Judge: Michael E. Whitaker, Case: 21STCV10175, Date: 2022-08-08 Tentative Ruling

Case Number: 21STCV10175    Hearing Date: August 8, 2022    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOVING PAPERS:

1. Notice of Motion and Motion for Summary Judgment; Memorandum of Points and Authorities
2. Declaration of Jennifer Goldstein in Support of Motion for Summary Judgment
3. Notice of Lodgment In Support of Motion for Summary Judgment
4. Separate Statement of Undisputed Material Facts in Support of Motion for Summary Judgment

OPPOSITION PAPERS:

1. Opposition to Motion for Summary Judgment; Memorandum of Points and Authorities
2. Exhibit Log with Exhibits in Support of Opposition to Motion for Summary Judgment
3. Separate Statement of Undisputed Material Facts in Support of Opposition to Motion for Summary Judgment
4. Response to Defendant’s Separate Statement of Undisputed Material Facts in Support of Opposition to Motion for Summary Judgment
5. Written Objections to Evidence Offered in Support of Motion for Summary Judgment

REPLY PAPERS:

1. Reply to Opposition to Motion for Summary Judgment
2. Opposition to Separate Statement of Undisputed Material Facts in Support of Opposition to Motion for Summary Judgment

BACKGROUND

Plaintiff Kaveh Harounian sued defendants Floyd Fluellen (“Fluellen”) and Oleta Simmons (collectively, “Moving Defendants”) based on a motor vehicle collision between Moving Defendants and defendant Iraj Elyaszadeh (“Elyaszaeh”).  Plaintiff alleges that the subject collision caused the vehicle of Elyaszadeh to veer from the street towards Plaintiff, who was standing near his own vehicle in the parking lot of a 7-Eleven.   Plaintiff alleges he sustained injuries when he ran towards the 7-Eleven to avoid being struck by Elyaszadeh’s vehicle and fell on his hands and knees in the parking lot. 

Moving Defendants move for summary judgment on Plaintiff’s complaint.  Plaintiff opposes the motion.   

LEGAL STANDARDS –SUMMARY JUDGMENT

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law[.] There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)  “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.”  (Ibid.)  

“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.  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 [cleaned up].)  Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true.  Nor may the trial court grant summary judgment based on the court's evaluation of credibility.”  (Id. at p. 840 [cleaned up]; 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”].)

EVIDENCE

With respect to Plaintiff’s objections to Moving Defendants’ evidence in support of the motion, the Court rules as follows:

1. Sustained

2. Sustained

    

   DISCUSSION

    

   Moving Defendants moves for summary judgment on Plaintiff’s sole cause of action for motor vehicle negligence on two grounds: (1) Plaintiff cannot establish that Moving Defendants breached a duty of care to Plaintiff and (2) Moving Defendants were not the proximate cause of Plaintiff’s claimed injuries.

    

   The elements of a cause of action for negligence are: (1) a duty on the part of defendant toward plaintiff; (2) defendant’s breach of that duty; and (3) harm to the plaintiff caused by that breach.  (Kesner v. Superior Court  (2016) 1 Cal.5th 1132, 1142.)  “[R]ecovery in a negligence action depends as a threshold matter on whether the defendant had a duty to use due care . . . .”  (Southern California Gas Leak Cases (2019) 7 Cal.5th 391, 397 [cleaned up].) 

    

1. DUTY – GENERAL STANDARDS

    

   “To state a cause of action for negligence, a plaintiff must establish the defendant owed a legal duty of care. Generally speaking, all persons have a duty to take reasonable care in their activities to avoid causing injury, though particular policy considerations may weigh in favor of limiting that duty in certain circumstances.”  (Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 209 [hereafter, “Brown”].)  In general, “[e]veryone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.”  (Civ. Code, § 1714.)  Section 1714 “establishes the default rule that each person has a duty to exercise, in his or her activities, reasonable care for the safety of others.”  (Brown, supra, 11 Cal.5th at p. 214.) 

