Judge Christian R. Gullon, Case Number: 20STCV15419, Date: 2024-12-17 Tentative Ruling

Judge: Christian R. Gullon, Case: 20STCV15419, Date: 2024-12-17 Tentative Ruling

The Court may change tentative rulings at any time. Therefore, attorneys are advised to check this website to determine if any changes or updates have been made to the tentative ruling.

Counsel may submit on the tentative rulings by calling the clerk in Dept. O at 909-802-1126 before 8:30 the morning of the hearing. Submission on the tentative does not bind the court to adopt the tentative ruling at the hearing should the opposing party appear and convince the court of further modification during oral argument.

The Tentative Ruling is not an invitation, nor an opportunity, to file any further documents relative to the hearing in question. No such filing will be considered by the Court in the absence of permission first obtained following ex-parte application therefore.

(1) DEFENDANTS/CROSSCOMPLAINANTS SERRANO DEVELOPMENT GROUP, INC., PACIFIC EMPIRE BUILDERS, INC. AND AZUSA BLOCK 36, LLC’S MOTION FOR SUMMARY JUDGMENT re: Soller’s Complaint is GRANTED.

(2) DEFENDANTS/CROSSCOMPLAINANTS SERRANO DEVELOPMENT GROUP, INC., PACIFIC EMPIRE BUILDERS, INC. AND AZUSA BLOCK 36, LLC’S MOTION FOR SUMMARY JUDGMENT re: Pano’s complaint is GRANTED.

On April 22, 2020, Plaintiff Edgardo Pano, Jr.[2] filed suit against SERRANO DEVELOPMENT GROUP, INC. (“Serrano”); PACIFIC EMPIRE BUILDERS, INC. (“Pacific Empire”); AZUSA BLOCK 36, LLC (“Azusa Block”); CITY OF AZUSA (“the City”); JONELLE SOLLER (“Soller”)[3] (collectively, “Defendants”) for the death of his father who was struck by a truck while riding his bicycle. More specifically, Plaintiff alleges that the width of the roadway where decedent was struck had been reduced by the placement of concrete barriers to accommodate construction, but that said barriers were placed without any adequate warnings.

On July 23, 2020, Plaintiff filed his first amended complaint (FAC) asserting the following causes of action (COAs):

On October 8, 2020, Plaintiff named Luis Morales (“Luis”) as Doe 1 and Rios Trucking as Does 2.

On December 11, 2020, Luis Eduardo Rios Morales Dba Rios Trucking (“Rios Trucking”) filed a cross-complaint (“CC”) against named Defendants for indemnity.

On January 15, 2021, Serrano, Pacific Empire, and Azusa Block filed a CC against B.L. PRICE CO., INC (“BL Price”); TED SAKAIDA & SONS, INC. (“Ted Trucking” or Sakaida); MANUAL D. TEJEDA TRUCKING INC. (“Tejeda Trucking”); Rios Trucking; and Right Truck Inc. (“Right Trucking”) for:

On January 19, 2021, Soller, as a successor in interest to decedent and in her personal capacity, filed a complaint for wrongful death (21STCV02124) against Serrano, Pacific Empire, Azusa Block, the City, Rios Trucking, Right Truck, and Luis.

On March 1, 2021, Ted Trucking filed a CC against Serrano, Pacific Empire, Azusa Block, the City, and Soller for:

On March 15, 2021, Right Trucking filed a CC against Serrano, Pacific Empire, Azusa Block, the City, and BL Price for indemnity.

On March 17, 2021, BL Price filed a CC against Manual D. Tejeda Trucking, Inc. (“Tejeda Trucking”) and Rios Trucking (and later on 4/14/21 naming Right Truck for indemnity.

On March 8, 2022, Serrano, Azusa Block, and Pacific Empire filed their first amended CC v. BL Price, Ted Trucking, Tejeda Trucking, Rios Trucking, and Right Truck (which is the subject of Sun Aggregates’ MSJ).

On June 10, 2022, Serrano, Azusa Block, and Pacific Empire named Hi-Way Safety Rentals, Inc. as Roe 1 and on September 22, 2022, they named Sun Aggregates LLC as Doe 2.

