Judge Audra Mori, Case 20STCV25006 2022-08-30 Tentative Ruling

Plaintiff Mike Dorri (“Plaintiff”) filed this action against defendants Reba Waters (“Waters”), Valencia Car Wash, Inc., Valencia Auto Care Center, LLC, Jamison Computer Repair, Inc., and Taco Express for damages arising from a motor vehicle accident vs. pedestrian accident. The complaint alleges that as Plaintiff was walking through Valencia Carwash, Waters struck Plaintiff with her vehicle. Further, the complaint alleges that “Defendants Valencia Carwash, Jamison Computer Repair, Inc., Taco Express, Valencia Auto Care Center, Inc. are also liable for Plaintiffs injuries due to their substandard design and entrapment of Plaintiffs body in a location which made him susceptible to injuries by a traveling vehicle.” (Compl. at p. 5.) Plaintiff asserts causes of action for premises liability, motor vehicle and general negligence against the defendants.

Defendant Waters now moves for summary judgment, or in the alternative, summary adjudication as to Plaintiff’s complaint, as do defendants Valencia Car Wash, Inc. and Valencia Auto Care Center, LLC (collectively, the “Valencia Defendants”). Plaintiff opposes Waters’ and the Valencia Defendants’ respective motions, and Waters and the Valencia Defendants each filed a reply.

Waters’ and the Valencia Defendants’ motions are primarily based on the contention that Plaintiff’s own negligence was the proximate cause of his injuries. The Court will thus address the motions together.

Waters asserts she was driving her vehicle on the Valencia Defendants’ property to get her car washed when Plaintiff was also present on the property and walked into the pathway of vehicles seeking to use the car wash. Waters contends that Plaintiff did not stop for vehicles before Plaintiff stepped directly into the path of Waters’ vehicle, and that Plaintiff admitted at his deposition that he did not take adequate time to look for oncoming vehicles. Waters further argues that surveillance footage of the incident demonstrates that Plaintiff did not stop to check for traffic before stepping into the roadway. Waters avers that as a result, Plaintiff was the sole cause of his injuries, so Waters is entitled to summary judgment as to the negligence claims against her. Alternatively, Waters asserts that she is entitled to summary adjudication as to the premises liability claim against her because Plaintiff has admitted that it is meritless.

The Valencia Defendants argue the undisputed evidence shows that Plaintiff’s alleged injuries could not have been caused by the Valencia Defendants because Plaintiff deliberately chose to step into the roadway with his vision obscured by the sunlight and with knowledge that cars regularly used the roadway. The Valencia Defendants argue that the evidence, including the video of the incident, show that Plaintiff was the sole proximate cause of his own injuries. In addition, the Valencia Defendants assert that they are entitled to summary adjudication as to Plaintiff’s claims for loss of earnings and loss of earning capacity, and that the Valencia Defendants are entitled to judgment on Waters’ cross-complaint against them.

Plaintiff argues that Waters and the Valencia Defendants fail to meet their moving burdens to show they are entitled to summary judgment, and that even if the burden were shifted to Plaintiff, there are triable issues of material fact concerning whether Waters acted as a reasonably careful person, and whether the Valencia Defendants used reasonable care to prevent foreseeable injuries on their property. Further, Plaintiff contends he can establish triable issues of fact concerning the Valencia Defendants though his expert’s, Brad Avrit, PE (“Avrit”), declaration submitted with the opposition because Avrit opines that the design of the car wash is unsafe.

In Plaintiff’s separate statement submitted with its opposition, and Waters’ and the Valencia Defendants’ responses to Plaintiff’s additional material facts, the parties assert objections to certain alleged facts therein. Objections to a separate statement are improper. (Cal. Rules of Code, rule 3.1354(b).) The Court, therefore, declines to rule on the purported objections in the separate statements. Rather, the Court will rule on the properly separately filed objections directed at the evidence.

Waters submits eight objections to Plaintiff’s evidence. Objections 1-4 are overruled. Objections 5-8 are made to certain facts alleged in Plaintiff’s separate statement; however, Waters cites to the specific deposition testimony she is objecting to. In ruling on the objections to the relevant testimony, objections 5-8 are overruled.

