Judge: William A. Crowfoot, Case: 19STCV15354, Date: 2022-08-31 Tentative Ruling

Case Number: 19STCV15354    Hearing Date: August 31, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.         BACKGROUND

On May 10, 2019, plaintiffs Wipha Monterio, individually and as successor in interest to Alphonso Monterio (“Decedent”), Angelean Monterio, Albert Monterio, Alphonso Monterio, II, and Alphonso Monterio, Jr. (collectively, “Plaintiffs”) filed this action against defendants LG Motorsports, Inc. (“LG Motorsports”), Robert Finley (“Finley”), and Robert Early King, Jr. (“King”).

On November 4, 2019, Plaintiffs filed the operative First Amended Complaint (“FAC”) asserting two causes of action for wrongful death and a survival action.

On December 22, 2021, Plaintiffs named I-15 Mobile Repair, LLC (“I-15 Mobile Repair”) as Doe 1.

On March 2, 2022, defendants King and I-15 Mobile Repair (collectively, “Defendants”) filed a Motion for Summary Judgment (“MSJ”).

On May 12, 2022, Plaintiffs filed their opposition to the MSJ, but they filed their responsive Separate Statement earlier, on May 4, 2022.

On May 15, 2022, Defendants filed their reply to the MSJ.

On May 23, 2022, the Court held the Defendants’ MSJ hearing and granted the motion.  

On July 6, 2022, Plaintiffs filed a Notice of Intent to Move for New Trial.

On July 19, 2022, Plaintiffs filed a Memorandum of Points and Authorities to support their instant motion for new trial.

On August 8, 2022, Defendants filed their opposition to the motion for a new trial.

On August 17, 2022, Plaintiffs filed their reply.

II.        LEGAL STANDARD

“A new trial is defined as ‘a re-examination of an issue of fact in the same court after a trial and decision by a jury, court, or referee.’ (Code Civ. Proc. s 656.)” (Auto Equity Sales, Inc. v. Superior Court of Santa Clara County (1962) 57 Cal.2d 450, 458.)

“[T]he authority to seek, and the power of the court to grant, a new trial is statutory, and proceedings therefor must be strictly pursued in the manner provided by law in order that litigants may not lose their rights.” (Telefilm, Inc. v. Superior Court in and for Los Angeles County (1949) 33 Cal.2d 289, 294.)

“The right to a new trial is purely statutory, and a motion for a new trial can be granted only on one of the grounds enumerated in the statute.” (Fomco, Inc. v. Joe Maggio, Inc. (1961) 55 Cal.2d 162, 166.)

Under Code of Civil Procedure section 657, “any . . . decision may be modified or vacated, in whole or in part, and a new or further trial granted on all or part of the issues, on the application of the party aggrieved, for any of the following causes, materially affecting the substantial rights of such party:

1.   Irregularity in the proceedings of the court, jury or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial.

2.   Misconduct of the jury; and whenever any one or more of the jurors have been induced to assent to any general or special verdict, or to a finding on any question submitted to them by the court, by a resort to the determination of chance, such misconduct may be proved by the affidavit of any one of the jurors.

3.   Accident or surprise, which ordinary prudence could not have guarded against.

4.   Newly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial.

5.   Excessive or inadequate damages.

6.   Insufficiency of the evidence to justify the verdict or other decision, or the verdict or other decision is against law.

7.   Error in law, occurring at the trial and excepted to by the party making the application.”

(Code Civ. Proc., § 657.)

“A trial court has broad discretion in ruling on a new trial motion . . . .” (Fassberg Construction Co. v. Housing Authority of City of Los Angeles (2007) 152 Cal.App.4th 720, 752.)

However, “[a] new trial shall not be granted upon the ground of insufficiency of the evidence to justify the . . . decision, nor upon the ground of excessive or inadequate damages, unless after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the court . . . clearly should have reached a different . . . decision.” (Code Civ. Proc., § 657 [emphasis added].)

“When a new trial is granted, on all or part of the issues, the court shall specify the ground or grounds upon which it is granted and the court's reason or reasons for granting the new trial upon each ground stated.” (Code Civ. Proc., § 657.)

III.      DISCUSSION

Plaintiffs move for a new trial on the following grounds under the Code of Civil Procedure section 657: (a) irregularity in the proceedings, (b) accident or surprise, (c) inadequate damages, (d) insufficiency of the evidence, and (e) error in law. (Notice of Motion, filed July 6, 2022, p. 2:4-13.)

