Troy Smith vs. Asitosh Kumar

34-2022-00314168-CU-PA-GDS: Troy Smith vs. Asitosh Kumar 09/02/2026 Hearing on Motion for Summary Adjudication in Department 8C

Tentative Ruling

NOTICE:

PLEASE TAKE NOTICE that any oral arguments regarding this tentative ruling will be heard at 1:30 p.m. in Department 8C in the Tani G. Cantil-Sakauye Courthouse at 500 G Street, Sacramento, CA, the Hon. Richard C. Miadich presiding.

Any party who wishes to contest the tentative ruling below must:

(1) request a hearing by calling the Law and Motion Oral Argument Request Line at (916) 874-8380, by 4:00 p.m. the Court day before the noticed hearing date, and leave a voicemail message (a) identifying themselves as the party requesting oral argument; (b) indicating the specific matter/motion for which they are requesting oral argument; and (c) confirming that they have notified the opposing party of their intention to appear; and

(2) advise the opposing party of the location and time of hearing pursuant to Local Rule 1.06.

If a hearing is not requested by 4:00 p.m. on the Court day before the noticed hearing date, the tentative ruling will become the final order of the Court.

If a hearing is requested, the Court prefers in-person attendance by the parties. However, parties may appear by Zoom unless the Court specifically orders in-person attendance. Parties choosing to appear by Zoom are reminded, however, that a Zoom appearance is still a formal appearance before the Court. Parties appearing via Zoom should do so from a quiet location, free from undue distractions, and wear attire suitable for an in-person court appearance.

The parties may join the Zoom session for hearing on the tentative ruling by audio and/or video through the following link:

https://saccourt-ca-gov.zoomgov.com/j/16039062174

SIP Address:

34-2022-00314168-CU-PA-GDS: Troy Smith vs. Asitosh Kumar 09/02/2026 Hearing on Motion for Summary Adjudication in Department 8C

16039062174@sip.zoomgov.com

(833) 568-8864

ID: 16039062174

Parties requesting services of a court reporter will need to arrange for private court reporter services at their own expense, pursuant to Government code §68086 and California Rules of Court, Rule 2.956. Requirements for requesting a court reporter are listed in the Policy for Official Reporter Pro Tempore available on the Sacramento Superior Court website at https://www.saccourt.ca.gov/court-reporters/docs/crtrp-6a.pdf. Parties may contact Court-Approved Official Reporters Pro Tempore by utilizing the list of Court Approved Official Reporters Pro Tempore available at https://www.saccourt.ca.gov/court-reporters/docs/crtrp-13.Pdf

A Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) is required to be signed by each party, the private court reporter, and the Judge prior to the hearing, if not using a reporter from the Court’s Approved Official Reporter Pro Tempore list.

Once the form is signed it must be filed with the clerk. If a litigant has been granted a fee waiver and requests a court reporter, the party must submit a Request for Court Reporter by a Party with a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk will be forward the form to the Court Reporter’s Office and an official reporter will be provided.

TENTATIVE RULING

***NOTICE: EFFECTIVE APRIL 13, 2026, THIS DEPARTMENT HAS MOVED TO THE TANI G. CANTIL-SAKAUYE COURTHOUSE LOCATED AT 500 G STREET SACRAMENTO, CA. ALL MOTIONS NOTICED FOR DEPARTMENT 28 WILL BE HEARD IN DEPARTMENT 8C OF THE NEW COURTHOUSE. ALL PAPERS FOR THIS DEPARTMENT MUST BE FILED AT THIS NEW LOCATION AND WILL NOT BE ACCEPTED AT THE HALL OF JUSTICE. ALL HEARINGS WILL TAKE PLACE AT THIS NEW LOCATION***

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2022-00314168-CU-PA-GDS: Troy Smith vs. Asitosh Kumar 09/02/2026 Hearing on Motion for Summary Adjudication in Department 8C

Plaintiff Troy Smith and Monique Smith (“Plaintiffs”) move for summary adjudication as against Defendant Devine and Son trucking Co, Inc. dba Devine Intermodal (“Devine”) is ruled upon as follows.

