Opinion
A144806
04-18-2017
ARNOLD GO, Plaintiff, v. GARY ZIMPEL et al., Defendants and Respondents, GALLAGHER BASSETT SERVICES, INC. Intervenor and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. C12-00363)
Arnold Go was injured while working, and Gallagher Bassett Services, Inc., (Gallagher Basset) administered his workers' compensation claim for Go's employer. Ten months later, while Go was on temporary total disability due to his work injury, he was involved in a car accident. Go sued Gary Zimpel and Zimpel's employer, Contra Costa County (County), for damages related to the car accident. Gallagher Bassett intervened as plaintiff in the lawsuit, seeking such sums as were paid in workers' compensation benefits to Go for injuries caused by County defendants.
We refer to Zimpel and County together as "County defendants."
After County defendants and Go settled, County defendants moved for summary judgment against plaintiff-in-intervention Gallagher Bassett. The trial court granted summary judgment, and Gallagher Bassett appeals. Gallagher Bassett contends there are triable issues of fact as to whether the car accident caused any part of Go's permanent disability.
We conclude the trial court did not err, and we affirm.
Gallagher Bassett concedes it prematurely filed a notice of appeal, and the record does not show that a judgment was entered in this case. Gallagher Bassett asserts it attempted to file a judgment, but was informed that the trial court action was stayed due to the appeal. It asks that we construe the court's order granting summary judgment, which is not an appealable order, as an appealable judgment. County defendants do not appear to object. We will exercise our discretion and entertain Gallagher Bassett's appeal. (See Lieding v. Commercial Diving Center (1983) 143 Cal.App.3d 72, 73-74; Eisenberg, et al. Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group (2016)) ¶ 2.262, p. 2-165 (Eisenberg).)
FACTUAL AND PROCEDURAL HISTORY
August 2010 Accident
On August 19, 2010, Go, then 40 years old, was working as a cable installer for DISH Network. While working at a customer's home, Go severely injured his left shoulder and neck as he fell through a ceiling, grabbed the rafters with his left hand, and hung from the ceiling with a cable wrapped around his neck and body. As a result of this accident, Go had pain in his left shoulder and neck, he could not lift his left arm above his head, and he had trouble sleeping. His employer immediately placed Go on modified duty, which meant he assisted other cable installers but did no lifting or climbing. Gallagher Bassett handled Go's workers' compensation claim for DISH Network.
In the months following the accident, Go visited a doctor once a week, went to physical therapy twice a week, and received acupuncture. In January 2011, he reported continued pain along his left shoulder and arm. His diagnosis was left shoulder strain, left acromioclavicular joint arthrosis, left rotator cuff syndrome, cervical disk pathology, and cervical strain. Go was told that an MRI showed one of the discs in his neck was out of alignment and the muscles connecting his lower neck to his shoulder "were all twisted." In March 2011, Go reported continued pain, and his physician concluded that "none of this [medical treatment] has been significantly helpful . . . the patient's symptoms have not yet resolved."
On March 21, 2011, Go stopped working, and he was placed on temporary total disability (TTD). At that time, he was "still suffering from symptoms related to the shoulder and neck." Go received TTD payments of $1,172 every two weeks. In April 2011, Go's physician concluded that his condition was unchanged. The same month, Go switched to a new primary care provider, chiropractor Dr. Claude Heifetz. In May 2011, Dr. Heifetz wrote in a "doctor's first report of occupational injury or illness" that Go's diagnosis included "chronic cervical sp/st [sprain/strain]." (Capitalization omitted.) In June 2011, Go still had neck and shoulder pain caused by the accident.
Automobile Collision Underlying the Current Litigation
On June 20, 2011, as Go drove home from an appointment at Dr. Heifetz's office, he was involved in a car accident. Go was waiting at a red light, one car was stopped ahead of him, and a United States Postal Service truck was stopped behind him. Zimpel was driving a County van with one passenger. Zimpel failed to stop and rear-ended the postal truck, which was "pushed into" Go's sedan. According to Zimpel, he was driving at 10 to 15 miles per hour before the collision, and "the impact of the collision was minor." Neither Zimpel, his passenger, nor the driver of the postal truck was injured in the collision. The air bags in Go's sedan did not deploy, he did not hit the steering wheel, and his sedan did not hit the car stopped in front of him. The damage to Go's sedan was limited to a misaligned rear bumper with paint scratches. The sedan remained fully functional, and as of June 2012, Go had not had his sedan repaired.
Later on the day of the collision, Go went to the emergency room complaining of "neck pain and dizziness." Go denied having a head injury or loss of consciousness. The x-rays of Go's cervical spine showed mild degenerative changes, no fracture, no dislocation, and no soft tissue swelling. According to Go, his initial symptoms from the collision were dizziness, nausea, pain in the back of his head, pain in his low or mid-back area, and neck pain. According to County counsel, Go submitted a government tort claim for property damage caused by the collision, and County paid $591.92 to settle the property damage claim. The dizziness, nausea, and headache went away after about seven days.
