MEEHAN, J.
On March 29, 2012, a workplace accident occurred at King Pak Potato Capital Plant, a potato packing plant owned and operated by respondent Grimmway Enterprises, Inc. One of King Pak's forklift drivers, respondent Hernandez Moreno, was loading potatoes into the truck of Baldemar Gutierrez (Gutierrez), who was assisting in the loading process from the cargo area of his truck, when the accident occurred. Gutierrez, but not Moreno, was injured and initially appeared in pain. He declined to take the load of potatoes as planned, but Gutierrez was able to leave King Pak on his own power with the intention of returning the next day to pick up his load. Gutierrez did not return, however, as within two to three days, he started spitting up blood and entered the hospital where he remained until his death less than 30 days later.
Appellants Oralia Gutierrez, Jose Gutierrez, Pearl Salina, Baldemar Gutierrez, Jr., and Eddie Gutierrez are all relatives of Gutierrez, who brought suit against Moreno and Grimmway (collectively Grimmway) for negligence. They appeal from the trial court's grant of summary judgment against them, as well as the evidentiary ruling supporting the trial court's judgment. Appellants contend the trial court erroneously found there was no evidence of a triable issue of material fact as to Grimmway's alleged negligence because it wrongly excluded dying declarations made by Gutierrez detailing the circumstances of the accident. For the reasons set forth below, we reverse the trial court's summary judgment and remand for further proceedings.
Grimmway operates a potato packing operation known as King Pak. King Pak employs Moreno as a forklift operator. A portion of Moreno's work duties involves running potatoes, which is the process by which pallets of potatoes are loaded into trucks for transportation. A pallet of potatoes consists of 50 boxes of potatoes, each box weighing approximately 63 pounds, stacked in a cube-like structure where seven boxes of potatoes, making up each layer, are stacked seven layers high.
In a typical loading scenario, Moreno uses a forklift, equipped with a flat metal plate instead of forks, to lift each pallet of potatoes approximately four inches off the ground. Moreno then moves the pallet into the back of a truck, lowers it to the ground, and slides the metal plate out from under the pallet.
Grimmway's evidence regarding the accident that occurred consisted predominantly of Moreno's deposition testimony. Moreno testified that, based on prior experience, loading interactions with Gutierrez were slightly different than the typical scenario described above. Because Gutierrez used a small truck, the potatoes were not loaded at the dock. Rather, Moreno would transport the pallet to a location near Gutierrez's truck. He would then raise the potatoes to a height of one foot, placing the top box at a height roughly parallel to Gutierrez's waist. Gutierrez would remove the top box and place it in his truck. This step was necessary for the pallet to fit within the truck.
Moreno would then raise the pallet to a height of three to four feet and place it inside of Gutierrez's truck. Gutierrez would remain in the truck, standing to the side. To move the pallet from its initial placement to the front of Gutierrez's truck, Gutierrez would place an eight-foot long, homemade wood pallet weighing approximately 100 pounds in front of the potato pallet. Moreno would use his forklift to push on the wood pallet, thereby moving the potato pallet toward the front of the truck.
On March 29, 2012, Gutierrez arrived at King Pak to pick up a load consisting of three pallets of potatoes. At Moreno's deposition, he testified that he took the first pallet to Gutierrez's truck. The potato boxes were glued together and the pallet wrapped in plastic. Upon reaching the truck, Moreno raised the pallet one foot from the ground to allow Gutierrez to unload the top box. At that point, he turned off the forklift.
Gutierrez removed the top box. About 10 seconds later, Moreno heard Gutierrez call for help. Moreno exited his forklift and found Gutierrez was on his back in the cargo area of the truck. The one loose potato box rested upon Gutierrez's chest, with the bottom of the box facing upward, and Gutierrez's homemade wood pallet rested on Gutierrez's leg. According to Moreno, the potato pallet and the forklift did not move during this time.
Moreno testified he removed the wood pallet from on top of Gutierrez and rested it on the side of the truck. No other people came to help. Moreno then helped Gutierrez walk about 30 meters in a straight line, then back to his truck. While he appeared in pain shortly after the accident, Moreno said Gutierrez appeared fine after finishing the walk. Gutierrez decided not to take the load of potatoes after the accident. Moreno later filled out an accident report in a manner consistent with his version of the events.