Plaintiff’s requests for judicial notice are unopposed and granted.

This action arises out of a motor vehicle collision involving a commercial truck and a Caterpillar loader.

Trial is set for October 19, 2026.

Plaintiffs now bring a motion for summary adjudication on the following grounds:

Issue No. 1: There is no triable issue of material fact that Defendant Devine and Son Trucking Co, Inc. dba Devine Intermodal was a motor carrier for the subject load under the regulations and California law and owed a This nondelegable duty to Plaintiffs, as a matter of law.

(Notice of Motion, 2:2-5.)

Defendants Asitosh Kumar and Sulesh Kumar (collectively the “Kumar Defendants”) filed a joinder to Plaintiffs’ motion on June 8, 2026, 79 days before the date set for hearing. Notice of a motion for summary adjudication and supporting papers must be served on all other parties to the action at least 81 days before the time appointed for hearing. (Code Civ. Proc. § 437c(2).)

The Kumar Defendants’ joinder is DROPPED for defective service.

Summary Adjudication

A plaintiff moving for summary adjudication meets its burden of showing that there is no defense to a cause of action if that party has proven each element of the cause of action entitling that party to judgment on that cause of action. (Code Civ. Proc. § 437c(p)(1).) If the plaintiff does so, the burden shifts to the defendant to show that a triable issue of fact exists as to that cause of action or defense. In doing so, the

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2022-00314168-CU-PA-GDS: Troy Smith vs. Asitosh Kumar 09/02/2026 Hearing on Motion for Summary Adjudication in Department 8C

defendant cannot rely on the mere allegations or denial of its pleadings, “but, instead, shall set forth the specific facts showing that a triable issue of material fact exists....” (Code Civ. Proc. § 437c(p)(1).) A triable issue of material fact exists “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. [Fn. omitted.]” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)

In ruling on the motion, a court must construe the evidence of the opposing party liberally and that of the moving party strictly, resolving any doubts in the opposing party’s favor. (Miller v. Bechtel Corp. (1983) 33 Cal.3d 868, 874; Cortez v. Vogt (1997) 52 Cal.App.4th 917, 925-926; see also, Salazar v. Southern Cal. Gas Co. (1997) 54 Cal.App.4th 1370, 1376; Brown v. FSR Brokerage, Inc. (1998) 62 Cal.App.4th 766, 773.) Moreover, according to Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, a moving party’s inclusion of facts in the separate statement effectively concedes each fact’s “materiality,” whether intended or not, and if there is triable dispute relating to any one, the motion must be denied. (Nazir, at 252.)

Summary adjudication requires disposition of an entire cause of action, affirmative defense, claim for damages, or issue of duty. (Code Civ. Proc. § 437c(f)(1); Hindin v. Rust (2004) 118 Cal.App.4th 1247, 1256.)

Discussion

Plaintiffs rely on UMFs 1-16 to support their motion.

Plaintiffs assert that at the time of the collision, Plaintiff Troy Smith was operating a CALTRANS loader on the shoulder of westbound Interstate 80 in Solano County. (SSUMF No. 1.) Plaintiffs assert that the loader was struck by the commercial truck owned by Sulesh Kumar being driven by Defendant Ashitosh. (SSUMF No. 2.) Plaintiffs contend that Troy Smith was injured as a result of Defendant Ashitosh’s negligence. Plaintiffs assert that at the time of the collision, Defendant Ashitosh was hauling a load of Devine’s customer/shippers’ cargo for Devine. (SSUMF No. 3.)

Plaintiffs assert that the shipment involved in the collision originated at the Blue Diamond Almond facility in Sacramento. (SSUMF No. 4.) Plaintiffs further assert that Devine contracted with a Blue Diamond entity for shipment of its cargo. (SSUMF No. 5.) Plaintiffs contend that the bill of lading for the load being transported at the time of the collision listed Devine as the carrier. (SSUMF No. 6.) Plaintiffs further assert that Devine never contacted the shipper of the subject load to notify it that it erroneously named Devine as the carrier of the subject load, (SSUMF No. 7.)

