Judge: Michael E. Whitaker, Case: 20STCV39903, Date: 2023-03-07 Tentative Ruling

Case Number: 20STCV39903    Hearing Date: March 7, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOVING PAPERS:

1. Notice of Motion and Motion for Summary Judgment, or in the Alternative Summary Adjudication; Memorandum of Points and Authorities
2. Separate Statement of Undisputed Material Facts in Support of Motion for Summary Judgment, or in the Alternative Summary Adjudication
3. Declaration of Jocelyn A. Julian in Support of Motion for Summary Judgment, or in the Alternative Summary Adjudication
4. Declaration of Charles W. Clowdis, Jr., in Support of Motion for Summary Judgment, or in the Alternative Summary Adjudication
5. Separately Bound Volume of Exhibits in Support of Motion for Summary Judgment, or in the Alternative Summary Adjudication

OPPOSITION PAPERS:

1. Opposition to Motion for Summary Judgment, or in the Alternative Summary Adjudication; Memorandum of Points and Authorities
2. Response to Separate Statement in Support of Motion for Summary Judgment
3. Objections to Evidence in Support of Motion for Summary Judgement, or in the Alternative Summary Adjudication
4. Declaration of Ruth Segal with Exhibits in Opposition to Motion for Summary Judgment, or in the Alternative Summary Adjudication

REPLY PAPERS:

1. Reply to Opposition to Motion for Summary Judgment, or in the Alternative Summary Adjudication
2. Objections to Evidence Submitted in Opposition to Motion for Summary Judgment, or in the alternative Summary Adjudication

SUPPLEMENTAL PAPERS:

1.     Supplemental Brief regarding Hearsay in Opposition to Motion for Summary Judgment

2.     Reply to Supplemental Brief regarding Hearsay in Opposition to Motion for Summary Judgment

BACKGROUND

Plaintiff Steven Charles Melendez (Plaintiff) sued Defendants Distribution International, USF Reddaway, Inc., and Juan Garcia (collectively, Defendants) based on injuries he alleges he sustained while he was standing at the loading dock of Defendant Distribution International’s (Distribution Int’l) warehouse when a truck driven by Defendant Juan Garcia (Garcia) backed up and pinned Plaintiff to the dock.  Distribution Int’l alleges it was not the employer of Garcia at the time of the incident, nor did it did not own the truck involved in the incident.  Distribution Int’l further alleges that there is no evidence of Distribution Int’l’s negligence, nor evidence that any negligence by Distribution Int’l was a substantial factor in causing Plaintiff’s alleged injuries. 

Distribution Int’l moves for summary judgment, or in the alternative summary adjudication, of Plaintiff’s complaint which alleges motor vehicle (negligence), general negligence, and premises liability causes of action against Distribution Int’l.  Defendants USF Reddaway, Inc. and Juan Garcia (collectively, Opposing Defendants) oppose the motion.  Distribution Int’l replies.  Plaintiff has filed a notice of non-opposition.

On January 27, 2023, the Court continued the hearing to allow the parties to submit additional briefing regarding the admissibility of excerpts of Plaintiff’s deposition testimony; advanced by Opposing Defendants in opposition to the motion.  On February 9, 2023, Opposing Defendants filed and served their supplemental opposition.  On February 24, 2023, Distribution Int’l filed and served its reply to Opposing Defendants’ supplemental opposition. 

LEGAL STANDARDS –SUMMARY JUDGMENT/SUMMARY ADJUDICATION

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law[.] There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)  “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.”  (Ibid.)  

“On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues.  Only when the inferences are indisputable may the court decide the issues as a matter of law. If the evidence is in conflict, the factual issues must be resolved by trial.”  (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839 [cleaned up].)  Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true.  Nor may the trial court grant summary judgment based on the court's evaluation of credibility.”  (Id. at p. 840 [cleaned up]; see also Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].) 

A party may move for summary adjudication as to one or more causes of action, affirmative defenses, claims for damages, or issues of duty if that party contends that there is no merit to the cause of action, defense, or claim for damages, or if the party contends that there is no duty owed.  (See Code Civ. Proc., § 437c, subd. (f)(1).)  “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.”  (Ibid.)  A cause of action has no merit if: (1) one or more elements of the cause of action cannot be separately established, even if that element is separately pleaded, or (2) a defendant establishes an affirmative defense to that cause of action.  (See Code Civ. Proc., § 437c, subd. (n); Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 583.)  Once the defendant has shown that a cause of action has no merit, the burden shifts to the plaintiff to show that a triable issue of material fact exists as to that cause of action.  (See Code Civ. Proc., § 437c, subd. (o)(2); Union Bank v. Superior Court, supra, 31 Cal.App.4th at p. 583.) 

