintiffs object on the grounds that it is hearsay, that the declarant lacked personal knowledge, the statement lacked authentication, it is inadmissible under Vehicle Code section 20013, and it is improper opinion evidence.

Plaintiffs correctly argue that this statement is inadmissible because it offers an opinion on an issue that must be left to the jury—breach. According to case law, whether a driver breached his duty of care and caused a collision is a question that a jury is capable of answering itself, without expert evidence. Therefore, Officer Caton’s opinion on whether Zamago conducted himself with due care is not admissible.

De La Garza cites Kastner v. Los Angeles Metropolitan Transit Authority (1965) 63 Cal.2d 52 to support his contention that Officer Caton’s testimony is admissible because “a police officer who is trained in investigating traffic accidents may give expert testimony based on his or her inspection . . . .” (Def. De La Garza Reply Mot. Summ. Judg. at 10.) De La Garza, however, takes the case out of context. Our Supreme Court indeed held in this case that a traffic officer could offer expert opinion on the “point of impact” between a bus and a pedestrian, but only because:

the point of impact was not so obvious that any person, trained or not, could infer from the evidence where it was located. Accordingly, the case was one where the opinion of a trained expert in the field could be of assistance to the members of the jury in arriving at their conclusions, and the trial court properly received opinion evidence by a person found to be qualified to testify as an expert.

(Kastner v. L.A. Metro. Transit Auth., supra, 63 Cal.2d at 58.) Otherwise, in cases where the point of collision is “obvious,” then “any reasonable person, trained or not, can draw that inference from the facts.” (Id., 57.) In car accident cases, “much must be left to the common sense and discretion of the trial court.” (Ibid.)

As De La Garza is not making an argument that Officer Caton is offering this opinion because the subject matter is beyond a layperson’s common sense, his testimony as to Defendants’ negligence is inadmissible. Objection 6 is SUSTAINED.

Objection 7: “. . . Evidence Code section 1280, unlike the related business records exception of Evidence Code section 1271 (see fn. 3, ante), does not require testimony as to identity and mode of preparation in every case. A foundation can be established through judicial notice or sufficient independent evidence.” (Snelgrove v. Department of Motor Vehicles (1987) 194 Cal.App.3d 1364, 1374.)

Here, Plaintiffs object to the entirety of De La Garza’s Exhibit D, which is the Los Angeles County’s coroner report on Decedent’s death. (Def. De La Garza Decl. Hooker Supp. Mot. Summ. Judg. ¶ 6.) Plaintiffs object on the grounds that the coroner’s report is hearsay and lacks foundation.

But a coroner’s report falls under the hearsay exception for records created by public employees. (Evid. Code, § 1280.) It was made by a Department of Medical Examiner employee in the scope of her employment, and served to memorialize the coroner’s assessment of the circumstances of Decedent’s death. It also bears indicia of trustworthiness in that it takes the same appearance as all coroners’ reports created by the Los Angeles County Department of Medical Examiner, and is affixed with the purple stamp that the Department of Medical Examiner places on certified copies.

As for foundation, De La Garza’s attorney attests that Exhibit D is a “true and correct” copy of the coroner’s report. (Def. De La Garza Decl. Hooker Supp. Mot. Summ. Judg. ¶ 6.) This is sufficient to meet the low threshold for establishing the foundation of an official record created by a public employee. The objection is OVERRULED.

Objection 8: Plaintiffs also object to various statements contained within the coroner’s report on the grounds that the statements are hearsay and their declarants lacked personal knowledge. First, they object to one of the sentences within the “SYNOPSIS” section of the coroner’s report: “[Decedent] attempted to reach a snack behind the seat . . .” (Def. De La Garza Decl. Hooker Supp. Mot. Summ. Judg. at PDF p. 74.)

The declarant is the author of the report, who is identified as Dana Bee, an investigator with the Department of Coroner. As the coroner’s report falls under the official records exception, it is not hearsay.

However, Dana Bee was not present at the accident and did not herself witness what Decedent did in the leadup to the collision; she could only have gained this information from another. In fact, according to the report itself, she obtained this information from Officer Caton. (Def. De La Garza Decl. Hooker Supp. Mot. Summ. Judg. at PDF p. 75.)

Therefore, the Court agrees the declarant lacked sufficient personal knowledge to make this statement, rendering this particular sentence inadmissible. Objection 8 is SUSTAINED.

Objection 9: Plaintiffs next object to another sentence in the “SYNOPSIS” portion of the coroner’s report, which states, “Alcohol is believed to be a factor. Combined with distraction/inattention on the part of the Decedent.” (Def. De La Garza Decl. Hooker Supp. Mot. Summ. Judg. at PDF p. 74.) Plaintiffs object on the grounds that this is hearsay, the declarant lacks personal knowledge, and the sentence consists of improper opinion.

