This case was last updated from Los Angeles County Superior Courts on 05/27/2019 at 03:59:25 (UTC).

ALAN ALEXANDER IRIGOYEN ET AL VS EXEL INC ET AL

Case Summary

On 06/01/2017 ALAN ALEXANDER IRIGOYEN filed a Personal Injury - Motor Vehicle lawsuit against EXEL INC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****3663

  • Filing Date:

    06/01/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Motor Vehicle

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

 

Party Details

Defendants, Respondents, Cross Plaintiffs and Cross Defendants

PERFECTO JOSE ANTONIO

HERNANDEZ CARLOS

GUTIERREZ MARCO ANTONIO SOTO

EXEL INC

DHL SUPPLY CHAIN

DOES 1-50 INCLUSIVE

OVERNIGHT LOGISTICS INC.

EXEL INC DBA DHL SUPPLY CHAIN

CHANG JIM JIMNING

OSBORN BRANDSON DALE

ROES T TO 50

ZOES 1 THROUGH 50 INCLUSIVE

WESTERN GENERAL INSURANCE COMPANY

CHANG JIM NING

ROES 1 TO 50 INCLUSIVE

PERSONAL REPRESENTATIVE OF ESTATE OF MIGUEL ANGEL IRIGOYEN DOE 1

Minors

IRIGOYEN ALAN ALEXANDER

IRIGOYEN MIGUEL ANGEL JR

Guardian Ad Litems

IRIGOYEN JULIAN

GUTIERREZ RASANA

6 More Parties Available

Attorney/Law Firm Details

Defendant and Cross Plaintiff Attorneys

HERZOG JONATHON J. ESQ.

MCCLELLAN BRIAN R.

SLACK & ASSOCIATES

KHODZHAYAN VAKHE ESQ.

PURCELL BYRON MICHAEL

ELLIOTT SHAWN KEVIN

FORMAN STEPHANIE

MAURICE MARIE B

IVIE MCNEILL & WYATT

Defendant, Respondent and Cross Plaintiff Attorneys

MCCLELLAN BRIAN R.

SLACK & ASSOCIATES

KHODZHAYAN VAKHE ESQ.

Cross Defendant Attorneys

OLK SEAN EDWARD

AYOTTE NORMAND A. ESQ.

LEE VICTOR A. ESQ.

Minor Attorney

HALEY MATTHEW D. ESQ.

Other Attorneys

HALEY MATTHEW DANIEL ESQ.

BLEIFER SCOTT DAVID

 

Court Documents

Proof of Service

2/5/2018: Proof of Service

ANSWER TO CROSS-COMPLAINT

2/21/2018: ANSWER TO CROSS-COMPLAINT

Unknown

5/31/2018: Unknown

Motion to Compel Further Discovery Responses

6/29/2018: Motion to Compel Further Discovery Responses

REPLY AND NOTICE OF NON- OPPOSITION MOTION FOR COMPLETE CONSOLIDATION OF CASE NO. BC69993 WITH CASE NO. BC663663 AND REQUEST TO DEEM THE CASE COMPLEX; MEMORANDUM OF POINTS & AUTHORITIES

8/8/2018: REPLY AND NOTICE OF NON- OPPOSITION MOTION FOR COMPLETE CONSOLIDATION OF CASE NO. BC69993 WITH CASE NO. BC663663 AND REQUEST TO DEEM THE CASE COMPLEX; MEMORANDUM OF POINTS & AUTHORITIES

ORDER TRANSFERRING COMPLICATED PERSONAL INJURY PI CASE TO AN INDEPENDENT CALENDAR IC COURT

8/16/2018: ORDER TRANSFERRING COMPLICATED PERSONAL INJURY PI CASE TO AN INDEPENDENT CALENDAR IC COURT

Minute Order

9/18/2018: Minute Order

NOTICE OF ASSOCIATION OF COUNSEL

9/26/2018: NOTICE OF ASSOCIATION OF COUNSEL

Case Management Statement

1/11/2019: Case Management Statement

Notice of Case Reassignment and Order for Plaintiff to Give Notice

1/22/2019: Notice of Case Reassignment and Order for Plaintiff to Give Notice

Notice of Settlement

3/15/2019: Notice of Settlement

Exhibit List

3/15/2019: Exhibit List

Unknown

3/15/2019: Unknown

Notice of Ruling

4/5/2019: Notice of Ruling

ANSWER TO CROSS-COMPLAINT

11/28/2017: ANSWER TO CROSS-COMPLAINT

COMPLAINT FOR DAMAGES

6/1/2017: COMPLAINT FOR DAMAGES

DEMAND FOR JURY TRIAL AND NOTICE OF ADVANCED DEPOSIT OF JURY FEES (CCP 631 (A) ? (C)

9/19/2017: DEMAND FOR JURY TRIAL AND NOTICE OF ADVANCED DEPOSIT OF JURY FEES (CCP 631 (A) ? (C)

Unknown

9/26/2017: Unknown

111 More Documents Available

 

Docket Entries

  • 05/24/2019
  • Notice ( of Continuance of Defendants Overnight Logistics, Inc. and Carlos Hernandez's Motion to Challenge Defendant Marco Gutierrez's Application for Good Faith Determination); Filed by Carlos Hernandez (Defendant); Overnight Logistics, Inc. (Defendant)