EVIDENCE

            As to Opposing Defendants’ evidentiary objections to Distribution Int’l’s evidence in support of its motion for summary judgment, or in the alternative summary adjudication, the Court rules as follows:

1.     Sustained as to Exhibit B

2.     Sustained

3.     Sustained

With respect to Opposing Defendants’ evidentiary objections set forth in the “Response to Separate Statement in Support of Motion for Summary Judgment,” the Court finds Opposing Defendants’ objections do not comply with the requirements set forth in California Rules of Court, rule 3.1354.  Rules 3.1354 provides in pertinent part:

All written objections to evidence must be served and filed separately from the other papers in support of or in opposition to the motion. Objections to specific evidence must be referenced by the objection number in the right column of a separate statement in opposition or reply to a motion, but the objections must not be restated or reargued in the separate statement. Each written objection must be numbered consecutively and must:

(1) Identify the name of the document in which the specific material objected to is located;

(2) State the exhibit, title, page, and line number of the material objected to;

(3) Quote or set forth the objectionable statement or material; and

(4) State the grounds for each objection to that statement or material.

Written objections to evidence must follow one of the following two formats:   [¶] . . . [¶]

A party submitting written objections to evidence must submit with the objections a proposed order. The proposed order must include places for the court to indicate whether it has sustained or overruled each objection. It must also include a place for the signature of the judge. The court may require that the proposed order be provided in electronic form. The proposed order must be in one of the following two formats:  [¶] . . . [¶]

(See Cal. Rules of Court, rule 3.1354(b)-(c), emphasis added.)  Here, Opposing Defendants failed to number the objections and follow one of the permitted formats, and Opposing Defendants did not submit a proposed order following one of the prescribed formats.  As such, the Court declines to rule on Opposing Defendants’ evidentiary objections set forth in the Response to Separate Statement in Support of Motion for Summary Judgment. 

1.     Distribution Int’l’s Evidentiary Objections–Supplemental Briefing

As to Distribution Int’l’s evidentiary objections to Opposing Defendants’ evidence submitted in opposition to the motion for summary judgment, or in the alternative summary adjudication, the Court considers the parties’ supplemental briefing on admissibility.  Distribution Int’l objects to the following excerpts from Plaintiff’s deposition testimony:

·       “Well, you know, he -- I told him what I wanted. He said okay, write your check, and he pointed to the edge of the loading dock surface, and then he went in and told the guy that I was here and that I needed paperwork. He told him what I had asked him to get.”  (Deposition of Steven Melendez, p. 105, lines 8-13.)

·       “I -- I pulled in, went to where they told me to stand to write my check right at the edge of the loading dock surface, told the warehouseman what I wanted. He yelled what I was picking up to Jose.” (Deposition of Steven Melendez, p. 10, Lines 11-15.)

Distribution Int’l cites the following grounds for objecting to the above evidence: (1) hearsay, (2) lacks foundation, (3) evidence must have proper foundation in order to be admissible, and (4) declarant lacks personal knowledge.

A.    Admission of a Party

In their supplemental opposition, Opposing Defendants argue that Plaintiff’s testimony is not hearsay pursuant to Evidence Code section 1220 as an admission of a party, and is thus admissible.  Under Evidence Code section 1220, “[e]vidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party in either his individual or representative capacity, regardless of whether the statement was made in his individual or representative capacity.” 

Opposing Defendants explain that Plaintiff testified a warehouse employee of Distribution Int’l was the declarant who told Plaintiff to stand in the loading dock, where Plaintiff was standing when the accident happened.  (Deposition of Steven Melendez, p. 105, lines 6-11.)  Opposing Defendants argue this statement, telling Plaintiff where to stand, was made by Distribution Int’l, a party to this action, proffered against Distribution Int’l.  Opposing Defendants conclude that this statement thus qualifies as an admission of a party to the action, Distribution Int’l, and is thus not inadmissible hearsay under Evidence Code section 1220.

In reply, Distribution Int’l argues that because it is a corporation, analysis under Evidence Code section 1220 is inapplicable to its purported statements.  Distribution Int’l cites to Bowser v. Ford Motor Co. (2022) 78 Cal.App.5th 587, which states a corporation can speak only through its officers and agents and thus “statements assertedly made by a corporation are not usually analyzed as party admissions under Evidence Code section 1220, but rather as authorized admissions under Evidence Code section 1222.”  (Bowser v. Ford Motor Co. (2022) 78 Cal.App.5th 587, 611.) 

Distribution Int’l thus analyzes the statements referenced by Plaintiff in his deposition under Evidence Code section 1222 which states:

Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if:

(a)   The statement was made by a person authorized by the party to make a statement or statements for him concerning the subject matter of the statement; and

(b)   The evidence offered either after admission of evidence sufficient to sustain a finding of such authority or, in the court’s discretion as to the order of proof, subject to the admission of such evidence.

(Evid. Code, § 1222.) 

