This case was last updated from Los Angeles County Superior Courts on 10/13/2020 at 04:27:54 (UTC).

SECURITY NATIONAL INSURANCE CO VS CALIFORNIA DEPT OF TRANSPO

Case Summary

On 11/20/2017 SECURITY NATIONAL INSURANCE CO filed a Personal Injury - Motor Vehicle lawsuit against CALIFORNIA DEPT OF TRANSPO. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is STEPHEN I. GOORVITCH. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****4282

  • Filing Date:

    11/20/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Motor Vehicle

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

STEPHEN I. GOORVITCH

 

Party Details

Plaintiffs and Petitioners

SECURITY NATIONAL INSURANCE COMPANY

REINKE JEFF

Defendants, Respondents and Cross Plaintiffs

LOS ANGELES THE CITY OF

DOES 1 TO 20

CALIFORNIA DEPARTMENT OF TRANSPORTATION

LOPEZ-PLIEGO ELMER ERNESTO

LOS ANGELES COUNTY OF - MSJ GRANTED

LOS ANGELES CITY OF

CAILIFORNIA STATE OF

CITY OF LOS ANGELES

COUNTY OF LOS ANGELES

STATE OF CALIFORNIA ACTING BY AND THROUGH THE DEPARTMENT OF TRANSPORTATION

Defendant, Respondent and Cross Defendant

LOPEZ-PLIEGO ELMER ERNESTO

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

JENSEN RYAN ESQ.

JENSEN RYAN

ZUCKERMAN PAUL S.

JENSEN RYAN M.

Defendant and Respondent Attorneys

CALENDO PUCKETT SHEEDY LLP

WOODWARD KAREN ESQ.

LE TRANG K. ESQ.

WOODWARD KAREN

LE TRANG KHANH

MALLORY GEORGE L. JR. ESQ.

SHCERER JEANNE E. CHIEF COUNSEL

SHEEDY CRISTOPHER M. ESQ.

SCHERER JEANNE E.

FEUER MICHAEL N.

WOODWARD KAREN E.

LE TRANG K.

MALLORY GEORGE L. JR.

SCHERER-KLUGE JEANNE ELIZABETH

Defendant and Cross Plaintiff Attorneys

WOODWARD KAREN ESQ.

WOODWARD KAREN

FEUER MICHAEL N.

Cross Defendant Attorneys

SHEEDY CHRISTOPHER MADDEN

SHEEDY C. M.

 

Court Documents

Request for Dismissal

8/20/2020: Request for Dismissal

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER RE SETTING OF ORDER TO SHOW CAUSE RE DISMISSAL AS...) OF 08/13/2020

8/13/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER RE SETTING OF ORDER TO SHOW CAUSE RE DISMISSAL AS...) OF 08/13/2020

Notice - NOTICE OF ENTRY OF JUDGMENT

7/31/2020: Notice - NOTICE OF ENTRY OF JUDGMENT

Order - ORDER (CORRECTED) GRANTING DEFENDANT CITY OF LOS ANGELES MOTION FOR SUMMARY JUDGMENT

7/10/2020: Order - ORDER (CORRECTED) GRANTING DEFENDANT CITY OF LOS ANGELES MOTION FOR SUMMARY JUDGMENT

Minute Order - MINUTE ORDER (COURT ORDER RE (CORRECTED) [PROPOSED] ORDER GRANTING DEFENDAN...)

7/10/2020: Minute Order - MINUTE ORDER (COURT ORDER RE (CORRECTED) [PROPOSED] ORDER GRANTING DEFENDAN...)

Minute Order - MINUTE ORDER (HEARING ON MOTION - OTHER - PLTF'S MOTION ON LIEN APPLICATION...)

7/13/2020: Minute Order - MINUTE ORDER (HEARING ON MOTION - OTHER - PLTF'S MOTION ON LIEN APPLICATION...)

Reply - REPLY TO OPPOSITION TO PLAINTIFF SECURITY NATIONALS MOTION TO TAX COSTS

4/29/2020: Reply - REPLY TO OPPOSITION TO PLAINTIFF SECURITY NATIONALS MOTION TO TAX COSTS

Minute Order - MINUTE ORDER (COURT ORDER)

4/13/2020: Minute Order - MINUTE ORDER (COURT ORDER)

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 04/13/2020

4/13/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 04/13/2020

Other - - OTHER - RULING RE: DEFENDANT CITY OF LOS ANGELES' MOTION FOR SUMMARY JUDGMENT

1/10/2020: Other - - OTHER - RULING RE: DEFENDANT CITY OF LOS ANGELES' MOTION FOR SUMMARY JUDGMENT

Judgment - JUDGMENT ON ORDER GRANTING STATE OF CALIFORNIA'S MOTION FOR SUMMARY JUDGMENT

1/10/2020: Judgment - JUDGMENT ON ORDER GRANTING STATE OF CALIFORNIA'S MOTION FOR SUMMARY JUDGMENT

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (POST-MEDIATION STATUS CONFERENCE; ORDER TO SHOW CAUSE RE: JUD...) OF 01/10/2020

1/10/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (POST-MEDIATION STATUS CONFERENCE; ORDER TO SHOW CAUSE RE: JUD...) OF 01/10/2020

Minute Order - MINUTE ORDER (POST-MEDIATION STATUS CONFERENCE; ORDER TO SHOW CAUSE RE: JUD...)

1/10/2020: Minute Order - MINUTE ORDER (POST-MEDIATION STATUS CONFERENCE; ORDER TO SHOW CAUSE RE: JUD...)

ANSWER TO COMPLAINT ON BEHALF OF DEFENDANT, ELMER ERNESTO LOPEZ-PLIEGO

4/23/2018: ANSWER TO COMPLAINT ON BEHALF OF DEFENDANT, ELMER ERNESTO LOPEZ-PLIEGO

ANSWER TO THE DEFENDANT CITY OF LOS ANGELES TO PLAINTIFFS COMPLAINT

7/6/2018: ANSWER TO THE DEFENDANT CITY OF LOS ANGELES TO PLAINTIFFS COMPLAINT

REQUEST FOR STATEMENT OF DAMAGES

7/26/2018: REQUEST FOR STATEMENT OF DAMAGES

ANSWER BY DEFENDANT STATE OF CALIFORNIA

7/26/2018: ANSWER BY DEFENDANT STATE OF CALIFORNIA

ANSWER TO CROSS-COMPLAINT ON BEHALF OF CROSS-DEFENDANT, ELMER ERNESTO LOPEZ-PLIEGO

8/3/2018: ANSWER TO CROSS-COMPLAINT ON BEHALF OF CROSS-DEFENDANT, ELMER ERNESTO LOPEZ-PLIEGO

66 More Documents Available

 

Docket Entries

  • 11/13/2020
  • Hearing11/13/2020 at 08:30 AM in Department 78 at 111 North Hill Street, Los Angeles, CA 90012; Order to Show Cause Re: Dismissal

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  • 09/10/2020
  • Docketat 08:30 AM in Department 78; Order to Show Cause Re: Dismissal (as to Remaining Defendant, Elmer Ernesto Lopez-Pliego) - Held - Continued

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  • 09/10/2020
  • DocketMinute Order ( (Order to Show Cause Re: Dismissal as to Remaining Defendant, ...)); Filed by Clerk

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  • 08/25/2020
  • DocketRequest for Dismissal; Filed by State of California, acting by and through the Department of Transportation (Cross-Complainant)

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  • 08/20/2020
  • DocketRequest for Dismissal (without Prejudice as to Cross-Complaint filed by CA Department of Transportation on 7/26/18); Filed by State of California, acting by and through the Department of Transportation (Cross-Complainant)

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  • 08/19/2020
  • DocketNotice (of Entry of Amended Judgment); Filed by California Department of Transportation (Defendant)

