Judge: James L. Crandall, Case: 20-1159475, Date: 2022-12-29 Tentative Ruling

1.    Motion for Summary Judgment and/or Adjudication

2.    Joinder

Defendant, Susan Margaret Alexander’s (Alexander) Motion for Summary Adjudication (Motion), filed 8-9-22 under ROA No. 63 is DENIED.

The court SUSTAINS Alexander’s objections to the Declaration of Jeffrey Suway, filed under ROA No. 91. Alexander’s objections to the Declaration of Anthony Salazar, filed under ROA No. 90 are SUSTAINED as to objections 1-3 and 7 and otherwise overruled.

“The purpose of the law of summary judgment is to provide courts with 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.) Pursuant to Code of Civil Procedure, section 437c, subdivision (a):

A party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding. The motion may be made at any time after 60 days have elapsed since the general appearance in the action or proceeding of each party against whom the motion is directed or at any earlier time after the general appearance that the court, with or without notice and upon good cause shown, may direct…. The motion shall be heard no later than 30 days before the date of trial, unless the court for good cause orders otherwise. The filing of the motion shall not extend the time within which a party must otherwise file a responsive pleading.

(Code Civ. Proc., § 437c, subd. (a).) A motion for summary judgment may 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).)

“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 denial of the motion.” (Code Civ. Proc., § 437c, subd. (b)(1); see also Cal. Rules of Court, rule 3.1350(c)(2) & (d).)

In analyzing motions for summary judgment, courts must apply 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 (Hinesley).) Pursuant to Code Civ. Proc., § 437c, subdivision (p)(2):

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.

(Code Civ. Proc., § 437c, subd. (p)(2).) The court must “view the evidence in the light most favorable to the opposing party and accept all inferences reasonably drawn therefrom.” (Hinesley, 135 Cal.App.4th at p. 294; Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389 [Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.”].) A motion for summary judgment must be denied where the moving party’s evidence does not prove all material facts, even in the absence of any opposition (Leyva v. Sup. Ct. (1985) 164 Cal.App.3d 462, 475) or where the opposition is weak (Salasguevara v. Wyeth Labs., Inc. (1990) 222 Cal.App.3d 379, 384, 387).

Defendant Susan Margaret Alexander (Alexander) moves for summary adjudication on “a negligence per se theory of liability against Defendant Irish Construction due to its statutory violations of the City of Tustin Ordinance Code 5330(d)(4) and California Vehicle Code section 21209(a)(1).” (Notice of Motion [ROA 71], 2.)

On 4-26-22, the court signed Alexander and Plaintiff Beta Lynn Bowen’s (Plaintiff) Stipulation re: Motion for Summary Adjudication per Code of Civil Procedure section 437c(t). The court’s order stated that Alexander and Plaintiff were permitted to file a motion as follows:

“Pursuant to Code of Civil Procedure section 437c(t), the Parties are permitted to file a Motion for Summary Adjudication as to the non-dispositive legal issue in the matter—whether Defendant Irish Construction was parked illegally at the time of the incident in violation of California Vehicle Code statutes and a City of Tustin, California Ordinance Code.”

(see ROA No. 42.)

On 9-13-22, Plaintiff filed a Notice of Joinder in Alexander’s Motion. (see ROA No. 77.)

Compliance with Code of Civil Procedure section 437c(t)

Code of Civil Procedure section 437c(t) states:

“(t) Notwithstanding 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.

(1)(A) Before filing a motion pursuant to this subdivision, the parties whose claims or defenses are put at issue by the motion shall submit to the court both of the following:

(i) A joint stipulation stating the issue or issues to be adjudicated.

(ii) A declaration from each stipulating party that the motion will further the interest of judicial economy by decreasing trial time or significantly increasing the likelihood of settlement.

(B) The joint stipulation shall be served on any party to the civil action who is not also a party to the motion.

(2) Within 15 days of receipt of the stipulation and declarations, unless the court has good cause for extending the time, the court shall notify the stipulating parties if the motion may be filed. In making this determination, the court may consider objections by a nonstipulating party made within 10 days of the submission of the stipulation and declarations.

