Koganti v. PODS Enterprises CA4/1

Filed 4/27/23 Koganti v. PODS Enterprises CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

KARTEEK KOGANTI et al., D080905

Plaintiffs and Appellants,

v. (Super. Ct. No. RIC1817775)

PODS ENTERPRISES, LLC,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of Riverside County,
John W. Vineyard, Judge. Reversed and remanded with directions.
Law Offices of Ted B. Wacker and Ted B. Wacker; The Arkin Law Firm
and Sharon J. Arkin for Plaintiffs and Appellants.
Bishop Berry and Aaron Hancock; Cox Wootton Lerner Griffin &
Hansen and Lynn Lucy Krieger; Greines, Martin, Stein & Richland, Edward
L. Xanders and Jeffrey Gurrola, for Defendant and Appellant.
Plaintiffs and appellants Karteek Koganti, Siv Atej Meka,
Ramakrishna Gopu, Phani-Raj Ponna, Venkatrikan Juttiga and Gowtham
Meka appeal a summary judgment entered in favor of defendant and
respondent PODS Enterprises, LLC (PODS) on plaintiffs’ complaint for
personal injuries arising out of an automobile accident involving a semi-truck
carrying containers owned by PODS. Plaintiffs sued PODS, the driver and
others alleging causes of action for negligence, vicarious liability, and
violations of certain federal laws, in part alleging PODS unlawfully brokered
the transportation and permitted interstate brokerage services without
complying with financial security requirements. PODS successfully moved
for summary judgment; the court ruled PODS met its burden to show it was
acting as a shipper and not a motor carrier, precluding liability under any of
the plaintiffs’ causes of action.
On appeal, plaintiffs contend (1) the evidence raises triable issues of
fact as to PODS’s status as a motor carrier; (2) disputed issues of fact exist as
to whether PODS acted as a principal in retaining agents to act as a broker to
locate a driver, and thus is liable under agency principles; and (3) even if the
broker and driver were independent contractors, PODS as the hirer of a
common carrier is liable under the regulated hirer exception to the rule of
nonliability for an independent contractor’s negligence. Plaintiffs challenge
the trial court’s order excluding evidence of testimony recounting content
contained on PODS’s website and certain portions of plaintiffs’ opposing
expert’s declaration.
We reverse the summary judgment. The trial court improperly
sustained PODS’s objections to plaintiffs’ evidence, including to portions of
their expert declaration, and PODS did not specifically object to the expert’s
conclusion that PODS undertook to act as a motor carrier in the transaction
at issue or his opinion that PODS “is liable for all injuries arising out of the
incident as if it was the motor carrier transporting the goods at the time of
the incident.” We hold the evidence raises a disputed fact issue for the jury

2
as to PODS’s status as a motor carrier, and therefore its liability for the
negligence of the entities involving in transporting the load.
FACTUAL AND PROCEDURAL BACKGROUND
We state the undisputed facts and other facts in the light most
favorable to plaintiffs as the losing parties, resolving evidentiary doubts and
ambiguities in their favor. (See Gund v. County of Trinity (2020) 10 Cal.5th

503, 507, fn. 2.)1
In January 2018, plaintiffs were involved in a motor vehicle accident in
Pennsylvania caused by Vasili Ursati while Ursati was operating a tractor
trailer. Ursati was driving in the course and scope of his work for IBY
Transportation, Inc. (IBY), a motor carrier. Ursati’s cargo was containers
owned by PODS containing goods of PODS’s customers. PODS hired Total

1 We note that for many of the facts that plaintiffs purport to dispute,
their responsive separate statement of material undisputed facts does not
provide pinpoint citations to the assertedly supporting evidence, violating
California Rules of Court, rule 3.1350. The Rule of Court provides in part:
“. . . [D]irectly opposite the recitation of the moving party’s statement of
material facts and supporting evidence, the response must unequivocally
state whether that fact is ‘disputed’ or ‘undisputed.’ An opposing party who
contends that a fact is disputed must state, on the right side of the page
directly opposite the fact in dispute, the nature of the dispute and describe
the evidence that supports the position that the fact is controverted. Citation
to the evidence in support of the position that a fact is controverted must
include reference to the exhibit, title, page, and line numbers. (Cal. Rules of
Court, rule 3.1350(f)(2).) Here, for many of PODS’s facts (Nos. 5, 13-16, 18-
20) plaintiffs make an assertion purporting to dispute the fact, then state:
“This is outlined in plaintiffs’ opposition, and encompasses [plaintiffs’
statement of undisputed fact] Nos. 1-40 below” or “See [plaintiffs’ statement
of undisputed fact] Nos. 1-40 below and plaintiff[s’] opposition.” (Some
capitalization omitted.) The deficiency makes it difficult to ascertain the
exact evidence on which plaintiffs rely to dispute the referenced facts. It does
not appear the trial court’s grant of summary judgment was based on the
deficiencies, however. (Compare, Rush v. White Corp. (2017) 13 Cal.App.5th
1086, 1096-1097, 1100-1101.)
3
Quality Logistics, LLC (TQL) to arrange the transportation of its customers’
goods and TQL placed the cargo with IBY. PODS considers itself a moving
company and it maintains a motor carrier license with the Department of
Transportation.
After the accident, plaintiffs sued Ursati, IBY, PODS, VI Solution
Group, Inc. and VI Solution Group, LLC. Their operative first amended
complaint alleges causes of action for negligence, vicarious liability, and

violations of certain federal laws.2 They allege PODS’s negligence in “hiring,
supervising, entrusting, contracting, and/or retaining [TQL] as an agent was
a substantial factor in causing harm to” them, as was PODS’s negligence in
entrusting and allowing Ursati to drive the vehicle. Plaintiffs allege PODS
and the other defendants “directly and/or indirectly” employed and retained
Ursati, and were vicariously liable for their “employee/agent” Ursati’s
tortious conduct. Plaintiffs allege as to PODS and TQL that PODS was a
licensed motor carrier, PODS accepted goods from its customers pursuant to
its authority as a motor carrier, and PODS “unlawfully brokered the load
containing [its customers’] goods to [TQL] to transport,” which violated
federal law. Plaintiffs also allege PODS violated federal law by failing to
comply with registration and financial security requirements for permitting
interstate brokerage services as a broker.
PODS moved for summary judgment or alternatively summary
adjudication of issues. Though it conceded it was a “storage and moving
company,” it argued it acted exclusively as the cargo’s shipper, using third

