Opinion
H040467
01-24-2017
JUAN MARTINEZ, Plaintiff, Cross-defendant and Appellant, v. CAMPBELL TOWING, INC., Defendant, Cross-complainant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. 111CV200699)
On a rainy rush hour morning on April 20, 2010, Juan Martinez (then 31) was driving southbound on Highway 87 when his truck hydroplaned and crashed into the median barrier. Martinez was uninjured, and his truck, with the assistance of California Highway Patrol (CHP) officers, was transported to the right shoulder by a tow truck owned and operated by Campbell Towing, Inc. (Campbell Towing). That tow truck was operating under the Freeway Safety Patrol (FSP) program. After moving Martinez to the shoulder, the CHP officers and the Campbell Towing driver left the scene. Approximately 20 minutes later, a second tow truck driver, who had been called by Martinez, arrived to tow Martinez's disabled truck off the freeway. While he was showing the second tow truck driver the spare tire that—per a CHP officer's instructions to Martinez—needed to be secured before his truck was towed off the freeway, Martinez was struck by a vehicle driven by Laniesha Robledo, who also lost control of her car due to the inclement weather conditions. Martinez was severely injured.
The FSP program is a statutory creation under which motorists are provided free emergency roadside help on the busiest highways in this state. (See Sts. & Hy. Code, § 2560 et seq. (the Freeway Patrol Service Act) The program is administered jointly by the CHP, the California Department of Transportation (Caltrans), and a regional or local entity. The regional or local entity contracts with specific FSP operators providing towing or emergency road service to motorists. (See Veh. Code, § 2430.1.)
Martinez filed a lawsuit against Robledo, the CHP, Caltrans, and fictitious parties. Nearly a year later, he amended his complaint to name Campbell Towing, previously sued as a fictitious defendant. Campbell Towing moved for summary judgment, asserting, among other things, that it owed no duty to Martinez because any duty terminated after Martinez refused service from the FSP tow driver and the driver left the scene while Martinez waited for his own tow truck. Alternatively, Campbell Towing argued that it owed no duty once Martinez's own towing company arrived and took control of the scene. Campbell Towing contended further that its conduct was not the proximate cause of Martinez's injuries. The court granted the motion for summary judgment.
On appeal, Martinez claims that the right shoulder of the freeway where Campbell Towing placed him and his truck was not a safe place. He contends further that Campbell Towing's driver failed to follow a CHP officer's instructions to wait with Martinez, and to tow Martinez off the freeway if the second tow truck did not arrive within 10 minutes. He therefore argues there were triable issues of fact as to whether Campbell Towing breached a duty of care to Martinez that precluded the granting of summary judgment.
Because our de novo review of the summary judgment order requires that we consider only admissible evidence, we first address Campbell Towing's numerous objections below to evidence submitted by Martinez—evidentiary objections upon which the trial court did not rule. Based upon the admissible evidence submitted by the parties, we conclude there were triable issues of material fact as to whether Campbell Towing breached a duty of care to Martinez that precluded the granting of summary judgment. We will therefore reverse the judgment entered on the summary judgment order.
PROCEDURAL BACKGROUND
I. Complaint
On May 11, 2011, Martinez filed a form complaint for personal injuries against Robledo, the CHP, Caltrans, and fictitious parties, alleging four causes of action. He alleged that he had filed timely a government claim that was rejected on November 18, 2010. Martinez amended his complaint on April 19, 2012, naming Campbell Towing as a defendant previously designated by the fictitious name of Doe 2.
As relevant here, Martinez alleged in the fourth cause of action of the complaint that the fictitious defendants, including Doe 2, were employees of the CHP acting within the course and scope of their employment. On April 20, 2010, Martinez was driving southbound on Highway 87 near the Curtner Avenue exit when, due to rainy conditions, his vehicle hydroplaned and became lodged in the center divider of the highway. Martinez alleged that he was assisted by an agent of the CHP in towing his vehicle a short distance to the freeway's shoulder. Martinez was then left by the CHP on the shoulder in rainy conditions that had caused other motorists to hydroplane, notwithstanding that he was situated close to an offramp and could have readily been taken off the freeway to safety. Thereafter, while Martinez was standing to the rear of his vehicle, he was struck by another car operated by Robledo, who also lost control of her vehicle when it hydroplaned. He sustained serious injuries and other damages. According to the government claim he filed (a copy of which was attached to the complaint), Martinez lost his left leg below the knee, sustained a broken pelvis, a "destroyed" spleen, and injuries to his ribs and lungs. He also lost his job.
Martinez alleged that the CHP and its agents were negligent because it was foreseeable, in light of weather and road conditions, that another vehicle would hydroplane and cause an additional accident. He alleged that the CHP and its agents owed a duty of reasonable care to him to not expose him to an unreasonable risk of injury, and they breached that duty by leaving him on the shoulder rather than tow him to safety to the offramp a short distance away.
II. Summary Judgment Motion
In July 2013, Campbell Towing moved for summary judgment, pursuant to Code of Civil Procedure section 437c. It argued, among other things, that it owed no duty to Martinez, because any duty terminated after Martinez refused service and the Campbell Towing driver left the scene approximately 30 minutes before the accident in which Martinez was injured. Campbell Towing argued further that it owed no duty once Martinez's own towing company arrived and took control of the scene. It contended further that it was not the proximate cause of Martinez's injuries as a matter of law because he (1) had no expectation that Campbell Towing would tow him off the freeway, (2) refused further help from Campbell Towing after being transported to the shoulder of the freeway, (3) was not injured while under the care of Campbell Towing, (4) was aware of the risk associated with being stranded on the side of the road, and (5) voluntarily left a position of relative safety—in the cab of the tow truck he had called—to expose himself to the peril of oncoming traffic.
All further statutory references are to the Code of Civil Procedure unless otherwise specified.
Martinez opposed the motion. He argued, among other things, that there was a factual dispute as to whether he refused service from the FSP operator, Campbell Towing. Martinez asserted that he in fact twice asked to be transported off the freeway. Martinez argued further that a CHP officer ordered the Campbell Towing driver to stay with Martinez and to tow Martinez's truck off the freeway if his own tow truck did not arrive within a few minutes. He asserted that, as the responding FSP tow operator, Campbell Towing had a "special relationship" with him, and that it was a common carrier owing Martinez a duty of care to provide safe carriage to him as its passenger. Martinez thus contended that triable issues of fact existed as to whether Campbell Towing owed a duty of care to him, whether it breached that duty of care, and whether such breach was a proximate cause of his injuries.
Defendants filed a reply, including voluminous objections to evidence submitted by Martinez. After a hearing, the court entered a written order on November 1, 2013, granting Campbell Towing's motion for summary judgment (Order). The court concluded that the undisputed evidence showed "that [Campbell Towing] did not breach any duty owed to [Martinez] and [he] did not incur any damages as a result of [Campbell Towing's] purported negligence." Martinez filed a timely appeal.
DISCUSSION
I. Appealability
Martinez stated in his notice that the appeal was from the "[j]udgment after order granting a summary judgment motion," and he referenced a judgment or order dated November 1, 2013. The document so referenced was apparently the Order. But the record fails to include a judgment that may have been thereafter entered on that Order. An order granting summary judgment is not appealable. (§ 437c, subd. (m)(1); see Saben, Earlix & Associates v. Fillet (2005) 134 Cal.App.4th 1024, 1030.)
Although Campbell Towing has not raised a challenge that the appeal is from a nonappealable order, "[t]he existence of an appealable judgment is a jurisdictional prerequisite to an appeal. A reviewing court must raise the issue on its own initiative whenever a doubt exists as to whether the trial court has entered a final judgment or other [appealable] order." (Jennings v. Marralle (1994) 8 Cal.4th 121, 126-127.) Here, although the appeal is from the nonappealable summary judgment Order, we may invoke our power to save the appeal where a judgment is later entered on the summary judgment order; in that instance, we may construe the notice as an appeal from the judgment. (Mukthar v. Latin American Security Service (2006) 139 Cal.App.4th 284, 288 (Mukthar).)
Although the record does not include a judgment, the appellant's appendix contained the superior court docket entries, which included an entry for "Cv Judgment" filed November 20, 2013. We have requested and obtained from the superior court a copy of that document, which shows that a judgment was entered on the Order in favor of Campbell Towing on November 20, 2013. We take judicial notice of that judgment pursuant to Evidence Code section 459, subdivision (a). We will therefore treat the appeal as having been taken from this judgment entered on the summary judgment Order (Mukthar, supra, 139 Cal.App.4th at p. 288), and we will disregard the irregularity of the notice of appeal.
II. Summary Judgment Motions Generally
"The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) As such, the summary judgment statute, section 437c, "provides a particularly suitable means to test the sufficiency of the plaintiff's prima facie case and/or of the defendant's [defense]." (Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 203.)
Summary judgment is appropriate where "the action has no merit or that there is no defense to the action or proceeding." (§ 437c, subd. (a)(1).) The moving party must through its separate statement identify each of the material facts it contends are undisputed and specifically refer to the supporting evidence. (§ 437c, subd. (b)(1).) "The materiality of a disputed fact is measured by the pleadings." (Conroy v. Regents of University of California (2009) 45 Cal.4th 1244, 1250 (Conroy); see also Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 648.)
The moving party "bears the burden of persuasion that there is no triable issue of material fact and that he [or she] is entitled to judgment as a matter of law." (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850, fn. omitted.) A defendant moving for summary judgment must "show[ ] that one or more elements of the cause of action . . . cannot be established [by the plaintiff], or that there is a complete defense to that cause of action." (§ 437c, subd. (p)(2); see also Aguilar v. Atlantic Richfield Co., at p. 853.) The defendant " 'need not support his [or her] motion with affirmative evidence negating an essential element of the responding party's case. Instead, the moving defendant may . . . point to the absence of evidence to support the plaintiff's case.' " (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 780 (Saelzler).) A moving defendant may meet this burden of showing, under section 437c, subdivision (p)(2), that one or more elements of the plaintiff's claim "cannot be established" by, for instance, presenting (1) undisputed facts that "prove the contrary of the plaintiff's allegations as a matter of law" (Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1597); (2) evidence "that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he [or she] has discovered nothing" (Aguilar v. Atlantic Richfield Co., at p. 855, fn. omitted); (3) admissions in the plaintiff's own discovery responses that disprove an essential element of its claim (Villa v. McFerren (1995) 35 Cal.App.4th 733, 749); or (4) the plaintiff's "factually devoid discovery responses" from which it can be inferred that the plaintiff cannot establish one or more elements of its claim (Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590).
