Judge Jill Feeney, Case BC676655 2022-12-27 Tentative Ruling

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 (“State”) alleging negligence and dangerous condition of public property for the death of Dwayne Armenta on September 27, 2016.

Atkinson and HLE move for judgment on the pleadings on identical grounds. First, Moving Defendants argue that Plaintiffs’ second cause of action for negligence fails as a matter of law because the SAC alleges the dangerous condition was a combination of the narrow shoulder and inoperative lighting. Additionally, Moving Defendants argue they had no duty to light the freeway where Decedent was struck and killed. Next, Moving Defendants argue that Plaintiffs should be precluded from asserting a dangerous condition against Moving Defendants under the doctrine of res judicata. Finally, Moving Defendants argue that Plaintiffs should be judicially estopped from asserting a dangerous condition aside from the absence of lighting.

Plaintiffs in identical oppositions argue that Moving Defendants’ motion should be denied because they are attempting to reargue points previously rejected by the Court in denying the Moving Defendants’ motion for summary judgment. Next, Plaintiffs argue that Defendants improperly bring in facts beyond the scope of the pleadings through their request for judicial notice. Plaintiffs then argue that their SAC states a substantive and plausible claim for negligence against Defendants. Finally, Plaintiffs argue that res judicata only applies to decisions from prior actions, not from the same proceedings. Additionally, judicial estoppel is a factual inquiry that cannot be properly raised in a motion for judgment on the pleadings.

The standard for ruling on a motion for judgment on the pleadings is essentially the same as that applicable to a general demurrer, that is, whether given the state of the pleadings, together with matters that may be judicially noticed, it appears that a party is entitled to judgment as a matter of law. (Bezirdjian v. O'Reilly (2010) 183 Cal.App.4th 316, 321-322, citing Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205, 1216.) Matters which are subject to mandatory judicial notice may be treated as part of the complaint and may be considered without notice to the parties. Matters which are subject to permissive judicial notice must be specified in the notice of motion, the supporting points and authorities, or as the court otherwise permits. (Id.) The motion may not be supported by extrinsic evidence. (Barker v. Hull (1987) 191 Cal.App.3d 221, 236.)

“[I]n order for judicial notice to support a motion for judgment on the pleadings by negating an express allegation of the pleading, the notice must be of something that cannot reasonably be controverted…The same is true of evidentiary admissions or concessions.” (Columbia Casualty Co. v. Northwestern Nat. Ins. Co. (1991) 231 Cal.App.3d 457, 468.)

The request is denied. Although a Court may take judicial notice of any record of any court in the United States, judicial notice is limited to the existence of a court’s action and not the truth of the facts found and recited. (Barri v. Workers' Comp. Appeals Bd. (2018) 28 Cal.App.5th 428, 438.) Additionally, judicial notice may only be used to support a motion for judicial notice by negating an express allegation of the pleading if the notice is of something that cannot reasonably be controverted. (Columbia Casualty Co. v. Northwestern Nat. Ins. Co. (1991) 231 Cal.App.3d 457, 468.) Here, the motions for summary judgment contain facts that are controverted. Although the Court may take judicial notice that the motion was filed and the outcome of the motion for summary judgment, it may not take judicial notice of the truth of the factual allegations advanced in the motion papers.

A motion for judgment on the pleadings must be accompanied by a meet and confer declaration demonstrating an attempt to meet and confer in person or by telephone, at least five days before the date a motion for judgment on the pleadings is filed. (Code Civ. Proc., § 439.) However, a determination that the meet and confer process is insufficient does not constitute grounds to grant or deny a motion for judgment on the pleadings. (Code Civ. Proc., § 439, subd. (a)(4).)

Here, the parties met and conferred via email and could not resolve Moving Defendants’ issues with Plaintiffs’ SAC. (Motion, Exh. 1.) Although this is insufficient under Code Civ. Proc., §439 because the parties were required to meet in person or via telephone, failure to meet and confer is not a basis to deny a motion for judgment on the pleadings.

“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.) Where a contractor exercises control over the owner's premises, his duty of care toward third persons is commensurate with that of the owner. (Chance v. Lawry's, Inc. (1962) 58 Cal.2d 368, 376.) 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.” (Id. at 378.)

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.) “One who contracts with a public body for the performance of public work is entitled to share the immunity of the public from liability for incidental injuries necessarily involved in performance of the contract, where he is not guilty of negligence. However, whatever immunity the state or its political subdivisions may enjoy from liability for negligence does not extend to injuries proximately resulting from the contractor’s negligence in performance of the work contracted for.” (Gruner v. Barber (1962) 207 Cal.App.2d 54, 59 citations omitted.)

Here, Plaintiffs’ SAC states that Caltrans hired Moving Defendants to “perform a construction project on” the subject roadway and were charged with the duty and responsibility “of maintaining and controlling the [roadway], including, but not limited to, the lighting, the five designated lanes in each direction, the asphalt shoulder, and the asphalt median.” (SAC ¶10.) Decedent’s vehicle ran out of gas, causing him to park his vehicle on a narrow asphalt shoulder. (SAC ¶18.) At the time of the subject accident, “the location where the Decedent was forced to park his vehicle, the roadway itself, as well as the six (6) foot wide center median where the Decedent was struck and killed, was not illuminated by any street lights because they had been turned off or were broken.” (SAC ¶18.) The construction on the roadway created dangerous conditions on the roadway, including “the narrow width of the asphalt shoulder, no street lights, [and] no refuge for motorists experiencing car trouble. (SAC ¶20.) Moving Defendants had notice of the dangerous conditions and would have discovered them on reasonable inspection. (SAC ¶20.)