On October 19, 2022, Sun Aggregates LLC (“Sun Aggregates”) filed a Cross Complaint for indemnity against Serrano, Pacific Empire, Azusa Block, Tejeda Trucking, Rios Trucking, and Right Truck.

On December 29, 2022, Serrano, Pacific Empire, and Azusa Block (collectively “Cross-Defendants”) a demurrer to Sun Aggregates’ cause of action for express indemnity, which on 2/15/23 was sustained with leave to amend as the pleading failed to provide the express language allowing for express indemnity.

On November 8, 2023, the court entered the order granting Hi-Way’s Motion to quash Plaintiffs’ improper/incomplete service of process. As the Plaintiffs were not truly ignorant of Hi-Way’s identity, their claims against Hi-Way are barred by the applicable statute of limitations and were dismissed with prejudice.

On October 2, 2024, moving Defendants filed the instant MSJ re: Soller. (Defendants filed the original motion on 10/1 and an amended motion on 10/2.)

On December 3, 2024, Soller filed her opposition and Pano filed, essentially, a notice of joinder.

The law of summary judgment provides courts “a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) In reviewing a motion for summary judgment, courts employ a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)

“The motion for summary judgment shall be granted 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 a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) For emphasis, only material facts govern summary judgment.4 To be material, a fact must be essential to the action and, if proven, change the outcome of the case. (Los Angeles Nat’l Bank v. Bank of Canton (1991) 229 Cal.App.3d 1267, 1274.)5 As

A moving defendant bears the initial burden of production to show that one or more elements of the cause of action cannot be established or that there is a complete defense to the cause of action, at which point the burden shifts to the plaintiff to make a prima facie showing of the existence of a triable issue. (Code Civ. Proc., § 437c, subd. (p)(2).) “The motion shall be supported by affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken. The supporting papers shall include a separate statement setting forth plainly and concisely all material facts that the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence. The failure to comply with this requirement of a separate statement may in the court’s discretion constitute a sufficient ground for denying the motion.” (Code Civ. Proc., § 437c, subd. (b)(1).

Once the moving party meets its evidentiary burden, the burden shifts to the opposing party to show triable issues of material. Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389; see also Hinesley, supra, 135 Cal.App.4th at p. 294 [The court must “view the evidence in the light most favorable to the opposing party and accept all inferences reasonably drawn therefrom.”].) In determining whether the papers show that there is a triable issue as to any material fact, the court shall consider all of the evidence set forth in the moving papers, except that as to which objections have been made and sustained, and all inferences reasonable deducible from such evidence. (Hayman v. Block (1986) 176 Cal.App.3d 629, 639.)

Lastly, regarding evidence, “In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.” ((Code Civ. Proc., § 437c, subd. (q).) Therefore, where necessary, the court will address relevant evidentiary objections.

As the pleading frames the issues on summary judgment, the court turns to Plaintiff Soller’s complaint filed on 1/19/21. The relevant allegations are as follows:

That Plaintiff is informed and believes and thereon alleges that on the day of the subject incident described hereinabove, Defendants, their agents, and each of them, DIRECTED controlled, placed or were involved in the placement of the K-Rails at the site of the subject incident and failed to provide adequate spacing, traffic control, warnings for traffic through the scene of the subject incident, and failed to comply with appropriate standards, which resulted in improper and unusually narrow lane widths, lack of proper shoulder and/or bike path such that a bicyclist such as Decedent Edgardo Antonio Pano would be pushed into and pinned up against the K-Rail/concrete barriers and struck by a vehicle and result in serious injury or death. That Plaintiff is informed and believes and thereon alleges that on the day of the subject incident described hereinabove, Defendants, their agents, and each of them, due to the improper roadway geometry, lane width, shoulder width, barrier and K-Rail placement at the collision scene, knew there was INSUFFICIENT ROOM for bicyclists and vehicles to safely use the roadway without the risk of vehicles striking bicyclists and were aware that such contact could result in serious injury or death, yet failed to properly instruct placement or failed to place the K-Rails a safe distance at the scene of the subject collision, such that it resulted in inadequate spacing for vehicle and bicycle traffic thereby causing the subject incident. As yet unknown employees and/or agents of the SERRANO DEVELOPMENT GROUP, INC., PACIFIC EMPIRE BUILDERS, INC., AZUSA BLOCK 36, LLC. in the course and scope of their employment negligently and carelessly caused, permitted, controlled, managed, constructed, tested, inspected, serviced, warranted, operated, supervised and maintained the “The Orchard” project in the vicinity of N Azusa Avenue between E 6th Street and Foothill Boulevard, in the City of Azusa, County of Los Angeles, California, specifically including but not limited to placement of the K-Rail as well as inadequate/lack of the proper warning signs for the motoring and bicycle using public thereby causing the subject incident, resulting in the death of Decedent Edgardo Antonio Pano and damages to Plaintiff JONELLE SOLLER…placement of said K-Rails was NOT IN COMPLIANCE WITH EXISITING TRAFFIC CONTROL STANDARDS, CODES, AND REGULATIONS…. (Complaint ¶¶14-18, emphasis and capitalization added.)

