Preview
E-FILED
3/9/2021 11:02 AM
1 Joseph M. Barrett, State Bar No. 143974 Superior Court of California
jmb@agzlaw.com County of Fresno
2 George Terterian, State Bar No. 158953 By: L. Whipple, Deputy
gt@agzlaw.com
3 Affeld Grivakes LLP
2049 Century Park East, Suite 2460
4 Los Angeles, California 90067
Telephone: (310) 979-8700
5 Facsimile: (310) 979-8701
6 Benjamin P. Tryk, State Bar No. 253299
ben@tryklaw.com
7 Tryk Law, P.C.
1111 East Herndon Avenue, Suite 310
8 Fresno, California 93720
Telephone: (559) 840-3240
9 Facsimile: (888) 528-5570
10 Attorneys for Plaintiffs SILVANO GARCIA HERNANDEZ, et al.
11
SUPERIOR COURT OF THE STATE OF CALIFORNIA
12
COUNTY OF FRESNO
13
14
SILVANO GARCIA-HERNANDEZ; PAULA Case No.: 18CECG03399
15 MARTINEZ SANTIAGO; and CESAR GARCIA
MARTINEZ, NOEMI GARCIA MARTINEZ, PLAINTIFFS’ OPPOSITION TO
16 and NAYELI GARCIA MARTINEZ, Minors by DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT
17 and through their Guardian ad Litem, PAULA
MARTINEZ SANTIAGO, [Filed concurrently with Plaintiffs’ Responsive
18 Statement to Defendants’ Separate Statement of
Plaintiffs, Undisputed Facts, Declarations of Benjamin Tryk
19 vs. and Brian Brewer; and Index of Exhibits]
20 STATE OF CALIFORNIA; CALIFORNIA
HIGHWAY PATROL; ABRAHAM SANTOS; 1. Date: March 23, 2021
21 2. Time: 3:30 p.m.
and DOES 1-100, Inclusive 3. Dept.: 502
22 4. ______________________________________
Defendants. Complaint filed on September 11, 2018
23 Case Assigned to Judge McGuire, Dept. 502
______________________________________
24
Comes now the Plaintiffs who hereby Oppose Defendants California Highway Patrol and Officer
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Abraham Santos’ Motion for Summary Judgment or alternatively, Motion for Summary Adjudication for
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the following reasons:
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(1) Officer Santos owed a duty to the Plaintiffs, which he created by his choice in response
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to the dangerous crash scene to approach with his emergency lights on, causing the traffic all
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PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
(18CECG03199)
1 around him to slow down and move away from the Plaintiffs and others on the dangerous
2 shoulder of the highway, creating a “zone of safety.”
3 (2) Officer Santos then breached his duty owed to the Plaintiffs when he chose to drive right
4 by them – abandoning this zone of safety and instantly making the situation incredibly dangerous.
A jury could reasonably conclude that this was a cause of the harm to the Plaintiffs resulting
5
from the horrible crash into their vehicle by Ronald Mack’s vehicle.
6
(3) The C.H.P. created a special relationship to protect the Plaintiffs once the C.H.P. Officer
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chose to activate his emergency lights, creating this “zone of safety” that protected Plaintiffs and
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which they relied upon, which was then negligently abandoned;
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(4) Because Officer Santos was negligent in performing his duties while employed by the
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State of California Highway Patrol, he is not immune from liability;
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(5) The California Highway Patrol is liable for the damages caused to the Plaintiffs under the
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doctrine of respondeat superior.
13 Plaintiffs’ opposition shall be based on the attached Memorandum of Points & Authorities, the
14 attached declarations of Benjamin Tryk and Brian Brewer, and the evidence and case law, the pleadings,
15 documents, records, and files in this action, and such oral and documentary evidence and argument which
16 may be presented at the hearing on this motion.
17
18 Dated: March 9, 2021 Respectfully submitted,
19
20 By: ______________________________________
Joseph M. Barrett, Esq.
21 George Terterian, Esq.
AFFELD GRIVAKES LLP
22
Benjamin P. Tryk, Esq.
23
TRYK LAW, P.C.
24 Attorneys for Plaintiffs
SILVANO GARCIA HERNANDEZ, et al.
25
26
27
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PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
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TABLE OF CONTENTS
1
Page
2
3 TABLE OF AUTHORITIES….…………………………………………………………………..…iv
4 MEMORANDUM OF POINTS AND AUTHORITIES…………………………………………….1
5 I. INTRODUCTION…………………………………………………………………...1
6 II. THE APPLICABLE STANDARD FOR RULING ON A SUMMARY JUDGMENT
7
IS LIBERAL CONSTRUCTION………………………………………………….......3
8
III. THERE WAS A SPECIAL RELATIONSHIP THAT CREATED
9
A DUTY OF CARE OWED BY CHP OFFICER SANTOS TO
10
PLAINTIFFS. THEREFORE, THE STATE AND OFFICER
11
12 SANTOS ARE RESPONSIBLE FOR THE HARM THAT WAS CAUSED
13 DUE TO THEIR BREACH OF DUTY OWED…………………………………….4
14 IV. CALIFORNIA COURTS ALSO LOOK TO THE
15 ROWLAND V. CHRISTIAN ANALYSIS TO DETERMINE IF A
16
DUTY IS OWED BY THE C.H.P…………………………………………………..11
17
V. CONCLUSION………………………………………………….…………………..16
18
19
20
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22
23
24
25
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(18CECG03199)
TABLE OF AUTHORITIES
1 CASE LAW
Page
2
3 Camp v. State of California
(2010) 184 Cal.App.4th 967, 970………………………………………………………..………2
4
Stevens v. Sup. Ct. (API Auto Ins. Services)
5 (1999) 75 Cal.App.4th 594, 601…………………………………………………………...…1, 2
6 Gressley v. Williams
7 (1961) 193 Cal.App.2d 636, 639………………………………………………………..………1
8 Addiego v. Hill
(1965) 238 Cal.App.2d 842………………………………………....………………..…………2
9
Buss v. J.O. Martin Co.
10 (1966) 241 Cal.App.2d 123, 133-34…………………………………………...…………..……2
11
Credit Managers Association of Southern California v. Superior Court
12 (1975) 51 Cal.App.3d 352, 361………………………………………………………..………..2
13 Blatty v. New York Times Co.
(1986) 42 Cal. 3d 1033, 1040………………………………………………………..………….2
14
Stop Youth Addiction, Inc. v. Lucky Stores, Inc.
15 (1998) 17 Cal. 4th 553, 558………………………………………………………..……….…...2
16
Perdue v. Crocker Natl. Bank
17 (1985) 38 Cal. 3d 913, 922………………………………………………………..…………….2
18 Stevens v. Superior Court
(1986) 180 Cal. App. 3d 605, 609-10………………………………………………………...…2
19
Dubins v. Regents of Univ. of Cal.
20
(1994) 25 Cal. App. 4th 77, 82………………………………………………………..………...2
21
Jack Heskett Lincoln-Mercury, Inc. v. Metcalf
22 (1984) 158 Cal. App. 3d 38, 41………………………………………………………..………..2
23 Platt v. Coldwell Banker Residential Real Estate Servs.
(1990) 217 Cal. App. 3d 1439, 1444………………………………………………………..…...2
24
25 Blank v. Kirwan
(1985) 39 Cal. 3d 311, 318 (1985)………………………………………………………..……..2
26
Quelimane Co. v. Stewart Title Guaranty Co.
