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Basco v. Tishgart6/14/2005
l Farm Insurance Co.'s property loss report also identifies the California Farmer's Market Association and Barbara Casarez as the appropriate defendants. No evidence was introduced to dispute the correctness of Mr. Tishgart's original naming of California Farmer's Market Association and Barbara Casarez as defendants. The court finds that California Farmer's Market Association and Barbara Casarez were the defendants and responsible parties in the underlying case." The court further found: "The negligence of Barbara Casarez and the California Farmer's Market Association was clear in this case. The accident ordinarily would not have happened unless someone was negligent. Here, California Farmer's Market allowed its vendor, Barbara Casarez, to dismantle a tent on a windy day while customer such as Ms. Basco were still shopping. Barbara Casarez's dismantling of the tent was done carelessly, or it wouldn't have flown away and hit Ms. Basco on the head."
The record shows that appellant did name "CALIFORNIA FARMERS' MARKET ASSOCIATION and BARBARA CASAREZ" as defendants when he filed suit on respondent's behalf. The record also includes a letter from Ms. Casarez's insurer, CalFarm Insurance Company, reading in pertinent part:
"RE: Our File Number: CHS 140383
"Our Insureds: Casarez
"Claimant: Basco
"Dear Mr. and Mrs. Casarez:
"As you are aware, the Plaintiff in the above matter brought suit against California Farmers Market Association because of alleged injuries sustained when the wind blew an awning at your booth. It is my understanding that you have never been formally served with a Summons and Complaint. The action against the California Farmers Market Association was dismissed based upon a statute of limitations argument. Plaintiff has indicated that they intend to continue the action against you individually.
"The purpose of this letter is to advise you that if you are served with a Summons and Complaint in this matter, it is important that you notify us immediately. We will assign this matter to defense counsel if you are served because this would be a covered claim. . . ." (Italics added.) Respondent's expert Neil Moran testified that the same policy-which had a policy limit of $300,000-covered the Farmers' Market.
The record further shows that counsel for the Farmers' Market was prepared to commence discovery if respondent's case had not been dismissed.
These materials demonstrate that Casarez's insurer and the Farmers' Market attorney accepted the validity of Casarez and the market being made defendants. They also constitute more than ample substantial evidence to support the trial court's finding that "California Farmer's Market Association and Barbara Casarez were the defendants and responsible parties in the underlying case."
Respondent contends that these materials are unavailable to sustain the judgment because his hearsay objection to them should have been sustained. Respondent obtained the materials by serving the insurer with a subpoena for production of its file. The insurer's custodian of record produced the file and submitted an affidavit demonstrating compliance with Evidence Code sections 1271 and 1561. When respondent moved that the materials be received in evidence, appellant made a hearsay objection. Apart from this single word, all of appellant's comments were directed to the custodian's affidavit: "Well, one, I think I have an opportunity to cross-examine the witness on whether or not the declaration or submission meets the requirement, and then after that the Court makes its determination. [ ] On the face of that declaration alone it is inaccurate. The declarati
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