1

Filed 1/22/14

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

STEVE AHN et al.,

Plaintiffs and Appellants,

v.

KUMHO TIRE U.S.A., INC. et al.,

Defendants and Appellants.

E054322

(Super.Ct.No. CIVRS1004820)

O P I N I O N

APPEAL from the Superior Court of San Bernardino County. Barry L. Plotkin, 

Judge. Reversed in part and affirmed in part. 

Kim, Shapiro, Park, Lee & Ryu, Paul Park, and Yalan Zheng for Plaintiffs and 

Appellants.

Lim, Ruger & Kim, Bruce G. Iwasaki, and Arnold Barba for Defendants and 

Appellants.

 

* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is 

certified for publication with the exception of parts IV.B. and IV.C.
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I. INTRODUCTION

The trial court granted summary judgment in favor of defendants Kumho Tire, 

U.S.A., Inc. (Kumho) and Korea Express U.S.A., Inc. (Korea Express) on plaintiffs’ 

unverified complaint for breach of contract and common counts. The motion was based 

on plaintiffs’ “factually devoid” responses to defendants’ “state all facts” special 

interrogatories and requests for production in which plaintiffs generally stated they did 

not know whether any facts or documents supported various allegations of their 

complaint. (Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 580-581 [motion 

for summary judgment may be based on discovery responses indicating the plaintiffs 

have no evidence to support their claims]; Code Civ. Proc., § 437c, subd. (p)(2).)1 

In opposing the motion, plaintiff Steven Ahn, the sole owner and principal of 

plaintiff New Star, Inc., adduced a declaration explaining the evidentiary basis of 

plaintiffs’ claims. Plaintiffs also adduced amended responses to their initial discovery 

responses along with a declaration by plaintiffs’ counsel explaining that the initial 

discovery responses were “a mistake.” The trial court granted the motion after 

disregarding substantially all of the statements of fact in Ahn’s declaration on the ground 

they were inconsistent with plaintiffs’ initial discovery responses. The trial court relied 

on D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 22-23 (D’Amico), which 

held that a party’s statements of fact adduced on a motion for summary judgment must be 

 

1

 All further statutory references are to the Code of Civil Procedure unless 

otherwise indicated.
3

disregarded as insubstantial or incredible to the extent they contradict the party’s prior 

“clear and unequivocal admissions” of fact. 

As we explain, this was an overly broad and erroneous application of the D’Amico

rule. In light of all the evidence adduced on the motion, a reasonable trier of fact could 

have credited counsel’s explanation that the discovery responses were a mistake and 

found the contradictory statements in Ahn’s declaration credible. (Mason v. Marriage & 

Family Center (1991) 228 Cal.App.3d 537, 546 (Mason).) Thus, plaintiffs’ discovery 

responses were not “clear and unequivocal admission[s]” of fact which, in light of all the 

evidence adduced on the motion, could not be credibly contradicted or amended. (Price 

v. Wells Fargo Bank (1989) 213 Cal.App.3d 465, 482, overruled on other grounds in 

Riverisland Cold Storage, Inc. v. Fresno-Madera Production Credit Assn. (2013) 55 

Cal.4th 1169, 1179-1182.) 

In the unpublished portion of this opinion, we explain why all of the papers on the 

motion show there are triable issues of fact on plaintiffs’ claims. We therefore reverse 

the judgment in favor of defendants. We affirm a postjudgment order denying 

defendants’ motion for sanctions against plaintiffs and their counsel for allegedly filing a 

complaint without evidentiary support. (§ 128.7, subd. (b)(3).) 

II. STANDARD OF REVIEW

Summary judgment is appropriate when all of the papers submitted show there are 

no triable issues of any material fact and the moving party is entitled to a judgment as a 

matter of law. (§ 437c, subd. (c); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 
4

843.) “‘The purpose of a summary judgment proceeding is to permit a party to show that 

material factual claims arising from the pleadings need not be tried because they are not 

in dispute.’ [Citations.]” (Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 168; see 

§ 437c, subd. (a).) 

A defendant moving for summary judgment has the burden of showing the 

plaintiff’s causes of action have no merit. (Aguilar v. Atlantic Richfield Co., supra, 25 

Cal.4th at pp. 849-850.) A defendant meets this burden if it makes a prima facie showing 

that one or more elements of each cause of action cannot be established or is subject to a 

complete defense. (Id. at p. 849.) If the defendant makes this showing, the burden shifts

to the plaintiff to produce evidence demonstrating the existence of a triable issue of 

material fact. (Id. at pp. 849-850; § 437c, subd. (p)(2).) 

We review the entire record de novo, considering “‘all the evidence set forth in the 

moving and opposition papers[,]’ . . .” (Blanco v. Baxter Healthcare Corp. (2008) 158 

Cal.App.4th 1039, 1046.) We disregard evidence to which a sound objection was made 

but 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, citing 

Reid v. Google, Inc. (2010) 50 Cal.4th 512, 534.) 

“‘[W]e strictly construe the moving party’s evidence and liberally construe the 

opposing party’s and accept as undisputed only those portions of the moving party’s 

evidence that are uncontradicted.’ [Citation.] ‘. . . “Any doubts about the propriety of 

summary judgment . . . are generally resolved against granting the motion, because that 
5

allows the future development of the case and avoids errors.”’ [Citation.]” (Scalf v. D. B. 

Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519 (Scalf).) 

