Search

Attributes

This case was last updated from Los Angeles County Superior Courts on 03/03/2019 at 08:39:38 (UTC).

JESSI LEE LOPEZ VS ROBERT DE LA CRUZ ET AL

Case Summary

On 06/01/2017 JESSI LEE LOPEZ filed a Personal Injury - Motor Vehicle lawsuit against ROBERT DE LA CRUZ. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are MARC D. GROSS and JON R. TAKASUGI. The case status is Other.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****3536

  • Filing Date:

    06/01/2017

  • Case Status:

    Other

  • Case Type:

    Personal Injury - Motor Vehicle

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

MARC D. GROSS

JON R. TAKASUGI

 

Party Details

Plaintiff and Petitioner

LOPEZ JESSI LEE

Defendants and Respondents

ABC RESOURCES INC

DE LA CRUZ ROBERT

DOES 1 TO 50

BABAK NEHORAY DOE21

ORANGE GROVE 938 LLC DOE22

SOLEIMAN ISRAEL NIM DOE34

JON ALAN IRVINE DOE33

KAMRAN GHAFOORI-TABRIZI DOE31

CYNTHIA AGUILAR DE LEON DOE32

WOODCLIFF CORPORATION DOE23

Not Classified By Court

DEFENDANTS ORANGE GROVE 938 LLC AND BABAK NEHORAY

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

TAYLOR JOHN C. ESQ.

TAYLOR JOHN CORNELL ESQ.

Defendant and Respondent Attorneys

PEARCE CHARLES W. ESQ.

FAENZA CHRISTOPHER E. ESQ.

HERZOG VANESSA K.

FRIEMAN DAVIDA M.

 

Court Documents

Substitution of Attorney

2/28/2019: Substitution of Attorney

Amendment to Complaint (Fictitious/Incorrect Name)

2/13/2019: Amendment to Complaint (Fictitious/Incorrect Name)

Notice

2/1/2019: Notice

Request for Dismissal

12/11/2018: Request for Dismissal

Stipulation to Continue Trial/FSC [and Related Motion/Discovery Dates] Personal Injury Courts Only (Department 91, 92, 93, 97)

10/29/2018: Stipulation to Continue Trial/FSC [and Related Motion/Discovery Dates] Personal Injury Courts Only (Department 91, 92, 93, 97)

REQUEST FOR DISMISSAL

9/13/2018: REQUEST FOR DISMISSAL

NOTICE OF POSTING JURY FEES

9/5/2018: NOTICE OF POSTING JURY FEES

DEFENDANTS, ORANGE GROVE 938, LLC AND BAHAK NEHORAY'S CROSS-COMPLAINT FOR: ETC.;

8/17/2018: DEFENDANTS, ORANGE GROVE 938, LLC AND BAHAK NEHORAY'S CROSS-COMPLAINT FOR: ETC.;

DEFENDANTS, ORANGEGROVE 938, LLC AND BABAK NEHORAY'S ANSWER TO PLAINTIFF'S COMPLAINT

8/17/2018: DEFENDANTS, ORANGEGROVE 938, LLC AND BABAK NEHORAY'S ANSWER TO PLAINTIFF'S COMPLAINT

AMENDMENT TO COMPLAINT

6/1/2018: AMENDMENT TO COMPLAINT

PROOF OF SERVICE SUMMONS

6/28/2018: PROOF OF SERVICE SUMMONS

PROOF OF SERVICE SUMMONS

6/28/2018: PROOF OF SERVICE SUMMONS

PROOF OF SERVICE SUMMONS

6/28/2018: PROOF OF SERVICE SUMMONS

PROOF OF SERVICE OF SUMMONS

8/3/2018: PROOF OF SERVICE OF SUMMONS

SUMMONS

6/1/2017: SUMMONS

PROOF OF SERVICE SUMMONS & COMPLAINT

6/29/2017: PROOF OF SERVICE SUMMONS & COMPLAINT

PROOF OF SERVICE SUMMONS & COMPLAINT

7/10/2017: PROOF OF SERVICE SUMMONS & COMPLAINT

DEFENDANTS ROBERT DE LA CRUZ AND ABC RESOURCES, INC. ANSWER TO COMPLAINT

7/14/2017: DEFENDANTS ROBERT DE LA CRUZ AND ABC RESOURCES, INC. ANSWER TO COMPLAINT

29 More Documents Available

 