Relying on this narrative, Grimmway sought summary judgment, contending there was no evidence of negligence on their part.
Appellants disputed Grimmway's version of the facts. In their initial complaint, which asserted five negligence-based causes of action, appellants alleged that Grimmway was negligent in stacking and loading the potato pallet, thereby causing the pallet to "topple on top of and crush" Gutierrez. When opposing Grimmway's motion for summary judgment, appellants contested several of Grimmway's factual contentions. Appellants asserted that on the date of the accident, the potato "boxes were not wrapped or tied together," the "load was sufficiently elevated such that multiple boxes fell on" Gutierrez when the "forklift backed up, turned, or jerked such that the unstable load was made to sway and topple over," and that the "forklift driver and other employees helped remove the boxes." In support of these allegations, each appellant submitted a personal declaration.
Appellants' personal declarations recounted Gutierrez's actions while in the hospital following the accident. Each indicated that, about a week into his hospital stay, Gutierrez began making comments that he was "`not going to make it through this,'" he was "`not leaving here,'" he "thought he was going to die," and that visitors should not return the next time because "`there isn't going to be a next time.'" Around the same time, Gutierrez began giving away his personal property, including giving a family owned gun to his son, his truck to a grandson, and all of his money to another grandson's mother. He gave instructions regarding the care of his wife after his death. Several of the declarations noted appellant was present when doctors were discussing his condition, was directly spoken to by those doctors, or otherwise understood his condition, and understood "he had fluid in his lungs," "he was only using a quarter of his lungs because of the trauma to his torso," and the family was "going to lose him due to the trauma to his chest, the trauma to the body." Another declaration stated appellant was not using a breathing tool because he was "`ready'" and questioned "[w]hy use the tool, I'm not getting any better."
With respect to the accident, the declarations provided Gutierrez's version of the facts as told to the family members while Gutierrez was in the hospital. Gutierrez indicated his injury occurred as a pallet of potatoes was being loaded into his truck. Gutierrez stated there was no plastic wrapping around the pallet, as there should have been. The pallet became stuck and Gutierrez went to inspect the situation. At that time the forklift driver backed up or made some sudden move that caused the pallet to topple and up to 20 or more boxes to fall upon Gutierrez. Several employees came to help remove the boxes. Gutierrez refused to accept the load of potatoes, but left King Pak under his own power. Within a couple of days, however, he began spitting up blood and went to the hospital. After the first week in the hospital, Gutierrez's condition worsened and he soon began making the statements that he would die in the hospital because of the accident. One of the declarations noted Gutierrez suffered massive bruising from his neck all the way down below his knees, including on his arms and legs.
In addition to the personal declarations, appellants submitted two expert declarations. Relying on Gutierrez's statements to his family or his medical records, the experts opined that Gutierrez's injuries were more consistent with his version of the facts than Moreno's and, therefore, his version was more likely true than not. They also opined that Moreno was negligent in his forklift operation, causing the accident.
Gutierrez died in the hospital and was unavailable to testify to the facts contained in the declarations. In concert with their reply brief on summary judgment, Grimmway objected to appellants' declarations on multiple grounds, including hearsay and lack of foundation. With respect to the personal declarations, Grimmway objected to virtually every statement made therein as hearsay, identifying 53 specific objectionable paragraphs in their proposed order. Grimmway also made another 12 objections, based on hearsay and lack of foundation, to the two expert declarations. While the proposed order included hearsay objections to the expert statements citing Gutierrez's medical records, and Grimmway argued the underlying exhibits included inadmissible hearsay that could not form the basis of an expert's opinion, Grimmway's proposed order did not specifically object to the exhibits containing the medical records.
At the January 30, 2015, hearing on Grimmway's motion, the court and the parties addressed whether a triable issue of material fact existed concerning negligence. According to appellants, if the court found Gutierrez's statements constituted dying declarations, the hearsay statements would be admissible and a triable issue of fact would exist. Grimmway contested whether Gutierrez's statements qualified as dying declarations. The trial court framed the issue on summary judgment as whether the evidence supported the conclusion Gutierrez was relating facts concerning the cause of his death as opposed to "some hearsay account of another event that has no causal connection to [his] death." It then took the matter under submission.