Under the same reasoning the Court articulated in its ruling on Objection 6, this statement is improper opinion evidence. The declarant, Dana Bee, is opining as to whether Decedent’s driving contributed to the collision, which is essentially a question of whether Zamago had been driving with due care when he collided with Decedent’s pickup truck. Thus, the statement is opinion evidence on the issue of breach, which, under the case law, can be answered by the jury, since the jury is familiar with the standard of care for driving.

Objection 9 is SUSTAINED.

Objection 10: Plaintiffs object to a statement contained in the “Informant/Witness Statements” section of the coroner’s report: “[Decedent] attempted to reach a snack behind the seat and caused his vehicle to drift onto the east shoulder . . . .” (Def. De La Garza Decl. Hooker Supp. Mot. Summ. Judg. at PDF p. 75.) This statement is attributed to Officer Caton. (Ibid.) Plaintiffs object on the grounds that this is hearsay and that the declarant—here, the author of the coroner’s report—lacks personal knowledge of the matter.

While the coroner’s report itself qualifies for a hearsay exception for an official record, this particular statement was made by Officer Caton, and not the author of the report. As such, this is hearsay-within-hearsay and is therefore inadmissible. Objection 10 is SUSTAINED.

Objection 11: Plaintiffs object to a second statement from the “Informant/Witness Statements” section of the coroner’s report: “Alcohol is believed to be a factor, combined with distraction / inattention on the part of the decedent.” (Def. De La Garza Decl. Hooker Supp. Mot. Summ. Judg. at PDF p. 75.) This statement is also attributed to Officer Caton. Plaintiffs object on the grounds that it is hearsay, that the declarant lacked personal knowledge, and that it is improper opinion evidence.

As with Objection 10, this statement was “related” by Officer Caton. Therefore, it is hearsay-within-hearsay, and, under the same reasoning as articulated in the Court’s ruling on Objection 10, this statement is inadmissible. Objection 11 is SUSTAINED.

Objection 12: Plaintiffs object to a statement contained in the “Scene Description” section of the coroner’s report: “Visibility was limited to headlamp illumination. There were no overhead lights and no nearby structures or other sources of ambient light.” (Def. De La Garza Decl. Hooker Supp. Mot. Summ. Judg. at PDF p. 76.) Plaintiffs object on the grounds of hearsay and lack of personal knowledge.

Plaintiffs argue this statement is hearsay because the declarant was Officer Caton. However, the context of the coroner’s report suggests this particular statement is attributable to the author of the report, Dana Bee. Her narrative description is written in the first-person voice, indicating that she is the declarant. Unlike the statements that were challenged by Objections 10 and 11, she does not specify that this particular statement was relayed by Officer Caton. The Court therefore presumes that, unless specifically indicated, the statements in the narrative were made by Dana Bee.

As the coroner’s report falls under the public record exception, it is not inadmissible hearsay.

Additionally, the context of the coroner’s report suggest that Dana Bee was at the scene, and therefore personally observed the visibility she describes. For example, she wrote, “I arrived at the scene and contacted Officer Caton . . . . My scene investigation was completed.” (Def. De La Garza Decl. Hooker Supp. Mot. Summ. Judg. at PDF p. 75.) While the Court found as to Objection 8 that Dana Bee did not have personal knowledge of the events leading up to the accident, she does have personal knowledge of what the scene of the accident looked like, since she purports to have arrived shortly thereafter. She therefore has sufficient personal knowledge to make this statement.

Objection 12 is OVERRULED.

Objection 13: Plaintiffs object to a second statement in the “Scene Description” section of the coroner’s report. When describing Decedent, Dana Bee wrote, “Crushed ‘Bud Light®’ beer cans were noted within what remained of the cab portion of the vehicle.” (Def. De La Garza Decl. Hooker Supp. Mot. Summ. Judg. at PDF p. 76.) Plaintiffs object on the grounds of hearsay and lack of personal knowledge.

Plaintiffs again attribute this statement to Officer Caton, but for the same reasons the Court articulated in its ruling on Objection 12, the context of the report shows that this statement was made by Dana Bee, and was based on her personal observation of the scene of the accident. Under the same reasoning provided in the Court’s ruling on Objection 12, this statement is also admissible. Objection 13 is OVERRULED.

Objection 14: Plaintiffs object to De La Garza’s Exhibit G, which is a photograph, on the grounds that De La Garza “has not properly authenticated the photograph, nor . . . laid a foundation to support that what is pictured in the photograph is an accurate representation of what is depicted.”

De La Garza’s attorney attests that the exhibit is a “True and correct copy of a photograph” of the scene of the accident, taken on April 24, 2018 by California Highway Patrol Officer Taggart. (Def. De La Garza Decl. Hooker Supp. Mot. Summ. Judg. ¶ 9.)