Docket Entries

  • 02/28/2019
  • Substitution of Attorney; Filed by Orange Grove 938 LLC Doe22 (Defendant)

    Read MoreRead Less
  • 02/28/2019
  • Substitution of Attorney; Filed by Babak Nehoray Doe21 (Defendant)

    Read MoreRead Less
  • 02/27/2019
  • Request for Dismissal; Filed by Babak Nehoray Doe21 (Defendant); Orange Grove 938 LLC Doe22 (Defendant)

    Read MoreRead Less
  • 02/13/2019
  • Amendment to Complaint (Fictitious/Incorrect Name); Filed by Jessi Lee Lopez (Plaintiff)

    Read MoreRead Less
  • 02/01/2019
  • Notice (name extension) (Compendium of Evidence in Support of Motion for Summary Judgment); Filed by Babak Nehoray Doe21 (Defendant); Orange Grove 938 LLC Doe22 (Defendant)

    Read MoreRead Less
  • 02/01/2019
  • Declaration (name extension) (Declaration in Support of Notice of Motion and Motion for Summary Judgment); Filed by Babak Nehoray Doe21 (Defendant); Orange Grove 938 LLC Doe22 (Defendant)

    Read MoreRead Less
  • 02/01/2019
  • Request for Judicial Notice; Filed by Babak Nehoray Doe21 (Defendant); Orange Grove 938 LLC Doe22 (Defendant)

    Read MoreRead Less
  • 02/01/2019
  • Separate Statement; Filed by Babak Nehoray Doe21 (Defendant); Orange Grove 938 LLC Doe22 (Defendant)

    Read MoreRead Less
  • 02/01/2019
  • Motion for Summary Judgment; Filed by Babak Nehoray Doe21 (Defendant); Orange Grove 938 LLC Doe22 (Defendant)

    Read MoreRead Less
  • 02/01/2019
  • Declaration (name extension) (Declaration in Support of Notice of Motion and Motion for Summary Judgment); Filed by Babak Nehoray Doe21 (Defendant); Orange Grove 938 LLC Doe22 (Defendant)

    Read MoreRead Less
50 More Docket Entries
  • 07/14/2017
  • Answer; Filed by ABC Resources Inc (Defendant); Robert De La Cruz (Defendant)

    Read MoreRead Less
  • 07/10/2017
  • Proof-Service/Summons; Filed by Jessi Lee Lopez (Plaintiff)

    Read MoreRead Less
  • 07/10/2017
  • PROOF OF SERVICE SUMMONS & COMPLAINT

    Read MoreRead Less
  • 06/30/2017
  • Receipt; Filed by Jessi Lee Lopez (Plaintiff)

    Read MoreRead Less
  • 06/30/2017
  • CIVIL DEPOSIT

    Read MoreRead Less
  • 06/29/2017
  • PROOF OF SERVICE SUMMONS & COMPLAINT

    Read MoreRead Less
  • 06/29/2017
  • Proof-Service/Summons; Filed by Jessi Lee Lopez (Plaintiff)

    Read MoreRead Less
  • 06/01/2017
  • SUMMONS

    Read MoreRead Less
  • 06/01/2017
  • Complaint; Filed by Jessi Lee Lopez (Plaintiff)

    Read MoreRead Less
  • 06/01/2017
  • PLAINTIFF'S COMPLAINT FOR PERSONAL INJURIES AND DAMAGES; DEMAND FOR JURY TRIAL

    Read MoreRead Less

Tentative Rulings

Case Number: BC663536    Hearing Date: January 28, 2021    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

JESSI LEE LOPEZ,

Plaintiff(s),

vs.

ROBERT DE LA CRUZ, ET AL.,

Defendant(s).