State Farm Mutual Automobile Insurance Company (State Farm) opened a claim on behalf of Go and made payments arising from the collision, including expenses related to Go's emergency room visit on the day of the collision. Go also filed a claim for workers' compensation based on the collision.
After the collision, Go experienced pain in his neck when he moved from side to side and a sharp pain in his back when he tried to bend over; these pains subsided after about three or four weeks. At that time, Go continued to feel pain "[d]epending on the motion [he] was doing," (such as suddenly bending over), but he testified in deposition, "Maybe the next few more weeks . . . it started subsiding, and then another three to four weeks it was completely out of there."
The parties disagree on whether Go's deposition testimony meant the pain from the collision subsided by "the end of August or beginning of September 2011" (County defendants' position) or "three months after the accident, which is end of September" (Gallagher Bassett's position), but they do not dispute that Go said the pain was "was completely out of there" at some point in the fall of 2011.
Dr. Heifetz treated Go for both injuries related to the August 2010 accident and injuries related to the later automobile collision. In treatment notes, Dr. Heifetz wrote on August 10, 2011, that Go's "neck/shoulder [are] definitely pre-MVA [motor vehicle accident]," and five days later, he wrote "the neck/shoulder are pre-MVA and feel much better." Go thought the collision "aggravated [his] shoulder and neck," which were injured when he fell through the ceiling in August 2010, but, around three weeks after the collision, the condition of his neck and shoulder was about the same as it had been before the collision. With the exception of occasional soreness in his lower back, Go testified that he fully "recovered" from the effects of the collision. Go understood that Dr. Heifetz "closed the treatment related to the auto accident" after about three to four months.
Progress Report
Dr. Heifetz wrote a primary treating physician's progress report dated December 26, 2011, addressed to both Gallagher Bassett (referring to the workers' compensation claim related to the August 19, 2010, accident) and State Farm (referring to the claim related to the June 20, 2011 motor vehicle accident). In the progress report, he explained how he apportioned Go's treatment as attributable to either the August 2010 accident or the June 2011 collision and billed Gallagher Bassett and State Farm accordingly.
Dr. Heifetz wrote: "[T]here has been an overlap in treatment addressing the work related injury [due to the August 2010 accident] as well as the MVA injury. During each office visit, I treated both injuries. From 6/22/11-7/15/11, it is my opinion that 90% of treatment was directed towards the injuries sustained in the MVA and 10% towards the work injury. Therefore, 90% of the medical bill is the responsibility of the automobile insurance and 10% to the workers' compensation insurance company." Over time, the treatment became more directed toward the injury from the August 2010 accident. Dr. Heifetz wrote, "From 7/27/11-8/17/11, it is my opinion that 75% of treatment was directed toward the injury sustained in the MVA and 25% towards the work injury," and "[f]rom 8/22/11-12/2/11[,] 50% of treatment and the medical bills is the responsibility of the automobile insurance company and the other 50% is the responsibility of the workers' compensation insurance company." On December 2, 2011, Dr. Heifetz "discharged [Go] from injuries he sustained in the motor vehicle accident," and Go's later visits were "solely the responsibility" of the workers' compensation insurer.
The record also includes a letter from Dr. Heifetz to State Farm dated December 23, 2011, which similarly describes his apportioned billing. He wrote that he had received a payment from State Farm of $2,720 for his entire bill for Go's treatment from June 22 to August 17, 2011. He explained, however, that there was "an overlap of treatment," and the collision was responsible for 90 percent of the treatment from June 22 to July 15, and 75 percent of the treatment from July 2 to August 17. Accordingly, Dr. Heifetz requested State Farm resubmit a new payment for $2,268.75, and he offered to return or shred the original check for the higher amount.
Permanent and Stationary Report
In his Primary Treating Physician's Permanent and Stationary Report dated December 30, 2011, Dr. Heifetz opined that, as of November 2, 2011, Go's chronic left shoulder and neck strains had reached a permanent and stationary level. Dr. Heifetz identified the date of injury as August 19, 2010, the day Go fell through the ceiling, and concluded the permanent disability was directly caused by injury arising out of and in the course of employment. He opined the permanent disability was not caused "in whole or in part, by other factors besides this industrial injury or illness, including any prior industrial injury or illness."
Current Lawsuit
In February 2012, Go sued County defendants for damages based on the June 20, 2011, collision. In December 2012, Gallagher Bassett was given leave to file a complaint-in-intervention, which alleged that the conduct of County defendants resulted in Gallagher Bassett paying workers' compensation benefits to Go. Gallagher Bassett sought to recover from County defendants "sums, according to proof, as were expended for Worker's Compensation benefits, including but not limited to disability and indemnification and medical bills."
