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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

    Read MoreRead Less
  • 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

    Read MoreRead Less
  • 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

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Tentative Rulings

Case Number: BC663663    Hearing Date: April 23, 2021    Dept: 37

HEARING DATE: April 23, 2021

CASE NUMBER: BC663663

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

MOVING PARTY: Plaintiffs, Alan Alexander Irigoyen, a minor, by and through his guardian ad litem Rosana Gutierrez and Miguel Angel Irigoyen Jr., a minor, by and through his guardian ad litem, Julian Irigoyen

OPPOSING PARTIES: Defendants/Cross-Complainants/Cross-Defendants, Carlos Hernandez and Overnight Logistics, Inc.

TRIAL DATE: None

PROOF OF SERVICE: OK

MOTION: Plaintiff’s Motion for Leave to File Second Amended Complaint

OPPOSITION: April 12, 2021

REPLY: April 16, 2021

TENTATIVE Plaintiffs’ motion is denied. Plaintiffs are to give notice.

Background

This action arises out of a collision between multiple motor vehicles on December 31, 2016 in Los Angeles, California (“Incident”). 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. (“Exel”) and Overnight Logistic, Inc. (“Overnight”) were the owners of the vehicles individual defendants operated.

On August 18, 2020, the court denied Hernandez and Overnight’s Motion for Summary Judgment or, in the alternative, Summary Adjudication as to the Irigoyen Plaintiffs’ Complaint, the Gutierrez Plaintiffs’ Complaint and all related cross-complaints.

Plaintiffs now move for leave to file a Second Amended Complaint (“SAC”). Hernandez and Overnight opposes the motion.

Discussion

  1. Legal Standard 

California law holds that leave to amend is to be granted liberally, to accomplish substantial justice for both parties.  (Code Civ. Proc., § 473, subd. (a); Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 488-489 (Hirsa)) “Assuming proper notice, the trial court has wide discretion in determining whether to allow the amendment, but the appropriate exercise of that discretion requires the trial court to consider a number of factors: ‘including the conduct of the moving party and the belated presentation of the amendment.   

The law is well settled that a long-deferred presentation of the proposed amendment without a showing of excuse for the delay is itself a significant factor to uphold the trial court's denial of the amendment.”  (Leader v. Health Ind. of America, Inc. (2001) 89 Cal.App.4th 603, 613.)  “If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend….”  (Morgan v. Sup. Ct. (1959) 172 Cal.App.2d 527, 530.)  Prejudice includes “delay in trial, loss of critical evidence, or added costs of preparation.”  (Solit v. Tokai Bank, Ltd. New York Branch (1999) 68 Cal.App.4th 1435, 1448.)  “The power to permit amendments is interpreted very liberally as long as the plaintiff does not attempt to state facts which give rise to a wholly distinct and different legal obligation against the defendant.”  (Herrera v. Superior Court (1984) 158 Cal.App.3d 255, 259.)  The court, however, has the discretion to deny an amendment that fails to state a cause of action or defense.  (Foxborough v. Van Atta (1994) 26 Cal.App.4th 217, 230.) 

  1. Analysis

  1. Procedural Considerations 

    A party requesting leave to amend must comply with California Rules of Court, rule 3.1324.  A motion to amend a pleading before trial must state which allegations were deleted from and which allegations were added to the previous pleading and identify the changes “by page, paragraph, and line number.”  (Cal. Rules of Court, rule 3.1324(a).)  

    According to Plaintiffs’ Notice of Motion, the proposed SAC seeks to make the following changes: “(1) remove allegations related to MARCO ANTONIO SOTO GUTIERREZ as a named defendant pursuant to his good faith settlement. Thus, the First Cause of Action would apply only to the negligence of CARLOS E. HERNANDEZ and his employer OVERNIGHT TRUCKING, INC, (2) remove language about Defendant CARLOS E. HERNANDEZ in the course and scope of his employment with OVERNIGHT TRUCKING, causing the red Toyota occupied by Plaintiffs’ decedents to come to a stop. The other allegations of negligence include: HERNANDEZ being inattentive, failing to maintain proper control of his vehicle, and failing to allow other vehicles a safe way to pass remain.”

    Further, Plaintiffs submit the declaration of their counsel, Matthew D. Haley (“Haley”) in support of their motion. Exhibit A to the Haley Declaration is a copy of the proposed SAC, while Exhibit B is a copy of the FAC with the proposed changes marked.

    Thus, Plaintiffs have demonstrated their compliance with Rules of Court, rule 3.1324(a).

Additionally, “[a] separate declaration must accompany the motion and must specify: (1) The effect of the amendment; (2) Why the amendment is necessary and proper; (3) When the facts giving rise to the amended allegations were discovered; and (4) The reasons why the request for amendment was not made earlier.”  (Cal. Rules of Court, rule 3.1324(b).)   

The Haley Declaration does not attest to any of the requirements of California Rules of Court, rule 3.1324(b). Thus, Plaintiffs have failed to comply with Rule 3.1324(b)’s requirements. However, since failure to comply with Rule 3.1324(b) is not grounds for Plaintiffs’ motion to be denied, the court will analyze the merits of the parties’ substantive arguments.

  1. Substantive Considerations¿

    Generally, motions for leave to amend will be granted unless the party seeking to amend has been dilatory in bringing the proposed amendment before the court and the delay in seeking leave to amend will cause prejudice to the opposing party.¿ (See¿Atkinson v. Elk Corp.¿(2003)¿109 Cal.App.4th 739, 761 [“ ‘[I]t is an abuse of discretion to deny leave to amend where the opposing party was not misled or prejudiced by the amendment.’ [Citations.]¿ Furthermore, ‘it is irrelevant that new legal theories are introduced as long as the proposed amendments “relate to the same general set of facts.” [Citation.]’ ”];¿Hirsa,¿supra,¿118 Cal.App.3d at p. 490.)¿ Indeed, “courts are much more critical of proposed amendments ... when offered after long unexplained delay or on the eve of trial [citations], or where there is a lack of diligence, or there is prejudice to the other party [citations].”¿ (Permalab-Metalab¿Equipment Corp. v. Maryland¿Cas. Co.¿(1972) 25 Cal.App.3d 465, 472.)¿¿¿

    Plaintiffs contend that the proposed SAC is proper because it makes the following changes: (1) the SAC removes allegations regarding Gutierrez, who is no longer a party, and removes allegations that Hernandez was acting in the course and scope of his employment for Overnight (2) the second cause of action is amended to remove allegations of Exel’s negligence in addition to its liability for the negligence of Perfecto who allegedly was acting in the course and scope of his employment, (3) the SAC adds a new third cause of action for Exel’s own negligence in it training and supervision of its drivers and adds a prayer for punitive damages. Those new allegations are purportedly made against Exel for ratification of Perfecto’s actions, based on deposition testimony of Exel’s Person Most Qualified (“PMQ”) in February 2020. (Motion, 11-12.) According to Plaintiffs, Defendants are not prejudiced by these amendments because the SAC does not make material changes as to allegations against Hernandez and Overnight. (Motion, 21.) In the amended notice of motion, Plaintiff’s indicate the amendments regarding Perfecto and Exel are no longer necessary due to a settlement with those parties. Additionally, Plaintiffs contend that the allegations against Perfecto and Exel are timely

    In opposition, Hernandez and Overnight contend that Plaintiffs’ motion should be denied because the submitted evidence does not support the new allegations in the SAC. (Opposition, 3-5.) Additionally, Hernandez and Overnight contend that the motion should be denied because Plaintiffs have not explained why the request for leave to amend was not made earlier, as the facts in support of the amended allegations were available earlier. (Opposition, 6-7.) Finally, Hernandez and Overnight contend that granting this motion would prejudice them, because trial is five months away and expansion of the scope of the litigation will significantly increase Hernandez and Overnight’s costs in preparing for trial and make it “highly unlikely” that the case will resolve “any time soon.” (Opposition, 7-8.)

    In reply, Plaintiffs contend that their motion must be granted because the facts giving rise to the proposed amendments were not available prior to filing the lawsuit, as “the sequence of minor collisions” leading to the collision with Plaintiffs’ vehicle was previously unclear. (Reply, 7-8.) Additionally, Plaintiffs contend that they did not delay with the motion as the motion was initially reserved for August 3, 2019, but was later continued. (Reply, 8-9.) Finally, Plaintiffs contend that granting the motion will not prejudice defendants as the only additional discovery regarding these allegations would be expert discovery, which has not yet occurred. (Reply, 9-10.)

    Trial in this matter is approximately 5 months away, and numerous discovery motions are scheduled each of the next two months on the various cross-complaints in this matter.

    The court has reviewed the proposed SAC and evidence submitted in support of this motion through the Haley Declaration. Based on this review, many of the allegations that were recently discovered supporting the amendment relate to allegation against Perfecto and Exel who have settled. The allegations that Overnight is directly responsible for the actions of Hernandez while he was not acting in the course and scope of employment are difficult to understand. Also, they do not seem to significantly add to the allegations already made. Plaintiffs’ showing fails to adequately explain why these amendments are necessary. Unless Plaintiffs can adequately explain that, Plaintiffs’ motion will be denied.

    Conclusion

    Plaintiffs’ motion is denied.

