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  • SEDERQUIST, JEREMY vs CITY OF TURLOCKAuto Tort: Unlimited document preview
  • SEDERQUIST, JEREMY vs CITY OF TURLOCKAuto Tort: Unlimited document preview
  • SEDERQUIST, JEREMY vs CITY OF TURLOCKAuto Tort: Unlimited document preview
  • SEDERQUIST, JEREMY vs CITY OF TURLOCKAuto Tort: Unlimited document preview
  • SEDERQUIST, JEREMY vs CITY OF TURLOCKAuto Tort: Unlimited document preview
  • SEDERQUIST, JEREMY vs CITY OF TURLOCKAuto Tort: Unlimited document preview
  • SEDERQUIST, JEREMY vs CITY OF TURLOCKAuto Tort: Unlimited document preview
  • SEDERQUIST, JEREMY vs CITY OF TURLOCKAuto Tort: Unlimited document preview
						
                                

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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 5 Attorneys for Cross-Defendant, GEORGE REED, INC. 6 7 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 13 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 18 - - - - - - - - - - - - - - -I AND RELATED CROSS-ACTIONS. 19 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. 28 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 28 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 28 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 11 12 13 14 15 K:\docs\cases\BASIC-18334\pleadings\MSJ ofGRI\Reply to Opp to MSJ 16 17 18 19 20 21 22 23 24 25 26 27 28 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 7 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 11 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. 14 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. 17 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. 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE 1 SERVICE LIST 2 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 11 Tel: (916) 797-8881 Fax: (916) 789-7090 12 Fax: (916) 253-1544 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE