Martinez v. Campbell Towing, Inc.

• Decision Date: 24 January 2017
• Docket Number: H040467
• Parties: JUAN MARTINEZ, Plaintiff, Cross-defendant and Appellant, v. CAMPBELL TOWING, INC., Defendant, Cross-complainant and Respondent.
• Court: California Court of Appeals Court of Appeals

JUAN MARTINEZ, Plaintiff, Cross-defendant and Appellant, v. CAMPBELL TOWING, INC., Defendant, Cross-complainant and Respondent.

H040467

COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT

January 24, 2017

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Santa Clara County Super. Ct. No. 111CV200699)

On a rainy rush hour morning on April 20, 2010, Juan Martinez (then 31) was driving southbound on Highway 87 when his truck hydroplaned and crashed into the median barrier. Martinez was uninjured, and his truck, with the assistance of California Highway Patrol (CHP) officers, was transported to the right shoulder by a tow truck owned and operated by Campbell Towing, Inc. (Campbell Towing). That tow truck was operating under the Freeway Safety Patrol (FSP) program.¹ After moving Martinez to the shoulder, the CHP officers and the Campbell Towing driver left the scene. Approximately 20 minutes later, a second tow truck driver, who had been called byMartinez, arrived to tow Martinez's disabled truck off the freeway. While he was showing the second tow truck driver the spare tire that—per a CHP officer's instructions to Martinez—needed to be secured before his truck was towed off the freeway, Martinez was struck by a vehicle driven by Laniesha Robledo, who also lost control of her car due to the inclement weather conditions. Martinez was severely injured.

Martinez filed a lawsuit against Robledo, the CHP, Caltrans, and fictitious parties. Nearly a year later, he amended his complaint to name Campbell Towing, previously sued as a fictitious defendant. Campbell Towing moved for summary judgment, asserting, among other things, that it owed no duty to Martinez because any duty terminated after Martinez refused service from the FSP tow driver and the driver left the scene while Martinez waited for his own tow truck. Alternatively, Campbell Towing argued that it owed no duty once Martinez's own towing company arrived and took control of the scene. Campbell Towing contended further that its conduct was not the proximate cause of Martinez's injuries. The court granted the motion for summary judgment.

On appeal, Martinez claims that the right shoulder of the freeway where Campbell Towing placed him and his truck was not a safe place. He contends further that Campbell Towing's driver failed to follow a CHP officer's instructions to wait with Martinez, and to tow Martinez off the freeway if the second tow truck did not arrive within 10 minutes. He therefore argues there were triable issues of fact as to whether Campbell Towing breached a duty of care to Martinez that precluded the granting of summary judgment.

Because our de novo review of the summary judgment order requires that we consider only admissible evidence, we first address Campbell Towing's numerous objections below to evidence submitted by Martinez—evidentiary objections upon which the trial court did not rule. Based upon the admissible evidence submitted by the parties, we conclude there were triable issues of material fact as to whether Campbell Towingbreached a duty of care to Martinez that precluded the granting of summary judgment. We will therefore reverse the judgment entered on the summary judgment order.

PROCEDURAL BACKGROUND

I. Complaint

On May 11, 2011, Martinez filed a form complaint for personal injuries against Robledo, the CHP, Caltrans, and fictitious parties, alleging four causes of action. He alleged that he had filed timely a government claim that was rejected on November 18, 2010. Martinez amended his complaint on April 19, 2012, naming Campbell Towing as a defendant previously designated by the fictitious name of Doe 2.

As relevant here, Martinez alleged in the fourth cause of action of the complaint that the fictitious defendants, including Doe 2, were employees of the CHP acting within the course and scope of their employment. On April 20, 2010, Martinez was driving southbound on Highway 87 near the Curtner Avenue exit when, due to rainy conditions, his vehicle hydroplaned and became lodged in the center divider of the highway. Martinez alleged that he was assisted by an agent of the CHP in towing his vehicle a short distance to the freeway's shoulder. Martinez was then left by the CHP on the shoulder in rainy conditions that had caused other motorists to hydroplane, notwithstanding that he was situated close to an offramp and could have readily been taken off the freeway to safety. Thereafter, while Martinez was standing to the rear of his vehicle, he was struck by another car operated by Robledo, who also lost control of her vehicle when it hydroplaned. He sustained serious injuries and other damages. According to the government claim he filed (a copy of which was attached to the complaint), Martinez lost his left leg below the knee, sustained a broken pelvis, a "destroyed" spleen, and injuries to his ribs and lungs. He also lost his job.

Martinez alleged that the CHP and its agents were negligent because it was foreseeable, in light of weather and road conditions, that another vehicle would hydroplane and cause an additional accident. He alleged that the CHP and its agentsowed a duty of reasonable care to him to not expose him to an unreasonable risk of injury, and they breached that duty by leaving him on the shoulder rather than tow him to safety to the offramp a short distance away.

II. Summary Judgment Motion

In July 2013, Campbell Towing moved for summary judgment, pursuant to Code of Civil Procedure section 437c.² It argued, among other things, that it owed no duty to Martinez, because any duty terminated after Martinez refused service and the Campbell Towing driver left the scene approximately 30 minutes before the accident in which Martinez was injured. Campbell Towing argued further that it owed no duty once Martinez's own towing company arrived and took control of the scene. It contended further that it was not the proximate cause of Martinez's injuries as a matter of law because he (1) had no expectation that Campbell Towing would tow him off the freeway, (2) refused further help from Campbell Towing after being transported to the shoulder of the freeway, (3) was not injured while under the care of Campbell Towing, (4) was aware of the risk associated with being stranded on the side of the road, and (5) voluntarily left a position of relative safety—in the cab of the tow truck he had called—to expose himself to the peril of oncoming traffic.

Martinez opposed the motion. He argued, among other things, that there was a factual dispute as to whether he refused service from the FSP operator, Campbell Towing. Martinez asserted that he in fact twice asked to be transported off the freeway. Martinez argued further that a CHP officer ordered the Campbell Towing driver to stay with Martinez and to tow Martinez's truck off the freeway if his own tow truck did not arrive within a few minutes. He asserted that, as the responding FSP tow operator, Campbell Towing had a "special relationship" with him, and that it was a common carrierowing Martinez a duty of care to provide safe carriage to him as its passenger. Martinez thus contended that triable issues of fact existed as to whether Campbell Towing owed a duty of care to him, whether it breached that duty of care, and whether such breach was a proximate cause of his injuries.

Defendants filed a reply, including voluminous objections to evidence submitted by Martinez. After a hearing, the court entered a written order on November 1, 2013, granting Campbell Towing's motion for summary judgment (Order). The court concluded that the undisputed evidence showed "that [Campbell Towing] did not breach any duty owed to [Martinez] and [he] did not incur any damages as a result of [Campbell Towing's] purported negligence." Martinez filed a timely appeal.

DISCUSSION

I. Appealability

Martinez stated in his notice that the appeal was from the "[j]udgment after order granting a summary judgment motion," and he referenced a judgment or order dated November 1, 2013. The document so referenced was apparently the Order. But the record fails to include a judgment that may have been thereafter entered on that Order. An order granting summary judgment is not appealable. (§ 437c, subd. (m)(1); see Saben, Earlix & Associates v. Fillet (2005) 134 Cal.App.4th 1024, 1030.)

Although Campbell Towing has not raised a challenge that the appeal is from a nonappealable order, "[t]he existence of an appealable judgment is a jurisdictional prerequisite to an appeal. A reviewing court must raise the issue on its own initiative whenever a doubt exists as to whether the trial court has entered a final judgment or other [appealable] order." (Jennings v. Marralle (1994) 8 Cal.4th 121, 126-127.) Here, although the appeal is from the nonappealable summary judgment Order, we may invoke our power to save the appeal where a judgment is later entered on the summary judgment order; in that instance, we may construe the notice as an appeal from the judgment.(Mukthar v. Latin American Security Service (2006) 139 Cal.App.4th 284, 288 (Mukthar).)

Although the record does not include a judgment, the appellant's appendix contained the superior court docket entries, which included an entry for "Cv Judgment" filed November 20, 2013. We have requested and obtained from the superior court a copy of that document, which shows that a judgment was entered on the Order in favor of Campbell Towing on November 20, 2013. We take judicial notice of that judgment pursuant to Evidence Code section 459, subdivision (a). We will therefore treat the appeal as having been taken from this judgment entered on the summary judgment Order (Mukthar, supra, 139...