)

)

)

)

)

)

)

)

)

)

)

Case No.: BC663536

[TENTATIVE] (1) ORDER GRANTING DEFENDANT ABC’S MOTION FOR SUMMARY ADJUDICATION; (2) ORDER DENYING PLAINTIFF’S MOTION TO CLOSE DISCOVERY

Dept. 31

1:30 p.m.

January 28, 2021

 

  1. Background Facts

Plaintiff, Jessi Lee Lopez filed this action against Defendants, Robert De La Cruz and ABC Resources, Inc. for damages arising out of a motorcycle v. truck accident. Plaintiff has subsequently added numerous Doe defendants in the action.

The basic facts relating to the motion are not in dispute. Plaintiff was riding his motorcycle during morning rush hour and was “sharing a lane” with a large truck driven by Robert De La Cruz (“De La Cruz”), in his capacity as an employee of ABC Resources, Inc. (“ABC”). Plaintiff was in the right side of the lane, and De La Cruz was in the main portion of the lane. The two were in the lane closest to the curb when the accident occurred. De La Cruz executed a wide right turn Plaintiff did not expect, and De La Cruz did not see Plaintiff riding his motorcycle to his right. Plaintiff, unable to stop, impacted the side of De La Cruz’s vehicle and sustained serious injuries.

Woodcliff was the general contractor on a construction project at the time of the accident. Woodcliff hired ABC to perform concrete-related work on the project. De La Cruz was on his way to work for ABC at the time of the accident and was not sure where to park. He chose to make a wide right turn into an alley, where there was a parking lot for a Chinese restaurant he intended to park in; the lot was near the construction project.

In particular, the complaint alleges ABC is vicariously liable for De La Cruz’s actions, and that ABC was negligent in its ownership, entrustment and maintenance of the truck driven by De La Cruz at the time of the incident. (Compl. ¿ 17, 20-21.)

Defendant ABC now moves for summary adjudication as to the independent negligence claims asserted against it.

In addition, Plaintiff moves to close discovery based on the original trial date.

  1. Motion for Summary Judgment
  1. Burden on Summary Adjudication/Judgment

    Summary judgment is proper “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 judgment as a matter of law.” (Code Civ. Proc. §437c(c).) Where a defendant seeks summary judgment or adjudication, he must show that either “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 that cause of action.” (Id. at §437c(o)(2).) A defendant may satisfy this burden by showing that the claim “cannot be established” because of the lack of evidence on some essential element of the claim. (Union Bank v. Superior Court (1995) 31 Cal.App.4th 574, 590.) Once the defendant meets this burden, the burden shifts to the plaintiff to show that a “triable issue of one or more material facts exists as to that cause of action or defense thereto.” (Ibid.)

    The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A defendant moving for summary judgment must show either (1) that one or more elements of the cause of action cannot be established or (2) that there is a complete defense to that cause of action. (Id. at §437c(p).) A defendant may discharge this burden by furnishing either (1) affirmative evidence of the required facts or (2) discovery responses conceding that the plaintiff lacks evidence to establish an essential element of the plaintiff's case. If a defendant chooses the latter option he or she must present evidence “and not simply point out that plaintiff does not possess and cannot reasonably obtain needed evidence….” Aguilar, supra, 25 Cal.4th at 865-66,

    [A] defendant may simply show the plaintiff cannot establish an essential element of the cause of action “by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Id. at p. 854.) Thus, rather than affirmatively disproving or negating an element (e.g., causation), a defendant moving for summary judgment has the option of presenting evidence reflecting the plaintiff does not possess evidence to prove that element. “The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff's cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing” to support an essential element of his case. (Aguilar, supra, at p. 855.) Under the latter approach, a defendant's initial evidentiary showing may “consist of the deposition testimony of the plaintiff's witnesses, the plaintiff's factually devoid discovery responses, or admissions by the plaintiff in deposition or in response to requests for admission that he or she has not discovered anything that supports an essential element of the cause of action.” (Lona v. Citibank, N.A., supra, 202 Cal.App.4th at p. 110.) In other words, a defendant may show the plaintiff does not possess evidence to support an element of the cause of action by means of presenting the plaintiff's factually devoid discovery responses from which an absence of evidence may be reasonably inferred. (Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 83.)

