Judge: Serena R. Murillo, Case: 19STCV04474, Date: 2022-10-31 Tentative Ruling
DEPARTMENT 29 - LAW AND MOTION RULINGS IMPORTANT (PLEASE SEND YOUR E-MAIL TO DEPT. 29 NOT DEPT. 2)
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ALSO NOTE: If the moving party does not contact the court to submit on the tentative and does not appear (either remotely or in person), the motion will be taken off calendar. THE TENTATIVE RULING WILL NOT BE THE ORDER OF THE COURT.
Case Number: 19STCV04474 Hearing Date: October 31, 2022 Dept: 29
City of Los Angeles v. Zorik Vartanian
Motion for Summary Judgment filed by Defendants
White Dove Luxury Transporation and Zorik Vartanian
TENTATIVE
Defendants White
Dove Luxury Transporation and Zorik Vartanian’s motion for summary judgment is
DENIED.
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 437c(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.)
Request for
Judicial Notice
Defendants
request judicial notice of Plaintiffs’ complaint, their answer, and Decedent’s
death certificate. The Court notes that the court must consider all of the
evidence set forth in the papers, except the evidence to which objections have
been made and sustained by the court. (Code Civ. Proc., § 437c, subd.
(c).) Thus, Defendant’s requests are thus unnecessary and the Court
declines to rule on the requests.
However, the Court declines to
consider the evidence in defendant’s request for judicial notice filed with the
reply papers because it was filed for the first time in Defendant’s reply
papers. Generally, a moving party on a motion for summary judgment may not rely
upon evidence filed for the first time within its reply papers. (San Diego
Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 313
[“While the [Code of Civil Procedure] provides for reply papers, it makes no
allowance for submitting additional evidence [therein]”].) If the Court were to
consider the evidence submitted for the first time within Defendant’s reply
papers, this Court would violate Plaintiff’s due process rights as Plaintiff
did not have notice or the opportunity to address the evidence upon which
Defendant’s argument is based. (Id., at p. 316 [“Here, the evidence not
only was omitted from the separate statement, it also was not filed until after
[plaintiff] had responded to the issues raised in the separate statement. In
considering this evidence, the [trial] court violated [plaintiff’s] due process
rights. [Plaintiff] was not informed what issues it was to meet in order to
oppose the motion”].)
Evidentiary Objections
A.
Plaintiff’s
objections made within the separate statement are improper and the Court
declines to rule on them. (See Hodjat v. State Farm Mutual
Auto. Ins. Co. (2012) 211 Cal.App.4th 1, 7-9 (finding that the trial court
did not abuse its discretion in refusing to rule on the plaintiff’s evidentiary
objections made in plaintiff’s separate statement, to overlook plaintiff’s
deficiency, or to permit plaintiff the opportunity to reformat his opposing
papers).)
B.
Defendant’s
objection no. 1 is SUSTAINED for lack of foundation as the evidence relied on
to form Dr. Pietruszka’s opinions are not before the court. Objection no. 2 is
OVERRULED as moot.
Discussion
The elements of a
cause of action for wrongful death are the tort (negligence or other wrongful
act), the resulting death, and the damages, consisting of the pecuniary loss
suffered by the heirs. (Quiroz v. Seventh Ave. Center (2006) 140
Cal.App.4th 1256, 1263.)
The proper test for proving
causation in a negligence action is the substantial factor test.¿ (Mayes v.
