Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. NC038382. Joseph Di Loreto, Judge.
Judge of the Los Angeles County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Plaintiff Adolfo Segura and his wife Guadalupe Segura filed this action against defendant Mitsubishi Cement Corporation (“Mitsubishi”) and others relating to a single vehicle accident involving a tractor trailer driven by the plaintiff. The essence of the plaintiff’s claim was that Mitsubishi improperly and negligently loaded the tractor trailer with cement causing it to tip over. Mitsubishi moved for summary judgment. The trial court granted the motion for summary judgment. The plaintiffs appeal from that order.
BACKGROUND
Plaintiff Adolfo Segura was a truck driver, employed by Cemak Corporation. On May 4, 2004, the plaintiff left the Mitsubishi facility driving a truck pulling two trailers filled with dry powder cement loaded by Mitsubishi. Less than a quarter mile from the Mitsubishi filling station, as the plaintiff was attempting to make a turn, the accident occurred. The truck and front trailer overturned; the rear trailer remained on its wheels. As a result of the accident, plaintiff suffered severe injury.
Mitsubishi filed a motion for summary judgment, arguing that first “the tractor trailer [driven by Mr. Segura] was properly loaded” and, second, that Mitsubishi’s conduct “was not a substantial factor in causing Adolfo Segura’s collision.” In support of its motion, Mitsubishi submitted the expert declaration of Norris D. Hoover. Mr. Hoover declared that he is an instructor and forensic expert in heavy truck (tractor trailer) driving, design, loading and manufacture. He has “worked and acted as an expert in accident investigations, heavy truck vehicle inspections, and driver and vehicle performance evaluations.” In addition, Mr. Hoover averred that he was “familiar with the legal and industry standards for the loading of dry powder cement into tractor trailers” and “personally viewed the loading process at the Mitsubishi cement terminal.”
Mr. Hoover’s declaration contained a detailed discussion of Mitsubishi’s “fail safe” computerized loading and weighing system. As described by Mr. Hoover, “The scales at the Mitsubishi facility are electronic and computerized. Generally speaking, a driver pulls his vehicle into the facility to wait his turn on the scales. While waiting his turn, he climbs on top of his trailer(s) and opens the hatch(es) on top. When it is his turn, he pulls his vehicle onto the scales and is supposed to exit the vehicle so it can be weighed. There is a loadmaster (employed by another company through the Union) who asks the driver where the load is going, then enters the information into the computer, thereby setting the parameters and starting preparation of the Bill of Lading. The trailers from each company are pre-programmed into the system. The vehicle is then weighed electronically while it is empty; this is called the tare weight. The powder cement is then poured through a funnel-shaped tube from overhead into the trailer(s) through the hatch(es). The scales are electronic and designed to automatically shut off before reaching a total weight of 80,000 pounds, which is the maximum weight allowed on the road. The entire vehicle is loaded with the powder cement then weighed again; this is called the gross weight. The difference between the gross weight and the tare weight is the weight of the cement product; this is called the net weight. All of the weights must be done while the driver is outside the vehicle, and off the scale. The loadmaster provides the driver with a Bill of Lading for the pickup. The driver then pulls his vehicle off the scales and stops to climb out and close the hatch(es), then exits the facility.”
Based on the loading process, “[i]t is virtually impossible for any trailer to be overloaded because the system is designed not to load over the 80,000 pound total.”
Mr. Hoover also stated that based on industry and safety standards that Mitsubishi “always” follows, Mitsubishi loaded Mr. Segura’s front trailer with “a bit more” cement than the weight of the rear trailer “to ensure driver safety and vehicle stability.”
With respect to the issue of causation, Mr. Hoover opined that “the loading of Adolfo Segura’s vehicle at the Mitsubishi facility right before his collision on May 4, 2004 was not a substantial factor in causing his collision.” Mr. Hoover also opined that “Adolfo Segura was speeding at the time of the rollover” according to the truck’s tachograph and the conclusions of the investigating officer.
In opposition to the motion for summary judgment, plaintiffs submitted the expert declaration of Neil Clark, a safety consultant in the fields of accident analysis and accident reconstruction.
In his declaration, Mr. Clark noted his experience in the field of accident analysis and accident reconstruction and his education and training in the areas of analysis and reconstruction of motor vehicle accidents, human factors in accident causation, ergonomics, and information processing – design requirements for safety, and structural safety and failure analysis. In forming his opinion, Mr. Clark reviewed the Traffic Collision Report, color photocopies of 12 on-the-scene photographs, the tachograph, copies of the bill of lading documents generated by Mitsubishi, the depositions of the defendants, the depositions of eyewitnesses, the declaration of Norris D. Hoover and some discovery responses.