Case Number: BC663663    Hearing Date: December 23, 2020    Dept: 37

HEARING DATE: December 23, 2020

CASE NUMBER: BC663663

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

TRIAL DATE: March 9, 2021

PROOF OF SERVICE: OK

MOTION: Defendant’s Motion for Summary Judgment

MOVING PARTY: Defendant, Cross-Complainant, Cross-Defendant Jin-Ming Chang

OPPOSING PARTIES: Plaintiffs, Alan Alexander Irigoyen, Miguel Angel Irigoyen, Jr.; Plaintiffs Marco Antonio Soto Gutierrez, Lilia Soto Moreno, Emily Liliana Soto Moreno, and Lucero Vanessa Soto Moreno (“Gutierrez and Moreno Plaintiffs”); and Cross-Complainants Exel, Inc., Jose Antonio Perfecto, Carlos Hernandez, Overnight Logistics, Inc., and Marco Antonio Soto Gutierrez (“Cross-Complainants”)

OPPOSITION: None as of December 21, 2020

REPLY: No opposition filed.

TENTATIVE: Chang’s motion is GRANTED. Chang is to give notice and prepare a proposed judgment.

Background

This action arises out of a collision between multiple motor vehicles on December 31, 2016 in Los Angeles, California (“Incident”). 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. (“Exel”) and Overnight Logistic, Inc. (“Overnight”) were the owners of the vehicles individual defendants operated.

On September 19, 2017, Exel brought a cross-complaint with respect to Plaintiff’s Complaint. Exel’s cross-complaint alleges (1) equitable indemnity, (2) declaratory relief and contribution and (3) total equitable indemnity against all cross-defendants, including Chang on the grounds that their operation of their respective motor vehicles caused or contributed to the collision. On September 26, 2017, Perfecto brought his own cross-complaint with respect to Plaintiff’s Complaint, alleging the same causes of action against the same cross-defendants.

On December 27, 2017, Hernandez and Overnight brought a cross-complaint for (1) apportionment of fault, (2) declaratory relief and (3) indemnification. This cross-complaint also names Chang as a cross-defendant.

On January 30, 2018, Exel and Perfecto brought a cross-complaint for (1) equitable indemnity, (2) declaratory relief and contribution (3) total equitable indemnity with respect to Hernandez and Overnight’s Complaint. This cross-complaint also names Chang as a cross-defendant.

On February 8, 2018, Osburn brought a cross-complaint for apportionment, declaratory relief and indemnification alleging that all cross-defendants caused or contributed to the Incident. Osburn’s cross-complaint names Chang as a cross-defendant.

On April 5, 2018, Gutierrez brought a cross-complaint for indemnity, equitable apportionment and declaratory relief, naming Chang 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 (“Gutierrez Plaintiffs”) names Chang as a defendant. 

On May 25, 2018, Exel filed a cross-complaint for indemnity, declaratory relief and contribution and total equitable indemnity in the Gutierrez Plaintiffs’ action, naming Chang. On June 26, 2018, Gutierrez filed a cross-complaint as to Exel’s cross-complaint in the Gutierrez Plaintiffs’ action for indemnity and contribution, also naming Chang.

On December 16, 2020, the Gutierrez Plaintiffs filed a request for dismissal as to Chang.

Chang now moves for summary judgment as to each complaint and cross-complaint against him. Because the Gutierrez Plaintiffs have sought to dismiss Chang, the court’s ruling will not address the Gutierrez Plaintiffs’ action against him. Chang’s motion is unopposed.

Discussion

  1. Legal Authority

“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) or where the opposition is weak (Salasguevara v. Wyeth Labs., Inc. (1990) 222 Cal.App.3d 379, 384, 387).   

  1. Factual Summary

This action arises from a multi-vehicle accident (the “Incident”) that occurred on December 31, 2016 on the southbound Interstate 5. (Separate Statement in Support of Motion (“DSS”), ¶ 1; Ex. A (Chang Depo), 21:3-6; Ex. B (Anthes Depo), 10:9-13, 14:2-3, 62:4-6; Ex. C (Hernandez Responses to Form Interrogatories), no. 20.1.)

At the time of the Incident, Osburn was the driver of a 2008 Honda Civic. (DSS ¶ 2) Chang was the driver of a 2006 Lexus ES330. (DSS ¶ 3; Ex. A (Chang Depo), 21:18-23.) Miguel Angel Irigoyen was the driver of a 2013 Toyota Corolla, and Altagracia Gutierrez was a passenger in Mr. Irigoyen’s vehicle. (DSS ¶ 4; Ex. F (Irigoyen Complaint), ¶¶ 10-11.) Perfecto was the driver of a Volvo truck owned by Exel. (DSS ¶ 5.) Gutierrez was the driver of a Ford F-150, and the remaining Gutierrez Plaintiffs were his passengers. (DSS ¶ 6; Ex. E (Gutierrez Depo), 13:4-9, 30:23-25.) Hernandez was the driver of a 2012 Tractor with a 2017 Wabash Trailer, owned by Overnight. (DSS ¶ 7; Ex. C (Hernandez Responses to Form Interrogatories), No. 20.2.)

At the time of the Incident, there was heavy fog on the roadway. (DSS ¶ 17; Ex. P (Hernandez Depo), 38:17-39:1; Ex. Q (Osburn Responses to Special Interrogatories), Nos. 1, 3, 4.) Prior to the Incident occurring, Osburn engaged his hazard lights due to the heavy fog on the roadway. (DSS ¶ 18; Ex. D (Osburn Responses to Form Interrogatories), No. 20.8; Ex. Q (Osburn Responses to Special Interrogatories), Nos. 1, 4.) Osburn’s vehicle was stopped in front of Chang’s vehicle before the Incident occurred. (DSS ¶ 19; Ex. O (Chang Responses to Form Interrogatories), No. 20.5, 20.8.) Chang’s vehicle came to a stop prior to the Incident. (DSS ¶ 20.)

After Chang’s vehicle came to a stop, Mr. Irigoyen’s vehicle impacted the rear of Chang’s vehicle. (DSS ¶ 21; Ex. D (Osburn Responses to Form Interrogatories), No. 20.8; Ex. Q (Osburn Responses to Special Interrogatories) No. 1, 4.) Because of this impact, Chang’s vehicle was pushed into Osburn’s vehicle. (DSS ¶ 22; Ex. D (Osburn Responses to Form Interrogatories), No. 20.8.)

Following these two impacts, Gutierrez stopped his vehicle. (DSS ¶ 23.) After Gutierrez stopped his vehicle, Exel’s vehicle, driven by Perfecto, impacted Gutierrez’s vehicle. (DSS ¶ 25.)

Plaintiffs have produced no evidence through their written discovery responses that Chang failed to exercise due care in the operation of his motor vehicle in connection with the Incident, or that Chang’s actions have caused damages to Plaintiffs. (DSS ¶¶ 28-29; Exhibits R-CC.)

  1. 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.)   

Chang Chang Further, Chang contends that he is also entitled to summary judgment as to all cross-complaints because he is not liable to Plaintiffs and there is no actual controversy to support a claim for declaratory relief.

As discussed above, Chang has submitted evidence to demonstrate that he was stopped prior to the Incident behind Osburn. Chang has also demonstrated that he was impacted from behind by Mr. Irigoyen’s vehicle and that sometime after this impact, Perfecto separately impacted Gutierrez’s vehicle and Mr. Irigoyen’s vehicle.

Thus, viewing the evidence submitted in the light most favorable to Plaintiffs, the court finds that there is no triable issue of material fact with regard whether Chang negligently operated his vehicle in connection with the Incident. Chang was stopped prior to the Incident and was then impacted by Mr. Irigoyen’s vehicle. Chang has demonstrated that he was not involved in Perfecto’s vehicle subsequently impacting Plaintiffs’ vehicles, and no party has filed an opposition to challenge Chang’s assertions. For these reasons, Chang’s motion is granted with respect to all Plaintiffs’ complaints against him.

Further, because Chang has demonstrated that no triable issue of material fact exists with respect to Plaintiffs’ claims against him for negligence, the court finds that no triable issue of material fact exists regarding any cross-complainant’s claims against Chang for indemnity or contribution. Additionally, because Chang has demonstrated that no triable issue of material fact exists regarding Plaintiffs’ claims against him, the court finds that no actual controversy exists for purposes of any cross-complainant’s claims for declaratory relief. For these reasons, Chang’s motion is also granted with respect to all cross-complaints against him.

Conclusion

Chang’s motion is GRANTED. Chang is to give notice and prepare a proposed judgment.

Case Number: BC663663    Hearing Date: November 24, 2020    Dept: 37

HEARING DATE: November 24, 2020

CASE NUMBER: BC663663

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

TRIAL DATE: None

PROOF OF SERVICE: OK

MOTION: Defendant’s Motion for Protective Order as to Requests for Admissions, Sets Three

MOVING PARTY: Defendant/Cross-Complainant/Cross-Defendant, Jose Antonio Perfecto

OPPOSING PARTIES: Defendants/Cross-Complainants/Cross-Defendants, Carlos Hernandez and Overnight Logistics, Inc.

OPPOSITION: September 17, 2020; Joint Separate Statement November 16, 2020

REPLY: September 22, 2020

RECOMMENDATION: Perfecto’s motion for protective order is granted as to requests for admission numbers 45-54 and 118-119. Perfecto’s motion is otherwise denied, and the request for sanctions is denied. Perfecto is to give notice.

MOTION: Defendant’s Motion for Protective Order as to Special Interrogatories, Sets Three

MOVING PARTY: Defendant/Cross-Complainant/Cross-Defendant, Jose Antonio Perfecto

OPPOSING PARTIES: Defendants/Cross-Complainants/Cross-Defendants, Carlos Hernandez and Overnight Logistics, Inc.

