Case Name: Michael Patton, et al. v. Jacquelyn Fontaine, et al.
Case No.: 16-CV-303044

Currently before the Court is the motion by defendant City of Morgan Hill (the “City”) for summary judgment of the complaint of plaintiffs Michael Patton (“Michael”), a minor, Mateo Cervantes (“Mateo”), a minor, Sara Macias (“Sara”), Norma Laurentina Macias (“Norma”), Paul Macias (“Paul”), Miguel Angel Cervantes Ventura (“Miguel”), and Andrew Macias (“Andrew”) (collectively, “Plaintiffs”).

Factual and Procedural Background

This is a personal injury action. On July 4, 2016, at approximately 9:00 p.m., Michael and Mateo, both minors, were “crossing Monterey Road in an eastbound direction at its intersection with … Fourth Street … .” (Complaint, ¶¶ 1, 6, 19, 29, & 34-35.) Defendant Jacquelyn Fontaine (“Fontaine”) was driving her white Jeep SUV northbound on Monterey Road towards the intersection. (Id. at ¶¶ 1, 4.)

Michael’s mother, Sara, observed the Jeep driving toward the intersection at a high rate of speed and realized the Jeep was not going to stop. (Complaint, ¶¶ 4 & 32.) “Seeing that [Michael] and [Mateo] were in the crosswalk as the [Jeep] went by her at high speed, [Sara] cried out to the driver of the [Jeep] to stop, to no avail.” Seconds later, the Jeep struck Michael and Mateo. (Id. at ¶¶ 1, 3-4, 6, 19, 29, 32, & 34-35.)

As a result of the impact, Mateo was thrown across the intersection and landed on a center median curb. (Complaint, ¶¶ 4, 6-7, 32, & 35.) Mateo suffered serious injuries, including a fractured jaw and left arm. (Id. at ¶¶ 2, 7, 14, 30, & 35.) Michael was trapped under the Jeep and dragged across the intersection. (Id. at ¶¶ 3-4 & 31-32.) Michael suffered serious injuries, including a “brain/head injury and fractures.” (Id. at ¶¶ 2, 5, 13, 30, & 33.)

Michael’s step-father, Paul, his step-brother, Andrew, and Sara witnessed the accident and its aftermath, and waited for emergency response teams to arrive. (Complaint, ¶¶ 4, 32, & 40-41.) When emergency personnel arrived, Sara, Paul, and Andrew watched them extricate Michael from underneath the Jeep. (Id. at ¶¶ 4 & 32.) As a result of witnessing the accident and its aftermath, Sara, Paul, and Andrew suffered “great emotional and physical distress and agony.” (Id. at ¶¶ 4, 13, 52-53, & 56.)

Mateo’s mother and father, Norma and Miguel, arrived at the scene moments after the accident occurred and saw Mateo’s injuries. (Complaint, ¶¶ 8, 36, & 43-44.) As a result of witnessing Mateo’s injuries and the aftermath of the accident, Norma and Miguel suffered severe emotional distress. (Id. at ¶¶ 14, 52-53, & 56.)

The intersection and the surrounding area was allegedly owned, controlled, possessed, supervised, repaired, and maintained by the City and defendants State of California, Caltrans, and the County of Santa Clara (collectively, “Defendants”). (Complaint, ¶¶ 24 & 62.)

“Due to construction in and around the … intersection, existing speed bumps were removed [by Defendants] prior to the July 4, 2016 incident … during a street resurfacing project … .” (Complaint, ¶¶ 12 & 64.) Defendants did not reinstall the speed bumps or take other measures to ensure pedestrian safety. (Id. at ¶ 12.) Furthermore, Defendants caused construction items to be placed in and around the intersection, which interfered with visibility and the ability of oncoming drivers to see pedestrians and pedestrians to see oncoming drivers. (Id. at ¶¶ 12 & 64.) Additionally, Defendants failed to “provide sufficient signage and visual cues to alert motorists of the oncoming [crosswalks],” “provide sufficient lighting or beacons at the crosswalk,” and “ensure that pedestrians were visible to oncoming cross-traffic.” (Id. at ¶ 63.)

Furthermore, there were more than six prior “vehicle/pedestrian collisions in close proximity to the … intersection in 2015.” (Complaint, ¶ 10.) “There was also another incident prior to July 2016 which occurred in the same crosswalk, in which two female pedestrians were hit by a vehicle.” (Ibid.) “All of these facts were known to Defendants … .” (Id. at ¶¶ 10-11.)