    Thus, a moving defendant has two means by which to shift the burden of proof under the summary judgment statute: “The defendant may rely upon factually insufficient discovery responses by the plaintiff to show that the plaintiff cannot establish an essential element of the cause of action sued upon. [Citation.] [Or a]lternatively, the defendant may utilize the tried and true technique of negating (‘disproving’) an essential element of the plaintiff's cause of action.” (Brantly v. Pisaro (1996) 42 Cal.App.4th 1591, 1598.)

    Leyva v. Garcia (2018) 20 Cal.App.5th 1095, 1103.

    Until the moving defendant has discharged its burden of proof, the opposing plaintiff has no burden to come forward with any evidence. Once the moving defendant has discharged its burden as to a particular cause of action, however, the plaintiff may defeat the motion by producing evidence showing that a triable issue of one or more material facts exists as to that cause of action. (Id. at §437c(p)(2).) On a motion for summary judgment, the moving party's supporting documents are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of summary judgment should be resolved against granting the motion. (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21.)

  2. Moving Argument

    ABC contends the complaint alleges claims for vicarious liability and independent negligence against ABC, but there is no issue of material fact as to any claim for independent negligence against ABC, or any claim for negligence resulting from ABC’s involvement in the subject construction project. First, ABC contends that its admission that De La Cruz was its employee at the time of the incident and was acting in the course and scope of his employment precludes a finding of independent negligence against ABC. ABC argues that because it has admitted vicarious liability, Plaintiff’s claims for direct negligence fail as a matter of law. Second, ABC argues that Plaintiff cannot plausibly argue any independent duty owed by ABC caused or contributed to the accident because the accident was not in any way related to the activities at the subject construction project. ABC avers no activity at the Orange construction project created a hazard apart from the risk inherent in the public traffic conditions.

  3. Opposing Argument

    Plaintiff contends there is no legal basis for ABC’s claim that it cannot be held directly liable because it admits vicarious liability. Plaintiff argues the case law cited by ABC pertain expressly to negligent entrustment claims only, and this is not a negligent entrustment case, so the cases are inapplicable. Plaintiff contends that ABC can be held liable for vicarious liability and direct liability under the facts because Plaintiff is not making a claim for negligent entrustment, hiring or retention against ABC; rather, Plaintiff contends its claim against ABC is based on ABC’s violation of the custom and practice in the construction industry. Plaintiff argues that independent of De La Cruz’s negligence, had ABC had a traffic control plan or utilized its flaggers, the incident could have been avoided. As a result, Plaintiff contends ABC has independent liability above and beyond any jury finding of negligence on the part of De La Cruz. In addition, Plaintiff asserts A. Teichert & Son, Inc. v. Superior Court (1986) 179 Cal.App.3d 657, cited by ABC, is inapplicable in this action because unlike the defendant in Teichert, ABC had the ability to control the road and De La Cruz. Plaintiff avers the collision was caused by ABC’s decision to use a private parking lot with a narrow driveway as its staging area.

  4. Evidentiary objections

    Plaintiff, in his opposition, submits two objections to ABC’s evidence. Objection 2 concerning Exhibit H is overruled, as the testimony concerns a statement made by Plaintiff. (Evid. Code § 1220.) The court declines to rule on Objection 1 concerning Exhibit I, as it is not material to the deposition of the motion. (CCP § 437c(q).)

    In its reply, ABC submits one objection to the deposition testimony of Jeffrey Hughes attached as Exhibit 3 to the opposition. In particular, ABC objects to the testimony on page 38, lines 13-17, page 57, lines 4-15, and page 58, lines 3-11. Objection 1 is sustained as the expert opinion is based on speculation, surmise and “assumptions of fact ... without evidentiary support” does not raise a triable issue of material fact. (Garibay v. Hemmat (2008) 161 Cal.App.4th 735, 743; Lockheed Martin Corp. v. Superior Court (2003) 29 Cal.4th 1096, 1110.)

