("

I L... s^^ '

1 MARK R. SWARTZ, ESQ. / SBN: 121922 LAW OFFICE OF MARK R. SWARTZ 2 11344 Coloma Road, Suite 515 Gold River, Califomia 95670 3 Telephone: (916) 631-7722 4 Attomeys fior Plaintiff 5 6 7
8

;f400R3'LiD
10APR19 PH 1=55
LEGAL PROCESb rt
J ,

SUPERIOR COURT OF CALIFORNIA

9 10 11 12 13 14 15 Plaintiffs, 16
V.

RAMONA KAY SKATTEBO; AIREAN LEE HARPER, by and through his Guardian Ad Litem, BILLY SILVAS; STEVEN ALLEN SKATTEBO HI, by and tiirough his Guardian Ad Litem, BILLY SILVAS; JOSEPH MICHAEL HERNANDEZ, by and through his Guardian Ad Litem JENNIFER HERNANDEZ

No. 34-2008-00002074 PLAINTIFF'S OPPOSITION TO THE DEFENSE'S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANT JASON GOLSON'S MOTION FOR SUMMAIEIY JUDGMENT Date: Time: Dept: Judge: May 3,2010 2:00 p.m. 53 The Honorable Loren E. McMaster

17 18 19 Defiendants. 20 21 22 23 24 25 26 27
28

JASON GOLSON, and DOES I tiirough X, inclusive. Action Filed: Trial Date: Discover Cutoff:

RESERVATION NO: 1335208 January 25,2008 None None

Undisputed Material Facts and Alleged Supporting Evidence: I. Plaintiffs Second Amended Complaint alleges a single cause ofi action fior wrongful deatii arising from a motor vehicle accident which occurred on Febmary 2,2006, wherein plaintiffs' decedent Steven Skattebo Jr., (hereinafter "Skattebo") crashed his motor vehicle into a ttee. See: Plaintiffs' Second Amended Complaint, Exhibit A to RequestfiorJudicial Notice.
PLAINTIFF'S OPPOSITION TO DEFENDANTS SEPARATE STATEMENT OF UNDISPUTED MATERIALS FACTS

Response and Evidence: 1. Denied. A Third Amended Complaint was filed with the Superior Court of Sacramento County on Febmaty 23,2010.

-1-

1 2. Defendant JASON GOLSON has raised as an affirmative defiense to Plaintiffs' 2 wrongful death cause ofi action that Plaintiffs' claims are barred by the doctrine 3 ofi primaty assumption ofithe risk, because Skattebo's demise resultedfromhis "knowing and voluntaty engagement in an 4 activity with a known and inherent risk ofi 5 harm ofithe type which caused decedent's death and resultant injuries to his survivors. 6 [That] Skattebo... assumed the risk ofiany injuries or damages thereby barring any 7 recovety by Plaintiffs..." 8 9 3. On Febmaty 2,2006, defiendant JASON GOLSON was driving his 1988 CRX on Aubum Blvd., when he encountered Steven 11 Skattebo Jr. At a redfrafficlight at Aubum's intersection with Madison Ave. Skattebo, was driving his own 1987 Ford Mustang, 12 and his step-brother, Matthew Materio, minor at the time (hereinafier "Materio"), 13 was occupying the passenger seat. 14 See: Golson Declaration at t1|2-3. 15 Sacramento County Sheriffs Department records, Traffic Collision Report, Exhibit C 16 and T|3 to Declaration ofi Peter Malion at Bates Nos. 8-10. 17 10 18 19 20 21 22 23 24 25 26 27 28
PLAINTIFF'S O P P O S m O N TO DEFENDANTS SEPARATE STATEMENT OF UNDISPUTED MATERIALS FACTS

2. Admitted.

See: Answer ofi Defendant Jason Golson, Exhibit B to Request for Judicial Notice. 3. Disputed. First: The various statements contained in Exhibit C to the Declaration ofi Mr. Malion have not been properly authenticated by an Affidavit that confiorms with Evidence Code Section 1561. Second: The out ofi court witness statements contained in the investigation reports that are attached to Defiense Exhibit C constitute inadmissible hearsay since they are statements from civilian witnesses to the collision who, uitiike a police officer preparing a report ofi his own observations ofi an event, are not under a duty to accurately and tmthfiilly report what fliey have seen. Therefiore, none ofi these statements comply with the public records exception to the hearsay mle. Evidence Code section 1280. Therefiore, all witness and suspect statements contained in Exhibit C constitute inadmissible hearsay pursuant to Califiomia's hearsay mle. Evidence Code Section 1200,1201. Third: Defiense Exhibit C also contains out ofi court statements attributed to Defiendant Golson. The defiendant's statements are inadmissible hearsay since such statements must be offered against a party in order to be admissible as an admission. Evidence Code section 1220 Please not that Plaintiffis not objecting to the out ofi court statement attributed to Golson which has been offered into evidence by the Defiense and which is contained on page 31, lines 22-29 and page 32, lines 1-7.
-2-

