MOTION FOR SUMMARY JUDGMENT/ADJUDICATION 

I. Background 

Plaintiffs Jackson Scott Young (“Jackson”) and Teri Young (“Teri”) (collectively, “Young Plaintiffs”) filed their First Amended Complaint (“FAC”) against defendants Dapper Dan's Car Wash, General Wash LLC, and General Wash Land I, LLC for injuries arising from allegations that Plaintiff Jackson’s vehicle lost traction due to a “deposit of water, soap-like and wax-like substances”, causing his vehicle to collide with a light pole and guard rail. (FAC ¶ 15.) The FAC sets forth four causes of action for (1) negligence, (2) premises liability, (3) negligence per se - Cal. Veh. Code § 23112, and (4) loss of consortium.  

On April 7, 2021, plaintiffs Kelly Gene Koskella (“Kelly”) and Tammy Koskella (“Tammy”) (collectively, “Koskella Plaintiffs”) filed their Complaint arising from the same automobile accident against Defendants. The Koskella Plaintiffs set forth three causes of action for (1) negligence, (2) premises liability, and (3) loss of consortium. The two actions were consolidated on October 21, 2021 via stipulation.  

Defendants General Wash, LLC, individually and dba Dapper Dan’s Car Wash, and General Wash Land I, LLC (“Defendants”) now move for summary judgment, or in the alternative summary adjudication, as to each cause of action brought by the Young Plaintiffs and Koskella Plaintiffs. The Court will refer to both the Young and Koskella Plaintiffs generally as Plaintiffs.  

Plaintiffs oppose the motion, and Defendants filed a reply.  

Defendants argue they are entitled to summary judgment on all causes of action, because they owed no duty to Plaintiffs, and Plaintiffs cannot prove that there was moisture or wax-build up that created a slippery substance either pre-accident or post-accident. Defendants contend the incident occurred because the throttle of Plaintiff’s vehicle became stuck, and the gas pedal was stuck down, causing him to lose control. Defendants assert Plaintiffs speculate that moisture on the road caused his tires to spin. In terms of the alleged substance, Defendants argue Plaintiffs cannot provide details of the substance and how long it was on the road, and that had no notice of any substance on the public roadway.  

Plaintiffs argue Defendants have not met their moving burden that there are no triable issues of material fact. Plaintiffs assert that their claim is not speculative or conjectural, and that they have admissible evidence that Defendants proximately caused the incident based upon the manner in which customer vehicles were washed and exited the car wash, and by way of Plaintiffs’ expert inspections and experts’ opinions.  

Defendants reiterate that Plaintiffs make speculative inferences that are not supported by material evidence. Defendants argue that Bonsall’s and French’s declarations are flawed because there is no way to recreate the roadway conditions of April 13, 2019, and Plaintiffs inspected and took samples from the roadway approximately three and half years after the occurrence.  

II. Evidentiary Objections 

Plaintiffs submit six objections to Defendants’ Table of Evidence:  

Objections 1-3 to the Traffic Collision Report (Exhibit 5) are sustained on the basis of hearsay. Automobile accident reports are inadmissible. (Veh. Code, § 20013; People v. Flaxman (1977) 74 Cal.App.3d Supp. 16, 20.)   

Objection 4 to the deposition testimony of Sheriff’s Deputy Travis Cohen (Exhibit 7) is overruled.  The excerpts provided demonstrate Cohen has personal knowledge of the statements contained, because he wrote the statements based on information he obtained from Plaintiff. 

Objections 5-6 to the emergency department report (Exhibit 8) are sustained on the basis of hearsay.  

III. Motion for Summary Judgment 

A party may move for summary judgment “if it is contended that the action has no merit or that there is no defense to the action or proceeding.”¿ (Code Civ. Proc. § 437c, subd. (a).) “[I]f all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, 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,” the moving party will be entitled to summary judgment.¿ (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment.¿ (Code Civ. Proc. § 437c, subd. (f)(2).)¿¿¿¿ 

The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if the party does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact.¿ (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; accord Code Civ. Proc. § 437c, subd. (p)(2).) “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467.)¿ 

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi, supra, 159 Cal.App.4th at p. 467; see also Code Civ. Proc., § 437c(c).)¿ 

The elements of premises liability and negligence cause of action are the same: duty, breach, causation and damages.  (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.)  “The owner of premises is under a duty to exercise ordinary care in the management of such premises in order to avoid exposing persons to an unreasonable risk of harm.  A failure to fulfill this duty is negligence.” (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619; Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.)   