          Plaintiffs argue that the Court, as shown in the minute order dated May 23, 2022 (“May 23 Minute Order”), “applied the wrong standard” in granting the Defendants’ motion for summary judgment. (Memorandum of Points and Authorities, filed July 19, 2022 (“Motion”), p. 9:1-3.)

“[A] motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 473c, subd. (c) [emphasis added].)

“In determining if the papers show that there is no triable issue as to any material fact, the court shall consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgment shall not be granted by the court based on inferences reasonably deducible from the evidence if contradicted by other inferences or evidence that raise a triable issue as to any material fact.” (Code Civ. Proc., § 473c, subd. (c).)

“The pleadings ‘“‘set the boundaries of the issues to be resolved at summary judgment.’ [Citations.]”’ [Citation.]” (Nativi v. Deutsche Bank National Trust Co. (2014) 223 Cal.App.4th 261, 289 (“Nativi”).) Stated differently, “‘[t]he materiality of a disputed fact is measured by the pleadings [citations] . . . .’ [Citations.]” (Id. at p. 290.)

Here, the FAC alleged the following against the Defendants (King and Doe 1 (I-15 Mobile Repair, LLC)).

On or about April 6, 2018, King, Decedent Alphonso Monterio (“Monterio”), and Defendant Finely were at the California Department of Transportation Pole #8-368504. (FAC, ¶¶ 14, 16.)

Monterio and King were working as a team for the purposes of maintenance services at that location, and their teamwork included (among other things) watching for safety hazards. (FAC, ¶ 15.)

          Monterio, at the “direction” of King, was adjusting the brakes on a 2013 Freightliner Wabash Trailer (the “Vehicle”) driven by Finley. (FAC, ¶¶ 14, 16.)

          “As . . . Monterio was adjusting Defendants’ breaks,” Finley “before insuring [that Monterio] had completed the adjustment and had completely removed himself from underneath [the Vehicle],” started “operating [the Vehicle] . . . .” (FAC, ¶ 17.) Finley “began driving and drove over [Monterio], thereby causing significant injury and ultimately death to [Monterio].” (FAC, ¶ 17.)

          On May 23, 2022, the Court granted the Defendants’ motion for summary judgment after finding that its analysis of the factors articulated in Rowland v. Christian (1968) 69 Cal.2d 108 (“Rowland”) did not support a finding of duty.

In Rowland, the California Supreme Court held that, in the absence of a statutory provision declaring an exception, no exception to the principle that a person is liable for injuries caused by his failure to exercise reasonable care should be made unless clearly supported by public policy. (Rowland, supra, 69 Cal.2d at p. 112.) “A departure from this fundamental principle involves the balancing of a number of considerations; the major ones are the [1] foreseeability of harm to the plaintiff, [2] the degree of certainty that the plaintiff suffered injury, [3] the closeness of the connection between the defendant's conduct and [4] the injury suffered, [5] the moral blame attached to the defendant's conduct, the policy of preventing future harm, [6] the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and [7] the availability, cost, and prevalence of insurance for the risk involved.” (Id. at pp. 112-113; May 23 Minute Order, p. 7, first paragraph [listing the Rowland factors].)

“Based on the Rowland factors [above],” this Court “conclude[d] that even if King owed [Monterio/Decedent] a duty by initially asking Decedent to help with the brake adjustment, the scope of the duty was limited to the duration of the job and terminated when Decedent confirmed with both Finley and King that Finley was ‘good to go’, i.e., the job had been completed. Once the job was completed, there was no expectation that Decedent would have gone under Finley’s truck again.” (May 23 Minute Order, p. 9, second paragraph [emphasis added].)

The Court made the following additional findings.

“Plaintiffs emphasize that the last time King saw Decedent, Decedent indicated that he ‘got the wrong tool.’ (Plaintiffs’ Additional Material Fact (“AMF”) Nos. 64, 66.) Plaintiffs argue that this exchange is evidence that King knew Decedent had not yet finished the job for Finley. Plaintiffs assert, without evidence, that Decedent was getting a tool for the purposes of further adjusting Finley’s brakes, and assertion supported by the fact that Decedent went back under the truck. In hindsight, one can suppose that was the purpose of getting the tool. However, what matters here is whether Defendants at the time reasonably should have understood Decedent’s statement to negate Decedent’s earlier statements that Finley was ‘good to go.’ This speculation as to what Decedent intended to communicate to hearers who had previously been told that Finley was good to go, by Decedent whom Defendants knew had other repair jobs waiting at the location, is insufficient to raise a triable issue regarding the scope and temporal limits of King’s duty to Decedent.” (May 23 Minute Order, p. 9, third paragraph [emphasis added].)

