Case Number: MC025401 Hearing Date: July 24, 2018 Dept: A15

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF LOS ANGELES – NORTH DISTRICT

BLANCA JIMENEZ, )

) Case Number MC025401

Plaintiff, )

) ORDER AFTER HEARING

v. )

) Date of Hearing:

JAMIE BURGESON, SANDRA ) July 26, 2018

SCHWARTZ, JAMES WITT, and Does 1 ) Dept. A-15

through 10, ) Judge Randolph A. Rogers

)

Defendants. )

____________________________________)

Defendants John Burgeson and Joan Bergeson’s motions for summary judgment and for sanctions, and Plaintiff Bianca Jimenez’s motion for leave to file a First Amended Complaint came on for hearing on July 26, 2018. Plaintiff appeared through her counsel of record, ___________________. Defendants John Burgeson and Joan Bergeson appeared through their counsel of record, ___________________.

The Court, having received and reviewed the pleadings of record and evidence submitted and having considered argument of counsel, hereby ORDERS:

Plaintiff’s motion for leave to file a First Amended Complaint is GRANTED as unopposed;

Defendants John Burgeson and Joan Bergeson’s motion for sanctions is MOOTED by Plaintiff’s First Amended Complaint; and

Defendants John Burgeson and Joan Bergeson’s motion for summary judgment is GRANTED.

SO ORDERED this the 26th day of July, 2018.

______________________

RANDOLPH ROGERS,

JUDGE

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF LOS ANGELES – NORTH DISTRICT

BLANCA JIMENEZ , )

) Case Number MC025401

Plaintiff, )

) STATEMENT OF DECISION

v. )

) Date of Hearing:

JAMIE BURGESON, SANDRA ) July 26, 2018

SCHWARTZ, JAMES WITT, and Does 1 ) Dept. A-15

through 10, ) Judge Randolph A. Rogers

)

Defendants. )

____________________________________)

The Court bases the Order After Hearing of this date upon the following Statement of Decision:

The present case arises from a motor vehicle accident, wherein Plaintiff Blanca Jimenez (“Plaintiff” or “Jimenez”) alleges personal injuries arising out of an alleged car accident that occurred on April 21, 2013, in a strip mall parking lot. Plaintiff claims that Defendant Jamie Burgeson (“Jamie”) caused her injuries when she backed her car into her.

Plaintiff filed her Complaint on April 17, 2015. Defendants Sandra Schwartz (“Schwartz”) and James Witt (“Witt”) filed their answer on April 15, 2016, and Defendant Burgeson filed her answer on May 11, 2016. Later, on January 10, 2017, Plaintiff filed Doe amendments to add Defendants John Burgeson and Joan Bergeson (together the “Bergesons”) to the Complaint.

The instant series of motions began with the Bergesons filing a motion for summary judgment on November 17, 2017. In their motion, the Bergesons argue that Plaintiff is unable to establish liability because the automobile at issue was not owned or controlled by the Bergesons, but was a vehicle owned and controlled by Schwartz and Witt. Additionally, and in line with their motion for summary judgment, the Bergesons filed a motion for sanctions pursuant to Code of Civ. Proc. §128.7 on May 01, 2018, arguing that there is no factual or legal basis for Plaintiff’s allegations against the Bergesons, and that sanctions should be awarded for the frivolous filing against them.

In response to these two motions Plaintiff sought leave to file a First Amended Complaint (“FAC”) on an ex parte basis on May 22, 2018. Upon hearing the ex parte motion, the Court continued the hearing for Plaintiff’s motion for leave to amend, and the Bergesons’ motions for summary judgment and sanctions until July 26, 2018.