    Read MoreRead Less
  • 08/13/2020
  • Docketat 4:19 PM in Department 78; Court Order

    Read MoreRead Less
  • 08/13/2020
  • DocketCertificate of Mailing for ((Court Order Re Setting of Order to Show Cause Re Dismissal as...) of 08/13/2020); Filed by Clerk

    Read MoreRead Less
  • 08/13/2020
  • DocketMinute Order ( (Court Order Re Setting of Order to Show Cause Re Dismissal as...)); Filed by Clerk

    Read MoreRead Less
  • 08/13/2020
  • DocketNotice (of Entry of Judgment of Order); Filed by Jeff Reinke (Plaintiff)

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109 More Docket Entries
  • 04/20/2018
  • DocketDemand for Jury Trial; Filed by Elmer Ernesto Lopez-Pliego (Defendant)

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  • 04/20/2018
  • DocketAnswer; Filed by Elmer Ernesto Lopez-Pliego (Defendant)

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  • 04/20/2018
  • DocketAnswer; Filed by Elmer Ernesto Lopez-Pliego (Defendant)

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  • 03/14/2018
  • DocketAnswer; Filed by City of Los Angeles (Defendant)

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  • 03/13/2018
  • DocketAnswer; Filed by California Department of Transportation (Defendant)

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  • 02/27/2018
  • DocketAnswer; Filed by County of Los Angeles (Defendant)

    Read MoreRead Less
  • 01/18/2018
  • DocketComplaint; Filed by Jeff Reinke (Plaintiff)

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  • 11/20/2017
  • DocketComplaint; Filed by Security National Insurance Company (Plaintiff)

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  • 11/20/2017
  • DocketCOMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)

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  • 11/20/2017
  • DocketSUMMONS

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Tentative Rulings

Case Number: BC684282    Hearing Date: July 13, 2020    Dept: 78

Superior Court of California

County of Los Angeles

Department 78

SECURITY NATIONAL INSURANCE COMPANY; JEFF REINKE;

Plaintiffs,

vs.

CALIFORNIA DEPARTMENT OF TRANSPORTATION, et al.;

Defendants.

Case No.:

BC684282 (lead case)

Consolidated with Related Case:

BC690740

Hearing Date:

July 13, 2020

[TENTATIVE] RULING RE:

plaintiff security national INSURANCE company’s motion to strike and/or tax costs

CITY OF LOS ANGELES;

Cross-Complainant,

vs.

ELMER LOPEZ-PLIEGO; and ROES 1-10;

Cross-Defendants.

PLAINTIFF SECURITY NATIONAL INSURANCE COMPANY’S MOTION ON LIEN APPLICATION

state of california ;

Cross-Complainant,

vs.

ELMER LOPEZ-PLIEGO; and ROES 1-50;

Cross-Defendants.

Plaintiff Security National Insurance Company’s Motion to Strike and/or Tax Costs is GRANTED in the amount of $459.62.

Plaintiff Security National Insurance Company’s Motion on Lien Application is GRANTED in part. After Reinke’s costs and fees in the amount of $44,104.42, Security may obtain a lien on the remaining outstanding amount of the $50,000 settlement ($5,895.59).

Factual Background

This is a negligence and workers’ compensation damages action. The Complaint alleges as follows. Plaintiff Security National Insurance Company (“Security”)’s insured’s employee was injured during the course of his employment while walking in a crosswalk. (Compl. ¶ PL-1.) Security alleges that Defendant Elmer Ernesto Lopez-Pliego (“Lopez-Pliego”) negligently collided his vehicle into Security’s insured’s employee, Jeffrey Reinke (“Reinke”). (Compl. ¶ GN-1.) Security had to pay workers’ compensation benefits to and on behalf of Reinke, and Security alleges that Lopez-Pliego breached his duty to drive safely and reasonably. (Compl. ¶ GN-1.) Security further alleges that Defendants State of California Department of Transportation (“DOT”) and the City of Los Angeles (the “City”) created a dangerous condition by not properly designing the street that allowed Lopez-Pliego to collide into Reinke. (Compl. ¶ GN-1.)

procedural history

Security filed the Complaint on November 20, 2017, alleging three causes of action:

  1. Premises Liability

  2. Motor Vehicle

  3. General Negligence

On July 8, 2018, the City filed a Cross-Complaint against Lopez-Pliego and Roes 1-10, alleging three causes of action:

  1. Indemnification

  2. Apportionment of Fault

  3. Declaratory Relief

On July 26, 2018, DOT filed a Cross-Complaint against Lopez-Pliego and Roes 1-50, alleging indemnification.

On December 20, 2018, the Court found this case to be related to Case No. BC690740 (Reinke v. Elmer Ernesto Lopez-Pliego et al.), and designated this case is the Lead Case.

On January 22, 2019, the parties stipulated to, and the Court ordered, this case and the Related Case to be consolidated with this case.

On October 24, 2019, Reinke filed in the Related Case a Notice of Partial Settlement with Lopez-Pliego and DOT.

On November 1, 2019, Reinke filed in the Related Case a Notice of Partial Settlement with the City.

On November 22, 2019, City filed a Motion for Summary Judgment, seeking summary judgment on both Reinke’s claim in the Related Case and Security’s claims in this case.

On November 27, 2019, this Court granted DOT’s unopposed Motion for Summary Judgment against Security.

On December 5, 2019, City filed a Reply to Non-Opposition, noting that Security did not file a timely Opposition and withdrawing its Motion with respect to Reinke’s claims due to the November 1, 2019 settlement with Reinke.

On January 10, 2020, this Court granted the City’s Motion for Summary Judgment against Security.

Also on January 10, 2020, this Court entered judgment against Security in favor of DOT.

On January 22, 2020, DOT filed a Memorandum of Costs.

On February 24, 2020, this Court entered judgment against Security in favor of the City.

On March 2, 2020, this Court denied without prejudice Security’s Motion on Lien Application.

On April 6, 2020, Security filed the instant Motion to Strike and/or Tax Costs.

On April 9, 2020, Security filed the instant Motion on Lien Application.

On April 21, 2020, DOT filed an Opposition to the Motion to Tax Costs.

On April 24, 2020, Reinke filed an Oppo.

On April 29, 2020, Security filed a Reply to the Opposition to Motion to Tax Costs.

On April 29, 2020, Security also filed a Reply for the Motion on Lien Application

Discussion

  1. MOTION TO STRIKE AND/OR TAX COSTS

“Code of Civil Procedure section 1032, subdivision (b) [], guarantees prevailing parties in civil litigation awards of the costs expended in the litigation: ‘Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.’” (Williams v. Chino Valley Independent Fire Dist. (“Williams”) (2015) 61 Cal.4th 97, 100.).

“If the items on a verified cost bill appear proper charges, they are prima facie evidence that the costs, expenses and services therein listed were necessarily incurred.” (Rappenecker v. Sea-Land Service, Inc. (1979) 93 Cal.App.3d 256, 266.) Although individual cost items are ordinarily challenged by a motion to tax costs, no cost-item is effectively put in issue by “mere statements” claiming them to be unreasonable. (Ibid.)

DOT filed a Memorandum of Costs seeking total costs in the amount of $14,701.75, comprised of $4,689.45 in deposition costs, $5,750 in witness fees, $459.62 in filing fees, and $3,802.68 in “Other” costs for billing and medical records.

Security moves to strike all costs. (Motion at pp. 2-3.) Security argues that (1) the video depositions “were unnecessary and unreasonable,” (2) the fees for experts are not allowable costs unless court-ordered and Dr. Whitney was not court-ordered, (3) there should be no filing fees because DOT is exempt as a government entity, and (4) the medical and billing records were unnecessary. (Motion at pp. 2-3.)

