Judge: Michael Shultz, Case: 19STCV03192, Date: 2022-09-15 Tentative Ruling
INSTRUCTIONS: If the parties wish to submit on the tentative ruling and avoid a court appearance on the matter, the moving party must:
1. Contact the opposing party and all other parties who have appeared in the action and confirm that each will submit on the tentative ruling.
2. No later than 4:00 p.m. on the court day before the hearing, call the Courtroom (310-761-4302) advising that all parties will submit on the tentative ruling and waive hearing; and
3. Serve notice of the Court's ruling on all parties entitled to receive service.
If this procedure is followed, when the case is called the Court will enter its ruling on the motion in accordance with its tentative ruling. If any party declines to submit on the tentative ruling, then no telephone call is necessary, and all parties should appear at the hearing. If there is neither a telephone call nor an appearance, then the matter may either be taken off calendar or ruled on.
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Case Number: 19STCV03192 Hearing Date: September 15, 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”). At
the time of the incident, 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 delivering his cargo at
Plaintiff’s place of employment, West Coast 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 and is not at issue in this motion.
II.
ARGUMENTS
A. Motion filed June 24, 2022
Defendant
Grande alleges he was waiting in his truck when Defendant Caracheo, in his own
truck, struck Plaintiff who was standing in the street while talking to Grande.
Grande asserts he did not breach a duty of care in the operation of his truck,
nor did he owe Plaintiff a duty to warn of oncoming vehicles. There is no dispute that Plaintiff’s injuries
were not caused by Grande and Grande was not aware of any imminent danger to
Plaintiff. Rather, Caracheo, driving the
oncoming truck, was negligent, talking on his cellphone at the time of
collision. Alternatively, Defendant asks for summary adjudication of each of
these issues. Grande further argues he did not violate Veh Code § 22500,
which prohibits the stopping, standing, or parking of a vehicle within an
intersection, since Defendant was not in an intersection. Nor was defendant in
a crosswalk or a “safety zone.”
Plaintiff argues that Grande breached his duty to him by failing to extinguish his lights while waiting in the roadway and failing to warn Plaintiff of Carcheo’s oncoming truck. Caracheo testified that he was temporarily blinded by Grande’s headlights and did not see Plaintiff standing in the roadway next to Grande’s truck. By beckoning Plaintiff into the roadway to confer on yard entry protocols, Grande’s conduct created a special relationship between himself and Plaintiff from which a duty arose.
C. Opposition by Defendant/Cross-Complainant Lincoln Transportation filed August 31, 2022
Grande violated Vehicle Code § 22500 by stopping his vehicle in
front of a private driveway and a “No Stopping at Any Time Sign.” Grande
created an undue risk of harm for the plaintiff and proximately caused injury
to Plaintiff.
Plaintiff’s case
authority does not support the contention that a special relationship arose
between Plaintiff and Grande. The duty to look for oncoming vehicles falls on the
pedestrian. Nor does a duty arise even if the court applied the Rowland
factors. Plaintiff entered the roadway without monitoring traffic. Regardless
of Rowland, well established authority imposes a continuing duty on
Plaintiff to observe oncoming traffic. There is no evidence to controvert the
fact that Defendant did not proximately cause Plaintiff’s injuries.
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). 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.
Until the moving defendant has
discharged its burden of proof, the opposing plaintiff has no burden to come
forward with any evidence. Once the moving party has discharged its burden as
to a particular claim, however, the plaintiff 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.
A. Plaintiff’s evidentiary objections
1) Deposition testimony of Defendant Grande
Obj. #1. Sustained. Grande’s testimony of Plaintiff’s condition at the hospital
following the incident is irrelevant.
Obj.
#2. Sustained. Whether others thanked Grande for his assistance with Plaintiff
is irrelevant.
2) Testimony of Officer Molina
Obj.
#3, #4. Sustained. The traffic collision report is inadmissible, and Officer
Molina’s testimony for other than as a lay witness is inadmissible. Officer
Molina is not qualified as an expert on fault or causation. Veh. Code, § 20013; Box v. California Date Growers Assn. (1976) 57 Cal.App.3d
266, 270 [“Indeed, it is well established
that traffic accident reports are not admissible in evidence.”].
3) Testimony of Jay Patel (property owner and lessor).
Obj.
#5 – Sustained. The deposition testimony of Mr. Patel pertaining to Caracheo’s
post-incident statements about wanting to leave, his knowledge of Grande, Mr.
