On 08/29/2017 CRISTYN HASSON filed a Personal Injury - Other Personal Injury lawsuit against FJG TRANSPORTATION INC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is PATRICIA D. NIETO. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
PATRICIA D. NIETO
FJG TRANSPORTATION INC
DOES 1 TO 50
RWINDALE CITY OF
ESTATE OF ERICK DELRIO
LOS ANGELES COUNTY OF
IRWINDALE CITY OF
FJG TRANSPORATION INC.
JOHANSON TRANSPORTATION SERVICE DOE1
CITY OF IRWINDALE
JOHANSON TRANSPORTATION SERVICE DOE 1
JOHANSON TRANSPORTATION SERVICE (DOE1)
FLORES ROE 6 JONATHON DANIEL
AMERICAN VETERANS OF WORLD WAR II ROE 1
HERNANDEZ ROE 5 PEDRO
AMERICAN VETERANS OF WORLD WAR II AND KOREA BALDWIN PARK-IRWINDALE POST 113 INCORPORATED AMVETS POST 113
HERNANDEZ ROE 4 PEDRO
HAFFNER JOSHUA H. ESQ.
HAFFNER JOSHUA H
WOLF MATTHEW C. ESQ.
GROSSBERG SCOTT J. ESQ.
HANSEN & RUTHERFORD LLP
WOLF MATTHEW CLARKE ESQ.
RUTHERFORD THOMAS MICHAEL JR.
GROSSBERG SCOTT JAY
MASSERMAN TERRI LYNN
DORENFELD DAVID K
WOLF MATTHEW CLARKE
HAITH SCOTT CLINTON
EDWARDS KAMAU AYINDE
HARTSUYKER STRATMAN & WILLIAMS-ABREGO
REISINGER ROBERT LEE
CARPINELLI ADAM G.
ELKORT PAUL ANDREW
CARPINELLI ADAM G
MASSERMAN & DUCEY
8/27/2019: Demand for Jury Trial
9/3/2019: Separate Statement
9/3/2019: Exhibit List
11/8/2019: Separate Statement - SEPARATE STATEMENT IN OPPOSITION TO MSJ
11/8/2019: Separate Statement - SEPARATE STATEMENT IN OPPOSITION TO DEFENDANT'S MSJ
11/15/2019: Reply - REPLY TO OPPOSITION TO MOTION FOR SUMMARY JUDGMENT
11/18/2019: Reply - REPLY OF CITY OF IRWINDALE'S TO PLAINTIFF'S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT/ADJUDICATION
3/2/2018: CROSS-COMPLAINT OF ESTATE OF ERICK DELRIO FOR DECLARATORY RELIEF, IMPLIED INDEMNITY AND EQUITABLE APPORTIONMENT
10/17/2018: Separate Statement - SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT
11/9/2018: Ex Parte Application - Ex Parte Application to Continue Trial
2/19/2019: Amendment to Cross-Complaint (Fictitious/Incorrect Name) - Amendment to Cross-Complaint (Fictitious/Incorrect Name)
3/4/2019: Amendment to Cross-Complaint (Fictitious/Incorrect Name) - Amendment to Cross-Complaint (Fictitious/Incorrect Name)
3/7/2019: Request for Refund / Order
1/19/2018: DEMAND FOR JURY TRIAL BY CITY OF IRWINDALE
1/16/2018: CROSS COMPLAINT - PERS. INJURY PROPERTY DAMAGE, WRONG DEATH (2 PAGES) -
9/26/2017: SUMMONS -
Hearing09/08/2020 at 08:30 AM in Department B at 300 East Olive, Burbank, CA 91502; Trial Setting ConferenceRead MoreRead Less
Hearing09/08/2020 at 08:30 AM in Department B at 300 East Olive, Burbank, CA 91502; Order to Show Cause Re: DismissalRead MoreRead Less
Hearing08/07/2020 at 08:30 AM in Department B at 300 East Olive, Burbank, CA 91502; Hearing on Motion to Challenge the Good Faith of a Settlement (CCP 877.6)Read MoreRead Less
Hearing08/07/2020 at 08:30 AM in Department B at 300 East Olive, Burbank, CA 91502; Hearing on Motion to Challenge the Good Faith of a Settlement (CCP 877.6)Read MoreRead Less
Hearing06/25/2020 at 09:00 AM in Department B at 300 East Olive, Burbank, CA 91502; Non-Appearance Case ReviewRead MoreRead Less
DocketSubstitution of Attorney; Filed by H&S TRANSPORT (Defendant)Read MoreRead Less
Docketat 08:30 AM in Department B; Hearing on Motion to Challenge the Good Faith of a Settlement (CCP 877.6) - Not Held - Advanced and Continued - by CourtRead MoreRead Less
DocketOpposition (to Nonsettling Defendants' Motion to Contest Application); Filed by Albert D Flores (Cross-Defendant); Jonathan D Flores (Cross-Defendant)Read MoreRead Less
Docketat 10:02 AM in Department B; Court OrderRead MoreRead Less
DocketCertificate of Mailing for ((Court Order) of 04/28/2020); Filed by ClerkRead MoreRead Less
DocketSUMMONSRead MoreRead Less
DocketSummons Filed; Filed by PlaintiffRead MoreRead Less
DocketSummons; Filed by PlaintiffRead MoreRead Less
DocketCOMPLAINT FOR: (1) NEGLIGENCE; ETCRead MoreRead Less
DocketApplication ; Filed by Plaintiff/PetitionerRead MoreRead Less
DocketCIVIL DEPOSITRead MoreRead Less
DocketApplication-Miscellaneous (FOR LIAM PENA GUARDIAN AD LITEM(COPY) NO COPY ); Filed by Attorney for Pltf/PetnrRead MoreRead Less
DocketComplaintRead MoreRead Less
DocketAPPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM CIVIL EXPARTERead MoreRead Less
DocketComplaint; Filed by Cristyn Hasson (Plaintiff)Read MoreRead Less
Case Number: BC674027 Hearing Date: November 22, 2019 Dept: NCB
North Central District
cristyn hasson, et al.,
fjg transportation, inc., et al.,
Case No.: BC674027
Consolidated with: BC702687
Hearing Date: November 22, 2019
[TENTATIVE] order RE:
four Motions for summary judgment or, alternatively, summary adjudication
A. Summary of Operative Pleadings
This action arises from a motorcycle-car accident that occurred on September 25, 2016 shortly past midnight, which resulted in the death of Decedent Oscar Pena (“Decedent”), who was the husband of Plaintiff Cristyn Hasson (“Hasson”) and father of Plaintiff Liam Pena (a 2-year old infant at that time). Decedent was driving his car while Hasson was a passenger. They were leaving an American Veteran’s (“AmVets”) event located at 14910 Los Angeles Street in Irwindale. Plaintiffs allege that at the time Decedent and Hasson’s vehicle was exiting from the parking lot onto Los Angeles Street, Erick Del Rio (“Del Rio”) was riding his motorcycle on that street. While Decedent’s car was turning left, Decedent’s vehicle and Del Rio’s motorcycle collided on Los Angeles Street. As a result of the accident, Decedent and Del Rio died.