III. BACKGROUND

A. The Evidence Adduced on the Motion for Summary Judgment2 

Ahn, a former truck driver, is the sole owner and president of New Star Transport, 

Inc. (New Star), a trucking services company. Kumho is the American distribution arm 

of Kumho Tire Company, an international tire manufacturer. Sometime during 2008, 

Kumho “outsourced” its entire logistics department to Korea Express. 

In 2005, Ahn began providing consulting and trucking services to Kumho without 

a written agreement. In December 2006, New Star and Kumho entered into a written 

“dedicated fleet trucking services” agreement whereby New Star made available to 

Kumho a certain number of trucks, trailers, and drivers in exchange for weekly fees. The 

2006 agreement had a one-year term with automatic one-year extensions and could be 

terminated by either party on 30 days’ notice. 

In March 2008, New Star and Kumho entered into a successor “dedicated fleet 

operations” agreement requiring New Star to make available “for the exclusive use” of 

Kumho no fewer than eight trucks, eight drivers, and 16 trailers. Under the 2008 

agreement, Kumho agreed to pay New Star “Fixed Charge[s]” of $1,196 per week for 

 

2

 The facts are based on all of the evidence adduced on the motion for summary 

judgment, except evidence to which a sound objection was made, but including Ahn’s 

declaration, which we conclude was erroneously disregarded under the D’Amico rule. 

(See McCaskey v. California State Automobile Assn., supra, 189 Cal.App.4th at p. 957.) 
6

each dedicated truck, plus additional charges based on miles driven, fuel, and unloading. 

New Star agreed to invoice Kumho on a weekly basis for all charges due under the 2008 

agreement. The 2008 agreement states its term “will be for a minimum of three (3) years 

with a 90-day cancellation option for Kumho Tires or New Star after 1 year,” but the 

“after 1 year” clause is crossed out and initialed by the signatories. 

According to Ahn, he and Mike Newman, Kumho’s transportation manager, 

discussed the term and termination clause before they signed the 2008 agreement and 

agreed that terminating the agreement on 90 days’ notice after one year or at anytime 

within the three-year term was inconsistent with the agreement’s three-year term. To 

confirm their understanding that the 2008 agreement could not be terminated until after 

its three-year term expired, Ahn and Newman initialed and crossed out the “after 1 year” 

clause. New Star performed its obligations under the 2008 agreement by providing 

Kumho with the dedicated trucks, trailers, and drivers. 

Chong Ha Nam was employed by Kumho from 1985 to 2008. When he left 

Kumho in 2008, Nam was its senior manager for logistics, responsible for overseeing the 

distribution and transportation of Kumho tires. Nam negotiated and signed the December 

2006 agreement on behalf of Kumho and was in charge of overseeing New Star’s 

performance of the 2008 agreement. According to Nam, sometime during 2008 Kumho 

“outsource[d] its logistics department” to Korea Express. Nam then stopped working for 

Kumho and became the branch manager for Korea Express in Rancho Cucamonga. 

According to Ahn, in January 2009, Kumho’s logistics department began using the name 
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Korea Express with “the same group of people working at the same office at [the] same 

location . . . .” 

In April 2008, Kumho notified New Star it was reducing the number of dedicated 

trucks it would be using from eight to six, and in October 2008, it notified New Star it 

was further reducing the number of trucks from six to four. According to Nam, New Star 

“acquiesced” in the reductions because they were “necessitated by the level of business,” 

and Ahn did not object to Nam concerning the fleet reductions. Ahn claims neither he 

nor New Star ever agreed to the fleet reductions. 

New Star invoiced Kumho for all trucks dedicated to Kumho pursuant to the 2008 

agreement, including the unused trucks. Kumho refused to pay the invoices for the 

unused trucks; required Ahn to submit separate invoices for the used and unused trucks; 

and paid only the invoices for the trucks it used. Ahn claims he asked Nam about the 

unpaid invoices “on numerous occasions” and Nam told him Kumho would pay the 

invoices for the unused trucks “when the business got better.” 

In a December 29, 2008, letter to Ahn at New Star, Nam advised that Kumho was 

outsourcing its warehouse and logistics operations to another company (apparently Korea 

Express) effective January 1, 2009, and Kumho was giving 30 days’ notice of its intent to 

terminate the December 2006 agreement. The letter does not mention the 2008 

agreement, but according to Nam, he met with Ahn in January 2009 to discuss the 

termination of “the contract” and Ahn agreed “the contract” would terminate on June 15, 

2009. Ahn denies he met with Nam during January 2009 and also denies he agreed the 
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2008 agreement was or could be terminated before its three-year term expired or on 30 

days’ notice.

New Star continued to provide trucks to Korea Express during 2009. Finally, on 

August 28, 2009, Korea Express terminated the 2008 agreement on 30 days’ notice

effective September 30, 2009, approximately 78 weeks before its three-year term 

expired.3 Ahn claims New Star is owed $746,304 for all trucks dedicated to Kumho and 

Korea Express pursuant to the 2008 agreement based on the $1,196 weekly rate. Of the 

$746,304 sum, $301,392 is due and unpaid for trucks used by Kumho or Korea Express 

through September 30, 2009. 

In his declaration, Ahn claims Kumho approached him during 2007 about placing 

“Kumho Tires” advertising signs on all trailers operated by New Star, including trailers 

not dedicated to or used by Kumho. Around July 2007, Mr. Chu Hwan Kim of Kumho 

and Ahn orally agreed that Kumho would pay New Star $1,000 per month per trailer for 

the advertising, and Kumho had “Kumho Tires” placed on all 40 of New Star’s trailers. 