OPPOSITION: September 17, 2020; Joint Separate Statement November 16, 2020

REPLY: September 22, 2020

TENTATIVE: Perfecto’s motion for protective order is granted as to special interrogatories 50-53 and 54-69. Perfecto’s motion is otherwise denied, and the request for sanctions is denied. 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 (“Incident”). 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. (“Exel”) 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 Defendants Hernandez and Overnight as cross-defendants. 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. On January 30, 2018, Hernandez and Overnight brought a cross-complaint for indemnification, apportionment of fault and declaratory relief.

On April 5, 2018, Gutierrez brought his own cross-complaint for indemnity, equitable apportionment and declaratory relief 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 (“Gutierrez Plaintiffs”) names Hernandez and Overnight as defendants.

On February 21, 2020, Perfecto filed the instant motions for protective order as to Hernandez and Overnight’s Requests for Admissions, Sets Three and Special Interrogatories, Sets Three.

On August 18, 2020, the court denied Hernandez and Overnight’s Motion for Summary Judgment or, in the alternative, Summary Adjudication as to the Irigoyen Plaintiffs’ Complaint, the Gutierrez Plaintiffs’ Complaint and all related cross-complaints.

On September 30, 2020, Perfecto’s motions for protective order first came on for hearing. The court continued the motions by 60 days and ordered the parties to meet and confer and file a joint separate statement on the specific requests that they sought a proactive order on. Separately, the court also continued Exel’s motions for protective order to November 24, 2020. On November 16, 2020, the parties filed their Joint Separate Statement.

The court notes that on November 19, 2020, Perfecto and Exel’s counsel filed a supplemental declaration in support of the instant motions for protective order. The Supplemental Declaration of Jonathan J. Herzog indicated that after meeting and conferring, Hernandez and Overnight’s counsel agreed to withdraw its discovery as to Exel and that the parties no longer needed the court’s ruling on Exel’s motions for protective order.

Thus, pursuant to the Supplemental Herzog Declaration, the court will now rule on only Perfecto’s motions for protective order.

Meet and Confer 

A motion for a protective order under Code of Civil Procedure, section 2025.420 must be accompanied by a meet and confer declaration.  (Code Civ. Proc., § 2025.420, subd. (a).) )  “[A] reasonable and good faith attempt at informal resolution entails something more than bickering with [opposing] counsel….  Rather, the law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate.”  (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1294.)  “A determination of whether an attempt at informal resolution is adequate involves the exercise of discretion.”  (Stewart v. Colonial W. Agency (2001) 87 Cal.App.4th 1006, 1016, internal ellipses omitted.)  Where a party fails to make any real effort at informal resolution, a particularly egregious failure may justify an immediate and outright denial of further discovery.  (Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 433-34, citing Townsend v. Superior Court (1998) 61 Cal.App.4th 1431, 1437.)   

The court previously continued Perfecto’s motions for protective order 60 days because Perfecto and his counsel had not demonstrated that they sufficiently met and conferred prior to filing these motions pursuant to Code of Civil Procedure, section 2025.420.

According to the Supplemental Herzog Declaration, Herzog met and conferred with Hernandez and Overnight’s counsel, Marie Maurice, on October 28, 2020 by phone and on November 3 and November 9, 2020 by email. (Supplemental Herzog Decl. ¶¶ 5, 8-9, Exhibits A-C) According to Herzog, the parties agreed over the course of their meet and confer efforts to limit the motions for protective order to the following:

  1. Special Interrogatories: 50-69, 78-102

  2. Requests for Admission: 43-56, 61-76, 99-129, 131, 135-138, 145-157

The court finds the Supplemental Herzog Declaration sufficient for purposes of Code of Civil Procedure section 2025.520. Thus, the below ruling will address only these special interrogatories and requests for admission outlined in the Supplemental Herzog Declaration.

Discussion

Code of Civil Procedure, section 2031.060 provides that “[t]he court, for good cause shown, may make any order that justice requires to protect any party or other person from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense,” including “[t]hat a trade secret or other confidential research, development, or commercial information not be disclosed, or be disclosed only to specified persons or only in a specified way.”  (Code Civ. Proc., § 2031.060, subd. (b)(5).)  

Pursuant to California Evidence Code section 801, if a witness is testifying as an expert, his testimony must be limited to either of the following: (1) “Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact,” (2) “Based on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion.”

Perfecto contends that the court should issue a protective order regarding each of the above discussed interrogatories and requests for admission because the requests and interrogatories ask for information which constitutes impermissible expert discovery or which constitutes information already provided in expert witness declarations in support of Perfecto’s opposition to Hernandez and Overnight’s motion for summary judgment.

In opposition, Hernandez and Overnight contends that Perfecto’s motions for protective order should be denied because each of the requests and interrogatories at issue are proper contention interrogatories. Further, Hernandez and Overnight contend that to the extent Perfecto contends any request or interrogatory calls for expert discovery, such request is nevertheless proper because an expert retained and designated as a trial witness may be treated as an agent of the party. Hernandez and Overnight rely on Siegerseth v. Superior Court (1972) 23 Cal.App.3d 427 (Siegerseth) in support of this argument.

Hernandez and Overnight’s reliance on Siegerseth is misplaced. The court in Siegerseth analyzed discovery that was “limited in scope to the discovery of petitioner’s expert qualifications. (Id. at 432.) The court found that such an interrogatory seeking the expert’s qualifications was proper because substantive information about the expert’s opinion had already been discovered through written discovery and, further, because such an interrogatory is not burdensome since it promotes a trial of the substantive issues of the underlying case if information is provided before trial. (Id. at 433-434.) Here, the discovery in Perfecto’s motions does not include a single interrogatory seeking just an expert’s qualifications but instead, includes far more broad reaching topics regarding the underlying issues in this action. Thus, Siegerseth is not applicable.

The court has reviewed the Joint Separate Statements submitted by the parties on November 16, 2020. Based on this review, the court will grant a protective order only regarding the following interrogatories and requests, as the remaining interrogatories and requests constitute proper contention interrogatories or otherwise ask Perfecto to respond with information within his personal knowledge.

  1. Special Interrogatories: 50-53, 54-69

First, Interrogatory 50 asks Perfecto to “State the length of time it would take your tractor-trailer to come a complete stop without a 40,000 lbs load when traveling at 60 mph.” (Joint Separate Statement, 3.) Interrogatories 51-53 then asks Perfecto to provide further details regarding how he came to the answer provided for interrogatory number 50.

The court finds that these interrogatories seek expert discovery which, as the court stated in its September 29, 2020 ruling, “should be postponed until after expert designations.” Specifically, Perfecto argues that a protective order should issue regarding each of these interrogatories because they present an incomplete hypothetical that omits facts such as road conditions and for which an answer would require expert opinion. (Joint Separate Statement at p. 3-4.) Hernandez and Overnight argue in opposition as to each of these interrogatories that these interrogatories do not seek expert information because Perfecto should be able to answer them based on commercial truck driver training he should have received and testified to. (see, e.g., Joint Separate Statement at p. 4-7.) The court agrees with Perfecto that these interrogatories present incomplete hypotheticals which additionally require an expert opinion for a response. An objection on that basis in response to these interrogatories would be sustained, but it is a waste of time and effort to go through that process. For these reasons, the court will issue a protective order as to interrogatories 50-53.

Second, interrogatories 54, 58, 62 and 66 ask Perfecto to contend whether he could have stopped his vehicle in 2, 3, 4 or 5 seconds. For example, interrogatory 66 states as follows: “Do you contend that you would have been able to come to come to a complete stop in 5 seconds or less after disengaging cruise control when traveling at 60 mph?” Then, interrogatories 55-57, 59-61, 63-65 and 67-69 ask Perfecto to state all facts, witnesses and documents in support of his contentions if he responds affirmatively to any of interrogatories 54, 58, 62 or 66.

Perfecto makes similar arguments regarding these interrogatories that a protective order should issue because these interrogatories consist of incomplete hypotheticals seeking expert opinion. (see, e.g., Joint Separate Statement, 66-68.) The court agrees with Perfecto for the reasons stated with respect to interrogatories 50-53. A response to these interrogatories as drafted would require additional information about, among other things, the conditions of the road. Additionally, the court is persuaded that as a layperson, Perfecto does not have information to respond to these interrogatories as drafted. Although Hernandez and Overnight argue that these interrogatories are proper because Perfecto provided estimates for his stop times in his deposition, the court does not take such estimates to mean that Perfecto can be ordered to respond to these interrogatories. For example, as drafted, interrogatory 66 asks Perfecto to consider, among other things, how long it would take to stop after disengaging cruise control in general, how travelling at 60 miles per hour affects disengaging cruise control, and whether he can come to a complete stop under such conditions. For these reasons and the reasons stated above, the court will issue a protective order as to interrogatories 54-69.

The court does not issue a protective order as to the remaining interrogatories. The remaining interrogatories in Perfecto’s motion calls for information properly within Perfecto’s personal knowledge as a lay witness and, as such, a response should be provided. For example, interrogatory 78 asks Perfecto “If you contend your vehicle came in contact with Carlos Hernandez’s trailer at the scene of the subject accident, list all DOCUMENTS and any relevant bates stamps numbers supporting your contention.” Because Perfecto was at the Incident and has personal knowledge of whether his vehicle contacted Hernandez’s vehicle, Hernandez is entitled to a response to this interrogatory.