Plaintiffs concede that “[i]n ruling on the motion for summary judgment, the Court held that the scope of the duty owed by Defendant King ‘was limited to the duration of the job and terminated when Decedent confirmed with both Finley and King that Finley was ‘good to go’ . . . .” (Motion, p. 2:1-3.)

“However,” they argue, “Plaintiffs presented evidence that when questioned by officers immediately after the Subject Incident, Defendant King admitted that shortly after starting on Mr. Finley’s vehicle, the Decedent returned to his vehicle at which time he told Defendant King that he ‘got the wrong tool’—thereby indicating that the job was not completed—and that this was the last time that Defendant King saw the Decedent prior to his death.” (Motion, p. 2:4-8 [emphasis in the original].)

Plaintiffs then argue: “If [the above] evidence is taken as true—as is required in ruling on a Motion for Summary Judgment—it establishes that the job and therefore Defendant King’s duty had not terminated at the time of the Subject Incident.” (Motion, p. 2:9-11.)

Below is the excerpt (from the deposition of Officer Isaac Subia) that the Plaintiffs are referring to:

1 [King] told Mr. Al, Party #2 (Monterio), to adjust

2 the brake for him because they help each other out on jobs

3 and were kind of working together that day. [King] told Party

4 #2 (Monterio) that axle #4, driver's side, needs to be

5 adjusted.

6 "[King] started to work on the truck located directly

7 to the north of his service truck in the #3 stall. [King] saw

8 Party #2 (Monterio) walk over to the rear of Vehicle #1A

9 (Wabash.) [King] then saw Party #2 (Monterio) return back to

10 the passenger side of his service truck a few minutes

11 later.

12 "Party #2 (Monterio) looked over at [King] and said,

13 'Got the wrong tool.' [King] wasn't sure where party #1

14 (Finley) was standing when he heard Party #2 (Monterio)

15 say 'Got the wrong tool.' [King] wasn't paying attention to

16 where Party #1 (Finley) was standing at that point.

17 "[King] then saw another driver, Witness #5 (Roque)

18 contact Party #2 (Monterio) at his service truck. [King]

19 overheard Party #2 (Monterio) and Witness #5 (Roque)

20 talking about a payment. That was the last [King] saw of

21 Party #2 (Monterio) because [King] went under the truck in the

22 #3 stall to do repairs. [King] didn't know where Party #1

23 (Finley) was located at that point because [King] wasn't

24 paying attention to where he was.

25 "He believes Party #1 (Finley) was probably

(Evid. Code, § 452, subd. (d) [providing that a court may take judicial notice of any court records]; declaration of Daniel Miller, filed May 12, 2022 (“Miller Decl.”), Exh. 4, deposition of Officer Isaac Subia (“Subia Decl.”), p. 37:1-25.)

          However, the excerpt above does not support the Plaintiffs’ arguments.

First, there are no facts to infer that Monterio’s comment to King that he “got the wrong tool” took place before or in the middle of Monterio working on Finley’s Vehicle. Therefore, the Plaintiffs cannot argue that King “admitted” that “shortly after starting on Mr. Finley’s vehicle,” Monterio returned to his service truck and told King that he got the wrong tool.

Second, and in fact, the officer’s testimony about what Finley told the officer suggests the opposite; that Monterio was “looking for a tool” after he finished working on Finley’s Vehicle, not before or in the middle of working on it. See the officer’s additional testimony below:

Page 26

2 . . . . Party #2 (Monterio) then

3 walked over to his service truck and got some tools.

4 Party #2 (Monterio) asked [Finley] to release the trailer

5 brakes. [Finley] then climbed up into his cab and only released

6 the trailer brakes. The truck brakes were still set and

7 the truck was off.

8 "Party #2 (Monterio) did not take Party #1

9 (Finley's) keys. [Finley] still had the keys to Vehicle #1

10 (Freightliner) in his possession. [Finley] wasn’t sure if Party

11 #2 (Monterio) placed wheel chocks in front of his tires.

12 [Finley] did not look to see if chocks were down and he wasn't

13 paying attention to that.

