Tom GRAY et al., Plaintiffs and Appellants,
v.
MON VAN MOVING SERVICES et al., Defendants and Respondents.
(San Francisco County Super. Ct. No. 428130).
Feb. 7, 2008.
RICHMAN, J.
Plaintiffs Tom and Alayna Gray timely appeal from a judgment entered after the trial court granted summary judgment to defendants Mon Van Moving Services (Mon Van), Premier Van Lines, Inc. (Premier), and Gary Grubb.On appeal, plaintiffs make four arguments: (1) their contract with defendant Mon Van, which contains a provision requiring that claims for loss or damage be submitted within nine months, is unconscionable and thus unenforceable; (2) they substantially complied with this contract provision; (3) defendants improperly asserted the nine-month limitations period as a basis for summary judgment because this affirmative defense was not raised by the pleadings; and (4) defendants failed to submit evidence that they were carriers governed by the nine-month limitations period. We conclude that none of these arguments has merit, and affirm.
According to deposition testimony by Tom Gray, Gary Grubb was the owner of Premier. Grubb joined Mon Van and Premier in their motion for summary judgment, but also separately moved for summary adjudication regarding all claims asserted against him as an individual. On July 5, 2005, the trial court granted Grubb’s motion, stating that plaintiffs’ complaint “does not plead facts that specifically apply to Defendant Gary Grubb; Defendants also presented testimony from the Plaintiffs’ depositions that they had … no information whatsoever that linked Gary Grubb to the alleged loss of property.”Plaintiffs have not appealed the order granting Grubb summary adjudication. Because the summary adjudication order has removed all pending claims against Grubb, plaintiffs’ arguments in this appeal with respect to Grubb are moot.
BACKGROUND
In May 1996, plaintiffs, who are husband and wife, sold their condominium in San Francisco. They contracted with Mon Van to move all of their furnishings, decorations, art, and collections from the condominium into a Mon Van storage facility. The contract contained a provision (claim provision) on its reverse side which read in relevant part: “8. NOTICE AND PROOF OF LOSS OR DAMAGE-The Customer shall as soon as practical report to the carrier or its agent any loss and damage which may become a claim under this agreement and shall also file with the Carrier or its agent within nine (9) months from date of loss a [ ] detailed, sworn proof of loss.”
On May 21, 1996, Mon Van crated plaintiffs’ items in nine wooden, sealed storage vaults and transferred them the following day to a Mon Van storage facility in Union City. At a time unknown to plaintiffs, and without their knowledge, Mon Van moved the storage vaults from the Union City location to a storage building in Stockton. Defendant Premier owned the Stockton facility.
Neither Mon Van nor Premier ever notified plaintiffs that their property had been moved from Union City to Stockton and was in the possession of a different entity. Plaintiffs first learned about the transfer of their property in April 2001, when Premier contacted them to notify them that the nine storage vaults were going to be relocated to Southern California. Plaintiffs did not want their possessions stored in Southern California, so they hired J & M Moving (J & M) to pick up the storage vaults from the Stockton facility and transfer them to J & M’s facility.
On May 16, 2001, Mike Moon of J & M went to Premier’s storage facility in Stockton to pick up the storage vaults. When Moon opened and inspected the vaults that day, he discovered that numerous items were missing. Moon contacted the Stockton Police Department to report the missing property. According to the police report, Moon told the police that he had a general list of some of the stolen property, but that the value of the plaintiffs’ loss could not be determined at that time. The report also indicates that at some point a police officer contacted Premier about the apparent theft. A Premier employee told the officer that Mon Van, “the former storage company,” had been “a victim of a business burglary,” possibly “a year ago,” but the Premier employee did not know whether plaintiffs’ storage vaults were part of that burglary. There is no evidence in the record regarding when, if ever, the defendants received a copy of this police report.
Also on May 16, Moon designated on an inventory of the nine vaults the items that were missing from them. This inventory did not include any estimated values for the missing items, and the record does not disclose whether this inventory was ever given to any of the defendants. Plaintiffs assert that this inventory was originally created by Mon Van when it packed up and stored plaintiffs’ property, and assert that Moon gave Premier a copy of this inventory after he designated on it each missing item. However, we could not find any evidence in the record to support these two assertions.
