Judge: Steven A. Ellis, Case: 22STCV05699, Date: 2025-03-11 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: 22STCV05699    Hearing Date: March 11, 2025    Dept: 29

Castro v. Genchel
22STCV05699
Defendant’s Motion for Summary Judgment

Tentative

The motion is denied.

Background 

On February 15, 2022, Plaintiff Kristy Castro (“Plaintiff”) filed this action against Arie Genchel (“Defendant”) and Does 1 to 10, asserting a single cause of action for motor vehicle negligence arising from an accident on January 18, 2021, at or near the intersection of White Oak Avenue and Kittredge Street in Reseda. The Complaint alleges that Defendant “failed to keep a proper lookout, to see, and/or slow for Plaintiff, who was a pedestrian making a mid-block crossing.” (Complaint, at p. 4.)

Defendant filed an answer on May 19, 2022.

On January 11, 2024, Defendant filed this motion for summary judgment.

On February 25, 2025, Plaintiff filed her opposition, along with objections to some of Defendant’s evidence.

No reply was filed.

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.)

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

Each side asserts objections to the other’s evidence.

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).)

Plaintiff asserts objections to the declaration of Defendant’s expert witness David Krauss.  The Court SUSTAINS Objections Nos. 5 and 6.  The Court OVERRULES Plaintiff’s other objections.

Discussion 

Defendant moves for summary judgment on Plaintiff’s single cause of action for motor vehicle negligence.

On January 18, 2021, at approximately 6:30 pm, Defendant was driving a Toyota Tundra southbound on White Oak Avenue near and Kittredge Street in Reseda and collided with Plaintiff, a pedestrian. (Defendant’s Statement of Undisputed Material Facts [“DSUMF”], Nos. 2-5.)  Defendant was in the number two lane and was driving at approximately 35 miles per hour.  (Defendant’s Evidence, Exh. 2 [Response to Form Interrogatory 20.8].)

Defendant stated in an interrogatory response that Plaintiff “began to run northbound in the southbound lane of White Oak against oncoming traffic.”  (Defendant’s Evidence, Exh. 2 [Response to Form Interrogatory 20.8].)  Defendant states that he “tried to swerve to avoid Plaintiff but still collided with Plaintiff in the number two lane.”  (Defendant’s Evidence, Exh. 2 [Response to Form Interrogatory 20.8].)

Nonparty Anton Gutierrez was deposed, and each side submits excerpts from his deposition testimony.  Mr. Gutierrez testified:

“Q. How are you familiar with Miss Castro?

A. I was cleaning the front of my house where I was residing in Reseda at that time. I noticed a lady about probably 300 feet across the street waving hands and asking for help. I thought she was hurt or something, so I went across the street and I introduced myself. And I asked her if she needed any help. Feel free to give me a call. And that was pretty much it.

Q. And when you mentioned this incident, how long ago was this interaction with Miss Castro?

A. I would say -- I can't recall, but my guess would be about two years.  [The deposition of Mr. Gutierrez was taken on June 15, 2023.]

…

Q. And so, you mentioned that she was waving her hands in the air asking for help. Did you approach Miss Castro at that time?

A. Yes. Yes, I did.

Q. Okay. And did you cross into the street where Miss Castro was?

A. Yes, I went across the street. Yes.

Q. Okay. And at that point, what were the traffic conditions like?

A. Actually, there was no -- no -- it was super light. There was no vehicles at the moment.

Q. And where Miss Castro was standing in the street, was she standing in a crosswalk?

A. I think she was next to her car to the driver's side door, and then went to the front of the vehicle when I started approaching her.

Q. Okay. Again, I just want to make sure we have a clean record. Was Miss Castro standing in the crosswalk at the time you approached her?

A. Yes.

Q. She was in a crosswalk?

A. Well, there's no crosswalk in that area, but there's a little bit of -- some sort of a small park for dogs to walk on. And that area was about probably 20 feet in length by 35 feet wide.

Q. And when you approached Miss Castro, did she say anything to you?

A. She asked me if I -- if I seen the accident, you know, that she was describing the person hit her, but I didn't see the other person myself.

Q. So she mentioned that she was in an accident, that was what she told you?

A. Correct.

Q. Okay. And did you see any physical injuries on Miss Castro?

A. No. Not at the moment myself, no.

Q. Okay. And you did not see the other vehicle involved in the accident?

A. No.

Q. Okay. Did anyone stop and assist Miss Castro other than yourself?

A. I can't recall. After I left -- I was just heading actually out. But I gave her my phone number case she needed any extra help.

Q. And did you call 911?

A. I believe that she already had called.

Q. Okay. And were you there when any first responders arrived at the scene?

A. No. I wasn't there.

Q. Okay. Did you ever provide a statement to any officer in relation to this accident?

A. No, I did not.”

(Defendant’s Exh. 3 [“Gutierrez Depo.”], at 11:21-12:7, 13:19-15:22.)