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  • 05/10/2019
  • at 08:30 AM in Department 37; Hearing on Motion to Join Necessary Party (In Motion to Challenge Application For Good Faith Settlement) - Not Held - Taken Off Calendar by Party

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  • 05/10/2019
  • at 08:30 AM in Department 37; Hearing on Motion to Challenge the Good Faith of a Settlement (CCP 877.6) - Held - Continued

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  • 05/10/2019
  • Order Appointing Court Approved Reporter as Official Reporter Pro Tempore; Filed by Overnight Logistics, Inc. (Cross-Complainant)

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  • 05/10/2019
  • Minute Order ( (Hearing on Motion to Challenge the Good Faith of a Settlement...)); Filed by Clerk

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  • 05/02/2019
  • Reply (Defendants Overnight Logistics, Inc. and Carlos Hernandez's Reply to Defendant Marco Antonio Soto Gutierrez's Opposition to Motion to Challenge Application for Good Faith Determination); Filed by Carlos Hernandez (Defendant); Overnight Logistics, Inc. (Defendant)

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  • 05/01/2019
  • Joinder to Motion (PLAINTIFFS? JOINDER IN OPPOSITION TO MOTION TO CHALLENGE DEFENDANT MARCO ANTONIO GUTUERREZ?S APPLICATION FOR GOOD FAITH SETTLEMENT); Filed by Julian Irigoyen (Legacy Party); Rasana Gutierrez (Legacy Party); Alan Alexander Irigoyen (Legacy Party) et al.

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  • 04/29/2019
  • Objection (to Defendants Overnight Logistics, Inc's and Carlos Hernandez's Evidence in Support of Their Motion to Challenge Good Faith Determination); Filed by Marco Antonio Soto Gutierrez (Legacy Party)

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  • 04/29/2019
  • Opposition (to Defendants Overnight Logistics, Inc's and Carlos Hernandez Motion to Challenge Good Faith Settlement Determination); Filed by Marco Antonio Soto Gutierrez (Legacy Party)

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  • 04/23/2019
  • Joinder to Motion (Amended Joinder Mx Opp Good Faith Settlement); Filed by Brandson Dale Osborn (Cross-Defendant)

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202 More Docket Entries
  • 07/05/2017
  • APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM, EX PARTE

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  • 07/05/2017
  • Application ; Filed by Plaintiff/Petitioner

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  • 07/05/2017
  • Application ; Filed by Plaintiff/Petitioner

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  • 06/09/2017
  • NOTICE OF REJECTION - APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM

    Read MoreRead Less
  • 06/05/2017
  • Application ; Filed by Plaintiff/Petitioner

    Read MoreRead Less
  • 06/05/2017
  • APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM CIVIL

    Read MoreRead Less
  • 06/05/2017
  • APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM CIVIL

    Read MoreRead Less
  • 06/05/2017
  • Application ; Filed by Plaintiff/Petitioner

    Read MoreRead Less
  • 06/01/2017
  • Complaint; Filed by null

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  • 06/01/2017
  • COMPLAINT FOR DAMAGES

    Read MoreRead Less

Tentative Rulings

Case Number: BC663663    Hearing Date: January 06, 2020    Dept: 37

HEARING DATE: January 6, 2020

CASE NUMBER: BC663663

CASE NAME: Alan Alexander Irigoyen, et al. v. Exel Inc., et al.

MOVING PARTY: Defendant Exel, Inc. and Jose Antonio Perfecto

OPPOSING PARTY: Plaintiffs, Alan Alexander Irogyen and Miguel Angel Irigoyen, Jr.

TRIAL DATE: March 9, 2021

PROOF OF SERVICE: OK

PROCEEDING: Defendants Exel, Inc. and Jose Antonio Perfecto’s Motion to Strike Portions of Plaintiffs’ First Amended Complaint

OPPOSITION: December 20, 2019

REPLY: December 27, 2019

TENTATIVE: Exel and Perfecto’s motion to strike is GRANTED with respect to Plaintiffs’ references to “gross” vehicular manslaughter and to a plea of “guilty.” Exel’s motion to strike the prayer for attorney fees against it is GRANTED, and Perfecto’s motion to strike is DENIED with regard to Plaintiff’s prayer for attorney fees under Code of Civil Procedure section 1021.4 as to Perfecto. Counsel for Exel and Perfecto is to give notice.

Background

This action arises out of a collision between multiple motor vehicles on December 31, 2016 in Los Angeles, California. Plaintiffs, Alan Alexander Irigoyen, by and through his guardian ad litem Rosana Gutierrez and Miguel Angel Irigoyen, Jr, by and through his guardian ad litem Julian Irigoyen, allege that all defendants were liable for causing the motor vehicle collision which killed their parents, Altagracia Gutierrez and Miguel Angel Irigoyen. (“decedents”)

According to the complaint, filed June 1, 2017, decedents were travelling south on Interstate 5 through Kern County, California when they were involved in a multiple vehicle collision with vehicles driven by defendant, Jose Antonio Perfecto (“Perfecto”), Marco Antonio Soto Gutierrez (“Gutierrez”), Carlos E. Hernandez (“Hernandez”). Defendants Exel, Inc. (“Excel”) and Overnight Logistic, Inc. (“Overnight”) were the owners of the vehicles individual defendants operated.

