ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, ORDER ON PLAINTIFFS' MOTIONS IN ORDER ON DEFENDANT'S MOTION FOR CHANGE OF VENUE
This is a subrogation case that arises out of the death of six horses that were under the care of Defendant Donald Deardorff ("Deardorff"). Plaintiffs Diamond State Insurance Company ("Diamond") and Great American Insurance Company ("Great American") issued insurance policies to the horses' respective owners. Plaintiffs paid the owners for the loss of their horses, and then brought this suit against Deardorff to recover the amounts paid to the owners. Plaintiffs allege claims for breach of contract, conversion, trespass to chattels, and negligence. Deardorff, a citizen of Oregon, removed this case from the Merced County Superior Court on December 31, 2009. The active complaint is the Second Amended Complaint ("SAC"). Deardorff now moves for summary judgment on all claims alleged against him. For the reasons that follow, Deardorff's motion will be granted and this case will close.
Deardorff is an extremely experienced horseman, with over 40 years of experience with training and boarding horses. PUMF 16. Deardorff's daughter, Allison Deardorff ("Allison"), also has had a successful professional equestrian career, even earning world championships, and has been a horse trainer for at least eight years. PUMF 17. Deardorff and his family have owned and operated a commercial stable in Molalla, Oregon, for almost 40 years. DUMF 1. The stable is operated as Deardorff Stable, LLC. Id. Deardorff advertises his stable's services in the back of breed publications and trade publications, and also has a website. PUMF 24. For horses boarded with Deardorff by clients, such as the horse owners in this case, Deardorff provides continuous (24/7) care wherever the horse may be. DUMF 2. The services offered by Deardorff in conjunction with boarding include providing a clean stall, food, water, training, transportation to and from horse shows, and care for the horses while at the show. See Deardorff Dec. ¶ 3.*fn2
One of the reasons that clients board their horses with Deardorff is so that the clients may show their horses in horse shows across the country. See Deardorff Dec. ¶ 4; cf. Lachman Depo. 90:11-91:1. As part of the boarding contract, all of Deardorff Stable's clients agree to take on the risk that their horse might become sick, injured, or die while being boarded by Deardorff Stable. See Brooke Deardorff Dec. ¶ 4; Deardorff Dec. ¶ 17. To make sure its clients are protected against the risk of loss of their horse while the horse is boarded with Deardorff, Deardorff Stable asks each client if they have mortality insurance for their horse. See DUMF 17. If a horse owner does not have mortality insurance for their horse, Deardorff Stable encourages the horse owner to obtain mortality insurance in case something happens to the horse. Id. If Deardorff Stable believed that a horse was under-insured, Deardorff Stable encouraged the horse owner to increase the insurance coverage to protect against the risk of loss. Id.
Deardorff does not hold himself out to the public generally and indifferently to transport horses from place to place for profit. DUMF 24. In limited circumstances, Deardorff offers to transport horses for his clients and other trainers. Id. A Rate Schedule from Deardorff Stables dated April 1, 2008, has a section for "transportation." See Plaintiffs' Ex. A. The Rate Schedule indicates that transportation costs for a "Training Horse" to a "local" destination is $45.00, but to "other" destinations the charge is 45ó per mile. See id. The costs for a "Non-Training Horse" is $50.00 for a "local" destination, and 50ó per mile for "other" destinations. See id. Finally, the Rate Schedule indicates that distances over 500 miles one way are charged at 50ó per mile. See id. The Rate Schedule is not made available to the general public, and transportation services have never been mentioned in any advertising by Deardorff or Deardorff Stables. See Supplemental Deardorff Dec. ¶¶ 2-3. The transportation services that are offered by Deardorff are within the scope and in furtherance of the boarding and training services he provides to his clients. See DUMF 24; Supplemental Deardorff Dec. ¶ 4.
Leslie Pierce, Kelle Howard, Karen Lachman, Lisa Fulgaro, Colleen Gadbois, and Sally Nottage (collectively "the Horse Owners") boarded horses with Deardorff Stables and owned the particular horses that perished in this case. Each of the Horse Owners purchased mortality insurance to protected against the loss of their horse while it was being boarded by Deardorff. See Brooke Deardorff Dec. ¶ 5; DUMF 18. Each of the Horse Owners, save for Kelle Howard, signed a power-of-attorney that indicated that their respective horses were in Deardorff's lawful possession. DUMF 14.