Bryan¿(2006) 139 Cal.App.4th 1075, 1092-93.)¿ The plaintiff must establish
that “(1) that the defendant's breach of duty ... was a substantial factor in
bringing about the plaintiff's harm and (2) that there is no rule of law
relieving the defendant of liability.”¿ (Id.¿at 1093.)¿¿“Conduct can be
considered a substantial factor in bringing about harm if it ‘has created a
force or series of forces which are in continuous and active operation up to
the time of the harm’ [citation], or stated another way, ‘the effects of the
actor's negligent conduct actively and continuously operate to bring about harm
to another’ [citation].”¿ (Id.¿at 1093.)¿
Defendant argues that the vehicle collision
was not a substantial factor in causing his death. Defendant argues that Senior Deputy Medical
Examiner Odey Ukpo, M.D., M.S. (“Dr. Ukpo”) from the Los Angeles Medical
Examiner’s office conducted an autopsy of Decedent and that the anatomical
evidence is undisputed the decedent had no internal or external trauma
at the time of his death. (Deposition of Dr. Ukpo, 82:8-19; UMF ¶ 11.) The
evidence is also undisputed decedent had a long history of poor health and
several health ailments, which the physical internal and external evidence of
the autopsy report confirm. (UMF ¶ 8.) Instead, decedent, through his long history
of failing to take his insulin, poor eating habits and numerous pre-existing
conditions, died of end-stage renal disease and diabetes, with cardiovascular
disease as a significant contributing factor. (UMF ¶ 7-11.) Defendant specifically cites the certificate of death, which lists
the immediate cause of death as “end stage rental disease.” (UMF No. 12.)
Conditions and underlying causes leading to decedent’s death were listed as his
“diabetes mellitus” and “hypertensive cardiovascular disease.” (Id.) Defendant
correctly identities that Health and Safety Code section 103550 establishes
that a death certificate is prima facie evidence of the facts stated therein.
However, the fact that the death certificate is admissible evidence, does not
mean that it is conclusive evidence to meet its burden on a summary judgment
motion. (See Morris
v. Noguchi (1983) 141 Cal.App.3d 520, fn. 1 [“[A] death certificate
constitutes only prima facie evidence of the facts therein stated, [and is]
subject to rebuttal and to explanation. Thus . . . evidence may be introduced
to contradict the opinion as to cause of death contained on a death
certificate] [internal quotations and citations omitted]; Walsh v. Caidin (1991)
232 Cal.App.3d 159, 165 [holding that although cause of death on the death
certificate was admissible, “[t]he opinion in the death certificate as to the
cause of death may be rebutted by other evidence”].)
Plaintiff has presented evidence that shows that Dr.
Ukpo did not review any of Decedent’s prior medical records and did not have
any knowledge of the injuries he sustained in the collision. (Ukpo
Depo., 111:16- 23; 117:24-118:8.) Nonetheless, Dr. Ukpo agreed that
Decedent could have suffered a traumatic brain injury that was not observed in
the central portion of the brain and that brain injury and the stretching of
neurofibers can cause a high risk of arrythmia, and that psychological stress
can cause cardiac arrythmia, which ultimately caused Decedent’s death. (Id., 114:17-115:13,
116:17-23, 118:2-15, 119:22- 120:4, 121:16-18, 121:23-124:18, 131:2-5.) Additionally,
Dr. Ukpo agreed that people live with diabetes and end- stage renal disease for
years as long as they are properly treated and this alone would not cause
sudden death. (Id., 120:10-20.)
As a result, the Court finds that
Defendant has not met his burden on summary judgment to show that no triable
issues of fact exist as to whether the collision was a substantial factor in
causing Decedent’s death. The cause of death on the death certificate does not
provide irrefutable evidence of Decedent’s cause of death, and Dr. Ukpo agreed
that Decedent could have suffered a brain contusion that was not observed in
the central portion of the brain. Moreover, the Court notes that the complaint
also states that the collision caused Decedent complications, leading to his
death. Thus, Defendant’s evidence that Decedent had no internal or
external trauma at the time of his death does not squarely address whether he
suffered other complications that were not observable by Dr. Ukpo for purposes
of the death certificate. Thus,
as Defendant has not met his initial burden, the burden does not shift to
Plaintiff.
Conclusion
Accordingly, the Court DENIES Defendant’s motion for summary
judgment.
Moving party is
ordered to give notice.