 

3

 In his declaration, Nam averred that S.H. Kim of Korea Express met with Ahn

on July 24, 2010 (apparently Nam meant July 24, 2009), and during that meeting Ahn 

confirmed that “the agreement” between Kumho and New Star could be terminated on 30 

days’ notice. Plaintiffs objected to Nam’s statement on hearsay grounds (Evid. Code, 

§ 1200), and the objection was properly sustained. Nam purported to introduce an out-ofcourt statement by S.H. Kim concerning what Ahn said during the July 24 meeting for 

the truth of the statement. (Ibid.) We therefore disregard this portion of Nam’s 

declaration. (McClaskey v. California State Automobile Assn., supra, 189 Cal.App.4th at 

p. 957.) For his part, S.H. Kim said nothing in his declaration about any July 2009 or 

July 2010 meeting with Ahn or any agreement by Ahn that the 2008 agreement could be 

terminated on 30 days’ notice. 
9

According to Ahn, $1 million is due for the Kumho Tires advertising placed on New Star 

trucks from July 2007 to August 2009. 

B. The Allegations of the Complaint

In May 2010, Ahn and New Star filed an unverified complaint against Kumho and 

Korea Express alleging five causes of action: (1) against both defendants for breach of 

the 2008 agreement (first); (2) against Korea Express for breach of an oral agreement to 

assume the 2008 written agreement (second); (3) against both defendants for breach of a 

2007 oral agreement to pay New Star $1,000 per month to place “Kumho Tires”

advertising on 40 New Star trailers (third); and (4) against both defendants for common 

counts and quantum meruit (fourth and fifth). 

As indicated, the allegations of the complaint are fairly detailed and are entirely 

consistent with Ahn’s declaration. The complaint explains the origins of the 2006 and 

2008 agreements, their terms and termination clauses; alleges Kumho reduced the 

dedicated fleet from eight trucks to six in April 2008 and from six trucks to four in 

November 2008; alleges on information and belief that sometime after the 2008 

agreement was signed Korea Express assumed all of Kumho’s business operations, 

including its obligations under the 2008 agreement; and alleged Korea Express 

unilaterally terminated the 2008 agreement on 30 days’ notice in August 2009, before its 

three-year term expired. The complaint further alleges that in 2007 Kumho approached 

plaintiffs about placing advertising signs on plaintiffs’ trailers and agreed to pay plaintiffs 
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$1,000 per month per trailer, due to the increased risk of theft resulting from the 

placement of the advertising signs. 

The complaint seeks $765,440 in damages from both defendants for their alleged 

breach of the 2008 agreement (first cause of action); the same amount in damages from 

Korea Express for its breach of an alleged oral agreement to assume Kumho’s obligations 

under the 2008 agreement (second cause of action); and an additional $1 million from 

both defendants for their breach of the alleged 2007 oral agreement to pay New Star 

$1,000 per month per trailer for placing advertising on all New Star trucks (third cause of 

action). Plaintiffs seek both amounts, or $1,765,440, from defendants in their fourth and 

fifth causes of action for common counts and quantum meruit. Attached as exhibits to 

the complaint are copies of the 2006 and 2008 agreements and photographs showing 

“Kumho Tires” advertising on New Star trucks. 

C. Plaintiffs’ “Factually Devoid” Discovery Responses 

Defendants answered the May 2010 complaint in July 2010. In October 2010, 

plaintiffs responded to defendants’ “state all facts” special interrogatories and requests 

for production. Most of the discovery was directed to the allegations of the complaint. 

For example, one interrogatory asked Ahn and New Star to state all facts supporting their 

allegation that “there is now owing and due from defendants the sum of at least 

$1,765,440.00 . . . .” Each plaintiff responded: “At this time, responsive party does not 

know whether any facts responsive to this request exist. Discovery is continuing.” Yet 

the complaint itself explained that plaintiffs were seeking $765,440 for trucks dedicated 
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to defendants pursuant to the 2008 agreement but not paid for, and $1 million for 

Kumho’s breach of the alleged 2007 oral advertising agreement. 

Plaintiffs gave similar “we don’t know” and “discovery is continuing” responses 

to defendants’ other “state all facts” special interrogatories and production requests. In 

December 2010, plaintiffs supplemented some of their interrogatory responses and 

agreed to produce some additional invoices and other documents, but they did not change 

most of their original responses indicating they did not know whether any responsive 

facts or documents existed. In a December 23, 2010, e-mail to plaintiffs’ counsel, 

defendants’ counsel summarized the parties’ “meet and confer” or discussion concerning 

plaintiffs’ original and first amended responses. In the e-mail, defendants’ counsel 

asserted plaintiffs would “be bound by their original responses,” together with their 

“admissions” that they did not know whether any responsive facts or documents existed.4

 

4 Despite the parties’ “meet and confer” discussion and defendants’ apparent 

belief that plaintiffs’ original and first amended interrogatory responses were incomplete 

or evasive, defendants did not move for an order compelling further responses to the 

interrogatories. (§ 2030.300.) Nor did defendants move for an order deeming plaintiffs 

bound by their original or their first amended interrogatory responses after those 

responses were amended. (§ 2030.310, subd. (b) [party propounding interrogatory to 

which an amended answer has been served may move for an order deeming the 

responding party bound by its initial response].) Thus, defendants’ unilateral assertion 

that plaintiffs were “bound by” their original and first amended responses was without 

legal support (§ 2030.310, subds. (b)-(c)), and the second amended responses that 

plaintiffs submitted along with their opposition to the summary judgment motion were 

permissible and should have been considered, along with the other evidence adduced on 

the motion (§ 2030.310, subd. (a) [“Without leave of court, a party may serve an 

amended answer to any interrogatory that contains information subsequently discovered, 

inadvertently omitted, or mistakenly stated in the initial interrogatory. At the trial of the 

action [or any other hearing in the action] the propounding party . . . may use the initial 