1 2 3 4 5 6 7 8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
PLAINTIFF'S O P P O S m O N TO DEFENDANTS SEPARATE STATEMENT OF UNDISPUTED MATERIALS FACTS

Fourth: Mr. Golson's declaration which is unreliable and untmstworthy since MT. Golson claims he had been sfreet racing prior to the collision but he does not claim that he was sfreet racing at the time tiie collision occurred. Second, when Mi*. Golson was first interviewed by law enfiorcement, he denied any involvement in any sfreet race or collision whatsoever. TWrd, his declaration is confradicted by the declaration ofi Beth Matheu who witnessed him swerve into the decedent's lane ofi travel thereby causing the decedent to lose confrol ofi his car. For these reasons, Golson's declaration is not tmstworthy and should not be considered as the basisfiorany imdisputed material fiacts. 4. On Febmaty 2,2006, Skattebo's Mustang was iminsured. See: Traffic Collision Report, Exhibit C at Bates Page No. 8 and ^ 3 to Declaration ofi Peter Malion. Deposition ofi Ramona Skattebo at p. 80:3:84:17, Exhibit D and t4 to Malion Dec. 4. Disputed. Whetiher or not the automobile that the decedent was driving was insured or uninsured is irrelevant pursuant to Califiomia Civil Code Section 3333.4 and is irrelevant to this action. This section does not apply to wrongful death heirs. Horrowich v Superior Court (1999) 21 Cal.4tii 272. Furthermore, as stated above, all statements in Exhibit C, which constitutes a copy ofthe investigation reports prepared by law enfiorcement are improperly authenticated and constitute inadmissible hearsayfiorthe reasons stated in plaintiffs' objections to defiense material fact number three and are hereby incorporated by reference as tiiough fiilly forth herein. 5. Disputed. Thisfiactis irrelevant to the Defiense MotionfiorSummaty Judgement. The defiense appears to be assertmg a seat belt defiense in a Motion fior Sunimary Judgement. Such a motion must be supported by declarations from competent expert witnesses which address the forces involved in the collision and that ifa seat belt had been wom the decedent would have infiactsurvived the collision. Franklin v. Gibson (1982) 138 CaI.App.3rd 340,343. Thisfiactualassertion is also unsupported by any refierence to the law enfiorcement reports contained in Defiense Exhibits C, E and F fior the reasons stated in Plaintiffs objections to Defiense Material Fact Number Tliree which are hereby incorporated by refierence.

5. On Febmary 2,2006, Skattebo's Mustang did not have functioning seat belts fior either the driver or front passenger positions. See: Deposition ofi Ramona Skattebo at p. 166:2-18, Exhibit D and 1| 4 to Malion Dec; Supplemental to Traffic collision Report (Materio Statement), Exhibit E and T 5 to I Malion Dec.

-3-

1 2 3 4 6. On Febmaty 2,2006, Skattebo and Materio had pulled their respective seat belts and shoulder harnesses around themselves 6 and tied them to the emergency brake handle between the two seats to give the appearance 7 to law enfiorcement that they were wearing seatbelts. 8 See: Supplemental to Traffic Collision Report (Materio Statement), Exhibit E and T J 9 5 to Malion Dec. 10 7. JASON GOLSON did not know Skattebo 11 or Materio prior to encountering them in fraffic on Febmaty 2, 2006. 12 See: Golson Dec, at T|3, Traffic Collision 13 Report, Exhibit C and p to Declaration of Peter Malion, passim. 14 8. Skattebo voluntarily engaged GOLSON 15 in a series ofi high speed car races on Febmary 2, 2006, originating at tihe 16 intersection ofi Aubum Blvd. And Madison Ave, and ending more than 3 miles away on 17 Aubum Blvd. West ofi San Tomas Drive in Citms Heights. 18 See Golson Dec, at t1|3-4, Traffic CoUision Report, Exhibit C and T|3 to Declaration ofi 19 Peter Malion, passim. 20 9. While racing on Febmaty 2,2006, 21 Skattebo's Mustang was seen by witnesses ttaveling at speeds estimated to be in excess 22 ofi 80 miles per hour, and weaving in and out ofi fraffic. 23 See Golson Dec, at ^4, Traffic Collision 24 Report, Exhibit C and f3 to Declaration ofi Peter Malion,/7a55//. 25 10. While racing on Febmary 2, 2006, Skattebo lost confrol ofi his vehicle after 26 rounding a curve on Aubum Blvd. Just past 27 Van Maren, and crashed into afreeat a high rate of speed, splitting his vehicle in half, 28 resulting in his own death and serious 5
PLAINTIFF'S O P P O S m O N TO DEFENDANTS SEPARATE STATEMENT OF UNDISPUTED MATERIALS FACTS

The deposition testimony of Ramona Skattebo contained in Defense Exhibit D is not based upon her personal knowledge since she was not present when the collision occurred. Evidence Code section 702. 6. Disputed. Thisfiactualassertion is unsupported by any refierence to the law enfiorcement reports contained in Defense Exhibits C, E and F for the reasons stated in Plaintiffs objections to Defiense Material Fact Number Three which are hereby incorporated by refierence.