If the moving defendant meets its burden of showing evidence "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 . . . the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The plaintiff . . . shall not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists 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." (§ 437c, subd. (p)(2); see Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 849.) And the evidence submitted, as is the case with the moving party's evidence, must be admissible. "[A] party 'cannot avoid summary judgment by asserting facts based on mere speculation and conjecture, but instead must produce admissible evidence raising a triable issue of fact. [Citation.]' [Citation.]" (Dollinger DeAnza Associates v. Chicago Title Ins. Co. (2011) 199 Cal.App.4th 1132, 1144-1145.)
Evidentiary objections "shall be deemed waived" unless they are made at the hearing on the summary judgment motion. (§ 437c, subd. (b)(5).) Each objection to evidence should include the specific ground and should be tailored to the evidence deemed objectionable. (See Cole v. Town of Los Gatos (2012) 205 Cal.App.4th 749, 764 [failure to cite Evid. Code, § 801 in objecting to expert declaration and "failure to make a coherent argument in support of the objection should be viewed as an abandonment of that objection"].) The trial court is required to expressly rule on the parties' evidentiary objections. (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 532 (Reid).) If it fails to do so, the parties' "objections are preserved on appeal." (Ibid.)
Under an amendment to section 437c that became effective January 1, 2016—after the trial court heard the instant motion—the trial "court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review." (§ 437c, subd. (q); see 2015 stats., ch. 161, § 1, pp. 1838-1847.)
III. Standard of Review
Because summary judgment motions involve pure questions of law, we review independently the granting of summary judgment to ascertain whether there is a triable issue of material fact justifying reinstatement of the action. (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142.) In doing so, we "consider[] 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.]" (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.)
In our independent review of the granting of summary judgment, we conduct the same three-step procedure employed by the trial court. First, "we identify the issues framed by the pleadings because the court's sole function on a motion for summary judgment is to determine whether there is a 'triable issue as to any material fact' (§ 437c, subd. (c)), and to be 'material' a fact must relate to some claim or defense in issue under the pleadings. [Citation.]" (Zavala v. Arce (1997) 58 Cal.App.4th 915, 926.) Second, we examine the motion to determine whether it establishes facts justifying judgment in the moving party's favor. (Chavez v. Carpenter (2001) 91 Cal.App.4th 1433, 1438.) Third, we scrutinize the opposition—assuming movant has met its initial burden—to "decide whether the opposing party has demonstrated the existence of a triable, material fact issue [to defeat summary judgment]. [Citation.]" (Ibid.) We need not defer to the trial court, and we are not bound by the reasons in its summary judgment ruling; we review the ruling of the trial court, not its rationale. (Kids' Universe v. In2Labs (2002) 95 Cal.App.4th 870, 878.)
As we noted in Pipitone v. Williams (2016) 244 Cal.App.4th 1437 (Pipitone), although the California Supreme Court has not definitively identified the proper standard of review of a trial court's rulings on evidentiary objections in connection with a summary judgment motion, it has suggested a de novo standard by observing: " ' "Because summary judgment is decided entirely on the papers, and presents only a question of law, it affords very few occasions, if any, for truly discretionary rulings on questions of evidence. Nor is the trial court often, if ever, in a better position than a reviewing court to weigh the discretionary factors." ' [Citation.]" (Id. at p. 1451, quoting Reid, supra, 50 Cal.4th at p. 535.)
As we discuss below, the only affirmative evidentiary rulings made by the trial court concerned the parties' respective requests for judicial notice of declarations previously filed in the case. We conclude that the trial court erred in denying the judicial notice requests. Moreover, we observe that the Supreme Court in Reid held that when a trial court fails to expressly rule on evidentiary objections properly presented in a summary judgment motion, they are preserved for appeal and the objections are presumed to have been overruled by the trial court. (Reid, supra, 50 Cal.4th at pp. 533-534.) But the court held further that in such an instance in which the trial court failed to rule on evidentiary objections, "because there was no exercise of trial court discretion, the Court of Appeal ha[s] no occasion to determine whether the trial court abused it." (Id. at p. 535.) Thus, here, since (as we discuss, post), there were numerous evidentiary objections made by Campbell Towing upon which the trial court failed to rule, we consider such preserved evidentiary objections de novo. (Ibid.)
"In determining whether a triable issue was raised or dispelled, we must disregard any evidence to which a sound objection was made in the trial court, but must consider any evidence to which no objection, or an unsound objection, was made. [Citations.] Such evidentiary questions, however, are subject to the overarching principle that the proponent's submissions are scrutinized strictly, while the opponent's are viewed liberally." (McCaskey v. California State Automobile Assn. (2010) 189 Cal.App.4th 947, 957 (McCaskey).)
IV. Campbell Towing's Summary Judgment Motion
A. Campbell Towing's Moving Papers
1. Martinez's Deposition Transcript Excerpts
At approximately 7:00 a.m. on April 20, 2010, Martinez was driving his Ford pickup truck on his way to work in the heavy rain southbound on Highway 87. As he was approaching the Curtner Avenue exit on a curve and incline, his truck began to skid to the left; it traveled from the number two lane across the carpool lane and the struck the concrete median barrier. The back bumper of the truck became lodged on the top of the barrier. Martinez was not injured during this initial incident.
Two CHP vehicles arrived at the scene shortly after this incident. Martinez told one of the officers that he had already called a towing company to assist him, the company had charged his debit card, and a driver was on the way. Within a few minutes of the arrival of the CHP vehicles, a tow truck from Campbell Towing arrived on the scene. Martinez knew that this truck was not from the towing company he had called; rather, he recognized it as a tow truck of the type that moved cars involved in freeway accidents out of the way of oncoming traffic. One of the officers instructed Martinez to get into the passenger side of the Campbell Towing truck and told him that it was going to tow him from the middle of the highway over to the right shoulder. The tow truck then moved Martinez's truck over to the shoulder while the CHP officers stopped traffic. His truck, which was not drivable, was placed on gravel outside of any traffic lanes. One CHP patrol car left the scene after Martinez's truck was moved. Martinez started to exit his truck, and an officer instructed him to remain inside while he waited for the tow truck driver Martinez had called. The CHP officer told Martinez he had to leave to take care of another accident. The CHP officer and the tow truck driver left the scene at approximately the same time.
After the CHP officer and the Campbell Towing driver left, Martinez waited inside the passenger's side of his truck. He did this because he had learned on the news that this was the safe action to take when a person is in an accident and on the freeway shoulder. A second tow truck driver, Fernando Aldama—the one Martinez had called— arrived at the scene approximately 15 to 20 minutes later. Martinez exited his truck on the right side and spoke with Aldama while he hooked up Martinez's truck. Martinez then got into the passenger's side of the cab of Aldama's tow truck, thinking that this would be a safe location. When Aldama returned to the cab, Martinez asked him if he had secured the spare tire. (Martinez had asked him previously to do this, because the CHP officer had told Martinez "it was [his] responsibility.") Aldama responded in a way that showed he had not done so. Aldama then exited the truck, and Martinez got out and showed him the spare tire that needed to be secured. When Aldama went to get his tools out of the tow truck, Martinez was struck by a car and lost consciousness.
The record provides little information regarding Aldama, and Martinez did not identify him by name in his declaration or in the excerpts of his deposition submitted in connection with the motion. But he was identified in Campbell Towing's moving papers as the second tow truck driver and as a cross-defendant in the action, and Martinez does not dispute this identification.
2. Esquenazi Declaration
Leon Esquenazi declared that he had worked in the towing industry for approximately 30 years and had worked as a manager for Campbell Towing since 1991. He had continuously overseen Campbell Towing's involvement in the FSP program since 1993, was familiar with its policies, procedures and regulations, and had attended numerous FSP training sessions.
Esquinazi explained that an FSP operator could neither take a motorist to any place he or she chose, nor provide other private towing company services, such as recommending a mechanic to a motorist or tow a motorist to a mechanic's facility. He stated: "When a[n] FSP operator encounters a motorist that has their [sic] own private assistance there or en route, refuses or declines service or is otherwise no longer needed at a scene, the FSP operator is to immediately leave and continue freeway patrol duties." He declared further that taking a vehicle involved in an accident to a " 'drop location' "—one that is off the freeway, on surface streets—was against FSP policy. Esquinazi opined that Steven Pauley, the Campbell Towing FSP operator in this instance, complied with the policies procedures, and directives of the FSP program.
The identity of the driver of the Campbell Towing truck that responded to the scene was not identified in the summary judgment motion, but, based upon deposition excerpts submitted in Martinez's opposition, we have ascertained that it was Steven Pauley. We will refer to Campbell Towing's driver by name, regardless of whether the declarant or deponent did so.
3. Officer Kroon Declaration
In a declaration filed in the action in support of the CHP's earlier-filed motion for summary judgment, CHP Officer Nieko Kroon stated that on the day of the accident he was working in San Jose and assigned to an area that included Highway 87. His partner on that day was Officer Christopher Toland. They were dispatched at approximately 6:36 a.m. "to the scene of solo vehicle spin-out in the fast lane (Lane #1 when numbering lanes from left to right) of Southbound Highway 87, just North of the Curtner Avenue off ramp." Upon arrival at the scene, Officer Kroon observed that Martinez's truck had apparently spun out because the highway was wet; the rear of the truck was stuck on the center divider and the front end was blocking traffic in the number one lane. Officers Kroon and Toland "coordinated with a Freeway Service Patrol ('FSP') tow truck that had arrived" in moving Martinez's truck to the right shoulder of the highway. They followed the FSP tow truck to the shoulder, where it positioned Martinez's truck safely in a 14-feet wide turnout area.
The CHP officers were then called to another accident scene and left at approximately 7:00 a.m. Before leaving, Officer Kroon "confirmed with Mr. Martinez that it was his desire to refuse the services of the FSP tow truck and instead, wait for the tow truck he had called." Officer Kroon instructed Martinez to remain in his truck until the arrival of the tow truck he had called.
Officer Kroon explained that the FSP program is a project involving the CHP, the Metropolitan Transportation Commission Service Authority for Freeways and Expressways (MTC SAFE), and Caltrans under which private tow companies "are under contract with MTC SAFE to provide continuous patrol service during morning and evening commute hours on designated portions of the Bay Area's most congested roadways. FSP drivers provide on-the-spot assistance to motorists free of any charges or tips." The FSP program is intended, among other things, to relieve traffic congestion and promote safety by clearing accidents.
B. Martinez's Opposition
1. Martinez Declaration
Martinez declared that he was driving southbound on Highway 87 on his way to work on April 20, 2010, when he lost control of his truck and skidded into the median barrier. His bumper was lodged on the barrier. CHP officers arrived after several minutes, as did a tow truck—which was other than the one he had called—and which he understands to have been an FSP truck "employed to help people get off the freeway." After dislodging Martinez's truck from the barrier, it was determined that it was not drivable. Martinez asked one of the CHP officers if he could be towed off the freeway. The officer replied he could not, that he could move Martinez's truck to the right shoulder, and Martinez would need to wait for his own tow truck to transport him off the freeway. The officer also instructed Martinez that he would need to secure his spare tire before he left the freeway, and that Martinez would be responsible for any accidents caused by it falling off onto the roadway. The CHP officer instructed Martinez to get into the cab with the FSP tow truck driver while his truck was towed to the shoulder. Martinez complied. When he got into the tow truck cab, he asked Pauley if he would tow him off the freeway. Pauley said he would tow him to the shoulder, and that Martinez would need to wait for his own tow truck driver to be towed off the freeway.