In Opposition, DOT argues that Security’s Motion is untimely and was required to be filed by February 11, 2020,15 days after they filed the Memorandum of Costs on January 22, 2020. (Oppo. at p. 3.) Here, the instant Motion to Strike/Tax Cost was filed April 6, 2020, nearly three months late. (Oppo. at p. 3.)

“Any notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memorandum. If the cost memorandum was served by mail, the period is extended as provided in Code of Civil Procedure section 1013. If the cost memorandum was served electronically, the period is extended as provided in Code of Civil Procedure section 1010.6(a)(4).” (California Rules of Court Rule 3.1700, subd. (b)(1).) 

In Reply, Security does not contest that the Motion was filed late. Instead Security seeks relief under Code of Civil Procedure section 473, citing delays due to COVID-19 and working from home. (Reply at p. 2.) However, relief under Code of Civil Procedure section 473 must be sought in a separate noticed motion, not in a Reply. (See Freeman v. Goldberg (1961) 55 Cal.2d 622, 625.) Further, the instant Motion was due in early February, over a month before California’s “Safer at Home” order began.

Accordingly, the Court finds that Security’s Motion is untimely.

However, the Court nonetheless may only allow those costs requested by DOT that are allowable. (Code Civ. Proc., § 1033.5(c).) Because California Rules of Court Rule 3.1700, under which DOT filed its Memorandum of Costs, applies only to allowable costs, the Clerk of the Court may not enter costs that are not allowable under statute. “It appears to us that rule 3.1700 applies only to the items ‘allowable as costs’ that are listed in subdivision (a) of section 1033.5—that is, those cost items to which a party is entitled ‘as a matter of right.’ (§ 1032, subd. (b).) In our view, this construction is the most sensible interpretation of rule 3.1700, which also requires the clerk of the court to ‘immediately enter the costs on the judgment’ if the opposing party does not move to strike or tax costs. (Cal. Rules of Court, rule 3.1700(b)(4).” (Anthony v. City of Los Angeles (2008) 166 Cal.App.4th 1011, 1015–1016.)

DOT is exempt from filing fees under Government Code section 6103, and thus may not receive costs in the amount of $459.62 for electronic filing as costs not allowable. The Memorandum of Costs lists this cost as electronic filing, not personal service, and does not complete section 5 of the Memorandum of Costs worksheet regarding Service of Process. “Where costs are not expressly allowed by the statute, the burden is on the party claiming the costs to show that the charges were reasonable and necessary.” (Foothill-De Anza Community College Dist. v. Emerich (2007) 158 Cal.App.4th 11, 29.) Accordingly, DOT may not recover the $459.62.

The remaining costs are allowable under statute, including the expert witness costs under Code of Civil Procedure section 998. “If the items on a verified cost bill appear proper charges, they are prima facie evidence that the costs, expenses and services therein listed were necessarily incurred.” (Rappenecker v. Sea-Land Service, Inc. (1979) 93 Cal.app.3d 256, 266.) Although individual cost items are ordinarily challenged by a motion to tax costs, no cost-item is effectively put in issue by “mere statements” claiming them to be unreasonable. (Ibid.)

The Motion to Strike Costs is GRANTED in the amount of $459.62.

  1. MOTION ON LIEN APPLICATION

    Security files a Motion on Lien Application pursuant to Labor Code section 3860, subdivision (b) and Labor Code section 3856, subdivision (b).

    Labor Code section 3860, subdivision (b) states:

    “(b) Except as provided in Section 3859, the entire amount of such settlement, with or without suit, is subject to the employer’s full claim for reimbursement for compensation he has paid or become obligated to pay and any special damages to which he may be entitled under Section 3852, together with expenses and attorney fees, if any, subject to the limitations in this section set forth.” (Lab. Code, § 3860.)

    Further, Labor Code section 3856, subdivision (b) states:

    “(b) If the action is prosecuted by the employee alone, the court shall first order paid from any judgment for damages recovered the reasonable litigation expenses incurred in preparation and prosecution of such action, together with a reasonable attorney’s fee which shall be based solely upon the services rendered by the employee’s attorney in effecting recovery both for the benefit of the employee and the employer. After the payment of such expenses and attorney’s fee the court shall, on application of the employer, allow as a first lien against the amount of such judgment for damages, the amount of the employer’s expenditure for compensation together with any amounts to which he may be entitled as special damages under Section 3852.” (Lab. Code, § 3856.)

    Plaintiff Reinke filed a workers’ compensation claim for the injuries he sustained while working on January 25, 2017 for Winegardner Masonry, Inc., which is insured by Security. (Motion at p. 1.) Security paid workers’ compensation benefits to Reinke in the amount of $271,334.44. (Motion at p. 1; Jensen Decl. ¶ 4.) Reinke has since settled with DOT for $12,500 and the City for $12,500, and with Pliego in an unknown amount. (Motion at p. 2.)

    In the instant Motion, Security is seeking subrogation for the settlement amount to be paid to Reinke. Security contends that it is entitled to a lien against any settlement proceeds because it has “paid benefits exceeding the total settlement amount and continues to provide workers’ compensation benefits to Plaintiff Reinke.” (Motion at p. 3.) Security contends that the lien is necessary “to avoid a double recovery and windfall to [Reinke].” (Motion at p. 3.)

    In Opposition, Reinke argues that the settlement amount against Pliego, the City, and DOT (totaling $50,000), but that the lien should be “set by the Court at zero” because the costs and fees in obtaining the settlement are three times more than the settlement proceeds. (Oppo. at p. 2.)

    “[A]n employer has a right of reimbursement for workers’ compensation benefits it has paid or become obligated to pay when its employee recoups damages from a third party tortfeasor by way of judgment or settlement. [Citations]…[T]he employer may [also] redeem its outlay for benefits by suing the tortfeasor directly [Citations], or by joining an action brought by the employee [Citation]. [¶] In turn, upon payment of benefits for injuries caused by a third party, the workers’ compensation insurer can also recoup its expenditures by suing the third party; intervening in the employee’s suit; or asserting a lien on any recovery the employee obtains from the third party. [Citations]” (Hughs v. Argonaut Ins. Co. (2001) 88 Cal.App.4th 517, 523-524.) (See Labor Code §§3852, 3853, 3854, 3856, 3860.)

    “[Labor Code] Section 3860 and its companion, section 3856, set forth the priorities for distributing funds obtained through settlement with the third party tortfeasor (§ 3860) or by way of judgment (§ 3856). When settlement is effected, with or without suit, proceeds from the recovery are to be used first to pay costs of settlement, including reasonable attorney fees; second, to refund the employer’s reimbursable compensation costs; and finally any balance to the employee. [Citations]” (Id. at 524.)

    “Where…settlement is prompted solely through the labors of the employee’s attorney, then the settlement costs, including reasonable attorney fees, are deducted from the amount of settlement prior to reimbursing the employer. [Citation] Because the employer is a passive beneficiary in this situation, its reimbursement rights are subject to reasonable fees and expenses for the services that created the common fund. [Citations]” (Id.)

    “The statutory priority scheme also addresses who determines the amount of expenses and attorney fees. These amounts ‘shall, on settlement of suit, or on any settlement requiring court approval, be set by the court. In all other cases these amounts shall be set by the appeals board.’ [Citation]” (Id.)

    Here, Reinke submits evidence that his costs of the suit total $24,104.42, plus 40% in attorneys’ fees totaling $20,000, for total costs and fees of $44,104.42, out of the $50,000 settlement proceeds. (Oppo. at p. 3.) Reinke also argues that there are another $108,401.66 in medical services expenses subject to a lien on his recovery in this case, which remains to be negotiated. (Oppo. at p. 3.)