The trial court ultimately issued the following rulings. With respect to Grimmway's evidentiary objections, the trial court summarily sustained Grimmway's hearsay objections to the six personal declarations. It further summarily sustained Grimmway's foundation objections to the expert declarations. After sustaining the hearsay and foundation objections without specificity or explanation, the trial court found Grimmway had met the burden of proving appellants could not establish a breach of its duty. By summarily sustaining all of Grimmway's evidentiary objections, there remained no evidence in the record with respect to the allegations of negligence.
This appeal timely followed.
Summary judgment is appropriate when "all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c).) A court ruling on a summary judgment motion "shall consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained" (ibid.), although the appellate court is not required to accept a trial court's evidentiary ruling that is erroneous (Mamou v. Trendset Resorts, Inc. (2008) 165 Cal.App.4th 686, 711-712). Here, the propriety of the trial court's evidentiary rulings is at issue on appeal.
"`To determine whether triable issues of fact do exist, we independently review the record that was before the trial court. . . .'" (Elk Hills Power, LLC v. Board of Equalization (2013) 57 Cal.4th 593, 606.) Because of the strong public policy favoring trial on the merits, we are required to review the evidence in the light most favorable to the nonmoving party and resolve any evidentiary doubts and ambiguities in their favor (Martinez v. Combs (2010) 49 Cal.4th 35, 68; Hamburg v. Wal-Mart Stores, Inc. (2004) 116 Cal.App.4th 497, 502). In doing so, we must strictly construe the moving party's papers and liberally construe declarations made in opposing summary judgment. The law requires that we resolve any doubts as to the propriety of granting the motion in favor of the nonmoving party. (Powell v. Kleinman (2007) 151 Cal.App.4th 112, 125-126, 128 (Powell).) The standards applicable to appellate review of a summary judgment are "`far different from the . . . substantial evidence test that often governs on appeal'" so that, even if a trial court's evaluation of the evidence is reasonable, "`summary judgment cannot properly be affirmed unless a contrary view would be unreasonable as a matter of law. . . .'" (Faust v. California Portland Cement Co. (2007) 150 Cal.App.4th 864, 877.)
As their primary argument on appeal, appellants contend the trial court improperly excluded Gutierrez's dying declarations on hearsay grounds. In this case, appellants seek a de novo review of the trial court's evidentiary rulings, relying on Pipitone v. Williams (2016) 244 Cal.App.4th 1439 (Pipitone), discussed below. The weight of authority is that evidentiary objections, including on summary judgment, are reviewed for abuse of discretion. (See People v. Waidla (2000) 22 Cal.4th 690, 717 ["Broadly speaking, an appellate court applies the abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence."]; Carnes v. Superior Court (2005) 126 Cal.App.4th 688, 694 ["Although it is often said that an appellate court reviews a summary judgment motion `de novo,' the weight of authority holds that an appellate court reviews a court's final rulings on evidentiary objections by applying an abuse of discretion standard."]; General Electric Co. v. Joiner (1997) 522 U.S. 136, 141-143 [applying abuse of discretion standard to review of trial court's decision to exclude expert testimony at summary judgment stage].) Historically, this court reviews evidentiary rulings on summary judgment for abuse of discretion. (O'Neal v. Stanislaus County Employees' Retirement Assn. (2017) 8 Cal.App.5th 1184, 1198-1199 (O'Neal); Powell, supra, 151 Cal.App.4th at p. 122.) Under an abuse of discretion standard, the party challenging the ruling has the burden to establish an abuse (O'Neal, supra, at p. 1199), and we will interfere with the lower court's judgment only if the party can show that no judge could reasonably have made the same judgment (ibid.).
Appellants, however, urge us to depart from this precedent and review the evidentiary rulings de novo. Relying on Pipitone, which in turn relies on a recent California Supreme Court case, Reid v. Google, Inc. (2010) 50 Cal.4th 512, 535 (Reid), appellants contend that all evidentiary issues raised on summary judgment and decided solely on the papers should be subject to de novo review. We need not determine whether to accept Pipitone's conclusions here, as appellants ultimately prevail upon the stricter abuse of discretion standard. However, we note that the Reid court expressly declined to reach the issue of whether the de novo standard should apply to all evidentiary rulings in a summary judgment proceeding and confined its holding to the distinct facts of that case.