Plaintiffs alleges that Defendants FJG Transportation, Inc. (“FJG”), H&S Transport (“H&S”), and Francisco Gonzalez (“Gonzalez”) negligently and illegally parked their trucks, trailers, and vehicles along Los Angeles Street, thereby creating a dangerous condition because they obstructed the view of drivers traveling on Los Angeles Street and drivers exiting the AmVet’s parking lot. Plaintiffs allege that Defendant City of Irwindale (“Irwindale”) and the County of Los Angeles (“COLA”) created a dangerous condition by allowing trucks to be illegally parked and for the bushy tree in the area.
The complaint, filed August 29, 2017 filed in this action (“Hasson Action”), alleges causes of action for: (1) negligence against FJG, H&S, Gonzalez, and Defendant Estate of Erick Del Rio (“Del Rio Estate”); (2) dangerous condition on public property against Irwindale and COLA; (3) wrongful death against all Defendants; and (4) bystander/Dillon action against all Defendants.
On November 14, 2017, Cross-Complainant H&S filed a first amended cross-complaint against Del Rio Estate, FJG, Gonzalez, Irwindale, and COLA for: (1) implied indemnity; (2) equitable indemnity; (3) contribution; (4) apportionment of fault; (5) express contractual indemnity; (6) breach of contract; and (7) declaratory relief.
On January 16, 2018, FJG and Gonzalez filed a cross-complaint against Irwindale and Del Rio Estate for: (1) indemnification; (2) apportionment of fault; and (3) declaratory relief.
On January 19, 2018, Irwindale filed a cross-complaint against Del Rio Estate, Estate of Oscar Pena (“Pena Estate”), FJG, H&S, and Gonzalez for: (1) total equitable indemnity; (2) partial equitable indemnity; (3) declaratory relief (duty to indemnify); (4) contribution and repayment; and (5) declaratory relief (duty to contribute).
On March 2, 2018, Del Rio Estate filed a cross-complaint against FJG, H&S, Gonzalez, Irwindale, and the Pena Estate for: (1) declaratory relief – implied indemnity; and (2) declaratory relief – equitable apportionment.
On August 27, 2019, Cross-Complainants Pedro C. Hernandez and Mayte S. Hernandez filed a cross-complaint against FJG, H&S, Gonzalez, and Del Rio Estate for: (1) equitable indemnity; (2) implied indemnity; (3) comparative indemnity; (4) declaratory relief; and (5) contribution.
In the consolidated action Joey F. Pena v. FJG Transportation, Inc. et al. (Case No. BC702687, “Pena Action”), Joey Pena filed a first amended complaint on August 9, 2018 for: (1) wrongful death against FJG, H&S, Gonzalez, and Del Rio; and (2) dangerous condition of public property against Irwindale and COLA. Joey F. Pena is the son of Decedent by a former spouse. The 2 actions were consolidated on March 7, 2019.
B. Motions on Calendar
There are four motions for summary judgment and/or summary adjudication filed by FJG/Gonzalez, H&S, and Johanson Transportation Services (Doe 1, “JTS”), and Irwindale.
Each of the motions are opposed by Plaintiffs Hasson and Liam Pena.
FJG AND GONZALEZ’S MOTION FOR SUMMARY JUDGMENT
Francisco Gonzalez is a truck driver and operates FJG as an independent trucking business. On September 6, 2019, FJG and Gonzalez (collectively, “FJG Defendants”) filed their motion for summary judgment on the complaint in the Hasson action, the FAC filed by Joey Pena in the Pena Action, and all cross-complaints filed in both actions. FJG Defendants seek summary judgment on the following issues:
· Issue 1: Plaintiffs cannot prove their conduct was a substantial factor in the accident and thus they cannot be held liable for negligence, wrongful death, or Bystander/Dillon action in the Hasson Action; the wrongful death claim in the Pena FAC; and any of the underlying cross-complaints of Del Rio Estate, Irwindale, H&S, JTS, and Pedro/Mayte Hernandez.
· Issue 2: Plaintiffs cannot prove their conduct was the proximate cause of the accident and thus they cannot be held liable in the Hasson Action, Pena Action, and cross-complaints.
· Issue 3: FJG Defendants did not breach a duty of care to Plaintiffs and thus they cannot be liable in the Hasson Action, Pena Action, and cross-complaints.
A. Evidentiary Objections
Plaintiffs submitted evidentiary objections with their opposition brief. The Court rules as follows:
· Deposition excerpts of Sara De Quintana who testified on Decedent and Del Rio’s intoxication levels as cited in the separate statement. The forms of the objections are not compliant with CRC Rule 3.1354 as they fail to quote the specific testimony at issue. Also, objections to facts stated in the separate statement are not proper. Rather, written objections must be made to specific evidence. (CRC Rule 3.1354(b).) On the merits, the Court overrules objection nos. 1-2.
· Declaration of Officer Rudy Campos and the Traffic Collision Report: Officer Campos was the responding officer for the subject incident. He recollects the incident and states that he prepared the Traffic Collision Report. Objection no. 3 is sustained as to the Traffic Collision Report only, but not to the declaration’s contents. Vehicle Code, §20013 provides: “No such accident report shall be used as evidence in any trial, civil or criminal, arising out of an accident….” A police officer’s report is not admissible under the business records or official records exception to the hearsay rule, or even if the officer testified in court, because his opinion that one party was “responsible” for the accident is an improper legal conclusion. (Carlton v. Department of Motor Vehicles (1988) 203 Cal.App.3d 1428, 1432; see Kramer v. Barnes (1963) 212 Cal.App.2d 440, 446; Hoel v. City of Los Angeles (1955) 136 Cal.App.2d 295, 309; Witkin Cal. Evid. (5th Ed.) §240 Hearsay – Police and Other Accident Reports [stating police reports made by an officer who did not see the accident constitute hearsay statements of others and the opinions of officers].)
FJG Defendants submitted evidentiary objections to the declaration of V. Paul Herbert. The Court overrules the objections as to nos. 1-14, but is sustained in part as to page 7, lines 6-9 in paragraph 22. While some objections are overruled, the Court notes that many of Mr. Herbert’s conclusions are quite general, and may not be admitted at trial if not backed by data and measurements.
As an initial matter, the Court discusses whether the Irwindale parking regulation is preempted by California law.
“The state's plenary power and its preemption of the entire field of traffic control are stated in Vehicle Code section 21 .... Thus, unless 'expressly provided' by the Legislature, a city has no authority over vehicular traffic control.” (Barajas v. City of Anaheim Vehicle Code, §21 states: “Except as otherwise expressly provided, the provisions of this code are applicable and uniform throughout the state and in all counties and municipalities therein, and a local authority shall not enact or enforce any ordinance or resolution on the matters covered by this code, including ordinances or resolutions that establish regulations or procedures for, or assess a fine, penalty, assessment, or fee for a violation of, matters covered by this code, unless expressly authorized by this code.” (Vehicle Code, §21(a).)
The California Vehicle Code states in relevant part:
· §22507(a) states in relevant part: “Local authorities may, by ordinance or resolution, prohibit or restrict the stopping, parking, or standing of vehicles, including, but not limited to, vehicles that are six feet or more in height (including any load thereon) within 100 feet of any intersection, on certain streets or highways, or portions thereof, during all or certain hours of the day.”