2 Specifically, plaintiffs rely on a provision of the Motor Carrier Act of
1980, title 49 United States Code section 13901 (Pub.L. No. 96-296 (July 1,
1980) 94 Stat. 793) and title 49 United States Code section 14916. “Congress
deregulated trucking with the adoption of the Motor Carrier Act of 1980.”
(People v. Superior Court of Los Angeles County (2020) 57 Cal.App.5th 619,
628.)
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party carriers to transport its customers’ goods, and thus it assumed no
responsibility for injuries to third parties during transit. PODS presented
evidence that typically a PODS customer will order a container, which is
dropped off, unloaded at the customer’s residence or office, packed by the
customer, then picked up loaded and returned by PODS to a PODS storage
center. It presented evidence that while it maintained a motor carrier
registration with the United States Department of Transportation and used
trucks and drivers for local pickups and drop offs, it viewed deliveries
between storage centers as “entirely distinct.” According to PODS, when a
customer asks that a container be moved across country, PODS arranges for
the container’s shipment from one PODS storage center to another storage
center near the new location, and thus it did not act as a motor carrier for
those shipments. It presented evidence that this arrangement was reflected
in PODS’s rental agreement and privacy policy.
With respect to the specific case, PODS presented evidence it had
worked with TQL, a freight broker that hired and placed the shipment with
IBY as the carrier, and TQL arranged for transportation between PODS
storage centers. PODS asserted it played no role in IBY’s selection and was
not privy to the communications between TQL and IBY; it did not act as a
motor carrier or a freight broker with respect to the shipment involved in the
accident. According to PODS, it “had no input into or control over TQL’s
retention of IBY and IBY’s selection of Mr. Ursati to deliver the load. It
neither employed Mr. Ursati nor directed his operations.”
PODS argued plaintiffs could provide no evidence in support of their
cause of action for negligence under a theory of negligent entrustment, for
which they had to demonstrate PODS knew or should have known its
entrustee was “ ‘incompetent or reckless.’ ” It argued its retention of a freight

5
broker was not an illegal or per se negligent act. PODS presented evidence
that TQL maintained its certification as a freight broker by the Federal
Motor Carrier Safety Administration since onboarding with PODS in 2011,
and its insurance had never lapsed during that time.
As for the claim of vicarious liability, PODS argued it did not employ or
direct the operations of Ursati, who worked for and was supervised by IBY.
PODS acknowledged it was registered as a motor carrier at the time of the
accident, and that under Serna v. Pettey Leach Trucking, Inc. (2003) 110
Cal.App.4th 1475, 1477, a motor carrier “remains vicarious[ly] liabl[e] for the
negligence of all drivers or sub-carriers in the chain of privity under it.”
PODS argued its registration was “irrelevant because it was not functioning
as a motor carrier when the accident occurred.” According to PODS, its
motor carrier registration was used only for trips between customers’
residences and PODS storage centers, which were considered local deliveries,
but the accident involved an interstate delivery between storage centers in
New York and North Carolina, which PODS did not perform. PODS stated
all involved parties understood it did not act as a motor carrier for shipments
between storage centers, but only acted exclusively as a shipper using third
party carriers. PODS pointed out neither its rental agreement nor privacy
policy described PODS as transporting the cargo between storage centers,
only its role as arranging or coordinating shipment and transportation by
third parties. Finally, PODS argued even if some communication or
agreement created a triable issue as to whether it obligated itself to
customers to transport containers with its own resources, it would be
irrelevant to the sufficiency of the vicarious liability cause of action, as

6
nothing in any agreement suggested it was intended to benefit third party

bodily injury claimants.3
In opposition, plaintiffs first argued PODS did not shift the summary
judgment burden of proof to them because PODS failed to provide any
analysis as to what constitutes a shipper under the Federal Motor Carrier

Act.4 They further argued even if PODS sufficiently shifted the burden to
them, the evidence raised triable issues of fact as to PODS’s role with respect
to the cargo load at issue. According to plaintiffs, PODS could not be the
“individual shipper” or a “commercial shipper” within the meaning of federal
law in part because it did not own the goods being transported, nor did it
assume the responsibility to pay the tariff or transportation charges for the
containers.
Plaintiffs argued there was a triable issue of material fact as to
whether PODS acted as a motor carrier in that PODS voluntarily undertook
to be “responsible for the transportation of its customers’ goods from
destination to destination” and made statements to that effect on its

3 PODS further argued that there was no evidence it acted as a broker as
defined by federal law; rather the evidence was it used TQL to select, retain
and place the load with IBY, the motor carrier. For the same reason, PODS
argued it could not have violated 49 United States Code section 14916, which
“pertains to brokers only and creates a cause of action against entities which
are in breach of obligations at subdivision (a) to maintain licensure and
insurance.” PODS maintained that even if the evidence showed it violated
those statutes, the violations would not support a cause of action for damages
because plaintiffs could not show they were entitled to the protections of the
statutes, and plaintiffs could not show either statute provided a remedy for
bodily injury in the first instance. As PODS points out, plaintiffs on appeal
do not challenge the summary judgment on their cause of action alleging
these federal statutory violations.

4 On appeal, plaintiffs do not repeat their arguments that PODS failed to
meet its threshold summary judgment burden.
7
website.5 They argued PODS did not shift the burden to them on the issue of
its vicarious liability, as PODS merely argued it was acting as a shipper
without analyzing whether it met the definition of a shipper. They argued
PODS voluntarily undertook an obligation to be a motor carrier, and under
California law retained vicarious liability for the negligence of all drivers or
sub-carriers in the chain of privity under it. Plaintiffs argued they presented
expert evidence raising triable issues as to PODS’s negligence, precluding
summary adjudication. They further argued agency law compelled the
conclusion that PODS was negligent for the acts of IBY and Ursati, stating,
“[T]here is evidence that PODS is controlling what the sub-carriers do, where
they go, how they get there, how and when to notify the facility that they are
on their way, how to secure the PODS to the truck, and how to communicate
with PODS about progress and issues that occur during transportation. This
is control over the way the hired entity does its job.” According to plaintiffs,
PODS hiring TQL to find a carrier did not absolve PODS of liability or “break
the chain of agency . . . .”
In reply, PODS asserted evidentiary objections to some of plaintiffs’
evidence, namely references to content from pages from PODS’s website by a
deponent, Joe Guerrini, and plaintiffs’ expert, Lew Grill, as well as what
PODS characterized as Grill’s conclusions of law about statutory violations.

5 Plaintiffs argued: “PODS considers itself a moving company and
provides moving and storage services featuring portable storage containers to
the public in exchange for fees paid by its customers. The PODS website says
that PODS ‘does all of the driving,’ and that it will ‘take care of driving your
PODS container to your new home.’ . . . Customers rent containers from
PODS in which they place their personal goods, and then they pay PODS to
transport those containers. The customer only calls PODS for this
transportation service and deals only with PODS.”
8
 Sustaining all of PODS’s evidentiary objections, the court granted the
motion and entered summary judgment. It ruled PODS met its burden of
proof to show it was acting as the shipper for the load in question. The court
found: “Customers pay PODS to ship PODS containers containing customers’
items. . . . Here, PODS tendered its containers to motor carrier IBY . . . at its
storage facility. . . . PODS customers are solely responsible for any and all
applicable governmental, border and custom charges, fees, tariffs, taxes or
any other fees or expenses[ ] related to the transportation of the PODS across
the US-Canada border; however pursuant to PODS’[s] form rental
agreement, customers are advised that PODS may pay tariffs and in turn the
customer authorized PODS to charge customers’ credit card for

reimbursement.”6
The court rejected plaintiffs’ argument that there were triable issues of
material fact as to whether PODS was acting as a motor carrier with respect
to the accident: “It is undisputed that PODS is a licensed motor carrier, that
PODS transports customer[s’] property utilizing its own trucks and drivers
for local deliveries, and that customers pay PODS to ship PODS containers
containing customers’ items. However, in this situation, the customers
requested that their goods be moved across country. In those situations,