On September 19, 2017, Exel brought a cross-complaint, alleging (1) equitable indemnity, (2) declaratory relief and contribution and (3) total equitable indemnity against all cross-defendants, on the grounds that their operation of their respective motor vehicles caused or contributed to the collision. On January 30, 2018, Hernandez and Overnight brought a cross-complaint for indemnification, apportionment of fault and declaratory relief.

On September 26, 2017, Perfecto filed a cross-complaint, alleging equitable indemnity, declaratory relief and total equitable indemnity against all cross-defendants. On August 15, 2018, the court ordered that this action be consolidated with the matter Marco Antonio Soto Gutierrez et al v. Exel Inc., et al.

On October 15, 2019, the court granted Plaintiffs’ motion for leave to amend, allowing Plaintiffs to allege a claim for attorney’s fees based on Code of Civil Procedure section 1021.4. Plaintiffs’ First Amended Complaint (“FAC”) also now alleges that Perfecto had pled “no contest” to a charge of “gross vehicular manslaughter” pursuant to Penal Code section 192.

Exel and Perfecto now move to strike Plaintiffs’ prayer for attorney’s fees from the FAC and the FAC’s reference to “gross” vehicular manslaughter. Plaintiffs oppose the motion.

Meet and Confer

Effective January 1, 2018, a party filing a motion to strike must meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion and identify all of the specific allegations that it believes are subject to be stricken and identify with legal support the basis of the deficiencies. (Code Civ. Proc., § 435.5, subd. (a).)

Exel and Perfecto submit the declaration of their attorney, Paul J. Shardlow, to demonstrate that they have met their statutory meet and confer obligations. Shardlow declares that he met and conferred with Plaintiffs’ counsel in person after the hearing on Plaintiffs’ motion for leave to amend. (Shardlow Decl., ¶ 4.) Shardlow further declares that the parties agreed after meeting and conferring to bring the issues in this motion to the court’s attention given their unique nature. (Id.)

Accordingly, Exel and Perfecto have demonstrated that they sufficiently met and conferred prior to bringing the instant motion.

Discussion

  1. Legal Standard

Pursuant to Code of Civil Procedure, section 436, “the court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” The grounds for a motion to strike must “appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437.)

Motions to strike are used to challenge defects in the pleadings not subject to demurrer. (Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 529 [recognizing that an objection that the complaint failed to state facts sufficient to constitute a cause of action is ground for a general demurrer, not a motion to strike.].) Any party may move to strike the whole or any part of a pleading within the time allotted to respond to the pleading. (Code Civ. Proc., § 435, subd. (b)(1).) The allegations of a complaint “must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.) The court “read[s] allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume[s] their truth.” (Clauson v. Sup. Ct. (1998) 67 Cal.App.4th 1253, 1255 (Clauson).)

Here, Exel and Perfecto move to strike the word “gross” from the FAC’s references to “gross vehicular manslaughter” on the grounds that the Penal Code does not recognize a crime of “gross vehicular manslaughter.” Further, Exel and Perfecto move to strike Plaintiffs’ prayer for attorney’s fees on the grounds that it has been made prematurely given that the matter has not proceeded to trial. Finally, Exel and Perfecto move to strike the prayer for attorney’s fees as to Perfecto on the grounds that, as an entity defendant, Code of Civil Procedure section 1021.4 could never apply.

  1. Gross Vehicular Manslaughter

Exel and Perfecto contend that “gross” should be stricken from the FAC on page 5, lines 9 and 11 because the California Penal Code does not recognize a crime for “gross” vehicular manslaughter. (Motion, 9.) Exel and Perfecto contend that the Penal Code recognizes “vehicular manslaughter” and “with gross negligence” as a basis for same, but that there is no crime simply known as “gross vehicular manslaughter.” (Id.)

California Penal Code section 192 provides as follows:

“Manslaughter is the unlawful killing of a human being without malice. It is of three kinds:

  1. Voluntary – upon a sudden quarrel or heat of passion.

  2. Involuntary - in the commission of an unlawful act, not amounting to a felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection. This subdivision shall not apply to acts committed in the driving of a vehicle.

  3. Vehicular”

Section 192 then proceeds to define vehicular manslaughter as driving a vehicle either with or without gross negligence.

Plaintiffs contend that “gross vehicular manslaughter” is recognized as a crime in California and rely on People v. Nicolas (2017) 8 Cal.App.5th 1165 (Nicolas) in support of this contention. In Nicolas, the court discussed certain issues applicable after Defendant was found guilty of “vehicular manslaughter with gross negligence.” (Id. at 1169.) The Court of Appeal found that the jury was properly instructed regarding the “elements of gross vehicular manslaughter,” but found that the jury was erroneously instructed by lowering the standard of proof for the alleged acts. (Id. at 1175-1176.) As such, Nicolas is not directly applicable to the instant action, wherein Exel and Perfecto ask the court to strike “gross” from Plaintiffs’ Complaint well before trial on this action.