  5. Issue 1: Plaintiff’s Claim for Direct or Independent Negligence against ABC

    A person injured by someone driving a car in the course of employment may sue not only the driver but that driver's employer. The employer can be sued on two legal theories based on tort principles: respondeat superior and negligent entrustment. Respondeat superior, a form of vicarious liability, makes an employer liable, irrespective of fault, for negligent driving by its employee in the scope of employment. The theory of negligent entrustment makes an employer liable for its own negligence in choosing an employee to drive a vehicle.

    If, as here, a plaintiff asserts both theories, and the employer admits vicarious liability for any negligent driving by its employee, can the plaintiff still pursue the negligent entrustment claim? The answer is “no,” …

    (Diaz v. Carcamo (2011) 51 Cal.4th 1148, 1151-52.) “Vicarious liability and negligent entrustment, we explained, were ‘alternative theories under which ... to impose upon [the employer] the same liability as might be imposed upon [the employee].’ “ (Id. at 1155.) An employer liable solely on a theory of respondeat superior can thus have no greater fault than its negligent employee acting in the scope of employment. (Id. at 1157.)

    “If, as here, all of a plaintiff's causes of action depend on a contention that an employee's negligent driving in the scope of employment was a cause of the plaintiff's injuries, and if the defendant-employer offers to admit vicarious liability for its employee's negligent driving, then that offer will ‘remove[ ] from the case’ the issue of the employer's liability for any damage caused by its employee's negligent driving, leaving no ‘material issue’ to which negligent entrustment evidence can be relevant.” (Id. at 1157-58.) Negligent entrustment may establish an employer’s own fault but it does not impose additional liability; “instead the employer's liability cannot exceed [that ] of the employee.” (Id. at 1159 [quotations and emphasis omitted].) “[I[f an employer admits vicarious liability for its employee's negligent driving in the scope of employment, ‘the damages attributable to both employer and employee will be coextensive.’ ” (Id. at 1159.) Consequently, “when a plaintiff alleges a negligent entrustment or hiring cause of action against the employer and the employer admits vicarious liability for its employee's negligent driving, the universe of defendants who can be held responsible for plaintiff's damages is reduced by one—the employer . . . the employer is liable only for whatever share of fault the jury assigns to the employee.” (Id.)

    “If, as here, an employer offers to admit vicarious liability for its employee's negligent driving, then claims against the employer based on theories of negligent entrustment, hiring, or retention become superfluous. To allow such claims in that situation would subject the employer to a share of fault in addition to the share of fault assigned to the employee, for which the employer has already accepted liability.” (Id. at 1160.) Therefore, an employer's admission of vicarious liability for an employee's negligent driving in the course of employment bars a plaintiff from pursuing a claim for negligent entrustment. (Id. at 1161.)

    Here, ABC’s evidence establishes that De La Cruz was ABC’s employee at the time of the accident, and that De La Cruz was not told where to park upon arriving at the construction project site, but De La Cruz decided to park in a restaurant parking lot when he saw a coworker there. (Mot. Separate Statement 1, 7-8.) The complaint alleges ABC is vicariously liable for De La Cruz’s actions. (Compl. ¿ 17.) Moreover, Plaintiff alleges that ABC was negligent in its entrustment of its truck to De La Cruz, and that ABC was negligent in the care, servicing, and maintenance of its truck such that it caused or contributed to the accident. (Id. at ¿¿ 20-21.)

    Plaintiff’s theory of liability against it for negligent entrustment is barred because of ABC’s admission of vicarious liability. (Diaz, 51 Cal.4th at 1160-61.) Moreover, while Plaintiff alleges that ABC was directly or independently negligently for not properly maintaining safety devices on the truck, and that the negligent maintenance caused or contributed to the accident, ABC’s evidence establishes the truck was owned by Defendant Schaefer Equipment. (Mot. UMF 4.)