6 In making its ruling, the court pointed to the federal regulations
definitions of a shipper and “commercial shipper.” (49 C.F.R. §§ 390.5,
375.103 (2022).) 49 Code of Federal Regulations part 390.5 (2022) defines a
“shipper” in part as “a person who tenders property to a motor carrier or
driver of a commercial motor vehicle for transportation in interstate
commerce . . . .” 49 Code of Federal Regulations part 375.103 (2022) defines a
“commercial shipper” as “a person who is named as the consignor or
consignee in a bill of lading contract who is not the owner of the goods being
transported but who assumes the responsibility for payment of the
transportation and other tariff charges for the account of the beneficial owner
of goods.”
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PODS arranges for shipment of the container through a broker (here TQL)
who in turn contracts with a motor carrier (here IBY).” It rejected plaintiffs’
attempt to create a factual dispute over whether PODS acted as a motor
carrier under agency principles and under the federal statutes. Pointing out
that customer bills included fees for transportation mileage, rental fees, and
insurance for the goods inside the pods, it found only IBY was actually
“providing” the transportation for compensation under the definition of 49
United States Code section 13102. The court ruled: “PODS[’s] role was
simply arranging for the transportation, for compensation, but not actually
‘providing’ the transportation. Further, the purpose of the Federal Motor
Carrier Safety Act is to regulate and impose certain responsibilities on those
operating vehicles to ensure they maintain and operate their vehicles in a
safe manner and to assure that motor carriers maintain an appropriate level
of financial responsibility for motor vehicles operated on public highways.
[Citation.] Here, PODS was not operating the vehicle, nor responsible for
those operating the vehicle. Further, [p]laintiff[s] did not provide any facts
that would support an agency relationship between PODS and IBY.
Accordingly, [p]laintiffs have not identified any disputed facts upon which it
could be determined that PODS was acting as the motor carrier for the load.”
The court ruled that because the undisputed facts reflected that PODS was
not the motor carrier, there were no disputed facts as to whether PODS owed
plaintiffs a duty of care or was vicariously liable, and neither statutory
provision on which plaintiffs relied applied.
Plaintiffs filed this appeal from the judgment.

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 DISCUSSION
I. Summary Judgment Legal Principles and Standard of Review
Summary judgment is proper only if there are no triable issues of
material fact and the moving party is entitled to judgment as a matter of law.
(Code Civ. Proc., § 437c, subd. (c); Regents of University of California v.
Superior Court (2018) 4 Cal.5th 607, 618; Flores v. City of San Diego (2022)
83 Cal.App.5th 360, 371.) A defendant moving for summary judgment has
the burden of producing evidence to show a cause of action lacks merit
because the plaintiff either cannot establish an element of the cause of action
or there is a complete defense. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar
v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853; see Regents, at p. 618;
Flores, at p. 371.) If the defendant satisfies this initial burden, the burden
shifts to the plaintiff to present evidence demonstrating there is a triable
issue of material fact with respect to that cause of action or defense. (Code
Civ. Proc., § 437c, subd. (p)(2); Aguilar, at p. 850; Flores, at p. 371.)
We review the entire record and the trial court’s decision de novo,
considering all the evidence set forth in the moving and opposing papers
except that to which objections were made and sustained. (Hampton v.
County of San Diego (2015) 62 Cal.4th 340, 347; Andrews v. Metropolitan
Transit System (2022) 74 Cal.App.5th 597, 603.) We examine the facts
presented to the trial court and determine their effect as a matter of law.
(Regents of University of California v. Superior Court, supra, 4 Cal.5th at p.
618; Andrews, at p. 603.) “ ‘ “ ‘We liberally construe the evidence in support
of the party opposing summary judgment and resolve doubts concerning the
evidence in favor of that party.’ ” ’ ” (Hampton, at p. 347; accord, Regents, at
p. 618; Andrews, at pp. 603-604.) “[A]ny doubts as to the propriety of

11
granting a summary judgment motion should be resolved in favor of the party
opposing the motion.” (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 535.)
II. Challenge to Evidentiary Rulings
We begin with plaintiffs’ challenge to the court’s evidentiary rulings
because, as stated above, on review of a summary judgment, we normally
disregard all properly excluded evidence. (Code Civ. Proc., § 437c, subd. (c);
Hampton v. County of San Diego, supra, 62 Cal.4th at p. 347; Reid v. Google,
supra, 50 Cal.4th at pp. 534-535; accord, Alexander v. Scripps Memorial
Hospital La Jolla (2018) 23 Cal.App.5th 206, 225 [addressing evidentiary
ruling first where “critical” to the summary judgment rulings].) As more fully
described below, plaintiffs contend the court misapplied the relevant law and
thereby abused its discretion in sustaining PODS’s evidentiary objections to
declaration testimony concerning PODS’s website as well as to certain
averments made by their expert Grill.
A. Additional Legal Principles and Standard of Review
In keeping with the general review standards set forth above, we
strictly construe the declarations in support of a motion for summary
judgment while liberally construing the opposing declarations. (Alexander v.
Scripps Memorial Hospital La Jolla, supra, 23 Cal.App.5th at p. 225; see also
Mackey v. Board of Trustees of California State University (2019) 31
Cal.App.5th 640, 657 [“evidentiary questions at summary judgment ‘ “are
subject to the overarching principle that the proponent’s submissions are
scrutinized strictly, while the opponent’s are viewed liberally” ’ ”].) “ ‘This
does not mean that courts may relax the rules of evidence in determining the
admissibility of an opposing declaration. Only admissible evidence is
liberally construed in deciding whether there is a triable issue.’ ” (Alexander,
at p. 225; see Taylor v. Financial Casualty & Surety, Inc. (2021) 67

12
Cal.App.5th 966, 979 [a party may not raise a triable issue of fact by relying
on evidence that will not be admissible at trial].)
The standard of review for assessing the court’s evidentiary rulings in
the summary judgment context is not settled. (See Reid v. Google, Inc.,
supra, 50 Cal.4th at p. 535 [“[W]e need not decide generally whether a trial
court’s ruling on evidentiary objections based on papers alone in summary
judgment proceedings are reviewed for abuse of discretion or reviewed de
novo”].) Both plaintiffs and PODS argue our review of those rulings is for
abuse of discretion; we acknowledge the weight of authority applies that
standard. (Mackey v. Board of Trustees of California State University, supra,
31 Cal.App.5th at p. 657; see also Doe v. SoftwareONE, Inc. (2022) 85
Cal.App.5th 98, 103; Alexander v. Scripps Memorial Hospital La Jolla, supra,
23 Cal.App.5th at p. 226.) Under it, the challenging party must establish the
court exceeded the bounds of reason, all of the circumstances being
considered. (Alexander, at p. 226; Mackey, at p. 657.)
However, here, as to the evidence concerning PODS’s website, the
court’s “rulings were determined on the papers and were based on questions
of law such as hearsay . . . .” (Pipitone v. Williams (2016) 244 Cal.App.4th
1437, 1451.) In that instance, de novo review is appropriate. (Ibid.;
Alexander v. Scripps Memorial Hospital La Jolla, supra, 23 Cal.App.5th at p.
226 [but holding the standard of review varies depending on the type of
evidentiary objection].)
As for the ruling excluding portions of plaintiffs’ expert’s declaration,
“in the context of pretrial proceedings, the trial court’s ruling . . . is reviewed
for abuse of discretion ‘[e]xcept to the extent the trial court bases its ruling on
a conclusion of law.’ ” (Pipitone v. Williams, supra, 244 Cal.App.4th at p.
1451, fn. 11, citing Sargon Enterprises, Inc. v. University of Southern Cal.

