Judge: Michael Shultz, Case: 19STCV03192, Date: 2022-08-16 Tentative Ruling
Case Number: 19STCV03192 Hearing Date: August 16, 2022 Dept: A
19STCV03192
[TENTATIVE] ORDER
I.
BACKGROUND
The Second Amended Complaint
(“SAC”) alleges that on December 14, 2018, Plaintiff was struck by a truck
driven by Defendant, Antonio Uribe Caracheo (“Caracheo”), who was driving with the
permission and consent of Lincoln Transportation Services, Inc. (“Lincoln”). Defendant,
Kevin Raul Grande (“Grande”), was parked on the street in his commercial truck owned
by Defendant, Silva’s Transport Express, Inc. (“Silva”) and speaking to
Plaintiff about dropping his load at Plaintiff’s place of employment, West
Coast Warehousing (“Warehousing”). Grande allegedly failed to warn Plaintiff of
Caracheo’s oncoming truck. Plaintiff alleges claims for negligence and negligent
entrustment against Caracheo, Lincoln, Grande, and Silva. The claim for premises
liability is alleged against West Coast Management Group, LLC (“WCM”) only.
On November 11, 2019, Defendants, Lincoln,
and Caracheo, filed a cross-complaint for indemnity, contribution, and
declaratory relief against WCM and Grande.
II. MOTION FOR SUMMARY JUDGMENT OR ALTERNATIVELY SUMMARY ADJUDICATION
A. Motion filed May 31, 2022
Cross-Defendant, WCM, contends it is entitled to judgment in its
favor on the cross-complaint filed by Lincoln. WCM argues it is not required to
indemnify Lincoln for any damages it is obligated to pay Plaintiff because
there is no dispute that WCM was not liable for Plaintiff’s injuries. Plaintiff
asserts liability against WCM based on premises liability. However, since WCM
does not own, possess, control, or maintain, the public roadway where Plaintiff
was struck, WCM does not owe a duty to Plaintiff as a landowner; the incident did
not occur on WCM’s premises. WCM argues there is no dispute that it did not
cause the accident, nor did it create a dangerous condition on the roadway.
WCM owns
property adjacent to the public roadway, which it leased to Plaintiff’s
employer, Warehousing who allegedly installed a pedestrian sign with lights on
the property at the incident location, however, this is not evidence of WCM’s
control of the roadway. Caracheo testified that the presence of the crossing
sign did not distract him.
B.
Opposition filed July 29, 2022.
Cross-Complainant Lincoln argues that WCM illegally installed a pedestrian
walk sign on its warehouse property that created an “imaginary crosswalk”
connecting WCM’s two warehouses, which created a false sense of security for
Plaintiff as he traversed the unmarked crosswalk. A landowner owes a duty to
avoid exposing persons to risks of injury occurring offsite. A landowner also
has a duty to refrain from affirmative conduct that results in a dangerous
condition upon public streets or sidewalks.
C. Reply filed August 12, 2022
There is no dispute that neither WCM
nor its lessee, Warehousing, controlled the public roadway. A crosswalk does
not exist where the incident occurred. Warehousing employees are not WCM’s
employees. Warehousing installed the signs to reduce the risk of injury to its
employees. A landowner does not have a
duty to assist invitees in crossing a public street.
III.
LEGAL STANDARDS
Summary judgment is proper “if all
the papers submitted show that there is no triable issue as to any material
fact and that the moving party is entitled to judgment as a matter of law.” Code Civ. Proc. §437c subd. (c).
In pertinent part, a party may move for summary adjudication as to one or more
claims for damage if that party contends that there is no merit to the claim as
specified in Section 3294 of the Civil Code governing imposition of punitive
damages. 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.” Code Civ. Proc., § 437c subd. (c).
Where a defendant seeks summary
judgment or adjudication, they must show that either “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 that cause of action.” Id. at §437c(o)(2). A Cross-Defendant
may satisfy this burden by showing that the claim “cannot be established”
because of the lack of evidence on some essential element of the claim. Union Bank v. Superior Court (1995) 31 Cal.App.4th 574, 583. Once the defendant meets this
burden, the burden shifts to the plaintiff to show that a “triable issue of one
or more material facts exists as to that cause of action or defense
thereto.” Id.
The moving party bears the initial
burden of production to establish a prima facie case that there are no triable
issues of material fact. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850. Thus, rather than affirmatively
disproving or negating an element (e.g., causation), a defendant has the option
of presenting evidence reflecting the plaintiff does not possess evidence to
prove that element “as through admissions by the plaintiff following extensive
discovery to the effect that he has discovered nothing” to support an essential
element of his case. Aguilar, supra, at p. 855. Under the latter
approach, a defendant's initial evidentiary showing may “consist of the
deposition testimony of the plaintiff's witnesses, the plaintiff's factually
devoid discovery responses, or admissions by the plaintiff in deposition or in
response to requests for admission that he or she has not discovered anything
that supports an essential element of the cause of action.” Lona v. Citibank, N.A., (2011) 202 Cal.App.4th 89, 110.
