70 Cal.App.5th 1
Cal. Ct. App.2021Background
- Ramirez sued Joshua Brown (a temporary receptionist placed by a staffing agency) and Forest Lawn for injuries from a 2017 car accident; Forest Lawn moved for summary judgment arguing Brown was commuting and not acting within scope of employment (going-and-coming rule; required-vehicle exception at issue).
- Forest Lawn produced testimony from Brown and his supervisor that Brown never ran errands, never drove for Forest Lawn, was not reimbursed for mileage, and was not required to use his vehicle for work.
- Ramirez submitted a three-sentence declaration from Carolyn Scott claiming she saw a Forest Lawn employee named Joshua Brown pick up flowers at "Jensen’s Florists" during work hours.
- After Forest Lawn sought to depose Scott, she repudiated the declaration: she said she worked for a grocery store (Jensen’s Finest Foods), did not know Brown or anyone from Forest Lawn, and signed the declaration after repeated pressure from Ramirez’s counsel.
- The trial court initially denied summary judgment based on Scott’s declaration alone and later admitted the declaration despite the deposition repudiation; the Court of Appeal granted a writ, holding the declaration lacked foundation in personal knowledge when the whole record is considered and ordered summary judgment for Forest Lawn.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a repudiated third‑party declaration may be considered in isolation for foundation at summary judgment | Scott’s declaration creates a triable issue showing Brown made flower pickups for Forest Lawn | The deposition repudiation and surrounding record show Scott lacked personal knowledge; the declaration is inadmissible | Court: Cannot view declaration in isolation; must consider all admissible evidence. Considering Scott’s deposition, no reasonable jury could find she had personal knowledge; declaration inadmissible. |
| Whether a prior inconsistent declaration may be used at summary judgment as substantive proof under the impeachment exception (Evidence Code §1235) | The prior inconsistent declaration is admissible for its truth as impeachment and thus creates a triable issue | §1235 applies only at trial; at summary judgment prior inconsistent hearsay cannot be used substantively | Court: §1235 is a trial rule; at summary judgment §1202 governs and such prior inconsistent hearsay cannot be used to prove truth—so it cannot create a triable issue here. |
| Whether the D’Amico rule requires disregarding Scott’s declaration because it conflicts with her deposition | Declaration should be credited despite deposition because it predates deposition | D’Amico mandates treating deposition admissions as superior and disregarding contradictory declarations | Court: D’Amico is limited to party admissions in discovery and does not automatically apply to third‑party witnesses here; resolution rests on foundation/personal‑knowledge analysis rather than D’Amico. |
Key Cases Cited
- Hinman v. Westinghouse Elec. Co., 2 Cal.3d 956 (establishes going‑and‑coming rule for employer liability)
- Ducey v. Argo Sales Co., 25 Cal.3d 707 (discusses required‑vehicle exception to the going‑and‑coming rule)
- Savaikie v. Kaiser Foundation Hospitals, 52 Cal.App.5th 223 (applies required‑vehicle exception principles)
- Perry v. Bakewell Hawthorne, LLC, 2 Cal.5th 536 (evidence inadmissible at trial cannot create triable issue at summary judgment)
- Mackey v. Trustees of California State University, 31 Cal.App.5th 640 (proponent’s summary‑judgment submissions are strictly scrutinized)
- People v. Johnson, 6 Cal.5th 541 (standard for when a statement lacks foundation: no jury could reasonably find personal knowledge)
- D’Amico v. Board of Medical Examiners, 11 Cal.3d 1 (treatment of deposition admissions in discovery; pre‑trial estoppel principle)
- People v. Williams, 16 Cal.3d 663 (prior inconsistent statement admissibility for impeachment at trial)