However, the court agrees with Exel and Perfecto that “gross” vehicular manslaughter is improperly pled and must be stricken because it is contrary to Penal Code section 192. In interpreting a statute, ‘the plain language of the statute establishes what was intended by the Legislature.” (People v. Statum (2002) 28 Cal.4th 682, 689-690.) “When the statutory language is clear and unambiguous, there is no need for construction and courts should not indulge in it.” (Id.; see also People v. Overstreet (19860 Cal.3d 891, 895.)

Here, Penal Code section 192 begins with the phrase “manslaughter is the unlawful killing of a human being without malice.” Subsequently, this statute states that manslaughter compromises of three kinds and then proceeds to define each kind. As to vehicular manslaughter, Penal Code section 192 proceeds to further define it by establishing that it compromises of both vehicular manslaughter with gross negligence and then without. As such, the plain language of section 192 implies that the crime it discusses is either “manslaughter” or “vehicular manslaughter,” notwithstanding Nicolas’ reference to jury instructions for “gross vehicular manslaughter.”

Accordingly, Exel and Perfecto’s motion to strike is granted with respect to references to “gross” vehicular manslaughter. The word “gross” is to be stricken from the FAC on page 5, lines 9 and 11.

  1. The Phrase “for which he pled guilty.”

Plaintiff also move to strike the phrase “for which he pled guilty” because Perfecto pled “no contest” not guilty. The FAC properly alleges this in paragraph 18. Consequently, the phrase “for which he pled guilty” will be stricken. If plaintiff requests permission to file an amendment to replace “guilty” with “no contest” it will be granted.

  1. Prayer for Attorney’s Fees under Code of Civil Procedure section 1021.4

On October 15, 2019, the court granted Plaintiffs’ motion for leave to amend and allowed Plaintiffs to file the instant FAC, in which they alleged a prayer for attorney’s fees pursuant to Code of Civil Procedure section 1021.4. Code of Civil Procedure section 1021.4 provides as follows:

“In an action for damages against a defendant based upon that defendant's commission of a felony offense for which that defendant has been convicted, the court may, upon motion, award reasonable attorney's fees to a prevailing plaintiff against the defendant who has been convicted of the felony.”

Exel and Perfecto now contend that Plaintiffs’ prayer for attorney’s fees must be stricken because it is premature and contrary to Code of Civil Procedure, section 1021.4’s express language. (Motion, 9-11.) Exel also contends that at a minimum, the prayer for attorney’s fees must be stricken as to Exel because, as an entity defendant, it was not and could not be convicted for the underlying felony offense. (Motion, 6-9.)

Plaintiffs contend that the prayer for attorney’s fees is proper because it is a prayer, not a final adjudication that Plaintiffs are entitled to same. (Opposition, 3-4.) Plaintiffs further contend that a prayer for attorney’s fees as to Exel is proper because Exel is liable under the respondeat superior doctrine. (Opposition, 4-11.)

On reply, Exel and Perfecto reiterate their arguments that Exel cannot be held liable for Perfecto’s “no contest” plea and that neither defendant can be held liable for attorney’s fees based on the plain meaning of Code of Civil Procedure, section 1021.4. (Reply, 4-9.) However, these arguments must fail, in part, because allowing Plaintiffs to plead a request for attorney’s fees does not amount to allowing Plaintiffs to hold Exel and Perfecto liable for attorney fees. This is much the same as pleading a request for attorney fees on a breach of contract claim.

First, it is undisputed that the plain language of Code of Civil Procedure, section 1021.4, permits the court to award attorney fees upon a motion to a prevailing party. However, the instant motion to strike does not address whether the court will be awarding attorney fees. Instead, a prayer for attorney’s fees, as with Plaintiffs’ other prayers for various damages, is simply an allegation that Plaintiffs believe they should be awarded attorney fees if, after trial, they do prevail against Exel and Perfecto. Exel and Perfecto have not alleged, nor can they, allege any prejudice to them by Plaintiffs simply being allowed to allege attorney fees at this stage of the litigation given that an allegation is not equivalent to a determination that Plaintiffs are entitled to attorney fees.

Second, with respect to Exel’s contention that no prayer for attorney fees can be stated against it under Code of Civil Procedure section 1021.4, the court agrees.

It is undisputed that there are no cases or statutory authority governing whether vicarious liability applies to Code of Civil Procedure section 1021.4. Exel and Perfecto contend that vicarious liability does not apply because the statute explicitly states that it applies to “defendant who has been convicted of a felony.” (Motion, 6-9.) On the other hand, Plaintiffs contend that their prayer for attorney’s fees is based on a theory of respondeat superior, as the FAC alleges that Perfecto was acting in the course and scope of his employment at the time of the collision. (FAC, ¶ 5.) Plaintiffs further contend that Code of Civil Procedure section 1021.4 should be found to include vicarious liability for employers because several similar statutes explicitly exclude vicarious liability, and because the Legislative intent behind Code of Civil Procedure section 1021.4 supports such an interpretation. (Opposition, 6-11.)

Plaintiffs rely on Wood v. McGovern (1985) 167 Cal.App.3d 772 (Wood) for the proposition that Code of Civil Procedure section 1021.4’s legislative intent, in civil matters, is to provide attorney fees to victims of crimes. However, Wood primarily involved a question of whether attorney fees could be awarded under the section where the tort occurred prior to the statute but which was not decided until after its effective date. It also involved the necessity for the court to exercise its discretion. However, it does not speak directly to the issue of whether attorney fee can be awarded against the criminal defendant’s employer based on a respondeat superior theory.