Effectively, Plaintiff alleges that moving Defendants are negligent in their (1) dangerous placement of the K-Rail via their PLANS (¶18) and (2) failure to place proper warning signs about the “improperly negligently placed K-Rail.” (¶3.)

First, Plaintiff argues that Defendants’ focus on premises liability (and the cited authority) are irrelevant. (Opp. p. 3:22-24 [“In their motion, the Project Defendants somehow miss the fact that Plaintiff SOLLER alleged claims of negligence against them, and not premises liability as they represent in their MSJ.”].) The relevance of the distinction is unclear, the court interprets that statement is perhaps a tacit concession that moving Defendants do not OWN, CONTROL, or POSSESS the 600 block where the incident occurred. After all, premises liability “‘is grounded in the possession of the premises and the attendant right to control and manage the premises’”; accordingly, “ ‘mere possession with its attendant right to control conditions on the premises is a sufficient basis for the imposition of an affirmative duty to act.’” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 115, emphasis added.) In any event, the elements of negligence and premises liability are identical.

Second, Plaintiff’s opposition heavily if not predominantly argues that Defendants’ purported negligence is based upon their negligent operation of the subject HAULING ROUTE. Specifically, there are 38 times that the opposition references hauling/hauling route/haul route; however, the complaint—the pleading that controls—makes NO references to a haul route being a basis for negligence.[5] A plaintiff’s opposition papers cannot create issues outside the pleadings. (Motion and Reply p. 3:21-22 [“Plaintiff Soller’s complaint was always about the placement of the K-rails.”], citing Hutton v. Fidelity Nat’l Title Co. (2013) 213 Cal.App.4th 486, 493; see also Jacobs v. Coldwell Banker Residential Brokerage Co. (2017) 14 Cal.App.5th 438, 443-444.) Thus, as Defendants need not negate Plaintiff’s theory of liability regarding hauling routes, the court will not address any arguments or evidence that relate to a hauling route.

Third, Plaintiff Soller’s responses to Defendants’ separate statement (SS) is not limited to facts that address the elements of a cause of action or an affirmative defense. Instead, many of the responses contain nearly 30 citations to evidence that do not clearly indicate how a statement is in fact disputed. “The opposing party's responses to the separate statement must be in good faith, responsive, and material. Responses should directly address the fact stated, and if that fact is not in dispute, the opposing party must so admit. It is completely unhelpful to evade the stated fact in an attempt to create a dispute where none exists.” (See Beltran v. Hard Rock Hotel Licensing, Inc. (2023) 97 Cal.App.5th 865, 875.) Plaintiff’s approach to their SS undermines one of the purposes “to permit the trial court to focus on whether [the material] facts are truly undisputed.” (Ibid.) Absent such an undertaking, trial courts may “disregard attempts to game the system by the opposing party claiming facts are ‘disputed’ when the uncontroverted evidence clearly shows otherwise.” (Ibid.) Accordingly, absent a showing that a fact is genuinely disputed, the court will find certain facts/evidence undisputed.

Defendants bring forth their motions on the grounds that they did not owe a decedent a duty.

For reasons to be discussed below, the court agrees with Defendants that they did not owe a duty to the Decedent namely as the City controlled, possessed, and owned the public roadway where the subject incident occurred.