In March 2013, Go and County defendants settled, and Go's lawsuit against County defendants was dismissed two months later. Gallagher Bassett did not settle with County defendants.
County Defendants' Motion for Summary Judgment
In October 2014, County defendants filed a motion for summary judgment on the complaint-in-intervention. They argued there was no evidence showing that the collision contributed to Go's preexisting, chronic occupational disability or that Gallagher Bassett paid for workers' compensation benefits because of the collision. Among other evidence, County defendants relied on Dr. Heifetz's permanent and stationary report and evidence that State Farm, not Gallagher Bassett, paid for costs associated with the collision, including Go's emergency room visit and Dr. Heifetz's treatments attributable to the collision.
Gallagher Bassett's Opposition
In opposition to the motion for summary judgment, Gallagher Bassett asserted there was incontrovertible evidence that it paid workers' compensation benefits in connection with the June 20, 2011, collision. (As will be seen, however, County defendants objected to Gallagher Bassett's evidence submitted to show payment, and the trial court sustained their objection.)
Gallagher Bassett further argued there was a triable issue of fact as to what caused Go's injuries after the car accident, noting that Dr. Heifetz's permanent and stationary report was issued on November 2, 2011, after the car accident. In addition, Gallagher Bassett relied on portions of reports written by Dr. Moses Jacob, the Agreed Medical Examiner for Go's workers' compensation case.
Gallagher Bassett quoted the following from a report by Dr. Jacob dated February 21, 2012: "I would offer that the patient's shoulder condition should be considered as 100% due to Injury B and the cervical spine condition should be apportioned equally, i.e., at 50% between the two injury events." Earlier in Dr. Jacob's report, Injury B was identified as the motor vehicle accident of June 20, 2011. However, in a deposition taken in December 2014, Dr. Jacob explained that the statement that Injury B was the sole cause of Go's shoulder condition was the result of a typographical error. He actually meant the August 2010 accident when Go fell through the ceiling caused the shoulder injury.
On appeal, Gallagher Bassett acknowledges the typographical error and does not claim Dr. Jacob's opinion is that Go's shoulder injury is 100 percent due to the collision.
Gallagher Bassett also quoted a statement from a supplemental report by Dr. Jacob dated August 6, 2012. He wrote: ". . . [It] does NOT appear that Dr. [Heifetz's] record[s] support when the patient reached MMI [maximum medical improvement] for each respective claim. It appears that the auto collision reached MMI at an earlier date, however, there are no objective methodologies by which one can separate the overlap between these claims."
In its opposition, however, Gallagher Bassett did not provide context for Dr. Jacob's quoted observation. At the beginning of the supplemental report, Dr. Jacob wrote that he had been asked by Go's attorney to consider " 'How much of the medical treatment provided related to the MVA and how much of the medical treatment was related to the original industrial injury of 8/19/10[?]' " Following the statement quoted by Gallagher Bassett, Dr. Jacob continued: "I will support that the simplest method would be to rely on Dr. [Heifetz's] percentages as noted in his internal records for the dates of service for care rendered to this patient. [¶] In the alternative, I might suggest that the same question which was posed to this examiner be directed to Dr. Heif[e]tz who may give us a clearer understanding of his record keeping methodologies. Another approach would be this: with the authorization of the parties, I would be willing to contact Dr. Heif[e]tz by telephone and discuss the matter with him. I hope that this allows the parties to resolve the question which still remains somewhat unanswered."
County Defendants' Reply
In their reply, County defendants characterized the dispositive issue as "what additional benefits were paid [by Gallagher Bassett] for Mr. Go separate and apart from the benefits paid for his pre-existing, chronic workplace injuries." They observed there was no dispute that State Farm paid for Go's emergency room visit after the collision and no dispute that Dr. Heifetz separated his treatments for the August 2010 accident from his treatments for the June 2011 collision and billed Gallagher Bassett only for treatment directed toward the August 2010 accident. They asserted Go's shoulder and cervical spine were permanently and chronically injured by the August 2010 accident before the collision, and there was no evidence that the collision caused Go's occupational disability.
County Defendants' Evidentiary Objections
In support of Gallagher Bassett's opposition, its attorney Robert Yoakum filed a declaration with exhibits. Yoakum stated he could "testify as to the matters set forth herein, based upon my personal knowledge." Generally, he stated the attached exhibits were true and correct copies. As to exhibit M, Yoakum declared it was "a true and correct copy of documents marked with numbers GB000001-GB000020, containing a report and summary of payments made by Gallagher Bassett in connection with Plaintiff Arnold Go's Worker's Compensation claims, produced by Gallagher Bassett in response to Contra Costa County's Request for Production of Documents, Set One." (Capitalization omitted.) As to exhibit N, he said it was "a true and correct copy of documents marked with numbers GB000033-GB000034, containing an itemized statement from Electronic Waveform Lab, Inc., showing and requesting payments from Gallagher Bassett . . . in response to Contra Costa County's Request for Production of Documents, Set One." (Capitalization omitted.) It is not clear from the record what exhibits M and N are intended to respond to, as Yoakum did not include or describe County defendants' request for production of documents.
