Motion-Secondary: Louis Montano, Jr., et al. vs Ngochao Nguyen, et al.

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                                1 GREENBERG AND RUBY
   INJURY ATTORNEYS, APC
 2 EMILY A. RUBY – SBN 289433
   eruby@caltrialpros.com
 3 SERGIO R. CARDENAS – SBN 321239
   scardenas@caltrialpros.com
 4 6100 Wilshire Boulevard, Suite 1170
   Los Angeles, California 90048
 5 Tel. No.: (323) 782-0535
   Fax No.: (323) 782-0543
 6
   Attorneys for Plaintiffs,
 7 LOUIS MONTANO, JR.,
   LOUIE MONTANO III,
 8 and MICHAEL MONTANO

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                         SUPERIOR COURT OF THE STATE OF CALIFORNIA
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                                  FOR THE COUNTY OF MONTEREY
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12 LOUIS MONTANO, JR.; LOUIE                        Case No. 21CV003635
   MONTANO III; AND MICHAEL
13 MONTANO, an individual                           Assigned to:     Hon. Carrie M. Panetta
                                                                     Dept. 14
14         Plaintiffs,
                                                    [PROPOSED] ORDER DENYING DEFENDANT
15                 v.                               CITY OF SALINAS’ MOTION FOR SUMMARY
                                                    JUDGMENT AGAINST PLAINTIFFS LOUIS
16 CITY OF SALINAS; GINO’S                          MONTANO, JR.; LOUIE MONTANO III; AND
   RESTAURANT, INC.; GINO’S FINE                    MICHAEL MONTANO
17 ITALIAN FOOD, INC.; BLFA PROPERTIES
   LLC; NTN PROPERTIES LLC; NGOCHAO                 Hearing Date:    August 4, 2023
18 THI NGUYEN; RALPH BOZZO; ROSAURA                 Hearing Time:    8:30 AM
   ARCOS PANIAGUA; AUSTIN ALARCON;                  Department:      14
19 and DOES 1-35,
                                                    Complaint Filed: November 16, 2021
20         Defendants.                              Trial Date:      Vacated

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22 AND ALL RELATED CROSS-ACTIONS

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24         The motion of Defendant CITY OF SALINAS (“Defendant”) for summary judgment against
25 Plaintiffs LOUIS MONTANO, JR., LOUIE MONTANO III, and MICHAEL MONTANO (“Plaintiffs”)

26 came on for hearing on August 4, 2023 at 8:30 a.m. before the Honorable Carrie M. Panetta, presiding.

27 Emily Ruby of Greenberg and Ruby Injury Attorneys, APC appeared on behalf of Plaintiffs, and William

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      [PROPOSED] ORDER DENYING DEFENDANT CITY OF SALINAS’ MOTION FOR SUMMARY JUDGMENT
         AGAINST PLAINTIFFS LOUIS MONTANO, JR.; LOUIE MONTANO III; AND MICHAEL MONTANO
 1 R. Price and Scott Dodd of Law Offices of William R. Price appeared on behalf of Defendant.

 2             1. After full consideration of the moving and opposing papers and the evidence submitted

 3   by the parties, and oral argument by the moving and opposing parties, it appears and the Court

 4   determines that a triable controversy exists as to the following material facts:

 5             •   Fact No. 13, which states: “SPD provides pursuit policy training to all of its police
 6                 officers on a regular basis.” A triable issue of material fact exists as to whether the City

 7                 of Salinas Police Department provided regular and periodic training on an annual basis

 8                 for vehicular pursuits that met all of the requirements of Vehicle Code Section 17004.7