On the date of the incident, and prior thereto, the intersection was allegedly in a dangerous condition. (Complaint, ¶¶ 63-64 & 68.) Defendants were “aware of the dangerous conditions that existed at the intersection” and “knew or should have known of their dangerous character a sufficient time prior to [the incident] to have taken measures to protect against the dangerous conditions.” (Id. at ¶¶ 65 & 67.) In addition, Defendants were on notice that there were prior incidents resulting in pedestrian injuries at the intersection. (Id. at ¶¶ 10-11 & 65.) Nonetheless, Defendants failed to take appropriate measures to protect the public, eliminate the dangerous conditions, provide safeguards, or warn against the dangerous conditions. (Id. at ¶¶ 11 & 65.) For example, the City “decided against installing flashing lights to caution drivers when pedestrians were in the crosswalk … .” (Id. at ¶ 65.) Consequently, Defendants allegedly breached their duty to exercise reasonable care in the ownership, inspection, management, operation, maintenance, repair, and control of the intersection and the surrounding area. (Id. at ¶ 66.)

Based on the foregoing allegations, Michael, Mateo, Sara, Paul, Andrew, Norma, and Miguel (collectively, “Plaintiffs”) filed a complaint against Fontaine and Defendants, alleging causes of action for: (1) negligence; (2) negligent infliction of emotional distress (“NIED”); and (3) negligence – dangerous condition of public property. The first and third causes of action are brought only by Michael and Mateo. The second cause of action for NIED is brought only by Sara, Paul, Andrew, Norma, and Miguel.

On January 17, 2019, the City filed the instant motion for summary judgment. Plaintiffs filed papers in opposition to the motion on March 19, 2019. On May 9, 2019, the City filed a reply.

Discussion

Pursuant to Code of Civil Procedure section 437c, the City moves for summary judgment of Plaintiffs’ complaint.

I. Request for Judicial Notice

In connection with their opposition papers, Plaintiffs ask the Court to take judicial notice of “all recordings and documents relating to [a] September 16, 2015 special public hearing wherein the Morgan Hill City Council members conducted a special public hearing to review, discuss, and provide feedback on resolutions and matters relative to community development.” (Rqst. Jud. Ntc., p. 2:8-11.) Plaintiffs state that the “public hearing can be accessed on the City of Morgan Hill’s website” through a website link. (Id. at p. 2:12-14.)

Plaintiffs’ request for judicial notice is procedurally deficient because it does not list the specific items for which notice is requested. (Cal. Rules Ct., rule 3.113(l) [“Any request for judicial notice must be made in a separate document listing the specific items for which notice is requested … .”].) “[A]ll recordings and documents relating to [a] September 16, 2015 special public hearing” is wholly insufficient; “all recordings and documents relating to [a] September 16, 2015 special public hearing” simply do not constitute a specific item.

Accordingly, Plaintiffs’ request for judicial notice is DENIED.

II. Evidentiary Objections

A. Plaintiffs’ Objections

In connection with their opposition papers, Plaintiffs submit objections to portions of the declarations of Chris Ghione, Scott Creer, and Scott Silva.

As an initial matter, Plaintiffs failed to provide the Court with a proposed order for their evidentiary objections. (See Cal. Rules of Ct., rule 3.1354(c) [a party must provide a proposed order that complies with one of the formats described in the rule].) Because Plaintiffs’ evidentiary objections do not comply with the California Rules of Court, the Court declines to rule on the objections. (See Vineyard Spring Estates v. Super. Ct. (2004) 120 Cal.App.4th 633, 642 (Vineyard) [trial courts only have duty to rule on evidentiary objections presented in proper format]; see also Hodjat v. State Farm Mut. Auto. Ins. Co. (2012) 211 Cal.App.4th 1, 8 (Hodjat) [trial court is not required to rule on objections that do not comply with California Rules of Court, rule 3.1354 and is not required to give objecting party a second chance at filing properly formatted papers].)

Furthermore, the Court declines to rule on Plaintiffs’ objections because they are not material to the disposition of the motion. (See Code Civ. Proc., § 437c, subd. (q) [“In granting or denying a motion for summary judgment …, the court need rule only on those objections to evidence that it deems material to its disposition of the motion.”].)

B. The City’s Objections

The City asserts various objections in its reply separate statement.