13
(2012) 55 Cal.4th 747, 773.) A court “must . . . be cautious in excluding
expert testimony.” (Sargon, at p. 772.) In assessing expert testimony, “[t]he
trial court acts as a gatekeeper whose role is to ‘exclude “clearly invalid and
unreliable” expert opinion.’ ” (Alexander v. Scripps Memorial Hospital La
Jolla, supra, 23 Cal.App.5th at p. 225; see Sargon, at p. 772.) “ ‘[T]he
gatekeeper’s focus “must be solely on principles and methodology, not on the
conclusions that they generate.” ’ ” (Alexander, at p. 225.) Further, “ ‘[t]he
scope of [a trial court’s] discretion always resides in the particular law
being applied, i.e., in the “legal principles governing the subject of [the] action
. . . .” ’ ” (Sargon, at p. 773.) Thus, “ ‘[t]o determine if a court abused its
discretion, we must consider “the legal principles and policies that should
have guided the court’s actions.” ’ ” (Strobel v. Johnson & Johnson (2021) 70
Cal.App.5th 796, 816, quoting Sargon, at p. 773.) “ ‘[T]he court’s discretion’
to exclude expert testimony in particular ‘is not unlimited’ where it
implicates a party’s ability to present its case. [Citation.] ‘Rather, it must be
exercised within the confines of the applicable legal principles.’ ” (Strobel, at
p. 816.)
Here, as with the evidence pertaining to PODS’s website, the nature of
PODS’s objection—that Grill improperly testified to issues of law in violation
of Summers v A.L. Gilbert Co. (1999) 69 Cal.App.4th 1155, 1179 (Summers)—
suggests de novo review is appropriate. (Accord, Strobel v. Johnson &
Johnson, supra, 70 Cal.App.5th at pp. 816-817 [applying de novo review to
summary judgment evidentiary ruling sustaining objection on case law
relating to intersection of hearsay and expert testimony]; Alexander v.
Scripps Memorial Hospital La Jolla, supra, 23 Cal.App.5th at p. 226 [de novo
review is proper where evidentiary objections raise questions of law]; but see
Mackey v. Board of Trustees of California State University, supra, 31

14
Cal.App.5th at pp. 657-658 [applying abuse of discretion standard in deciding
whether court properly excluded evidence under D’Amico v. Board of Medical
Examiners (1974) 11 Cal.3d 1].) We need not decide the issue, as we conclude
under either standard—reviewing the question either independently or for
abuse of discretion—the court erred by sustaining PODS’s objections to the
portions of Grill’s declaration discussed below. (Accord, Harris v. Thomas
Dee Engineering Co., Inc. (2021) 68 Cal.App.5th 594, 604, fn. 8.)
B. Evidence Regarding PODS’s Website
1. Background
In opposing summary judgment, plaintiffs presented deposition
testimony of PODS’s in-house counsel, Joe Guerrini. During his deposition,
Guerrini responded to questions about exhibits that plaintiffs’ counsel
represented were printed pages from PODS’s website. Specifically, counsel
read from the exhibits and elicited Guerrini’s comment:
[Plaintiffs’ counsel:] “Then it says under the section: . . . [‘]We’ll take
care of driving your PODS container to your new home whether you’re
moving across town or across the country,[’] correct?
[Guerrini:] Correct.
[Plaintiffs’ counsel:] So PODS advises its customers they will take care
of the driving of the PODS containers, correct?
[Guerrini:] I can only read back what it says: [‘]We’ll take care of
driving your PODS container to your new home, whether you’re moving
across town or across the country.[’] ”
In an opposing summary judgment declaration, plaintiffs’ expert Grill
averred he had reviewed PODS’s website, and stated: “The website contains
PODS’[s] advertising and marketing materials. PODS[’s] website informs
customers that PODS did all the driving. PODS advised customers that

15
PODS would use great care at all steps of the long-distance moving process.
There were images of trucks with PODS[’s] logo/name depicted on the truck.
There is no mention anywhere on PODS website or marketing materials that
would alert a customer that someone other than PODS is moving customer[s’]
goods.”
PODS objected to the website references during Guerrini’s deposition
and in expert Grill’s declaration on grounds of inadmissible hearsay (Evid.
Code, § 1200) and lack of foundation for admission as either a business or
public record under the hearsay exceptions for such records (Evid. Code,
§§ 1270 et seq., 1280 et seq.). As for the website references made by Grill,
PODS also cited People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez) for the
proposition that an expert’s recitation of case-specific, out-of-court statements
as true and accurate in support of the expert’s opinion renders the
statements hearsay. The court sustained the objections without explanation.
2. Contentions
Plaintiffs contend the court erred by these evidentiary rulings. It
maintains that because PODS is a party, its statements made on its website
are admissible under the party exception to the hearsay rule and PODS did

16
not rebut a presumption of authenticity set forth in Evidence Code section

1552.7
PODS responds first that Guerrini’s deposition testimony about the
contents of the website is inadmissible because it violates the rule that “oral
testimony is not admissible to prove the content of a writing.” (Evid. Code,
§ 1523, subd. (a).) It argues Grill’s testimony is inadmissible for the same
reason and also because it is case-specific hearsay under Sanchez, supra, 63

7 In connection with these arguments, plaintiffs request that we take
judicial notice of various pages from PODS’s website, which they assert
contain PODS’s admissions that are in conflict with its factual and legal
assertions made below. They specifically argue the pages are properly
judicially noticed as “ ‘[f]acts and propositions that are not reasonably subject
to dispute and are capable of immediate and accurate determination by resort
to sources of reasonably disputable accuracy’ ” (Evid. Code, § 452, subd. (h))
and that the “website and its contents” are judicially noticeable “because they
relate directly to the issues to be decided in this appeal.” PODS points out in
part that plaintiffs did not present the website pages to the trial court. We
deny the request. We do not take judicial notice of documents that were not
presented to the trial court when it decided the summary judgment motion.
(See Meridian Financial Services, Inc. v. Phan (2021) 67 Cal.App.5th 657,
687, fn. 10.) Nor may we judicially notice the truth of the website’s factual
content. (StorMedia Inc. v. Superior Court (1999) 20 Cal.4th 449, 457, fn. 9
[while the existence of a document may be judicially noticed, its “truthfulness
and proper interpretation . . . are disputable”]; LG Chem, Ltd. v. Superior
Court of San Diego County (2022) 80 Cal.App.5th 348, 362, fn. 7 [declining to
take judicial notice of truth of website contents for jurisdictional significance];
Searles Valley Minerals Operations, Inc. v. State Bd. of Equalization (2008)
160 Cal.App.4th 514, 519.) Scott v. JPMorgan Chase Bank (2013) 214
Cal.App.4th 743, on which plaintiffs rely, permitted judicial notice to be
taken of the “undisputed legal effect of a legally operative document” such as
“a recorded assignment or contract.” (Id. at pp. 756,758, fn. 6.) Scott is
inapposite to plaintiffs’ request involving statements made on a business
website. Plaintiffs’ argument about the presumption of authenticity is
curious, as PODS did not object below that the website pages were not
authenticated.