 While an owner of premises is not an insurer of the safety of its patrons, the owner still owes them a duty to exercise reasonable care in keeping the premises reasonably safe.  (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205.) To establish liability for negligence, “[t]here must be some evidence . . . to support the conclusion that the condition had existed long enough for the proprietor, in the exercise of reasonable care, to have discovered and remedied it.”  (Girvetz v. Boys’ Market (1949) 91 Cal.App.2d 827, 829; Ortega, supra, 26 Cal.4th at p. 1206 [the owner must have had actual or constructive knowledge of the dangerous condition or have had the ability, through the exercise of ordinary care, to discover it, and sufficient time to correct it].) “The plaintiff need not show actual knowledge where evidence suggests that the dangerous condition was present for a sufficient period of time to charge the owner with constructive knowledge of its existence.” (Ortega, supra, 26 Cal.4th at p. 1206.)   

 “The exact time the condition must exist before it should, in the exercise of reasonable care, have been discovered and remedied, cannot be fixed, because, obviously, it varies according to the circumstances.”  (Louie v. Hagstrom’s Food Stores (1947) 81 Cal.App.2d 601, 608.) Typically, the question of whether a condition existed so long as to be discoverable within a reasonable time is a question of fact to be decided by the jury.  (Hatfield v. Levy Bros. (1941) 18 Cal.2d 798, 807; Tuttle v. Crawford (1936) 8 Cal.2d 126, 130; Rothschild v. Fourth & Market St. Realty Co. (1934) 139 Cal.App. 625, 627.)  However, if there is no substantial evidence from which it can be reasonably inferred that the condition existed for a sufficient period of time to charge the defendant with constructive notice of its presence and to remedy the condition, a defendant may be entitled to judgment as a matter of law.  (Perez v. Ow (1962) 200 Cal.App.2d 559, 562.)  

The undisputed material facts are as follows. This action arises from a single-car automobile accident on April 13, 2019 in the City of Santa Clarita. Plaintiff Jackson was driving a replica 1965 Shelby Cobra roadster kit at/near the intersection of Magic Mountain Parkway/Bouquet Canyon when Plaintiff lost control of his vehicle as he was passing the driveway exit that connects Dapper Dan's Car Wash (“Car Wash”) to Magic Mountain Parkway. Defendants operate an express car wash at the intersection of Magic Mountain Parkway/Bouquet Canyon. Plaintiff alleges his vehicle suddenly lost traction, causing the vehicle to strike a light pole and then a guardrail. Plaintiff had assembled his Cobra kit car, except for the engine and transmission. Plaintiff installed the throttle, braking system, suspension, tires and wheels. The Cobra kit car was purchased in January 2017 and completed in November 2017, and Plaintiff had only driven the vehicle on dry pavement. The weather was clear and sunny, and the road conditions were dry on the day of the incident. After Plaintiff observed a Dodge Challenger pass his vehicle while travelling towards Magic Mountain Parkway on Bouquet Canyon, Plaintiff made a right turn and accelerated from the intersection to start racing when he shifted into third gear. Plaintiff’s vehicle swerved into the left-hand lane, shot forward, and then struck a lamp pole and guardrail. 

Although the Court will not review the Traffic Collision Report (TCR) due to hearsay, the Court will consider some statements made by Deputy Cohen at his deposition. Deputy Cohen interviewed Plaintiff Jackson and wrote the TCR. Deputy Cohen testified that based on his recollection, all statements he wrote were obtained from Plaintiff Jackson. Plaintiff Jackson stated to Deputy Cohen that he had shifted from second to third gear when the throttle and gas pedal became stuck, and that Plaintiff Jackson lost control of the rear end of his vehicle. The purported statements made at Henry Mayo Newhall Memorial Hospital Emergency Department are inadmissible hearsay, and the Court will not consider these exhibits. It is undisputed that Plaintiff did not notice any moisture on the road prior to the incident, nor does he have any knowledge of the substance in terms of length of its existence, Defendants’ awareness, or when Defendants should have had constructive notice of any alleged substance.  