While the Bergesons did not file an opposition to Plaintiff’s motion for leave to file an amended complaint, Plaintiff filed opposition to the Bergesons’ motion for sanctions and motion for summary judgment on July 12, 2018. As to the motion for summary judgment, Plaintiff argues that it is mooted by Plaintiff filing a FAC, and as to the motion for sanctions, Plaintiff argues that (1) the Bergesons failed to comply with the 21 day ‘safe harbor’ provision for filing a motion for sanctions under Code of Civ. Proc. §128.7, and (2) that the allegations in the Complaint and FAC are both grounded in fact and not legally frivolous.

The Bergesons filed reply briefs for both motions on July 19, 2018. In their reply to their motion for sanctions, the Bergesons provide documentary support for having provided the 21 day notice prior to filing the motion for sanctions under Code of Civ. Proc. §128.7, and re-assert that nothing in Plaintiff’s complaint provides any legal or factual basis for maintaining an action against the Bergesons, necessitating the motion for sanctions. As to the Bergesons’ reply to their motion for summary judgment, the Bergesons reassert the inability of Plaintiff to establish any liability attaching to the Bergesons, and argue that the cases cited by Plaintiff purporting to make the motion for summary judgment moot do not support the proposition.

Leave to File an Amended Complaint – Code of Civil Procedure §473(a)(1) provides that the trial court may, “in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading . . . .” In exercising this discretion, trial courts are bound to apply a policy of great liberality in permitting amendments to the complaint at any stage of the proceedings. Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761. “If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only error but an abuse of discretion.” Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530. Courts may grant a motion to amend as late as the time of trial and even postpone the trial if necessary to the furtherance of justice. Honig v. Financial Corp. of America (1992) 6 Cal.App.4th 960, 965. But despite the general policy of liberality in allowing amendments, it is proper and within the discretion of the trial court to deny leave to file a proposed amendment unless the proponent of the amendment can show the amendment will not be prejudicial to other parties in the action and the delay in bringing the amendment was excusable. Melican v. Regents of University of California (2007) 151 Cal.App.4th 168, 175.

Under California Rules of Court, Rule 3.1324, a party moving for leave to file an amended complaint must include a supporting declaration that specifically describes “(1) The effect of the amendment; (2) Why the amendment is necessary and proper; (3) When the facts giving rise to the amended allegations were discovered; and (4) The reasons why the request for amendment was not made earlier.” The information provided for in California Rules of Court, Rule 3.1324 in important to the Court’s ability to evaluate the proposed amended complaint, and evaluate whether the new facts, claims, and parties added to the action will result in prejudice to the non-moving party, unjustly delay proceedings, or is being made for improper purposes.

Upon review of the moving papers, and the lack of opposition by any Defendant, the Court will GRANT Plaintiff’s motion for leave to file a First Amended Complaint as unopposed.

Motion for Sanctions – Code of Civil Procedure §128.7(b) provides that the filing of a pleading certifies that, to the attorney or unrepresented party’s “knowledge, information, and belief, formed after an inquiry reasonable under the circumstances;” the pleading is not being presented “primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;” the claims, defenses and other legal contentions therein are “warranted;” and the allegations and other factual contentions “have evidentiary support.” If these standards are violated, the court can impose an appropriate sanction sufficient to deter future misconduct, including a monetary sanction. Code of Civ. Proc. §128.7(c) & (d). “The purpose of section 128.7 is to deter frivolous filings.” In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 826.

A court may impose §128.7 sanctions “if the court concludes the pleading was filed for an improper purpose or was indisputably without merit.” Peake v. Underwood (2014) 227 Cal.App.4th 428, 440. “A claim is factually frivolous if it is not well grounded in fact and it is legally frivolous if it is not warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law.” Id. A claim is unreasonable if “any reasonable attorney would agree that the [claim] is totally and completely without merit.” In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.

As the Court has granted Plaintiff’s motion for leave to file an amended complaint, the Court will consider the instant motion MOOTED by the FAC.[1]

Standard for ruling on Summary Judgment– A party may move for summary judgment in any action or proceeding if it is contended the action has no merit or that there is no defense to the action or proceeding. Code Civ. Proc. §437c(a). To prevail on a motion for summary judgment, the evidence submitted must show 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). In other words, the opposing party cannot present contrary admissible evidence to raise a triable factual dispute.

