Judge Audra Mori, Case 18STCV07506 2022-08-24 Tentative Ruling

Plaintiff, Abigail Valdovinos (“Plaintiff”) filed this action against defendants Carlos Coronado (“Carlos”) and Evelyn Coronado (“Evelyn”) (collectively, “Defendants”) for damages arising from a motor vehicle vs. pedestrian accident. Plaintiff has filed an Amendment to Complaint naming Anna Portillo (“Portillo”) as Doe 1. Plaintiff alleges that on December 9, 2016, defendants negligently struck Plaintiff with their vehicle.

Defendant Portillo now moves for summary judgment. Plaintiff opposes the motion, and Defendant filed a reply.

Portillo argues that while Plaintiff alleges she was hit by a vehicle at the intersection of Orange Avenue and Somerset Boulevard in the City of Paramount, California, Portillo was not present at the scene of the accident, and so, she has no information or knowledge pertaining to the alleged accident. Portillo contends she is entitled to summary judgment as a result.

Plaintiff contends that she was hit by a gold or brown mini-van at the subject intersection, and that although the driver of the vehicle fled the scene, Plaintiff was able to identify the driver as a Hispanic female with a child passenger in the front seat and observed rosary beads hanging in the rearview mirror. Plaintiff asserts that later that same day, Plaintiff traveled the area and found the vehicle parked outside the property where Portillo resides. Plaintiff asserts that Portillo drove her grandchildren to school the morning of the accident, she drove through the intersection where it occurred, and that she cannot recall with sufficient certainty what car she was driving the morning of the accident.

Summary judgment is proper “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Code Civ. Proc. §437c(c).) Where a defendant seeks summary judgment or adjudication, he must show that either “one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action.” (Id. at §437c(o)(2).) A defendant may satisfy this burden by showing that the claim “cannot be established” because of the lack of evidence on some essential element of the claim. (Union Bank v. Superior Court (1995) 31 Cal.App.4th 574, 590.) Once the defendant meets this burden, the burden shifts to the plaintiff to show that a “triable issue of one or more material facts exists as to that cause of action or defense thereto.” (Ibid.)

The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A defendant moving for summary judgment must show either (1) that one or more elements of the cause of action cannot be established or (2) that there is a complete defense to that cause of action. (Id. at §437c(p).) A defendant may discharge this burden by furnishing either (1) affirmative evidence of the required facts or (2) discovery responses conceding that the plaintiff lacks evidence to establish an essential element of the plaintiff's case. If a defendant chooses the latter option, he or she must present evidence “and not simply point out that plaintiff does not possess and cannot reasonably obtain needed evidence….” (Aguilar, supra, 25 Cal.4^th at 865-66.)

[A] defendant may simply show the plaintiff cannot establish an essential element of the cause of action “by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Id. at p. 854.) Thus, rather than affirmatively disproving or negating an element (e.g., causation), a defendant moving for summary judgment has the option of presenting evidence reflecting the plaintiff does not possess evidence to prove that element. “The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff's cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing” to support an essential element of his case. (Aguilar, supra, at p. 855.) Under the latter approach, a defendant's initial evidentiary showing may “consist of the deposition testimony of the plaintiff's witnesses, the plaintiff's factually devoid discovery responses, or admissions by the plaintiff in deposition or in response to requests for admission that he or she has not discovered anything that supports an essential element of the cause of action.” (Lona v. Citibank, N.A., supra, 202 Cal.App.4th at p. 110.) In other words, a defendant may show the plaintiff does not possess evidence to support an element of the cause of action by means of presenting the plaintiff's factually devoid discovery responses from which an absence of evidence may be reasonably inferred. (Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 83.)

Thus, a moving defendant has two means by which to shift the burden of proof under the summary judgment statute: “The defendant may rely upon factually insufficient discovery responses by the plaintiff to show that the plaintiff cannot establish an essential element of the cause of action sued upon. [Citation.] [Or a]lternatively, the defendant may utilize the tried and true technique of negating (‘disproving’) an essential element of the plaintiff's cause of action.” (Brantly v. Pisaro (1996) 42 Cal.App.4th 1591, 1598.)

