Case Number: BC508242    Hearing Date: October 06, 2014    Dept: 91

The Motion by Defendants, Sterling Express Services, Inc. and Ignacio Castro, For Summary Judgment, filed on 5/27/14 is DENIED. Defendants have not met their burden of establishing they are entitled to judgment based on the material facts proffered, some of which are not established by the evidence cited or otherwise remain in dispute. Cal Code Civ Procedure § 437c(p)(2).

Plaintiff’s objections:

#7-8. SUSTAIN. The officer’s testimony as to cause of accident is an improper expert opinion.
Defendant cites a case in Reply contending that an officer is qualified as an expert. It is true that a police officer may qualify as an expert, but in the case cited, the officer still had to establish his qualifications for the court. The case does not state that police officers are automatically experts. All of the cases cited by Defendants involved qualifications that were established in the record.
Hart v. Wielt,4 Cal. App. 3d 224, 229(Cal. App. 3d Dist.1970).

#10. SUSTAIN. The traffic collision report is inadmissible. [“No such accident report shall be used as evidence in any trial, civil or criminal, arising out of an accident,”] Cal Veh Code §20013.

#11-14. SUSTAIN as to Castro’s deposition testimony. His declaration lacks foundation that he was driving a tractor-trailer at the time of the accident. He testified at deposition that he was driving just the tractor. No trailer. The Declaration conflicts with deposition testimony and may be disregarded by the court. D’Amico v. Board of Medical Examiners 11 Cal.3d 1, 21 (1974).] While Defendants regard this distinction as “nitpicky” (Reply 6:4), the actual configuration of Defendant’s vehicle is material to Defendants’ expert’s opinion of whether there would be evidence of the vehicle’s location at the time of the incident.

#17-18. SUSTAIN Lacks foundation for Defendant’s expert’s ultimate opinion who says he relied on his inspection of the tractor-trailer in part. The expert declares he inspected the tractor-trailer that Defendant was driving but testified at deposition that it was an “exemplar trailer.” Contradicts deposition testimony. D’Amico v. Board of Medical Examiners 11 Cal.3d 1, 21 (1974).

Defendant testified he was driving only a tractor, no trailer. Plaintiff’s Ex. 2, 45:11-20. Plaintiff’s Ex. 23, Levitt deposition, 11:19-21. The opinion lacks foundation, if Defendant’s expert was inspecting a completely different exemplar of what Defendant Castro was actually driving.

#19-20 SUSTAIN for the same reason as #17-18. The declaration contradicts the expert’s deposition testimony. He testified at deposition that there would not have been physical evidence if Castro had pulled into Plaintiff’s lane of travel. Plaintiff’s Ex. 23, 24:9-17. All other objections are OVERRULED.

The motion is DENIED as the material facts are in dispute. Some of the material facts proffered are not proved as they rely on inadmissible evidence, to which Plaintiff’s objections are sustained.

#7. Disputed. Whether or not Castro left his vehicle in the same position after the incident is disputed. Castro testified he drove up to the center of the intersection of Mission and Towne. Plaintiff’s Ex. 2, 52:4-53:7. He marked a map showing where he stopped. Plaintiff’s Ex. 26. He was in the intersection. This conflicts with Officer Rodriguez’s testimony, who stated that the vehicle was in the left turn pocket of Mission and Towne. Plaintiff’s Ex. 22, 70:17-71:4.

#9. Disputed to the extent that this fact implies that Castro’s vehicle was in the same position as when the accident occurred. Officer Rodriguez testified the vehicle was not impeding Towne Avenue, while Castro testified he had driven into the intersection past the left-turn pocket. Plaintiff’s Ex. 2, 52:4-53:7; Plaintiff’s Ex. 26; Plaintiff’s Ex. 22 70:17-71:4. Plaintiff testified that Castro had moved into northbound Towne and was “moving into my lane and space.” Defendant’s Ex. D, 31:15-17; 21:1; 27:9-13; 31:15-17.

#11 is not established by the evidence submitted. Officer Rodriguez testified as to what his report reflected. He did not testify that “Darvell never told Officer Rodriguez that the tractor-trailer ever pulled directly into Darvell’s path of travel.” Defendant’s Ex. B, 51:21-25.

#12 is not established by the evidence submitted. Officer Rodriguez testified that he did not note in the report that Defendant Castro moved into the oncoming traffic lane. This is different from the claim that Officer Rodriguez did not find any evidence that Defendant Castro pulled into the northbound lanes of Towne.

Andrew Levitt’s (defense expert) declaration is inadmissible as it lacks foundation. See Objections # 17 and #18 which are sustained. His ultimate opinion was that there was no evidence Defendant Castro pulled into Plaintiff’s lane of travel and obstructed that lane of travel. The inference is that Castro never blocked Plaintiff’s lane of travel. This opinion lacks foundation. He testified at deposition that there would not have been physical evidence if Castro had pulled into Plaintiff’s lane of travel. Plaintiff’s Ex. 23, 24:9-17.

Even if the evidence relied on by Defendants is admissible, it is in dispute. There is evidence that Castro moved into Plaintiff’s lane of travel based on Plaintiff’s testimony, Defendant’s Ex. D, 21:1; Ex. D, 27:9-13, Ex. D, 31:15-17.

While Defendant argues in reply that this testimony is “obviously false” and a “factual absurdity,” the court does not weigh the evidence. Reply 1:24, 7:1 How the accident happened remains in dispute. Credibility determinations and weighing of evidence are not permitted. Looney v. Superior Court (1993) 16 Cal. App. 4th 521, 539.

#13 and 14 are not established by the evidence as Officer Rodriguez’s opinion with respect to the cause of the accident is objectionable as he is not a qualified expert. See Plaintiff’s Objection #7-8.