    The Court agrees with Reinke that his costs and fees (totaling $44,104.42) are entitled to a first lien on the settlement. (Labor Code, §§ 3852, 3856(b), 3857.) Security does not cite any law for its contention that Plaintiff’s attorneys should not be paid because they took the case on a contingency basis, which is common for personal injury plaintiffs’ attorneys. Security also fails to cite any law for its argument that Reinke should have recovered more money in settlement. (See, Soliz v. Spielman (1974) 44 Cal.App.3d 70, 72 [employee has no duty to sue third party for benefit of employer].)

    However, the Court agrees that the medical lien is within the jurisdiction of the Workers’ Compensation Appeals Board). “ ‘[A] lien claimant's right to medical-legal costs [is] derivative of the employee's rights.’ [citation] ‘Therefore, [medical-legal lienholders] stand in the place of the employees with respect to claims for workers' compensation benefits, and [their] rights cannot exceed employees' rights. Because employees are limited to [the Act's] remedies for all injuries caused by ... refusals to pay [them] ..., [the lienholders] are limited to the same.’ [citation] ‘The mere fact that plaintiffs are medical providers, and not employees, does not preclude the application of [the exclusive remedy] provisions.’ ” (Perrillo v. Picco & Presley (2007) 157 Cal.App.4th 914, 929.)

    Accordingly, Security’s Motion on Lien Application is GRANTED in part. After Reinke’s costs and fees in the amount of $44,104.42, Security may obtain a lien on the remaining outstanding amount of the $50,000 settlement ($5,895.59).

DATED: July 13, 2020 ________________________________

Hon. Robert S. Draper

Judge of the Superior Court

Case Number: BC684282    Hearing Date: March 02, 2020    Dept: 78

Superior Court of California

County of Los Angeles

Department 78

SECURITY NATIONAL INSURANCE COMPANY,

Plaintiff,

vs.

CALIFORNIA DEPARTMENT OF TRANSPORTATION, et al.,

Defendants.

Case No.:

BC684282 (Consolidated With BC690740)

Hearing Date:

March 2, 2020

[TENTATIVE] RULING RE:

PLAINTIFF’S MOTION ON LIEN APPLICATION.

Plaintiff Security National Insurance Company’s motion on lien application is CONTINUED.

Background & procedural history

BC684282

On November 20, 2017, Plaintiff Security National Insurance Company (“SNIC”) filed a complaint against Defendants California Department of Transportation, the City of Los Angeles, and Elmer Ernesto Lopez-Pliego, asserting causes of action for premises liability, motor vehicle, and general negligence.

On April 20, 2018, Defendant Elmer Ernesto Lopez-Pliego (“Lopez-Pliego”) filed an answer to the complaint.

On July 6, 2018, Defendant City of Los Angeles filed an answer to the complaint.

On July 26, 2018, Defendant the People of the State of California, acting by and through the Department of Transportation (“State of California”), filed an answer to the complaint, as well as, a cross-complaint against Lopez-Pliego.

On August 3, 2018, Lopez-Pliego filed an answer to the cross-complaint.

On February 6, 2019, the Court consolidated the instant action with BC690740.

On November 27, 2019, the Court granted State of California’s motion for summary judgment against SNIC.

On January 10, 2020, the Court granted City of Los Angeles’ motion for summary judgment against SNIC.

BC690740

On January 18, 2018, Plaintiff Jeff Reinke (“Reinke”) filed a complaint against Lopez-Pliego, State of California, City of Los Angeles, and County of Los Angeles for negligence (motor vehicle) and dangerous condition of public property.

On February 27, 2018, County of Los Angeles filed an answer to the complaint.

On March 13, 2018, State of California filed an answer to the complaint.

On March 14, 2018, City of Los Angeles filed an answer to the complaint, as well as, a cross-complaint against Lopez-Pliego for indemnification, apportionment of fault, and declaratory relief.

On April 20, 2018, Lopez-Pliego filed an answer to the cross-complaint.

On September 12, 2018, the Court granted County of Los Angeles’ motion for summary judgment against Reinke.

On October 24, 2019, Reinke filed a Notice of Partial Settlement, indicating he and State of California had reached a settlement.

On November 1, 2019, Reinke filed a Notice of Partial Settlement, indicating he and City of Los Angeles had reached a settlement.

On December 13, 2019, Reinke filed a Request for Dismissal, dismissing City of Los Angeles.

DISCUSSION

SNIC moves for an order setting the amount of the lien for workers’ compensation benefits paid to and on behalf of Reinke, pursuant to Labor Code §§3856 and 3860.

Labor Code §3856 provides, as follows:

In the event of suit against such third party:

(a) If the action is prosecuted by the employer alone, the court shall first order paid from any judgment for damages recovered the reasonable litigation expenses incurred in preparation and prosecution of such action, together with a reasonable attorney’s fee which shall be based solely upon the services rendered by the employer’s attorney in effecting recovery both for the benefit of the employer and the employee. After the payment of such expenses and attorney’s fees, the court shall apply out of the amount of such judgment an amount sufficient to reimburse the employer for the amount of his expenditure for compensation together with any amounts to which he may be entitled as special damages under Section 3852 and shall order any excess paid to the injured employee or other person entitled thereto.

(b) If the action is prosecuted by the employee alone, the court shall first order paid from any judgment for damages recovered the reasonable litigation expenses incurred in preparation and prosecution of such action, together with a reasonable attorney’s fee which shall be based solely upon the services rendered by the employee’s attorney in effecting recovery both for the benefit of the employee and the employer. After the payment of such expenses and attorney’s fee the court shall, on application of the employer, allow as a first lien against the amount of such judgment for damages, the amount of the employer’s expenditure for compensation together with any amounts to which he may be entitled as special damages under Section 3852.

(c) If the action is prosecuted both by the employee and the employer, in a single action or in consolidated actions, and they are represented by the same agreed attorney or by separate attorneys, the court shall first order paid from any judgment for damages recovered, the reasonable litigation expenses incurred in preparation and prosecution of such action or actions, together with reasonable attorneys’ fees based solely on the services rendered for the benefit of both parties where they are represented by the same attorney, and where they are represented by separate attorneys, based solely upon the service rendered in each instance by the attorney in effecting recovery for the benefit of the party represented. After the payment of such expenses and attorneys’ fees the court shall apply out of the amount of such judgment for damages an amount sufficient to reimburse the employer for the amount of his expenditures for compensation together with any other amounts to which he may be entitled as special damages under Section 3852.

(d) The amount of reasonable litigation expenses and the amount of attorneys’ fees under subdivisions (a), (b), and (c) of this section shall be fixed by the court. Where the employer and employee are represented by separate attorneys they may propose to the court, for its consideration and determination, the amount and division of such expenses and fees.

Labor Code §3860 provides, as follows:

(a) No release or settlement under this chapter, with or without suit, is valid or binding as to any party thereto without notice to both the employer and the employee, with opportunity to the employer to recover the amount of compensation he has paid or become obligated to pay and any special damages to which he may be entitled under Section 3852, and opportunity to the employee to recover all damages he has suffered and with provision for determination of expenses and attorney’s fees as herein provided.

(b) Except as provided in Section 3859, the entire amount of such settlement, with or without suit, is subject to the employer’s full claim for reimbursement for compensation he has paid or become obligated to pay and any special damages to which he may be entitled under Section 3852, together with expenses and attorney fees, if any, subject to the limitations in this section set forth.

(c) Where settlement is effected, with or without suit, solely through the efforts of the employee’s attorney, then prior to the reimbursement of the employer, as provided in subdivision (b) hereof, there shall be deducted from the amount of the settlement the reasonable expenses incurred in effecting such settlement, including costs of suit, if any, together with a reasonable attorney’s fee to be paid to the employee’s attorney, for his services in securing and effecting settlement for the benefit of both the employer and the employee.