Nowhere on this seven-page inventory do the names Premier or Mon Van appear. While Moon appears to have signed each page on May 16, 2001, as the “contractor, carrier or authorized agent (driver),” the signature below his on each page for the “owner or authorized agent” is illegible. The inventory is attached to a declaration of plaintiffs’ attorney, Susan Bush, which was filed in opposition to the summary judgment motion. Her declaration states that at Thomas Gray’s June 4, 2004 deposition, “counsel for defendant produced and had marked as Exhibit M, 7 pages of documents listing missing items from an inventory for Grey [sic]. Exhibit A[sic] attached hereto is a true and correct copy of said exhibit and excerpts of the deposition of Thomas Gray wherein said exhibit was entered into the record.”However, only the inventory is attached as an exhibit to Bush’s declaration (as “Exhibit B”); there are no excerpts from Thomas Gray’s deposition attached to Bush’s declaration.
We cannot tell from this evidence or any other evidence in the record (1) who signed each page of the inventory on May 16, 2001 as “the owner or authorized agent”; or (2) whether the defendants received a copy of the inventory on or around that date. As defendants stated in their summary judgment reply brief filed below, “Plaintiffs have attached an inventory to a declaration with no supporting authority as to how or when it was presented to anyone (except at a deposition,) and ask the Court to believe that this inventory is ‘substantial compliance.’ “
On May 19, 2001, plaintiffs inspected the storage containers at the J & M facility. Plaintiffs then discovered that most of the cartons in the nine storage vaults had been opened, and that all of the items of value had been removed and the remnants thrown back into the vaults. It appeared to plaintiffs that whoever had removed the valuable items must have had access to an inventory of the items so as to remove just the items of value. According to plaintiffs, the market value of the stolen valuables, which included antiques, art, furniture, electronics, china, crystal, and silver, was over $400,000. Neither Mon Van nor Premier ever notified plaintiffs that the storage facilities in either Union City or Stockton had been burglarized or that there had been any thefts there.
On May 1, 2002, plaintiffs sent a letter to Premier enclosing an inventory of the stolen property and the estimated value of each stolen item. Plaintiffs’ letter to Premier stated, “Notwithstanding the time we have taken in submitting our claim, we would appreciate your acknowledging our presentation of loss and processing this matter expeditiously.”
On January 21, 2004, plaintiffs filed a complaint against defendants for conversion, breach of contract, negligence, and concealment.
On April 15, 2005, defendants brought a motion for summary judgment on the ground that plaintiffs had failed to make a written claim within nine months as required by the Mon Van contract, as well as by the Public Utilities Commission (PUC) Maximum Rate Tariff 4 (Tariff 4). Tariff 4 names “maximum rates and rules for the transportation of used property, namely household goods, personal effects and office, store and institutional furniture, fixtures and equipment over the public highways within the state of California.”The tariff provides in relevant part that “[a]s a condition precedent to recovery, a claim for any loss or damage must be filed in writing with the carrier within nine (9) months after delivery to consignee as shown on shipping document, or in case of failure to make delivery, then within nine (9) months after a reasonable time for delivery has elapsed; and, suit must be instituted against carrier within two (2) years and one (1) day from the date when notice in writing is given by carrier to the claimant that carrier has disallowed the claim or any part or parts specified in the notice. Where a claim is not filed or suit is not instituted in accordance with the foregoing provisions, carrier shall not be liable and such claim need not be paid.”
In their separate statement of disputed facts, plaintiffs admitted that “Tariff 4, per the [PUC], requires that a written claim be made within 9 months after delivery of property.”And as we discuss below, plaintiffs’ counsel admitted that Tariff 4 applied to the plaintiffs’ situation.