We now turn to whether Gutierrez's statements, as reflected in the personal declarations,
"`Hearsay evidence' is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter asserted." (Evid. Code, § 1200, subd. (a).) However, "[e]vidence of a statement made by a dying person respecting the cause and circumstances of his death is not made inadmissible by the hearsay rule if the statement was made upon his personal knowledge and under a sense of immediately impending death." (Evid. Code, § 1242.) Thus, three elements are considered when determining whether a hearsay statement is admissible as a dying declaration: (1) the proffered statement must concern "the cause and circumstances" of one's death; (2) the proffered statement must be made upon the declarant's personal knowledge; and (3) the proffered statement must be made "under a sense of immediately impending death." (Ibid.)
"The `cause and circumstances' of the death have been described as the res gestae of the death." (People v. Gatson (1998) 60 Cal.App.4th 1020, 1025 (Gatson).)
The personal knowledge element limits admissibility "only to those things, to which [the declarant] would have been competent to testify, if sworn as a witness," thereby ensuring the declarant does not "testify as to his guesses" and that the testimony offered relates "to facts only, and not to mere matters of opinion." (People v. Taylor (1881) 59 Cal. 640, 645 (Taylor); see Lanagan, supra, 81 Cal. at p. 144 [admitting facts "as to what occurred between himself and the defendant," but excluding "opinion as to the character of the particular injuries of which he was dying"].)
Finally, the impending sense of death element ensures statements introduced are sufficiently trustworthy, despite their traditional hearsay properties. "A declarant's knowledge of his or her impending death need not be established by direct evidence, but may be proved by all the circumstances, including the declarant's physical condition, the nature and seriousness of his or her wounds, the declarant's knowledge of his or her grave condition or other circumstances of the case." (People v. Mayo (2006) 140 Cal.App.4th 535, 553.) "Though it is not necessary that death take place immediately or even soon after the statement is made [citation], the statement must be made when the declarant has abandoned all expectation of living." (Kincaid v. Kincaid (2011) 197 Cal.App.4th 75, 87.) "`The duration of time which elapses between the declaration and the actual death of the person furnishes no criterion for the admission or the rejection of the evidence.'" (People v. Wilson (1942) 54 Cal.App.2d 434, 441, citing People v. Ybarra (1860) 17 Cal. 166, 168-169.)
As a general matter, in "determining whether a triable issue was raised or dispelled, we must disregard any evidence to which a sound objection was made in the trial court, but must consider any evidence to which no objection, or an unsound objection, was made." (McCaskey v. California State Automobile Assn. (2010) 189 Cal.App.4th 947, 957.) Although the trial court appeared to sustain all of Grimmway's numerous hearsay objections, it did so in a blanket fashion while, at the same time, expressing at oral argument and in enunciating its ruling that the actual issue before it was whether Gutierrez's statements concerned the "cause" of his death, a subject much narrower than the 65 subjects covered by Grimmway's general objections. In addition, the statements Gutierrez made in connection with his impending sense of doom would generally fall within the state of mind exception to the hearsay rule. Thus, it is unclear whether the trial court intended to sustain hearsay objections to all of Gutierrez's statements or only those that described the "cause and circumstances" of his death.
A trial court is generally required to individually rule upon all evidentiary objections made in the course of summary judgment proceedings. In fact, a blanket ruling on a large number of evidentiary objections is tantamount to no ruling at all, and may itself constitute an abuse of the trial court's discretion. (See Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 857 [noting a blanket ruling is no ruling at all and holding all objections overruled]; Twenty-Nine Palms Enterprises Corp. v. Bardos (2012) 210 Cal.App.4th 1435, 1447 ["Summarily ruling on multiple evidentiary objections `has been criticized by many [appellate] courts.'"]; Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 254-257 [finding blanket affirmance of a substantial number of evidentiary objections an abuse of discretion].) Here, the trial court issued a blanket affirmance of all of Grimmway's objections, eliminating all of the evidence in opposition to the motion for summary judgment. Accordingly, we would be justified in rejecting that evidentiary ruling and considering all hearsay evidence for which an unsound objection was made.
