Judge Audra Mori, Case 21STCV47440 2023-01-23 Tentative Ruling

Plaintiff Franco Colin (“Plaintiff”) filed this action against Defendants County of Los Angeles Sheriff’s Department (“LASD”), erroneously sued herein as the Los Angeles Sheriff’s Department, and Aaron Abellano (“Abellano”) for injuries arising from a motorcycle accident. The complaint alleges that on August 8, 2021, Plaintiff was operating his motorcycle facing a green traffic signal as he proceeded through the intersection. (Compl. ¶ 12.) At the same time, Abellano was operating a vehicle, facing a red traffic signal, when Abellano suddenly and without warning attempted to proceed through the red traffic signal at the subject intersection “in violation of California Vehicle Code § 21453.” (Id.) “This caused Plaintiff to lose control of his motorcycle and collide, and thereby causing Plaintiff to get ejected from his motorcycle and sustain injuries and damages complained of herein.” Plaintiff also alleges that Abellano operated the vehicle as to cause a collision with Plaintiff’s motorcycle. (Id. at ¶¶ 18, 25.) Abellano was operating the vehicle was LASD’s permission and consent in the scope of this employment with LASD. (Id. at ¶¶ 13, 24.) Defendants are allegedly liable for Plaintiff’s injuries under Government Code §§ 815.2(a) and 820(a). (Id. at ¶ 14.) The complaint alleges causes of action for negligence against all defendants and for vicarious liability against LASD.

Defendants LASD and Abellano (collectively, “Defendants”) now move for summary judgment against Plaintiff. Plaintiff opposes the motion, and Defendants filed a reply.

Defendants argue they are entitled to summary judgment because Plaintiff does not possess evidence to establish causation against Defendants, and Defendants contend Plaintiff cannot reasonably obtain evidence to establish causation. Defendants asserts that the evidence establishes that Plaintiff was an improperly licensed and inexperienced operator of a motorcycle he purchased two months before the accident, and that the accident occurred because Plaintiff believed that Abellano was going to enter the intersection in his patrol vehicle, so Plaintiff overreacted and caused his motorcycle to collide with the roadway. Defendants assert that the evidence establishes that Defendants’ vehicle never contacted Plaintiff or his motorcycle, and that Plaintiff’s own admissions during his deposition show he has no evidence regarding causation. Defendants contend that Plaintiff’s own admissions and factually devoid discovery responses thus show that Plaintiff possesses no evidence to establish his collision resulted from any contact between Defendants’ vehicle and Plaintiff’s motorcycle. Defendants contend that Plaintiff cannot now change his account of how the accident occurred to avoid summary judgment.

Plaintiff argues Defendants’ motion is procedurally deficient because it fails to specify what causes of action Defendants are seeking summary judgment against. Further, Plaintiff argues that the evidence shows that Abellano proceeded through a red light at the subject intersection and invaded Plaintiff’s direction of travel, and that LASD is liable for the injuries caused by its employee, Abellano. Plaintiff contends that his lack of a motorcycle license is irrelevant to the issue of liability, and Plaintiff contends that Defendants improperly rely on evidence not set forth in their separate statement. Additionally, Plaintiff argues that the issue of causation is a question of fact to be determined by the jury and that Defendants fail to establish the existence of factually devoid discovery responses by Plaintiff. Plaintiff avers that conflicting versions of the accident raise triable issues of fact.

Plaintiff, with his opposition, submits five objections to Defendants’ evidence filed with the motion. Objections 1-2 are sustained, as Defendants fail to sufficiently authenticate Exhibits C and D attached to the motion.[1] Objections 3-5 are overruled.

In their reply, Defendants submit 45 objections directed at Plaintiff’s additional material facts asserted in Plaintiff’s separate statement and at Plaintiff’s responses to Defendants’ separate statement of facts. Objections must be directed at evidence. 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 made to Plaintiff’s response to certain facts in the separate statement and to additional facts asserted therein. Nonetheless, the Court will review Plaintiff’s responses and additional facts to determine whether facts are supported by competent and admissible evidence.

Plaintiff argues that Defendants’ motion fails to comply with California Rules of Court, Rule 3.1350(d) because it fails to list the causes of action or affirmative defenses the motion is based upon.

(1) The Separate Statement of Undisputed Material Facts in support of a motion must separately identify:

(A) Each cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion; and

(B) Each supporting material fact claimed to be without dispute with respect to the cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion.

