Giles v. Thompson et al

Filing 73

ORDER Denying 49 and 54 Cross-Motions for Summary Judgment, or in the Alternative for Summary Adjudication. Signed by Judge M. James Lorenz on 8/2/2010. (mjj)

Giles v. Thompson et al

Doc. 73

1 2 3 4 5 6 7 8 9 10 11 BEN GILES, 12 13 v. 14 JUSTIN PAUL THOMPSON, et al., 15 16 17 Defendants. Plaintiff, ) ) ) ) ) ) ) ) ) ) Civil No. 08cv439-L(RBB) ORDER DENYING CROSSMOTIONS FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE FOR SUMMARY ADJUDICATION UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

In this personal injury action Plaintiff and Defendant KDME, Inc. ("KDME") filed cross-

18 motions for summary judgment, or in the alternative for summary adjudication. The action 19 arises out of a collision of two jet skis on Fiesta Bay, one operated by Plaintiff and the other by 20 Defendant Justin Paul Thompson. Plaintiff claims that KDME owned the jet ski which was 21 operated by Mr. Thompson at the time of the accident ("Wave Rider"). KDME moved for a 22 judgment in its favor, arguing that it was not the Wave Rider's owner. In the alternative, it 23 moved for summary adjudication of its defense that liability is limited under the Limitation of 24 Vessel Owner's Liability Act, 46 U.S.C. § 30501 et seq., to the vessel's value. Plaintiff cross25 moved for summary adjudication that KDME was the owner and opposed KDME's alternative 26 motion on the grounds that KDME failed to comply with the procedural requirements for the 27 limitation of liability defense and that the defense does not apply in this case because KDME 28 was negligent in the way the Wave Rider came into Mr. Thompson's possession.
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Federal Rule of Civil Procedure 56 empowers the court to enter summary judgment on

2 factually unsupported claims or defenses, and thereby "secure the just, speedy and inexpensive 3 determination of every action." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 327 (1986). "If 4 summary judgment is not rendered on the whole action, the court should, to the extent 5 practicable, determine what material facts are not genuinely at issue." Fed. R. Civ. P. 56(d)(1). 6 Summary judgment or adjudication of issues is appropriate if the "pleadings, depositions,

7 answers to interrogatories, and admissions on file, together with the affidavits, if any, show that 8 there is no genuine issue as to any material fact and that the moving party is entitled to judgment 9 as a matter of law." Fed. R. Civ. P. 56(c). A fact is material when it affects the outcome of the 10 case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A "genuine issue" of material 11 fact arises if "the evidence is such that a reasonable jury could return a verdict for the 12 nonmoving party." Id. 13 The burden on the party moving for summary judgment depends on who bears the burden

14 of proof at trial. "When the party moving for summary judgment would bear the burden of proof 15 at trial, it must come forward with evidence which would entitle it to a directed verdict if the 16 evidence went uncontroverted at trial. In such a case, the moving party has the initial burden of 17 establishing the absence of a genuine issue of fact on each issue material to its case." See C.A.R. 18 Transp. Brokerage Co., Inc. v. Darden Restaurants, Inc., 213 F.3d 474, 480 (9th Cir. 2000) 19 (citations omitted). When the moving party would not bear the burden at trial, then he or she can 20 meet its burden on summary judgment by pointing out the absence of evidence with respect to 21 any one element of the claim. See Celotex, 477 U.S. at 325. 22 If the movant meets its burden, the burden shifts to the nonmovant to show summary

23 adjudication is not appropriate. Celotex, 477 U.S. at 317, 324. The nonmovant does not meet 24 this burden by showing "some metaphysical doubt as to material facts." Matsushita Elec. Indus. 25 Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The nonmovant must go beyond the 26 pleadings to designate specific facts showing there are genuine factual issues which "can be 27 resolved only by a finder of fact because they may reasonably be resolved in favor of either 28 party." Anderson, 477 U.S. at 250.
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When ruling on a summary judgment motion, the nonmovant's evidence is to be believed,

2 and all justifiable inferences are to be drawn in its favor. Anderson, 477 U.S. at 255. 3 Determinations regarding credibility, the weighing of evidence, and the drawing of legitimate 4 inferences are jury functions, and are not appropriate for resolution by the court on a summary 5 judgment motion. Id. Only admissible evidence may be considered in deciding a motion for 6 summary judgment. See Fed. R. Civ. P. 56(e). 7 The mere fact the parties filed cross-motions "does not necessarily mean there are no