The Valencia Defendants submit 18 objections to Avrit’s declaration. Objections 1-2, 4-9, 12, 14, and 16-18 are overruled. Objections 3, 10, and 13 are sustained. Objections 11, 14 and 15 are sustained to the extent the relevant statements contain improper legal conclusions asserted by Avrit.

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 negligence and premises liability cause of action are the same: duty, breach, causation, and damages. (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998; see also Johnson v. Prasad (2014) 224 Cal.App.4th 74, 78.)

“[A] driver and a pedestrian are bound to the duty of using the care of a person of ordinary prudence acting under the same or similar circumstances.” (De Victoria v. Erickson (1948) 83 Cal.App.2d 206, 210.) Although it is the duty of both the driver of an automobile and a pedestrian using a public roadway to exercise ordinary care, that duty does not necessarily require the same amount of caution from each in particular circumstances or situations. (Cucinella v. Weston Biscuit Co. (1954) 42 Cal. 2d 71, 75.) A driver operating an automobile is charged with a duty to use a greater degree of care than is the pedestrian, because the instrumentality the driver is propelling is capable of inflicting serious and fatal injuries on others using the highway. (Biggar v. Carney (1960) 181 Cal. App. 2d 22, 29-30.) Additionally, “the duty of a driver to exercise due care does not arise only when he sees the pedestrian but is a [constant] duty which would be breached if under the circumstances he failed to see what an ordinarily prudent person exercising due care would have seen, and that under those circumstances it could not be said that before proceeding across the street the plaintiff should have waited for the vehicle to pass.” (Jacoby v. Johnson (1948) 84 Cal.App.2d 271, 275.) Accordingly, even if a pedestrian fails to yield the right of way to a vehicle, the driver of the vehicle is not relieved from the duty to exercise due care for the plaintiff's safety. (See ibid.) “The question as to whether a pedestrian crossing a street at other than a regular crosswalk exercised the proper degree of care is one for the trier of facts, unless he was so careless that it can be said that he was negligent as a matter of law.” (Id.)

What is more, those who own, possess, or control property generally have a duty to exercise ordinary care in managing the property in order to avoid exposing others to an unreasonable risk of harm. (Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.) “In California, the causation element of negligence is satisfied when the plaintiff establishes (1) that the defendant's breach of duty (his negligent act or omission) was a substantial factor in bringing about the plaintiff's harm and (2) that there is no rule of law relieving the defendant of liability.” (Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 481; see also Padilla v. Rodas (2008) 160 Cal.App.4th 742, 752 [affirming grant of summary judgment for plaintiff's failure to establish causation], and Leyva v. Garcia (2018) 20 Cal.App.5th 1095, 1104 [“In order for a plaintiff to satisfy the causation element of a negligence cause of action, he or she must show the defendant's act or omission was a substantial factor in bringing about the plaintiff's harm.”].)

“The law does not require that negligence of the defendant must be the sole cause of the injury complained of in order to entitle the plaintiff to damages therefor. All that is required in either respect is that the negligence in question shall be a proximate cause of the injury complained of.” (Modica v. Crist (1954) 129 Cal.App.2d 144, 148 [internal quotations and citations omitted]; see also Condon v. Ansaldi, 203 Cal. 180, 182-83 [although driver’s negligence was not sole cause of pedestrian’s injury, the pedestrian could hold the driver liable if driver’s negligence was proximate cause of injury].)

In certain circumstances, a plaintiff's conduct can be the “sole” proximate cause of his or her own harm. (See, e.g., Fredette v. City of Long Beach (1986) 187 Cal.App.3d 122, 133 [“the situation ... involved the negligence of plaintiff as the sole and proximate cause of the accident”]; Elder v. Pacific Tel. & Tel. Co. (1977) 66 Cal.App.3d 650, 657 [“the label ‘sole proximate cause’ may properly be applied to plaintiff's conduct”]; Bell v. Seatrain Lines, Inc. (1974) 40 Cal.App.3d 16, 29 [jury was correctly instructed there should be no recovery “if plaintiff's own negligence was the sole proximate cause of his injury”].) “While proximate cause ordinarily is a question of fact, it may be decided as a question of law if ' “under the undisputed facts, there is no room for a reasonable difference of opinion.” ' [Citation.]” (Grotheer v. Escape Adventures, Inc. (2017) 14 Cal.App.5th 1283, 1303 [affirming grant of summary judgment on causation].)