27 (1998) 19 Cal.4th 26, 38-39………………………………………………………..…………....2
28
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PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
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Ballard v. Uribe
1 (1986) 41 Cal.3d 564, 572, fn. 6……………………..……………………………….…...……4
2
Stout v. City of Porterville
3 (1983) 148 Cal.App.3d 940, 942………………………………………………………..………4
4 Peter W. v. San Francisco Unified Sch. Dist.
(1976) 60 Cal.App.3d 814, 822………………………………………....………………..……...4
5
Raymond v. Paradise Unified School Dist.
6 (1963) 218 Cal.App.2d 1, 8…………………………………………...…………..…………….4
7
Tarasoff v. Regents of University of California
8 (1976) 17 Cal.3d 425, 434………………………………………………………...……….…4, 8
9 Dillon v. Legg
(1968) 68 Cal.2d 728, 734………………………………………………………..………….4, 12
10
Mann v. State of California
11
(1977) 70 Cal. App.3d 773…………………….………………………………4, 6, 7, 8, 9, 12, 13
12
Williams v. State of California
13 (1983) 34 Cal.3d 18, 24………………………………………………………..…….4, 5, 6, 7, 12
14 McCorkle v. Los Angeles
(1969) 70 Cal.2d 252…………………………………………………………………..5, 6, 8, 12
15
16 Morgan v. County of Yuba
(1964) 230 Cal. App. 2d 938………………………………………………………..………….5
17
Whitton v. State of California
18 (1979) 98 Cal.App.3d 235………………………………………………………..…………….5
19 Reed v. City of San Diego
(1947) 77 Cal.App.2d 860, 866–867 …………………………………………………….....…..5
20
21 Cabral v. Ralphs Grocery Co.
(2011) 51 Cal.4th 764………………………………………………………..…………………6
22
Bigbee v. Pacific Tel. & Tel. Co.
23 (1983) 34 Cal.3d 49, 58………………………………………………………..……………….6
24 Adams v. City of Fremont
25 (1998) 68 Cal.App.4th 243, 284………………………………………………………..………6
26 M.B. v. City of San Diego
(1991) 233 Cal.App.3d 699, 704-705…………………………………………………………..7
27
Walker v. County of Los Angeles
28 (1987) 192 Cal.App.3d 1393, 1398………………………………………………………..…...7
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PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
(18CECG03199)
1 McCarthy v. Frost
(1973) 33 Cal.App.3d 872, 875………………………………………………………..……….8
2
3 Sava v. Fuller
(1967) 249 Cal.App.2d 281, 291…………………………………………………………....8, 14
4
Rowland v. Christian
5 (1968) 69 Cal. 2d 108, 112……………………………………………………….……..9, 10, 12
6 Lipson v. Superior Court
7 (1982) 31 Cal.3d 362, 372-373…………………………………………………….…..………..9
8 Dutton v. City of Pacifica
(1995) 35 Cal.App.4th 1171, 1175–1176………………………………………….….……...9, 10
9
Shelton v. City of Westminster
10 (1982) 138 Cal.App.3d 610, 616–619………………………………………………….………..9
11
Thompson v. County of Alameda
12 (1980) 27 Cal.3d 741, 750………………………………………………………..……………10
13 Lugtu v. California Highway Patrol
(2001) 26 Cal.4th 703, 716………………………………………………………..…………...12
14
Parsons v. Crown Disposal Co.
15 (1997) 15 Cal.4th 456, 472………………………………………………………..…………...12
16
Davidson v. City of Westminster,
17 (1982) 32 Cal.3d 203–209………………………………………………………..………..12, 13
18 Nally v. Grace Community Church
(1988) supra, 47 Cal.3d 278, 293–300…………………………………………………………13
19
Hernandez v. City of Pomona
20
(1996) 49 Cal.App.4th 1492, 1498–1505……………………………………………………....13
21
Hartzler v. City of San Jose
22 (1975) 46 Cal.App.3d 6, 10………………………………………………………..…………..13
23 Harris v. Smith
(1984) 157 Cal.App.3d 100, 107–109…………………………………………………………13
24
25 Lushbaugh v. Home Depo U.S.A., Inc.
(2001) 93 Cal.App.4th 1159, 1164………………………………………………………………3
26
Oates v. City of Lincoln
27 (2001) 93 Cal.App.4th 25, 30…………………………………………………………………...3
28 City of Oceanside v. Superior Court (2000) 81 Cal.App.4th 269, 273…………………………………………3
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1 Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 395………………………………………………….3
2
Molko v. Holy Spirit Ass’n (1988) 46 Cal.3d 1092, 1107…………………………………………………..3
3
Schwoerer v. Union Oil Co. (1993) 14 Cal.App.4th 103, 110……………..…………………………………3
4
Versa Technologies, Inc. v. Superior Court (1978) 78 Cal.App.3d 237, 142…………………………………..3
5
6
7 STATUTES
8
Code of Civil Procedure § 437c………………………………………………………………………..3
9
Code of Civil Procedure § 437c(c)……………………………………………………………………..3
10
Government Code § 820.2…………………………………………………………..……………..8, 14
11
Government Code § 845………………………………………………………..………………….....14
12
Civil Code § 1714 subd. (a)……………………………………………………………………….…...9
13
Government Code § 815.2 subds.(a)(b)………………………………………………………………14
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PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
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MEMORANDUM OF POINTS & AUTHORITIES
1
I.
2
INTRODUCTION.
3
Summary judgment cannot be granted herein because there are disputed issues of fact going to
4
duty and breach, which preclude judgment as a matter of law. The Court resolved the legal issue of duty
5
on Defendants’ demurrer, finding that the facts support a legal duty. These facts have been confirmed
6 and amplified in discovery. Defendants offer nothing to change the Court’s prior ruling or thoughtful
7 analysis.
8 On July 23, 2018, C.H.P. Officer Abraham Santos responded to a non-injury crash on a very
9 dangerous section of the northbound 99 Freeway in the Fresno near the Belmont exit. Officer Santos
10 knew that this was dangerous area. The traffic was urban, heavy traffic, moving at freeway speeds, with a
11 narrow 8-foot shoulder, and a steep hill right next to it, leaving stranded motorists nowhere to go if an
12 errant vehicle approached. In fact, Officer Santos always led people off the freeway and up the nearby
13 off-ramp for Belmont Avenue to avoid this very danger.
14 Officer Santos approached the scene on his C.H.P.–issued Harley Davidson with emergency lights
15 on and flashing. As intended, this caused the vehicles around him to slow down and move away from the
people and vehicles on the right shoulder. After waiting for the C.H.P. for over 30 minutes, the drivers
16
on the side of the freeway, including plaintiff Silvano Garcia-Hernandez (“Garcia-Hernandez”), relied on
17
the “zone of safety” created by Officer Santos’ arrival with his lights flashing. They breathed a sigh of
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relief that the C.H.P. finally arrived and they were safe.
19
After making clear that he was coming to the scene to provide assistance, however, Officer Santos
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chose to drive right by—in violation of standard police practice— abandoning this “zone of safety” he
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created. He did not instruct them to get back into their cars or to move to a safer location. He did not
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usher them off the freeway using his vehicle, his command presence, and emergency safety features.
23
Instead he chose to drive past them and park his vehicle ahead of the crash site, so that his flashing amber
24 lights were no longer visible to freeway traffic. In doing so, he significantly increased the risk of a
25 secondary crash, exposing the people and vehicles on the roadside to the danger of approaching vehicles,
26 which quickly resumed freeway speeds. Then the foreseeable happened—an errant vehicle driving on the
27 freeway slammed into Garcia-Hernandez’s vehicle, crushing him in front of his wife and children.
