Judge: Lisa R. Jaskol, Case: 22STCV15243, Date: 2025-04-14 Tentative Ruling
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Case Number: 22STCV15243 Hearing Date: April 14, 2025 Dept: 28
Having considered the moving, opposition, and reply papers, the Court rules as follows.
BACKGROUND
On May 6, 2022, Plaintiff Susana Munoz (“Munoz”), guardian ad litem for Victor Daniel Garcia (“Plaintiff”), filed this action against Defendants Wendy Hormann (“Wendy Hormann”), Micah Hormann (“Micah Hormann”), and Does 1-20 for motor vehicle tort and general negligence.
On May 20, 2022, the Court appointed Munoz to serve as guardian ad litem for Plaintiff.
On January 6, 2023, Wendy Hormann and Micah Hormann (collectively, “Defendants”) filed an answer. On June 25, 2024, Defendants filed an amended answer.
On June 21, 2024, Defendants filed a motion for summary adjudication. The motion was set for hearing on February 19, 2025. On July 18, 2024, Defendants filed an amended motion for summary adjudication, also set for hearing on February 19, 2025. On January 31, 2025, Plaintiff filed an opposition. On February 7, 2025, Defendants filed a reply. The Court has not considered the parties’ subsequent filings. The Court continued the hearing to April 14, 2025.
Trial is currently scheduled for May 20, 2025.
PARTIES’ REQUESTS
Defendants ask the Court to grant summary adjudication of their twentieth and twenty-first affirmative defenses.
Plaintiff asks the Court to deny the motion.
EVIDENTIARY OBJECTIONS
A. Plaintiff’s evidentiary objections
Sustained: Plaintiff’s amended objection to paragraph
10 of the declaration of Jonathan
A. Ross, Esq. and Exhibit I
Sustained: 9, 10
Overruled: 1, 2, 3, 4, 5, 6, 7, 8
DEFENDANTS’ REQUEST FOR JUDICIAL NOTICE
The Court grants Defendants’ request for judicial notice of Exhibits N, O, and P. (Evid. Code, §§ 452, subd. (a), 453.)
The Court denies Defendants’ request for judicial notice of Exhibit Q. (See Exhibit Q, Department of Motor Vehicles Handbook, p. ii [“Disclaimer: This handbook is a summary of the laws and regulations in the Vehicle Code available at leginfo.legislature.ca.gov. DMV, law enforcement, and the courts follow the full, exact language”].)
LEGAL STANDARD
A. Summary adjudication
“ ‘ “A defendant making the motion for summary adjudication has the initial burden of showing that the cause of action lacks merit because one or more elements of the cause of action cannot be established or there is a complete defense to that cause of action. [Citations.] If the defendant fails to make this initial showing, it is unnecessary to examine the plaintiff's opposing evidence and the motion must be denied. However, if the moving papers establish a prima facie showing that justifies a judgment in the defendant's favor, the burden then shifts to the plaintiff to make a prima facie showing of the existence of a triable material factual issue.” [Citation.] “A prima facie showing is one that is sufficient to support the position of the party in question.” [Citation.]’ ” (Wilson v. County of San Joaquin (2019) 38 Cal.App.5th 1, 9, quoting Rehmani v. Superior Court (2012) 204 Cal.App.4th 945, 950; see Code Civ. Proc., § 437c, subds. (f), (p)(2).)
B. Civil Code section 3333.4
Civil
Code section 3333.4 provides:
“(a) Except as provided in subdivision (c), in any action to recover damages arising out of the operation or use of a motor vehicle, a person shall not recover non-economic losses to compensate for pain, suffering, inconvenience, physical impairment, disfigurement, and other nonpecuniary damages if any of the following applies:
“(1) The injured person was at the time of the accident operating the vehicle in violation of Section 23152 or 23153 of the Vehicle Code, and was convicted of that offense.
