Case Name: Ronald Wong, et al. v. Moonlight Express, LLC, et al.
Case No.: 2015-1-CV-284953

Motion for Summary Judgment, or in the Alternative, Summary Adjudication by Defendant Guerra Construction Group

Factual and Procedural Background

This is a negligence case. On October 27, 2014, at about 8:15 a.m., 15-year-old Ethan Wong (“Wong”) rode his bike toward Monta Vista High School in the designated, signed, and painted westbound bike lane of McClellan Road in Cupertino, California. (See Third Amended Complaint [“TAC”] at ¶ 20.) At that time, defendant Manvinder Sandhu (“Sandhu”), a driver for defendant Moonlight Express, LLC (“Moonlight”), drove a 62-foot long and eight foot wide commercial dump truck and trailer on McClellan Road in the westbound motor vehicle lane. (Id. at ¶ 21.) McClellan Road is a small two-lane road with one lane of travel in the east and west directions for motor vehicles. (Id. at ¶ 22.)

As defendant Sandhu drove his large truck westbound on McClellan Road, he made several cellular telephone calls. (TAC at ¶ 23.) While engaged in a telephone conversation, defendant Sandhu’s truck and trailer collided with Wong and his bike. (Ibid.) This collision caused Wong to fall. (Ibid.) Wong’s helmet struck the pavement, and he succumbed to his injuries at the scene of the collision. (Ibid.)

Thereafter, defendant Sandhu allegedly continued his telephone conversation and drove along as if nothing had happened. (TAC at ¶ 24.) Defendant Sandhu claims that he never saw Wong before the collision. (Ibid.) The driver of another vehicle had to flag down defendant Sandhu and inform him that his truck had struck and killed Wong. (Ibid.)

On August 16, 2017, plaintiffs Ronald Wong and Athena Wong, Wong’s parents, and the Estate of Ethan Wong, by and through its Successor in Interest, Ronald Wong (collectively, “Plaintiffs”) filed the operative TAC against defendants alleging causes of action for: (1) general negligence/wrongful death; (2) negligent hiring, supervision, retention, or selection of employee or contractor; (3) negligent entrustment of motor vehicle; (4) public nuisance; (5) dangerous condition of public property (Gov. Code, § 835 et seq.); (6) public employee/contractor liability for dangerous condition (Gov. Code, §§ 814 et seq., 815.2 et seq., 840 et seq., and related authority); (7) breach of mandatory duty to warn re: truck traffic routes and restricted streets (Gov. Code, § 815.6 et seq. and related authority); (8) negligent product liability – failure to warn; (9) strict product liability – failure to warn; (10) strict product liability – manufacturing defect; (11) strict product liability – design defect; and (12) negligent product liability –failure to recall/retrofit.

Plaintiffs allege in part that defendant Guerra Construction Group (“Guerra”) had a duty to develop and implement safety policies and procedures for those whom it hired, directed, contracted, or supervised, including but not limited to defendants Pleasanton Trucking, Inc., Moonlight, and Sandhu. (TAC at ¶ 8.) These safety policies and procedures that Guerra did not properly initiate, maintain, supervise, or approve included identifying the streets for effecting jobsite access, ingress, egress, and traffic control for the safety of workers, their vehicles, and the general public. (Ibid.) Guerra also owed a nondelegable duty of care to the general public that arose in part from the fact that the work of the defendants, and each of them, involved a special or recognizable risk of harm arising out of the nature of the work, the place(s) where the defendants performed it, or the defendants’ planned but unsafe method(s) of performing it. (Ibid.) Guerra knew or should have known that the defendants’ work was likely to involve these risks; the defendants failed to use reasonable care to take specific safety measures appropriate to the danger to avoid these risks; and as a result of the conduct of defendants, Plaintiffs were harmed. (Ibid.) Guerra is allegedly responsible for Plaintiffs’ harm directly, indirectly, and/or vicariously. (Ibid.)

Motion for Summary Judgment, or in the Alternative, Summary Adjudication

Currently before the Court is the motion for summary judgment, or in the alternative, summary adjudication by defendant Guerra. (Code Civ. Proc., § 437c.) Plaintiffs and defendant RM Acquisition LLC filed separate written oppositions. Guerra filed reply papers and evidentiary objections. No trial date has been set.

Legal Standard

“Summary judgment is properly granted when no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. A defendant moving for summary judgment bears the initial burden of showing that a cause of action has no merit by showing that one or more of its elements cannot be established or that there is a complete defense. 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.’ ‘There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.’” (Madden v. Summit View, Inc. (2008) 165 Cal.App.4th 1267, 1272 [internal citations omitted].)

Similarly, “[a] party may seek summary adjudication on whether a cause of action, affirmative defense, or punitive damages claim has merit or whether a defendant owed a duty to a plaintiff. A motion for summary adjudication…shall proceed in all procedural respects as a motion for summary judgment.” (California Bank & Trust v. Lawlor (2013) 222 Cal.App.4th 625, 630 [internal citations and quotation marks omitted].)

TAC is the Operative Pleading

“The purpose of a summary judgment proceeding is to permit a party to show that material factual claims arising from the pleadings need not be tried because they are not in dispute. The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues.” (Swanson v. Morongo Unified School District (2014) 232 Cal.App.4th 954, 962.) Thus, a motion for summary judgment must be directed to the issues raised by the pleadings. (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 332.)

In addition, “[i]t is well established that an amendatory pleading supersedes the original one, which ceases to perform any function as a pleading. [Citations.] Thus, an amended complaint supersedes all prior complaints. [Citations.] The amended complaint furnishes the sole basis for the cause of action, and the original complaint ceases to have any effect either as a pleading or a basis for judgment.” (State Comp. Ins. Fund v. Super. Ct. (2010) 184 Cal.App.4th 1124, 1130-1131 [internal quotation marks omitted]; see Anmaco, Inc. v. Bohlken (1993) 13 Cal.App.4th 891, 901 [same].)

Here, the current motion for summary judgment, or in the alternative, summary adjudication appears to be defective as it is not directed toward the proper pleading. (See Plaintiffs’ OPP at p. 13:26-28.) Guerra, as the moving party, directs its motion to the Second Amended Complaint (“SAC”) filed by Plaintiffs on April 7, 2017. (See Memo of P’s & A’s at pp. 2:1-12, 5:9-20; see also Guerra’s Proposed Order [The SAC is dismissed in its entirety as to Guerra.].) The TAC however is now the operative pleading as it was filed and served on August 16, 2017. Therefore, the SAC ceases to perform any function and cannot serve as a basis for judgment. In other words, this Court cannot grant a motion for summary judgment, or summary adjudication to a pleading that no longer exists. (See Civ. Code, § 3532 [“The law neither does nor requires idle acts.”]; see also Burr v. Board of Sup’rs of Sacramento County (1892) 96 Cal. 210, 213 [“A court will not exercise a power for no material or useful purpose.”].) Instead, Guerra may refile and serve its motion directed to allegations set forth in the TAC which remains the operative pleading. The motion must be filed and served in compliance with the Code of Civil Procedure. Guerra would not appear to suffer any prejudice by having to refile the motion as no trial date has been set in this case.

Accordingly, the motion for summary judgment, or in the alternative, summary adjudication is DENIED.