KUNAU VS. CITY OF REDDING, ET AL.

CASE NUMBER: 24CV-0205953 Tentative Ruling on Motion for Summary Judgment: Defendant and Cross-Complainant Sysco Sacramento, Inc. (“Sysco”) moves for summary judgment against Plaintiff Cody Kunau pursuant to Code of Civil Procedure section 437c on the grounds that there is no triable issue of material fact because: 1) as to the cause of action for negligence, there is no evidence Defendant breached any duty of care or that any act or omission by Defendant was a substantial factor in causing Plaintiff’s injuries, and 2) as to the cause of action for battery, there is no evidence Defendant intended to cause harmful or offensive contact. In the alternative, Sysco seeks summary 5

adjudication. Plaintiff and Defendant and Cross-Defendant City of Redding have each filed oppositions to the Motion. The City of Redding’s Opposition concerns only the cause of action for negligence.

Request for Judicial Notice: Pursuant to Evid. Code 452(c), Plaintiff requests the Court take judicial notice of the following: 1) Comprehensive Truck Size and Weight Limits Study – Highway Safety and Truck Crash Comparative Analysis Technical Report NHTSA, Chapter 3.3, Figures 6 and 7 (2015); and 2) The US Department of Transportation’s Western Uniformity Scenario Analysis, Chapter 6, Roadway Geometry (2004). The requests are denied, as these documents appear to be excerpts of a technical report and an analysis performed potentially by a government agency, but do not constitute “official acts” of the legislative, executive, or judicial departments of the state.

Objections to Evidence: Plaintiff’s objections to paragraphs 2, 6, 8, 10, and 16 of the Declaration of Mitchell are overruled. Defendant Sysco’s objections numbers 1-3, 5-7, 10 are sustained. Defendant Sysco’s objections numbers 4, 8, 9 are overruled.

Standard on Summary Judgment: The party moving for summary judgment bears the initial burden to make a prima facie showing that there are no triable issues of material fact. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850. There is a genuine issue of material fact only if the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof. Id. at 845. A defendant 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, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action.

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. CCP § 437c(p)(1). The plaintiff or cross-complainant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.

CCP § 437c(p)(2).

In ruling on a motion for summary judgment, the Court must consider not only the direct evidence presented, but also reasonable inferences to be drawn therefrom, and must view the evidence and inferences “in the light most favorable to the opposing party.” CCP § 437c(c); Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at 843. “Because summary judgment is a drastic measure that deprives the losing party of trial on the merits, it may not be invoked unless it is clear from the declarations that there are no triable issues of material fact.” Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 304. “A summary judgment motion is directed to the issues framed by the pleadings. Those are the only issues a motion for summary judgment must address.” Van v. Target Corp. (2007) 155 Cal. App. 4th 1375, 1387.

Plaintiff’s First Amended Complaint (“FAC”) generally alleges that on October 2, 2023, Plaintiff was walking on a sidewalk in the City of Redding when he was struck by tree branches which were dislodged by a passing Sysco delivery truck. The FAC states two causes of action against Defendant Sysco: the Third Cause of Action for Negligence, and the Fourth Cause of Action for Battery. Sysco seeks summary judgment as to each cause of action, and in the alternative summary adjudication to each issue raised independently.

Negligence - Breach of Duty of Care/Issue 1: whether the first cause of action for negligence fails against Sysco because there is no evidence that Erik Mitchell breached any duty of care.

The elements of a negligence cause of action are (1) the existence of a duty, (2) a breach of that duty, (3) injury to the plaintiff caused by the defendant's breach, and (4) actual damages. Romero v. Los Angeles Rams (2023) 91 Cal.App.5th 562, 567.

Duty of Care. CCP § 1714 establishes a broad, general duty of reasonable care, dictating that all individuals are responsible for injuries caused to another by their "want of ordinary care or skill" in the management of their property or person. This baseline duty applies to the operation of motor vehicles, meaning a driver must use ordinary care to prevent others from being injured as a result of their conduct. Lawson v. Safeway Inc. (2010) 191 Cal. App. 4th 400.

“Rowland enumerates a number of considerations ... that have been taken into account by courts in various contexts to determine whether a departure from the general rule is appropriate ... .” (Ballard v. Uribe (1986) 41 Cal.3d 564, 572, fn. 6 [224 Cal. Rptr. 664, 715 P.2d 624] (Ballard).) The factors to be balanced under Rowland are: “the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.” (Rowland, supra, 69 Cal.2d at p. 113.)” Lawson v.

Safeway Inc. (2010) 191 Cal.App.4th 400, 409.

“[T]he chief element in determining whether defendant owes a duty or an obligation to plaintiff is the foreseeability of the risk ... .” (Dillon, supra, 68 Cal.2d at p. 740.) Safeway argues that the risk of an accident like the one that transpired here was not reasonably foreseeable because no accidents involving obstructed views had previously occurred at this particular intersection. However, “a court's task—in determining ‘duty’—is not to decide whether a particular plaintiff's injury was reasonably foreseeable in light of a particular defendant's conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed on the negligent party.” Lawson v. Safeway Inc. (2010) 191 Cal.App.4th 400, 409.