“(2) The injured person was the owner of a vehicle involved in the accident and the vehicle was not insured as required by the financial responsibility laws of this state.
“(3) The injured person was the operator of a vehicle involved in the accident and the operator can not establish his or her financial responsibility as required by the financial responsibility laws of this state.
“(b) Except as provided in subdivision (c), an insurer shall not be liable, directly or indirectly, under a policy of liability or uninsured motorist insurance to indemnify for non-economic losses of a person injured as described in subdivision (a).
“(c) In the event a person described in paragraph (2) of subdivision (a) was injured by a motorist who at the time of the accident was operating his or her vehicle in violation of Section 23152 or 23153 of the Vehicle Code, and was convicted of that offense, the injured person shall not be barred from recovering non-economic losses to compensate for pain, suffering, inconvenience, physical impairment, disfigurement, and other nonpecuniary damages.”
(Civ. Code, § 3333.4.)
C. Vehicle Code provisions
Vehicle Code section 400, subdivision (a), provides:
“A “motorcycle” is a motor vehicle having a seat or saddle for the use of the rider, designed to travel on not more than three wheels in contact with the ground.”
(Veh. Code, § 400, subd. (a).)
Vehicle Code section 415, subdivision (a), provides:
“A ‘motor vehicle’ is a vehicle that is self-propelled.”
(Veh. Code, § 415, subd. (a).)
Vehicle Code section 407.5 provides:
“(a) A “motorized scooter” is any two-wheeled device that has handlebars, has either a floorboard that is designed to be stood upon when riding or a seat and footrests in place of the floorboard, and is powered by an electric motor. This device may also be designed to be powered by human propulsion. For purposes of this section, a motorcycle, as defined in Section 400, a motor-driven cycle, as defined in Section 405, or a motorized bicycle or moped, as defined in Section 406, is not a motorized scooter.
“(b) A device meeting the definition in subdivision (a) that is powered by a source other than electrical power is also a motorized scooter.
“(c) (1) A manufacturer of motorized scooters shall provide a disclosure to buyers that advises buyers that the buyers’ existing insurance policies may not provide coverage for these scooters and that the buyers should contact their insurance company or insurance agent to determine if coverage is provided. . . .”
(Veh. Code, § 407.5, subds. (a), (b), (c)(1).)
Vehicle Code section 17151, subdivision (a), provides:
“The liability of an owner, bailee of an owner, or personal representative of a decedent imposed by this chapter and not arising through the relationship of principal and agent or master and servant is limited to the amount of fifteen thousand dollars ($15,000) for the death of or injury to one person in any one accident and, subject to the limit as to one person, is limited to the amount of thirty thousand dollars ($30,000) for the death of or injury to more than one person in any one accident and is limited to the amount of five thousand dollars ($5,000) for damage to property of others in any one accident.”
(Veh. Code, § 17151, subd. (a).)
D. Family Code section 1000
“(a) A married person is not liable for any injury or damage caused by the other spouse except in cases where the married person would be liable therefor if the marriage did not exist.
“(b) The liability of a married person for death or injury to person or property shall be satisfied as follows:
“(1) If the liability of the married person is based upon an act or omission which occurred while the married person was performing an activity for the benefit of the community, the liability shall first be satisfied from the community estate and second from the separate property of the married person.
“(2) If the liability of the married person is not based upon an act or omission which occurred while the married person was performing an activity for the benefit of the community, the liability shall first be satisfied from the separate property of the married person and second from the community estate.
“(c) This section does not apply to the extent the liability is satisfied out of proceeds of insurance for the liability, whether the proceeds are from property in the community estate or from separate property. Notwithstanding Section 920, no right of reimbursement under this section shall be exercised more than seven years after the spouse in whose favor the right arises has actual knowledge of the application of the property to the satisfaction of the debt.”
(Fam. Code, § 1000.)