Until the moving defendant has discharged its burden of proof, the opposing plaintiff has no burden to come forward with any evidence. Once the moving defendant has discharged its burden as to a particular cause of action, however, the plaintiff may defeat the motion by producing evidence showing that a triable issue of one or more material facts exists as to that cause of action. (Id. at §437c(p)(2).) On a motion for summary judgment, the moving party's supporting documents are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of summary judgment should be resolved against granting the motion. (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21.)

“ ‘The elements of a cause of action for negligence are duty, breach, causation, and damages.’ [Citation.]” (Johnson v. Prasad (2014) 224 Cal.App.4th 74, 78.)

In this case, Plaintiff was hit by a vehicle while she was crossing the intersection of Orange Avenue and Somerset Boulevard in the city of Paramount, California. (UMF 1.) Plaintiff’s written discovery responses state the accident occurred at approximately 8:15 am to 8:20 am. (UMF 2.) Portillo contends that Plaintiff confirmed the accident occurred at 8:20 am to the police officer that took her report the same day the accident occurred. (UMF 3.) Further, Portillo asserts that on the date of the incident, she drove her two grandsons to high school in her own vehicle. (UMF 4.) Portillo left her house at 7:45 a.m., (UMF 5), which Portillo contends was 30 to 35 minutes before the Plaintiff claims she was hit by a van. (UMF 6.) After dropping off her grandchildren at school, Portillo returned home by driving on Downey Boulevard, “at Somerset a right, San Marino right, and San Marcus a left where my house is.” (UMF 7.) Portillo asserts she never has a crucifix hanging from her rearview mirror. (UMF 9.) Furthermore, Portillo asserts that she only left her house to pick up and drop off her grandchildren and did not hit any pedestrians on the date of the accident. (UMF 8.)

In opposition, Plaintiff contends that at the same time that Plaintiff was hit by the vehicle, Portillo was driving along the same street. (Opp. Pl.’s 8.) Plaintiff then identified the vehicle that hit her as being parked outside Portillo’s home, and Plaintiff contends Portillo cannot recall what particular vehicle she was driving the morning of the accident.

It is unclear in the moving papers exactly what vehicle allegedly hit Plaintiff, any why this vehicle could not have been driven by Portillo. Portillo’s motion does not properly frame this issue.[1] (See CCP § 437c(b)(1) [“The supporting papers shall include a separate statement setting forth plainly and concisely all material facts that the moving party contends are undisputed.”].) Even assuming that Portillo’s evidence is sufficient to shift the burden of proof to Plaintiff, there are a number of triable issues that prevent summary judgment from being granted here. While Portillo argues that she was not present at the scene at the time of the accident, Plaintiff asserts Portillo was driving along the same street where Plaintiff was struck by a vehicle, and Portillo seems to admit that at some point after 7:45 a.m. she was on Somerset. (UMF 7.) In ruling on the motion for summary judgment, the Court must make all reasonable inferences in non-moving Plaintiff’s favor. In making all reasonable inferences in Plaintiff’s favor, a factfinder could find that Portillo was present at the scene of the accident. Further, although Portillo asserts that she left her house at 7:45 a.m. on the date of the accident, Portillo does not articulate how this establishes that she could not have been at the scene of the accident at 8:15 or 8:20 a.m. Further, Plaintiff submits evidence showing that Portillo testified at her deposition that she did not recall exactly what car she was driving, which controverts other testimony presented by Portillo to the contrary.

Based on the foregoing, there are triable issues of fact as to whether Portillo was at the scene of the accident and involved in the accident.

Hon. Audra Mori

Judge of the Superior Court

[1] While it appears that Plaintiff may be alleging that a Ford Windstar was the vehicle that hit her, this is not made clear by the moving papers or supporting evidence.