The Court finds this is sufficient foundation when considered in conjunction with the Traffic Collision Report, which stated that Officer S. Taggart took “photographs and scene measurements” at the scene of the accident. (Def. De La Garza Decl. Hooker Supp. Mot. Summ. Judg. at PDF p. 61.) The contents of the Traffic Collision Report, other than the portions consisting of third parties’ statements, are not hearsay. Thus, the Court can rely on it to prove the authenticity of and provide the foundation for the photograph.

Additionally, while the photograph is hearsay, it falls under the exception for a record created by a public employee, as Officer Taggart clearly took this photograph in the regular course of his work as a CHP officer, to memorialize the crime scene.

Therefore, this objection is OVERRULED.

Objection 15: A lack of driver’s license “is material to the issue of negligence only in the event that there is a causal connection between” the fact that the party lacked a driver’s license and “the happening of the accident.” (Armenta v. Churchill (1954) 42 Cal.2d 448, 459.) If the unlicensed party “was not negligent in fact, her failure to obtain a driver's license would not convert careful conduct into tortious absence of care.” (Crosby v. Martinez (1958) 159 Cal.App.2d 534, 542.)

Plaintiffs object to a portion of Exhibit E, which De La Garza’s attorney attests is a copy of Plaintiff Joel Hernandez’s responses to his Special Interrogatories (Set One). (Def. De La Garza Decl. Hooker Supp. Mot. Summ. Judg. ¶ 7.) Specifically, Plaintiffs object to Joel Hernandez’s response to Special Interrogatory No. 6 on the ground that it is “irrelevant.”

This response stated that Decedent “did not have a California driver’s license at the time of the incident.” (Def. De La Garza Decl. Hooker Supp. Mot. Summ. Judg. at PDF p. 91.) The Court agrees that whether Decedent had a driver’s license is not relevant to the issue in this motion, which is whether there is a triable issue of material fact as to whether Defendants breached their duty of care when Zamago collided with Decedent’s car. The reasonable care Decedent exhibited while driving is potentially relevant to Defendants’ alleged breach, but under the case law, the absence of a driver’s license is not relevant to Decedent’s reasonable care or driving ability. Therefore, this objection is SUSTAINED.

Objection 16: An exception to hearsay exists for a writing that was “made in the regular course of a business,” “at or near the time of the act, condition, or event[,]” if a qualified witness testifies to its identity and mode of preparation sufficient to indicate the writing’s trustworthiness. (Evid. Code, § 1271.)

Plaintiffs object to De La Garza’s Exhibit F, which is a Federal Drug Testing and Control form that appears to indicate that De La Garza ordered a drug test for his employee, Defendant Zamago, to take after the subject accident; and that Zamago tested negative for drugs on April 27, 2018. (Def. De La Garza Decl. Hooker Supp. Mot. Summ. Judg. ¶ 8 & Ex. F.) Plaintiffs argue this is hearsay, and lacks personal knowledge, foundation, and authentication.

The Court agrees that De La Garza has not provided sufficient evidence of this writing’s preparation, such that it does not meet the standards for a business records exception to hearsay; and there is insufficient foundation to establish what this form represents, including the method of drug testing, the substances tested for, and the time period to which the test results applied. Therefore, this objection is SUSTAINED.

Objection 17: The remainder of Plaintiffs’ objections pertain to the declaration of Caroline Crump, Ph.D., who identifies herself as an expert in “human attention, reaction time, memory, and decision-making in the contexts of driving[.]” (Def. De La Garza’s Decl. Crump ¶ 1.) In particular, Plaintiffs object to the entirety of paragraph 4 of Dr. Crump’s declaration, solely because it was not referenced in the Separate Statement.

Plaintiffs cite United Community Church v. Garcin (1991) 231 Cal.App.3d 327 as support for their contention that this evidence must be disregarded because it was not listed in the Separate Statement. But this case merely states that “all material facts must be set forth in the separate statement.” (Id., 337.) Here, Dr. Crump’s declaration is evidence; it does not consist of material facts but rather, supports them. Thus, they do not necessarily need to be disregarded simply because they were not identified in the Separate Statement. This objection is OVERRULED.

Objection 18: Plaintiffs object to paragraph 6a of Dr. Crump’s declaration on the grounds that it constitutes hearsay, improper use of hearsay, and was not referenced in the Separate Statement. Specifically, Plaintiffs argue that Dr. Crump inappropriately relied on the Traffic Collision Report and Coroner’s Report to form her opinion. They object to the portions of Dr. Crump’s declaration in which she summarizes her understanding of the facts. (Def. De La Garza’s Decl. Crump ¶ 6.)

Dr. Crump specified in her declaration that this recitation is her “understanding” of the facts of the case after reviewing the materials she was provided, and the Court does not treat it as the truth. The information is instead used for the Court to follow Dr. Crump’s rationale for her opinions. Therefore, Objection 18 is OVERRULED.