17
Cal.4th 665. PODS further argues the website evidence is irrelevant as
lacking any connection between it and the parties or customers; it maintains
there is no evidence anyone relied on the website or that the website
statements involved the specific transaction or the parties’ expectations.
PODS finally contends that even if the court erred in excluding the evidence,
plaintiffs cannot show a reasonable probability it would lead to a more
favorable result, as there is ample other evidence demonstrating PODS was
neither a motor carrier nor IBY’s principal with respect to the shipment.
3. PODS Forfeited Evidentiary Challenges on Grounds of Secondary
Evidence, Relevance, and Case-Specific Hearsay
We do not consider PODS’s arguments concerning the secondary

evidence rule (see Evid. Code, §§ 1521, 1523)8 or relevance of the testimony
relating to the website statements. While it filed evidentiary objections, the
record does not reflect PODS raised these specific objections in the trial court,
and therefore PODS forfeited its arguments on those issues. (Code Civ. Proc.,
§ 437c, subd. (b)(5) [“Evidentiary objections not made at the hearing [on the
summary judgment motion] shall be deemed waived”]; see also Reid v.
Google, Inc., supra, 50 Cal.4th at p. 525 [to preserve evidentiary issues on
appeal, litigants must object in writing before the summary judgment
hearing or orally at the hearing]; Joshi v. Fitness International, LLC (2022)

8 Evidence Code section 1521 sets out the rule that makes secondary
evidence generally admissible to prove the content of a writing. (Evid. Code,
§ 1521, subd. (a); see also Cal. Law Revision Com. com., 29 B pt. 5 West’s
Ann. Evid. Code (2015 ed.) foll. § 1521, p. 279.) Evidence Code section 1523,
on which PODS seeks to rely for the first time on appeal, provides in part
that, “[e]xcept as otherwise provided by statute, oral testimony is not
admissible to prove the content of a writing.” (Evid. Code,
§ 1523, subd. (a).)
18
80 Cal.App.5th 814, 830 [party waived particular objections to summary
judgment evidence not raised below].)
Nor do we consider PODS’s claim that expert Grill related case-specific
hearsay about the website in violation of Sanchez, supra, 63 Cal.4th 665. The
entirety of PODS’s argument on appeal is: “[B]ecause [Guerrini’s] deposition
testimony regarding the website was not itself admissible, excluding Grill’s
recitation of that testimony was proper on the same basis and as
inadmissible case-specific hearsay under [Sanchez, supra, at p. 686].)”
PODS’s bare reference to Sanchez without meaningful or developed legal
analysis is inadequate. (See Stuard v. Stuard (2016) 244 Cal.App.4th 768,
780 [issue is forfeited in absence of meaningful legal analysis]; Meridian
Financial Services, Inc. v. Phan, supra, 67 Cal.App.5th at p. 684 [reviewing
court on summary judgment is not required to develop the parties’
arguments].) Absent any attempt to “ ‘ “disclose the reasoning by which [it]
reached the conclusions [it] wants us to adopt” ’ ” (Meridian, at p. 699,
quoting Los Angeles Unified School Dist. v. Torres Construction Corp. (2020)

19
57 Cal.App.5th 480, 498) we deem the assertion forfeited.9 In any event, we
reject below the premise that Guerrini’s testimony about the website is
inadmissible hearsay.
4. Guerrini’s Deposition Testimony Relates PODS’s Admission
As set forth above, at his deposition, Guerrini, who is assertedly
PODS’s corporate counsel, merely reiterated statements that were contained
on what counsel represented—and Guerrini did not dispute—were pages
from PODS’s website. During Guerrini’s testimony, PODS did not object on
grounds the website pages were unauthenticated or that they lacked
foundation as a business record. Nor does PODS meaningfully challenge on
appeal the authenticity of the documents presented to Guerrini at his
deposition or make any argument concerning their foundation, which was one
of the bases for its objections below. While it advances a bare assertion that
plaintiffs never attempted to authenticate the website or offer it into

9 Under Sanchez, “an expert may not relate inadmissible ‘case-specific
facts about which the expert has no independent knowledge.’ ” (People v.
Veamatahau (2020) 9 Cal.5th 16, 26, quoting Sanchez, supra, 63 Cal.4th at p.
676.) “ ‘Case-specific facts are those relating to the particular events and
participants alleged to have been involved in the case being tried.’ [Citation.]
Testimony relating such facts, unlike testimony about non-case-specific
background information, is subject to exclusion on hearsay grounds.”
(Veamatahau, at p. 26.) When expert testimony rests on hearsay, however,
“[l]ike any other hearsay evidence, it must be properly admitted through an
applicable hearsay exception.” (Sanchez, at p. 684; see also Veamatahau, at
p. 26.) Thus, an expert’s testimony relating case-specific hearsay is not per se
inadmissible; it may be admitted into evidence if, as here, the hearsay matter
falls within a recognized exception. (Accord, Conservatorship of S.A. (2018)
25 Cal.App.5th 438, 448 [case-specific hearsay related by expert did not
violate Sanchez where the hearsay qualified for admission under business
records exception to hearsay rule]; People v. Roa (2017) 11 Cal.App.5th 428,
450 [“The limitation on expert testimony imposed by the Supreme Court in
Sanchez applies to case-specific facts that are not independently proven or
covered by a hearsay exception,” italics added].)
20
evidence, PODS makes only the forfeited secondary evidence arguments and
the argument that Grill’s testimony as to the website is inadmissible case-
specific hearsay. In short, plaintiffs’ evidence permits an inference that the
documents presented to Guerrini were pages from PODS’s own website, and
PODS does not challenge that inference.
Courts have typically considered information contained on an Internet
website inadmissible hearsay. (See People v. Stamps (2016) 3 Cal.App.5th
988, 996-997, disapproved on other grounds by People v. Veamatahau, supra,
9 Cal.5th 16, 30, fn. 4.) But here, statements by PODS on its own website fall
within the well-recognized hearsay exception for party admissions. (Evid.
Code, § 1220.) Because Guerrini did not relate inadmissible hearsay, the
trial court erred by sustaining PODS’s hearsay objection to Guerrini’s
deposition statements about PODS’s webpage.
C. Declaration of Plaintiffs’ Expert Grill
1. Background
In his opposing summary judgment declaration, Grill, who has worked
in the trucking industry in various capacities since 1968, summarized his
extensive experience and qualifications. He averred in paragraph Nos. 28, 29
and 30: “Moving companies that offer interstate transportation services are
required to register with the [Federal Motor Carrier Safety Administration].
Specifically, moving companies that obligate themselves to the transportation
of the load are required to have motor carrier operating authority. Moving
companies that obligate themselves to arrange for transportation of the load
are required to have brokering authority. [¶] . . . As evidenced by the order
confirmations, attached as Exhibit E to PODS[’s] motion for summary
judgment, PODS made agreements with their customers for transportation of
the customers’ goods. The order confirmations identified the shippers