However, we need not go so far. On appeal, as before the trial court, the parties argue over the admissibility of Gutierrez's statements describing how he was injured and not, save for one exception,
At the summary judgment stage, we are obligated to view all facts in the light most favorable to and to draw all reasonable inferences in favor of the nonmoving party, an obligation that extends to the review of declarations offered in support of the opposition papers. (Powell, supra, 151 Cal.App.4th at pp. 125-126, 128.) Thus, to the extent the trial court failed to view the evidence in the light most favorable to appellants when considering whether Gutierrez's statements qualified as dying declarations, it abused its discretion.
Grimmway argues first that appellants' declarations do not demonstrate Gutierrez's description of the accident related to the cause and circumstances surrounding his death. In particular, Grimmway contends the declarations contain no facts from which one could conclude Gutierrez's recitation of how he was injured related to the specific or proximate cause of his death and, thus, his statements could not be part of the res gestae of the event. Grimmway contends that "none of the testimony nor any other evidence presented by [appellants] in opposition to the motion established that Gutierrez'[s] death was caused by the March 29 accident, a foundational requirement that must be met with admissible evidence before even considering whether the statements of Gutierrez could be admitted as dying declarations." (Italics added.) This proposition is repeated in various forms throughout Grimmway's opening brief. The trial court appeared to agree with Grimmway's contention, noting in its ruling that there was "no evidence of causation" before it from either side. Grimmway provides no authority holding that the specific cause of death must be conclusively established before even considering Gutierrez's description of the accident. When questioned at argument, Grimmway could only point to the general facts underlying the case law it cited to support this claim.
Grimmway misconstrues the nature of the "cause and circumstances" requirement under Evidence Code section 1242. To qualify as a dying declaration, Gutierrez's statements must relate to those facts and circumstances "under which he has received any injuries from which he may be suffering, and how, or at whose hands they were received." (Lanagan, supra, 81 Cal. at p. 145.) The nature of this inquiry is as to the facts "`having a direct causal connection with the assault,'" not as to the conclusion regarding the ultimate or proximate cause of death. (Gatson, supra, 60 Cal.App.4th at p. 1025.) The required connection is different from that necessary to prove causation in the underlying action, a distinction that appears to have been blurred before the trial court. It is premature to consider issues of proximate causation when determining the admissibility of a dying declaration.
Hence, while Gutierrez's dying declaration must relate to the injuries that ultimately lead to his death, there is nothing in the "cause and circumstances" element of Evidence Code section 1242 that requires one prove the injuries were the proximate cause of death as a foundational principle or prerequisite to the admissibility of a dying declaration. Indeed, in the case law cited by the parties, there are examples where dying declarations were admitted into evidence notwithstanding that the cause of death was contested or ruled to be immaterial to admissibility. (See Lanagan, supra, 81 Cal. at pp. 143-145 [portions of dying declarations admitted despite dispute whether death was caused by attack or preexisting disease, but noting the declarant's opinion is not admissible "as to whether he is dying of wounds or of disease; or as to what particular injuries (if there be several of them) are causing his death"]; Gatson, supra, 6 0 Cal.App.4th at pp. 1025-1026 [admitting statement that the victim was robbed because it was part of the comprehensive description of what caused her injuries and ultimate death from a gunshot wound to the head]; cf. People v. Adams (1990) 216 Cal.App.3d 1431, 1440 [in discussion of impending sense of death element, statements do not become inadmissible where death was arguably caused by refusal to accept steps to artificially prolong life].)
"Where a person has been fatally wounded, is in sore distress therefrom, and believes that he will not recover and is soon about to die, his statement made in this belief relating to the cause of his injury is admissible, if it appears that he subsequently died from the direct effects of the wound, although he may have revived after making the statement or may have lived a considerable time thereafter, and may have again begun to hope for recovery. Such person is to be deemed `a dying person' within the meaning of the statute from the time the wound is received until death results from the injury, and his statement during that period made in view of death and with the belief that it is near at hand, may be proven to establish the cause of death." (Cord, supra, 157 Cal. at pp. 568-569.) Cord involved a declarant who was believed by others to be recovering, but died due to damage from injury not uncovered until autopsy. That court also upheld the trial court's decision to exclude expert testimony on immediate cause of death, in part because it would not have affected the fact that the declarant died at the hands of his attacker. (Id. at pp. 567-568, 572-573.) In short, Grimmway's motion for summary judgment was predicated on grounds that it was not negligent, that is, it did not breach a duty of care, and appellants sought to create a triable issue in their opposition by describing through the declarations facts probative of whether Grimmway breached a duty of care. Grimmway's attempt to add and accelerate the issue of proximate cause by making it a requirement for the admissibility of a dying declaration is not supported by authority and is unpersuasive.