On October 31, 2005, the trial court filed its order granting summary judgment, stating that “the Maximum Rate Tariff 4, as created by the Public Utilities Commission, applies to this case, in which Plaintiffs were making a claim against moving and storage companies for missing property” and that “Plaintiffs failed to meet the statutory claims filing requirements as set forth in the Maximum Rate Tariff 4.” The court noted in its order that defendants had “presented evidence consisting of a certified copy of the Maximum Rate Tariff 4, … showing that a written claim must be presented to the shipper within nine (9) months of the date of loss.”The court also stated that defendants had presented evidence showing that “Plaintiffs inspected their property within a week of the time they were notified of the alleged loss, which was May 16, 2001…. Plaintiffs did not make a claim per the requirements of the Maximum Rate Tariff 4 until May 1, 2002…. [¶] That Plaintiffs had agreed that it was undisputed that a written claim must be made within nine months delivery of the property, per the Maximum Rate Tariff 4 … and provided no evidence sufficient to overcome the evidence presented by Defendants .”
DISCUSSION
A court properly grants summary judgment if the record establishes no triable issue as to any material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) A defendant moving for summary judgment has met the burden of showing a cause of action has no merit if the defendant establishes, as was the case here, that an affirmative defense exists as to all causes of action. (Id., subd. (o)(2).) Once the defendant meets this burden, the defendant is entitled to succeed on the motion unless the plaintiff presents evidence constituting a prima facie showing that a triable issue of one or more material facts exists. (Id., subd. (p)(2); see also Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, 855.)
We review the grant of summary judgment de novo, and we consider “ ‘all the evidence set forth in the moving and opposition papers except that to which objections have been made and sustained.’ “ (Smith v. Wells Fargo Bank (2005) 135 Cal.App.4th 1463, 1472.) Although we review the trial court’s decision independently, the scope of our review is limited to those issues that have been adequately raised and supported in plaintiffs’ brief. (See Reyes v.. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6;Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979.)
I. Unconscionability.
Plaintiffs’ first argument on appeal is that the claim provision in its contract with Mon Van-which, like Tariff 4, requires that a claim for loss or damage be submitted within nine months-“is contained in an unconscionable adhesion contract.”Plaintiffs’ argument lacks merit for at least two reasons.
First, plaintiffs have waived this argument by raising it for the very first time in this appeal. As defendants point out, plaintiffs did not make any unconscionability argument below in connection with their opposition to the motion for summary judgment, nor is there any reference to unconscionability in their complaint.“General rules relating to the scope of appellate review apply to appellate review of summary judgment, with two major exceptions…. [A]n argument or theory will generally not be considered if raised for the first time on appeal, unless the question is one of law to be applied to undisputed fact. Thus, possible theories not fully developed or factually presented to the trial court cannot create a ‘triable issue’ on appeal.”(Johanson Transportation Service v. Rich Pik’d Rite Inc. (1985) 164 Cal.App.3d 583, 588.) While unconscionability “ ‘is ultimately a question of law’…, numerous factual issues may bear on that question.”(Gutierrez v. Autowest, Inc. (2003) 114 Cal.App.4th 77, 89.) As we discuss post, the factual issues relevant to unconscionability were not developed in the trial court. Indeed, in their appellate briefs, both plaintiffs and defendants attempt to make arguments regarding unconscionability, but they can only cite to the contract in support as there is no extrinsic evidence in the record.
The closest plaintiffs came to making an unconscionability argument was in their memorandum in opposition to the summary judgment motion in which they argued that defendants were estopped to rely on the tariff limitation: “None of the materials submitted by defendants … state that a written claim must be presented to defendants’ insurance carrier, and neither of these documents stated in what format the claim is to be presented. The re[verse] side of the Contract contains misleading and ambiguous language set forth in barely readable type size. Plaintiffs submit that this notice, in a preprinted adhesion contract with a one time consumer versus a sophisticated shipper, hardly constitutes clear notice.”