County defendants objected to exhibits M and N on the grounds of hearsay, improper authentication, lack of foundation, and irrelevance. They noted Yoakum was not an employee of the entities that created the documents and was not a custodian of records, and he offered no "testimony as to the time, place, or manner of preparation, or any evidence whatsoever that establishes the trustworthiness of the document[s]." County defendants argued the evidence lacked foundation because Yoakum failed to establish personal knowledge of how the evidence was created, stored, accessed, or transmitted. They further argued the exhibits were irrelevant because they "[did] not show that any purported payments were made for treatment of injuries from Mr. Go's auto accident of June 20, 2011, as opposed to his prior workplace accident of August 19, 2010 that caused permanent disabilities."
County defendants also objected to other evidence submitted by Gallagher Bassett. They objected to portions of Dr. Jacob's report of February 21, 2012, on the grounds they were unreliable, unsupported, and speculative expert opinion testimony, citing Sargon Enterprises, Inc. v. University of Southern Cal. (2012) 55 Cal.4th 747, 771-772 ["the trial court acts as a gatekeeper to exclude expert opinion testimony that is (1) based on matter of a type on which an expert may not reasonably rely, (2) based on reasons unsupported by the material on which the expert relies, or 3) speculative"].) They pointed out that Dr. Jacob disavowed his written opinion that the collision contributed to GO's left shoulder injury. As to Dr. Jacob's opinion that Go's cervical spine condition should be apportioned equally between the August 2010 accident and the later collision, County defendants argued this opinion was inadmissible because, among other things, Dr. Jacob never read Go's deposition in which he testified that he was symptom free from the effects of the collision within a couple of months, he ignored undisputed evidence that Go's left shoulder and cervical spine injuries were chronic and permanent prior to the collision, and he admitted there was no "hard evidence" that the collision caused permanent impairment requiring ongoing treatment. Instead, County defendants asserted, Dr. Jacob based his opinion "solely on a purported comment by Mr. Go that the auto accident may have contributed to his residual injury," but Go's deposition testimony contradicted the basis for Dr. Jacob's opinion.
The Trial Court Order Granting Summary Judgment
The trial court issued a tentative ruling, ruling on the evidentiary objections and granting summary judgment. Because there was no opposition to the tentative ruling, no hearing was held, and the tentative ruling was adopted. The court sustained County defendants' objections to exhibits M and N. It did not consider new evidence submitted in County defendants' reply. The court did not consider Gallagher Bassett's evidentiary objections because they did not comply with California Rule of Court, rule 3.1354(b).
Having failed to request a hearing on the summary judgment motion, Gallagher Bassett waived the right to make evidentiary objections at the hearing. (See Code Civ. Proc., § 437c, subd. (b)(5) ["Evidentiary objections not made at the hearing shall be deemed waived"].) And although it is preferable to make objections in evidence in writing, a party is permitted to make objections for the first time at the hearing. (See Cal. Rule of Court, rule 3.1352 ["A party desiring to make objections to evidence in the papers on a motion for summary judgment must either: [¶] (1) Submit objections in writing under rule 3.1354; or [¶] (2) Make arrangements for a court reporter to be present at the hearing"].) Thus, despite the trial court's tentative ruling that the form of its evidentiary objections was not in compliance with the Rules of Court, Gallagher Bassett could have raised the same objections and sought a court ruling at the hearing on the summary judgment. It did not do so.
The trial court granted County defendants' motion for summary judgment. It found "no triable issues of material facts to the alleged payment of benefits by plaintiff-in-intervention [Gallagher Bassett] for injuries arising from Mr. Go's automobile accident in June of 2011 as opposed to his workplace injury on August 19, 2010," citing Dr. Heifetz's progress report, his permanent and stationary report, his letter to State Farm about billing dated December 23, 2011, and evidence of State Farm's payments on the collision claim.
The court explained Gallagher Bassett did "not dispute the substance of this evidence—that State Farm paid the claims and that Dr. Heifetz segregated payment liability—but argues instead that: 1) Heifetz's allocation was 'inconsistent' and does not resolve liability . . . and 2) [Gallagher Bassett] also 'processed and paid bills in connection with' the auto accident." "However, [Gallagher Bassett] fails to provide admissible evidence raising a triable issue of material fact. [Gallagher Bassett] offers a list of purported payments (Exh. M), and an invoice from a lab (Exh. N), but offers neither foundation nor proper authentication of these documents. (See defendants' objections to evidence.) Nor does [Gallagher Bassett] make any attempt to show which payments listed are for the auto claim versus the workplace claim."
