Peter Mallon Loses Summary Judgment

Transcript

I. I. 1 MARK R. SWARTZ, ESQ. / SBN: 121922 LAW OFFICE OF MARK R. SWARTZ 2 11344 Coloma Road, Suite 515 Gold River, Califomia 95670 3 Telephone: (916) 631-7722 4 Attomeys for Plaintifif 5 6 7 8 h,v^ ENDOR'SED IOAPR 19 PH \ - % LEGAL PROCESS / ; 4 SUPERIOR COURT OF CALIFORNIA 9 10 11 12 13 14 15 Plaintiffs, 16 17 18 19 Defendants. 20 21 22 The defense has not submitted any undisputed material facts which support its argument 23 that this traffic collision arose out ofa street racing incident. To support its contention the 24 25 26 The affidavit does not meet the requirements of Evidence Code section 1561 since it does 27 not contain any statement attesting to the mode of preparation ofthe records required by 28 PLAINTIFF'S POINTS AND AUTHORITIES IN SUPPORT OF O p P O S m O N TO THE DEFENSE'S MOTION FOR SUWIMARY FOPPO JUDGMEIST RAMONA KAY SKATTEBO; AIREAN LEE HARPER, by and through his Guardian Ad Litem, BILLY SILVAS; STEVEN ALLEN SKATTEBO III, by and through his Guardian Ad Litem, BILLY SILVAS; JOSEPH MICHAEL HERNANDEZ, by and through his Guardian Ad Litem JENNIFER HERNANDEZ No. 34-2008-00002074 PLAINTIFF'S POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S OPPOSITION TO THE DEFENSE MOTION FOR SUMMARY JUDGMENT Date: May 3,2010 Time: 2:00 pm Dept: 53 JASON GOLSON, and DOES I through X, inclusive. / L INTRODUCTION defense has simply attached a pile of investigation reports from the Sacramento County Sheriff's Department vs^hich are accompanied by an affidavit. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 paragraph (5) of Evidence Code section 1561. Even if this pile of reports is found to be properly authenticated, the reports are comprised primarily of statements from civilian witnesses who, unlike a peace officer, were under no duty to report their observations tmthfully or accurately as required by the Public Records exception to the hearsay mle which is codified in Evidence Code section 1280. A public employee's observations and report ofthose observations are admissible under the public records exception to the hearsay mle because a public employee is under a dutj' to report his observations accurately and tmthfully. In contrast, a person who is not a public employee is under no such duty. Therefore, a police officer's record ofhis personal observations is typically admissible under the public record exception to the hearsay mle, however, the observations and statements of vitnesses and participants to an automobile collision are not admissible because civilian witnesses are not public employees and they are under no duty to accurately and tmthfully recount what they claim to have seen and observed. Therefore, Defense Exhibit C which contains a collection of reportsfromthfe Sacramento Sheriff's Department is comprised of inadmissible hearsay statements that caimot be considered by the court as evidence that this incident arose out of a street race. Furthermore, the defense does not even state which reports it is relying upon to support this argument. Based upon this same reasoning. Defense Exhibit E, which contains a statementfromthe passenger in the decedent's car Matthew Mattereo, is not authenticated and is inadmissible hearsay. Similarly, Defense Exhibit F, which contains a report from a Califomia Highway patrol officer describing his inspection ofthe cars involved in the collision is inadmissible for these same reasons and because Califomia Vehicle Code section 20012 prohibits the introduction into evidence of a traffic collision report. The only defense evidence left to consider is the declaration ofDefcndant GOLSON, in which GOLSON claims, to his benefit in this civil action, that he was involved in a street racing incident, however, on the date ofthe collision he denied being involved in a street race. PLAINTIFF'S POINTS AND AUTHOIUTIES IN SUPPORT OF OPPOSmON TO THE DEFENSE'S MOTION FOR SUMIVIARY JUDGMENT - 2 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Secondly, his declaration is directly contradicted by the declaration of Beth Matheu who was an eyewitness to this collision. Ms. Matheu clearly saw Defendant GOLSON suddenly and v/ithout waming swerve his car into the decedent's lane of travel causing the decedent to lose conlxol of his vehicle and slide into an oak tree. Defendant GOLSON conveniently did not include tliis fact in his declaration. Finally, GOLSON's declaration, by itself, creates a disputed issue of material fact since it he claims not to have been street racing when the collision occurred. GOLSON's declaration should be viewed with distmst since the entire testimony of a witness may disregarded by the trier of fact ifthe witness' testimony is foxmd to be false in one or more aspects. Based upon the remaining admissible evidence submitted by the defense, the only undisputed material facts presented by the defense prove that this case arose out of a traffiic collision that was caused by Defendant GOLSON's reckless act of sharply cutting into the decedent's lane of travel which caused him to lose control ofhis vehicle and crash into an oak 'tree. Nothing more, nothing less. H. STATEMENT OF FACTS A. Irrelevant Facts Contained In The Defense Statement Of Facts: In its Statement of Facts the Defense alleges, without any evidentiary support, thai the 17 18 decedent was a long time resident of San Quentin. Whether tme or not, this smear is irrelevant to 19 this Motion for Siunmary Judgment. Mr. Skattebo served a term at San Quentin for escaping 20 from a coimty jail, however, this fact is no more relevant to this motion than Defendant Golson's 21 prior conviction for street racing, four citations for speeding, and one citation for an unsale lane 22 change. 