DAMIEN THOMAS TAYLOR VS. JOSE LUIS GUTIERREZ, ET AL.

MAY 18, 2026 LAW AND MOTION CALENDAR PAGE 2 JUDGE: HONORABLE DAVID A. SILBERMAN, DEPARTMENT 11 ________________________________________________________________________ Case Title / Nature of Case

02:00 PM 23-CIV-00266 DAMIEN THOMAS TAYLOR VS. JOSE LUIS GUTIERREZ, ET AL. LINE 1

DAMIEN THOMAS TAYLOR HOUMAN SAYAGHI JOSE LUIS GUTIERREZ MICHAEL SCHONBUCH

DEFENDANT: JOSE GUTIERREZ AND KIEWIT INFRASTRUCTURE WEST CO.’S MOTION FOR SUMMARY JUDGMENT

TENTATIVE RULING: MOTION FOR SUMMARY JUDGMENT DENIED

Defendants Joe Luis Gutierrez’s and Kiewit Infrastructure West Co.’s Motion for Summary Judgment is DENIED.

Defendants Joe Luis Gutierrez and Kiewit Infrastructure West Co. (“Kiewit”) move for summary judgment on the Complaint of Damien Thomas Taylor, which alleges Taylor was injured when he and his motorcycle were struck by a truck driven by Gutierrez during the course and scope of the latter’s employment with Kiewit. (See Jan. 20, 2023 Complaint, pp. 4–6.)

In exercise of its discretion, the Court has considered the untimely opposition as well as defendants’ reply. It is of note that the evidence requiring denial of this motion appears in the of defendants’ own moving evidence.

Gutierrez and Kiewit contend that the accident occurred when Taylor collided with the truck when he attempted to pass it at speed on the right after the truck had signaled and initiated a right turn, such that no duty of care was breached nor any defendant the cause of the accident, relying on a plethora of evidence including: sworn statements from Gutierrez, a responding law enforcement officer, the traffic collision report, photographs and video of the scene, and the declaration of an accident reconstruction expert, inter alia. (Oct. 2, 2025 Separate Statement, nos. 6, 10–14, 17–20.). They argue that these facts are both material and undisputed.

However, Taylor’s sworn statement(s) is that his motorcycle was stopped on the side of the road at the time of the accident and that Gutierrez struck him, which directly disputes these facts. (May 8, 2025 Separate Statement, nos. 6, 10–14, 17–20.)

Gutierrez and Kiewit contend this testimony should be disregarded, citing to cases applying the rule set forth in D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 22. However, the “sham affidavit” rule does not apply here— Gutierrez and Kiewit have not shown that Taylor has contradicted “verified admissions”. Nor is Taylor’s testimony based on speculation or conjecture—it is based on his personal knowledge. Credibility cannot be assessed, nor evidence weighed, on a motion for summary judgment.

Therefore, Gutierrez and Kiewit have failed to carry their burden of establishing that no issues of material fact exist to be tried, and the motion accordingly must be denied.

If the tentative ruling is uncontested, it shall become the order of the court. Thereafter, plaintiff’s counsel shall prepare a written order consistent with the court’s ruling for the court’s signature, pursuant to California Rules of Court, Rule 3.1312 and Local Rule 3.403(b)(iv), and provide written notice of the ruling to all parties who have appeared in this action. The order should be e-filed only, do not email or mail a hard copy to the court.