DISCUSSION
A. The complaint
The complaint alleges that on December 7, 2021, Defendants negligently, carelessly, and unlawfully drove, operated, entrusted, and maintained their vehicle, causing a collision with Plaintiff’s vehicle and injuring Plaintiff.
B. Defendants’ amended answer
Defendants’ amended answer includes the following affirmative defenses:
“Twentieth affirmative defense
“(Proposition 213)
“Plaintiff’s prayer for non-economic damages, including but not limited to pain, suffering, inconvenience, physical impairment, disfigurement, and other nonpecuniary damages, if any, is barred by the Personal Responsibility Act of 1996, Civil Code §333.4, because Plaintiff was the owner of a vehicle involved in the subject accident and the vehicle was not insured as required by the financial responsibility laws of the State of California.
“Twenty-first affirmative
defense
“(Proposition 213)
“Plaintiff’s damages as to defendants are limited to those allowable under the provisions of Vehicle Code Section 17151(a).”
(First amended answer ¶¶ 20-21.)
C. Undisputed facts
Plaintiff, by and through his guardian ad litem Munoz, alleges he was injured in a vehicle accident on December 7, 2021.
Plaintiff started a minibike with the intention of riding it from his front yard into his back yard. The minibike allegedly started moving forward even though Plaintiff had not touched the throttle.
Plaintiff jumped onto the minibike to try to stop it. Plaintiff was trying to control the minibike when he and the minibike entered the public street. The minibike and Defendant’s vehicle collided in the street.
Plaintiff alleges that Wendy Hormann was driving the vehicle that struck him and that Micah Hormann owned the vehicle. Plaintiff alleges that Defendants negligently, carelessly and unlawfully drove, operated, entrusted and maintained their vehicle, causing the collision.
Plaintiff did not have liability insurance for collisions involving the minibike.
D. Defendants have carried their initial burden on summary adjudication of their twentieth and twenty-first affirmative defenses
Defendants move for summary adjudication of their twentieth and twenty-first affirmative defenses, arguing that Plaintiff may not recover non-economic damages under Proposition 213 because Plaintiff did not have insurance for the minibike and Micah Hormann’s liability is limited to $15,000.00.
To support their argument concerning Proposition 213, Defendants rely on an email which Plaintiff’s former counsel sent to Defendants' counsel stating, “I have reviewed your caselaw, as well as other caselaw, and we are inclined to accept your position on the Prop 213 issue.” (Exh. I.)
The email does not support Defendants’ contention. First, it does not constitute a binding judicial admission. “ ‘Judicial admissions may be made in a pleading, by stipulation during trial, or by response to request for admission. [Citations.] Facts established by pleadings as judicial admissions “ ‘are conclusive concessions of the truth of those matters, are effectively removed as issues from the litigation, and may not be contradicted, by the party whose pleadings are used against him or her.’ ... [Citations.]” [Citation.]’ [Citations].” (Barsegian v. Kessler & Kessler (2013) 215 Cal.App.4th 446, 451-52; see id. at p. 452 [“a judicial admission is ordinarily a factual allegation by one party that is admitted by the opposing party”].) Counsel’s email is not a pleading, a stipulation during trial, or a response to a request for admission. It does not bind Plaintiff.
Second, the email is not relevant. The Court independently determines the application of law to the facts. What a party’s attorney is “inclined” to believe about the law has no probative value.
Defendants also argue that Plaintiff was required to obtain insurance for the minibike based on evidence that Plaintiff owned and operated the minibike and the minibike qualified as a motorcycle under Vehicle Code sections 400 and 415. The failure to obtain insurance, Defendants contend, prevents Plaintiff from obtaining non-economic damages under Civil Code section 3333.4.
In addition, Defendants contend that Vehicle Code section 17151, subdivision (a), limits Micah Hormann’s potential liability to $15,000.00 because Micah Hormann owned the vehicle which Wendy Hormann was driving.
Defendants have presented evidence which carries their initial burden on summary adjudication, shifting the burden to Plaintiff.