(d) Where settlement is effected, with or without suit, solely through the efforts of the employer’s attorney, then, prior to the reimbursement of the employer as provided in subdivision (b) hereof, there shall be deducted from the amount of the settlement the reasonable expenses incurred in effecting such settlement, including costs of suit, if any, together with a reasonable attorney’s fee to be paid to the employer’s attorney, for his services in securing and effecting settlement for the benefit of both the employer and the employee.

(e) Where both the employer and the employee are represented by the same agreed attorney or by separate attorneys in effecting a settlement, with or without suit, prior to reimbursement of the employer, as provided in subdivision (b) hereof, there shall be deducted from the amount of the settlement the reasonable expenses incurred by both the employer and the employee or on behalf of either, including costs of suit, if any, together with reasonable attorneys’ fees to be paid to the respective attorneys for the employer and the employee, based upon the respective services rendered in securing and effecting settlement for the benefit of the party represented. In the event both parties are represented by the same attorney, by agreement, the attorney’s fee shall be based on the services rendered for the benefit of both.

(f) The amount of expenses and attorneys’ fees referred to in this section shall, on settlement of suit, or on any settlement requiring court approval, be set by the court. In all other cases these amounts shall be set by the appeals board. Where the employer and the employee are represented by separate attorneys they may propose to the court or the appeals board, for consideration and determination, the amount and division of such expenses and fees.

“[A]n employer has a right of reimbursement for workers’ compensation benefits it has paid or become obligated to pay when its employee recoups damages from a third party tortfeasor by way of judgment or settlement. [Citations]…[T]he employer may [also] redeem its outlay for benefits by suing the tortfeasor directly [Citations], or by joining an action brought by the employee [Citation]. [¶] In turn, upon payment of benefits for injuries caused by a third party, the workers’ compensation insurer can also recoup its expenditures by suing the third party; intervening in the employee’s suit; or asserting a lien on any recovery the employee obtains from the third party. [Citations]” (Hughs v. Argonaut Ins. Co. (2001) 88 Cal.App.4th 517, 523-524.) (See Labor Code §§3852, 3853, 3854, 3856, 3860.)

“[Labor Code] Section 3860 and its companion, section 3856, set forth the priorities for distributing funds obtained through settlement with the third party tortfeasor (§ 3860) or by way of judgment (§ 3856). When settlement is effected, with or without suit, proceeds from the recovery are to be used first to pay costs of settlement, including reasonable attorney fees; second, to refund the employer’s reimbursable compensation costs; and finally any balance to the employee. [Citations]” (Id. at 524.)

“Where…settlement is prompted solely through the labors of the employee’s attorney, then the settlement costs, including reasonable attorney fees, are deducted from the amount of settlement prior to reimbursing the employer. [Citation] Because the employer is a passive beneficiary in this situation, its reimbursement rights are subject to reasonable fees and expenses for the services that created the common fund. [Citations]” (Id.)

“The statutory priority scheme also addresses who determines the amount of expenses and attorney fees. These amounts ‘shall, on settlement of suit, or on any settlement requiring court approval, be set by the court. In all other cases these amounts shall be set by the appeals board.’ [Citation]” (Id.)

SNIC did not file a proof of service showing all parties were timely and properly served with the motion, memorandum of points and authorities, and supporting declaration. (See C.C.P. §1005(b).) Even assuming, arguendo, timely and properly service, SNIC did not provide the Court with sufficient information to set the amount of a lien, if any. SNIC submitted evidence suggesting it has paid $271,334.44 in workers’ compensation benefits to Reinke, and Reinke settled his claims with the State of California and the City of Los Angeles for $12,500.00. (Declaration of Jensen ¶¶4-7; Exhibits 2-5.) However, the Court does not have sufficient information regarding the settlements, and does not have any information regarding Reinke’s expenses and attorneys’ fees.

Based on the foregoing, the motion for lien application is continued so that SNIC may (1) timely and properly serve all parties with the motion and (2) provide the Court and all parties with information regarding Reinke’s expenses and attorney’s fees, if any.

DATED: March 2, 2020

________________________________

Hon. Robert S. Draper

Judge of the Superior Court

Case Number: BC684282    Hearing Date: January 10, 2020    Dept: 78

Superior Court of California

County of Los Angeles

Department 78

SECURITY NATIONAL INSURANCE COMPANY; JEFF REINKE;

Plaintiffs,

vs.

CALIFORNIA DEPARTMENT OF TRANSPORTATION, et al.;

Defendants.

Case No.:

BC684282 (lead case)

Consolidated with Related Case:

BC690740

Hearing Date:

January 10, 2020

[TENTATIVE] RULING RE:

Defendant CITY OF LOS ANGELES’ MOTION for Summary Judgment

CITY OF LOS ANGELES;

Cross-Complainant,

vs.

ELMER LOPEZ-PLIEGO; and ROES 1-10;

Cross-Defendants.

state of california ;

Cross-Complainant,

vs.

ELMER LOPEZ-PLIEGO; and ROES 1-50;

Cross-Defendants.

Defendant City of Los Angeles’ Motion for Summary Judgment is therefore GRANTED against Plaintiff Security National Insurance Company.

Factual Background

This is a negligence and workers’ compensation damages action. The Complaint alleges as follows. Plaintiff Security National Insurance Company (“Security”)’s insured’s employee was injured during the course of his employment while walking in a crosswalk. (Compl. ¶ PL-1.) Security alleges that Defendant Elmer Ernesto Lopez-Pliego (“Lopez-Pliego”) negligently collided his vehicle into Security’s insured’s employee, Jeffrey Reinke (“Reinke”). (Compl. ¶ GN-1.) Security had to pay workers’ compensation benefits to and on behalf of Reinke, and Security alleges that Lopez-Pliego breached his duty to drive safely and reasonably. (Compl. ¶ GN-1.) Security further alleges that Defendants State of California Department of Transportation (“DOT”) and the City of Los Angeles (the “City”) created a dangerous condition by not properly designing the street that allowed Lopez-Pliego to collide into Reinke. (Compl. ¶ GN-1.)

procedural history

Security filed the Complaint on November 20, 2017, alleging three causes of action:

  1. Premises Liability

  2. Motor Vehicle

  3. General Negligence

On July 8, 2018, the City filed a Cross-Complaint against Lopez-Pliego and Roes 1-10, alleging three causes of action:

  1. Indemnification

  2. Apportionment of Fault

  3. Declaratory Relief

On July 26, 2018, DOT filed a Cross-Complaint against Lopez-Pliego and Roes 1-50, alleging indemnification.

On December 20, 2018, the Court found this case to be related to Case No. BC690740 (Reinke v. Elmer Ernesto Lopez-Pliego et al.), and that the instant case is the Lead Case.

On January 22, 2019, the parties stipulated, and the Court ordered, that this case and the Related Case are consolidated.

On October 24, 2019, Reinke filed in the Related Case a Notice of Partial Settlement with Lopez-Pliego and DOT.

On November 1, 2019, Reinke filed in the Related Case a Notice of Partial Settlement with the City.

On November 22, 2019 2019, City filed the instant Motion for Summary Judgment, seeking resolution on both Reinke’s claim in the Related Case and Security’s claims in this case.

On November 27, 2019, this Court granted DOT’s unopposed Motion for Summary Judgment against Security.

On December 5, 2019, City filed a Reply to Non-Opposition, noting that Security did not file a timely Opposition and withdrawing its Motion with respect to Reinke’s claims due to the November 1, 2019 settlement with Reinke.

Discussion

  1. MOTION FOR SUMMARY JUDGMENT

A party may move for summary judgment “if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc. § 437c, subd. (a).) “[I]f all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, 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,” the moving party will be entitled to summary judgment. (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. (Code Civ. Proc. § 437c, subd. (f)(2).)

