Austin Buist et al vs The State of CA; Dept of Transportation et al

Case Number

20CV03089

Case Type

Hearing Date / Time

Fri, 05/10/2024 - 10:00

Nature of Proceedings

Motion for Summary Judgment

Tentative Ruling

For the reasons discussed herein, defendant David Zaboski’s motion for summary judgment is denied.

Background:

This action arises out of a vehicle collision that occurred on U.S. Highway 101 (the highway) at the intersection (the intersection) of Las Varas Ranch Access Road (Las Varas) in an unincorporated area of Santa Barbara County north of the City of Goleta. The operative pleading is the Second Amended Complaint (SAC) filed on December 16, 2020, by plaintiffs Austin Buist and Maverick Buist, who is a minor, individually and as heirs at law and successors in interest to Allyson Jean Buist, who is deceased, and the Estate of Allyson Jean Buist. (Note: For ease of reference, the court will refer to plaintiffs and decedent by their first names. No disrespect is intended.) The SAC alleges eight causes of action: (1) negligence/negligence per se (against defendants Garrett Staab (Staab) and Spirit Flow, Inc. (Spirit Flow)); (2) dangerous condition of property (against defendant the State of California, Department of Transportation (Caltrans)); (3) negligent infliction of emotional distress-bystander (against Staab, Spirit Flow, and defendants Toyota Motor Corporation, Toyota Motor Engineering & Manufacturing North America, Inc., Toyota Motor North America Inc., Toyota Motor Manufacturing, California, Inc., and Toyota Motor Sales USA, Inc.); (4) negligent infliction of emotional distress-direct victim (against Staab, Spirit Flow, and the Toyota defendants identified above); (5) negligence-product liability (against the Toyota defendants identified above); (6) strict product liability (against the Toyota defendants identified above); (7) breach of express warranty (against the Toyota defendants identified above); and, (8) breach of implied warranty (against the Toyota defendants identified above). Pursuant to the court’s order dated January 4, 2022, this matter is related to Santa Barbara Superior Court case number 21CV03400 entitled Anthony M. Koehl vs. Garrett Staab.

As alleged in the SAC, on September 10, 2019, Austin, Maverick, and Allyson were in a Toyota vehicle traveling southbound on the highway approaching the intersection. At the same time, Staab was travelling northbound on the highway. At the intersection, which is owned or controlled by Caltrans, the highway has a speed limit of 65 miles per hour and consists of two southbound lanes and two northbound lanes with designated left turn lanes onto Las Varas for both northbound and southbound traffic. Staab, who was employed by and running business errands for Spirit Flow, was travelling northbound on the highway. After missing his exit, Staab made a left U-turn at Las Varas, turning in front of Austin who, despite taking evasive maneuvers, was unable to avoid colliding with Staab’s vehicle. Austin, Maverick, and Allyson were each injured in the collision. Allyson later died due to her injuries.

Plaintiffs filed an amendment to the complaint on February 10, 2022, substituting David Alan Zaboski (Zaboski) for Doe 1. The causes of action applicable to Zaboski are the first cause of action for negligence/negligence per se, the third cause of action for negligent infliction of emotional distress - bystander, and the fourth cause of action for negligent infliction of emotional distress - direct victim. Zaboski filed an answer to the SAC on September 13, 2022.

Zaboski now moves for summary judgment on the grounds that he cannot be held liable for any negligence related claims made by plaintiff because he was not the owner nor the operator of the motor vehicle that collided with plaintiffs’ vehicle and the driver of the vehicle that caused plaintiffs’ injuries (Staab) was not operating the vehicle on behalf of Zaboski. (Notice of Motion, p. 2, ll. 14-22.) Importantly, Zaboski does not move for summary adjudication as to any of the three causes of action.

Plaintiffs oppose the motion, asserting that a triable issue of material fact exists as to whether Staab was employed by Zaboski. Argument is also made that there is a triable issue of material fact as to whether Zaboski was an owner or shareholder of Spirit Flow.

