Judge Ronald F. Frank, Case Number: 22TRCV00907, Date: 2024-07-30 Tentative Ruling

Judge: Ronald F. Frank, Case: 22TRCV00907, Date: 2024-07-30 Tentative Ruling

Case Number: 22TRCV00907 Hearing Date: July 30, 2024 Dept: 8

Tentative Ruling¿

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HEARING DATE: July 30, 2024

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CASE NUMBER: 22TRCV00907

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CASE NAME: Ofelia Orozco-Gonzalez; Paulin Aguirre-Gonzalez v. Barry Gloth, et al.

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MOVING PARTY: Defendants, Barry Alan Gloth

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RESPONDING PARTY: Plaintiffs, Ofelia Orozco-Gonzalez and Paulin Aguirre-Gonzalez

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TRIAL DATE: January 27, 2025

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MOTION:¿ (1) Motion for Summary Judgment, or in the alternative, Summary Adjudication

Tentative Rulings: (1) The MSJ is Denied, because the moving party has not carried his initial burden of proof on the MSJ, but the Court Grants summary adjudication as to the purported negligence per se claim which as a matter of law is not a viable separate cause of action distinct from the Negligence-wrongful death cause of action. Plaintiff may still seek to prove a negligence per se theory, but not as a separate cause of action from the wrongful death negligence claim

I. BACKGROUND¿¿

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A. Factual¿¿

On October 10, 2022, Plaintiffs, Ofelia Orozco-Gonzalez and Paulin Aguirre-Gonzalez (collectively, “Plaintiffs”) filed a Complaint against Defendants, Barry Gloth, City of Hawthorne, County of Los Angeles, State of California, Freeman Investment, Union Pacific Railroad, and DOES 1 through 100. On July 24, 2023, Plaintiffs filed a First Amended Complaint (“FAC”) alleging causes of action for: (1) Liability for Dangerous Condition of Public Property; (2) Negligent Provision of Public Services; (3) Negligence – Wrongful Death; (4) Premises Liability; and (5) Products Liability.

Now, Defendant, Barry Alan Gloth (“Gloth”) files a Motion for Summary Judgment.

B. Procedural¿¿

On May 10, 2024, Gloth filed a Motion for Summary Judgment. On July 16, 2024, Plaintiffs filed an opposition brief. On July 25, 2024, Gloth filed a reply brief.

II. EVIDENTIARY OBJECTIONS

Plaintiff’s evidentiary objections to Gloth’s Evidence:

Overrule: all

Sustain: none.

III. ANALYSIS¿

A. Legal Standard

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) CCP Section 437(c) “requires the trial judge to grant summary judgment if 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.”¿ (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)¿ “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.”¿ (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382.)¿

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (CCP § 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520. ) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.”¿ (Dore v. Arnold Worldwide, Inc.¿(2006) 39 Cal.4th 384, 389.)¿

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 that cause of action or a defense thereto.¿¿¿ To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

B. Discussion

i. Negligence – Wrongful Death

First, Gloth argues that Plaintiffs’ negligence – wrongful death cause of action, the only cause of action alleged against Gloth, fails as no triable issue of material fact exists as to the elements of breach of duty and causation of the accident. “The elements of a cause of action for wrongful death are a tort, such as negligence, and resulting death.” (Lopez v. City of Los Angeles (2011) 196 Cal.App.4th 675, 685.) Further, in order to state a claim for negligence, Plaintiff must allege the elements of (1) “the existence of a legal duty of care,” (2) “breach of that duty,” and (3) “proximate cause resulting in an injury.” (McIntyre v. Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.)

Plaintiff’s third cause of action alleges that Defendant Gloth violated Vehicle Code section 22350. Vehicle Code section 22350 states, “[n]o person shall drive a vehicle upon a highway at a speed greater than is reasonable or prudent having due regard for weather, visibility, the traffic on, and the surface and width of, the highway, and in no event at a speed which endangers the safety of persons or property.” (Cal. Veh. Code § 22350.) The general duty to take ordinary care in the conduct of one's activities applies to the operation of a motor vehicle. (Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 122.) “The formulation of the standard of care is a question of law for the court. Once the court has formulated the standard, its application to the facts of the case is a task for the trier of fact if reasonable minds might differ as to whether a party's conduct has conformed to the standard.” (Ramirez v. Plough, Inc. (1993) 6 Cal.4th 539, 546, internal citations omitted.) In the subject accident, Defendant Gloth thus had the duty of ordinary care when operating his vehicle, including a reasonable speed under the driving conditions presented, maintaining control of his vehicle, and keeping a lookout for hazards, vehicles, and persons in his path of travel. “The operator of a vehicle must keep a proper lookout for other vehicles or persons on the highway and must keep his car under such control as will enable him to avoid a collision; failure to keep such a lookout constitutes negligence.” (Downing v. Barrett Mobile Home Transport, Inc. (1974) 38 Cal.App.3d 519, 524.) These are generally questions of fact for the jury. (Id.)

