Judge: Michael E. Whitaker, Case: 21STCV26613, Date: 2023-02-28 Tentative Ruling

Case Number: 21STCV26613    Hearing Date: February 28, 2023    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 Adjudication; Memorandum of Points and Authorities
2. Separate Statement of Undisputed Material Facts in Support of Motion for Summary Adjudication
3. Declaration of Misak Chanchikyan in Support of Motion for Summary Adjudication
4. Notice of Lodging Dash Cam Footage as Exhibit 7 in Support of Motion for Summary Adjudication

OPPOSITION PAPERS:

1.      Opposition Motion for Summary Adjudication; Memorandum of Points and Authorities

2.      Declaration of Carmen R. Selame in Support of Opposition to Motion for Summary Adjudication

3.      Separate Statement in Opposition to Motion for Summary Adjudication

4.      Amended Written Objections to Evidence in Opposition to Plaintiff’s Motion for Summary Adjudication

REPLY PAPERS:

1.      Reply in Support of Motion for Summary Adjudication; Memorandum of Points and Authorities

2.      Supplemental Declaration of Misak Chanchikyan in Reply to Opposition to Motion for Summary Adjudication

SUPPLEMENTAL PAPERS:

1.      Sur-Opposition to Plaintiff’s Motion for Summary Adjudication; Memorandum of Points and Authorities

2.      Supplemental Declaration of Carmen R. Selame in Support of Sur-Opposition

3.      Written Objections to Evidence in Sur-Opposition to Plaintiff’s Motion for Summary Adjudication

BACKGROUND

Plaintiff Adrien Aaron Garcia (Plaintiff) sued Defendants Juan Carlos Olvera and American Way Management, Inc. (collectively, Defendants) based on injuries Plaintiff alleges he sustained when his vehicle was parked on the shoulder of the highway and Defendant Juan Carlos Olvera (Olvera)’s vehicle drifted out of its lane and rear-ended Plaintiff’s vehicle. 

Plaintiff moves for summary adjudication on the following affirmative defenses pled in Defendants’ Answer: (1) First Affirmative Defense for Contribution and Comparative Fault; (2) Second Affirmative Defense for Third Party Negligence; and (3) Third Affirmative Defense of Civil Code section 1431.2.  Defendants oppose the motion.  Plaintiff replies.

On January 24, 2023, the Court continued the hearing on the motion to allow Defendants to address the evidence advanced by Plaintiff in the reply.  On February 14, 2023, Defendants filed supplemental papers as permitted by the Court.   

LEGAL STANDARDS – MOTION FOR SUMMARY ADJUDICATION

“[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”].) 

A party may move for summary adjudication as to one or more causes of action, affirmative defenses, claims for damages, or issues of duty if that party contends that there is no merit to the cause of action, defense, or claim for damages, or if the party contends that there is no duty owed.  (See Code Civ. Proc., § 437c, subd. (f)(1).)  “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.”  (Ibid.)  A cause of action has no merit if: (1) one or more elements of the cause of action cannot be separately established, even if that element is separately pleaded, or (2) a defendant establishes an affirmative defense to that cause of action.  (See Code Civ. Proc., § 437c, subd. (n); Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 583.)  Once the defendant has shown that a cause of action has no merit, the burden shifts to the plaintiff to show that a triable issue of material fact exists as to that cause of action.  (See Code Civ. Proc., § 437c, subd. (o)(2); Union Bank v. Superior Court, supra, 31 Cal.App.4th at p. 583.) 

EVIDENCE

With respect to Defendants’ evidentiary objections to Plaintiff’s evidence advanced in support of the motion, the Court finds Defendants’ objections were untimely. 

Pursuant to Code of Civil Procedure, section 473c, “[a]n opposition to the motion shall be served and filed not less than 14 days preceding the noticed or continued date of hearing” and under California Rules of Court, rule 3.1354(a), “all written objections to evidence in support of or in opposition to a motion for summary judgment or summary adjudication must be served and filed at the same time as the objecting party's opposition or reply papers are served and filed.” 

Here, Defendants filed and served their initial evidentiary objections in opposition to Plaintiff’s motion on January 20, 2023, ten days after the opposition papers were filed and served.  Notwithstanding, the Court exercises its discretion to rule on the evidentiary objections as follows:

1.      Sustained

2.      Overruled

3.      Overruled

4.      Overruled

5.      Overruled

With respect to Defendants’ evidentiary objections to Plaintiff’s evidence advanced in support of the reply, the Court rules as follows:

1.      Overruled

2.      Overruled

3.      Overruled

4.      Overruled

5.      Overruled

DISCUSSION

1.      Contribution and Comparative Fault

Plaintiff contends that there is no dispute of material fact that Defendants’ First Affirmative Defense for contribution and comparative fault does not apply.