8 disputed issues of material fact and does not necessarily permit the judge to render judgment in 9 favor of one side or the other." Starsky v. Williams, 512 F.2d 109, 112 (9th Cir. 1975). "[E]ach 10 motion must be considered on its own merits." Fair Hous. Council of Riverside County, Inc. v. 11 Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001). Furthermore, the court must consider 12 evidence submitted in support of and in opposition to both motions before ruling on either one. 13 Id. 14 The parties agree that the owner of a vessel is liable for injury to a person resulting from

15 the wrongful operation of the vessel by a person using it with the owner's express or implied 16 consent. (KDME Mem. of P.&A. at 6; Pl.'s Combined Mem. of P.&A. & Opp'n at 5 (both 17 citing Cal. Harbor & Nav. Code § 661).) Accordingly, ownership is a material issue in 18 Plaintiff's case. See Anderson, 477 U.S. at 248. 19 The parties also agree that the ownership of a vessel is determined by the ownership listed 20 in the California Department of Motor Vehicle ("DMV") records.1 (KDME Mem. of P.&A. at 6; 21 Pl.'s Combined Mem. of P.&A. & Opp'n at 5 (both citing Laureano v. Christensen, 18 Cal. App. 22 3d 515, 519 (1971).) The DMV records show that the owner since December 13, 2000 has been 23 Water Toys, Inc. (Decl. of Thomas F. Feerick, Ex. 1.) 24 KDME does not dispute that the owner of the Wave Rider is Water Toys, Inc., but

25 maintains that KDME is not Water Toys, Inc. In April 2004 KDME purchased the inventory 26 and business name "Water Toys" from Themans Enterprises, LLC ("Themans"). (Aff. of Andy 27 28 For this reason, the court finds irrelevant Mr. Thompson's affidavit that the owner was his friend Randy. (Aff. of Justin Paul Thompson at 1.)
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1 Kurtz ("Kurtz Aff.") at 2.) Themans used "Water Toys" as a dba. (Id. Ex. 1.) KDME contends 2 than neither Themans nor KDME was Water Toys, Inc. 3 KDME further maintains that it did not acquire a Yamaha Wave Rider from Themans and

4 that it never owned a Yamaha Wave Rider model personal water craft. (Kurtz Aff. at 2.) 5 Included in the inventory purchased from Themans were several personal water craft, including 6 one 1995 Yamaha personal water craft with vessel number CF6529NU. (Id. Ex. 2.) On the 7 other hand, the vessel number of the 1995 Yamaha personal water craft operated by Mr. 8 Thompson at the time of the accident was CF9386NY. (Aff. of Justin Paul Thompson, Ex. 1 9 ("Vessel Accident Report") at 1.) 10 Plaintiff argues that KDME's evidence is contradicted by the documents pertaining to the

11 April 2004 sale and the County Recorder's records regarding the Water Toys dba designation, 12 and that KDME's counsel admitted that Water Toys. Inc. was a party to the sale transaction. 13 The court disagrees that the sale documents contradict Mr. Kurtz' affidavit. (See Decl. of

14 Thomas E. Friedberg ("Friedberg Decl.") Ex. 1-4.) Contrary to Plaintiff's suggestion, the 15 documents reference "Water Toys" as a dba only and do not reference Water Toys, Inc. 16 Although the documents show that 1995 Yamaha personal water craft were included in the 17 inventory, none of the models was a Wave Rider. (Cf. id. Ex. 4 (referencing 1995 Wave Raider 18 and 1995 Wave Runner 3) & Vessel Accident Report at 1 (referencing a Wave Rider).) 19 The court also disagrees that the County Recorder's records contradict KDME's

20 evidence. Consistent with it and with the sale documents, they show that on April 12, 2004 21 KDME recorded Water Toys as its fictitious business name. (Pl.'s Req. for Judicial Notice Ex. 2 22 & 3.) Although the records also show that Water Toys, Inc. owned the Water Toys business 23 name pursuant to a registration which expired on July 1, 2004 (id. Ex. 4), this is not inconsistent 24 with the contention that KDME is not Water Toys, Inc. 25 Unlike the foregoing Plaintiff's evidence, which by itself is insufficient to warrant

26 summary adjudication of KDME's ownership in Plaintiff's favor, Plaintiff also offers an 27 admission made by KDME's counsel. In a letter to Plaintiff's counsel, KDME's counsel stated, 28 "The police report indicates that the Wave Runner [sic] was privately owned by Water Toys,
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1 Inc. You may have done some business search and discovered that KDME, Inc., on April 12, 2 2004 purchased some of the assets of Water Toys, Inc."2 (Friedberg Decl. at 3.) Plaintiff argues 3 that this statement is admissible pursuant to Federal Rule of Evidence 801(d)(2) as an admission 4 by party opponent. 5 KDME contends that an attorney, merely by reason of his employment in connection with