As to breach, Gloth’s argument is based on his contention that there is no evidence of a breach of duty by him. Defendant Gloth asserts that the undisputed material facts establish that Plaintiffs have no evidence that Defendant violated Vehicle Code section 22350. (Gloth’s SSUMF No. 10). However, the issue of whether Gloth was or was not speeding is not dispositive of his initial burden of proof on a motion for summary judgment. “[C]ompliance with the law does not prove the absence of negligence,” even where proof of a violation of the law would raise a presumption that the violator was negligent, i.e., negligence per se. (Jacobs Farm/Del Cabo, Inc. v. Western Farm Service, Inc. (2010) 190 Cal.App.4th 1502, 1526.)

The crux of the issue the Court has with Gloth’s argument is that the standard on summary judgment is for the defendant to first negate an essential element of plaintiff’s cause of action before the burden is shifted to Plaintiff to present evidence of a triable issue bearing on that element. Here, Gloth has not met his initial burden on summary judgment to establish that as a matter of law there is no disputed factual question bearing on the breach or causation elements. Gloth relies on the deposition testimony of three witnesses to attempt to carry this burden: Seargeant Barlin, Defendant Gloth himself, and Officer Valdez. In doing so, Gloth asserts that the undisputed material facts establish that he was not speeding at the time of the subject accident. However, violation of the posted speed limit is not the only way for a plaintiff to prove negligence, and thus is not the only point on which he must make an affirmative showing to establish entitlement to judgment as a matter of law on what is usually a jury question. The Court’s review of the deposition testimony of Seargeant Barlin shows that he did not make any determination as to whether Mr. Gloth could have avoided the accident, and that he did not determine Mr. Gloth’s speed before the accident occurred. (Gloth’s Exhibit E, p. 92:6-16.) Although both Seargeant Barlin and Officer Valdez indicate that they did not issue Defendant Gloth a citation, the lack of a citation does not establish, as a matter of law, that Gloth did not violate Vehicle Code section 22350. In contrast to other Vehicle Code provisions requiring compliance with the prima facie speed limit or a specific posted limit, Section 22350 contains other aspects that are not addressed in Gloth’s moving papers, i.e., a reasonable speed “having due regard for weather, visibility, the traffic on, and the surface and width of, the highway . . . .” (Cal. Veh. Code §22350.) Gloth’s Separate Statement contains no facts bearing on weather, or visibility, traffic, or the roadway surface. Gloth’s deposition excerpts provide some additional information, including the existence of railroad tracks across the road surface in the vicinity of the impact, and that he was driving in the number 2 lane closest to the curb. Gloth’s deposition at p. 92 disagrees with the prior inconsistent statement attributed to him in the traffic collision report as to whether he first saw the Decedent on the sidewalk before Decedent entered the roadway. But there is no affirmative showing by the moving party as to visibility, weather, obstructions to view, etc.

The only evidence bearing on Gloth’s compliance with the Basic Speed Law is his own deposition testimony that he was driving the speed limit or under the speed limit, and that he only observed the presence of the Decedent a “microsecond” before impact. That testimony is insufficient to carry his initial burden of proving that no triable issue of material fact exists as to the negligence cause of action against him. A jury reasonably could determine that the reason Gloth did not see the Decedent earlier was lack of attention, or that the attributed statement in the police report about seeing the Decedent on the sidewalk is more credible than his testimony that the report is inaccurate.

ii. Negligence Per Se

Second, Defendant Gloth argues that Plaintiff’s negligence per se theory also fails. “The negligence per se doctrine, as codified in Evidence Code section 669, creates a presumption of negligence if four elements are established: (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 of 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.” (Spates v. Dameron Hospital Association (2003) 114 Cal.App.4th 208, 218, quotation marks omitted.) “The doctrine of negligence per se is not a separate cause of action, but creates an evidentiary presumption that affects the standard of care in a cause of action for negligence.” (Johnson v. Honeywell International Inc. (2009) 179 Cal.App.4th 549, 555, quotation marks and brackets omitted.) Because this alleged cause of action is subsumed under the wrongful death claim, it is not a a viable clam and it would have been subject to a demurrer. Because the Court can make that determination as a matter of law on a motion for summary judgment, the Court Grants summary adjudication as to thei alleged cause of action that is not a separate cause of action, but is a separate theory of negligence upon which recovery may be based. (Id.) The doctrine of negligence per se does not provide a private right of action for violation of a statute. (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1285.)

IV. CONCLUSION

For the foregoing reasons, this Court DENIES Defendant Gloth’s motion for summary judgment but grants summary adjudication as to the negligence per se claim which is not a viable separate cause of action.

Plaintiffs are ordered to provide notice.