23 The fact that the decedent's car was not insured at the time ofthe collision is also 24 irrelevant to a wrongfiil death cause ofaction since Proposition 213 does not apply to wrongfiil 25 death heirs. Harwich v. Superior Court, (1999) 21 Cal.4th 272 26 Nor is the defense claim that the decedent was not wearing a seat belt relevant to this 27 motion either. The defense has not placed causation of death in issue in its motion. Nor has it 28 PLAINTIFF'S POINTS AND AUTHORITIES IN SUPPORT OF OPPOSmON TO THE DEFENSE'S MOTION FOR SUMMARY JUDGMENT - 3 - 1 2 3 submitted any evidence that if Mr. Skattebo had been wearing a seatbelt he would not have died when the driver's side ofhis car stmck the oak tree. B. The Only Remaining Undisputed Material Facts Provided by the Defense Wliich Are Supported By Admissible Evidence: Once all ofthe inadmissible evidence provided by the defense is excluded from its Statement of Facts, all that the court is left with is the following: Prior to the accident, defendant Jason Golson (herein after, Golson) was driving a 1981 Honda on Aubum Boulevard when he encountered Skattebo at a red light at Auburn's intersection with Madison Avenue. Skattebo was driving his own 1987 Ford Mustang, and his step-brother Matthew Mattereo, a minor at the time (herein after, Mattereo) was occupying the passenger seat. Golson did not know Skattebo or Mattereo prior to encountering them on Aubum Boulevard on that date. C. The Undisputed Material Facts Offered by the Plaintiffs: On Febmary 2,2006, Beth Mateu resided at the Crosswood Park Apartment complex located at 6825 San Tomas Drive, apartment 245, in Citms Heights, Califomia. (Plaintiff s Undisputed Material Fact Number I) Her apartment complex was located on the east side of Aubum Boulevard. (PUMF 2) Her apartment was located on the second floor and her balcony looked out onto Aubum Boulevard.(PUMF 3) At this location, there are two traffic lanes running westbound on Aubum Boulevard and twofrafficlanes running east bound on Aubum Boulevard. (PUMF 4) The east and west bound lanes are separated by a double yellow line and a center ttim lane. (PUMF 5) On Febmary 2,2006, at about 9:45 a.m, Ms. Matheu was standing outside on the balcony ofher apartment, which faces Aubum Boulevard. (PUMF 6) While she was standing on her balcony she looked to her left and saw a white Ford Mustangfravelingeastbound on Aubum Boulevard in the number one lane offravel,the lane closest to the double yellow line, and heading towards her apartment. (PUMF 7) At the same time, she also saw a small red Honda PLAINTIFF'S POINTS AND AUTHORITIES IN SUPPORT OF OPPOSITION TO THE DEFENSE'S MOTION FOR SUMMARY JUDGMENT - 4 - 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 fraveling near the white Mustang but in the number two lane offravel.(PUMF 8) 2 3 4 5 6 7 8 Ms. Matheu then saw the small red Honda accelerate and begin to pass the white Mustang. (PUMF 9) She next saw the small red Honda abmptly tum directly into the east bound number one lane thereby cutting off, but not hitting the white Mustang. (PUMF 10) It looked to Ms.Matheu like the driver ofthe small red Honda was trying to cut off the white Mustang. (PUMF 11) She thought this tuming maneuver by the driver ofthe small red Honda was dangerous. (PUMF 12) Although she did not see the small red Honda strike the white Mustang, it was probably only a few inches awayfromthe white Mustang's front bumper when it cut in 9 front of the white Mustang. (PUMF 13) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFF'S POINTS AND AUTHORTTIES IN SUPPORT OF OPPOSTTION TO THE DEFENSE'S MOTION FOR SUMMARY JUDGMENT - 5 - She then saw the white Mustang suddenly slam on its brakes and swerve to its right into the number two lane offravel.(PUMF 14) As the white Mustang went into the number two lane it began to slide sideways until it crashed into an oakfreelocated on the east side of Aubum Boulevard. (PUMF 15) The driver ofthe white Mustang appeared to have lost control of his car. (PUMF 16) The oakfreethat the Mustang crashed into Was located about ten feet from her balcony. (PUMF 17) The small red Honda did not stop. (PUMF 18) It just drove awayfromthe scene. (PUMF 19) Ms. Matheu's boyfiiend handed her a phone and she called 911 and reported the crajih. (PUMF 20) After the police arrived she went with an officer to a Kragen Auto Parts located nearby. (PUMF 21) When she arrived at the Kragen auto store, she saw the red car that cut off the Mustang. (PUMF 22) On the day ofthe collision. Defendant GOLSON told Deputy Fagundes ofthe Sacramento County SherifiTs Department that he had gone sfraight from his English class at American River College to his job at Kragen Auto Parts and he had not been involved in a sfreet race. (PUMF 23) On September 25,2007 the Sacramento County District Attomey's Office filed an Amended Information against Defendant GOLSON charging him with 1) murder ofthe decedent in violation of Penal Code section 187,2) hit and run driving in violation of Vehicle Code 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 section 20001(b)(2) and 3) vehicular manslaughter, without malice but with gross negligence, in violation of Penal Code section 192(c)(1). (PUMF 24) On January 25,2008 the first civil complaint wasfiledagainst Defendant GOLSON for his conduct in this motor vehicle collision. (PUMF 25) This complaint alleged a single negligence cause ofaction on behalf of all ofthe plaintiffs. (PUMF 26) On June 5,2008, Defendant GOLSON pleaded no contest to voluntary manslaughter and agreed to serve a stipulated term of four years in state prison. (PUMF 27) This plea was entered before Judge Earl ofthe Sacramento County Superior Court. (PUMF 28) The Third Amended Complaint, which is currently before the court, wasfiledon Febmary 23,2010. (PUMF 29) This complaint alleges one cause of action for wrongfiil death on behalf of Mr. Skattebo's three children and one cause of action for loss of consortium on behalf ofhis vsadow Ramona Skattebo. (PUMF 30) m. THE EVIDENTIARY PRINCIPLES WHICH GOVERN A MOTION FOR SUMMARY JUDGMENT A motion for summary judgment can only be granted ifthe evidence submitted shows that there are no triable issues as to any material fact and that the moving party is entitled to judgment as a matter oflaw. Califorma Code