28
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PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
(18CECG03199)
1 C.H.P. officers are trained to use their best judgment in response to crashes. Due to the severe
2 and foreseeable risk to motorists stranded on the freeway, they are also trained to immediately respond to
3 calls for service on freeways and to think in advance about a plan for the response, utilizing the best
4 practices to provide safety. In their MSJ brief and supporting authorities, Defendants rely heavily on a
supposed unwritten “policy” which allows their C.H.P. Officers to park in front of crashes. They neglect
5
that in the circumstances—i.e., motorists stranded on the side of the highway—standard practice and the
6
C.H.P.’s own training materials show that the officer must take precautions to ensure that the motorists
7
are safe before parking his vehicle to inspect the crash. In short, Defendants ignore the actual evidence.
8
The actual evidence is that Officer Santos knew this was an incredibly dangerous area when he
9
began his response. Officer Santos activated his emergency lights which caused a “zone of safety” to
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protect Garcia-Hernandez, which he relied upon to his detriment. This critical evidence is not mentioned
11
in Defendants’ motion. Officer Santos had many safety options available, using his “command presence”
12
to wave the people up the off-ramp right in front of them, using his vehicle as a barrier to avoid a
13 secondary crash, parking next to them and directing them off the freeway, dropping emergency flares, or
14 merely leaving his emergency lights on and visible to traffic. As explained in the Declaration of Brian
15 Brewer, ¶14, an eminently qualified expert in police safety, Officer Santos had ample tools at his disposal
16 to protect Garcia-Hernandez and chose, for unknown reasons, not to use any of them (except the
17 emergency lights).
18 Factual disputes abound in this case. It is either error or fantasy that leads Defendants argue that
19 “Officer Santos slowed his motorcycle down and pulled in front of the stopped vehicles. This was
20 done to create a barrier in the event of an errant driver.” Defendants are correct that Officer Santos
21 could have and should have used his vehicle as a barrier. But parking in front of the crashed vehicles, and
22 away from the freeway, is not a way to do it. The risk of errant vehicles was from the 99 Freeway, not
from further up the highway shoulder towards the exit ramp, where Officer Santos parked. As Defendants
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effectively concede, Officer Santos parked ahead of the vehicles not to provide protective barrier for the
24
drivers, but to use the crashed vehicles as a protective barrier for his motorcycle. This violated police
25
training and standard practice and amounted to negligence.
26
The Court has already addressed the legal issue presented by Defendants’ motion, finding on their
27
demurrer that Plaintiffs have alleged sufficient facts to show a duty on the part of Officer Santos under
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PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
(18CECG03199)
1 the “special relationship” doctrine. These facts have been borne out (and then some) in discovery.
2 Defendants simply repeat the same legal argument that the Court properly rejected.
3 Defendants do not contest that our California Supreme Court has found that the C.H.P. owes
4 members of the motoring public a duty of care in proper circumstances. Their theory that no duty arose
in this case is wrong. While an officer will not be liable for his “failure to respond to a request for
5
assistance,” if he does respond and creates a “zone of safety” for stranded motorists, he cannot simply
6
abandon that “zone of safety” and leave them exposed to a secondary crash. Camp v. State of California
7
(2010) 184 Cal.App.4th 967, 970. Once a traffic officer has chosen to respond to the plight of specific
8
persons, and informed himself of foreseeable danger from passing traffic, he assumes a duty to protect
9
them by readily available means before abandoning them. As the Court already determined, liability may
10
attach if the officer fails to comply with this limited duty.
11
The facts plead in the Second Amended Complaint (“SAC”) and supported by the evidence
12
submitted are specific and establish a cause of action against these defendants (see,SAC ¶¶11-25).
13 Defendant’s motion for summary judgment must be denied.
14 II.
15 THE APPLICABLE STANDARD FOR A MOTION FOR SUMMARY JUDGMENT.
16 A. Summary Judgment Is a Drastic Remedy to Be Used Sparingly.
17 Summary judgment is a drastic procedure because it denies the opposing party the right to trial,
18 and therefore, it should be used with caution. Lushbaugh v. Home Depo U.S.A., Inc. (2001) 93 Cal.App.4th
19 1159, 1164; Bahl v. Bank of America (2001) 89 Cal. App.4th 389, 395; Molko v. Holy Spirit Assn. (1988) 46
20 Cal.3d 1092, 1107. All doubts as to whether any material triable issues of fact exist are to be resolved in
21 favor of the party opposing summary judgment. Oates v. City of Lincoln (2001) 93 Cal.App.4th 25, 30; City
22 of Oceanside v. Superior Court (2000) 81 Cal.App.4th 269, 273.
“Summary judgment is appropriate only if the evidence shows there is no triable issue of any
23
material fact, and that the moving party is entitled to judgment as a matter of law. The court’s obligation
24
in ruling on a summary judgment motion is merely to identify issues of fact, not to decide them itself.
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When making this determination, the trial court must strictly construe the affidavits of the moving party,
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and liberally construe those of the opponent.” Schwoerer v. Union Oil Co. (1993) 14 Cal.App.4th 103, 110.
27
Further, the Court must consider not only the direct evidence presented, but also reasonable inferences
28
to be drawn therefrom in favor of the opposing party. Code Civ. Proc. § 437c(c). California law is clear
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PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
(18CECG03199)
1 that if there is even a single triable issue of material fact, a motion for summary judgment must be denied.
2 Versa Technologies, Inc. v. Superior Court (1978) 78 Cal.App.3d 237, 142.
3 B. Summary Judgment May Not Be Granted Based Solely on the Self-Serving
4 Declaration of Officer Santos, Which Is Undermined by Circumstantial Evidence.
Where the moving party’s declaration is insufficient, there is no need to consider the sufficiency
5
of the declaration of the opposing party. Kelliher v. Kelliher (1950) 101 Cal.App.2d 226, 231-232 [225 P.2d
6
554]. Witchell v. De Korne (1986) 179 Cal. App.3d 965, 976-77. Summary judgment may be denied in the
7
discretion of the court, where the only proof of material fact offered in support of the summary judgment
8
is the declaration of someone who is the sole witness, or where a material fact is an individual’s state of
9
mind, sought to be established solely by the individual’s affirmation. Cal. Code Civ. P. § 437c(e).
10
Self-serving denials are not new to the law; nor is the practice of disproving them through evidence
11
creating a “reasonable inference” that the denial is false:
12 There is more than one way to prove the existence of a fact, and
thus more than one way to create a triable issue about the existence of that
13 fact. One way is to introduce affirmative evidence tending to show the fact
exists the testimony of someone who observed it or who observed
14 something from which the existence of the fact may be inferred. Another
15 way, however, is to introduce evidence tending to show an opponent’s
denial of the existence of the fact isto be disbelieved, that is,evidence
16 challenging the credibility of his denial. For, as a matter of common sense
as well as formal logic, to disbelieve the denial of the existence of a fact is
17 to believe in the existence of that fact. (For example, a defendant’s alibi
defense denying he was at the scene of the crime but rather was somewhere
18 else is proven false. The jury thus disbelieves his denial and instead believes
he was at the scene.)
19
This alternative form of proof becomes especially important when
20 the “fact” at issue is a party’s state of mind whether it is the party’s
psychological condition, attitudes, motives, or as in this case, his
21 knowledge. It often will be difficult for others to know what a person
knows or doesn’t know. They can’t peer into his brain and unless the party
22 tells others about what he knows there won’t be witnesses who can testify
about what is going on inside.