The Wood court noted that the Victim’s Bill of Rights, which provided for enactment of Code of Civil Procedure section 1021.4, stated “it is the unequivocal intention of the People of the State of California that all persons who suffer losses as a result of criminal activity shall have the right to restitution from the persons convicted of the crimes for losses they suffer.” (Id. at 774 -- emphasis added). The court continued “[t]o add attorney's fees to the jury award of damages does not transmute the civil lawsuit into a criminal proceeding.” (Id. at 778.) It is a statutory penalty imposed against the defendant convicted of a felony. “It is the usual rule that statutory penalties do not follow merely as part of respondent superior. Beck v. Arthur Murray, Inc. (1966) 245 Cal.App.2d 976, 982 (emphasis original.)

Given the foregoing, the court finds that Plaintiffs’ pra yer for attorney’s fees is not improper and may be maintained. As the Wood court found, one of the main intentions behind enactment of Code of Civil Procedure section 1021.4 was to provide restitution to all persons who suffered losses, “from the persons convicted of the crimes” that caused these losses. The plain language of Code of Civil Procedure section 1021.4 does not include a limitation on the definition of “persons,” contrary to Exel and Perfecto’s assertions. Further, the legislative intent of Code of Civil Procedure section 1021.4, as Wood instructs, was not to penalize only the natural persons who have committed crimes, but to compensate the victims of these crimes, without limitation as to the source of the compensation.

Plaintiff’s reliance on Labor Code section 2802(a) and L.A. Police Protective League v. City of L.A. (1994) 27 Cal. App. 4th 168, 177 is misplaced. Section 2802 does not deal with respondeat superior liability. Instead it imposes an indemnification obligation on the employer for all costs incurred by the employee and does not speak to damages or penalties caused by the employee. Similarly, the L.A. Police Protective League case addresses the non-liability under section 2802 for defending against criminal actions.

Accordingly, Exel’s motion to strike is GRANTED with regard to Plaintiff’s prayer for attorney fees under Code of Civil Procedure section 1021.4 as to Exel, and Perfecto’s motion to strike is DENIED with regard to Plaintiff’s prayer for attorney fees under Code of Civil Procedure section 1021.4 as to Perfecto.

Conclusion

Exel and Perfecto’s motion to strike is GRANTED with respect to Plaintiffs’ references to “gross” vehicular manslaughter and to a plea of “guilty.” Exel’s motion to strike the prayer for attorney fees against it is GRANTED, and Perfecto’s motion to strike is DENIED with regard to Plaintiff’s prayer for attorney fees under Code of Civil Procedure section 1021.4 as to Perfecto. Counsel for Exel and Perfecto is to give notice.

Case Number: BC663663    Hearing Date: December 09, 2019    Dept: 37

HEARING DATE: December 9, 2019

CASE NUMBER: BC663663

CASE NAME: Alan Alexander Irigoyen, et al. v. Exel Inc., et al.

MOVING PARTIES: Rosana Gutierrez, as Guardian Ad Litem to Alexander Irigoyen

OPPOSING PARTIES: None

TRIAL DATE: March 9, 2021

PROOF OF SERVICE: OK

MOTION: Petition to Approve Compromise of Pending Action;

OPPOSITION: None

TENTATIVE: Plaintiffs’ Petition to Approve Compromise is GRANTED.

Background

This action arises out of a collision between multiple motor vehicles on December 31, 2016 in Los Angeles, California. Plaintiffs, Alan Alexander Irigoyen, by and through his guardian ad litem Rosana Gutierrez and Miguel Angel Irigoyen, Jr, by and through his guardian ad litem Julian Irigoyen (“Irigoyen Plaintiffs”), allege that all defendants were liable for causing the motor vehicle collision which killed their parents, Altagracia Gutierrez and Miguel Angel Irigoyen. (“decedents”)

According to the complaint, filed June 1, 2017, decedents were travelling south on Interstate 5 through Kern County, California when they were involved in a multiple vehicle collision with vehicles driven by defendant, Jose Antonio Perfecto (“Perfecto”), Marco Antonio Soto Gutierrez (“Gutierrez”), Carlos E. Hernandez (“Hernandez”). Defendants Exel, Inc. (“Excel”) and Overnight Logistic, Inc. (“Overnight”) were the owners of the vehicles individual defendants operated.

Multiple cross-complaints were later filed by and against various drivers involved in the accident, each claiming indemnity and or contribution. The Irigoyen Plaintiffs reached a partial settlement with Gutierrez only on or about March 15, 2019. On November 27, 2019, the court granted summary judgment for defendant Brandon Dale Osburn. Plaintiff’s complaint and the various cross-complaints are otherwise still proceeding.

The Irigoyen Plaintiffs settled with Gutierrez for $40,000. According to the Petition to Confirm Minor’s Compromise settlement is divided equally between the two plaintiffs. $10,000 is to be paid to minor Alexander Irigoyen.