[footnote continued on next page]
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D. Defendants’ Motion for Summary Judgment and Motion for Sanctions

In March 2011, defendants moved for summary judgment without deposing Ahn,

even though the complaint indicated he had personal knowledge of the factual bases of 

plaintiffs’ claims as alleged in the complaint. Based on plaintiffs’ “factually devoid”

responses to defendants’ “state all facts” special interrogatories and requests for 

production, defendants argued plaintiffs admitted their causes of action “lacked any 

factual basis.” (See Union Bank v. Superior Court, supra, 31 Cal.App.4th at p. 593 

[motion for summary judgment may be based on discovery responses indicating the 

plaintiffs have no evidence to support their claims]; Andrews v. Foster Williams LLC

(2006) 138 Cal.App.4th 96, 106-107 [the plaintiffs’ nonresponsive answers to 

comprehensive special interrogatories in effect admitted the plaintiffs had no further 

information].) The motion also claimed Ahn had no contractual relationship with either 

defendant, and Korea Express had no agreement with Ahn or New Star; thus, Ahn was 

entitled to no relief against either defendant and neither Ahn nor New Star was entitled to 

any relief against Korea Express. 

In support of the motion, defendants adduced the declarations of Nam and other 

employees of Kumho and Korea Express averring to the facts described above, including 

that: (1) New Star never objected to Kumho’s April and October 2008 fleet reductions; 

(2) Kumho paid New Star in full for all trucks used and other services rendered pursuant 

 

[footnote continued from previous page]

answer under Section 2030.410, and the responding party may then use the amended 

answer.”]). 
13

to the 2008 agreement; (3) New Star never told Kumho it had not been paid in full for its

services; (4) Kumho had no oral or written agreement with Ahn, only a written agreement 

with New Star; (5) Korea Express had no oral or written agreement with New Star or 

Ahn; (6) neither Kumho nor Korea Express agreed to pay for any advertising on New 

Star trucks; and (7) on behalf of New Star, Ahn agreed to Kumho’s termination of the 

2008 agreement effective September 30, 2009. In a further declaration, defendants’ 

counsel authenticated defendants’ discovery responses and other documents. 

In opposition to the motion, plaintiffs submitted the declaration of Ahn explaining 

the factual bases of plaintiffs’ claims consistent with the allegations of the complaint. 

Plaintiffs also served amended responses to defendants’ “state all facts” special 

interrogatories and requests for production, essentially repeating the allegations of the 

complaint and the additional detail in Ahn’s declaration. In a further declaration, 

plaintiffs’ counsel explained the amended discovery responses: “Plaintiffs’ initial 

discovery responses contain certain responses that were inadvertently omitted and 

mistakenly stated. As [a] result, plaintiffs have served and submitted . . . amended 

responses.” 

In reply, defendants objected to nearly every statement in Ahn’s declaration on the 

ground it violated the D’Amico rule because it was contrary to plaintiffs’ initial discovery 

responses and no explanation for the discrepancies had been given. Defendants also 

adduced excerpts of Ahn’s deposition which defendants took shortly after plaintiffs filed 

their opposition, and argued, based on Ahn’s deposition testimony, that plaintiffs’ claims 
14

still lacked evidentiary support. With their reply, defendants filed a motion for sanctions 

against plaintiffs and their counsel on the ground the allegations of the complaint were, 

“by plaintiffs’ own admission, completely lacking in factual support,” and by signing the 

complaint plaintiffs’ counsel falsely certified that the allegations had evidentiary support. 

(§ 128.7, subd. (b)(3).) Plaintiffs and their counsel opposed the sanctions motion. 

E. The Trial Court’s Rulings 

At a combined hearing on the motions for summary judgment and sanctions, the 

court first asked plaintiffs’ counsel why plaintiffs’ initial discovery responses omitted 

“critical facts.” Counsel explained that a “new attorney” in their offices had prepared the 

responses “say[ing] that we did not have any evidence, which supported our contentions, 

which was obviously untrue, because we attached exhibits to our complaint . . . .” The 

court noted the initial discovery responses “were not the result of a lack of merit in the 

case necessarily. . . . because there were more facts contained in the complaint that could 

have been alleged in response to these discovery [requests].” Rather, in the court’s view 

the initial responses were “a result of ineptitude and inexcusable neglect” on the part of 

the attorney who prepared them. The court criticized plaintiffs’ counsel for failing to 

admit their mistake in their opposition to the motion for summary judgment, for failing to 

address “the D’Amico issue” in their opposition to the motion for sanctions, and for 

“blam[ing]” defendants for misreading the initial discovery responses. Still, the court 

said it did not believe Ahn’s declaration was “contrived” or “untruthful” and “certainly 

raise[d] triable issues of fact” on plaintiffs’ claims. Plaintiffs’ counsel argued it would be 
15

an injustice to plaintiffs to grant defendants’ motion for summary judgment based on the 

mistake by plaintiffs’ law firm. 

