Judge: Malcolm Mackey, Case: 19STCV23612, Date: 2023-08-08 Tentative Ruling
Case Number: 19STCV23612 Hearing Date: September 8, 2023 Dept: 55
LORENZO
v. LOS MORALES TRUCKING, INC. 19STCV23612
Hearing Date: 9/8/23
Dept. 55
#3: MOTION FOR SUMMARY JUDGMENT OR ALTERNATIVELY
FOR SUMMARY ADJUDICATION.
Notice: Okay
No Opposition
MP:
Defendant
CITY OF LOS ANGELES.
RP:
Summary
On 7/3/19, plaintiffs filed the lead action,
Lorenzo v. Los Morales (19STCV23612) against the trucking defendants.
On 1/13/21, this lead case was ordered consolidated
for all purposes with 20STCV23961 and 20STCV12415.
The Complaint in consolidated case number
20STCV23961 alleges that GLOBAL CENTURY, as insurance broker, was used by
THANDI as a device to broker insurance policies between California trucking
insureds, like LOS MORALES, a small trucking company, and the
non-California-admitted, insolvent insurer, Global Hawk, provided a policy for
indemnity in the event of catastrophic loss, but now the Lorenzo plaintiffs are
unlikely to receive any compensation from GLOBAL HAWK’S liquidation
proceedings.
On 2/3/21, plaintiffs filed the Second Amended
Complaint regarding separately filed wrongful death lawsuits that arise out
of the same double fatal pedestrian accident. Allegedly, plaintiffs are the
parents of two sisters who died in April 2019, after being run over by a dump
truck, while they were pedestrians in a crosswalk, on route to middle school,
due to the failure to provide for previously school-arranged crossing guards
for student safety on particularly dangerous streets near the school, at a time
a substitute crossing guard was needed.
On 4/2/21, GREEN DOT PUBLIC SCHOOLS CALIFORNIA and
GREEN DOT PUBLIC SCHOOLS NATIONAL were added as DOE defendants 1 and 2, to
the Second Amended Complaint.
On 7/16/21, Defendant/Cross-Complainant LOS ANGELES
UNIFIED SCHOOL DISTRICT (LAUSD) filed an official form Cross-Complaint
against GREEN DOT PUBLIC SCHOOLS CALIFORNIA, GREEN DOT PUBLIC SCHOOLS NATIONAL, ORIVERA TRUCKING, LLC; LOS MORALES TRUCKING
INC; GLOBAL HAWK INSURANCE COMPANY RISK RETENTION GROUP; and STANLEY RANDLE. The causes of action are: 1) Indemnification,
2) Apportionment of Fault and 3) Declaratory Relief.
On 6/15/21, the Court overruled the Demurrer of
LAUSD, and, on 10/6/21, the Court of Appeal summarily denied an unopposed
petition for writ of mandate filed 8/16/21, by Defendant LAUSD, which
had requested to overturn the demurrer ruling.
On 12/12/22, plaintiffs filed a Third Amended
Complaint, in Lorenzo v. LAUSD (20STCV12415), against LAUSD and
others, including for Negligence and Dangerous Condition of Public Property
(Gov. Code § 835).
MP
Position
Moving parties request an order granting summary
judgment against plaintiffs, or summary adjudication of the Second and Fourth
Causes of Action, on bases including the following:
·
As to the Second
Cause of Action For Vicarious Liability (Govt. Code §815.21):
o Since plaintiffs seek recovery of damages for
wrongful death caused by a dangerous condition of public property, the exclusive
remedy is under Government Code Section 835.
o To the extent Plaintiffs contend the City is liable
because its employees created a dangerous condition, the City is immune from
such liability pursuant to §840.
o The City only can be vicariously liable if its
employees can be liable under the doctrine of respondeat superior, and since
Plaintiffs have not name and served the City’s allegedly culpable employee
within three years of filing their complaint, any action against said employees
would have to be dismissed, foreclosing the City’s vicarious liability.
·
As to the Fourth
Cause of Action for Dangerous Condition of Public Property:
o There is no triable issue of material fact, because
the Subject Intersection was not in a dangerous condition at the time of the
subject collision, pursuant to §§830(a) and 830.2.
o The City was under no duty to make public property
that was not dangerous, more safe through the installation of a Leading
Pedestrian Interval signal timing chart in the traffic signal at the Subject
Intersection.
o The City is immune from all liability alleged in the
Fourth Cause of Action pursuant to §830.6.
Tentative
Ruling
The unopposed motion is granted.
The Court determines that moving party’s evidence
shifted the burden of proof, including by showing that the subject intersection
was not in a dangerous condition at the time of the subject accident, and that
absent any opposing documents, there can be no triable issues of material fact (see, e.g., Declarations of Hall R. Marston,
Brian Sam, Isabel Moreno, Dale Williams, Jason Healey, Det. Carolyn Jones,
Brian R. Gallagher, and Rock Miller, filed 6/23/23).
“[I]f all the papers submitted by the parties show
there is no triable issue of material fact and the ‘moving party is entitled to
a judgment as a matter of law’ (Code Civ. Proc., § 437c, subd. (c)), the court
must grant the motion for summary judgment.”
Troyk v. Farmers Group, Inc. (2009) 171 Cal.App.4th 1305,
1320. Accord Myers v. Trendwest
Resorts, Inc. (2007) 148 Cal.App.4th 1403, 1409.
The elements of a claim for dangerous condition
against a public entity are:
Gov. C. §835; Sun
v. City of Oakland (2008) 166 Cal.App.4th 1177, 1183; Stathoulis v. City of Montebello
(2008) 164 Cal.App.4th 559, 566 (including analysis of “trivial defect
doctrine); Lane v. City of Sacramento
(2010) 183 Cal.App.4th 1337, 1344 (“
‘Whether property is in a dangerous condition often presents a question of
fact, but summary judgment is appropriate if the … court, viewing the evidence
most favorably to the plaintiff, determines that no reasonable person would
conclude the condition created a substantial risk of injury when such property
is used with due care in a manner which is reasonably foreseeable that it would
be used.’ ”); Biscotti v. Yuba City
Unified School Dist. (2007) 158 Cal.App.4th 554, 558; Zuniga v. Housing Auth. (1995) 41 Cal.
App. 4th 82, 92-93, disapproved on other
grounds by Zelig v. County of Los
Angeles (2006) 27 Cal.4th
1112,1138; Brown v. Poway Unified
School Dist. (1993) 4 Cal. 4th 820, 829.
See also Martinez
v. City of Beverly Hills
(2021) 71 Cal.App.5th 508, 514 (“A
public entity will be charged with constructive notice of a dangerous condition
only if (1) the dangerous condition existed for a sufficient period of time
before the plaintiff's injury, and (2) it was sufficiently obvious that the
entity acted negligently in not discovering and repairing it.”); Metcalf v. County of San Joaquin
(2008) 42 Cal.4th 1121, 1132 (“‘plaintiff must prove that the public entity
acted negligently or wrongfully even when the public entity created the
dangerous condition.’”). But see
Cole v. Town of Los Gatos (2012) 205 Cal.App.4th 749,
758 (“the cause of action consists of
the following elements: (1) a dangerous condition of public property; (2) a
foreseeable risk, arising from the dangerous condition, of the kind of injury
the plaintiff suffered; (3) actionable conduct in connection with the
condition, i.e., either negligence on the part of a public employee in creating
it, or failure by the entity to correct it after notice of its existence and
dangerousness; (4) a causal relationship between the dangerous condition and
the plaintiff's injuries; and (5) compensable damage sustained by the
plaintiff.”).