Leslie Pierce, Kelle Howard, and Karen Lachman also signed a Waiver and Release from Liability as part of their relationship with Deardorff Stables. See DUMF 21; Lachman Depo. 117:8-23; Pierce Deposition at 39:18-24. The waiver reads in pertinent part:
I . . . am aware that riding, training, driving, showing, grooming or riding upon a horse . . . are inherently risky and dangerous activities. I am voluntarily participating in these activities with knowledge of these dangers. As a condition of participation, I, on behalf of myself, my heirs, my successors and assigns, waive the right to bring an action or lawsuit against [Defendants], jointly, severally and individually, as well as their employees and agents, for injury or death arising out of these activities, whether it occurs on or off the property of the Stables. . . . I . . . on behalf of myself, my heirs, my successors and assigns, in consideration of entering and remaining on the Stables' property, hereby release the Stables, jointly, severally, individually, as well as their employees and agents, from any and all claims which may arise out of the negligence of the Stables . . ., whether such conduct occurs on or off the property of the Stables. I understand that I am waiving the right to bring an action for negligence for my injury or death.
I also understand that by signing this release from liability for negligence I waive the right to bring an action or lawsuit for damage to my property, and for harm or injury to my horse or pony, whether it is on or off of the property of the Stables. . . .
Oregon law shall govern in any claim or dispute relating to this Waiver and Release from Liability.
Defendant's Exs. 1, 2, 3. Kelle Howard was not deposed in this case. See Court's Docket Doc. No. 40 at 7 n.4. Leslie Pierce testified in part that her understanding of the release was, "that if something happens to myself or my horse," including loss of her horse, she would not sue Deardorff. Pierce Dep. 39:20-24; 73:22-74:6. Karen Lachman testified in part that she understood that the waiver, in part, meant that "if your horse dies or gets sick, you're not going to sue," and, that when she signed the waiver, she agreed not sue Deardorff "for negligence on his part which caused damage to" the horse. Lachman Depo. 86:7-87:1.
In the late spring of 2008, the Horse Owners decided that they wanted their respective horses to compete at the Santa Barbara National Horse Show. See DUMF 3. Deardorff agreed to transport the horses from Molalla to Santa Barbara and back for the horse show. PUMF 3. Once Deardorff decided he would attend the Santa Barbara show, as part of the boarding agreement between the horse owners and Deardorff, it was Deardorff's obligation to transport the horses to and from the Santa Barbara Show and provide 24/7 care, including feeding the horses. DUMF 4. The Owners paid Deardorff money for him to transport the horses from Molalla to Santa Barbara and back, which was in addition to the money paid to board the horses at Deardorff's stable in Molalla. PUMF 4.
Deardorff and Allison transported the six horses from Molalla, Oregon, to Santa Barbara, California, on June 29 and 30, 2008, helped the Horse Owners show their horses at the Santa Barbara Show between July 2 and 5, 2008, and provided continuous care for the six horses. DUMF 5. Upon conclusion of the Santa Barbara Show, Deardorff and his daughter loaded the six horses into their trailer and departed Santa Barbara to return to Molalla. See DUMF 6. For the trip home, each horse was placed into a stall and provided access to a bag of hay to eat during the trip. DUMF 7. Extra hay was also in the trailer. See Allison Depo. 25:16-19. Before departing from Santa Barbara, Deardorff inspected the horses, the trailer (both inside and out), the trailer's tires, and his truck. DUMF 8.
Deardorff and Allison shared the driving until the John Erreca Rest Area located at approximately Exit 386 on I-5, where they stopped to switch drivers again. DUMF 9. While at the rest area, Deardorff visually inspected the horses, the trailer (both inside and out), the trailer's tires, and his truck again. See DUMF 10; Deardorff Depo. 38:18-39:16. Deardorff was at the rest area sometime between 4:00 and 4:30 a.m. See DUMF 10; Allison Depo. 22:8-10.
Soon after departing the rest area, and while on I-5, a car pulled
alongside Deardorff's truck and signaled to Deardorff to look at the
trailer as there was something wrong with it. See DUMF 11, PUMF 5.
After the other car signaled that something was wrong with the
trailer, Deardorff slowed down, and he and Allison saw intermittent
sparks, but no flames, emanating from the right rear side of the
trailer close to the asphalt. See PUMF's 6, 7; Deardorff Dec. ¶ 12.