Objection 19: Plaintiffs object to paragraph 6b of the Crump Declaration on the same grounds as Objection 18. Under the same reasoning, Objection 19 is OVERRULED.

Objection 20: Plaintiffs object to paragraph 6c of the Crump Declaration solely because it was not referenced in the Separate Statement. As with Objection 17, this objection is OVERRULED.

Objections 21 and 22: Plaintiffs object to paragraphs 6d and 6e of the Crump Declaration on the grounds that they consist of hearsay, that Dr. Crump improperly relied on hearsay in the form of the Traffic Collision Report, and that this evidence was not referenced in the Separate Statement. For the same reasons articulated in the Court’s ruling on Objections 18 and 19, Objections 21 and 22 are OVERRULED.

Objection 23: Plaintiffs object to paragraph 6f of Dr. Crump’s declaration on the grounds that she does not have the expertise to opine on the speed of Defendant Zamago’s travel, and that she based her opinion on the “DDEC report,” which De La Garza has not provided a copy of.

The Court does not find that Dr. Crump is unqualified to interpret the DDEC report to form an opinion as to Zamago’s speed of travel. However, this is partly because, as Plaintiffs point out, De La Garza has not provided a copy of this DDEC report, nor explained what it is. Dr. Crump refers to the report as one of the documents she reviewed when forming her opinion, but there is otherwise no information on what it consists of. (Def. De La Garza’s Decl. Crump ¶ 3.) Without an understanding of what the DDEC report consists of, the Court is unable to accept Dr. Crump’s interpretation of it; doing so would indeed be hearsay, because it would be relying on Dr. Crump’s interpretation of an out-of-court statement. Therefore, the objection is SUSTAINED.

Objection 24: Plaintiffs object to paragraph 7a of the Crump Declaration solely because it was not referenced in the Separate Statement. For the same reasons articulated in the Court’s rulings on Objections 17 and 20, Plaintiffs’ Objection 24 is OVERRULED.

Objection 25: Plaintiffs separately object to the last sentence of paragraph 7a of the Crump Declaration on the grounds that it violates the best evidence rule, “competency” (but Plaintiffs do not explain why Dr. Crump lacks sufficient competency to proffer her statement), lacks sufficient foundation, is irrelevant, and is not contained in the Separate Statement. This sentence states, “At the time of my site inspection, the ambient illumination was 0.10 lx (0.009 fc) on the northbound shoulder in approximately the area of the accident, between Avenue T-8 and East Avenue T-44.” (Def. De La Garza’s Decl. Crump ¶ 7a.) Dr. Crump is referring to the site inspection she conducted on the evening of May 12, 2022 at the scene of the accident. (Id., ¶ 4.)

The Court finds De La Garza has not sufficiently established the foundation for this testimony: he has not shown how Dr. Crump reached this measurement, nor why she is qualified to testify about the “ambient illumination” when she describes herself as an expert in “human attention, reaction time, memory and decision-making in the contexts of driving[.]” (Def. De La Garza’s Decl. Crump ¶ 1.)

Therefore, Objection 25 is SUSTAINED for lack of foundation.

Objections 26-29: Plaintiffs object to paragraphs 8 through 11 of the Crump Declaration solely because they were not referenced in the Separate Statement. For the same reasons articulated in the Court’s rulings on Objections 17, 20, and 24, Plaintiffs’ Objections 26 through 29 are OVERRULED.

Objection 30: Plaintiffs object to paragraph 12 of the Crump Declaration on the grounds that it was not referenced in the Separate Statement, it is hearsay, and it was based on an improper use of hearsay. This paragraph consists of Dr. Crump’s recitation of her understanding of the facts of the accident, and her conclusion that, “[u]nder similar conditions, it is not unusual for an observer to fail to detect” an object such as a disabled vehicle in the roadway. (Def. De La Garza’s Decl. Crump ¶ 12.)

The Court interprets this paragraph as Dr. Crump’s understanding of the facts of the case, and does not accept them as truth. Instead, the Court uses this recitation to follow Dr. Crump’s reasons for concluding that it would not be unusual for an observer to fail to detect a disabled vehicle in the circumstances she described.

Since this paragraph is not being offered for its truth, it is not hearsay. As for the fact that Dr. Crump bases her understanding of the facts of the accident on the Traffic Collision and Coroner’s reports, as with Objections 18, 19, 21, and 22, the Court finds this is permissible, again, because it is not relying on this paragraph for its truth.

Therefore, Objection 30 is OVERRULED.

Objection 31: Plaintiffs separately object to a portion of paragraph 12 of the Crump Declaration, in which Dr. Crump refers to her “measurement of ambient illumination, which was 0.10 1x.” (Def. De La Garza’s Decl. Crump ¶ 12.) For the same reasons articulated in the Court’s ruling on Objection 25, Objection 31 is SUSTAINED.