6 a litigation, has no power to affect his or her client by admissions of fact made out of court and 7 not given for the purpose of being used as proof. (KDME Combined Reply & Opp'n at 2-3.) 8 The sole citation provided does not support this argument. (See id. citing Graffam v. Burgess, 9 117 U.S. 180 (1886).) A counsel's statements out of court "ought not to be used against [the 10 client] except when made by him in the course of his business as [the client's] attorney." 11 Graffam, 117 U.S. at 187-88; see also Michael H. Graham, Fed. Practice & Procedure, Fed. R. 12 of Evid. § 2073 ("An attorney may, of course, act as an ordinary agent and as such make 13 evidentiary admissions admissible against his principal. Rule 801(d)(2)(C) and (D). In addition, 14 an attorney has authority in general to make judicial admissions for the client in all matters 15 relating to the progress and trial of an action.") (footnotes omitted). The letter KDME's counsel 16 wrote to Plaintiff's counsel was in the course of representing KDME in this action, therefore, the 17 counsel's factual representations may be used against his client. KDME did not present any 18 other evidentiary objections to the admissibility of the counsel's statement. 19 KDME next argues that the counsel's statement should be disregarded because it is

20 obviously erroneous and contradicted by the documentary evidence in this case. The assertion 21 that the statement was erroneous, however, is not contained in an affidavit and is therefore 22 insufficient to oppose a properly presented summary judgment motion. See Fed. R. Civ. Proc. 23 56(c); Anderson, 477 U.S. at 250. 24 Based on the foregoing, there is a genuine issue of material fact whether KDME can be

25 held liable as the owner of the Wave Rider involved in the accident. In this regard, the cross26 In addition, Plaintiff relies on the fact that the same counsel filed an answer in this action on behalf of Water Toys, Inc. (Freedberg Decl. at 3.) However, the most that can be 28 inferred from this is that the counsel representing KDME, Inc. also represented its co-Defendant Water Toys, Inc., which is not determinative of KDME's ownership of the Wave Rider. 27
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1 motions are DENIED. 2 With respect to KDME's limitation of liability defense, the parties agree that the statute

3 provides that a vessel owner's liability for injury by collision is limited to the value of the 4 owner's interest in the vessel if the injury was incurred without the owner's privity or 5 knowledge. (KDME Mem. of P.&A. at 7; Pl.'s Combined Mem. of P.&A. & Opp'n at 7-8 (both 6 citing 46 U.S.C. App. § 183(a).) The parties also agree that the limitation of liability 7 determination involves a two-part analysis. The court must first determine what acts of 8 negligence or conditions of unseaworthiness caused the accident, and second whether the 9 vessel's owner had knowledge or privity of the acts of negligence or conditions of 10 unseaworthiness. (KDME Mem. of P.&A. at 8; Pl.'s Combined Mem. of P.&A. & Opp'n at 8 11 (both citing, among other authorities, In re Hechinger, 890 F.2d 202, 207 (9th Cir. 1989) & N. 12 Fishing & Trading Co. v. Grabowski, 477 F.2d 1267, 1277 (9th Cir. 1973).) 13 KDME argues that, assuming for purposes of its summary judgment motion that it is the

14 Wave Rider's owner and that the collision was caused by acts of negligence or conditions of 15 unseaworthiness as contended by Plaintiff, KDME did not have any privity or knowledge of the 16 acts of negligence or condition of unseaworthiness which caused the accident. 17 Plaintiff counters, among other things, that the defense is procedurally defective. For

18 example, KDME did not deposit with the court the value of the Wave Rider. See 46 U.S.C. 19 § 30511. KDME does not respond to any of Plaintiff's arguments regarding the defense, but 20 instead addresses only the ownership issue. (See KDME Combined Reply & Opp'n.) 21 Accordingly, KDME's alternative motion for summary adjudication of its limitation of liability 22 defense is DENIED. "[I]t is not the task of courts to make cases for the parties . . .." Coto 23 Settlement v. Eisenberg, 593 F.3d 1031, 1034 (9th Cir. 2010). 24 / / / / / 25 / / / / / 26 / / / / / 27 / / / / / 28 / / / / /
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Based on the foregoing, the parties' cross-motions for summary judgment, or in the

2 alternative for summary adjudication of issues, are DENIED. 3 IT IS SO ORDERED.

4 DATED: August 2, 2010 5 6 7 COPY TO: M. James Lorenz United States District Court Judge

HON. RUBEN B. BROOKS 8 UNITED STATES MAGISTRATE JUDGE 9 ALL PARTIES/COUNSEL 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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