Despite seeing the sparks coming from the trailer, knowing that
something was wrong and having at least one individual signal that
there was a problem with the trailer, Deardorff did not stop, but
instead continued driving. PUMF 8. Deardorff was unsure what the
problem was and had many concerns about stopping on I-5's narrow
shoulder in the dark. See Deardorff Dec. ¶ 14; Deardorff Depo.
40:12-41:4. However, at some point, Deardorff pulled over to the side
of I-5 and looked into the horse trailer, at which time he saw "a lot
of smoke coming out from the inside of the trailer." See Plaintiffs'
Ex. N.*fn3 Deardorff began to panic, closed the door,
andbegan to drive north to get to a truck stop. See id.*fn4
As Deardorff drove, sparks continued to spray from the
trailer, and at some point a fire started in the trailer. See PUMF 12;
Deardorff took the SR-152 exit from I-5. See Deardorff Dec. ¶ 15. Allison could not see any cars at the SR-152 exit. See PUMF 15; DRPUMF 15. As Deardorff exited I-5, a witness who had been following Deardorff, testified that there was a very limited fire on the back of the trailer, but the witness did not know if the Deardorffs were aware of the fire. See Lo Depo. 60:3-21. As the trailer slowed on the exit ramp, Deardorff saw a "fray of sparks and smoke" that appeared to be coming from the very back of the trailer. See Deardorff Dec. ¶ 15; Deardorff Depo. 42:22-43:4. In the midst of turning on the ramp, flames from the back became visible, and the flames grew in size and intensity. See Deardorff Depo. 43-:23-44:18; Allison Depo. 36:7-37:4; Deardorff Dec. ¶ 15; Allison Dec. ¶ 10. Instead of pulling over in a flat location just after the exit ramp, Deardorff drove an additional 2 miles to a Petro gas station/truck stop. See Deardorff Depo. 43:23-44:18, 45:4-17; PUMF 18. Deardorff drove as fast as he reasonably could to the Petro station. See Deardorff Dec. ¶ 15. Deardorff and Allison testified that they proceeded to the Petro station because the fire had reached such a size that they would need substantial help, including water, to contend with the flames. See Deardorff Depo. 44:12-18, 46:21-8; Allison Depo. 37:5-17. When Deardorff pulled into the Petro station, the trailer was engulfed with fire from the middle to the rear. See Deardorff Depo. 50:3-20; Plaintiffs' Ex. N. The trailer has doors on each side that are located in the middle and at the front of the trailer. See PUMF 19; DRPUMF 19. Allison opened one of the doors, got in the trailer, took a bucket of water that had been in the trailer, and threw it on some hay that was on the floor and that had caught on fire. See Allison Depo. 46:8-17. The bucket of water was not very successful in extinguishing the fire, and Allison continued to try to extinguish the fire with a fire extinguisher that someone from the Petro station had brought her. See id. at 46:17-24. Deardorff opened a door on the other side of the trailer, entered the trailer, and attempted to save some of the horses. See id.; Deardorff Depo. 47:13-48:12. The Deardorffs were unsuccessful in their attempts to save the horses, and all six horses died in the trailer fire on July 6, 2008, at approximately 5 a.m. near the intersection of I-5 and SR-152. See DUMF 12. It appears that most of the horses had died of smoke inhalation prior to the Deardorffs opening the trailer doors at the Petro station. See Deardorff Depo. 47:13-48:12, 49:14-22; Allison Depo. 46:20-47:16. Deardorff sustained second degree burns on his face, arms, and hands as a result of going into the trailer to try and save the horses. See Deardorff Dec. ¶ 15.
The Horse Owners submitted claims to the Plaintiffs in July 2008. DUMF 20. Diamond paid Leslie Pierce $100,000, paid Kelle Howard $50,000, and paid Karen Lachman $25,000 for the loss of their horses. See id. Great American paid Lisa Fulgaro $25,000, paid Colleen Gadbois $15,000, and paid Sally Nottage $11,000 for the loss of their horses. See id.
SUMMARY JUDGMENT FRAMEWORK
Summary judgment is appropriate when it is demonstrated that there exists no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Fortyune v. American Multi-Cinema, Inc., 364 F.3d 1075, 1080 (9th Cir. 2004). The party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and of identifying the portions of the declarations (if any), pleadings, and discovery that demonstrate an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). A fact is "material" if it might affect the outcome of the suit under the governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986); Thrifty Oil Co. v. Bank of America Nat'l Trust & Savings Assn, 322 F.3d 1039, 1046 (9th Cir. 2002). A dispute is "genuine" as to a material fact if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party. Anderson, 477 U.S. at 248; Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006).