The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; accord Code Civ. Proc. § 437c, subd. (p)(2).) A Defendant moving for summary judgment may meet its initial burden, inter alia, by proving that for each cause of action alleged, Plaintiff cannot establish at least one element of the cause of action. (Code Civ. Proc. § 437c(p)(2).) What this means in practice is that if a cause of action, such as fraud, for example, requires proof of five elements, one of which is reliance, and if Defendant sets forth a prima facie case that reliance cannot be proven (either by citation to plaintiff’s deposition testimony, written discovery responses or other means), then Defendant has met its burden.

Once the defendant has met that 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 a defense thereto. (Aguilar, supra, 25 Cal.4th at 850.) The plaintiff may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto. (Ibid.) To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

City here, moves for summary judgment on Reinke’s Complaint in the Related Case and Security’s Complaint in the instant case. On December 5, 2019, City withdrew the Motion as to Reinke’s claims following settlement with Reinke.

City continues to move for summary judgment against Security on the grounds that Secuity cannot establish that City’s property was in a dangerous condition at the time of the accident, City did not have notice of a dangerous condition, and since the City is not liable to Reinke it is also not liable to Security.

  1. Other Relevant Facts

The instant case is an insurance subrogation case filed by Security, who provides workers’ compensation benefits to and on behalf of its insured, the employer of Jeffrey Reinke. (Compl. ¶ 11.) Reinke was injured by Defendant Lopez-Pliego’s vehicle in the course of Reinke’s employment while walking in a crosswalk. (Compl. ¶¶ PL-4, GN-1.) The instant case has been consolidated with Related Case No. BC690740, a personal injury action filed by Reinke against Lopez-Pliego, DOT, and City and County of Los Angeles. (Rel. Compl. p. 1.)

City has provided the following, unopposed, facts regarding the underlying facts in both actions.

On January 25, 2017 at about 3.:45 a.m. Reinke was struck by Defendant Lopez-Pliego’s vehicle at the intersection of James M. Wood Blvd. and Francisco Street in Los Angeles. (UMF ¶ 1.) Reinke had parked in a parking area on James M. Wood Blvd. and walked to Francisco to cross to his job site, as he did every day, while wearing a fluorescent orange reflector vest with his colleague Michael Denucci. (UMF ¶¶ 2-5.) Reike testified that while he was crossing the first lane on Francisco Street, he was struck by a vehicle driven by Defendant Lopez-Pliego. (UMF ¶ 8.) In his deposition, Lopez-Pliego testified that he was driving eastbound on James M. Wood Blvd, and testified that he did not drive on the 110 Freeway on the morning of the accident and that he did not drive on the 110 Freeway exit parallel to James M. Wood Blvd. (UMF ¶¶ 12, 16.) The police department’s Collision Report determined that Lopez-Pliego was the cause of the accident. (UMF ¶ 18.)

James M. Wood Blvd. is a one-way three lane road going eastbound. (UMF ¶¶ 19.) The intersection of James M. Wood Blvd. and Francisco Street is controlled by a stop sign for Francisco Street northbound, and all traffic must turn right because James M. Wood is eastbound. (UMF ¶ 21.) The off ramp for the I-110 Freeway joins James M. Wood Blvd. close to and west of the Francisco Street junction. (UMF ¶ 23.)

  1. Premises Liability and Negligence

“The components of a public entity's legal duty under the Tort Claims Act include the existence of a dangerous or defective condition, and knowledge or notice thereof by an officer or person who has authority to remedy it.” (Gray v. America West Airlines, Inc. (1989) 209 Cal.App.3d 76, 85.) However, in premises liability cases, summary judgment may properly be granted where a defendant unequivocally establishes its lack of ownership, possession, or control of the property alleged to be in a dangerous or defective condition. (Id. at p. 81.)

“An action in negligence requires a showing that the defendant owed the plaintiff a legal duty, the defendant breached the duty, and the breach was a proximate cause of the injuries suffered by the plaintiff. A release may negate the duty element of a negligence action.” (Benedek v. PLC Santa Monica, LLC (2002) 104 Cal.App.4th 1351, 1356.)

A public entity is liable for injury caused by a dangerous condition of its property “if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and either: (a) A negligent or wrongful act or omission of an employee of the public entity ... created the dangerous condition; or (b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.” (Stathoulis v. City of Montebello (2008) 164 Cal.App.4th 559, 566.)

Under the “trivial defect doctrine,” a landowner does not need to maintain its property in perfect condition or maintain trivial defects. (Id.) “Where reasonable minds can reach only one conclusion—that there was no substantial risk of injury—the issue is a question of law, properly resolved by way of summary judgment.” (Id. at 567.)

Here, City argues that the alleged deficiencies do not meet the statutory definition of a dangerous condition of public property. (Motion at p. 6.) City argues against the alleged dangerous conditions alleged in Reinke’s Complaint, including: topography, elevation, and geometry of the roadway; insufficient sight distance; insufficient stopping distance; lack of and improper traffic signage and signaling; improper geometry and curvature of the roadway; improper setting of speed; actual speed; obstruction of motorists’ and pedestrians’ views; insufficient/improper markings; improper lighting; controls/signals/signage/sight-lines warranted by volume on the streets. (Compl. ¶ 27.)

City has provided evidence regarding the issues of topography, elevation and geometry of the roadway; improper geometry and curvature of the roadway; obstruction of motorists' and pedestrians’ views. (Motion at p. 7.) City has submittedevidece that the line of sight is not impaired by parking, overly wide street lights or trees, or other sight obstructions. (UMF ¶¶ 31-34.) Further, there were no blind curves, obscured sightlines, or other unusual conditions to make the road unsafe. (UMF ¶ 37.) Also, there was nothing unusual or significant about the elevation, slope, curvature, topography or geometry of the road that would produce a dangerous condition. (UMF ¶ 39.)

Regarding insufficient sight and/or stopping distance. Rock Miller, a Civil Engineer for the City testifies that the stopping distance for a vehicle traveling at 25 mph is 150 feet, and that in the case of the incident at issue, both a pedestrian and motorist at the accident site would have been able to see for least 150 feet before approaching the relevant intersection . (Miller Decl. ¶ 20.)

Regarding lack of and improper signage and signaling, the Complaint addresses only a missing “No Turns” sign from the 110 Freeway exit . (Compl. ¶ 29.) City has offered evidence hasthat the freeway offramp is maintained by Caltrans and is not the responsibility of the City. (Motion at p. 10; UMF ¶¶ 27, 48-49.) The City also has presented evidence that the lane control signs on the freeway off-ramp create enough information to disallow a right turn onto Francisco Street, and that the relevant portion of Francisco Street has low traffic volume such as to not require a traffic signal. (UMF ¶¶ 51-53.)

Regarding improper setting of speed/actual speed, City has presented evidence that although high rate of speed is not a physical condition, the speed limit of James M. Wood is 25 mph, and that the turning speed required to turn onto Francisco Street would be in the range of 15 mph. (UMF ¶¶ 57-59; Motion at p. 12.) City also asserts that rumble strips and speed bumps are rarely used in urban settings due to the noise they generate, and damage that may be caused to nearby structures from the vibrations. (UMF ¶ 60-62.)

Regarding insufficient/improper marking and signs, City argues asserts there were no sight obstructions and there is no evidence that a trap was created or that crosswalk was concealed. (Motion at p. 14; UMF ¶ 66.) Further, regarding insufficient lighting, City asserts that it owes no duty to light its streets, but that the overhanging lights at the incident sight were fully operational at the time and providing sufficient lighting. (Motion at p. 15; UMF ¶ 67.) Lastly, City presents evidence regarding lack of notice of dangerous conditions: proving that the City received no complaints or reports regarding street lights, damages, unsafe or dangerous conditions related to pedestrians, no visible potholes or pavement damage, and no other claims for personal injury or wrongful death and this location. (UMF ¶¶ 69-73, 90.)