Here, the risk of a tree limb being hit by a large passing truck is reasonably foreseeable. The alleged conduct at issue – failure to operate the truck with ordinary care – is sufficiently likely to result in the kind of harm experienced such that liability may appropriately be imposed. The Court’s analysis in Lawson, supra 191 Cal.App.4th at 410, draws a close parallel to this action. In this case, as in Lawson, the Rowland factors weigh in favor of recognizing a duty here. Plaintiff was injured, and the Sysco driver’s conduct was connected closely enough to the accident to qualify as a cause.

Recognition of duty would help prevent future harm because drivers will be vigilant about choosing routes clear enough for their large trucks to pass through. No showing has been made that the risk involved is uninsurable. On the other hand, little or no moral blame attached to Plaintiff’s conduct, as he was just walking down the sidewalk. In sum, Defendant owed a duty of care here.

Breach. To demonstrate a breach of the duty of care, the Plaintiff must show that the driver’s conduct fell below the standard of care. In most cases, this standard is that of a "reasonably prudent person under like circumstances." Jacobs Farm/Del Cabo, Inc. v. Western Farm Service, Inc. (2010) 190 Cal. App. 4th 1502. This is generally a question of fact for the jury. The jury must evaluate whether a reasonably prudent driver, operating a large tractortrailer under the same conditions, would have seen and avoided striking the overhanging tree limb.

See Cabral v. Ralphs Grocery Co. (2011) 51 Cal. 4th 764, Jacobs Farm/Del Cabo, Inc. v. Western Farm Service, Inc. (2010) 190 Cal. App. 4th 1502. While compliance with general traffic laws constitutes evidence of reasonable care, it is not conclusive and does not automatically establish that the driver met the standard of care, as statutory standards represent only minimum requirements. Jacobs Farm/Del Cabo, Inc. v. Western Farm Service, Inc. (2010) 190 Cal. App. 4th 1502.

Here, Sysco’s evidence shows that Defendant’s driver, Erik Mitchell was operating his truck within his lane of travel, a safe and reasonable speed, and maintained control of the vehicle at all times. (UMFs 22-23) He did not drive onto the sidewalk, shoulder, or outside his lane, nor did he engage in any unsafe maneuver. (UMF 27) The contact at issue occurred only because a tree branch extended into the traveled portion of the roadway and 7

interfered with the upper portion of the truck. (UMF 24-25) Prior to the contact, Mitchell did not observe any branch extending into his lane at a height that could be safely avoided, and there were no warning signs or indicators of a hazardous condition. (UMF 26, 31) Even if none of these material facts were disputed, Sysco has failed to carry its burden to show that there is no triable issue of material fact with respect to breach. The question is not whether Mitchell was driving lawfully, but whether a reasonably prudent driver in his same situation would have seen and avoided the overhanging limb.

As the City of Redding’s Opposition points out, a reasonably prudent driver may have chosen to drive in the number one lane. This is a question for the jury. Additionally, Mitchell testified that he had experienced tree limbs brushing against the side and top of his truck while driving in downtown Redding on prior occasions, that tree hazards are a known risk which drivers must sometimes stop and avoid, and that he never reported this incident or other tree hazards to the City. (C-UMF 2-4) In sum, triable issues of material fact remain with respect to the issue of breach of the duty of care.

Summary adjudication as to Issue 1 is DENIED. Therefore, summary judgment as to the Third Cause of Action for Negligence as to Defendant Sysco is also DENIED.

Negligence – Causation/Issue 2: whether the first cause of action for negligence fails against Sysco because there is no evidence that any act or omission by Erik Mitchell was a substantial factor causing Plaintiff’s injuries.

“Causation is ordinarily a question of fact which cannot be resolved by summary judgment. Causation may be decided as a question of law if under the undisputed facts, “there is no room for a reasonable difference of opinion.” (Nichols v. Keller (1993) 15 Cal.App.4th 1672, 1687.)” Romero v. Los Angeles Rams (2023) 91 Cal.App.5th 562, 567-568.

“‘On the issue of the fact of causation, as on other issues essential to the cause of action for negligence, the plaintiff, in general, has the burden of proof. The plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.’” Id at 571-572.

Sysco argues that Plaintiff cannot establish causation because he did not see the truck strike the branch and doesn’t know how it became dislodged. (UMF 9-10) His belief that the truck struck the branch is based on assumption, not personal knowledge. (UMF 10) Sysco further argues that there is no evidence regarding the condition of the branch or how it fell, and that Plaintiff didn’t notice any dangerous condition. (UMF 11, 17) Plaintiff does not address the issue of causation in its Opposition.