Although Martinez did not identify the officer by name, it is apparent from the record that the only CHP officer with whom he spoke was Officer Kroon.
After the FSP tow truck moved Martinez's truck to the shoulder, Pauley left the scene. (The CHP officers had left shortly before Pauley had unhitched Martinez's truck.) Martinez waited in his truck. Approximately 15 to 20 minutes later, the tow truck Martinez had called arrived. Martinez instructed the driver, Aldama, to secure the spare tire. Martinez waited in the cab of Aldama's truck while Aldama loaded Martinez's truck onto the tow truck. When Aldama returned, Martinez asked if he had secured the spare tire, and Aldama responded, " '[W]hat tire?' " Martinez then exited the truck with Aldama to show him the tire that needed to be secured. Shortly thereafter, Martinez was struck by another vehicle whose driver had lost control of her car in the rain.
Martinez had asked the CHP officer and Pauley to be taken off the freeway because he was concerned for his safety if he were left on the freeway, given the slippery roadway conditions, and he was also concerned that the tow truck service he had called would either not show up, or would be delayed in showing up. He was not told by either the CHP officers or Pauley that he had the option of having his truck towed off the freeway, and neither party offered to do so. Neither the CHP officers nor Pauley warned Martinez of any dangers associated with being in his truck on the shoulder, and they offered him no safety literature on the subject.
2. Officer Kroon Declaration/Deposition Excerpts
Martinez offered (as had Campbell Towing in its motion) the declaration of Officer Kroon filed in connection with the CHP's motion for summary judgment. In addition, Martinez submitted excerpts from Officer Kroon's deposition transcript.
Officer Kroon declared that before leaving the scene, he "asked" the Campbell Towing driver (Pauley) to wait with Martinez until the other tow truck arrived. Officer Kroon "told [Pauley] that if too much time passed, then [he] should tow Mr. Martinez's vehicle to the closest designated drop location." In his deposition, Officer Kroon explained that a 10-minute interval is the amount of time that may pass before a disabled vehicle must be transported by an FSP operator off the freeway to a designated drop zone. He stated in his declaration that "[t]he FSP drivers can perform a variety of [tasks] to help get disabled motorists [sic] back on the road. If the FSP driver cannot get a disabled motorist's [sic] vehicle operational within ten (10) minutes, the FSP drivers should attempt to tow the disabled vehicle to the nearest designated drop location."
3. Bowers Declaration
Albert Bowers was retained as an expert by counsel for Martinez. He is a licensed private investigator specializing in accident reconstruction and a retired CHP officer. While he was CHP Field Operations Officer (Lieutenant), he was responsible for the management of the FSP program for the Santa Cruz area.
Bowers opined that the location of Martinez's truck on the shoulder of the highway "created a substantial traffic hazard" under the rainy conditions existing at the time because it was parked less than 1.75 feet from the edge line. He also concluded, based upon his review of, among other things, deposition transcripts and declarations, that Campbell Towing violated FSP policies and procedures because of Pauley's (1) disobedience of a CHP officer's order to wait with Martinez and to tow him off the freeway if Martinez's own tow truck did not arrive in a few minutes; (2) leaving Martinez immediately after moving his truck to the shoulder, rather than staying with him, because after establishing contact with a motorist in a potentially dangerous situation, a prudent FSP driver should stay with the motorist until relieved by the CHP, by another tow company, or until the motorist is moved to a safer location; (3) refusing Martinez's request to tow him off the freeway, because a prudent FSP operator should never leave the scene when a motorist in need has requested help; (4) failing to warn Martinez of the dangers of staying on the freeway and failing to provide him with a safety brochure; and (5) using poor judgment by leaving Martinez on the shoulder, where the circumstances—placing Martinez in wet, rainy traffic conditions in rush hour traffic on the right shoulder very close to the line when the nearest drop zone was less than 200 yards away—dictated that a reasonable person would take Martinez to a safe drop zone.
V. Resolution of Evidentiary Objections
A. Background
Campbell Towing submitted a profusion of objections to Martinez's evidence in opposition to the motion. Its objections comprise over 100 pages of the appellate record. The objections ranged from ones of substance (e.g., absence of personal knowledge of Martinez's attorney to attest to accident events) to those that were simply frivolous (e.g., objection to Martinez's declaration in its entirety on the ground that it was "[i]rrelevant"). Courts have decried litigants' burying the motion judge and opposing counsel with excessive evidentiary objections in an effort to advance their position on summary judgment. (See, e.g., Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 254 (Nazir); Demps v. San Francisco Housing Authority (2007) 149 Cal.App.4th 564, 578.) Indeed, the California Supreme Court has cautioned counsel about engaging in the practice of objecting whenever possible in summary judgment motions: "We recognize that it has become common practice for litigants to flood the trial courts with inconsequential written evidentiary objections, without focusing on those that are critical. Trial courts are often faced with 'innumerable objections commonly thrown up by the parties as part of the all-out artillery exchange that summary judgment has become.' [Citation.] . . . To counter that disturbing trend, we encourage parties to raise only meritorious objections to items of evidence that are legitimately in dispute and pertinent to the disposition of the summary judgment motion. In other words, litigants should focus on the objections that really count. Otherwise, they may face informal reprimands or formal sanctions for engaging in abusive practices." (Reid, supra, 50 Cal.4th at p. 532, fn. omitted.)
While not the most extreme example of tactics in which a party bludgeons the opposition and the court with evidentiary objections so numerous and lengthy as to preclude, practically, any considered, meaningful, and complete response or ruling (see, e.g., Nazir, supra, 178 Cal.App.4th at p. 254 [moving parties' objections to plaintiff's evidence submitted in reply contained 764 objections in 324 pages]), Campbell Towing would have been well-served to heed the Supreme Court's admonition to "focus on the objections that really count." (Reid, supra, 50 Cal.4th at p. 532.)
Campbell Towing's objections included opposition to Martinez's request for judicial notice of four previously filed documents in this case in connection with the CHP's motion for summary judgment: (1) Officer Kroon's declaration, (2) Martinez's declaration, (3) Bowers's declaration, and (4) the court's order denying the CHP's motion for summary judgment. Additionally, Campbell Towing filed numerous objections to Martinez's declaration, the Bowers declaration, and the declaration of Martinez's counsel, Jesse Turner.
The trial court denied Martinez's request for judicial notice as to the three previously filed declarations and granted the request as to the order denying the CHP's motion for summary judgment. And the trial court failed to rule on any of the remaining evidentiary objections posed by Campbell Towing.
Campbell Towing reasserts its evidentiary objections on appeal. Campbell Towing argues correctly that its evidentiary objections upon which the trial court did not rule were properly preserved for appeal. (Reid, supra, 50 Cal.4th at pp. 534-535.)
As we noted above, the appellate court reviewing a summary judgment order considers only admissible evidence submitted in support of and in opposition to the motion. (Merrill, supra, 26 Cal.4th at p. 476; Dollinger DeAnza, supra, 199 Cal.App.4th at pp. 1144-1145.) We therefore address initially whether the court properly sustained Campbell Towing's objection to Martinez's request for judicial notice and consider de novo (to the extent appropriate for the resolution of this appeal) Campbell Towing's objections to Martinez's evidence upon which the trial court did not rule. Given the volume of Campbell Towing's evidentiary objections and the trial court's failure to rule on most of them, this detour from our consideration of the merits of the motion is, regrettably, a lengthy one.
B. Request for Judicial Notice (Officer Kroon Declaration)
Campbell Towing asserted below that the previously filed declarations, including one submitted by Officer Kroon, were not the proper subject of judicial notice because of the impropriety of the court's judicially noticing hearsay statements contained in declarations. The trial court, in denying the judicial notice request, stated that the declarations were "not proper subjects of judicial notice."
Before addressing whether the court erred in excluding the Kroon Declaration as proffered by Martinez, we highlight two anomalies relevant to our analysis. First, in objecting to the taking of judicial notice of the three declarations previously filed in connection with the CHP's summary judgment motion, Campbell Towing failed to mention that it itself had asked the court to take judicial notice of one of the documents, Officer Kroon's declaration. Statements made in Officer Kroon's declaration served in part as a factual basis for Campbell Towing's motion: It cited Officer Kroon's declaration in support of three of the undisputed material facts identified in the motion. One of those facts—oft-repeated in the motion, and identified by Campbell Towing in its reply filed below as "the most significant fact" (italics added)—was that before leaving the scene, the CHP (i.e., Officer Kroon) confirmed that Martinez was refusing further service from the FSP operator, Campbell Towing.
The second anomaly concerns the court's summary judgment order. The court unambiguously denied both Martinez's and Campbell Towing's requests for judicial notice that embraced the Kroon Declaration. But in granting summary judgment, the court specifically cited evidence adduced from that declaration as a material uncontroverted fact, namely, that "Officer Kroon confirmed that it was [Martinez's] desire to refuse the service of the FSP and wait for his tow truck driver that he had called." And the trial court cited the Kroon declaration in support of its conclusion that Campbell Towing had met its initial burden as the moving party by showing that Martinez's claims "lack[ed] merit because it did not breach its duty, and it was not the proximate cause of [Martinez's] injuries." Thus, Campbell was, in effect, successful both in offering (through judicial notice) the Kroon declaration in support of its motion and opposing Martinez's request that the court take judicial notice of the same declaration.
1. Judicial Estoppel
Given the inconsistent positions taken by Campbell Towing below with respect to the Kroon declaration, we address whether Campbell Towing is judicially estopped from contesting the admissibility of the Kroon declaration after having previously, in connection with the same motion, asserted that it was a proper subject of its own request for judicial notice.
" 'The gravamen of judicial estoppel is . . . the intentional assertion of an inconsistent position that perverts the judicial machinery.' [Citations.]" (Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 183 (Jackson).) The doctrine of judicial estoppel " ' "precludes a party from gaining an advantage by taking one position, and then seeking a second advantage by taking an incompatible position. [Citations.] The doctrine's dual goals are to maintain the integrity of the judicial system and to protect parties from opponents' unfair strategies. [Citation.]" (Aguilar v. Lerner (2004) 32 Cal.4th 974, 986.) It is "an equitable doctrine aimed at preventing fraud on the courts. It is applied to keep litigants from playing 'fast and loose with the court.' [Citation.]" (In re Marriage of Dekker (1993) 17 Cal.App.4th 842, 850.) And our high court has explained that " '[t]he doctrine [most appropriately] applies when: "(1) the same party has taken two positions; (2) the positions were taken in judicial or quasi-judicial administrative proceedings; (3) the party was successful in asserting the first position (i.e., the tribunal adopted the position or accepted it as true); (4) the two positions are totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud, or mistake." ' [Citations.]" (MW Erectors, Inc. v. Niederhauser Ornamental and Metal Works Co., Inc. (2005) 36 Cal.4th 412, 422 (MW Erectors).)
