Angelus Chevrolet v. State of California

• Decision Date: 18 February 1981
• Citation: 115 Cal.App.3d 995,171 Cal.Rptr. 801
• Court: California Court of Appeals Court of Appeals
• Parties: ANGELUS CHEVROLET, Cross-Complainant and Appellant, v. STATE of California, Cross-Defendant and Respondent. Civ. 59846.

Page 801

171 Cal.Rptr. 801

115 Cal.App.3d 995

ANGELUS CHEVROLET, Cross-Complainant and Appellant, v. STATE of California, Cross-Defendant and Respondent.

Civ. 59846.

Court of Appeal, Second District, Division 1, California.

Feb. 18, 1981.

Cushman & Grover and Melvin B. Grover, Los Angeles, for cross-complainant and appellant.

Vletas & Greer, Gus Vletas and Barry E. Shanley, Beverly Hills, for cross-defendant and respondent. LILLIE, Associate Justice.

Angelus Chevrolet (Angelus) appeals from summary judgment entered in favor of the State of California on its cross-complaint seeking indemnification from the State for any judgment rendered against it in a personal injury action.

The complaint in the personal injury action ¹ names as defendants Angelus, General Motors Corporation (GM) and Atlas Body Company (Atlas). It alleged that in 1969 plaintiff Smith's employer, Patton State Hospital, purchased from Angelus a 1970 Chevrolet truck designed, manufactured and assembled by GM and Atlas; defendants negligently designed, manufactured, distributed and sold the truck which, when it was purchased by plaintiff's employer, was defective and unsafe in that its exhaust system continually emitted toxic fumes; on March 24, 1976, while plaintiff was driving the truck, he sustained personal injuries as a proximate result of said defective condition; at that time plaintiff was regularly and gainfully employed; because of his injuries he has been unable to engage in his employment and will be unable to do so for an indefinite period. Plaintiff sought general and special damages from all defendants.

Angelus filed a first amended cross-complaint for indemnity against the State, Patton State Hospital (Hospital), GM and Atlas, alleging that the Hospital is a corporation organized under Welfare and Institutions Code section 4100 and, as such, is a legal entity separate from the State; on March 24, 1976, plaintiff was not an employee of the Hospital or the State, and was not acting in the course of his employment by either of them when he sustained the injuries alleged in the complaint; on and before March 24, 1976, the State was the owner of the truck described in the complaint; cross-defendants were negligent in the manufacture, ownership, maintenance, repair and inspection of that truck, and are liable for plaintiff's injuries in a capacity other than that of his employer; if plaintiff recovers judgment against Angelus it is entitled to be indemnified by cross-defendants in an amount proportionate to their negligence.

The state moved for summary judgment in its favor on the cross-complaint on the ground that it was plaintiff's employer when he sustained the injuries alleged in the complaint and therefore, under Labor Code section 3864, ² Angelus is barred from seeking indemnity from it. ³

Three declarations were submitted in support of the motion. The two supporting declarations of Paul Westerhold stated: Since 1972 he has been employed by the State as personnel officer for the Hospital a division of the Department of Developmental Services (formerly Department of Mental Hygiene); effective September 18, 1972, plaintiff was appointed by the State to his employment at the Hospital, with a state civil service classification of Automotive Equipment Operator I; plaintiff remained in the service of the State until his disability retirement from state service on June 5, 1978; during the period of plaintiff's state service his salary was fixed by the State and he was compensated directly by the State for his services at the Hospital. Attached to Westerhold's declarations as exhibits were copies of the report of plaintiff's appointment, his personnel file, a partial summary of his employment history, and a summary of payroll records maintained by the State Controller. The supporting declaration of Marvin Nymeyer stated: Since 1975 he has been employed by the State with a civil service job classification of Automotive Pool Manager I; since 1964 he has been employed in the capacity of Transportation Supervisor at the Hospital; in that capacity, during January, February and March 1976 he was the immediate supervisor of plaintiff, who was employed by the State as a driver of food delivery trucks at the Hospital; plaintiff's duties consisted of delivering meals from the Hospital kitchen to various buildings on the Hospital grounds along a 31/2 mile route; in performing such duties, plaintiff often drove the Chevrolet truck described in the complaint; that truck was maintained by the Hospital motor pool for its use, and was owned by and registered to "Department of Mental Hygiene, Patton State Hospital"; the truck so maintained, owned and registered was at all relevant times used on the grounds of the Hospital, with the exception of periodic trips made by employees of the Hospital motor pool to other state facilities in the course of their employment.