23
Donchin v. Guerrero (1995) 34 Cal. App.4th 1832, 1839, 1840. See also, Aguilar v. Atlantic Richfield Co. (2001)
24
25 Cal.4th 826, 857; Cellular Plus, Inc. v. Superior Court (1993) 14 Cal. App.4th 1224, 1239. When there is
25
doubt in the Court’s mind about the inferences that may reasonably be drawn from the evidence, it is the
26
duty of the court to let the case go to the jury. Ashcraft v. King (1991) 228 Cal. App.3d 604, 611.
27
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PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
(18CECG03199)
1 The MSJ relies upon the declaration of Officer Santos who asserts that he did not perceive a risk
2 of danger to the motorists on the side of the 99 Freeway. This is inconsistent with Officer Santos
3 knowledge, training, and conduct. Officer Santos’ conduct is subject to various interpretations.
4 The MSJ and Officer Santos’ Declaration ignore the fact that Officer Santos used his emergency
lights as he approached the initial crash. This was confirmed by witness Jacob Davidson. Defendants
5
never explain why Officer Santos chose to turn on his emergency lights if he did not perceive any danger.
6
Moreover, Officer Santos has admitted that he was aware from past experience that the location of the
7
stalled vehicles on the 99 Freeway was dangerous, and had ushered drivers up the offramp for this very
8
reason. There is ample reason to disbelieve Officer Santos self-serving claim that he did not, subjectively,
9
perceive any danger to motorists stopped on a narrow shoulder of a busy freeway.
10
The court is not bound to accept the self-serving declaration of Officer Santos as to his state of
11
mind when itis inconsistent with his conduct, as confirmed by an independent witness, and his past
12
practice. Violette v. Shoup (1993) 16 Cal. App.4th 611, 621. The declaration is disputed, as he does not
13 remember what he did as he approached the scene, cannot and does not deny what witness Davidson
14 saw, and thus tells not even half the story.
15 III.
16 A SPECIAL RELATIONSHIP EXISTED BETWEEN OFFICER SANTOS AND THE
17 DRIVERS ON THE SIDE OF THE FREEWAY, CREATING A DUTY OF CARE
18 While the existence of a duty is ordinarily a question of law, Ballard v. Uribe (1986) 41 Cal.3d 564,
19 572, fn. 6, where there are disputed issues of fact going to the existence of a duty, they cannot be resolved
20 at summary judgment. See, e.g., Laabs v. S. Cal. Edison Co. (2009) 175 Cal.App.4th 1260, 1278-79 (reversing
21 summary judgment on issue of duty); O’Malley v. Hospitality Staffing Solutions (2018) 20 Cal.App.5th 21, 28-
22 29 (reversing summary judgment on issue of duty: “the scope of a defendant’s duty presents a jury issue
when there is a factual dispute as to the nature of the undertaking”).
23
A. The Court Previously and Properly Found a Duty.
24
“[L]egal duties are ...merely conclusory expressions that, in cases of a particular type, liability
25
should be imposed for damage done.” Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 434.
26
Duty is simply a shorthand expression for the sum total of policy considerations favoring a conclusion
27
that the plaintiff is entitled to legal protection. Dillon v. Legg (1968) 68 Cal.2d 728, 734.
28
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PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
(18CECG03199)
1 As the Court noted in overruling Defendants’ demurrer, the complaint “sufficiently states facts
2 upon which a special relationship could be found to exist between plaintiffs and the Officer Santos.”
3 Tentative Ruling dated 10/17/2019. Defendants’ current motion recasts the same argument that the
4 Court properly rejected. The facts established in discovery confirm and amplify Garcia-Hernandez’s
allegations. To the extent that duty can be found as a matter of law, as Defendants argue, the Court has
5
already found it. This motion changes nothing.
6
B. The Law Establishes a Duty Where an Officer’s Words or Conduct Create a Special
7
Relationship.
8
A person who has not created a peril is not liable merely for failing to take affirmative steps to
9
assist or protect another unless there is some special relationship which gives rise to a duty. Rest.2d Torts § 314; 4
10
Witkin, Summary of Cal. Law (8th ed. 1974) Torts, § 554, p. 2821. A special relationship may arise when
11
the defendant engages in “an affirmative act which places the person in peril or increases the risk of harm.”
12
Williams v. State of California (1983) 34 Cal.3d 18, 24.
13 The “special relationship” doctrine applies with equal force to police officers. California courts
14 have repeatedly recognized a special relationship, giving rise to a duty to act with due care, in similar
15 circumstances. While an officer has no general duty to render assistance, a special relationship can be
16 formed when the officer does respond and creates reliance on the part of motorists.
17 In Mann v. State of California (1977) 70 Cal. App.3d 773, the court found a special relationship
18 between a C.H.P. officer and the driver of a disabled vehicle standing on the roadside due to the officer
19 stopping at the scene of the accident and using his amber emergency lights to control traffic. It held that
20 police protection immunity granted by Gov’t Code § 845, extends essentially only to protection against
21 crime and to the failure to provide assistance resulting from budgetary neglect. It does not extend to
22 negligence as such. (Id., at pp. 778-779.) The court made clear that a special relationship in tort law
obtained between a C.H.P. officer and a stranded motorist may arise by reason of the motorists’
23
dependence on the officer’s expertise. ( Id., at pp. 779-780.). Negligence arising from this relationship is
24
not subject to immunity.
25
Further, as recognized by the California Supreme Court in Williams v. State of California (1983) 34
26
Cal.3d 18, 24, “‘[a] person does not, by becoming a police officer, insulate himself from any of the basic
27
duties which everyone owes to other people ….’” (Id, at p. 24, fn. 3, citing Warren v. District of Columbia
28
(D.C. App. 1981) 444 A.2d 1, 8.) In Williams, the Supreme Court recognized that although law
-6-
PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
(18CECG03199)
1 enforcement officers, like other members of the public, generally do not have a duty to come to the aid
2 of a person, a duty does arise when an officer engages in “an affirmative act which places the person in
3 peril or increases the risk of harm.” It cited examples of conduct giving rise to such a duty. In McCorkle
4 v. Los Angeles (1969) 70 Cal.2d 252, an officer investigating an accident directed the plaintiff to follow him
into the middle of the intersection where the plaintiff was hit by another car. (Id. at p. 24.) This affirmative
5
act established a special relationship, and, thus, a duty. Further, the negligence may also be an omission
6
or failure to act, as in Morgan v. County of Yuba (1964) 230 Cal. App. 2d 938, where a deputy sheriff promised
7
to warn a decedent if a prisoner, who had made threats on her life, was released, but failed to do so. (Id.
8
at p. *). Having undertaken to provide a warning, and failing to do so, the officer was liable.
9
The Court of Appeal recognized this same principle in Whitton v. State of California (1979) 98
10
Cal.App.3d 235. There, CHP officers stopped the plaintiff’s automobile on the right shoulder of a
11
highway, parking 10 to 15 feet behind. A drunk driver subsequently struck the patrol car, propelling it
12
into the plaintiff. Although the Court of Appeal sustained the jury’s determination that, under the
13 circumstances, the officers acted with due care, it explicitly recognized that in making the stop, they had
14 a duty “to perform their official duties in a reasonable manner.” (Id. at p. 241; see also Reed v. City of San Diego
15 (1947) 77 Cal.App.2d 860, 866–867 [upholding jury verdict imposing liabilityupon police department
16 where officers’ negligence in positioning their patrol car during a traffic stop resulted in an injury to the
17 stopped motorist when a third car collided with the police vehicle].)