Those objections are procedurally improper because they are not set forth in a separate document. (See Cal. Rules of Ct., rule 3.1354(b) [all written objections to evidence must be served and filed separately from the other papers in support of or in opposition to the motion].) Furthermore, the City failed to provide the Court with a proposed order for its evidentiary objections. (See Cal. Rules of Ct., rule 3.1354(c) [a party must provide a proposed order that complies with one of the formats described in the rule].)

Because the City’s evidentiary objections do not comply with the California Rules of Court, the Court declines to rule on the objections. (See Vineyard, supra, 120 Cal.App.4th at p. 642 [trial courts only have duty to rule on evidentiary objections presented in proper format]; see also Hodjat, supra, 211 Cal.App.4th at p. 8 [trial court is not required to rule on objections that do not comply with California Rules of Court, rule 3.1354 and is not required to give objecting party a second chance at filing properly formatted papers].)

III. Legal Standard on Motions for Summary Judgment

The pleadings limit the issues presented for summary judgment and such a motion may not be granted or denied based on issues not raised by the pleadings. (See Government Employees Ins. Co. v. Super. Ct. (2000) 79 Cal.App.4th 95, 98; see also Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258; Nieto v. Blue Shield of Calif. Life & Health Ins. (2010) 181 Cal.App.4th 60, 73 [“the pleadings determine the scope of relevant issues on a summary judgment motion”].)

A motion for summary judgment must dispose of the entire action. (Code Civ. Proc., § 437c, subd. (a); All Towing, supra, 220 Cal.App.4th at p. 954 [“Summary judgment is proper only if it disposes of the entire lawsuit.”].) “Summary judgment is properly granted when no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. [Citation.] A defendant moving for summary judgment bears the initial burden of showing that a cause of action has no merit by showing that one or more of its elements cannot be established or that there is a complete defense. [Citation.] Once the defendant has met that burden, the burden shifts to the plaintiff ‘to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.’ [Citation.] ‘There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.’ [Citation.]” (Madden v. Summit View, Inc. (2008) 165 Cal.App.4th 1267, 1272.)

For purposes of establishing their respective burdens, the parties involved in a motion for summary judgment must present admissible evidence. (Saporta v. Barbagelata (1963) 220 Cal.App.2d 463, 468.) Additionally, in ruling on the motion, a court cannot weigh said evidence or deny summary judgment on the ground that any particular evidence lacks credibility. (See Melorich Builders v. Super. Ct. (1984) 160 Cal.App.3d 931, 935; see also Lerner v. Super. Ct. (1977) 70 Cal.App.3d 656, 660.) As summary judgment “is a drastic remedy eliminating trial,” the court must liberally construe evidence in support of the party opposing summary judgment and resolve all doubts concerning the evidence in favor of that party. (See Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389; see also Hepp v. Lockheed-California Co. (1978) 86 Cal.App.3d 714, 717-718.)

IV. Substantive Merits of Motion

The City initially argues that it is entitled to summary judgment of the complaint as alleged by Michael and Mateo. The City contends that the first cause of action for negligence “fails because a public entity’s liability for alleged property defects is not governed by the general rules of ordinary negligence, but rather by the specific provisions relating to dangerous condition of public property set forth in Government Code [s]ections 830-835.4.” (Mem. Ps. & As., p. 12:1-5.) The City contends that the third cause of action for dangerous condition of public property under Government Code sections 830 and 835 fails because: (1) liability cannot be based “on any of the features of the Monterey Rd./4th Street intersection that were previously designed and approved,” including “the overall geometry of the intersection, the design of the center median, or the dimensions and design of the crosswalks” (Mem. Ps. & As., pp. 14:7-8 & 15:16-21); (2) liability cannot be based on its alleged failure to install traffic control devices (id. at pp. 15:22-23, 19:17-21, & 21:14-15); (3) liability cannot be based on its alleged failure to adequately light the intersection (id. at p. 21:14-15); (5) there is no evidence that the mesh fencing in the center median contributed to the accident (id. at pp. 19:22-25, 20:4-6, 20:23-25, 21:4-6, 21:9-11, 21:22-24); (5) the accident was caused by Fontaine’s and/or Michael and Matteo’s failure to exercise due care (id. at pp. 21:15-21 & 22:24-23:2); and (6) it has “no record of prior vehicle pedestrian accidents at 4th Street” (id. at p. 7-9).