Patel’s contact with the City of Compton to install a cross walk, or Mr.
Patel’s visual
B. The undisputed facts and Plaintiff’s additional facts [“PAF”] do
not establish that Grande owed a duty to Plaintiff as a matter of law.
Plaintiff alleges claims for negligence and motor vehicle negligence, both of which require Plaintiff to establish that Grande owed Plaintiff a duty, that Defendant breached that duty, and the breach of duty proximately caused injury to Plaintiff. Merrill v. Navegar, Inc (2001) 26 Cal.4th 465, 477. A duty may be imposed by law, be assumed by the defendant, or exist by virtue of a special relationship. Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 966. Whether a duty is owed is "primarily a question of law.” George A. Hormel & Co. v. Maez (1979) 92 Cal.App.3d 963, 969; Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133, 1139 [“The existence of a legal duty to use reasonable care in a particular factual situation is a question of law for the court to decide.”].
The general duty owed by an
operator of a motor vehicle is "the duty to exercise reasonable care in
driving an automobile down the highway […] for the protection of the persons or
property of others against all of the unreasonable possibilities of harm which
may be expected to result from collisions with other vehicles, or with
pedestrians, … .” George A. Hormel & Co. v. Maez (1979) 92 Cal.App.3d 963,
966–967.
Plaintiff alleges that Grande was
negligent in the use of his vehicle by parking it in the middle of the roadway
and creating a hazard by shining his headlights directly in the path of an
oncoming truck driven by Caracheo. SAC ¶ 13. Grande allegedly failed to warn
Plaintiff of Caracheo’s vehicle, which proximately caused injury to Plaintiff. Id.
The second cause of action for negligence is based on the same alleged facts.
The parties do not dispute that
when Grande arrived outside of 100 West Manville to deliver a container, he
stopped temporarily outside the gate with truck lights illuminated and with turn
signal or hazard lights activated from about 12:17 a.m. to the time of the
collision at 12:18 a.m. (UF 1). Plaintiff does not dispute that Grande was not
stopped or parked in an intersection, crosswalk, or safety zone or within 15
feet of the driveway to a fire station. (UF 2). There is no dispute that there
were streetlights at the subject location. (UF 3). The parties do not dispute
that based on the surveillance video, Caracheo, who was driving the oncoming
truck, was driving at a steady rate of speed. (UF 7).
Plaintiff failed to establish that
Grande owed him a duty to deactivate his headlights while stopped in the middle
of Manville Street. Mr. Herbert,
Plaintiff’s expert, opines that the industry standard of care required Grande
to consider and recognize the danger that his own headlights would create. Id., ¶ 14. Whether this translates into
a legal duty of care, however, is beyond the scope of Mr. Herbert’s expertise. As
previously stated, the existence of a duty is a question of law for the court
to decide. George A. Hormel & Co., 92 Cal.App.3d at 969. Moreover, Mr. Herbert opines that the industry standard requires
that a driver leave the four-way flashers and running lights on to enable oncoming
traffic to see the trailer. Herbert declaration, ¶ 14. The issue raised by
Defendant’s motion is Grande’s duty owed to Plaintiff, a pedestrian in this
circumstance.
Plaintiff argues that Grande’s
headlights “blinded” Caracheo as he approached the location. Plaintiff does not
establish that the brilliance of Grande’s headlights exceeded the brilliance
values set forth by statute, which might arguably establish a breach of duty. Veh. Code § 21466.5 ["No person shall
place or maintain or display, upon or in view of any highway, any light of any
color of such brilliance as to impair the vision of drivers upon the highway. A
light source shall be considered vision impairing when its brilliance exceeds
the values listed below … not more than 1,000 times the minimum measured
brightness in the driver’s field of view, … .”].
Even if Mr. Herbert’s opinion
could support a duty owed to Plaintiff, Plaintiff’s contention that Grande was
obligated to extinguish his lights while stopped in the street contravenes the
vehicle code. Veh. Code, § 24250 [“During
darkness, a vehicle shall be equipped with lighted lighting equipment as
required for the vehicle by this chapter.”]; Veh. Code, § 24409 [“Whenever a
motor vehicle is being operated during darkness, the driver shall use a
distribution of light, or composite beam, directed high enough and of
sufficient intensity to reveal persons and vehicles at a safe distance in
advance of the vehicle, … ."]. Specifically, Section 22409 of the Vehicle
Code does not require the driver to extinguish lighting when a vehicle
approaches, rather “he shall use a distribution of light of composite beam so
aimed that the glaring rays are not protected into the eyes of the oncoming
driver.” Id. More importantly,
these statutes arguably support a duty owed to approaching vehicles, not
pedestrians.
