Judge Jill Feeney, Case BC676655 2022-10-18 Tentative Ruling

Judge: Jill Feeney, Case: BC676655, Date: 2022-10-18 Tentative Ruling

Case Number: BC676655 Hearing Date: October 18, 2022 Dept: 30

Department 30, Spring Street Courthouse

October 18, 2022

BC676655 [Consolidated with BC 677290]

Motion for Summary Judgment filed by Defendants State of California Department of Transportation and Guy F. Atkinson Construction, LLC

Motion for Joinder to the Motion for Summary Judgment filed by Defendant High-Light Electric, Inc.

DECISION

The motion is granted as to Defendant Caltrans.

Defendant Caltrans shall submit a proposed judgment within 20 days after the date of this order.

The motion is denied with respect to Defendants Guy F. Atkinson Construction, LLC and Defendant High-Light Electric, Inc.

Background

On September 20, 2017, Plaintiff Devin Armenta, by and through his guardian ad litem Darleen Garcia, filed a complaint against Defendant California Department of Transportation (“Caltrans”) alleging negligence and dangerous condition of public property caused the death of Dwayne Armenta (“Decedent”) on September 27, 2016.

On May 30, 2019, Plaintiff Devin Armenta, by and through his guardian ad litem Darleen Garcia, filed a first amended complaint.

On August 12, 2019, the Court consolidated case number BC676655 with case number BC677290 which is another case brought by other heirs of the Decedent.

On April 30,2021, Defendants Caltrans and Atkinson Construction, LLC (“Atkinson”) filed their motion for summary judgment.

On April 1, 2022, High-Light Electric, Inc. (“HLE”) filed its notice of joinder to Moving Defendants’ motion for summary judgment.

Undisputed Facts

After reviewing the approximately 54 filings submitted by the parties in connection with this motion for summary judgment, the Court finds that the following facts are undisputed.

At approximately 1:15 a.m. on November 23, 2016, Decedent ran out of gas while driving westbound on the I-10 freeway between the Via Verde and Kellogg Drive off/on ramps. Decedent pulled over to the right shoulder of the highway.

Decedent got out his car with a gas can. Decedent successfully walked across all the lanes of the Westbound I-10 freeway and reached the median by the Eastbound I-10’s number one lane of traffic. At approximately 2:35 a.m., Decedent was hit by a car while standing either on the edge of the median where it meets the number one lane of traffic or just in the number one lane of traffic. Decedent died from the impact. The driver drove away and has never been identified.

In order to understand this case, it is helpful to look at a picture of the area where the incident occurred. Defendant’s Exhibit 19 is below.

The area where the accident occurred was part of an area being renovated as part of a project known as the Hight Occupancy Expansion Project. Defendant Caltrans entered into a contract with Defendant Atkinson to perform the renovation work.

Prior to the accident, Defendant Atkinson had not performed any construction activities with respect to the center median where the Decedent was hit by a car. Moreover, Atkinson was not engaged in an active construction at the time of the accident and all lanes of the I-10 Freeway were open.

Defendant Atkinson entered into a contract with Defendant HLE to perform “electrical items” on the project. Defendant HLE’s responsibilities included maintaining the roadway lighting on the eastbound Route 57 Connector and the Kellogg Drive off-ramp.

Lighting in these two areas was not working at the time of the accident.

Status of the Summary Judgment Motion with Respect to Defendant Caltrans

Both Plaintiffs filed nonoppositions to the motion for summary judgment with respect to Defendant Caltrans. The Court has reviewed the filings and for the reasons stated grants the motion for summary judgment with respect to this defendant only.

Status of the Summary Judgment Motion with Respect to Defendants Atkinson and High-Light

The summary judgment motion with respect to Defendants Atkinson and HLE remains contested.

The law is clear that municipalities and utilities do not have a duty to light the streets and are not liable for any failure to do so absent a “peculiar condition rendering lighting necessary in order to make the streets safe for travel.” (Plattner v. City of Riverside (1999) 69 Cal.App.4th 1441, 1444 quoting Atenor v. City of Los Angeles (1985) 174.Cal.App.3d 477).

In the operative second amended complaint, filed on October 28, 2019, Plaintiff Triana Armenta alleges a single cause of action for negligence against Defendant Atkinson. Plaintiff Triana Armenta added Defendant HLE to the complaint on August 25, 2021.

In this complaint, Plaintiff alleges that the dangerous condition was a narrow asphalt shoulder (where Decedent pulled over after he ran out of gas) and inoperative lighting in the area.

Similarly, in the operative second amended complaint, filed on October 18, 2019, Plaintiff Devin Armenta makes the same claim.

In their oppositions to the motion for summary judgment and in their separate statements neither Plaintiff mentions the shoulder at all. Instead, it is clear that the dangerous condition alleged by Plaintiffs is the absence of illumination in the area.