Upon review of the parties’ arguments and evidence, the Court concludes that the City has not disposed of the lawsuit in its entirety as alleged by Michael and Mateo because triable issues of material fact exist with respect to the third cause of action. (See All Towing, supra, 220 Cal.App.4th at p. 954 [“Summary judgment is proper only if it disposes of the entire lawsuit.”].)

Government Code section 835 provides the basis for liability in an action against a public entity for an injury caused by the dangerous condition of public property. To establish liability under Government Code section 835, the following essential elements must be proved:

1. The public property was in a dangerous condition at the time of the injury;

2. The injury to the plaintiff was proximately caused by the dangerous condition;

3. The kind of injury that occurred was reasonably foreseeable as a consequence of the dangerous condition; and

4. Either:

a. The dangerous condition was created by a public employee’s negligent or wrongful act or omission within the scope of his or her employment, or
b. The entity had actual or constructive notice of the condition a sufficient time before the injury occurred to have taken reasonable measures to protect against the injury.

(Gov. Code, § 835; see also 2 Van Alstyne, California Government Tort Liability Practice (4th ed. 2006) § 12.5, pp. 795–796; see also CACI, No. 1100.)
The City’s various contentions regarding the third cause of action go to the first, second, and fourth elements of Plaintiffs’ claim for dangerous condition of public property.

As is relevant here, Government Code section 830, subdivision (a) defines the term “dangerous condition” to mean “a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used.” “In general, ‘whether a given set of facts and circumstances creates a dangerous condition is usually a question of fact and may only be resolved as a question of law if reasonable minds can come to but one conclusion.’ ” (Peterson v. San Francisco Community College District (1984) 36 Cal.3d 799, 810; Dina v. People ex rel. Dept. of Transportation (2007) 151 Cal.App.4th 1029, 1054; Kasparian v. AvalonBay Communities, Inc. (2007) 156 Cal.App.4th 11, 28 [“If the ‘court determines … sufficient evidence has been presented so that reasonable minds may differ as to whether the defect is dangerous, the court may not rule … the defect is not dangerous as a matter of law.’ [Citation.] Conversely, where ‘the only evidence available on the issue of dangerousness does not lead to the conclusion … reasonable minds may differ, then it is proper for the court to find … the defect was trivial as a matter of law.’ [Citation.]”].)

Additionally, Government Code section 830.2 permits the court to decide the existence of a “dangerous condition” as a matter of law. That section states, “A condition is not a dangerous condition within the meaning of this chapter if the trial or appellate court, viewing the evidence most favorably to the plaintiff, determines as a matter of law that the risk created by the condition was of such a minor, trivial or insignificant nature in view of the surrounding circumstances that no reasonable person would conclude that the condition created a substantial risk of injury when such property or adjacent property was used with due care in a manner in which it was reasonably foreseeable that it would be used.” (Gov. Code, § 830.2; Salas v. California Dept. of Transp. (2011) 198 Cal.App.4th 1058, 1069-1070 [“The term dangerous condition is statutorily defined [in Gov. Code § 830.2] as a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used…. As to what constitutes a dangerous or defective condition no hard-and-fast rule can be laid down, but each case must depend upon its own facts…. Ordinarily, the existence of a dangerous condition is a question of fact, but whether there is a dangerous condition may be resolved as a question of law if reasonable minds can come to but one conclusion.”], internal citations omitted, brackets added.)

To prevail on a motion for summary judgment on the ground that certain property does not constitute a dangerous condition, the moving party must present evidence that would preclude a reasonable trier of fact from finding it more likely than not that the property posed a substantial risk of injury. (Lane v. City of Sacramento (2010) 183 Cal.App.4th 1337, 1346.)

With respect to the issue of notice, Government Code section 835.2, subdivision (a) states that a public entity has “actual notice” of a dangerous condition “if it had actual knowledge of the existence of the condition and knew or should have known of its dangerous character.” Subdivision (b) of that statute states that a public entity has “constructive notice” of a dangerous condition “only if the plaintiff establishes that the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due car, should have discovered the condition and its dangerous character.” (Gov. Code, § 835.2, subd. (b).)

Here, sufficient evidence has been presented so that reasonable minds may differ as to whether the defect—the red mesh fencing—is dangerous when the property is used with due care and whether that defect contributed to the accident.