“For purposes of motions for summary judgment and summary adjudication: [¶] (1) A plaintiff or cross-complainant has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on that cause of action. Once the plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The defendant or cross-defendant 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.” Code Civ. Proc. §437c(p)(1).

When ruling on a summary judgment motion, the trial court must consider all inferences from the evidence, even those contradicted by the moving party’s evidence. The motion cannot succeed unless the evidence leaves no room for conflicting inferences as to material facts; the court has no power to weigh one inference against another or against other evidence. Murillo v. Rite Stuff Food Inc. (1998) 65 Cal.App.4th 833, 841. In determining whether the facts give rise to a triable issue of material fact, “‘[a]ll doubts as to whether any material, triable, issues of fact exist are to be resolved in favor of the party opposing summary judgment . . . .’” Gold v. Weissman (2004) 114 Cal.App.4th 1195, 1198-99. “In other words, the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences there from must be accepted as true.” Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 179.

Effect of the FAC on the Motion – As an initial matter, Plaintiff argues that the motion for summary judgment is mooted by the filing of the FAC. In making this argument, Plaintiff relies on Oakland Raiders v. National Football League (2005) 131 Cal. App. 4th 621, Dang v. Smith (2010) 190 Cal. App. 4th 646, and Distefano v. Forester (2001) 85 Cal. App. 4th 1249. On the Court’s review of these cases, the Court agrees with the Bergesons in determining that there is no support for Plaintiff’s argument that an amended pleading moots a summary judgment motion in the cases relied upon by Plaintiff. To the extent that these cases discuss the amendment of pleading in the context of summary judgment motions, they do so on the basis of making a determination as to whether unpleaded conduct may be used in opposition to a summary judgment motion. In that context, unpleaded conduct cannot be used to create a triable issue of material fact absent some attempt to amend the pleading prior to adjudication. Here, as the Court has accepted Plaintiff’s FAC, the only issue is whether Plaintiff’s substantive opposition is sufficient to create a triable issue of material fact precluding adjudication on the merits.

Causes of Action (Negligence) – In order to defeat the causes of action sounding in negligence, the Bergesons must establish that Plaintiff will be unable to establish one of the following elements: (1) defendant’s legal duty of care toward plaintiff; (2) defendant’s breach of duty, i.e., the negligent act or omission; (3) injury to plaintiff as a result of the breach, i.e., proximate or legal cause; and (4) damage to plaintiff. Pultz v. Holgerson (1986) 184 Cal.App.3d 1110, 1117. No strict requirements exist for the form of such allegations. Id. The legal conclusion that a “duty” exists is not necessary, but that the duty to exercise reasonable care can be inferred from the facts asserted is necessary. Id. For instance, duty of care can arise from a contractual relationship alleged between the parties. See Bloomberg v. Interinsurance Exchange (1984) 162 Cal.App.3d 571, 576 (Complaint based on negligent performance of contract, and whether plaintiffs could go forward on that theory would depend on wording of the agreement). The element of breach may be alleged in general terms, i.e., it is sufficient to allege the negligently done act without stating the particular omission that rendered the act negligent. Van Meter v. Reed (1962) 207 Cal.App.2d 866, 869; Pultz, supra, 184 Cal.App.3d at 1117. Proximate cause may also be simply set forth. Pultz, supra, 184 Cal.App.3d at 1117.