Defendants therefore meet their prima facie burden that they had no constructive notice of any condition that existed on the roadway purportedly caused by substances from the Car Wash, and that Defendants’ acts or omissions was not the proximate cause of the accident because Plaintiff was racing when his vehicle malfunctioned. The burden therefore shifts to Plaintiff to demonstrate at least one issue of material fact.  

Plaintiffs assert that the Car Wash applies various chemicals to customer vehicles during the automated wash, including detergents, waxes, and dressing. After exiting the Wash Tunnel, customers can choose to use one of the vacuum stalls or to exist directly onto one of the abutting public roads. Vehicles may exit onto either Magic Mountain Parkway or the Bouquet Canyon. Plaintiff proffers the declaration of three experts in support of the contention that vehicles pulling out of the Wash Tunnel and directly onto the roadway are not completely dry, and that the vehicles deposit liquid from the undercarriage and wheel wells onto the road. Private investigator Mark Horne, who is licensed by the Bureau of Security and Investigative Services, declares that he visited the Car Wash in the afternoon of July 20, 2019 and the morning of July 21, 2019 to observe the Car Wash facility, adjacent streets, and driveways. (Horne Decl. ¶ 2.) Horne observed vehicles exit onto the street immediately after leaving the wash bays, and saw the vehicles deposit varying amounts of liquids from the body panels onto Bouquet Canyon Road and Magic Mountain Parkway, depending on which exit was used. (Id. at ¶ 4.) Horne speculates that the liquid he observed from the vehicles carried “degrees of water and cleaning solution,” and thus the Court will not consider this unfounded conclusion regarding the composition of the liquid. (Id. at ¶ 6.) 

Plaintiffs further proffer the declaration of forensic engineer Jeffrey Bonsall (“Bonsall”), who inspected Plaintiff Jackson’s vehicle on February 25, 2020. After inspection, Bonsall opines that he found no abnormalities in form or function to the carburetor, throttle pedal linkage, drivetrain, braking system, and to other vital subsystems. (Bonsall Decl. ¶ 5.) Further, on April 18, 2020, Bonsall performed a site inspection of the Car Wash, and observed dark deposits originating from the exit of the Car Wash that continued through the parking lot and into the roadway to both the number 1 and number 2 lanes of travel. (Id. at ¶ 7.) The Court will consider Bonsall’s declaration that he observed liquid from vehicles depositing onto the roadway of Magic Mountain Parkway, but not that the liquid from the vehicles was composed of “chemicals” because it is premised on speculation and lacks foundation. (Ibid.). Bonsall performed a skid test and opines that the coefficient friction of the road surface was lowered as much as 25% beginning at the point where the driveway apron of the Car Wash meets the roadway on Magic Mountain Parkway. (Id. at ¶ 9.) Bonsall’s vehicle began braking on asphalt not contaminated by deposits from the Car Wash. (Ibid.) On August 5, 2022, Bonsall collected five asphalt samples from the “contaminated area” near the driveway approach on Magic Mountain Parkway that connects the Car Wash to the road in addition to samples from the “uncontaminated areas” for comparison. The samples were sent to scientist and laboratory director Chris French, Ph.D (“French”) for chemical testing.  

French declares that he performed a chemical analysis of the five asphalt samples provided to him by Bonsall. (French Decl. ¶ 5.) French’s analysis found silicones and inorganic salt as the primary surface materials on samples taken from Lane #2. (Id. at ¶ 6.) French reviewed the Invoices from ANC Vehicle Wash Systems, and opines that it is difficult to verify the exact products from the invoices because he is unsure if the supplier (ANC) manufactures their own chemicals or is simply a distributor. (Id. at ¶¶ 8-9.) The tire dressings list silicones. (Id. at ¶ 10.) French opines that he was unable to find an SDS sheet for “Blue Guard Dressing” that was listed on an invoice, but that “this would be the most likely source of silicones on pavement as this type of product will most certainly contain silicones and is often applied liberally to tires which obviously make direct contact with the pavement.” (Id. at ¶ 11.) However, the Court notes that French does not provide a foundational basis to this opinion that the “Blue Guard Dressing” would be the most likely source of silicones, nor does French opine as to the significance of the presence of silicones. In sum, the Court finds the declaration of French to be deficient and the Court gleans no useful information from the declaration. 