“ ‘A party is not permitted to change his position and adopt a new and different theory on appeal. To permit him to do so would not only be unfair to the trial court, but manifestly unjust to the opposing party.’[Citation.] The principles of ‘theory of the trial’ apply to motions [citation], including summary judgment motions. [Citation.] … It would be manifestly unjust to the opposing parties, unfair to the trial court, and contrary to judicial economy to permit a change of theory on appeal.”(North Coast Business Park v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 29.) Here, plaintiffs not only never asserted an unconscionability theory below, but also admitted during the hearing on the summary judgment motion that the nine-month limitation set forth in Tariff 4 applied to this situation. For these reasons, we conclude that plaintiffs have waived their unconscionability argument on appeal.
Defendant asks us to impose sanctions on plaintiffs for making their unconscionability argument for the first time on appeal. We decline to exercise our discretion pursuant to California Rules of Court, rule 8.276, subdivision (e) to do so. We note that defendants have failed to specify the amount of sanctions they seek. (See Cal. Rules of Court, rule 8.276, subd. (e)(2) [a party’s motion for sanctions “must include a declaration supporting the amount of any monetary sanction sought and must be served and filed … no later than 10 days after the appellant’s reply brief is due”].) Moreover, we are dismayed that defendants’ brief frequently fails to cite to the record and makes factual assertions which have no support in the record, in violation of California Rules of Court, rule 8.204.
Second, even assuming plaintiffs did not waive this argument, there is insufficient evidence in the record to raise a triable issue of fact regarding unconscionability. (See Saville v. Sierra College (2005) 133 Cal.App.4th 857, 865 [“ ‘There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof’ “].) The doctrine of unconscionability “has ‘ “both a ‘procedural’ and a ‘substantive’ element.” ‘ “ (Little v. Auto Stiegler, Inc. (2003) 29 Cal.4th 1064, 1071.) To invalidate a contract provision on unconscionability grounds, “both procedural and substantive unconscionability” must be shown. (Crippen v. Central Valley RV Outlet (2004) 124 Cal.App.4th 1159, 1165(Crippen ); see also Gutierrez v. Autowest, Inc., supra, 114 Cal.App.4th at p. 88 [“courts refuse to enforce only those agreements that are both procedurally and substantively unconscionable”].)
Except for the contract itself, there is no evidence in the record regarding procedural unconscionability, which “ ‘has to do with matters relating to freedom of assent.’ “ (Stirlen v. Supercuts, Inc. (1997) 51 Cal.App.4th 1519, 1532.) Procedural unconscionability “concerns the manner in which the contract was negotiated and the circumstances of the parties at that time. [Citation.] It focuses on factors of oppression and surprise. [Citation.] The oppression component arises from an inequality of bargaining power of the parties to the contract and an absence of real negotiation or a meaningful choice on the part of the weaker party.” (Kinney v. United HealthCare Services, Inc. (1999) 70 Cal.App.4th 1322, 1329.) “ ‘ “Surprise involves the extent to which the terms of the bargain are hidden in a ‘prolix printed form’ drafted by a party in a superior bargaining position.” ‘ “ (Crippen, supra, 124 Cal.App.4th at p. 1165.) “[T]here is no general rule that a form contract used by a party for many transactions is procedurally unconscionable. Rather, ‘[p]rocedural unconscionability focuses on the manner in which the disputed clause is presented to the party in the weaker bargaining position. When the weaker party is presented the clause and told to “take it or leave it” without the opportunity for meaningful negotiation, oppression, and therefore, procedural unconscionability, are present .’ “ (Ibid.)
Here, plaintiffs argue there was procedural unconscionability by asserting that the Mon Van contract “was not drafted or negotiated with the Grays,” that “the parties had unequal bargaining power,” and that plaintiffs “had no meaningful choice with respect to accepting” the contract’s provisions. But the only evidence they cite in support of these assertions is a copy of the contract itself. There is no evidence in the record regarding whether the parties negotiated before entering into the contract, whether there was an opportunity for negotiation, or about the relative bargaining power of the parties. (See Crippen, supra, 124 Cal.App.4th at p. 1166 [concluding plaintiff had not shown procedural unconscionability where there was “no reason to … conclude that plaintiff lacked power to bargain” because “nothing prevents purchasers of used vehicles from bargaining with dealers, even though dealers use form contracts, and nothing in the record shows that plaintiff could not bargain in this case”]; Trend Homes, Inc. v. Superior Court (2005) 131 Cal.App.4th 950, 958 [concluding there was no procedural unconscionability where the parties “offered no evidence that they attempted to negotiate the provision and were rebuffed, or they had no meaningful choice but to agree to the provision”].)