The court nonetheless granted the motion for summary judgment, reasoning it was 

required to disregard Ahn’s declaration based on contradictions between it and plaintiffs’ 

initial and factually devoid discovery responses. The court denied defendants’ motion for 

sanctions against plaintiffs and their counsel, noting plaintiffs’ claims had evidentiary 

support and the court was therefore “unable to [find]” plaintiffs’ counsel violated the 

certification requirement. (§ 128.7, subd. (b)(3).) Plaintiffs appeal from the judgment in 

favor of defendants, and defendants appeal from the postjudgment order denying their 

motion for sanctions. 

IV. DISCUSSION

A. Ahn’s Declaration Was Erroneously Disregarded Under the D’Amico Rule

Plaintiffs claim the trial court misapplied the D’Amico rule in disregarding Ahn’s 

declaration in ruling on the motion for summary judgment. For their part, defendants 

argue the trial court acted within its discretion in disregarding the declaration because it 

was inconsistent with plaintiffs’ initial and “factually devoid” discovery responses, in 

which plaintiffs stated they did not know whether any facts or documents existed to 

support various allegations of their complaint. 

As defendants point out, the weight of California appellate court authority holds 

that a trial court’s evidentiary rulings in summary judgment proceedings are reviewed for 

an abuse of discretion (Miranda v. Bomel Construction Co., Inc. (2010) 187 Cal.App.4th 
16

1326, 1335), but the California Supreme Court has yet to determine “generally whether a 

trial court’s rulings on evidentiary objections based on papers alone in summary 

judgment proceedings are reviewed for abuse of discretion or are reviewed de novo.” 

(Reid v. Google, Inc., supra, 50 Cal.4th at p. 535.) Here it makes no difference whether 

the abuse of discretion or de novo standard of review applies to the trial court’s ruling 

excluding Ahn’s declaration. As we explain, the trial court misapplied the D’Amico rule 

and, therefore, necessarily abused its discretion in excluding the declaration. 

1. The D’Amico Rule Properly Applied

In D’Amico, the California Supreme Court held, “‘[w]here . . . there is a clear and 

unequivocal admission by the plaintiff, himself, in his deposition’” and the plaintiff 

contradicts that admission in a subsequent declaration, “‘we are forced to conclude there 

is no substantial evidence of the existence of a triable issue of fact.’” (D’Amico, supra,

11 Cal.3d at p. 21, first italics added, quoting King v. Andersen (1966) 242 Cal.App.2d 

606, 610 [assault victim’s affidavit stating unnecessary force was used disregarded in 

light of her prior deposition testimony that no force was used].) The court explained: 

“As the law recognizes in other contexts (see Evid. Code, §§ 1220-1230) admissions 

against interest have a very high credibility value. This is especially true when . . . the 

admission is obtained . . . in the context of an established pretrial procedure whose 

purpose is to elicit facts.” (D’Amico, supra, at p. 22.) 

In Price v. Wells Fargo Bank, supra, 213 Cal.App.3d at page 482, the court 

warned that, “an uncritical application of the D’Amico decision can lead to anomalous 
17

results, inconsistent with the general principles of summary judgment law.” The Price

court cautioned that D’Amico should not be interpreted “as saying that admissions should 

be shielded from careful examination in light of the entire record.” (Ibid., italics added.) 

This is because the record may contain evidence that credibly contradicts or explains

what might appear to be clear and unequivocal admissions, if the admissions are viewed 

in isolation and without reference to the other evidence. (See ibid. [“summary judgment 

should not be based on tacit admissions or fragmentary and equivocal concessions, which 

are contradicted by other credible evidence”], italics added.) In the case before it, the 

Price court concluded the trial court properly relied on the plaintiffs’ admissions “only” 

because nothing in the record was “materially” inconsistent with them. (Ibid.) 

Courts have consistently refused to apply the D’Amico rule to exclude evidence in 

opposition to a summary judgment motion when the evidence in the record on the motion 

credibly explains or contradicts a party’s earlier admissions. (E.g., Scalf, supra, 128 

Cal.App.4th at p. 1523 [party’s deposition testimony that there were no defects in log 

cabin kit credibly explained by other evidence showing the defects became apparent only 

after the kit was inspected]; Niederer v. Ferreira (1987) 189 Cal.App.3d 1485, 1503 [the 

plaintiff’s deposition testimony that note was never assigned to her credibly explained by 

the plaintiff’s supplemental declaration stating she did not understand the question asked 

of her at deposition]; cf. Whitmire v. Ingersoll-Rand Co. (2010) 184 Cal.App.4th 1078, 

1087 [the plaintiff’s declaration stating he was exposed to asbestos while working at a 

plant while the defendant was working there was properly disregarded as not credible in 
18

view of the plaintiff’s prior interrogatory responses unequivocally indicating that the 

defendant was working elsewhere at the time].) 

The Scalf court aptly summarized the proper application of the D’Amico rule: 

“While the D’Amico rule permits a trial court to disregard declarations by a party which 

contradict his or her own discovery responses (absent a reasonable explanation for the 

discrepancy), it does not countenance ignoring other credible evidence that contradicts or 

explains that party’s answers or otherwise demonstrates there are genuine issues of 

factual dispute.” (Scalf, supra, 128 Cal.App.4th at pp. 1524-1525.) 