Accordingly, Plaintiff has not
established that Grande owed a duty to Plaintiff to deactivate his
lights. Without establishing that Grande owed a duty to Plaintiff in the first
instance, it is irrelevant whether a dispute remains as to whether Caracheo was
in fact blinded by Grande’s headlights contributing to Plaintiff’s injuries;
such a dispute is immaterial given the lack of a duty owed by Grande to
Plaintiff as a matter of law.
A person does not owe a duty "to control the conduct of another, nor to warn those endangered by such conduct.” Regents of University of California v. Superior Court (2018) 4 Cal.5th 607, 619. Where a person has not performed an act that increases the risk of injury to the victim, "nor sits in a relation to the parties that creates an affirmative duty to protect the plaintiff from harm, … our cases have uniformly held the defendant owes no legal duty to the plaintiff. " Brown at 216.
Plaintiff cites McCorkle v. City of Los Angeles (1969) 70 Cal.2d 252 for the proposition that a special relationship existed between
Plaintiff and Grande. McKorkle is
inapposite. McKorkle does not address the creation of a special
relationship. Rather the issue in McKorkle
was whether a police officer was entitled to discretionary immunity from the
plaintiff’s injuries when the officer, while investigating a traffic accident,
directed plaintiff to follow him into the intersection, at which point plaintiff
was struck by oncoming traffic. McCorkle at 262.
Plaintiff also cites Mann v. State of California (1977) 70 Cal.App.3d 773. Mann is instructive as it
acknowledges that the law recognizes a duty to aid or protect in any “relation
of dependence or of mutual dependence.” Mann at 780. In Mann,
the court concluded that "[w]hile no special relationship may exist
between members of the California Highway Patrol and the motoring public
generally, or between the Patrol and stranded motorists generally, once a state
traffic officer has chosen to investigate the plight of specific persons on a
freeway and informed himself of the foreseeable danger to them from passing
traffic, a special relationship requiring him to protect them by readily
available means arises and liability may attach if the officer's limited duty
to protect these people under these special circumstances is not
performed. if so, Officer Lane, as a state traffic officer who had acquainted
himself with their plight, had a duty to exercise ordinary care to protect them
from such risk." Mann at 780.
The facts in Mann are
distinguishable, since the plaintiff there was dependent on the police officer,
an expert in traffic safety, who thereafter left the motorists stranded on the
freeway. Id. Plaintiff’s evidence, as well as the surveillance video
submitted by both parties, establishes that just before the incident, Plaintiff
walked into the street to talk to Grande about whether to head into or back
into the lot. (PAF 38.) Defendant extended his left arm and hand outside the
driver’s side door window to gain Plaintiff’s attention. (PAF 39). Plaintiff acknowledges that Defendant had
his headlights on at the time he was stopped. (PAF 45). There is no dispute
that it was 12:17 a.m., and Grande had his turn signal or hazard lights
activated. (UF 4, 10). There were streetlights at the subject
location, which Plaintiff does not dispute. (UF 3). These facts do not infer a
“relation of dependence or of mutual dependence” on which a special duty arose
requiring Grande to aid or protect Plaintiff. Mann at 780.
Plaintiff argues that if the court
finds the existence of a special relationship giving rise to an affirmative
duty to protect, then the court should consider relevant policy considerations that
may warrant limiting that duty, citing Rowland v. Christian (1968) 69 Cal.2d 108, 113. Here, Plaintiff’s additional facts do not imply the existence of
a special relationship in the first instance.
Lincoln’s case authority does not
establish that Grande owed a duty to Plaintiff either. Lincoln cites Watkins v. Nutting (1941) 17 Cal.2d 490 for the general proposition that drivers must keep a vigilant
watch for other persons and vehicles using the highway. Watkins at 494. The
defendant in Watkins struck the plaintiff who was crossing the street. The issue here is the existence of a duty owed
by Grande to warn a pedestrian of other vehicles on the street.