Where the moving party will have the burden of proof on an issue at trial, the movant must affirmatively demonstrate that no reasonable trier of fact could find other than for the movant. Soremekun, 509 F.3d at 984. Where the non-moving party will have the burden of proof on an issue at trial, the movant may prevail by presenting evidence that negates an essential element of the non-moving party's claim or by merely pointing out that there is an absence of evidence to support an essential element of the non-moving party's claim. See James River Ins. Co. v. Schenk, P.C., 519 F.3d 917, 925 (9th Cir. 2008); Soremekun, 509 F.3d at 984; Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1105-06 (9th Cir. 2000). If a moving party fails to carry its burden of production, then "the non-moving party has no obligation to produce anything, even if the non-moving party would have the ultimate burden of persuasion." Nissan Fire, 210 F.3d at 1102-03. If the moving party meets its initial burden, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Nissan Fire, 210 F.3d at 1103. The opposing party cannot "'rest upon the mere allegations or denials of [its] pleading' but must instead produce evidence that 'sets forth specific facts showing that there is a genuine issue for trial.'" Estate of Tucker v. Interscope Records, 515 F.3d 1019, 1030 (9th Cir. 2008) (quoting Fed. R. Civ. Pro. 56(e)).
The evidence of the opposing party is to be believed, and all reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. See Anderson, 477 U.S. at 255; Matsushita, 475 U.S. at 587; Stegall v. Citadel Broad, Inc., 350 F.3d 1061, 1065 (9th Cir. 2003). Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Sanders v. City of Fresno, 551 F.Supp.2d 1149, 1163 (E.D. Cal. 2008); UMG Recordings, Inc. v. Sinnott, 300 F.Supp.2d 993, 997 (E.D. Cal. 2004). "A genuine issue of material fact does not spring into being simply because a litigant claims that one exists or promises to produce admissible evidence at trial." Del Carmen Guadalupe v. Agosto, 299 F.3d 15, 23 (1st Cir. 2002); see Galen v. County of Los Angeles, 477 F.3d 652, 658 (9th Cir. 2007); Bryant v. Adventist Health System/West, 289 F.3d 1162, 1167 (9th Cir. 2002). Further, a "motion for summary judgment may not be defeated . . . by evidence that is 'merely colorable' or 'is not significantly probative.'" Anderson, 477 U.S. at 249-50; Hardage v. CBS Broad. Inc., 427 F.3d 1177, 1183 (9th Cir. 2006). Additionally, the court has the discretion in appropriate circumstances to consider materials that are not properly brought to its attention, but the court is not required to examine the entire file for evidence establishing a genuine issue of material fact where the evidence is not set forth in the opposing papers with adequate references. See Southern Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 889 (9th Cir. 2003); Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001). If the nonmoving party fails to produce evidence sufficient to create a genuine issue of material fact, the moving party is entitled to summary judgment. See Nissan Fire, 210 F.3d at 1103.
"Subrogation is the substitution of another person in place of the creditor or claimant to whose rights he or she succeeds in relation to the debt or claim." Interstate Fire & Casualty Ins. Co. v. Cleveland Wrecking Co., 182 Cal.App.4th 23, 31-32 (2010); Fireman's Fund Ins. Co. v. Maryland Casualty Co., 65 Cal.App.4th 1279, 1291 (1998). In the context of insurance, "subrogation takes the form of an insurer's right to be put in the position of the insured in order to pursue recovery from third parties legally responsible to the insured for a loss which the insurer has both insured and paid." Interstate, 182 Cal.App.4th at 32; Great Am. Ins. Cos. v. Gordon Trucking, Inc., 165 Cal.App.4th 445, 451 (2008); Fireman's Fund, 65 Cal.App.4th at 1291-92. "[S]ubrogation rights are purely derivative," and thus "an insurer cannot acquire anything by subrogation to which the insured has no right and can claim no right the insured does not have." Great Am., 165 Cal.App.4th at 451; United Servs. Auto. Ass'n v. Alaska Ins. Co., 94 Cal.App.4th 638, 645 (2001); see Fireman's Fund, 65 Cal.App.4th at 1292. It is said that the insurer as subrogee "stands in the shoes" of the insured/subrogor. Interstate, 