In any event, when raised at the summary judgment stage, it is not appellants' burden to conclusively prove causation with respect to Gutierrez's death. Rather, it is appellants' burden to produce evidence that creates a triable issue of material fact as to causation. Grimmway's contention that causation must be definitively established would run contrary to the obligation at the summary judgment stage to view all evidence in the light most favorable to the nonmoving party. If a reasonable inference can be drawn, connecting the King Pak accident to Gutierrez's ultimate death and related sense of impending doom, the trial court is obligated to consider the evidence at the summary judgment stage. (See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 856 ["But, even though the court may not weigh the plaintiff's evidence or inferences against the defendants as though it were sitting as a trier of fact, it must nevertheless determine what any evidence or inference could show or imply to a reasonable trier of fact." (Italics added.)].)
Here, when taken in the light most favorable to appellants, the totality of appellants' facts give rise to reasonable inferences that the King Pak accident led to Gutierrez's demise. As an example, in her declaration, Susana Rios explained that she spoke with Gutierrez in the hospital, asking him "what happened" when she found him "agitated with little air." Taken in the light most favorable to appellants, this introduction to the declaration shows Gutierrez's statements were meant to detail what caused Gutierrez to enter the hospital. In response, Gutierrez recounted his version of the facts relating to the King Pak accident. He further explained he did not feel too bad right away, but began spitting up blood "2 to 3 days later" and that a "few days after that accident he went to the hospital." Gutierrez continued on, explaining that he felt okay when entering the hospital, but became progressively worse, to the point he felt he would not survive due to the presence of fluid in his lungs. The declaration provides Gutierrez died two days later. When taken in the light most favorable to appellants, Gutierrez's hospitalization, related medical problems, and death all followed the King Pak accident and were one chain of events in his mind. Grimmway contends Gutierrez's statements that he felt fine shortly after the accident make his other statements contradictory and inadmissible. We disagree. That conclusion would require the court to reject reasonable inferences from the totality of the statements and not view the evidence in the light most favorable to appellants in contravention of the requirements on summary judgment.
Other declarations provide additional support for the inference that the King Pak accident led to Gutierrez's hospitalization and death. After noting his father was in the hospital with his health failing and unable to function, Eduardo B. Gutierrez's declaration states Gutierrez "told the story in my presence how [the King Pak accident] happened." Other declarations more specifically tie the accident to injuries to Gutierrez's chest or to full body bruising consistent with a major injury. All of these statements lead to a reasonable inference that the King Pak accident relates to the cause and circumstances of Gutierrez's death. Indeed, when taking all inferences in favor of appellants, it is apparent Gutierrez's statements about what happened at King Pak detail "the facts and circumstances under which he has received any injuries from which he may be suffering, and how, or at whose hands, they were received." (Lanagan, supra, 81 Cal. at p. 145.) The trial court's conclusion to the contrary required dismissing or discounting these facts and inferences, a step not permitted at the summary judgment stage.
Grimmway further argues the declarations do not meet the "personal knowledge" element, contending without authority that Gutierrez must have "had knowledge that the [accident] was the cause of his death." This is not the test. Rather, as noted above, the personal knowledge element is a safety check to ensure that the decedent's statements are not based on speculation or conjecture, but rather on observed incidents. (Taylor, supra, 59 Cal. at p. 645; Lanagan, supra, 81 Cal. at p. 145.) Here, the declarations demonstrate Gutierrez witnessed firsthand the accident that placed him in the hospital. Gutierrez did not need to know specifically what injury or progression of injuries from that accident would cause his death to fairly recount from personal knowledge the facts and circumstances that led to his injury.