Until the moving cross-defendant
has discharged its burden of proof, the opposing Cross-Complainant has no
burden to come forward with any evidence. Once the moving party has discharged
its burden as to a particular claim, however, the Cross-Complainant may defeat
the motion by producing evidence showing that a triable issue of one or more
material facts exists as to that cause of action. Code Civ. Proc., §437c(p)(2).
The court strictly construes the
moving party's supporting evidence while the opposing party’s evidence is liberally
construed. Doubts as to the propriety of the motion should be resolved against
granting the motion. D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 20. The court does not evaluate the credibility of testimony. Binder v. Aetna Life Ins. Co.
(1999) 75 Cal. App. 4th 832, 840.
The court applies the three-step
analysis to motions for summary judgment or adjudication: (1) identify the
issues framed by the pleading, (2) determine whether the moving party
established facts which negate the opponents’ claim, (3) if a defendant meets
its threshold burden of persuasion and the burden shifts, determine whether the
opposing party has controverted those facts with admissible evidence. Torres v. Reardon (1992) 3 Cal.App.4th 831, 836.
IV.
DISCUSSION
The principle behind equitable
indemnity and contribution is to allocate loss among multiple tortfeasors on a
comparative fault basis. The right depends on the principle that everyone is
responsible for the consequences of his or her own wrong. Under the doctrine of
equitable indemnity, one tortfeasor may obtain partial indemnity from another
tortfeasor on a comparative fault basis. Thus, liability for the injury is
borne by each individual tortfeasor in direct proportion to his or her
respective fault.” Fireman’s Fund Ins Co. v. Haslam (1994) 29 Cal.App.4th 1347,
1353-1354. Therefore, if WCM is not jointly
liable for Plaintiff’s injuries, then WCM does not owe a duty to Lincoln to
indemnify or contribute to the damages that Lincoln may be compelled to pay to
Plaintiff. Western Steamship Lines, Inc. v. San Pedro Peninsula Hospital (1994) 8 Cal. 4th 100, 114 [“there can be no indemnity without
liability.”]; Herrero v. Atkinson (1964) 227
Cal. App. 2d 69, 73 [“Contribution distributes the loss equally among all
tortfeasors, each bearing his pro rata share.”].
The SAC alleges that WCM is liable
based on a premises liability theory which is a form of negligence that imposes
a duty on a person who owns, controls, or possesses the property at issue, to
exercise ordinary care in the management of the premises to avoid exposing
others to an unreasonable risk of harm. Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619. A failure to fulfill this duty
is negligence. Id. The affirmative duty to act for the protection of
individuals coming upon the land “is grounded in the possession of the premises
and the attendant right to control and manage the premises.” Preston v. Goldman (1986) 42
Cal.3d 108, 118-119.
The parties do not dispute the
salient facts that Warehousing leases property from WCM and that the property
is located on opposing sides of the street. UF 1-2. Warehousing employed
Plaintiff, who like other employees, would cross the street between both
properties. UF 3. On the night of the incident, Plaintiff was working his
regularly scheduled shift. UF 8. Grande stopped his truck in the roadway
outside of the warehouse to wait for direction on how to pull into the
warehouse driveway. UF 9. Plaintiff walked into the road to speak to Grande. UF
10. As Plaintiff was standing in the road, Caracheo drove his truck on Manville
Street and struck Plaintiff in the road. UF 11.
Accordingly, there is no dispute that the incident occurred on the
public roadway.
An abutting landowner/lessor, such
as WCM, owes an affirmative duty to “refrain from conduct which results in a
dangerous condition upon public streets or sidewalks.” Seaber v. Hotel Del Coronado
(1991) 1 Cal. App. 4th 481, 487-488. An abutting landowner who has altered an
adjacent sidewalk for the benefit of his property “has a duty to employ
ordinary care in making such alteration and in maintaining that portion of the
sidewalk in a reasonably safe condition." Seaber at 488. In
determining the liability of a landowner, the test to apply is whether the
landowner has acted “as a reasonable person in managing the property in view of
the probability of injury to others.” Seaber at 487.
Cross-Defendant
attempts to establish that the tenant, Warehousing, installed the signs. Fact
7. This is disputed by Plaintiff’s evidence. WCM’s responses to Special
Interrogatories 20-22 and 25 indicate that WCM was in control of and maintained
the safety signs. Lincoln’s NOL, Ex. B, 6:25 – 7:4, Ex. C, 4:23-27, and
5:11-12. This dispute is material to WCM’s liability since Plaintiff alleges
that WCM installed the signs and “created a false impression of safety.” SAC ¶
44.
According to Plaintiff, WCM
represented that the unofficial crosswalk sign “minimized the risk posed by the
vehicles” traveling on West Manville Street. SAC ¶ 45. The issue is not whether WCM controlled or
owned the street, however, its installation of the signs demonstrates that it
attempted to regulate the flow of traffic, thereby implying control. Accordingly,
the question of whether WCM managed its property in a manner that created an
unreasonable risk of harm by installing the signs remains a triable issue of
fact. Fact 7.