182 Cal.App.4th at 32; Great Am., 165 Cal.App.4th at 451; Fireman's Fund, 65 Cal.App.4th at 1292. That is, a subrogee "is put in all respects in the place of the party to whose right he is subrogated." Employers Ins. of Wausau v. Granite State Ins. Co., 330 F.3d 1214, 1218 (9th Cir. 2003); Brown v. Rouse, 125 Cal. 645, 650 (1899). Because of the derivative nature of subrogation, the subrogated insurer has no greater rights than the insured, and the insurer is subject to the same defenses assertable against the insured. See Liberty Mut. Ins. Co. v. Fales, 8 Cal.3d 712, 717 (1973); Interstate, 182 Cal.App.4th at 32; Great Am., 165 Cal.App.4th at 451; Fireman's Fund, 65 Cal.App.4th at 1292. Thus, "a subrogee insurer is subject to the same statute of limitations that would have been applicable had the insured brought suit in his or her own behalf." Employers, 330 F.3d at 1218; Great Am. W., Inc. v. Safeco Ins., 226 Cal. App. 3d 1145, 1152 (1991); see Great Am., 165 Cal.App.4th at 451. Further, under certain circumstances, a subrogated insurer will be bound by the statements and admissions of the insured. Great Am., 165 Cal.App.4th at 452; H. Walter Croskey, et al., California Practice Guide: Insurance Litigation (The Rutter Group 2010) § 9:138.15 ("Croskey"). "When the insured makes affirmative statements or admissions about the facts of his claim, particularly those facts within the insured's own knowledge, it may be appropriate to hold that the subrogated insurer is bound by those statements or admissions, because they define the insured's claim and the insurer stands in the insured's shoes in the subrogation action." Great Am., 165 Cal.App.4th at 452; Croskey at § 9:138.15.
1. Punitive Damages & Emotional Distress
Plaintiffs state that, consistent with their discovery responses, they are not pursuing either
punitive damages or emotional distress damages. See Opposition at 20:8-9. California law forbids assignment of punitive and emotional distress damages. Murphy v. Allstate Ins. Co., 17 Cal.3d 937, 942 (1976). Summary judgment on these damages, which were requested in the SAC, is appropriate. Murphy, 17 Cal.3d at 942; Opposition at 20:8-9.
2. Statute of Limitations
Defendant's Argument Deardorff argues that all of Plaintiffs' claims are time barred by the one year statute of limitations of California Code of Civil Procedure § 340(c) (hereinafter "§ 340(c)"). Deardorff was boarding the horses at the time of the incident on July 6, 2008. The Horse Owners themselves testified that Deardorff was boarding the horses at the time of the incident. The horses died as a result of alleged negligent conduct by Deardorff. Because the basis of the claims are from the neglectful conduct of Deardorff, it does not matter that non-negligence causes of action are alleged. Each claim comes under the one year limitations period.
Plaintiffs argue that their claims are not time barred. First, the language of § 340(c) states that the section applies to those who board or feed animals, and applies to the injury or death of an animal in the course of boarding or feeding. There is no language that states that the section applies in the course of a person's transport of an animal. Because the legislature did not include the term transport, then injuries that occur during an animal's transportation is not included. Second, all of the Horse Owners testified that boarding included shelter, food, and water for the horse, as well as general oversight. However, Karen Lachman testified that transportation was an additional charge that was not included in the price of boarding the horse. Deardorff's own Rate Schedule confirms that transportation is not included as part of boarding a horse. The Rate Schedule sets rates for a number of separate and distinct services, including "board and training," "board only," "board and exercise," and "transportation." If "boarding" included transportation as Deardorff contends, there would be no reason to list out the rates for these two services separately, since the transportation services would be subsumed. Third, § 340(c) by its own terms are limited to negligence causes of action only. As such, even if § 340(c) is applicable, that section would not apply to the causes of action for breach of contract, conversion, and trespass to chattels.
