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1 GERALD E. BRUNN, SBN 107004
MICHAEL G. DONOVAN, SBN 160425 Electronically Filed
2 LAW OFFICES OF BRUNN & FLYNN 12/23/2020 7:16 PM
A Professional Corporation Superior Court of California
3 928 - 12th Street, Suite 200 County of Stanislaus
Modesto, CA 95354 Clerk of the Court
4 Telephone: (209) 521-2133 By: Kimberly Mean, Deputy
Facsimile: (209) 521-7584
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Attorneys for Cross-Defendant, GEORGE REED, INC.
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8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF STANISLAUS
10 JEREMY SEDERQUIST and EMILY CASE NO.: CV-18-003771
SEDERQUIST,
11 CROSS-DEFENDANT GEORGE REED,
Plaintiffs, INC.'S REPLY TO CITY OF TURLOCK'S
12 OPPOSITION TO MOTION FOR
v. SUMMARY JUDGMENT
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CITY OF TURLOCK, SAUL TRUJILLO,
14 ANTONIA BORBA, JOSEPH BORBA, and
DOES 1-20, inclusive, DATE: December 30, 2020
15 (Formerly December 4, 2020)
Defendants. TIME: 8:30 a.m.
16 DEPT: 23
17 TRIAL DATE: October 5. 2021
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AND RELATED CROSS-ACTIONS.
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20 Defendant GEORGE REED, INC. (hereinafter referred to as "GRI") submits the following reply
21 memorandum in support of its motion for summary judgment.
22 SUMMARY OF REPLY
23 GRI filed its motion for summary judgment in this matter on the ground, essentially, that the cross
24 complaints filed against it by the named defendants for equitable indemnity each fail to state a cause of
25 action against GRI, which was not named as a defendant in the SEDERQUIST plaintiffs' lawsuit. The
26 first such cross complaint was filed by the CITY OF TURLOCK; the BORBA and TRUJILLO
27 defendants soon followed suit. The BORBA cross-complaint has since been dismissed.
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CROSS-DEFENDANT GEORGE REED, INC,'S REPLY TO CITY OF TURLOCK'S OPPOSITION TO MOTION FOR
SUMMARY JUDGMENT
1 In each instance, the allegations of the cross-complaints are boilerplate. No allegation in any one
2 of the cross-complaints relates to any time, place or type of conduct by GRI, or states any facts which, if
3 proved, could subject GRI to liability to the SEDERQUIST parties. Since joint liability is a prerequisite
4 to the only cause(s) of action alleged in the cross-complaints, each fails to state a cause of action against
5 GRI. (" ... unless the prospective indemnitor and indemnitee are jointly and severally liable to the
6 plaintiff there is no basis for indemnity." Munoz v Davis (1983) 141 Cal.App.3d 420, 425; Childrens
7 Hospital v. Sedgwick (1996) 45 Cal.App.4th 1780, 1787).
8 As the moving papers and supporting evidence further demonstrate, GRI's efforts at obtaining
9 information through discovery resulted in responses from the cross-complainants which were devoid of
10 facts and identify no evidence supporting the hopelessly vague allegations of the cross-complaint.
11 TURLOCK, in particular, refers in its responses to the allegations of the plaintiffs' complaint which are
12 made against TURLOCK, not GRI.
13 After almost two years of litigation GRI finds itself in much the same place it was when served
14 with the TURLOCK cross-complaint. In bringing the within motion, GRI intended for it to be simple and
15 strictly limited to the issues raised by the cross-complaints and what few undisputed material facts
16 supported by the limited evidence generated by discovery to date supports those facts. To summarize:
17 GRI constructed CITY of TURLOCK Project 0827, completed as of September 27, 2011 and
18 accepted by the CITY. (UMF Nos. 1, 2 and 3). In the six - plus years after completion GRI was never
19 contacted regarding any patent deficiencies in the work. (UMF No. 4). CITY admits GRI owed no duty to
20 maintain the area (UMF No. 5) and that the CITY "owned and controlled" the area where the accident
21 occurred (CT objection and response to UMF No. 6). None of the cross-complainants have produced any
22 evidence through discovery or stated any facts supporting the alleged liability of GRI to the plaintiffs and
23 by extension to the cross-complainants for equitable indemnity.