The elements of comparative fault and contributory negligence under California law are: (1) relative responsibility of various parties for an injury to a claimant (e.g., negligence, or strict liability); and (2) equitable apportionment or allocation of loss by requiring parties to pay a share of the claimant’s judgment in proportion to their comparative responsibilities.  (See Knight v. Jewett (1992) 3 Cal.4th 296, 314; see also Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 827.)

The Court notes that “generally speaking, there is a permissible inference of negligence from the fact of a rear-end collision requiring some explanation or excuse from the driver of the rear car.” (Beck v. Kessler (1965) 235 Cal.App.2d 331, 337.) “Particularly in those situations where the rear car has collided with a stopped or stationary vehicle, the courts have applied the doctrine of res ipsa loquitur [sic] and have held that an inference arises that the collision was caused by some negligent conduct on the part of the driver of the rear car, which the latter was thereupon required to rebut.” (Ibid.) 

Plaintiff cites to Arthur v. Santa Monica Dairy Co. (1960) 183 Cal.App.2d 483 which held that the driver of an illegally parked truck was not the proximate cause of an accident which occurred when a second driver, who had spent 10 seconds searching for a lighted cigarette on the floor of his car, drove into the truck.  (Id. at pp. 484-485, 487-489.)  The appellate court concluded that the conduct of the second driver was such that the accident would have occurred even if the truck had been legally stopped; and further that the driver of the truck could not reasonably have foreseen that another driver would rear-end a truck parked ahead of him which was in plain sight and had been stopped for some time.  (Id. at pp. 489-490.)  

Plaintiff argues that the facts here are similar to those in Arthur v. Santa Monica Dairy Co.  Plaintiff was parked in clear sight on the side of the highway, and Olvera’s conduct of swerving out of his lane was such that the accident would have occurred whether or not Plaintiff was legally stopped on the side of the road.  Plaintiff further argues that he was legally stopped on the side of the highway at the time of the accident, which only further sheds favorable light on Plaintiff’s arguments.  Plaintiff advances the following Undisputed Material Facts (UMF) in support of his contentions:

·         After traveling for approximately three minutes on the highway, Plaintiff suddenly began experiencing mechanical issues with the vehicle as it began to slow down.

·         Plaintiff turned on his emergency blinkers and safely made his way over to the right shoulder of the highway near Soledad Canyon Road.

·         Plaintiff parked the vehicle completely off to the shoulder of the highway and away from on-coming traffic, as he sought out assistance while remaining in the vehicle

·         Approximately five minutes later, while also traveling northbound on State Route 14 in a 2008 GMC W3500 Truck owned by Defendant American Way Management, Inc., Defendant Juan Carlos Olvera drifted out of his lane and rear-ended Plaintiff’s vehicle.

(UMF, Nos. 3-6.)

            The Court finds that Plaintiff has met his burden in establishing that there is no shared responsibility between Defendants and Plaintiff for the accident at issue resulting in Plaintiff’s injuries based on the advanced evidence indicating Plaintiff was parked on the side of the highway when Olvera swerved out of his lane and rear-ended Plaintiff.  Accordingly, the burden shifts to Defendants to create a triable issue of fact as to whether Plaintiff engaged in negligent conduct which contributed to the subject accident.

            In opposition, Defendants first argue that UMF No. 3 misstates the proffered evidence, highlighting Plaintiff’s responses to Form Interrogatory 20.4, 20.5, 20.8, 20.9, and 20.10 which specifically state that Plaintiff ran out of gas and was not aware of any mechanical issues with the subject vehicle.  Defendants indicate that Plaintiff running out of gas creates a dispute as to whether Plaintiff was negligent in maintaining his vehicle.  However, as established in Arthur v. Santa Monica Dairy Co., a plaintiff negligently parking a vehicle is irrelevant in establishing contributory negligence if the conduct of another driver was such that an accident would have occurred, whether or not a plaintiff was parked lawfully.  Here, Olvera swerving out of his lane would have resulted in him rear-ending Plaintiff’s vehicle, whether or not Plaintiff was negligently parked on the side of the highway, or lawfully parked there due to unexpected mechanical difficulties. 

            Next, Defendants argue in opposition that the reason for Olvera drifting out of his lane is in dispute, indicating that a third-party forced Olvera to take evasive action and swerve out of his lane.  However, a determination of whether a third-party was responsible for Olvera’s conduct is irrelevant to the determination of whether Plaintiff’s negligence contributed to the underlying accident.

            Accordingly, the Court finds that Defendants have not raised a triable issue of material fact concerning Defendants’ First Affirmative Defense.

2.      Third Party Negligence and Civil Code Section 1431.2

Plaintiff contends that Defendants’ Second and Third Affirmative Defenses for Third Party Negligence and Civil Code Section 1431.2 are inapplicable here as a matter of law because there is no evidence indicating that there are any other causes of the subject accident besides Olvera’s negligent swerving out of his lane.