Legal Standard "A plaintiff must bring a claim within the limitations period after accrual of the cause of action." Fox v. Ethicon Endo-Surgery, Inc., 35 Cal.4th 797, 806 (2005). Generally, a claim or cause of action "accrues at the time when the cause of action is complete with all of its elements." Pineda v. Bank of Am., N.A., 50 Cal.4th 1389, 1397 (2010); Fox, 35 Cal.4th at 806. The particular statute of limitations "to be applied is determined by the nature of the right sued upon, not by the form of the action or the relief demanded." Day v. Greene, 59 Cal.2d 404, 411 (1963); Parker v. Walker, 5 Cal.App.4th 1173, 1189 (1992). "Neither the caption, form, nor prayer of the complaint will be deemed conclusive in determining the nature of the liability from which the cause of action flows," but instead "the true nature of the action will be ascertained from the basic facts a posteriori." Estate of Young, 160 Cal.App.4th 62, 77 (2008); Rivas v. Safety-Kleen Corp., 98 Cal.App.4th 218, 229 (2002); Walker, 5 Cal.App.4th at 1189; H. Russell Taylor's Fire Prevention Service, Inc. v. Coca Cola Bottling Corp., 99 Cal.App.3d 711, 717 (1979). For certain claims against individuals who board or feed animals, there is a one year limitations period in which to bring suit. See Cal. Code Civ. Pro. § 340(c). Specifically, the California Code of Civil Procedure provides in pertinent part:
Within one year . . . An action . . . against any person who boards or feeds an animal or fowl or who engages in the practice of veterinary medicine. . . for that person's neglect resulting in injury or death to an animal or fowl in the course of boarding or feeding the animal or fowl or in the course of the practice of veterinary medicine on that animal or fowl.
Cal. Code. Civ. Pro. § 340(c). "While resolution of the statute of limitations issue is normally a question of fact, where the uncontradicted facts established through discovery are susceptible of only one legitimate inference, summary judgment is proper." Romano v. Rockwell Internat., 14 Cal.4th 479, 487 (1996); Jolly v. Eli Lilly & Co, 44 Cal.3d 1103, 1112 (1988). If the facts are susceptible to opposing inferences, the statute of limitations is a question for the trier of fact. See Cleveland v. Internet Specialties West, Inc., 171 Cal.App.4th 24, 31 (2009); Ralph Andrews Productions, Inc. v. Paramount Pictures Corp., 222 Cal.App.3d 676, 682 (1990). Discussion
a. Applicability of § 340(c) in General
The key issue with respect to the statute of limitations is: was Deardorff in the course of boarding the horses, or instead was he simply transporting the horses. Plaintiffs rely on Deardorff's Rate Schedule and testimony from the Horse Owners to argue that transportation is something that is separate and apart from boarding.
With respect to the Rate Schedule, that document has the following sections: Board and Training, Board Only, Board and Exercise, Lesson, Halter Show Fee, Halter Breaking Free, Full Body Clip, Transportation, Horse Show Day Charge, Travel Expenses (for Don Deardorff), Equipment Rental, Fine Harness Buggy Rental, Harness Rental, Jog Cart Rental, Horse Show, Sales, or Photo Prep, and Tailnicking After Care. See Plaintiffs' Ex. A. As discussed above, the Rate Schedule breaks down "transportation" based on training or non-training horses, and local or other destinations. See id. Plaintiffs are correct that the Rate Schedule indicates that the fees for boarding are separate from the fees for transportation. See id. However, that separate fees are charged for these activities does not end the inquiry.
Deardorff declared that his boarding services include a clean stall, food, water, training, transportation to and from shows, and care for the horse while at the show. See Deardorff Dec. ¶
3. Deardorff declared that one of the primary businesses of the Stable is to board, train, and help clients show their horses. See id. at ¶ 19. Deardorff also declared that one reason that clients board their horses with him is that the clients are then able to show their horses across the country. See id. at ¶ 4. Deardorff declared that the boarding agreement obligated him to transport the horses in this case to Santa Barbara (once Deardorff decided to attend) and back, and to continue to provide 24/7 care to the horses while in transit, including food and water. See id. Deardorff declared that the limited transportation services that he offers are within the scope and in furtherance of his business of boarding, training, and showing horses. See id. at ¶ 19.
Deardorff's declaration therefore indicates that transporting horses is an aspect of the boarding services that he offers at the Stable, and that the transportation service is of a limited nature. That is, the transportation services are primarily for taking horses to and from horse shows. There is nothing that indicates that each client must show their horse at a show. Rather, the declaration, when read in combination with the Rate Schedule, indicates that clients have choices. Once a client chooses to attend a horse show, then transportation costs, as well as show costs, are assessed. See Lachman Depo. 15:7-16-18. However, Deardorff never stops caring for, boarding, or feeding the horse. Transportation appears to be a necessary aspect of attending shows, which is part of the services offered through the boarding relationship.