Plaintiffs contend that the load was being hauled by Defendant Ashitosh for the benefit of Devine in its relations with its shipper as Devine

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2022-00314168-CU-PA-GDS: Troy Smith vs. Asitosh Kumar 09/02/2026 Hearing on Motion for Summary Adjudication in Department 8C

hired contractors to be able to service clients. (SSUMF No. 8.)

Plaintiffs set forth that Devine was legally bound to transport the load being driven by Defendant Ashitosh and that Devine was the only entity to receive payment/compensation from the shipper. (SSUMF No. 9.) Plaintiff’s assert that Devine took possession/responsibility for the subject load, that Devine insured the load, and Devine’s insurance paid the shipper for the cargo lost in the collision. (SSUMF No. 10.) Plaintiffs contend that Devine was under effective control and influence of the load as it instructed Defendant Ashitosh where to pick up the load, where to deliver it and provided a time window for the delivery, that Devine billed the shipper for loads and the Kumar Defendants were not to bill the shipper, and that Devine paid the Kumar Defendants less than it received from its shipper for the transport of cargo. (SSUMF Nos. 11-13.)

Lastly, Plaintiffs assert that the carriage of high-powered motor vehicles on public highways is a business attended to with considerable risk to the public and that at the time of the subject collision, the vehicle driven by Defendant Ashitosh had a GVWR in excess of 10,001 pounds and was therefore a “commercial motor vehicle” as defined by 49 U.S.C. §§ 31101 and 31132 and 49 C.F.R 390.5T. (SSUMF No. 14.)

Devine did not file an opposition to Plaintiffs’ separate statement of undisputed material facts.

Because Devine failed to include an opposition to Plaintiff’s separate statement, the Court, in its discretion, finds that Plaintiffs’ UMFs 1-16 are undisputed by Devine for the purposes of this motion.

The undisputed facts establish that Devine accepted to transport the subject load, which it was authorized to transport and legally bound itself to transport, was in a contractual relationship with the shipper, was listed as the carrier Devine on the bill of lading for the shipment, was solely billed for loads transported for the shipper, directed Defendant Ashitosh where to pick up the load and provided a time window and delivery location for the load and paid the Kumar defendants for the transport of loads from the shipper. (SSUMF Nos. 5,6,11,12,13)

A carrier is liable for harm caused by negligence of the carrier's independent contractor, having undertaken an activity which could be done only under a public authority and which involved possible danger to the public. (Serna v. Pettey Leach Trucking, Inc. (2003) 110 Cal.App.4th 1475.) Here, looking to Plaintiff’s undisputed material facts, Plaintiff has met its initial burden to establish that Devine was engaged in activity which could lawfully carried on only under public franchise or authority and which involved

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2022-00314168-CU-PA-GDS: Troy Smith vs. Asitosh Kumar 09/02/2026 Hearing on Motion for Summary Adjudication in Department 8C

possible danger to the public, making Devine liable to a third person for harm caused by the negligence of Defendant Ashitosh, and that as a result, Devine owed a nondelegable duty to Plaintiffs.

The burden then shifts to Devine to show that a material issue of triable fact exists as to whether Devine was a motor carrier for the subject load, and thus, owed a nondelegable duty to Plaintiffs as a matter of law. As a result, the Court shifts its attention to Devine’s statement of additional facts (“AMFs”).

Devine asserts that Devine is a service provider of motor transportation that operates as both a motor carrier and broker to arrange transportation of cargo under contractual agreements with independent motor carriers. (AMF No. 1.) Pursuant to contractual motor carrier broker agreements, Devine acted as a transportation broker under the Motor Carrier Safety Act to broker transportation of cargo through independent motor carriers, known as arranged carriers or individual drivers. (AMF No. 3.) Arranged or individual drivers operating under a motor carrier broker agreement operated under their own Department of Transportation motor carrier authority and insurance policies. (AMF No. 4.) Motor carrier agreements with independent or arranged drivers are nonexclusive, and drivers are free to accept or decline the dispatch offer as they see fit. (AMF No. 5.)

