2011-00108406-CU-PA

Jacob P. Grady vs. Betty Jean Meissner

Nature of Proceeding:      Motion for Summary Adjudication

Filed By:   Bell, Tina Ann

Defendant Meissner’s Motion for Summary Adjudication of Issues is DENIED.

Defendant’s Evidentiary Objections to plaintiff’s evidence are OVERRULED.

Plaintiff’s Second Amended Complaint (“SAC”) alleges three causes of action against
st                         nd
defendant in this motor vehicle case: the 1   for negligence, the 2               for violation of
Vehicle Code, sec. 20001 and the 3rd for violation of Vehicle Code, sec. 20008.

Defendant Answered the SAC and asserted the affirmative defense of comparative
negligence.

Defendant now moves for summary adjudication of  the 2nd and 3rd causes of action,
the prayer for punitive damages in the SAC and on the affirmative defense of
comparative negligence.

The Court is well familiar with this action. Here, Plaintiff’s SAC alleges that on April 4,
2011, the plaintiff was riding his bicycle lawfully eastbound in the crosswalk on Hurley
Way at the intersection with Fulton Way in Sacramento, when a vehicle operated by
defendant Meissner southbound on Fulton Way collided with the plaintiff and his
bicycle, causing the plaintiff to be propelled onto the defendant’s vehicle and then onto
the ground. The collision caused injury to the plaintiff and damaged the plaintiff’s
bicycle. (SAC, paras. 7, 8.)

Plaintiff alleges that at the moment of the collision and at all times thereafter,  defendant Meissner was aware that she had caused injury to the plaintiff and damage
to his bicycle. Notwithstanding the injury and damage she caused, defendant failed to
stop at the scene of the collision. Rather, she fled the scene of the collision without
inquiring as to the Plaintiff’s condition and without leaving her name or any identifying
information. She went home, failed to call anyone for assistance, and immediately left
thereafter on “vacation”.  The only way she was identified was by her license plate left
at the scene of the accident. (SAC, paras. 9-12.)

Although moving party defendant requests adjudication of four issues, she sets forth
only one set of 29 material facts in support.  Moving party has failed to comply with
C.R.C., Rule 3.1350 (d) and (h) which requires that the Separate Statement of
Undisputed Material Facts in support of a motion for summary adjudication shall
separately identify each cause of action, claim, issue of duty, or affirmative defense, to
be summarily adjudicated and then identify each supporting material fact claimed to be
without dispute with respect to each cause of action.  Moving party has combined all
facts, rather than setting forth the facts applicable to each cause of action, claim, issue
of duty, or affirmative defense, separately.  Therefore, if any material fact is disputed,
summary adjudication of all causes of action, claim, issue of duty, or affirmative
defense, must fail.

Moving party asserts, and the plaintiff disputes Defendant’s MF 3 that plaintiff was
riding his bicycle eastbound within the north crosswalk at the time that defendant’s
vehicle struck him.  The evidence provided by defendant in support reflects that he
was riding his bicycle in the road just before the accident, and that “he was in the
crosswalk proceeding eastbound on Hurley” at time of the accident.

Moving party asserts, and the plaintiff disputes Defendant’s MF that after she hit a 15
year old boy with a bicycle in the cross-walk, with her car, defendant inquired whether
he was ok. She recalls only that his response contained profanities, but from that she
had the impression that he was ok.  (DMF 20)

Moving party asserts, and the plaintiff disputes Defendant’s MF 26 that plaintiff has no
facts to support the contention that he was harmed as the result of her failure to
comply with Vehicle Code, sec. 20001, 20003, 20006 or 20008.  Defendant contends
that plaintiff’s interrogatory responses are factually deficient.

However, defendant admits in her moving papers and supporting evidence that “there
is little question Plaintiff suffered some type of injury as a result of the alleged
negligence of defendant. Plaintiff suffered injury to his mid back, low back and
sleeplessness. (UMF 16) Plaintiff continues to suffer physical limitations due to his
injuries. (UMF 17) Plaintiff did not himself determine he was injured at the scene of the
accident buy only became aware hours later before bed.” (Oppo. 10:27- 11:4.)

Moving party asserts, and the plaintiff disputes Defendant’s MF 22, that while she was
at the gas station no one attempted to contact her regarding the incident.  The
testimony of the defendant does not clearly establish that fact.

The Court declines, on this evidentiary record to conclude that all 39 facts identified by
moving party are undisputed, or that moving party defendant has met her initial burden
of proof on any issue for summary adjudication.

Summary adjudication of the 2nd for violation of Vehicle Code, sec. 20001 and the 3rd             for violation of Vehicle Code, sec. 20008 are DENIED.

Defendant’s subjective conclusion that there was no “accident” after she hit a boy with
a bicycle in the crosswalk with her car is not dispositive of her violation of these vehicle
code sections.  No authority is cited to support this proposition.

Having admitted that the boy suffered injuries from the impact from her vehicle, and
having admitted that she failed to stop at the scene and fulfill the requirements of Veh.
Code, sec. 20003, and having failed to make a report within 24 hours after the
accident, to law enforcement, defendant cannot meet her initial burden of proof and
material facts are disputed, therefore this motion cannot be determined on the record
before the Court.

Summary adjudication of the prayer for punitive damages is DENIED. The Court
cannot conclude that moving party has met her initial burden of proof and material
facts are disputed, therefore this motion cannot be determined on the record before
the Court.

Summary adjudication of the affirmative defense of comparative negligence is
DENIED. The Court cannot conclude that moving party has met her initial burden of
proof and material facts are disputed, therefore this motion cannot be determined on
the record before the Court.

The prevailing party is directed to prepare a formal order complying with C.C.P. §437c
(g) and C.R.C. Rule 3.1312.