14 "[Finley] did not see any cones or signs placed in

15 front or around his vehicle to indicate that his truck was

16 being worked on. [Finley] saw Party #2 (Monterio) walk towards

17 the rear of his trailer on the driver's side. He walked

18 back towards Party #2 (Monterio) and saw Party #2

19 (Monterio) between axle #4 and axle #5 of his trailer.

20 "Party #2 (Monterio) was almost completely under

21 [Finley’s] trailer. [Finley] wasn't sure of Party #2 (Monterio's)

22 exact position while Party #2 (Monterio) was working under

23 the trailer. [Finley] just glanced at Party #2 (Monterio)

24 working. He wasn't standing there watching Party #2

25 (Monterio) work.

[Finley] wasn't sure how long he was back

Page 27

1 towards the rear of his trailer watching Party #2

2 (Monterio) working, but it wasn't long. [Finley] just went back

3 there to check on Party #2 (Monterio.)

4 "[Finley] then walked toward the front of his vehicle

5 and was no longer watching Party #2 (Monterio). He

6 noticed Witness #1 (King) had walked away. A few minutes

7 later Witness #1 (King) came back and began talking with

8 Witness #1 (King) near the front of Witness #1 (King's)

9 service truck.

10 "Another driver, Witness #5 (Roque), approached

11 where Party #2 (Monterio) was parked. [Finley] looked over and

12 Party #2 (Monterio) was no longer under the trailer and

13 was standing at the open passenger side door of the

14 service truck.

15 "Witness #5 (Roque) was talking to Party #2

16 (Monterio.) He wasn't sure what exactly was said, but it

17 sounded like Witness #5 (Roque) either wanted a discount

18 on a payment or wanted his money back. Witness #5 (Roque)

19 then walked away. [Finley] then approached Party #2 (Monterio.)

20 Party #2 (Monterio) was still standing at the open

21 passenger side door of his service truck. He wasn't

22 exactly sure what Party #2 (Monterio) was doing in his

23 vehicle, but it looked like Party #2 (Monterio) was

24 looking for a tool.

25 "[Finley] then walked directly up to Party #2

Page 28

1 (Monterio) and asked him, 'Am I good to go?' Party #2

2 (Monterio) then looked at him and stated, 'Yeah, you good

3 to go.'

4 "[Finley] then walked over to Witness #1 (King)

5 standing near his service truck and asked Witness #1

6 (King) how to get out of the scale facility. Witness #1

7 (King) told him that he needed to make a left, then make a

8 U-turn at the stop sign and go through what he thinks was

9 called lane 5.

(Miller Decl., Exh. 4 – Subia Decl., pp. 26:2-28:9 [emphasis added].)

Therefore, while there are no facts from the officer’s deposition that support the Plaintiffs’ argument that Monterio’s work on Finley’s Vehicle “was not completed” at the time Monterio told King that he got the wrong tool, Finley’s statements to the officer allow the inference that Monterio was looking for tools after he had already finished working on Finley’s Vehicle, not in the middle of working on the Vehicle as Plaintiffs argue.

Plaintiffs also argue the following:

Further, although Defendants presented testimony from Defendant King and Robert Finley that the Decedent indicated Mr. Finley was “good to go,” such evidence is the very definition of a “disputed fact.” The evidentiary weight and/or quantity of evidence proffered by Defendant is irrelevant on summary judgment. A single statement or piece of evidence is sufficient to overcome summary judgment.

(Motion, p. 2:12-16.)

The question is not whether the Court, as trier of fact, would resolve the facts in favor of the Plaintiffs. The question is whether a reasonable trier of fact could do so. Here, a reasonable trier of fact could conclude that the Decedent began the repair, then came back to get a different tool (notifying Defendant King in the process) and that this was their final interaction together, thereby rejecting Robert Finley and Defendant King’s self-serving claims years after the Subject Incident. This is before even taking into consideration the fact that the Decedent was a seasoned mechanic with several decades of experience repairing commercial vehicles and the claim that he went under Mr. Finley’s truck after telling Mr. Finley and Defendant King that he was done with the repairs, and without any warning to them, strains the bounds of credulity.

(Motion, p. 5:3-11 [italics in original].)

However, “‘[a] party who challenges the sufficiency of the evidence to support a particular finding must summarize the evidence on that point, favorable and unfavorable, and show how and why it is insufficient. [Citation.]’ [Citation.] Where a party presents only facts and inferences favorable to his or her position, ‘the contention that the findings are not supported by substantial evidence may be deemed waived.’ [Citation.]” (Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728, 738 [italics in original, underlining added].)