21
(referred therein as customers) and specified the location for pick up and drop
off. The order confirmations included charges to the shippers for
transportation mileage. The order confirmations also included charges to the
shippers for content protection while the goods were in transit. [¶] . . .
Shipper is defined as ‘any person who (1) is the shipper, consignor, or
consignee of a household goods shipment; (2) is identified as the shipper,
consignor or consignee on the face of the bill of lading; (3) owns the goods
being transported; and (4) pays his or her own tariff transportation charges.’
(49 [C.F.R.] § 375.103 [(2022)].) The goods being transported were owned by
the customers. The individuals paying for transportation were the
customers. The order confirmation contains the customer’s contact
information and is prepared on PODS stationary. ln view of PODS[’s]
advertising to customers and representations made by PODS employees, it is
clear that PODS (a moving company) accepted these loads under its authority
as a motor carrier.”
Grill concluded in paragraph No. 31: “Based on my review of the above
referenced materials, as well as my education, training and experience, it is
my opinion that PODS has undertaken the obligation to act as a motor
carrier in connection with the transportation of goods for these customers.
Specifically, PODS was paid by the shippers (referred to as customers in the
order confirmation) for transportation of their goods from one state to
another state. PODS was also paid by the shippers to insure their goods
during this transportation. PODS was required by the Motor Carrier Act to
advise the shippers if it intended on acting in some capacity other than a
motor carrier. When an entity is undertakes [sic] the obligation to act as a
motor carrier, the entity is responsible for transportation of the load. The
entity is further responsible for any injuries that result in connection with

22
the transportation of the load. Therefore, PODS is liable for all injuries
arising out of the incident as if it was the motor carrier transporting the
goods at the time of the incident.”
Citing Summers, supra, 69 Cal.App.4th at page 1179, PODS objected to
paragraph Nos. 28, 29 and 30 on grounds Grill was “incompetent to testify as
to statutory and regulatory violations, which are issues of law for the court.”
As stated above, the court sustained the objection. PODS did not, however,
object to the paragraph containing Grill’s conclusions or opinion about
liability.
2. Contentions
Plaintiffs contend the court erred by its ruling. They argue Grill
merely summarized the law applicable to the specialized area of trucking
licensure and the factual circumstances on which he relied as a basis for his
opinion on whether PODS was acting as a shipper or motor carrier in the
specific transaction at issue. They maintain that given Grill’s expertise, his
statements were not without foundation nor did they render a legal opinion.
PODS responds that Grill’s conclusions that PODS owed certain duties
as a motor carrier and thus is “liable for all injuries” does not assist the trier
of fact as it applies the law to the particular facts and thus usurps the trial
court’s role. It argues Grill’s liability opinion, as well as his assertions of
what PODS was “obligated” to do, run afoul of the rule that an expert opinion
may not invade the province of the jury to decide a case. PODS further
contends the court properly excluded Grill’s opinion because it was based on
the wrong regulation and thus he “impermissibly relied on matter that is not
‘of a type that reasonably may be relied upon by an expert in forming an
opinion upon the subject to which his testimony relates.’ ” Finally,

23
acknowledging it did not object below to Grill’s opinion in paragraph No. 31,
PODS argues its failure to do so is “irrelevant” because the opinion is a
“ ‘factually unsupported legal opinion’ ” and it is “not substantial evidence”

creating a triable issue of fact.10
3. PODS Forfeited Objections to Grill’s Opinion on Liability for the
Injuries Arising out of the Incident and Foundation for Grill’s Opinions
Basic summary judgment principles require us to consider Grill’s
opinions in paragraph No. 31 of his declaration that “PODS has undertaken
the obligation to act as a motor carrier in connection with the transportation
of goods for these customers” and his resulting statements about PODS’s
responsibility and liability for “all injuries arising out of the incident . . . .”

10 PODS’s substantial evidence argument is unavailing. Admissibility
and substantiality are distinct concepts, substantiality being a rule of
appellate review. (See Apple, Inc. v. Superior Court (2018) 19 Cal.App.5th
1101, 1124.) The cases on which PODS relies, Wise v. DLA Piper LLP (US)
(2013) 220 Cal.App.4th 1180, 1191 [jury trial] and Pacific Gas & Electric Co.
v. Zuckerman (1987) 189 Cal.App.3d 1113, 1126 [bench trial], involved trials
on the merits and appellate court assessments of the adequacy of expert
opinion. (Wise, at pp. 1193-1195; Pacific Gas & Electric Co., at pp. 1128-
1137.) PODS also cites Precision Framing Systems, Inc. v. Luzuriaga (2019)
39 Cal.App.5th 457 for the proposition that “even in the absence of an
objection,” a factually unsupported legal opinion is not “ ‘substantial evidence’
to create a dispute of material fact” to avoid summary judgment. (Id. at p.
469.) Even if we agreed with Precision Framing’s statement, it was
addressing the “factually unsupported legal opinion of two lay witnesses.”
(Ibid., italics added.) Wise, cited by Precision Framing, does not support such
a proposition. Precision Framing also cited Lockheed Martin Corp. v.
Superior Court (2003) 29 Cal.4th 1096. But Lockheed involved a motion for
class certification, in which the plaintiff’s burden is to “place substantial
evidence in the record that common issues predominate.” (Id. at p. 1108,
italics omitted.) The Lockheed court ruled that “[t]aken as a whole, the
medical expert testimony plaintiffs presented in support of their motion for
class certification is too qualified, tentative and conclusionary to constitute
substantial evidence . . . .” (Id. at p. 1111.) The court did not mention the
absence of relevant and factual bases underlying the expert testimony.
24
(Code Civ. Proc., § 437c, subd. (d) [opposing summary judgment declarations
“shall be made by a person on personal knowledge, shall set forth admissible
evidence, and shall show affirmatively that the affiant is competent to testify
to the matters stated in the affidavits or declarations. An objection based on
the failure to comply with the requirements of this subdivision, if not made at
the hearing, shall be deemed waived,” italics added].) PODS did not object to
this paragraph below, and strictly construing its submissions as we must
(Mackey v. Board of Trustees of California State University, supra, 31
Cal.App.5th at p. 657), we will not extend PODS’s objections to paragraph
Nos. 28, 29 and 30 of Grill’s declaration to paragraph No. 31, in which Grill
states his factual conclusions about PODS undertaking the obligation to act
as a motor carrier and his opinion about PODS’s liability.
PODS also forfeited its arguments concerning assertedly improper
foundation for Grill’s opinion, including its claim that the matters on which
he relied are not of a type reasonably relied upon by a trucking expert.
Again, we must take a strict view of PODS’s papers, and resolve “ ‘any
evidentiary doubts or ambiguities in plaintiff[s’] favor.’ ” (Andrews v. Foster
Wheeler LLC (2006) 138 Cal.App.4th 96, 100; see Tverberg v. Fillner
Construction, Inc. (2010) 49 Cal.4th 518, 522.) PODS’s objection below was
different: that Grill was not competent to testify about “statutory and
regulatory violations,” because they were issues of law.
Thus, our review is limited to assessing the court’s evidentiary ruling
on Grill’s statements concerning moving companies’ registration obligations
and legal requirements for operation, as well as Grill’s recitation of the
federal regulations definition of a shipper in paragraph Nos. 28 and 30 of his
declaration. PODS’s objections as to statutory violations or improper legal
conclusions under Summers do not extend to Grill’s factual statements and