The basic facts appear to be undisputed. On the date of the incident, Staab was to meet Zaboski at a warehouse called “The Orchid,” in Santa Barbara, to pick up and transport materials to San Francisco for an event called “Planet Home.” Planet Home was an event in which there were experiential exhibitions and showcases featuring innovators and immersive experiences. Zaboski was invited to be part of the Planet Home event and was collaborating with a group of volunteers to prepare and create an exhibition called “Art Temple.” On the way to The Orchid, to meet Zaboski and others, Staab missed his exit and made a U-turn on Highway 101 directly into the path of travel of plaintiffs’ vehicle.

 

Analysis:

          Evidentiary Objections

“In granting or denying a motion for summary judgment or summary adjudication, the 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.” (Code Civ. Proc., § 437c, subd. (q).)

“ ‘The same rules of evidence that apply at trial also apply to the declarations submitted in support of and in opposition to motions for summary judgment. Declarations must show the declarant’s personal knowledge and competency to testify, state facts and not just conclusions, and not include inadmissible hearsay or opinion.’ ” [Citation.] “ ‘The declarations in support of a motion for summary judgment should be strictly construed, while the opposing declarations should be liberally construed. [Citation.] This 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.’ ” [Citation.]” (Fernandez v. Alexander (2019) 31 Cal.App.5th 770, 779.)

“The motion shall be supported by affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken.” (Code Civ. Proc., § 437c, subd. (b)(1).)

Plaintiffs assert objections to portions of the declaration of Sharyn Starr, portions of the Zaboski declaration, portions of Zaboski’s memorandum of points and authorities, certain paragraphs of Zaboski’s separate statement of undisputed material facts, and the entirety of Zaboski’s moving papers.

Objection Nos. 1, 2, 3, 4, 5, 6, 12, 14, 16, 17, 18, and 19 are overruled. None of the other evidence objected to by plaintiffs is material to the disposition of the motion.

Zaboski asserts objections to offered deposition testimony of Zaboski, exhibits to the Zaboski deposition, deposition testimony of Mitch Kirsch, deposition testimony of Sprit Flow PMK Robin Harlan, Spirit Flow’s responses to plaintiffs’ special interrogatories set one, Spirit Flow’s responses to plaintiffs’ form interrogatories set one, Zaboski’s responses to plaintiffs’ request for admissions set two, Audio recording of interview with Luke Holden taken on September 21, 2022, Spirit Flow’s responses to plaintiff Austin Buist request for admissions set one, emails between Brittany Nelson, Staab, and Zaboski from August 2017, Oregon Eclipse 2017 spreadsheet, March 9, 2018 email from Zaboski to Staab, September 24, 2012 email between Staab and Zaboski, Art Temple promotional slides, Staab correspondence to Zaboski regarding warehouse locations, April 16, 2017 email from Staab Zaboski, April 16, 2018 email from Staab, August 2, 2017 email between Nelson and Zaboski, and Art Temple class schedule.

Of those items of evidence that are material, the court overrules Zaboski’s objection Nos. 1, 4, 5, 8, 14, 15, 16, 17, 18, and 20. The objections are sustained as to objection Nos. 19 and 22. None of the other evidence objected to by Zaboski is material to the disposition of the motion.

          Standard on Summary Judgment

A defendant’s motion for summary judgment asks the court to determine that the entire action has no merit, and to terminate the action without the necessity of a trial. (Code Civ. Proc., § 437c, subd. (a).) The procedure enables the court to look behind the pleadings to determine whether the party against whom the motion is directed has evidence to back up the claims. The court must determine from the evidence presented that there is no triable issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).)

The moving party bears the burden of persuasion that that there is no triable issue of material fact, and that it is entitled to judgment as a matter of law. (Aguilar v. Atlantic Richfield Co. (2001) 235 Cal.4th 826, 850.) Consequently, a defendant moving for summary judgment bears the burden of persuasion that one or more elements of the cause of action in question cannot be established, or that there is a complete defense thereto. (Ibid.) The motion must be supported by evidentiary facts, not merely the ultimate facts. Further, conclusions of fact or law are not sufficient to support a motion for summary judgment. (Snider v. Snider (1962) 200 Cal.App.2d 741, 751.) 

Once a moving defendant meets its initial burden, the burden shifts to the plaintiff to produce evidence to prove the existence of a triable issue of fact regarding that element of its cause of action or the defense at issue in the motion, and if plaintiff is unable to do so, defendant will be entitled to judgment as a matter of law. (Saelzler v. Advanced Group 400 (2001) 35 Cal.4th 763, 780-781.)