Moving Defendants contend that they had no duty to light the subject roadway because they share the same immunities as Caltrans. As the Court previously discussed in its October 19, 2022 order, Moving Defendants cannot rely on the same defenses as Caltrans because they are not public entities. Unlike Caltrans, which had no duty to light its streets, Moving Defendants are contractors that have a duty to use reasonable care to prevent damage to persons whom they may reasonably expect to be affected by their work. Any immunities Caltrans enjoyed regarding liability for negligence do not extend to Moving Defendants, who remain liable for negligence in performing their contracted work. As pled, the SAC sufficiently alleges that Moving Defendants had a duty to maintain and control the roadway; that they breached their duty by allowing dangerous conditions to exist on the roadway including a lack of lighting; and that Decedent was struck and killed as a result of the dangerous conditions. Regardless of whether these allegations are true, the SAC sufficiently pleads that Moving Defendants were negligent in performing the work they were contracted to do.

Moving Defendants rely on Gruner to argue that they are immune from liability in this matter because they share the same immunities as Caltrans and had no duty to light its streets. To the contrary, Gruner specifically provides that contractors are not protected against immunity pertaining to negligence in performing the work contracted for. (Gruner v. Barber (1962) 207 Cal.App.2d 54, 59.) Here, Moving Defendants’ conclusory statements that they are protected under the same immunities as Caltrans pertaining to the streetlights are without merit because they are not immune from liability related to negligence in performing the work contracted.

Moving Defendants next argue that Plaintiffs are precluded under res judicata from relitigating the cause of action for negligence under a theory of dangerous condition because judgment was entered in favor of Caltrans when Caltrans brought its motion for summary judgment.

“‘Res judicata’ describes the preclusive effect of a final judgment on the merits. Res judicata, or claim preclusion, prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them.” [Citation.] “A predictable doctrine of res judicata benefits both the parties and the courts because it ‘seeks to curtail multiple litigation causing vexation and expense to the parties and wasted effort and expense in judicial administration.’” (Consumer Advocacy Group, Inc. v. ExxonMobil Corp.¿(2008) 168 Cal.App.4th 675, 683.)

“A prior judgment is not¿res¿judicata¿on a subsequent action unless three¿elements¿are satisfied:¿‘(1) the issues decided in the prior adjudication are identical with those presented in the later action; (2) there was a final judgment on the merits in the prior action; and (3) the party against whom the plea is raised was a party or was in privity with a party to the prior adjudication.” (Id. at p. 685-86.)

“‘A judgment is on the merits for purposes of res judicata “if the substance of the claim is tried and determined…’ This may include a judgment of dismissal following a general demurrer or a dismissal motion if the disposition was plainly reached ‘on a ground of substance.’” (Association of Irritated Residents v. Department of Conservation (2017) 11 Cal.App.5th 1202, 1220.)

As previously discussed, Moving Defendants do not have the same immunities as Caltrans because they are not immune from liability related to negligence in performing the work they were contracted to do. The issues between Caltrans and Moving Defendants are not identical. The issue of whether Moving Defendants were negligent in the roadway construction was not already litigated. Thus, res judicata does not apply here.

Finally, Moving Defendants argue that Plaintiffs took the position during the proceedings on Defendants’ motion for summary judgment that the lack of illumination was the dangerous condition on the subject roadway and should now be precluded from using the position that the narrow asphalt shoulder was the dangerous condition.

“Judicial estoppel prevents a party from asserting a position in a legal proceeding that is contrary to a position previously taken in the same or some earlier proceeding.” (State Water Resources Control Bd. Cases (2006) 136 Cal.App.5th 674, 826-827.) “The doctrine applies when: (1) the same party has taken two positions; (2) the positions were taken in judicial or quasi-judicial administrative proceedings; (3) the party was successful in asserting the first position (i.e., the tribunal adopted the position or accepted it as true); (4) the two positions are totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud, or mistake.” (Ibid.) The inconsistent position must also arise from intentional wrongdoing or an attempt to obtain an unfair advantage. (Kitty-Anne Music Co. v Swan (2003) 112 CA4th 30, 34–36, 4 CR3d 796.)

Judicial estoppel may be applied at the trial court’s discretion even if all elements are present, and is intended to protect the integrity of the judicial process by preventing litigants from playing fast and loose with the courts. (International Engine Parts, Inc. v. Feddersen & Co. (1998) 64 Cal.App.4th 345, 350.) Judicial estoppel should only be granted in egregious circumstances to prevent a miscarriage of justice. (Minish v Hanuman Fellowship (2013) 214 CA4th 437, 449, 454.) The doctrine does not apply when the party was not successful in asserting the first position because the court did not adopt or approve that position. (RSL Funding, LLC v Alford (2015) 239 CA4th at 748.)

Here, Moving Defendants rely on a portion of the Court’s October 19, 2022 ruling where the Court noted that neither Plaintiff presented evidence pertaining to the narrow asphalt shoulder referenced in their SAC. Moving Defendants argue that because the Court denied their motion for summary judgment, Plaintiffs prevailed on their position that the dangerous condition that caused the subject accident was a lack of lighting. However, the October 19, 2022 order states that triable issues of material fact exist over whether Moving Defendants’ failure to light the freeway within their construction zone breached their duty of care. The Court did not adopt or accept as true that the only dangerous condition was a lack of lighting. Additionally, Plaintiffs’ failure to address the issue of the asphalt shoulder is insufficient to warrant judicial estoppel. Moving Defendants provide no evidence that Plaintiffs committed intentional wrongdoing or attempted to obtain an unfair advantage. The discrepancy is not so egregious as to warrant judicial estoppel.