18 Over the past 20 years, California courts have used general tort principles to find a special
19 relationship between an officer and a citizen. A duty may arise where the evidence demonstrates “the
20 requisite factors to a finding of a special relationship, namely detrimental reliance by the plaintiff on the
21 officers’ conduct, [or on] statements made by them which induced a false sense of securit
Preview
E-FILED 3/9/2021 11:02 AM 1 Joseph M. Barrett, State Bar No. 143974 Superior Court of California jmb@agzlaw.com County of Fresno 2 George Terterian, State Bar No. 158953 By: L. Whipple, Deputy gt@agzlaw.com 3 Affeld Grivakes LLP 2049 Century Park East, Suite 2460 4 Los Angeles, California 90067 Telephone: (310) 979-8700 5 Facsimile: (310) 979-8701 6 Benjamin P. Tryk, State Bar No. 253299 ben@tryklaw.com 7 Tryk Law, P.C. 1111 East Herndon Avenue, Suite 310 8 Fresno, California 93720 Telephone: (559) 840-3240 9 Facsimile: (888) 528-5570 10 Attorneys for Plaintiffs SILVANO GARCIA HERNANDEZ, et al. 11 SUPERIOR COURT OF THE STATE OF CALIFORNIA 12 COUNTY OF FRESNO 13 14 SILVANO GARCIA-HERNANDEZ; PAULA Case No.: 18CECG03399 15 MARTINEZ SANTIAGO; and CESAR GARCIA MARTINEZ, NOEMI GARCIA MARTINEZ, PLAINTIFFS’ OPPOSITION TO 16 and NAYELI GARCIA MARTINEZ, Minors by DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 17 and through their Guardian ad Litem, PAULA MARTINEZ SANTIAGO, [Filed concurrently with Plaintiffs’ Responsive 18 Statement to Defendants’ Separate Statement of Plaintiffs, Undisputed Facts, Declarations of Benjamin Tryk 19 vs. and Brian Brewer; and Index of Exhibits] 20 STATE OF CALIFORNIA; CALIFORNIA HIGHWAY PATROL; ABRAHAM SANTOS; 1. Date: March 23, 2021 21 2. Time: 3:30 p.m. and DOES 1-100, Inclusive 3. Dept.: 502 22 4. ______________________________________ Defendants. Complaint filed on September 11, 2018 23 Case Assigned to Judge McGuire, Dept. 502 ______________________________________ 24 Comes now the Plaintiffs who hereby Oppose Defendants California Highway Patrol and Officer 25 Abraham Santos’ Motion for Summary Judgment or alternatively, Motion for Summary Adjudication for 26 the following reasons: 27 (1) Officer Santos owed a duty to the Plaintiffs, which he created by his choice in response 28 to the dangerous crash scene to approach with his emergency lights on, causing the traffic all -i- PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (18CECG03199) 1 around him to slow down and move away from the Plaintiffs and others on the dangerous 2 shoulder of the highway, creating a “zone of safety.” 3 (2) Officer Santos then breached his duty owed to the Plaintiffs when he chose to drive right 4 by them – abandoning this zone of safety and instantly making the situation incredibly dangerous. A jury could reasonably conclude that this was a cause of the harm to the Plaintiffs resulting 5 from the horrible crash into their vehicle by Ronald Mack’s vehicle. 6 (3) The C.H.P. created a special relationship to protect the Plaintiffs once the C.H.P. Officer 7 chose to activate his emergency lights, creating this “zone of safety” that protected Plaintiffs and 8 which they relied upon, which was then negligently abandoned; 9 (4) Because Officer Santos was negligent in performing his duties while employed by the 10 State of California Highway Patrol, he is not immune from liability; 11 (5) The California Highway Patrol is liable for the damages caused to the Plaintiffs under the 12 doctrine of respondeat superior. 13 Plaintiffs’ opposition shall be based on the attached Memorandum of Points & Authorities, the 14 attached declarations of Benjamin Tryk and Brian Brewer, and the evidence and case law, the pleadings, 15 documents, records, and files in this action, and such oral and documentary evidence and argument which 16 may be presented at the hearing on this motion. 17 18 Dated: March 9, 2021 Respectfully submitted, 19 20 By: ______________________________________ Joseph M. Barrett, Esq. 21 George Terterian, Esq. AFFELD GRIVAKES LLP 22 Benjamin P. Tryk, Esq. 23 TRYK LAW, P.C. 24 Attorneys for Plaintiffs SILVANO GARCIA HERNANDEZ, et al. 25 26 27 28 - ii - PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (18CECG03199) TABLE OF CONTENTS 1 Page 2 3 TABLE OF AUTHORITIES….…………………………………………………………………..…iv 4 MEMORANDUM OF POINTS AND AUTHORITIES…………………………………………….1 5 I. INTRODUCTION…………………………………………………………………...1 6 II. THE APPLICABLE STANDARD FOR RULING ON A SUMMARY JUDGMENT 7 IS LIBERAL CONSTRUCTION………………………………………………….......3 8 III. THERE WAS A SPECIAL RELATIONSHIP THAT CREATED 9 A DUTY OF CARE OWED BY CHP OFFICER SANTOS TO 10 PLAINTIFFS. THEREFORE, THE STATE AND OFFICER 11 12 SANTOS ARE RESPONSIBLE FOR THE HARM THAT WAS CAUSED 13 DUE TO THEIR BREACH OF DUTY OWED…………………………………….4 14 IV. CALIFORNIA COURTS ALSO LOOK TO THE 15 ROWLAND V. CHRISTIAN ANALYSIS TO DETERMINE IF A 16 DUTY IS OWED BY THE C.H.P…………………………………………………..11 17 V. CONCLUSION………………………………………………….…………………..16 18 19 20 21 22 23 24 25 26 27 28 - iii - PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (18CECG03199) TABLE OF AUTHORITIES 1 CASE LAW Page 2 3 Camp v. State of California (2010) 184 Cal.App.4th 967, 970………………………………………………………..………2 4 Stevens v. Sup. Ct. (API Auto Ins. Services) 5 (1999) 75 Cal.App.4th 594, 601…………………………………………………………...…1, 2 6 Gressley v. Williams 7 (1961) 193 Cal.App.2d 636, 639………………………………………………………..………1 8 Addiego v. Hill (1965) 238 Cal.App.2d 842………………………………………....………………..…………2 9 Buss v. J.O. Martin Co. 10 (1966) 241 Cal.App.2d 123, 133-34…………………………………………...…………..……2 11 Credit Managers Association of Southern California v. Superior Court 12 (1975) 51 Cal.App.3d 352, 361………………………………………………………..………..2 13 Blatty v. New York Times Co. (1986) 42 Cal. 3d 1033, 1040………………………………………………………..………….2 14 Stop Youth Addiction, Inc. v. Lucky Stores, Inc. 15 (1998) 17 Cal. 4th 553, 558………………………………………………………..……….…...2 16 Perdue v. Crocker Natl. Bank 17 (1985) 38 Cal. 3d 913, 922………………………………………………………..…………….2 18 Stevens v. Superior Court (1986) 180 Cal. App. 3d 605, 609-10………………………………………………………...…2 19 Dubins v. Regents of Univ. of Cal. 20 (1994) 25 Cal. App. 4th 77, 82………………………………………………………..………...2 21 Jack Heskett Lincoln-Mercury, Inc. v. Metcalf 22 (1984) 158 Cal. App. 3d 38, 41………………………………………………………..………..2 23 Platt v. Coldwell Banker Residential Real Estate Servs. (1990) 217 Cal. App. 3d 1439, 1444………………………………………………………..…...2 24 25 Blank v. Kirwan (1985) 39 Cal. 3d 311, 318 (1985)………………………………………………………..……..2 26 Quelimane Co. v. Stewart Title Guaranty Co. 27 (1998) 19 Cal.4th 26, 38-39………………………………………………………..…………....2 28 - iv - PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (18CECG03199) Ballard v. Uribe 1 (1986) 41 Cal.3d 564, 572, fn. 6……………………..……………………………….…...……4 2 Stout v. City of Porterville 3 (1983) 148 Cal.App.3d 940, 942………………………………………………………..………4 4 Peter W. v. San Francisco Unified Sch. Dist. (1976) 60 Cal.App.3d 814, 822………………………………………....………………..……...4 5 Raymond v. Paradise Unified School Dist. 6 (1963) 218 Cal.App.2d 1, 8…………………………………………...…………..…………….4 7 Tarasoff v. Regents of University of California 8 (1976) 17 Cal.3d 425, 434………………………………………………………...……….…4, 8 9 Dillon v. Legg (1968) 68 Cal.2d 728, 734………………………………………………………..………….4, 12 10 Mann v. State of California 11 (1977) 70 Cal. App.3d 773…………………….………………………………4, 6, 7, 8, 9, 12, 13 12 Williams v. State of California 13 (1983) 34 Cal.3d 18, 24………………………………………………………..…….4, 5, 6, 7, 12 14 McCorkle v. Los Angeles (1969) 70 Cal.2d 252…………………………………………………………………..5, 6, 8, 12 15 16 Morgan v. County of Yuba (1964) 230 Cal. App. 2d 938………………………………………………………..