Objection 32: Plaintiffs separately object to an overlapping portion of paragraph 12 of the Crump Declaration, in which Dr. Crump states, “In the absence of any additional artificial lighting, [an ambient illumination level of 0.10 lx] is several orders of magnitude lower than that recommended for drivers to be able to detect pedestrians (i.e., approximately 3 lx) . . . . Under similar conditions, it is not unusual for an observer to fail to detect” an object such as a disabled vehicle. (Def. De La Garza’s Decl. Crump ¶ 12.) Plaintiffs object to these sentences on the grounds that they lack foundation, assume facts not in evidence, are contrary to known facts, and are not referenced in the Separate Statement.

These sentences are referring to the ambient illumination level of 0.10 lx, to which the Court sustained Plaintiffs’ Objection 25 for lack of foundation. Dr. Crump cites the sources from which she obtained the standard illumination levels she refers to (i.e., the recommended lighting levels for drivers to detect pedestrians, objects, etc.). She uses these standards to opine that an illumination level of 0.10 lx is less than the recommended levels for detecting pedestrians and objects.

Plaintiffs argue these statements assume facts not in evidence. However, Dr. Crump is rendering an expert opinion based on a hypothetical, which she is allowed to do. The Court agrees with Plaintiffs that, since it sustained Plaintiffs’ Objection 25, De La Garza has not actually established that the ambient illumination level at the scene of the accident was indeed 0.10 lx, as Dr. Crump attests. Therefore, the Court shall consider the applicability of Dr. Crump’s opinion with this in mind. The Court does not presume that, simply because Dr. Crump recited certain facts, these facts are true to the subject accident.

Objection 32 is OVERRULED.

Objection 33: Plaintiffs object to paragraph 13 of the Crump Declaration solely because it was not referenced in De La Garza’s Separate Statement. For the same reasons articulated in the Court’s rulings on Objections 17, 20, 24, and 26 through 29, Plaintiffs’ Objection 33 is OVERRULED.

Objection 34: Plaintiffs object to paragraph 14 of the Crump Declaration, in which Dr. Crump recites her understanding of a witness statement contained in the Traffic Collision Report, and the deposition of Plaintiff Joel Hernandez. (Def. De La Garza’s Decl. Crump ¶ 14.) Plaintiffs object on the grounds that this was not referenced in the Separate Statement, it is hearsay, and it is improperly based on hearsay.

As with Objections 18, 19, 21, 22, and 30, the Court finds this is merely Dr. Crump’s understanding of the facts of the accident. The Court does not accept it as the truth of the matter. Therefore, Objection 34 is OVERRULED.

Objection 35: Plaintiffs separately object to a small portion of paragraph 14 of the Crump Declaration, in which Dr. Crump states that the vehicle being driven by third-party witness Jose Manuel Tavera Santa Cruz was stopped “directly adjacent to” Decedent’s disabled vehicle. (Def. De La Garza’s Decl. Crump ¶ 14.) Plaintiffs object on the grounds that this phrase assumes facts not in evidence, lacks foundation, is contrary to existing testimony, and was not referenced in De La Garza’s Separate Statement.

As with Objections 18, 19, 21, 22, 30, and 35, the Court finds this statement is nothing more than Dr. Crump’s understanding of the facts of the accident. The Court does not accept it as true. Therefore, Objection 35 is OVERRULED.

Objection 36: Plaintiffs separately object to another portion of paragraph 14 of the Crump Declaration, in which Dr. Crump attests, “I additionally confirmed that the glare presented by oncoming drivers in the adjacent lane was subjectively uncomfortable and feels blinding . . . .” (Def. De La Garza’s Decl. Crump ¶ 14.) Plaintiffs object on the grounds that this statement lacks foundation, is an improper opinion, and was not referenced in the Separate Statement. Specifically, Plaintiffs argue that Dr. Crump has not sufficiently described the height at which she was subjected to the alleged glare, such that it is unclear whether Dr. Crump’s perception is applicable to the circumstances of the subject accident.

The Court finds that this is an improper opinion because Dr. Crump was not a percipient witness to the accident; and whether the glare from an oncoming car was “subjectively uncomfortable” and “blinding” is not a matter which requires expert input. Therefore, Objection 36 is SUSTAINED.

Objections 37 through 40: Plaintiffs object to paragraphs 15 through 18 of the Crump Declaration solely because they were not referenced in De La Garza’s Separate Statement. For the same reasons articulated in the Court’s rulings on Objections 17, 20, 24, 26 through 29, and 33, Plaintiffs’ Objections 37 and 40 are OVERRULED.

