Judge: Robert S. Draper, Case: 20STCV28186, Date: 2022-12-08 Tentative Ruling

Case Number: 20STCV28186    Hearing Date: December 8, 2022    Dept: 78

Superior Court of California 

County of Los Angeles 

Department 78 

Defendant National General Premier Insurance Company’s Motion for Summary Judgment is DENIED.

FACTUAL BACKGROUND

This is an action for insurance coverage of an uninsured motorist. The Petition to Compel Arbitration (“PCA”) alleges as follows.

Respondent National General Premier Insurance Company (“National”) issued to Petitioner Edward Constantian (“Constantian”) a bodily injury liability insurance policy (the “Policy”) containing uninsured motorist coverage. (PCA ¶ 5.) On July 29, 2018, Constantian sustained bodily injury in an accident involving an uninsured motorist. (PCA ¶ 6.) Constantian sent a written demand to National for arbitration of the uninsured motorist claim. (PCA ¶ 7.) National declined that demand. (PCA ¶ 8.) The Policy contains a written agreement to arbitrate if Constantian and National are unable to agree as to whether Constantian is entitled to recover damages, or the amount of damages he is entitled to recover. (PCA ¶ 11.)

PROCEDURAL HISTORY 

On July 27, 2020, Constantian filed the Complaint in the Lead Case, Case No. 20STCV28186, against Defendants Jose O. Andrade, JVM Transport, Inc., and Efrain Vasquez-Mendez for property and personal damage related to a motor vehicle accident.

On May 5, 2021, Constantian filed the Petition to Compel Arbitration in Case No. 21STCP01435.

On May 11, 2021, the Court deemed the two actions related.

On June 18, 2021, Constantian filed a Motion to Consolidate the two actions.

On August 27, 2021, the Court granted the Motion to Consolidate and named 21STCV28186 the lead case. Additionally, the Court vacated its order to compel arbitration in 21STCP01435.

On July 12, 2022, National filed the instant Motion for Summary Judgment.

On October 11, 2022, Constantian filed an Opposition.

On December 5, 2022, National filed an untimely Reply.[1]

DISCUSSION 

                       I.         EVIDENTIARY OBJECTIONS

A.  National’s Evidentiary Objections

National objects to Constantian’s and his passenger, Anush Gagua’s (“Gagua”) declarations stating that Constantian’s vehicle made contact with the silver sedan (the “Phantom Vehicle”), which caused the accident then fled.

National objects, first, on the grounds that the declarations lack foundation, lack personal knowledge, and constitute hearsay. National does not explain how two witnesses who were in the vehicle that allegedly made contact with the Phantom Vehicle would lack personal knowledge of that incident, or how their first-hand perception of the event constitutes hearsay.

National next objects on the grounds that their statements constitute legal conclusions rather than evidentiary facts. Again, National does not explain how the two passengers’ first-hand perception of the incident in question constitutes legal conclusion rather than evidentiary fact.

Finally, National objects on the ground that the witnesses’ statements contradict their own previous statements, as well as the statement of Efrain Vasquez-Mendez (“Vasquez-Mendez”), the driver in the vehicle trailing Constantian’s vehicle.

Though National notes that the police report regarding the incident does not state that Constantian’s vehicle contacted the Phantom Vehicle, it also does not contain statements from Constantian or Gagua saying that Constantian’s vehicle did not make contact with the phantom vehicle. Additionally, as addressed below, the police report is inadmissible under California Vehicle Code section 20013.

And, that Constantian and Gagua’s perception of the incident differs from Vasquez-Mendez’s is not a basis for inadmissibility. Rather, the discrepancy between the parties’ perceptions of the event exemplifies a triable issue of material fact.

Accordingly, National’s Evidentiary Objections numbers 1-4 are OVERRULED.

B.  CONSTANTIAN’S EVIDENTIARY OBJECTIONS

1.    The Police Report

Constantian’s Opposition is based largely on his objection to the admissibility of the Traffic Collision Report (the “Police Report”) created shortly after the accident. (Cadena Decl., Ex. A.)

Constantian argues that the Police Report is inadmissible both under the California Vehicle Code and under the California Evidence Code.

First, Constantian argues that the Police Report is inadmissible under Vehicle Code section 20013, which states:

No such accident report shall be used as evidence in any trial, civil or criminal, arising out of an accident, except that the department shall furnish upon demand of any person who has, or claims to have, made such a report or upon demand of any court, a certificate showing that a specified accident report has or has not been made to the department solely to prove a compliance or failure to comply with the requirement that such a report be made to the department. (Veh. Code § 2013; see also Box v. California Date Growers Assn. (1976) 116 Cal.App.3d 266 [“Indeed, it is well established that traffic accident reports are not admissible in evidence.])

National does not address section 20013 in its Reply. Instead, National, citing Jane IL Doe v. Brightstar Residential Inc. (2022) 76 Cal.App.5^th 171, argues that the Police Report is admissible as both layers of hearsay fall under exclusions to the hearsay rule.

National’s argument is unavailing for two reasons. First, because the police report in Jane IL Doe regarded a sexual assault, and therefore is irrelevant to the issue of admissibility under Vehicle Code section 20013.

Second, because in Jane IL Doe, the Court held that the first layer of hearsay was excluded because the statement in question was an opposing party statement under Evidence Code section 1220. While this exclusion would apply to Constantian, it does not apply to Gagua, who is a non-party in this action.

Next, National argues that the first level of hearsay is excluded under Evidence Code section 1235, which excludes a witness statement from hearsay when “the statement is inconsistent with his testimony at the hearing and is offered in compliance with section 770.” However, section 1235 is inapplicable as the Police Report does not contain any statement from Constantian or Gagua claiming that Constantian’s vehicle did not make contact with the Phantom Vehicle.