25
observations about PODS’s order confirmations. We address those objections
and PODS’s reliance on Summers, supra, 69 Cal.App.4th 1155 below.
4. Grill’s Statements Regarding Moving Company Legal Requirements
or the Definition of a Shipper Are Not Inadmissible
There is no issue as to Grill’s qualifications. PODS does not dispute
Grill’s knowledge of and extensive experience in the trucking industry, in
which he has worked for over 50 years. In part, Grill stated he had authored
more than 15 books and hundreds of articles on trucking, truck driving,
heavy equipment operation, and United States Department of Transportation
regulatory compliance. He stated he had developed and designed truck
driver training curriculum; provided consulting services for fleets, industry,
and government; managed a fleet of tractor-trailers and 180 truck driving
instructors; served as liaison to the Department of Transportation; and
supervised special training programs under Department of Transportation
contracts and government grants, including a Federal Motor Carrier Safety
Administration research project pertaining to the development of a safety
culture in new entrant motor carriers. He stated he had testified in many
state courts as a qualified expert concerning safe operation of commercial
motor vehicles as well as commercial vehicle operator’s/motor carriers’
standard of care. Grill stated: “As a result of my above-mentioned extensive
knowledge, training, education and experience, I have become well familiar
with the applicable standards of care during the last 20 years for the
appropriate and proper operations and conduct of freight brokers and motor
carriers within the United States [and] . . . have become well familiar with
the differences and legal obligations between motor carriers and brokers.”
Grill explained he had been retained to form opinions on the conduct and
actions of the defendants, “including whether they complied with appropriate

26
standards of care in the industry in connection with the interstate
transportation of a certain load of personal property of various individuals” at
issue in the lawsuit.
This foundation served as the basis for Grill’s averments about the
requirements for moving companies to have motor carrier operating authority
and brokering authority, as well as the federal regulations definition of a
“shipper,” matters that are outside a layperson’s knowledge. An expert may
offer opinion on a subject that is “sufficiently beyond common experience” in
order to assist the trier of fact. (See Evid. Code, § 801; Menifee v. Superior
Court of Santa Clara County (2020) 57 Cal.App.5th 343, 360.) And an expert
may “state on direct examination the reasons for his opinion and the matter
. . . upon which it is based, unless he is precluded by law from using such
reasons or matter as a basis for his opinion.” (Evid. Code, § 802.) Expert
opinion testimony “that is otherwise admissible is not objectionable because
it embraces the ultimate issue to be decided by the trier of fact.” (Evid. Code,
§ 805.)
Summers does not compel exclusion of Grill’s general averments
concerning moving companies’ legal obligations and the Code of Federal
Regulation’s definition of a shipper. PODS’s analysis of Summers’s holding is
cursory, and limited to its general statement that, “Even if an expert’s
opinion does not go to a question of law, it is not admissible if it invades the
province of the jury to decide a case.” (Summers, supra, 69 Cal.App.4th at p.
1182.) According to PODS, Grill’s assertions about “what PODS was
‘obligated’ (i.e., had a duty) to do” and that PODS “ ‘accepted these loads
under its authority as a motor carrier’ ” run afoul of Summers.
Summers explained in the context of trial testimony that a “lawyer-
expert who expounds on the law usurps the role of the trial court.” (Summers,

27
supra, 69 Cal.App.4th at p. 1160, italics added.) The case involved a question
of “the proper role of expert testimony in a trial, especially when the
purported expert is a lawyer.” (Id. at p. 1178, italics added.) This court has
previously acknowledged that Summers is “distinguishable for its extremes.”
(People v. Lowe (2012) 211 Cal.App.4th 678, 686.) We said, “The expert in the
Summers case, a lawyer in the transportation field, went far beyond
identifying the statutory criteria underpinning his opinions. He testified to
‘issues of law . . . almost too numerous to list,’ including that specific actions
were illegal, specific contracts were illegal, and one party was liable for
another part[y’s] actions under the doctrine of nondelegable duty, respondeat
superior and negligent hiring. [Citation.] Rather than provide the jury with
information to consider and weigh in reaching a decision, the expert usurped
the jury’s role by weighing the evidence and drawing the conclusions himself.
Essentially, the expert ‘was advocating, not testifying.’ ” (Lowe, at p. 686.)
The Summers court held the lawyer expert “made plaintiff’s closing argument
from the witness stand,” a “misuse” of expert witnesses. (Summers, at p.
1185.)
This case, still in the summary judgment stage, is not Summers. Here,
Grill in paragraph Nos. 28 and 30 of his declaration generally identified the
statutory criteria underpinning his opinions, giving a reasoned explanation
for them. The fact he “utilized the statutory language to frame [his]
opinions” does not render them inadmissible. (Accord, People v. Lowe, supra,
211 Cal.App.4th at p. 685 [“ ‘It is no more an invasion of the province of the
jury for an expert to give his opinion that an accused is insane including the
correct legal test than for him to give his opinion merely that the accused is
insane. It cannot fairly be argued that any prejudice is caused the accused by
allowing the jury to know the basis upon which the expert has reached his

28
conclusions and the grounds therefor’ ”].) Contrary to PODS’s arguments,
Grill in paragraph No. 28 did not specify PODS’s obligations, but spoke
generally to the obligations of “[m]oving companies that offer interstate
transportation services” or “moving companies that obligate themselves to
the transportation of the load . . . .” Grill’s statement that in view of PODS’s
advertising to customers and representations made by its employees,
“PODS . . . accepted these loads under its authority as a motor carrier” is a
factual, not a legal, conclusion. In the summary judgment context, we are to
liberally construe the opposing party’s evidence, including the admissibility of
expert testimony and its sufficiency to create a triable issue of fact. (See
Garrett v. Howmedica Osteonics Corp. (2013) 214 Cal.App.4th 173, 189;
Michaels v. Greenberg Traurig, LLP (2021) 62 Cal.App.5th 512, 524.) Doing
so here compels us to conclude the court erred by sustaining PODS’s
objections to paragraph Nos. 28, 29 and 30 of Grill’s declaration. Though
Grill went on to say in paragraph No. 31 that PODS was “liable for all
injuries arising out of the incident as if it was the motor carrier transporting
the goods at the time of the incident,” as we have stated, PODS did not object

to that portion of Grill’s declaration.11
III. The Motor Carrier Issue
In moving for summary judgment, PODS stated it expected plaintiffs to
argue it was vicariously liable because it was licensed as a motor carrier at
the time of the subject accident, stating that “[u]nder both California and
federal law, a motor carrier remains vicarious[ly] liab[le] for the negligence of
all drivers or sub-carriers in the chain of privity under it.” PODS argued,
however, the fact it possessed registration as a motor carrier at the time of

11 Accordingly, we express no opinion on the admissibility of Grill’s
specific liability opinion at trial, over which the trial court will exercise its
gatekeeping duties.
29
the subject accident was “irrelevant because it was not functioning as [a]
motor carrier when the accident occurred.” PODS presented a declaration
from Brian Watts, its Senior Manager of Logistics and PODS’s person most
knowledgeable about shipments between PODS storage centers. In part
Watts averred, “PODS does not act as a motor carrier for shipments between
storage centers.”
This evidence was countered by Grill’s conclusions, including his
specific opinion that PODS undertook to operate as a motor carrier in
connection with the transportation of the goods involved in the accident. We
are not to decide the merits of this issue, but merely whether there are
disputed issues of fact. (Palm Springs Villas II Homeowners Assn., Inc. v.
Parth (2016) 248 Cal.App.4th 268, 280.) Having decided the court improperly
sustained PODS’s objections to Grill’s declaration, we conclude the record
presents a disputed question for a trier of fact as to whether PODS acted as a
motor carrier with regard to the shipment involved in the accident that is the
subject of this lawsuit.
As PODS recognized in moving for summary judgment, a motor carrier
remains liable for the negligence of its subcontractors under the theory that
their duties to the public are not delegable. “Highway common carriers may
not . . . insulate themselves from liability for negligence occurring in the
conduct of their business by engaging independent contractors to transport

