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AHN v. Kumho Tire U.S.A., Inc.

California Court of Appeal, Fourth District, Second Division

January 22, 2014

Steve AHN, et al., Plaintiffs and Appellants,
KUMHO TIRE U.S.A., INC., et al., Defendants and Appellants.


Appeal from the Superior Court of San Bernardino County. Barry L. Plotkin, Judge. Reversed in part and affirmed in part. (Super.Ct.No. CIVRS1004820).

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[166 Cal.Rptr.3d 853] Kim, Shapiro, Park, Lee & Ryu, Paul Park, and Yalan Zheng, Los Angeles, for Plaintiffs and Appellants.

Lim, Ruger & Kim, Bruce G. Iwasaki, and Arnold Barba for Defendants and Appellants.



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The trial court granted summary judgment in favor of defendants Kumho Tire, U.S.A., Inc. (Kumho) and Korea Express U.S.A., Inc. (Korea Express) on plaintiffs' unverified complaint for breach of contract [166 Cal.Rptr.3d 854] and common counts. The motion was based on plaintiffs' " factually devoid" responses to defendants' " state all facts" special interrogatories and requests for production in which plaintiffs generally stated they did not know whether any facts or documents supported various allegations of their complaint. ( Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 580-581, 37 Cal.Rptr.2d 653 [motion for summary judgment may be based on discovery responses indicating the plaintiffs have no evidence to support their claims]; Code Civ. Proc., § 437c, subd. (p)(2).) [1]

In opposing the motion, plaintiff Steven Ahn, the sole owner and principal of plaintiff New Star, Inc., adduced a declaration explaining the evidentiary basis of plaintiffs' claims. Plaintiffs also adduced amended responses to their initial discovery responses along with a declaration by plaintiffs' counsel explaining that the initial discovery responses were " a mistake." The trial court granted the motion after disregarding substantially all of the statements of fact in Ahn's declaration on the ground they were inconsistent with plaintiffs' initial discovery responses. The trial court relied on D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 22-23, 112 Cal.Rptr. 786, 520 P.2d 10 ( D'Amico ), which held that a party's statements of fact adduced on a motion for summary judgment must be disregarded as insubstantial or incredible to the extent they contradict the party's prior " clear and unequivocal admissions" of fact.

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As we explain, this was an overly broad and erroneous application of the D'Amico rule. In light of all the evidence adduced on the motion, a reasonable trier of fact could have credited counsel's explanation that the discovery responses were a mistake and found the contradictory statements in Ahn's declaration credible. ( Mason v. Marriage & Family Center (1991) 228 Cal.App.3d 537, 546, 279 Cal.Rptr. 51 ( Mason ).) Thus, plaintiffs' discovery responses were not " clear and unequivocal admission[s]" of fact which, in light of all the evidence adduced on the motion, could not be credibly contradicted or amended. ( Price v. Wells Fargo Bank (1989) 213 Cal.App.3d 465, 482, 261 Cal.Rptr. 735, overruled on other grounds in Riverisland Cold Storage, Inc. v. Fresno-Madera Production Credit Assn. (2013) 55 Cal.4th 1169, 1179-1182, 151 Cal.Rptr.3d 93, 291 P.3d 316.)

In the unpublished portion of this opinion, we explain why all of the papers on the motion show there are triable issues of fact on plaintiffs' claims. We therefore reverse the judgment in favor of defendants. We affirm a postjudgment order denying defendants' motion for sanctions against plaintiffs and their counsel for allegedly filing a complaint without evidentiary support. (§ 128.7, subd. (b)(3).)


Summary judgment is appropriate when all of the papers submitted show there are no triable issues of any material fact and the moving party is entitled to a judgment as a matter of law. (§ 437c, subd. (c); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843, 107 Cal.Rptr.2d 841, 24 P.3d 493.) " ‘ The purpose of a summary judgment proceeding is to permit a party to show that material factual claims arising from the pleadings need not be tried because they are not in dispute.’ [Citations.]" ( [166 Cal.Rptr.3d 855] Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 168, 92 Cal.Rptr.3d 696; see § 437c, subd. (a).)

A defendant moving for summary judgment has the burden of showing the plaintiff's causes of action have no merit. ( Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at pp. 849-850, 107 Cal.Rptr.2d 841, 24 P.3d 493.) A defendant meets this burden if it makes a prima facie showing that one or more elements of each cause of action cannot be established or is subject to a complete defense. ( Id. at p. 849, 107 Cal.Rptr.2d 841, 24 P.3d 493.) If the defendant makes this showing, the burden shifts to the plaintiff to produce evidence demonstrating the existence of a triable issue of material fact. ( Id. at pp. 849-850, 107 Cal.Rptr.2d 841, 24 P.3d 493; § 437c, subd. (p)(2).)

We review the entire record de novo, considering " ‘ all the evidence set forth in the moving and opposition papers[,]’ ..." ( Blanco v. Baxter Healthcare Corp. (2008) 158 Cal.App.4th 1039, 1046, 70 Cal.Rptr.3d 566.) We disregard evidence to which a sound objection was made but consider any

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evidence to which no objection or an unsound objection was made. ( McCaskey v. California State Automobile Assn. (2010) 189 Cal.App.4th 947, 957, 118 Cal.Rptr.3d 34, citing Reid v. Google, Inc. (2010) 50 Cal.4th 512, 534, 113 Cal.Rptr.3d 327, 235 P.3d 988.)

" ‘ [W]e strictly construe the moving party's evidence and liberally construe the opposing party's and accept as undisputed only those portions of the moving party's evidence that are uncontradicted.’ [Citation.] ‘ ... " Any doubts about the propriety of summary judgment ... are generally resolved against granting the motion, because that allows the future development of the case and avoids errors." ’ [Citation.]" ( Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519, 27 Cal.Rptr.3d 826 ( Scalf ).)


A. The Evidence Adduced on the Motion for Summary Judgment [2]

Ahn, a former truck driver, is the sole owner and president of New Star Transport, Inc. (New Star), a trucking services company. Kumho is the American distribution arm of Kumho Tire Company, an international tire manufacturer. Sometime during 2008, Kumho " outsourced" its entire logistics department to Korea Express.

In 2005, Ahn began providing consulting and trucking services to Kumho without a written agreement. In December 2006, New Star and Kumho entered into a written " dedicated fleet trucking services" agreement whereby New Star made available to Kumho a certain number of trucks, trailers, and drivers in exchange for weekly fees. The 2006 agreement had a one-year term with automatic one-year extensions and could be terminated by either party on 30 days' notice.

In March 2008, New Star and Kumho entered into a successor " dedicated fleet operations" agreement requiring New Star to make available " for the exclusive use" of Kumho no fewer than eight trucks, eight drivers, and 16 trailers. Under the 2008 agreement, Kumho agreed to pay New Star " Fixed Charge[s]" of $1,196 per week for each dedicated truck, plus additional charges based on miles driven, fuel, and [166 Cal.Rptr.3d 856] unloading. New Star agreed to invoice Kumho on ...

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