    However, in opposition, Plaintiff argues that unlike in Diaz v. Carcamo, where the plaintiff’s causes of action against the employer were all based on the employee’s negligent driving, (51 Cal.4th at 1157-58) in this case, Plaintiff argues he is also asserting an independent cause of action against ABC for failing to create a permitted staging area for its vehicles and equipment and for failing to use flagmen to help the large truck De La Cruz was driving maneuver.

    Therefore, while Plaintiff’s theory of negligent entrustment against ABC is barred, whether Plaintiff can assert an independent or direct negligence claim against ABC depends on Plaintiff’s claim ABC was negligent in failing to create a staging area for its vehicles.

  6. Issue 2: Direct or Independent Negligence Against ABC from ABC’s Involvement in the Construction Project

    Plaintiff is attempting to assert a direct and independent negligence claim against ABC by arguing that ABC failed to have a plan regarding where De La Cruz was to park or advise employees where to park, and that this caused the accident. ABC cites to A. Teichert & Son, Inc. v. Superior Court (1986) 179 Cal.App.3d 657 (“Teichert”) in asserting that ABC cannot be directly liable as a matter of law.

    In Teichert, the trial court denied the defendant property owner’s motion for summary judgment, the property owner petitioned the court of appeals for a writ, and the court of appeals granted the writ and ordered the trial court to grant summary judgment. The Teichert plaintiff’s decedent was killed while riding his bicycle on a street near the defendant landowner’s property. An independent contractor turning into the property struck the decedent. The plaintiff’s theory of liability was that the property posed a peculiar risk because of the volume of trucks coming and going from the property, and the landowner had a duty to mitigate that risk. The court of appeals disagreed, finding the volume of traffic did not change the fact that the accident was a simple motor vehicle accident, which could have occurred regardless of the number of vehicles coming and going into the property on a regular basis.

    “It is axiomatic that without ‘ “a duty of due care owed by the alleged wrongdoer to the person injured, or to a class of which he is a member ...’ ” no negligence can be found. [Citation.] Whether such a duty is owed in a given situation is a question of law for the court to determine. [Citations.]” [Citation.] An owner or possessor of land may, of course, be liable for injuries incurred by persons off the premises as a result of natural or artificial conditions on the land. [Citation.] Furthermore, activities on the land which give rise to a hazardous condition off the premises may also result in a duty being imposed on the landowner to remedy that hazard. [Citations.]

    Plaintiff, however, has made no showing that the accident which resulted in his son's death was attributable to any specific condition, natural or artificial, on Teichert's property. Nor is Kopfinger, supra, of benefit to plaintiff. In that case, it was held that the operator of a market could be held liable to a passerby on the public sidewalk who was injured when he slipped on a piece of meat that had been dropped by a deliveryman bringing a shipment of meat to the market. (Kopfinger v. Grand Central Pub. Market, supra, 60 Cal.2d at pp. 856–857, 37 Cal.Rptr. 65, 389 P.2d 529.) Plaintiff places much reliance on general language in Kopfinger to the affect that when business activities create a hazard on an adjacent sidewalk, “there exists a duty to protect from injury those so endangered.” (Id., at p. 857, 37 Cal.Rptr. 65, 389 P.2d 529.) However, plaintiff's argument is inapposite in the factual context of this case, there being no evidence of a hazardous physical condition created by Teichert's business enterprise.

    Indeed, in his opposition to the motion for summary judgment, plaintiff's sole theory was that Teichert had a duty to post signs or other warning devices cautioning passersby concerning the frequent heavy truck traffic into and out of its plant. However, a similar claim of duty was considered and rejected in Nevarez v. Thriftimart, Inc., supra, 7 Cal.App.3d at page 805, 87 Cal.Rptr. 50, where the court held that a property owner not only has no duty to erect signs for the purpose of controlling or regulating traffic on adjacent public roads, but is in fact prohibited by law from doing so. “The power to control public streets and regulate traffic lies with the state which may delegate local authority to municipalities (Veh.Code, §§ 21100, 21102; 25 Cal.Jur.2d 124–127, Highways and Streets, §§ 238–240) and only the state (Veh.Code, § 21352) or local authorities, when authorized (Veh.Code, § 21353), may erect traffic signs or signals, all other persons being forbidden to do so (Veh.Code, § 21465) with some few exceptions (Veh.Code, §§ 21400, 21468) ... Accordingly, the analogy to the rules relating to the occupiers of premises ends, as being inapt.” (Ibid)

    (Teichert, 179 Cal.App.3d at 663-64.)