In this case, Defendants’ separate statement does not specifically state which causes of action Defendants are seeking summary judgment against. However, the 50 facts asserted in the separate statement all clearly concern the subject accident, and the separate statement and moving papers make clear that Defendants are seeking summary judgment as to Plaintiff’s entire complaint on the basis that Plaintiff cannot establish causation against Defendants. Indeed, Plaintiff does not dispute being confused as to the fact that Defendants are seeking summary judgment as to Plaintiff’s purported causes of action for negligence and vicarious liability. All of the allegations in the complaint are based on Defendants’ alleged liability for the subject accident, and the separate statement is clear that Defendants seek summary judgment on the basis they have no liability for the accident. [2] Plaintiff, thus, fails to identify any prejudice he suffered in being able to consider and respond to Defendants’ arguments.

Defendants’ separate statement otherwise complies with the format contained in California Rules of Court, Rule 3.1350(h). Therefore, the Court will consider the motion on the merits. (Truong v. Glasser (2009) 181 Cal.App.4th 102, 118 [“even if some additional headings had been required, the court's power to deny summary judgment on the basis of failure to comply with California Rules of Court, rule 3.1350 is discretionary, not mandatory.”].)[3]

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).) 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.)

Government Code § 815.2(a) states, “A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative.” “Except as otherwise provided by statute (including Section 820.2), a public employee is liable for injury caused by his act or omission to the same extent as a private person.” (Gov. Code § 820(a).)

“The elements of negligence are (1) a legal duty to use due care, (2) the breach of such legal duty, and (3) the breach was the proximate or legal cause of injury.” (Orey v. Superior Court (2013) 213 Cal.App.4th 1241, 1255.) “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.)

“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].) “To establish the element of actual causation, it must be shown that the defendant's act or omission was a substantial factor in bringing about the injury. [Citation.]” (Padilla v. Rodas (2008) 160 Cal.App.4th 742, 752 [affirming grant of summary judgment for plaintiff's failure to establish causation]; see also 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”]; 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”].)

Here, On August 8, 2021, Plaintiff was operating his motorcycle on Eastern Avenue in the City of Los Angeles, and as Plaintiff rode his motorcycle towards the intersection at Eastern Avenue and First Street, he noticed a LASD patrol vehicle approaching the intersection. (Mot. Undisputed Material Facts (“UMF”) 1, 8.) At the scene of the accident, Plaintiff relayed that because he thought the patrol vehicle was not going to stop for the red light, Plaintiff applied his brakes and lost control of his motorcycle. (Id. at 10.) As a result of the manner in which Plaintiff applied the brake, his motorcycle collided with the roadway and Plaintiff was thrown from the motorcycle. (Id. at 11.) Abellano was an on-duty sheriff’s deputy and was a passenger in the subject patrol vehicle, which came to a complete stop at the intersection of Eastern Avenue and First Street. (Id. at 14-15.) At the scene of the accident, Plaintiff did not accuse anyone of causing the patrol vehicle to make any contact with him or his motorcycle, nor did Plaintiff at any time accuse, complain, or inform Abellano that Plaintiff believe Abellano or Abellano’s partner was responsible for the collision. (Id. at 16-20.) A recording of the aftermath of the incident was captured on a body camera being worn by Abellano. (Id. at 22.)

California Highway Patrol Officer Alexis Gabriela Briano (“Briano “) reported to the collision location and investigated the accident. (Id. at 24, 26-27.) Briano believed that it was a single motor vehicle accident, which Briano explained was because she did not believe the patrol vehicle was a factor in the accident. (Id. at 32-33.) In reaching her conclusion as to the cause of the collision, Briano explained that although Plaintiff was operating his motorcycle within the designated speed limit for the location, he was operating his vehicle in a manner that was unsafe for the roadway conditions that existed at the time. (Id. at 35.) After reviewing Abellano’s body camera footage, Briano still believed the cause of the accident was Plaintiff’s unsafe operation of his motorcycle, and Briano explained that even if Defendants’ patrol vehicle traveled beyond the limit line and entered the intersection, it would not change her findings as to the cause of the collision. (Id. at 37-38.) Plaintiff did not tell anyone at the scene of the collision that the vehicle driven by Abellano struck his motorcycle.[4] (Id. at 40.) Additionally, Plaintiff did not identify any location on the patrol car that struck his motorcycle, and at his deposition, Plaintiff stated he could not remember what part of the patrol vehicle came into contact with his motorcycle, or how he knew that the vehicle came into contact with his motorcycle. (Id. at 42-45.) Plaintiff is not aware of any witnesses to the accident. (Id. at 48.)