2. Application

The question presented here is whether plaintiffs’ initial and “factually devoid” 

responses to defendant’s “state all facts” special interrogatories and requests for 

production—in which plaintiffs stated they did not know whether any facts or documents 

supported various allegations of their complaint—constituted clear and unequivocal 

admissions of fact which plaintiffs could not credibly contradict by Ahn’s declaration or 

the other evidence adduced in opposition to the motion. In light of all of the evidence 

adduced on the motion, we conclude plaintiffs’ discovery responses fell well short of 

constituting clear and unequivocal admissions of fact which plaintiffs could not credibly 

contradict or amend in opposing the motion. 

To be sure, plaintiffs had a duty to answer the written discovery as completely and 

straightforwardly as the information available to them permitted (Scheiding v. Dinwiddie 

Construction Co. (1999) 69 Cal.App.4th 64, 76; §§ 2030.220 [obligations of responding 
19

party in answering interrogatories]; 2031.220-2031.240 [compliance with inspection 

demands]) and they failed to do so. But evasive answers to written discovery is not a 

legally sufficient ground for granting a motion for summary judgment, particularly when 

other evidence adduced on the motion shows there are triable issues of material fact. 

This is because summary judgment is proper only if all the papers submitted on the 

motion show there are no genuine issues of material fact requiring a trial. (§ 437c, subd. 

(c); Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 843.) 

Mason is analogous and instructive. The defendants, a clinical psychologist and a 

marriage, family, and child counselor, moved for summary judgment on the ground the 

plaintiff’s professional negligence claims against them were barred by the applicable 

three-year limitations period. (Mason, supra, 228 Cal.App.3d at pp. 540-541; § 340.5.) 

In a previous interrogatory response, the plaintiff stated her injuries began occurring in 

September 1977, more than three years before she filed her complaint. (Mason, supra, at 

pp. 540-541.) Then, in a declaration in opposition to the motion, the plaintiff explained 

that her previous response “was a mistake,” and that September 1977 was actually the 

time her therapy with defendants commenced. (Id. at p. 545.) The plaintiff further 

explained that one of the defendants initiated a sexual relationship with her in 1983, and 

as a result she began suffering mental and emotional distress symptoms in 1986 and 

1987, within the limitations period. (Ibid.) 

The Mason court found the plaintiff’s explanation credible and reversed summary 

judgment in favor of the defendants. (Mason, supra, 228 Cal.App.3d at p. 546.) The 
20

court reasoned that if a trier of fact believed the sexual relationship began in 1983, as the 

plaintiff claimed in her declaration, the trier of fact could also reasonably conclude that 

the plaintiff’s initial interrogatory response that her injuries began occurring in 

September 1977 was “a simple mistake.” (Ibid.) The Mason court accordingly refused to 

disregard the plaintiff’s declaration explaining her prior interrogatory response under the 

D’Amico rule, reasoning it was not “free” to disregard the explanation because a trier of 

fact could find it credible. (Mason, supra, at p. 545.) 

Similarly here, plaintiffs’ counsel explained in an opposing declaration, and again 

at the hearing on defendants’ motion, that plaintiffs’ initial discovery responses were a 

“mistake” made by a “new” and apparently unsupervised attorney employed by her law 

firm. In determining whether to disregard Ahn’s declaration under D’Amico, the question 

for the trial court was not whether the statements in the declaration were inconsistent with 

plaintiffs’ initial discovery responses. (See Scalf, supra, 128 Cal.App.4th at p. 1525.) 

Rather, the question was whether, in light of all the evidence adduced on the motion, a 

reasonable trier of fact could conclude that plaintiffs’ initial discovery responses were a 

mistake and that the contradictory statements in Ahn’s declaration were credible. 

(Mason, supra, 228 Cal.App.3d at pp. 545-546, accord, Consumer Cause, Inc. v. 

SmileCare (2001) 91 Cal.App.4th 454, 473-474 [assessing discovery responses in light of 

entire record].) 

As the trial court acknowledged, all of the evidence adduced on the motion 

showed that, contrary to their initial discovery responses, plaintiffs had credible evidence 
21

to support their claims. The parties did not dispute that New Star and Kumho entered 

into the 2008 agreement; that Kumho reduced the dedicated fleet of trucks from eight to 

six, then from six to four, during 2008; or that New Star placed “Kumho Tires” 

advertising on all 40 of its trucks. The parties submitted conflicting evidence concerning

whether Ahn or New Star agreed to the 2008 fleet reductions; whether Ahn agreed to the 

termination of the 2008 agreement by Korea Express in August 2009; whether, in 2007, 

Kumho orally agreed to pay Ahn or New Star for placing advertising on New Star trucks; 

and whether Korea Express assumed Kumho’s obligations under the 2008 agreement and 

the alleged 2007 oral advertising agreement. In light of the entire record, a reasonable

trier of fact could have concluded that plaintiffs’ initial discovery responses were, as 

plaintiffs claimed, a mistake, and the statements in Ahn’s declaration were credible. For 

this reason, the trial court misapplied the D’Amico rule and abused its discretion in 

disregarding Ahn’s declaration in ruling on the motion.