    In this case, Plaintiff alleges ABC was negligent for failing to provide necessary signage or directions to a parking area. (Compl. ¿ 22.) However, ABC’s evidence shows Woodcliff was the general contractor hired with respect to the construction project, and De La Cruz was not told where to park when he entered the parking lot, but rather De La Cruz entered the parking lot of a restaurant because he saw a coworker there. (Mot. UMF 3, 7-8.) As in Teichert, where a property owner was not under a duty to post warning signs to regulate or control traffic, there is no evidence to suggest ABC was under a duty here to post signs or directions to direct traffic. (179 Cal.App.3d at 663-64.) Moreover, as ABC argues, there is no evidence that any activities ABC engaged in at the construction site caused the accident. De La Cruz was not directed by anyone to the parking lot, De La Cruz chose to pull into the driveway after he saw a coworker there, and no activity being undertaken at the construction project took place in the parking lot where De La Cruz was driving. This is sufficient to meet ABC’s burden in establishing there is no material fact as to whether ABC was directly negligent from ABC’s involvement in the construction project.

    In opposition, Plaintiff argues this case is unlike Teichert because ABC had the right to exercise control over the roadway by using flaggers to safeguard the public, and ABC employed the driver that caused the accident and had the right to control him. Plaintiff, thus, contends ABC’s independent negligence in choosing a private parking lot, during morning rush hour, to stage its vehicles caused the accident.

    Nevertheless, the accident that forms the basis of this lawsuit is similar to the accident in Teichert in that the accident occurred where the truck De La Cruz was driving made a wide right turn into an alley and Plaintiff happened to be on his motorcycle to the right of the truck. Plaintiff does not identify any peculiar factors posed by ABC’s allegedly using the parking lot as a staging area.

    As evidence of ABC’s liability, Plaintiff attempts to submit the expert opinion of Hughes. However, as noted above, the objection to Hughes deposition testimony were sustained, as his opinion is based on speculation and surmise. Nonetheless, even if the court considered Hughes’s deposition testimony, the crux of the testimony is that ABC was required by various industry standards but failed to have a parking plan or staging area for its vehicles. Even if this were true, it does not change the fact there was no peculiar risk at issue created by ABC, as the incident merely involves a truck turning from a road into an alley. The argument ABC should have done something different without any evidence that ABC affirmatively contributed to Plaintiff’s injuries at most amounts to abstract negligence. (See Thompson v. Sacramento City Unified School Dist. (2003) 107 Cal.App.4th 1352, 1373 [Expert's speculative and conjectural conclusion that different measures might have prevented an injury cannot be relied upon to establish causation (citing Nola M. v. University of Southern California (1993) 16 Cal.App.4th 421, 430-31 (“The present case is a classic example of a plaintiff establishing what could be described as abstract negligence, in the context that the Dodgers' security didn't comport with plaintiffs' expert's or the jury's notion of ‘adequacy,’ but failing to prove any causal connection between that negligence and the injury.”))].)

    Based on the foregoing, there is no issue of material fact as to a claim of direct or independent negligence against ABC. ABC’s motion for summary adjudication is granted.

    Moving Defendant is ordered to give notice.

  1. Motion to Close Discovery

This matter was originally set for trial on 3/30/20. On 3/16/20, a Final Status Conference (“FSC”) was set for 3/16/20; however, based on current conditions, including, but not limited to, the spread of COVID-19, the court placed the FSC off-calendar. (Min. 3/16/20.) The 3/30/20 trial date was vacated, and the court scheduled a Trial Setting Conference (“TSC”); all motion and discovery cut-off dates were to be continued based on the new trial date. (Ibid.) At the TSC held on 7/23/20, the court set a jury trial for 8/2/21 and ordered discovery cut-off dates to follow the new trial date. (Min. Order 7/23/20.)

Plaintiff now moves to close discovery based on the original trial date. Plaintiff contends all relevant discovery, depositions and expert depositions have already been completed. Plaintiff argues allowing discovery to remain open places a significant burden on Plaintiff by potentially making it necessary to re-depose a number of expert witnesses, create new trial documents, and to incur additional costs.

Defendant ABC opposes the motion and argues the court has already ordered discovery reopened in this matter. ABC argues Plaintiff will not be prejudiced by allowing discovery to remain open, as ABC does not seek to relitigate issues or complete duplicative discovery.

In reply, Plaintiff contends he will be prejudiced by allowing discovery to remain open, whereas defendants will not. However, the prejudice Plaintiff complains of is the normal time and cost associated with discovery in a civil action.

At the 3/16/20 FSC, with Plaintiff’s counsel present, the court ordered motion and discovery to be continued based on the new trial date necessitated by the COVID-19 pandemic. Plaintiff’s counsel was again present for the 7/23/20 TSC setting this matter for trial on 8/2/21 and the court again ordered discovery cut-off dates to follow the new trial date. Plaintiff’s counsel did not object to continuing the discovery cut-off dates at either hearing.

Therefore, discovery in this matter remains open. Moreover, Plaintiff does not identify any duplicative or burdensome discovery served by defendants at this time.

Based on the foregoing, Plaintiff’s motion to close discovery is denied.

Plaintiff is ordered to give notice

Parties who intend to submit on this tentative must send an email to the court at sscdept31@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.orgIf the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If the parties do not submit on the tentative, they should arrange to appear remotely.

 

Dated this 28th day of January, 2021

Hon. Thomas D. Long

Judge of the Superior Court

Case Number: BC663536    Hearing Date: December 01, 2020    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

JESSI LEE LOPEZ,

Plaintiff(s),

vs.

ROBERT DE LA CRUZ, ET AL.,

Defendant(s).

)

)

)

)

)

)

)

)

)

)

)

Case No.: BC663536

[TENTATIVE] ORDER CONTINUING MOTION FOR SUMMARY ADJUDICATION

Dept. 31

1:30 p.m.

December 1, 2020

 

Plaintiff, Jessi Lee Lopez filed this action against Defendants, Robert De La Cruz and ABC Resources, Inc. for damages arising out of a motorcycle v. truck accident. Plaintiff has subsequently added numerous doe defendants in the action.

Defendant, ABC Resources, Inc. (“ABC”) filed this motion for summary judgment on 9/17/20, setting it for hearing on 12/1/20. Plaintiff timely filed opposition papers on 11/16/20. Any reply to the opposition is due on before five days preceding the hearing date. (CCP § 473c(b)(3).) Five days before the hearing date is 11/26/20; however, 11/26/20 through 11/29/20 are holidays. Because of the holidays, the court likely will not receive the reply with sufficient time to review the reply papers prior to the hearing on this matter. The Court wishes to review all papers filed in connection with the motion for summary judgment, and therefore continues the hearing date from 12/1/20 to _____________ at 1:30 p.m. in Department 31 of the Spring Street Courthouse. The time for filing a reply is NOT extended as result of this ruling, and the reply papers remain due pursuant to code.

If the continued date is not an available date for the parties, they are ordered to meet and confer, choose a mutually agreeable date, and call the courtroom to reschedule the hearing on the motion to the next mutually available calendar date; the parties should have several date options available when they call, in case the date they choose is not available on the court’s calendar.

Moving Defendant is ordered to give notice.

Parties who intend to submit on this tentative must send an email to the court at sscdept31@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.orgIf the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If the parties do not submit on the tentative, they should arrange to appear remotely.

 

Dated this 1st day of December, 2020

Hon. Thomas D. Long

Judge of the Superior Court

related-case-search

Dig Deeper

Get Deeper Insights on Court Cases


Latest cases where Woodcliff Corporation is a litigant

Latest cases represented by Lawyer FAENZA CHRISTOPHER E. ESQ.

Latest cases represented by Lawyer PEARCE CHARLES W. ESQ.