ofCivil Procedure §43 7c (c). The reviewing court may not grant a motion for summary judgment based upon inferences reasonably deducible 19 from the evidence, if confradicted by other inferences or evidence, which raise a triable issue as 20 21 22 23 24 25 26 27 28 PLAINTIFF'S POINTS AND AUTHORITIES ES SUPPORT OF OPPOSmON TO THE DEFENSE'S MOTION FOR SUMNIARY JUDGMENT - 6 - to any material fact. (Id). A motion for summary judgment must be supported by admissible evidence comprised of affidavits or declarations that are based upon personal knowledge and which set fourth admissible evidence. California Code ofCivil Procedure section 437c (d). "Summary judgment may be denied by the court...where the only proof of a material fact offered in support ofthe summary judgment is an affidavit or declaration made by an individual who was the sole witness to that fact; or where a material fact is an individual's state of mind, or lack thereof, and that fact is sought to be established solely by the individual's affirmation 1 thereof." California Code ofCivil Procedure section 437c (e) 2 3 The court's solefimctionon a motion for summary judgment is issuefinding,not issue determination. The judge must simply determinefromthe evidence submitted whether there is a 4 triable issue as to any material fact. California Code ofCivil Procedure section 437c; Zavala v 5 Arce (1997) 58 Cal.App.4th 915. "There is a triable issue offact if, and only if, the evidence 6 would allow a reasonable trier offact tofindthe underlying fact in favor ofthe party opposing 7 the motion in accordance with the applicable standard of proof." Aguilar v. Atlantic Richfield 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Defense Exhibit C (which contains statements from civilian witnesses and Defendant 23 GOLSON, Defense Exhibit E (which contains a statementfromMattew Matterio thefrontseat 24 passenger in the decedent's car) and Defense Exhibit F (which contains the results ofan 25 26 27 28 PLAINTIFF'S POINTS AND AUTHOIUTIES IN SUPPORT OF OfPOSmON TO THE DEFENSE'S MOTION FOR SUMMARY FOPPO JUDGMENT Co. (2001) 25 Cal.4th 826, 850. Ifthere is a single such issue the motion must be denied. Versa Technologies, Inc. v. Superior Court (Motsinger) (1978) 78 Cal.App.3rd 237,240. The party moving for summary judgment has the burden of persuasion pursuant to Evidence Code section 500 as well as the burden of producing sufficient evidence to meet this burden. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4tii 826, 850 The moving party must establish by a preponderance ofthe evidence that there is no issue of material fact and it is efititled to prevail upon the motion. Id. Ambiguous evidence or inferences showing merely that the matter is as likely as it is unlikely do not satisfy a party's burden of persuasion. In such a case the evidence is in equipose and the motion must be denied. Id. at page 857 IV. THE INADMISSIBILITY OF THE EVIDENCE PRESENTED BY THE DEFENSE The Evidence Presented by The Defense In An Attempt To Prove That The Decedent And Defendant Golson Were Street Racing Is Based Upon Inadmissible Hearsay Evidence: A. inspection ofthe decedent's car and Defendant GOLSON's cars) contain what appears to be copies of various investigative reports that were prepared during the investigation ofthis traffic collision. None ofthese documents are admissible into evidence for the following reasons. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1) The Affidavit Which Accompanies The Records From The Sacramento Sheriff's Department Does Not Comply With Evidence Code Section 1561 Nor Does It Comply With Evidence Code Section 1280 (The Public Records Exception): Evidence Code section 1561 allows business and public records to be authenticated with a properly prepared affidavit, however, in addition to properly complying with the requirements of Evidence Code section 1561, the affidavit must also satisfy the requirements of Evidence Code section 1280 which lists the elements which must be satisfied for public records to be admitted into evidence. To be admissible public records must comply with both ofthese sections. The reports must first be authenticated and then the reports must fall within an appropriate exception to the hearsay rule. The affidavit that is attached to the Sacramento County Sheriff Department records contained in Defense Exhibits C and, presumably. Exhibits E and F does not meet the requirements of Evidence Code Section 1561 which provides in relevant part as follows: (a) The records shall be accompanied by the affidavit ofthe custodian or other qualified witness, stating in substance each ofthe following: (1) The affiant is the duly authorized custodian ofthe records or other qualified witness and has authority to certify the records. (2) The copy is a tme copy of all the records described in the subpoena duces tecum, or pursuant to Subdivision (e) of Section 1560 the records were delivered to the attomey, the attomey's representative, or deposition officer for copying at the custodian's or witness' place ofbusiness, as the case may be. (3) The records were prepared by the personnel ofthe business in the ordinary course ofbusiness at or near the time ofthe act, condition, or event. (4) The identity of the records. (5) A description ofthe mode of preparation ofthe records. The affidavit which accompanies the records contained in Defense Exhibits C, E and F does not contain any statement of the identity of the records as required by Evidence Code Section 1561 (4) nor does the affidavit contain a description of the mode of preparation of the records as required Evidence Code Section 1561(5). These are glaring omissions which prohibit the authentication ofthese records and Califomia courts have refused to admit records into evidence PLAINTIFF'S POINTS AND AUTHORiriES B SUPPORT OF OPPOSTFION TO THE DEFENSE'S MOTION FOR SUKiIMARY M JUDGMENT - 8 - 1 2 3 4 5 6 7 8 9 10 11 12 13 without an affidavit that complies with these requirements. In Taggart v. Super Seer