………….5 17 Whitton v. State of California 18 (1979) 98 Cal.App.3d 235………………………………………………………..…………….5 19 Reed v. City of San Diego (1947) 77 Cal.App.2d 860, 866–867 …………………………………………………….....…..5 20 21 Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764………………………………………………………..…………………6 22 Bigbee v. Pacific Tel. & Tel. Co. 23 (1983) 34 Cal.3d 49, 58………………………………………………………..……………….6 24 Adams v. City of Fremont 25 (1998) 68 Cal.App.4th 243, 284………………………………………………………..………6 26 M.B. v. City of San Diego (1991) 233 Cal.App.3d 699, 704-705…………………………………………………………..7 27 Walker v. County of Los Angeles 28 (1987) 192 Cal.App.3d 1393, 1398………………………………………………………..…...7 -v- PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (18CECG03199) 1 McCarthy v. Frost (1973) 33 Cal.App.3d 872, 875………………………………………………………..……….8 2 3 Sava v. Fuller (1967) 249 Cal.App.2d 281, 291…………………………………………………………....8, 14 4 Rowland v. Christian 5 (1968) 69 Cal. 2d 108, 112……………………………………………………….……..9, 10, 12 6 Lipson v. Superior Court 7 (1982) 31 Cal.3d 362, 372-373…………………………………………………….…..………..9 8 Dutton v. City of Pacifica (1995) 35 Cal.App.4th 1171, 1175–1176………………………………………….….……...9, 10 9 Shelton v. City of Westminster 10 (1982) 138 Cal.App.3d 610, 616–619………………………………………………….………..9 11 Thompson v. County of Alameda 12 (1980) 27 Cal.3d 741, 750………………………………………………………..……………10 13 Lugtu v. California Highway Patrol (2001) 26 Cal.4th 703, 716………………………………………………………..…………...12 14 Parsons v. Crown Disposal Co. 15 (1997) 15 Cal.4th 456, 472………………………………………………………..…………...12 16 Davidson v. City of Westminster, 17 (1982) 32 Cal.3d 203–209………………………………………………………..………..12, 13 18 Nally v. Grace Community Church (1988) supra, 47 Cal.3d 278, 293–300…………………………………………………………13 19 Hernandez v. City of Pomona 20 (1996) 49 Cal.App.4th 1492, 1498–1505……………………………………………………....13 21 Hartzler v. City of San Jose 22 (1975) 46 Cal.App.3d 6, 10………………………………………………………..…………..13 23 Harris v. Smith (1984) 157 Cal.App.3d 100, 107–109…………………………………………………………13 24 25 Lushbaugh v. Home Depo U.S.A., Inc. (2001) 93 Cal.App.4th 1159, 1164………………………………………………………………3 26 Oates v. City of Lincoln 27 (2001) 93 Cal.App.4th 25, 30…………………………………………………………………...3 28 City of Oceanside v. Superior Court (2000) 81 Cal.App.4th 269, 273…………………………………………3 - vi - PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (18CECG03199) 1 Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 395………………………………………………….3 2 Molko v. Holy Spirit Ass’n (1988) 46 Cal.3d 1092, 1107…………………………………………………..3 3 Schwoerer v. Union Oil Co. (1993) 14 Cal.App.4th 103, 110……………..…………………………………3 4 Versa Technologies, Inc. v. Superior Court (1978) 78 Cal.App.3d 237, 142…………………………………..3 5 6 7 STATUTES 8 Code of Civil Procedure § 437c………………………………………………………………………..3 9 Code of Civil Procedure § 437c(c)……………………………………………………………………..3 10 Government Code § 820.2…………………………………………………………..……………..8, 14 11 Government Code § 845………………………………………………………..………………….....14 12 Civil Code § 1714 subd. (a)……………………………………………………………………….…...9 13 Government Code § 815.2 subds.(a)(b)………………………………………………………………14 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - vii - PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (18CECG03199) MEMORANDUM OF POINTS & AUTHORITIES 1 I. 2 INTRODUCTION. 3 Summary judgment cannot be granted herein because there are disputed issues of fact going to 4 duty and breach, which preclude judgment as a matter of law. The Court resolved the legal issue of duty 5 on Defendants’ demurrer, finding that the facts support a legal duty. These facts have been confirmed 6 and amplified in discovery. Defendants offer nothing to change the Court’s prior ruling or thoughtful 7 analysis. 8 On July 23, 2018, C.H.P. Officer Abraham Santos responded to a non-injury crash on a very 9 dangerous section of the northbound 99 Freeway in the Fresno near the Belmont exit. Officer Santos 10 knew that this was dangerous area. The traffic was urban, heavy traffic, moving at freeway speeds, with a 11 narrow 8-foot shoulder, and a steep hill right next to it, leaving stranded motorists nowhere to go if an 12 errant vehicle approached. In fact, Officer Santos always led people off the freeway and up the nearby 13 off-ramp for Belmont Avenue to avoid this very danger. 14 Officer Santos approached the scene on his C.H.P.–issued Harley Davidson with emergency lights 15 on and flashing. As intended, this caused the vehicles around him to slow down and move away from the people and vehicles on the right shoulder. After waiting for the C.H.P. for over 30 minutes, the drivers 16 on the side of the freeway, including plaintiff Silvano Garcia-Hernandez (“Garcia-Hernandez”), relied on 17 the “zone of safety” created by Officer Santos’ arrival with his lights flashing. They breathed a sigh of 18 relief that the C.H.P. finally arrived and they were safe. 19 After making clear that he was coming to the scene to provide assistance, however, Officer Santos 20 chose to drive right by—in violation of standard police practice— abandoning this “zone of safety” he 21 created. He did not instruct them to get back into their cars or to move to a safer location. He did not 22 usher them off the freeway using his vehicle, his command presence, and emergency safety features. 23 Instead he chose to drive past them and park his vehicle ahead of the crash site, so that his flashing amber 24 lights were no longer visible to freeway traffic. In doing so, he significantly increased the risk of a 25 secondary crash, exposing the people and vehicles on the roadside to the danger of approaching vehicles, 26 which quickly resumed freeway speeds. Then the foreseeable happened—an errant vehicle driving on the 27 freeway slammed into Garcia-Hernandez’s vehicle, crushing him in front of his wife and children. 28 -1- PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (18CECG03199) 1 C.H.P. officers are trained to use their best judgment in response to crashes. Due to the severe 2 and foreseeable risk to motorists stranded on the freeway, they are also trained to immediately respond to 3 calls for service on freeways and to think in advance about a plan for the response, utilizing the best 4 practices to provide safety. In their MSJ brief and supporting authorities, Defendants rely heavily on a supposed unwritten “policy” which allows their C.H.P. Officers to park in front of crashes. They neglect 5 that in the circumstances—i.e., motorists stranded on the side of the highway—standard practice and the 6 C.H.P.’s own training materials show that the officer must take precautions to ensure that the motorists 7 are safe before parking his vehicle to inspect the crash. In short, Defendants ignore the actual evidence. 8 The actual evidence is that Officer Santos knew this was an incredibly dangerous area when he 9 began his response. Officer Santos activated his emergency lights which caused a “zone of safety” to 10 protect Garcia-Hernandez, which he relied upon to his detriment. This critical evidence is not mentioned 11 in Defendants’ motion. Officer Santos had many safety options available, using his “command presence” 12 to wave the people up the off-ramp right in front of them, using his vehicle as a barrier to avoid a 13 secondary crash, parking next to them and directing them off the freeway, dropping emergency flares, or 14 merely leaving his emergency lights on and visible to traffic. As explained in the Declaration of Brian 15 Brewer, ¶14, an eminently qualified expert in police safety, Officer Santos had ample tools at his disposal 16 to protect Garcia-Hernandez and chose, for unknown reasons, not to use any of them (except the 17 emergency lights). 