· §22507.5(a) states: “Notwithstanding Section 22507, local authorities may, by ordinance or resolution, prohibit or restrict the parking or standing of vehicles on certain streets or highways, or portions thereof, between the hours of 2 a.m. and 6 a.m., and may, by ordinance or resolution, prohibit or restrict the parking or standing, on any street, or portion thereof, in a residential district, of commercial vehicles having a manufacturer's gross vehicle weight rating of 10,000 pounds or more. The ordinance or resolution relating to parking between the hours of 2 a.m. and 6 a.m. may provide for a system of permits for the purpose of exempting from the prohibition or restriction of the ordinance or resolution, disabled persons, residents, and guests of residents of residential areas, including, but not limited to, high-density and multiple-family dwelling areas, lacking adequate offstreet parking facilities. The ordinance or resolution relating to the parking or standing of commercial vehicles in a residential district, however, shall not be effective with respect to any commercial vehicle, or trailer component thereof, making pickups or deliveries of goods, wares, and merchandise from or to any building or structure located on the restricted streets or highways or for the purpose of delivering materials to be used in the actual and bona fide repair, alteration, remodeling, or construction of any building or structure upon the restricted streets or highways for which a building permit has previously been obtained.”
Irwindale Municipal Code (“IMC”) states in relevant part:
· §10.28.150 – Parking time limited – During certain times. “Whenever, in the opinion of the city council, the parking of vehicles in any area constitutes a traffic hazard during certain times or hours, the city council may, by resolution, designate the same as a hazard during such times or hours and order signs to be erected in such area or along the curbing adjacent thereto prohibiting parking in such area during such times or hours, and parking thereafter in such area during such times or hours is prohibited.”
· §10.28.182 - Overnight parking restricted on designated streets. “It shall be unlawful for any person to park or store any vehicle, truck, truck tractor, or trailer on the following designated streets between the hours of twelve midnight and five a.m.: … 9. Los Angeles Street ….”
The accident occurred on Los Angeles Street. Parking is permitted on both sides of Los Angeles Street between the hours of 5 a.m. and midnight and is prohibited by city ordinance between midnight and 5 a.m. (FJG Fact 3.) On September 24, 2016, Gonzalez parked his truck with the attached trailer at about 3 p.m. on the east side of Los Angeles Street. (FJG Fact 1.) The accident occurred around 12:30 a.m. on September 25, 2016 when Decedent and Hasson were exiting left from the AmVets parking lot and Del Rio was riding his motorcycle on Los Angeles Street. (FJG Fact 5-7, 9-10.) Gonzalez moved his truck after the subject accident occurred, with the aid of police officers who helped him make a U-turn. (FJG Fact 4, 13.)
FJG Defendants argue that the IMC, §10.28.182 is preempted by the Vehicle Code, §22507.5 because the Vehicle Code gives local authorities an express limited right to regulate parking of commercial vehicles between 2 a.m. and 6 p.m. only. Thus, they argue that IMC §10.28.182’s restriction from 12 a.m. to 5 p.m. is invalid.
However, the Court does not find that FJG Defendants have fully upheld their initial burden on the preemption issue. Vehicle Code, §22507.5(a) provides that local authorities may (1) restrict the parking of vehicles from 2 a.m. to 6 a.m. unless a permit is given, and (2) restrict parking in a residential district of commercial vehicles having a manufacturer’s gross weight rating of 10,000 pounds or more unless the commercial vehicle is making pickups or deliveries of goods at buildings located on the restricted street, or is making repairs, etc. for which a building permit was obtained. Thus, there are two separate categories of allowable ordinances—one for parking restrictions for any type of vehicle from 2 a.m. to 6 a.m. or one for parking restrictions for commercial vehicles in residential districts.
Here, FJG Defendants have not provided the Court with evidence showing what was specifically written on the parking restriction sign. Also, FJG Defendants have not shown whether the parking restriction was enforced in a residential district. The Court notes that in their opposition, Plaintiffs state that the AmVets building is in an “industrial area” of Irwindale and cites to Irwindale’s PMK’s deposition testimony for support. (Pl.’s Fact 2; Lambert Decl., Ex. 2 [John P. Fraijo Depo. at pp.74, 121].) However, the Court cannot ascertain from Mr. Fraijo’s deposition testimony whether he is referring to the AmVets building or whether he is speaking generally to parking restrictions in industrial areas. It is also unclear what the weight of FJG Defendants’ load was. Thus, the Court cannot ascertain whether IMC, §10.28.182 is invalidated or preempted by the Vehicle Code. As such, FJG Defendants have not upheld their burden on the preemption issue.
In opposition, Plaintiffs argue that Vehicle Code, §22507 gives Irwindale authority to restrict the parking of vehicles that are 6 feet or more in height within 100 feet of any intersection during all or certain hours of the day. However, there is no indication that the portion where Gonzalez was parked was within 100 feet of an intersection. At most, Plaintiffs only provide facts that Gonzalez parked his vehicle approximately 100 feet from the AmVets driveway (which is not an intersection). (Pl.’s Fact 13, 25.) Thus, this argument in opposition fails to raise a triable issue of material fact on the preemption issue. However, this issue is not dispositive of the ruling on FJG Defendants’ motion.
The elements of a negligence cause of action are “duty, breach of duty, proximate cause, and damages.” (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 892.)
FJG Defendants argue that they did not owe a duty of care to Plaintiffs because they had simply parked their vehicle on Los Angeles Street, along with several other cars near the AmVets driveway. (FJG Fact 7.) Gonzalez states that he has parked his truck there on many prior occasions without incident (across the street from his home) and was informed by police that he should park on that side of Los Angeles Street because parking tickets were cheaper. FJG Defendants argue that it was not reasonable foreseeable that parking a tractor-trailer behind several other vehicles would cause an accident.
FJG Defendants’ arguments are insufficiently backed by evidence to carry the burden of showing that there was no legal duty owed to Plaintiffs.
In opposition, Plaintiffs argue that foreseeability is a question of fact and thus summary judgment cannot be granted. “Ordinarily, foreseeability is a question of fact for the jury. … It may be decided as a question of law only if, ‘under the undisputed facts there is no room for a reasonable difference of opinion.’” (Bigbee v. Pacific Tel. & Tel. Co. Plaintiffs also argue that the Rowland v. Christian (1968) 69 Cal.2d 108 factors should be applied to see whether there is an exception to FJG Defendants’ duty to act responsibly and with ordinary care or skill in the management of their property or person (Civ. Code, §1714). Foreseeability is only a single factor in the Rowland analysis.
In opposition, Plaintiffs present the declaration of V. Paul Herbert, C.P.S.A., who has an expert who has experience in the trucking industry and has routinely testified concerning the standard of care for operating and maintaining commercial vehicles, to opine as to the standard of care for those in the trucking industry. (Herbert Decl., ¶13.) A review of the declaration shows that Mr. Herbert has not actually stated what the standard of care for such an individual is, but only opines that Gonzalez breached the standard of care by parking his tractor-trailer near the AmVets driveway in a manner that blocked sight lines. (Id., ¶24.) This declaration is not sufficient to inform the Court or the parties of what duties Gonzalez owed. However, because the burden did not shift to Plaintiffs to raise a triable issue of material fact, as FJG Defendants did not uphold their initial burden on this issue of duty.
2. Negligence Per Se
Negligence per se is not a separate cause of action, but creates an evidentiary presumption that affects the standard of care in a cause of action for negligence. (Johnson v. Honeywell Internat. Inc. (2009) 179 Cal.App.4th 549, 555.) Evidence Code, §669 states:
(a) The failure of a person to exercise due care is presumed if:
(1) He violated a statute, ordinance, or regulation of a public entity;
(2) The violation proximately caused death or injury to person or property;
(3) The death or injury resulted from an occurrence of the nature which the statute, ordinance, or regulation was designed to prevent; and
(4) The person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted.
(b) This presumption may be rebutted by proof that:
(1) The person violating the statute, ordinance, or regulation did what might reasonably be expected of a person of ordinary prudence, acting under similar circumstances, who desired to comply with the law; or
(Evid. Code, § 669.)
FJG Defendants argue that the parking restriction on Los Angeles Street was not intended to protect against the alleged harm. FJG Defendants fail to provide any legislative history with regard to the Vehicle Code at issue or the purpose of the local IMC ordinance. At most, FJG Defendants only provide arguments that the parking restrictions was not for evening sightline issues since there are hours of darkness before midnight. (Mot. at p.16.)
However, in ruling on a summary judgment motion, the Court may consider all the evidence presented. (CCP §437c(c).) With the opposition papers, Plaintiff provides evidence that Irwindale’s intention of the parking restriction included the following:
WHEREAS, the Planning Commission found that expanding the number of streets where overnight vehicle parking is prohibited will significantly improve vehicle circulation and reduce traffic impacts in the areas where parking would be prohibited; and
WHEREAS, the Planning Commission further found that expanding the number of streets where overnight vehicle parking is prohibited will result in safeguarding the public health, safety and welfare of the community insofar as statistics by the Irwindale Police Department reveal a direct correlation between overnight vehicle parking and the increasing incidences of crime in those areas where the vehicles are left parked overnight ….
(Pl.’s Fact 16; Lambert Decl., Ex. 10 [Irwindale Ordinance No. 562] [emphasis added].)
Based on the intention of the Irwindale City Council, the language broadly covers vehicle circulation, traffic impacts, and reducing crime. Plaintiffs have not raised triable issues of material fact showing that there was an issue with vehicle circulation or heavy traffic on the night of the incident, nor have they shown that Decedent’s death occurred as a result of increased incidences of crime due to FJG Defendants’ vehicle being parked on Los Angeles Street. They also have not shown that the local ordinance to restrict overnight parking was in place to protect AmVets patrons from leaving the parking lot.
In addition, based on City Council’s reasoning for the parking restriction, Decedent does not appear to fall within the class of persons whose protections the statute, ordinance, or regulation was adopted. For example, Decedent was not driving on Los Angeles Street where the flow of traffic was impeded due to parked vehicles, nor was he a victim of crime associated with parked vehicles overnight.
Thus, on this record it appears that the intent of the IMC was not to protect a class of individuals like Decedent. Further, Plaintiffs have not raised a triable issue of material fact showing that a standard of care (or duty) may be imposed on FJG Defendants on the basis of negligence per se. While this does not affect the result of the motion, the Court felt that the parties were owed the analysis in preparation for trial.
The issue of causation is ordinarily a question of fact for the jury but may be decided as a question of law only if, under undisputed facts, there is no room for a reasonable difference of opinion. (Nichols v. Keller (1993) 15 Cal.App.4th 1672, 1687.)
First, FJG Defendants provide evidence that the autopsies of Decedent and Del Rio showed that their blood alcohol content exceeded the legal limit. (FJG Fact 14-15.) FJG Defendants argue that Decedent and Del Rio’s combined negligence and intoxication was a superseding, intervening act that was not foreseeable such that FJG Defendants’ conduct was not the legal or proximate cause. However, this argument at most may go to comparative negligence of the parties, but does not necessarily absolve FJG Defendants of liability outright.
Second, FJG Defendants argue that there is no evidence that their truck was a substantial factor in causing the subject accident because other cars were parked closer to the AmVets driveway and there is no evidence that sightlines were obstructed because of its truck. It is undisputed that there were several vehicles (including trucks) parked between FJG’s truck and the AmVets driveway on the eastbound Los Angeles Street curb at the time of the accident. (FJG Fact 7.) However, this fact alone is insufficient to determine whether FJG Defendants cannot be held liable as a matter of law. Again, this may indicate some sort of comparative negligence on the part of the other owners of the illegally parked vehicles. Further, based on the evidence provided by Gonzalez, it is unclear what kind of vehicles were parked closer to the AmVets parking lot and whether they were large tractor-trailers, etc.
Third, FJG Defendants argue that Plaintiffs cannot prove that FJG’s truck was a substantial factor in causing Plaintiffs’ harm because there is no evidence that the accident occurred because either Decedent or Del Rio’s vision was obstructed by anything or FJG’s truck. As a result of the accident between Decedent and Del Rio, both were pronounced dead at the scene and neither made statements as to whether the tree located on the sidewalk immediately left of the AmVets driveway or any vehicles parked on Los Angeles Street obstructed their view prior to the collision. (FJG Fact 8, 11-12.)
There is also no testimony from Hasson that the view was obstructed when she and Decedent were exiting the AmVets driveway, and no expert testimony that the parked vehicles on Los Angeles Street amounted to an obstruction of the sightlines of the roadway. Rather, Hasson (Decedent’s wife) testified in her deposition that Decedent did not say anything before the accident. (FJG Fact 11; FJG Evid., Ex. B [Hasson Depo. at p.156].) In opposition, Plaintiffs “dispute” whether Decedent made any statement about obstruction of view, but fail to provide any opposing evidence on this issue.
Despite the above analysis, as pointed out by Plaintiffs, FJG Defendants failed to carry their initial burden in showing that causation cannot be established. (See Opp. at pp.17-18.) To the extent FJG Defendants attempt to argue that this is a “no evidence” motion on this issue, they must introduce admissible evidence (by declaration or otherwise) that, “discovery was ‘sufficiently comprehensive, and plaintiffs' responses so devoid of facts, as to lead to the inference that plaintiffs could not prove [their case] upon a stringent review of the direct, circumstantial and inferential evidence.’” (Casey v. Perini Corp. (2012) 206 Cal.App.4th 1222, 1231 [quoting Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96, 107].) In addition, they must also establish that, by the time the case comes up for trial, Plaintiffs “cannot reasonably expect to obtain” the evidence necessary to raise a triable issue of fact on the issue. (Schieding v. Dinwiddie Construction Company (1999) 69 Cal.App.4th 64, 83; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854-855 [noting that a defendant seeking summary judgment “must show that the plaintiff does not possess needed evidence . . . the defendant must also show that the plaintiff cannot reasonably obtain needed evidence . . .”].)
It is FJG Defendants’ burden in summary judgment to show that Plaintiffs’ evidence is lacking that there was obstruction of view on Los Angeles Street, or to at least present some affirmative evidence (i.e., by way of an expert declaration) that there was no obstruction of the sightlines of the roadway at the time of the incident even if Gonzalez’s vehicle (or a similar vehicle) was parked. They have failed to do so and thus have not upheld their burden here.
Thus, the Court does not find that FJG Defendants have upheld their initial burden in summary judgment on the issue of causation as they have not shown the necessary components of a no-evidence motion.
Accordingly, FJG Defendants’ motion for summary judgment as to the complaint is denied. As such, their request for summary judgment as to the cross-complaints is denied.
H&S’S MOTION FOR SUMMARY JUDGMENT
H&S filed a motion for summary judgment on September 3, 2019, seeking summary judgment on Plaintiffs’ complaint and Joey Pena’s FAC on the grounds that there is no triable issue of material facts as to the negligence, wrongful death, and Bystander/Dillon causes of action. H&S also seeks summary judgment on the cross-complaints filed by the Del Rio Estate, Irwindale, and Pedro and Mayte Hernandez, arguing that if judgment is entered in H&S’s favor on Plaintiffs’ complaint, then there is no triable issue of material fact on the cross-complaints.
A. Evidentiary Objections
Plaintiffs submitted evidentiary objections with their opposition brief. The Court rules as follows:
· Traffic Collision Report: Objection no. 1 is sustained.
· Sara De Quintana Deposition excerpts and Laboratory Analysis Summary: Objection nos. 2-3 are overruled.
H&S submitted objections with the reply brief. The objection to Mr. Herbert’s declaration is overruled as to nos. 1-9, but sustained as to page 7, lines 6-9.
H&S moves for summary judgment, arguing that there is no evidence of causation, it did not owe a duty to Plaintiffs, and thus there was no breach thereto.
H&S argues that there is no evidence of causation that the parked cars obstructed Decedent’s view which caused the accident. H&S argues that Decedent did not state that his view was obstructed (plus he was pronounced dead at the scene of the accident so he is unable to now), plus Hasson testified that Decedent did not say anything to her about having his view obstructed when he was exiting the AmVets driveway. (H&S Fact 9.) H&S also provides facts that even if Decedent’s view was obstructed, he had cleared the said obstructions when he was making his left turn. According to Mr. Hernandez, a witness of the accident, the accident occurred after Decedent had passed the first eastbound lane (i.e., the AmVets driveway and the parked vehicles on Los Angeles Street) and when he was in the second eastbound lane. (H&S Fact 23.) H&S also argues that there were several other vehicles parked along the Los Angeles Street curb such that there were cars between the FJG truck and the AmVets driveway, as well as the tree. (H&S Fact 5.) Thus, H&S contends that nobody will ever know the cause of accident, as there are other factors, such as Del Rio speeding on his motorcycle, the intoxication of Decedent and Del Rio, etc.
However, as discussed above, a “no evidence” motion must introduce by admissible evidence that the discovery was comprehensive and that Plaintiffs’ discovery responses were factually devoid. Here, H&S has not presented Plaintiffs’ discovery responses with the moving papers to show whether Plaintiffs lack any evidence to prove their case. There is also no showing provided by H&S that Plaintiffs cannot reasonably expect to obtain such evidence necessary to raise a triable issue of material fact.
Thus, the Court does not find that H&S has established its initial burden in summary judgment on the element of causation.
H&S argues that it did not owe a duty to Plaintiffs because multiple vehicles were parked on the Los Angeles Street curb between the AmVets driveway and FJG’s truck. (Mot. at p.11.) Thus, H&S argues that no reasonable person could foresee that parking behind other vehicles would prevent a person exiting a driveway from seeing a motorcycle coming down the street. However, H&S fails to provide the Court with any evidence regarding the reasonably foreseeable possibility of obstruction of sight lines as a result of cars being parked on the street, by expert declaration or otherwise. Thus, the Court does not find that H&S has upheld its initial burden in summary judgment on the issue of duty.
3. Negligence Per Se
H&S also argues that there is no basis for negligence per se because the local parking ordinance on Los Angeles Street was not set in place to protect drivers exiting the AmVets parking lot. Similar to the Court’s discussion above, the Court does not find that negligence per se applies in the context of this case as Decedent does not fall within the class of individuals the ordinance was intended to protect (i.e., victims of crime as a result of overnight parking, or someone who was impacted by traffic and vehicle circulation).
However, even if negligence per se does not apply, this is not dispositive of H&S’s motion or Plaintiffs’ complaint. As discussed above, there are still issues regarding the other elements of negligence that H&S has not upheld its initial burden on.
The Court finds that H&S has not upheld its initial burden in summary judgment and that there are triable issues of material fact. Thus, the Court denies H&S’s motion for summary judgment on the complaints in the Hasson and Pena Actions, as well as the cross-complaints.
JTS’S MOTION FOR SUMMARY JUDGMENT
On September 3, 2019, JTS filed a motion for summary judgment on the Hasson complaint, arguing there are no triable issue of material facts as to the negligence, wrongful death, and Bystander/Dillon causes of action. JTS argues that Plaintiffs cannot establish that JTS owed a duty or breached a duty owed to Plaintiffs and was negligent per se, and Plaintiffs’ claims are preempted by federal law.
A. Evidentiary Objections
Plaintiffs submitted evidentiary objections with their opposition brief. Objection no. 1 to the Traffic Collision Report and Declaration of Officer Rudy Campos is sustained as to the Traffic Collision Report and overruled as to the declaration’s contents.
JTS argues that Plaintiffs’ claims against JTS that JTS was negligent in its oversight of H&S and FJG or was negligent in its selection of H&S as a motor carrier (Compl., ¶36) are preempted because it imposes a duty that would affect JTS’s services and prices offered to the public. JTS argues that Plaintiffs’ action against it is preempted by the Federal Aviation Administration Authorization Act at 49 U.S.C. §14501(c)(1) (“FAAAA”).
JTS is a broker licensed by the Federal Motor Carrier Safety Administration and is licensed to arrange for the transportation of its customers’ freight from point to point. (JTS Fact 12-13; JTS Evid., Ex. K [JTS’s PMK, Alicia Ruiz Depo. at pp.22-23].) A broker is “a person, other than a motor carrier or an employee or agent of a motor carrier, that as a principal or agent sells, offers for sale, negotiates for, or holds itself out by solicitation, advertisement, or otherwise as selling, providing, or arranging for, transportation by motor carrier for compensation.” (49 U.S.C. §13102(2).) JTS is not a motor carrier, does not own any truck/trailer equipment, and does not haul loads without using outside carriers. (JTS Fact 14.) A motor carrier is defined as a person providing motor vehicle transportation for compensation. (49 U.S.C. §13102(14).)
FAAAA, §14501(c)(1) states that “a State [or] political subdivision of a State … may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier … or any motor private carrier, broker, or freight forwarder with respect to the transportation of property.”
Here, the Court does not find that JTS has upheld its initial burden in showing that this section applies—namely, that the City of Irwindale, the County of Los Angeles, or the State of California enacted a law, regulation, or other provision regarding the price, route, or service of a motor carrier or broker with respect to the transportation of goods. The Court also notes that most (if not all) of the cases cited by JTS are federal cases (some of which have not been published) and are based on non-California law. There is also a lack of showing by JTS that this section even applies as JTS has not shown whether the haul at issue (i.e., grapes being shipped for Costco) was a matter of intrastate or interstate commerce.
Thus, JTS’s motion will not be granted on the basis of preemption.
JTS argues that it was not reasonably foreseeable that it owed any duty to Plaintiffs or that its actions would have lead to the subject incident. As stated above, JTS is a licensed broker that arranges transportation of its customers’ freight, but it does not own any truck/trailer equipment or haul loads itself without using outside carriers.
On September 7, 2016, JTS and H&S entered into a Broker Carrier Agreement, such that H&S was to pick up the load on September 24 in Bakersfield and drop it off in Mira Loma on September 26. (JTS Evid., Exs. H-J.) The Agreement forbade H&S from re-brokering, interlining, or transferring the transportation of shipments tendered by JTS to H&S, but H&S re-brokered the load by engaging FJG Defendants. (Id., Exs. H [Agreement at p.1, ¶3], Ex. I [Addendum at bullet point 13].) JTS’s PMK, Alicia Ruiz, states that she had no knowledge that H&S had re-brokered the load, the Agreement did not allow for re-brokering, and JTS did not know who FJG and Gonzalez were until the lawsuit. (Ruiz Depo. at 39:20-40:1, 32:20-44:6, 96:24-97:2, 100:5-18, 129:7-130:22, 132:18-133:14, 150:19-22.) Ms. Ruiz states that at most H&S had informed JTS that “Frank Gonzalez” would be hauling the load, but JTS was only aware of Frank’s name and thought he was H&S’s driver and did not know that Frank was a driver from a different company or that he was “Francisco Gonzalez”. (Id. at pp.129-130.) Carlos Chamale (H&S’s PMK) also testified that H&S subcontracted the shipment to Gonzalez and JTS did not informed about the H&S-FJG subcontract. (JTS’s Evid., Ex. G [Carlos Chamale Depo. at 39:20-40:16, 94:7-25].)
Based on the evidence provided by JTS, JTS has upheld its initial burden in showing that it had no knowledge of and did not consent to the re-brokering/subcontracting of its Agreement with H&S to FJG Defendants. Thereby, JTS has shown that it did not instruct the parking of the tractor-trailer nor know that Gonzalez would park the vehicle on Los Angeles Street. JTS argues that since it did not owe a duty to Plaintiffs and the accident was not reasonably foreseeable from JTS’s Agreement with H&S, it thereby could not have breached any duty to Plaintiffs.
In opposition, Plaintiffs argue that JTS had a non-delegable duty to operate its trucks safely and is liable for the negligence of its drivers/independent contractors who cause a traffic collision. “Where an activity involving possible danger to the public is carried on under public franchise or authority the one engaging in the activity may not delegate to an independent contractor the duties or liabilities imposed on him by the public authority … and generally speaking there are many situations in which the person cannot absolve himself from liability by delegating his duties to an independent contractor.” (Snyder v. Southern Cal. Edison Co. (1955) 44 Cal.2d 793, 799.)
Plaintiffs argue that JTS is engaged in an activity involving possible danger to the public and operating under federal authority because it is foreseeable that a truck hauling a load for JTS could cause an accident by obstructing site lines. However, Plaintiffs have not upheld their shifted burden in showing that there is a triable issue of material fact that it was foreseeable that H&S would essentially violate its Agreement with JTS by re-brokering or subcontracting the hauling of the load to FJG Defendants and that FJG Defendants would park their vehicle with the load/trailer on Los Angeles Street. In other words, there is no showing by Plaintiff that JTS undertaking its obligations as a licensed broker (i.e., negotiating and arranging the transportation of goods by a motor carrier) is a dangerous activity and that it would be reasonably foreseeable that brokering such transactions would cause or lead to this type of injury. Plaintiff has not shown that JTS’s duties would have extended further to FJG Defendants’ actions (of whom JTS was not aware).
Plaintiffs also argue that JTS was aware that “Frank Gonzalez” was going to be the driver of the load and thus JTS had knowledge that FJG was performing the delivery. (Pl.’s Fact 51-52; Lambert Decl., Ex. 15 [Emails].) However, the email dated September 24, 2016 by Rita Sanchez of H&S only states that the driver is Frank Gonzalez but makes no reference to a different hauling company nor provides any indication that JTS gave consent for a different logistics company to perform the hauling. Thus, these arguments and evidence fail to raise a triable issue of material fact.
Finally, Plaintiffs argue that JTS, H&S, and FJG Defendants breached their duty of care by illegally and unsafely parking their tractor-trailer on Los Angeles Street and obstructing site lines. Specifically, towards JTS, Plaintiffs argue that JTS should have known where its tractor-trailer was parked because Ms. Ruiz (JTS’s PMK) testified that JTS may occasionally check in to determine the load’s location with its carrier (depending on customer demand), and thus its conduct fell below the standard of care. (Pl.’s Fact 51, 56, 57; Ruiz Depo. at pp.78-80.) However, Plaintiffs’ evidence does not establish that JTS had contacted H&S or Gonzalez or that H&S or Gonzalez contacted JTS regarding the whereabouts of the load on the evening of the subject incident, nor do Plaintiffs provide evidence that JTS had a duty to do so or an expert declaration regarding a broker’s standard of care/duty. Thus, Plaintiffs have not raised a triable issue of material fact on this issue, nor have they shown that JTS knew or should have known where the load was located and that it could have foreseeably caused a car collision between two vehicles unrelated to the tractor-trailer.
Thus, the Court finds that JTS has upheld its initial burden in summary judgment on the issue of duty and breach regarding negligence, and Plaintiffs have failed to uphold shifted burden in showing that there is a triable issue of material fact.
D. Negligence Per Se
JTS puts forth no evidence or arguments regarding whether Decedent was in the class of persons who protection the statute, ordinance or regulation was adopted. Instead, it argues that Plaintiffs have put forth no evidence on the subject. In opposition, Plaintiffs argue that IMC, §10.28.182 prevented any vehicle, truck, truck tractor, or trailer from 12:00 a.m. midnight to 5:00 a.m. on Los Angeles Street. Plaintiffs argue that this accident occurred between midnight to 5:00 a.m. and thus if the ordinance had been complied with, the accident would not have occurred. Plaintiff provides evidence that Irwindale’s intention of the parking restriction was to improve vehicle circulation and reduce traffic impacts that would result in safeguarding the public health, safety, and welfare of the community. (Pl.’s Fact 16; Lambert Decl., Ex. 10 [Irwindale Ordinance No. 562].)
However, even if Decedent was in the class of persons protected by the IMC, JTS argues that it cannot be held liable for negligence per se because JTS did not park any vehicle on Los Angeles Street at the time of the subject incident, it did not consent to H&S re-brokering the hauling of the load to another company, and even if H&S had parked its tractor-trailer on Los Angeles Street (which it did not), H&S would have had a contractual and legal duty to abide by all laws, regulations, and rules such as parking its vehicle in accordance with the law. (Agreement at ¶¶6, 9.) In addition, the analysis regarding this factor is essentially the same as discussed above in the negligence cause of action.
Thus, the Court finds that JTS has negated an element regarding negligence per se and Plaintiffs have not raised a triable issue of material fact thereto.
Based on the reasons discussed above, the Court grants JTS’s motion for summary judgment on Plaintiffs’ Complaint in the Hasson Action.
IRWINDALE’S MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION
Irwindale filed its motion for summary judgment on the Hasson complaint and the Pena FAC on September 3, 2019, arguing that Irwindale is entitled to summary judgment:
· 1. With respect to Plaintiffs’ claims that it failed to enforce parking restrictions along Los Angeles Street thereby creating a dangerous condition of Public Property because Irwindale is statutorily immune from such claims pursuant to Government Code §§815, 815.2 and 818.2;
· 2. With respect to Plaintiffs’ claims that it failed to install traffic warning signs at the location of the subject incident thereby creating a dangerous condition of public property because Irwindale is statutorily immune from such claims pursuant to Government Code §§830.4 and 830.8;
· 3. With respect to Plaintiffs’ claims that inadequate lighting at the accident location created a dangerous condition of public property because Irwindale has no legal duty to provide lighting;
· 4. Insofar as Plaintiffs cannot establish a triable issue of material fact that the alleged failure to enforce parking or speed restrictions on Los Angeles Street by Irwindale was a substantial factor in causing the collision between Decedent and Del Rio; and
· 5. Insofar as Plaintiffs cannot raise a triable issue of material fact that the an allegedly overgrown city-owned Parkway tree was a substantial factor in causing or contributing to the collision between Decedent and Del Rio.
Alternatively, Irwindale seeks summary adjudication on the following grounds:
· Issue 1: Irwindale is statutorily immune from claims concerning alleged failure to enforce parking restrictions, failing to set or enforce speed limits, failing to provide signage and lighting.
· Issue 2: Plaintiffs’ 2nd cause of action for dangerous condition on public property must be adjudicated against plaintiffs because Decedent and Del Rio were not exercising due care at the time of the incident.
· Issue 3: Plaintiffs’ second cause of action fails because Plaintiffs cannot establish that an alleged sight line obstruction (bushy tree/illegally parked vehicles) was a substantial factor in causing the subject incident.
A. Evidentiary Objections
Plaintiffs submitted evidentiary objections with their opposition brief. The Court rules as follows:
· Dr. Juan Carrillo, M.D.’s deposition excerpts: Objection no. 1 is overruled.
· Traffic Collision Report: Objection nos. 2-3, 5, and 7 are sustained.
· Sarah Quintana’s deposition excerpts: Objection no. 4 is overruled.
· Laura Nieto’s declaration: Objection no. 6 is overruled.
Irwindale submitted objections with the reply brief. The objection to Mr. Herbert’s declaration is sustained as to page 7, lines 6-9. The remainder is overruled.
B. Government Code, §818.2 Immunity
Government Code, §818.2 states: “A public entity is not liable for an injury caused by adopting or failing to adopt an enactment or by failing to enforce any law.”
Irwindale argues that it is entitled to absolute immunity pursuant to section 818.2. Irwindale argues that Plaintiffs’ arguments are speculative that had Irwindale enforced the “no overnight parking” restrictions along Los Angele Street along with posted speed limits, the accident would not have occurred.
In opposition, Plaintiffs argue that while the Hasson Complaint alleges that Irwindale failed to adequately enforce the parking regulations and the speed limit in the area (City Fact 19-20), they argue that this is not the only claims alleged against Irwindale. According to the Hasson Complaint, Plaintiffs also allege that Irwindale failed to prohibit or warn about the danger of left turns for vehicles exiting the AmVets driveway on Los Angeles Street, failed to prohibit parking in areas adjacent to the driveway and protect sight lines, failed to provide adequate lighting and signage, and failed to warn of a dangerous condition. (City Fact 16-18, 21-22; see also City Fact 23-30 re the Pena Complaint].) There are also allegations that Irwindale knew or should have known about a bushy tree that contributed to the dangerous condition. (Hasson Compl., ¶¶42-44.)
If a plaintiff pleads several theories or anticipates affirmative defenses by a show of excusing events or conditions, the challenge to the opponent is made by the complaint, requiring the moving defendant to affirmatively react to each theory and excusing or justifying event, or condition which supports a theory, if the motion is to be successful. (Pultz v. Holgerson (1986) 184 Cal.App.3d 1110, 1114.) As a result, when the plaintiff pleads several theories, the defendant has the burden of demonstrating that there are no material facts requiring trial on any of them. (Wright v. Stang Manufacturing Co. (1997) 54 Cal.App.4th 1218, 1228.)
As this immunity does not dispose of the entire cause of action alleged against Irwindale, and there are triable issues of material fact as to the dangerous condition of public property cause of action (see below), the Court does not find that summary judgment or summary adjudication is proper on the basis of section 818.2.
C. Government Code, §830.8 Immunity (Signage) and Streetlight Installations
Irwindale also claims Government Code, §830.8 immunizes it from liability for any failure to install signage or traffic control devices at the accident location. Section 830.8 states: “Neither a public entity nor a public employee is liable under this chapter for an injury caused by the failure to provide traffic or warning signals, signs, markings or devices described in the Vehicle Code. Nothing in this section exonerates a public entity or public employee from liability for injury proximately caused by such failure if a signal, sign, marking or device (other than one described in Section 830.4) was necessary to warn of a dangerous condition which endangered the safe movement of traffic and which would not be reasonably apparent to, and would not have been anticipated by, a person exercising due care.”
Irwindale also argues that it is immune from liability for not installing streetlights. (See Antenor v. City of Los Angeles (1985) 174 Cal.App.3d 477, 483 [stating that in absence of a statutory or charter provision to the contrary, it is generally held that a municipality is under no duty to light its streets and failure to do so is not actionable negligence].) This lack of installing streetlights does not appear to be codified in the Government Code.
While section 830.8 immunity and the general notion that a public entity has no duty to provide adequate lighting may apply to absolve Irwindale of some theories of liability under the dangerous condition of public property cause of action alleged against it, they fail to dispose of the entire cause of action, plus there are triable issues of material fact (as discussed below) that would prevent granting summary judgment/adjudication at this time. Thus, for the same reasons regarding section 818.2 liability, the Court does not find that summary judgment/adjudication is proper on the basis of section 830.8 immunity or lack of duty for installing streetlights.
D. Dangerous Condition of Public Property
1. Relevant Law
“A public entity is liable for injury caused by a dangerous condition of its property if (1) the property was in a dangerous condition at the time of the injury; (2) the dangerous condition caused the injury; (3) the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred; and (4) that either (a) a negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the condition, or (b) the public entity had actual or constructive notice of the dangerous condition in time to have taken measures to protect against the dangerous condition.” (Moncur v. City of Los Angeles
A “dangerous condition” is a condition of public property that “create[s] a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it was reasonably foreseeable that it would be used.” (Gov’t. Code §830.) A condition that creates only a minor, trivial or insignificant risk of injury is not a dangerous condition. (Gov’t Code, §830.2; CACI 1102.) In determining whether a defect is trivial as a matter of law, the Court first “reviews evidence regarding the type and size of the defect. If that preliminary analysis reveals a trivial defect, the court considers evidence of any additional factors such as the weather, lighting, and visibility conditions at the time of the accident, the existence of debris or obstructions, and plaintiff's knowledge of the area.” (Stathoulis v. City of Montebello (2008) 164 Cal.App.4th 559, 567-68.) The existence of a dangerous condition is ordinarily a question of fact, but the issue may be resolved as a matter of law if reasonable minds can come to only one conclusion. (Cole v. Town of Los Gatos (2012) 205 Cal.App.4th 749, 759.) To establish a qualifying condition, the plaintiff must point to at least one physical characteristic of the property, which may even include the location of the property. (Id.)