According to Defendants, the City of Azusa issued Encroachment Permit No. 18-083 to defendant Azusa Block 36, LLC, giving it permission to install “construction fencing and mobilization” in the public-right-of-way, including the 600 block of Azusa Avenue. (Motion p. 13, see also Separate Statement (SS) No. 7.) The City instructed defendant Azusa Block 36, LLC as to the exact location to place the K-rails. Defendants complied with the City’s instructions and the K-rails were located behind the white line in compliance with the City approved site plan. Indeed, a review of Defendants’ evidence provides the following evidence in support of the foregoing. (SS No. 8, citing Exs. E [deposition of Scott Henry, the Inspector for The Orchard project for the City of Azusa/the City’s PMQ], starting at p. 242 of 368 of PDF] and Ex. K [deposition of Shannon Patrick Byrne, Superintendent for Pacific Empire Builders], starting at p. 320 of 368 of PDF.)

- “Q: And was part of your job to supervise that the K-rail was placed in substantial COMPLIANCE WITH THE PLANS? A: Yes. Q: …was it placed in substantial compliance? A: yes.” (Ex. E, see p. 252 of 368 of PDF, capitalization added)

- “Q: Do you remember there were plans that called out for the location of K-rails along Azusa Avenue? A: Correct. Yes.” (Ex. E, p. 255)

- “Q:…No one, from your perspective, from the City or from the contractors, ever indicated to you as the Inspector out there that there was any error by the vendor who placed the K-rails, in terms of where they located them. True? ….A: Not that I know of.” (Ex. E, p. 256 see also pp. 257-258)

- Q: As far as whether it’s placed in accordance with the plans, you understand it’s to be placed in substantial compliance with the plans. Correct? A: Not in substantial compliance. WITH 100 PERCENT COMPLIANCE. Q: And did you—were you the one for Pacific Empire that was to make that decision, that it was 100 percent in compliance with the plans, or someone else? A: The City of Azusa was the one that was there to make sure that it was there, per plans. Q: Okay. And from your perspective, your recollection is that it was put in place in 100 percent compliance with the plans and approved by the City of Azusa as to its location. True? A: The City did approve the location. Q: Okay. And that’s it for you. If it’s set out there in accordance with the plans and the City approves it, you’re good. True? A: Yes, Sir. (Ex. K, p. 326, capitalization added)

- “…If they saw something that was problematic, such as a Sidewalk Closed sign being down, they would report it to you so you could address it. Correct? A: Yes, sir…I had a direct line of communication with multiple people at the City of Azusa. (Ex. K, p. 334.)

Therefore, Defendants have met their evidentiary burden to show that they placed the K-Rail in exactly the correct spot.

Evidentiary Objections: To the extent that Plaintiff seeks to preclude introduction of the foregoing evidence, Plaintiff’s evidentiary objections are OVERRULED.

First, Plaintiff objects to the portions of Exs. E and K on the grounds of relevance. As noted by Defendants, where the K-Rail was placed is central to the issues; thus, the depositions are relevant.

Second, Plaintiff objects to this deposition testimonies discussing the location of the K-rails by claiming that this misstates evidence. Not so as the cited testimony explicitly refers to the placement of the K-rails in the public right-of-way and the encroachment permit granting authority to do so.

To the extent that Plaintiff argues that compliance with the site plan does not absolve Defendants of liability,[6] it is unclear how so. Plaintiff sets forth no authority that a governing or regulatory body or entity aside from the City makes the final determination on plans. Put differently, the entity that ensures the site plans are to codes/regulations approved the plan. Thus, the site plan was drafted in conformity with appropriate standards.

Having established no duty existed, the burden shifts to Plaintiff. Their experts on the issue, Christopher Ryan (a civil engineer) and DR. Eric Rossetter (mechanical engineer) do not address the issue.