The court also disagreed with Gallagher Bassett's apparent position "that [evidence of] amount[s] paid in worker's compensation benefits is conclusive evidence of liability." Rather, Gallagher Bassett was still required to "prove causal nexus between the payments for which it seeks recovery and the actions of the alleged tortfeaser."
DISCUSSION
A. Standard of Review
A defendant is entitled to summary judgment "if all the papers submitted 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." (Code Civ. Proc., § 437c, subd. (c).) "We review the trial court's decision de novo, considering all of the evidence the parties offered in connection with the motion (except that which the court properly excluded) and the uncontradicted inferences the evidence reasonably supports. [Citation.] In the trial court, once a moving defendant has 'shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established,' the burden shifts to the plaintiff to show the existence of a triable issue; to meet that burden, the plaintiff 'may not rely upon the mere allegations or denials of its pleadings . . . but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action . . . .' [Citations.]" (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476-477 (Navegar).) "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.)
As to the trial court's evidentiary rulings in deciding a motion for summary judgment, however, "[a] different analysis is required for our review." (Carnes v. Superior Court (2005) 126 Cal.App.4th 688, 694.) "Although it is often said that an appellate court reviews a summary judgment motion 'de novo,' the weight of authority holds that an appellate court reviews a court's final rulings on evidentiary objections by applying an abuse of discretion standard" (ibid.; see Eisenberg, supra, ¶ 8.168, pp. 8-146-147), and the parties agree an abuse of discretion standard applies. Thus, the party challenging a trial court's evidentiary ruling has the "burden to establish such an abuse, which we will find only if the trial court's order exceeds the bounds of reason. [Citation.] 'Where a trial court has discretionary power to decide an issue, an appellate court is not authorized to substitute its judgment of the correct result for the decision of the trial court.' [Citation.] We will only interfere with the lower court's judgment if appellant can show that under the evidence offered, ' "no judge could reasonably have made the order that he did." ' " (DiCola v. White Bros. Performance Products, Inc. (2008) 158 Cal.App.4th 666, 679 [reviewing trial court's evidentiary rulings on summary judgment].) B. Applicable Law
"Under the workers' compensation statutes, an employee who suffers an industrial injury may recover compensation benefits from his or her employer without regard to the negligence of either party. ([Lab. Code,] § 3600.)" (Abdala v. Aziz (1992) 3 Cal.App.4th 369, 374 (Abdala).) In addition, "[w]here the tort of a third party causes injury to an employee, . . . section 3852 permits the employee to sue the tortfeasor for all damages proximately resulting from the injury even though he or she has received from an employer workers' compensation benefits covering some of the same injuries and resulting disability. (Ibid.) An employer (including an insurer or self-insurer's security fund) "who pays, or becomes obligated to pay [workers'] compensation . . . may likewise make a claim or bring an action against [a third-party tortfeasor]. In [this] . . . event the employer may recover in the same suit, in addition to the total amount of compensation, damages for which he or she was liable including all salary, wage, pension, or other emolument paid to the employee or to his or her dependents." (§§ 3852, 3850.)
Further undesignated statutory references are to the Labor Code.
However, it is important to recognize that "[t]he workers compensation statutes governing employer and employee actions against third parties do not define the substantive law which determines whether an employee or an employer will in fact recover." (County of San Diego v. Sanfax Corp. (1977) 19 Cal.3d 862, 873.) Instead, "[a]n employer's action under Labor Code section 3852 is essentially a tort action." (Id. at p. 871, italics omitted.) Thus, an employer seeking reimbursement from a third-party tortfeasor must prove damages, and the amount paid in workers' compensation benefits is not the automatic measure of damages. (See Breese v. Price (1981) 29 Cal.3d 923, 929-931 (Breese) ["an employer seeking reimbursement for compensation payments bears the burden of establishing that a defendant's negligence is the proximate cause of an employee's injuries and the amount of tort damages reasonably resulting therefrom"].)
