Hodges v. Hertz Corp.

• Citation: 351 F.Supp.3d 1227
• Decision Date: 29 October 2018
• Docket Number: Case No. 17-cv-03785-DMR
• Parties: Tiffany HODGES, et al., Plaintiffs, v. The HERTZ CORPORATION, et al., Defendants.
• Court: U.S. District Court — Northern District of California

351 F.Supp.3d 1227

Tiffany HODGES, et al., Plaintiffs,
v.
The HERTZ CORPORATION, et al., Defendants.

Case No. 17-cv-03785-DMR

United States District Court, N.D. California.

Signed October 29, 2018

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Joseph P. Brent, David Lee Fiol, Nathaniel Marquis Leeds, Richard Wesley Pratt, Brent, Fiol & Pratt LLP, San Rafael, CA, for Plaintiffs.

John W. Ranucci, Sheena Patel, Karina Marie Sanchez, Lombardi, Loper and Conant, LLP, Oakland, CA, for Defendant.

ORDER RE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

Re: Dkt. No. 61

Donna M. Ryu, United States Magistrate Judge

This is a wrongful death action arising out of the death of Neil Lewis who was killed during an incident on July 7, 2015. Plaintiff Tiffany Hodges is the guardian ad litem to Lewis's minor children and sole heirs, D. Lewis and J. Lewis. Plaintiffs Karen Joyce Lewis and Alfredo Lewis are Lewis's parents. Plaintiffs filed this survival and wrongful death action against Defendants The Hertz Corporation ("Hertz"), Firefly Rent A Car LLC ("Firefly"), Rental

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Car Transport, LLC ("RCT"),¹ DTG Operations, Inc. ("DTG") and Dollar Thrifty Automotive Group, Inc. ("Dollar Thrifty") (collectively "Defendants"). Defendants now move for summary judgment, or in the alternative, for partial summary judgment on all of Plaintiffs' claims. [Docket No. 61.] The court heard oral argument on September 13, 2018. Having considered the parties' oral argument and written submissions, the court grants the motion in part and denies it in part.

I. EVIDENTIARY OBJECTIONS

Defendants object to the entirety of Plaintiffs' expert evidence, namely the Declaration of Lloyd D. Rae (Docket No. 73-1); the Expert Report of Kathleen Bonczyk, Esq. (Ex. 12); the Report of Aviation Security Expert Jeffrey C. Price, MA, CM (Ex. 32); and the Report of Premises Liability Expert Ron Martinelli, Ph.D., CLS (Ex. 36). Defendants also object to Exhibits 1, 2, 3-9, and 11-36 attached to the Declaration of Joseph P. Brent ("Brent Decl."). Plaintiffs filed an administrative motion for leave to file the Supplemental Brent Declaration, which addresses Defendants' objections to all but Exhibit 17 and attempts to cure the evidentiary deficiencies identified by Defendants. [Docket No. 82.] Exhibit 17 is addressed in Plaintiffs' Objections to New Evidence (Docket No. 79), which is discussed below.

A. Expert Declarations

Since the court did not consider Plaintiffs' expert declarations in determining whether summary judgment is proper, Defendants' objections are denied as moot.

B. Exhibits 1, 3-9, 11, 13-31, 33-35

Defendants object to Exhibits 1, 3-9, 11, 13-31, and 33-35 primarily on the grounds that they are not authenticated. Defendants also object on the basis of hearsay and lack of personal knowledge, but fail to make any arguments to support those objections. The court will therefore ignore the hearsay and personal knowledge objections for purposes of this motion.

The authenticity objections are overruled. Defendants argue that, even though the exhibits are attached to and described in the Brent Declaration, there is no "evidence" to substantiate "what any of the attached documents are or who any of the people are." Defs.' Reply at 1:20-22. However, it is clear from the description of each exhibit, and the exhibit themselves, that the documents are what they purport to be. See Fed. R. Evid. 901(b)(4) (a document's "appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances" is evidence sufficient to satisfy the authentication requirement). Additionally, many of these exhibits are Hertz's own documents and witness deposition testimony, and are also attached as exhibits to Defendants' request for judicial notice, so Defendants' objections are not well-taken. See, e.g. , Exs. 1, 8-9, 13-15, 18, 30, and 31. The court notes that Defendants' complaint about Plaintiffs' alleged failure to proffer evidence to authenticate these exhibits is also perplexing given that Defendants offered no evidence to authenticate many of their own exhibits.