(3) If the court elects not to allow the filing of the motion, the stipulating parties may request, and upon request the court shall conduct, an informal conference with the stipulating parties to permit further evaluation of the proposed stipulation. The stipulating parties shall not file additional papers in support of the motion.

(4)(A) A motion for summary adjudication made pursuant to this subdivision shall contain a statement in the notice of motion that reads substantially similar to the following: “This motion is made pursuant to subdivision (t) of Section 437c of the Code of Civil Procedure. The parties to this motion stipulate that the court shall hear this motion and that the resolution of this motion will further the interest of judicial economy by decreasing trial time or significantly increasing the likelihood of settlement.”

(B) The notice of motion shall be signed by counsel for all parties, and by those parties in propria persona, to the motion.

(5) A motion filed pursuant to this subdivision may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment.”

Defendant Irish Construction (Irish) contends that the Motion must be denied because it fails to comply with Code of Civil Procedure section 437c(t) in the following ways: (1) Irish was not party to Alexander’s stipulation despite the fact that the Motion seeks to establish liability against Irish, (2) the court granted the stipulation even though Irish timely objected to it, (3) the Motion improperly seeks a judgment beyond the scope granted by the court’s 4-26-22 order and (4) the Motion does not include the required language in Code of Civil Procedure section 437c(t)(4)(A). (Opposition, 12-13.)

The court finds that the Motion complies with Code of Civil Procedure section 437c(t).

First, Code of Civil Procedure section 437c(t) requires on its face that the parties to the stipulation be “parties whose claims or defenses are put at issue by the motion.” Here, both Alexander and Plaintiff claim that Irish is liable on a negligence per se theory and both stipulated to filing a motion for summary adjudication regarding same. There is no statutory requirement that Irish be party to the stipulation as the party who is opposing the motion.

Second, Code of Civil Procedure section 437c(t) states that the court “may consider objections by a nonstipulating party made within 10 days of the submission of the stipulation.” Although Irish timely submitted its objections, Code of Civil Procedure section 437c(t) does not mandate that the court consider its objections prior to ruling on the stipulation.

Third, as discussed above the court permitted Alexander and Plaintiff to file a motion on the following: “whether Defendant Irish Construction was parked illegally at the time of the incident in violation of California Vehicle Code statutes and a City of Tustin, California Ordinance Code.” Therefore, the court’s ruling will be limited based on this order. However, to the extent that Alexander seeks more by her motion than what the court previously ordered, this is not grounds to deny the Motion in its entirety.

Fourth, the court finds that the Motion substantially complies with the language required in Code of Civil Procedure section 437c(t) because it states that it is being brought pursuant to this section. Moreover, Code of Civil Procedure section 437c(t) does not require that either Alexander or Plaintiff personally sign the Motion as both are represented by counsel. Code of Civil Procedure section 437c(t)(4)(B) only requires that a party sign the Motion personally if they are appearing in propia persona.

Merits

City of Tustin Ordinance Code section 5330(d)(4) states: ““No operator of any vehicle shall stop, stand, park, or leave standing such vehicle . . . in any area established by resolution of the Council as a no parking area, where such area is indicated by appropriate signs or by red paint upon the curb surface.”

Vehicle Code section 21209 states: “(a)No person shall drive a motor vehicle in a bicycle lane established on a roadway pursuant to Section 21207 except as follows:

(1) To park where parking is permitted.

(2) To enter or leave the roadway.

(3) To prepare for a turn within a distance of 200 feet from the intersection.

(b)This section does not prohibit the use of a motorized bicycle in a bicycle lane, pursuant to Section 21207.5, at a speed no greater than is reasonable or prudent, having due regard for visibility, traffic conditions, and the condition of the roadway surface of the bicycle lane, and in a manner which does not endanger the safety of bicyclists.”