Lastly, plaintiff Tammy declares that she was a regular customer at Dapper Dan’s since 2014, and went to the Car Wash on average two times per week prior to the incident. (Tammy Koskella Decl. ¶ 3.) Plaintiff Tammy had brought three different vehicles to the Car Wash to be washed on different occasions. (Id. at ¶ 4.) She declares that every time she exited the Car Wash at about 3-5 miles per hour onto Magic Mountain Parkway, the back end of her vehicle would slide out, and that this happened frequently enough that she knew to exit the Car Wash carefully. (Id. at ¶ 5.) 

The declarations of Bonsall, Horne and Plaintiff Tammy’s declaration are sufficient to preclude this Court from granting Defendants’ motion. Bonsall and Horne make observations about liquid dripping onto the street from cars exiting the car wash, Bonsall opines about the coefficient friction, and Tammy provides her past experiences losing traction while exiting the car wash. Plaintiffs have met their prima facie burden that there are triable issues of material fact as to whether the liquids used by Defendants at the Car Wash caused slippery substances to drip or flow into the streets, such that it proximately caused or contributed to the incident. Overall, Plaintiffs have submitted sufficient circumstantial evidence that the condition of liquids spilling from wet cars coming out of the Car Wash may have created a slippery condition for vehicles, and that this condition existed for years prior to the incident such that Defendants should have discovered and remedied the condition. (Girvetz v. Boys’ Market, Inc. (1949) 91 Cal.App.2d 827, 829.)  

In terms of Defendants’ argument that they do not own or control the public roadway, this fact is undisputed. However, if Defendants created a special hazard, an abutting owner can be found liable for negligence. ([Kopfinger v. Grand Central Pub. Market (1964) 60 Cal. 2d 852, 857) (Meat product left on the sidewalk for deliveries can create liability to the market even if caused by third persons because it was connected with the business). (Lee v. Ashizawa (1964) 60 Cal. 2d 862, 865 (Oil on sidewalk from owner’s business activities creates a triable issue for the jury).) Based on the evidence proffered by Plaintiffs, the Court cannot conclude that Plaintiffs’ allegations rest on pure speculation and conjecture to entitle Defendants to judgment as a matter of law. Whether the cause of Plaintiff Jackson’s vehicle losing control may be attributed to a vehicle malfunction or due to a slippery condition on the road, or some apportionment thereof, is a question for the trier of fact to determine.  

Defendants, thus, fail to establish that they are entitled to summary judgment or adjudication on the grounds that there is no evidence that they caused Plaintiffs’ injuries. (Aguilar, 25 Cal.4th at 854 [noting that a defendant seeking summary judgment “must show that the plaintiff does not possess needed evidence . . . the defendant must also show that the plaintiff cannot reasonably obtain needed evidence . . .”].)  

Based on the foregoing, summary adjudication as to the causes of action for negligence and premises liability are denied.   

As framed by the operative complaint, the Young Plaintiffs allege “Dapper Dan’s deposited upon the highway substances likely to injure or damage traffic using the highway in violation of Cal. Veh. Code § 23112.” (FAC ¶ 38.) The Koskella Plaintiffs did not set forth this particular cause of action. Negligence per se is not a separate cause of action from negligence.  (Das v. Bank of America, N.A. (2010) 186 Cal.App.4th 727, 737-38.)  “The doctrine of negligence per se does not provide a private right of action for violation of a statute. [Citation.]” Rather, under the doctrine, “the plaintiff ‘borrows' statutes to prove duty of care and standard of care.” (Id.) 

Here, Cal. Veh. Code § 23112 provides:  

“(a) No person shall throw or deposit, nor shall the registered owner or the driver, if such owner is not then present in the vehicle, aid or abet in the throwing or depositing upon any highway any bottle, can, garbage, glass, nail, offal, paper, wire, any substance likely to injure or damage traffic using the highway, or any noisome, nauseous, or offensive matter of any kind. 

(b) No person shall place, deposit, or dump, or cause to be placed, deposited, or dumped, any rocks, refuse, garbage, or dirt in or upon any highway, including any portion of the right-of-way thereof, without the consent of the state or local agency having jurisdiction over the highway.” 

Defendants contend that Plaintiffs cannot establish that they violated the statute or that Defendants were a substantial factor in causing Plaintiff’s accident. However, for the same reasons as analyzed above, Plaintiffs have met their burden demonstrating a triable issue of material fact in terms of the substance on the road, and whether the substance contributed to the vehicle incident by causing Plaintiff Jackson’s vehicle to lose traction.  