In ruling on a motion for summary judgment, the trial court must consider all of the evidence and all of the inferences reasonably drawn therefrom (Code Civ. Proc., § 437c, subd. (c)), and must view the evidence and inferences in the light most favorable to the opposing party. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 843.) In examining the sufficiency of the affidavits filed in connection with a summary judgment motion, those filed by the moving party are strictly construed, and those of the opposing party are liberally construed. (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 20-21.)

In resolving the motion, the court may not weigh the evidence. (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840.) Rather, the role of the trial court in resolving a summary judgment motion is to determine whether issues of fact exist, not to decide the merits of the issues. (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107.) A triable issue of material fact exists only if the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof. (Aguilar v. Atlantic Richfield, supra, 25 Cal.4th at p. 850.) Any doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion. (Molko v. Holy Spirit Assn., supra at p. 1107.)

“The presence of inferences supporting a judgment in favor of plaintiff is sufficient to defeat a summary judgment in favor of defendant.” (Hulett v. Farmers Ins. Exchange (1992) 10 Cal.App.4th 1051, 1060; superseded by statute on other grounds.)

            Separate Statement

“The Separate Statement in Opposition to Motion must be in the two-column format specified in (h).

“(1) Each material fact claimed by the moving party to be undisputed must be set out verbatim on the left side of the page, below which must be set out the evidence said by the moving party to establish that fact, complete with the moving party’s references to exhibits.

“(2) On the right side of the page, directly opposite the recitation of the moving party’s statement of material facts and supporting evidence, the response must unequivocally state whether that fact is ‘disputed’ or ‘undisputed.’ An opposing party who contends that a fact is disputed must state, on the right side of the page directly opposite the fact in dispute, the nature of the dispute and describe the evidence that supports the position that the fact is controverted. Citation to the evidence in support of the position that a fact is controverted must include reference to the exhibit, title, page, and line numbers.

“(3) If the opposing party contends that additional material facts are pertinent to the disposition of the motion, those facts must be set forth in the separate statement. The separate statement should include only material facts and not any facts that are not pertinent to the disposition of the motion. Each fact must be followed by the evidence that establishes the fact. Citation to the evidence in support of each material fact must include reference to the exhibit, title, page, and line numbers.” (Cal. Rules of Court, rule 3.1350(f).)

“The opposition papers shall include a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating if the opposing party agrees or disagrees that those facts are undisputed. The statement also shall set forth plainly and concisely any other material facts the opposing party contends are disputed. Each material fact contended by the opposing party to be disputed shall be followed by a reference to the supporting evidence. Failure to comply with this requirement of a separate statement may constitute a sufficient ground, in the court’s discretion, for granting the motion.” (Code Civ. Proc., § 437c, subd. (b)(3).)

“Separate statements serve a laudable purpose. As explained in Weil & Brown, California Practice Guide (The Rutter Group 1996) Civil Procedure Before Trial, paragraph 10:94.1, pp. 10–31, 10–32, these documents are ‘intended to permit the judge to determine quickly whether the motion is supported by sufficient undisputed facts. If the opposing statement disputes an essential fact alleged in support of the motion, the judge merely has to review the evidence cited in support of that fact. This saves the judge from having to review all the evidentiary materials filed in support of and in opposition to the motion.’ ” (Kulesa v. Castleberry (1996) 47 Cal.App.4th 103, 113.)

Zaboski lists just 12 material facts (“UMFs”) in his separate statement that he contends are undisputed. Those facts are:

1. “On September 10, 2019, Mr. Zaboski was not operating any of the vehicles involved in the accident.”
2. “Mr. Zaboski was nowhere near the scene of the accident at the time of the incident and was at ‘The Orchid’ looking for materials he could use for the Planet Home Event.”
3. “Mr. Zaboski did not own the vehicle driven by Staab or any of the vehicles involved in the Incident.”
4. “Mr. Zaboski did not ask Staab to run any type of business errands for Spirit Flow when Staab collided with Plaintiffs’ vehicle.”
5. “At the time of the incident, Mr. Zaboski believed he was the sole employee of Spirit Flow.”
6. “Mr. Zaboski is not and has never been an owner or shareholder of Spirit Flow.”
7. “Mr. Zaboski did not hire, employ, perform a background check, train, or oversee Garrett Staab in any capacity at any time during Mr. Zaboski’s employment with Spirit Flow.”
8. “Staab was not under the control or supervision of Mr. Zaboski while Staab was driving his car.”
9. “Plaintiffs do not even contend that Staab was driving for Mr. Zaboski at the time of the incident, but that he was ‘running errands’ for Spirit Flow.”
10. “The statements made by Staab in Traffic Collision Report, do not at any time state that Staab was picking up project supplies for Mr. Zaboski.”
11. “After the Planet Home event, Mr. Zaboski did not pay Staab with and personal accounts; A payment was made through PayPal by Spirt Flow in the amount of $1,500 to Staab’s LLC, Heart Gallery, LLC.”
12. “Mr. Zaboski did not ask Staab to run any type of business errands on his own personal behalf when Staab collided with Plaintiffs’ vehicle.”

Plaintiffs admit UMF fact Nos. 1 and 3 and dispute the remainder. Plaintiffs then add an additional 64 facts. As to UMF No. 2, the dispute is simply a matter of terminology. “Nowhere near” is subjective and not the best choice of words. The parties agree that Zaboski was not at the scene of the accident.

“ ‘Include only those facts which are truly material to the claims or defenses involved because the separate statement effectively concedes the materiality of whatever facts are included. Thus, if a triable issue is raised as to any of the facts in your separate statement, the motion must be denied!’ [Citation.]” (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252.)

Zaboski has conceded that the UMFs are material to his defenses by including them in his separate statement.

Of the UMFs, Nos. 4, 6, 7, 8, 11, and 12 are reasonably disputed and preclude the granting of summary judgment.

While Zaboski has provided some evidence that he was not an owner or shareholder of Spirit Flow, plaintiffs have presented evidence that: (1) Spirit Flow was started in 2002, by Zaboski and Harlan; (2) Zaboski held himself out as an owner and officer of Spirt Flow; (3) On the date of the accident, Zaboski and others intended to drive to “The Orchard” so that Staab could pick up bins of fabrics and lights for Zaboski; (4) Zaboski used Spirit Flow to make payments for various things as well as purchase insurance for a trailer that was purchased by Staab; (5) On April 1, 2020, Zaboski and Harlan borrowed $50,000.00 from Spirit Flow; (6) Zaboski determined who was paid and how much they were paid; (7) On July 20, 2017, Staab purchased a trailer for Spirit Flow, as an agent of Spirit Flow, and was then reimbursed for the purchase; and (8) On July 12, 2017, Zaboski completed a W-9 request for taxpayer identification number and certification, listing his business name as Spirit Flow, Inc. (the W-9 is signed under penalty of perjury). Further, there is no dispute that Zaboski signed multiple discovery verifications on behalf of Spirit Flow, that he stated in discovery responses that he was an owner and shareholder in Spirit Flow, and that he testified at deposition that he was an owner of Spirit Flow.

In reply to the opposition, Zaboski claims that the admissions to being an owner and shareholder of Spirit Flow, and to signing verifications on behalf of Spirit Flow, was an error that was later discovered and corrected. The fact that Spirit Flow provided amended verifications does not negate the fact that Zaboski previously signed them under oath, testified under oath as to ownership of Spirit Flow at deposition, and signed a W-9 (again under oath) that Spirit Flow was his company.

“The determination of employee or independent-contractor status is one of fact if dependent upon the resolution of disputed evidence or inferences . . .. [Citation.] If the evidence is undisputed, the question becomes one of law [citation] . . .” (S.G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341, 349.) At most, Zaboski has provided evidence, from which conflicting inferences may be drawn, that must be weighed by a trier of fact rather than be decided on a motion for summary judgment.

Based on the UMFs presented by Zaboski, and the evidence submitted in support and opposition, a triable issue exists as to whether Zaboski was an owner, operator, or director of Spirit Flow and whether Saab was working as an employee for Spirit Flow at the time of the accident. There is also a triable issue as to whether Saab was personally employed by Zaboski at the time of the accident, running errands for Zaboski, and personally paid by Zaboski. As such, summary judgment must be denied.