24 GRI believes these relatively simple and straightforward facts, together with the cross-
25 complainant(s) factually devoid discovery responses are sufficient to justify summary judgment and/or
26 shift the burden to cross complainant(s) to demonstrate the existence of a triable issue of fact. The
27 opposition papers filed by TURLOCK fail to show the existence of such an issue, but simply concludes
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CROSS-DEFENDANT GEORGE REED, INC.'S REPLY TO CITY OF TURLOCK'S OPPOSITION TO MOTION FOR
SUMMARY JUDGMENT
1 that- unless its own motion for summary judgment as to the plaintiffs' complaint is granted- GRI's
2 motion must be denied because it was "responsible for the construction of the subject road."
3 TURLOCK HAS NOT SHOWN THERE IS A TRIABLE ISSUE OF FACT
4 GRI certainly has acknowledged that it built the TURLOCK project, which the CITY admittedly
5 designed. (Declaration of Nathan Bray in Support of City ofTurlock's Opposition to GRI's Motion for
6 Summary Judgment, para. 5, p. 2: 9-13; para. 9 p. 2:23-26).
7 As the largest part of its opposition, CITY relies on the declaration of plaintiffs' expert Dale
8 Dunlap submitted in opposition the CITY's motion for summary judgment to suggest there are issues of
9 fact arising from Mr. Dunlap's opinions that, on July 13, 2018, the subject roadway "did not conform to
10 the City's design in certain respects." (Oppos. P&A p.4: 12-14). In fact, the only time the word
11 "conform" appears in Mr. Dunlap's declaration is when he states his opinion that the project design
12 failed to conform to City and State standards and basic engineering criteria. (Dunlap Deel., para. 34)
13 It appears Mr. Dunlop's opinions are indeed more correctly described as critical of matters related
14 to the engineering and design of the project, itself. In particular, he appears to take issue with drainage -
15 related issues (paragraphs 16, 18, 19), including the absence of a hydrology study/hydraulic analysis in
16 order to properly determine and design the drainage requirements (paragraphs 25, 26, and 27). Mr.
17 Dunlap is further critical of maintenance, or lack thereof, which in his opinion effectively eliminated
18 drainage. (Paragraphs 28, 35). Finally, Mr. Dunlap offers that, knowing what the CITY knew or should
19 have known about potential for flooding, it did not provide traffic control warnings appropriate for the
20 roadway. (Paragraphs 29, 30, 33)
21 The Dunlap declaration does not state any opinions or observations concerning the contractor's
22 performance of the construction. It does not offer any opinions concerning the conditions existing at the
23 time the project was completed some six years prior to his evaluation. Mr. Dunlap does not suggest that
24 the contractor failed to perform the contract properly, which appears to be what the CITY would have
25 the court infer. However, it would require speculation and conjecture to extrapolate backward and turn
26 Mr. Dunlop' s 2018 observations about existing conditions into an opinion that such conditions were the
27 same at the time the work was completed. (" ...an expert's opinion based on ... speculative or conjectural
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CROSS-DEFENDANT GEORGE REED, INC.'S REPLY TO CITY OF TURLOCK'S OPPOSITION TO MOTION FOR
SUMMARY JUDGMENT
1 factors (citation omitted) ... may be excluded from evidence." Jennings v. Palomar Pomerado Health
2 Systems, Inc. (2003) 114 Cal. App. 4th 1108, 1117.
3 Mr. Dunlap's 2018 evaluation occurred more than six years after completion and acceptance of
4 GRI's work by the CITY. Six years ofregular daily use and abuse, by all manner of passenger and
5 commercial vehicles. To conclude that conditions in July 2018 are virtually the same as at the time of
6 completion of construction ignores the fact of long term use, and the lack of evidence or any information
7 on maintenance practices (which is beyond GRI's ability to produce).
8 In fact, Mr. Dunlap's declaration does not effectively conflict with anything GRI submitted in
9 support of its motion, the gist of which is that the equitable indemnity cross-complaints do not state a
10 cause of action. The declaration does not actually criticize construction in any real way, or contractor
11 performance in any way at all in the evaluation and conclusion sections (Dunlap decl. paras. 16 - 3 8).