Accordingly, summary adjudication as to the cause of action for negligence per se is denied.  

The Young Plaintiffs’ fourth cause of action and the Koskella Plaintiff’s third cause of action for loss of consortium are derivative and dependent on their first and second causes of action for negligence and premises liability. “Such a claim at common law has four elements: (1) a valid and lawful marriage between the plaintiff and the person injured at the time of the injury; (2) a tortious injury to the plaintiff’s spouse; (3) loss of consortium suffered by the plaintiff; and (4) the loss was proximately caused by the defendant’s act.”  (LeFiell Mfg. Co. v. Superior Court (2012) 55 Cal.4th 275, 284-285.) It is undisputed that there is lawful marriage and injury among the Plaintiffs. As previously established, whether the injury was proximately caused by Defendants is a question for a jury.  

Accordingly, summary adjudication as to the cause of action for loss of consortium is denied.  

IV. Conclusion 

Based on the foregoing, Defendants’ Motion for Summary Judgment, or in the alternative Summary Adjudication, is DENIED.  

Moving Defendant is ordered to give notice.    

MOTION TO SEAL FILE RECORDS 

I. Background 

Defendants General Wash, LLC, individually and dba Dapper Dan’s Car Wash, and General Wash Land I, LLC (“Defendants”) aver that the parties entered into a Stipulation and Protective Order, and that due to inadvertence, it was not filed and executed by the Court until March 2023. On April 3, 2023, the Court continued the hearing on Defendants’ MSJ to allow Defendants to file a noticed motion to seal no later than April 18, 2023.¿¿ 

On April 17, 2023, Defendants filed the instant motion for an order to conditionally seal documents lodged in connection with their motion for summary judgment (MSJ). Defendants seek to seal the following:¿ 

This matter was heard on February 21, 2024, but continued to February 29, 2024 to provide Defendants the opportunity to file supplemental redacted documents by no later than February 23, 2024. However, to date, no supplemental redacted documents have been lodged with the Court. Therefore, the Court adopts the tentative previously provided at the last hearing on this motion as follows.  

II. Motion to Seal  

Unless confidentiality is required by law, court records are presumed to be open to the public. (Cal. Rules of Court, rule 2.550, subd. (c).) Consequently, pleadings, motions, evidence, and other papers may not be filed under seal merely by stipulation of the parties; rather, a prior court order is necessary. (Cal. Rules of Court, rule 2.551, subd. (a).)   

California Rules of Court, rule 2.551(b)(1) states, “[a] party requesting that a record be filed under seal must file a motion or an application for an order sealing the record. The motion or application must be accompanied by a memorandum and a declaration containing facts sufficient to justify the sealing.”  CRC 2.550(d) makes clear that records cannot be sealed without appropriate findings.   

To grant such an order, the court must expressly find that . . . “an overriding interest exists that overcomes the right of public access to the record, an overriding interest supports sealing the records, a substantial probability exists that the overriding interest will be prejudiced if the record is not sealed, the proposed sealing is narrowly tailored, and no less restrictive means exist to achieve the overriding interest.” (Cal. Rules of Court, rule 2.550, subd. (d).)   

If the court fails to make the required findings, the order is deficient and cannot support sealing. (Overstock.com, Inc. v. Goldman Sachs Group, Inc. (2014) 231 Cal.App.4th 471, 487.)   

III. Discussion 

Defendants contend that the above-listed exhibits contain confidential and commercially sensitive business information, and release of the information would reveal to competitors the details of their carwash operation, including certain financial decisions. The invoices regarding types of chemicals used, the volume of chemicals, and costs involve the car wash’s finances. Defendants contend there is no reasonable alternative but to lodge them under seal.  

However, Defendants do not state sufficient facts to justify the sealing the entirety of the documents listed, as opposed to redacting the specific portions Defendants contend touch upon propriety information. The Court reviewed the lodged documents, and Defendants do not provide enough justification to seal certain information, such as the name of Defendant’s vendor, or the deposition excerpts of Kuhns in its entirety.  

Based on the foregoing, the motion to seal is denied.   

Moving party is ordered to give notice.   

PLEASE TAKE NOTICE: 

Dated this 28th day of February 2024