Accordingly, City has provided sufficient evidence as to the lack of a triable issue of fact regarding the existence of a dangerous condition. Security has failed to file an Opposition to allege or establish with evidence that City created a dangerous condition and that such condition was created negligently. (Metcalf v. County of San Joaquin (2008) 42 Cal.4th 1121, 1132.)

Lastly, City, a public entity as the State of California, “cannot be held liable for common law negligence” although it may be held liable for negligence pleaded under a specific statutory authority. (McCarty v. State of California Dept. of Transp. (2008) 164 Cal.App.4th 955, 977.) Here, Security’s Complaint merely alleges “General Negligence” against City, not negligence pursuant to any statutory authority.

Therefore, for the above-stated reasons, Defendant City’s Motion for Summary Judgment is GRANTED against Plaintiff Security.[1]

City to provide notice.

DATED: January 10, 2020 ________________________________

Hon. Robert S. Draper

Judge of the Superior Court


[1] City withdrew its Motion with respect to Plaintiff Reinke in the Related Case in its Reply dated December 5, 2019 following settlement with Reinke. (Reply at p. 2.)

Case Number: BC684282    Hearing Date: November 27, 2019    Dept: 78

Superior Court of California

County of Los Angeles

Department 78

SECURITY NATIONAL INSURANCE COMPANY;

Plaintiff,

vs.

CALIFORNIA DEPARTMENT OF TRANSPORTATION, et al.;

Defendants.

Case No.:

BC684282 (lead case)

Consolidated with Related Case:

BC690740

Hearing Date:

November 27, 2019

[TENTATIVE] RULING RE:

Defendant STATE OF CALIFORNIA’S MOTION for Summary Judgment

CITY OF LOS ANGELES;

Cross-Complainant,

vs.

ELMER LOPEZ-PLIEGO; and ROES 1-10;

Cross-Defendants.

state of california ;

Cross-Complainant,

vs.

ELMER LOPEZ-PLIEGO; and ROES 1-50;

Cross-Defendants.

Defendant State of California Department of Transportation’s Motion for Summary Judgment is therefore GRANTED against Plaintiff Security National Insurance Company.

Factual Background

This is a negligence and workers’ compensation damages action. The Complaint alleges as follows. Plaintiff Security National Insurance Company (“Security”)’s insured’s employee was injured during the course of his employment while walking in a crosswalk. (Compl. ¶ PL-1.) Security alleges that Defendant Elmer Ernesto Lopez-Pliego (“Lopez-Pliego”) negligently collided his vehicle into Security’s insured’s employee, Jeffrey Reinke (“Reinke”). (Compl. ¶ GN-1.) Security had to pay workers’ compensation benefits to and on behalf of Reinke, and Security alleges that Lopez-Pliego breached his duty to drive safely and reasonably. (Compl. ¶ GN-1.) Security further alleges that Defendants State of California Department of Transportation (“DOT”) and the City of Los Angeles (the “City”) created a dangerous condition by not properly designing the street that allowed Lopez-Pliego to collide into Reinke. (Compl. ¶ GN-1.)

procedural history

Security filed the Complaint on November 20, 2017, alleging three causes of action:

  1. Premises Liability

  2. Motor Vehicle

  3. General Negligence

On July 8, 2018, the City filed a Cross-Complaint against Lopez-Pliego and Roes 1-10, alleging three causes of action:

  1. Indemnification

  2. Apportionment of Fault

  3. Declaratory Relief

On July 26, 2018, DOT filed a Cross-Complaint against Lopez-Pliego and Roes 1-50, alleging indemnification.

On December 20, 2018, the Court found this case to be related to Case No. BC690740 (Reinke v. Elmer Ernesto Lopez-Pliego et al.), and that the instant case is the Lead Case.

On January 22, 2019, the parties stipulated to, and the Court ordered, this case and the Related Case to be consolidated into this case.

On September 12, 2019, DOT filed the instant Motion for Summary Judgment, seeking resolution on both Reinke’s claim in the Related Case and Security’s claims in this case.

On October 24, 2019, Reinke filed in the Related Case a Notice of Partial Settlement with Lopez-Pliego and DOT.

On November 1, 2019, Reinke filed in the Related Case a Notice of Partial Settlement with the City.

On November 21, 2019, DOT filed a Reply to Non-Opposition, noting that Security did not file a timely Opposition and withdrawing its Motion with respect to Reinke’s claims due to the October 24, 2019 settlement with Reinke.

Discussion

  1. MOTION FOR SUMMARY JUDGMENT

A party may move for summary judgment “if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc. § 437c, subd. (a).) “[I]f all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, 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,” the moving party will be entitled to summary judgment. (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. (Code Civ. Proc. § 437c, subd. (f)(2).)

The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; accord Code Civ. Proc. § 437c, subd. (p)(2).) A Defendant moving for summary judgment may meet its initial burden, inter alia, by proving that for each cause of action alleged, Plaintiff cannot establish at least one element of the cause of action. (Code Civ. Proc. § 437c(p)(2).) What this means in practice is that if a cause of action, such as fraud, for example, requires proof of five elements, one of which is reliance, and if Defendant sets forth a prima facie case that reliance cannot be proven (either by citation to plaintiff’s deposition testimony, written discovery responses or other means), then Defendant has met its burden.

Once the defendant has met that 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 a defense thereto. (Aguilar, supra, 25 Cal.4th at 850.) The plaintiff may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto. (Ibid.) To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

DOT here, moves for summary judgment on Reinke’s Complaint in the Related Case and Security’s Complaint in the instant case. On November 21, 2019, DOT withdrew the Motion as to Reinke’s claims following settlement with Reinke.

DOT continues to move for summary judgment against Security on the grounds that Security cannot establish that the roadway was in a dangerous condition, and cannot assert a claim for negligence against DOT. Security did not file an Opposition (timely or otherwise) to the Motion.

  1. Other Relevant Facts

The instant case is an insurance subrogation case filed by Security, who provides workers’ compensation benefits to and on behalf of its insured, the employer of Jeffrey Reinke. (Compl. ¶ 11.) Reinke was injured by Defendant Lopez-Pliego’s vehicle in the course of Reinke’s employment while walking in a crosswalk. (Compl. ¶¶ PL-4, GN-1.) The instant case has been consolidated with Related Case No. BC690740, a personal injury action filed by Reinke against Lopez-Pliego, DOT, and City and County of Los Angeles. (Rel. Compl. p. 1.)

Defendant DOT has provided the following, unopposed, facts regarding the underlying facts in both actions.

On January 25, 2017 at about 3.:45 a.m. Reinke was struck by Defendant Lopez-Pliego’s vehicle at the intersection of James M. Wood Blvd. and Francisco Street in Los Angeles. (UMF ¶ 1.) James M. Wood Blvd. is a one-way three lane road going eastbound; Francisco Street is a two-way, two lane road with traffic restricted to right turns in and out. (UMF ¶¶ 3-4.) The accident location is adjacent to the eastbound SR 110 offramp to James M. Wood Blvd. (UMF ¶ 5.) The offramp is signed and delineated, indicating that traffic in the right lane must proceed straight through the intersection, including painted solid white lines on the pavement. (UMF ¶¶ 6-7) The lines, arrows, and signs prohibit drivers from the SR 110 offramp from making a right turn onto Francisco Street. (UMF ¶ 7.)

Defendant Lopez-Pliego testified that he was travelling eastbound on James M. Wood Blvd. prior to making the right turn onto Francisco Street, not travelling on the SR 110 offramp. (UMP ¶ 11.) In his deposition, Lopez-Pliego testified that he was driving eastbound on Eighth Street, which turns into James M. Wood Blvd, and testified that he did not drive on the 110 Freeway on the morning of the accident and that he did not drive on the 110 Freeway exit parallel to James M. Wood Blvd. (DOT Evid., Exh. S, 18:8-18.)

  1. Premises Liability

“The components of a public entity's legal duty under the Tort Claims Act include the existence of a dangerous or defective condition, and knowledge or notice thereof by an officer or person who has authority to remedy it.” (Gray v. America West Airlines, Inc. (1989) 209 Cal.App.3d 76, 85.) However, in premises liability cases, summary judgment may properly be granted where a defendant unequivocally establishes its lack of ownership, possession, or control of the property alleged to be in a dangerous or defective condition. (Id. at p. 81.)

Here, DOT argues that (1) the State does not own, maintain, or control the location of the accident; (2) there is no evidence of a dangerous condition; (3) Defendant Lopez-Pliego failed to exercise due care in a foreseeable manner; (4) and Security cannot establish that the State had actual or constructive notice of the alleged dangerous condition. (Motion at pp. 9-15.)

Security did not file an Opposition to DOT’s Motion. Reinke’s Complaint alleged that Defendant Lopez-Pliego exited the SR 110 offramp and struck Reinke after making a right turn from the offramp. (Rel. Compl. ¶ 11.) Security’s Complaint did not allege such, but merely alleged that the accident took place at the “intersection of James M. Woods Blvd. and Francisco St.” (Compl. ¶ MV-1.)

As a preliminary matter, DOT may not be liable for the existence of a dangerous or defective condition if it does not own, possess or control the property. (Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1162.)

DOT has presented evidence that the accident took place on land that is owned, possessed, or controlled by the City of Los Angeles, not by the State. In the Declaration of Joseph Waite, a professional land surveyor, DOT provides that a “careful examination of the Right of Way Engineering documents and maps” yield a determination that the State “did not own or control the roadway where the subject accident occurred.” (Waite Decl. ¶& 5, 8.) Further, the Declaration of Christian Engelmann, a registered civil engineer and expert witness, declares that based on review of the Traffic Collision Report and the deposition of Officer Nuno, Defendant Lopez-Pliego made a right turn from James M. Wood Blvd. (Engelman Decl. ¶ 13.)

The Traffic Collision report states that Lopez-Pliego’s vehicle was driving eastbound on “James M Wood in #1 lane crossed through all lanes to make right turn then collided with P-2 who was walking [eastbound] crosswalk on James M Wood through Francisco.” (DOT Evid. Exh. D, pp. 4-5.) The officer who responded to the scene, Officer Gilberto Nuno, testified in his deposition that Lopez-Pliego had been driving on James Wood Blvd. rather than on the 110 freeway off ramp. (DOT Evid. Exh. R, 28:23-29:5.) Further, a witness who was crossing the street with Reinke testified in his deposition that he did not see the vehicle coming from the off-ramp. (DOT Evid. Exh. T, 30: 4-11.) Additionally, Defendant Lopez-Pliego testified in his declaration that he was not driving on the off-ramp and that he had not driven on the 110 freeway. (DOT Evid. Exh. S, 18: 9-18.)

The Court finds that DOT has provided sufficient evidence as to establish the lack of a triable issue of fact as to whether the State owned, controlled, or possessed the land at the side of the accident. Security did not respond to this Motion or provide alternate evidence. The Court finds that the State of California/DOT provided sufficient evidence that it owns, controls, or possesses the SR 110 Freeway and the freeway off ramp adjacent to the accident side, but the State does not own, control, or possess the other roads nearby such as James M. Wood Blvd. or Francisco St.

Accordingly, summary judgment may properly be granted for Defendant DOT where it unequivocally established its lack of ownership, possession, or control of the property alleged to be in a dangerous or defective condition. (Gray v. America West Airlines, Inc., supra, 209 Cal.App.3d at p. 85.)

  1. Negligence

“An action in negligence requires a showing that the defendant owed the plaintiff a legal duty, the defendant breached the duty, and the breach was a proximate cause of the injuries suffered by the plaintiff. A release may negate the duty element of a negligence action.” (Benedek v. PLC Santa Monica, LLC (2002) 104 Cal.App.4th 1351, 1356.)

DOT argues that Security may not assert a cause of action for negligence against DOT because it cannot establish that the roadway was in a dangerous condition, and because Security may not assert a common law theory of governmental liability against it. (Motion at pp. 15-17.)

A public entity is liable for injury caused by a dangerous condition of its property “if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and either: (a) A negligent or wrongful act or omission of an employee of the public entity ... created the dangerous condition; or (b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.” (Stathoulis v. City of Montebello (2008) 164 Cal.App.4th 559, 566.)

Under the “trivial defect doctrine,” a landowner does not need to maintain its property in perfect condition or maintain trivial defects. (Id.) “Where reasonable minds can reach only one conclusion—that there was no substantial risk of injury—the issue is a question of law, properly resolved by way of summary judgment.” (Id. at 567.)

Here, Security’s Complaint alleges that DOT “created a dangerous condition by not properly designing the street that allowed Defendant [Lopez-Pliego] to collide into Mr. Reinke.” (Compl. ¶ GN-1.) The Complaint does not provide further details of the defective condition.

As established above, DOT has presented sufficient evidence that it does not own, control, or possess the land where the accident took place. However, it is possible the SR 110 offramp that DOT owns, controls, or possesses contributed to a dangerous condition.

DOT has provided evidence that the offramp design plans include solid white lines and pavement arrows indicating lane assignment and mandatory movements. (UMF ¶ 7.) DOT provides that the offramp is “signed and delineated indicating traffic in the right lane must proceed straight through the signalized intersection. A R3-5a sign indicating traffic must process straight is located upstream of the right lane of the offramp in advance of the signalized intersection. (UMF ¶ 6.) In the images provided by DOT from Google Earth, the three lanes comprising the SR 110 offramp are marked with large arrows indicating that all three lanes, including the right-most lane, must go straight or turn left. (DOT Evid., Exh. B.) There is also a median on the right side of the offramp lanes, preventing the lanes from turning right onto Francisco Street and there are raised signs above each offramp lane indicating that the lanes must continue straight or turn left (not right onto Francisco Street where the accident took place). (DOT Evid., Exh. B.)

DOT has further provided evidence that zero vehicle versus pedestrian collisions were reported at the subject offramp in the three years prior to the accident. (UMF ¶ 16.) The collision rate for the subject offramp has a collision rate is “well below the statewide average for similar locations. The accident rate is .29 accidents per million vehicles and the statewide average is .92 accidents per million vehicles.” (UMF ¶ 18.)

Accordingly, DOT has provided sufficient evidence as to the lack of a triable issue of fact regarding the existence of a dangerous condition. Security has failed to allege, or establish with evidence, that DOT created a dangerous condition and that such condition was created negligently. (Metcalf v. County of San Joaquin (2008) 42 Cal.4th 1121, 1132.)

Lastly, DOT, a public entity as the State of California, “cannot be held liable for common law negligence” although it may be held liable for negligence pleaded under a specific statutory authority. (McCarty v. State of California Dept. of Transp. (2008) 164 Cal.App.4th 955, 977.) Here, Security’s Complaint merely alleges “General Negligence” against DOT, not negligence pursuant to any statutory authority.

Therefore, for the above-stated reasons, Defendant DOT’s Motion for Summary Judgment is therefore GRANTED against Plaintiff Security.[1]

DOT to provide notice.

DATED: November 27, 2019 ________________________________

Hon. Robert S. Draper

Judge of the Superior Court


[1] DOT withdrew its Motion with respect to Plaintiff Reinke in the Related Case in its Reply dated November 21, 2019 following settlement with Reinke. (Reply at p. 2.)