Objections 41-42: Plaintiffs object to various portions of paragraph 19 of the Crump Declaration, in which Dr. Crump attests, “Plaintiffs alleged that Mr. Zamago was unable to avoid the subject collision because he was traveling at a speed greater than what was reasonable and because he was not attentive to the roadway ahead of him.” (Def. De La Garza’s Decl. Crump ¶ 19.) She then opines that the DDEC record from Defendants’ truck indicates Zamago was driving at a rate of about 48 miles per hour. (Ibid.) Plaintiffs object on the grounds that this paragraph consists of hearsay, is an improper opinion, was not referenced in the Separate Statement, violates the best evidence rule, and lacks sufficient competence.

For the same reasons as those stated in the Court’s ruling on Objection 23, Objections 41 and 42 are SUSTAINED.

Objection 43: Plaintiffs object to paragraph 20 of the Crump Declaration, in which Dr. Crump opines that “it is reasonable to assume that [Decedent’s disabled vehicle] became available for detection between 3.1 and 4.4 seconds prior to impact[,]” that Zamago began braking 2 seconds before impact, and that this was a reasonable response time. (Def. De La Garza’s Decl. Crump ¶ 20.) Plaintiffs argue this paragraph consists of hearsay, is an improper opinion, was not referenced in the Separate Statement, violates the best evidence rule, and lacks competence. Dr. Crump’s footnotes indicate that she based this opinion on data derived from the DDEC report.

For the same reasons as those stated in the Court’s ruling on Objections 23, 41, and 42, Objection 43 is SUSTAINED.

Objection 44: Plaintiffs object to paragraph 21 of Crump’s declaration solely because it was not referenced in the Separate Statement. For the same reasons articulated in the Court’s rulings on Objections 17, 20, 24, 26 through 29, and 33, Plaintiffs’ Objection 44 is OVERRULED.

Objection 45: Plaintiffs object to paragraph 22 of the Crump Declaration on the grounds that it is hearsay, it was improperly based on hearsay, it was not referenced in the Separate Statement, it lacks foundation, it assumes facts, and it is an improper opinion. In paragraph 22, Dr. Crump compares what she asserts are the factual circumstances of third-party witness Jose Manuel Tavera Santa Cruz’s ability to perceive Decedent’s stopped vehicle, with those of Zamago’s ability to perceive. (Def. De La Garza’s Decl. Crump ¶ 20.) She opines that the headlights from Santa Cruz’s vehicle “may have impaired Mr. Zamago’s ability to detect” Decedent’s pickup truck, while, simultaneously, Zamago did not have the benefit of lighting from Plaintiff Joel Hernandez’s vehicle’s headlights. (Ibid.)

Dr. Crump bases her opinion on Santa Cruz’s witness statements, as conveyed by the Traffic Collision Report. The Court agrees with Plaintiffs that this is an improper opinion. What Zamago or Santa Cruz were able to perceive under the subject lighting conditions is a matter the jury is qualified to evaluate without expertise. The jury or factfinders are presumably drivers, and are familiar with the concepts of glare and illumination from headlights. Jurors are presumably also familiar with the concept that two drivers might detect the same object at different times based on their relative locations. Thus, under the same reasoning articulated in the Court’s ruling on Objection 36, Plaintiffs’ Objection 45 is SUSTAINED.

Objection 46: Plaintiffs object to paragraph 23 of the Crump Declaration, in which Dr. Crump states, “Mr. Zamago’s deceleration and braking behavior were appropriate for the situation confronting him and consistent with attentive and prudent driving practices.” (“human attention, reaction time, memory, and decision-making in the contexts of driving[.]” (Def. De La Garza’s Decl. Crump ¶ 23.) Plaintiffs object on the grounds that this statement is hearsay and improper opinion, and was not referenced in the Separate Statement.

For the reasons articulated in the Court’s rulings on Objections 36 and 45, Plaintiffs’ Objection 46 is SUSTAINED.

Standard for Motion for Summary Judgment – A party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding. (Code Civ. Proc., § 437c, subd. (a).) To prevail on a motion for summary judgment, the evidence submitted must show there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Code Civ. Proc. § 437c, subd. (c).)

The defendant moving for summary judgment does not need to conclusively negate an element of the plaintiff’s cause of action, but rather, must show “that one or more elements of the cause of action . . . cannot be established . . . or that there is a complete defense to that cause of action.” (Aguilar v. Atlantic Ridgefield Co. (2001) 25 Cal.4th 826, 849, citing Code Civ. Proc. § 437c, subd. (o)(2).) Once the moving party has met its respective burden, the burden shifts to the responding party, who must demonstrate that a triable issue of material fact exists. (Code Civ. Proc. §437c, subd. (p).) The responding party may not rely on allegations in the pleadings, but instead “shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.” (Ibid.)