Specifically, there is evidence in the record that: the accident occurred at approximately 9:00 p.m.; the intersection and center median were “extremely dark”; it was hard to see because it was so dark; there was red mesh fencing placed along the center median on Monterey Road at the intersection; the mesh fencing was approximately 5 feet high; the mesh fencing was wrapped in a rectangular shape around landscaping, such as trees, in the center median; it was more difficult to see through the mesh fencing depending on the time of day; at the time of the accident, there was minimal visibility and the cross-walk could not be seen until a driver was nearly upon it; at the time of the accident, Michael and Mateo were 13 and 6 years old, respectively; Michael and Mateo were stopped in the crosswalk, adjacent to the center median, before they entered into the northbound lanes of Monterey Road where they were struck by Fontaine’s Jeep; Michael was riding a bike and Mateo was riding a scooter; Michael and Mateo waited for permission from Sara before they entered the northbound lanes of Monterey Road; as they started to enter the northbound lanes of Monterey Road, Michael and Mateo were moving faster than walking speed; Fontaine was traveling at the speed limit, 25 miles per hour; as Fontaine was driving towards the intersection she looked at her “complete surroundings” and to “both sides”; Fontaine saw people on the sidewalks; Fontaine looked at the crosswalks and did not see anyone in the cross-walks; due to the location of the mesh fencing, the mesh fencing was in Fontaine’s line of vision; at no time prior to the accident did Fontaine seek Michael or Mateo in the crosswalk; and Fontaine believes that the mesh fencing may have obstructed her vision of the intersection and the cross-walks, because it was in her line of vision. (Silva Dec., ¶¶ 1-2; Ghione Dec., ¶ 4 & Ex. D; Delbosque Dec., ¶¶ 13-16 & 20; Heaberlin Dec., Ex. F, pp. 14, 18, 20, 37-38, 40, 42-45, Ex. I, pp. 71-72, 135-137, 142; Menekshe Dec., Ex. 1, pp. 148-149, Ex. 5, pp. 77, 116, 150, 152-154, Ex. 6, p. 216, & Ex. 12, p. 1.)

From this evidence, a jury could reasonably infer that the red-mesh fencing created a dangerous condition because it was difficult to see through, particularly when aggravating factors, such as poor lighting and visibility, were present. (See Sambrano v. City of San Diego (2001) 94 Cal.App.4th 225, 234 [courts are to consider “both the physical description of the condition, and whether there existed any circumstances surrounding the accident which might have rendered the defect more dangerous that its mere abstract [description] would indicate”]; see also Stathoulis v. City of Montebello (2008) 164 Cal.App.4th 559, 567 [when considering whether an alleged defect is dangerous, courts take into account additional factors such as the weather, lighting, and visibility, which might make the defect more dangerous]; Fielder v. City of Glendale (1977) 71 Cal.App.3d 719, 734 [same].) Furthermore, a jury could reasonably infer that the red mesh fencing obstructed Fontaine’s view of Michael and Mateo, or made it more difficult for Fontaine to see Michael and Mateo, because Fontaine looked at her “complete surroundings” and to “both sides” as she approached the intersection; she looked for people in the cross-walks; although she was able to see people on the sidewalks, she was not able to see anyone in the cross-walks or Michael and Mateo; it was dark and visibility was poor; and the mesh fencing was in her line of vision. Moreover, as there is evidence that Fontaine was traveling at the speed limit and monitoring her surroundings, a jury could find that the red mesh fencing created a substantial risk of harm when the property used with due care by the public generally. (See Milligan v. Golden Gate Bridge Highway & Transportation Dist. (2004) 120 Cal.App.4th 1, 7 [A plaintiff is not required to show the injured individual was using the property with due care; “To allege a section 830 ‘dangerous condition’ plaintiff is only required to show that the condition ‘creates a substantial risk of harm when used with due care by the public generally….’ ”].) Therefore, the Court cannot determine that the defect is not dangerous as a matter of law or that the mesh fencing did not contribute to the accident.