Devine further asserts that under a motor carrier agreement with Devine, independent or arranged drivers were required to display their own company name and DOT number on their truck. (AMF No. 6.) Independent motor carriers or arranged drivers are not subject to discipline by Devine, and Devine does not track their location. (AMF No. 7.) Additionally, independent motor carriers or arranged drivers must comply with safety regulations as mandated by government agencies. (AMF No. 8.) Independent or arranged drivers must provide their own cargo insurance when transporting cargo under a motor carrier agreement brokered by Devine. (AMF No. 9.)

When brokering transportation of cargo through an independent or an arranged driver, Devine provides the pickup location and a two-hour window the cargo needs to be returned to the marine terminal, but exercised no control over how an individual driver arranges pick-up, delivery, or the route. (AMF No. 10.)

Devine asserts that in the instant case, Devine brokered transportation of cargo at Blue Diamond, and Defendant Asitosh Kumar accepted the dispatch to pick up the load for Blue Diamond. (AMF No. 11.) Asitosh was driving under the DOT license obtained by his father, Sulesh Kumar, under his company SRDR Trucking. (AMF No. 12.) Asitosh paid for his fuel costs and maintenance of his truck. (AMF No. 14.) Asitosh utilized SRDR’s cargo insurance for the Blue Diamond cargo, although Devine’s separate cargo

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2022-00314168-CU-PA-GDS: Troy Smith vs. Asitosh Kumar 09/02/2026 Hearing on Motion for Summary Adjudication in Department 8C

insurance ultimately paid for the claim on the collision because the SRDR policy was later determined to contain an exclusion pertaining to nut cargo. (AMF No. 15.) Asitosh was provided a “Bill of Lading” when picking up the load from Blue Diamond, and it is commonplace for the carrier or broker to be “interchangeably listed in the carrier designated field on the bill of lading.” (AMF No. 16.) Devine did not contact Blue Diamond to tell them not to list Devine as a carrier on the lading bill because it is commonplace to interchangeably list the carrier or broker in the carrier field. (AMF No. 17.)

Importantly, Devine provides evidence that Sulesh Kumar’s company, SRDR, signed a “Motor Carrier – Broker Agreement” with Devine designating Devine as the “Property Broker” utilizing the services of a separate authorized, qualified, and insured motor carrier for purposes of the transportation of cargo at issue here. (AMF No. 20.) While the agreement between Devine and SRDR provides that Devine will handle the payment of rates and charges applicable to the shipment, the contract specifies that SRDR shall maintain carrier authority, oversee and ensure maintenance of equipment and training and licensing of drivers, designates SRDR as an independent contractor, designates SRDR liable for cargo losses within the meaning of various federal statutes, and requires SRDR to maintain insurance. (AMF No. 21.)

A provision of the contract between SRDR and Devine states that the carrier is responsible for ensuring the bill of lading properly names the carrier, and “shall strike through and correct any erroneous designation of any other person as the carrier (including Devine) on the bill of lading.” (AMF No. 22.)

Based on the AMFs submitted by Devine, the Court finds that Devine has established a triable issue of material fact as to whether Devine was acting solely as a broker, and not as a carrier, at the time of the collision at issue. Of particular importance is the contract between SRDR and Devine which establishes the nature of their relationship (SRDR as carrier / Devine as broker), and which puts the onus on SRDR to correct the bill of lading if it incorrectly labels Devine as the carrier.

Because Devine has established a triable issue of material fact as to whether Devine was a carrier and a broker, or solely a broker, Plaintiff’s motion for summary adjudication fails.

Plaintiffs’ objections to Devine’s evidence are each overruled. As to objection 2, the Court admonishes Devine for failing to abide by Rules of Court, Rule 3.1116, but does not sustain an objection to the submitted deposition testimony on this ground.

Disposition

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2022-00314168-CU-PA-GDS: Troy Smith vs. Asitosh Kumar 09/02/2026 Hearing on Motion for Summary Adjudication in Department 8C

Plaintiffs’ Motion for Summary Adjudication as to Devine’s nondelegable duty to Plaintiffs is DENIED.

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc. §1019.5; CRC, Rule 3.1312.)