2011-00100623-CU-PA

Donald Bud Lara vs. C.R. England, Inc.

Nature of Proceeding: Motion for Summary Judgment and/or Adjudication

Filed By: Burns, James E.

Defendant Ramon Nieves’ Motion for Summary Judgment/Summary Adjudication of
the 1st amended complaint is denied.

Defendant’s Objection to plaintiff’s separate statement is overruled.

This action arises out of a fatal freeway accident in which plaintiff’s decedent, Kelley
Lara, was killed when her vehicle fish-tailed in the fast lane while trying to avoid a red
car driven by defendant Stacy Lynn Taylor. Decedent’s vehicle collided with the
Nieves big-rig tractor and trailer. Stacy Lynn Taylor had abruptly changed lanes from
the slow lane behind the big-rig when the big-rig was going at a speed of 10 – 15 miles
an hour.

All defendants, including Defendant Ramon Nieves,’ previously moved for summary
judgment/summary adjudication on June 20, 2013. The motion was denied on the
ground that there were material issues of fact as to whether defendants breached a
duty or caused the accident by negligently operating the big-rig. The Court ruled in
part “The Court finds that there are triable issues of fact as to reasonableness of
Defendants’ relevant actions, including the existence, nature and response to an
emergency, the selection of stopping points to address the perceived emergency, and
the subsequent method of reentry onto the highway traffic. (See minute order on
submitted matter, June 21, 2013.)

Defendant Ramon Nieves’ now brings this second motion for summary judgment, on a
different “issue” not previously raised. The “issue” now addressed is that Ramon
Nieves claims to have been sleeping during “the accident,” therefore he could have no
liability for the manner in which the truck was operated. Pursuant to CCP 437c(f)(1), “A
party may move for summary adjudication as to one or more causes of action within an
action, one or more affirmative defenses, one or more claims for damages, or one or
more issues of duty, if that party contends that the cause of action has no merit or that
there is no affirmative defense thereto, or that there is no merit to an affirmative
defense as to any cause of action, or both, or that there is no merit to a claim for
damages, as specified in Section 3294 of the Civil Code, or that one or more
defendants either owed or did not owe a duty to the plaintiff or plaintiffs. 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.” CCP 437c(f).

The Court is sympathetic to plaintiffs’ argument that this is an improper renewal motion
under CCP 437c(f)(2). A party should not be able to file successive summary
judgment motions relying on a “new issue” that could have been raised before.
However, the case relied on by plaintiffs, Bagley v TRW, Inc. (1999) 73 Cal.App.4th
1092, involved a second motion that was merely cosmetically repackaged and
contained the same evidence. The Bagley court noted that there had been no new
material facts asserted in the second Bagley motion. Defendant here has submitted
new material facts, contending that these give rise to a “new issue.” The language of
subdivision 437c(f)(2), as stated, refers to “issues”. In an abundance of caution, the
court is ruling on the motion even though it believes such motion should not be
permitted under 437c(f) as it does not promote the policies expressed in Bagley.

The Defendant’s Renewal Motion for Summary Judgment is denied on the ground that
the court has previously found material issues of fact as to most of the UMFs relating
to the safety of the operation of the vehicle. Plaintiff’s separate statement cites to the
court’s earlier ruling finding issue of fact to those facts, including but not limited to the
facts set forth in this motion as UMF’s 3, 4, 5, 6, 7, 9, 10, 12, 13, and 14.

The facts enumerated in a moving separate statement have a due-process dimension
in that they define for the opposing party the facts which, if disputed with admissible
evidence, result in the motion being denied. Civil Procedure Before Trial, (Rutter
2011) Ch.10:95.1].) In reliance on the discrete universe of facts in the moving
separate statement, a party opposing a summary judgment motion is entitled to stop
working on its opposition once (s)he has produced admissible evidence demonstrating
that a single fact presents a triable issue.

Thus, as the Fourth Appellate District Court of Appeal recently observed: “Where a
remedy as drastic as summary judgment is involved, due process requires a party be
fully advised of the issues to be addressed and be given adequate notice of what facts it must rebut in order to prevail.” (Eriksson v. Nunnink (2011) 191 Cal.App.4th 826, 849
[citation omitted].) Hence, a party moving for summary judgment may not signal to its
adversary that the motion can be defeated with evidence that a fact in the moving
separate statement presents a triable issue, on the one hand, and then make the
contradictory argument that the disputed fact is not truly material, on the other. The
fact is that if moving party had submitted a different separate statement, the opposing
party might have submitted different evidence with the Opposition. As observed by the
3rd DCA, “The due process aspect of the separate statement requirement is self
evident-to inform the opposing party of the evidence to be disputed to defeat the
motion.” Hawkins v. Wilton (2006) 144 Cal. App. 4th 936, 946. By including facts
which the court has previously found to be disputed, defendant’s motion must fail even
if those facts may not have been necessary to adjudicate the issue of whether
defendant was liable if he was sleeping.

The Court also finds that there are triable issues of material fact regarding Ramon
Nieves’ liability for the accident arising from his “new issue.” He contends that he “was
sleeping in the truck’s sleeper unit at the time of the accident.” (UMF 19) The court
has sustained the evidentiary objection to the vague term “at the time of the accident”
as it does not distinguish between the time the big rig was pulled over, checked out,
merged back on the freeway, and impact of the accident. In the Reply, defendant
seeks to redefine “accident” to include the time from when the light went on and Lori
Nieves pulled the truck off of the road, and the time of “accident” which is inferred to
mean impact.

Plaintiffs have raised a triable issue of material fact as to whether Ramon Nieves was
awake during events leading up to the accident. Ramon Nieves’ deposition testimony
was highly contradictory as to whether he was asleep or awake during the entire time.
He stated that after the emergency light went on, he was awakened by Lori and
assisted her in checking out the red light by sitting in the driver’s seat. He was aware
of the location of the truck on the roadway. (See Ex. L Ramon Nieves’ Deposition,
pages 61, 58; Lorie Nieves’ deposition pages 47-49. Thus, there are triable issues of
material fact as to whether or not Ramon was sleeping “at the time of the accident,”
and likewise triable issues of material fact as to whether defendant Ramon Nieves
breached a duty of care with regard to ensuring the big-rig was either safely removed
from the freeway or was able to safely merge at that location.

Because of the drastic nature of the summary judgment procedure and the importance
of safeguarding the adverse party’s right to a trial the moving party must make a strong
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showing. Silva v Lucky Stores, Inc. (1998) 65 Cal.App.4 256, 261. The moving
party’s evidence is strictly construed and the opposing party’s evidence is liberally
construed, resolving any doubts as to the propriety of granting the motion in favor of
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the opposing party. Kulesa v Castleberry (1996) 47 Cal.App.4 103, 112.

The motion for summary adjudication/summary judgment is denied.

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