Petition to Approve Compromise of Pending Action (Alexander Irigoyen)[1]

NAME OF MINORS: Alexander Irigoyen (age 15)

GUARDIAN AD LITEM: Rosana Gutierrez

NAME OF DEFENDANTS: Marco Gutierrez

Settlement $ 20,000.00

Medical Expenses $ 0.00

Attorney’s Fees $ 10,000.00

Litigation Costs $ 0.00

TOTAL TO BE PAID TO MINOR $ 10,000.00

A. General Requirements

Petition on MC-350? Yes

B. Type of Injury

Medical records documenting injuries? No (attachment 8)

Negotiated reduction in medical liens? N/A

Injuries completely healed? N/A

C. Handling of Funds

Disposal of Settlement Funds: N/A

D. Attorney’s Fees & Litigation Costs

Attorney’s Fees Requested? Yes

Attorney Declaration? [CRC 7.955(b)] Yes

Copy of Retention Agreement? No (Attachment 18a indicates refusal to do so because of attorney-client privilege).

Litigation costs requested? No

E. Conclusion

The petition contains all required information and is APPROVED.

ANALYSIS:

Proposed Settlement Amount

A claim by or against a minor may be settled through compromise only with the approval of the court. A petition for approval must be presented to the court by the minor’s guardian. (Code Civ. Proc. § 372; see Probate Code §§ 2500-2507, 3413-3605.)

The court should consider the following factors: the circumstances of the incident, particularly the facts bearing on the payor’s liability and the minor’s damages; the amount of the proposed settlement; the method of payment; the nature of the injury and the minor’s current medical status (the petition should include a recent medical report); and the amount of attorneys’ fees being requested (typically, but not required to be 25%). (California Benchbook, Civil Proceedings Before Trial, § 5.54(a).)

Before the hearing the court should make a preliminary determination of whether the proposed settlement and the method of payment appear reasonable in relation to the potential liability and the nature and extent of the injuries. It is especially important to determine whether the minor’s condition is permanent, and whether it is stable or likely to worsen. (Ibid.) The court should also make a preliminary determination of whether the costs, expense and attorney’s fees requested appear reasonable. (Ibid.)

Petitioner’s counsel Matthew Haley represents that the settlement as to Gutierrez was in the best interests of all parties because Gutierrez was not significantly negligent, if at all. (Attachment 14a.) Accordingly, Petitioner’s counsel represents that they settled for the defendant’s policy limits of $40,000 and that half, or $20,000 will go to each minor. Petitioner’s counsel further attests as follows: “None of the funds received will go to attorney's fees, '8 of the fund or $ 10,000.00 will be used to defray previously incurred expenses. The balance of $ 10,000.00 will be deposited into a blocked account.” (Attachment 14a.)

Based on the relevant factors and evidence submitted, the court finds that the amounts requested for minor Alexander Irigoyen is reasonable.

Fees and Costs

The amount of fees to be awarded is within the sound discretion of the court. (Padilla v. McClellan (2001) 93 Cal.App.4th 1100, 1107.) No fees are to be paid out of this settlement. In this compromise, funds are allocated only to offset some of the costs already incurred. The costs stated appear reasonable.

Petitioner’s counsel submits a document titled “Settlement Breakdown” (attachment 14b) which appears to be a break-down of legal costs for court fees, depositions and other services in connection with this action. The total amount is $34,985.99. Finally, Petitioner’s counsel declined to produce his retainer agreement “because of attorney-client privilege.” (attachment 18a). Attachment 18a indicates that the minor “will pay only part of the costs $10,000” and that the agreement provides for repayment of legal costs “first” out of any recovery. (Id.)

Conclusion

Given the foregoing, Plaintiffs’ Petition to Approve Compromise is GRANTED.


[1] “Attachment 11” to the petition indicates that the other Plaintiff, Miguel, is now 18 years old. As such, there is only petition with respect to Alan Irigoyen, who is still a minor. The attachment indicates that the total settlement is $40,000 and $20,000 is due to Alan Irigoyen.

Case Number: BC663663    Hearing Date: November 27, 2019    Dept: 37

HEARING DATE: November 27, 2019

CASE NUMBER: BC663663

CASE NAME: Alan Alexander Irigoyen, et al. v. Exel Inc., et al.

MOVING PARTY: Defendant Kevin Osborn

OPPOSING PARTY: None

TRIAL DATE: March 5, 2019

PROOF OF SERVICE: OK

PROCEEDING: Defendant Dale Osburn’s Motion for Summary Judgment

OPPOSITION: None.

REPLY: None.

TENTATIVE: Dale Osborn’s Motion for Summary Judgment is GRANTED. Counsel for the moving party to give notice.

Background

This action arises out of a collision between multiple motor vehicles on December 31, 2016 in Los Angeles, California. Plaintiffs, Alan Alexander Irigoyen, by and through his guardian ad litem Rosana Gutierrez and Miguel Angel Irigoyen, Jr, by and through his guardian ad litem Julian Irigoyen, allege that all defendants were liable for causing the motor vehicle collision which killed their parents, Altagracia Gutierrez and Miguel Angel Irigoyen. (“decedents”)

According to the complaint, filed June 1, 2017, decedents were travelling south on Interstate 5 through Kern County, California when they were involved in a multiple vehicle collision with vehicles driven by defendant, Jose Antonio Perfecto (“Perfecto”), Marco Antonio Soto Gutierrez (“Gutierrez”), Carlos E. Hernandez (“Hernandez”). Defendants Exel, Inc. (“Excel”) and Overnight Logistic, Inc. (“Overnight”) were the owners of the vehicles individual defendants operated.

