Judge Lee S. Arian, Case Number: 22STCV26437, Date: 2024-11-21 Tentative Ruling

This case arises out of a wrongful death that occurred on November 23, 2021, in which Decedent Craig McCue ("Decedent") was riding his motorcycle along on Rooks Road in Pico Rivera, California. Decedent lost control of his motorcycle after allegedly encountering debris in the roadway and ultimately crashed into a stand-alone and unprotected concrete K-rail. (See First Amended Complaint at ¶ 11.)

In reviewing a motion for summary judgment or adjudication, 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.)

“[T]he initial burden is always on the moving party to make a prima facia 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 or summary adjudication “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, or that there is a complete defense to the cause of action.”¿(Code Civ. Proc., § 437c, subd. (p)(2).)¿If the moving party fails to carry its burden, the inquiry is over, and the motion must be denied. (See Id.; see also Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468.)¿Even if the moving party does carry its burden, the non-moving party will still defeat the motion by presenting evidence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849-50.)

To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.”¿(Aguilar, supra, 25 Cal.4th at p. 854.)¿It is insufficient for the defendant to merely point out the absence of evidence.¿(Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.)¿The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.”¿(Ibid.)¿The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken.¿(Aguilar, supra, 25 Cal.4th at p. 855.)

“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.” (Code Civ. Proc., § 437c, subd. (p)(2).) The plaintiff may not merely rely on 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.”¿(Ibid.)¿“If the plaintiff cannot do so, summary judgment should be granted.”¿(Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

The court must “liberally construe the evidence in support of the party opposing summary judgment and resolve all doubts concerning the evidence in favor of that party,” including “all inferences reasonably drawn therefrom.”¿(Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037; Aguilar, supra, 25 Cal.4th at pp. 844-45.) “On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence.¿While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues.¿[Citation.]¿Only when the inferences are indisputable may the court decide the issues as a matter of law.¿ If the evidence is in conflict, the factual issues must be resolved by trial.”¿(Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839.)¿Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true.¿[Citation.]¿Nor may the trial court grant summary judgment based on the court’s evaluation of credibility. [Citation.]” (Id. at p. 840; see also Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].)

The Parties did not make any objections to evidence that were material to the Court’s ruling. (CCP § 437c(q).)

Plaintiff presents two theories under which the County could be held liable: the presence of debris in the roadway and the placement of the K-rail. If either theory presents a triable issue of fact, summary judgment is not appropriate.

Defendant contends it did not own or control the K-rail. It contends the K-rail is owned and controlled by the federal government.

Defendant makes seemingly contradictory allegations in its Separate Statement on the issue of control. Defendant first argues that the City does not own, control or have any record of placing the K-rails. (UMF 25-27.) Defendant further asserts that Rooks Road, where the subject K-rail is located, is owned by the federal government and is part of the Whittier Narrows Flood Control Basin. (UMF 29.)

However, Defendant then states that the City had a lease agreement with the federal government to use Rooks Road and other nearby areas for recreational purposes at the time of the incident. (UMF 30.) Defendant acknowledges that the City agreed to maintain Rooks Road as part of this lease agreement. (UMF 31.) Notably, the lease agreement and license did not expire until September 5, 2022, which is well after the incident occurred. (UMF 32.)

On one hand, then, Defendant claims it lacked ownership or control over the area where the subject K rail is located. On the other hand, it acknowledges a lease agreement granting it use of and responsibility to maintain the subject location.

Defendant has failed to distinguish how its admitted duty to maintain Rooks Road does not constitute control over the subject K-rail, which is located on Rooks Road. Defendant offers no explanation as to how ensuring the proper placement of the K-rail or providing protective measures at its end would fall outside its maintenance obligations. The Court finds that Defendant had control over the K-rail based on its maintenance responsibilities. Defendant has thus failed to meet its initial burden.

Plaintiff provided evidence shedding more light on Defendant’s duty to maintain the subject premises. Paragraph 10 of the operative license agreement between the federal government and the City of Pico Rivera states that the grantee, City of Pico Rivera, “shall keep the Premises in good order and in a clean, safe condition by and at the expense of the grantee.” (Mandell Dec. ¶ 3; Exh. 4 to Negrete Depo. [Exh. A].)

Additionally, the City’s person most knowledgeable (PMK), during her deposition, confirmed that the City is responsible for the operation and maintenance of the roadway under the lease agreement, including the subject K-rail.

When questioned about the City’s authority to control the roadway, including the K-rails, the City’s PMK testified:

Q: "I'm simply saying in the judgment of the city. If, in the judgment of the city, there was a dangerous condition along that roadway, including the placement or positioning of those K-rails, the city was well within its rights, under that lease agreement, to address it the way it deemed appropriate; true?"
A: "Yeah. As an example, if the K-rail was in the middle of the roadway, yes, the city would definitely move that K-rail out of the roadway, yes."

Q: "Okay. I’m not asking for a specific instance. Okay. If the city – let’s just take the K-Rails that are there, and if the city felt that the K-Rails should be moved, for any reason, for any reason, the city had the right to do that; true?"
A: "Per the agreement, yes."

Based on the license agreement and the City’s PMK testimony, the Court finds that Plaintiff has raised a triable issue of fact regarding whether Defendant exercised control over the subject K-rail. Because Defendant's sole argument against Plaintiff's theory of liability on the basis of the placement of the K-rail rests on the issue of control, summary judgment is denied.[1]

In the alternative, Defendant seeks summary adjudication on the following issues:

Under Code of Civil Procedure section 437c(f)(1), “[a] party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.”

The legislative history of the summary adjudication statute is consistent with this limitation. Before the 1990 amendment to the summary adjudication statute, parties could seek summary adjudication on any issues raised in a case. The 1990 amendment restricted such motions to causes of action, affirmative defenses, claims for punitive damages, or issues of duty. This amendment was proposed by the California Judges Association, which emphasized that “it is a waste of court time to attempt to resolve issues if the resolution of those issues will not result in summary adjudication of a cause of action or affirmative defense.” (Paramount Petroleum Corp. v. Superior Court (2014) 227 Cal.App.4th 226, 241–242.)

Here, the four issues raised by Defendant do not completely dispose of a cause of action, an affirmative defense, a claim for damages, or an issue of duty. Plaintiff has introduced two theories of liability: one based on the K-rails and the other on the debris. The Court has already determined that Defendant has failed to meet its burden and Plaintiff has raised a triable issue of fact regarding the K-rails, meaning that Plaintiff’s cause of action survives on this basis alone. As a result, the issues raised by Defendant regarding the debris do not resolve the entire issue of duty or completely dispose of Plaintiff’s cause of action. Accordingly, Defendant’s request for summary adjudication on these issues is piecemeal in nature and unnecessary for the court to resolve.

For the foregoing reasons, the motion for summary judgment or, alternatively, summary adjudication is denied.

If a party intends to submit on this tentative ruling, the party must send an email to the court at sscdept27@lacourt.org with the Subject line “SUBMIT” followed by the case number. The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.

Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument. You should assume that others may appear at the hearing to argue.

If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court. After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.

[1] Defendant arguably also raises the issue of notice, but it does so within the context of control, not as to whether the K-rail is a dangerous condition. As to that notice, Defendant concedes that “[t]he City was aware of the K-rails being on the side of Rooks Road. However, they do not own the subject property; the federal government does.” (Motion at pg. 18.) This acknowledgment establishes that Defendant had actual notice of the K-rails’ presence. Again, its only argument is that it did not have control of the K-rail.