Alexander asserts that Irish breached Tustin Ordinance Code section 5330(d)(4) because it parked its construction vehicle in front of a “No Parking Anytime” sign on 10-4-18. (Motion, 4-5; Exhibits in Support of Motion, Exhibits G and H; Separate Statement in Support of Motion (DSS), Nos. 11-12) Further, Irish’s Person Most Knowledgeable (PMK) allegedly testified that the Traffic Control Plan and Permit Irish was working under had expired on 10-4-18. (Id.) Additionally, Irish allegedly violated Vehicle Code section 21209(a)(1) for the same reasons. (Motion, 5-6; DSS Nos. 1, 4, 9, 11-12.)

In opposition, Irish contends that triable issues exist with regard to whether its conduct constituted any violations of the Tustin Ordinance Code or California Vehicle Code. (Opposition, 14-19.) According to Irish, the Permit and Traffic Control Plan still permitted it to park in the bicycle lane on 10-4-18. (Id.) Irish cites to the testimony of its PMK and to the Declaration of Anthony Salazar (Salazar) in support of its arguments. (see Separate Statement of Additional Facts in Support of Opposition (AMF) [ROA 82], Nos. 17-27, 32-43.)

Salazar attests as follows: “I am a construction consultant and am experienced in various aspects of construction projects, including construction management. I have been retained by Irish Construction in the above-captioned matter to consult and/or testify as to the use and effect of construction permits, among other things. I make this Declaration in support of Irish Construction’s Opposition to the Motion for Summary Adjudication brought by Defendant Susan Margaret Alexander.[¶]… I have reviewed the facts of the above-captioned matter and the Permit and Traffic Control Plan for the work Irish Construction was doing at the time of the accident at issue. The Permit was separate from the Traffic Control Plan. [¶]The Permit allowed for Irish Construction personnel, equipment, and vehicles to remain at the site at least through the date of the subject accident and was active on the date of the subject accident. [¶]No lane closures were necessary unless motor vehicle traffic would be impeded by the work being done….[¶] The Permit demonstrated permission from the City of Tustin for Irish Construction to park a vehicle in the bike lane on Newport Avenue while the Project was still in progress.” (Salazar Declaration, ¶¶ 2, 7, 8-9, 12.)

Irish’s PMK testified as follows regarding the Permit and Traffic Control Plan:

“Q: Okay. So if your – if the placement of your trucks is not governed by a traffic control plan, then do you have any specific authority to do anything that a normal person would otherwise not be able to do with their car?

A: No.

Q: In other words, if you’re not operating within the bounds of a traffic control plan, you’re bound by the same ordinances that everybody else is in terms of where you can park, how long you can park it there, all that sort of thing?

A: Yeah.”

(Exhibits in Support of Motion, Exhibit C at 44:10-20.)

Irish’s PMK also testified as follows regarding 10-4-18:

“Q. So are you telling me that there’s another traffic control plan that was actually in place at the time of this accident?

A. No. We don’t need a traffic control print for parking in the parking lane.

Q. Well, you had part of a lane blocked off with cones. It looks like there was some signage there at the time of the accident. You don’t need a traffic control plan to do that?

A. No. That is a parking lane.”

(Exhibits in Support of Motion, Exhibit C at 43:12-22.)

Based on the foregoing, the court finds that Irish has raised a triable issue regarding whether its conduct in parking a construction vehicle on Newport Avenue on 10-4-18 constituted a violation of either Tustin Ordinance Code or the Vehicle Code. The testimony of Irish’s PMK does not conclusively establish that Irish was parked on Newport Avenue in violation, as Mr. Flores also testifies that he believes that no permit was necessary at the time given that area included a parking lane. In addition, Irish has submitted admissible evidence in the form of the Salazar Declaration for the argument that the Permit and Traffic Control Plan permitted parking on 10-4-18. The interpretation of the Permit and Traffic Control Plan constitutes a triable issue.

Therefore, Alexander’s Motion is DENIED.

In summary, Defendant, Susan Margaret Alexander’s (Alexander) Motion for Summary Adjudication (Motion), filed 8-9-22 under ROA No. 63 is DENIED.

Irish is to give notice.

Future hearing dates

3/17/23 – MSC

4/17/23 – Jury Trial