Defendants cite Orr v. Bank of America, NT & SA , 285 F.3d 764, 773 (9th Cir. 2002) for the proposition that unauthenticated documents cannot be considered in a motion for summary judgment. This is incorrect. The Ninth Circuit later clarified that at the summary judgment stage, the focus is not on the "admissibility of the evidence's form," but rather on the "admissibility

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of its contents." Fraser v. Goodale , 342 F.3d 1032, 1036-37 (9th Cir. 2003) (citing cases); see also JL Beverage Co., LLC v. Jim Beam Brands Co. , 828 F.3d 1098, 1110 (9th Cir. 2016) ("[A]t summary judgment a district court may consider hearsay evidence submitted in an inadmissible form, so long as the underlying evidence could be provided in an admissible form at trial, such as by live testimony.") (citing Fraser ). Accordingly, district courts in this circuit have routinely overruled authentication and hearsay challenges at the summary stage where the evidence could be presented in an admissible form at trial, following Fraser. See, e.g. , Lawrence v. City & Cty. of San Francisco , 258 F.Supp.3d 977, 986 (N.D. Cal. 2017) (overruling objections to admissibility of police reports on authentication and hearsay grounds at summary judgment because the contents of the report "may be presented in an admissible form at trial"); Faulks v. Wells Fargo & Co. , 231 F.Supp.3d 387, 397-98 (N.D. Cal. 2017) (overruling objections to admissibility of exhibit at summary judgment because "it is possible that the facts underlying [the exhibit] could be admissible at trial").²

Defendants object to Rodney Williams's juvenile records (Exhibit 17) on the grounds that it is an unauthorized disclosure. The juvenile dependency court released these records pursuant a protective order which specified that the records could only be used in Williams's murder case, and permitted no other disclosure or use. Defs.' Reply at 5:6-22; Ex. 17 (Protective Order). Plaintiffs explain that they obtained Williams's juvenile record from the appellate record in his state court appeal from his murder conviction. Plt.'s Opp'n at 7:27-8:1; Plt.'s Objects. to New Evidence at 2:24-3:19 [Docket No. 79.] According to Plaintiffs, since the appellate record is open and available to the public, Williams's juvenile record may be used in other cases.

Plaintiffs' argument contravenes California law. California Welfare & Institutions Code Section 827(a)(4) provides that "[a] juvenile case file, any portion thereof, and information relating to the content of the juvenile case file, may not be disseminated by the receiving agencies to any persons or agencies, other than those persons or agencies authorized to receive documents pursuant to this section." Cal. Welf. & Inst. Code § 827(a)(4). Additionally, "a juvenile case file, any portion thereof, and information relating to the content of the juvenile case file, may not be made as an attachment to any other documents without the prior approval of the presiding judge of the juvenile court, unless it is used in connection with and in the course of a criminal investigation or a proceeding brought to declare a person a dependent child or ward of the juvenile court." Id. Plaintiffs did not obtain prior approval of the presiding judge of the juvenile court. The fact that Defendants directed Plaintiffs

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to Williams's trial and appellate record for copies of his criminal history does not overcome the specific statutory requirement that Plaintiffs obtain a prior court order to use his juvenile records for a use not specified in the protective order. Plaintiffs cite to no case, nor could this court locate any, in which a court found that a court order authorizing the attachment of the juvenile records in an unrelated case was not necessary. Defendants' objection to Exhibit 17 is sustained.

In sum, the court overrules Defendants' objections as to Exhibits 1, 3-9, 11, 13-31, and 33-35. The court sustains the objection to Exhibit 17. Plaintiffs' administrative motion for leave to file the supplemental declaration is denied as moot.

II. REQUEST FOR JUDICIAL NOTICE

The parties each submitted a request for judicial notice ("RJN"). Defendants' unopposed request asks that the court take judicial notice of Exhibit 6(A) through (F). [Docket No. 62-6 (Defs.' RJN).] Plaintiffs' opposed request asks that the court take judicial notice of Exhibits 1 and 2. [Docket No. 73-2 (Plt.'s RJN).]

Federal Rule of Evidence 201 permits a court to take judicial notice of facts not subject to reasonable dispute and "can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b). "[A] court may take judicial notice of ‘matters of public record.’ " Lee v. City of Los Angeles , 250 F.3d 668, 689 (9th Cir. 2001) (citing Mack v. S. Bay Beer Distrib. , 798 F.2d 1279, 1282 (9th Cir. 1986), abrogated on other grounds by Astoria Fed. Sav...