  1. Requests for Admission: 45-53, 118-119

First, request numbers 45-53 ask Perfecto to admit that it would have taken more than 2, 3, 4 or 5 seconds to “come to a complete stop when traveling at 60 mph,” or that he could not have stopped within a certain time. As with interrogatories numbers 54-69, as discussed above, the court finds that these requests are expert discovery better postponed until after expert designations. As such, the court will issue a protective order regarding requests 45-53.

Second, requests 118-119 ask Perfecto to admit that he could have avoided the impacts at the Incident by either driving onto the left shoulder or merging left. Perfecto contends that a protective order should issue regarding these requests because they seek information that has already been provided through the expert declarations submitted along with Perfecto’s opposition to Hernandez’s motion for summary judgment. (Joint Separate Statement, 177-179.) In opposition, Hernandez and Overnight contends that these requests do not require expert testimony because “Perfecto has personal knowledge of that he could and could not have done at the scene of the accident based on his own observations.” (Id. at 179.)

The court agrees with Perfecto that a response would require expert testimony. These requests, as drafted, ask Perfecto to agree with a stated conclusion about how he could have avoided the Incident. However, the exact cause of the Incident and its contributing factors are matters of expert opinion and further, matters on which experts differ as evidenced by the competing expert testimony submitted in connection with Hernandez and Overnight’s motion for summary judgment. For these reasons, Perfecto’s motion is granted as to requests 118-119.

The court does not issue a protective order as to the remaining requests. The remaining requests call for Perfecto to respond with information within his personal knowledge or, if they do not, Perfecto may object and admit or deny only insomuch as he is able pursuant to Code of Civil Procedure section 2033.220.

For example, request 61 asks Perfecto to “Admit the Irigoyen vehicle came to a stop in the #2 lane after impact with the Chang vehicle.” (Joint Separate Statement, 56.) Perfecto contends that a protective order should issue as to this request because it asks Perfecto to admit facts about a collision which occurred before he arrived on the scene and for which he would have to rely on expert opinion. (Id. at p. 56-57.) The court disagrees. If Perfecto does not have personal knowledge to respond to this request he may “Specify so much of the matter involved in the request as to the truth of which the responding party lacks sufficient information or knowledge” pursuant to Code of Civil Procedure section 2033.220, subd. (a)(3). However, this does not constitute grounds for the court to issue a protective order as to this request.

Monetary Sanctions

Perfecto requests sanctions against Hernandez and Overnight and their counsel jointly and severally, in connection with this motion in the amount of $1,788.00. The court does not issue sanctions. Both parties acted with substantial justification in connection with this motion and the underlying discovery such that sanctions would be unjust.

Conclusion

Perfecto’s motion for protective order is granted as to special interrogatories 50-53 and 54-69. Perfecto’s motion is otherwise denied, and the request for sanctions is denied. Perfecto is to give notice.

Perfecto’s motion for protective order is granted as to requests for admission numbers 45-54 and 118-119. Perfecto’s motion is otherwise denied, and the request for sanctions is denied. Perfecto is to give notice.

Case Number: BC663663    Hearing Date: November 17, 2020    Dept: 37

HEARING DATE: November 17, 2020

CASE NUMBER: BC663663

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

MOVING PARTIES: Defendants/Cross-Complainants/Cross-Defendants, Carlos Hernandez and Overnight Logistics, Inc.

OPPOSING PARTY: Cross-Defendant and Cross-Complainant, Brandon Dale Osburn

TRIAL DATE: March 9, 2021

PROOF OF SERVICE: OK

MOTION: Defendants’ Motion to Tax Costs

OPPOSITION: November 2, 2020

REPLY: November 9, 2020

TENTATIVE: Moving Defendants’ motion is GRANTED. Osburn’s memorandum of costs is stricken as untimely filed.

Background

This action arises out of a collision between multiple motor vehicles on December 31, 2016 in Los Angeles, California (“Incident”). 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. (“Exel”) and Overnight Logistic, Inc. (“Overnight”) were the owners of the vehicles individual defendants operated.

On September 19, 2017, Exel brought a cross-complaint. 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. On January 30, 2018, Hernandez and Overnight brought a cross-complaint for indemnification, apportionment of fault and declaratory relief.

On April 5, 2018, Gutierrez brought his own cross-complaint for indemnity, equitable apportionment and declaratory relief 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 (“Gutierrez Plaintiffs”) names Hernandez and Overnight as defendants.

On November 27, 2019, the court granted Cross-Defendant Brandon Dale Osburn’s (“Osburn”) motion for summary judgment. On December 3, 2019, Osburn gave notice of the court’s ruling as ordered.

On December 16, 2019, the court entered judgment in favor of Osburn and against Exel, Perfecto, Overnight, Hernandez and Gutierrez. The judgment against Gutierrez pertained to both the Irigoyen Plaintiffs’ complaint and Gutierrez’s cross-complaint. Each of the judgments were for $0.00.

On June 5, 2020, Osburn filed his memorandum of costs. Hernandez and Overnight (“Moving Defendants”) now move to tax Osburn’s memorandum of costs. Osburn opposes the motion.

Timeliness of Motion 

Pursuant to California Rules of Court, rule 3.1700(b), “[a]ny notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memorandum,” with extensions for the manner of service.  (Cal. Rules of Court, rule 3.1700(b)(1); Code Civ. Proc., § 1013, subd. (a).) 

Osburn filed his memorandum of costs on June 5, 2020 and served it by mail on the same day. As such, Moving Defendants’ motion to tax costs was due to be filed and served on June 25, 2020. Moving Defendants’ motion was filed on June 25, 2020 and is thus timely.

Discussion 

  1. Legal Standard

     

    Code of Civil Procedure, section 1032 allows for the recovery of costs by a prevailing party as a matter of right.  (Code Civ. Proc., § 1032.)  “ ‘Prevailing party’ includes the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant.”  (Id. § 1032, subd. (a)(4).)  Pursuant to section 1033.5, subdivision (c), “(1) Costs are allowable if incurred, whether or not paid.  (2) Allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.  (3) Allowable costs shall be reasonable in amount.”  (Code Civ. Proc., § 1033.5, subd. (c)(1)-(3).)  Items not mentioned in section 1033.5 and items assessed upon application may be allowed or denied at the court’s discretion.  (Id. § 1033.5, subd. (c)(4).)  

    “[I]tems Krepel

  2. Analysis

Osburn’s memorandum of costs seeks a total of $12,743.65 in costs broken down as follows: (1) $1,185.76 in filing fees, (2) $11,557.89 in deposition costs.

Moving Defendants contend that Osburn’s memorandum of costs must be stricken in its entirety on the grounds that the memorandum of costs was untimely filed. (Motion, 6.) Alternatively, Moving Defendants contend that Osburn’s memorandum of costs must be stricken because all costs incurred were not reasonably necessary to respond to Moving Defendants’ cross-complaint, rather than to pursue Osburn’s own cross-complaint or defend against cross-complaints from other parties. (Motion, 6-13.)

  1. Untimely

Pursuant to California Rules of Court, rule 3.1700, a “prevailing party who claims costs” must file his memorandum of costs within 15 days “after the date of service of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5,” or “within 180 days after entry of judgment,” whichever is first.

Moving Defendants contend that Osburn’s memorandum of costs, filed on June 5, 2020 is untimely because it was filed more than 5 months after the clerk served notice of entry of judgment. (Motion, 6.)

In opposition, Osburn contends that the memorandum is not untimely because Osburn never received notice of entry of judgment and, thus, reasonably believed that he had until 180 days after entry of judgment. Osburn’s counsel, Chad M. Slack (“Slack”), attests in support of this argument that “after a diligent search of my file in the instant case, I found that my office was not served with a copy of the Court’s notice of entry of judgment.” (Slack Decl. ¶ 4.) Additionally, Slack attests that he contacted Kat Nguyen, counsel for the Irigoyen Plaintiffs, and that she indicated she was also not served with the court’s notice of entry of judgment. (Slack Decl., Exhibit A.) However, service is effective upon mailing the notice, which was done.

In Reply, Moving Defendants contend that the Slack Declaration by itself is insufficient to defeat the presumption that Osburn’s memorandum of costs, filed more than five months after the clerk served notice of entry of judgement, was untimely. (Reply, 2-5.) Moving Defendants cite a bankruptcy case, In re Bucknum (9th Cir. 1991), 951 F.2d 204, 207 (Bucknum) for the argument that counsel’s denial of receipt of notice, by itself, is insufficient to overcome the presumption that notice from the court was properly served. In Bucknum¸ the Ninth Circuit found that the bankruptcy trial court properly denied the bankruptcy petitioners’ request for an extension and request to file a complaint as untimely because the bankruptcy trial court’s docket contained a certificate of mailing indicating that the clerk had given notice to the petitioners, triggering the deadline for the petitioners to file their complaint. (Id. at 205-208.)

The court finds the Slack Declaration insufficient to demonstrate that Osburn was not served with notice of entry of judgment or that his office did not receive it. “The time provisions relating to the filing of a memorandum of costs, while not jurisdictional, are mandatory.” (Hydratec, Inc. v. Sun Valley 260 Orchard & Vineyard Co. (1990) 223 Cal.App.3d 924, 929.) The court’s docket indicates that notice was served on Osburn’s counsel at the correct address, given that there is a certificate of mailing filed and that the there is no indication of the Notice of Entry of Judgment being returned undeliverable. The Slack Declaration provides no other facts to overcome the presumption of service created by the certificate of mailing, other than Slack’s statement that his office did not receive it, because he could not find it in his file.

Conclusion

Moving Defendants’ motion to tax costs is granted. Moving Defendants to give notice.

Case Number: BC663663    Hearing Date: September 30, 2020    Dept: 37

HEARING DATE: September 30, 2020

CASE NUMBER: BC663663

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

TRIAL DATE: None

PROOF OF SERVICE: OK

MOTION: Defendant’s Motion for Protective Order as to Requests for Admissions, Sets Three

MOVING PARTY: Defendant/Cross-Complainant/Cross-Defendant, Jose Antonio Perfecto

OPPOSING PARTIES: Defendants/Cross-Complainants/Cross-Defendants, Carlos Hernandez and Overnight Logistics, Inc.

OPPOSITION: September 17, 2020

REPLY: September 22, 2020

TENTATIVE: Perfecto’s Motion for Protective Order is continued to November 24, 2020 at 8:30 a.m.  The parties are ordered to meet and confer meaningfully to attempt to resolve issues and to complete that process by October 30, 2020.  The parties are to file a JOINT separate statement with each party’s position with each discovery request the moving party still wants the court to issue a protective order about.  The joint statement shall be filed no later than November 16, 2020.

MOTION: Defendant’s Motion for Protective Order as to Special Interrogatories, Sets Three

MOVING PARTY: Defendant/Cross-Complainant/Cross-Defendant, Jose Antonio Perfecto

OPPOSING PARTIES: Defendants/Cross-Complainants/Cross-Defendants, Carlos Hernandez and Overnight Logistics, Inc.

OPPOSITION: September 17, 2020

REPLY: September 22, 2020

RECOMMENDATION: Perfecto’s Motion for Protective Order is continued to to November 24, 2020 at 8:30 a.m.  The parties are ordered to meet and confer meaningfully to attempt to resolve issues and to complete that process by October 30, 2020.  The parties are to file a JOINT separate statement with each party’s position with each discovery request the moving party still wants the court to issue a protective order about.  The joint statement shall be filed no later than November 16, 2020./

Background

This action arises out of a collision between multiple motor vehicles on December 31, 2016 in Los Angeles, California (“Incident”). 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. (“Exel”) 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 Defendants Hernandez and Overnight as cross-defendants. 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. On January 30, 2018, Hernandez and Overnight brought a cross-complaint for indemnification, apportionment of fault and declaratory relief.

On April 5, 2018, Gutierrez brought his own cross-complaint for indemnity, equitable apportionment and declaratory relief 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 (“Gutierrez Plaintiffs”) names Hernandez and Overnight as defendants.

On February 21, 2020, Perfecto filed the instant motions for protective order as to Hernandez and Overnight’s Requests for Admissions, Sets Three and Special Interrogatories, Sets Three.

On August 18, 2020, the court denied Hernandez and Overnight’s Motion for Summary Judgment or, in the alternative, Summary Adjudication as to the Irigoyen Plaintiffs’ Complaint, the Gutierrez Plaintiffs’ Complaint and all related cross-complaints.

Perfecto’s motions for protective order now come on for hearing. Hernandez and Overnight oppose the motions.

Meet and Confer 

A motion for a protective order under Code of Civil Procedure, section 2025.420 must be accompanied by a meet and confer declaration.  (Code Civ. Proc., § 2025.420, subd. (a).) )  “[A] reasonable and good faith attempt at informal resolution entails something more than bickering with [opposing] counsel….  Rather, the law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate.”  (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1294.)  “A determination of whether an attempt at informal resolution is adequate involves the exercise of discretion.”  (Stewart v. Colonial W. Agency (2001) 87 Cal.App.4th 1006, 1016, internal ellipses omitted.)  Where a party fails to make any real effort at informal resolution, a particularly egregious failure may justify an immediate and outright denial of further discovery.  (Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 433-34, citing Townsend v. Superior Court (1998) 61 Cal.App.4th 1431, 1437.)   

Perfecto submits the declaration of his attorney, Paul J. Shardlow (“Shardlow”) to demonstrate that he has fulfilled his statutory meet and confer obligations prior to filing the instant motion. Shardlow attests that on January 21, 2020, Hernandez and Overnight each served both of Exel and Perfecto with a large set of Requests for Admissions and Special Interrogatories, for a total of 8 sets of written discovery. (Shardlow Decl. ¶ 6.) Shardlow attests that on February 12, 2020, he wrote to Hernandez and Overnight’s counsel asking that all this discovery be withdrawn on the grounds that it was unwarranted, harassing, and overly burdensome. (Shardlow Decl. ¶¶

10-12, Exhibit B.) Shardlow’s letter requested that the discovery be withdrawn by February 14, 2020, or Exel and Perfecto would “promptly” file motions for protective order if necessary. (Shardlow Decl. ¶ 12, Exhibit B.)

In opposition, Hernandez and Overnight argue that Perfecto failed to meet and confer in good faith prior to filing the instant motion. (see, e.g., Opposition to Perfecto SROG Motion for Protective Order, 13.) Hernandez and Overnight’s counsel, Marie Maurice, attests that she was travelling for work both before and after Shardlow sent his letter. (Maurice Decl. ¶¶ 11, 14, 15.) Further, Maurice attests that Shardlow emailed her on February 17, 2020 regarding scheduling depositions but did not mention the February 12, 2020 meet and confer letter in the email, or at the deposition the following day on February 18, 2020. (Maurice Decl. ¶¶ 12-13.)

Based on both the Shardlow and Maurice Declarations, the court finds that Perfecto’s meet and confer efforts prior to filing the instant motion are insufficient. Shardlow sent a meet and confer letter on February 12, 2020 asking that Maurice’s office state within 2 days that they would withdraw the discovery at issue. Thereafter, Maurice attests that she was not contacted by Shardlow to follow up on the meet and confer letter and that she did not receive the letter until February 20, 2020, one day before the instant motions were filed on February 21, 2020.

This is the type of discovery dispute that should be addressed in the first instance by a meaningful meet and confer.  It appears some of the discovery is really expert discovery and should be postponed until after expert designations.  Others may be obviated by the declarations in connection with the summary judgment motion.  Accordingly, these motions are continued for 60 days to November 24, 2020 at 8:30 a.m.  The parties are ordered to meet and confer meaningfully to attempt to resolve issues and to complete that process by October 30, 2020.  The parties are to file a JOINT separate statement with each party’s position with each discovery request the moving party still wants the court to issue a protective order about.  The joint statement shall be filed no later than November 16, 2020.

Case Number: BC663663    Hearing Date: September 29, 2020    Dept: 37

HEARING DATE: September 29, 2020

CASE NUMBER: BC663663

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

TRIAL DATE: None

PROOF OF SERVICE: OK

MOTION: Defendant’s Motion for Protective Order as to Requests for Admissions, Sets Three

MOVING PARTY: Defendant/Cross-Complainant/Cross-Defendant, Exel, Inc.

OPPOSING PARTIES: Defendants/Cross-Complainants/Cross-Defendants, Carlos Hernandez and Overnight Logistics, Inc.

OPPOSITION: September 15, 2020

REPLY: September 22, 2020

TENTATIVE: Exel’s Motion for Protective Order is continued to November 24, 2020 at 8:30 a.m. The parties are ordered to meet and confer meaningfully to attempt to resolve issues and to complete that process by October 30, 2020. The parties are to file a JOINT separate statement with each party’s position with each discovery request the moving party still wants the court to issue a protective order about. The joint statement shall be filed no later than November 16, 2020.

MOTION: Defendant’s Motion for Protective Order as to Special Interrogatories, Sets Three

MOVING PARTY: Defendant/Cross-Complainant/Cross-Defendant, Exel, Inc.

OPPOSING PARTIES: Defendants/Cross-Complainants/Cross-Defendants, Carlos Hernandez and Overnight Logistics, Inc.

OPPOSITION: September 15, 2020

REPLY: September 22, 2020

TENTATIVE: Exel’s Motion for Protective Order is continued to November 24, 2020 at 8:30 a.m. The parties are ordered to meet and confer meaningfully to attempt to resolve issues and to complete that process by October 30, 2020. The parties are to file a JOINT separate statement with each party’s position with each discovery request the moving party still wants the court to issue a protective order about. The joint statement shall be filed no later than November 16, 2020.

Background

This action arises out of a collision between multiple motor vehicles on December 31, 2016 in Los Angeles, California (“Incident”). 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. (“Exel”) 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 Defendants Hernandez and Overnight as cross-defendants. 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. On January 30, 2018, Hernandez and Overnight brought a cross-complaint for indemnification, apportionment of fault and declaratory relief.

On April 5, 2018, Gutierrez brought his own cross-complaint for indemnity, equitable apportionment and declaratory relief 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 (“Gutierrez Plaintiffs”) names Hernandez and Overnight as defendants.

On February 21, 2020, Exel filed the instant motions for protective order as to Hernandez and Overnight’s Requests for Admissions, Sets Three and Special Interrogatories, Sets Three.

On August 18, 2020, the court denied Hernandez and Overnight’s Motion for Summary Judgment or, in the alternative, Summary Adjudication as to the Irigoyen Plaintiffs’ Complaint, the Gutierrez Plaintiffs’ Complaint and all related cross-complaints.

Exel’s motions for protective order now come on for hearing. Hernandez and Overnight oppose the motions.

Meet and Confer 

A motion for a protective order under Code of Civil Procedure, section 2025.420 must be accompanied by a meet and confer declaration.  (Code Civ. Proc., § 2025.420, subd. (a).) )  “[A] reasonable and good faith attempt at informal resolution entails something more than bickering with [opposing] counsel….  Rather, the law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate.”  (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1294.)  “A determination of whether an attempt at informal resolution is adequate involves the exercise of discretion.”  (Stewart v. Colonial W. Agency (2001) 87 Cal.App.4th 1006, 1016, internal ellipses omitted.)  Where a party fails to make any real effort at informal resolution, a particularly egregious failure may justify an immediate and outright denial of further discovery.  (Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 433-34, citing Townsend v. Superior Court (1998) 61 Cal.App.4th 1431, 1437.)   

Exel submits the declaration of its attorney, Paul J. Shardlow (“Shardlow”) to demonstrate that it has fulfilled its statutory meet and confer obligations prior to filing the instant motion. Shardlow attests that on January 21, 2020, Hernandez and Overnight each served both of Exel and Perfecto with a large set of Requests for Admissions and Special Interrogatories, for a total of 8 sets of written discovery. (Shardlow Decl. ¶ 6.) Shardlow attests that on February 12, 2020, he wrote to Hernandez and Overnight’s counsel asking that all of this discovery be withdrawn on the grounds that it was unwarranted, harassing, and overly burdensome. (Shardlow Decl. ¶¶

10-12, Exhibit B.) Shardlow’s letter requested that the discovery be withdrawn by February 14, 2020, or Exel and Perfecto would “promptly” file motions for protective order if necessary. (Shardlow Decl. ¶ 12.)

In opposition, Hernandez and Overnight argue that Exel failed to meet and confer in good faith prior to filing the instant motion. (Opposition, 13.) Hernandez and Overnight’s counsel, Marie Maurice, attests that she was travelling for work both before and after Shardlow sent his letter. (Maurice Decl. ¶¶ 11, 14, 15.) Further, Maurice attests that Shardlow emailed her on February 17, 2020 regarding scheduling depositions but did not mention the February 12, 2020 meet and confer letter in the email, or at the deposition the following day on February 18, 2020. (Maurice Decl. ¶¶ 12-13.)

Based on both the Shardlow and Maurice Declarations, the court finds that Exel’s meet and confer efforts prior to filing the instant motion are insufficient. Shardlow sent a meet and confer letter on February 12, 2020 asking that Maurice’s office state within 2 days that they would withdraw the discovery at issue. Thereafter, Maurice attests that she was not contacted by Shardlow to follow up on the meet and confer letter and that she did not receive the letter until February 20, 2020, one day before the instant motions were filed on February 21, 2020.

This is the type of discovery dispute that should be addressed in the first instance by a meaningful meet and confer. It appears some of the discovery is really expert discovery and should be postponed until after expert designations. Others may be obviated by the declarations in connection with the summary judgment motion. Accordingly, these motions are continued for 60 days to November 24, 2020 at 8:30 a.m. The parties are ordered to meet and confer meaningfully to attempt to resolve issues and to complete that process by October 30, 2020. The parties are to file a JOINT separate statement with each party’s position with each discovery request the moving party still wants the court to issue an protective order about. The joint statement shall be filed no later than November 16, 2020.

Case Number: BC663663    Hearing Date: August 18, 2020    Dept: 37

HEARING DATE: August 18, 2020 continued from March 18, 2020

CASE NUMBER: BC663663

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

MOVING PARTY: Defendants, Carlos Hernandez and Overnight Logistics, Inc.

OPPOSING PARTY: (1) Alan Alexander Irigoyen, a minor, by and through his guardian ad litem Rosana Gutierrez and Miguel Angel Irigoyen, previously a minor, by and through his guardian ad litem Julian Irigoyen (“Irigoyen Plaintiffs”), (2) Exel, Inc. and Josel Antonio Perfecto (“Perfecto”), and (3) Marco Antonio Soto Gutierrez, Lilia Soto Moreno, Emily Liliana Soto Moreno and Lucero Vanessa Soto Moreno (“Gutierrez Plaintiffs”).

TRIAL DATE: March 9, 2021

PROOF OF SERVICE: OK

PROCEEDING: Defendants Carlos Hernandez and Overnight Logistics, Inc.’s Motion for Summary Judgment or, in the alternative, Summary Adjudication

OPPOSITION: February 28, 2020 by (1) Alan Alexander Irigoyen, a minor, by and through his guardian ad litem Rosana Gutierrez and Miguel Angel Irigoyen, previously a minor, by and through his guardian ad litem Julian Irigoyen (“Irigoyen Plaintiffs”), (2) Exel, Inc. and Josel Antonio Perfecto, and (3) Marco Antonio Soto Gutierrez, Lilia Soto Moreno, Emily Liliana Soto Moreno and Lucero Vanessa Soto Moreno (“Gutierrez Plaintiffs”).

REPLY: March 6, 2020

TENTATIVE: Hernandez and Overnight’s Motion for Summary Judgment or in the alternative for summary adjudication is DENIED. Exel and Perfecto are to provide notice.

Background

This action arises out of a collision between multiple motor vehicles on December 31, 2016 in Los Angeles, California (“Incident”). 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. (“Exel”) 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 Defendants Hernandez and Overnight as cross-defendants. 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. 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, naming Osburn, alleging equitable indemnity, declaratory relief and total equitable indemnity.

On April 5, 2018, Gutierrez brought his own cross-complaint for indemnity, equitable apportionment and declaratory relief 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 (“Gutierrez Plaintiffs”) names Hernandez and Overnight as defendants.

Hernandez and Overnight now move for summary judgment as to the Irigoyen Plaintiffs’ Complaint, the Gutierrez Plaintiffs’ Complaint and all related cross-complaints on the following issues:

  1. The Irigoyen Plaintiffs’ First Cause of Action for Negligence fails as a matter of law because Plaintiffs cannot establish a prima facie case of negligence against Defendants;

  2. The Gutierrez Family’s First Cause of Action for Negligence fails as a matter of law because the Gutierrez Family cannot establish a prima facie case of negligence against Defendants;

  3. Defendant Jose Antonio Perfecto (“Perfecto”) was negligent and his negligence was a substantial factor in causing Plaintiffs and the Gutierrez Family’s alleged harm.

Exel and Perfecto oppose Hernandez and Overnight’s motion on each of the above issues. The Irigoyen Plaintiffs oppose Hernandez and Overnight’s motion on the first and third issues and join in the Gutierrez Plaintiffs’ opposition as to the second issue. The Gutierrez Plaintiffs oppose Hernandez and Overnight’s motion on the second and third issues and join in the Irigoyen Plaintiffs’ opposition as to the first issue.

As a preliminary note, multiple parties have submitted oppositions, replies, and objections in support or opposition to the instant motion. For the sake of completeness, the court notes that it has received, reviewed and considered all of the following documents in order to reach its ruling:

  1. Hernandez and Overnight’s Motion for Summary Judgment;

  2. Hernandez and Overnight’s Compendium of Evidence in Support of Motion;

  3. Hernandez and Overnight’s Separate Statement in Support of Motion;

  4. Hernandez and Overnight’s Request for Judicial Notice in Support of Motion;

  5. Irigoyen Plaintiffs’ Opposition to Motion for Summary Judgment;

  6. Irigoyen Plaintiffs’ Compendium of Evidence in support of Opposition to Motion;

  7. Irigoyen Plaintiffs’ Response to Hernandez and Overnight’s Separate Statement in Support of Motion;

  8. Gutierrez Plaintiffs’ Opposition to Hernandez and Overnight’s Motion;

  9. Gutierrez Plaintiffs’ Response to Hernandez and Overnight’s Separate Statement in Support of Motion;

  10. Gutierrez Plaintiffs’ Compendium of Evidence in Support of Motion;

  11. Exel and Perfecto’s Opposition to Hernandez and Overnight’s Motion for Summary Judgment;

  12. Exel and Perfecto’s Objection to Hernandez and Overnight’s Request for Judicial Notice;

  13. Declaration of Thomas Fugger in Support of Exel and Perfecto’s Opposition to Motion;

  14. Declaration of Jonathon Herzog in Support of Exel and Perfecto’s Opposition to Motion;

  15. Exel and Perfecto’s Separate Statement in Support of Opposition to Motion;

  16. Declaration of Larry Miller in Support of Exel and Perfecto’s Opposition;

  17. Exel and Perfecto’s Objection to Hernandez and Overnight’s Evidence in Support of Motion;

  18. Hernandez and Overnight’s Reply to Gutierrez Plaintiffs’ Opposition to Motion;

  19. Hernandez and Overnight’s Reply to Irigoyen Plaintiffs’ Opposition to Motion;

  20. Hernandez and Overnight’s Objections to Exel and Perfecto’s Evidence in Support of Opposition;

  21. Hernandez and Overnight’s Objections to Irigoyen Plaintiffs’ Evidence in Support of Opposition;

  22. Hernandez and Overnight’s Objections to Gutierrez Plaintiffs’ Separate Statement in Support of Opposition to Motion;

  23. Irigoyen Plaintiffs’ Notice of Errata and Declaration of Matthew D. Haley re: Notice of Errata in Support of Opposition to Motion;

  24. Hernandez and Overnight’s Response to Irigoyen Plaintiffs’ Notice of Errata and Declaration in Support of Opposition to Motion.

Request for Judicial Notice

Hernandez and Overnight request that the court take judicial notice of all of the following pursuant to California Evidence Code, sections 451-453.

  1. Jose Perfecto’s “Criminal Information,” People v. Jose Perfecto, Case No. LF011819A (Exhibit CC);

  2. Jose Perfecto’s Felony Advisement of Rights, Waiver and Plea Form & Court Reporter Transcript of Hearing 5/17/19 (Exhibit DD).

Exel and Perfecto object to Hernandez and Overnight’s request as to each document on the grounds that the documents contain hearsay and are not properly authenticated. These objections are overruled.

The court takes judicial notice of the existence and legal effect of each document. (Evidence Code § 452(d).)

Evidentiary Objections

Irigoyen Plaintiffs Notice of Errata and Objection

On March 13, 2020, the Irigoyen Plaintiffs submitted a Supplemental Declaration of Matthew D. Haley (“Supplemental Haley Declaration”) and Notice of Errata regarding their response to Hernandez and Overnight’s Separate Statement. Haley attests that the Irigoyen Plaintiffs inadvertently indicated in their responsive Separate Statement that they did not dispute fact number 89 in Hernandez and Overnight’s motion, which states as follows: “After Perfecto impacted the red car, the red car struck Hernandez’s vehicle and caused Hernandez’s trailer to move over the white line.” (see Supplemental Haley Decl. ¶ 9; see also Irigoyen Plaintiffs Notice of Errata.) Haley attests that the Irigoyen Plaintiffs seek leave under Code of Civil Procedure, section 473 to file their Notice of Errata on the grounds that failing to dispute this fact was due to a “formatting error.”

On March 16, 2020, Hernandez and Overnight filed an objection to the entire Supplemental Haley Declaration, contending that the declaration improperly attempted to introduce late-filed evidence to defeat Hernandez and Overnight’s motion. (Bozzi v. Nordstrom Inc. (2010) 186 Cal.App.4th 755.)

Given the foregoing, the court overrules Hernandez and Overnight’s objection. The Irigoyen Plaintiffs are permitted to file their Notice of Errata. Contrary to Hernandez and Overnight’s assertion, the Irigoyen Plaintiffs’ Notice of Errata does not attempt to introduce new evidence but instead attempts to correct a formatting oversite. This is unlike the situation described in Bozzi, in which the party opposing the motion for summary judgment attempted to introduce belated evidence to qualify the opposing expert’s declaration. (see Bozzi, supra, 186 Cal.App.4th at 765.)

Hernandez and Overnight’s Objections to Irigoyen Plaintiffs’ Evidence

Overruled: 1-5, 7-10, 12-13, 15-16, 18, 20, 22-23

Overruled in part, sustained in part: 19

Sustained: 6, 11, 14, 17, 21, 24

Objection 19: sustained in part as to “I believe all exits on Southbound Highway 5 in Kern County were equipped with these.” Declarant has not established foundation to attest to this statement, or personal knowledge. Otherwise overruled.

Hernandez and Overnight’s Objections to Gutierrez Plaintiffs Separate Statement

All Overruled: Objections to a separate statement are not proper evidentiary objections.

Exel and Perfecto’s Objections to Hernandez and Overnight Separate Statement

All Overruled: Objections to a separate statement are not proper evidentiary objections.

Hernandez and Overnight’s Objections to Exel and Perfecto’s Evidence

Overruled: 1-13, 15-18, 33-36, 38

Sustained: 14, 19-32, 37

Factual Background

This action arises out of a multi-vehicle automobile collision which occurred on December 31, 2016 at approximately 8:38am on the southbound interstate 5 freeway south of Sabodan Street in Kern County. (Separate Statement in Support of Motion, (“DSS”), ¶¶ 2-3.) The freeway in this area compromised of two lanes for southbound traffic with a left shoulder and a right shoulder, with each lane 12 feet in width. (DSS ¶¶ 4-5; Exhibits in Support of Motion, Exhibit G (Officer Anthes Deposition) at pp. 36:21-37:2, 51:11-15.)

Decedents Miguel Irigoyen and Altagracia Gutierrez (“Decedents”) owned a red 2013 Toyota Corolla, with Irigoyen as the driver and Gutierrez as the passenger at the time of the Incident. (DSS ¶¶ 7-8.) Further, Perfecto drove a white Volvo 3X with a white Wabash trailer at the time of the accident which was owned by Exel. (DSS ¶¶ 11-12.) Perfecto was acting in the course and scope of his employment at the time of the Incident. (DSS ¶ 13; Exhibit BB, Perfecto Responses to Hernandez Form Interrogatories, Set One, number 2.6, 2.11.)

Hernandez drove a yellow 2012 Peterbilt tractor with a white Wabash trailer at the time of the Incident. (DSS ¶ 18; Exhibit V (Hernandez Decl. ¶ 4.).) Overnight was the registered owner of Hernandez’ vehicle and Hernandez was also acting within the course and scope of his employment at the time of the Incident. (DSS ¶¶ 19-20; Exhibit U (Overnight Responses to Plaintiff Form Interrogatories, Set One, numbers 2.6, 2.11, 20.2.) Finally, Plaintiff Marco Gutierrez drove a White 2000 Ford F-150 pickup truck in the number one lane, with Plaintiffs Lilia Soto Moreno, Emily Liliana Soto Moreno and Lucero Vanessa Soto Moreno as his passengers. (DSS ¶¶ 14-15; Exhibit M (Marco Gutierrez Depo) at pp. 13:4-9, 30:23-25; Exhibit P (Marco Gutierrez Responses to Form Interrogatories, Set One), number 20.2.) (hereinafter “Gutierrez Plaintiffs.”)

It is undisputed that the collision which ultimately caused Decedents’ death was compromised of at least two separate collisions, although there appear to be disputes based on conflicting testimony whether there were more collisions involved. The first undisputed collision (“First Collision”) involved Osburn, Chang and Decedents, while the Second Collision involved Perfecto, Gutierrez Plaintiffs, Decedents and Hernandez.

As to the First Collision, there is evidence that Osburn encountered fog approximately 45 minutes prior to the collision and put on his vehicle flashers. (DSS ¶¶ 21-23; Exhibit H (Osburn Deposition) at pp. 16:5-8, 17:12-24, 19:24-20:11; 22:9-25.) When Osburn came to a stop, Osburn observed that a vehicle in the number 2 lane was also stopped because he saw brake lights. (DSS ¶ 25, Exhibit H at pp. 23:1-19; 24:1-4.) Further, Osburn observed Chang come to a complete stop behind him. (DSS ¶ 27, Exhibit H at p. 30:7-22.) Osburn was travelling in the number one lane at the time his vehicle was impacted. (DSS ¶ 26, Exhibit H at p. 23:5-8.) Perfecto and Exel dispute this fact and contend that Osburn was stopped, not “travelling.” (Separate Statement in Support of Opposition (“PSS”) ¶ 26.)

Thereafter, Decedents’ vehicle impacted the rear of Chang’s vehicle. (DSS ¶ 28; Exhibit L (Chang Depo) at 48:22-24; Exhibit K (Leah Osburn Depo) at 24:4-23.) As a result of the impact from Decedents’ vehicle, Chang’s vehicle was pushed into Osburn’s vehicle. (DSS ¶ 29; Exhibit L (Chang Depo) at 48:14-21; Exhibit K (Leah Osburn Depo) at 25:2-8.) It is undisputed that Hernandez did not cause or contribute to the first collision between Osburn’s, Chang’s and Decedents’ vehicle, because he was not yet at the scene of the First Collision. (DSS ¶ 30.)

Prior to the Second Collision, Hernandez was travelling at 20-30 miles per hour when he approached the accident scene and that when his visibility decreased, he recalls further decreasing his speed. (DSS ¶¶ 61, 63; Exhibit S at pp. 62:22-63:9, 63:2-9, 78:6-16.) Hernandez was travelling in the number two lane prior to the accident. (DSS ¶ 65; Exhibit S at p. 82:16-18.) Hernandez contends that he noticed the fog prior to arriving at the scene of the Incident and wanted to pull off the freeway but could not do so because he did not feel safe. DSS ¶ 60; Exhibit S at p. 51:11-15.)

The parties greatly dispute other facts surrounding Hernandez’s conduct prior to the Second Collision. First, the parties dispute whether Hernandez’s emergency flashers were on prior to the collision. Hernandez contends that he activated his emergency flashers from the moment he saw dense fog. (DSS ¶¶ 52-55, 62, Exhibit S (Hernandez Depo) at p. 46:22-24, 63:2-9.) However, Perfecto testified that he did not see flashing lights on Hernandez’s vehicle. (Herzog Decl. Exhibit 7 at pp. 243:12-244:5.) The parties also dispute the exact weather conditions. Hernandez contends that there was dense fog from the time he activated his flashers until he pulled his vehicle over. (DSS ¶¶ 56-57; Exhibit S at pp. 45:24-46:10; 46:11-13, 51:7-10.) However, Perfecto testified that it was clear and sunny with patches of fog, then an area of dense fog. (Herzog Decl., Exhibit 7 at p. 147:7-13, 157:10-21; 204:6-16.)