When ruling on a summary judgment motion, the trial court must consider all inferences from the evidence, even those contradicted by the moving party’s evidence. The motion cannot succeed unless the evidence leaves no room for conflicting inferences as to material facts; the court has no power to weigh one inference against another or against other evidence. (Murillo v. Rite Stuff Foods, Inc. (1998) 65 Cal.App.4th 833, 841.) In determining whether the facts give rise to a triable issue of material fact, “‘[a]ll doubts as to whether any material, triable, issues of fact exist are to be resolved in favor of the party opposing summary judgment . . . .’” (Gold v. Weissman (2004) 114 Cal.App.4th 1195, 1198–1199.) “In other words, the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences there from must be accepted as true.” (Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 179.)

Here, Defendant De La Garza moves for summary judgment on the ground that there is no “triable issue of material fact that Defendants breached their duty of care.” (Def. De La Garza Mem. P. & A. Supp. Mot. Summ. Judg. at 5.)

Duty and Breach– “The elements of a cause of action for negligence are (1) the existence of a legal duty to use due care; (2) a breach of that duty; and (3) the breach as a proximate cause of the plaintiff's injury.” (Federico v. Superior Court (Jenry G.) (1997) 59 Cal.App.4th 1207, 1210–1211.) “In general, each person has a duty to act with reasonable care under the circumstances.” (Regents of University of California v. Superior Court (2018) 4 Cal.5th 607, 619.) “[T]he general duty to take ordinary care in the conduct of one's activities (Civ. Code, § 1714, subd. (a)) indisputably applies to the operation of a motor vehicle.” (Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 774.)

“In general, the issue of a defendant's negligence presents a question of fact for the jury.” (Perez v. Van Groningen & Sons, Inc. (1986) 41 Cal.3d 962, 971.) “However, in an appropriate case, a defendant's lack of negligence may be determined as a matter of law.” (Osborn v. Hertz Corp. (1988) 205 Cal.App.3d 703, 713.) “A defendant's negligence may be determined as a matter of law only if reasonable jurors following the law could draw only one conclusion from the evidence presented.” (Perez v. Van Groningen & Sons, Inc., supra, 41 Cal.3d at 971.)

Here, Plaintiffs’ theory of liability is that Zamago drove in a manner that was below the standard of care; and, because of this negligent driving, he collided with Decedent’s pickup truck. Under this theory, De La Garza is liable as Zamago’s employer.

Defendant’s Burden--De La Garza argues the undisputed material facts show that his employee, Defendant Zamago, did not breach his duty of care because he acted reasonably, yet was still unable to avoid colliding with Decedent’s car. He alleges the following facts and supporting evidence:

According to Plaintiff Joel Hernandez’s deposition testimony, Decedent’s vehicle was stopped and blocking half of the northbound lane of 165th Street East. (Def. De La Garza Separate Statement No. 6; Def. De La Garza Decl. Hooker Supp. Mot. Summ. Judg. at PDF p. 36.) This fact is indeed undisputed and is supported by Plaintiff Joel Hernandez’s deposition testimony.

According to Dr. Crump’s declaration and the Traffic Collision Report, Defendant Zamago was travelling in the northbound lane, towards Decedent’s stopped vehicle, at a rate of about 51 miles per hour before colliding with Decedent’s vehicle. (Def. De La Garza Separate Statement No. 11; Def. De La Garza’s Decl. Crump ¶ 6f; Def. De La Garza Decl. Hooker Supp. Mot. Summ. Judg. at PDF p. 64.) However, this is not an undisputed material fact because the Court agrees with Plaintiffs that Dr. Crump did not sufficiently show the basis for this opinion; and that particular portion of the Traffic Collision Report is inadmissible hearsay. (Pls.’ Evid. Objs. No. 23.)

According to Dr. Crump’s declaration and the Traffic Collision Report, the headlights on Decedent’s vehicle were off. (Def. De La Garza Separate Statement Nos. 12, 15, 19; Def. De La Garza’s Decl. Crump ¶ 6f; Def. De La Garza Decl. Hooker Supp. Mot. Summ. Judg. at PDF p. 64.) De La Garza invites the Court to infer from this fact that Zamago did not see Decedent’s vehicle before colliding with it. However, this is again based on inadmissible portions of Dr. Crump’s declaration and the Traffic Collision Report, and therefore cannot be treated as an undisputed material fact.

According to the Traffic Collision Report, Zamago had slammed on the brakes, but was still unable to avoid the collision. (Def. De La Garza Separate Statement No. 13; Def. De La Garza Decl. Hooker Supp. Mot. Summ. Judg. at PDF p. 64.) De La Garza invites the Court to infer that Zamago made a reasonable attempt to avoid the collision, but it was impossible. But again, this fact is based on a portion of the Traffic Collision Report that was based on a witness statement, and is therefore inadmissible hearsay. Therefore, this cannot be treated as an undisputed material fact.

