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

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

Currently before the Court is the motion for summary judgment, partial summary judgment, or in the alternative, summary adjudication by defendant Guerra to the TAC. (Code Civ. Proc., § 437c.) Plaintiffs and defendant RM Acquisition LLC filed separate written oppositions and requests for judicial notice. Trial is set for January 14, 2019.

Motion for Partial Summary Judgment and Summary Adjudication

As a preliminary matter, Guerra’s notice of motion makes a request for “partial summary judgment.” However, the term “partial summary judgment” has been used to refer to “summary adjudication of issues.” (City of Santee v. Super. Ct. (1991) 228 Cal.App.3d 713, 719, fn. 5.) The Code of Civil Procedure does not employ the term “partial summary judgment,” presumably because it is a misnomer since no judgment is entered in connection with that procedure of granting summary adjudication of issues. (Ibid.) “Accordingly, the preferred terminology for this procedure is precisely what it is, ‘summary adjudication of issues.’” (Ibid.) The Court therefore treats the request for partial summary judgment as one for summary adjudication.

“A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).)

According to the notice of motion, Guerra makes an alternative request for summary adjudication of nine separate factual issues. These issues however do not completely dispose of any cause of action in the TAC. Nor do such issues constitute affirmative defenses, claims for damages, or issues of duty. Thus, the Court is unable to properly address any motion for summary adjudication. The Court therefore treats the current application as a motion for summary judgment.

Legal Standard

“A moving party defendant is entitled to summary judgment if it establishes a complete defense to the plaintiff’s causes of action, or shows that one or more elements of each cause of action cannot be established. [Citation.] A moving party defendant bears the initial burden of production to make a prima facie showing that no triable issue of material fact exists. Once the initial burden of production is met, the burden shifts to the responding party plaintiff to demonstrate the existence of a triable issue of material fact. [Citation.] From commencement to conclusion, the moving party defendant bears the burden of persuasion that there is no triable issue of material fact and that the defendant is entitled to judgment as a matter of law. [Citation.]” (Eriksson v. Nunnink (2011) 191 Cal.App.4th 826, 847-848.)

Analysis

Here, Plaintiffs allege the first, second, third, and fourth causes of action against defendant Guerra. The first, second, and third causes of action arise from negligence theories and the fourth cause of action is a claim for public nuisance.

The elements of negligence are: (1) defendant’s obligation to conform to a certain standard of conduct for the protection of others against unreasonable risks (duty); (2) failure to conform to that standard (breach of duty); (3) a reasonably close connection between the defendant’s conduct and resulting injuries (proximate cause); and (4) actual loss (damages). (Vasquez v. Residential Investments, Inc. (2004) 118 Cal.App.4th 269, 279.)

A nuisance is statutorily defined as anything “injurious to health” or “indecent, or offensive to the senses, or an obstruction to the free use of property” that interferes “with the comfortable enjoyment of life or property …” (Civ. Code, § 3479.) “A public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal.” (Civ. Code, § 3480.) As the California Supreme Court has explained, “public nuisances are offenses against, or interferences with, the exercise of rights common to the public.” (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1103.)

Public nuisance liability “does not hinge on whether the defendant owns, possesses or controls the property, nor on whether he is in a position to abate the nuisance; the critical question is whether the defendant created or assisted in the creation of the nuisance.” (City of Modesto Redevelopment Agency v. Super. Ct. (2004) 119 Cal.App.4th 28, 38; accord, County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 306.) Given “the broad definition of nuisance,” the independent viability of a nuisance cause of action “depends on the facts of each case.” (El Escorial Owners’ Assn. v. DLC Plastering, Inc. (2007) 154 Cal.App.4th 1337, 1348.)

Defendant Guerra argues it is entitled to summary judgment because: (1) Guerra had no contractual relationship with Moonlight or Sandhu; (2) the vicarious liability doctrine (aka respondeat superior) cannot attach to Guerra because neither Pleasanton, Moonlight nor Sandhu were employees or agents of Guerra; (3) the peculiar risk exception to the independent contractor rule is inapplicable; (4) the non-delegable duty exception to the independent contractor rule is inapplicable; and (5) Guerra is not a “For Hire” motor carrier. (See Memo of P’s & A’s at pp. 1-2.)

The Court has reviewed both the separate statement and memorandum of points and authorities submitted by defendant Guerra in its motion for summary judgment. In doing so, the Court concludes that Guerra has not addressed the claim for public nuisance with arguments, legal authority, material facts or supporting evidence to support a finding for summary judgment. Defendant Guerra therefore fails to meet its initial burden on its motion for summary judgment. (See Joseph Schlitz Brewing Co. v. Downey Distributor (1980) 109 Cal.App.3d 908, 914 [if a single material issue of fact is found, the trial court is powerless to grant a motion for summary judgment]; see also Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840 [“A responding plaintiff has no evidentiary burden unless the moving defendant has first met its initial burden.”].)

Accordingly, the motion for summary judgment is DENIED. Given this ruling, the Court declines to address the requests for judicial notice submitted in the oppositions.

The Court will prepare the Order.