Case Number: TC026409 Hearing Date: June 05, 2014 Dept: 91

The Motion of Defendant, Demenno-Kerdoon for Summary Judgment on Plaintiff’s Complaint, filed on 7/18/13 is DENIED. Defendant has not met its burden of showing that it is entitled to judgment based on the material facts proffered. Cal Code Civ Procedure § 437c(p)(2).

Defendant improperly relies on the traffic incident reports and the opinion of the officer to demonstrate that it did not affirmatively contribute to the incident. The report is inadmissible. Defendant has no evidence to support its burden of proof. Plaintiff’s objections 1-3 to that evidence are SUSTAINED. The officer is not an expert in accident reconstruction and cannot opine as to the cause of the accident. The report lacks foundation in that respect. Accordingly, Facts 28-31 are not proved.

“No such accident report shall be used as evidence in any trial, civil or criminal, arising out of an accident, except that the department shall furnish upon demand of any person who has, or claims to have, made such a report or upon demand of any court, a certificate showing that a specified accident report has or has not been made to the department solely to prove a compliance or failure to comply with the requirement that such a report be made to the department.” Cal Veh Code § 20013

“Indeed, it is well established that traffic accident reports are not admissible in evidence. (Veh. Code, § 20013;” Box v. California Date Growers Assn., 57 Cal. App. 3d 266, 270-271 (Cal. App. 4th Dist. 1976).

Plaintiff’s objections #4-5 to the admission of citations issued by the Nevada case are SUSTAINED. While the court may take judicial notice of the existence of the court records in the Nevada case, the court cannot accept the records for the truth of any facts stated therein. It cannot be accepted to imply Plaintiff’s admission of fault or causation because Plaintiff did not challenge the citation. “Taking judicial notice of a document is not the same as accepting the truth of its contents or accepting a particular interpretation of its meaning.” Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374.

Defendant’s objections to Plaintiff’s evidence #1-3 are overruled. Plaintiff did not mischaracterize the deposition testimony, which is otherwise admissible.
Where summary judgment is based on absence of evidence as Defendant argues here, Defendant must make an affirmative showing by way of direct or circumstantial evidence that the plaintiff not only does not have but cannot reasonably expect to obtain a prima facie case. Defendant relies on some responses, but not others. Hagen v. Hickenbottom, 41 Cal. App. 4th 168, 186 (Cal. App. 6th Dist. 1995).

Plaintiff’s responses to contention Interrogatories assert that Defendant failed to exercise reasonable care with regard to filling the hazardous materials into the trailer. UF 34. This is evidence of Defendant’s affirmative contribution. Plaintiff’s additional facts based on deposition testimony of Demenno employee, Marcus Wormley, establish that Demenno has a checklist of things to be done by inspection. AF 2. Defendant is to perform inspections for leaks. AF 3
Employee Martinez stated they were not trained by Demenno to detect leaks. AF 7.

Under Privette v. Superior Court (1993) 5 Cal. 4th 689, Defendant as a hirer of an independent contractor is not liable to the independent contractor’s employee. Hooker v. Department of Transportation, 27 Cal. 4th 198, 200-201 (Cal. 2002). However, the Hooker exception to the general rle states that the hirer remains liable if it affirmatively contributed to the employee’s injuries. Hooker at 202. Liability depends on whether Defendant affirmatively contributed to the injury. Tverberg v. Fillner Constr., 202 Cal. App. 4th 1439, 1446 (Cal. App. 1st Dist. 2012).
Defendant cites Park v. Burlington Northern Santa Fe Railway Co. (2003) 108 Cal.App.4th 595 which also permits imposition of liability where the Defendant’s conduct affirmatively contributed to the employee’s injuries. Park at 610. As discussed, the Defendant did not establish that it did not affirmatively contribute to Plaintiff’s injury based on the remaining admissible evidence.