An employer may also seek reimbursement when "an employee suffers a subsequent tortious injury which also increases the employer's liability for compensation. This is true whether or not that subsequent injury is industrial in nature." (Abdala, supra, 3 Cal.App.4th at p. 375.) In Abdala, an employee was injured at work, and 14 weeks later was involved in an automobile collision unrelated to work. Following the collision, the employee sought workers' compensation benefits for the aggravation of her preexisting work-related injuries, and separately sued the person purportedly at fault in the collision. (Id. at pp. 372-373.) After the employee and the individual defendant settled, the workers' compensation insurance carrier sought reimbursement from the individual defendant "to recoup the additional compensation benefits it had paid [the employee] because of the injuries she incurred in the automobile collision." (Id. at p. 373.) The Court of Appeal held a carrier could seek reimbursement from a third-party tortfeasor in these circumstances. The court explained: "The employer who assumes the burden of paying benefits for all damages proximately related to an industrial accident, including those caused by a subsequent third party tortfeasor, surely is entitled to seek reimbursement from the party responsible for the aggravation of the industrial injuries. The employer may, however, recover only to the extent the tort injury exacerbated the employee's condition, i.e., only to the extent compensation was increased by the tort injury." (Id. at p. 377, italics added.) C. Analysis
1. County Defendants' Met Their Initial Burden
To prevail in its complaint-in-intervention against County defendants, Gallagher Bassett has the burden to prove (1) County defendants were negligent, (2) their negligence was the proximate cause of Go's injuries, and (3) the amount of "tort liability for such injuries." (Breese, supra, 29 Cal.3d at p. 926.) Because Gallagher Bassett was already obligated to pay Go for injuries arising from his August 2010 accident, the measure of damages is the increase in liability for workers' compensation benefits caused by the subsequent collision. (Abdala, supra, 3 Cal.App.4th at p. 375.)
Here, County defendants met their initial burden in their motion for summary judgment, first, by presenting evidence that State Farm—not Gallagher Bassett—paid for expenses related to the collision and, second, by pointing to the absence of any evidence that Gallagher Bassett paid benefits for injuries that were caused by the collision as opposed to injuries resulting from the earlier accident when Go fell through the ceiling. Thus, the burden shifted to Gallagher Bassett to present evidence showing there was triable issue of fact as to whether it had paid any benefits that were due to the collision, not the August 2010 accident.
2. Gallagher Bassett Failed to Raise a Triable Issue of Material Fact
On appeal, Gallagher Bassett contends there were "triable issues of fact as to whether and to what extent Gallagher Bassett has paid benefits by reason of Mr. Go's injuries arising from the auto accident." We conclude the trial court did not abuse its discretion in sustaining County defendants' objections to evidence, and the court correctly determined that there was no triable issue of material fact regarding whether Gallagher Bassett made payments for injuries that were caused by the collision rather than by the August 2010 accident.
a. The Trial Court Did Not Err in Excluding Exhibits M and N
Gallagher Bassett submitted exhibits M and N apparently intended to support its assertion that it paid workers' compensation benefits "in connection with the June 20, 2011 accident." (Capitalization omitted.) Exhibit M is 20 pages long, titled "LIST CLAIM PAYMENTS," and dated January 6, 2015. It identifies the "CLIENT" as Dish Network Corporation, and the "NAME" as Go. The document appears to list about 18 pages of payments by check number, date, amount, payee, and date of service as well as other categories. Many payees are redacted. Apparent payments include, for example, a September 15, 2014, payment to Zandonella Reporting Service for $447.85, and a December 25, 2012, payment to Dr. Heifetz for $75.55. There are about 19 entries per page. Exhibit N appears to be a two-page itemized statement from Electronic Waveform Lab, Inc. addressed to Gallagher Bassett and referring to Go's injury of August 19, 2010.
County defendants objected to admission of these exhibits on the grounds of hearsay, no proper authentication, lack of foundation (presumably meaning attorney Yoakum's declaration lacked sufficient information to establish he could authenticate the documents), and relevance. The court sustained the objections because Gallagher Bassett "offer[ed] neither foundation nor proper authentication of these documents." Nothing in the record indicates that Gallagher Bassett offered any response to County defendants' objections. On appeal, Gallagher Bassett argues the trial court abused its discretion by ignoring and refusing to admit evidence of claim payments "which were properly authenticated by a person with personal knowledge who produced said claims in discovery under penalty of perjury." We see no abuse of discretion.
"Authentication of a writing means (a) the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is or (b) the establishment of such facts by any other means provided by law." (Evid. Code, § 1400.) A declaration submitted in opposition to summary judgment must "be made by a person on personal knowledge, . . . set forth admissible evidence, and . . . show affirmatively that the affiant is competent to testify to the matters" stated in the declaration. (Code Civ. Proc. § 437c, subd. (d).) Here, Gallagher Bassett submitted a declaration by attorney Yoakum, in which he stated perfunctorily that he could testify based on "my personal knowledge," but Yoakum failed to affirmatively show he could authenticate exhibits M and N. As County defendants noted, Yoakum did not state that he was a custodian of records or that he knew how the documents were created. He stated he was an attorney with the law offices of Darling & Risbrough, LLP, but this does not suggest he has personal knowledge of the payment record-keeping procedures at Gallagher Bassett or the billing procedures at the lab. And the mere fact that exhibits M and N were produced in discovery does not make them admissible. (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 854-855 ["Documents obtained in discovery in response to a request for production of documents may be used to support or oppose a motion for summary judgment, but must be presented in admissible form. This means the evidence must be . . . properly identified and authenticated"].) Further, the import of exhibit M is not self-evident, and exhibit N appears to show billing, not payment.