Defendants seek summary judgment on the grounds that Plaintiff does not possess any evidence establishing causation, and that Plaintiff cannot reasonably obtain evidence establishing causation.

A defendant moving for summary judgment or summary adjudication must introduce admissible evidence in order to shift the burden of proof to the plaintiff. There are two ways for the moving party to make out the necessary prima facie case. A defendant may present evidence that – if uncontradicted – constitutes a preponderance of evidence that plaintiff cannot establish an essential element of its case. This approach, which requires offering evidence that negates a key element of the plaintiff’s cause of action, is known as the “tried and true” approach. (See, e.g., Kids’ Universe v. In2Labs (2002) 95 Cal.App.4th 870, 879.)

Alternatively, a defendant may present circumstantial evidence that the plaintiff does not now possess and cannot reasonably obtain the evidence needed to establish one or more elements of a claim. This is known as the “no evidence” approach and is described in Aguilar v, Atlantic Richfield Company (2001) 25 Cal.4th 826, 854. A defendant making a “no evidence” motion must introduce admissible evidence (by declaration or otherwise) that, in response to the full panoply of discovery devices (request for production, interrogatories, depositions etc.), the plaintiff has produced factually devoid responses sufficient to support an inference that the plaintiff cannot make out a prima facie case on an element of its case. In addition, a defendant making a “no evidence” motion must also establish that, by the time the case comes up for trial, the plaintiff “cannot reasonably expect to obtain” the evidence necessary to raise a triable issue of fact on the issue. (Schieding v. Dinwiddie Construction Company (1999) 69 Cal.App. 4th 64, 83.)

Defendants, in this case, are primarily making a “factually devoid discovery responses” motion, such that Defendants need not conclusively establish lack of evidence of fault in connection with the accident. Still, the motion is insufficient for several reasons. First, Defendants do not show that they propounded the “full panoply of discovery available” on Plaintiff, and that the responses remained deficient. Defendants submit only evidence of Plaintiff’s deposition testimony; there is no evidence submitted by Defendants of any written discovery served on Plaintiff. Notably, Plaintiff submitted copies of his responses to form interrogatories and special interrogatories propounded by LASD on Plaintiff. (Opp. Appendix of Evid. Exhs. D-E.) While a party generally cannot rely on their own discovery responses as evidence of the truth of the matters stated in the responses, (CCP § 2030.410), Plaintiff’s responses to the written discovery tend to show that Plaintiff’s responses were not deficient, or factually devoid, on their face. Second, information about Defendants’ driving and specific involvement, or lack of involvement, in the accident is more within the knowledge of Defendants than it is within Plaintiff’s knowledge. To the extent that Defendants assert that Plaintiff’s motorcycle was the first he ever owned, that he had not received instruction on how to ride the motorcycle, and that he was improperly licensed, (Mot. UMF 2-6), Defendants fail to offer any explanation or authority to show that these facts are sufficient to establish that Defendants were not negligent in connection with the incident.

Third, Defendants do not establish that Plaintiff cannot expect to obtain the evidence necessary to raise a triable issue of fact on the issue of Defendants’ alleged negligence in causing the accident by the time the matter comes up for trial, which is currently set for June 28, 2023. (Aguilar, 25 Cal.4th at 854 [noting that a defendant seeking summary judgment “must show that the plaintiff does not possess needed evidence . . . the defendant must also show that the plaintiff cannot reasonably obtain needed evidence . . .”].) On the contrary, while Plaintiff testified that he was not aware of any witnesses to the accident and that he was unable to identify anyone that captured the accident on video, when asked at his deposition, “Did the sheriff vehicle ever come into contact with your vehicle?”, Plaintiff responded, “Yes.” (Mot. Exh. A at p. 52:1-3.) Further, Plaintiff testified that the patrol vehicle proceeded into the subject intersection without stopping when the patrol vehicle had a red light. (Id. at p. 51:6-22.) Plaintiff’s testimony provides evidence of Defendants’ alleged negligence and cause of the accident. Although Defendants assert that Plaintiff’s account of how the accident occurred has changed from his statements at the scene of the accident, whether and to what extent Plaintiff’s testimony is contradicted by his statements to others, and related issues of credibility, are to be determined at trial. (See Taylor v. Financial Casualty & Surety, Inc. (2021) 67 Cal.App.5th 966, 982 [“summary judgment may not be granted on the court's evaluation of credibility.”]; compare with Visueta v. General Motors Corp. (1991) 234 Cal.App.3d 1609, 1613 [“Admissions or concessions made during the course of discovery govern and control over contrary declarations lodged at a hearing on a motion for summary judgment.”].)