Corp. (1995) 33 Cal.App.4th 1697 the appellate court refiised to admit business records that were accompanied by an affidavit which contained statements which complied with the first, second and third elements of Evidence Code section 1561 but did not contain statements complying with the fourth and fifth elements of Evidence section 1561 which are required for the affidavit to meet the requirements of the hearsay exception for public records. Evidence Code section 1280 Evidence Code section 1280 states the foundational elements that must be established in order for records to be admitted into evidence pursuant to the public records exception to the hearsay mle: Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay mle when offered in any civil or criminal proceeding to prove the act, condition, or event ifail ofthe following applies: (a) The writing was made by and within thescope of duty of a public employee, (b) The writing was made at or near the time ofthe act, condition, or event., (c) The sources of information and method and time of preparation were such as to indicate its tmstworthiness. The affidavit attached to the records which comprise Defense Exhibits C, E and F do not contain any information regarding the sources of information and method and time of preparation such as to indicate the tmstworthiness ofthese records. Therefore, none ofthe Sacramento Sheriff Department records submitted by the defense are admissible into evidence.. 2) Defense Exhibits C, E and F Are Also Inadmissible Because These Records Contain Hearsay Statemente Of Persons Who Were Not Public Employees And Were Not Under A Duty To Repori Their Observations Accurately And Truthfidly As Required By The Public Records Exception To The Hearsay Rule: Most importantly. Exhibits C and E contain statements of civilian witnesses who claim to have seen parts ofthe events leading up to this fragedy as well as statements presumably from Defendant GOLSON. Unfortunately, the defense has not referred to any specific statements or records to support its position. PLAINTIFF'S POINTS AND AUTHORTTIES IN SUPPORT OF OPPOSITION TO THE DEFENSE'S MOTION FOR SUMIMARY JUDGMENT - 9 - 1 4 ' 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 For the records contained in Defense Exhibits C and E to be admissible, the records must fall within the public record's exception to the hearsay rule as stated in the Evidence Code Section 1280, supra. At issue here is the requirement that "the sources of information and method £ind time of preparation were such as to indicate its tmstworthiness." Id. "The tmstworthiness requirement is established by a showing that the written report is based on the observations of public employees who have a duty to observe the facts and report and record them correctly." Ganian v. Zolin (1999) 33 Cal. Ap. 3d 634,40; Fiskv. DMV(\9%\) U l Cal. App. 3d 72, 76 - 79. More specifically, collision reports and crime reports are typically viewed as hearsay and are inadmissible at trial for this reason. The business records exception to the hearsay mle applies to the observations ofthe reporting police officer since the reporting officer is a public employee who has a duty to observe and report events accurately and tmthfully. In confrast, civilian witnesses interviewed by the officer and their observations and estimates are not admissible because the witnesses are not public employees and do not have a duty to observe and report events accurately and tmthfully. Taylor v. Centennial Bowl (1966) 65 Cal. App. 2nd 114, 126. A long line of Califomia cases have held that accident reports are not admissible in evidence. "Essentially accident reports, especially those compiled by police at the scene of an accident, based on statements of participants, bystanders, measurements, deductions, and conclusions of their own, fail to qualify as admissible official records or business records. Hoel v. City ofLos Angeles (1955) 136 Cal. App. 2nd 295, 310. For these reasons, all ofthe civilian witness statements contained in the collection of reports that comprise Exhibits C and E are inadmissible hearsay because, unlike public employees, the civilian witnesses do not have a duty to report their observations accurately. For the same reasons. Exhibit E to the declaration of Mr. Malion which contains the written hearsay statement of Matthew Matterio is also inadmissible hearsay. 3) Defendant GOLSON'S Statements Contained In Exhibit C Are Inadmissible Hearsay: The various reports which comprise Defense Exhibit C also contain numerous stalements 27 attiibuted to Defendant GOLSON by various Sheriff deputies. All ofDefcndant GOLSON's 28 PLAINTIFF'S POINTS AND AUTHORITIES IN SUPPORT OF OPPOSmON TO THE DEFENSE'S MOTION FOR SUMMARY JUDGMENT -10- 1 2 3 4 5 6 7 8 Statements constitute inadmissible hearsay since these statements have been offered by GOLSON in support of his motion for summary judgment. To be admissible as an Admission of a Party pursuant to Califomia Evidence Code section 1220, the statements must be offered ''against the declarant in an action to which he is a party..." (emphasis added) 4) Defense Exhibit F Which Contains An Investigative Report Prepared By Officer Frost Ofthe Califomia Highway Patrol Is Inadmissible: Defense Exhibit F, which contains conclusionsfromthe investigation ofthe vehicles involved in this collision by Officer Frost ofthe Highway Pafrol, is also inadmissible due to lack of proper authentication and Califomia Vehicle Code section 20013 prohibits the admission of accident reports into evidence at trial. C. Defendant GOLSON'S Declaration Is Untrustworthy Because It Is Contradicted By The Observations Of Beth Matheu And GOLSON's Statement To Law Enforcement On The Date OfThe Collision: The declaration ofDefcndant GOLSON, submitted by the defense, is not tmstworthy. On the day ofthe collision. Defendant GOLSON told Deputy Fagundes ofthe Sacramento County Sheriffs Department that he had gone sfraight from his English class at American River College