Motion for Summary Judgment

The court considered the moving papers. No opposition was filed.


On April 20, 2017, plaintiffs Carolina Padilla Lopez and Ona St. George, a minor by and through her guardian ad litem, Ryan St. George, (“Plaintiffs”) filed a complaint against defendants Colin Wayne Erwin, Susanne Kerstin Birgitt Von den Stemmen, and VW Credit, Inc. for motor vehicle negligence based on an incident that occurred on July 17, 2015, when Plaintiffs were on their bicycles.

On December 13, 2017, defendant Colin Wayne Erwin filed a cross-complaint against plaintiff Carolina Padilla Lopez and defendants VW Credit, Inc. and Susanne Kerstin Birgitt von Den Stemmen seeking implied indemnity, contribution, and declaratory in relation to the July 17, 2015 incident.

Trial is set for May 29, 2019.


Defendants VW Credit, Inc. and Susanne Kerstin Birgitt von Den Stemmen (“Moving Defendants”) request this court for an order granting Moving Defendants’ motion for summary judgment against: (1) Plaintiffs’ complaint and (2) defendant Erwin’s cross-complaint.


The purpose of a motion for summary judgment “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established.” (Code Civ. Proc., § 437c, subd. (p)(2).) “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Id.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467.)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi, supra, 159 Cal.App.4th at p. 467; see also Code Civ. Proc., § 437c(c).)


“A defendant’s conduct is a cause in fact of the plaintiff’s injury if it was a substantial factor in bringing about the injury.” (Gordon v. Havasu Palms, Inc. (2001) 93 Cal.App.4th 244, 252; see also Mitchell v. Gonzales (1991) 54 Cal.3d 1041, 1049.) “Causation is ordinarily a question of fact but[,] where the facts are such that only one reasonable conclusion is an absence of causation, the question is one of law, not of fact.” (Novak v. Continental Tire North America (2018) 22 Cal.App.5th 189, 197 (quotations and citation omitted).)

Moving Defendant’s undisputed material facts establish the following. Plaintiff Lopez was riding her bicycle with Plaintiff George in a child seat attached to the rear of the bicycle when Defendant Erwin’s vehicle collided into Plaintiffs’ bicycle. (UMF Nos. 2, 4, 22, pp. 2:4-2:15, 2:19-2:24, 6:27-7:5.) Plaintiff Lopez does not recall seeing the vehicle that struck her before the incident occurred. (UMF No. 9, p. 3:18-3:23.) Plaintiffs allege defendant Stemmen was negligent for parking on a solid white parking line marking the bicycle path that Plaintiffs were traveling on, impeding defendant Erwin’s view of Plaintiffs prior to the collision. (UMF Nos. 33, 35, pp. 9:21-10:18, 10:27-12:5.) Plaintiffs allege defendant VW Credit, Inc. is liable to Plaintiffs for defendant Stemmen’s negligence because: (1) defendant Stemmen was working for defendant VW Credit, Inc. at the time of the incident and (2) defendant VW Credit, Inc. is the registered owner of the wrongfully parked vehicle. (UMF No. 35, pp. 10:27-12:5.)

Moving Defendants undisputed material facts also establish the following. Moving Defendants were not cited for being parked further than 18 inches from the curb. (UMF No. 42, p. 14:16-14:21.) Defendant Erwin contends that Defendant Stemmen violated California Vehicle Code section 22502. (UMF No. 46, p. 15:13-15:23.)

Moving Defendants have submitted a declaration of accident reconstructionist Philip S. Wang in support of the motion for summary judgment. Philip S. Wang’s opinion is based on a review of the relevant traffic report, photographs taken of the scene, defendant Erwin’s, plaintiff Lopez’s, witness Ms. Roe’s, and witness Mr. Smith’s deposition transcripts, and a video recording of the incident. (Wang Decl., ¶¶ 3, 9.) Philip S. Wang opined that the position of Moving Defendants’ vehicle provided 121 feet between Plaintiffs and Defendant Erwin once there was an unobstructed view. (Wang Decl., ¶¶ 9.a.-9.g.) Philip S. Wang also opined that if Defendant Erwin was traveling at 15 miles per hour, in accordance with his deposition testimony, he could have avoided the impact. (Wang Decl., ¶ 10.) Thus, the positioning of Moving Defendants’ vehicle had no bearing on the collision. (Wang Decl., ¶ 10.)

Moving Defendants have also submitted a declaration of human factors analyst David A. Krauss, Ph.D. in support of the motion for summary judgment. David A. Krauss, Ph.D.’s opinion is based on his experience, analyses, education training, Philip S. Wang’s analysis, and facts contained within the video footage of the accident, and the relevant traffic report. (Krauss Decl., ¶ 7-7b.) David A. Krauss, Ph.D. opined that the presence of Moving Defendants’ vehicle cannot provide an explanation for the two parties’ failure to perceive each other and avoid the collision. (Krauss Decl., ¶ 8.a.) David A. Krauss, Ph.D also opined that the position of Moving Defendants’ vehicle did not prevent Plaintiffs from safely monitoring for approaching traffic before entering the path of travel for vehicles. (Krauss Decl., ¶ 8.b.)

The court finds that David A. Krauss, Ph.D.’s opinion is hearsay as it relates to case-specific out-of-court statements of Philip S. Wang and treats those statements as true and accurate to support David A. Krauss, Ph.D.’s opinion. Moving Defendants have not argued this opinion is subject to a hearsay exception and the court is unaware of a hearsay exception that applies in this context.

To the extent that Philip S. Wang’s reliance upon a hypothetical fact that Moving Defendants’ vehicle was 18 inches away from the curb is misplaced. This is because Philip S. Wang opined that there was a distance of about 26 inches between the right front tire of Moving Defendants’ vehicle and the curb and there was a distance of about 19 inches from the rear right tire of Moving Defendants’ vehicle and the curb. (Wang Decl., ¶ 9.e.) Nevertheless, Philip S. Wang’s opinion appears to rely upon this hypothetical fact in sections of his declarations that this court does not consider. Rather, the portions of Philip S. Wang’s declaration that this court does consider appear to rely on the findings that there was a distance of about 26 inches between the right front tire of Moving Defendants’ vehicle and the curb and there was a distance of about 19 inches from the rear right tire of Moving Defendants’ vehicle and the curb.

The court finds that Moving Defendants have met their burden. Philip S. Wang’s declaration demonstrates that defendant Erwin had enough time to stop before colliding into Plaintiffs regardless of the positioning of Moving Defendants’ vehicle. Accordingly, the collision would have occurred regardless of any breach of a duty of care that Moving Defendants owed to Plaintiffs due to the positioning of Moving Defendants’ vehicle.

Therefore, Moving Defendants have demonstrated that there is no triable issue of material fact regarding causation because the only reasonable conclusion that can be drawn is that Moving Defendants breach of a duty did not substantially cause damages to Plaintiffs.

Moving Defendants’ motion is GRANTED.

Moving Defendants are ordered to give notice of this ruling.