            Distribution Int’l attests that Opposing Defendants have failed to lay any foundation that the declarant was authorized to speak on behalf of Distribution Int’l.  Because the declarant at issue has never been identified, Distribution Int’l further argues it cannot be said that declarant was in the course and scope of his employment with Distribution International, or whether he was even employed by Distribution International at all. 

            The Court agrees with Distribution Int’l that the statements at issue should be analyzed under Section 1222 rather than Section 1220 based on Opposing Defendants’ attribution of the statements to Distribution Int’l, a corporate party.  The Court further finds that Opposing Defendants have failed to offer evidence sufficient to sustain a finding that the declarant at issue had the authority to speak on Distribution Int’l’s behalf regarding the appropriate place for Plaintiff to stand.  The only evidence of declarant’s status is Plaintiff’s identification of him as a Distribution Int’l warehouse employee.  The declarant’s identity, however, has never been confirmed.  Without further foundational evidence, the Court cannot determine whether the declarant had the authority from Distribution Int’l to make a statement on its behalf, and thus cannot attribute declarant’s statements to Distribution Int’l.  Accordingly, the Court finds that Opposing Defendants’ reliance on either Section 1220 or Section 1222 falls short.   

B.    Declaration Against Interest

Opposing Defendants argue that Plaintiff’s testimony is not made inadmissible by the hearsay rule because it is a declaration against interest.  Under Evidence Code section 1230 states “[e]vidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made . . . so far subjected him to the risk of civil [] liability . . . that a reasonable man in his position would not have made the statement unless he believed it to be true.”

However, in order for the subject declarant’s statements to be considered declarations against Distribution Int’l’s interest, there must be sufficient evidence to establish the declarant here was authorized by Distribution Int’l to make statements on its behalf.  Thus, as Distribution Int’l argues in its reply, this hearsay exception fails for similar reasons as the hearsay exceptions discussed above.  Further, as Distribution Int’l highlights, the statement itself was merely an instruction of where to stand and thus would not qualify as a statement so far contrary to declarant’s interest as to qualify as a declaration against interest.  And equally important, Opposing Defendants, as the proponents of the admissibility of the hearsay statements, have not established that the declarant is unavailable.  Accordingly, the Court finds Evidence code section 1230 does not apply to the excerpts of Plaintiff’s testimony at issue.

C.    State of Mind

Finally, Opposing Defendants argue that the excerpts of Plaintiff’s testimony at issue are not hearsay as they go to Plaintiff’s state of mind at the time of the accident.  Opposing Defendants attest that Plaintiff’s testimony explains why he was standing on the loading dock at the time of the accident.  Evidence Code section 1250 states

(a) Subject to Section 1252, evidence of a statement of the declarant’s then existing state of mind, emotion, or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health) is not made inadmissible by the hearsay rule when:

(1) The evidence is offered to prove the declarant’s state of mind, emotion, or physical sensation at that time or at any other time when it is itself an issue in the action; or

(2) The evidence is offered to prove or explain acts or conduct of the declarant.

(b) This section does not make admissible evidence of a statement of memory or belief to prove the fact remembered or believed.

(Evid. Code, § 1250.) 

            Here, as Ditribution Int’l notes in its reply, Plaintiff’s testimony is not being offered to prove declarant’s state of mind or conduct, but rather to prove that declarant told Plaintiff to stand at the loading dock.  Further, even if the Plaintiff’s deposition testimony was being offered to prove Plaintiff’s state of mind at the time of the accident, Plaintiff’s state of mind is not relevant to whether Distribution Int’l created a dangerous condition leading to the accident at issue.  Accordingly, the Court finds Plaintiff’s excerpted testimony does not qualify under  the state of mind hearsay exception. 

            Plaintiff’s excerpted testimony falls within the definition of hearsay because it contains out of court statements made by a declarant, offered to prove the truth of the matter stated: that said declarant, an alleged employee of Distribution Int’l created a dangerous condition by telling Plaintiff to stand at an active loading dock.  Because the subject statements fall within the definition of hearsay, and no hearsay exceptions apply, the Court finds they are hearsay and thus are inadmissible.  Therefore, as to Distribution Int’l evidentiary objections to Opposing Defendants’ evidence in opposition to Motion for Summary Judgment or in the alternative Summary Adjudication, the Court rules as follows:

1.     Sustained.

2.     Sustained.

DISCUSSION

The elements of a cause of action for negligence are: (1) a duty on the part of defendant toward plaintiff; (2) defendant’s breach of that duty; and (3) harm to the plaintiff caused by that breach. (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1142.)  The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages.  (McIntyre v. The Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.) 