30
freight for them.” (Eli v. Murphy (1952) 39 Cal.2d 598, 601;12 see also
Vargas v. FMI, Inc. (2015) 233 Cal.App.4th 638, 649-650 [discussing doctrine
and Murphy]; Serna v. Pettey Leach Trucking, Inc., supra, 110 Cal.App.4th at
p. 1486 [the rule is that a carrier who undertakes an activity (1) which can be
lawfully carried on only under a public franchise or authority and (2) which
involves possible danger to the public is liable to a third person for harm
caused by the negligence of the carrier’s independent contractor]; Castro v.
Budget Rent-A-Car System, Inc. (2007) 154 Cal.App.4th 1162, 1178 [Serna
“presented the paradigm in which a shipper contracts with a carrier
operating under a franchise to transport the shipper’s goods interstate, and
the carrier arranges for a subcontractor to perform the transportation
services on the carrier’s behalf. Under the nondelegable duty doctrine . . . the
carrier is treated in such cases as if it owned the truck and employed the
driver for purposes of determining the carrier’s liability for the negligence of
the subcontractor”]; Gamboa v. Conti Trucking (1993) 19 Cal.App.4th 663,
665-666; Milsap v. Federal Express Corp. (1991) 227 Cal.App.3d 425, 434
[acknowledging doctrine and discussing Murphy]; Rest.2d Torts, § 428 [“[a]n

12 The California Supreme Court in Eli v. Murphy, supra, 39 Cal.2d 598
stated: “The effectiveness of safety regulations is necessarily impaired if a
carrier conducts its business by engaging independent contractors over whom
it exercises no control. If by the same device it could escape liability for the
negligent conduct of its contractors, not only would the incentive for careful
supervision of its business be reduced, but members of the public who are
injured would be deprived of the financial responsibility of those who had
been granted the privilege of conducting their business over the public
highways.” (Eli v. Murphy, at p. 600; see also id. at p. 601 [“In view of the
more extensive and regular operations of highway common carriers as
compared with others, the Legislature could reasonably conclude that the
safety of their operations is of special importance and legislate accordingly.
Highway common carriers may not, therefore, insulate themselves from
liability for negligence occurring in the conduct of their business by engaging
independent contractors to transport freight for them”].)
31
individual or a corporation carrying on an activity which can be lawfully
carried on only under a franchise granted by public authority and which
involves an unreasonable risk of harm to others, is subject to liability for
physical harm caused to such others by the negligence of a contractor
employed to do work in carrying on the activity”].)
In Eli v. Murphy, the court explained that a highway common carrier,
subjected to public regulatory powers, is engaged in a “ ‘business attended
with very considerable risk’ ” and the effectiveness of safety regulations is
necessarily impaired if a carrier conducts its business by engaging
independent contractors over whom it exercises no control. (Eli v. Murphy,
supra, 39 Cal.2d at pp. 599-600.) “Accordingly, both to protect the public
from financially irresponsible contractors, and to strengthen safety
regulations, it is necessary to treat the carrier’s duties as nondelegable.” (Id.
at p. 600.) “Were the rule otherwise, a carrier could escape liability for the
negligence of its independent contractors, thus reducing the incentive for
careful supervision and depriving those who are injured of the financial
responsibility of those to whom the privilege was granted. For these reasons,
the carrier’s duties are nondelegable . . . .” (Serna v. Pettey Leach Trucking,
Inc., supra, 110 Cal.App.4th at p. 1486.)
PODS recognizes that plaintiffs’ negligence and vicarious liability
causes of action are based on the premise that it acted as a motor carrier in
connection with the specific transaction. Given plaintiffs’ evidence raises a
triable issue for the jury on this question, we conclude summary judgment
was inappropriately granted on those causes of action.

IV. PODS’s Arguments

32
 PODS makes a series of arguments that do not persuade us to change
our conclusion. Some—as to the evidence “indisputably” showing PODS was
not a motor carrier—are premised on PODS’s position that the court properly
excluded the objected-to evidence discussed above. Some argue the merits of
issues, such as whether PODS was a shipper of the storage containers.
PODS further argues we should affirm the summary judgment because
issue preclusion bars plaintiffs’ arguments about its motor carrier status.
Specifically, it maintains a now-final summary judgment in TQL’s favor
constitutes an “appealable judgment disposing of all claims on the merits” on
the necessarily-decided identical issue. But as plaintiffs’ point out and we
agree, PODS did not present this argument or theory to the trial court, and
we may not consider it for the first time on appeal. (Accord, Meridian
Financial Services, Inc. v. Phan, supra, 67 Cal.App.5th at pp. 699-700.) We
may affirm a summary judgment regardless of the court’s stated reasons, but
only if correct on a “ground the parties had an adequate opportunity to
address below.” (Hassaine v. Club Demonstration Services, Inc. (2022) 77
Cal.App.5th 843, 850, citing Staats v. Vinter’s Golf Club, LLC (2018) 25
Cal.App.5th 826, 832.)
PODS contends plaintiffs neither pleaded the “regulated hirer

exception” nor raised it in opposing summary judgment.13 Though plaintiffs
state in their opening appellate brief the “regulated hirer exception” was not

13 We have found one California case—Secci v. United Independent Taxi
Drivers, Inc. (2017) 8 Cal.App.5th 846, 860—using the phrase “regulated
hirer exception” to refer to one of several exceptions to the general rule that a
company is not liable for the negligent acts of its independent contractors.
(Id. at pp. 859-860.) Secci did so by reference to Eli v Murphy, supra, 39
Cal.2d 598 and Vargas v. FMI, Inc., supra, 233 Cal.App.4th at page 644, both
of which deal with regulated trucking companies’ inability to delegate their
public responsibilities by using independent contractors, the very argument
made by plaintiffs in opposing summary judgment.
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raised in the trial court, the record is to the contrary. Plaintiffs very
specifically argued in their opposing summary judgment papers that “[u]nder
both California and federal law, a motor carrier retains vicarious liability for
the negligence of all drivers or sub-carriers in the chain of privity under it,”
citing section 428 of the Restatement Second of Torts, Eli v. Murphy, supra,
39 Cal.2d at page 601, Serna v Pettey Leach Trucking, Inc., supra, 110
Cal.App.4th 1475 and other cases mentioned above. They quoted Serna’s
summary of the rule, and the underlying policy for it. PODS itself
acknowledged in its reply papers below that “the linchpin of plaintiffs’
argument in opposition to [its] motion” was that PODS could be considered a
motor carrier, and that plaintiffs argued PODS’s vicarious liability arose on
grounds it acted as a motor carrier. PODS did not argue the complaint failed
to plead a nondelegable duty theory, nor could it given plaintiffs’ claim for
vicarious liability based on general allegations that each defendant was an
independent contractor of their codefendants, and was negligent in the
selection, hiring, training control and supervision of every other defendant.

DISPOSITION
The judgment is reversed as to plaintiffs’ causes of action for negligence
and vicarious liability and the matter remanded with directions that the trial
court enter summary adjudication only of plaintiffs’ third cause of action for
violations of 49 United States Code sections 13901 and 14916(c)(2). The
parties shall bear their own costs on appeal.

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 O’ROURKE, J.

WE CONCUR:

HUFFMAN, Acting P. J.

DATO, J.

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