For example, "[a] writing may be authenticated by anyone who saw the writing made or executed" (Evid. Code, § 1413) or "by evidence that: [¶] (a) [t]he party against whom it is offered has at any time admitted its authenticity; or [¶] (b) [t]he writing has been acted upon as authentic by the party against whom it is offered." (Evid. Code, § 1414.) In addition, a document may be admissible as a business record if, among other things, "the custodian or other qualified witness testifies to its identity and the mode of its preparation" and "[t]he sources of information and method and time of preparation were such as to indicate its trustworthiness." (Evid. Code, § 1271 subds. (c), (d).)
In its reply brief, Gallagher Bassett cites Luckman Partnership, Inc. v. Superior Court (2010) 184 Cal.App.4th 30, for the first time, but the case is distinguishable. In Luckman, the defendant moved for summary judgment and filed a declaration from its attorney declaring that he had personal knowledge that the documents attached to his declaration were a codefendant's verified interrogatory responses in the same action, along with exhibits the codefendant had attached to its interrogatory responses. Addressing only the authentication requirement, the Court of Appeal held that this was sufficient to show that the "interrogatory responses in this action were what they purported to be." (Id. at pp. 34-35.) The court did not otherwise address the admissibility of the evidence. Moreover, the court noted that plaintiffs themselves relied on this very same evidence in opposing summary judgment. (Id. at p. 34.)
Gallagher Bassett did not object to the trial court's tentative ruling on County defendants' evidentiary objections—in fact, Gallagher Bassett gave up its right to a hearing on the motion and did not ask for an opportunity to attempt to cure the problem. Under these circumstances, we cannot say the trial court erred in ruling that exhibits M and N were inadmissible. As a result of the evidentiary ruling, there was no evidence Gallagher Bassett paid benefits after the collision, and the trial court correctly determined there was no triable issue of material fact as to whether Gallagher Bassett made payments to Go arising from the collision of June 20, 2011.
b. Gallagher Bassett May Not Rely on Evidence that the Trial Court Properly Excluded; Nor May It Submit New Evidence that was Not Before the Trial Court
In opposing summary judgment, Gallagher Bassett submitted the transcript for Dr. Jacob's deposition taken on December 23, 2014 (part 2 of his deposition). In support of their reply, County defendants then submitted about 26 pages of excerpts of Dr. Jacob's deposition taken on August 19, 2014 (part 1 of his deposition). As we have mentioned, however, the trial court did not consider "new evidence submitted in reply," citing San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 312-316 and, therefore, did not consider the excerpts of part 1 of Dr. Jacob's deposition submitted by County defendants. Accordingly, we do not consider these excerpts of part 1 of Dr. Jacob's deposition on appeal. (See Navegar, supra, 26 Cal.4th at p. 476 [appellate court reviews evidence "except that which the [trial] court properly excluded"].)
Now on appeal, Gallagher Bassett has lodged a supplemental exhibit containing the entire transcript of part 1 of Dr. Jacob's deposition, which spans 148 pages. Gallagher Bassett claims it has submitted the entire transcript to this court "due to the deposition transcript of [Dr.] Jacob . . . only being contained in the record in excerpts, although his deposition is relied on by both sides." We do not consider Gallagher Bassett's supplemental exhibit on appeal. (See Smith v. Wells Fargo Bank, N.A. (2005) 135 Cal.App.4th 1463, 1474 [an appellate court examines only the papers before the trial court when it considered the motion for summary judgment]; Pulver v. Avco Financial Services (1986) 182 Cal.App.3d 622, 632 ["As a general rule, documents not before the trial court cannot be included as part of the record on appeal and thus must be disregarded as beyond the scope of appellate review"].)
c. Gallagher Bassett Fails to Raise a Triable Issue of Material Fact as to Whether Benefits It Paid to Go Increased Because of the Collision
Even if we assume there was admissible evidence in the record showing that Gallagher Bassett made payments for Go's injuries after the collision, Gallagher Bassett has not raised a triable issue of material fact. It argues the trial court erred because "[t]he evidence shows there remains a question of causation, whether and to what effect the injuries from the auto collision contributed to Mr. Go's overall disability, and what money Gallagher Bassett paid on behalf of and to Mr. Go as a result of his injuries from the auto accident." But as we have explained, Gallagher Bassett may only recover damages from a third-party tortfeasor for "a subsequent tortious injury which also increases the employer's liability for compensation." (Abdala, supra, 3 Cal.App.4th at p. 375.) To defeat summary judgment, it is not enough to offer evidence the collision "contributed to" Go's disability; rather, Gallagher Bassett must produce evidence that it paid benefits in excess of what it would have paid for injuries related to the August 2010 accident alone.