On September 19, 2017, Exel brought a cross-complaint, naming moving defendant Brandon Dale Osburn as a cross-defendant. (“Osburn”) Exel’s cross-complaint alleges (1) equitable indemnity, (2) declaratory relief and contribution and (3) total equitable indemnity against all cross-defendants, on the grounds that their operation of their respective motor vehicles caused or contributed to the collision. (Exhibit G to Appendix of Exhibits.) On January 30, 2018, Hernandez and Overnight brought a cross-complaint for indemnification, apportionment of fault and declaratory relief. The Hernandez and Overnight cross-complaint also names Osburn as a cross-defendant. (Exhibit I to Appendix of Exhibits.)

On September 26, 2017, Perfecto filed a cross-complaint, naming Osburn, alleging equitable indemnity, declaratory relief and total equitable indemnity. (Exhibit H to Appendix of Exhibits.)

On April 5, 2018, Gutierrez brought his own cross-complaint for indemnity, equitable apportionment and declaratory relief. (Exhibit J to Appendix of Exhibits.) The Gutierrez cross-complaint names Osburn as a cross-defendant. On August 15, 2018, the court ordered that this action be consolidated with the matter Marco Antonio Soto Gutierrez et al v. Exel Inc., et al. The consolidated action, brought by Plaintiffs Marco Antonio Soto Gutierrez, Lilia Soto Moreno, Emily Liliana Soto Moreno, and Lucero Vanessa Soto Moreno, also names Osburn as a defendant and alleges that his actions in negligently operating his vehicle caused or contributed to the motor vehicle accident. (Exhibit K to Appendix of Exhibits.)

Exel and Perfecto also filed a cross-complaint against Osburn in the Gutierrez and Moreno plaintiffs’ action, alleging equitable indemnity, declaratory relief and total equitable indemnity. (Exhibit L to Appendix of exhibits.) Gutierrez also filed a cross-complaint against Osburn in the Gutierrez and Moreno plaintiffs’ action, alleging indemnity, equitable apportionment and declaratory relief. (Exhibit M to Appendix of exhibits.)

Osborn now moves for summary judgment against all Plaintiffs and Cross-Complainants on the grounds that a cause of action for negligence cannot be proved against him.

No opposition to the motion has been filed by any party.

Factual Background

The following facts are largely undisputed relevant to the instant motion.

This action arose from a multi-vehicle collision (the “Subject Accident”) that occurred on December 31, 2016 on southbound Interstate 5 in California. (Separate Statement of Material Facts (“DSS”), ¶ 1; Exhibit C (Carlos Hernandez Responses to Form Interrogatories, number 20.1.) At the time of the Subject Accident, Osburn was the driver of a 2008 Honda Civic. (Osburn Declaration in Support of Motion, ¶¶ 3-4; Exhibit D to Appendix of Exhibits.) Jim-Chin Chang (“Chang”), cross-defendant on Osburn’s cross-complaint, was driving the vehicle immediately in front of Osburn prior to the Subject Accident. (see Cross-Complaint of Osburn, filed February 2, 2018; DSS ¶ 3.)

At the time of the Subject Accident, there was heavy fog on the roadway. (DSS, ¶ 17; Osburn Decl., ¶ 7; Exhibit E at p. 19:1-19, 36:11-19; Exhibit A at p. 29:2-11, Exhibit P at p. 38:17-39:1, Exhibit B at p. 11:13-23, 17:12-24.) Prior to the Subject Accident occurring, Osburn engaged his hazard lights due to the heavy fog. (DSS ¶ 18; Osburn Decl., ¶ 8; Exhibit A at p. 33:19-34:14.) Osburn’s vehicle was stopped before the Subject Accident occurred because there were vehicles stopped in front of Osburn’s vehicle. (DSS, ¶ 19; Osburn Decl., ¶¶ 9-10.; Exhibit A at p. 36:11-14; Exhibit B at p. 72:23-73:17.) Chang was also stopped prior to the Subject Accident and Chang recalls that Osburn was also stopped during the entire period. (DSS, ¶¶ 19-20; Exhibit A, 63:23-64:6.)

Decedents’ vehicle first impacted the rear of Chang’s vehicle. (DSS ¶ 21.) As a result of this impact, Chang’s vehicle was pushed into the rear of Osburn’s vehicle. (DSS ¶ 22; Exhibit A at p. 48-14-21; Exhibit B. at p. 72:25-73:8.)

Sometime after these collisions, Gutierrez stopped his vehicle. (DSS ¶ 23; Exhibit E at p. 27:9-11.) After Gutierrez stopped his vehicle, Exel’s vehicle, driven by Perfecto, impacted Gutierrez’s vehicle. (DSS ¶ 25; Exhibit E at p. 32:12-16.) Exel’s vehicle, driven by Perfecto, then impacted decedents’ vehicle, which had been stopped due to the impact with Chang’s vehicle. (DSS ¶ 26; Exhibit P at p. 66:9-12; Exhibit B at p. 23:24-24:20; 28:14-16.

Officer Richard Anthes, who responded to and investigated the accident, found no evidence that Osburn caused the Subject Accident. (DSS, ¶ 27; Exhibit B at p. 111:6-8; 113:8-13.)