    

2. BURDEN SHIFTING

    

   “A defendant or cross-defendant 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, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant 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); accord Doe v. Good Samaritan Hosp. (2018) 23 Cal.App.5th 653, 661 [“It is not until the defendant meets this burden that the burden of production shifts to the plaintiff to show that a triable issue of one or more material facts exists as to the defense”].) 

    

   Furthermore, “[t]he requirement of a separate statement from the moving party and a responding statement from the party opposing summary judgment serves two functions: to give the parties notice of the material facts at issue in the motion and to permit the trial court to focus on whether those facts are truly undisputed.”  (Parkview Villas Assn., Inc. v. State Farm Fire & Casualty Co. (2005) 133 Cal.App.4th 1197, 1210.)   Stated in a different way, “[t]he purpose of a summary judgment proceeding is to permit a party to show that material factual claims arising from the pleadings need not be tried because they are not in dispute. The purpose is carried out in section 437c, subdivision (b)(1) by requiring the moving party to include in the moving papers a separate statement setting forth plainly and concisely all material facts which the moving party contends are undisputed together with a reference to the supporting evidence.  The complaint measures the materiality of the facts tendered in a defendant's challenge to the plaintiff's cause of action, hence the moving party's separate statement must address the material facts set forth in the complaint.”  (Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 168 [cleaned up].)  And “[w]here the evidence presented by defendant does not support judgment in his favor, the motion must be denied without looking at the opposing evidence, if any, submitted by plaintiff.”  (Hawkins v. Wilton (2006) 144 Cal.App.4th 936, 940.) 

    

               Here, Moving Defendants argue Fluellen did not breach a duty of care to Plaintiff because he was in imminent peril.  “[A] person who, without negligence on his part, is suddenly and unexpectedly confronted with peril, arising from either the actual presence, or the appearance, of imminent danger to himself or to others, is not expected nor required to use the same judgment and prudence that is required of him in exercise of ordinary care in calmer and more deliberate moments.”  (Leo v. Dunham (1953) 41 Cal.2d 712, 714.)

    

               Moving Defendants advance a copy of Plaintiff’s responses to Moving Defendants’ requests for admissions.  In Plaintiff’s written discovery response, Plaintiff admits Elyaszadeh was the legal cause of the accident and that Elyaszadeh was one of the causes of the accident.  (Notice of Lodgment in Support of Motion for Summary Judgment, Exhibit C, Nos. 1, 3.)

    

               Moving Defendants also advance a copy of the transcript of Plaintiff’s deposition taken April 14, 2022.  At deposition, Plaintiff testified he did not see either Moving Defendants’ or Elyaszadeh’s vehicle prior to the collision.  (Notice of Lodgment in Support of Motion for Summary Judgment, Exhibit D, pp. 42-43.)

    

               Moving Defendants also advance a copy of the traffic collision report for the subject incident.  According to the traffic collision report, Fluellen was driving northbound on La Cienega crossing Obama Boulevard when Elyaszadeh made a left turn colliding with Fluellen’s vehicle.  (Notice of Lodgment in Support of Motion for Summary Judgment, Exhibit B, pp. 5-6.)

    

   CONCLUSION AND ORDER

    

   Moving Defendants’ evidence fails to make a prima facie showing that there is no triable issue of material fact as to whether Fluellen breached a duty of care to Plaintiff.  Specifically, Moving Defendants do not advance sufficient competent evidence to establish that Fluellen was in imminent peril.  In fact, Moving Defendants do not advance any competent evidence in support of this argument.  Plaintiff’s deposition testimony contains no eyewitness narration of the events leading to the collision, and neither Plaintiff’s written discovery responses nor the traffic collision report speak to any imminent peril defense.   

    

               In short, Moving Defendants failed to meet their burden of production and persuasion, and thus, the Court denies Moving Defendants’ motion for summary judgment.  The Court orders Moving Defendants to give notice of the Court’s ruling and to file a proof of service of such.