To counter the position that transportation services are an aspect of the boarding services or boarding relationship, Plaintiffs also rely on the deposition testimony of the Horse Owners. However, as a subrogation case, the Plaintiffs stand in the shoes of their insureds and are bound by certain admissions of their insureds. Testimony and admissions regarding the nature of any agreements or the nature of the relationship with Deardorff would be included in the category of binding admissions. Great Am., 165 Cal.App.4th at 451-52; Croskey § 9:138.15. This is because it is the individual insureds who entered into the relationship/agreement with Deardorff, not the Plaintiffs. It is the insureds'/Horse Owners' intent and their understanding that formed the agreement and relationship with Deardorff, not the Plaintiffs. It would be improper to allow Plaintiffs to advocate a position that is contrary to the actual relationship or agreement with Deardorff as shown through the insureds/Horse Owners. Great Am., 165 Cal.App.4th at 451-52; Croskey § 9:138.15. Because the Plaintiffs are bound by certain admissions, any arguments by the Plaintiffs that are contrary to binding admissions by their insureds are proscribed.
Colleen Gadbois testified that going to a show was not included in the "monthly boarding," and instead there was a "show fee," extra fees associated with the show, and "the registration and the transport and the food and the care while they're at the show." Gadbois Depo. 48:6-14. However, Gadbois also testified that, in connection with the shows, the horses "still get the 24/7 care, they still get the exercise, they still get training." Id. at 48:14-19. Gadbois also testified that, "Deardorff . . . did board [her horse] from the time [it] was at Deardorff Stable up until and including the time of the accident." Id. at 66:20-24; see also 64:17-21. Gadbois also confirmed that Deardorff provides 24/7 boarding and feeding. Id. at 65:9-12. Gadbois also testified that any agreement between herself and Deardorff regarding the Santa Barbara show "would include much more than just transporting the horses to and from Molalla, Oregon . . .," and "would include boarding and feeding the horse." Id. at 70:4-12. Great American is bound by Gadbois's admissions that her horse was boarded by Deardorff 24/7, i.e. 24 hours a day seven days a week, that the agreement regarding the Santa Barbara Show included boarding and feeding, and that the horse was boarded up to and including the time of the accident. See Great Am., 165 Cal.App.4th at 451-52; Croskey § 9:138.15.
Karen Lachman testified that, every year, Deardorff would send a rate
schedule and a show schedule; a client would pay certain show fees ahead of time and
then pay travel fees later. See Lachman Depo. 15:7-16-18.*fn6
Lachman also described the services included for "board"
under the Rate Schedule, and the description did not include
"transportation." See id. at 100:14-101:8. Lachman testified that she
had the option whether to enter her horse in a show, and if she
"entered [her horse] into the stables, that Mr. Deardorff would
arrange for the transportation of [the horse] to the show" and back
again, and that she would compensate Deardorff for the transportation
cost on a per-mile basis. Id. at 90:14-91:1. However, Lachman also
testified that Deardorff provided boarding services for her horse
"prior to and at the time of [the horse's] death." Id. at 101:9-11. Of
particular note, Lachman testified that, prior to loading the horse on
the trailer, she had "reached an agreement with Mr. Deardorff
concerning [her horse's] attendance at [Santa Barbara]," that
Deardorff "would transport the horse to and from Santa Barbara," and
that Deardorff "would provide all boarding services for the horse, in
transport and at the show." Id. at 105:3-24 (emphasis added). Diamond
is bound by Lachman's admission that her horse was being boarded prior
to and including the time of the accident, and that the agreement to
take her horse to Santa Barbara included provision of boarding
services while in transport. Great Am., 165 Cal.App.4th at 451-52;
Croskey § 9:138.15.
Lisa Fulgaro testified that "boarding costs" at Deardorff Stable included the stall, bedding, and feeding, but that taking a horse to a show was not included "under board." See Fulgaro Depo. 18:1-17. Fulgaro testified that horse shows represented additional charges, and that some of the charges that were incurred when her horse went to a show included hauling fees, day fees, and Deardorff's personal expenses. See id. at 19:14-22. However, Fulgaro also testified that Deardorff was responsible for "boarding [the horses] around the clock" while they were in his possession, and that Deardorff "did board [her horse] at the time of the incident," including feeding the horse. Id. at48:6-4, 50:7-11. Fulgaro also testified that, when she told Deardorff that she wanted to go to the Santa Barbara show, that meant that she wanted her horse to attend and that would include Deardorff transporting the horse, boarding the horse at the show,and "include [Deardorff] boarding the horse and feeding the horse during transport." Id. at 52:19-53:8. Great American is bound by Fulgaro's admission that Deardorff boarded her horse around the clock, including the time of the incident, and that her request to take her horse to Santa Barbara included transportation and food and board during transport. Great Am., 165 Cal.App.4th at 451-52; Croskey § 9:138.15.
