Judge: Steven A. Ellis, Case: 21STCV11786, Date: 2024-11-15 Tentative Ruling
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Case Number: 21STCV11786 Hearing Date: November 15, 2024 Dept: 29
Delmaro v. Arrow Disposal Services
21STCV11786
Defendant’s Motion for Summary Judgment
TENTATIVE
The Motion for Summary Judgment is denied.
Background
On March 26,
2021, Robert Delmaro and Debbie Ray (collectively “Plaintiffs”) filed a
complaint against Arrow Disposal Services, Inc. (“Defendant”) and Does 1
through 50, asserting causes of action for motor vehicle negligence and general
negligence arising out of an incident on July 26, 2019, in which Plaintiffs
allege that their vehicle collided with a construction bin that had been
improperly placed in the roadway on Gayley Avenue in Los Angeles.
On November 4,
2021, Defendant filed an answer.
On November 29,
2023, Defendant filed a cross-complaint against Page Construction, Gayley
Investments, L.P., and Roes 1 through 20.
On March 1,
2024, Page Construction and Gayley Investments, L.P., filed an answer to the
cross-complaint.
As it relates to
the matter on calendar for November 15, 2024, Defendant filed this motion for
summary judgment on November 8, 2023. Plaintiffs
filed an opposition on November 1, 2024. Defendant filed a reply, along with
additional evidence and objections to some of Plaintiffs’ evidence, on November
8, 2024.
Legal Standard
“The purpose
of the law of summary judgment is to provide courts with a mechanism to cut
through the parties’ pleadings in order to determine whether, despite their
allegations, trial is in fact necessary to resolve their dispute.” (Aguilar
v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Code of Civil
Procedure section 437c, subdivision (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
cause of action as framed by the complaint, a defendant moving for summary
judgment or summary adjudication must satisfy the initial burden of proof by
presenting facts to show “that one or more elements of the cause of action ...
cannot be established, or that there is a complete defense to the cause of
action.” (Code Civ. Proc., § 437c, subd. (p)(2); see also Aguilar, supra,
25 Cal.4th at pp. 850-851; Scalf v. D. B. Log Homes, Inc. (2005) 128
Cal.App.4th 1510, 1520.) 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.” (Code Civ. Proc.,
§ 437c, subd. (p)(2); see also Aguilar, supra, 25 Cal.4th at pp.
850-851.)
A plaintiff or
cross-complainant moving for summary judgment or summary adjudication must
satisfy the initial burden of proof by presenting facts to show “that there is
no defense to a cause of action if that party has proved each element of the
cause of action entitling the party to judgment on the cause of action.” (Code
Civ. Proc., § 437c, subd. (p)(1).) Once the plaintiff or cross-complainant has
met that burden, the burden shift to the defendant or cross-defendant to show
that a “triable issue of one or more material facts exists as to the cause of
action or a defense thereto.” (Ibid.)
The party
opposing a motion for summary judgment or summary adjudication may not simply
“rely upon the allegations or denials of its pleadings” but must instead “set
forth the specific facts showing that a triable issue of material fact exists.”
(Code Civ. Proc., § 437c, subds. (p)(1) & (p)(2). 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.)
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.)
Objections to
Evidence
Defendant objects to some of the
evidence submitted by Plaintiffs. Evidence presented in support of, or in
opposition to, a motion for summary judgment must be admissible. (Code Civ.
Proc., § 437c, subd. (d); Perry v.
Bakewell Hawthorne LLC (2017) 2
Cal.5th 536, 541-43.) The court must “consider all of the evidence set forth in the papers, except the
evidence to which objections have been made and sustained.” (Code Civ. Proc., §
437c, subd. (c).)
The Court SUSTAINS Defendant’s Objection No. 7
to the declaration of expert witness Alex Zaretskiy (improper opinion
testimony).
The Court OVERRULES each of Defendant’s other objections.
As to the objections to the declaration of Mr. Zaretskiy,
except as to Objection No. 7, the
Court finds that Mr. Zaretskiy has appropriate credentials and his testimony relates to a subject that is sufficiently beyond common experience
that the opinion of an expert witness would assist the trier of act; is based
on information of the type on which an expert may reasonably rely; is based on
reasons supported by the information on which the expert relies; and is not
speculative. (Evid. Code, §§ 801-802; Sargon Enterprises v. USC (2012)
55 Cal.4th 747, 771-21.)
Discussion
The facts surrounding the
accident are largely undisputed.
Defendant is a waste hauling
company. (Defendant’s Statement of Undisputed Material Facts [“DSUMF”], No.
14.) Defendant deals mostly with construction companies, general contractors,
and demolition companies. (DSUMF, No. 15.) Defendant’s customers contact
Defendant when they have a project and need a waste disposal container. (DSUMF,
No. 16.)
The waste container at issue
is a common type, 8 feet wide, 20 feet long, and 6 feet tall. (DSUMF, No. 19;
Plaintiff’s Statement of Additional Material Facts [“PSAMF”], No. 7.) Defendant’s
customers are responsible for deciding where to place the waste containers.
(DSUMF, No. 21.) Defendant’s drivers are trained to refuse to place the
containers in unsafe areas, such as obstructing traffic. (DSUMF, No. 22.)
The waste container at issue
had been placed on the street near the job site on and off for more than a
year, starting on January 19, 2018. (DSUMF, No. 25.) The container had been on
the street near the job site continuously since July 19, 2019. (DSUMF, No. 25.)
The waste container at issue
did not have reflectors or reflector tape. (DSUMF, Nos. 11, 24; PSAMF, Nos. 4,
13.) The container was placed flush to the curb. (DSUMF, No. 24.)