12 To the extent that Mr. Dunlap takes issue with matters of engineering, designing, planning and approval
13 of plans and design, and post- construction maintenance, such criticisms do not implicate GRI in any
14 way. By the CITY's direct admission, it was responsible for the design and plans. (Oppos. P&A, p. 2: 1-
15 5) Moreover, the law in California has long recognized in both private and public construction
16 contracting an implied warranty that construction plans and specifications are correct. (See, Thompson
17 Pacific Construction, Inc. v. City of Sunnyvale (2007) 155 Cal.App.4th 525, 551). See also CACI 4550.
18 Please note also, GRI does not take issue with or concede the correctness of Mr. Dunlap's
19 criticisms of planning and engineering, but merely observes such matters were beyond the scope of its
20 obligations under the contract.
21 GRI DID NOT OWE A DUTY OF CARE ON THE FACTS OF THIS CASE
22 The CITY, in its opposition, suggests that denial of GRI's motion is "compelled" because GRI
23 has not argued or submitted any evidence that it did not owe a duty of care, that such duty was not
24 breached and thereby a substantial factor in causing the harm to plaintiffs. (Oppos, P&A, p.7:20 - 22)
25 In fact, that is exactly what GRI argues in basing the motion of the failure of the cross-complaints
26 to state a cause of action for equitable indemnity.
27 Seo v. All-Makes Overhead Doors (2002) 97 Cal. App, 4th 1193 summarizes the oft- stated
28 rules:
CROSS-DEFENDANT GEORGE REED, INC.'S REPLY TO CITY OF TURLOCK'S OPPOSITION TO MOTION FOR
SUMMARY JUDGMENT
1 'Actionable negligence is traditionally regarded as involving the following: (a) a legal duty to use
2 due care; (b) a breach of such legal duty; (c) the breach as the proximate or legal cause of the resulting
3 injury.'" (Jackson v.Ryder Truck Rental, Inc. (1993) 16 Cal. App. 4th 1830, 1837.)" 'While breach of
4 duty and proximate cause normally present factual questions, the existence of a legal duty in a given
5 factual situation is a question oflaw for the courts to determine. [Citation.]' " (Id.at p. 1838.)
6 "In considering whether a party has a legal duty in a particular factual situation, a distinction is
7 drawn between claims of liability based upon misfeasance and those based upon nonfeasance. "'
8 "Misfeasance exists when the defendant is responsible for making the plaintiffs position worse, i.e.,
9 defendant has created a risk. Conversely, nonfeasance is found when the defendant has failed to aid
10 plaintiff through beneficial intervention .... " [Citations.]'" (Jackson v. Ryder Truck Rental, Inc., supra,
11 16 Cal. App. 4th at p. 1838.) Liability for misfeasance is based on the general duty of ordinary care to
12 prevent others from being injured by one's conduct. (Civ. Code, § 1714, subd. (a); Weirum v.RKO
13 General, Inc. (1975) 15 Cal. 3d 40, 49) Seo v. All-Makes Overhead Doors (2002) 97 Cal. App. 4th 1193,
14 1202 (bold italics added).
15 What specific, or even general, "conduct" of GRI makes it responsible for causing or contributing
16 to the subject accident? CITY suggests it is on GRI to prove a negative by bringing forward evidence that
17 it did not owe a duty to the plaintiffs. To the extent such evidence exists, it is in the facts that GRI had no
18 duty (as the CITY admits) to maintain the roadway (six years after completion) and that the CITY owned
19 and controlled the accident location. The CITY' s opposition does not change or make those undisputed
20 facts less true. There is just nothing in the "particular factual situation" the facts of this case to suggest
21 that any conduct on the part of GRI made the plaintiffs' position "worse" by creating a risk of harm. For
22 those reasons, the court may conclude that GRI did not owe a duty of care in this particular situation and
23 the CITY' s cross-complaint therefore fails to state a cause of action against GRI.