However, Plaintiff’s DMF 6 states that as he was “walking along the sidewalk, he heard a loud noise behind him. When he turned his body around to observe what caused the loud noise, he was struck by the falling tree branch on his head. He did not see the tree branch before it struck his head.” Plaintiff’s DMF 14 states that “Mr. Mitchell stopped the delivery truck immediately after hearing the tree branch break and he saw the branch fall out of the periphery of his vision.” Moreover, the City of Redding’s UMFs state that the first time Mr.

Mitchell became aware that something unusual happened was when he heard the sound of the tree limb breaking. (C-UMF 8) After stopping his vehicle, Mitchell observed a pedestrian on the sidewalk next to a limb who claimed to be hurt, damage to the tree limb, damage to a nearby tree, and a dent in the top corner of the trailer, consistent with where he believed his truck impacted the tree limb. (C-UMF 10) Mitchell observed a small cut on the pedestrian’s head and the pedestrian told Mitchell that his head hurt. (C- UMF 11) This evidence affords a reasonable basis for the conclusion that it is more likely than not that the delivery truck hitting the tree branch was a cause in fact of the tree branch falling and hitting the Plaintiff.

There are triable issues of material fact with respect to causation, so summary adjudication is DENIED as to Issue 2.

Battery – Intent/Issue 3: whether the second cause of action for battery fails against Sysco because there is no evidence that Mitchell intended to cause harmful or offensive contact with Plaintiff.

“The essential elements of a cause of action for battery are: (1) defendant touched plaintiff, or caused plaintiff to be touched, with the intent to harm or offend plaintiff; (2) plaintiff did not consent to the touching; (3) plaintiff was harmed or offended by defendant’s conduct; and (4) a reasonable person in plaintiff’s position would have been offended by the touching.” So v. Shin (2013) 212 Cal.App.4th 652, 669 [citing CACI 1300].

“In an action for civil battery the element of intent is satisfied if the evidence shows defendant acted with a ‘willful disregard’ of the plaintiff’s rights.” Ashcraft v. King (1991) 228 Cal.App.3d 604, 613, internal citation omitted.) “As a general rule, California law recognizes that ‘. . . every person is presumed to intend the natural and probable consequences of his acts.’ Thus, a person who acts willfully may be said to intend ‘ “ ‘those consequences which(a) represent the very purpose for which an act is done (regardless of the likelihood of occurrence), or (b) are known to be substantially certain to result (regardless of desire).’ ” ’ The same definition is applied to many intentional torts.” Gomez v. Acquistapace (1996) 50 Cal.App.4th 740, 746, internal citations omitted.

Sysco argues that there is no evidence that its delivery driver Erik Mitchell intended to cause harmful or offensive contact with Plaintiff. Sysco’s evidence shows that Mitchell was operating his vehicle within his lane of travel at a safe and reasonable speed. (UMF 22-23, 27) There is no evidence that he drove toward Plaintiff, deviated from the lane, or took any action aimed at causing contact with Plaintiff. (UMF 22, 27) Mitchell was not aware of any hazardous condition involving the tree branch prior to the incident and did not observe any condition that could be safely avoided. (UMF 26, 30-31) Plaintiff argues that the driver had prior knowledge of tree limbs hitting his truck on Redding’s streets, and that the evidence shows that the truck was intentionally driven through the area where low-hanging branches were known to exist.

Plaintiff argues, without citation to authority, that the doctrine of “transferred intent” applies to this case. Under this doctrine, if a person acts with the intent to make a wrongful contact with or cause apprehension of contact with one person, but instead inadvertently or accidentally makes contact with a third person, the actor is civilly liable for battery to the third person Singer v. Marx (1956) 144 Cal. App. 2d 637. The Court finds that the doctrine of transferred intent does not apply here.

Plaintiff has not identified any third person involved in the incident.

Additionally, the intent to drive a truck through Redding’s streets is not the intent required here. Plaintiff must show the driver proceeded down the street intending those consequences which (a) represent the very purpose for which an act is done, i.e. meaning to hit the Plaintiff by dislodging the tree branch, or (b) are known to be substantially certain to result, i.e. knowing that the dislodging of a branch was substantially certain to result by driving down the street. Plaintiff presents no evidence that the driver perceived either the Plaintiff or the low hanging branch prior to the incident, and no evidence that the driver acted with willful disregard for the Plaintiff. Therefore, summary adjudication as to the Fourth Cause of Action for Battery against Sysco is GRANTED.

Sysco’s Motion for Summary Judgement is DENIED. The alternative relief requested for Summary Adjudication is DENIED as to Issues 1 and 2 and GRANTED as to Issue 3. The Court has reviewed the proposed order submitted with this Motion and finds that it is not tailored to the causes of action at issue. Sysco is directed to submit a proposed order consistent with this tentative ruling.

LVNV FUNDING LLC VS. RIDGWAY