Citing
Vasilenko v. Grace Family Church
(2017) 3 Cal.5th 1077, WCM argues it does not owe a duty to assist Plaintiff in
crossing the street. In Vasilenko,
the court determined that a church was not liable for injury to churchgoers who
were struck in the roadway while crossing from the church’s overflow parking to
the church. Id. at 1081. The court held that an abutting landowner is
not liable "when the landowner does no more than site and maintain a
parking lot that requires invitees to cross the street to access the
landowner's premises, so long as the street's dangers are not obscured or
magnified by some condition of the landowner's premises or by some action taken
by the landowner. “Because Vasilenko does not allege that the Church did
anything other than maintain a parking lot on the other side of that street, we
find that the Church did not owe him a duty to prevent his injury." Id.
at 1082.
Vasilenko
is distinguishable. WCM did more than
simply maintain its property across the street. As noted, there is evidence that WCM installed
signs on its property to regulate the flow of traffic. Additionally, when “someone
who is under no obligation to provide a service to another voluntarily
undertakes to do so, he will be regarded as having assumed a duty to provide
that service and will be liable for negligence if he fails to use reasonable
care in performing that duty.”]." Lopez v. Baca (2002) 98
Cal.App.4th 1008, 1018.
WCM’s
avers that it did not own the public roadway and cannot be liable. Their position, in this context, is unpersuasive
since the material issue as alleged in the SAC revolves around WCM’s installation
and placement of pedestrian signs. In ruling on a summary judgment motion, the
issues which are material are limited to the allegations of the complaint. Lewinter v. Genmar Industries, Inc. (1994) 26 Cal.App.4th 1214, 1223.
WCM
also claims that their conduct did not cause the accident or create a dangerous
condition on the roadway. WCM, however, failed
to proffer material facts and/or supporting evidence to establish that the signs
did not create a dangerous condition or that the signs were not a factor in the
incident. As the moving party, WCM’s
burden is to show that one or more elements of Cross-Complainant’s claims
cannot be established or establish a complete defense. Cal. Code Civ. Proc.
sec. 437c(p)(2); Consumer
Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468. If WCM does not meet this threshold burden
with substantial evidence to negate an essential element, the burden does not
shift to the Cross-Complainant to establish a triable issue of fact. Id.
WCM’s
reliance on the fact that there were no prior accidents involving a vehicle
striking a pedestrian near the front of WCM’s property is insufficient to
negate causation or lack of a dangerous condition. UF 5. Although Lincoln refers to testimony
that three prior accidents occurred on West Manville, Mr. Patel (President of
Warehousing) testified that those accidents were “nowhere near our buildings.
It was way further out going west.” Lincoln’s Ex. A, 113:1-15. However, the “absence
of other similar accidents is not dispositive of whether a condition is
dangerous, nor does it establish a finding of ‘nondangerousness’ absent other
evidence.” Lane v. City of Sacramento (2010) 183
Cal.App.4th 1337, 1346. The court considers the totality of circumstances to
determine whether the condition is dangerous. Stathoulis v. City of
Montebello (2008) 164 Cal. App. 4th 559, 566-567 [“the court should
determine whether there existed any circumstances surrounding the accident
which rendered the defect more dangerous …”] Even if WCM did proffer evidence
to establish lack of causation and lack of a dangerous condition, Lincoln
refers to the fact that the area is heavily trafficked, is frequently the site
of street racing, and that employees used the area to assist drivers in the
middle of the street entering the warehouses. PAF 6, 7, 10, and 12. Lincoln
also asserts that there were no traffic lights or signs that required vehicles
to slow down, stop or yield to pedestrians where employees regularly crossed
the street to go to the opposing warehouses. PAF 17. Finally, Mr. Patel testified
that he referred to the area as a “crosswalk”. Lincoln’s Ex. A, 90:3-12, 119:5
– 120:14. He testified that that the “path between the two buttons [on the
signs] became an imaginary crosswalk.” Id., 120:8-14. He testified that
his policy directed employees to “stick to the walkways and designated
crosswalks.” Id. 190:4-7. Therefore, the issue of causation and lack of
a dangerous condition are all triable issues of fact.
WCM
also relies on Caracheo’s testimony that he did not remember seeing any
pedestrian crossing light illuminated nor does he remember any adjacent lights
bothering him. UF 14. While this is undisputed, it is not relevant to lack of
causation. If Plaintiff failed to depress the button to illuminate the sign,
that is relevant to his comparative negligence, not WCM’s lack of liability.
V. COCONCLUSION
Based
on the foregoing, WCM’s Motion for Summary Judgment, or Alternatively, for
Summary Adjudication is DENIED.
The
parties are admonished to comply with the rules for papers filed
electronically. Electronic exhibits must be text searchable. CA ST CIVIL RULES
Rule 2.256(d). Electronic exhibits submitted by represented parties “must
include electronic bookmarks with links to the first page of each exhibit and
with bookmark titles that identify the exhibit number or letter and briefly
describe the exhibit." CA ST CIVIL RULES Rule 3.1110.