David Kuffler vs. North American Beverages, LLC et al

Superior Court of California, County of Tuolumne Consolidated Calendar Hon: Sarah Carrillo

Department 2 August 28, 2026 8:30 am DA Case # Date Filed

10 CV64893 David Kuffler vs. North American Beverages, LLC et al 10/25/2022

David Kuffler Attorney: Donald Murphy

North American Beverages, LLC Oscar Gonzalez New Bern Transportation Corp. Attorney: Dale Allen, Jr Motion Hearing - Summary Judgment 10/25/2022 Complaint File Tracking 07/28/2025 Dept. 1 Calendar/Clerk Other Cases PR12289

This is a personal injury action with a lengthy history here in this Court, and in Department 5 for a related limited conservatorship proceeding. The essence of the dispute is this: David Kuffler was reportedly struck by defendant’s commercial vehicle while he was “jaywalking” against traffic signals.

In the early days of this litigation, the parties had been discussing a settlement, but it never came to formal fruition. Meanwhile, David disappeared, and has yet to be heard from. This Court issued an evidence sanction barred David from presenting any favorable evidence at trial due to his failure to participate in discovery, but in civil litigation that does not end the case because a plaintiff is not required to personally participate in the trial.

Plaintiff’s delay in filing opposition papers is harmless error since defendant has filed a sufficient reply to the opposition. The delay is unfortunate, but ostensibly understandable as a personal circumstance owing to the attorney. It is no grounds to strike the opposition and grant defendant a windfall.

Defendant has moved for summary judgment on the sole basis that without plaintiff’s direct evidence, no case could ever be established. Plaintiff counters that there are other sources of evidence, namely witnesses at the scene, law enforcement officers, treating physicians, etc.

Plaintiff is correct that a case could in theory be presented without evidence from plaintiff, but the law in this state is that a party may not create a triable issue of fact for purposes of summary judgment by pointing solely to hearsay or other evidence that will be inadmissible at trial. See Perry v. Bakewell Hawthorne, LLC (2017) 2 Cal.5th 536, 543; Murphy v. Pina (2025) 115 Cal.App.5th 305, 314-319; Sanchez v. Bezos (2022) 80 Cal.App.5th 750, 775; Forest Lawn Memorial-Park Assn. v. Superior Court (2021) 70 Cal.App.5th 1, 8; Fernandez v. Alexander (2019) 31 Cal.App.5th 770, 779.

This would ordinarily cover the police report and the deposition of Officer Kremsdorf, and would be the death knell for plaintiff on a dispositive motion. However, the defense has elected to use these items in support of the motion, thereby waiving any objection to plaintiff’s use in opposition to the motion.

Since defendant still had a “duty to exercise due care for” plaintiff’s safety while running across the street outside a crosswalk (Veh. Code §21954(b), and plaintiff’s duty to yield only existed as to “vehicles upon the roadway so near as to constitute an immediate hazard,” reference to the deposition transcript and police report permits a triable issue of fact regarding breach, causation and damages. See, e.g., Leo v. Dunham (1953) 41 Cal.2d 712; Kalfus v. Fraze (1955) 136 Cal.App.2d 415; Foti v. Morrissey (1943) 57 Cal.App.2d 328; Casalegno v. Leonard (1940) 40 Cal.App.2d 575.

Motion denied. Any parties not yet served with summons are hereby dismissed with prejudice pursuant to CCP §583.250.