Defendants Atkinson and HLE move for summary judgment on the basis that the lack of lighting in the area was not a dangerous condition. (Defendant Atkinson’s MSJ at pg. 19; Defendant HLE’s Joinder at pg. 14.) Defendant Atkinson contends that there was “no substantial risk of injury when the center median and eastbound I-10 are used with due care by the public generally” and that the highway was not designed to be used as a pedestrian walkway. Defendant HLE presents the same arguments citing to cases involving municipalities where it was held that the absence of street lighting alone is not a dangerous condition.

The issue here is whether a private entity may be liable in negligence for the absence of lighting alone.

Legal Standard

The purpose of a motion for 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. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c(c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, 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.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment “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 . . . cannot be established.” (Code Civ. Proc., § 437c(p)(2).) “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467.)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi, supra, 159 Cal.App.4th at p. 467; see also Code Civ. Proc., § 437c(c).)

Judicial Notice and Objections

The Court declines to decide these matters as they are not necessary to the decision here.

Discussion

Defendants Atkinson and HLE both argue that Plaintiffs’ cause of action for negligence fails because Atkinson and HLE did not create or maintain a dangerous condition at the accident location.

“The elements of a cause of action for negligence are well established. They are (a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resulting injury.” (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917, internal quotations omitted.) “The first element, duty, may be imposed by law, be assumed by the defendant, or exist by virtue of a special relationship.” (Doe v. United States Youth Soccer Assn., Inc. (2017) 8 Cal.App.5th 1118, 1128, internal quotations omitted.) “[T]he existence of a duty is a question of law for the court.” (Ky. Fried Chicken of Cal. v. Superior Court (1997) 14 Cal.4th 814, 819.) Generally, contractors owe a duty to “use reasonable care to prevent damage to persons whom he may reasonably expect to be affected by his work.” (Chance v. Lawry's, Inc. (1962) 58 Cal.2d 368, 378.)

In support of their legal contention that the failure to provide illumination alone does not constitute a dangerous condition as a matter of law, Defendants cite to cases involving governmental entities. The Court is aware of the relevant case law involving governmental entities, as well as utilities, with respect to the duty to provide illumination.

However, this is a case involving two private entities and their alleged failure to provide illumination in the vicinity of the highway where Decedent was struck by a motor vehicle. Defendants fail to provide any support in existing caselaw for extending this rule to private entities nor do they provide any legal analysis based on existing caselaw for this conclusion.

Atkinson and HLE’s separate statements both contain substantially similar factual allegations as Caltran’s separate statement. Both parties argue that they had no duty to light the median or the path to the call box. The facts asserted in their separate statements pertain primarily to Caltran’s duty and the design immunity defense. However, Atkinson and HLE cannot rely on the same defenses as Caltrans because they are not public entities. Unlike Caltrans, which had no duty to light its streets, Defendants Atkinson and HLE as contractors have a duty to use reasonable care to prevent damage to persons whom they may reasonably expect to be affected by their work.

There remains a triable issue of material fact over whether Atkinson’s and HLE’s failure to provide working lights on the freeway within their construction zone breached their duty of care. Neither Atkinson nor HLE dispute that the lights in the area were not working at the time Decedent was struck by a car.

Neither Atkinson nor HLE provide evidence or case law or argument showing they were relieved from ensuring the construction zone was lit or that Decedent was not a person who would reasonably be affected by their work. It seems to the Court that the issue that should have been analyzed here is the liability of an independent contractor with respect to an individual who was not a party to the contract. (See Lichtman v. Siemens Industry, Inc. (2017) 16 Cal.App.5th 914.) But, that was not the motion for summary judgment that was presented.

Atkinson and HLE fail to meet their burden of proof. The burden does not shift to Plaintiffs.

Although the Court finds that Defendants did not meet their burden in this instance, the Court does wish to briefly mention some of the arguments made by Plaintiffs in response to the motion.

Plaintiffs offer two theories of how the lack of illumination contributed to the accident. One is a convoluted theory that the lack of lighting caused Decedent to go out in search of a callbox across the highway that had been removed as part of the construction project. Plaintiffs contend that because of the lack of lighting, Decedent could not see that the callbox had been removed. It appears that this factual scenario is based on the speculation of Plaintiffs’ expert and may be contradicted by evidence that Decedent was in possession of an operational cellphone at the time of the accident (this evidence is the basis of an objection because it was only presented by Defendants as part of their replies.). Be that as it may, Plaintiffs assert another scenario: that the lack of lighting in the area contributed to the incident because the lack of visibility increased the chances of an accident such as the one that occurred. Nobody disputes the fact that Officer Villasenor, who investigated the accident, testified that he considered the lack of lighting in the area a contributing factor to the accident. (Villasenor Deposition, 20:10-20.)