On the evening of July 26,
2019, in between approximately 8:30 and 9:00 pm, Plaintiffs were in an
automobile driving on Gayley Avenue in Los Angeles. (DSUMF, No. 2; PSAMF, No.
1.) Plaintiff Delmaro was driving, and Plaintiff Ray was in the passenger seat.
(DSUMF, No. 3; PSAMF, No. 1..)
There are two lanes of
traffic on Gayley Avenue at the location of the accident. (DSUMF, No. 4.)
Plaintiffs’ vehicle was in the left lane. (DSUMF, No. 5; PSAMF, No. 1.) Another
vehicle came speeding from behind, began to pass Plaintiffs’ vehicle on the
left, and then started to move back into Plaintiffs’ lane before the passing
maneuver was complete. (DSUMF, No. 6; PSAMF, No. 1.) Plaintiff Delmaro veered
his car to the right to avoid colliding with the other vehicle. (DSUMF, No. 7;
PSAMF, No. 1.) A few seconds later, Plaintiff collided with a waste container
owned by Defendant that was stationed in the right lane of Gayley Avenue.
(DSUMF, No. 8; PSAMF, Nos 2-3.)
In the complaint, Plaintiffs assert two causes
of action sounding in negligence against Defendant. The basic elements of a cause of action for
negligence are well established: (1) the existence of a legal duty; (2)
breach of that duty; (3) causation; and (4) resulting damages. (Brown
v. USA Taekwondo (2021) 11 Cal.5th 204, 213; Romero v. Los Angeles Rams
(2023) 91 Cal.App.5th 562, 567.)
Defendant moves for summary
judgment, arguing: (1) that it owed no duty to Plaintiffs; (2) that even
if Defendant owed a duty to Plaintiffs, Defendant did not breach any duty; and
(3) that any alleged breach was not a proximate cause of Plaintiffs’ injuries.
The Court considers each
argument in turn.
Duty
The existence and scope of duty are legal questions
for the court.¿¿(Brown, supra, 11 Cal.5th at p. 213; Annocki¿v.
Peterson Enterprises, LLC¿(2014) 232 Cal.App.4th 32, 36.)
The general rule governing duty is set forth in Civil Code section
1714: “Everyone is responsible, not only for the result of his or her willful
acts, but also for an injury occasioned to another by his or her want of
ordinary care or skill in the management of his or her property or person,
except so far as the latter has, willfully or by want of ordinary care, brought
the injury upon himself or herself.” (Civ. Code, § 1714, subd. (a).) This
establishes what the California Supreme Court has described as the “default
rule” that every person has a legal duty “to exercise, in his or her
activities, reasonable care for the safety of others.” (Brown, supra, 11
Cal.5th at p. 214.)
Applying these well established rules, the
Court concludes that Defendant had a duty to use ordinary, reasonable care in
the conduct of its business and the management of its property, including in
the placement of the container bin at issue.
The Court rejects Defendant’s argument that it
owed no duty to Plaintiffs.
Breach
Plaintiffs have shown that there are triable
issues on the issue of breach: that a trier of fact could reasonably conclude,
based on the evidence in the record and the reasonable inferences that may be
drawn therefrom, that the failure to place reflectors or other reflecting
material on the container was a departure from the standard of ordinary care. (See
Zaretskiy Decl., ¶¶ 9 [excluding the final sentence, as to which the Court has
sustained Defendant’s objection], 10-12; Mitchell Decl., Exh. 1 [Transcript of
Deposition of Plaintiff Delmaro], at 46:9-15, 47:8-20, 50: 5-21.) The issue is
not that Defendant violated any applicable statute or ordinance; the issue is
whether Defendant, in the conduct of its business activities, exercised reasonable
care for the safety of others. On that issue, there are triable issues.
The Court rejects Defendant’s argument that, as
a matter of law, it did not breach the duty of care it owed to Plaintiffs.
Causation
“[T]he causation element of negligence is
satisfied when the plaintiff establishes (1) that the defendant's breach of
duty (his negligent act or omission) 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.” (Leslie G. v. Perry & Associates (1996) 43
Cal.App.4th 472, 481.) “Ordinarily, proximate cause is a question of fact.” (State
Dept. of State Hospitals v. Super. Ct. (2015) 61 Cal.4th 339, 354.) Where,
however, “the facts are such that the only reasonable conclusion is an absence
of causation, the question is one of law, not of fact.” (Ibid.)
Defendant contends that the proximate cause of
the accident was the reckless driving of the speeding vehicle that attempted to
pass Plaintiffs, not Defendant’s placement of the container on the street
without reflectors or reflecting material. (Motion, at p. 7.) But there need
not be only one proximate cause of an accident: more than one proximate cause
may each be a substantial factor in causing an accident. “A defendant’s
negligent conduct may combine with another factor to cause harm; if a defendant’s
negligence was a substantial factor in causing the plaintiff’s harm, then the
defendant is responsible for the harm.” (Yanez v. Plummer (2013) 221
Cal.App.4th 180, 187.) A “defendant cannot avoid responsibility just because
some other person, condition, or event was also a substantial factor in causing
the plaintiff’s harm.” (Ibid.; see also CACI No. 431.)
There is evidence in the record that, if credited
by the trier of fact, would reasonably support a finding that the placement of
the container in the street without reflectors or other reflecting material was
a substantial factor in causing the accident. (Mitchell Decl., Exh. 1 [Transcript
of Deposition of Plaintiff Delmaro], at 47:8-20, 50: 5-21.) Accordingly, the
Court concludes that there are triable issues of fact as to causation.
The Court rejects Defendant’s argument that, on
this record, the conduct of Defendant was as a matter of law not a substantial
factor in bringing about the accident.
Defendant’s motion for summary judgment is
denied.
Conclusion
The Court DENIES Defendant’s motion for summary
judgment.
Moving Party is to give notice.