Judge Lee S. Arian, Case Number: 22STCV33329, Date: 2024-12-16 Tentative Ruling

MOVING PARTIES: Defendant Javier Madrizaleman, Defendant Marcos Valle, and Intervenor Progressive Insurance Company on behalf of Defendant Marcos Valle Trucking, Inc.

On October 12, 2022, Plaintiff Federico Hernandez (“Plaintiff”) filed this action against Defendants Javier Madrizaleman, erroneously sued as Javier Madriz Aleman (“Madrizaleman”), Marcos Valle (“Valle”), Marcos Valle Trucking, Inc. (“MVT”), John Doe, and Does 1 to 50, inclusive, asserting one cause of action for motor vehicle negligence.

On April 6, 2023, non-party Progressive Insurance Company (“Progressive”) filed a motion to intervene on behalf of MVT.

On December 21, 2023, Madrizaleman, Valle, and Progressive (collectively, the “Moving Parties”) filed the instant motion for summary judgment or in the alternative summary adjudication (“MSJ”).

On October 22, 2024, Plaintiff’s former counsel of record, Russell & Lazarus, Marc Lazarus, and Jorge F. Ramirez, filed a motion to be relieved as counsel.

On November 21, 2024, the Court conditionally approved Plaintiff’s counsel’s motion to be relieved as counsel pending counsel filing and serving a revised proposed order.

On November 25, 2024, the Court signed the revised order, relieving Plaintiff’s counsel. Therefore, Plaintiff is currently self-represented.

The Court rules on the objections the Moving Parties filed on November 8, 2024, as follows:

· Objection No. 4: SUSTAINED as to the big rig truck testimony but OVERRULED as to the testimony regarding the white car.

The Court notes that Plaintiff did not file any objections to the Moving Parties’ evidence. Instead, he inserted objections in his responsive separate statement. (Cf. Plaintiff’s response to the Moving Parties’ Separate Statement of Undisputed Material Facts, filed on October 21, 2024 (“UMF”), ¶ 6 [right column].) However, “[a] separate statement is not, in and of itself, evidence. It is a document that summarizes evidence and creates a roadmap for the parties and court to work with in considering a motion for summary judgment.” (Brown v. El Dorado Union High School Dist. (2022) 76 Cal.App.5th 1003, 1020.) Therefore, the Court declines to rule on those objections.

In reviewing a motion 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.) “[T]he 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, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) To meet this burden of showing a cause of action cannot be established, a defendant must not only show “that the plaintiff does not possess needed evidence,” but also that “the plaintiff cannot reasonably obtain needed evidence.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854 [italics in original].) 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 Attachment to the Complaint alleges that on or about October 16, 2020, at “[o]r near westbound 1-10 freeway East Holt Avenue in an unincorporated area of the County of Los Angeles, State of California,” the defendants were negligent, causing Plaintiff’s injuries and damages. The Complaint alleges more specifically that Madrizaleman and the Doe defendants operated their vehicle negligently, and that Madrizaleman, Valle, and MVT owned, entrusted, and employed the persons who operated that vehicle.

“The operator of a vehicle must keep a proper lookout for other vehicles or persons on the highway and must keep his car under such control as will enable him to avoid a collision; failure to keep such a lookout constitutes negligence.” (Downing v. Barrett Mobile Home Transport, Inc. (1974) 38 Cal.App.3d 519, 524.)

To prove that Plaintiff’s motor vehicle negligence claim lacks merit, the Moving Parties submit the following evidence.

It is undisputed that on October 16, 2020, Madrizaleman was driving a 2012 Peterbilt 86 truck and trailer (the “Peterbilt Truck”) on westbound Interstate-10 San Bernardino Freeway at or near the intersection E Holt Avenue in West Covina, when the Peterbilt Truck came into contact with a 2018 white Kia Optima (the “White Kia”) driven by nonparty Kalin Alicia Tomlinson (“Tomlinson”). (UMF, ¶¶ 2, 3.)

In his declaration, Madrizaleman testifies that the only vehicle he came into contact with that day was the White Kia, and that he never came into contact with Plaintiff’s vehicle, a 2018 White Toyota Corolla. (Moving Parties’ Compendium of Exhibits, filed on December 21, 2023 (“COE”), Exhibit I – Declaration of Defendant Javier Madrizaleman, ¶¶ 2-6.)

Indeed, according to police reports of the incident, Plaintiff was involved in a collision with other people that are not parties in this lawsuit: a blue Kia vehicle (the “Blue Kia”) driven by a hit-and-run unknown driver and a white 2006 Honda Civic (“White Honda”) driven by Herlinda M. Cruz (“Cruz”). (COE, Exhibit G – Police Report Number 9525-2020-05329, p. 1.) The police report referred to the Blue Kia driver as Party 1, Plaintiff as Party 2, and Cruz as Party 3. (Id. at p. 5.) According to the report, the collision involving those three cars was caused by Party 1, who was driving at an unsafe speed. (Id. at p. 7.) Party 1 was unable to stop in time and as a result, collided with Party 2 (Plaintiff), who was propelled forward and collided with the rear of Party 3’s vehicle. (Id. at p. 6.)