In contrast, defendants assert that plaintiffs “are sophisticated and successful business individuals,”“were never in a weakened bargaining position,” and “had numerous choices of moving companies.”Like plaintiffs, defendants make these assertions without citing to any evidence in support because there is none in the record. The only evidence we could find pertaining to this issue is an except from Alayna Gray’s deposition, submitted by defendants, which suggests that plaintiffs obtained two estimates before deciding to contract with Mon Van.
Regarding surprise, plaintiffs assert “the claim provision was buried in the form agreement utilized by” defendant. However, the claim provision is easily located on the reverse side of the contract in a section entitled “NOTICE AND PROOF OF LOSS OF DAMAGE.”And there is no evidence in the record regarding whether plaintiffs were aware of the claim provision before entering into the contract. (Morris v. Redwood Empire Bancorp (2005) 128 Cal.App.4th 1305, 1321 [finding no surprise where there were “no allegations that [the plaintiff] was unaware of the [allegedly unconscionable term] when he executed the … agreement, or that its terms were misrepresented to him” and where the term was “easily located” in the agreement].)
II. Substantial Compliance.
Plaintiffs next argue that they “substantially complied” with the requirement that they file a claim of loss or damage within nine months because defendants were made aware of the loss on the date it was discovered, May 16, 2001. However, no evidence in the record demonstrates, indeed, even suggests, that any of the defendants received notice of the loss on that date. Plaintiffs rely on two pieces of evidence to support their claim: (1) the inventory on which Moon designated the items that were missing from the nine storage vaults and (2) Moon’s police report. Regarding the May 16, 2001 inventory, the record does not disclose whether this document was ever given to any of the defendants, let alone on May 16, 2001.The same goes for the police report-there is no evidence in the record regarding when, if ever, the defendants received a copy of the report.
See our discussion at footnote 2 ante.But even if there were evidence in the record that defendants received a copy of the May 16, 2001 inventory on or around that date, the inventory did not substantially comply with the claim provision’s requirement of a “detailed, sworn proof of loss.” The inventory, while signed by Mike Moon, is not a sworn document. It also fails to provide sufficient details regarding the missing property, including the estimated values.
The report itself indicates only that a police officer telephoned Premier about the apparent theft of plaintiffs’ property, and that a Premier employee told the officer that Mon Van had been burglarized the year before.
Defendants presented evidence that plaintiffs first submitted a claim of their loss to Premier on May 1, 2002, more than 11 months after the plaintiffs first learned of the loss. Plaintiffs admitted this fact during the hearing on the motion. Plaintiffs have thus failed to raise a triable issue of fact regarding notification of the loss before that date. (See Saville v. Sierra College, supra, 133 Cal.App.4th 857, 865.)
Moreover, during the hearing on the summary judgment motion, plaintiffs’ counsel admitted that “the claim” was the April 30, 2002 Move-Pak Presentation of Loss which was sent to Premier by plaintiffs on May 1, 2002. Counsel also admitted that this claim was submitted more than nine months after plaintiffs discovered their loss. In fact, plaintiffs’ counsel made a different argument during the hearing than what is being asserted on appeal, arguing below that plaintiffs were prevented from filing a timely claim by misrepresentations made by defendants regarding with whom the claim should be filed and what the claim should contain. (See FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 385 [“ ‘Where the parties try the case on the assumption that a cause of action is stated, that certain issues are raised by the pleadings, that a particular issue is controlling, or that other steps affecting the course of the trial are correct, neither party can change this theory for purposes of review on appeal’ “].) As defense counsel correctly pointed out at the hearing, there was no evidence in the record to support the misrepresentations argument either.