2. Dangerous Condition - Due Care
Irwindale argues that Plaintiffs cannot establish that the property was being used with due care at the time of the subject accident. Namely, Irwindale argues that Decedent and Del Rio were intoxicated at the time of the accident and Del Rio was violating basic speed laws. (City Fact 6, 8, 9.)
“Although the public entity may assert the negligence of a plaintiff-user as a defense, it has no bearing on the determination of a dangerous condition in the first instance. They are separate questions of fact, for the trier of fact, and may not be combined or intertwined….” (Alexander v. State of California Ex Rel Dept. of Transportation (1984) 159 Cal.App.3d 890, 902.) Further, a “third party's negligent use does not negate the existence of a dangerous condition. What plaintiff is required to show, however, is that the condition of the property was dangerous as to him and as to the public generally. What we must determine therefore is whether in the abstract the factual situation in the case at bench could be found by the finder of fact to have created a dangerous condition without regard to the specific conduct of [defendant] or the plaintiff on this particular occasion.” (Mathews v. State of California ex rel. Dept. of Transportation (1978) 82 Cal.App.3d 116, 121; Gardner v. City of San Jose (1967) 248 Cal.App.2d 798, 805 [a “dangerous condition created by a public entity may be the proximate cause of an injury, even though the negligent act of another person has concurred in producing the injury.”].) Third party conduct unrelated to the condition of the property does not constitute a “dangerous condition” for which the public entity may be held liable; rather, the defect in the physical condition of the property must have some causal relationship to the third party conduct that injured the plaintiff. (Salas v. Dept. of Transportation (2011) 198 Cal.App.4th 1058, 1070; Cole v. Town of Los Gatos
Though there may be some negligence apportioned to Decedent and Del Rio, this does alone is not dispositive of whether the condition of the public property at Los Angeles Street was dangerous. The Court does not find that Irwindale has established that the condition of the roadway (including shrubbery and the parking laws) did not constitute a dangerous condition. It is Irwindale’s initial burden in summary judgment and/or summary adjudication to show that a dangerous condition did not exist on its public property. Further, the existence of a dangerous condition is ordinarily a question of fact.
Thus, the Court does not find that Irwindale has established its initial burden to show that the Los Angeles Street area did not constitute a dangerous condition.
Irwindale argues that this action is premised on the presence of illegally parked vehicles along Los Angeles Street and/or the presence of an allegedly overgrown parkway tree owned by Irwindale. Irwindale argues that the only possible evidence that could be presented to support such allegations are the testimonies of Decedent and Delrio and thus without such testimony, Plaintiffs cannot raise a triable issue of material fact. Irwindale thus argues that any other evidence would amount to mere speculation and thus causation is impossible to establish. (Mot. at p.17.)
However, the burden of showing that the dangerous condition did not cause the accident is on Irwindale. As discussed above, Irwindale has not established whether or not a dangerous condition existed—either in the form of the parking restrictions or the overgrown tree. In addition, to the extent Irwindale is arguing the element of causation can be disproved by way of a “no evidence” motion, it is Irwindale’s initial burden to show that it has received factually devoid discovery responses from Plaintiffs and a showing that Plaintiffs cannot reasonably expect to obtain the evidence necessary to raise a triable issue of fact on the issue—which may include expert testimony, accident reconstruction, declarations, etc. (See e.g., Cole v. Town of Los Gatos Further, Plaintiffs are “not required to establish the fact of causation with absolute certainty. It is sufficient if there is evidence from which reasonable men could conclude that it is more probable that the defendant's conduct was a cause, than that it was not.” (Valdez v. J. D. Diffenbaugh Co. (1975) 51 Cal.App.3d 494, 509.)
Irwindale has failed to uphold its burden on the element of causation.
For the reasons above, the Court does not find that summary judgment or, alternatively, summary adjudication is proper on Irwindale’s motion. Accordingly, the motion is denied.
CONCLUSION AND ORDER
FJG Defendants’ motion for summary judgment is denied.
H&S’s motion for summary judgment is denied.
JTS’s motion for summary judgment on Plaintiffs’ complaint in the Hasson Action is granted. JTS is ordered to electronically lodge with the Court and serve on Hasson Plaintiffs a proposed judgment within 10 days and to provide notice of this order.
Irwindale’s motion for summary judgment or, alternatively, summary adjudication is denied.
Defendants are ordered to give notice of this order.
 FJG Defendants rely on Capolungo v. Bondi (1986) 179 Cal.App.3d 346. In Capolungo, a woman riding a bicycle sued the owner of a car that was parked too long in a yellow-curb loading zone. She had swerved 1 foot to the left of the parked car and by doing so got struck by a passing vehicle. The Court of Appeal found that the Vehicle Code and local ordinance was not designed to prevent the type of accident that occurred. With regard to the Vehicle Code, the Court found that there was no indication that the state law’s purpose was to protect against the type of traffic accident that occurred in Capolungo. (Capolungo, supra, 179 Cal.App.3d at 352.) The purpose of the local ordinance was to provide access to the curb space and not to promote unobstructed passage of traffic in the curb lane. (Id.)
 The Court notes that H&S makes no arguments that it was not the entity that was hauling the load on Gonzalez’s truck or that it is not liable under such reasons. Rather, its motion for summary judgment is similar to the one brought by FJG Defendants and whether Gonzalez’s parking of the tractor-trailer was negligent.
 H&S makes essentially the same argument that FJG made regarding preemption. (Mot. at pp.15-17.) For the same reasons discussed above, the Court does not find that there is sufficient evidence to decide the preemption issue.
 As Irwindale did not uphold its initial burden on the issue of a dangerous condition, the burden does not shift to Plaintiffs to raise a triable issue of material fact. The Court notes that in opposition, Plaintiffs argue that the condition of Los Angeles Street was dangerous. Plaintiffs provide evidence that the property upon which AmVets is located and leased is owned by Irwindale pursuant to a written lease agreement. (Pl.’s Fact 20.) Rudy P. Campos, Jr. (Irwindale police officer) testified that it was common for big tractor-trailers to be parked on Los Angeles Street. (Pl.’s Fact 24.) Campos testified that he was aware that AmVets generally held events on Sunday evenings, police officers would patrol the events and parking lot, and that he observed vehicles being parked on Los Angeles Street past the posted hours. (Pl.’s Fact 22-23.) Defendant Gonzalez also testified that an Irwindale police officer told him to park his tractor-trailer in the location that caused the collision since parking tickets in that area were cheaper. (Pl.’s Fact 29-31.) Pedro Rodriguez (Irwindale PMK) states that Irwindale was responsible for the approximately 5-foot tree to the left of the AmVets driveway. (Pl.’s Fact 26-28.)