Here, Plaintiffs have failed to produce any evidence from which the Court (or a reasonable jury) could infer that the phrase “got the wrong tools” meant (1) Monterio was still working on Finley’s Vehicle when he made that statement and (2) that King’s alleged duty towards Monterio had not terminated when the latter made that statement. Yet Plaintiffs repeatedly ask the Court to accept inferences (that are not even supported by the evidence they rely on) just because those inferences favor them. The Court declines to do so.

Plaintiffs further argue the following:

Further, the court erred in failing to address Plaintiffs’ claim that since this was Defendant King’s customer and repair, it was his duty to ensure that safety measures were taken to protect anyone performing repairs including chocking the tires, placing cones, or taking possession of Mr. Finley’s keys. It is clear that there was either a failure to communicate with Decedent or some type of miscommunication between Decedent and Robert Finley. Such safety measures exist for the purpose of preventing injuries under these exact types of circumstances.

(Motion, pp. 2:24-3:2.)

Where a Defendant fails to address one of Plaintiff’s theories of liability in their moving papers they are not entitled to summary judgment as to that cause of action.

(Motion, p. 14:13-14.)

However, “[m]oving defendants have ‘“the burden on summary judgment of negating only those ‘“‘theories of liability as alleged in the complaint’”’ and [are] not obliged to “‘“‘refute liability on some theoretical possibility not included in the pleadings,’”’” simply because such a claim was raised in plaintiff's declaration in opposition to the motion for summary judgment. [Citation.]’ [Citation.]” (Nativi, supra, 223 Cal.App.4th at p. 290 [italics in original].)

Here, the Court has not found anything in the FAC alleging that King’s duty towards Monterio was based on the fact that Finley was “King’s customer” and the adjustment of Finley’s Vehicle’s brakes was “King’s repair.”

Instead, the FAC alleges that King’s duty to Monterio arose from (1) the two individuals’ agreement to work as a team, (2) Monterio was acting as King’s agent when he was adjusting the Vehicle’s brakes, (3) King’s “conduct and representations” to Finley, and (4) King placed Monterio in harm’s way by directing Monterio to adjust the brakes. (FAC, ¶¶ 26, 27.)

To the extent that Plaintiffs are arguing that by giving him his “customer and repair” without ensuring safety measures, King placed Monterio in harm’s way, the Court addressed that argument in the May 23 Minute Order, and actually in Plaintiffs’ favor:

Defendants argue King did not create a peril or increase any pre-existing risk to Decedent. (Motion, 16:4-9.) Defendants emphasize that King and Decedent ran their own businesses. King testified in his deposition that customers did not pay King for repairs that Decedent performed, nor did they pay Decedent for work that King performed. (Defs.’ Ex. B, 36:10-37:5; 39:3-16.) King and Decedent never worked on a repair for a vehicle together and King did not hire Decedent to make repairs like an employee. (Id., 39:3-16.) Defendants also submit Plaintiffs’ discovery responses in which it is conceded that Decedent “worked as a team: and was not in a “traditional employer-employee relationship.” (Defs.’ Ex. F, Response to SROG No. 38.)

Defendants argue Decedent was free to refuse King’s request or to adjust the brakes in any manner, including taking Finley’s keys, chocking the tires, or placing cones. This is unpersuasive. By asking Decedent to adjust Finley’s brakes, King created the opportunity for Decedent to be exposed to the peril.

(May 23 Minute Order, p. 5, the last paragraph [emphasis added].)

 Nevertheless, the Court concluded, “even if King owed Decedent a duty by initially asking Decedent to help with the brake adjustment, the scope of the duty was limited to the duration of the job and terminated when Decedent confirmed with both Finley and King that Finley was ‘good to go’, i.e., the job had been completed. Once the job was completed, there was no expectation that Decedent would have gone under Finley’s truck again.” (May 23 Minute Order, p. 9, second paragraph.)

“A new trial shall not be granted upon the ground of insufficiency of the evidence to justify the . . . decision, nor upon the ground of excessive or inadequate damages, unless after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the court . . . clearly should have reached a different . . . decision.” (Code Civ. Proc., § 657 [emphasis added].)

Here, after weighing the evidence, the Court is not convinced from the entire record, including reasonable inferences, that the Court clearly should have reached a different decision other than granting the Defendants’ motion for summary judgment.

Accordingly, the Court denies the Plaintiffs’ motion.

IV.      CONCLUSION

            The Motion for New Trial is DENIED.

Moving party to give notice.

            Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court’s website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.