24 CONCLUSION
25 In the course of this action, no evidence has been introduced which suggests that GRI was in any
26 way negligent in connection with its work on the project. The boilerplate language of the cross-
27 complaints describes no conduct which, if proved, would subject GRI to liability to the plaintiffs and, by
28 extension, to the cross - complainants for equitable indemnity. Comprehensive written discovery served
CROSS-DEFENDANT GEORGE REED, INC.'S REPLY TO CITY OF TURLOCK'S OPPOSITION TO MOTION FOR
SUMMARY JUDGMENT
1 on the CITY (and TRUJILLO) resulted in factually devoid, evasive and non- responsive answers. The
2 burden of showing the existence of a triable issue of fact should therefore shift to the cross -
3 complainants.
4 In its opposition, the evidence the CITY suggests should be considered on this motion is the
5 opinion declaration of the plaintiffs' expert, who is in fact critical of the CITY, its plans, design,
6 engineering and post - construction maintenance. The declaration supports no inference of negligent
7 conduct by ORI. The CITY asks the court to engage in speculation and conclude that it does. Based on
8 the undisputed material facts, and the failure of the CITY' s opposition papers to raise a triable issue of
9 fact, GRI respectfully submits its motion should be granted.
10 Dated: December 23, 2020 LAW OFFICES OF BRUNN & FLYNN
A Professional Corporation
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CROSS-DEFENDANT GEORGE REED, INC.'S REPLY TO CITY OF TURLOCK'S OPPOSITION TO MOTION FOR
SUMMARY JUDGMENT
PROOF OF SERVICE
1 (C.C.P. §§1013a, 2015.5)
STATE OF CALIFORNIA }
2 COUNTY OF STANISLAUS }
3 I, HEATHER J. McCAULEY, declare that:
4 I am employed in the County of Stanislaus, California. I am over the age of eighteen (18) years and
not a party to the within action. My business address is 928 12th Street, Suite 200, Modesto, California, 95354.
5 On December 23, 2020, I served the following document(s):
6 CROSS-DEFENDANT GEORGE REED, INC.'S REPLY TO CITY OF TURLOCK'S
OPPOSITION TO MOTION FOR SUMMARY JUDGMENT
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by placing a true and correct copy thereof enclosed in a sealed envelope and served in the manner and/or
8 manners described below to each of the party(ies) addressed below:
9 SEE ATTACHED SERVICE LIST.
10 xxxx BY MAIL: U.S. Postal Service by placing such envelope(s) with postage thereon fully prepaid
in the designated area for outgoing mail in accordance with this office's practice, whereby the
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mail is deposited in a U.S. Mailbox in the City of Modesto, California after the close of the
12 day's business.
13 BY HAND DELIVERY: I caused said envelope(s) to be delivered by hand to the
addressee( s) designated.
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BY OVERNIGHT COURIER SERVICE: I caused said envelope(s) to be delivered via
15 overnight courier service to the addressee(s) designated.
16 BY FACSIMILE: I caused said document(s) to be transmitted to the telephone number(s)
of the addressee(s) designated above.
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xxxx BY ELECTRONIC MAIL: I caused said document(s) to be transmitted electronically to
18 the addressee(s) designated above.
19 I declare under penalty of perjury under the laws of the State of California that the foregoing is true
and correct. Executed on December 23, 2020 at desto, California.
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PROOF OF SERVICE
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SERVICE LIST
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Bradley J. Swingle Jason B. Friedman
3 ARATA, SWINGLE, ET AL. THE BRANDI LAW FIRM
1207 I Street 354 Pine Street, Third Floor
4 Modesto, CA 95354 San Francisco, CA 94104
bswingle@arata-law.com jbf@brandilaw.com
5 mtatum@arata-law.com mvs@brandilaw.com
Tel: (209) 522-2211 Tel: (415) 989-1800
6 Fax: (209) 522-2980 Fax: (415) 989-1801
7 MarkArruti Mark A. Bates
8 SIMS, LAWREN CE & ARRUTI BATES, WINTER & ASSOCIATES LLP
2261 Lava Ridge Court 925 Highland Pointe Drive, Ste. 380
9 Roseville, CA 95661 Roseville, CA 95678
mark@sims-law.net mbates@bateswinterlaw.com
10 teressa@sims-law.net mquinn@bateswinterlaw.com
bev@sims-law.net Tel: (916) 789-7080
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Tel: (916) 797-8881 Fax: (916) 789-7090
12 Fax: (916) 253-1544
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PROOF OF SERVICE