Document for Louis Montano, Jr., et al. vs Ngochao Nguyen, et al.

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                                1 CHRISTOPHER A. CALLIHAN (SBN 203010)
   CITY ATTORNEY
 2
   CITY OF SALINAS
 3 OFFICE OF THE CITY ATTORNEY
   200 Lincoln Avenue
 4 Salinas, CA 93901
   Telephone: (831) 758-7256
 5 Facsimile: (831) 758-7257

 6 William R. Price (SBN 171531)
   D. Scott Dodd (SBN 170500)
 7 LAW OFFICES OF WILLIAM R. PRICE
   12636 High Bluff Dr., Suite 400
 8 San Diego, CA 92130
   Email: wprice@williamrprice.com; sdodd@williamrprice.com
 9 Telephone: (858) 888-0588

10 Attorneys for Defendant and Cross-Complainant
   CITY OF SALINAS
11
                     SUPERIOR COURT OF THE STATE OF CALIFORNIA
12
                                    COUNTY OF MONTEREY
13

14
   LOUIS MONTANO, JR.; LOUIE MONTANO Case No. 21CV003635
15 III; and MICHAEL MONTANO,
                                         (Consolidated with Case Nos. 22CV002531;
16              Plaintiff,               22CV003206; 22CV003261; 22CF003443 and
                                         22CV003598)
17         vs.
                                         (*Exempt from filing fees pursuant to Gov. Code
18 CITY OF SALINAS, GINO’S RESTAURANT, section 6103)
   INC.; GINO’S FINE ITALIAN FOOD, INC.;
19 BLFA PROPERTIES LLC; NTN              DECLARATION OF OFFICER SETH
   PROPERTIES LLC; NGOCHAO THI           MORTEN IN SUPPORT OF CITY OF
20 NGUYEN; RALPH BOZZO; ROSAURA          SALINAS’ MOTION FOR SUMMARY
   ARCOS PANIAGUA; AUSTIN ALARCON;       JUDGMENT
21 and DOES 1-35,
                                         [Filed concurrently with Notice of Motion;
22              Defendants.              Memorandum of Points and Authorities;
                                         Separate Statement; Compendium of Evidence in
23                                       Support [Proposed] Order]

24 AND RELATED CROSS-ACTIONS                   Date: August 4, 2023
                                               Time: 8:30 a.m.
25                                             Dept.: 14

26                                             Complaint Filed: November 16, 2021

27

28

        DECLARATION OF OFFICER SETH MORTEN ISO CITY OF SALINAS’ MOTION FOR SUMMARY
                                        JUDGMENT
 1          I, Seth Morten, declare and state as follows:

 2          1.     I have personal knowledge of the facts set forth in this declaration and, if called as a

 3 witness, I could and would competently testify to the same.

 4          2.     I was hired as police officer with the City of Salinas Police Department (“SPD”), on

 5 March 12, 2018. I was promoted to Sergeant on June 28, 2021.

 6          3.     On November 19, 2020, I was off-duty and at home when I received a phone call

 7 from Sergeant R. Hampson. Sergeant Hampson informed me that a vehicle pursuit was initiated in

 8 the City of Salinas, by a Salinas Police Officer. I was advised that the suspect vehicle struck

 9 another vehicle causing the suspect vehicle to lose control and collide with an outdoor patio tent

10 located at Gino’s Restaurant at 1401 South Main Street in Salinas, California. I was further

11 advised to investigate the incident and prepare a Traffic Collision Report. I determined that the

12 suspect vehicle, a silver Mercedes sedan with California license number 7BXH62, was driven by

13 Austin Alarcon (“Alarcon”).

14          4.     South Main Street is a roadway in the City of Salinas that is also State Route 68.

15 South Main Street is a five-lane roadway, with two lanes traveling in a southbound direction, two

16 lanes traveling in a northbound direction, and with a shared, left-hand turn lane.

17          5.     The westside of South Main Street is bordered by a raised curbed sidewalk,

18 streetlamps, and lined with business entrance/exit driveways. The eastside of South Main Street

19 has no raised, curbed sidewalks, no street lamps and is lined with agricultural fields. The posted

20 speed limit on South Main Street in this section is 35 miles per hour.

21          6.     Stephanie Drive is a residential/business two lane roadway: one lane traveling in an

22 eastbound direction and one lane traveling in a westbound direction. Both sides have raised,

23 curbed sidewalks and are lined with streetlamps. Along the southside of Stephanie Drive is a large

24 apartment complex and along the northside are multiple driveways to/from businesses. The speed

25 limit on Stephanie Drive is 25 miles per hour in both directions. The intersection of South Main

26 Street and Stephanie Drive is a “T” intersection controlled by a posted stop sign, solid white limit

27 line and the word “STOP” painted in white on the roadway. South Main Street traffic has the right-

28 of-way while eastbound traffic on Stephanie Drive must stop at the posted stop sign.

         DECLARATION OF OFFICER SETH MORTEN ISO CITY OF SALINAS’ MOTION FOR SUMMARY
                                         JUDGMENT
 1          7.     Gino’s Restaurant is located on the southwest corner of the intersection with a

 2 parking lot being closest to the intersection.