18 Factual disputes abound in this case. It is either error or fantasy that leads Defendants argue that 19 “Officer Santos slowed his motorcycle down and pulled in front of the stopped vehicles. This was 20 done to create a barrier in the event of an errant driver.” Defendants are correct that Officer Santos 21 could have and should have used his vehicle as a barrier. But parking in front of the crashed vehicles, and 22 away from the freeway, is not a way to do it. The risk of errant vehicles was from the 99 Freeway, not from further up the highway shoulder towards the exit ramp, where Officer Santos parked. As Defendants 23 effectively concede, Officer Santos parked ahead of the vehicles not to provide protective barrier for the 24 drivers, but to use the crashed vehicles as a protective barrier for his motorcycle. This violated police 25 training and standard practice and amounted to negligence. 26 The Court has already addressed the legal issue presented by Defendants’ motion, finding on their 27 demurrer that Plaintiffs have alleged sufficient facts to show a duty on the part of Officer Santos under 28 -2- PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (18CECG03199) 1 the “special relationship” doctrine. These facts have been borne out (and then some) in discovery. 2 Defendants simply repeat the same legal argument that the Court properly rejected. 3 Defendants do not contest that our California Supreme Court has found that the C.H.P. owes 4 members of the motoring public a duty of care in proper circumstances. Their theory that no duty arose in this case is wrong. While an officer will not be liable for his “failure to respond to a request for 5 assistance,” if he does respond and creates a “zone of safety” for stranded motorists, he cannot simply 6 abandon that “zone of safety” and leave them exposed to a secondary crash. Camp v. State of California 7 (2010) 184 Cal.App.4th 967, 970. Once a traffic officer has chosen to respond to the plight of specific 8 persons, and informed himself of foreseeable danger from passing traffic, he assumes a duty to protect 9 them by readily available means before abandoning them. As the Court already determined, liability may 10 attach if the officer fails to comply with this limited duty. 11 The facts plead in the Second Amended Complaint (“SAC”) and supported by the evidence 12 submitted are specific and establish a cause of action against these defendants (see,SAC ¶¶11-25). 13 Defendant’s motion for summary judgment must be denied. 14 II. 15 THE APPLICABLE STANDARD FOR A MOTION FOR SUMMARY JUDGMENT. 16 A. Summary Judgment Is a Drastic Remedy to Be Used Sparingly. 17 Summary judgment is a drastic procedure because it denies the opposing party the right to trial, 18 and therefore, it should be used with caution. Lushbaugh v. Home Depo U.S.A., Inc. (2001) 93 Cal.App.4th 19 1159, 1164; Bahl v. Bank of America (2001) 89 Cal. App.4th 389, 395; Molko v. Holy Spirit Assn. (1988) 46 20 Cal.3d 1092, 1107. All doubts as to whether any material triable issues of fact exist are to be resolved in 21 favor of the party opposing summary judgment. Oates v. City of Lincoln (2001) 93 Cal.App.4th 25, 30; City 22 of Oceanside v. Superior Court (2000) 81 Cal.App.4th 269, 273. “Summary judgment is appropriate only if the evidence shows there is no triable issue of any 23 material fact, and that the moving party is entitled to judgment as a matter of law. The court’s obligation 24 in ruling on a summary judgment motion is merely to identify issues of fact, not to decide them itself. 25 When making this determination, the trial court must strictly construe the affidavits of the moving party, 26 and liberally construe those of the opponent.” Schwoerer v. Union Oil Co. (1993) 14 Cal.App.4th 103, 110. 27 Further, the Court must consider not only the direct evidence presented, but also reasonable inferences 28 to be drawn therefrom in favor of the opposing party. Code Civ. Proc. § 437c(c). California law is clear -3- PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (18CECG03199) 1 that if there is even a single triable issue of material fact, a motion for summary judgment must be denied. 2 Versa Technologies, Inc. v. Superior Court (1978) 78 Cal.App.3d 237, 142. 3 B. Summary Judgment May Not Be Granted Based Solely on the Self-Serving 4 Declaration of Officer Santos, Which Is Undermined by Circumstantial Evidence. Where the moving party’s declaration is insufficient, there is no need to consider the sufficiency 5 of the declaration of the opposing party. Kelliher v. Kelliher (1950) 101 Cal.App.2d 226, 231-232 [225 P.2d 6 554]. Witchell v. De Korne (1986) 179 Cal. App.3d 965, 976-77. Summary judgment may be denied in the 7 discretion of the court, where the only proof of material fact offered in support of the summary judgment 8 is the declaration of someone who is the sole witness, or where a material fact is an individual’s state of 9 mind, sought to be established solely by the individual’s affirmation. Cal. Code Civ. P. § 437c(e). 10 Self-serving denials are not new to the law; nor is the practice of disproving them through evidence 11 creating a “reasonable inference” that the denial is false: 12 There is more than one way to prove the existence of a fact, and thus more than one way to create a triable issue about the existence of that 13 fact. One way is to introduce affirmative evidence tending to show the fact exists the testimony of someone who observed it or who observed 14 something from which the existence of the fact may be inferred. Another 15 way, however, is to introduce evidence tending to show an opponent’s denial of the existence of the fact isto be disbelieved, that is,evidence 16 challenging the credibility of his denial. For, as a matter of common sense as well as formal logic, to disbelieve the denial of the existence of a fact is 17 to believe in the existence of that fact. (For example, a defendant’s alibi defense denying he was at the scene of the crime but rather was somewhere 18 else is proven false. The jury thus disbelieves his denial and instead believes he was at the scene.) 19 This alternative form of proof becomes especially important when 20 the “fact” at issue is a party’s state of mind whether it is the party’s psychological condition, attitudes, motives, or as in this case, his 21 knowledge. It often will be difficult for others to know what a person knows or doesn’t know. They can’t peer into his brain and unless the party 22 tells others about what he knows there won’t be witnesses who can testify about what is going on inside. 23 Donchin v. Guerrero (1995) 34 Cal. App.4th 1832, 1839, 1840. See also, Aguilar v. Atlantic Richfield Co. (2001) 24 25 Cal.4th 826, 857; Cellular Plus, Inc. v. Superior Court (1993) 14 Cal. App.4th 1224, 1239. When there is 25 doubt in the Court’s mind about the inferences that may reasonably be drawn from the evidence, it is the 26 duty of the court to let the case go to the jury. Ashcraft v. King (1991) 228 Cal. App.3d 604, 611. 27 28 -4- PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (18CECG03199) 1 The MSJ relies upon the declaration of Officer Santos who asserts that he did not perceive a risk 2 of danger to the motorists on the side of the 99 Freeway. This is inconsistent with Officer Santos 3 knowledge, training, and conduct. Officer Santos’ conduct is subject to various interpretations. 