Later in the deposition, Mr. Gutierrez was asked about statements attributed to him regarding the incident in a traffic accident report:

“Q. Okay. Continuing on. "Today at approx 1830 hours, Guttierrez observed P-1 walking N/B” -- and that transcribes to northbound -- "in the middle of the street of White Oak, just South of Kittridge. Guttierrez saw that P-1 was holding two large bags over her head and mumbling to herself." Is those two sentences -- are those accurate statements?

A. Yes.

Q. Okay. Continuing on. "Guttierrez called out to P-1 one and told her to get out of the street due to heavy traffic." Is that an accurate statement?

A. Yes.

Q. Continuing on. "As Guttierrez called out to P-1, she began to run N/B, northbound, in the #1 S/B lane of White Oak past Kittridge. All the vehicles traveling S/B White Oak began to slam their brakes and serve around P-1." Are those accurate statements?

A. Yes.

Q. Okay. Continuing on. "P-1 then began to crossover into the #2 S/B lane of White Oak. Guttierrez then stated that he saw the truck come and at the last second tried to avoid P-1." Is that an accurate statement?

A. What was the question?

Q. Sure. So we just read that sentence, "Guttierrez then stated that he saw the truck come and at the last second tried to avoid P-1. I'm asking whether or not that is an accurate statement that the responding officer took of what you reported to them?

A. Yes.

Q. Okay. Continuing on. "The front (R)" -- meaning right -- "corner of the truck collided with P-1 and she fell to the ground." Is that an accurate statement?

A. Yes.”

(Gutierrez Depo., at 19:5-20:17.)

The deposition excerpts presented by the parties are, to say the least, confusing.  To be clear, the Court is in now way criticizing Mr. Gutierrez.  It is the responsibility of counsel, not a nonparty deponent, to take a clear deposition and to present clear deposition excerpts to the Court on summary judgment.  But the Court cannot tell if Mr. Gutierrez is presenting inconsistent testimony or describing two separate accidents. 

Plaintiff testified that she did not see the truck before the accident, that she did not recall any drivers telling her to get out of the way, and that she was not in the street immediately before the accident.  (Vrastil Decl., Exh. 2 [Plaintiff Depo.], at 34:11-22.)

In the complaint, Plaintiff asserts a single cause of action for motor vehicle negligence.  Defendant now moves for summary judgment, arguing: (1) that he did not breach any duty of care to Plaintiff; (2) that any breach did not cause or contribute to the accident; and (3) that Plaintiff assumed the risk by engaging in the inherently dangerous activity of running in the middle of the street at night.  The Court considers each argument in turn.

First, Defendant argues that he did not breach any duty of care.  In support of this argument, Defendant relies on the deposition testimony of Mr. Gutierrez and the expert opinion testimony of his expert witness David A. Krauss, Ph.D.  Dr. Krauss essentially assumes that Plaintiff unexpectedly darted out into traffic, without warning, and that even though Defendant was driving at a safe speed, he did not have time to avoid a collision with Plaintiff.  (Krauss Decl., ¶¶ 6-7.)

That may be so.  But to carry the initial burden of a defendant moving for summary judgment, Defendant must do more than offer a plausible theory of the case consistent with his defense.  Defendant must 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).)  Defendant has not made this showing.  “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.)  Nonparty witness Gutierrez testified that Plaintiff was in the lane for “a good three to five minutes” before the accident and that there were no vehicles in front of Defendant’s truck prior to the accident.  (Gutierrez Depo., at 32:23-33:1, 34:21-24, 35:20-36:6.)  And, as noted above, Plaintiff stated that she was not in the street prior to the accident – although if that were true, it is unclear how the accident occurred at all.  (See also Plaintiff’s Statement of Additional Material Facts, Nos. 29-30.)

In sum, Defendant has offered a plausible version of the events, but he has not shown that Plaintiff cannot establish the element of breach of duty.

Second, Defendant argues that Plaintiff cannot show that his alleged breach of the duty of care caused or contributed to the accident.  But an accident can have more than one cause, and even assuming that Plaintiff’s conduct contributed to the accident in some degree, Defendant has not presented evidence that shows, as a matter of law, that his breach of the duty of care (if it occurred) was not also a substantial factor in bringing about the accident and Plaintiff’s resulting injuries.

Third, Defendant argues that Plaintiff’s action is barred by the doctrine of assumption of the risk.  “‘[A]ssumption of risk’ can be a complete defense to claim of negligence.” (Amezcua v. Los Angeles Harley-Davidson, Inc. (2011) 200 Cal.App.4th 217, 228.)  For the same reasons noted above, however, Defendant has not shown that this defense applies here, and bars Plaintiff’s cause of action in its entirety, as a matter of law.  There may well be issues of comparative fault, but on this record but the Court cannot conclude that Plaintiff’s cause of action is barred as a matter of law by assumption of the risk.     

The motion for summary judgment is denied.

Conclusion 

The Court DENIES Defendant’s motion for summary judgment.

Moving party to give notice.