In opposition to the State's motion for summary judgment, Angelus submitted the declaration of its attorney setting forth plaintiff's answer to an interrogatory propounded by Angelus in which answer plaintiff indicated that he was employed by the Hospital at the time he sustained the injuries alleged in the complaint.

The motion was granted, the court determining that no triable issue of material fact exists and that the State is entitled as a matter of law to judgment on the cross-complaint. Summary judgment was entered accordingly.

Summary judgment is proper only if the declarations in support of the moving party would be sufficient to sustain a judgment in his favor and his opponent does not by declaration show such facts as may be deemed by the judge hearing the motion sufficient to present a triable issue. (Empire West v. Southern California Gas Co. (1974) 12 Cal.3d 805, 808, 117 Cal.Rptr. 423, 528 P.2d 31.) In passing on a motion for summary judgment, the trial court's function is to determine whether a triable issue of fact exists; issue finding, not issue determination, is the court's function at this stage in the proceedings. (Parker v. Twentieth Century-Fox Film Corp. (1970) 3 Cal.3d 176, 181, 89 Cal.Rptr. 737, 474 P.2d 689; Axley v. Transamerica Title Ins. Co. (1978) 88 Cal.App.3d 1, 8, 151 Cal.Rptr. 570.) Where there is no material issue of fact to be tried and the sole question remaining is one of law, it is the duty of the court to determine the issue of law. (Coast-United Advertising, Inc. v. City of Long Beach (1975) 51 Cal.App.3d 766, 769, 124 Cal.Rptr. 487; Dow v. Britt (1974) 37 Cal.App.3d 868, 871, 112 Cal.Rptr. 710.)

Angelus contends that Westerhold's declarations do not contain admissible evidence that plaintiff was an employee of the State because the copies of documents attached to those declarations are not authenticated (Evid.Code, § 1400 et seq.) and do not comply with the best evidence rule (Evid.Code, § 1500 et seq.). Where materials are properly incorporated by reference into an affidavit submitted in support of a motion for summary judgment, such materials must conform to the rule of evidence. (Dugar v. Happy Tiger Records, Inc. (1974) 41 Cal.App.3d 811, 815, 116 Cal.Rptr. 412.) "(A)verments in the movant's affidavits which depend upon written documents are incompetent and cannot be considered unless there are annexed thereto the original documents or certified or authenticated copies of such instruments, or excuse for nonproduction thereof is shown." (Miller & Lux, Inc. v. Bank of America (1963) 212 Cal.App.2d 719, 725, 28 Cal.Rptr. 401. Emphasis added.) The copies of documents attached to Westerhold's declarations are not incorporated therein by reference. Furthermore, the declarations show that Westerhold's statements therein regarding plaintiff's employment are not dependent upon the attached documents, but are based upon his personal knowledge of facts gleaned in his capacity as personnel officer at the Hospital.

Angelus further argues that none of the declarations submitted by the State is sufficient to support the granting of its motion for summary judgment because each states conclusions of the declarant rather than facts. This argument is based on a misconception regarding the proper function of the so-called opinion rule as it affects testimony of nonexperts (Evid.Code, § 800). ⁴ "That rule merely requires that witnesses express themselves at the lowest possible level of abstraction. (Citation.) Whenever feasible 'concluding' should be left to the jury; however, when the details observed, even though recalled, are 'too complex or too subtle' for concrete description by the witness, he may state his general impression." (People v. Hurlic (1971) 14 Cal.App.3d 122, 127, 92 Cal.Rptr. 55.) Tested by this standard, the statements of Westerhold and Nymeyer regarding plaintiff's employment are not inadmissible conclusions or opinions.

Angelus next contends that summary judgment is precluded because its opposing declaration raises a triable issue of fact as to whether plaintiff, at the time he allegedly sustained personal injuries, was employed by the State or by the Hospital. It may be conceded that such declaration tends to show that plaintiff was employed by the Hospital. However, the presence of factual conflict will not defeat a motion for summary judgment unless the fact in dispute is a material one. (Hidalgo v. Anderson (1978) 84 Cal.App.3d 378, 381, 148 Cal.Rptr. 557.) The factual conflict raised by Angelus' opposing declaration regarding the identity of plaintiff's employer is not material because, as will appear subsequently herein, even if plaintiff was an employee of the Hospital, his actual employer was the State. Expressed in different terms, plaintiff's employment by the Hospital would be tantamount to his being an employee of the State.

There is in state government the Health and Welfare Agency (Gov.Code, § 12800), which includes the State Department of Mental Health (formerly the Department of Mental Hygiene). (...