Here, Waters and the Valencia Defendants each move for summary judgment arguing that Plaintiff’s conduct was the sole proximate cause of his injuries. Plaintiff was allegedly a pedestrian on the Valencia Defendants’ property on March 26, 2019, when Waters’ car made contact with him. (Waters Mot. UMF 1; Valencia Defendants Mot. UMF 1-2.) Plaintiff attributes his injuries, in part, to the negligence of Waters and the Valencia Defendants, and to the Valencia Defendants’ negligent ownership, maintenance, management, and operation of the location where the accident occurred. (Waters Mot. UMF 4; Valencia Defendants Mot. UMF 3-4.) At his deposition, Plaintiff testified that he had traversed the location where the collision occurred quite a few times before and stated that he knew that cars drive through that area. (Waters Mot. UMF 6; See Valencia Defendants Mot. UMF 5-6.)

Plaintiff testified that he saw Defendant Waters’ vehicle prior to the collision: “for a split second[,] I kn[e]w that the car – there is a car for a split second coming fast. I think that the lady was head down.” (Valencia Defendants Mot. Exh. B at p. 22:5-8.) Further, Plaintiff testified that he did not look to see if there were any cars coming before stepping onto the roadway because “that was a second… [t]here is not that much room. There’s not that much chance.” (Valencia Defendants Mot. Exh. B at p. 23:9-13.) When asked whether he stopped to look for traffic after passing an archway that blocked his view, Plaintiff stated that when he passed the archway “it was not very clear. Maybe the sun was bothering my eyes.” (Valencia Defendants Mot. Exh. B at p. 34:18-24.) Plaintiff further testified that “[w]hen you come from a dark place to a bright place it becomes like entrapped (sic) area.” (Valencia Defendants Mot. UMF 14.) Plaintiff testified that the accident happened a split second after he entered the roadway, and he asserted that he tried to look left and right before entering the roadway but could not see because of walls in his way and the sun in his eyes. (Waters Mot. UMF 10-11.)

Based on this evidence, Waters and the Valencia Defendants assert that Plaintiff was the sole proximate cause of his injuries. However, Waters’ and the Valencia Defendants’ evidence is not sufficient to meet their moving burdens.

Unlike Waters and the Valencia Defendants assert, Plaintiff did not testify that he was already on the path of oncoming traffic before he looked for any oncoming cars, nor did Plaintiff testify that he did not give himself enough time to see if it was safe to enter the road before doing so. Nevertheless, even if Plaintiff had testified to such, the moving defendants do not provide any authority showing that under these circumstances involving a motor vehicle and pedestrian accident, that Plaintiff would be deemed the sole proximate cause of his injuries. Consequently, the evidence at most would show that Plaintiff was contributorily negligent in walking onto the roadway without a clear view, but this would not bar Plaintiff from recovering damages for Waters’ and/or the Valencia Defendants’ negligence. (Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 830 [“In all actions for negligence resulting in injury to person or property, the contributory negligence of the person injured in person or property shall not bar recovery, but the damages awarded shall be diminished in proportion to the amount of negligence attributable to the person recovering.”]; see also Peart v. Ferro (2004) 119 Cal.App.4th 60, 71 [contributory negligence does not operate as a complete bar to recovery but may be resolved by applying principles of comparative fault].)

Waters and the Valencia Defendants argue that video of the accident shows that Plaintiff did not stop to check for traffic before stepping onto the roadway. The Court has reviewed the surveillance footage submitted by Waters and the Valencia Defendants. The videos show the Valencia Defendants’ property with a building on the right-hand side from the videos’ viewpoint. There is a carport held up by brick columns and yellow lines on the ground to designate lanes for vehicles to drive through when approaching the carport. There are no visible marked crosswalks on the property. The videos show Waters turn onto the property and then drive straight ahead to the right side near the building. However, as Waters is driving straight ahead, and before reaching the carport, Plaintiff is seen exiting the building on the right-hand side. As Plaintiff is exiting, he is apparently looking to his left-hand side, away from the direction that Waters is approaching from; Plaintiff then walks behind one of the brick columns and is no longer visible. The direction that Plaintiff is facing is not visible in the videos. The videos then show Waters’ vehicle make contact with Plaintiff, and Plaintiff falls to the ground before people approach Plaintiff.