To prevail on a claim for premises liability, Plaintiff must prove: (1) defendant owned or controlled the subject property; (2) defendant was negligent in the use or maintenance of the property; (3) plaintiff was harmed; and (4) defendant’s negligence was a substantial factor in causing plaintiff’s harm.  (See Rowland v. Christian (1968) 69 Cal.2d 108.)  Liability in a premises liability action is based not on responsibility for the conduct of others, but on the failure of the landowner or occupier to act reasonably under the circumstances when he or she has reason to anticipate the probability of injury and has an opportunity to prevent the injury or warn of the peril  (Cody F. v. Falleti (2001) 92 Cal.App.4th  1232, 1242.) 

Distribution Int’l moves for summary judgment, or in the alternative summary adjudication, on the ground that Plaintiff cannot establish that Distribution Int’l owed a duty of due care to Plaintiff; Distribution Int’l breached any duty of due care to Plaintiff; or any acts or omissions on the part of Distribution Int’l caused or contributed to Plaintiff’s alleged harm.  As noted above, Plaintiff is not opposed to Distribution Int’l’s motion. 

Opposing Defendants are opposed to the motion arguing that there are triable issues of material fact as to whether Distribution Int’l is liable to Plaintiff.  Opposing Defendants’ opposition to the motion rests on the assertion that employees of Distribution Int’l instructed Plaintiff where to stand at the loading dock which placed Plaintiff at the point where Opposing Defendants’ vehicle pinned Plaintiff to the loading dock causing Plaintiff’s alleged injures. 

            Distribution Int’l advances the following Undisputed Material Facts (UMF) in support of the motion for summary judgment:

• Plaintiff had been to Distribution International a couple of dozen times before the day of the incident.
• The first time plaintiff was at Distribution International was ten to twelve years before the incident.
• When plaintiff was at Distribution International before the incident, he has seen other customers at there, mostly in big trucks.
• On the day of the incident, after placing his order, plaintiff was standing at ground level in the parking lot, using the elevated loading dock surface to write a check for his purchase.
• On the day of the incident, plaintiff was aware that he was standing at a loading dock as he was writing a check.
• On the day of the incident, plaintiff was preparing a check while standing at a loading dock facing the warehouse, with his back to the street the entire time.
• Plaintiff never expressed any concern to Distribution International that he was standing at the loading dock writing his check.
• Plaintiff testified that there were no cones at the bottom of the ramp on the date of the incident, and that he could have walked up the ramp on that day.
• Distribution International does not tell its customers to wait in any particular area.
• Plaintiff admitted at his deposition that on the date of the incident, no one directed him to stand in the area where the incident occurred.
• Plaintiff testified that on March 9, 2020 – over nine weeks before the incident – an unidentified individual whom plaintiff claims was a Distribution International employee told him to write his check after he places his order, and gestured toward the edge of the top of the loading dock. Plaintiff admits that this unidentified individual did not gesture to the bottom of the loading dock.
• Plaintiff testified that after March 9, 2020, it became his standard operating procedure to stand at the bottom of the loading dock when he picked up merchandise from Distribution International, as opposed to anyone from Distribution International telling him to stand there.
• There have been no prior accidents in the area where the incident occurred.
• Distribution International did not own, operate, or otherwise control the USF Reddaway truck involved in the incident.

(UMF Nos. 3-6, 13-16, 20-23, 26, 29.) [1]

            The Court finds that Distribution Int’l has met its burdens of production and persuasion to establish that Plaintiff will be unable to establish that Distribution Int’l breached any duty of due care to Plaintiff, or any acts or omissions on the part of Distribution Int’l caused or contributed to Plaintiff’s alleged harm.  Accordingly, the burden shifts to Opposing Defendants to create a triable issue of material fact.

            With respect to UMF Nos. 3-6, 13-16, 21-23, 26 and 29, Opposing Defendants do not dispute such material facts.  Accordingly, the Court finds UMFs 3-6, 13-16, 21-23, 26 and 29 are undisputed. 

            The only UMF in contention is UMF No. 20.  However, Opposing Defendants have not advanced sufficient, competent evidence to support their contention that the material fact is in dispute.  Consequently, Opposing Defendants have not met their burden of production to make a prima facie showing of the existence of a triable issue of material fact.  Absent that showing, Opposing Defendants cannot prevail. 

CONCLUSION AND ORDER

In considering the competent evidence proffered by Distribution Int’l and viewing the evidence in a light most favorable to the opposing parties, the Court finds that there are no triable issues of material fact as to whether Distribution Int’l breached any duty of due care to Plaintiff, or any acts or omissions on the part of Distribution Int’l caused or contributed to Plaintiff’s alleged harm.  The Court determines as a matter of law that Distribution Int’l cannot be found liable regarding Plaintiff’s claims of motor vehicle (negligence), negligence and premises liability.  Consequently, the Court grants Distribution Int’l’s motion for summary judgment.

Distribution Int’l shall provide notice of the Court’s ruling and file a proof of service of the same.