 3          8.     After the crash, Austin Alarcon was located in an agricultural field just southwest of

 4 Gino’s Restaurant by Salinas Police Department Officer Toribio. Alarcon was identified by

 5 Officer Alvarado and determined to be the driver of the silver Mercedes, California license number

 6 7BXH652 based on statements by witnesses, his prior contacts as the driver of the silver Mercedes,

 7 and by his fleeing from the scene.

 8          9.     The silver Mercedes was located on all four wheels inside the furthest southbound

 9 outdoor patio dining white tent. It was facing in a southbound direction and sustained major

10 damage all around the vehicle. The hazard lights were flashing upon my arrival.

11          10.    The driver of the second vehicle, Bryan Tena, was contacted and identified by

12 Officer Estrada. He was determined to be the driver of the white Toyota sedan, California license

13 number 8PRH002 based on his statements and admission of driving the vehicle. The white Toyota

14 sedan was located on all four wheels facing northbound in both southbound lanes of South Main

15 Street. The white Toyota sedan sustained major damage to the left rear and rear end of the vehicle.

16          11.    I determined that approximately 11 people who were at Gino’s Restaurant at the

17 time of the incident sustained injury when the vehicle driven by Alarcon crashed into the outdoor

18 dining areas where they were located.

19          12.    Physical evidence consisted of fresh, bright gouge marks located in the southbound

20 number two lane of South Main Street, suggesting this was the first area of impact between the

21 silver Mercedes and the white Toyota. A large debris field beginning just south of the first area of

22 impact and continuing in a southwest direction to include both southbound lanes of South Main

23 Street, the west sidewalk, the planter of Gino’s Restaurant, the entrance/exit driveway to Gino’s

24 Restaurant and the small grassy area directly in front of the main entrance to Gino’s Restaurant.

25 The debris field consisted of vehicle parts belonging to the silver Mercedes and the white Toyota,

26 destroyed landscaping from the planter, debris from Gino’s Restaurant sign and located in the

27 planter (just north of the entrance/exit driveway to Gino’s and dug-up grass from the grassy area

28 directly in front of the main entrance to Gino’s.

                                                       3
         DECLARATION OF OFFICER SETH MORTEN ISO CITY OF SALINAS’ MOTION FOR SUMMARY
                                         JUDGMENT
 1          13.     As a result of my investigation, I determined that Alarcon was driving the silver

 2 Mercedes in a reckless manner in an attempt to elude Salinas Police officers. Bryan Tena was

 3 driving his white Toyota eastbound on Stephanie Drive and came to a stop at the posted stop sign

 4 and was preparing to turn left onto northbound South Main Street. Alarcon drove at a high rate of

 5 speed and subsequently collided with the front end of his silver Mercedes into the left rear of the

 6 white Toyota driven by Bryan Tena at the intersection of South Main Street and Stephanie Drive.

 7 After the collision with the white Toyota, Alarcon’s vehicle collided with a metal “No Parking”

 8 sign located on the westside of South Main Street, and then collided with the large Gino’s

 9 Restaurant sign, and then collided with the white outdoor patio tents, resulting in multiple persons

10 being injured.

11          14.     The areas of impact were determined by statements of involved parties, witnesses,

12 debris fields and damaged property. The first area of impact was determined to have occurred

13 when the front end of the silver Mercedes collided with the left rear of Tena’s Toyota. This was

14 determined to be 14 feet east of the west curb line of South Main Street and 17.6 feet north of the

15 south prolongation line of Stephanie Drive. The second area of impact was determined to have

16 occurred when the front end of the silver Mercedes struck a metal “No Parking” sign located on the

17 west side of South Main Street and south of Stephanie Drive. This was determined to be 2 feet

18 west of the west curb line of South Main Street and 29 feet south of the south curb line of

19 Stephanie Drive. The third area of impact was determined to have occurred when the front end of

20 the silver Mercedes struck the Gino’s Restaurant sign that was in the planter box area adjacent to

21 Gino’s parking lot. This was determined to be 12 feet west of the west curb line of South Main

22 Street and 90 feet south of the south curb line of Stephanie Drive. The fourth area of impact was

23 determined to have occurred when the front end of the silver Mercedes struck the white outdoor

24 patio dining tent. This was determined to be 30 feet west of the west curb line of South Main

25 Street and 174 feet south of the south curb line of Stephanie Drive.

26          15.     I determined the cause of the vehicle to be Alarcon’s driving a vehicle upon a

27 highway at a speed greater than is reasonable in violation of Vehicle Code § 22350. A contributing

28 factor into the cause of this collision was due because Alarcon was attempting to evade, flee or

                                                      4
         DECLARATION OF OFFICER SETH MORTEN ISO CITY OF SALINAS’ MOTION FOR SUMMARY
                                         JUDGMENT
 I    elude a pursuing police officer's motor vehicle in violation of Vehicle Code $ 2800.1(a).

 2             16.      A true and correct copy ofmy Traffic Collision Report olthis incident is provided

 .,   as   Exhibit   "l1."
 4             I declare under penalty ofperjury under the laws ofthe State of Califomia that the

 5    foregoing is true and correct.

 6             Executed on   ttris   j'1   day   ofApril,2023, at Salinas, California.
 7

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                                                                             Officer Seth Morten
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             DECLARATION OF OFFICER SETH MORTEN ISO CITY OF SALINAS' MOTION FOR SUMMARY
                                             ruDGMENT