Lastly, the Court has reviewed the body camera footage submitted by Defendants and finds it is not conclusive in establishing that Defendants did not cause the accident. The footage, which Abellano states was captured by the body camera he was wearing, is captured from the passenger side of the patrol vehicle. While inside the vehicle, the dashboard and windshield are visible. The camera is pointed upward, generally toward the sky; the angle is such that the street is not visible, but the traffic signals overhanging an intersection can be seen. The footage shows the patrol vehicle traveling down the street until it reaches the intersection for Eastern Avenue. The vehicle then appears to stop, at least somewhat abruptly, while the traffic light facing the patrol vehicle is red. At approximately the 30 second mark, Abellano steps out of the patrol vehicle and Plaintiff’s motorcycle is seen laying in the street on its side. Plaintiff is seen standing in the middle of the street, after the accident occurred, at which point Abellano approaches Plaintiff. There is no sound in the video up until this point. At about the one-minute mark, the sound on the footage is turned on and Abellano and the other sheriff’s deputy in the video are seen speaking to Plaintiff, including asking Plaintiff if he needs an ambulance and checking his ID card. The incident itself is not captured on the footage; however, at approximately the one minute and nine second mark of the video, the camera pans to the area where the patrol vehicle stopped, which is past the cross walk and limit lines of the intersection; in other words, the patrol vehicle is stopped inside the subject intersection. At his deposition, Plaintiff testified that the patrol vehicle travelled eight feet into the intersection. (Mot. Exh. A at pp. 72-73:23-12.) Accordingly, even if it were established that the patrol vehicle did not make contact with Plaintiff’s motorcycle, Plaintiff’s contention that Defendants “invaded” his right-of-way by entering the intersection on a red light, at the very least, provides an alternative theory of liability against Defendants and raises triable issues of material fact as to the cause of the accident. Indeed, Defendants recognize that this theory was expressed by Plaintiff.[5]

Causation is ordinarily a question of fact, and that is the case here. (Lombardo v. Huysentruyt (2001) 91 Cal.App.4th 656, 666 [“Causation is generally a question of fact for the jury, unless reasonable minds could not dispute the absence of causation.”].) Plaintiff has alleged in the Complaint and elsewhere that the entry of the patrol vehicle into the intersection suddenly and without warning caused him to lose control of his motorcycle. The video provided by Defendant does not show the incident or indisputably disprove Plaintiff’s theory. It has not been shown that Plaintiff, in response to the full panoply of discovery, cannot reasonably provide evidence needed to prove this claim. While Plaintiff may have offered testimony that calls Plaintiff’s credibility into question or creates issues of fact regarding his theory of liability, neither credibility nor issues of fact are properly decided by summary judgment.

Defendants do not seek summary judgment on any other grounds specified in their moving papers. Based on the foregoing, Defendants do not meet their moving burden and establish they are entitled to judgment as a matter of law.

[1] See Vehicle Code § 20013, which provides “No such accident report shall be used as evidence in any trial, civil or criminal, arising out of an accident….” However, as to Exhibit D- body camera footage of the aftermath of the incident- Abellano’s declaration sufficiently authenticates the footage, and thus, Exhibit D is admissible as properly authenticated by Abellano. (Mot. Abellano Decl. ¶¶ 13-14.)

[2] The complaint’s causes of action and Defendants’ separate statement are such that Defendants could have merely created a second heading in the separate statement for the vicarious liability cause of action and incorporated the same 50 facts therein. (See Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 296 [“The rule of respondeat superior is familiar and simply stated: an employer is vicariously liable for the torts of its employees committed within the scope of the employment.”].)

[3] The Court further notes that Defendants’ motion fails to comply with California Rules of Court, Rule 3.1350(g). Defendants submit approximately 70 pages of evidence but did not separately bind and file the evidence with a table of contents. Defendants also failed to electronically tab the declarations and exhibits filed with the motion further hindering review of the evidence. For this reason alone, the motion could be denied.

[4] In his declaration, Abellano provides that he was a passenger in the patrol vehicle involved in the alleged incident. (Mot. Abellano Decl. ¶ 3.) However, in Defendant’s undisputed material fact 40, Defendant seemingly indicates that Abellano was driving the patrol vehicle.

[5] The complaint alleges in relevant part that the patrol vehicle entered the intersection suddenly and without warning, facing a red light, which “caused Plaintiff to lose control of his motorcycle and collide, and thereby causing Plaintiff to get ejected from his motorcycle …” (Compl. ¶ 12.)