Judge: Frank M. Tavelman, Case: 19STCV15400, Date: 2022-08-19 Tentative Ruling

Case Number: 19STCV15400    Hearing Date: August 19, 2022    Dept: A

MOTION FOR SUMMARY JUDGMENT (NANOS)

ALLEGATIONS:

Naphtali Del Villar ("Naphtali"), Quetzali Del Villar ("Quetzali"), Itzel Del Villar ("Itzel"), and Kaleb Del Villa, a minor, by and through his Guardian ad Litem, Scarlett Del Villar ("Kaleb", and collectively, "Plaintiffs") filed suit against the California Department of Transportation ("Caltrans"), alleging that Jose Luis Del Villar ("Decedent") was involved in a multi-vehicle collision on May 29, 2018 on the transition between the SR-134 WB freeway and the SR-2 WB freeway, which resulted in his death.

Plaintiffs also filed suit against David Lee Walker ("Walker"), Patricia Ann Crider ("Crider"), Gus Paul Nanos ("Nanos"), and H.L. Moe Co. ("HLMC"), alleging that these defendants were driving at the time and location of the collision and ran over Decedent.

Plaintiffs filed a Complaint against Caltrans ("Caltrans Complaint") on May 2, 2019, alleging two causes of action: (1) Wrongful Death and (2) Dangerous Condition of Public Property.

Plaintiff filed a Complaint against Walker, Crider, Nanos, and HLMC ("Driver Complaint") on January 13, 2020, alleging a single cause of action for Wrongful Death.

HLMC filed a Cross-Complaint ("HXC") against Walker and Crider on September 9, 2020, alleging three causes of action: (1) Declaratory Relief; (2) Implied Indemnity; and (3) Apportionment of Fault.

Walker filed a Cross-Complaint ("WXC") against Crider, Nanos, and HLMC on October 1, 2020, alleging four causes of action: (1) Indemnity; (2) Apportionment of Fault; (3) Comparative Fault; and (4) Declaratory Relief.

Crider filed a Cross-Complaint ("CXC") against Walker on December 1, 2020, alleging three causes of action: (1) Equitable Indemnity; (2) Declaratory Relief; and (3) Comparative Contribution.

Nanos and HLMC filed a Cross-Complaint (“NXC”) against Walker and Crider on June 29, 2022, alleging three causes of action: (1) Declaratory Relief; (2) Apportionment of Fault; and (3) Implied Indemnity.

HISTORY:

This case was related with Case No. 20STCV01350 on October 8, 2020, with the instant action as the leading case.

The Court received the Motion for Summary Judgment filed by Nanos and HLMC (“Nanos Defendants”) in Case No. 20STCV01350 on May 3, 2022. The Court has received an opposition on August 18, 2022; and has received a reply filed by Nanos Defendants in Case No. 19STCV15400 on August 12, 2022.  Due to a filing error, the Plaintiff’s opposition was timely received by the Defendant but not by the Court.   After multiple telephone calls to Plaintiff’s counsel’s office, the Court was able to obtain a copy of the opposition.

RELIEF REQUESTED:

Nano Defendants move for summary judgment as to the Driver Complaint.

ANALYSIS:

I.          LEGAL STANDARD

A party may move for summary judgment in any action or proceeding if it is contended the action has no merit or that there is no defense to the action or proceeding. (CCP § 437c(a).) To prevail on a motion for summary judgment, the evidence submitted must show there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (CCP § 437c(c).) In other words, the opposing party cannot present contrary admissible evidence to raise a triable factual dispute.

“A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if the party has shown that 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 the cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff or cross-complainant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.” (CCP § 437c(p)(2).)

When ruling on a summary judgment motion, the trial court must consider all inferences from the evidence, even those contradicted by the moving party’s evidence. The motion cannot succeed unless the evidence leaves no room for conflicting inferences as to material facts; the court has no power to weigh one inference against another or against other evidence. (Murillo v. Rite Stuff Food Inc. (1998) 65 Cal. App. 4th 833, 841.) In determining whether the facts give rise to a triable issue of material fact, "the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences there from must be accepted as true.” (Jackson v. County of Los Angeles (1997) 60 Cal. App. 4th 171, 179.)

With a summary judgment motion, a three-step analysis is required of the trial court. (AARTS Productions, Inc. v. Crocker Nat’l Bank (1986) 179 Cal. App. 3d 1061, 1064–65.) First, the trial court must identify the issues framed by the pleadings since it is these allegations to which the motion must respond by establishing a complete defense or otherwise showing there is no factual basis for relief on any theory reasonably contemplated by the opponent’s pleading. (Ibid.) Secondly, the court must determine whether the moving party’s showing has established facts which negate the opponent’s claim and justify a judgment in movant’s favor. (Ibid.) When a summary judgment motion prima facie justifies a judgment, the third and final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue. (Ibid.)

III.       PROCEDURAL DEFECTS

First, Plaintiffs submitted their objections combined with their separate statement in violation of CRC Rule 3.1354(b), which requires that objections be served and filed separately from other papers. Second, Plaintiffs did not file a separate statement, in violation of CRC Rule 3.1350(c), which requires the filing of a separate statement on a summary judgment motion. The Court admonishes Plaintiffs’ counsel to follow the local rules of this Court.