As to Constantian, the Police Report states:

Constantian was contacted at the scene of the collision by Officer Gambina (ID 21458) and was identified by a valid California Driver’s License. [Constantian] related to Officer Gambina, that he was driving Vehicle #2 (GMC) (V2) on US-101 eastbound, east of Van Nuys Boulevard in the #4 or #5 lane at approximately 60 MPH. [Constantian] stated the vehicle to the right of him cut in front of him from either the #5 lane or an onramp, approximately two car lengths ahead. [Constantian] related he reacted by braking and slowing down. [Constantian] then stated he felt an impact to the right rear of his vehicle by a Semi truck. [Constantian] drove V2 to the right shoulder of US-101 eastbound and waited for CHP arrival. (Cadena Decl., Ex. A at p. 7.)

As to Gagua, while the Police Report does list him as an injured passenger, it does not contain any statement from him. The Police Report does not contain any statement from Gagua or Constantian that contradicts their contention that Constantian’s vehicle made contact with the Phantom Vehicle.

Accordingly, under Vehicle Code section 20013, the Police Report is inadmissible. Moreover, under the California Evidence Code, the Police Report is inadmissible as to Gagua because Gagua is a non-party to this action, and as the Police Report contains no statement from Gagua with which National can contradict Gagua’s testimony.

Constantian’s evidentiary objection Number 8 is SUSTAINED.

2.    Officers Gambina and Ruff’s Depositions

Next, Constantian objects to the admissibility of the depositions of Officers Gambina and Ruff. (Cadena Decl, Exs. Q-V.) Constantian contends that, as all the officers’ observations are based on the police report, and as each officer concedes to having no independent recollection of the event (Gambina Depo., p. 15:15-18; Ruff Depo., p. 14:21-25), their depositions do not contain any admissible evidence. 

Constantian’s argument is well taken. As both officers’ depositions are based entirely on their review of the inadmissible Police Report, their depositions are similarly inadmissible.

Accordingly, Constantian’s evidentiary objection Numbers 9-11, 14, 15, and 16 are SUSTAINED.

Constantian’s evidentiary objection numbers 1-7, 12, 13 and 16 are OVERRULED.

                      II.         MOTION FOR SUMMARY JUDGMENT

National moves for summary judgment pursuant to Code of Civil Procedure section 437.

A party may move for summary judgment “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).) “[I]f 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,” the moving party will be entitled to summary judgment. (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; accord Code Civ. Proc. § 437c, subd. (p)(2).) To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

Neither a moving nor responding party may rely on the mere allegations or denials of its pleadings. A moving party must submit specific admissible evidence showing that the responding party cannot establish at least one element of his, her or its cause of action or defense. The responding party, to defeat the motion, must submit specific admissible evidence showing that a triable issue of material fact does exist as to that element of the cause of action or defense. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

“The “Golden Rule” on a motion for summary judgment or summary adjudication is that “if [a fact] is not set forth in the separate statement, it does not exist.” (Zimmerman, Rosenfeld, Gersh & Leeds LLP v. Larson (2005) 131 Cal.App.4th 1466, 1477, citing United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 337.)

A.  California Insurance Code section 11580.2(B)(1)

National contends that Constantian does not have a viable claim as he presents no evidence as to physical contact between his vehicle and the Phantom Vehicle as required by California Insurance Code section 11580.2(B)(1) (“section 11580”).

Section 11580 provides that, for the purposes of uninsured motorist insurance coverage, an uninsured motor vehicle is:

[A] motor vehicle with respect to the ownership, maintenance or use of which there is no bodily injury liability insurance or bond applicable at the time of the accident . . . or the owner or operator thereof be unknown, provided that, with respect to an ‘uninsured motor vehicle’ whose operator is unknown: (1) The bodily injury has arisen out of physical contact of the automobile with the insured or with an automobile that the insured is occupying.

National argues that, as Constantian has presented no evidence that his vehicle made physical contact with the Phantom Vehicle, the Phantom Vehicle does not constitute an uninsured motor vehicle pursuant to section 11580.

National notes that the Police Report states that there was no contact between Constantian’s vehicle and the Phantom Vehicle. (UMF Nos. 21-27.) However, as addressed above, the Police Report is inadmissible, and Officers Gambina and Ruff’s depositions are similarly inadmissible as they are based entirely on the inadmissible Police Report.

National also notes that Vasquez-Mendez, the driver of the third vehicle in the collision, did not see or hear an impact between Constantian’s vehicle and the Phantom Vehicle. (UMF Nos. 12-13.) Additionally, National notes that the Westlake Auto Collision property damage estimate showed no damage to the front of Constantian’s vehicle. (UMF No. 36.)

Accordingly, National has met its initial burden of showing the nonexistence of a triable issue of material fact as to physical contact between Constantian’s vehicle and the Phantom Vehicle.

In Opposition, Constantian submits the sworn declarations of Constantian and Gagua, who both contend that Constantian’s vehicle made contact with the Phantom Vehicle. (PMF No. 38.) Additionally, Constantian attaches photos of his vehicle, showing minor, but visible, damage to the front of the vehicle where he alleges he made contact with the Phantom Vehicle. (Ex. A.)

Accordingly, Constantian has shown the presence of a triable issue of material fact as to physical contact between his vehicle and the Phantom Vehicle.

National’s Motion for Summary Judgment is DENIED.

DATED: December 8, 2022 

____________________________

Hon. Robert S. Draper 

Judge of the Superior Court