Here, finding that Campbell Towing is judicially estopped to challenge Martinez's proffer of the Kroon declaration where Campbell Towing itself had previously offered and relied upon that declaration in its motion would serve the dual goals identified in Aguilar v. Lerner, supra, 32 Cal.4th at page 986 of preserving the court system's integrity and protecting Martinez from his opponent's unfair strategies. (See People v. Castillo (2010) 49 Cal.4th 145, 158-170.) Simply stated, application of judicial estoppel would prevent Campbell Towing "from playing 'fast and loose with the court.' [Citation.]" (In re Marriage of Dekker, supra, 17 Cal.App.4th at p. 850.)
Further, it is clear that four of the five factors that the Supreme Court identified are "most appropriately" found in a case of judicial estoppel exist here. (See MW Erectors, supra, 36 Cal.4th at p. 422.) What is less clear, however, is whether the third factor—Campbell Towing's prior success in asserting its position—was satisfied. Since the court ultimately denied both Campbell Towing's and Martinez's requests for judicial notice of the Kroon declaration, it appears on the surface that Campbell Towing was never successful in asserting its original position that the document was admissible. But as noted above, despite ruling the Kroon declaration inadmissible in both parties' judicial notice requests, the court in fact considered the declaration for the purposes offered by Campbell Towing in granting summary judgment in its favor. Therefore, due to the peculiar circumstances presented here, Campbell Towing was in fact successful in asserting its original position, while also successful in asserting its later, contrary position. We therefore conclude that each of the five judicial estoppel factors is present here.
The application of the doctrine of judicial estoppel is discretionary, and need not necessarily be applied where all five factors are present. (MW Erectors, supra, 36 Cal.4th at pp. 422-423.) Here, we believe it an appropriate exercise of our discretion to apply the doctrine to preclude Campbell Towing from asserting contradictory positions regarding admissibility of the Kroon declaration because " '[i]t seems patently wrong to allow a person to abuse the judicial process by first [advocating] one position, and later, if it becomes beneficial, to assert the opposite.' [Citation.]" (Jackson, supra, 60 Cal.App.4th at p. 181.)
2. Kroon Declaration Improperly Excluded
Even if we were to conclude that Campbell Towing was not judicially estopped to object to Martinez's proffer of the Kroon declaration, we would nonetheless hold that the trial court erred in denying Martinez's request for judicial notice.
It is proper for the trial court to take judicial notice of the records of any court of record of any state of the United States. (Evid. Code, § 452, subd. (d).) Although judicial notice of other court records is permissive, under Evidence Code section 453, judicial notice is mandatory if a party requests it, gives all adverse parties sufficient notice of the request to permit a response to it, and provides the court with sufficient information to address the request. If the party requesting judicial notice of the matter, such as court records subject to judicial notice under Evidence Code section 452, subdivision (d), satisfies the requirements of Evidence Code section 453 and the matter is a proper subject of judicial notice, the court must grant the request. (See 2 Jefferson's California Evidence Benchbook (Cont.Ed.Bar 4th ed. 2016) § 49.29, p. 49-25.)
" ' "A court may take judicial notice of the existence of each document in a court file, but can only take judicial notice of the truth of facts asserted in documents such as orders, findings of fact and conclusions of law, and judgments." ' [Citations.]" (People v. Franklin (2016) 63 Cal.4th 261, 280.) Thus, while a court may take judicial notice of judicial documents, such as affidavits or declarations, "it may not judicially notice the truth of assertions in declarations or affidavits filed in court proceedings. (Whitehouse v. Six Corp. (1995) 40 Cal.App.4th 527, 538.) Stated otherwise, "the well-established principle [is] that courts may not take judicial notice of hearsay allegations . . . The truth of any factual matters that might be deduced from official records is not the proper subject of judicial notice. [Citation.]" (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 885.)
As noted, the trial court concluded that the Kroon declaration was "not the proper subject[] of judicial notice." Campbell Towing had argued that judicial notice was inappropriate, because the court could not judicially notice "the truth of hearsay statements in declarations." Although the court's specific reason for concluding that the declaration was not the proper subject of judicial notice is unclear, the ground urged by Campbell Towing was improper. While the court may not use judicial notice of court documents to prove the truth of disputed facts or statements contained in the document that are based upon inadmissible hearsay (see Bach v. McNelis (1989) 207 Cal.App.3d 852, 865), this principle is directed toward the use of the judicially noticed document by the court, not to whether it is proper to take judicial notice of the court-filed document. Therefore, while it would have been improper for the court to take judicial notice of the Kroon declaration and then use it as conclusive proof of truth of every matter asserted by Officer Kroon, it was entirely appropriate to take judicial notice of it and the otherwise admissible statements made by him under penalty of perjury as potentially relevant evidence concerning whether a triable issue of material fact existed with respect to Martinez's claim against Campbell Towing. (Cf. Hearn Pacific Corporation v. Second Generation Roofing Inc. (2016) 247 Cal.App.4th 117, 129-131 (Hearn Pacific) [in addressing motion to amend orders awarding attorney fees to name insurer as true obligee, trial court erred in excluding as evidence a declaration in support of summary judgment motion previously filed in case].)
Of course, any evidence offered in Kroon's declaration would be subject to the same admissibility requirements (e.g., relevance, competence, nonhearsay) as any other evidence submitted in connection with a summary judgment motion. (See § 437c, subd. (b)(5), (d).)
Since the declaration was a proper subject of judicial notice under Evidence Code section 452, subdivision (d), and since Martinez satisfied the requirements of Evidence Code section 453, judicial notice was mandatory. Accordingly, reviewing the court's evidentiary ruling de novo (see Reid, supra, 50 Cal.4th at p. 535; Pipitone, supra, 244 Cal.App.4th 1437, 1450-1452), it is clear that the trial court erred. But even if we were to apply the less exacting abuse of discretion standard in reviewing the trial court's ruling (see Shugart v. Regents of University of Cal. (2011) 199 Cal.App.4th 499, 505), we nonetheless would find error, because the court's ruling that the declaration was not a proper subject of judicial notice was contrary to applicable principles of law. " 'Action that transgresses the confines of the applicable principles of law is outside the scope of discretion and we call such action an "abuse" of discretion.' [Citation.]" (Costa Serena Owners Coalition v. Costa Serena Architectural Committee (2009) 175 Cal.App.4th 1175, 1203, quoting City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297.)
Indeed, Martinez's use of the judicial notice vehicle to submit the Kroon declaration in opposing summary judgment was unnecessary. There is an exception to the hearsay rule in law and motion proceedings for affidavits and declarations filed in the instant case. Section 2009 provides that "[a]n affidavit may be used . . . upon a motion." Declarations under penalty of perjury may be used in lieu of affidavits. (§ 2015.5.) And under section 437c, declarations are included among the types of evidence to be submitted in support of and in opposition motions for summary judgment. (§ 437c, subd. (b)(1), (2).) "It is not necessary [in connection with a law and motion matter] to ask the court to take judicial notice of materials previously filed in the case; you should simply call the court's attention to such papers." (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2016) ¶ 9:53.1a, p. 9 (I))-32.) Therefore, the court should have accepted the Kroon declaration proffered by Martinez as part of his evidence opposing the motion. (See Hearn Pacific, supra, 247 Cal.App.4th at pp. 129-131.)
C. Request for Judicial Notice (Martinez, Bowers Declarations)
Campbell Towing also opposed Martinez's request that the court take judicial notice of his declaration and the declaration of his expert, Bowers, filed previously in opposition to CHP's motion for summary judgment. The court denied judicial notice of the declarations because "they [were] not proper subjects of judicial notice."
The analysis above concerning judicial notice of the Kroon declaration applies equally here. The Martinez and Bowers declarations were proper subjects of judicial notice (Evid. Code, § 452, subd. (d)), and the trial court, upon proper notice and showing by Martinez, was required to grant the judicial notice request. (Evid. Code, § 453.) Moreover, the declarations were proper evidentiary submissions in connection with the instant motion, irrespective of whether judicial notice of them had been sought. (See §§ 437c, subd. (b)(2); 2009; 2015.5.) The trial court therefore erred in denying Martinez's request for judicial notice of these two declarations.
D. Martinez Declaration
Campbell Towing asserted nine enumerated objections, with multiple subparts, to Martinez's declaration filed in opposition to the motion. Its principal basis for the objection—asserted in five of the enumerated objections—was that specified passages of Martinez's declaration were in direct conflict with his deposition testimony, and therefore the former should be disregarded under D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1 (D'Amico).
1. D'Amico Objections
In D'Amico, supra, 11 Cal.3d 1, the Supreme Court held that a party opposing summary judgment may be bound by admissions he or she made previously in the case in sworn deposition testimony or responses to interrogatories or requests for admission. It reasoned that admissions, particularly if made in the context of formal discovery proceedings, are highly credible. (Id. at p. 22.) Finding that under certain circumstances the usual rule of liberally construing a party's declarations opposing summary judgment should be "relaxed or altered in their operation" (id. at p. 21), the Supreme Court explained that " '[w]here . . . there is a clear and unequivocal admission by the plaintiff, himself, in his deposition . . . we are forced to conclude there is no substantial evidence of the existence of a triable issue of fact.' [Citation.]" (Ibid., quoting King v. Andersen (1966) 242 Cal.App.2d 606, 610, original italics.)
Although the D'Amico rule has on occasion been applied expansively to exclude a party's declaration opposing summary judgment contradicting his or her prior discovery responses (see, e.g., Niederer v. Ferreira (1987) 189 Cal.App.3d 1485, 1503; Leasman v. Beech Aircraft Corp. (1975) 48 Cal.App.3d 376, 382), a number of courts have cautioned that the rule should be applied only to instances in which the opposing evidence represents a direct and unequivocal contradiction to that party's prior sworn admission of fact in the case. (See Ahn v. Kumho Tire U.S.A., Inc. (2014) 223 Cal.App.4th 133, 144-145 (Ahn); Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1523; Price v. Wells Fargo Bank (1989) 213 Cal.App.3d 465, 482 (Price) overruled on other grounds in Riverisland Cold Storage, Inc. v. Fresno-Madera Production Credit Association (2013) 55 Cal.4th 1169, 1182.) Properly applied, the D'Amico rule allows the trial court to disregard a party's declaration or affidavit only where it and the party's deposition testimony or discovery responses are " 'contradictory and mutually exclusive' [citation] or where the declaration contradicts 'unequivocal admissions' in discovery. [Citation.]" (Minish v. Hanuman Fellowship (2013) 214 Cal.App.4th 437, 460 (Minish).)