 9                 subdivisions (c) in order for immunity to apply under subdivision (b). The evidence that
10                 Defendant City of Salinas submitted in support of its Fact No. 13 is the Declaration of
11                 City of Salinas Police Department Sergeant, James Godwin, Paragraphs 5 and 6, and
12                 the Vehicle Pursuit Policy Attendance Report (Def. Exhibit 13). Defendant’s evidence
13                 does not establish that the training is provided on an annual basis. Even if the court
14                 viewed “regular basis” as “annual”, the City did not submit evidence that the training
15                 was one hour, as required. (CCR Title 11, Section 1081, subd. (a)). Defendant’s Exhibit
16                 13 indicates that the online training that Officer Keating completed on March 6, 2020
17                 was only 31 minutes. In addition, the information regarding the content of the training
18                 provided in Paragraph 5 of Sergeant Godwin’s Declaration does not satisfy the
19                 requirements of Section 17004.7, subdivision (c), and the City did not provide
20                 sufficient details about the content of the training to establish that it met all of the
21                 statutory requirements for immunity. In response to Defendant’s Fact No. 13, Plaintiff
22                 submitted the deposition testimony of Sergeant Godwin and SPD Officer Ryan
23                 Keating, and the Declaration of Scott Defoe. The deposition testimony of Sergeant
24                 Godwin that Plaintiffs submitted in response to Defendant’s Fact No. 13 included,
25                 among other testimony, that the SPD began requiring its officers to complete a biannual
26                 online training on pursuit driving in March, 2020; he does not know if there are any
27                 records indicating when officers were trained on the pursuit policy prior to March,
28                 2020; and that the training slides (Def. Exhibit 14) were not the annual training that was
                                                         2
     [PROPOSED] ORDER DENYING DEFENDANT CITY OF SALINAS’ MOTION FOR SUMMARY JUDGMENT
        AGAINST PLAINTIFFS LOUIS MONTANO, JR.; LOUIE MONTANO III; AND MICHAEL MONTANO
 1                 provided on the vehicle pursuit policy. The deposition testimony of Officer Keating that

 2                 Plaintiffs submitted in response to Defendant’s Fact No. 13 included, among other

 3                 testimony, his admission that the first time he reviewed the pursuit policy was the

 4                 Monday prior to his deposition, taken on July 14, 2023.

 5             •   Fact No. 14, which states: “SPD trains its officers on the pursuit policy including
 6                 specific guidelines governing (a) when to initiate pursuits; (b) the number of pursuing

 7                 vehicles that should be involved and when and how to use air support; (c)

 8                 communications and coordination procedures; (d) supervisors’ role and

 9                 interjurisdictional considerations; and (e) driving tactics--including speeds, techniques,
10                 and safety measures.” The evidence that Defendant City of Salinas submitted in support
11                 of its Fact No. 14 is the Declaration of City of Salinas Police Department Sergeant,
12                 James Godwin, Paragraphs 5-7, and the SPD’s Basic Driver Training slides (Def.
13                 Exhibit 14). The description of the content of the training provided in Paragraphs 5-7 of
14                 Sergeant Godwin’s Declaration and the SPD training slides (Def. Exhibit 14), do not
15                 establish that the training SPD provides its officers satisfies the requirements of Section
16                 17004.7, subdivision (c). In response to Defendant’s Fact No. 14, Plaintiff submitted
17                 the deposition testimony of SPD Sergeant James Godwin, SPD Officer Ryan Keating,
18                 SPD Sergeant Morten; and the Declaration of Scott Defoe.
19             2. The Court rules as follows on the Parties’ Objections to Evidence that the Court deems
20   material to determination of the motion:
21             •   The Court overrules Plaintiff’s Objections Nos. 6-11, 13-16, 23, 24, 55-59, 61, 64-67,
22                 69-71
23             •   The court sustains Plaintiff’s Objection No. 60 regarding Oscar Resendez’s information
24                 and belief, and overrules the remainder of the objections to No. 60
25             •   The Court sustains Plaintiff’s Objection No. 12
26             •   Defendant’s Objections to Plaintiff’s Evidence are overruled for not complying with
27                 Cal. Rules of Court Rule 3.1354 regarding quoting or setting forth the objectionable
28                 statement or material
                                                         3
     [PROPOSED] ORDER DENYING DEFENDANT CITY OF SALINAS’ MOTION FOR SUMMARY JUDGMENT
        AGAINST PLAINTIFFS LOUIS MONTANO, JR.; LOUIE MONTANO III; AND MICHAEL MONTANO
 1             •   The Declaration of Scott Defoe is not material to the Court’s ruling on the motion
 2

 3         IT IS ORDERED that Defendant’s motion for summary judgment is denied.

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 5         IT IS FURTHER ORDERED that Plaintiffs prepare a [Proposed] Order pursuant to California

 6 Rules of Court, Rule 3.1312(a) and Code of Civil Procedure Section 437c(g).

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           Date: _______________________                        _________________________
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                                                                Hon. Carrie M. Panetta
 9                                                              Judge of California Superior Court,
                                                                County of Monterey
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                                                       4
      [PROPOSED] ORDER DENYING DEFENDANT CITY OF SALINAS’ MOTION FOR SUMMARY JUDGMENT
         AGAINST PLAINTIFFS LOUIS MONTANO, JR.; LOUIE MONTANO III; AND MICHAEL MONTANO
08/23/23