Finally, sufficient evidence has been presented from which a reasonable trier of fact could conclude that the City received actual notice of the defect. It is undisputed that the City installed mesh fencing in downtown Morgan Hill on the center medians at the Third Street, Fourth Street, and Fifth Street intersections with Monterey Road on or about July 1, 2016. (Reply Sep. Stmt. Nos. 72 & 94.) On July 1, 2016, at approximately 10:20 a.m., the City received an email from a Morgan Hill resident stating, “Just this morning I was driving north thru downtown by the third street crosswalk. Given the trees and obstacle in [the] median, I almost missed seeing a young woman wearing brown and moving fast, cross the street in front of me. … Let’s not wait for someone to be injured or killed before creating … safety downtown.” (Menekshe Dec., Ex. 25.) Additionally, on July 1, 2016, at approximately 11:40 a.m., the City received an email from an employee in its Community Services Department stating, “I drove down Monterey last night and looked at the protections in place and had a couple of observations. … Fencing – if we do the ‘hole in the curb’ method next year, I suspect that we can pull the fencing tighter so it looks good. There is quite a bit of it, though, so I also wonder if it should be out so early. Maybe this should go in on July 3rd as well as the street is being closed. Question: are we creating a traffic safety hazard by having this up while the street is open? I hadn’t thought about this implication until I saw it up.” (Menekshe Dec., Ex. 14.) A reasonable jury could find that, taken together, these emails put the City on notice that the mesh fencing installed in the center medians at the Third Street, Fourth Street, and Fifth Street intersections with Monterey Road presented a traffic safety hazard because the mesh fencing made it difficult for drivers to see people in the crosswalks.

For these reasons, triable issues of material fact exist with respect to the third cause of action and, consequently, the City has not disposed of the lawsuit in its entirety as alleged by Michael and Mateo.

The City further argues that because the Michael and Mateo’s underlying negligence claims fail, the NIED claim alleged by Sara, Paul, Andrew, Norma, and Miguel must fail as well. This argument lacks merit because, as explained above, the City has not disposed of the lawsuit as alleged by Michael and Mateo.

Finally, The City argues that it is entitled to summary judgment of the complaint as alleged by Paul, Andrew, Norma, and Miguel because they are not closely related to Michael and Mateo and/or they were neither present at the scene of the accident when it occurred and nor were they contemporaneously aware that the accident caused injury to Michael and Mateo. Specifically, the City contends that: (1) Paul is Michael’s step-father and Mateo’s uncle and, therefore, is not closely related to Michael and Mateo; (2) Andrew is Michael’s step-brother and Mateo’s cousin, Andrew was not living with Michael or Mateo at the time of the accident, and, therefore, Andrew is not closely related to Michael and Mateo; and (3) Norma and Miguel were not present at the scene of the accident and they learned of the accident via a phone call after it had occurred.

As articulated above, the only cause of action alleged by Paul, Andrew, Norma, and Miguel is a claim for NIED. “[A] plaintiff may recover damages for emotional distress caused by observing the negligently inflicted injury of a third person if, but only if, said plaintiff: (1) is closely related to the injury victim; (2) is present at the scene of the injury producing event at the time it occurs and is then aware that it is causing injury to the victim; and (3) as a result suffers serious emotional distress—a reaction beyond that which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstances.” (Thing v. La Chusa (1989) 48 Cal.3d 644, 667–668 (Thing).)

The City’s contentions go to the first and second elements of the second cause of action for NIED.

With respect to the first element, the court in Thing opined that NIED should be limited to “persons closely related by blood or marriage since, in common experience, it is more likely that they will suffer a greater degree of emotional distress than a disinterested witness to negligently caused pain and suffering or death.” (Thing, supra, 48 Cal.3d at p. 666.) The court stated, “In most cases no justification exists for permitting recovery for NIED by persons who are only distantly related to the injury victim. Absent exceptional circumstances, recovery should be limited to relatives residing in the same household, or parents, siblings, children, and grandparents of the victim.” (Id. at p. 668.) Following Thing, courts have opined that “recovery for NIED is limited to persons who are (1) parents, siblings, children, or grandparents of the victim, regardless of whether they reside with the victim; (2) other relatives of the victim if they reside with the victim; or (3) other relatives of the victim, even if they do not reside with the victim, if ‘exceptional circumstances’ are present.” (Rodriguez v. Kirchhoefel (2005) 128 Cal.App.4th 427, 432–433 (Rodriguez); Moon v. Guardian Postacute Services, Inc. (2002) 95 Cal.App.4th 1005, 1011 (Moon) [“by using the words ‘closely related’ and highlighting the need to cut-off liability beyond a certain point, absent exceptional circumstances, the court [in Thing] intended to limit NIED claims to members of the immediate family unit, such as parents, spouses, siblings, children, and grandparents of the victim”].)

