Judge: Mark E. Windham, Case: 20STLC09374, Date: 2023-01-09 Tentative Ruling
Case Number: 20STLC09374 Hearing Date: January 9, 2023 Dept: 26
Wilburn v. Katto, et al.
MOTION
FOR SUMMARY JUDGMENT/ADJUDICATION
(CCP §
437c)
TENTATIVE RULING:
Defendant Kaizilege Katto’s Motion
for Summary Judgment, or in the alternative, Summary Adjudication, is DENIED.
ANALYSIS:
Plaintiff Gilbert
Wilburn (“Plaintiff”) brought this action
for motor vehilce neglience against Defendant Kaizilege Katto (“Defendant”) on November 5, 2020. Defendant filed an
Answer on March 2, 2021. On June 6, 2022, the Court granted Defendant’s Motion
for Leave to File a Cross-Complaint. (Minute Order, 06/06/22.) The
Cross-Complaint, filed on July 12, 2022, alleged claims for equitable
indemnification, misrepresentation and conversion against Cross-Defendant
Valerie Wilburn (“Cross-Defendant”).
Defendant filed the instant Motion for Summary Judgment, or
in the alternative, Summary Adjudication on October 26, 2022. No opposition has
been filed to date.
Discussion
The Complaint alleges a
single cause of action for motor vehilce negligence. Specifically, that on May
26, 2019, at Del Amo Boulevard and Central in Torrance, California, “Defendants
so negligently and carelessly owned, operated, entrusted and maintained their
motor veeicle, so as to collide with Plaintiff's vehicle, proximately causing
the damages and injuries alleged herein.” (Compl., ¶MV-1.)
Defendant moves for summary judgment, or in the alternative,
summary adjudication, on the Complaint pursuant to Code of Civil Procedure
section 437c. A defendant seeking summary judgment must show either (1) that one or more elements
of the cause of action cannot be established; or (2) that there is a complete defense to that cause of action.
(Code Civ. Proc., § 437c, subd. (p)(2).) Plaintiff is under no evidentiary
burden to produce rebuttal evidence until Defendant meets its initial moving
burden. (Binder v. Aetna Life Insurance Company (1999) 75 Cal.App.4th
832, 839-840.)
Defendant contends that Plaintiff waived any claim to
damages from the motor vehicle accident pursuant to a settlement agreement,
which is a complete defense to this action. (Notice of Motion, p. 2:9-10.) The
Motion presents the following facts in support of the defense. The parties were
involved in a motor vehicle accidence on May 27, 2019 at the intersection of
Del Amo and Central in Los Angeles. (Motion, Separate Statement, Fact No. 1;
Goldstein Decl., Exh. 1 and Exh. 2, p. 42:8-14.) Plaintiff and Cross-Defendant
were married in 1995 and have never been divorced or legally separated.
(Motion, Separate Statement, Fact Nos. 2-3; Exh. 2, pp. 17:21-19:20.) On
January 2, 2020, prior to the filing of this action, Plaintiff and Defendant
entered into a release to settle the bodily injury claim regarding the subject
accident in exchange for $15,000.00. (Motion, Separate Statement, Fact No. 4;
Exhs. 3-4.) Plaintiff testified that his wife, Cross-Defendant, executed the
release without his knowledge. (Motion, Separate Statement, No. 5; Exh. 2, pp.
99:25-103:2.) On March 18, 2020, Defendant’s insurer made a payment of $643.92
to Medicare at Plaintiff’s request. (Motion, Separate Statement, Fact No. 6;
Exh. 5.) Defendant’s insurer then made an electronics funds transfer to a Bank
of America account on April 13, 2020 in the amount of $14,356.08. (Motion,
Separate Statement, Fact No. 7, Exh. 6.) Cross-Defendant denied any involvement
or knowledge of the settlement of Plaintiff’s claim. (Motion, Separate
Statement, Fact No. 10; Exh. 2, pp. 96:13-97:23.) Between June 29, 2020 and
September 2020, Plaintiff learned that Cross-Defendant received the settlement
proceeds. (Motion, Separate Statement, Fact No. 11; Exh. 2, pp. 93:11-97:23.) Plaintiff
took no action to recover the settlement funds from Cross-Defendant. (Motion,
Separate Statement, Fact No. 12; Exh. 2, p. 108:4-14.)
Defendant argues in support of
the Motion that the release agreement should be enforced by the Court against
Plaintiff. However, Defendant’s own evidence creates a triable issue as to
whether a valid release agreement exists. Plaintiff denied ever knowing of, or
signing, a release agreement to settle the case. (Motion, Goldstein Decl., Exh.
2, pp. 96:13-97:23.) Defendant offers no evidence to demonstrate that the
release was actually signed by Plaintiff, such as a witness to the signing. In
fact, Plaintiff’s attorney sent defense counsel evidence that the signature on
the release was not Plaintiff’s signature. (Id. at Exh. 7.) Nor does
Defendant explain how the release can be considered valid if it was signed by
Cross-Defendant in Plaintiff’s name. Defendant appears to concede that
Cross-Defendant signed the release agreement by alternatively arguing that
Plaintiff’s sole remedy is against Cross-Defendant. (Motion, p. 5:1-2.)
However, while the Motion argues that Plaintiff has a remedy against
Cross-Defendant, it offers no authority that this must be Plaintiff’s sole
remedy and that no claim can be pursued against Defendant.
Additionally, the evidence of payment
made pursuant to the Release does not indicate by whom the requests were made
or to whom the funds were transferred. The evidence of payment to Medicare
simply includes a copy of the check, without any indication who requested that
payment. (Motion, Exh. 5.) Similarly, the Motion simply shows that the rest of
the settlement money was transferred to a bank account at Bank of America
without any evidence as to the owner or owners of the account. (Id. at
Exh. 6.)
Finally, the Motion separately
argues that Plaintiff’s claim against Defendant is barred by laches. First,
this issue is not set forth in the Notice of Motion as required by Cal. Rules
of Court, rule 3.1350(b). Nor does the Motion provide authority beyond the
definition of laches to demonstrate how Plaintiff delayed in asserting his
rights. (See Motion, p. 7:10-13.) Apparently, it is Defendant’s contention that
by failing to go after Cross-Defendant, Plaintiff is barred from pursuing a
claim against Defendant. Yet no authority is cited to support this argument. (Id.
at p. 7:10-26.)
Therefore, Defendant has not
carried their initial burden of proof regarding the existence of a complete
defense to the action for motor vehicle negligence.
Conclusion
Defendant Kaizilege Katto’s
Motion for Summary Judgment, or in the alternative, Summary Adjudication, is
DENIED.
Court clerk to give notice.