Metropolitan News-Enterprise


Tuesday, September 25, 2018


Page 1


Court of Appeal:

Attack on Credibility Does Not Raise Triable Issue of Fact


By a MetNews Staff Writer


The Fourth District Court of Appeal has held that a plaintiff’s attack on the credibility of the defendant’s witnesses was not enough to defeat a motion for summary judgment, with Div. Three distinguishing a decision from this district’s Court of Appeal but proceeding to question its reasoning.

Justice Raymond J. Ikola of Div. Three wrote the Fourth District’s opinion, filed Friday. He indicated that his panel was “uncomfortable with the reasoning” of this district’s Div. Seven in Donchin v. Guerrero, decided in 1995.

Friday’s opinion concerns a traffic accident in which an injured pedestrian sued the driver’s employer under respondeat superior, alleging that the driver, Brittini Zuppardo, had been on a work-related speakerphone call at the time of the accident. The employer, Esquire Deposition Solutions, presented evidence from both Zupparado, a scheduler of depositions, and the driver’s coworker, court reporter Michelle Halkett, that they were close friends, and that the call had been strictly personal.

Orange Superior Court Judge Sheila B. Fell did not accept the plaintiff’s contention that she had raised a triable issue of fact by attacking the credibility of Zuppardo and Halkett by showing, through cellphone records, that they did not regularly converse after-hours, as they claimed.

Johnson’s Opinion

In Donchin, a landlord, David Swift, was sued after one of his tenant’s dogs attacked the plaintiff. The only issue as to the landlord’s liability was whether he knew the dogs’ propensity for violence.

After initially claiming not to have known of the dogs’ existence, the landlord eventually admitted that he did know about them, but denied knowing they were dangerous.

“We hold plaintiff introduced sufficient evidence casting doubt on the landlord’s credibility to create a triable issue whether he did know the dogs were dangerous,” Johnson said.

He cited an earlier case, People v. Gutierrez, where contradictory statements by a defendant were admissible to show his consciousness of guilt. The jurist wrote:

“This sequence of events, a denial of knowledge about one incriminating fact followed by an admission of knowledge of that fact accompanied by a denial of another incriminating fact is exactly what happened here. And just as in Gutierrez, where the jury could infer defendant falsely asserted the victims had consented from his initial false exculpatory statement denying he had even been with the victims, here too the fact finder can reasonably infer Swift falsely denied he knew the dogs were dangerous from his initial false denial of knowledge they even existed.”

Donchin Distinguished

Ikola wrote:

“Here, the important point of distinction is that Donchin involved the witness’s state of mind.”

He pointed out the Code of Civil Procedure §437c(e) provides:

“If a party is otherwise entitled to summary judgment pursuant to this section, summary judgment shall not be denied on grounds of credibility..., except that summary judgment may be denied in the discretion of the court if the only proof of a material fact offered in support of the summary judgment is an affidavit or declaration made by an individual who was the sole witness to that fact; or if a material fact is an individual’s state of mind, or lack thereof, and that fact is sought to be established solely by the individual’s affirmation thereof.”

That provision, he said, “specifically permits a court, in its discretion, to deny summary judgment where the only issue is the credibility of a witness making a statement about state of mind, but [t]hat exception simply does not apply here, where two witnesses testified to an objective fact: the topic of their conversation.”

Critiques Decision

Ikola said there are four bases for questioning the decision in Donchin, authored by then-Justice Earl Johnson Jr., now retired.

He pointed out that Johnson did not allude to §437c(e) which, Ikola declared, “seems to directly contradict some of the broad pronouncements in Donchin’s rationale.”

The jurist continued:

“Second, as a matter of formal logic, Donchin’s rule holds, if at all, in the context of a witness’s mental state, but not in many other contexts. Thus, to disbelieve the landlord’s statement about the dogs’ dangerous propensities, one could only conclude the landlord believes they are dangerous, not that they actually are dangerous. Since the issue was the landlord’s belief, that reasoning held. But imagine a different case where a witness testified the light was red, but then evidence emerged that the witness was nowhere near the light at the time. We would not conclude the light was green. Nor would we conclude the light was yellow. We would simply conclude the witness was lying in affirming the belief the light was red. Formal logic could take us no further.”

He said that “facts rarely come in binary pairings such that a disbelief of one fact necessitates belief in its opposite,” applying the proposition not to the opinion he was criticizing, but to the facts in the case before him. Ikola said that if the declarations of Zuppardo and Halkett that they were conversing at the time of the accident about Halkett’s family matters were disbelieved, it would not necessitate a conclusion that they were, in fact, talking about the scheduling of a deposition.

 “This leads to our fourth criticism,” Ikola wrote, “which is that Donchin gave inadequate attention to the need for a plaintiff to present substantial evidence. The point of the summary judgment procedure is to test whether the plaintiff has enough evidence to support a jury verdict.”

He continued:

“Substantial evidence, however, is not synonymous with any evidence. Rather, substantial evidence must be sufficient to support the essential elements underlying a verdict.”

Applying the substantial evidence test to the present case, he reasoned:

“[T]he inference that Zuppardo lied about the extent of her friendship with Halkett may be relevant to the ultimate issue of whether they were discussing a scheduling matter in the sense that it tends to show a consciousness of guilt and thus can give credence to other evidence of guilt. But a lie about the extent of their cell phone contacts is not substantial evidence about the actual topic of conversation that night.

“Substantial evidence could have taken many forms, even in the face of Sapporo’s and Hallett’s contrary testimony. For example, plaintiff could have shown, if true, that Halkett had been scheduled to work the next day, but then was called off, or vice-versa. Or that Zuppardo received a call from the office or her manager immediately before calling Halkett, which might suggest the call to Halkett was in response to that. We are not suggesting any of that is true. Rather, we are illustrating that plaintiff needed something more than just shots at the defense witnesses’ credibility to constitute substantial evidence. Plaintiff did not offer any such evidence, however, and thus the court properly granted summary judgment.”

The case is Ayon v. Esquire Deposition Solutions, 2018 S.O.S. 4679.

Esquire was represented by Craig A. French of Marshall & French in Irvine, and Roy Weatherup and Allison A. Arabian of Lewis, Brisbois, Bisgaard & Smith’s downtown Los Angeles office. William D. Shapiro and Brian D. Shapiro of the Law Offices of William D. Shapiro in San Bernardino were counsel for the plaintiff.


Copyright 2018, Metropolitan News Company