Waters was bound to using a duty of care a person of ordinary prudence would use under the same circumstances when driving on a property like that of the Valencia Defendants. (De Victoria, 83 Cal.App.2d at 210.) Although Plaintiff as a pedestrian also had a duty to use reasonable care, Waters is charged with a greater degree of care in driving her car than Plaintiff was under the circumstances. (Biggar, 181 Cal. App. 2d at 29-30.) In making every reasonable inference in non-moving Plaintiff’s favor, a reasonable factfinder could determine that the video shows Waters driving at an excessive speed under the conditions present, or that if Waters had been exercising due care, Waters may have had time to stop before her vehicle made contact with Plaintiff. Furthermore, neither Waters nor the Valencia Defendants submit any evidence concerning Waters’ conduct at the time of the accident. For example, there is no evidence concerning where Waters was looking or what she was doing immediately before the accident.

Waters cites to Vehicle Code § 21950 in arguing that Plaintiff had a duty to exercise due care for his own safety and not walk into the path of a vehicle as to constitute an immediate hazard. This provision states:

(a) The driver of a vehicle shall yield the right-of-way to a pedestrian crossing the roadway within any marked crosswalk or within any unmarked crosswalk at an intersection, except as otherwise provided in this chapter.

(b) This section does not relieve a pedestrian from the duty of using due care for his or her safety. No pedestrian may suddenly leave a curb or other place of safety and walk or run into the path of a vehicle that is so close as to constitute an immediate hazard. No pedestrian may unnecessarily stop or delay traffic while in a marked or unmarked crosswalk.

(c) The driver of a vehicle approaching a pedestrian within any marked or unmarked crosswalk shall exercise all due care and shall reduce the speed of the vehicle or take any other action relating to the operation of the vehicle as necessary to safeguard the safety of the pedestrian.

(d) Subdivision (b) does not relieve a driver of a vehicle from the duty of exercising due care for the safety of any pedestrian within any marked crosswalk or within any unmarked crosswalk at an intersection.

(Emphasis added.) Accordingly, even if Plaintiff did not exercise due care in walking onto the purported “roadway,” which is an open area for vehicles to drive on the property, Vehicle Code § 21950 does not relieve Waters of her duty to have exercised due care towards Plaintiff.[1] Further, even if Plaintiff was required to and failed to yield the right-of-way to Waters, Waters was still required to exercise due care for Plaintiff’s safety. (Jacoby, 84 Cal.App.2d at 275.) Neither Waters nor the Valencia Defendants submit evidence to establish she did so as a matter of law.

Therefore, Waters and the Valencia Defendants do not establish that Plaintiff was the sole proximate cause of his injuries. (See Walt Rankin $ Assoc., Inc. City of Murrieta (2000) 84 Cal.App.4th 605, 626 [“Proximate cause is that cause which, in natural and continuous sequence, unbroken by any efficient intervening cause, produced the injury [or damage complained of] and without which such result would not have occurred. [Citation.] ...”].)

Furthermore, had Waters or the Valencia Defendants shifted the burden on summary judgment to Plaintiff, Plaintiff raises multiple trial issues of material fact concerning the accident. Plaintiff submits his own declaration stating that immediately before the accident, he observed Waters traveling toward him at high speed, and that he observed Waters’ head facing down so as not to see him in the roadway. (Opp. Dorri Decl. ¶ 5.) Unlike Waters and the Valencia Defendants contend, this statement does not contradict Plaintiff’s deposition testimony, as Plaintiff testified at his deposition that he believed that Waters’ head was down at the time of the accident. (Mot. Valencia Defendants UMF 7.) Further, Plaintiff attests that immediately after the accident, Waters apologized to Plaintiff and said, “I did not see you.” In making every reasonable inference in Plaintiff’s favor, this would suggest Waters was not paying attention to the roadway ahead of her and exercising due care at the time of the accident. Lastly, Plaintiff’s expert opines that the design of the Valencia Defendants’ property created an unsafe condition because of “[t]he combination of the location of the express lane of the subject car wash directly adjacent to a pedestrian exit/entrance created a foreseeable risk that pedestrians accessing the main building and vehicles entering the subject car wash would interact.” (Opp. Avrit Decl. ¶ 11.)