Grimmway also argues the record lacks evidence Gutierrez was speaking under an impending sense of death. The crux of Grimmway's argument is that the evidence fails to demonstrate "that Gutierrez was of the state of mind that his physical condition which led to his hospitalization and death was caused by what occurred on March 29." Taken in the light most favorable to appellants, the evidence shows Gutierrez was aware that the accident at King Pak led to his hospitalization and subsequent deterioration. Moreover, when taken in the light most favorable to appellants, the declarations also readily demonstrate Gutierrez believed he was going to die due to the hospitalization related to that accident.
In Cord, supra, 157 Cal. at page 566, for example, the decedent was shot with a pistol and died more than two weeks later, after stating "`We don't know anything about what the future has, but I have no hope of any recovery.'" The court found that the "statements by him as to his mental condition was not destroyed by his remark, after giving the statement, that `We don't know what the future has.'" (Ibid.) The court went on to observe, "The evidence does not show that his physician had previously told him that the wound was fatal, but we know of no rule of law which makes such information a necessary prerequisite to the admission of a dying statement." (Ibid.)
Gutierrez repeatedly told his family he was not going to leave the hospital and was not going to live. He behaved in a manner consistent with this belief, making several bequeaths of property and leaving instructions for the care of his wife after his death. Such actions are both direct and circumstantial evidence of Gutierrez's knowledge of the severity of his condition and his impending death. (People v. Mayo, supra, 140 Cal.App.4th at p. 553; see People v. Sanchez (1864) 24 Cal. 17, 24-25 ["The character of his wound — his suffering and pain — the opinion of the surgeon or other attendants as to his condition, if stated to him — his alarm and anxiety, if manifested — his final preparation for death, if any was made — his taking leave of friends — his seeking the consolations of religion and the last offices of the Church, if such was the case — are all circumstances which are frequently quite as satisfactory in determining the question of belief as any express statement on the part of the declarant."].) Any conclusion to the contrary by the trial court required improperly dismissing or discounting these facts and reasonable inferences at the summary judgment stage.
We are required to construe appellants' declarations liberally and, in doing so, we find that they meet each of the three elements for admitting dying declarations. Viewing the evidence in the light most favorable to appellants as we must, we conclude that no reasonable court could reach any other conclusion. The trial court thus abused its discretion in excluding Gutierrez's statements describing the accident at King Pak from the opposition to Grimmway's motion for summary judgment. The trial court should have considered the alleged facts that Gutierrez was in his truck when the forklift driver suddenly moved the pallet, causing a large number of unsecured boxes to fall upon Gutierrez, resulting in his injuries.
The trial court granted summary judgment on the premise that without the evidence contained in the dying declarations, only Grimmway's version of the facts was in evidence and that version contained no indication of negligence sufficient to avoid summary judgment. It is perhaps worth noting that, while the parties dispute the number of boxes that landed on Gutierrez's chest, the forklift driver's own testimony established that at least one 63-pound box and one 100-pound pallet fell on Gutierrez, who was on his back when the forklift driver discovered him. More directly, the facts from Gutierrez contained in the family declarations — that Gutierrez was in his truck when the forklift driver suddenly moved the pallet, causing heavy, unsecured boxes to fall upon him — are in direct conflict with Grimmway's position that the boxes were secured and the forklift driver performed his job without any error. Thus, there are triable issues of material fact as to Grimmway's alleged negligence.
"[E]ven though it may appear that a trial court took a `reasonable' view of the evidence, a summary judgment cannot properly be affirmed unless a contrary view would be unreasonable as a matter of law in the circumstances presented." (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 838.) Here, appellants' contrary view is not unreasonable as a matter of law. Their contention, that the landing of heavy boxes and a pallet on Gutierrez's body occurred as a result of sudden movement by the forklift driver toppling unsecured boxes, is well within the bounds of reason. And it is not unreasonable as a matter of law that the landing of those very heavy objects on Gutierrez's body caused the injuries that put him in the hospital and resulted in a progressive deterioration that ended in death, all within a period of less than 30 days. Whether appellants can prove these facts by a preponderance of the evidence is not an issue for appeal.
In sum, upon our de novo review, evidence in the record creates a triable issue of material fact concerning Grimmway's alleged negligence, precluding summary judgment.
The trial court's grant of summary judgment is reversed and the matter is remanded for further proceedings consistent with this opinion. Costs are awarded to appellants.
LEVY, Acting P.J. and PEÑA, J., concurs.