Finally, plaintiffs have failed to cite any controlling authority for the proposition that submitting their claim more than two months past the nine-month deadline, without any evidence of circumstances excusing their compliance with that deadline, constitutes substantial compliance.
III. Tariff 4 Affirmative Defense.
Defendants based their summary judgment motion on their argument that plaintiffs’ claims were time-barred under the nine-month limitations period set forth in both Tariff 4 and in the claim provision contained in the Mon Van agreement. Plaintiffs argue on appeal, as they did in the trial court, that summary judgment should not have been granted on this ground because defendants Mon Van and Premier did not assert “failure to comply with the PUC claim requirement as an affirmative defense.”Defendants counter that Mon Van and Premier’s third affirmative defense alleges that all of plaintiffs’ claims are barred “pursuant to the statutes of limitations.”However, their answer does not specifically mention Tariff 4 or the claim provision in the Mon Van agreement.We conclude that, under the circumstances of this case-where a general statute of limitations affirmative defense was asserted in the answer, where defendants relied on the nine-month limitations period in their opening brief in the motion for summary judgment, and where plaintiffs have not shown any prejudice from defendants’ failure to plead their limitations defense with more particularity-summary judgment was properly granted on this basis.
Defendant Gary Grubb filed a separate answer after defendants filed their motion for summary judgment. Like Mon Van and Premier’s answer, Grubb’s answer asserts a general statute of limitations affirmative defense, and also alleges specifically that plaintiffs’ damages “are limited by tariffs of the California Public Utilities Commission,” again without mentioning Tariff 4 or the claim provision.
Promulgated by the PUC, Tariff 4 has the force and effect of law. (Trammell v. Western Union Tel. Co. (1976) 57 Cal.App.3d 538, 550-551 [PUC tariffs have the force of law].) Because Tariff 4 specifies a time limit within which to bring suit against a carrier, it is a “ ‘contractual’ statute of limitations.” (See Clancy v. Consolidated Freightways (1982) 136 Cal.App.3d 543, 550.) The statute of limitations must be pleaded as an affirmative defense in order to be a proper ground for a defendant’s motion for summary judgment. (Weil & Brown, California Practice Guide: Civil Procedure Before Trial (The Rutter Group 2007), ¶ 10.18.6 [“the statute of limitations … [is] not in issue under a general denial” and, “if not pleaded in the answer, defendant cannot assert [it] as ground for summary judgment without first amending the answer”].) Here, defendants did allege the statute of limitations, in general, as an affirmative defense, and this arguably includes Tariff 4’s limitation periods.
Additionally, it has been held that even where a defendant fails to plead an affirmative defense, where there is no showing of prejudice to the plaintiff, the defendant may raise the defense for the first time in its summary judgment motion: “Given the long-standing California court policy of exercising liberality in permitting amendments to pleadings at any stage of the proceedings [citation] and of disregarding errors or defects in pleadings unless substantial rights are affected [citation], we believe that a party should be permitted to introduce the [affirmative] defense … in a summary judgment procedure so long as the opposing party has adequate notice and opportunity to respond. Here, the [affirmative] defense … was asserted in the opening brief in the motion for summary judgment. [Plaintiff] took the opportunity to respond by arguing the inapplicability of the [defense]. He has not shown that he was prejudiced by the process.”(Cruey v. Gannett Co. (1998) 64 Cal.App.4th 356, 367.) Similarly here: defendants not only asserted the Tariff 4 affirmative defense in their opening brief, they also asserted a general statute of limitations affirmative defense in their answer. Plaintiffs had the opportunity to respond in their opposition brief. And they did. There is no showing of prejudice.
In FPI Development, Inc. v. Nakashima, supra, 231 Cal.App.3d 367, the Court of Appeal reached a similar conclusion. In that case, plaintiffs brought a motion for summary judgment. The only affirmative defenses relied upon by defendants in the summary judgment proceedings were not well pled. However, plaintiffs had failed to demur to the answer and had failed to object to the introduction of evidence addressed to defendants’ defenses “as immaterial.” (Id. at pp. 384-385.)The court concluded that “it would be unfair to ground a ruling on the inadequacy of the pleadings if the pleadings, read in light of the facts adduced in the summary judgment proceeding, give notice to the plaintiffs of a potentially meritorious defense.”(Id. at pp. 384-385.)The court reasoned that if plaintiffs had challenged the pleadings in the trial court, “and defendants tendered a potentially meritorious unpled defense, it is likely that they would have been allowed to amend their answer.”(Id. at p. 385.)