Mr. Clark opined that at the time of the crash, operator Adolfo Segura (plaintiff) was operating the tractor trailer rig in a reasonable and prudent manner, and was not driving at excessive speed for the type of vehicle he was operating. He stated that “when a rig overturns because it is speeding, or making a lane change too quickly, the rear (or pull) trailer will turn over while the remainder of the rig will maintain its wheels on the roadway. This is referred to as a “crack and whip effect.” Clark articulated his reasons for this opinion.
Clark further opined that “the negligent loading process at the Mitsubishi terminal was a substantial factor in causing Adolfo Segura’s accident.” Clark stated that Mitsubishi “overloaded and negligently weighed Mr. Segura’s vehicle.” Clark stated that “overloading of a trailer or multiple trailers is not solely an issue of the gross weight of the trailer. Rather, the true and vital issue is the distribution of the weight amongst the trailers.” He further stated “The fact that the tractor and front trailer are overturned, while the rear trailer maintained its wheels on the roadway, demonstrates that this is a classic case of overloading/misloading of cargo.”
The trial court granted the motion for summary judgment of Mitsubishi. At the hearing, the trial court stated: “With respect to the two experts, the Court basically performs the same function as the jury weighing the testimonial affect of foundations, qualifications, experience, knowledge, and training. And the Court finds for the purpose of this motion that the plaintiffs’ expert, moving party’s expert, Mr. Hoover is eminently more qualified to render an opinion with respect to this particular accident. [¶] And also of more importance to the Court is that basic laws of physics and personal knowledge dictate that when this material was loaded into these trailers as of necessity it evenly spread so it could not have been heavier on one side or the other side. This is as if it were liquid material. In fact it’s less moveable than liquid material. It would not have thrown movement right or left laterally or any other way. [¶] So it’s clear to the Court that one, that the truck was not overloaded and, two, that the loading was done in a safe manner....”
“The Court finds that the moving party has sustained its burden of proof, that the burden of proof has shifted to the responding party, that the qualifications of the expert for the moving -- to the responding party are not of the same quality or nature. In fact I don’t think he is even qualified to render an opinion with respect to this particular defendant.”
Later the trial court stated: “It’s got to be that way. I mean there was no showing that this was wet cement or that it had aggregate in it or that it was anything other than aerated dried cement period. [¶] And my father used to work in a cement factory; so I know how it works. And I know how cement flows. As you fill it up, it evenly flows to the side, and that’s what happened in this case.”
The order granting motion for summary judgment states in part “The declaration of plaintiff’s expert Neil Clark, submitted in opposition to the declaration of defendant’s expert Norris Hoover, is incompetent and inadmissible because Mr. Clark is not qualified to testify to the matters asserted in said declaration.”
DISCUSSION
“Summary judgment shall be granted if all the papers submitted show 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. [Citation.] The function of the trial court in ruling on a motion for summary judgment is merely to determine whether such issues of fact exist, not to decide the merits of the issues themselves. [Citation.] Whether the papers raise a triable issue of material fact is reviewed de novo by the appellate court, unbound by the trial court’s decision. [Citation.]” (Furla v. Jon Douglas Co. (1998) 65 Cal.App.4th 1069, 1076-1077.)
“Generally, a party opposing a motion for summary judgment may use declarations by an expert to raise a triable issue of fact on an element of the case provided the requirements for admissibility are established as if the expert were testifying at trial. [Citations.] An expert’s opinion is admissible when it is ‘[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact....’ [Citation.]” (Towns v. Davidson (2007) 147 Cal.App.4th 461, 472.)
Applying the foregoing standards here, we conclude that the summary judgment was improperly granted. First, the trial court erred in excluding Mr. Clark’s declaration. Mr. Clark’s testimony was related to a subject matter sufficiently beyond common experience that it would assist the trier of fact. Although the trial court considered Mr. Clark’s declaration “not of the same quality or nature” as Mr. Hoover’s declaration, in considering a motion for summary judgment, it is not the court’s role to weigh expert declarations.
Second, Mr. Clark’s declaration is sufficient to create a triable issue of fact as to whether the evidence established that the crash was caused by the improper overloading of the powder cement by Mitsubishi. Clark noted his experience in the field of accident analysis and accident reconstruction and his education and training in the areas of analysis and reconstruction of motor vehicle accidents, human factors in accident causation, ergonomics and information processing – design requirements for safety, and structural safety and failure analysis. Clark also identified all the materials upon which he relied in forming his opinions.
The plaintiffs did submit a competent and admissible expert declaration to rebut the expert declaration of Norris Hoover.
DISPOSITION
The judgment is reversed and remanded for further proceedings. The plaintiffs shall recover costs on appeal from defendant Mitsubishi.
The Linde Law Firm, Doug Linde, Erica L. Allen; Esner, Chang & Ellis, Stuart B. Esner and Holly N. Boyer for Plaintiffs and Appellants.
Murchison & Cumming, Adrian J. Barrio and Edmund G. Farrell III for Defendant and Respondent.
We concur: MALLANO, P. J., ROTHSCHILD, J.