Specifically, Ryan, in pertinent part, states the following based upon his review of the construction plans:

The decision by the [Defendants] and City to keep both lanes of vehicle traffic open, combined with the placement of the K-Rails at the fog line, without closing that lane to bicycle traffic, created a hazard for cyclists by eliminating the ability of vehicle operators to maintain 3’ of distance between the vehicle and a cyclist as required by the Three Foot Rule. In my opinion, this constituted a design flaw that was a significant factor in causation of the subjection collision. (Ryan, Decl., ¶51, emphasis added.)[7]

However, as noted in Reply, Plaintiff’s contention this violated California’s Three Foot Rule is inapplicable because that rule applies to motor vehicle drivers. (Reply p. 9.) The rule codified under Vehicle Code section 21760 states that “A driver of a motor vehicle shall not overtake or pass a bicycle proceeding in the same direction on a highway at a distance of less than three feet between any part of the motor vehicle and any part of the bicycle or its operator.” (Id. at subd. (c), emphasis added.) Section 21760 further states “If the driver of a motor vehicle is unable to comply with subdivision (c), due to traffic or roadway conditions, the driver shall slow to a speed that is reasonable and prudent, and may pass only when doing so would not endanger the safety of the operator of the bicycle, taking into account the size and speed of the motor vehicle and bicycle, traffic conditions, weather, visibility, and surface and width of the highway.” (Id. at subd. (d), emphasis added) Accordingly, the Three-Foot Rule applies to drivers and not creation/drafting of site plans.

Therefore, as to the theory for the K-rail placement, the motion is GRANTED as Defendants’ have not met their evidentiary burden to show that the K-rail was placed in COMPLETE compliance with the site plan.

Defendants argue that because they did not own, possess or control the public right of-way, “Defendants had no duty or ability to place any additional warning signs. The City of Azusa was required to select and approve the placement of all signage, and Defendants complied with the City’s signage requirements along the 600 block of Azusa Avenue.” (Motion p. 10:11-15, citing SS Nos. 11-12.)

SS. No. 11 states that “The City of Azusa selected and approved all signage along the 600 block of Azusa Avenue for the Project” and in support thereof, Defendants cite to Exs. H (Delgadillo Depo. [City’s PMQ] at 41:25-42:20) and Ex. K (Byrne Depo. at 54:6-55:14, 80:17-81:14, 82:18-83:12, 85:13-24, 95:20-24, 100:22- 102:9). But a court’s review of those depositions does not state unequivocally state traffic control is in the City’s direction and order.

For example, Delgadillo’s Deposition (Person Most Qualified for the City of Azusa), provides the following:

“Q.· · · ·Did you or the City of Azusa ever tell the ·developer that they needed to put up signage for ·· ·bicyclists along the construction site on Azusa· Avenue? ·A.· · · ·No. Q.· · · ·Did you or the City of Azusa ever voice any concerns to the developer regarding bicycle safety ·along Azusa Avenue?· ·A.· · ·No. · ·Q.· ·Did you or the City ever voice any concerns ·to the developer regarding any impact of the K-rails · ·upon bicyclists riding along Azusa Avenue? ·A.· · · ·No. ·Q.· · · ·Did you or the City ever provide the · ·developer with a copy of the Azusa Downtown Pedestrian ·and bicycle Safety Workshop Summary and · ·Recommendations prior to the incident? · ·A.· · · ·No. ·Q.· · · ·Prior to the incident, did you ever – did you or the City ever inform the developer of the prior ·existence of any bike lane along Azusa Avenue? ··A.· · · ·No. · ·Q.· · · ·Did you or the City ever inform the developer ··of any prior bike lane collisions around or along ··Azusa Avenue prior to the incident? ··A.· · · ·No.”

Q. If the City had hold you, 'hey, we need to put up signs directing bicycle traffic on Azusa, and we need you to do it or have a vendor do it,' you would have done it. True? A. Yes. Q. You certainly would have the ability to get a subcontractor to put up traffic control of the nature to direct bicycle traffic on Azusa Avenue if the City required you to do so. Fair? A. Fair. Q. And there are times in projects where you've dealt with public entities where a project gets started, and then something happens where they realize, 'oh, we need to do something to address a problem,' and an add-on to the project happens. True?. True. Q. Your role as a project superintendent is to make sure you do it the way the Public Works Department for the City you've gotten an Encroachment Permit from - the way they want it done. Fair? A. Yes. Q. And that would include traffic control. Correct? A. Yes. Q. They certainly, meaning the City, would have the authority -- as far as Shannon Byrne was concerned, would have the authority to direct you to put up traffic control, relative to bicycle traffic and directing it. Fair? MR. RUTTER: Objection. Calls for speculation. THE WITNESS: Fair. (pp. 351-352, emphasis add.)