In other words, even if we assume exhibits M and N are admissible, and we further assume Gallagher Bassett made the payments listed in exhibit M and paid the bills listed in exhibit N on behalf of Go, County defendants are still entitled to summary judgment.
Gallagher Bassett argues Abdala, supra, 3 Cal.App.4th 369, does not apply to this case because in Abdala, the subsequent injury was not work-related, while Go's collision occurred when he was leaving Dr. Heifetz's office and is therefore work-related under the going and coming rule. But this purported distinction makes no difference. The Abdala court held a compensation insurance carrier could seek reimbursement when "an employee suffers a subsequent tortious injury which also increases the employer's liability for compensation. This is true whether or not that subsequent injury is industrial in nature." (Abdala, supra, 3 Cal.App.4th at p. 375, italics added, original italics omitted.)
Gallagher Bassett's remaining arguments do not raise a triable issue as to whether it paid benefits in excess of what it would have paid for injuries related to the August 2010 accident alone. It argues Go was not declared permanent and stationary until five months after the collision. But this fact does not show that the collision increased Gallagher Bassett's payments to Go. Dr. Heifetz concluded that the permanent disability was directly caused by the accident of August 19, 2010, and not any other injury or illness. To dispute Dr. Heifetz's conclusion that the August 2010 accident was the sole cause of Go's permanent disability, Gallagher Bassett would need some evidence indicating that Go would not have become permanently disabled if the collision had not occurred, but it offers no such evidence. Gallagher Bassett cites a letter dated July 15, 2011, by Dr. Heifetz, in which he wrote the collision "caused an exacerbation to the cervical spine and left shoulder as well as new injuries to the head, thoracic and lumbar spine." But, again, this fact does not show that the collision increased Gallagher Bassett's payments to Go. In the same letter, Dr. Heifetz explained there was an overlap treatment and 90 percent of his treatment of Go was directed toward the collision and 10 percent was related to the earlier industrial injury. Thus, the letter shows Dr. Heifetz did not charge Gallagher Bassett for treatment related to the collision. Gallagher Bassett claims Dr. Heifetz apportioned the overlapping treatment "subjectively," and suggests his record-keeping was improper and he did not understand workers' compensation law. But, as County defendants argue, Gallagher Bassett must identify admissible evidence in the record that quantifies payments it made that were actually caused by the collision. It is not sufficient that Gallagher Bassett asserts, "a portion of the amount [Dr. Heifetz] billed to Workers' Compensation could still be related to the auto accident, and Dr. Heifetz's report and letters are not decisive proof that only State Farm paid for direct treatment related to the auto accident." (Some italics added.) Instead, Gallagher Bassett must offer some evidence that it paid benefits that it would not have paid if the collision had not occurred. Gallagher Bassett repeatedly refers to Dr. Jacob's "disagreement" with Dr. Heifetz's billing procedures and conclusion. But Dr. Jacob did not opine that Dr. Heifetz charged Gallagher Bassett for treating injuries that were caused by the collision. Nor did Dr. Jacob opine that Go would not be permanently disabled if the collision had not occurred. In short, Gallagher Bassett has failed to raise a triable issue of material fact as to whether the collision increased its payments to Go. D. Motion to Strike Reply Brief
Before this court, an optional reply was due within 20 days after County defendants' filed their response brief on September 24, 2015. (Cal. Rules of Court, rule 8.212(a)(3).) Gallagher Bassett filed its reply on November 25, 2015. This was 42 days late, but Gallagher Bassett did not request leave to file a late brief or even acknowledge its tardiness.
County defendants move to strike the brief for untimeliness. They also argue that new issues raised for the first time on appeal must be disregarded. We deny the motion to strike the reply brief. County defendants cite California Rule of Court, rule 8.204(e)(2)(B) for the proposition that this court may strike a noncomplying brief, but that sanction applies only to the form requirements of that particular rule. However, we agree with County defendants that the reply brief raises many arguments that were not raised in its opening brief or before the trial court. We do not consider these arguments. (Mansur v. Ford Motor Co. (2011) 197 Cal.App.4th 1365, 1387-1388; Authority for California Cities Excess Liability v. City of Los Altos (2006) 136 Cal.App.4th 1207, 1216, fn. 2 ["For sound policy reasons, we disregard claims raised for the first time in an appellate reply brief where the appellant makes no attempt to show good cause for failing to raise the issue in the opening brief."]; L. Byron Culver & Associates v. Jaoudi Industrial & Trading Corp. (1991) 1 Cal.App.4th 300, 306, fn. 4 [specific argument never raised before the trial court cannot be raised for the first time on appeal].)
DISPOSITION
We construe the trial court's order granting summary judgment in favor of County defendants as a judgment. So construed the judgment is affirmed. Zimpel and County shall recover their costs on appeal.
/s/_________
Miller, J. We concur: /s/_________
Richman, Acting P.J. /s/_________
Stewart, J.