to his job at Kragen Auto Parts and he had not been involved in a sfreet race. The declaration ofDefcndant GOLSON is also imtmstworthy because in his dechtfation he makes absolutely no mention of swerving into the decedent's lane offravel.Instead, Golson claims that he had no knowledge that a collision had occurred. This glaring omission is directly refuted by the declaration of Beth Mathu who saw Defendant GOLSON swerve his vehicle directly infrontofthe decedent's vehicle and saw the decedent's vehicle immediately spin out of confrol and crash into an oak free. Most importantly. Defendant GOLSON pled no contest to one count of vehicular manslaughter and agreed to a stipulated prision term of four years. His plea directly confradicts the declaration submitted by the defense. If he did not cause this collision then why plead no contest to this offense? // // PLAINTIFF'S POINTS AND AUTHORmES IN SUPPORT OF OPPOSTTION TO THE DEFENSE'S MOTION FOR SUMMARY JUDGMENT -11 - 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 V. DEFENDANT GOLSON ADMITTED HIS LIABILITY FOR THIS COLLISION BY PLEADING NO CONTEST TO VEHICULAR MANSLAUGHTER FOR A STIPULATED TERM OF FOUR YEARS IN STATE PRISON Penal Code Section 1016 (3) provides in relevant part as follows: There are six kinds of pleas to an indictment or an information, or to a complaint charging a misdemeanor or infraction: (1) Guilty (2) Not Guilty (3) Nolo contendere, subject to the approval ofthe court. The court shall ascertain whether the defendant completely understands that a plea of nolo contendere shall be considered the same as a plea of guilty and that, on a plea of nolo contendere, the court shall find tiie defendant guilty. The legal effect of such a plea, to a crime punishable as a felony, shall be the same as that of a plea of guilty of all purposes... A plea of guilty in a criminal prosecution is admissible in a civil action growing out ofthe same occurrence as an admission against interest. Arenstein v. California State Board of Pharmacy (1968) 265 Cal.App.2d 179; Baughn v. Jonas (1940) 31 Cal.2d. 587 A plea of j^lty constitutes an admission of every element ofthe offense plead to. Adams v. County of Sacramento (1991) 235 Cal.App.3d 872, 881- 82 On June 5,2008, Defendant GOLSON plead no contest to one count of a violation of Penal Code section 192 (c)(1) which constitutes an admission that he committed this offense and every element that comprises the offense. Vehicular manslaughter is defined as follows: Manslaughter is the unlawfiil killing of a human being without malice. It is of three kinds: © Vehicular: (1) Except as provided in subdivision (a) of section 191.5, driving a vehicle in the commission ofan unlawful act, not amounting to a felony, and with gross negligence; or driving a motor vehicle in the commission of a lawful act which might produce death, in an unlawful manner, and with gross negligence. By his plea of no contest Defendant GOLSON admitted every element ofthe offense of vehicular manslaughter.. Therefore, he has already admitted that he acted with gross negligence PLAINTIFF'S POBSTS AND AUTHORTTIES IN SUPPORT OF OPPOSTTION TO THE DEFENSE'S MOTION FOR SUMIMIARY JUDGMENT - 1 2 - 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 and his grossly negligent driving caused the death ofthe decedent. VI. THE PRIMARY ASSUMPTION OF RISK DOCTRINE SHOULD NOT BE APPLIED TO THIS SET OF FACTS: (A) The Defense Has Not Presented Any Admissible Evidence Tending To Prove That This Was A Street Racing Incident: As argued previously, the defense has not presented any admissible evidence with which to prove that this incident arose out ofa sfreet race. Therefore, this argument is not properly before the court since there is no evidentiary support for such an argument. (B) Even If The Court Somehow Finds That The Defense Has Presented Sufficient Evidence To Support Its Argument That This Incident Arose Out Of A Street Race, No Califomia Case Has Applied This Doctrine To An Illegal Activity Or To An Inherently Dangerous Activity: hi Knight v. Jewett (1992) 3 Cal. 4* 296tiieCalifomia Supreme Court heldtiiat"a participant in an active sport breaches a legal duty of care to other participants- i.e., engages in conduct that properly may subject him or her to financial liability-only ifthe participant interltionally injures another player or engages in conduct that is so reckless as to be totally outside the range of ordinary activity involved in the sport." Id. at page 320. The policy behind the primary assumption of risk doctrine is to prevent the legal system 17 from imposing a chilling effect on active participation in vigorous sporting activities. As the 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFF'S POINTS AND AUTHORTTIES IN SUPPORT OF OPPOSITION TO THE DEFENSE'S MOTION FOR SUMHifARY JUDGMENT - 1 3 - Supreme Court observed in Knight v. Jewett, "In the sports setting . . . conditions or conduct that otherwise might be viewed as dangerous often are an integral part ofthe sport itself Thus, although moguls on a ski run pose ariskof harm to skiers that might not exist were these configurations removed, the challenge andriskposed by the moguls are part ofthe sport of skiing, and a ski resort has no duty to eliminate them". Id at page 315. As the court obser\'ed, "even when a participant's conduct violates a mle ofthe game and may subject the violator to intemal sanctions prescribed by the sport itself, imposition of legal liability for such conduct might well alter fundamentally the nature ofthe sport by deterring participants from vigorously engaging in an activity that falls close to, but on the permissible side, of a prescribed mle." Id. at 318-319 1 2 3 4 5 6 7 8 9 Following this rationale, the primary assumption of risk doctrine has been applied to sporting activities such as touch football. Knight v Jewett, supra; snow skiing, Cheong v. Antablin (1997) 16 Cal.4tii 1063; water skiing. Ford v. Gouin (1992) 3 Cal.4tii 339; collegiate baseball, Sanchez v. Hillerich c Bradsby Co. (2002) 104 Cal.App.4tii 703; golf, American Golf & Corp. V. Superior Court (2000) 79 Cal.App.4th 30; life guardfraining,Lupash v. City ofSeal Beach (1999) 75 Cal.App.4tii 1428; wrestiing, Lilley v. Elk Grove Unified School District (1998) 68 Cal.App.4tii 939 The primary assumption ofthe risk doctrine has also been applied to occupations to which thefirefighter'smle has been applied since the people who perform occupations such as 10 firefighters and peace officers have voluntarily assumed the risk of being injured whilefightinga 11 fire or arresting a suspect. Knight v. Jewett, supra, at page 310, footnote 5. 