According to Plaintiff Joel Hernandez’s deposition and Officer Taggert’s photo of the scene, it was dark outside. (Def. De La Garza Separate Statement No. 16.) From this, the Court is invited to infer that Zamago did not see Decedent’s stopped vehicle, and that this was reasonable. Plaintiffs dispute this fact, but Joel Hernandez did testify that the collision occurred at “night,” and that it was “kinda dark,” though he had been able to see Zamago’s truck from a distance. (Def. De La Garza Decl. Hooker Supp. Mot. Summ. Judg. at PDF p. 40.) Additionally, the Court overruled Plaintiffs’ objection to Officer Taggert’s photo, and the photo does depict darkness. Furthermore, regardless of what the photo depicts, the parties agree the collision occurred at approximately 10:30 P.M., and it is indisputable that, in Los Angeles County, there is no natural lighting from the sun at that time of night. (Def. De La Garza Separate Statement No. 1.)

According to the Traffic Collision Report, there were no street lights in this area, and from this the Court infers that Zamago may have had difficulty seeing Decedent’s stopped vehicle. (Def. De La Garza Separate Statement No. 17.) Though Plaintiffs objected to the admission of this evidence, the Court found that this particular portion of the Traffic Collision Report (page 2) consisted of Officer Caton’s personal observations of the scene and, as it was created in the scope of his employment for the California Highway Patrol, it is admissible under the hearsay exception for records by public employees.

According to the Traffic Collison Report, Officer Caton’s opinion is that Zamago could not have reasonably avoided the collision, because Zamago did not have sufficient time to see and react to Decedent’s stopped vehicle. (Def. De La Garza Separate Statement No. 20.) The Court agreed with Plaintiffs that Officer Caton’s opinion on whether Zamago’s conduct was reasonable is inadmissible because the jury is able to reach its own determination on that issue without expert opinion. In fact, the Court sustained Plaintiffs’ objection to this particular statement. Thus, this cannot be treated as an undisputed material fact.

Lastly, De La Garza submits evidence that Zamago took a drug test the morning after the accident, and tested negative. However, the Court agreed with Plaintiffs that the evidence of the drug test results lacked sufficient foundation and was therefore inadmissible. It cannot be treated as an undisputed material fact.

(The Court notes that it did not consider evidence of whether Decedent had consumed alcohol or whether he possessed a valid driver’s license, as these particular facts are not relevant to the reasonableness of Zamago’s conduct. While Decedent’s driving is relevant to whether it was reasonable that Decedent’s vehicle became stopped in the middle of the lane, the pertinent fact is that the vehicle was stopped; the reasons why it eventually came to rest in the middle of the road are irrelevant to whether Zamago responded reasonably when he encountered it.)

Taking into consideration the undisputed material facts which are based on admissible evidence, the Court summarizes De La Garza’s argument as follows: because it was nighttime and the area was poorly lit, it was reasonable that Zamago had difficulty seeing Decedent’s stopped vehicle; and that, because Zamago drove with reasonable care, but was still unable to see Decedent’s vehicle, Zamago did not breach his duty of care when he collided with said vehicle. If Zamago did not breach his duty of care, then De La Garza, as Zamago’s employer, is similarly not liable.

The Court disagrees that this is the only conclusion a reasonable factfinder could reach. De La Garza’s argument is certainly compelling, but he only provides admissible evidence of low visibility. However, there are many factors besides the amount of lighting that would affect whether Zamago could have seen or reacted to Decedent’s vehicle sooner. De La Garza did not submit admissible evidence of Zamago’s speed of travel; and even if he had, his own evidence of the inadequate lighting could reasonably suggest that Zamago should have been driving at a rate slower than the speed limit—a determination the jury must make.

Additionally, while there may have been insufficient natural lighting or street lighting, this Court presumes Zamago’s truck had working headlights. The headlights would have eventually illuminated the stopped vehicle—at what distance did this occur? Was that distance sufficient for Zamago to have braked in order to avoid colliding with Decedent’s vehicle? If the road was as dark as De La Garza argues, should Zamago have been using his highbeams? Was a failure to use highbeams unreasonable?

Put simply, the fact that Decedent’s vehicle was difficult to see did not mean it was entirely impossible to see, and, regardless, does not require a factfinder to conclude that Zamago behaved reasonably. Numerous factors contribute to whether a person has driven reasonably; the Court has only suggested some of them. That De La Garza has partially addressed one does not require the Court to find in his favor.

At summary judgment, the burden is on De La Garza to show there can be no other reasonable conclusion. De La Garza has presented some evidence that Zamago behaved reasonably, considering the diminished visibility of the roadway--but it is not the only reasonable conclusion. Therefore, De La Garza has not met his burden and summary judgment must be DENIED.