A third-party negligence affirmative defense necessitates that the defendant establishes plaintiff’s injuries and damages were proximately caused and contributed to by the negligence of third parties other than the defendant.  (California Elements of an Action § 16:15.)

Civil Code section 1431.2 provides in pertinent part:  

In any action for personal injury, property damage, or wrongful death, based upon principles of comparative fault, the liability of each defendant for non-economic damages shall be several only and shall not be joint. Each defendant shall be liable only for the amount of non-economic damages allocated to that defendant in direct proportion to that defendant’s percentage of fault, and a separate judgment shall be rendered against that defendant for that amount.

In support of his contention that Olvera’s conduct was the sole cause of the subject accident, Plaintiff proffers the following UMFs:

·         Approximately five minutes later, while also traveling northbound on State Route 14 in a 2008 GMC W3500 Truck owned by Defendant American Way Management, Inc., Defendant Juan Carlos Olvera drifted out of his lane and rear-ended Plaintiff's vehicle.

·         On May 11, 2022, Plaintiff deposed Brenna Jordan.

·         At the time of the collision, Brenna Jordan was traveling behind Defendant Olvera and witnessed the entire collision.

·         Brenna Jordan had (sic) dash cam installed into her vehicle that recorded the entire incident.

·         The dash cam video clearly refutes Defendants' claim because there was no white sedan that began merging into Defendant Olvera's path of travel.

·         On August 9, 2022, Plaintiff deposed Defendant American Way Management, Inc.’s Person Most Knowledgeable (“PMK”), Varaz Babakhanian.

·         There, the PMK admitted that Defendants are the sole cause for the collision.

(UMF, Nos. 6, 28-33.)

            The Court finds that Plaintiff has met his burden in establishing that Olvera’s conduct was the sole cause of the subject accident resulting in Plaintiff’s injuries.  Accordingly, the burden shifts to Defendants to create a triable issue of fact as to whether a third party’s acts proximately caused and contributed to the subject accident. 

            In opposition, Defendants advance the following Additional Facts and Supporting Evidence (AMF) to support their contention that a third party’s vehicle caused Olvera to serve out of his lane:

·         Mr. Olvera was driving on the northbound 14 freeway when a vehicle entered his lane.

·         Mr. Olvera attempted to evade the vehicle, causing him to veer into the right shoulder.

(AMF, Nos. 6-7.)

            In reply, Plaintiff advances the deposition transcript of Olvera whose deposition was taken on November 11, 2022, after Plaintiff filed the motion.  Plaintiff argues Olvera’s deposition testimony establishes that another vehicle did not enter Olvera’s lane of traffic, causing his box truck to collide with Plaintiff’s vehicle.   In support of his contention, Plaintiff advances Olvera’s deposition testimony which is recited in part below:

Q.  But as best as you can recall as you sit here right now, you remember a white – or some vehicle cutting you off, correct?

A.  I – like I said, I’m not sure if it really happened or it’s something that I dreamed, you know, the nightmare that are going on.  So that’s where I’m getting kind of – I’m confused.

…

Q.  Okay.  But as you sit here right now, you don’t remember a car cutting you off?

A.  So that’s the thing that I – I get this flashback, and I don’t know if it was real – it was real or wasn’t real.

…

Q.  Certainly.  On the video, did you see any vehicle cut your box truck off prior to the collision occurring?

A.  No, I didn’t.

…

Q.  As you sit here right now, Mr. Olvera, can you provide us any explanation as to why your box truck left its lane of travel, striking Adrien Garcia's vehicle on the shoulder?

A.· I cannot give you an answer because I don't know why it happened.

…

Q.  Okay. So of the possibilities that you've stated today as to why you veered off hitting my client, Adrien Garcia, is either because you were working 12-hour shifts six days a week or because there was a mechanical issue with the spare truck. Is that correct?

A. Correct.

(Supplemental Declaration of Misak Chanchikyan, Exhibit 16, pp. 79:17-23, 81:1-5, 107:5-7, 107:15-22, 110:11-17.)

            In light of dash cam video footage of the subject incident and the admission of the PMK, coupled with Olvera’s deposition testimony regarding whether another vehicle caused his box truck to travel outside his lane of traffic, causing him his box truck to collide with Plaintiff’s vehicle, the Court finds Defendants have failed to raise a triable issue of material fact with respect to Defendants’ Second and Third  Affirmative Defenses. 

CONCLUSION AND ORDER

In considering the competent evidence proffered by Plaintiff and Defendants, and viewing such evidence most favorable to Defendants, the Court finds that there are no triable issues of material fact regarding Defendants’ First, Second and Third Affirmative Defenses, and rules as a matter of law that such affirmative defenses are unmeritorious.  Therefore, the Court grants Plaintiff’s motion for summary adjudication as to Defendants’ First, Second and Third Affirmative Defenses.

Plaintiff shall provide notice of the Court’s ruling and file a proof of service of the same.