At times, courts have stated the D’Amico rule in broad, summary terms which may 

be misconstrued as suggesting that prior discovery responses or purported admissions 

may be assessed in isolation and not in light of other evidence that credibly contradicts or 

explains them. (See, e.g., Shin v. Ahn (2007) 42 Cal.4th 482, 500, fn. 2 [flatly stating, “a

party cannot create an issue of fact by a declaration which contradicts his prior discovery 

responses”]; Benavidez v. San Jose Police Dept. (1999) 71 Cal.App.4th 853, 860, quoting 

Preach v. Monter Rainbow (1993) 12 Cal.App.4th 1441, 1451 [“[W]e are constrained by 

the well settled rule that ‘[a] party cannot create an issue of fact by a declaration which 
22

contradicts his prior [discovery responses] . . . .’”]; Niederer v. Ferreira, supra, 189 

Cal.App.3d at p. 1503, quoting Leasman v. Beech Aircraft Corp. (1975) 48 Cal.App.3d 

376, 382 [“‘[W]hen a defendant can establish his defense with the plaintiff’s admissions

sufficient to pass the strict construction test imposed on the moving party [citations], the 

credibility of the admissions are valued so highly that the controverting affidavits may be 

disregarded as irrelevant, inadmissible or evasive.’”].) Such summary statements of the 

D’Amico rule must not be misconstrued as allowing summary judgment to be granted 

based on what may appear, in isolation, to be clear and unequivocal admissions, when the 

purported admissions are credibly contradicted or explained by other credible evidence in 

the record, and all the evidence in the record shows there are triable issues of material 

fact. 

B. There are Triable Issues of Fact on the Disputed Elements of Plaintiffs’ Claims

Plaintiffs claim defendants failed to meet their initial burden of demonstrating 

plaintiffs could not establish one or more elements of their causes of action (§ 437c, subd. 

(o)(1)), even if Ahn’s declaration is disregarded. It is unnecessary to determine this 

question because all of the papers and evidence that were or should have been admitted 

on the motion, including Ahn’s declaration and his subsequent deposition testimony, 

shows there are triable issues on the disputed elements of plaintiffs’ claims. 

1. Breach of the 2008 Agreement (First and Second Causes of Action) 

Defendants assert that plaintiffs’ claims for breach of the 2008 agreement against 

both defendants (first cause of action ) and against Korea Express for orally assuming 
23

Kumho’s obligations under the agreement (second cause of action) had no merit for the 

following reasons: (1) Ahn agreed to the April and October 2008 fleet reductions from 

eight trucks to six then from six trucks to four; (2) according to its terms, the agreement 

could be cancelled on 90 days’ notice before its three-year term expired; (3) in 2009, Ahn 

agreed the agreement could be cancelled on 30 days’ notice and Kumho/Korea Express 

terminated the agreement on 30 days’ notice effective September 30, 2009; and (4) Korea 

Express is not bound by the agreement because it is not a signatory and did not orally 

agree to assume Kumho’s obligations under the agreement, as the second cause of action 

alleges. There are triable issues of fact concerning each of these questions. 

First, there are triable issues concerning whether Korea Express is bound by the 

2008 agreement. The record shows New Star began providing trucking services to Korea 

Express no later than 2009, after Kumho “outsourced” its entire logistics department to 

Korea Express. This supports a reasonable inference that Korea Express agreed, by its 

conduct if not by its words, to assume Kumho’s obligations under the agreement. 

Second, Ahn avers he never agreed to the April and October 2008 fleet reductions and 

New Star continued to invoice defendants for all trucks dedicated to but unused by 

defendants for the duration of the three-year term of the agreement. 

Third, the 2008 agreement is ambiguous as to whether it could be cancelled on 90 

days’ notice before its three-year term expired. But even if it could be cancelled on 90 

days’ notice within its three-year term, there is no evidence it was cancelled on 90 days’ 

notice. Further, defendants claim that in mid-2009 Ahn agreed the agreement could be 
24

cancelled on 30 days’ notice, and defendants cancelled the agreement on 30 days’ notice 

effective September 30, 2009. But Ahn disputes that he ever agreed the agreement could 

be cancelled on 30 days’ notice, or within its three-year term. 

2. Third Cause of Action (Breach of Oral Contract for Advertising)

Defendants claim plaintiffs’ third cause of action against defendants for breach of 

the alleged 2007 agreement to pay Ahn $1,000 per month per truck for placing Kumho 

Tires advertising on all 40 New Star trucks has no merit because: (1) Ahn admitted in his 

deposition that no agreement for advertising was ever made; (2) Kumho never agreed to 

pay Ahn or New Star $1,000 per month per truck for the advertising; and (3) there is no 

evidence Korea Express is bound by the advertising agreement. 

Contrary to defendants’ claim, Ahn did not admit in his deposition that no 

agreement for advertising was ever made with Kumho. Defendants point to Ahn’s 

deposition testimony that no one from Kumho ever came to him and said, “‘[y]es, we 

agree to pay you $1,000 a month’” for advertising. But Ahn further testified in his 

deposition that (1) Chu Hwan Kim of Kumho told Ahn that he (Chu Hwan Kim) was 

going to submit Ahn’s request for payment to Kumho for approval, and (2) another 

Kumho representative, Byung Sun Kim, later told Ahn he was going to “help” Ahn get 

payment from Kumho for the advertising. These discussions occurred after Kumho had 

“Kumho Tires” painted on all 40 New Star trucks. Viewed in its entirety, Ahn’s 

deposition testimony indicates Kumho agreed to pay Ahn for the advertising. 
25

Lastly, even though there is no evidence that anyone representing Korea Express 

expressly agreed, either orally or in writing, to pay Ahn or New Star for the advertising

on the New Star trucks, the record supports a reasonable inference that Korea Express, in 

assuming Kumho’s contractual obligations to plaintiffs under the 2008 agreement, 

implicitly agreed to pay plaintiffs for the advertising. 