Here, Campbell Towing objected (Objection No. 1) that the passage in Martinez's declaration that " 'he believed that [the FSP tow truck] was there to assist [him] to get off the freeway' " was inconsistent with his deposition testimony in which he stated: " 'The first tow truck that showed up, from what I understand, all they're supposed to do is move accidented [sic] cars out of the way, and the second tow truck, I expected to see a tow truck different from the ones you see on the freeway.' " But Martinez also testified in his deposition that he asked one of the CHP officers and FSP operator Pauley (while Martinez was inside the truck being towed to the shoulder) if he could be taken off the highway; both responded "no, to wait for the one [Martinez] had called." Martinez's statement in his deposition, "from what I understand," could be construed as relating to the CHP officer's and Pauley's refusal of his requests that he be taken off the freeway, not as relating to his belief of the FSP tow truck's duties, generally. Reading Martinez's declaration in context with this deposition testimony, it is not so " 'contradictory and mutually exclusive' " (Minish, supra, 214 Cal.App.4th at p. 460) as to warrant disregarding the challenged passage of the declaration under D'Amico. "A summary judgment should not be based on tacit admissions or fragmentary and equivocal concessions, which are contradicted by other credible evidence." (Price, supra, 213 Cal.App.3d at p. 482.)
In its moving papers, Campbell Towing omitted page 50 of Martinez's deposition transcript in which he provided the critical testimony that he asked the CHP officer and Pauley, separately, to take him off the freeway and they both refused the request. In omitting this information, it appears that Campbell Towing's counsel, intentionally or otherwise, hid the ball when it continually asserted in its moving papers that Martinez "refused further service" from the FSP driver.
For the same reasons, we overrule Campbell Towing's objection under D'Amico that another passage of Martinez's declaration, in which he stated that he was " 'informe[d] and believe[d] that" the first tow truck was an FSP truck " 'employed to help people get off the freeway,' " allegedly contradicted his deposition testimony.
Campbell Towing also objected (Objection No. 3) to Martinez's declaring that " '[t]he reason why [he] asked the CHP officer and the Tow [sic] truck driver to get [him] off the freeway is because [he] was afraid of being left on the freeway without assistance in the slippery conditions and was fearful that the tow truck [he] had called may not show up, or may not show up for a long time.' " It argued this contradicted his deposition testimony that " '[he] was sure they [his private towing company he had called and that had charged his debit card] were coming for [him].' " On its face, the statement in Martinez's declaration is not contradictory. While the declaration and deposition testimony might subject Martinez to cross-examination, it is conceivable that two things about his state of mind at the time were equally true: (1) he was confident the private towing company he had hired and paid for would eventually appear at the site to assist him; and (2) he was concerned for his safety due to the prospect of his waiting on the shoulder for the towing company he had called in light of his proximity to oncoming traffic and the then-existing dangerous traffic conditions. The objection is overruled.
Further, Campbell Towing objected (Objection No. 7) to the statement in Martinez's declaration that " '[Pauley] left right after he unhitched [Martinez's] truck which was right after the CHP left the scene.' " It argued that this was inconsistent with his deposition testimony in which, responding to the question of whether the CHP officers or Pauley left the scene first, he stated: " 'Truthfully, I don't remember. I would say about the same time.' " On its face, taking only the first part of the deposition answer, it is inconsistent with Martinez's declaration. But the second part of his answer is not contradictory: "about the same time" and "right after [the first party left]" are sufficiently congruent that D'Amico should not apply to exclude the declaration. Moreover, because of the lack of clarity of Martinez's deposition answer (i.e., whether he had any specific recollection of the order in which the CHP officers and Pauley left), it was incumbent upon counsel appearing at the deposition to clarify the ambiguity.
Lastly, Campbell Towing objected (Objection No. 8) to Martinez's declaring " 'I stayed in my truck the entire time as instructed by the officer and because it was raining the entire time.' " Campbell Towing contended that this was contradicted by his deposition testimony that "that the only reason he waited in the cab of his truck was because he knew that this was a safe place to be, and that there were no other reasons he stayed in his truck." (Original underscoring.) As noted above, Martinez stated in his declaration that his reason for asking the CHP officer and Pauley if he could be taken off the freeway was that he " ' was afraid of being left on the freeway without assistance in the slippery conditions and' " that he might be kept waiting or possibly stranded by his private tow truck. Martinez also testified he was told by a CHP officer that he had to leave to address another accident and that Martinez should wait inside his truck for his tow truck to arrive. Viewing the entire context of Martinez's deposition testimony and declaration, we reject Campbell Towing's argument that Martinez's declaration regarding the reasons for waiting in his truck should be disregarded under D'Amico. (See Ahn, supra, 223 Cal.App.4th at p. 147 [summary judgment should not be granted under D'Amico "when the purported admissions are credibly contradicted or explained by other credible evidence in the record"].)
2. Vagueness and Ambiguity Objections
Campbell Towing asserted a series of "vague and ambiguous" objections to Martinez's declaration. These objections are not well taken. They relate for the most part to Martinez's use of the phrase "off the freeway" (e.g., " 'I believed that [the FSP tow truck] was there to assist me to get off the freeway' "), or the phrase "on the freeway" (e.g., Martinez was not given any literature by the CHP officer or Pauley " 'regarding the dangers of being on the freeway' "). These phrases must be considered in the context of Martinez's deposition testimony in which, in response to a question posed by counsel as to whether Martinez asked "if the initial tow truck could take [him] off the highway," Martinez stated that he asked this of both the CHP officer and Pauley, who both declined and stated that Martinez would need to wait for the private tow truck he had called. In a follow-up answer, Martinez testified that "[the CHP officer and Pauley] told [him] that the first tow was just to move [him] to one side. [He] had to wait for the second one to leave the highway." Therefore, in the context of this deposition testimony, Martinez's use of the phrases "off the freeway" and "on the freeway" are sufficiently clear and not objectionable.
Campbell Towing's remaining "vague and ambiguous" objection concerned Martinez's statement that he was not warned by the CHP or Pauley about " 'the dangers of being in [his] vehicle on the right shoulder.' " The objection lacks merit and is overruled.
E. Bowers Declaration
Preliminarily, we are compelled to describe the conundrum facing us in addressing Campbell Towing's objections to the declaration of Martinez's expert, Al Bowers. The objections were directed to 26 paragraphs of the 30-paragraph declaration and consisted of more than 600 individual objections. This harkens to the Supreme Court's criticism of the "disturbing trend" in summary judgment proceedings of burdening courts "with 'innumerable objections . . . thrown up by the parties as part of [an] all-out artillery exchange.' " (Reid, supra, 50 Cal.4th at p. 532.) We cannot and do not delineate and address each of the objections, but we highlight and resolve several of significance to our resolution of this appeal.
1. Authentication of Contract and FSP Manual
Bowers relied in significant part upon the purported FSP contract signed by MTC SAFE and Campbell Towing (showing effective dates within the date of the accident in question) and the provisions of the FSP Manual incorporated by reference into that contract; he attached the two documents as exhibits and referred extensively to them in his declaration. The FSP Manual itself is 85 pages. Campbell Towing objected to Bowers's reference to both documents on the basis (among other grounds) that Bowers could not and did not properly authenticate them. On appeal, Campbell Towing renews its argument that the contract and FSP Manual were inadmissible. Martinez does not address the admissibility of the FSP contract. His argument concerning the authentication of the FSP Manual—which is, at best, conclusory—is that it "was properly authenticated by Albert Bowers," who had significant qualifications with respect to the FSP program, and that Campbell Towing did not dispute that the FSP Manual was authentic.
On its face, Campbell Towing's argument has merit. Bowers did not declare that he was personally familiar with the specific FSP contract signed by Campbell Towing or that he had any personal knowledge of the contract attached to his declaration. Likewise, Bowers gave no indication—notwithstanding his stated prior experience with the FSP program in Santa Cruz County when he was a CHP officer—that he was personally aware that the FSP Manual attached to his declaration was the one that was referenced in the operative Campbell Towing FSP contract. (See Le Bourgeois v. Fireplace Manufacturers, Inc. (1998) 68 Cal.App.4th 1049, 1060 [trial court erred by failing to sustain objection to document submitted in opposition to summary judgment where declarant had no personal knowledge of it and otherwise did not properly authenticate it].) While the declarations of a party opposing summary judgment are liberally construed (McCaskey, supra, 189 Cal.App.4th at p. 957), "[t]his does not mean that courts may relax the rules of evidence in determining the admissibility of an opposing declaration. Only admissible evidence is liberally construed in deciding whether there is a triable issue." (Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 761, original italics.) The unauthenticated contract and FSP Operator's Manual attached to the Bowers declaration were inadmissible.
We reach this conclusion with reservation. Campbell Towing itself tendered the issues of its FSP contract and the standards of the FSP program in its motion. Campbell Towing admitted in its motion that it was in fact a part of the FSP program, and that its driver, Pauley, acted in the capacity of an FSP operator when it removed Martinez's vehicle from the median and towed it to the right shoulder. Further, the declaration of Campbell Towing's manager and expert, Esquenazi, referenced extensively FSP policies and procedures (although he did not attach or quote from the FSP Manual), and he opined that "[Pauley's] actions complied with the policies, procedures, and directives of the FSP program." Moreover, it is apparent that the FSP contract and FSP Manual attached to the Bowers declaration—their lack of proper authentication notwithstanding—were indeed genuine. The FSP contract attached to Bowers's declaration purports to have been signed by Campbell Towing and was effective at the time of the accident, and it was a document apparently produced in the litigation by the CHP in response to Martinez's document request. And in its reply, Campbell Towing did not deny that the documents were the operative contract and FSP Manual in effect at the time of the accident.
2. Hearsay Objections
Campbell Towing asserted a number of hearsay objections to various portions of Bowers's declaration. It objected to a recitation by Bowers of a number of facts he understood to be true with respect to the accident, including actions taken and statements made by three key participants: Martinez, Officer Kroon, and Pauley. These recited facts, which were the bases for Bowers's opinions, included that (1) Officer Kroon directed Pauley to tow Martinez's truck to a designated drop location off the freeway if the private towing company Martinez had called did not arrive in a few minutes; (2) Pauley left the scene approximately one minute after the CHP's departure without towing Martinez off the freeway; (3) Pauley left the scene because of a call from dispatch, rather than due to an order from a peace officer on the scene; (4) Martinez asked Pauley to be towed off the freeway but Pauley denied that request; (5) Pauley did not warn Martinez of the dangers of remaining on the freeway and did not provide Martinez with a safety brochure; and (6) based upon CHP Officer Toland's diagram, Martinez's truck was placed on the right shoulder less than 1.75 feet from the edge line.