4 The MSJ and Officer Santos’ Declaration ignore the fact that Officer Santos used his emergency lights as he approached the initial crash. This was confirmed by witness Jacob Davidson. Defendants 5 never explain why Officer Santos chose to turn on his emergency lights if he did not perceive any danger. 6 Moreover, Officer Santos has admitted that he was aware from past experience that the location of the 7 stalled vehicles on the 99 Freeway was dangerous, and had ushered drivers up the offramp for this very 8 reason. There is ample reason to disbelieve Officer Santos self-serving claim that he did not, subjectively, 9 perceive any danger to motorists stopped on a narrow shoulder of a busy freeway. 10 The court is not bound to accept the self-serving declaration of Officer Santos as to his state of 11 mind when itis inconsistent with his conduct, as confirmed by an independent witness, and his past 12 practice. Violette v. Shoup (1993) 16 Cal. App.4th 611, 621. The declaration is disputed, as he does not 13 remember what he did as he approached the scene, cannot and does not deny what witness Davidson 14 saw, and thus tells not even half the story. 15 III. 16 A SPECIAL RELATIONSHIP EXISTED BETWEEN OFFICER SANTOS AND THE 17 DRIVERS ON THE SIDE OF THE FREEWAY, CREATING A DUTY OF CARE 18 While the existence of a duty is ordinarily a question of law, Ballard v. Uribe (1986) 41 Cal.3d 564, 19 572, fn. 6, where there are disputed issues of fact going to the existence of a duty, they cannot be resolved 20 at summary judgment. See, e.g., Laabs v. S. Cal. Edison Co. (2009) 175 Cal.App.4th 1260, 1278-79 (reversing 21 summary judgment on issue of duty); O’Malley v. Hospitality Staffing Solutions (2018) 20 Cal.App.5th 21, 28- 22 29 (reversing summary judgment on issue of duty: “the scope of a defendant’s duty presents a jury issue when there is a factual dispute as to the nature of the undertaking”). 23 A. The Court Previously and Properly Found a Duty. 24 “[L]egal duties are ...merely conclusory expressions that, in cases of a particular type, liability 25 should be imposed for damage done.” Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 434. 26 Duty is simply a shorthand expression for the sum total of policy considerations favoring a conclusion 27 that the plaintiff is entitled to legal protection. Dillon v. Legg (1968) 68 Cal.2d 728, 734. 28 -5- PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (18CECG03199) 1 As the Court noted in overruling Defendants’ demurrer, the complaint “sufficiently states facts 2 upon which a special relationship could be found to exist between plaintiffs and the Officer Santos.” 3 Tentative Ruling dated 10/17/2019. Defendants’ current motion recasts the same argument that the 4 Court properly rejected. The facts established in discovery confirm and amplify Garcia-Hernandez’s allegations. To the extent that duty can be found as a matter of law, as Defendants argue, the Court has 5 already found it. This motion changes nothing. 6 B. The Law Establishes a Duty Where an Officer’s Words or Conduct Create a Special 7 Relationship. 8 A person who has not created a peril is not liable merely for failing to take affirmative steps to 9 assist or protect another unless there is some special relationship which gives rise to a duty. Rest.2d Torts § 314; 4 10 Witkin, Summary of Cal. Law (8th ed. 1974) Torts, § 554, p. 2821. A special relationship may arise when 11 the defendant engages in “an affirmative act which places the person in peril or increases the risk of harm.” 12 Williams v. State of California (1983) 34 Cal.3d 18, 24. 13 The “special relationship” doctrine applies with equal force to police officers. California courts 14 have repeatedly recognized a special relationship, giving rise to a duty to act with due care, in similar 15 circumstances. While an officer has no general duty to render assistance, a special relationship can be 16 formed when the officer does respond and creates reliance on the part of motorists. 17 In Mann v. State of California (1977) 70 Cal. App.3d 773, the court found a special relationship 18 between a C.H.P. officer and the driver of a disabled vehicle standing on the roadside due to the officer 19 stopping at the scene of the accident and using his amber emergency lights to control traffic. It held that 20 police protection immunity granted by Gov’t Code § 845, extends essentially only to protection against 21 crime and to the failure to provide assistance resulting from budgetary neglect. It does not extend to 22 negligence as such. (Id., at pp. 778-779.) The court made clear that a special relationship in tort law obtained between a C.H.P. officer and a stranded motorist may arise by reason of the motorists’ 23 dependence on the officer’s expertise. ( Id., at pp. 779-780.). Negligence arising from this relationship is 24 not subject to immunity. 25 Further, as recognized by the California Supreme Court in Williams v. State of California (1983) 34 26 Cal.3d 18, 24, “‘[a] person does not, by becoming a police officer, insulate himself from any of the basic 27 duties which everyone owes to other people ….’” (Id, at p. 24, fn. 3, citing Warren v. District of Columbia 28 (D.C. App. 1981) 444 A.2d 1, 8.) In Williams, the Supreme Court recognized that although law -6- PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (18CECG03199) 1 enforcement officers, like other members of the public, generally do not have a duty to come to the aid 2 of a person, a duty does arise when an officer engages in “an affirmative act which places the person in 3 peril or increases the risk of harm.” It cited examples of conduct giving rise to such a duty. In McCorkle 4 v. Los Angeles (1969) 70 Cal.2d 252, an officer investigating an accident directed the plaintiff to follow him into the middle of the intersection where the plaintiff was hit by another car. (Id. at p. 24.) This affirmative 5 act established a special relationship, and, thus, a duty. Further, the negligence may also be an omission 6 or failure to act, as in Morgan v. County of Yuba (1964) 230 Cal. App. 2d 938, where a deputy sheriff promised 7 to warn a decedent if a prisoner, who had made threats on her life, was released, but failed to do so. (Id. 8 at p. *). Having undertaken to provide a warning, and failing to do so, the officer was liable. 9 The Court of Appeal recognized this same principle in Whitton v. State of California (1979) 98 10 Cal.App.3d 235. There, CHP officers stopped the plaintiff’s automobile on the right shoulder of a 11 highway, parking 10 to 15 feet behind. A drunk driver subsequently struck the patrol car, propelling it 12 into the plaintiff. Although the Court of Appeal sustained the jury’s determination that, under the 13 circumstances, the officers acted with due care, it explicitly recognized that in making the stop, they had 14 a duty “to perform their official duties in a reasonable manner.” (Id. at p. 241; see also Reed v. City of San Diego 15 (1947) 77 Cal.App.2d 860, 866–867 [upholding jury verdict imposing liabilityupon police department 16 where officers’ negligence in positioning their patrol car during a traffic stop resulted in an injury to the 17 stopped motorist when a third car collided with the police vehicle].) 18 Over the past 20 years, California courts have used general tort principles to find a special 19 relationship between an officer and a citizen. A duty may arise where the evidence demonstrates “the 20 requisite factors to a finding of a special relationship, namely detrimental reliance by the plaintiff on the 21 officers’ conduct, [or on] statements made by them which induced a false sense of securit