12 13 14 15 16 17 18 be viewed the same andfraditionalnegligence standards should be applied to this activity as 19 well. 20 2) 21 22 23 24 25 26 27 28 PLAINTIFF'S POINTS AND AUTHORTTIES IN SUPPORT OF OPPOSTTION TO THE DEFENSE'S MOTION FOR SUMMARY JUDGMENT - 1 4 - 1) Since Primary Assumption Of Risk Does Not Apply To An Inherently Dangerous Spori Like Hunting, The Doctrine Should Not Apply To Street Racing: Significantly, the primary assumption of risk doctrine has not been applied to the sport of hunting due to the special danger which hunting poses to others. Therefore, due to the inherent dangers involved in the sport of hunting a hunter's conduct is govemed byfraditionalnegligence principles. Knight v. Jewett, supra, at page 320, footnote 7 citing Summers v. Tice (1948) 33 Cal.2d 80, 83 If hunting is viewed as an inherently dangerous activity then sfreet racing should The Policy Conceras Which Provide The Legal Foundation For The Primary Assumption Of Risk Doctrine Do Not Apply To Street Racing: To apply the primary assumption of risk doctrine to sfreet racing would be confrary to the rationale and policy reasons underlying the doctrine. As stated previously the rationale for the primary ofriskdoctrine is that the legal system should not impose a chilling effect on vigorous sporting or recreational activities by applying a negligence analysis to such sports. Underlying this rationale is the policy that the sports to which this doctrine has been applied are activities that society wishes to encourage, not discourage. Presumably sfreet racing is not an activity that 1 2 3 4 5 society wishes to promote. Therefore, the primary assumption of risk doctrine should not be applied to an illegal activity. 3) No Califomia Court Has Ever Applied The Primary Assumption Of Risk Doctrine To An Illegal Activity Such As Street Racing: Furthermore, no California court has ever applied this doctrine to an illegal activity in such as sfreet racing which is prohibited by Vehicle Code Section 23109. It makes no sense whatsoever to apply this doctrine to an activity that is illegal. Instead, it makes much more sense to applyfraditionalnegligence principles to such activities in order to hold wrongdoers responsible for any injuries that their conduct causes. At the same time the comparative 6 7 8 9 negligence ofthe victim will be judged as well. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFF'S POINTS AND AUTHORTTIES IN SUPPORT OF OPPOSTTION TO THE DEFENSE'S MOTION FOR SUMMARY JUDGMENT -15- The only Califomia decision which plaintiffs counsel has found that applies the primary assumption of risk doctrine to a motor sport is Distefano v. Forester (2001) 85 Cal.App.4th 1249 which applied the primary assumption ofriskdoctrine to the sport of "off-roading." The plaintiffwas riding a dirt bike motorcycle in an area specifically used for off- road recreation. This area was located in the desert, east of San Diego and consisted of natural terrain which was comprised of blind hills, uneven terrain and vegetation. There were no sfreets. Only dirt frails that change with vehicularfrafficand natural forces. There were nofrafficcontrols, signs or speed limits confrolling thesefrails.When the incident occurred the plaintiffwas riding his motorcycle up a blind hill and as he neared the crest oftiie hill, a dune buggy driven by the defendant crested the hillfromthe opposite direction and the collision occurred. This decision is not relevantly similar to this action. Mr. Skattebo was killed while driving on a city sfreet that was subject to thefrafficlaws ofthe State ofCalifomia. In contrast, the plaintiffis Distefano, supra, wasridinghis motorcycle in an off road area that was not subject to anyfrafficlaws and he wasridinghis motorcycle up a blind hill. Distefano was also engaged in a lawful sporting activity which is supported by the Knight v Jewett, supra, rationale. 1 2 3 4 5 6 7 8 4) To Apply The Primary Assumption Of Risk Doctrine To This Case Would Provide A Wmdfall To A Defendant Who Killed Another Man And Plead No Contest To One Count Of Vehicular Manslaughter And Agreed To Serve Four Years In State Prison: The defense argument that the primary assumption of risk doctrine should bar the prosecution ofthis case would lead to an absurd result. This doctrine would be used to shield a defendant from any liability whatsoever in the civil system even though this same defendant plead no contest in the criminal justice system to one count of vehicular manslaughter, wWch contains a mental state of gross negligence, and agreed to serve a four year term in state prison. Califomia courts have ttaditionally disfavored providing windfalls to defendants who 9 have wrongfully injured another. Jn Arambula v. Wells (1999) 72 Cal.App.4th 1006 the court 10 held that a plaintiff who continued to receive pay checks from his employer was still allowed to 11 recover the reasonable value ofthe time he missed from work. The court reasoned that ifthe 12 plaintiff could not recover the value ofthe time he missed from work then the generosity ofhis 13 employer would provide a windfall to the defendant. 14 For the same reason, to apply the primary assumption of risk doctrine to Defendant 15 GOLSON would provide a windfall to a person who not only caused another man's death but it 16 would provide a windfall to a man who admitted his liability for his conduct and agreed to serve 17 four years in prison for that conduct. 