After arriving at the scene and prior to the Second Collision, Hernandez saw Decedents’ vehicle in front of him, positioned sideways, and with damage. (DSS ¶¶ 67-68.) Hernandez began braking his vehicle because he saw two yellow lights flashing from Decedents’ vehicle. (DSS ¶ 66; Exhibit S at pp. 63:10-16, 66:24-67:9.) Thereafter, Hernandez testified that he saw stopped vehicles in the first lane, second lane, and shoulder, including a white pickup truck to his left and a person standing next to the pickup truck. (DSS ¶¶ 69-70; Exhibit S at pp. 64:15-21, 63:20-25, 69:1-5, 72:3-8.)

Hernandez further testified that as a result of the Gutierrez Plaintiffs’ truck to his left and Decedents’ vehicle to his front he pulled over to the shoulder. (DSS ¶ 71; Exhibit S at pp. 63:22-64:4, 69:6-9, 13-15.) Exel and Perfecto dispute that Hernandez pulled completely over and contend that Hernandez’s vehicle was instead partially blocking the lane. (PSS ¶ 71, Herzog Decl. Exhibit 7 at pp. 161:2-7, 161:20-162:12, 289:14-25; Declaration of Thomas Fugger (“Fugger”) at ¶¶ 32-33, Declaration of Larry Miller (“Miller”) at ¶¶ 10, 12, 13-15, 17, 19, 21, 23, 25.) Specifically, Perfecto testified as follows with regard to Hernandez’s vehicle:

Q: All right. Described what happened from the time you saw the thick fog until the collision.

A: when you are referring to the collision, it was – are you referring to the first collision or when I collided with the rest of the cars?

Q: the first collision.

A: When I saw the thick fog, I began to brake. After that I entered into the thick fog and I observed the rear part of the trailer. So in order to avoid a front collision with the trailer, I turned the steering wheel toward my left side in order to get into the left—because on the side of the freeway was blocked by the trailer because part of the trailer was partially in the right lane. The only option I had was to look toward my left side. That was when my right mirror hit the corner – the right corner of the trailer. That was what happened in the first impact.”

(Herzog Decl. Exhibit 7 at pp. 161:20-162:12.) Further, Exel and Perfecto dispute whether Hernandez moved his vehicle to the shoulder without sudden movement, as they contend that photographs taken at the scene show that Hernandez “locked up” his brakes and skidded to a stop. (PSS ¶ 72, Herzog Decl. Exhibits 9-11.) Specifically, Exel and Perfecto contend that the Hernandez vehicle was already “over the white line” and blocking the number two lane before Perfecto arrived at the scene of the accident. (PSS ¶ 89; Herzog Decl., Exhibit 7 at pp. 161:2-7, 161:20-162:12, 289:14-25.)

Hernandez further contends that he could not have moved his vehicle more onto the shoulder due to other vehicles also being on the shoulder. (DSS ¶ 74; Exhibit S at pp. 64:15-21.) Exel and Perfecto dispute this fact and contend that others did not testify to seeing vehicles parked in the shoulder. Specifically, Marco Gutierrez did not testify to seeing cars in the shoulder, nor did Chang or Perfecto. (PSS ¶ 74; Herzog Decl. Exhibit 5 at 27:18-20; Herzog Decl. Exhibit 4 at 37:9-18; Herzog Decl. Exhibit 7 at 173:2-8, 250:17-251:4, 252:6-24.)

While there is conflicting testimony cited about much of the following sequence of events, it appears that sometime after Hernandez stopped his vehicle on the shoulder, Perfecto came onto the scene. Perfecto did not know how far ahead of his truck he could see when he entered the fog prior to the Second Collision. (DSS ¶ 116, Exhibit X (Perfecto Depo) at pp. 171:16-19.) The parties dispute Perfecto’s speed prior to the Second Collision. Moving Defendants contend Perfecto travelled in the number 2 lane at approximately 60 miles per hour (DSS ¶ 117; Exhibit Z (Perfecto Responses to Hernandez Supplemental Interrogatories, Set One), number 20.5.) However, Perfecto contends he was travelling between 55 to 60 miles per hour and deactivated his cruise control approximately 300 feet before the fog and Second Collision. (PSS ¶¶ 117-118.)

It is undisputed that Perfecto swerved to avoid Hernandez’s vehicle and then impacted the Decedents’ vehicle. (DSS ¶ 123; Exhibit X (Perfecto Depo) at pp. 250-23-251:9.) It is further undisputed that Perfecto pled no contest to one count of misdemeanor vehicular manslaughter. (DSS ¶¶ 134-138.)

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) or where the opposition is weak (Salasguevara v. Wyeth Labs., Inc. (1990) 222 Cal.App.3d 379, 384, 387).

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.)

As discussed above, Hernandez contends that he breached no duty to Decedents in connection with the Incident and that, as a result, summary judgment should be granted with respect to the complaint and all cross-complaints in favor of Hernandez. Specifically, Hernandez’s motion contends that he operated his vehicle with due care at all times in response to changing traffic conditions, including pulling his vehicle onto the shoulder immediately prior to the second accident which resulted in Decedents’ deaths, i.e., that he was not negligent. (see DSS ¶¶ 67-74.) That fact is obviously hotly disputed. Further, Hernandez also contends that “the accident would have happened anyways” due to Perfecto’s negligence regardless of Hernandez’s own conduct and that, accordingly, summary adjudication should be granted in favor of Hernandez and Overnight. (Motion, 24-26.)

First, Hernandez and Overnight’s argument with regard to Perfecto’s negligence must fail. It is unclear whether Hernandez and Overnight contend that Perfecto’s negligence negates Hernandez’s own negligence in its entirety or in part. It is similarly unclear whether Hernandez and Overnight contend that Perfecto’s negligence negates Hernandez’s own as to the Irigoyen Plaintiffs, the Gutierrez Plaintiffs, or both. Further, Hernandez and Overnight point primarily to Perfecto’s testimony for the proposition that the accident “would have happened anyways” but fail to sufficiently demonstrate why this is the case. Accordingly, there remains a triable issue of fact whether Hernandez was negligent and whether that negligence contributed to the other injuries, and the court does not grant summary adjudication on Hernandez and Overnight’s third issue.

As to the remaining issues, Exel and Perfecto’s opposition outline facts that tend to show that Hernandez’s vehicle was not moved completely onto the shoulder and tend to show that contributed to the accident. (see PSS ¶¶ 72, 74, 89, 90.) Further, as discussed above, Exel and Perfecto have pointed to Perfecto’s testimony to support this proposition. Specifically, Perfecto testified that he recalls having to swerve left to avoid the rear of a trailer, and that the right mirror of his vehicle hit a portion of the trailer. (Herzog Decl. Exhibit 7 at pp. 161:20-162:12.) There is a triable issue as to whether Perfecto would have swerved into the number 1 lane or even impacted Decedents’ vehicle if Hernandez was fully on the shoulder and not partially blocking the number 2 lane.

Moreover, Exel and Perfecto have also submitted the Declaration of experts Larry Miller and Thomas Fugger in support of their contention that Hernandez failed to completely move his vehicle into the shoulder. Miller opines as a result of his review that the rear of Hernandez’s vehicle was protruding into and partially blocking the number two lane at the time Perfecto arrived on the scene of the accident. (Miller Decl. ¶¶ 23-24.) Miller contends that this opinion is supported by the photographs and by Perfecto’s testimony. (Miller Decl. ¶ 23.) Similarly, Fugger opines that the rear of Hernandez’s vehicle was “most probably protruding into and partially blocking the number 2 lane” at the time Perfecto arrived on the scene. (Fugger Decl. ¶¶ 32-33.) Fugger also contends that this opinion is supported by the photographs and by Perfecto’s testimony. (Id.)

Additionally, the Irigoyen Plaintiffs oppose Hernandez and Overnight’s motion on the grounds that Hernandez was negligent by failing to operate his vehicle in compliance with the Commercial Motor Vehicle Safety Act. (Irigoyen Opposition at pp. 12-14.) Further, the Irigoyen Plaintiffs similarly point to Perfecto’s testimony for the proposition that Hernandez failed to fully pull his trailer over to the shoulder as he contends. (Irigoyen Opposition at p. 15.) However, the Irigoyen Plaintiffs do not demonstrate or otherwise explain why Hernandez should be deemed to have negligently operated his vehicle based on the Commercial Motor Vehicle Safety Act, beyond their statements to this effect. As such, the court does not deny Hernandez and Overnight’s motion on this basis.

Finally, the court notes that the Gutierrez Plaintiffs also oppose Hernandez and Overnight’s motion. The Gutierrez Plaintiff’s opposition primarily contends that, based on Perfecto’s testimony as described above, there is a triable issue with regard to whether Hernandez pulled his trailer fully onto the shoulder. (Gutierrez Opposition, 5-7.)

Viewing the evidence submitted in the light most favorable to the opposing parties, the court finds that a triable issue of material fact exists with regard to whether Hernandez breached any duty to Decedents or was negligent in operating his vehicle and as to whether that was a substantial factor in causing injuries. Although Hernandez contends that he operated his vehicle with due care at all times, the opposing parties have submitted admissible evidence for the proposition that Hernandez failed to do so by failing to completely move his vehicle to the shoulder prior to the second accident. Notably, all opposing parties have pointed to Perfecto’s deposition testimony, as described above.

Accordingly, Hernandez and Overnight’s motion for summary judgment or in the alternative for summary adjudication is DENIED. Having denied Hernandez and Overnight’s motion, the court does not reach the remaining arguments regarding Perfecto’s alleged liability.

Conclusion

Hernandez and Overnight’s Motion for Summary Judgment or in the alternative for summary adjudication is DENIED. Exel and Perfecto are to provide notice.

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.

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