The Court finds that these errors are de minimis in light of the circumstances of the case and the instant motion and will nevertheless rule on the merits of the motion.

II.        OBJECTIONS

Plaintiffs’ Objections

The Court overrules Objection Nos. 18-21, 25, 27, and 30. 

Nanos Defendants’ Objections

The Court sustains Objection No. 1 on the basis of hearsay. This objection refers to Exhibit A attached to the Levy Declaration, represented as an accident report prepared by the State, and presumably, by the California Highway Patrol. No details are given or explained as to the exhibit. Auto accident reports are inadmissible. (Veh. Code, § 20013; People v. Flaxman (1977) 74 Cal.App.3d Supp. 16, 20.)

II.        MERITS

First Cause of Action (Wrongful Death)

1. The elements of a cause of action for wrongful death are the tort (negligence or other wrongful act), the resulting death, and the damages, consisting of the pecuniary loss suffered by the heirs. (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1263.)  

    

   A complaint for damages for negligent injury to person or property must allege: (1) defendant's legal duty of care toward plaintiff; (2) defendant's breach of duty, i.e., the negligent act or omission; (3) injury to plaintiff as a result of the breach, i.e., proximate or legal cause; and (4) damage to plaintiff. (Pultz v. Holgerson (1986) 184 Cal. App. 3d 1110, 1117.)

    

   Nanos Defendants assert that the Driver Complaint is based on an underlying claim that they were negligent in contributing to Decedent’s death, but that Plaintiffs cannot establish that Nanos Defendants were negligent. Nanos Defendants argue that Nanos was not speeding or committing any traffic infraction at the time of the accident, that Nanos was not able to see Decedent’s body in time to avoid the body due to the nature of the multi-vehicle collision, and that Nanos was not cited for any driving violations by CHP at the time of the accident. (Decl. Nanos, ¶¶ 3-7; Decl. Kwong, Exh. E Saunders Depo., 47:18-48:18.) Nanos Defendants specifically argue that Nanos was driving at 60-65 miles per hour at the time, within the speed limit of 65 miles per hour at this portion of the road. (Decl. Nanos, ¶ 4; Decl. Kwong, Exh. B Eggleston Depo., 37:19-22.) Nanos Defendants also argue that Nanos’ collision with Decedent’s body was at least the seventh collision suffered by Decedent’s body; and that Matthew Miller, M.D. (“Dr. Miller”), the medical examiner who examined Decedent’s body, testified that any of the six prior collisions would have killed Decedent. (Decl. Kwong, Ex. C Miller Depo. 22:14-19, 23:2-10, 28:13-29.)

    

   The Court finds that Nanos Defendants have satisfied their prima facie burden to show that Nanos did not commit negligence at the time of the accident, and that Plaintiffs cannot establish the negligence claim underlying the wrongful death cause of action. The burden shifts to Plaintiffs to show a triable issue of material fact as to their cause of action.

    

   In opposition, Plaintiffs argue that although there is evidence that Nanos was driving between 60 to 65 miles per hour, there is no evidence on the record that details what the road and lighting conditions were at the time of the accident. Plaintiffs thus argue that there exists a triable issue as to whether a reasonable driver would have driven at a slower speed given the road conditions. Plaintiffs also argue it is not possible to determine who, or what impact, resulted in Decedent’s death, and so it is a triable issue as to whether Nanos Defendants are at least partially liable for Decedent’s death.

    

   Plaintiffs present no evidence to support any of their arguments. Specifically, Plaintiffs present no evidence supporting the claim that there existed certain road and lighting conditions at the time of the accident that should have caused a reasonable driver to slow down; or that that the “reasonable speed” that Nanos’ vehicle should have been driving at the time of the accident is lower than the stated 60-65 miles per hour. Plaintiffs cannot fulfill their burden under the summary judgment standard by simply raise an argument that there may have existed hypothetical conditions that would cause a triable issue of material fact, without submitting supporting evidence that would substantiate these arguments. Plaintiffs do not deny or present evidence refuting Nanos Defendants’ evidence showing that Nanos was driving at 60-65 miles per hour at the time of the accident; do not deny that the speed limit on the relevant road was 65 miles per hour; and further do not deny or present evidence refuting the reasonable inference that may be taken from Nanos Defendants’ evidence that Nanos did not speed or perform any negligent actions at the time of the accident.

    

   Because Plaintiffs cannot refute Nanos Defendants’ showing that Nanos did not breach any duty and was not negligent at the time of the accident, the wrongful death cause of action is subject to summary judgment, and the Court need not analyze Plaintiffs’ second argument that there exists a triable issue as to causation.

    

   The Court finds that Plaintiffs do not satisfy their corresponding burden to show a triable issue of material fact as to the wrongful death cause of action.

    

   III.       CONCLUSION

    

   The Court thus grants the instant motion.

    

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   RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Defendants/Cross-Complainants Gus Nanos and H.L. Moe Co.’s Motion for Summary Judgment came on regularly for hearing on August 19, 2022, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

THE MOTION FOR SUMMARY JUDGMENT IS GRANTED.

IT IS SO ORDERED.

                                                                        F.M. TAVELMAN, Judge

                                                                        Superior Court of California

                                                                        County of Los Angeles