IV. Evidence that Defendants Are Carriers Covered by Tariff 4.
Finally, plaintiffs argue that defendants could not rely on Tariff 4 as a basis for summary judgment because defendants failed to present evidence that they were regulated carriers “who can rely upon or are subject to such regulations.”Plaintiffs assert that defendants “offered no evidence that the tariff applies to entities that are primarily in the business of storage versus shipping” and “they offered no evidence as to what business” Mon Van and Premier “are engaged in.” We are not persuaded.
We begin by noting that Tariff 4 indicates on its face that it applies to “household good carriers” engaged in “the transportation of used property,” namely “household goods, personal effects and office, store and institutional furniture, fixtures and equipment over the public highways within the state of California.”Similarly, the Public Utilities Code defines a “household good carrier” to include “every corporation or person … engaged in the transportation for compensation or hire as a business by means of a motor vehicle or motor vehicles being used in the transportation of used household goods and personal effects over any public highway in this state.”(Pub.Util.Code, § 5109.) Finally, the Public Utilities Code defines “transportation of property” to include “every service in connection with or incidental to the transportation of property, including …storage, and handling….” (Pub. Util.Code, § 209, italics added.)
In their separate statement of disputed facts, plaintiffs admitted that they hired Mon Van for “the use of their services to pack, move, store and deliver Plaintiffs’ personal property and household goods.”Based on this admission, it seems obvious that there is no triable issue of fact regarding whether Tariff 4 applied to Mon Van. And it was entirely reasonable for the trial court to infer that Tariff 4 also applied to Premier Van Lines based on plaintiffs’ allegations that Premier owned the Stockton storage facility and sought to relocate plaintiffs’ storage vaults to Southern California. (Code Civ. Proc., § 437c, subd. (c) [summary judgment may be granted based on “inferences reasonably deducible from the evidence”].) 0
0. Plaintiffs also argue that defendants failed to offer evidence regarding what business Gary Grubb was engaged in and regarding whether Tariff 4 “applied to individuals such as Grubb.”As we discuss in footnote 1 ante, arguments in this appeal regarding Grubb are moot. Moreover, defendants submitted evidence that Grubb was Premier’s owner and the Public Utilities Code definition of a “household carrier” includes persons. (Pub.Util.Code, § 5109.) Thus, there was sufficient evidence that Tariff 4 applied to Grubb as well.
Further, as noted above, plaintiffs’ counsel admitted during the hearing that the nine-month rule contained in the tariff applied “to this situation,” and further stated, “I believe that this is an intrastate common carrier to whom the rule applies.”Later during the hearing, plaintiffs’ counsel reiterated that “we do not deny that the tariff exists and it applies.”(See Smith v. Walter E. Heller & Co. (1978) 82 Cal.App.3d 259, 269 [a judicial admission made by counsel during a hearing, either in the form of a concession or stipulation of facts, “ ‘is a conclusive concession of the truth of a matter which has the effect of removing it from the issues’ “].) 1
1. Plaintiffs’ counsel went on to argue that the tariff should not apply in this case based on equitable principles in general and estoppel in particular because of evidence that the defendants had misrepresented “who was who in the initial stages and having my clients rely upon the insurance carrier,” who did not tell them anything about the nine-month tariff. Defense counsel objected that there was no evidence of any such misrepresentations by defendants in the record. The trial court properly concluded that there was not sufficient evidence in the record to establish a triable issue of fact as to estoppel and no evidence at all of any affirmative misrepresentations by defendant “of any kind.”
DISPOSITION
The judgment is affirmed. Defendants shall recover their costs on appeal.
We concur: HAERLE, Acting P.J., and LAMBDEN, J.