The recurring issue of the use of hearsay by expert witnesses was recently addressed extensively by our high court in People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez). There, the Supreme Court considered whether a prosecution expert could relate case-specific hearsay evidence, including police reports concerning prior contacts between the police and the defendant, in support of his opinion that the defendant's crimes were committed for the benefit of a criminal street gang.
Our high court explained that while lay witnesses may ordinarily testify to matters within their personal knowledge (Evid. Code, § 702, subd. (a)), witnesses qualified as experts "are given greater latitude . . . . In addition to matters within their own personal knowledge, experts may relate information acquired through their training and experience, even though that information may have been derived from conversations with others, lectures, study of learned treatises, etc. This latitude is a matter of practicality." (Sanchez, supra, 63 Cal.4th at p. 675.) "The hearsay rule has traditionally not barred an expert's testimony regarding his general knowledge in his field of expertise." (Id. at p. 676.) But "an expert has traditionally been precluded from relating case-specific facts about which the expert has no independent knowledge. Case-specific facts are those relating to the particular events and participants alleged to have been involved in the case being tried. Generally, parties try to establish the facts on which their theory of the case depends by calling witnesses with personal knowledge of those case-specific facts. An expert may then testify about more generalized information to help jurors understand the significance of those case-specific facts. An expert is also allowed to give an opinion about what those facts may mean. The expert is generally not permitted, however, to supply case-specific facts about which he [or she] has no personal knowledge. [Citation.]" (Ibid., original italics.) Thus, an expert may be asked "to assume a certain set of case-specific facts for which there is independent competent evidence, then ask the expert what conclusions the expert would draw from those assumed facts. If no competent evidence of a case-specific fact has been, or will be, admitted, the expert cannot be asked to assume it. The expert is permitted to give his [or her] opinion because the significance of certain facts may not be clear to a lay juror lacking the expert's specialized knowledge and experience." (Id. at pp. 676-677.)
The Supreme Court went on to conclude that it was improper for an expert to testify "to case-specific out-of-court statements to explain the bases for his [or her] opinion [because] those statements are necessarily considered by the jury for their truth, thus rendering them hearsay." (Sanchez, supra, 63 Cal.4th at p. 684.) But it qualified that an expert is prohibited from "relat[ing] as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception." (Id. at p. 686.)
Applying Sanchez to the hearsay objections asserted by Campbell Towing here, we are guided by the distinction the high court made between case-specific facts that are not presented into evidence through proper channels (e.g., by percipient witnesses) and an expert's assumption of facts presented through other competent evidence that are utilized as a basis for the expert's opinions. It is clear that the facts recited by Bowers in support of his opinions were derived from declarations and deposition transcripts of percipient witnesses in the case and were thus matters which could be "independently proven by competent evidence." (Sanchez, supra, 63 Cal.4th at p. 686.) Thus, while the form of the declaration could be subject to some criticism, Bowers's recitation of the facts as he understood them should be construed as a mere recitation of assumed facts upon which his opinions were based, not as direct assertions of the truth of those facts. Therefore, based upon a liberal construction of Bowers's declaration (McCaskey, supra, 189 Cal.App.4th at p. 957), we overrule the hearsay objections.
3. Opinions Re Standard of Care
Campbell Towing also objected that Bowers "express[ed] opinions and argument that [sought] to usurp the role of the court and/or the jury." It contended that Bowers gave improper opinion evidence because he relied on the unauthenticated FSP Manual and FSP contract, offered a legal interpretation of the contract, and purported to define the scope of Campbell Towing's duty.
Bowers explained that he was a CHP officer for 30 years, and between 1992 and 1996, as CHP Field Operations Officer, he was involved in the management of the FSP program in the Santa Cruz area. In that capacity, he trained officers and sergeants in the implementation of contracts with FSP operators, addressed issues and disputes between FSP operators and citizens or officers, and familiarized himself with FSP policies and procedures. He declared that he had stayed current in his knowledge of those policies and procedures since he was involved with the program. Bowers, relying on the recited facts from depositions and declarations discussed above, opined that Campbell Towing, as an FSP operator, violated various FSP policies and procedures in its dealings with Martinez. These claimed violations included Pauley's refusal to tow Martinez off the freeway; failure to warn Martinez about the dangers of remaining on the shoulder of the freeway; failure to provide Martinez with a safety brochure; leaving Martinez on the shoulder of the freeway very close to the edge line during rush hour traffic with slippery road conditions, creating a risk of further accidents; leaving the scene after Martinez asked for help; and leaving the scene after Officer Kroon had instructed him to wait for Martinez's private towing service and to tow Martinez off the freeway if the second tow truck did not arrive within a few minutes.
We do not find the Bowers declaration to be unduly argumentative, or to constitute an attempt to usurp the role of the court or jury. (Cf. Summers v. A.L. Gilbert Co. (1999) 69 Cal.App.4th 1155, 1185 [expert's trial testimony criticized as the witness "advocating, not testifying"].) While, to be sure, there are statements that are argumentative and improper and will not be considered by this court, Bowers's opinions concerning claimed violations by Pauley of the FSP policies and procedure—based, in turn, upon his assumptions regarding facts he recited from percipient witnesses' declarations and depositions—were not improper. Rather, they supported the claim that Campbell Towing breached a duty to Martinez. And to the extent any of Bowers's statements purport to interpret Campbell Towing's FSP contract—a contract which we do not consider because it was not properly authenticated—we will disregard them.
For example, Bowers improperly opined that Pauley's leaving Martinez on the shoulder made a subsequent accident "foreseeable," and had Pauley "complied with this lawful order [by Officer Kroon], this accident would not have happened." (Underscoring omitted.)
Campbell Towing also asserted that Bowers improperly relied on the unauthenticated FSP Manual to "establish the standard of care owed by an FSP." Citing Minch v. Department of California Highway Patrol (2006) 140 Cal.App.4th 895, 907 (Minch), it contended that since the FSP Manual was not formally adopted in the manner required for statutes, ordinances and regulations as required by Evidence Code section 669.1, it cannot be used to establish a standard of care. Campbell Towing acknowledged, however, that under Minch, such a manual, if properly admitted, could "play a role in a negligence action . . . . [I]t may be admitted into evidence for the trier of fact's consideration in determining the issue of negligence if there otherwise is a duty." (Ibid.; see also Lugtu v. California Highway Patrol (2001) 26 Cal.4th 703, 720 (Lugtu) [CHP Officer Safety Manual "may be considered by the trier of fact in determining whether or not an officer was negligent in a particular case"].)
Here, as we have concluded, the FSP Manual attached to the Bowers declaration was not properly authenticated by him. Therefore—even if it might have been otherwise proper to consider a properly authenticated FSP Manual to assist "in determining whether or not [the FSP driver] was negligent in [this] particular case" (Lugtu, supra, 26 Cal.4th at p. 720)—we cannot consider Bowers's specific references to, and quotations of, the manual in his declaration. We nonetheless view Bowers's declaration as presenting some probative evidence on the question of whether Campbell Towing's driver, Pauley was negligent. Regardless of the specific FSP Manual provisions cited, Bowers opined, based upon his experience as a former CHP officer involved in the FSP program and his familiarity with FSP policies and procedures, that Pauley violated FSP standards in several respects. And we must consider Bowers's declaration in context: It was filed in response to a declaration by Campbell Towing's manager and expert, Esquenazi, who opined, based upon his familiarity with the FSP program's "rules, policies, regulations, and procedures," that Pauley's "actions complied with the policies, procedures, and directives of the FSP program."
"The rule that a trial court must liberally construe the evidence submitted in opposition to a summary judgment motion applies in ruling on both the admissibility of expert testimony and its sufficiency to create a triable issue of fact. [Citations.] In light of the rule of liberal construction, a reasoned explanation required in an expert declaration filed in opposition to a summary judgment motion need not be as detailed or extensive as that required in expert testimony presented in support of a summary judgment motion or at trial." (Garrett v. Howmedica Osteonics Corporation (2013) 214 Cal.App.4th 173, 189 [holding trial court abused its discretion by excluding declaration of expert filed in opposition to summary judgment].) Liberally construing the Bowers declaration (McCaskey, supra, 189 Cal.App.4th at p. 957), we conclude that it may appropriately be considered in addressing whether, assuming a duty existed, Pauley breached a duty of care to Martinez.
F. Turner Declaration
In the declaration of Martinez's counsel, Jesse Turner, he recited various matters to which percipient witnesses testified in deposition, and then referenced and attached the relevant excerpts from those depositions. Campbell Towing objected to Turner's declaration on the principal ground that Turner lacked personal knowledge of the matters recited in his declaration.
Statements in declarations that are not based upon the personal knowledge of the declarant may not be considered in connection with a motion for summary judgment. (S & H Ins. Co. v. California State Auto. Assn. Inter-Ins. Bureau (1983) 139 Cal.App.3d 509, 514.) Thus, had Turner merely related the substance of percipient witnesses' deposition testimony in his declaration, the objections by Campbell Towing would be meritorious. (See Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial, supra, ¶ 10:167, p. 10-68 [insufficient for attorney to report substance of deposition testimony; "proper practice is to quote verbatim what was said"].) But Turner also attached the relevant excerpts of the depositions he referred to in his declaration. Therefore, although the practice here of stating the supposed substance of what witnesses testified in deposition was improper and will be disregarded, the deposition excerpts themselves are properly before the court.
VI. Summary Judgment Was Improper
The elements of a negligence claim that must be established by a plaintiff are duty, breach, causation, and damages. (Conroy, supra, 45 Cal.4th at p. 1250.) Although the question whether a defendant was negligent is generally a question of fact for the jury, in situations "where reasonable jurors could draw only one conclusion from the evidence presented, lack of negligence may be determined as a matter of law, and summary judgment [may be] granted. [Citation.]" (Federico v. Superior Court (1997) 59 Cal.App.4th 1207, 1214 (Federico); see also Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 1000 (Flowers).) In establishing actual causation, the plaintiff asserting a negligence claim must show that the defendant's act or omission was a substantial factor in bringing about the injury. (Saelzler, supra, 25 Cal.4th at p. 778.) Thus, if the defendant demonstrates in its motion for summary judgment, through the evidence adduced in the case, that the plaintiff cannot reasonably expect to establish a prima facie case of causation, and that a prospective nonsuit motion by the defendant would inevitably be granted, "the trial court [would be] justified in awarding summary judgment to avoid a useless trial." (Id. at p. 768; see also Padilla v. Rodas (2008) 160 Cal.App.4th 742, 752.)