E. Plaintiff has raised a triable issue of fact
concerning Defendants’ twentieth affirmative defense that Plaintiff’s lack of
insurance prevents him from recovering non-economic damages
In reply, Defendants contend that the minibike “cannot be classified as a motor scooter because it does not have a floorboard and is not designed to be stood upon.” (Reply p. 2.) Defendants also argue that photographs of the minibike show “there is nowhere for Plaintiff to stand; or to stand when not sitting on the seat.” (Reply p. 2.) But Vehicle Code section 407.5 provides that a motorized scooter may have “either a floorboard that is designed to be stood upon when riding or a seat and footrests in place of the floorboard . . . .” (Veh. Code, § 407.5, subd. (a), emphasis added.) Defendants concede that the minibike had a seat but assert that “it did not have footrests . . . .” (Reply p. 4.) Exhibit J, on which Defendants rely, is not clear on this point. Defendants do not explain why the minibike’s metal frame, which runs parallel to the ground, could not serve as a footrest.
Defendants also argue the minibike does not qualify as a motorized scooter because it is powered by gas, not an electric motor. (Reply p. 2.) Vehicle Code section 407.5, however, provides that “[a] device meeting the definition in subdivision (a) that is powered by a source other than electrical power is also a motorized scooter.” (Veh. Code, § 407.5, subd. (b).)
The Court finds that Plaintiff has raised a triable issue of fact concerning whether the minibike qualified as a motorcycle for which insurance was required and whether Civil Code section 3333.4 prevents Plaintiff from recovering non-economic damages.
F. Plaintiff has not raised a triable issue concerning Defendants’ twenty-first affirmative defense that Vehicle Code section 17151, subdivision (a), limits Micah Hormann’s potential liability
As noted, Defendants carried their initial burden of showing that, under their twenty-first affirmative defense, Vehicle Code section 17151, subdivision (a), limits Micah Hormann’s potential liability to $15,000.00 because Micah Hormann owned the vehicle which Wendy Hormann was driving.
In response, Plaintiff argues that Wendy Hormann and Micah Hormann are married and Wendy Hormann was performing an activity for the benefit of the marital community when the accident took place. Citing Family Code section 1000, subdivision (b), Plaintiff argues, “the community estate of both Defendant Wendy Hormann and Defendant Micah Hormann is liable for the damages caused to Plaintiff in this action” and Micah Hormann “cannot hide behind California Vehicle Code § 17151(a) to shield himself from liability for the damages caused by the tortious negligence of his wife defendant Wendy Hormann caused while she was performing an activity for the benefit of the community.”
Plaintiff
cites no case authority to support this argument. Plaintiff does not explain why Family Code
section 1000 applies here in light of subdivision (a) of the statute, which
provides that “[a] married person is not liable for any injury or damage caused
by the other spouse except in cases where the married person would be liable
therefor if the marriage did not exist.”
Even assuming the statute applies here, Plaintiff does not explain why the
Court would not harmonize the statutes by reducing Micah Hormann’s potential
liability to $15,000.00 under Vehicle Code section 17151, subdivision (a), and
then (if Micah Hormann is found liable) applying Family Code section 1000,
subdivision (b), to determine how his liability is to be satisfied.
The Court grants summary adjudication of Defendants' twenty-first affirmative defense.
CONCLUSION
The Court DENIES the motion for summary adjudication filed by Defendants Wendy Hormann and Micah Hormann of their twentieth affirmative defense to the complaint filed by Plaintiff Victor Daniel Garcia, by and through his guardian ad litem Susana Munoz.
The Court GRANTS the motion for summary adjudication filed by Defendants Wendy Hormann and Micah Hormann of their twenty-first affirmative defense to the complaint filed by Plaintiff Victor Daniel Garcia, by and through his guardian ad litem Susana Munoz.
Moving parties are ordered to give notice of this ruling.
Moving parties are ordered to file the proof of service of this ruling with the Court within five days.