Sally Nottage testified that feeding, cleaning the stall, training and exercise were included as "board." See Nottage Depo. 21:22-22:10. However, Nottage also testified that Deardorff was responsible for boarding her horse up to and including the time of the accident, and that Deardorff was feeding her horse "at the time of the accident" because she "was still paying board in addition to the show costs." Id. at 57:12-23, 58:18-20. Nottage testified that "Deardorff did board [the horse] at the time of the accident." Id. at 59:2-4. Finally, Nottage testified that, when she decided to attend the show, that included Deardorff "taking the horse from Molalla down to Santa Barbara and boarding it the entire time," and that the decision was not limited to just driving the horse to Santa Barbara and back. Id. at 60:24-61:7. Great American is bound by Nottage's testimony that Deardorff boarded the horse at the time of the accident and was feeding the horse at the time of the accident, that attendance at the Santa Barbara show included Deardorff taking the horse and boarding it the entire time, and that the agreement with Deardorff was not limited to transportation. Great Am., 165 Cal.App.4th at 451-52; Croskey § 9:138.15.
Leslie Pierce testified that boarding horses at Deardorff Stable includes stall cleaning, feeding, training, care, and general maintenance. See Pierce Depo. 27:11-20. Pierce testified that an extra fee, as opposed to the monthly fee, was charged for attendance at horse shows. See id. at 29:23-24:9. Pierce testified that transportation to the shows was billed as "transportation," was normally billed per mile, and was added to the monthly bill as an itemized expense. See id. 30:23-31:7. However, Pierce also testified that the hauling fee is "generally standard" because the "barn" that she uses now also charges "a hauling fee." See id. at 31:4-11. Pierce testified that she was aware of no separate agreements between herself and Deardorff for transporting the horses to and from shows. See id. at 60:5-16. Pierce testified that Deardorff boarded the horse up to and including the time of the accident, Deardorff was responsible for boarding the horse at all times, and Deardorff was responsible for feeding the horse at the time of the accident. See id. at 66:1-25. Finally, Pierce testified that her relationship with Deardorff was not limited to hauling services because Deardorff "was also [her] trainer and care provider of [her] horse." Id. at 73:7-14. Diamond is bound by Pierce's admissions that Deardorff was responsible for boarding the horse at all times, including the time of the incident, that no separate agreement to transport the horses existed, and that the agreement with Deardorff was not limited to hauling services because Deardorff was the horse's care provider. Great Am., 165 Cal.App.4th at 451-52; Croskey § 9:138.15.
The Horse Owners' testimony is consistent with Deardorff's declaration, including Deardorff's assertion that one reason clients board their horses with him is so that the clients and their horses can attend national horse shows. See Deardorff Dec. ¶¶ 3, 4. Each of the Horse Owners testified that Deardorff was responsible for providing 24/7 or around the clock care for the horses. The Horse Owners also confirmed that there is no separate hauling or transport agreement between themselves and Deardorff. The Horse Owners also confirmed that, when they decided to attend the Santa Barbara show, they intended that Deardorff would continue to board the horses 24/7, including during transport and at the show. The Horse Owners also confirmed that, at the time of the incident, Deardorff was boarding and feeding the horses. Plaintiffs are bound by these admissions. Great Am., 165 Cal.App.4th at 451-52; Croskey § 9:138.15.
What Plaintiffs have done is found a separate charge in the rate schedule for transportation and have concluded that, if that charge applies, it means that none of the other services offered by Deardorff apply. The Horse Owners' testimony, as outlined above, show that this is incorrect. The testimony of the Horse Owners confirm that the transportation services are part of the overall boarding relationship with Deardorff, and in particular part of their option to attend horse shows. Leslie Pierce also noted that such charges were typical and that the "barn" where she currently has a horse also charges for hauling fees. The idea that Deardorff is no longer boarding a horse when he is in the process of transporting the horse leads to very strange conclusions. Essentially, just before the horses are on the trailer, Deardorff would be boarding the horses; while the horses are feeding in the trailer and are in transit to and from a horse show, Deardorff is not boarding the horse, but instead is strictly transporting the horse; but when they arrive back at the stable, then Deardorff is once again boarding the horses. So, in connection with each show there would be a small period of time when Deardorff is no longer boarding the horses, despite the boarding agreement's 24/7 care requirement never suspending. This ...