3. Quantum Meruit and Common Counts (Fourth and Fifth Causes of Action)

Quantum meruit allows a party who has provided work or services for the benefit 

of another to recover the reasonable value of the services. (Day v. Alta Bates Medical 

Center (2002) 98 Cal.App.4th 243, 249.) There must be an explicit or implicit request 

for the services or an acquiescence in their provision by the person for whose benefit the 

services were performed. (Ibid.) The record shows plaintiffs provided dedicated 

trucking services to Kumho and Korea Express and provided advertising services to 

Kumho. Plaintiffs were not paid for these services and there is a triable issue whether, by 

its conduct, Korea Express assumed Kumho’s obligations to pay plaintiffs for their 

services rendered to Kumho.

C. The Motion for Sanctions Was Properly Denied

Section 128.7, subdivision (c) authorizes the trial court to impose sanctions against 

attorneys and parties whom “the court determines” have violated or are responsible for 

violating subdivision (b). Subdivision (b) states: “By presenting to the court, whether by 

signing, filing, submitting, or later advocating a pleading, petition, written notice of 

motion, or other similar paper, an attorney or unrepresented party is certifying that to the 
26

best of the person’s knowledge . . . . [¶] . . . [¶] (3) The allegations and other factual 

contentions have evidentiary support or . . . are likely to have evidentiary support after a

reasonable opportunity for further investigation or discovery.” (§ 128.7, subd. (b).) 

On their appeal from the postjudgment order denying their motion for sanctions 

against plaintiffs and plaintiffs’ counsel under section 128.7, defendants claim the trial 

court erred as a matter of law in denying the motion. They maintain that by authorizing 

and signing both the complaint and the “factually devoid” discovery responses, plaintiffs 

and their counsel falsely certified that “both [were] true” when at least one was false and 

lacking in evidentiary support. (§ 128.7, subd. (b)(3).) We find no merit to defendants’

appeal.

Defendants urge this court to independently determine whether plaintiffs and their 

counsel violated subdivision (b)(3) of section 128.7, “either in filing a complaint with no 

[evidentiary ] basis, or [by] responding to discovery by failing to conduct a reasonable 

inquiry.” They argue that whether “specific conduct” constitutes a violation of 

subdivision (b)(3) is a question of law subject to de novo review; however, the case they 

cite for this proposition does not support it. (Vidrio v. Hernandez (2009) 172 

Cal.App.4th 1443, 1452.) Rather, the court in Vidrio observed: “[T]he proper 

interpretation of a statute . . . relied upon by the trial court as its authority to award 

sanctions is a question of law, which we review de novo.” (Ibid., italics added.) This 

does not mean we independently review a trial court’s determination not to impose 

sanctions under section 128.7. 
27

To the contrary, we review a trial court’s decision not to impose sanctions under 

the deferential abuse of discretion standard—even if the trial court found a violation of 

section 128.7, subdivision (b) occurred. (Kojababian v. Genuine Home Loans, Inc.

(2009) 174 Cal.App.4th 408, 422.) If the trial court determines a violation of subdivision 

(b) occurred, it exercises its discretion to impose sanctions. (Kojababian v. Genuine 

Home Loans, Inc., supra, at p. 422; § 128.7, subd. (c).) “Absent a showing of 

arbitrariness, we must presume the correctness of the trial court’s decision not to award 

sanctions. [Citation.]” (Kojababian v. Genuine Home Loans, Inc., supra, at p. 422, 

italics added.) 

In denying the motion, the court said: “I’m unable to find that counsel violated the 

certification requirements under [section] 128.7, notwithstanding discovery responses, 

which expressly stated the absence of facts to support the claim. I think it would be 

unjust in this case to do so, particularly in light of the fact that the defendant[s are]

getting their pound of flesh by having the case dismissed and obtaining the judgment in 

their favor. . . . [¶] . . . [¶]

“I’m unable to say that these claims don’t have evidentiary support and that’s why 

it’s troubling. Particularly where the error may well be the ineptitude of counsel. But I 

think the fact that counsel is going to have to . . . call his client[s] and tell them the case 

has slid under the waves is sufficient punishment and serve[s] as a stern reminder to 

certainly be more cautious in furnishing as you say discovery—not just discovery 
28

responses, under penalty of perjury, and you’re absolutely entitled to rely on those and 

you did reasonably rely on them.” 

The trial court did not abuse its discretion in refusing to impose sanctions against 

plaintiffs or their counsel. Indeed, there was no basis to impose sanctions. “The purpose 

of section 128.7 is to deter frivolous filings.” (In re Marriage of Falcone & Fyke (2008) 

164 Cal.App.4th 814, 826, italics added.) And as the trial court recognized, the 

complaint was not lacking in evidentiary support. (§ 128.7, subd. (b)(3).) Further, 

section 128.7 does not apply to discovery responses (§ 128.7, subd. (g)), and in any event 

neither plaintiffs nor their counsel certified those responses to the court, in any filing. 

Rather, plaintiffs’ counsel admitted the discovery responses were “a mistake”; the trial 

court accepted counsel’s explanation; and the record supports it. 

V. DISPOSITION

The judgment is reversed and the postjudgment order denying defendants’ motion 

for sanctions (§ 128.7) is affirmed. The matter is remanded to the trial court with 

directions to set aside its order granting defendants’ motion for summary judgment and to 
29

enter a new order denying that motion. Plaintiffs are awarded their costs on appeal. (Cal. 

Rules of Court, rule 8.278(a)(3).) 

CERTIFIED FOR PARTIAL PUBLICATION 

KING

J.

We concur:

RAMIREZ

P. J.

RICHLI

J.