A. Duty
Martinez argued that Campbell Towing owed affirmative duties of care to him because it acted in the role of a common carrier. He argued further that by virtue of Campbell Towing's contract with MTC SAFE to act as an FSP operator in accordance with the provisions of the FSP Manual, a special relationship existed under which Campbell Towing was to provide protection to Martinez, under the circumstances, as a stranded motorist.
1. Common Carrier
Under California's statutory scheme, carriers of persons are treated differently, depending upon whether they are hired for pay or act gratuitously. "A carrier of persons 'without reward' is subject only to a duty to 'use ordinary care and diligence for their safe carriage.' [Citation.]" (Gomez v. Superior Court (2005) 35 Cal.4th 1125, 1130 (Gomez), quoting Civ. Code, § 2096.) But a carrier of persons for reward "must use the utmost care and diligence for [the] safe carriage [of its passengers, and] must provide everything necessary for that purpose, and must exercise to that end a reasonable degree of skill." (Civ. Code, § 2100; see also CACI No. 902.) Notwithstanding this heightened duty, a common carrier for hire is not an insurer of its passengers' safety. (Gomez, at p. 1130.) "Rather, the degree of care and diligence which they must exercise is only such as can reasonably be exercised consistent with the character and mode of conveyance adopted and the practical operation of the business of the carrier. [Citations.]" (Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 785 (Lopez).)
Civil Code section 2168 defines a common carrier as "[e]veryone who offers to the public to carry persons, property, or messages, excepting only telegraphic messages." Under the statute, therefore, "a common carrier . . . is any entity which holds itself out to the public generally and indifferently to transport goods or persons from place to place for profit. [Citations.]" (Squaw Valley Ski Corp. v. Superior Court (1992) 2 Cal.App.4th 1499, 1508.) Some examples of common carriers include railways (Metz v. California Southern R.R. Co. (1890) 85 Cal. 329); buses (Lopez, supra, 40 Cal.3d 780; streetcars or cable cars (Kline v. Santa Barbara etc. Ry. Co. (1907) 150 Cal. 741; Finley v. City and County of San Francisco (1952) 115 Cal.App.2d 116); taxicabs (Ingham v. Luxor Cab Co. (2001) 93 Cal.App.4th 1045 (Ingham)); elevators (Treadwell v. Whittier (1889) 80 Cal. 574); escalators (Vandagriff v. J.C. Penney Co. (1964) 228 Cal.App.2d 579); airlines (Smith v. O'Donnell (1932) 215 Cal. 714); ski resort chair lifts (Squaw Valley Ski Corp. v. Superior Court, supra, 2 Cal.App.4th 1499); and, in certain instances, amusement park rides (Gomez, supra, 35 Cal.4th 1125, 1141 ["operator of a roller coaster or similar amusement park ride can be a carrier of persons for reward"]; cf. Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1161-1162 [amusement park operator of bumper car ride not common carrier for hire]).
Relying principally on Ingham, supra, 93 Cal.App.4th at page 1051, Martinez argued below and contends here that Campbell Towing is—as was the defendant taxicab company in Ingham—a common carrier whose "duty of due care does not necessarily end when the passenger alights safely from the carrier's vehicle; it ends only ' "when the passenger is discharged into a relatively safe space." ' [Citations.]" Campbell Towing disputes that it was a common carrier, arguing that "the purpose of an FSP [operator] and the attributes of a common carrier are distinctly different, militating against any finding that an FSP [operator] is a common carrier." It asserts there is nothing in the statutes creating the FSP program that demonstrates that FSP operators are common carriers. Further, Campbell Towing argues that tow truck operators generally are not in the business of transporting passengers; rather they transport disabled vehicles and provide roadside assistance. And, it maintains, an FSP operator offers services even more limited than a private towing company because it is not hired by the individual motorist. Instead, under the program, the FSP operator provides a free service under which it patrols or is dispatched to designated sections of freeways.
The parties have cited no authority, and we are aware of none, concerning whether a private towing company—or, more specifically, a towing company under contract as an FSP operator—is a common carrier under California law. Because Civil Code section 2168 includes as a common carrier one "who offers to the public to carry persons [or] property," we see merit to the contention that a private towing service is a common carrier. (See Conger v. Cordes Towing Service, Inc. (Wash.1961) 365 P.2d 20, 22 [private towing company held "common carrier, engaged in the occupation of transferring things from place to place for hire or reward"].) But we acknowledge the differences pointed out by Campbell Towing between a private towing company and an FSP operator that may impact the common carrier analysis. And we observe that factual details concerning Campbell Towing's duties as an FSP operator—including the contractual provisions and FSP policies and procedures applicable to it as of the time of the accident—are not part of the record (given evidentiary objections which we have sustained) at this stage of the proceedings. But because, as we discuss, post, there were triable issues of fact as to whether Campbell Towing breached a duty of ordinary care to Martinez for which it was potentially liable, we need not decide at this juncture whether Campbell Towing was a common carrier subject to a heightened duty of care.
2. Special Relationship by Contract
Martinez also argues that Campbell Towing owed a duty of care to Martinez arising from contractual responsibilities it undertook as an FSP operator. Martinez contends that Campbell Towing had a "special relationship aris[ing] out of a contractual duty, [such that] the duty [was] owed not only to the parties to the contract but also to those persons intended to be benefited by the performance of the contract," namely, Martinez. (Seo v. All-Makes Overhead Doors (2002) 97 Cal.App.4th 1193, 1202-1203 (Seo); see also J'Aire Corp. v. Gregory (1979) 24 Cal.3d 799, 804 (J'Aire Corp.) [party not in privity under certain circumstances may recover against party who negligently performs contract resulting in plaintiff's injury].)
It is conceivable, if not likely, that the principles enunciated in J'Aire Corp. and Seo would apply here to result in finding a special relationship between Campbell Towing and Martinez as a result of the former's contractual relationship as an FSP operator for the benefit of motorists requiring emergency roadside assistance such as Martinez. As is the case with our common carrier analysis, however, our efforts to definitively resolve this issue are hampered because we do not have before us a binding FSP contract pertaining to Campbell Towing or applicable FSP policies and procedures effective at the time of the accident. We therefore do not decide the issue, as to do so is unnecessary to our resolution of the appeal. (Hiser v. Bell Helicopter Textron Inc. (2003) 111 Cal.App.4th 640, 655. [appellate courts generally "decline to decide questions not necessary to the decision"].)
3. General Duty of Care
"Everyone is responsible . . . for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person . . . ." (Civ. Code, § 1714, subd. (a).) "In other words, 'each person has a duty to use ordinary care and "is liable for injuries caused by his failure to exercise reasonable care in the circumstances . . . ." ' [Citations.]" (Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 771 (Cabral).) The existence of duty " 'in a particular case is a question of law to be resolved by the court.' [Citations.]" (Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 614.)
As the Cabral court explained, there are instances in which the court, as a matter of law, may find that a departure from this general rule of responsibility for want of ordinary care under section 1714 of the Civil Code is justified such that the defendant will be found to have "owed no duty to the plaintiff, or owed only a limited duty . . . on a more general[ized] basis suitable to the formulation of a legal rule." (Cabral, supra, 51 Cal.4th at p. 773, original italics; see also id. at p. 771.) As the Supreme Court explained further, certain considerations, "balanced together, may justify a departure from the fundamental principle embodied in Civil Code section 1714: 'the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.' [Citations.]" (Id. at p. 771, quoting Rowland v. Christian (1968) 69 Cal.2d 108, 113 (Rowland).)
Campbell Towing acknowledges in its appellate brief that it assumed a duty to Martinez by coming to his aid. It argues, however, that this duty "was not unlimited," and that the trial court properly found that Campbell Towing's "duty terminated once Martinez reached a place of relative safety," i.e., after he was transported to the right shoulder of the freeway and waited in the cab of his truck for the private tow truck he had hired.
We accept Campbell Towing's concession, supported by the record, that it owed a duty of care to Martinez by coming to his aid. We conclude from this record that this is not an appropriate case in which a balancing of the Rowland considerations justifies a departure from the fundamental principle of duty embodied in Civil Code section 1714. And we deem Campbell Towing's argument that its duty terminated to be one that concerns the question of breach of duty, rather than the existence of duty itself. As the Cabral court observed, "On the facts of a particular case, a trial or appellate court may hold that no reasonable jury could find the defendant failed to act with reasonable prudence under the circumstances. Such a holding is simply to say that as a matter of law the defendant did not breach his or her duty of care, i.e., was not negligent toward the plaintiff under the circumstances shown by the evidence." (Cabral, supra, 51 Cal.4th at p. 773, original italics.) Campbell Towing having owed a duty to Martinez, and the trial court having concluded as a matter of law that it did not breach that duty, we examine the correctness of that conclusion based upon the admissible evidence presented.
B. Breach of Duty
As a general rule, the question of breach of duty of care is a question of fact for determination by the jury. (McGarry v. Sax (2008) 158 Cal.App.4th 983, 994 (McGarry).) "If the circumstances permit a reasonable doubt whether the defendant's conduct violates the standard of due care, the doubt must be resolved by the jury as an issue of fact rather than of law by the court." (Nichols v. Keller (1993) 15 Cal.App.4th 1672, 1687.) And as the Supreme Court has explained, application of the principle that "one 'is required to exercise the care that a person of ordinary prudence would exercise under the circumstances' [citations] . . . is inherently situational[. Therefore], the amount of care deemed reasonable in any particular case will vary, while at the same time the standard of conduct itself remains constant, i.e., due care commensurate with the risk posed by the conduct taking into consideration all relevant circumstances. [Citations.]" (Flowers, supra, 8 Cal.4th at p. 997.)
Critical facts from the percipient witnesses raise an issue here as to whether Campbell Towing was negligent. They include: (1) Martinez asked Officer Kroon if he could be taken off the freeway by the FSP operator, and Officer Kroon responded that Martinez would have to wait for his own tow truck; (2) while he was in the cab of the FSP truck being transported to the shoulder of the freeway, Martinez asked Pauley if he would take him off the freeway, and Pauley responded that Martinez would have to wait for his own tow truck; (3) Martinez asked Officer Kroon and Pauley to be taken off the freeway because he was concerned for his safety in waiting on the shoulder, given the wet and congested road conditions and his uncertainty about whether his private towing company would be delayed or would not arrive; (4) Officer Kroon, before leaving the scene, ordered Pauley to wait with Martinez until the private tow truck arrived and if too much time passed before its arrival, to tow Martinez's disabled truck to the closest drop location; (5) Officer Kroon believed that 10 minutes was the maximum time a disabled vehicle should remain on the freeway shoulder before an FSP operator should take it to a designated drop zone; (6) Pauley left the accident scene immediately after unhitching Martinez's truck and shortly after the CHP officers had left; and (7) Pauley never asked Martinez if he wanted to be taken off the freeway. Indeed, a reasonable inference from Officer Kroon's testimony (facts (4) and (5), above) is that he did not consider the shoulder, given weather and traffic conditions, to be a safe place for Martinez to be.