Discussion

I. 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.) Pursuant to Code of Civil Procedure, section 437c, subdivision (a):

A party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding. The motion may be made at any time after 60 days have elapsed since the general appearance in the action or proceeding of each party against whom the motion is directed or at any earlier time after the general appearance that the court, with or without notice and upon good cause shown, may direct…. The motion shall be heard no later than 30 days before the date of trial, unless the court for good cause orders otherwise. The filing of the motion shall not extend the time within which a party must otherwise file a responsive pleading.

(Code Civ. Proc., § 437c, subd. (a).) A motion for summary judgment may 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., § 437c, subd. (c).)

“The motion shall be supported by affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken. The supporting papers shall include a separate statement setting forth plainly and concisely all material facts that the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence. The failure to comply with this requirement of a separate statement may in the court’s discretion constitute a sufficient ground for denial of the motion.” (Code Civ. Proc., § 437c, subd. (b)(1); see also Cal. Rules of Court, rule 3.1350(c)(2) & (d).)

In analyzing motions for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent's claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294 (Hinsley).) Pursuant to Code Civ. Proc., § 437c, subdivision (p)(2):

A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff or cross-complainant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.

(Code Civ. Proc., § 437c, subd. (p)(2).) The court must “view the evidence in the light most favorable to the opposing party and accept all inferences reasonably drawn therefrom.” (Hinesley, 135 Cal.App.4th at p. 294; Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389 [Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.”].) A motion for summary judgment must be denied where the moving party’s evidence does not prove all material facts, even in the absence of any opposition (Leyva v. Sup. Ct. (1985) 164 Cal.App.3d 462, 475).

Osburn moves for summary judgment against all Plaintiffs and Cross-Complainants. Osburn contends that he is entitled to summary judgment because there is no triable issue of material fact as to whether Osburn failed to exercise due care and whether Plaintiffs were harmed as a result of any action by Osburn. Osburn points to various discovery responses submitted by all Plaintiffs for the proposition that they have not produced any evidence that he failed to exercise due care in owning, maintaining, controlling, operating or driving his vehicle. (DSS, ¶¶ 28-29.) Osburn also points to Plaintiff’s discovery responses for the proposition that Plaintiffs have not produced evidence to demonstrate that they were harmed as a result of Osburn’s conduct. (Id.)

Osburn additionally contends that he is entitled to summary judgment against all cross-complainants because he is not liable to Plaintiffs. Plaintiffs do not oppose the motion.

II. Analysis

As a general principle, “(a) 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.” (Civil Code § 1714.)

Negligence consists of the following elements: (1) the defendant owed the plaintiff a duty of care, (2) the defendant breached that duty, and (3) the breach proximately caused the plaintiff’s damages or injuries. (Lueras v. BAS Home Loan Servicing, LP (2013) 221 Cal.App.4th 49, 62.) “Whether a duty of care exists is a question of law to be determined on a case-by-case basis.” (Ibid.)

Osburn contends that he is entitled to summary judgment because Plaintiffs cannot establish that he breached any duty to them. Alternatively, Osburn contends that Plaintiffs cannot establish that they were harmed as a result of his conduct.

Here, it is undisputed that at the time of the Subject Accident, there was heavy fog on the roadway. (DSS, ¶ 17; Osburn Decl., ¶ 7; Exhibit E at p. 19:1-19, 36:11-19; Exhibit A at p. 29:2-11, Exhibit P at p. 38:17-39:1, Exhibit B at p. 11:13-23, 17:12-24.) It is also undisputed that prior to the Subject Accident occurring, Osburn engaged his hazard lights due to the heavy fog. (DSS ¶ 18; Osburn Decl., ¶ 8; Exhibit A at p. 33:19-34:14.) Further, Osburn’s vehicle was stopped before the Subject Accident occurred because traffic stopped ahead of Osburn’s vehicle. (DSS, ¶ 19; Osburn Decl., ¶¶ 9-10.; Exhibit A at p. 36:11-14; Exhibit B at p. 72:23-73:17.) Chang was also stopped prior to the Subject Accident and Chang recalls that Osburn was also stopped during the entire period. (DSS, ¶¶ 19-20; Exhibit A, 63:23-64:6.)

No opposition has been filed to Osburn’s motion.

Therefore, the court finds that no triable issue of fact exists as to whether Osburn breached any duty to Plaintiffs. The various deposition testimony submitted by Osburn, taken as a whole, establish that Osburn acted reasonably in response to the flow of traffic and weather conditions by engaging his hazard lights and slowing to a stop when traffic in front of him also stopped. Further, Osburn has also submitted unopposed evidence that the investigating officer, Athes, did not find any evidence to support the proposition that he caused or contributed to the accident. (Accordingly, it is undisputed that Osburn was not negligent in operating his vehicle, and no triable issue of material fact exists as to Osburn’s alleged negligence. Further, Athes also testified at deposition that Osburn was not found to have caused or contributed to the Subject Accident. (DSS, ¶ 27; Exhibit B at p. 111:6-8; 113:8-13.)

Accordingly, the motion for summary judgment is granted.

III. Conclusion

Osburn’s Motion for Summary Judgment is GRANTED. Osburn is to give notice.