Undisputed.

8. Disputed. Thisfiactualassertion is unsupported by any refierence to the law enfiorcement reports contained in Defiense Exhibits C, E and Ffiorthe reasons stated in Plaintiffs objections to Defiense Material Fact Number Three which are hereby incorporated by refierence as thoughfiullyset fiorth herein.

9. Disputed. Thisfiactualassertion is unsupported by any refierence to the law enforcement reports contained in Defiense Exhibits C, E and Ffiorthe reasons stated in Plaintiffs objections to Defiense Material Fact Number Three which are hereby incorporated by refierence as though fially set fiorth herem. 10. Disputed. Thisfiactualassertion is unsupported by any refierence to the law enfiorcement reports contained in Defiense Exhibits C, E and Ffiorthe reasons stated in Plaintiffs objections to Defiense Material Fact Number Three which are hereby
-4-

1 injuries to his stepbrother, Materio. 2 3 4 11. There was no contact between 5 GOLSON's Honda and Skattebo's Mustang prior to Skattebo's accident; GOLSON's 6 Honda was inspected by law enfiorcement after Skattebo's solo collision, andfioundto 7 befreeofany collision damage. See: Golson Dec, at \ 1 . Traffic Collision Report, Exhibit C and Tf3 to Declaration of 9 Peter Malion,/>a55'//M. Supplemental to Traffic Collision Report (Materio 10 Statement), Exhibit E and f5 to Malion Dec. Supplemental to Traffic Report (Vehicle 11 Inspection Report), Exhibit F and ^6 to Malion Dec. 12 8 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
PLAINTIFF'S O P P O S m O N TO DEFENDANTS SEPARATE STATEMENT OF UNDISPUTED MATERULS FACTS

incorporated by refierence as though liilly set fiorth herein. Furthermore, this fiactual assertion is not supported by the personal knowledge ofthe defendant since in his declaration he states that it is his information and beliefthat these events occurred. 11. Disputed. Thisfiactualassertion is unsupported by any refierence to the law enfiorcement reports contained in Defiense Exhibits C, E and Ffiorthe reasons stated in Plaintiffs objections to Defiense Material Fact Number Three which are hereby incorporated by refierence as though fiilly set fiorth herein.

n\^ DATED: April V_J 2010

LAWO

R. SWARTZ

-5-

1 :OURT:
: A S E NO.:

2 : A S E NAME: 3 4
I declare that:

SUPERIOR COURT OF CALIFORNIA, COUNTY OF SACRAMENTO 34-2008-00002074 SKATTEBO v. GOLSON PROOF OF SERVICE CCP 1012.5,1013a, 2015.5 and Califomia Rules of Court, Rule 2008

5 6 7 8 9
10 11 12 13 14 15 16 17 18
[By Facsimile Machine (FAX)] On, at, by use of facsimile machine telephone number (916) 631-7280,1 served a tme copy of the aforementioned document(s) on the parties in said action by ti-ansmittmg by facsimile machine to the numbers as set forth above. The facsimile machine I used complied with Califomia Rules of Court, Rule 2003(3) and no error was reported by the machine. Pursuant to Califomia Rules of Court, Rule 2008(e), I caused the machine to print a transmission record ofthe transmission, a copy ofwhich is attached to this Declaration. [By Mail] 1 am familiar with my employer's practice for the collection and processmg of correspondence for mailmg with the United States Postal Service and that each day's mail is deposited with the United States Postal Service that same day m the ordmary course ofbusiness. On the date set forth above, 1 served the aforementioned document(s) on the parties m said action by placing a tme copy thereof enclosed m a sealed envelope with postage thereon fiilly prepaid, for collection and mailing on this date, following ordinary business practices, at Sacramento, Califomia, adciressed as set forth above. [By Personal Service] By personally delivering a tme copy thereofto the office ofthe addressee above I am a citizen ofthe United States and am over the age of eighteen years and not a party to the withm above-entitled action. I am an employee ofthe Law Office ofMark R Swartz, 11344 Coloma Road, Suite 515, Gold River, Califomia. On this date I served the within document,

PLAINTIFF'S OPPOSITION TO THE DEFENSE'S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANT JASON GOLSON'S MOTION FOR SUMMARY JUDGEMENT
on the parties in said action addressed as followsPeter Malion Law Ofiice of Steven D. Hillyard 345 Califomia Street, Suite 1770 San Francisco, CA 94104 Attomey for Defendant Jason Golson TeL (415)334-6880 Fax. (415)334-6967

19 20
21 22 23
X

24 25 26 27 28

[By Ovemight Courier] By causing a tme copy and/or original thereofto be personally delivered via the following ovemight courier service: Federal Express

I declare under penalty ofperjury under the laws ofthe State ofCalifomia that the foregoing is tme and correct, and that this declaration was executed on April 19,2010, at Gold River, Califomia.

Heather Banchieri