On review of the moving papers, it appears to the Court that there are no disputed issues of material fact as to the Bergesons’ liability in this case. It is undisputed that the Bergesons did not own the car involved in the incident (FAC ¶36, Separate Statement No. 7), it is undisputed that the Bergesons did not operate the car involved in the accident (FAC ¶35, Separate Statement No. 6), it is undisputed that Jamie was 34 years old at the time of the accident (Separate Statement No. 4), and it is undisputed that, immediately prior to the accident occurring, Jamie was residing at Schwartz and Witt’s house (FAC ¶23). Upon these undisputed facts, there appears to be no basis for the Court to infer that any cause of action predicated on negligence by the Bergesons can be maintained. Specifically, (1) there is no factual basis for Bergesons’ having a duty either to the Plaintiff or to Jamie, because the Bergesons had no legal ability to control the vehicle that cause the accident, nor did then have any legal duty to control Jamie’s actions as a 34 year old; (2) as there is no duty, there is no breach; (3) there is no factual basis for the Court to make a determination that anything that the Bergesons did or failed to do constituted a legal or proximate cause for Plaintiff’s injuries; and (4) in line with this there is no basis to attribute Plaintiff’s injuries to the Bergesons.

To the extent that Plaintiff is seeking to attach liability to the Bergesons, she appears to do so on the basis of their knowledge of Jamie’s lack of a driver’s license, Jamie using the Bergesons’ car to drive to the Schwartz/Witt residence, not listing Jamie as an excluded driver on their insurance, or failing to prevent the accident from occurring some other, unspecified, way. These arguments go only to the issue of proximate causation, and do not address the issues of Duty, Breach, Legal Cause, and Damages, which the Court has already discussed on a factual basis supra.

As to the issue of proximate cause, any first year law student knows the seminal case for proximate causation in the United States is Palsgraf v. Long Island Railroad Co. (1928) 248 N.Y. 339 where a railroad was sued by a customer due to an explosion that occurred when another customer dropped a package that happened to contain fireworks. Much like in Palsgraf, Plaintiff invites us to enter “a maze of contradictions. A guard stumbles over a package which has been left upon a platform. It seems to be a bundle of newspapers. It turns out to be a can of dynamite. To the eye of ordinary vigilance, the bundle is abandoned waste, which may be kicked or trod on with impunity. Is a passenger at the other end of the platform protected by the law against the unsuspected hazard concealed beneath the waste? If not, is the result to be any different, so far as the distant passenger is concerned, when the guard stumbles over a valise which a truckman or a porter has left upon the walk? The passenger far away, if the victim of a wrong at all, has a cause of action, not derivative, but original and primary… The diversity of interests emphasizes the futility of the effort to build the plaintiff’s right upon the basis of a wrong to some one else. The gain is one of emphasis, for a like result would follow if the interests were the same. Even then, the orbit of the danger as disclosed to the eye of reasonable vigilance would be the orbit of the duty. One who jostles one’s neighbor in a crowd does not invade the rights of others standing at the outer fringe when the unintended contact casts a bomb upon the ground. The wrongdoer as to them is the man who carries the bomb, not the one who explodes it without suspicion of the danger. Life will have to be made over, and human nature transformed, before prevision so extravagant can be accepted as the norm of conduct, the customary standard to which behavior must conform.”

Here, Plaintiff invites the Court to believe that the owner of a car, whose only involvement in the case appears to be in dropping Jamie off at the Schwartz/Witt residence, must nevertheless be determined to be proximately liable for a 34 year old’s independent acts of borrowing a third party’s car, driving the third party’s car to a liquor store, and then injuring a fourth party. The Court will not accept such an invitation, and Plaintiff cites no legal authority that would support such a radical extension of liability.

Accordingly, the motion for summary judgment is GRANTED.

SO ORDERED this the 26th day of July, 2018.

_____________________________

RANDOLPH A. ROGERS, JUDGE

[1] While the factual allegations remain substantive the same for many of the causes of action, the fact that Plaintiff has added numerous additions related to the Bergesons makes it inappropriate for the Court to substantively consider the motion without permitting the Bergesons to refile the motion with the new allegations as part of their motion and allow Plaintiff to substantively oppose such a motion on its merits.