18 C) 19 20 21 22 23 24 25 26 Califomia Criminal Jury Instmction 592, which defines vehicular manslaughter pursuant 27 to Penal Code section 192(c)(1), defines "gross negligence", the mental state required for 28 PLAINTIFF'S POINTS AND AUTHORTTIES IN SUPPORT OF Q P p O S m O N TO THE DEFENSE'S MOTION FOR SUMJIARY )F OPPOS JUDGMENT The Primary Assumption Of Risk Doctrine Does Not Bar The Prosecution Of This Lawsuit Simply Because It May Have Arisen Out Of A Street Racing Incident Since There Exists A Material Issue Of Fact As To Whether Defendant GOLSON Acted Recklessly: Even ifthe doctrine of primary assumption of risk is deemed to apply to the facts ofthis case, this does not provide a complete defense to the defendant. Ifthe primary assumption of risk doctrine applies, then the defendant is not liable for his negligent conduct, however, he is still liable for his conduct that is deemed to be reckless or intentional. D) By pleading No Contest To Vehicular Manslaughter In Violation Of Penal Code Section 192(c)(1) The Defendant Has Already Admitted That He Acted Reckli^sly: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 vehicular manslaughter, as involving more than ordinary carelessness, inattentiveness, or a mistake in judgment. A person acts with gross negligence when: 1) He or she acts in a reckless way that creates a high risk of death or great bodily injury; and 2) A reasonable person would have known that acting in that way would create such a risk. Since a plea of guilty or no contest admits every element ofthe offense. Defendant GOLSON has already admitted that he acted with a reckless intent when his act of swerving directly in front ofthe decedent caused the decedent to crash. Adams v. County ofSacramento (1991)235Cal.App.3d872,881-82 E) Califomia Courts Have Traditionally Declined To Grant Motions For Sunimary Judgment When There Is A Material Issue Of Fact As To Whether The Defendant A c t ^ Recklessly: • Motions for Summary Judgment are typically denied ifthere is a triable issue ofimaterial fact as to the recklessness ofthe defendant's conduct. In Cohen v Five Brooks Stables (2008) 159 Cal. App. 4* 1476, tiie plaintifif was a participant in a guided horseback ride. During the ride the guide, without waming, began to gallop his horse knowing that the other horses following behind him would also begin to gallop as well. The plaintiffwas bucked from her horse and suffered serious personal injuries. A motion for summary judgment was filed by the defense, however, the court of appeal denied the motion on the ground that the issue ofthe recklessness ofthe guide's conduct was a disputed issue of material fiact hi Shin v. Ahn (2007) 42 Cal. App. 4* 482, a golfier was stinck by a golfi ball driven by a member ofi hisfioursome.The defiendant hit a drive from the tee box when the plaintifif was positioned in front ofithe defiendant but diagonal and ofif to the left side ofthe defiendant. Tlie plaintiff claimed he made eye contact with the defendant befiore he stmck the ball while the defiendant claimed he never saw the plaintififi. The defiendant drove the ball but pulled it to his PLAINTIFF'S POINTS AND AUTHOIUTIES IN SUPPORT OF OPPOSmON TO THE DEFENSE'S MOTION FOR SUMMARY JUDGMENT -17 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 left striking the plaintiff in the head. The Califiomia Supreme Court held that the primary assumption of risk doctrine applies to golf, however, the Supreme Court remanded the caije fior trial to determine whether the defiendant's conduct was reckless. In Mammoth Mountain Ski Area v. Graham (2006) 135 Cal. App. 4* 1367, a ski instmctor was injured when a snow boarder crashed into him. When the injury occurred the snow boarder was looking up the slope and trying to throw a snowball at his brother. The appellate court reversed the trial courts' grant ofithe defendant's motionfiorsunimary judg;ment since the snow boarder's conduct presented a triable issue ofimaterialfiactas to whether his conduct was reckless. hi Lackner v. North (2006) 135 Cal. App. 4* 1188,tiieplaintifif was skiing at Mammotii Mountain. She and her husband had stopped at the base of a nm in an open area which was basically deserted. As she was speaking to her husband a snow boarder crashed into her. The appellate court overruled the trial court's grant of summary judgement on the ground that a triable issue ofimaterialfiactremainfed with respect to the recklessness ofithe snow boarder's conduct. A similar mling should be issued in this case. Golson's actions as described in the Declaration ofi Beth Matheu, clearly presents a triable issue ofimaterialfiact.To suddenly swerve into another car's lane ofifravelis a reckless and dangerous act as perfiormed in these circumstances. A further disputed issue ofimaterialfiactiis created by Golson's declaration. Even though his declaration is clearly self serving, it does state that there was a series ofi races between the two cars. It is not clearfromhis declaration that the two cars were still racing at the time Golson swerved into Mr. Skattebo's lane ofifravel.Whether or not the defiendant was racing Mr. Skattebo at thetimeofithe collision, is also a disputed issue ofimaterial fiact. Finally, Defendant GOLSON initially told law enforcement that he had not engaged in a sfreet race when the decedent died. This denial ofhis involvement also creates a disputed issue ofi material fiact. PLAINTIFF'S POINTS AND AUTHORTTIES IN SUPPORT OF OPPOSITION TO THE DEFENSE'S MOTION FOR SUMMARY JUDGMENT -18 - 1 2 3 4 5 6 7 8 F) The Plaintiffs' Complaint Need Not Allege Recklessness, An Allegation Of Negligence Is Sufficient Pursuant To Knight v. Jewett: Even ifi the court mles that the primary assumption ofiriskdoctrine applies to the fiacts ofi this case, the plaintiffs' complaint caimot be disniissed due to the lack ofi an allegation ofi recklessness in the complaint. "The "recklessness" with which we are concemed is not the "reckless disregard ofithe safiety ofi another", described in section 500 ofthe Restatement Second of Torts as distinct from and more culpable than ordinary negligence...The "recklessness" here applicable consists instead ofthe very different type of conduct described in Knight...ndontly that which is "reckless" in the sense that it is "totally outside the range of ordinary activity involved in the sport." Cohen v Five Brooks Stable (2008) 159 Cal.App.4tii 1476,1495-1496 Knight recklessness need not be specifically alleged in the complaint..." Id. hi Kahn v. East Side Union High School District (2003) 31 Cal.4tii 990, tiie Califioimia Supreme Court stated that it was "unnecessary for piaintiffto allege the legal conclusiontiiatthe coach's acts and omissions were reckless, because she adequately alleged facts and produced evidence sufficient to support such a conclusion." Id. at page 1013,fiootnote4 G) Based Upon Defendant GOLSON's Own Declaration A Material Issue Of Fact Exists As To Whether Or Not He And The Decedent Were Racing At The Time Of The Collision: In paragraphfiourofi his declaration, Defiendant GOLSON states "When the light tumed green, Mr. Skattebo raced my vehicle. I did notfiorcehim to race, and he did notfierceme to race. We engaged in a series ofi voluntary races, over the course ofi more than 3 miles, competing in each race to gofiasterthan one another. We both stoppedfiorredfrafficsignal lights, which is commonfiorexperienced sfreet racers... In paragraph 5 ofi his declaration Defendant GOLSON states "When we had reached Citms Heights, and were heading eastbound on Aubum Blvd., I acceleratedfiarahead ofthe white Mustang after passing Van Maren. After passing through the curve, afrafficlightfiorthe next intersection becomes visible. As I emerged from the curve, I braked and brought my vehicle to a stop for the red light ahead." PLAINTIFF'S POINTS AND AUTHORTTIES IN SUPPORT OF OPPOSTTION TO THE DEFENSE'S MOTION FOR SUMMARY JUDGMENT -19- 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Then in paragraph 6 Defendant GOLSON states "I am infiormed and believe that Nfr. Skattebo lost confrol ofi his Mustang while driving through the curve on Aubum Boulevard, which is where his vehicle crashed into a large free." Based on Defiendant GOLSON's own declaration he has raised a triable issue ofimaterial fact as to whether he and the decedent were even racing at the time ofthe collision. According to Defendant GOLSON, he and the decedent engaged in a series ofi speed contests, not a continuous race. The import ofithis language is that they would race then drive in a lawful maimer and then race again when the opportunity to do so arose. Most importantly Defiendant GOLSON's statements in paragraphs 5 and 6 clearly state that he had driven well ahead ofthe decedent prior to the collision occurring and was so far ahead that he did not even see the collision occur. Therefore, a reasonable infierence from this declaration is the Defiendant GOLSON, in his mind, was not racing the decedent when the collision occurred. VH. CONCLUSION For the above stated reasons the Defiense MotionfiorSummary Judgment should be denied in its entirety and the primary assumption ofiriskdoctrine should not be applied to this case. DATED: April _!_! 2010 n LAW Q p S p ^ O F MARK R. SWARTZ MARK R.\SWARTZ Attomey Fbr Plaintififs 26 27 28 PLAINTIFF'S POINTS AND AUTHORITIES IN SUPPORT OF OPPOSITION TO THE DEFENSE'S MOTION FOR SUMM-OtY JUDGMENT -20- :OURT: : A S E NO.: : A S E NAME: SUPEWOR COURT OF CALIFORNIA, COUNTY OF SACRAMENTO 34-2008-00002074 SKATTEBO v. GOLSON PROOF OF SERVICE — CCP § 1012.5,1013a, 2015.5 and Califomia Rules of Court, Rule 2008 3 4 I declare that: 5 6 7 8 9 on the parties in said action addressed as follows 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I declare under penalty ofperjury under the laws ofthe State ofCalifomia that the foregoing is tme and correct, and that this declaration was executed on April 19,2010, at Gold River, Califomia. X [By Mail] I am familiar with my employer's practice for the collection and processing of correspondence for mailmg with the United States Postal Service and that each day's mail is deposited with the United States Postal Service that same day in the ordinary course ofbusiness. On the date set forth above, I served the aforementioned document(s) on the parties in said action by placmg a tme copy thereofenclosed m a sealed envelope with postage thereon fiilly prepaid, for collection and mailing on this date, following ordinary business practices, at Sacramento, Califomia, addressed as set forth above. [By Personal Service] By personally delivering a tme copy thereofto the office ofthe addressee above [By Ovemight Courier] By causing a tme copy and/or ongmal thereofto be personally delivered via the following ovemight courier service: Federal Express. [By Facsimile Machine (FAX)] On, at, by use of facsimile machine telephone number (916) 631-7280,1 served a tme copy ofthe aforementioned document(s) on the parties in said action by tiansmitting by facsimile machine to the numbers as set forth above. The facsimile machine I used complied with Callfomia Rules of Court, Rule 2003(3) and no error was reported by the machine. Pursuant to Califomia Rules of Court, Rule 2008(e), I caused the machme to print a transmission record ofthe transmission, a copy ofwhich is attached to this Declaration. Peter Malion Law OfBce of Steven D Hillyard 345 Callfomia Street, Suite 1770 San Francisco, CA 94104 Attomey for Defendant Jason Golson Tel- (415)334-6880 Fax:(415)334-6967 I am a citizen ofthe United States and am over the age of eighteen years and not a party to the withm above-entitled action. I am an employee ofthe Law Office ofMark R. Swartz, 11344 Coloma Road, Suite 515, Gold River, Califomia On this date I served the within document, PLAINTIFF'S POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S OPPOSITION TO THE DEFENSE MOTION FOR SUMMARY JUDGMENT i y . ^ U ^ 'S^IU^CKA^^ Heather Banchieri