We acknowledge that Officer Kroon in his declaration used the words "asked" and "told," respectively, with reference to his statements that Pauley should stay with Martinez and (if too much time passed) tow his truck to the closest drop location. Campbell Towing contended below that these were simply "requests and/or suggestions—not orders." Construing the evidence most favorably to Martinez, as we must (Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64), the statements by Officer Kroon to Pauley were, for purposes of the summary judgment motion, orders.
Campbell Towing below and on appeal places much emphasis on evidence, adduced through Officer Kroon's declaration, that Officer Kroon confirmed with Martinez before he left the scene that he was refusing further service from the FSP operator. It argued repeatedly below—and argues here—that this fact was "undisputed." This was not the case. Martinez presented evidence that he asked both Officer Kroon and Pauley to be taken off the freeway, but those requests were refused. Pauley never offered to tow Martinez off the freeway, and neither Pauley nor Officer Kroon told Martinez he had the option of being taken off the freeway. In light of this evidence, Martinez's having refused further service from the FSP operator was not an undisputed fact.
We note that in his response to Campbell Towing's separate statement of undisputed material facts (UMF), after asserting objections, Martinez responded, "substantially undisputed," with respect to UMF no. 16, which recited Officer Kroon's statement that he had confirmed that Martinez refused further service from the FSP operator. It is clear from the record that this was a typographical error. Viewing Martinez's response as a whole, there were multiple errors—his responses to many of the UMFs were transposed. From UMF no. 9 through UMF no. 25, Martinez went "off track": His responses to UMF nos. 9 through 25 were identified in his filing as responses to UMF nos. 10 through 26. Thus, Martinez's response to UMF no. 16, listed erroneously as his response to UMF no. 17, was: "Disputed. Plaintiff was never asked if he wanted towed [sic] off the freeway. Plaintiff requested Campbell Towing/FSP to tow him off the freeway and his request was flatly denied." We do not consider this mistake in Martinez's response to the separate statement as a judicial admission or concession that he refused service from the FSP operator. (See Wright v. Stang Manufacturing Co. (1997) 54 Cal.App.4th 1218, 1225, fn. 2 [obvious mistake in plaintiff's response to separate statement not treated as concession or judicial admission regarding issues of liability or causation]; see also Leep v. American Ship Management, LLC (2005) 126 Cal.App.4th 1028, 1040.)
Additionally, there was opinion evidence raising an issue concerning Campbell Towing's potential negligence in its acts and omissions toward Martinez. In response to affirmative opinions offered by Esquenazi that Campbell Towing's driver exercised due care, Martinez's expert, Bowers, opined that Pauley deviated from the FSP policies and procedures by, among other things, refusing Martinez's request to tow him off the freeway; disobeying a CHP officer's order to wait with Martinez and tow him off the freeway if his private tow service did not arrive in a few minutes; and leaving Martinez on the shoulder of the freeway in a potentially dangerous situation. With respect to Bowers's opinion regarding Pauley's failure to follow the order of a CHP officer, it is noteworthy that our Supreme Court recently discussed the CHP's duties relative to FSP operations. It explained that under the Freeway Patrol Service Act, the CHP's responsibilities include establishing training standards and training for FSP operators. (State ex rel. Dept. of California Highway Patrol v. Superior Court (2015) 60 Cal.4th 1002, 1012 (State ex rel. CHP), citing Veh. Code, §§ 2435, subd. (b), 2436.5.) And while "[t]he statutes do not state that CHP officers may direct tow truck drivers when an officer is present while roadside assistance is provided, . . . that right is fairly inferable . . . . [¶] . . . CHP's authority to direct FSP tow truck drivers in the field is an aspect of its ordinary duty to provide for public safety." (State ex rel. CHP, at p. 1012.)
In addition, Bowers—responding to Esquenazi's opinion that it was inappropriate for an FSP operator to tow collision-damaged vehicles off the freeway—opined that Esquenazi's view was contrary to FSP policy that an FSP operator must take into consideration the motorist involved in the accident contacted by the FSP operator and must take action designed to avoid freeway congestion that might lead to further accidents. Moreover, Bowers refuted Esquenazi's opinion that an FSP operator's towing of a disabled vehicle such as Martinez's to a designated drop location was an impermissible " 'secondary tow' " and was against FSP policies because leaving disabled vehicles off the freeway would constitute a nuisance to neighbors. Bowers responded that (1) transporting a disabled vehicle to a safe drop location was not a " 'secondary tow' " that was against FSP policies; and (2) there was no FSP policy prohibiting an FSP operator from towing disabled vehicles to designated drop locations off the freeway because of potential issues with neighbors. This opinion evidence is consistent with the Supreme Court's statement that "the tasks of FSP tow truck drivers . . . include 'changing a flat tire, "jump starting" a dead battery, repairing hoses, refilling radiators, and providing a gallon of fuel' as well as 'a tow to a predetermined safe location off the freeway.' [Citation.]" (State ex rel. CHP, supra, 60 Cal.4th at p. 1014, quoting stats. 2000, ch. 513, § 1, subd. (d), p. 3577, italics added.)
Triable issues of material fact precluded a finding that, as a matter of law, no reasonable jury could find that Campbell Towing breached its duty of care to Martinez. Therefore, the court erred in concluding that summary judgment was appropriate on this basis. (See Johnson v. Prasad (2014) 224 Cal.App.4th 74, 83 [trial court erred in granting summary judgment, holding that defendant landowner as matter of law was not negligent by failing to install perimeter fence around pool; jury question whether reasonably prudent person would have taken such precaution].)
C. Causation
Campbell Towing also argued below and asserts here that it cannot be liable for negligence because it did not cause the accident that resulted in Martinez's injuries. As is the case with breach of duty, causation is usually a question of fact to be decided by the jury. (McGarry, supra, 158 Cal.App.4th at p. 994; see also Nichols v. Keller (1993) 15 Cal.App.4th 1672, 1687 ["causation . . . is ordinarily a question of fact which cannot be resolved by summary judgment"].)
California courts have adopted the substantial factor test for cause-in-fact determinations. (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 968.) Under this test, a defendant's negligence may act in combination with another factor to cause the harm. "[I]f a defendant's negligence was a substantial factor in causing the plaintiff's harm, then the defendant is responsible for the harm; a defendant cannot avoid responsibility just because some other person, condition, or event was also a substantial factor in causing the plaintiff's harm; but conduct is not a substantial factor in causing harm if the same harm would have occurred without that conduct." (Yanez v. Plummer (2013) 221 Cal.App.4th 180, 187.) As the Supreme Court has held, " 'The substantial factor standard is a relatively broad one, requiring only that the contribution of the individual cause be more than negligible or theoretical.' [Citation.] Thus, 'a force which plays only an "infinitesimal" or "theoretical" part in bringing about injury, damage, or loss is not a substantial factor' [citation], but a very minor force that does cause harm is a substantial factor [citation]. This rule honors the principle of comparative fault. [Citation.]" (Bockrath v. Aldrich Chemical Co., Inc. (1999) 21 Cal.4th 71, 79 (Bockrath), quoting Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953.)
Contrary to Campbell Towing's assertion, on this record, causation cannot be resolved in its favor as a matter of law. Bowers opined that the placement of Martinez's truck on the freeway shoulder only 1.75 feet from the edge line, given the weather and traffic conditions, created a substantial traffic hazard. There is thus a factual question whether the FSP operator delivered Martinez to a safe location before leaving the scene. Further, it was reasonably foreseeable—in light of the conditions and the fact that Martinez himself had lost control of his vehicle—that another automobile might lose control in the rain and strike Martinez on the freeway's shoulder, whether directly or while he was in his truck. (Cf. Lugtu, supra, 26 Cal.4th at pp. 725-726 [plaintiffs were injured after CHP pulled over their car into highway median strip and were then rear-ended by vehicle straying from its lane; summary judgment on basis that CHP was not substantial factor causing plaintiffs' injuries was error].) And given that there is a triable issue of whether Campbell Towing breached its duty of care by, among other things, refusing Martinez's request to be taken off the freeway and, contrary to Officer Kroon's order, leaving him on the shoulder to wait by himself for the private towing service, it cannot be said that Campbell Towing's contribution to Martinez's injuries was merely " 'negligible or theoretical.' " (Bockrath, supra, 21 Cal.4th at p. 79.)
Campbell Towing emphasized in its motion that Martinez had testified in his deposition that he had believed at the time of the accident that the shoulder of the freeway represented a safe place for him to wait in his truck for the private towing company. It is apparent that this testimony was based upon Martinez's earlier deposition testimony that he had been instructed by Officer Kroon to wait in Martinez's truck for the private towing service. But irrespective of whether Martinez felt at the time that he was waiting in a place of relative safety, his subjective view at the time is not determinative of the issue of whether the area was, in fact, safe, nor of such issues as duty, breach of duty, and causation.
The high court's analysis in Cabral, supra, 51 Cal.4th 764 is illuminating. There, the plaintiff's husband, who was not intoxicated, was killed after he collided (due to having fallen asleep or because of an undiagnosed medical condition) with a stationary tractor-trailor rig. (Id. at p. 768.) The driver of the rig, Horn, had parked on the shoulder of an interstate highway to have a snack. (Id. at p. 768.) The plaintiff sued Horn's employer and recovered a judgment in which the jury allocated 90 percent fault to the decedent and 10 percent to the truck driver. (Ibid.) The Supreme Court rejected the defendant's contention that Horn could not be deemed to have caused the collision: "The negligent conduct plaintiff claimed caused her husband's death was Horn's stopping his tractor-trailer rig at the site. The counterfactual question relevant to but-for causation, therefore, is what would have happened if Horn had not stopped his tractor-trailer rig there . . . [¶] . . . Under the evidence at trial, a jury could find Horn's stop was a substantial factor in causing the collision whether or not it was made for an emergency." (Id. at pp. 785-786, original italics.)
Likewise, here, it was not a matter to be determined as a matter of law whether Campbell Towing's acts or omissions were a substantial factor in causing the ultimate collision in which Martinez was injured. Campbell Towing's argument that summary judgment on this basis was appropriate is without merit. (Lawrence v. La Jolla Beach and Tennis Club, Inc. (2014) 231 Cal.App.4th 11, 33 [causation properly decided as matter of law " 'only if, under undisputed facts, there is no room for a reasonable difference of opinion' "].)
DISPOSITION
The judgment entered on the underlying order granting summary judgment in favor of Campbell Towing is reversed.
/s/_________
WALSH, J. WE CONCUR: /s/_________
RUSHING, P.J. /s/_________
GROVER, J.
Judge of the Santa Clara County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.