Case Number: BC600771 Hearing Date: June 05, 2018 Dept: 47

Edward Gonzalez v. Shooshani Developers LLC

MOTION FOR SUMMARY JUDGMENT

MOVING PARTY: Defendant Bobco Metals, LLC

RESPONDING PARTY(S): Plaintiffs Edward Gonzalez and Maritza Maldonado, individually and as successors and heirs of Brandon Gonzalez, deceased

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiffs bring this survival and wrongful death action based upon the death of their son, whose vehicle collided with a negligently parked JLG Lift encroaching on the roadway of Sunset Blvd.

Various Defendants filed Cross-Complaints.

Defendant Bobco Metals, LLC brings a motion for summary judgment only.

TENTATIVE RULING:

Defendant Bobco Metals, LLC’s motion for summary judgment is DENIED.

DISCUSSION:

Request For Judicial Notice

Plaintiff’s request for judicial notice that at the tmie of the accident the lift was parked in violation of the Encroachment Permit and in violation of West Hollywood Municipal Code § 10.07.020 is DENIED. These are not matters of which the Court is authorized to take judicial notice pursuant to Evid. Code § 452.

Defendant’s Evidentiary Objections

Pursuant to CCP § 437c(q), the Court declines to rule on Defendant’s evidentiary objections, as they are directed to evidence which the Court does not deem to be material to the disposition of this motion.

Motion For Summary Judgment

Defendant only noticed a motion for summary judgment, not a motion for summary adjudication in the alternative. As such, summary adjudication cannot be granted. Gonzales v. Superior Court (1987) 189 Cal.App.3d 1542, 1545-46.

In order to obtain summary judgment, Defendant must prevail as to all theories reasonably contemplated by the pleading. A summary judgment motion must address the “issues framed by the pleadings since it is these allegations to which the motion must respond by establishing a complete defense or otherwise showing there is no factual basis for relief on any theory reasonably contemplated by the opponent’s pleading.” Carleton v. Tortosa (1993) 14 Cal.App.4th 745, 753 (bold emphasis and underlining added).

Here, Defendant’s motion for summary judgment only addresses the negligence cause of action, but does not address the third cause of action for strict products liability, which is also asserted against moving Defendant Bobco Metals, LLC in the operative second amended complaint (which supersedes the first amended complaint as to which this motion is directed). Thus, out of the gates, Defendant is not entitled to summary judgment because it did not address all causes of action asserted against it and summary adjudication cannot be granted because summary adjudication was not noticed in the alternative.

Further, even were the Court to consider an anticipated argument by Defendant that lack of causation would apply to the strict products liability cause of action as well, Defendant’s evidence goes to comparative fault, which may reduce or bar Plaintiffs’ recovery, but presents an inherently triable issue of material fact for the jury as to the degree of responsibility to be attributed to decedent for the collision.

Another indicator supporting such conclusion is the fact that the principles of comparative fault, under which responsibility and liability for damage is assigned in direct proportion to the amount of negligence of each of the parties, are applicable to actions founded on strict products liability. In such cases a plaintiff’s recovery will be reduced to the extent that his or her own lack of reasonable care contributed to his or her injury. (Daly v. General Motors Corp., supra, 20 Cal.3d 725, 733-738.) Comparative fault, of course, presupposes fault on the part of those on both sides of the transaction.

Barrett v. Superior Court (1990) 222 Cal.App.3d 1176, 1189.

While Defendant relies upon the fact that no one riding in decedent’s car can testify as to what decedent’s state of mind was leading upon to the collision, Defendant’s own evidence is that there was an eyewitnesses to the actual collision: John Matthew Atkinson. UF Nos. 14, 22, 23. Atkinson testified at his deposition that he saw decedent’s Prius “failing to maintain its lane, swerving over the line into the other lane and then back over across the median, which is its own lane, and then full-on swerve to the right off the road and then hitting a construction vehicle.” Atkinson Depo., page 23:9-19. The fact that Atkinson did not see what decedent was doing inside the Prius does not detract from Atkinson’s opinion that based on what he saw, it was not safe for decedent to be on the roads for whatever reason. Atkinson Depo. at 26:5-18 and 71:10-15. In connection with collision reports and toxicology reports, as well as eyewitness reports about the location of the JLG lift and accident reconstruction experts, there is enough evidence for a jury to decide whether decedent was negligent in the manner in which he was driving the vehicle as Atkinson observed and, if so, what degree of fault should be attributed to decedent via-a-vis Defendant Bobco Metal’s storage of the JLG lift on the street where it was located.

For the foregoing reason, the Court finds that Defendant’s own evidence presents a triable issue of material fact as to causation, which precludes summary judgment. The burden does not even shift to Plaintiff.

The motion for summary judgment is DENIED.

Moving Party to give notice, unless waived.

IT IS SO ORDERED.

Dated: June 5, 2018 ___________________________________

Randolph M. Hammock

Judge of the Superior Court