Accordingly, courts have held that the relationship between cohabitating partners, without formal marriage, does not constitute a sufficiently close relationship. (See e.g., Elden v. Sheldon (1988) 46 Cal.3d 267.) Similarly, the relationship between a mother-in-law and son-in-law, who had lived together for periods of time, does not constitute a sufficiently close relationship. (See e.g., Moon, supra, 95 Cal.App.4th at p. 1013.)

As to the second element, a plaintiff must perceive the injury-producing event through his or her senses and contemporaneously understand that the event is causing injury to a close relative. (Ra v. Super. Ct. (2007) 154 Cal.App.4th 142, 148–149; Fife v. Astenius (1991) 232 Cal.App.3d 1090, 1093 (Fife) [A plaintiff must be “present at the scene of an accident and … then aware a family member is being injured. Recovery is precluded when a plaintiff perceives an accident but is unaware of injury to a family member until minutes or even seconds later.”].)

Accordingly, courts have found that the second element was not met when a mother, was nearby, but neither saw nor heard the accident that injured her child, and she was told by a third party that her child was injured and rushed to the scene. (See e.g., Thing, supra, 48 Cal.3d at pp. 647–648, 669.) Similarly, courts have held that a family hearing the sounds of a car collision, without realizing that a family member had been injured until they reached the scene of the accident moments later, was insufficient to establish the second element. (Fife, supra, 232 Cal.App.3d at p. 1093.)

Here, the City fails to establish that Paul and Andrew’s relationships with Michael do not constitute close relationships sufficient to satisfy the first element. Courts have explained that “Thing did not restrict recovery for a bystander claim to ‘blood’ relatives. … [T]he reason for this is obvious; spouses are not blood relatives but satisfy the requirement for a close relationship. Additionally, step-children, step-parents, and adopted children who are part of the familial relationship may not be related by blood to the family member making an NIED claim but may still be considered closely related.” (Moon, supra, 95 Cal.App.4th at p. 1011.) Here, the evidence shows that Paul is Michael’s step-father, Paul met Michael when he was three years old, Paul became Michael’s step-father in 2014, Paul and Michael refer to each other as father and son, and there were plans for Paul to formally adopt Michael. (Menekshe Dec., Ex. 2, p. 82; Heaberlin Dec., Ex. K, pp. 13 & 15.) The evidence also shows that Andrew is Michael’s step-brother and has lived in the same household as Michael. (Heaberlin Dec., Ex. H, p. 11 & 13.) In light of the foregoing, the evidence presently before the Court does not demonstrate, as a matter of law, that Paul and Andrew are not closely related to Michael. Thus, the City fails to dispose of the second cause of action as alleged by Paul and Andrew.

Conversely, the City has met its initial burden to show that Norma and Miguel neither perceived the accident through their senses as it occurred nor contemporaneously understood that the event was causing injury to Michael and Mateo. The evidence before the Court establishes that Norma and Miguel were not at the scene of the accident when it occurred; rather, they had driven to the community center with their daughter. (Heaberlin Dec., Ex. L, pp. 17 & 25-26 & Ex. M, pp. 15-16 & 37; Menekshe Dec., Ex. 32, pp. 17-19, 23, & 26.) The community center was about one and one half blocks away from the intersection where the accident occurred. (Ibid.) When they were arrived at the community center parking lot, Norma received a phone call from Andrew telling her that Mateo had been hit by a car. (Ibid.) Norma was initially in disbelief and told Andrew, “You’re lying to me.” (Ibid.) Norma then told Miguel to turn the car around because Mateo had been hit by a car, which was how Miguel learned of the accident. (Ibid.) Norma and Miguel promptly drove back to the scene of the accident where they saw Mateo. (Ibid.) This evidence demonstrates that Norma and Miguel were not percipient witnesses to the accident because they did not learn of the accident until after it occurred. For the same reasons, as the accident was occurring, Norma and Miguel did not have a contemporaneous understanding that the accident was causing injury to Michael and Mateo. As the underlying facts are not in dispute, Plaintiffs fail to raise a triable issue of material fact. Consequently, the City’s motion for summary judgment is well-taken as to Norma and Miguel.

Accordingly, the City’s motion for summary judgment is DENIED IN PART and GRANTED IN PART. The motion is DENIED as to Michael, Mateo, Sara, Paul, and Andrew. The motion is GRANTED as to Norma and Miguel.