Accordingly, the foregoing establishes that the City would DIRECT Defendants to put up traffic control, not that the Defendants may at their own discretion place traffic control signage on a public road.[8] After all, the Defendants’ lack of control on the public roadway is evidenced by the need for an encroachment permit. (See Motion generally citing Lopez v. City of Los Angeles (2020) 55 Cal.App.5th 244, 262 [“If anything, the fact that Wally’s needs permission from the City connotes that the City is the party with exclusive control over that area.”]); General Ins. Co. of Am. v. St. Paul Fire & Marine Ins. Co (1974) 38 Cal.App.3d 760; Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 134 [“A defendant cannot be held liable for the defective or dangerous condition of property which it did not own, possess, or control.”].) Olmstead v. San Diego (1932) 124 Cal.App.14, 21-22 [need for permission implies “exclusive control” of permission giver].)[9]

In sum, put simply, Plaintiff’s complaint boils down to the allegation that Defendants plans (site plan and traffic control plan) did not meet certain standards and regulations but that the very fact and EVIDENCE that the City approved said plans indicates otherwise.

To the extent that Plaintiff rely on a case, it is Dow v. Holly Mfg. Co. (1958) 49 Cal.2d, 720, but that case is inapplicable for a variety of reasons. (See also Reply pp. 6-7.) In Dow, the plaintiffs, a mother and her son, sued for wrongful death of the father and two children caused by asphyxiation from carbon monoxide coming from a gas heater in the family home. (Id. at p. 722.) The plaintiffs sued the general contractor and the subcontractor that installed the gas heater. (Id. at pp. 723-724.) One of the issues was “whether the general contractor was liable for the negligent installation of a defective gas heater by Dover, his subcontractor….” (Id. at p. 725.) In finding liability, the court focused on the fact that the gas heater was a DANGEROUS INSTRUMENTALITY and that the relationship between a contractor, subcontractor, and owner. (Id. at pp. 725-726.) Here, however, there is no dangerous instrumentality (i.e., no evidence) and the relationship is one between the City and the contractor/owner/developer Defendants, not Defendants and subcontractors. “It is axiomatic that cases are not authority for propositions not considered.” (In re Bailey (2022) 76 Cal.App.5th 837, 853.)

The motions and evidence submitted are identical as to that of Soller. Plaintiff Pano’s FAC also makes similar allegations such has improper K-rail placement and lack of adequate warnings. Pano, however, filed a JOINDER; Pano did not submit his own separate statement/evidence. While joinder may be appropriate on some motions, not on a summary judgment which is a statute that requires evidence. (See e.g., Frazee v. Seely (2002) 95 Cal.App.4th 627, 636; see also Barak v. The Quisenberry Law Firm (2006) 135 Cal.App.4th 654, 661.) Thus, Pano’s joinder does not amount to the filing of an opposition. In any event, as Plaintiff Soller’s evidence/arguments fail, so too does Pano’s.

Based on the foregoing, the motions are granted; proposed orders have been filed.

[1] There is a consolidated case (Case No. 21STCV02124). Additionally, much of the procedural history has been omitted due to the numerous filings in this case.

[2] Plaintiff is the sole child of decedent. (FAC ¶2.)

[3] Soller is the widow of decedent. (FAC ¶14.)

[4] The motions as to the two complaints are similar/identical.

[5] The only time the word ‘haul’ is mentioned is in paragraph 1 which states in relevant part that Morales was “driving a semi-truck with two dirt hauler trailers….”

[6] (See also Opp. p. 4:21-23 [“None of the facts establish as a matter of law that CITY’s approval of the site plan and traffic control subsumes any and all negligent conduct by Movant.”], emphasis added; see also Response to SS No. 8 [“Defendants’ compliance with the CITY approved site plan does not exonerate Defendant absent a factual determination that the plan itself did not expose foreseeable users of the roadway from undue risk of harm.”], emphasis added.)

[7] See also Opp. 11:12-14 [“According to Plaintiff’s safety expert, the installation of K-rails so close to the fog line and the mandate that construction vehicles must use the No. 2 Lane (i.e., next to the K-rails) created a foreseeable risk to cyclists.)”].)

[8] With that the court OVERRULES Plaintiff’s objection that Defendants misstate evidence.

[9] Plaintiff does not address the cited authority.