Based on the foregoing, Waters’ and the Valencia Defendants’ motions for summary judgment on the ground that Plaintiff was the sole proximate cause of his injuries is denied.

Waters asserts that Plaintiff has admitted in response to requests for admissions that he has no basis for his premises liability cause of action against Waters. (Waters Mot. UMF 3.) Plaintiff, in response to Waters’ separate statement, admits that he has no basis for the claim against Waters and withdraws this cause of action against Waters.

Thus, summary adjudication is granted as to the premises liability claim against Waters.

h. Valencia Defendants Request for Summary Adjudication of Loss of Earning or Loss of Earning Capacity Damages

A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.

Thus, “Summary adjudication motions are restricted to an entire cause of action, an affirmative defense, a claim for punitive damages, or an issue of duty.” (Travelers Indemnity Co. v. Maryland Casualty Co. (1996) 41 Cal.App.1538, 1542 [disagreed with on different grounds in by Sentry Select Ins. Co. v. Fidelity & Guaranty Ins. Co. (2009) 46 Cal.4th 204].)

In this case, the Valencia Defendants request summary adjudication as to Plaintiff’s request for loss of earning and loss of earning capacity damages. Loss of earning power is an element of general damages which can be inferred from the nature of the injury. (Connolly v. Pre–Mixed Concrete Co. (1957) 49 Cal.2d 483, 489; Licudine v. Cedars-Sinai Medical Center (2016) 3 Cal.App.5th 881, 891-92.)

“Code of Civil Procedure section 437c, subdivision (f)(1), does not permit summary adjudication of a single item of compensatory damage which does not dispose of an entire cause of action.” (Decastro W. Chodorow & Burns v. Superior Court (1996) 47 Cal.App.4th 410, 422.) This is exactly what the Valencia Defendants are seeking in their motion for summary adjudication, and thus, under Decastro the Valencia Defendants’ motion must be denied.

Although Decastro considered an older version of § 437c(f)(1), the relevant language in subdivision (f)(1) has not changed since Decastro. In addition, amendments to the Code since then show that Decastro's holding remains correct. The Code makes clear that summary adjudication of damages under subsection (f) is only appropriate if the claim is for punitive damages or if the claim for compensatory damages disposes of an entire cause of action. Further, CCP § 437c(t) states that, “[n]otwithstanding subdivision (f), a party may move for summary adjudication of a legal issue or a claim for damages other than punitive damages that does not completely dispose of a cause of action, affirmative defense, or issue of duty pursuant to this subdivision” under certain specified conditions. A motion under subsection (t) requires a stipulation by the parties as to the issues to be adjudicated and a declaration from the parties that the motion is in the interest of judicial economy. These requirements have not been complied with for this motion.

Therefore, this motion is not proper under Code of Civil Procedure § 437c(f)(1) or (t), and is denied on that basis. The Court is not making a determination on the merits of the Valencia Defendants’ argument, and they are not barred from raising its argument later in this case, if otherwise appropriate.

The Valencia Defendants motion for summary judgment, or alternatively summary adjudication, is denied.

Waters’ request for summary judgment is denied. However, Waters’ request for summary adjudication as to Plaintiff’s cause of action for premises liability against Waters is granted.

Hon. Audra Mori

Judge of the Superior Court

[1] Vehicle Code § 21950 concerns the right-of-way at crosswalks. Regarding pedestrians outside of crosswalks, California Vehicle Code § 21954 similarly provides that:

(a) Every pedestrian upon a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right-of-way to all vehicles upon the roadway so near as to constitute an immediate hazard.

(b) The provisions of this section shall not relieve the driver of a vehicle from the duty to exercise due care for the safety of any pedestrian upon a roadway.