In response to Madrizaleman’s request for admissions, Plaintiff testified under penalty of perjury that (a) the unknown driver that fled the scene was negligent, and (b) “the unknown driver that fled the scene was a substantial factor in causing the injuries [Plaintiff] allege[s] to have sustained in the accident which is the subject of this litigation.” (COE, Exhibit D – a copy of Plaintiff’s Amended Responses to Request for Admissions, Set One, p. 7:14-22.)

Plaintiff also stated in his discovery responses that he believed Madrizaleman’s Peterbilt Truck “struck the Blue Kia and pushed it into Plaintiffs’ vehicle a second time.” (COE, Exhibit C – Plaintiff’s Amended Responses to Special Interrogatories, Set One, p. 32:6-15.)

However, Plaintiff also testified under penalty of perjury (a) he did not see Madrizaleman’s Peterbilt Truck hit any other vehicles, and, (b) even more specifically, he did not see the Peterbilt Truck hit the vehicle being driven by the unknown driver that fled the scene (i.e., the Blue Kia), showing lack of personal knowledge that Madrizaleman’s truck collided with the Blue Kia, which then collided with Plaintiff’s vehicle. (COE, Exhibit D – a copy of Plaintiff’s Amended Responses to Request for Admissions, Set One, p. 8:16-24.)

Based on the above evidence, the Court finds that the Moving Parties have met their initial burden of proving that Plaintiff’s motor vehicle negligence claim against Madrizaleman, Valle, and MVT lacks merit by showing that the defendants were not involved in any automobile collision with Plaintiff’s vehicle.

Accordingly, the burden shifts to Plaintiff to raise a triable issue of material fact regarding his motor vehicle negligence claim.

In opposition, Plaintiff argues that his deposition testimony is circumstantial evidence that Madrizaleman caused his accident. He argues that he “testified that he passed by Defendant’s vehicle before the incident occurred [citation]…,” “the second impact he sustained to his vehicle was caused by Defendant’s vehicle [citation],” and “that he heard the screeching tires are air brakes from Defendant’s vehicle before the incident occurred [citation].” (Opposition, p. 8:10-13.)

However, “[a]fter-the-fact attempts to reverse prior admissions are impermissible because a party cannot rely on contradictions in his own testimony to create a triable issue of fact. [Citations.]” (Thompson v. Williams (1989) 211 Cal.App.3d 566, 573-574, 259 Cal.Rptr. 518.)

Here, Plaintiff has not explained why he is contradicting his prior sworn testimony that a Blue Kia hit his vehicle.

Most importantly, Plaintiff has failed to show how he knows it was Madrizaleman’s Peterbilt Truck (and not another vehicle) that collided with his vehicle when he testified that he never saw the Peterbilt Truck collide with any vehicle, including his own.

Therefore, the Court finds that Plaintiff has failed to meet his burden of showing that a triable issue of material fact exists as to his motor vehicle negligence claim.

Plaintiff argues that the Court should continue the hearing to allow him to obtain material evidence, specifically, (1) dash cam footage of the accident taken from Madrizaleman’s truck, and (2) photographs of the property damage sustained as a result of the incident. (Opposition, pp. 10:22-11:5.) He argues that Madrizaleman testified the video was working at the time of the incident and “could be dispositive of this case and clear up some factual issues.” (Opposition, p. 11:14-20.)

The relevant statute states that “[i]f it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just.” (Code Civ. Proc., § 437c, subd. (h); Sanchez v. Bezos (2022) 80 Cal.App.5th 750, 763, fn. 3 [“An affidavit is ‘“a written declaration under oath” [citation], taken before “any officer authorized to administer oaths.” [Citations.]’ [Citation]”].) “‘The purpose of the affidavit required by Code of Civil Procedure section 437c, subdivision (h) is to inform the court of outstanding discovery which is necessary to resist the summary judgment motion. [Citations.]’ [Citation.]” (Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 397.)

Here, Plaintiff has not filed or submitted any affidavit in support of his request for a continuance. Although his former counsel submitted a declaration in support of the opposition, the declaration did not request any continuance, mention missing evidence, or explain why the alleged dispositive video evidence could not be presented in time for the opposition.

Defendants Javier Madrizaleman, Defendant Marcos Valle, and Intervenor Progressive Insurance Company on behalf of Defendant Marcos Valle Trucking, Inc.’s Motion for Summary Judgment is GRANTED.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Hon. Lee S. Arian

Judge of the Superior Court