In Schwartz v. Helms Bakery Limited (1967) 67 Cal.2d 232, the court determined that a bakery truck owner, by “direct[ing]
the child to an assigned rendezvous with the truck, the defendants assumed a
duty to exercise due care for his safety." Schwartz at 235. There are
no material facts proffered by Lincoln that Grande directed Plaintiff to
approach Grande in the middle of the street. Grande testified that before the
accident, Plaintiff was driving the “yard boat,” and Defendant tried to get
Plaintiff’s attention. Lincoln’s NOL, Ex. 1, 85:10-21, 90:7-8. Plaintiff walked
into the street to talk to Grande about bringing in his cargo into the yard. Id.
93:18-23.
Lincoln cites Vehicle Code section
22500, which prohibits a person from stopping, parking, or leaving a vehicle in
front of a public driveway. Grande testified that he was stopped in lane 3
because he had to turn left into the driveway. Id., 86:17-19. He did not pull over to the right in lane 4,
closest to the curb because “when you turn, you don’t turn from lane 4. You
turn from lane 3 when you’re going to turn into a driveway on your left.” Id.
86:14-19.
Lincoln’s reliance on Section 22500
is unpersuasive. To establish a
presumption of negligence. developed. Negligence per se requires a showing that
“(1) the defendant violated a statute, ordinance, or regulation of a public
entity; (2) the violation proximately caused death or injury to person or
property; (3) the death or injury resulted from an occurrence the nature of
which the statute, ordinance, or regulation was designed to prevent; and (4)
the person suffering the death or the injury to his person or property was one
of the class of persons for whose protection the statute, ordinance, or
regulation was adopted [citation omitted]. These latter two elements are
determined by the court as a matter of law.” Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256,
1285. Lincoln has not addressed any of these elements.
Lincoln’s reliance on Harrison v. Gamatero (1942) 52 Cal.App.2d 178 is equally misplaced. There, defendant double-parked her vehicle
and "sent plaintiff across the street to the northwest corner of
the intersection to mail a letter for her, while she remained in her
car." Harrison at 179-180. The issue
there was proximate cause. The facts established that the driver “influenced”
and “caused” the child to cross the street. Id. at 181. There is no such
evidence here.
Lawson v. Safeway Inc. (2010) 191 Cal.App.4th 400 involved a tractor-trailer legally parked on the side of the
freeway which blocked the view of oncoming traffic for drivers attempting to
cross and turn onto the freeway. Id. at 404. Grande’s testimony does not
establish that he was “parked” in the middle of the street in such a way as to
obstruct other’s view of traffic.
Finally, Lincoln’s argument that
Grande breached his duty to warn depends on the assertion that Grande
“summoned” Plaintiff into the middle of the street, which is not supported by
any evidence. Lincoln’s Opp., 13:12-14. Lincoln’s contention that a special
relationship arose between Grande and Plaintiff because Grande “solicited”
warehouse business and “arranged” to meet Plaintiff in the street at his
stopped truck is not supported by any evidence. Opp. 15-19. Servito v. Lynch & Sons Van & Storage (1961) 191 Cal.App.2d 799 is factually distinguishable. There, a
bakery truck making door-to-door sales double parked his truck and sounded his
musical horn to attract customers. Id. at 803. A pedestrian walked
around the truck and was struck by an oncoming vehicle. The issue in Servito
was the pedestrian’s contributory negligence considering the presumption of
negligence attributed to a pedestrian who crosses a roadway outside of a marked
or unmarked crosswalk. Id. at 804. Servito is inapplicable.
D. Given the undisputed facts and Plaintiff’s additional facts
showing no dispute that Grande did not owe a duty to Plaintiff to extinguish
headlights or to warn, any dispute as to causation is not a material.
The issue of causation is ordinarily a question of fact for the jury’s determination. Whether Defendant’s act or omission is a substantial factor in causing Plaintiff’s injury may not be resolved by summary judgment unless the undisputed facts establish no room for a reasonable difference of opinion. Vasquez v. Residential Investments, Inc. (2004) 118 Cal.App.4th 269, 288. However, “causation may be a question of law if on undisputed facts, there can be no reasonable difference of opinion on causal nexus.” Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133, 1139.
Based on the foregoing, the undisputed facts do not
establish the existence of a legal duty owed by Grande in the first instance. Any
disputes with respect to causation are not material.
V.
CONCLUSION
Based on the foregoing, the Motion for
Summary Judgment by Defendant, Kevin Raul Grande, is GRANTED. 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. Documentary evidence physically lodged with the
court must also be electronically submitted, including video or audio evidence,
which is to be submitted by electronic link.